Good morning,

Mister President,

Your Excellencies,

May it please the court.

My name is Georgios Sotiri and I am an agent for the Respondent, the Republic of Rakkab. I will now
speak for 9 minutes addressing the issue before this honorable court, namely the alleged International
Responsibility of the Republic of Rakkab. Respondent respectfully reserves 1 minute for surrebuttal.

May it please the court,

The issue before this honorable court is whether the Republic of Rakkab has any International
Responsibility. Respondent submits that the answer to this question is ΝΟ.

Applicant submitted that…

Respondent respectfully requests that this court rejects all of applicant submissions.
DE FACTO ORGAN

Your Excellencies, to classify a person or a group of persons as a de facto organ of a State, the Nicaragua
Test applies.

Authority - Para. 109 Nicaragua Case What the Court has to determine at this point is
whether or not the relationship of the contras to the United States Government was so much
one of dependence on the one side and control on the other that it would be right to equate the
contras, for legal purposes, with an organ of the United States Government, or as acting on
behalf of that Government.

As De Frouville set it out, reflecting the reasoning of para. 115, Nicaragua Test is comprised of two
conditions.

--de Frouville in The Law of International Responsibility, 2010, Page 268

First, the existence of a de facto link between the State and the organ in question (In Nicaragua case
such link was the financing, supporting, training, equipping etc. of the contras)

Second, evidence of complete dependence of that person or group of persons to the State.

The threshold was set by this court in Bosnia Genocide Case, para 394 (and I Quote) “to be regarded as
mere instruments through which the Federal Republic of Yugoslavia was acting, and as lacking any real
autonomy.”

Another aspect of complete dependence was set in para 112 of the Nicaragua case, namely the
selection, installation and payment of the leaders of such group of persons.
Your Excellencies, DORTA is far from dependent to Rakkab.

DORTA, despite being partially financed and supported by Rakkab,

is a private company

who carries out its own economic activities,

has its own budget and its scientists,

as shown in para 13 of the Sp. Agreement, enjoy wide discretion to choose their areas of research.

Additionally, the appointment of the Board of Directors is not mentioned to be an action of Rakkab.

Therefore, respondent submits that DORTA cannot be considered as de facto organ of Rakkab, according
to the settled jurisprudence of this court.
Your Excellencies, the degree of control needed for a state to be held responsible for the acts of a
private individual or a group of private individuals was the primary issue in Nicaragua case, which
formulated the effective control test.

As the reasoning of para. 115 of Nicaragua Decision and the literature show, Nicaragua Test is comprised
of two conditions.

First, the existence of a de facto link between the State and the organ in question. In Nicaragua case
such link as para 115 reads,” was the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation. However, it was held insufficient.”

Second condition to be met is the exercise of efficient control. In Nicaragua case, efficient control was
not proven since there were no evidence that US directed or enforced the acts violating international
law.

Therefore, the threshold of efficient control is met if the acts in question have been ordered or imposed
by the State. (De Frouville page 268).

The test formulated in Nicaragua Case was upheld by this court in its Bosnia Genocide Decision in 2007.

In para 406 the court reaffirmed the threshold to be met, ruling that attribution is acceptable where
(and I quote) “State gave the instructions or provided directions pursuant to which the perpetrators of
the wrongful acts acted, or where it exercised effective control over the action during which the wrong
was committed.”

In addition, this court stated that the Nicaragua test reflects customary International law (para 401.) and
characterized it as a matter of settled jurisprudence (para 407.)

Your excellencies, DORTA’s actions where never ordered or directed or instructed, therefore nor
controlled by Rakkab to hold Rakkab responsible for violations of International law by DORTA’s actions,
if any violation occurred.

In this respect the Court, with reference to the Nicaragua

case, applied a test of ‘complete dependence’. According to the ICJ this test
required proof that ‘the persons, groups or entities act in “complete
dependence” on the State, of which they are ultimately merely the
instrument’. In applying this test to the facts of Bosnia v. Serbia the Court
found that no such relationship existed between the FRY and the various
examined groups of Bosnian Serbs. This was mostly because ‘some qualified,
but real, margin of independence’ was enjoyed by the Bosnian Serb leaders
which signified no total dependence.

though the Court did not say that Article 8 ASR was not a rule of attribution, it did say that Article 8
could not assign de facto organ status to a non-state actor whom the state did not control completely
(said by Milanovic)

In its commentary to the ASR, the ILC actually never even uses the term ‘de facto organs,’ so it is
hard to see how Griebel and Plücken can invoke it in support of their position that attribution under
Article 8 equals de facto organ status (again Milanovic). Indeed, the ILC reserves the use of the term
‘organ’ solely to attribution under Article 4 ASR, and never uses it in the context of attribution under
Articles 8-11 ASR.

