State Responsibility and Non-State Actors

It is a cardinal principle of the law of state responsibility that states are, in principle, not responsible for acts done by private or non-state actors. To hold otherwise would collapse the distinction between the public and the private spheres, and invite—or even require—states to strictly police the behaviour of their citizens (individuals or entities) in order to prevent the international responsibility of the state from being (objectively) engaged. When drafting the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), the International Law Commission (ILC) initially envisaged enshrining this principle in a separate article, which would read: ‘The conduct of a private individual or group of individuals, acting in that capacity, is not considered to be an act of the State in international law.’ This idea was abandoned in the final version of the ARSIWA, yet it nevertheless underlies the entire regime of attribution of conduct to states. Only acts of state organs can engage the responsibility of the state, even if the act has been done ultra vires.

In principle, though conduct of non-state actors is not attributed to the state per se, the state may nonetheless entertain a sufficiently strong link to a non-state actor and the non-state actor’s conduct to justify the attribution of such conduct to the state.