Where is R2P grounded in international law? Anne-Marie Judson A ...

not the receiving state. Situations can also arise where the organ of one state acts on
the joint instructions of its own and another state (…) In these cases the conduct in
question is attributable to both states”. 119
In regards to R2P, responsibility may be attributable to several states especially in
regards to NATO intervention. In a state of emergency for example, states that send
in troops to quell peaceful protests with machinery or weapons may later find that
their participation has created attribution to both the sending and the receiving state.
(This will be discussed further in Chapter 4). If the sending state retains its their own
autonomy the responsibility and attribution will remain with the sending state.
Articles 17 and 18 cover territorial occupation or enforced participation. The
commentary 120 excludes private military firms as an ambit for responsibility of the
receiving state and it outlines two further criteria. Firstly the organ of the state that is
being sent must in fact be an organ of the state, and secondly the conduct must
involve elements of government authority, which is why private firms cannot be
included in the attribution to state responsibility unless that authority is directly
related to the state in question.
The commentaries also exclude mutual defence, aid and development from the ambit
of the responsibility of the receiving state. The onus of responsibility in these situations
remains with the sending state. Delegated powers must be seen as an act of the state,
therefore any state that is receiving entities or organs of another state and has taken
full responsibility of their conduct is attributed the responsibility. Where there is any
governmental control over an entity in another state the state that has control has
attribution.
On the other hand where a state is not a party to an international treaty that has been
breached and the other state is, it is likely that the courts will hold that the party that is
not part of the international treaty was acting under its regulations. This is because
when the parties concluded their consent or full powers they did so with consent and
therefore the treaty is binding on both parties at the time of participation. In the case
between Liechtenstein and Switzerland the commission held that “Switzerland exercised
its own customs and immigration jurisdiction in Liechtenstein albeit with the latter’s
119 See page 44 ILC commentaries
120 Page 44 paragraphs 1-­‐7
45