Document Type : Research Paper

Authors

• Saeed Mokhtari ¹
• Mohammad Setayeshpour ²

¹ Postdoctoral Researcher, Department of International Law, Faculty of Law, University of Qom, Qom, Iran.

² Assistant Professor, Department of International Law, Faculty of Law, University of Qom, Qom, Iran.

Abstract

Introduction
This article critically examines the approach of the European Court of Human Rights (ECtHR) in attributing international responsibility to states for actions conducted "on behalf of" another state. Against the backdrop of increasing intergovernmental cooperation in areas such as migration control and multinational military operations, the question of accountability for human rights violations has emerged as a pivotal challenge. The primary objective of this study is to evaluate the efficacy of the Court’s "exclusive control" doctrine in ensuring state accountability and to identify gaps in its jurisprudence. The central research question asks whether the Court’s adherence to the exclusive control criterion, aligned with Article 6 of the International Law Commission’s (ILC) 2001 Articles on State Responsibility, sufficiently safeguards human rights in contexts of shared governance or indirect state influence. The hypothesis posits that while this stringent approach ensures legal clarity, it risks creating accountability vacuums and necessitates a paradigm shift toward recognizing "shared responsibility" based on effective influence and complementary obligations.
Research Question(s)
How does the ECtHR navigate the attribution of responsibility when states act on behalf of others, and does its reliance on the "exclusive control" test sufficiently uphold human rights accountability under the ECHR? 
Literature Review
The theoretical framework of this study is rooted in Article 6 of the ILC’s 2001 Articles, which predicates responsibility on a state’s "exclusive direction and control" over an organ or agent. The ECtHR has consistently applied this principle, as seen in cases like *Jaloud v. Netherlands* and *Al-Skeini v. UK*, where responsibility was attributed to states exercising direct operational and hierarchical control. Conversely, in cases such as *Pad v. Turkey* and *Behrami v. France*, the Court declined attribution due to insufficient institutional integration or exclusive control. 
Critics, including scholars like Milanović, argue that the Court’s narrow focus on formal control overlooks structural power imbalances and indirect influence mechanisms (e.g., economic coercion or political dependency), enabling states to outsource human rights violations while retaining de facto authority. Alternative frameworks, such as "shared responsibility" and "complementary obligations" (under Article 16 of the ILC Articles), emphasize accountability for states exerting effective influence, even absent direct control. These critiques highlight tensions between legal formalism and the realities of modern transnational governance. 
Methodology
This study employs a theoretical and comparative legal analysis of key ECtHR rulings in intergovernmental cooperation cases. Four landmark cases—*X and Y v. Switzerland*, *Xhavara v. Italy and Albania*, *Vearncombe v. UK and Germany*, and *Drozd and Janousek v. France and Spain*—are examined as case studies. These cases are analyzed through the lens of attribution criteria (e.g., exclusive control, institutional integration, and operational authority) and their alignment with the ILC’s principles. Dissenting judicial opinions and scholarly critiques are incorporated to identify unresolved tensions in the Court’s jurisprudence. 
Results
The findings reveal the ECtHR’s unwavering reliance on the "exclusive control" threshold for attribution. For instance, in *X and Y v. Switzerland*, the Court attributed responsibility solely to Switzerland, as its authorities enforced domestic laws without delegating sovereign powers to Liechtenstein. Similarly, in *Xhavara v. Italy and Albania*, Italy was held solely accountable for maritime operations, as it retained full operational command despite a bilateral agreement with Albania. 
However, this approach falters in cases involving indirect control or structural influence. In *Drozd and Janousek*, the Court absolved France and Spain of responsibility for unfair trials in Andorra, despite their constitutional roles as co-princes, due to the absence of direct judicial oversight. This decision drew criticism from dissenting judges, who warned of a "responsibility vacuum" enabling powerful states to evade accountability through legal fictions. 
The study also demonstrates the Court’s nuanced recognition of "secondary obligations" in cases of complicity. For example, in *El-Masri v. Macedonia*, North Macedonia was held liable for facilitating CIA renditions, underscoring the distinction between primary attribution and obligations to refrain from aiding violations. While this approach mitigates some gaps, it remains insufficient to address systemic issues arising from indirect governance or coercive influence. 
Discussion
 The ECtHR’s rigid adherence to the "exclusive control" doctrine underscores a fundamental tension in international human rights law: the clash between legal predictability and the need for adaptive accountability mechanisms in an era of complex state interactions. While the Court’s formalism ensures consistency and guards against arbitrary attributions, it risks legitimizing structural inequities. For instance, powerful states may exploit legal loopholes to outsource rights-violating operations to subordinate actors or third parties, as seen in Drozd and Janousek, where France and Spain evaded accountability despite their constitutional authority over Andorran institutions.
This rigidity also disregards the evolving nature of state influence, where control is increasingly exercised through economic leverage, political dependency, or institutional coercion rather than direct command. Milanović’s critique of the Court’s blindness to "neo-colonial" dynamics—where states like Italy or the UK exert indirect control through migration agreements or security partnerships—resonates here. The Inter-American Court’s advisory opinion on environmental harm, which recognizes extraterritorial responsibility for corporate actions funded by states, offers a counter-model. By contrast, the ECtHR’s reluctance to address such indirect influence perpetuates accountability gaps, particularly in transnational contexts like border externalization or privatized detention systems.
The Court’s recognition of "secondary obligations" in cases like El-Masri and Al Nashiri v. Romania signals a partial shift toward holistic accountability. However, this remains reactive and fragmented, focusing on complicity rather than systemic prevention. A more robust framework would integrate the ILC’s broader interpretation of "direction and control" (Article 17), which includes coercive inducement, and embrace "shared responsibility" to reflect the interconnectedness of modern governance. For example, in migration control operations, both funding states (e.g., EU members) and implementing states (e.g., Libya) should bear responsibility for systemic violations, irrespective of direct control.
Conclusion
The ECtHR’s attribution framework, though grounded in clear and predictable principles of international law, faces limitations in addressing the complexities of modern intergovernmental cooperation. While the "exclusive control" criterion safeguards state responsibility coherence, it struggles to ensure accountability in contexts of shared governance, structural influence, or systemic harm (e.g., transnational security cooperation or border control). 
This study advocates for a paradigm shift inspired by the ILC’s broader interpretation of "direction and control" and the Inter-American Court of Human Rights’ progressive stance on extraterritorial obligations. Recognizing "shared responsibility" and "complementary obligations" would require states to account for effective influence, even without direct operational control, and to prevent human rights violations within collaborative frameworks. Such evolution would align the ECtHR with global human rights trends, close accountability gaps, and strengthen protections in an era of transnational interdependence. 
Ultimately, balancing legal formalism with pragmatic flexibility is key to achieving equitable accountability under the European Convention on Human Rights. By integrating principles of effective influence and systemic prevention, the Court can uphold its mandate to protect human rights while adapting to the realities of 21st-century governance. 
Keywords: Exclusive attribution, Complementary obligations, European Court of Human Rights, International Law Commission, Responsibility, Direction and control.
Acknowledgments
The authors thank professors and colleagues at the University of Qom’s Law Faculty for their analytical feedback during the initial research stages. Gratitude is extended to the university’s law library for providing access to specialized resources and international databases. Special thanks to the anonymous peer reviewers whose insights significantly enhanced the quality of this work.

Keywords

• Exclusive attribution
• Complementary obligations
• European Court of Human Rights
• International Law Commission
• Responsibility
• Direction and control

Main Subjects

• Public and International Law