State responsibility only to those cases of attribution covered by articles 4, 5 and 6. Problems of unauthorized conduct by other persons, groups or entities give rise to distinct problems, which are dealt with separately under articles 8, 9 and 10. (10) As a rule of attribution, article 7 is not concerned with the question whether the conduct amounted to a breach of an international obligation. The fact that instructions given to an organ or entity were ignored, or that its actions were ultra vires, may be relevant in determining whether or not the obligation has been breached, but that is a separate issue.151 Equally, article 7 is not concerned with the admissibility of claims arising from internationally wrongful acts committed by organs or agents acting ultra vires or contrary to their instructions. Where there has been an unauthorized or invalid act under local law and as a result a local remedy is available, this will have to be resorted to, in accordance with the principle of exhaustion of local remedies, before bringing an international claim.152 Article 8. Conduct directed or controlled by a State The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. Commentary (1) As a general principle, the conduct of private persons or entities is not attributable to the State under international law. Circumstances may arise, however, where such conduct is nevertheless attributable to the State because there exists a specific factual relationship between the person or entity engaging in the conduct and the State. Article 8 deals with two such circumstances. The first involves private persons acting on the instructions of the State in carrying out the wrongful conduct. The second deals with a more general situation where private persons act under the State’s direction or control.153 Bearing in mind the important role played by the principle of effectiveness in international law, it is necessary to take into account in both cases the existence of a real link between the person or group performing the act and the State machinery. (2) The attribution to the State of conduct in fact authorized by it is widely accepted in international jurisprudence.154 In such cases it does not matter that the person or persons involved are private individuals nor whether 151 See ELSI (footnote 85 above), especially at pp. 52, 62 and 74. See further article 44, subparagraph (b), and commentary. 153 Separate issues are raised where one State engages in internationally wrongful conduct at the direction or under the control of another State: see article 17 and commentary, and especially paragraph (7) for the meaning of the words “direction” and “control” in various languages. 154 See, e.g., the Zafiro case, UNRIAA, vol. VI (Sales No. 1955. V.3), p. 160 (1925); the Stephens case (footnote 147 above), p. 267; and Lehigh Valley Railroad Company and Others (U.S.A.) v. Germany (Sabotage cases): “Black Tom” and “Kingsland” incidents, ibid., vol. VIII (Sales No. 58.V.2), p. 84 (1930) and p. 458 (1939). 152 47 their conduct involves “governmental activity”. Most commonly, cases of this kind will arise where State organs supplement their own action by recruiting or instigating private persons or groups who act as “auxiliaries” while remaining outside the official structure of the State. These include, for example, individuals or groups of private individuals who, though not specifically commissioned by the State and not forming part of its police or armed forces, are employed as auxiliaries or are sent as “volunteers” to neighbouring countries, or who are instructed to carry out particular missions abroad. (3) More complex issues arise in determining whether conduct was carried out “under the direction or control” of a State. Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control. (4) The degree of control which must be exercised by the State in order for the conduct to be attributable to it was a key issue in the Military and Paramilitary Activities in and against Nicaragua case. The question was whether the conduct of the contras was attributable to the United States so as to hold the latter generally responsible for breaches of international humanitarian law committed by the contras. This was analysed by ICJ in terms of the notion of “control”. On the one hand, it held that the United States was responsible for the “planning, direction and support” given by the United States to Nicaraguan operatives.155 But it rejected the broader claim of Nicaragua that all the conduct of the contras was attributable to the United States by reason of its control over them. It concluded that: [D]espite the heavy subsidies and other support provided to them by the United States, there is no clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf. … All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.156 Thus while the United States was held responsible for its own support for the contras, only in certain individual instances were the acts of the contras themselves held attributable to it, based upon actual participation of and directions given by that State. The Court confirmed that a general situation of dependence and support would be 155 Military and Paramilitary Activities in and against Nicaragua (see footnote 36 above), p. 51, para. 86. 156 Ibid., pp. 62 and 64–65, paras. 109 and 115. See also the concurring opinion of Judge Ago, ibid., p. 189, para. 17.