48 Report of the International Law Commission on the work of its fifty-third session insufficient to justify attribution of the conduct to the State. (5) The Appeals Chamber of the International Tribunal for the Former Yugoslavia has also addressed these issues. In the Tadić, case, the Chamber stressed that: The requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control.157 The Appeals Chamber held that the requisite degree of control by the Yugoslavian “authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations”.158 In the course of their reasoning, the majority considered it necessary to disapprove the ICJ approach in the Military and Paramilitary Activities in and against Nicaragua case. But the legal issues and the factual situation in the Tadić case were different from those facing the Court in that case. The tribunal’s mandate is directed to issues of individual criminal responsibility, not State responsibility, and the question in that case concerned not responsibility but the applicable rules of international humanitarian law.159 In any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it.160 (6) Questions arise with respect to the conduct of companies or enterprises which are State-owned and controlled. If such corporations act inconsistently with the international obligations of the State concerned the question arises whether such conduct is attributable to the State. In discussing this issue it is necessary to recall that international law acknowledges the general separateness of corporate entities at the national level, except in those cases where the “corporate veil” is a mere device or a vehicle for fraud or evasion.161 The fact that the State initially establishes a corporate entity, whether by a special law or otherwise, is not a sufficient basis for the attribution to the State of the subsequent conduct of that entity.162 Since 157 Prosecutor v. Duško Tadić, International Tribunal for the Former Yugoslavia, Case IT-94-1-A (1999), ILM, vol. 38, No. 6 (November 1999), p. 1518, at p. 1541, para. 117. For the judgment of the Trial Chamber (Case IT-94-1-T (1997)), see ILR, vol. 112, p. 1. 158 ILM, vol. 38, No. 6 (November 1999), p. 1546, para. 145. 159 See the explanation given by Judge Shahabuddeen, ibid., pp. 1614–1615. 160 The problem of the degree of State control necessary for the purposes of attribution of conduct to the State has also been dealt with, for example, by the Iran-United States Claims Tribunal and the European Court of Human Rights: Yeager (see footnote 101 above), p. 103. See also Starrett Housing Corporation v. Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 4, p. 122, at p. 143 (1983); Loizidou v. Turkey, Merits, Eur. Court H.R., Reports, 1996–VI, p. 2216, at pp. 2235–2236, para. 56, also p. 2234, para. 52; and ibid., Preliminary Objections, Eur. Court H.R., Series A, No. 310, p. 23, para. 62 (1995). 161 Barcelona Traction (see footnote 25 above), p. 39, paras. 56–58. 162 For example, the Workers’ Councils considered in Schering Corporation v. The Islamic Republic of Iran, Iran-U.S. C.T.R., corporate entities, although owned by and in that sense subject to the control of the State, are considered to be separate, prima facie their conduct in carrying out their activities is not attributable to the State unless they are exercising elements of governmental authority within the meaning of article 5. This was the position taken, for example, in relation to the de facto seizure of property by a State-owned oil company, in a case where there was no proof that the State used its ownership interest as a vehicle for directing the company to seize the property.163 On the other hand, where there was evidence that the corporation was exercising public powers,164 or that the State was using its ownership interest in or control of a corporation specifically in order to achieve a particular result,165 the conduct in question has been attributed to the State.166 (7) It is clear then that a State may, either by specific directions or by exercising control over a group, in effect assume responsibility for their conduct. Each case will depend on its own facts, in particular those concerning the relationship between the instructions given or the direction or control exercised and the specific conduct complained of. In the text of article 8, the three terms “instructions”, “direction” and “control” are disjunctive; it is sufficient to establish any one of them. At the same time it is made clear that the instructions, direction or control must relate to the conduct which is said to have amounted to an internationally wrongful act. (8) Where a State has authorized an act, or has exercised direction or control over it, questions can arise as to the State’s responsibility for actions going beyond the scope of the authorization. For example, questions might arise if the agent, while carrying out lawful instructions or directions, engages in some activity which contravenes both the instructions or directions given and the international obligations of the instructing State. Such cases can be resolved by asking whether the unlawful or unauthorized conduct was really incidental to the mission or clearly went beyond it. In general a State, in giving lawful instructions to persons who are not its organs, does not assume the risk that the instructions will be carried out in an internationally unlawful way. On the other hand, where persons or groups have committed acts under the effective control of a State, the condition for attribution will still be met even if particular instructions may have been ignored. vol. 5, p. 361 (1984); Otis Elevator Company v. The Islamic Republic of Iran, ibid., vol. 14, p. 283 (1987); and Eastman Kodak Company v. The Government of Iran, ibid., vol. 17, p. 153 (1987). 163 SEDCO, Inc. v. National Iranian Oil Company, ibid., vol. 15, p. 23 (1987). See also International Technical Products Corporation v. The Government of the Islamic Republic of Iran, ibid., vol. 9, p. 206 (1985); and Flexi-Van Leasing, Inc. v. The Government of the Islamic Republic of Iran, ibid., vol. 12, p. 335, at p. 349 (1986). 164 Phillips Petroleum Company Iran v. The Islamic Republic of Iran, ibid., vol. 21, p. 79 (1989); and Petrolane (see footnote 149 above). 165 Foremost Tehran, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. ibid., vol. 10, p. 228 (1986); and American Bell International Inc. v. The Islamic Republic of Iran, ibid., vol. 12, p. 170 (1986). 166 See Hertzberg et al. v. Finland (Official Records of the General Assembly, Thirty-seventh Session, Supplement No. 40 (A/37/40), annex XIV, communication No. R.14/61, p. 161, at p. 164, para. 9.1) (1982). See also X v. Ireland, application No. 4125/69, Yearbook of the European Convention on Human Rights, 1971, vol. 14 (1973), p. 199; and Young, James and Webster v. the United Kingdom, Eur. Court H.R., Series A, No. 44 (1981).