An Analysis of the Attribution of Acts of Private Persons to the State in the European Court of Human Rights
Miray Azaklı KöseThis study examines approach of the European Court of Human Rights’ approach to the issue of attribution, one of the main conditions for establishing state responsibility under international law. The study focuses on the relationship between the law of international responsibility and the law of human rights within the context of attribution. Therefore, the paper explains the pri-mary meaning of attribution under international law and, following a detailed analysis of the Court’s case law, provides a comparative analysis with international law. The Court’s jurisprudence on attribution is divided into two parts: the doctrine of positive obligations and the inter-pretation of the concept of governmental organization, especially in terms of the conduct of state companies. The results indicate that the Court has not adopted lex specialis on attribution, and its judgments largely conform to general international law. The paper outlines in detail the rea-sons for this conclusion and the Court’s application corresponding to certain rules under inter-national law. On the other hand, the Court has refrained from using the term “attribution.” In-stead, the Court has been determining which entities would be regarded as state organs in light of the term “non-governmental organization,” as defined in Article 34 of the Convention. There-fore, the Court’s discomfort with the meaning of “non-governmental organization,” which per-tains to the Convention, has caused the Court to adopt its own interpretation of the term and, in some judgments, to focus on the private entity itself rather than the act claimed to be unlawful.
Avrupa Insan Hakları Mahkemesi Içtihadında Özel Kişilerin Eyleminin Devlete Atfedilmesi Üzerine Bir Inceleme
Miray Azaklı KöseBu çalışmada uluslararası hukukta devletin sorumluluğunun temel koşullarından biri olan atfedilmeye Avrupa İnsan Hakları Mahkemesi’nin yaklaşımı incelenmiştir. Çalışma bu bakımdan atfedilme konusu özelinde uluslararası sorumluluk hukuku ile insan hakları hukuku arasındaki ilişkiye odaklanmıştır. Bu nedenle öncelikle uluslararası hukukta atfedilmenin ne anlama geldiği açıklanmış, daha sonra AİHM içtihadı incelenerek uluslararası hukuk ile karşılaştırmalı bir analiz yapılmıştır. AİHM’nin atfedilme konusundaki içtihadı pozitif yükümlülük doktrini ve özellikle devlet şirketlerinin eylemleri bakımından hükümet kuruluşu kavramının yorumlanması şeklinde ikiye ayrılmaktadır. Vardığımız sonuca göre, AİHM atfedilme konusunda lex specialis benimsemiş değildir ve kararları büyük ölçüde genel uluslararası hukuk ile uyumludur. Çalışmada bunun gerekçelerine ve AİHM uygulamasının genel uluslararası hukukta hangi kurallara karşılık geldiğine ayrıntılı biçimde yer verilmiştir. Bununla birlikte AİHM atfedilme ifadesini genellikle kullanmamakta ve Avrupa İnsan Hakları Sözleşmesi’nin 34. maddesi bağlamında hükümetdışı kuruluş kavramından hareketle, hangi birimlerin devlet organı sayılacağını belirlemektedir. Bu nedenle AİHS’ye özgü bir kavram olan hükümetdışı kuruluş kavramı, AİHM’nin kendi özel yorumunu yapmasına imkân tanımakta ve bazı kararlarda hukuka aykırı olduğu öne sürülen eylem yerine genel bir biçimde özel kişinin kendisine odaklanılmasına yol açmaktadır.
Under international law, imposing international responsibility on a state based on acts of private persons requires the use of the process of attribution. In other words, to hold a state accountable for an act of a private person that act must in some manner be attributable to the state. The jurisprudence of the European Court of Human Rights shows that the issue of attribution is divided into two parts: the doctrine of positive obligations and the evaluation of the status of private companies under the concept of governmental organization. The former essentially refers to the extension of obligations of the states deriving from the European Convention on Human Rights, while the latter refers to the attribution of acts of private persons to the state.
In a wide range of cases, the Court has chosen to apply the doctrine of positive obligations, rather than attributing the act to the respondent state in order to hold a given state responsible for the act. However, some writers argue that the positive obligations doctrine is an acceptable method of attributing an act committed by a private person or entity to the state. On the contrary, from a general international law perspective, the law does not equate the attribution of acts of private persons with a state action. Since under such circumstances, an omission of a positive obligation (e.g., the obligation to protect) by a state organ has taken place, the unlawful conduct of a private person cannot be attributed to the state theoretically according to international law. Moreover, since the determination of the content of the international obligation is left to the primary rules (see ARSIWA art. 33); ARSIWA (secondary rules) simply does not deal with the question. Accordingly, violation of the positive obligations is nothing more than unlawful conduct by a state organ. In other words, the positive obligations doctrine does comply with the general rules on attribution. (ARSIWA Art. 4)
Especially when it comes to state companies, state responsibility for the acts of that company are based on the understanding of the concept of “governmental organization,” which itself is a term that appears in Article 34 of the Convention. Although the Court implies that the concept of governmental organization is not a mirror image of what makes an entity a state organ, it expressly states that it will apply the criteria regarding the former, mutatis mutandis, to the latter. Hence, attribution of the acts of private entities to the state will be evaluated in light of the Court’s jurisprudence regarding what establishes a private entity as a governmental organization. Some judgments of the Court demonstrate that the Court has focused on the structure and functions of the entity in general while determining whether it should be deemed a state organ. On the other hand, a well-settled and codified customary rule of general international law (e.g., found in ARSIWA art. 5 and 8) stipulates that when determining whether a private entity is to be regarded as a state organ, the focus must be on the act claimed to be unlawful.
Furthermore, this general evaluation perspective carries the risk of giving rise to the adoption and the “objective responsibility of the state doctrine,” which is clearly contrary to the customary rule of international law that requires efficient control of the state over the act in question for purposes of attribution.
However, the majority of the Court’s case-law demonstrates that the analysis of attribution conforms to efficient control rule. In Liseytseva v Russia, the Court held that, in assessing whether a company enjoyed sufficient operational and institutional independence from the State, the Court had taken into account a wide range of factors, none of which would be determinative on its own. The Court summarized the criteria used in the case law for this purpose as follows:
a) whether the rights conferred on the company are those rights which are normally reserved for public authorities and whether the legal entity exercises a public function or private function;
b) the extent of State ownership, supervision, and control of the company;
c) the role played by the State with respect to the procedure of insolvency of the company;
d) and whether the State could be assumed to have accepted responsibility for the debts of the company fully or in part.
In this study, we argue that these criteria, despite the Court’s use of its own terminology, reflect and conform to the general rules of attribution. But as mentioned above, in order for this to happen, these criteria must be applied in a manner that places the unlawful act in the center.
Finally, the paper argues that neither the Convention nor the Court stipulates any rule on attribution nor adopts lex specialis on the same subject. Accordingly, secondary rules of international responsibility of states must be put in place. Although ARSIWA is not a binding text in the same way as an international agreement, the customary rules codified in it have to be applied when there is no lex specialis. Thus, despite its deficiencies, ARSIWA still functions as the glue that holds the sub-systems or self-contained regimes of international law together against the phenomenon of fragmentation.
