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The principle that acts or omissions of political subdivisions, federal or otherwise, should on some basis be attributable to the State is admitted in modern international relations.
It means that federal States cannot avoid responsibility for acts or omissions of organs or officials of their political components. It also means that unitary States or federal States cannot avoid responsibility for acts or omissions of such institutions as municipalities or town councils which are instruments of government, and that States cannot avoid liability for acts of protected or dependent States.
(p. 239) There are some cases in which a federal State has been held responsible for the acts of courts and organs of constituent States, though the issue of attribution was not as such discussed. Thus, in the De Galvan Case 69 the US was held responsible for the failure of Texas courts to prosecute the murderer of a Mexican subject, the murderer having been indicted by a grand jury but not having been brought to trial for six years. It does not matter for this purpose whether the territorial unit in question is a component unit of a federal State or a specific autonomous area, and it is equally irrelevant whether the internal law of the State in question gives the federal parliament power to compel the component unit to abide by the State's international obligations. The 1875 decision in the ‘ Montijo ’ Case is the starting point for a consistent series of decisions to this effect. 70 The France/Mexico Claims Commission in the Pellat Case reaffirmed ‘the principle of the international responsibility … of a federal State for all the acts of its separate States which give rise to claims by foreign States’ and noted specially that such responsibility ‘cannot be denied, not even in cases where the federal constitution denies the central government the right of control over the separate States or the right to require them to comply, in their conduct, with the rules of international law’. 71 In the LaGrand Case the ICJ said:
Whereas the international responsibility of a State is engaged by the action of the component organs and authorities acting in that State, whatever they may be; whereas the United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings; whereas, according to the information available to the Court, implementation of the measures indicated in the present Order falls within the jurisdiction of the Governor of Arizona; whereas the Government of the United States is consequently under the obligation to transmit the present Order to the said Governor; whereas the Governor of Arizona is under the obligation to act in confirmity with the international undertakings of the United States … 72
The reasons for this position are reinforced by the fact that federal States vary widely in their structure and distribution of powers, and that in most cases the constituent units have no separate international legal personality of their own (however limited), nor any treaty-making power. In those cases where the constituent unit of a federation is able to enter into international agreements on its own account,73 the other party may well have agreed to limit itself to recourse (p. 240) against the constituent unit in the event of a breach. In that case the matter will not involve the responsibility of the federal State. Another possibility is that the responsibility of the federal State under a treaty may be limited by the terms of a federal clause in the treaty. 74 This is clearly an exception to the general rule, applicable solely in relations between the States parties to the treaty and in the matters which the treaty covers.
On the other hand, there are a few early cases where acts of constituent States of a federation have not been attributed to the federal States. 75 Thus, in the Rosenstein Case the Rumanian-German Mixed Arbitral Tribunal held that Germany was not liable for injury caused in connection with a contract concluded by a Rumanian subject with the State of Hamburg. Similarly, in the Ransomes, Sim, and Jefferies Case, 76 the Anglo-Turkish Mixed Arbitral Tribunal rejected a claim based on a contract made by a British subject with the Vilayet of Andrinople on the ground that Turkish Vilayets were distinct juristic persons for whose contractual obligations the Turkish government would not be held responsible.
State practice is also somewhat conflicting. In several early instances the US has denied that it was responsible for the acts of constituent States or their organs which were in contravention of international law, while at the same time it has maintained that responsibility does exist for such acts on the basis of attribution. 77 Thus, Secretary of State Stimson wrote to the Preparatory Committee of the Codification Conference of 1929:
The Federal Government has frequently paid indemnities for the delinquencies of the States where the States have failed to furnish protection and redress … In claims against foreign States, the United States had refused to recognize the plea that the federal organization of the respondent State was not internationally responsible for the maintenance of order and the provision of effective redress in its constituent political subdivisions. 78
Canada denied such attributability in the Cutting Case but later paid an indemnity for the damage suffered by Cutting. 79
A cogent authority in favour of attributability of acts or omissions of political subdivisions or their organs is to be found in the 1961 Revised Draft prepared by Garcia Amador for the ILC, Article 14 of which states, ‘The acts or omissions of political subdivisions, whatever their internal organization may be and whatever degree of legislative, judicial or administrative autonomy they enjoy, shall be imputable to the State.’ 80 Attributability of acts of constituent states of (p. 241) federal States was also conceded in the Guerrero Report. 81 Such attribution is based on the principle applicable to the acts or omissions of legislative, judicial, and administrative organs or officials of the State in general.82
The problem was discussed by Garcia Amador in his first report to the ILC, where he referred to two considerations which have influenced the question of attribution of acts or omissions of political subdivisions, colonies, or dependencies: namely, (i) the degree of control or authority exercised by the State over the internal affairs of its political subdivisions, colony, or dependency, and (ii) the extent to which the State concerned is responsible for the international relations and representations of the entity. 83 Emphasis on the first has led to a repudiation of attribution in regard to constituent States of federations in some cases. The second principle has been applied in determining the responsibility of the protecting State for acts or omissions of protected States.
