The Institutional Requirement. The prominence of control as a variable is little surprise considering not only the nature of the obligation, but also the fact that much of the case law on injuries to aliens arose out of cases of large-scale violence by private actors (such as mobs or revolutionaries).111 An examination of the arbitral jurisprudence on injuries to aliens reveals that the obligation of acting with due diligence in fact encompasses two interrelated requirements: the maintenance of a governmental apparatus that is capable of upholding law and order in general; and the diligent use of this apparatus in the particular circumstances of the case. The fulfilment of both these requirements is assessed according to a (minimum) standard defined by international law. Note that the existence of a governmental apparatus for the mainte- xxxxx of order is not judged by a due diligence standard, only the use of this machinery.112 This does not necessarily mean that all states are held to the exact same requirements, regardless of their level of development. in most cases, the state ‘must exercise the level of due diligence of a […] state in its particular circumstances’.113 in the structure of due diligence, this is arguably covered by the flexibility of the ‘means’ requirement, taking into account what means were available to the state to counteract the catalyst event given its level of development. Furthermore, the arbitral jurisprudence on injuries to aliens has recognized that where states facing internal unrest or civil war are concerned, these circumstances may limit the scope of means available to the state.114 in other words, if a state finds 111 See e.g. X’Xxxxxxx, International Law, vol. ii, 967 et seq. 112 See Pisillo-Mazzeschi, ‘Due Diligence Rule’, 26-30; De Brabandere, ‘Host States’ Due Diligence Obligations’, 341-345. Cf. how the ECtHR organized its analysis in Volodina
