The law as considered in the three preceding subsections does not dispense with the responsibility of the State which has committed the internationally wrongful act, albeit with the aid or assistance, under the instruction or direction and control, or subject to the coercion of another State under the general law. International responsibility attributed to an assisting, directing, or coercing State does not preclude the responsibility of the assisted, directed, or coerced State, as such. The law is, thus, without prejudice to any other basis for establishing the responsibility of the assisting, directing, or coercing State under any rule of international law defining particular conduct as wrongful. Moreover, (p. 281) the responsibility of any other State than the States involved in the impeached conduct, to whom the internationally wrongful conduct might also be attributable under other provisions of the law, is preserved. Any contrary inference in respect of responsibility which may arise from primary rules, precluding certain forms of assistance or from acts otherwise attributable to any State under the law is to be avoided. This is so for both the implicated and the acting State. The law of attribution considered in this section is concerned only with situations in which the act lying at the origin of the wrong is an act committed by one State and not by the other. If both States can be shown to have committed the act, then that situation would fall within the realm of co-perpetration, and there would be no derived or indirect responsibility. 203
Notes:
(1) The conduct, consisting of acts or omissions, must be in breach of an obligation imposed by a norm of international law, which is a different question. Thus, there are two different requirements—(i) attribution of the conduct as a conduct of the State and (ii) a breach of an international obligation: see eg ‘Imputability in International delinquencies’, 19 BYIL (1938) 106; Cheng, General Principle of Law as Applied by International Courts and Tribunals (1953) 170; Rousseau, Droit International Public (1953) 361 Ch de Visscher, ‘La responsabilité des États’, 2 Bibliotheca Visseriana (1924) 89 ff; Anzilotti, ‘La Responsabilité des États’, 13 RGDIP (1906) at 7 ff; and now Article 2 of the ILC Articles on State Responsibility: Crawford, The International Law Commission's Articles on State Responsibility (2002) 61, and commentary which reflects the lex lata, 83 ff. Special mention needs to be made of the work of the ILC and its Special Rapporteurs on State Responsibility in connection with the subject of this chapter: see Ago, ‘Third Report on State Responsibility, Adds 1–3’ 2 YBILC (Part I, 1971) 223–74; ‘Fourth Report on State Responsibility, Adds 1–3’ 2 YBILC (1972, Part I) 72–160, including bibliography on State Responsibility; ‘Seventh Report on State Responsibility’, 2 YBILC (Part I, 1978) 52–60; ‘Eighth Report on State Responsibility’, 2 YBILC (Part I, 1979) 4–27; ‘Report of the ILC, 1973’ 2 YBILC (1973) 191–8; ‘Report of the ILC, 1974’ 2 YBILC (Part I, 1974) 277–90; ‘Report of the ILC, 1975’, 2 YBILC (1975) 60–106; ‘Report of the ILC, 1978’, 2 YBILC (Part II, 1978), 98–106; ‘Report of the ILC, 1979’, 2 YBILC (Part II, 1979) 94–106; Crawford, ‘First Report on State Responsibility, Adds 5, 6, and 7’ UN Doc A/CN.490/Add 5, Add 6, Add 7, including additional updated bibliography; ‘Second Report on State Responsibility, Add 1’, UN Doc A/CN.4/498/ Add. 1; Crawford, The International Law Commission's Articles on State Responsibility (2002) 91–123, 145–159, which contains relevant final Articles (4–11, 16–19) of the ILC, as reported to the GA, and the commentaries thereon. The latter work by and large reflects the lex lata and has been used and followed extensively and unqualifiedly in this Chapter.
(2) The ILC had opted for the terms ‘attribution’ and ‘attributable’ rather than ‘imputability’ and ‘imputable’: see Article 2 of the ILC's Articles on State Responsibility and heading of Part One, Chapter II; Crawford, ibid 61, 81 ff and 91, and ‘First Report on State Responsibility, Addendum 5’ (ILC, 1998), UN Doc A/CN.4/490/Add. 5 3 ff. The ICJ and arbitral tribunals have, in fact, used the terms ‘imputable’ and ‘imputed’: see the Diplomatic and Consular Staff Case, 1980 ICJ Reports 29,41; the Dickson Car Wheel Co Case (1931, USA v Mexico), 4 UNRIAA 678.
(3) Starke (note 1 above) 105; Cheng (note 1 above) 180; Brierly, ‘The Theory of Implied State Complicity in International Claims’, 9 BYIL (1928) 42; also Anzilotti (note 1 above) 286; Ago, ‘Le délit international’, 68 Hague Recueil (1939) 459 ff; Freeman, The International Responsibility of States for Denial of Justice (1938) 23 ff; Diena, Diritto internazionale púbblico (1939); Cohn, ‘La théorie de la responsabilité internationale’, 68 Hague Recueil (1939) 293 ff.
(4) (1938), PCIJ Series A/B, No. 74, 28.
(5) 1980 ICJ Reports 29, 41. See also the Nicaragua Case (Merits), 1986 ICJ Reports 117–18; and the Gabcíkovo-Nagymaros Project Case, 1997 ICJ Reports 54.
(6) 2007 ICJ Reports at 136 (<www.icj-cij.org>).
(7) (1931, USA v Mexico), 4 UNRIAA 678.
(8) 1949 ICJ Reports 4.
