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As already stated, the attribution of the acts or omissions of organs or officials of a State to the State does not depend entirely on the internal law of that State but also on the concepts of international law. Indeed, there may be cases in which, according to the internal law of the State concerned, the State is not liable for the wrongs of its officials even when done within their competence or apparent authority,47 but attribution resting on international legal principles takes place. Separate problems arise in this connection relating to the characterization of administrative organs or bodies and attribution of their acts as acts of the State.
How is it to be determined, for example, that a particular individual or organ is an administrative organ of the State? Suppose an individual purports to act (p. 235) as a customs officer when he is not, or suppose a minister of State purports to act officially when he has not been legally appointed; is he to be regarded as an organ of the State? Or, if certain administrative organs are not regarded as organs of the State in the internal law for the purposes of delictual liability, 48 does the determination of the internal law hold good for international law?
Perhaps, the answer in the situation where a person usurps office is that his conduct is not attributable to the State, so that responsibility of the State for injury flowing from such conduct will arise only on the basis of the omission of the State (ie its validly appointed organs) in not preventing the usurpation. It would not be in keeping with principle that a State should be held liable for the acts of usurpers as for the acts of its proper organs or agents. Where, however, the particular internal law attributes such acts to the State there can be no doubt that this attribution will be accepted by international law.
In the situation where organs are not regarded as organs of the State by the internal law for the purpose of internal State liability, the solution is perhaps to be found in determining what organs should be regarded as the organs of a State according to an international law concept of a State's organic functions irrespective of the attitude of the internal law. Thus, for instance, it cannot be doubted that the police organ would normally be regarded as an organ of the State as would the army, navy and air force. 49 But in principle, as held by the ICJ in the Bosnia Genocide Case, armed forces operating in a territory may fail to qualify as an executive organ of the State because they are neither an organ according to the internal law of that State (de iure) nor can they be regarded as an organ de facto. They would fail to qualify as a de facto organ of the State because they were not in a relationship of complete dependence on the State which, as pointed out earlier, is the test to be applied. 50
The basic principle of attribution is applicable to the legislative and judicial or quasi-judicial functions of administrative organs or officials just as to their administrative functions, though much of the case law deals explicitly with the latter kind of functions. In the Fair American Case 51 regulations confiscating property, which exceeded the power of the executive and were invalid, were made by the Mexican government. Mexico was held to be responsible for the execution of such regulations. This case illustrates the application of the principle in relation to the legislative functions of the executive, but the principle is of general application to all the functions of the executive. 52
(p. 236) In the case of wrongs arising from contract, the question whether a contract between alien and State has been created does raise the question of attribution, but since this is a matter for the proper law of the contract rather than international law as such, the question whether the act of an official can be regarded as creating a contractual obligation must be answered by reference to that proper law. Here again, it is not an adequate answer that the internal law of the contracting State is always determinative. It may be that in certain circumstances the internal law of the contracting State is the proper law and then the question whether a contract between State and alien had been created by an ultra vires act of an official will be determined by that law. But it has also been found that, where the law governing the formation of contract is not the internal law but general principles of law or principles of international law, the contract may come into existence on the basis of the scope of apparent authority of the official representing the State or of ratification by subsequent conduct by the government of the State, even if there is no valid contract according to the internal law of the State. 53However, it must be noted that the doctrine of attribution of a wrongful act being here discussed really comes into operation in regard to an act which would constitute an international wrong, if it had been committed by a State. The formation of contract does not constitute a wrongful act of this kind. The wrongful act in the case of contracts of this kind normally arises when there is a judicial denial of justice in regard to remedies or, in the absence of remedies, in connection with an alleged breach or when the alleged breach involves a breach of treaty also, or when it is by legislative act amounting to unlawful expropriation. 54 It is really in regard to acts done by administrative organs or officials which amount to breaches of international law in those circumstances that the doctrine of attribution will be relevant. In such cases the doctrine of attribution as outlined above in connection with tortious acts will apply.
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