In spite of the conflict of authority, it is generally admitted now in the case of constituent States of a federation and other political subdivisions of a State, including local government bodies, the degree of control or authority exercised by the federal State or State over the member States or political subdivisions should not determine the question of attribution. There is attribution as a matter of law in these cases. 84
In any event, if a rule relating to political subdivisions, as determined above, is to have any useful meaning it is submitted that it must be stated as follows: a State is responsible for the acts and omissions of its political subdivisions, their legislative, administrative, and judicial organs, attribution depending on the same principles as are applicable to its own respective organs.
Exclusion of Attribution—Ultra Vires Conduct
Another problem relates to the basis on which an injury to the alien done by a person or organ which may be characterized as an organ of the State or as acting as one is to be attributed as an act of the State.
(p. 242) Clearly, where the national or internal law attributes the injury to the State no problem arises in international law. International law can accept this attribution. When the internal law does not so attribute the injury on the basis that the act was ultra vires or some other basis, the question arises how is international law to deal with such a situation? It is clearly not essential that the answer given by the internal law be followed. The matter relates to acts of the administrative organs as well as the legislative and judicial organs and of political subdivisions.
International practice shows that there are a few cases which reflect the view that ultra vires acts of administrative officials are not attributable to the State. The opinion of US Secretary of State Bayard in the Tunstall Case is especially important among these. 85 The same view had been expressed by US Attorneys-General 86 and obiter in the Forrest Case. 87
However, this older view appears to have been superseded by the more modern approach. The more modern and general rule is that acts of officials are attributed to the State, even if they are ultra vires according to the internal law, provided they were committed within the ‘apparent authority’ of such officials. Such terms as ‘general scope of authority’ and ‘cover of authority’ are used with the same meaning. In the Union Bridge Company Case 88 the appropriation of neutral property by an official of the Cape Government in the mistaken belief that it was enemy property, which was, therefore, contrary to international law, was held to be attributable to the British State in spite of the fact that the act of the official was unauthorized. The official was held to have been acting within the general scope of his duty. In the Caire Case it was stated that to be able to admit an objective responsibility of the State for the acts committed by its officers or organs outside the limit of their competency, ‘Il fait qu'ils aient agi au moins apparemment comme des fonctionnnaires ou organs competents ….’ 89 In The Jessie it was said, ‘any Government is responsible for errors in judgments of its officials purporting to act within the scope of their duties’. 90
There are numerous other cases which support this view. 91
It also emerges from the cases that the fact that the ultra vires acts of officials were motivated by willfulness or malice does not necessarily put such acts outside the scope of their apparent authority.92 A fortiori, honest or bonafide mistake in the exercise of power by officials does not mean that the act or omission (p. 243) necessarily falls outside the scope of their apparent authority. Thus, in The Wanderer the seizure of a British vessel by US revenue officers acting in violation of US legislation was held to be attributable to the USA even though the officers may have been bonafide or the statutory provisions may have constituted a likely cause of error. 93
The conclusion has also been reached that the cases do not support the view that attribution of acts done within the scope of ‘apparent authority’ further depends on whether the official is a superior official as opposed to a minor one but is of general application to all officials, 94 since the defence based on the inferior rank of the official has often been rejected. 95 The cases which have been cited as authority for the contrary view are all explicable on the basis that local remedies had not been exhausted, 96 so that the question whether the ultra vires acts of minor officials done within the scope of their apparent authority were not to be attributed to the State did not arise at all.
