47 (ii) The Grounds On Which the Nicaragua Test Does Not Seem To Be Persuasive 115. The “effective control” test enunciated by the International Court of Justice was regarded as correct and upheld by Trial Chamber II in the Judgement. 137 The Appeals Chamber, with respect, does not hold the Nicaragua test to be persuasive. There are two grounds supporting this conclusion. a. The Nicaragua Test Would Not Seem to Be Consonant With the Logic of the Law of State Responsibility 116. A first ground on which the Nicaragua test as such may be held to be unconvincing is based on the very logic of the entire system of international law on State responsibility. 117. The principles of international law concerning the attribution to States of acts performed by private individuals are not based on rigid and uniform criteria. These principles are reflected in Article 8 of the Draft on State Responsibility adopted on first reading by the United Nations International Law Commission and, even more clearly, in the text of the same provisions as provisionally adopted in 1998 by the ILC Drafting Committee. 138 Under this Article, if it is proved that individuals who are not regarded as organs of a State by its legislation nevertheless do in fact act on behalf of that State, their acts are attributable to the State. The rationale behind this rule is to prevent States from escaping international responsibility by having private individuals carry out tasks that may 137 Judgement, paras. 584-588. Article 8 of the Draft provides: “The conduct of a person or group of persons shall also be considered as an act of the State under international law if: a) it is established that such person or group of persons was in fact acting on behalf of that State; or b) such person or group of persons was in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority” (U.N. Doc A/35/10, para. 34, in Yearbook of the International Law Commission, 1980, vol. II (2)). See also the First Report on State Responsibility by the Special Rapporteur J. Crawford (U.N. Doc. A/CN. 4/490/Add.5, pp. 16-24). The text of Article 8 as provisionally adopted by the ILC Drafting Committee in 1998 provides: “The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons was in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” (A/CN.4/ L.569, p. 3). 138 Case No.: -94-1-A 15 July 1999