The first step of the responsibility process is individualisation. This means that the responsibility has to be established individually on the basis of the behaviour of the international law subject. Attribution is both a process and the result of it: it “is the term used to denote the legal operation having as its function to establish whether given conduct of a physical person, whether consisting of a positive action or omission, is to be characterized, from the point of view of international law, as an ‘act of State’ (or the act of any other entity possessing international legal personality)”.²¹ It has appeared as a plural term with a lot of implications, which can raise confusions and misunderstandings. Many expressions can be used to refer to this concept, such as imputation or imputability,²² but the complexity of its explanation is above all emphasised by the variety of realities included in this process and its result. Indeed, the question of responsibility is obviously given particular attention during the trial, i.e., during the judicial proceedings of a practical case. The notion of jurisdiction is then at the centre of the analysis.²³ In this situation, the Court, in particular in Human Rights protection case law, has to deal with three particular points that are linked by the question of attribution: the attribution itself, the notion of the State’s jurisdiction, and the Court’s proper jurisdiction.

The link between these three points is obvious but can lead to confusions because of the difficulty to consider each one individually.²⁴ As stated by A. Orakhelashvili, “the general concept of jurisdiction in international law is a criterion for the lawfulness of certain acts and conducts of States […] [whereas] jurisdiction under Article 1 [of the European Convention] is a tool for identifying whether alleged violations of the Convention may be imputable to one or another contracting State.”²⁵ In reality, it appears as a problem of perspective. Firstly, the question of attribution itself is traditionally focused on the State to define which behaviour can be considered as its own. Secondly, the jurisdiction of the State is based on the analysis of the authority under which the individual is. In other words, in order to know the control or power under which the individual is, one has to focus on the individual’s perspective. As Lord Roger pointed out in the U.K. House of Lords judgment Al-Skeini: “[i]t is important therefore to recognize that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting State.”²⁶ Finally, the question of the Court’s jurisdiction is based on the ratione personae limitation of the European Court, which means its own perspective.

The three above-mentioned points are linked, in particular in Human Rights case law, because of the limited jurisdiction of the Court and because of the indifferent use of the word jurisdiction to name each particular point. This last issue can be explained by the incompatibility between an objective material—Human Rights law—and a potential limited application. As a result, the notion of jurisdiction is central in the European Convention system. Writers chose to use the word “jurisdiction” and not territory in the text version to give the broader application possible to the treaty.²⁷ Furthermore, as Human Rights need an objective implementation,²⁸ the Court uses the expression in a broader sense.²⁹ If State jurisdiction is principally ‘territorial’,³⁰ it is not the only approach angle of this matter, and others could be more convenient as far as the ultimate aim is to obtain the broader possible application of the Convention. In this way, the question of attribution is widely included in the question of State jurisdiction, which can be established under the condition of the ratione personae jurisdiction of the Court. This confusion may lead to make this topic more obscure than it already is, but the particularity of the topic can explain this particularity in the Human Rights field. Actually, this singular use is also the way for the Court to extend its own jurisdiction in interpreting the jurisdiction of member States in a larger way. The case law on the notion of State and International Organisations’ “control” is an example of this willingness.

If the issue of terminology is almost formal and can be solved with some teaching skills, the operation of attribution seems to remain a sticking point in case of the formal, material, direct, or indirect involvement of an International Organisation in a State behaviour. Indirectly, this operation has consequences on the Human Rights implementation and on the Court’s jurisdiction. The issue of the situation of control between the State and the International Organisation is the basis of a large part of the reflection in the law of international responsibility. As expressed by L. Condorelli and C. Kress “[i]nevitably, that situation gives rise to extremely delicate problems in relation to the identification of the subject(s) of international law responsible for any given conduct, but also may give rise to the possibility of cumulative responsibility (of both organisation and its member States), in particular due to the phenomenon of ‘double attribution’”.³¹ Actually, the main problem resides in the existence of complex situations where both International Organisations and member States are involved. The growing complexity of the international society leads to pluralistic situations where the issue of attribution appears more difficult. A lot of international situations are managed at the same time by an International Organisation and a State, which leads to a potential double attribution. Nevertheless, as the above-mentioned development showed (see Sect. 8.2.1), the issue of attribution is dealing with more than the mere connection of a fact to an international legal subject in the case of Human Rights protection. The link between the attribution to the State of a wrongful act and the jurisdiction of the Court is so close that any attribution to the U.N. renders difficult the practical implementation of Human Rights conventions such as the European one. Indeed, on one hand, the European Court has no jurisdiction over the U.N., and as a result it cannot assess its resolutions in the light of the European Convention. On the other hand, the Court has to deal with situations where States have to implement U.N. resolutions to fulfil their obligations, and the Court cannot condemn them without putting them in a difficult situation in which one State will eventually breach the law, either the law of the U.N. or European law. Actually, European judges have to keep in mind the global situation and to deal with some external legal rules.