(9) (1892), Moore, 3 International Arbitrations (1898) 2991. See also in the same sense the Oberlander and Messenger Case (1897, USA v Mexico), US Foreign Relations (1897) 387; the Tellini Case, opinion of the Committee of Jurists to which in 1923 reference of the case was made by the LN Council: League of Nations, Official Journal, 5th Year, No 4 (April 1924) 524; the Janes Claim (1925), 4 UNRIAA 82.
(10) 3 Le Droit international théorique et pratique (1897) 134.
(11) AD (1919–1922), Case No 117, 173. See also the Noyes Claim (1933, USA v Panama), 6 UNRIAA 311.
(12) See the Noyes Claim, ibid 308.
(13) (1926, USA v Mexico), 4 UNRIAA 87. See also the Putnam Claim (1927, USA v Mexico), 4 ibid 151; Kennedy's Claim (1927, USA v Mexico), 4 ibid 94; and Brierly (note 3 above) 42. A conflicting view which identified the State with the culprit has as a result been rejected.
(14) League of Nations Publication V Legal 1926, V 3 (Doc C46 M 23, 1926, V). See Article 1(1) of the 1961 Harvard Draft Convention, 55 AJIL (1961) 548; and now Article 2 of the ILC's 2001 Articles on State Responsibility.
(15) 2007 ICJ Reports at 138–40, 145. The Court held that several groups were neither de iure organs of Serbia and Montenegro nor de facto organs of that State where acts could be attributed to that State.
(16) Brownlie, System of the Law of Nations: State Responsibility (Part 1) 1983, 132–66; Caron, ‘The Basis of Responsibility: Attribution and Other Trans-Substantive Rules’, in Lillich & Magraw (eds), The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility (1998) 109;Condorelli ‘L'imputation à l'État d'un fait internationalement illicite: solutions classiques et nouvelles tendances’ La responsibilité de l'État pour violation des droits de l'homme–problèmes d'imputation (1994); A V Freeman, ‘Responsibility of States for Unlawful Acts of Their Armed Forces’ 88 Hague Recueil (1956) 261; Przetacznik, ‘The International Responsibility of States for Unauthorized Acts of their Organs’, Sri Lanka Journal of International Law (1989) 151.
(17) The Yeager Case (1987), 17 Iran-US CTR 101–2.
(18) See for what follows on the general principle incorporated in the Article also commentary to Article 4 of the 2001 ILC's Articles, Crawford (2002) (note 1 above) 94 ff. In the Bosnia Genocide Case the ICJ cited with approval this Article 4 as the basis for attribution: 2007 ICJ Reports 138.
(19) (1871) Moore, 3 International Arbitrations 3129.
(20) The Chiessa Claim (1901, Italy v Peru), 15 UNRIAA 399; the Sessarego Claim (1901, Italy v Peru),ibid 401; the Roggero Claim (1901, Italy v Peru), ibid 409; the Miglia Claim (1901, Italy v Peru), ibid411; the Salvador Commercial Co. Case (1902, USA v Salvador), ibid 477; the Finnish Shipowners Arbitration (1934), (GB v Finland), 3 UNRIAA 1501.
(21) League of Nations, Conference for the Codification of International Law, 3 Bases of Discussion for the Conference Drawn up by the Preparatory Committee: Responsibility of States for Damage Caused in their Territory to the Person or Property of Foreigners (Doc. C.75.M69, 1929, V.) 25, 41, 52; Supplement to Volume 3: Replies made by the Governments to the Schedule of Points; Replies of Canada and the United States of America (Doc. C.75(a)M.69(a), 1929, V.) 2–3, 6. The Third Committee of the Conference adopted unanimously an Article 1 which provided for the international responsibility of a State as a consequence of the ‘failure on the part of its organs’ to fulfil the international obligation of the State: see 2 YBILC (1956) 225 (Annex 3).
(22) (1902), 15 UNRIAA 477. See also the Chattin Case, 4 ibid (1927), 285–6; Dispute Concerning the Interpretation of Article 79 of the Treaty of Peace (1955), 13 ibid. 438.
(23) The Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights Opinion, 1999 ICJ Reports 87, para. 62, referring to the Draft Articles on State Responsibility, Article 6, now reflected in Article 4.
(24) (1926), PCIJ, Series A No. 7, 19. For other cases before the World Courts, as to legislative acts, see the German Settlers in Poland Opinion (1923), PCIJ, Series B No. 6, 35–6; the Phosphates in Morocco Case (Preliminary Objections) (1939), PCIJ Series A/B, No. 74, 25–6; the Rights of Nationals of the United States of America in Morocco Case, 1952 ICJ Reports 193–4; as to executive acts see the Nicaragua Case (Merits), 1986 ICJ Reports 14; the ELSI Case, 1989 ICJ Reports 158; as to judicial acts see the ‘Lotus’ Case (1927), PCIJ Series A No. 10 24; the Jurisdiction of the Courts of Danzig Opinion (1928), PCIJ Series B No.15, 24; the Ambatielos Case (Merits), 1953 ICJ Reports 21–2. Some cases involve both executive and judicial acts: see the Guardianship of Infants Case, 1958 ICJ Reports 65. These cases and others will be referred to below in the discussion on the organs, and the like, of States.
(25) These functions might involve, eg, the giving of administrative guidance to the private sector. Whether such guidance involves a breach of an international obligation may be an issue, but as ‘guidance’ it is clearly attributable to the State. See GATT, Japan—Trade in Semi-conductors, Panel Report of 24 March 1988 at paras 110–111; WTO, Japan—Measures affecting Consumer Photographic Film and Paper, Panel Report, 31 March 1998, WT/DS44, at paras 10.12–10.16.
