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CONCLUSION: WHERE IS THE LAW OF STATE RESPONSIBILITY HEADING? The history of the law of state responsibility is a dynamic one. It reflects how human beings conceived their community and the community of others. The ancient and medieval collective was replaced by the absolute ruler, which then had to give way to the modern constitutional state. The law of state responsibility always adapted more or less swiftly to each momentous change in the nature of the state and its relations with its members. Bearing this historical dynamism in mind, one has to ask where the law of state responsibility will go in the years to come. After all, we might be currently witnessing another momentous shift in the international order as well as in the relation between state and individual. Mathews has forcefully argued that the end of the Cold War not only shifted the balance of power between states but had wider repercussions on the Westphalian order—an order which designated the state to be the primary source of power in international politics and law.241 She depicts the recent power shift as a medievalization of international relations. The Westphalian order, consisting of only one layer of states, is replaced increasingly by a multilayered system similar to the feudalist medieval European empires, in which power was distributed between various layers of noblemen with the emperor having only partial control over his lands.242 Today, states more and more share their power with international organizations but even more importantly with non-state or transnational, sub-state actors. Multinational corporations, strengthened by free trade and privatization, achieve annual turnovers that dwarf the gross domestic product of developing countries and can wield enormous economic power. Transnational networks of NGOs force countries to adopt new rules of international law such as those embodied in the Ottawa Treaty against landmines. The Republic of Vanuatu even decided to turn its entire representation at international conferences over to an NGO with expertise in international law.243 Armed non-state groups also take advantage of the opportunity to control territory that is left unprotected by weak states and then seek to expand their power even further. As one could expect with regard to its history, the law of state responsibility is beginning to react to this power shift. In a 1999 judgement, the Appeals Chamber of the International Criminal Tribunal for Yugoslavia (ICTY) concerned itself with a question of state responsibility.244 In order to determine whether Tadic had committed war crimes against civilians protected by the Geneva Convention IV of 1949,245 the Tribunal had to determine whether an international conflict existed in Bosnia after the Yugoslav national army formally withdrew from the armed conflict in May 1992. This would be the case only if the Army of the Republic of Srpska could be regarded as a de facto agent of the Federal Republic of Yugoslavia (FRY).246 In principle, the Court affirmed the “effective control” principle of the Nicaragua case.247 But it felt compelledto alter the test in one important aspect. In the Nicaragua Case, the ICJ held that actions of the Contras were attributable to the United States only if the individual members of the Contra group were given specific instructions by the United States.248 Conversely, the ICTY held that specific instructions were not necessary. If a state has overall control over an organized and hierarchically structured group, then all acts of its members are attributable to the state when there is specific control of the individual and when the individual acts contrary to specific instructions.249 The Court’s political rationale is sound. Where non-state actors assume traditional state functions, one must ensure that states cannot avoid state responsibility by simply replacing de jure with de facto agents. Nevertheless, the judgement has been subjected to ample criticism. Judge Shahabuddeen, a former ICJ judge, who presided over the Appeals Chamber in Tadic, disagreed with the opinion and dissented.250 He argued that the Court did not have to determine whether Yugoslavia effectively controlled the perpetrators.251 The Court only had to determine whether there was an international conflict.252 This would be the case if the Army of the Republic of Srpska was a de facto agent of the FRY.253 Whether Yugoslavia was responsible for the acts of individual perpetrators was irrelevant for the purposes of the case at hand.254 In this regard, Shahabuddeen nevertheless noted per dictum that Yugoslavia might have a duty to exercise due diligence and must therefore prevent members of its de facto agent from certain actions.255 However, ultimately he didnot say anything with regard to the issue.256 The Commentary to the 2001 Draft Articles also criticizes the Tadic decision.257 However, recent state practice supports the Tadic jurisprudence. The international community has accepted the legality of the U.S. military action not only against Al-Qaeda but also against the Taliban regime in Afghanistan as a legal act of self-defence pursuant to art. 51 of the U.N. Charter.258 This implies that the Afghan de facto regime was held responsible for the acts of the non-state actor. No state may knowingly allow its territory to be used to injure other states because it is assumed that it has effective control over the non-state actors operating within its territory.259 This principle makes it possible to hold the Taliban responsible for actions of the Al-Qaeda organization, which had its main base within the Taliban’s realm of control.260 However, a terrorist cell, whose members were operating outside of Afghan territory, carried out the attacks of September 11, 2001. The Taliban were unable to control the individuals that eventually carried out the attacks. That the Taliban were nevertheless held responsible confirmsthe holding in Tadic: State control over an organized and hierarchical group suffices to attribute actions of individual unit members to the state even where the state does not have control over such individuals. The question looming behind all this is whether changing the details of state responsibility will suffice or whether another paradigm shift is necessary in the event that the current trend towards shifting power away from the state intensifies. The law cannot indefinitely set off the relocation of functions to the non-state sector by burdening weak states with increased duties of due diligence and an ever-increasing ambit of state responsibility. Currently, much stock is placed in developing the international duties of individuals through international criminal law. Yet, it seems that organized non-state entities and not individuals are the ones accumulating power. It is doubtful whether singling out members of such entities and threatening them with criminal responsibility will be a successful strategy for controlling the entities themselves. Perhaps international law will have to develop more direct obligations resting on non-state entities. This paradigm shift is less novel or dramatic than it may seem since such obligations already exist in international humanitarian law261 and in international maritime law.262 It is worth noting that the most startling and horrifying display of power by a non-state actor, the attacks of September 11, 2001, has caused states to attempt to regain power. It remains to be seen whether this attempt will be successful. If it is not, one must consider adapting the law of responsibility by changing its paradigms yet another time. As has been shown, there are plenty of historical examples for such paradigm shifts