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Introduction

In a given situation in which the international responsibility of a State for an injury to an alien is invoked and in which diplomatic protection may be exercised there are several conditions which have to be fulfilled in respect of the respondent State's position. Apart from other requirements, ¹ there must be an act or omission of a person or a group of persons and this must be attributable (or imputable) ² to the respondent State. This attribution is a matter for international (p. 226) law, though the internal or national law of the State may be recognized as applicable by international law. The element of attribution may be said to relate to the ‘objective’ capacity of the respondent State to be cited as respondent in the case and, thus, may be regarded as being of concern to the law of diplomatic protection, as pointed out in Chapter 1.

This attribution is the result of an intellectual operation necessary to bridge the gap between an individual or a group of individuals and the State, ³ and attaching given conduct (action or omission) to the State. Thus, attribution becomes a basic notion in the law of State responsibility for injuries to aliens and diplomatic protection. It is not to be confused with the basis of a State's obligation which may rest on ‘fault’ or ‘risk’ or ‘strict liability’, as the case may be in different situations, which considerations would be pertinent in determining only whether an act or omission in violation of international law has taken place. The notion of attribution becomes particularly important where conflicts may arise, in a given situation, between national law and international law concerning the competence of State organs or officials which can only be resolved by a clear conception of the nature of attribution (and attributability).

In the Phosphates in Morocco Case (Preliminary Objections) the PCIJ explicitly linked the creation of international responsibility with the existence of an ‘act being attributable to the State …’ ⁴ The ICJ has also referred to attributability on several occasions. In the Diplomatic and Consular Staff Case, the court pointed out that, in order to establish the responsibility of Iran, ‘First it must determine how far, legally, the acts in question may be regarded as imputable to the Iranian State.’ ⁵ In the Bosnia Genocide Case the court required a similar attribution to the respondent State of genocide. ⁶ In the Dickson Car Wheel Company Case, the claims tribunal noted that the condition required for a State to incur international responsibility is ‘that an unlawful international act be imputed to it …’. ⁷

Negatively, the test of imputability is not whether the damage suffered by the alien can be said to have occurred on the territory of a particular State. The decision in the Corfu Channel Case shows clearly that this is not the test, even though that case dealt with damage to the property of a foreign State and not of aliens. ⁸

Again, in a negative sense the State is not responsible for (p. 227) all the acts or omissions of all persons or individuals on its territory. Thus, normally it is not responsible for the wrongful acts of private persons. In the Lovett Case it was said by the tribunal that: ‘All the authorities on international law are a unit as regards the principle that an injury done by one of the subjects of a nation is not to be considered as done by the nation itself.’ ⁹ Calvo, among textwriters, explicitly supports this view, ¹⁰ as do others.

However, it is not the case that a State can never be responsible in connection with acts or omissions of private persons. There may be circumstances where the State is responsible for the damage resulting from such acts or omissions because it has occurred as a result of an omission by an entity and, in the circumstances, is attributable to the State. Thus, in the Home Missionary Society Case it was clearly affirmed that: ‘It was a well established principle of international law that no government can be held responsible for the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing the insurrection’. ¹¹ What is implied is that there could have been State responsibility for a wrongful omission by the organs of the State.

In this connection the distinction is generally made between the liability of a State and its responsibility for a breach of international obligation. Where a person commits an injury against an alien, the State does not become responsible for that injury by the very fact that the injury was committed by a person on its territory. Nevertheless, it is possible that, because of the nature of the injury, international law requires that the State take some action to punish the wrong-doer and even provide a proper remedy through its courts for the injured alien. Its failure to do either of these things would result in a breach of its international obligations and in its international responsibility. It is said to be liable to punish the wrongdoer and provide a remedy for the injured alien, while it becomes responsible for the failure to do this. Responsibility is not for the wrong originally committed by the individual, and arises by the failure of an organ or individual to discharge the liability. It is this failure that is attributed to the State. This liability is to be distinguished, firstly, from the duty that a State has in respect of the prevention of wrongs, which is a different kind of obligation imposed by international law and for a breach of which a State would become responsible when an organ or individual whose acts are attributable to the State fails to perform acts in discharge of that duty. ¹² Secondly, it must be distinguished from the situation where the State is responsible directly for a wrong committed by an individual (p. 228) or organ because the act constituting the wrong is attributed to the State under international law. This view of liability is supported by the decision in the Janes Claim, where Mexico had failed to apprehend and prosecute the murderer of Janes, an American citizen. The tribunal found Mexico responsible because it failed to discharge its liability to prosecute and punish the offences. ¹³

Attribution and the substantive violation of the international law are considerations which must be dealt with separately. Also, attribution is strictly not based on the notion of vicarious responsibility.

Positively the question is, assuming that an individual or group of individuals has caused damage to an alien, which would be wrongful if attributed to the State, on what basis is that act or omission to be attributed to the State?

The concept of attribution or attributability has been explicitly accepted in Draft Codifications. Thus the Guerrero Report adopted by the LN Committee of Experts for the Progressive Codification of International Law as early as 1926 contains a conclusion that: ‘A State is responsible for damage incurred by a foreigner attributable to an act contrary to international law or to an omission of an act which the State was bound under international law to perform …’ ¹⁴

The concept of attribution is essential to the law of State responsibility for injuries to aliens. In principle, attribution takes place where the individual or organ bears some special relation to the State. To establish such special relations international law invokes the doctrine of attribution on an objective basis. Furthermore, attribution for the purpose of international responsibility and diplomatic protection does not necessarily and ultimately depend on the question whether the State would be responsible for the particular act or omission according to its or any other national or internal law. The question is one for international law to decide. The ICJ in the Bosnia Genocide Case made a distinction between de iure organs, ie those that are State organs according to the State's internal law, and de facto organs, ie those that were, nevertheless, in reality organs of the State though not according to the internal law. It was conceded by implication that the reality was a matter for international law. Later in the same case, the court explained that the test to be applied in determining whether any persons or entities—which were not State organs according to the internal law—could be equated with State organs (in reality), was whether they were in a relationship of complete dependence on the state. ¹⁵