(26) The irrelevance of the classification of the acts of State organs as iure imperii or iure gestionis was affirmed by all those members of the Sixth Committee who responded to a specific question on this issue from the Commission: see Report of the ILC, 1998 UN Doc. A/53/10 at para. 35.
(27) See C F Amerasinghe, Local Remedies in International Law (2004) chapter 5.
(28) The decision of the European Court of Human Rights in the Swedish Engine Drivers' Union Case, ECHR, Series A, No. 20 (1976) 14; and Schmidt and Dahlström, ECHR., Series A, No. 21 (1976) 15.
(29) See the Currie Case (1954), 14 UNRIAA, 24; the Dispute Concerning the Interpretation of Article 79 of the Treaty of Peace (1955), 13 UNRIAA, 431–2; the Mossé Case (1953), ibid 492–3. See earlier cases cited in Crawford (2002) (note 1 above) 96, fn 119 (ILC Commentary). See also the characterization of the requisition of a plant by the Mayor of Palermo in the ELSI Case, 1989 ICJ Reports 50.
(30) (1951) 13 UNRIAA, 161. For earlier decisions, see the Pieri Dominique and Co Case (1905), 10 UNRIAA, 156.
(31) League of Nations, Conference for the Codification of International Law (note 21 above) 90; Supplement to Vol. 3 (note 21 above) 3, 18.
(32) Governments were expressly asked whether the State became responsible as a result of acts or omissions of bodies exercising public functions of a legislative or executive character (communes, provinces, etc.). All answered in the affirmative.
(33) Crawford (2002) (note 1 above) 98.
(34) (1902), 15 UNRIAA, 477.
(35) (1926), PCIJ, Series A No. 7, 19.
(36) (1925), PCIJ, Series B No. 10, 20.
(37) (1927, France v Spain), 1 UNRIAA, 302.
(38) The Norwegian Shipowners Claim (1922, Norway v USA), 1 UNRIAA p. 309.
(39) The German Settlers in Poland Opinion (1923), PCIJ, Series B No. 6.
(40) The Chorzòw Factory Case (Merits) (1928), PCIJ, Series A/B No. 17. For other cases decided by the PCIJ dealing in general with responsibility for legislative acts see cases cited above note 24.
(41) Oppenheim, 1 International Law (1955) 359 (ed H Lauterpacht).
(42) Cited from Rousseau (note 1 above) 370. Sibert made a careful study of the subject and admitted the proposition: ‘Considérations sur certain aspects du régime juridique des emprunts internationaux’, 47 RGDIP (1940) 5. See also in accord Vitta, La Responsabilitá internazionale dello stato per atti legislativi (1953); Musacchia, La Responsabilitá internazionale degli stati per fatti degli organi legislativi (1939).
(43) Article 6, Annex 3 in 2 YBILC (1956) 225. See also in accord Basis of Discussion No. 2 before the conference, cited in Annex 2, 2 ibid 223.
(44) Article 13(1), 2 YBILC (1961) 48.
(45) Article 1, in Annex 8, ibid 227.
(46) Article 16, 55 AJIL (1961) 576.
(47) Nadaraja v The Attorney-General (1956), 59 New L.R. 136 (Ceylon). This was the position in the UK before the Crown Proceedings Act 1947.
(48) Under the Crown Proceedings Act 1947, Section 2(b), in England, the State was not responsible for acts of the police force.
(49) Such a concept is different from the concept of State functions used in the law of sovereign immunity to distinguish between acts iure imperii and acts iure gestionis: see Sucharitkul, State Immunities and Trading Activities (1959) 162 ff.
(50) 2007 ICJ Reports 139–40. Among other things, the court held that the VRS in Bosnia was not an organ of the FRY.
(51) (1841, USA v Mexico), Moore, 4 International Arbitrations 3369.
(52) For other cases decided by the PCIJ and ICJ involving acts of the executive see above note 24.
(53) See Meron, ‘Repudiation of Ultra Vires State Contracts and the International Responsibility of States’, 6 ICLQ (1957) 278 ff. The doctrine of unjust enrichment has also been called in aid to protect an alien where the contract was initially void because the official was acting ultra vires: see the Parker Case (1926, USA v Mexico), 4 UNRIAA p. 35, the General Finance Corporation Case (1942, USA v Mexico), U.S. Dept. of State Publication 2859, Arbitration Series 9 546. However, in such cases the contract is held to be void and non-existent and relief is given on different grounds according to an international law standard.
(54) See C F Amerasinghe (note 2 above) 119 ff.
(55) See the position in England: Crown Proceedings Act 1947, Section 2(5).
(56) (1902, USA v Salvador) 15 UNRIAA 477.
(57) (1928, USA v Mexico), 4 UNRIAA 400.
(58) (1927, USA v Mexico), 4 ibid. 282.
(59) (1927, USA v Mexico), 4 ibid 458. See also the Kennedy Case (1927, USA v Mexico), 4 ibid 19; the John Chase Case (1928, USA v Mexico), 4 ibid 337; the De Galvan Case (1927, USA v Mexico), 4 ibid273; the Martini Case (1930, Italy v Venezuela), 2 ibid 975; the El Oro Mining and Railway Co Case (1931, UK v Mexico), 5 ibid 191.
(60) See cases referred to in footnote 24 above.
(61) (1931, GB v Portugal), Lapradelle and Politis, 2 RAI 103.
(62) Ibid 107.
(63) Annex 5 in 2 YBILC (1956) 226.