The notion of de facto organs is of course certainly used in the literature, often in a wider sense than
that given to the notion by the ICJ. Even more often, however, authors who use the term do not
define it, as if its meaning was self-evident. Neither do Griebel and Plücken, for that matter, though
of course for them the categories of attribution and organ status appear to be interchangeable…. I can
thus only explain my views on the issue. De facto organs are entities that (1) are (obviously) not de
jure organs (2) but nonetheless, by virtue of the strength of the connection between them and the
state, the same rules that apply to de jure organs apply to them as well, even if they do not possess
organ status under the state’s domestic law. (Milanovic)

They argue that the test is so stringent that it could hardly ever be successfully applied, that it is
almost inconceivable that it could ever be satisfied without the effective control test being satisfied at
the same time, and that it is therefore redundant, or at the very least of negligible practical
importance. (comment of Milanovic on milan plucken and jorn griebel critique)

The answer to the “demanding test” can be found on paras 392 and 393 of genocide decision (saxla’s
comment in relation to the Milanovic comments).
Doctrinally, the purpose of the test is to prevent states from avoiding responsibility merely by
changing the provisions of their own domestic law. As explained above, the reason why a connection
between a state and a de facto organ must be intense is that the mere identity of the actor as a state
organ suffices for attribution to occur.
To that Griebel and Plücken respond that it is hard to envisage the complete control test being
satisfied without a simultaneous proof that the specific acts of the entity in question were at the same
time effectively controlled by the state.
VERIFICATION OF THE NICARAGUA TEST

Your excellencies, applicant submitted that the test formulated in Nicaragua Decision is ………..

However, respondent submits that this view is not in conformity with International law. The Nicaragua
Test was discussed and explicitly upheld by this court in Bosnia Genocide Case Decision. Specifically, in
Para 401 this Court pointed out….

401. “The rules for attributing alleged internationally wrongful conduct to a State do not vary with the
nature of the wrongful act in question in the absence of a clearly expressed lex specialis.” In that para. it
was also noted that actions carried out by non – state actors were attributable if they were committed
(and I quote) “ on the instructions or directions of the State, or under its effective control. This is the
state of customary international law, as reflected in the ILC Articles on State Responsibility”

Also, the court subsequently characterized this matter as one of settled jurisprudence (para 407.)

In addition, persuasive in this regard, despite not being legally binding, is the First Report of the Special
Rapporteur James Crawford, as well as International Law Commission’s work.

In para 213 of its First Report, Crawford notes that Nicaragua decision was not subject of any dissent in
that case, neither criticized by subsequent decision or literature. (The report was published prior the
Tadic appeal Decision). He then continued be proposing the inclusion in article 8 the words “direction
and control” and the application of the article 8 only in cases where (and I quote from para 213)

“the State directed and controlled the specific operation and the conduct complained of was a
necessary, integral or intended part of that operation, that the conduct should be attributable to the
State. The principle should not extend to conduct which was only incidentally or peripherally associated
with an operation, or which escaped from the State’s direction and control.”

Your Excellencies, the wording in Article 8 in the published Articles of 2001 is almost identical to the one
proposed in Crawford’s Report. The reason that this is decisive in this regard is that ILC prior to the
publication of the Second Reading of Articles in State Responsibility had the advantage to take under
consideration a number of judicial decisions, including the conflicting decisions of Nicaragua Case and
Tadic Appeal Decision. Thus, it is deductible that it neither ILC intention to interfere with the Nicaragua
reasoning.

Additionally, according to the ARSIWA commentary and the paragraph 1 of the article 8 commentary,
the general principle is that the conduct of private persons or entities is not attributable to the state
under international law. However, if exceptional circumstances are satisfied a private person’s or
entity’s actions can attribute to the State. By definition, article 8 of Articles on State Responsibility
provides an exception to the rule. Exceptions from a rule have to be interpreted narrowly and be fully
satisfied in order to established, otherwise they undermine the rule itself. Therefore, respondent
submits that any derogation from the Nicaragua Test, as this court set it out in Bosnia Genocide Case,
criticizing the Tadic Case overall control test, is unsuitable for application in a state responsibility context
on the basis that it would be overly broad.