It would appear that whether an act or omission of an official is within the scope of his ‘apparent authority’ must be determined by international law by reference to the facts of each case and by analogy with decided cases just as, for example, in private law the concept of the ‘scope of employment’ of a servant is largely dependent on similar factors. 97
Moreover, according to the international case material, tribunals have attributed responsibility to States even where the official has acted outside the scope of his apparent authority, provided the commission of the act was made possible through means put at the official's disposal by the State and it was not possible that the alien could, in consequence of the apparent lack of authority of the official, have avoided the damage. It is also necessary that the alien, notwithstanding the apparent illegality of the act, was unable to prevent it and thus avoid the damage. This view of the law was affirmed in the Caire Case where it was said that, in order that unauthorized acts of officials be attributed to the State, they should have acted within the scope of their apparent authority or ‘ en agissant, ils usé de pouvoirs ou de moyens propres a leur qualité officielle ’. 98 There are several (p. 244) other cases which support the rule. 99 The application is further illustrated by the Mallen Case. 100 Two maliciously motivated assaults were made on the Mexican consul in Texas by the local deputy constable. In the course of the first assault, the deputy constable, having met the consul in a street at night, slapped his face. This was regarded by the tribunal as the act of a private individual and not of an official. The second assault occurred when the consul had been arrested and imprisoned by the deputy constable who then made use of his official badge and pistol. This second attack was held to have been made possible only through the abuse of governmental means and was attributed to the US. 101 The question whether the commission of the act causing the injury was made possible through means or powers put at the disposal of the official by the State and it was not possible for the alien to avoid the damage in spite of the apparent lack of authority must be answered according to international law.
As for the views of publicists, a few of them have taken the view that attribution cannot be allowed at all for ultra vires acts. 102 The most prominent of these were Calvo 103 and Bluntschli. 104 But most writers now admit that States are responsible for the acts of their officials acting within the apparent or general scope of authority, although they may differ as to the doctrinal bases upon which they found such responsibility. 105 At the other extreme, Eagleton bases State responsibility on the ‘exclusive territorial control’ of the State and, therefore, argues that, since the State ‘puts the agent into a position which he may abuse, and since no other State may invade its territorial jurisdiction, it must accept responsibility for the protection of other States against its agents whether within their powers or not’.106 There is no limitation in terms of ‘apparent scope of authority’.
(p. 245) Official attempts at codification also display a variety of views. 107
Drafts formulated by private bodies contain references to the concept of ‘scope of function’. 108
States have also expressed opinions on this point. Among Asian and African nations in 1961 some were of the view that a State should not be held liable for the ultra vires acts of a government official when such wrongs were committed on his own initiative and in excess of his authority, while some have expressed the view that States become liable even in such cases. 109 On the other hand, in the controversy concerning the Panama Star and Herald and the La Estrella de Panama Co Ltd—where the Governor of Panama, a Colombian State, illegally suspended the publication of an American newspaper even after contrary orders were given by the president of Colombia, because he was maliciously motivated—at first Colombia denied responsibility on the ground that only the personal (p. 246) responsibility of the Governor was involved. But later, after diplomatic negotiations, it conceded its responsibility for an ultra vires act done by abuse of official means put at the disposal of the Governor by the State. 110
This survey of the sources shows that there has been considerable conflict in the views expressed on the basis for attributing ultra vires acts or omissions of administrative organs or officials. That there must be some attributability seems to be the modern view.
The older view that there should be no attribution where an official acts ultra vires—which is also virtually expressed in the Guerrero Report and has been supported by some Asian and African States—is untenable in the face of stronger authority. If attribution arises only where the State concerned is vicariously responsible according to its internal law for acts or omissions of officials causing injury in violation of international law, attribution would depend entirely on the internal law. Then it would be possible for a State to avoid responsibility for the acts or omissions of its officials, where the law of the State does not contemplate State liability for acts or omissions of its officials, or by reference to express legislation preventing such liability. Either of the above alternatives would leave aliens entirely at the mercy of the State concerned and would not secure an adequate balance of interests between the State and the alien. It would seem that some measure of protection against the State itself beyond that which may possibly be afforded by the internal law of the State should be available to an alien against acts or omissions of officials. Hence, some criterion which goes beyond the internal law, where the internal law is inadequate, is required as the basis of attribution.