(64) Annex 6 in ibid 226.
(65) See AALCC, Report of the Fourth Session (1961) 141.
(66) See especially Freeman (note 16 above) 151; Oppenheim (note 41 above) 367 and literature there cited; Briggs, Law of Nations (1953) 677 ff and literature there cited; also Eustathiades, La responsibilité internationale de l'État pour les actes des organs judiciares et la problème du dèni de justice (1936), passim.
(67) See the Guerrero Report, Paras 6 and 7, 2 YBILC (1956) 222, Annex 1; The Basis of Discussions, Nos. 5 and 6 of the Preparatory Committee of the 1930 Hague Codification Conference, ibid 223, Annex 2; Article 9 of the document approved by the Third Committee of the same Conference, ibid 226, Annex 3; Articles 3 and 12 of Garcia Amador's 1961 Draft for the ILC, 2 ibid (1961) 46, 67.
(68) The 1925 Draft of the American Institute of International Law, 2 ibid, (1956) 227, Annex 7; the 1927 Draft of the Institut de droit international, ibid 228, Annex 8; the 1927 Harvard Draft, ibid 229, Annex 9; the 1961 Harvard Draft, Articles 15 and 16, 55 AJIL (1961) 576.
(69) (1927, Mexico v USA), 4 UNRIAA 273.
(70) (1875) Moore, 2 International Arbitrations 1440. See also the De Brissot and Others Case (1855), 3 ibid 2970–1; the Pieri Dominique and Co. Case (1905), 10 UNRIAA 156–7; the Davy Case (1903), 9ibid 468; the Janes Case (1925), 4 ibid 86; the Swinney Case (1925) 4 ibid 101; the Quintanilla Case, (1925), 4 ibid 177; the Venable Case (1925) 230; the Tribolet Case (1925), 4 ibid 601.
(71) (1929), 5 UNRIAA 356.
(72) The LaGrand Case (Provisional Measures), 1999 ICJ Reports 16. See also the LaGrand Case (Merits), 2001 ICJ Reports para. 81. The same issue could have arisen in the Breard Case, 1998 ICJ Reports (<url canonical="http://www.icj-cig.org>) where the US was the respondent. The case was discontinued before it came to judgement.
(73) See Arts 56(3), 172(3) of the Constitution of the Swiss Federation, 18 April 1999.
(74) See Article 34 of the Convention for the Protection of the World Cultural and Natural Heritage (1972), 1037 UNTS 152.
(75) (Rumania v Germany), 7 Recueil TAM 121.
(76) (GB v Turkey), 8 ibid 203.
(77) See Hackworth, 5 Digest 593 ff.
(78) 3 Bases of Discussion, Supp. 10, League of Nations Publications 1929, 21.
(79) (1934, USA v Canada), Hackworth, 5 Digest 561.
(80) 2 YBILC (1961) 48.
(81) Paragraph 10, 2 ibid (1956) 222.
(82) Article 14(c) of Garcia Amador's draft for the ILC, 2 ibid (1961) 48. For private drafts supporting attribution see Article IX of the 1927 Draft of the Institut de droit international: 2 ibid (1956) 288, Annex 8; Article 17 of the 1961 Harvard Draft, 55 AJIL (1961) 576. The latter draft deals also with protectorates, colonies, and dependencies.
(83) 2 YBILC (1956) 187.
(84) In the case of colonies, protected States, dependencies, and trust or mandated territories, a similar principle would be applicable. The question to be determined is whether the State being impugned is responsible for the international relations of the other entity, at least to a substantial extent. This is in keeping with the observation that:
in a case involving a protectorate or like entity … one must determine whether, in addition to enjoying full internal autonomy, the entity in question has a measure of international personality and whether this personality carries with it the capacity to enter directly into international commitments with other States. (per Garcia Amador, ibid.)
(85) (1885) U.S. Foreign Relations (1885) 451.
(86) 22 Opinions of the Attorney General of the United States (1990) 64, 13 ibid (1873) 553.
(87) (Undated but circa 1885, USA v Venezuela), Moore, 3 International Arbitrations 2946.
(88) (1924, USA v GB), 6 UNRIAA 138.
(89) (1929, France v Mexico), 5 ibid 530.
(90) (1921, GB v USA), 6 ibid 58.
(91) See for a full survey of the cases Meron, ‘International Responsibility of States for Unauthorized Acts of Their Officials’, 35 BYIL (1957) 93 ff.
(92) The Armènie (1895, France v Turkey), 2 RGDIP 623; the Baldwin Case USA v Mexico (1842, USA v Mexico), Moore, 4 International Arbitrations 3235; The Industry (1842, USA v Mexico), Moore, 3 ibid3045.
(93) (1921, GB v USA, 6 UNRIAA 68; see also the Union Bridge Co. Case, 6 ibid 141, The Favourite (1921, GB v USA), 6 ibid 82. The Jessie (1921, GB v USA), 6 ibid 58.
(94) Meron (note 91 above) 97. See also Eagleton, The Responsibility of States in International Law (1928) 47 ff. The views of Eagleton and Meron are more accurate. Contra Borchard, Diplomatic Protection of Citizens Abroad (1915) 185 ff. The views of Eagleton and Meron are more accurate.
(95) See particularly the Roper Case (1927, USA v Mexico), 4 UNRIAA 145; the Massey Case (1927, USA v Mexico), 4 ibid 157, 159 and the Stephens Case (1927, USA v Mexico), 4 ibid 267.
