Effective Control Test  Nicaragua: “effective control” test to determine whether the United States

could be held responsible for particular acts committed by the contras in violation of international
humanitarian law. This test hinged on the issuance of specific directives or instructions concerning the
breaches allegedly committed by the contras

 control that extends to the issuance of specific instructions concerning the various
activities of the individuals in question).

Overall Control Test  Broader, broadens scope of state responsibility

 State wields overall control over the group, not only by equipping and financing the group, but
also by coordinating or helping in the general planning of its military activity
o However, it is not necessary that, in addition, the State should also issue, either to the
head or to members of the group, instructions for the commission of specific acts
contrary to international law

JUDICIAL AND STATE PRACTICE (REASONING FOR TADIC TEST)

 an organised group differs from an individual in that the former normally has a structure, a chain
of command and a set of rules as well as the outward symbols of authority. Normally a member
of the group does not act on his own but conforms to the standards prevailing in the group and
is subject to the authority of the head of the group. Consequently, for the attribution to a State
of acts of these groups it is sufficient to require that the group as a whole be under the overall
control of the State
o If it is under the overall control of a State, it must perforce engage the responsibility of
that State for its activities, whether or not each of them was specifically imposed,
requested or directed by the Stat
o VS Individual  Requires specific instructions

 In cases dealing with members of military or paramilitary groups, courts have clearly departed
from the notion of “effective control” set out by the International Court of Justice (i.e., control
that extends to the issuance of specific instructions concerning the various activities of the
individuals in question).

NICARAGUA (USE OF FORCE)

Collective Self-Defense

(1) A State must have been the victim of an armed attack;

(2) That State must declare itself as a victim of an armed attack. The assessment on whether an armed
attack had taken place or not, is done by the State who was subjected to the attack. A third State cannot
exercise a right of collective self-defence based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance. The Court held
that “there is no rule permitting the exercise of collective self-defence in the absence of a request by the
State which regards itself as the victim of an armed attack”;

(4) A State that is attacked, does not, under customary international law, have the same obligation as
under Article 51 of the UN Charter to report to the Security Council that an armed attack happened –
but the Court held that “the absence of a report may be one of the factors indicating whether the State
in question was itself convinced that it was acting in self-defence”

 Any use of force in self defense must be necessary and proportionate to the armed attack

Armed Attack

ICJ says an armed attack is:

(1) action by regular State armed forces across an international border;

(2) armed groups, irregular forces and mercenaries when

(a) they are “sent by or on behalf of a State” to carry out an armed attack against another State
and

(b) the attack is of such gravity so that it amounts to an armed attack if it was conducted by
regular armed forces of a State.

NOT Armed Attack

 Supplying rebel groups with weapons/arms/logistical support