It is equally clear that the apparently unqualified view of Eagleton that a State is responsible for all acts or omissions of officials on the basis of ‘exclusive territorial control’ is too extreme and is not generally accepted in State practice nor in the international case decisions, nor by legal commentators generally, nor by draft conventions.
The better view seems to be that ultra vires acts or omissions of officials and organs are to be attributed to the State, if they are within the scope of the apparent authority of the official or organ. Also the cases and some State practice go further and support the proposition that even where the acts or omissions are outside the scope of the apparent authority of the official or organ they may be attributed to the State provided the perpetration of the acts or omissions was made possible through means put at the disposal of an official or organ by the State and it was not possible that the alien could, in consequence of the apparent lack of authority of the official or organ, have avoided the damage. Legal commentators and draft conventions generally do not refer to such a possibility nor do they expressly deny it. The better view, however, favours the proposition. Further, it seems clear that no derogation from these principles is permitted where the official is a minor official.
(p. 247) The above two principles represent good law. It cannot be said that they conflict with the policies behind the law of alien treatment by giving too much emphasis to the interests of the alien and his State. The law as it stands on this point may be stated in the form of four propositions:
1. (i) An act or omission of an administrative organ or official of a State is attributable to the State, if the State is responsible for the act or omission according to the internal law of such State.
2. (ii) An act or omission of an administrative organ or official of a State is to be attributed to the State, where the State is not responsible for the act or omission according to its internal law if it or he was acting within the scope of its or his apparent authority.
3. (iii) An act or omission of an administrative organ or official of a State is to be attributed to the State, even if the act or omission is outside the scope of its or his apparent authority, if the commission of the act or omission was made possible through means put at the disposal of the organ or official by the State and the alien could not, in consequence of its or his apparent lack of authority, have avoided the damage.
4. (iv) An act or omission of an administrative organ or official of a State is not to be attributed to the State, if it falls outside rules (i), (ii), (iii).
The conclusions reached above make for clarity and are supported by authority. They differ somewhat from the content of Article 7 of the ILC's Articles on State responsibility, which states that what is required is that ‘the organ, person or entity acts in that capacity’. The meaning is not entirly clear, pace the commentary. 111
An issue which had not received very much attention is whether a State is responsible for the internally unlawful acts or omissions of its legislature. The 1961 Harvard Draft appears to contain the notion that such acts or omissions are attributable if they fall within the scope of the actual or apparent authority or the function of the legislature. If this means that any invalid legislation must be subjected to the test of whether it was within the apparent authority of the legislature, in order to determine attribution, it would leave room for situations where the State would not be responsible for acts of the legislature, for instance, where it is obvious that the legislature has acted unconstitutionally. There is room for the view, however, that a State is absolutely responsible for legislative acts of its legislature, because legislation is a function of statehood which is particularly involved with its sovereignty. The power deriving from the legislative function of the legislative organs is so great that it would not be laying too much of a burden on the State to make all legislative acts of such organs absolutely attributable to the State. There are cases, in which a State had been held responsible for ultra (p. 248) vires legislation. In Peabody's Case 112 imposition of taxes under an invalid law was held attributable to Mexico. Although in that case the legislation was that of a State within the Federation, the principle holds good generally.
With regard to acts of judicial organs, a qualification in terms of ‘apparent authority’ appears to have been acknowledged by the 1961 Harvard Draft and in the Salvador Commercial Co Case, though it had not been hitherto fully discussed. Such a qualification is in order. Clearly, the State cannot be made responsible for all the acts of its judicial officers. Thus, the State cannot be held responsible for the act of a judge who causes injury to an alien in his private capacity, for instance, while building a house. While this particular qualification may appear to be easily admissible, the question may be raised whether there should not be attribution, even if the act or omission is outside the scope of apparent authority of the judicial officer provided the commission of the act or omission was made possible through means put at the disposal of the officer by the State and the alien could not, in consequence of the apparent lack of authority, have avoided the damage. Thus, a judge might give a decision against an alien which is manifestly beyond his jurisdiction but may, nevertheless, employ the means afforded him by the State in his capacity as a judicial officer to give and enforce that decision, thereby causing damage to an alien which the latter cannot avoid. Should the State not then be responsible for this act? It is proper to apply by analogy the principles stated earlier and applicable to the attribution of acts or omissions of administrative organs and officials, because the policies governing the two situations are similar. On this basis there would be attribution to the State in the above circumstances. It may be concluded that the principles applicable to the attribution of the conduct of judicial organs and officers are the same as those applicable to the attribution of acts or omissions of administrative organs or officials.