(96) The Bensley Case (1850, USA v Mexico), Moore, 3 International Arbitrations 3016; the Blumhardt Case (1875, USA v Mexico), 3 ibid 3146; the Slocum Case (1876, USA v Mexico), Moore, 3ibid 3140.
(97) See the early literature cited in C F Amerasinghe, ‘Imputability in the Law of State Responsibility for Injuries to Aliens’ 22 Revue Egyptienne de droit international (1966) fns 53 and 37, 106 and 103.
(98) (1929, France v Mexico), 5 UNRIAA 580.
(99) The Mages Case (1874, GB v Guatemala), BFSP (1873–1874) 875; the Speyers Case (undated, but circa 1868, USA v Mexico), Moore, 3 International Arbitrations 2868; the Youmans Case (1926, USA v Mexico), 4 UNRIAA 110; the Munroe Case (1926, USA v Mexico) 4 ibid 538; The Panther Brazil v Germany), 13 RGDIP (1906) 200; the Way Case (1928, USA v Mexico), 4 UNRIAA 391; the Quintanilla Case (1926, Mexico v USA), 4 ibid 101; and generally Meron (note 91 above) 107 ff.
(100) 1927, Mexico v USA), 4 UNRIAA 173.
(101) In the Gordon Case an American was accidentally wounded by a shot fired by a Mexican army doctor who was practising target-shooting with a new pistol privately acquired by one of the soldiers. Although Mexican army regulations required daily target practice it was held that the target practice engaged in was not that prescribed by the regulations but was of an absolutely different character instituted as the result of the private purchase of the pistol. The basis of the decision was that the practice was neither within the scope of the apparent authority of the official nor was it made possible by the use of governmental means (1930, USA v Mexico), 4 ibid 586.
(102) See authorities collected in Soldati, La Responsibilté Internationale des États dans le Droit International (1934) 55.
(103) 3 Le Droit international théoretique et pratique (1896) 120.
(104) Das Moderne Völkerrecht der Civilisierten Staaten als Rechtsbuch Dargesteldz (1878) 261.
(105) Décencière—Férrandière, La résponsibilté internationale des états à raison des dommages subis par des étrangers (1925) 67; Ago (note 3 above) 459; Cohn (note 3 above) 293; Starke (note 1 above) 109; Briggs, Law of Nations (1953) 516; Bustamante, 2 Derecho internacional publico (1936) 495; Anzilotti, 1 Corso di Diritto Internazionale (1928) 289 ff; Ch. De Visscher (note 1 above) 92; Eagleton (note 94 above) 213.
(106) Ibid.
(107) The Guerrero Report took the narrowest view of attributability. It did not go so far as explicitly to deny that the wrong could be attributed to the State where the official had acted outside his competence according to the national law, but where attribution was allowed in such situations the conduct had to be characterized by specific conditions or circumstances—though the latter almost equated the position to that of acts or omissions of private individuals where there is no real attribution. These conditions were enumerated as follows:
1. ((a)) If the Government, having been informed that an official is preparing to commit an illegal act against a foreigner, does not take timely steps to prevent such act;
2. ((b)) If, when the act has been committed, the Government does not with all due speed take such disciplinary measures and inflict such penalties on the said official as the laws of the country provide;
3. ((c)) If there are no means of legal recourse available to the foreigner against the offending official, or if the municipal courts fail to proceed with the action brought by the injured foreigner under the national laws (cited in Annex 1 in 2 YBILC (1956) 222).
The Preparatory Committee of the 1930 Hague Conference allowed for attribution, where the official was acting within his competence, or, if acting outside his competence, purported to act within the scope of his authority: Bases of Discussion Nos. 12 and 13, Annex 2, 2 YBILC (1956), 223. The Third Committee of the Hague Codification Conference in Article 8 accepted these basic ideas, although the term used to represent the idea of ‘within the scope of apparent authority’ was ‘under cover of their official character’: Annex 3 in ibid 226. Garcia Amador's 1961 Revised Draft for the ILC predicated attribution on the notion that, even if the officials or organs exceeded their competence, they, nevertheless, ‘purported to be acting in their official capacity’, Article 12(c), 2 ibid (1961) 47. The Draft also explicitly stated that there can be no liability where the ‘act exceeding the competence of the officials or organs concerned was by its nature totally outside the scope of their functions and powers, even though they may to some extent have used the means at their disposal by reason of that position’(Article 12(3), ibid 48) or where the act or omission was ‘so manifestly outside the competence of the organ or official concerned that the alien should have been aware of the fact and could, in consequence, have avoided the injury’ (Article 12(4), ibid 48).
(108) Article 7 of the 1929 Harvard Draft makes liability of the State rest on the acts or omissions ‘being within the scope of the office or function’ of the authority concerned but makes a distinction between higher officials and minor officials and requires an additional factor in the case of the latter:Annex 9 in 2 ibid (1956) 229. The 1961 Harvard Draft, however, in Article 15 sheds this distinction and adopts the test of ‘scope of function or actual or apparent authority’ as determining attributability: Article 15 in 55 AJIL (1961) 576.
(109) Burma, Ceylon, India, and Indonesia espoused the former view while Japan and the UAR took the latter; see AALCC, Report of the Fourth Session (1961) 141.
(110) See US Foreign Relations (1886) 168, ibid (1888) 423; ibid (1890) 260, 272, ibid (1899) 218.
(111) See Crawford (2002) (note 1 above) 106 ff.
