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The Relevance of Disciplinary Authority and Criminal Jurisdiction to Locating Effective Control under the ARIO

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The commentary to Article 7 of the Articles on the Responsibility of International Organizations (on lent organs) clearly singles out disciplinary authority and criminal jurisdiction as factors relevant to locating effective control and, in turn, attribution. The present study scrutinizes the function and significance of these factors in that context. As the International Law Commission’s Commentary apparently fails to justify their special importance, alternative explanations provided in legal literature are considered together with the idea that reference to these factors originates from Special Rapporteur Gaja’s preoccupation with military personnel. The author concludes that while military discipline and military criminal jurisdiction play a unique role in relation to military personnel, a broader approach focusing on all relevant manifestations of the persisting organic link may provide a more appropriate framework for the attribution of the conduct of lent State organs (military and civilian alike) under the effective control test.

Affiliations: 1: Visiting Research Fellow, Leiden University, Department of Public International Law, z.deen-racsmany@law.leidenuniv.nl

10.1163/15723747-01302006
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/content/journals/10.1163/15723747-01302006
2016-04-13
2017-11-18

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