Attribution of the ultra vires conduct of the different kinds of organs of political subdivisions will be on the same basis, mutatis mutandis, as the attribution of ultra vires conduct of similar organs of the State.
Conduct of an Insurrectional or Other Movement
Article 10 of the 2001 ILC Articles on State Responsibility deals with the special case of attribution to a State of conduct of an insurrectional or other movement which subsequently becomes the new government of the State or succeeds in establishing a new State. It states:
1. 1. The conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law.
(p. 249)
2. 2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration shall be considered an act of the new State under international law. 113
At the outset, the conduct of the members of the movement presents itself purely as the conduct of private individuals. It can be placed on the same footing as that of persons or groups who participate in a riot or mass demonstration and it is likewise not attributable to the State. Once an organized movement comes into existence as a matter of fact, it will be even less possible to attribute its conduct to the State, which will not be in a position to exert effective control over its activities. The general principle in respect of the conduct of such movements, committed during the continuing struggle with the constituted authority, is that it is not as such attributable to the State under international law unless for some other reason.
Ample support for this general principle is found in arbitral jurisprudence. International mixed claims commissions 114 and arbitral tribunals 115 have uniformly affirmed what Commissioner Nielsen in the Solis Case described as a ‘well-established principle of international law’, that no government can be held responsible for the conduct of rebellious groups committed in violation of its authority, where it is itself guilty of no breach of good faith, or of no negligence in suppressing insurrection. 116 Diplomatic practice is remarkably consistent in recognizing the same principle. This can be seen, for example, from the preparatory work for the 1930 Codification Conference. Replies of governments to point IX of the request for information addressed to them by the Preparatory Committee indicated substantial agreement that: (a) the conduct of organs of an insurrectional movement could not be attributed as such to the State; and (b) only conduct engaged in by organs of the State in connection with the injurious acts of the insurgents could be attributed to the State. 117
The general principle is premised on the assumption that the structures and organization of the insurrectional or other movement are and remain independent of those of the State. This will be the case where the State successfully puts (p. 250) down the revolt. In contrast, where the movement achieves its aims and either installs itself as the new government of the State or forms a new State in part of the territory of the pre-existing State or in a territory under its administration, the new regime or new State could not avoid responsibility for conduct earlier committed by it. In these circumstances, Article 10 provides for the attribution of the conduct of the successful insurrectional or other movement to the State. The basis for this attribution lies in the continuity between the movement and the new government or State as such. It does not flow from the individual acts of members of the movement, acting in their own capacity.
Where the insurrectional movement, as a new government, replaces the previous government of the State, the continuity which exists between the new organization of the State and that of the insurrectional movement leads naturally to the attribution to the State of conduct which the insurrectional movement may have committed during the struggle. In such a case, the State does not cease to exist as a subject of international law. It remains the same State despite the changes which may occur in its institutions. Moreover, it is the only subject of international law to which responsibility can be attributed. The situation requires that acts committed during the struggle for power by the apparatus of the insurrectional movement should be attributable to the State, alongside acts of the then established government.
Where the insurrectional or other movement succeeds in establishing a new State, either in part of the territory of the pre-existing State or in a territory which was previously under its administration, the attribution to the new State of the conduct of the insurrectional or other movement is again justified by the virtue of the continuity in the organization of the State to which the success of the movement has given rise. Furthermore the predecessor State cannot be held responsible for that conduct.
Article 10(1) covers the scenario in which the insurrectional movement, having triumphed, has substituted its structures for those of the previous government of the State in question. However, the rule in Article 10(1) should not be pressed too far in the case of governments of national reconciliation, formed following an agreement between the existing authorities and the leaders of an insurrectional movement. The State should not be made responsible for the conduct of a violent opposition movement merely because, in the interests of an overall peace settlement, elements of the opposition are drawn into a reconstructed government. Thus, the criterion of application of Article 10(1) is that of a real and substantial continuity between the former insurrectional movement and the new government it has succeeded in forming.
