First, the enactment of legislation or the failure to enact legislation by the legislature of a State is clearly to be attributed to the State. The State is regarded as fully responsible for acts and omissions of its legislature at international law. This responsibility is in no way dependent on the liability of the State for such legislation, according to its internal or national law.
The principle covers the ordinary legislature of a State as well as those organs of the State which together may constitute the legislative body for the purposes of constitutional change in the State.
Support for the general proposition, which is obvious, is to be found in the arbitral decision in the Salvador Commercial Co Case 34 and in the German Interests in Upper Silesia Case 35 before the PCIJ, as seen earlier.
In the Exchange of Greek and Turkish Population Opinion the PCIJ said:
Un Etat qui a valablement contracté des obligations internationales est tenu d'apporter a sa legislation les modifications necessaries pour assurer l'execution des engagements pris. 36
This statement is particularly relevant to the omissions of legislatures.
Other international jurisprudence is not lacking in examples where a State had been held responsible for the acts of its legislature which were in violation of its international obligations. In the Affaire de L'Impôt sur les Benefices de Guerre 37 arbitrator Ador held that France was responsible for the act of her legislature in imposing an extraordinary tax on the war profits of Spanish nationals contrary to the Convention of 1862 between France and Spain. The question has also arisen in the case of the requisition of property, 38 the virtual annulment of contract rights in violation of treaty obligations,39 and expropriation contrary to treaty. 40
Legal commentators have had no difficulty in acknowledging this principle. Thus, it has been stated, the State bears full international responsibility for such legislative acts of parliament as are ‘contrary to International Law and have been finally incorporated as part of its Municipal Law’. 41 Rousseau explained the position further:
(a) Il y a responsabilité par voie d'action dans l'hypothése de la promulgation d'une loi contraire aux obligations internationales de l'Etat;
(p. 234)
(b) Il y a responsabilité par voie d'omission dans deux hypotheses: soit que l'organe legislative n'edicte pas les lois necessaries, soit qu'il negligee d'abroger une loi contraire aux obligations internationales de l'Etat. 42
The Third Committee of the 1930 Hague Conference for the codification of International Law adopted an Article which stated:
International responsibility is incurred by a State if damage is sustained by a foreigner as a result of either the enactment of legislation incompatible with its international obligations or of the non-enactment of legislation necessary for carrying out those obligations. 43
The revised Draft submitted by Garcia Amador to the ILC in 1961 contained an Article in which similar ideas are expressed. The notion of attribution of legislative or constitutional measures was fully accepted. 44
The Draft prepared by the Institute de droit international in 1927 also contained an Article which mentions responsibility for acts or omissions of the legislature. 45 The 1961 Harvard Draft defines organ or agency of a State as including ‘the head of state and any legislative, deliberative, executive, administrative, or judicial organ or agency of a State’. 46
Clearly, the authorities give ample support to the general proposition of law that the acts and omissions of the legislature are attributable to the State.
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