(112) Arbitration Series 9 (1942) 475. (1942, USA v Mexico), US Dept. of State Publication 2859, Arbitration Series 9 (1942) 475.
(113) The Article also states that what is stated in paragraphs 1 and 2 is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of the State by virtue of other Articles (Articles 4 to 9). What follows on Article 10 reflects closely the commentary of the ILC.
(114) See the decision of the various mixed commissions: the Zuloaga and Miramon Governments Case, Moore, 3 International Arbitrations 2873; the McKenney Case, Moore, 3 ibid 2881; the Confederate States Case, Moore, ibid 2886; the Confederate Debt Case, Moore, ibid 2900; the Maximilian Government Case, Moore, ibid 2928–9.
(115) The British Claims in the Spanish Zone of Morocco Case (1925), 2 UNRIAA 642; the Several British Subjects (Iloilo Claims) Case (1925), 6 UNRIAA 159–60.
(116) (1928), 4 UNRIAA 361 (referring to Home Missionary Society Case (1920), 6 UNRIAA 42, also the Sambiaggio Case (1903) 10 UNRIAA 524.
(117) League of Nations, Conference for the Codification of International Law, (note 21 above) 108; Supplement to Volume III: (note 21 above) 3, 20.
(118) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609.
(119) See Atlam, ‘International Liberation Movements and International Responsibility’ in Simma and Spinedi (eds), United Nations Codification of State Responsibility (1987) 35.
(120) As the ICJ said in the Namibia (South West Africa) Opinion, ‘Physical control of a territory, and not sovereignty or legitimacy of title, is the basis of State liability for acts affecting other States’: 1971 ICJ Reports 54.
(121) (1903), 9 UNRIAA 453. See also the Puerto Cabello and Valencia Railway Company Case (1903), 9 ibid 513.
(122) (1902), 10 ibid 354. See also Dix Case (1902), 9 ibid 119; and the Pinson Case (1928), 5 ibid 353.
(123) League of Nations, Conference for the Codification of International Law (note 21 above) 116; reproduced in 2 YBILC (1956) 224.
(124) Basis of Discussion No. 22(c), League of Nations, Conference for the Codification of International Law (note 21 above) 118; reproduced in 2 YBILC (1956) 224. Perhaps, also, a more precise approach would require the application to the conduct of the legislative, administrative, and judicial organs of the revolutionaries, if these are identifiable as such organs, the rules discussed above which are applicable to the attribution to the State of the conduct of similar organs of the State; if not, the principles applying to the conduct of administrative organs and officials of the State are applicable.
(125) Where appropriate, the contents of this section, dealing with other situations, reflect the Commentaries of the ILC's Articles on State Responsibility on Articles 5, 8, 6, 9 and 11.
(126) The Hyatt International Cooperation Case (1985), 9 Iran-US CTR 88–94.
(127) League of Nations, Conference for the Codification of International Law (note 21 above) 90. The German Government noted that these remarks would extend to the situation where ‘the State, as an exceptional measure, invests private organizations with public powers and duties or authorities [sic] them to exercise sovereign rights, as in the case of private railway companies permitted to maintain a police force’; ibid.
(128) Ibid 92.
(129) Article 9, discussed later herein, covers specifically the case in which an entity or group seizes and exercises power in the absence of State organs, but in situations where the exercise of governmental authority is demanded.
(130) See commentary to Article 8 of the ILC's Articles: Crawford (2002) (note 1 above) 110–13.
(131) Separate issues are raised where one State engages in internationally wrongful conduct at the direction or under the control of another State: see below.
(132) The ‘Zafiro’ (1925) 6 UNRIAA 160; the Stephens Case (1927), 4 ibid 267; the Lehigh Valley Railroad Company, and Others Case: ‘ Black Tom’ and ‘Kingsland’ Incidents (1930, USA v Germany), 8ibid 84 and (1939, USA v Germany), 8 ibid 458.
(133) 1986 ICJ Reports 14.
(134) Ibid 51.
(135) Ibid 62 and 64–5. See also the concurring opinion of Judge Ago, ibid 189.
(136) Case IT-94-1, Prosecutor v Tadic (1999) 38 ILM 1518. For the judgment of the Trial Chamber (1997), see 112 ILR 1.
(137) Case IT-94-1, Prosecutor v Tadic (1999) 38 ILM 1541(emphasis in original).
(138) Ibid 1546 (emphasis in original).
(139) See the explanation given by Judge Shahabuddeen, ibid 1614–15.
(140) The problem of the degree of State control necessary for the purposes of attribution of conduct to the State has also been dealt with, for example, by the Iran-US Claims Tribunal: the Yeager Case (1987) 17 Iran-US CTR 103 (see also the Starrett Housing Corp. Case (1983) 4 ibid 143; and by the European Court of Human Rights, Loizidou v Turkey (Merits), ECHR Reports, 1996-VI 2235-6. See alsoibid 2234 and the decision on the preliminary objections: ECHR, Series A, No. 310 (1995) 62).
(141) 2007 ICJ Reports 143 ff.
(142) The Barcelona Traction Co Case, Second Phase, 1970 ICJ Reports 39.
(143) The Worker's Councils considered in the Schering Corporation Case (1984), 5 Iran-USCTR 361; the Otis Elevator Co Case (1987), 14 ibid 283; the Eastman Kodak Co Case (1987), 17 ibid 153.
(144) The SEDCO Inc Case (1987), 15 ibid 23. See also the International Technical Products Corp Case (1985) 9 ibid 206; the Flexi-Van Leasing Inc Case (1986), 12 ibid 349.
