ABSTRACT
This chapter explores whether the requirements provided for in Article 16 of the International Law Commission (ILC) Draft Articles on the Responsibility of States are fulfilled. Resorting to the theory of positive obligations could certainly provide a useful alternative to the notion of complicity for a number of reasons. First, because when applying the theory of positive obligations a court does not need to take into consideration the conduct of another State; second, because the requirement of ‘knowledge’ provided for by Article 16 of the ILC Articles on State Responsibility for complicity is more difficult to meet than the requisite that the State “know or ought to know”, which is sufficient in the case of positive obligations; third, and most importantly in the case under review, according to some “paradoxical elements of the jurisprudence of the European Court of Human Rights case law” on positive obligations.
