In the Absence of Control Sample Clauses

In the Absence of Control. A Question of Means, Not Intent Both Armed Activities and Xxxxxx raise the important issue of distinguishing between ability and willingness – or rather, inability or unwillingness – to act. This distinction is what explains the different readings of the same situ- ation by Uganda and the DRC in Armed Activities: while Uganda alleged unwillingness, the DRC pleaded inability. in Ilaşcu, the ECtHR stated that it ‘must only verify Moldova’s will, expressed through specific acts or measures, to re-establish its control over the territory of the “MRT”.’239 These cases seem to suggest that in the absence of actual governmental control, expressing the intent to control the state’s territory may be crucial. Can this signal a requirement of intent (fault) as a condition of state respon- sibility in such cases? Whether fault is required for a state to be held responsible is a question which has long preoccupied international lawyers, especially regarding the types of cases under discussion here, i.e. obligations related to the conduct of private persons, judged by a due diligence standard.240 in the end, the iLC decided not to take a general position on the matter of fault, leaving it to the primary rule in question; and courts have consistently rejected it as a requirement in cases concerning duties to protect.241 in xxxxx, Xxxxxxxx ‘Xxxxxxxxx’x position is now widely accepted that [the obligation(s) judged by] due diligence is a primary norm that consists of fault (negligence)’, but such fault has been objectivized.242 in other words, there must have been some negligence on the state’s part in order to find a violation of a duty to protect – if the state had done everything as it should have, it cannot possibly be held responsible. But rather than investigating a subjective mental element, compliance with the due diligence standard focuses on objective factors, whereby the adequacy of the state’s response is deter- mined solely by the steps it has or has not taken, irrespective of the motiva- tion behind them. There is no reason to depart from this approach in cases concerning the lack of a state’s control over part of its territory, either. For instance, in Armed Activities, despite the parties’ clash on this point, the iCJ in the end did not verify the DRC’s intent to reassert control over its territory. in any case, as pointed out above, what the Court should have done is examine what steps the DRC did or did not take in the given circumstances, not why 239 Ila...