(145) The Phillips Petroleum Co Iran Case (1989), 21 ibid 79; the Petrolane Inc Case (1991), 27 ibid 64.
(146) The Foremost Tehran Inc Case (1986), 10 ibid 228; the American Bell International Inc Case (1986), 12 ibid 170.
(147) See also Hertzberg et al v Finland, decision of 2 April 1982, GAOR, Thirty-fifth Session, Supplement No. 40, (A/37/40) 161, para. 9.1; X v Ireland (App. 4125/60) (1971), 14 Yearbook ECHR 198; Young, James and Webster v United Kingdom, ECHR, Series A, No. 44 (1981).
(148) What follows are the explanation and commentary in the 2001 ILC Articles on State Responsibility: Crawford (2002) (note 1 above) 103–5.
(149) Thus conduct of Italy in policing illegal immigration at sea pursuant to an agreement with Albania was not attributable to Albania: ECHR, decision of 11 January 2001. Xhavara & Others v Italy & Albania (Application Nos. 39473–98), ECHR, decision of 11 January 2001. Conversely conduct of Turkey taken in the context of the EC–Turkey customs union was still attributable to Turkey: see WTO, Turkey—Restrictions on Imports of Textile and Clothing Products, Panel Report, 31 May 1999, WT/DS34/R, paras 9.33–9.44.
(150) For the responsibility of a State for directing, controlling or coercing the internationally wrongful act of another see Articles 17 and 18 and commentaries of the 2001 ILC Articles on State Responsibility: Crawford (2002) (note 1 above) 64, 152 ff, and below.
(151) (1931, France v GB), 2 UNRIAA 1113.
(152) Ibid 1141.
(153) X and Y v Switzerland, 1977 (Joined Apps. 7289/75 and 7349/76), 20 Yearbook ECHR 402–6.
(154) See also Drozd and Janousek v France and Spain, (1992), ECHR ., Series A, No. 240 (1992) paras 96, 110. See also Comptroller and Auditor-General v Davidson (1996), 104 ILR 536–7, 574–6 (Court of Appeal, New Zealand). An appeal to the Privy Council on other grounds was dismissed: 108 ILR 622.
(155) The Rome Statute of the International Criminal Court (1998), A/CONF.183/9, Article 89.
(156) What follows on Article 9 is taken from the commentary on the Article in the 2001 ILC's Articles of State Responsibility: see Crawford (2002) (note 1 above) 114 ff.
(157) This principle is recognized as legitimate by Article 2 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land: J B Scott (ed), The Proceedings of The Hague Peace Conferences: The Conference of 1907 (1920) 623;and by Article 4, paragraph A (6), of the 1949 Geneva Convention on the Treatment of Prisoners of War, 75 UNTS 135.
(158) (1987), 17 Iran-USCTR 104.
(159) See the award by Arbitrator Taft in the Tinoco Case (1923), 1 UNRIAA 381–2. On the responsibility of the State for the conduct of de facto governments, see also Frowein, Das de facto-Regime im Völkerrect (1968) 70–71. Conduct of a government in exile might be covered by Article 9, depending on the circumstances.
(160) The Sambiaggio Case (1904), 10 UNRIAA. See further above on Article 10 of the 2001 ILC's Articles on State Responsibility.
(161) For what follows see commentary to Article 11 of the 2001 ILC's Articles on State Responsibility: Crawford (2002) (note 1 above) 121–3.
(162) (1956), 12 UNRIAA 198.
(163) The matter is reserved by Article 39, Vienna Convention on Succession of States in Respect of Treaties, (1978) 1946 UNTS 3.
(164) 1980 ICJ Reports 3.
(165) Ibid 35.
(166) Ibid 31–3.
(167) (1956), 12 UNRIAA 197–8.
(168) S.C.O.R., Fifteenth Year, 865th Mtg, 22 June 1960, 4.
(169) The separate question of aid or assistance by a State to internationally wrongful conduct of another State is dealt with in Article 16 of the 2001 ILC's Articles on State Responsibility: see below.
(170) 1980 ICJ Reports 3.
(171) This section, and the next, are based on considerations which use by anology the principles relating to the attribution to one State of the conduct of another State.
(172) There is a considerable literature dealing with the obligations of a State in respect of acts of this nature, though not in connection with the doctrine of attribution: see particularly authorities referred to in C F Amerasinghe, Studies in International Law (1969) 244, note 125.
(173) The subject has been discussed in detail as one of considerable complexity by two rapporteurs of the ILC: see Ago, ‘Seventh Report on State Responsibility’ 2 YBILC (1978), Part I 52–60, and ‘Eighth Report on State Responsibility’ 2 YBILC (1979), Part I 4–27; Crawford, ‘Second Report on State Responsibility, Addendum’ (ILC, 1999) UN Doc. A/CN. 4/ 498/ Add. 1, 2–23. However, a much simplified approach is taken in the Articles on Responsibility of States for Internationally Wrongful Acts of the ILC adopted on second reading and submitted in 2001 to the GA of the UN (Articles 16 to 19 and commentary thereto, which reflect the lex lata). The problems surrounding the subject have been discussed more recently in Padelletti, Pluralità di Stati nel Fatto Illecito Internazionale (1990);Brownlie, State Responsibility. Part I (1983) 189–192; Quigley, ‘Complicity in International Law: A New Direction in the Law of State Responsibility’ 57 BYIL (1986) 77; Noyes & Smith, ‘State Responsibility and the Principle of Joint and Several Liability’ 13 Yale Journal of International Law (1988) 225; Graefrath, ‘Complicity in the Law of International Responsibility’ 29 RBDI (1996) 370; and also earlier in Brierly, ‘The Theory of Implied State Complicity in International Claims’ 9 BYIL (1928) 42. Reference may also be made to the Reports of the ILC in 2 YBILC, Part II (1978) 98–106, and 2 YBILC, Part II (1979) 94–106. In this section the Commentary to Articles 16, 17 and 18 of the ILC's Articles on State Responsibility has been relied on in extenso.