The development and the strengthening of international law through International Organisations lead to new situations, which are the sources of new solutions but without uniformity because of the case-based nature of these solutions. P. Daillier already pointed out this particular point and its consequences on the Courts’ work when he stated that “les ordres juridiques universels (le droit international général) et les ordres juridiques intégrés (le droit communautaire puis le droit de l’Union européenne) sont à la fois assez souples et assez cohérents pour trouver des solutions à tous les incidents de la vie internationale. […] [On constate] un embarras de chaque institution mise en cause ou sollicitée de réagir lorsqu’il s’agit de trouver dans son propre ordre juridique […] les éléments nécessaires et suffisants à une réponse complète aux situations inédites en cause.”³² In other words, without global solutions, an outcome is to be found de facto in case law, which is expected to deliver practical solutions. However, this situation leads to a divided argumentation with some differences between the reasoning of the Courts, which represents a risk for the legal security. But one can notice that the evolution of these lines is progressively going in the same direction, i.e., to aim for a better protection of Human Rights. The credibility of the system of protection is involved: European Courts have to protect their high-level protection of Human Rights, but at the same time they need to keep a good relationship with the U.N. so that they don’t lead their member States to a deadlock.

The European case law about the implementation by member States of U.N. sanctions focused on counterterrorism or about their actions authorised by U.N. resolutions provides particularly striking examples of this process and illustrates this point. The reflection about this particular topic built itself as the case law grew. All the debates about this particular topic focused on the act at the origin of a potential violation³³ and on the control that results from it. The European Court case law has opened two ways: on one hand, the “Behrami position”,³⁴ i.e., a particular treatment provided to U.N. system that involves the attribution to the Organisation itself of every act accomplished by the member State on behalf of the Organisation. This articulation leads to the incompetence ratione personae of the Court. On the other hand is the “Bosphorus position”,³⁵ i.e., the attribution of the act to member States in case of the implementation of binding acts from secondary legislation of an International Organisation (in this case the E.U.). As already expressed by the doctrine, the point of view is not the same in the two cases: in the first one, the emphasis is put on the international dimension of the law and in the second case, on the internal dimension of the applicable law.³⁶ The following case law will be built on this divided basis on which the grounds of the States and of the applicants are focused. They will use this division when presenting their arguments in order to tip the scales in favour of one or the other solution. But nowadays the importance of the protection of Human Rights leads the Court to focus on a better solution.

The Court is also pushed by the European Court of Justice, which in the Kadi case³⁷ gave the priority to the internal vision over the international one. The goal is to find a way to protect individuals’ rights, as a constitutional court,³⁸ and not to erode all the work already accomplished until then. Facing this situation, the European Court on Human Rights—the European emblematic protector of rights—seemed outdated by its European colleagues and this position leads to think about the existence of a difference in analysing the secondary law of the U.N.³⁹ As a result, the outburst occurred in 2011 when in the Al-Jedda case⁴⁰ the European Court decided not to attribute the contested act to the Organisation because of its lack of control or authority. The Court clarifies its position⁴¹ in this case and later in the Al-Skeini case.⁴² Change is still on its way as demonstrated in the last important case about this topic, where the European Court on Human Rights confirmed this approach in using the imprecision of the Behrami case to reinforce the definition of the notion of control that is useful for the attribution process.⁴³ The Court underlines the positive action of the State to implement the U.N. sanction and focuses only on the internal act, which is attributed to States. The Nada case is emblematic of the modification of the European case law in the matter of attribution between States and International Organisation through the issue of the control over the particular situation under examination. As pointed out by G. Gaja, “ce qui est considéré comme décisif aux fins de l’attribution, c’est de savoir qui est l’auteur en fait du comportement illicite, et non pas de l’existence éventuelle pour l’auteur d’une obligation de le tenir, qu’elle découle d’un traité ou de l’acte d’une organisation internationale”.⁴⁴

Despite the many issues that remain to be clarified and the current debate on the subsidiarity of the mechanism,⁴⁵ it is now possible to assert that the main goal of the European system of Human Rights protection is focused on its effectiveness even if the restrictive interpretation of the Court’s jurisdiction ratione personae is based on the attribution of the internationally wrongful fact. But this first stage of the responsibility needs to be followed by a second one focused on the internationally wrongful character of the attributed act or fact.

The issue of the applicable law is the second phase of the establishment of an internationally wrongful act. After attributing an act, it is necessary to qualify it, i.e., to identify the infringed rule and its international character.⁴⁶ This step implies to find the appropriate rule binding the State in order to hold its responsibility. With the development and the strengthening of international law, this stage appears more and more complex and leads to difficulties not to produce a legal deadlock for the State and for the applicant. That is the direct consequence of a non-coordinated legal order. This solution results not from a lack of applicable rules but rather from too numerous applicable rules. This is a typical example of what is called “the internationalization of law”.⁴⁷