Article 10(2) of Article 10 addresses the second scenario, where the structures of the insurrectional or other revolutionary movement become those of a new State, constituted by secession or decolonization in part of the territory which was previously subject to the sovereignty or administration of the predecessor State. The expression ‘or in any other territory under its administration’ is included (p. 251) in order to take account of the differing legal status of different dependent territories.
A comprehensive definition of the types of groups encompassed by the term ‘insurrectional movement’ as used in Article 10 is made difficult by the wide variety of forms which insurrectional movements may take in practice, according to whether there is relatively limited internal unrest, a genuine civil war situation, an anti-colonial struggle, the action of a national liberation front, revolutionary or counter-revolutionary movements, and so on. Insurrectional movements may be based in the territory of the State against which the movement's actions are directed, or on the territory of a third State. Despite this diversity, the threshold for the application of the laws of armed conflict contained in Additional Protocol II of 1977 may be taken as a guide. 118 Article 1(1) of that protocol refers to ‘dissident armed forces or other organized armed groups which, under responsible command, exercise such control over part of [the relevant State's] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’, and it contrasts such groups with ‘situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar character’ (Article 1(2)). This definition of ‘dissident armed forces’ reflects, in the context of the Protocols, the essential idea of an ‘insurrectional movement’. As compared with Article 10(1), the scope of the attribution rule articulated by Article 10(2) is broadened to include ‘insurrectional or other’ movements. The existence of a greater variety of movements whose actions may result in the formation of a new State is, thus, reflected. However, the actions of a group of citizens advocating separation or revolution, where these are carried out within the framework of the predecessor State, are not encompassed. Nor is the situation covered where an insurrectional movement within a territory succeeds in its agitation for union with another State. This is essentially a case of succession and outside the scope what is being discussed here, whereas Article 10 focuses on the continuity of the movement concerned and the eventual new government or State, as the case may be.
No distinction should be made for the purposes of Article 10 between different categories of movements on the basis of any international ‘legitimacy’ or of any illegality in respect of their establishment as government. 119 From the standpoint of the formation of rules of law governing State responsibility and diplomatic protection it is unnecessary and undesirable to exonerate a new government or a new State from responsibility for the conduct of its personnel by reference to considerations of legitimacy or illegitimacy of its origin. 120
(p. 252) Arbitral decisions, together with State practice and legal commentators, indicate a general acceptance of the two positive attribution rules in Article 10. The international arbitral decisions, eg those of the mixed commissions established in respect of Venezuela (1903) and Mexico (1920–30), support the attribution of conduct by an insurrectional movement where the movement is successful in achieving its revolutionary aims. For example, in the Bolivar Railway Company Case the principle is stated in the following terms: ‘The nation is responsible for the obligations of a successful revolution from its beginning, because in theory, it represented ab initio a changing national will, crystallizing in the finally successful result.’ 121
The tribunal in the French Company of Venezuelan Railroads Case emphasized that the State cannot be held responsible for the acts of revolutionaries ‘unless the revolution was successful’, since such acts then involve the responsibility of the State ‘under the well-recognized rules of public law’. 122
Likewise the possibility of holding the State responsible for the conduct of a successful insurrectional movement was reflected in the request for information addressed to governments by the Preparatory Committee for the 1930 Codification Conference. 123 On the basis of replies received from a number of governments, the Preparatory Committee of the Conference drew up the following Basis of Discussion: ‘A State is responsible for damage caused to foreigners by an insurrectional party which has been successful and has become the government to the same degree as it is responsible for damage caused by acts of Government de jure or its officials or troops.’ 124
Other Situations
Now Articles 5, 8, 6, 9, and 11 of the 2001 ILC Articles on State Responsibility and the Commentary thereto purport to address a few other issues. 125 Apart from these Articles, there are two other situations to be considered below.
(p. 253) Where conduct of persons or entities not as such organs of the State are attributable to the State for some reason (see eg Articles 6 and 8 and the sections on aiding and assisting, and coercing), it is understood that the State to whom the conduct is attributed would have to be aware of the circumstances or facts which make the conduct a violation of its international obligations, if the conduct was its conduct. However, it must also be pointed out that this is not a matter connected with attribution but is part of the substantive mental element (mens rea, so to speak) for the existence of a violation of international obligations. Attribution as such should, nevertheless, take place. The respondent State may raise the defence that the ‘mental’ element is absent.
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