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The general rule is that the only conduct attributed to the State at the international level is that of (i) the organs of government, or (ii) others who have acted under the direction, instigation, or control of those organs, that is, as agents of the State. 16 In principle also the State's responsibility is engaged by conduct in violation of its international obligations, irrespective of the level of administration or government at which the conduct occurs. Moreover, ‘in order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State’. 17
Articles 4 and 7 of the ILC's 2001 Draft Articles on State Responsibility purport to focus on the primary principles involved. Article 4 states:
1. 1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.
2. 2. An organ includes any person or entity which has that status in accordance with the internal law of the State.
Article 7 states:
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
The Organs of the State
State organs cover all the individual or collective entities which make up the organization of the State and act on its behalf. Included is an organ or any territorial government entity within the State. It is clear that attribution takes place only when the individual or organ bears a special relationship to the State. 18
(p. 230) That the State is responsible for the conduct of its own organs has long been recognized in international judicial decisions. In the Moses Case, for example, as early as 1871, Umpire Lieber said, ‘An officer or person in authority represents pro tanto his government, which in an international sense is the aggregate of all officers and men in authority’. 19 There have been many statements of the principle since then. 20 The replies by governments to the Preparatory Committee for the 1930 Conference for the Codification of International Law unanimously reflected the view that the actions or omissions of organs of the State must be attributed to it. 21
The ILC's Article 4 reflects the principle of the unity of the State which entails that the acts or omissions of all its organs should be regarded as acts or omissions of the State for the purposes of international responsibility. There is no category of organs specially designated for the commission of internationally wrongful acts, and any State organ may be the author of such an act. The reference to a State organ is not limited to the organs of the central government, to officials at a high level or to persons with responsibility for the external relations of the State. It extends to organs of government of whatever kind or classification, exercising whatever functions, and at whatever level in the hierarchy, including those at provincial or even local level. Thus, in the Salvador Commercial Company Case, the tribunal said that:
… a State is responsible for the acts of its rulers, whether they belong to the legislative, executive, or judicial department of the Government, so far as the acts are done in their official capacity. 22
The ICJ has also confirmed the rule. In the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Opinion, it stated:
According to a well established rule of international law, the conduct of any organ of a State must be regarded as an act of that State. This rule … is of a customary character … 23
(p. 231) In that case the court was principally concerned with decisions of State courts, but the same principle applies to legislative and executive acts. As the PCIJ said in the German Interests in Polish Upper Silesia Case (Merits):
From the standpoint of International Law and of the Court which is its organ, municipal laws … express the will and constitute the activities of States, in the same manner as do legal decision or administrative measures. 24
Article 4 of the ILC Articles covers organs, whether they exercise ‘legislative, executive, judicial or any other functions’. This language allows for the fact that the principle of the separation of powers is not followed in any uniform way, and that many organs exercise some combination of public powers of a legislative, executive or judicial character. Moreover, the language is one of extension, not limitation, as is made clear by the words ‘or any other functions’. 25 It is also irrelevant for the purposes of attribution that the conduct of a State organ may be classified as ‘commercial’ or as ‘ actum iure gestionis ’. 26 Of course, the simple breach by a State of a contract does not as such entail a breach of international law. 27 Something further is required before international law becomes relevant, such as a denial of justice by the court of the State in proceedings brought by another contracting party. But the entry into or breach of a contract by a State organ is nonetheless an act of the State. 28
Nor is any distinction made at the level of principle between the acts of ‘superior’ and ‘subordinate’ officials, provided they are acting in their official capacity. Acts or omissions committed by them in their official capacity are nonetheless attributable to the State. Mixed commissions after the Second World War often had to consider the conduct of minor organs of the State, such as administrators (p. 232) of enemy property, mayors, and police officers, and consistently treated the acts of such persons as attributable to the State. 29
Likewise, the principle in Article 4 applies equally to organs of the central government and to those of regional or local units. For example in the Heirs of the Duc de Guise Case the Commission said:
For the purposes of reaching a decision in the present case it matters little that the decree of 29 August 1947 was not enacted by the Italian State but by the region of Sicily. For the Italian State is responsible for implementing the Peace Treaty, even for Sicily, notwithstanding the autonomy granted to Sicily in internal relations under the public law of the Italian Republic. 30
This principle was strongly supported during the preparatory work for the Conference for the Codification of International Law of 1930, 31 and at the Conference itself. 32
The Commentary to the ILC's Article 4(2) explains the relevance of domestic law in determining the status of a State organ:
Where the law of a State characterizes an entity as an organ, no difficulty will arise. On the other hand, it is not sufficient to refer to internal law for the status of State organs. In some systems the status and functions of various entities are determined not only by law but also by practice, and reference exclusively to internal law would be misleading. The internal law of a State may not classify, exhaustively or at all, which entities have the status of ‘organs’. In such cases, while the powers of an entity and its relation to other bodies under internal law will be relevant to its classification as an ‘organ’, internal law will not itself perform the task of classification. Even if it does so, the term ‘organ’ used in internal law may have a special meaning, and not the very broad meaning required. For example, under some legal systems the term ‘government’ refers only to bodies at the highest level such as the head of State and the cabinet of ministers. In others, the police have a special status, independent of the executive; this cannot mean that for international law purposes they are not organs of the State. Accordingly, a State cannot avoid responsibility for the conduct of a body which does in truth act as one of its organs merely by denying it the status under its own law. This result is achieved by the use of the word ‘includes’ in paragraph 2. 33
(p. 233) The principle in Article 4, as applied in particular to legislative, executive, and judicial organs and functions, respectively, and some issues connected with it are discussed herein.
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