Your Excellencies, respondent, adopting the Bosnia Genocide reasoning, submits that the subject is
indeed one of settled jurisprudence, reflecting customary law and no deprivation is acceptable.
DORTA, despite being partially financed and supported by Rakkab, is a private company, incorporated in
Rakkab as the internal law requires It has also its own private charter, who carries out its own economic
activities, has its own employees such as doctors, biologists and scientists to carry out the researches
and the medical development, which enjoy wide discretion to choose their areas of research (paragraph
13 & 14 of compromis) Also, Ms. Alexander, who is the CEO of DORTA, declined to commit to any
particular course of action after the Aurokan Minister asked her to. Moreover, during the annual
shareholder meeting of DORTA, Ms. Alexander announced that their scientists are looking for an
alternative medicine to the enzyme. This shows that DORTA has the freedom of choice over its
operation, controls its own actions and decisions, without external or governmental instruction, control
or direction (paragraph 31 and 33 of compromis)

Your excellencies, DORTA’s actions where never ordered or directed or instructed, therefore nor
controlled by Rakkab to hold Rakkab responsible for violations of International law by DORTA’s actions,
if any violation occurred.
Your excellencies, Applicant submitted that Rakkab is responsible for the acts of DORTA according to
article 11 of Articles on State Responsibility. Respondent respectfully requests that this court rejects
applicant submission.

Paragraph 6 of Article’s 11 commentary notes that the wording of article 11 intends to distinguish cases
of acknowledgment and adoption from cases of mere support and endorsement, namely situations
where a state merely acknowledges the factual existence of a conduct or expresses its verbal approval.

Furthermore paragraph 8 of the Commentary points out that the act of acknowledgment and adoption,
either verbal or by conduct, must be clear and unequivocal.

As de Frouville stated, “if oral approval is insufficient to ground attribution, it is difficult to see how
simple conduct will suffice.” Indeed, your excellencies, a definitive and distinguishable act is required in
order to be regarded as a clear and unequivocal adoption of a conduct by a state as it was its own.

Tehran Hostages Case, the most authoritative decision in this matter, shows which conduct is to be
regarded as such. For instance, expression of approval from numerous Iranian authorities (par71),
forbiddance to governmental officials to meet with US representatives (71) an Ayatollah’s declaration, in
fact order, of maintenance of the Embassy’s occupation (74), and especially, the Minister of Foreign
Affairs characterization of the actions as “done by our Nation”.

Your Excellencies, no action of Rakkab is equivalent to a clear and unequivocal acknowledgment and
adoption of DORTA’s conduct.

Afterall, as paragraph 2 of the commentary provides, (and I quote) “The general principle, drawn from
State practice and international judicial decisions, is that the conduct of a person or group of persons
not acting on behalf of the State is not considered as an act of the State under international law.”
Subsequently, article 11 is to be regarded as an exception of the non-attribution rule, and as a general
principle of law, recognized amongst civilized nations, exceptions are to be interpreted narrowly, in
order not to undermine the rule itself.

Your excellencies, applicant submitted that DORTA’s actions are attributable to Rakkab since the former
is allegedly exercising elements of governmental authority. However, respondent respectfully requests
applicant’s submissions to be rejected.

Applicant submitted that guidance to article 5 is provided in paragraph 6 of the Articles on State
Responsibility Commentary, which provides general standards to be considered, including the particular
society, its history and tradition.

However, as Crawford pointed out in its book State Responsibility, published in 2013, namely 12 years
after the publication of the Articles commentary, (and I quote) “it would be unsatisfactory in defining
governmental authority to rely simply on the functions governments historically have performed: such
appreciation is difficult to be justified as more and more are now functions are privatized and
outsourced.”

According to paragraph 3 of the Commentary, article 5 refers to entities empowered to exercise

specified elements of governmental authority. Therefore, DORTA’s actions shall concern governmental
activities. However, DORTA engages in private and commercial activities, not to be considered as
elements of governmental functions.

In any case, after the activities that DORTA engages are separated, the alleged action contrary to
international law, namely yak harvesting, is not to be considered as a governmental activity, neither the
issuing of hunting licenses is to be considered as specific delegation rather than mere permission.

This view is also supported by paragraph 7 of the commentary, which provides that article 5 does not
extend to situations where (and I quote) internal law permits activity, as part of the general regulation
of the affairs of the community. It is accordingly a narrow category”.
Lastly, one of the general standards set out in paragraph 6 concerns the extent of the entity’s
accountability to the State.

However, DORTA is not in any way accountable to Rakkab to a further extent of any company. As
emerges from the Special Agreement,

Rakkab neither supervises DORTA’s actions,

or appoints its officials,

no audit of DORTA’s actions occurs,

and DORTA is not subject to any executive control or permitting than it is provided by the generally
applicable laws.

Thank you.