(174) See the opinion of the US-French Commissioners in the French Indemnity of 1831 Case, Moore, 5 International Arbitrations 4473–75; and the Nicaragua Case (Merits), 1986 ICJ Reports 129, and the dissenting opinion of Judge Schwebel, ibid 259.
(175) Art. III (c) of the Convention on the Prevention and Punishment of the Crime of Genocide, (1948), 78 UNTS 277; Art. 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, (1966), 660 UNTS 195.
(176) See the articles cited in footnote 173 above.
(177) Certain Phosphate Lands in Naura Case 1992 ICJ Reports 258. See also the separate opinion ofJudge Shahabuddeen, ibid 284.
(178) ECHR Series A, No. 161 (1989) 33–6. See also the Cruz Varas Case, ECHR Series A, No. 201 (1991) 28; The Vilvarajah Case, ECHR, Series A, No. 215 (1991) 37.
(179) Corfu Channel Case (Merits), 1949 ICJ Reports 22.
(180) See Crawford (2002) (note 1 above) 148 ff.
(181) See Articles 34 and 35 of the Vienna Convention on the Law of Treaties, 1155 UNTS 331, which reflect this principle.
(182) See New York Times, 5 March 1984, A3, col. 1 and ibid., 6 March 1984, A1, col. 1.
(183) See ibid, Aug. 26, 1998, A8, col. 1. See also 20 ZAORV (1960) 663–4. In the 1986 Tripoli bombing incident involving US armed action against Libya, the UK had allowed several of its air bases to be used for the launching of US fighter planes to attack Libyan targets. The UK was accused by Libya of being ‘partly responsible’ for having ‘supported and contributed in a direct way’ to the raid. The UK denied responsibility on the basis that the raid by the US was lawful as an act of self-defence against Libyan terrorist attacks on American targets. A proposed SC resolution concerning the attack was vetoed but the UNGA issued a resolution condemning the ‘military attack’ as ‘a violation of the Charter of the United Nations and of international law’, and calling upon all States ‘to refrain from extending any assistance or facilities for perpetrating acts of aggression against the Libyan Arab Jamahiriya’: on this incident and its sequel in the UN see USA, Department of the State Bulletin, No. 2111, June 1986, 8; the statement of Ambassador Hamed Houdeiry, Libyan People's Bureau, Paris, The Times, 16 April 1986, 6, col. 7; the statement of Mrs Margaret Thatcher, Prime Minister, UK, cited in 57 BYIL (1986) 638; GA Rs. 41/38 of 20 Nov. 1986, paras 1, 3.
(184) See Report of the Economic and Social Council, Report of the Third Committee of the General Assembly, Draft Rs. XVII, Dec. 14, 1982, UN Doc. A/ 37/ 745, 50.
(185) See Article 47 of the ILC's Articles on State Responsibility (2001), Crawford (2002) (note 1above) 70–1, 272–5.
(186) In the case of aiding and assisting, the State which aids and assists, by contrast, incurs international responsibility only to the extent of the aid or assistance.
(187) 1952 ICJ Reports 176.
(188) 1 ICJ Pleadings, Rights of Nationals of the United States in Morocco 235; 2 ibid 431–3. The US thereupon withdrew its preliminary objection: 2 ibid 434.
(189) 1952 ICJ Reports 179.
(190) (1925), 2 UNRIAA 649, 648.
(191) Ibid.
(192) The federal State above is the international person responsible internationally for the conduct of its component units which have no international personality: see the La Grand Case (Provisional Measures), 1999 ICJ Reports 16.
(193) See Ago, ‘L'occupazione bellica di Roma e il Trattato lateranense’ 2 Comunicazioni e studi (1949) 167–8.
(194) (1923, USA v GB), 6 UNRIAA 130.
(195) Ibid 131.
(196) Ibid.
(197) (1951), 13 UNRIAA 161. See also, in another context, Drodz & Janousek v France & Spain, ECHR, Series A, No. 240 (1992) and Iribarne Pérez v France, ECHR, Series A, No. 325-C (1995) 62–63.
(198) It may be that the fact of the dependence of one State upon another is relevant in terms of the burden of proof, since the mere existence of a formal State apparatus does not exclude the possibility that control was exercised in fact by an occupying Power; see the Restitution of Household Effects Belonging to Jews Deported from Hungary Case (1965), 44 ILR 340–342, an action brought in a German court.
(199) Crawford (2002) (note 1 above) 154 (commentary Article 17).
(200) Note from the US Embassy in London, 1925, in Hackworth, 5 Digest 702.
(201) Note from the British Foreign Office, dated July 5, 1928, Hackworth, 5 ibid 704.
(202) For a different example involving the coercion of a breach of contract in circumstances amounting to a denial of justice see Bouvé, ‘Russia's liability in tort for Persia's breach of contract’ 6 AJIL (1912) 389.
(203) See Article 19 of the ILC's Articles on State Responsibility.
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