KolbRobert 2017 3attribution TheInternationalLawOf

JOBNAME: Kolb PAGE: 88 SESS: 5 OUTPUT: Thu Mar 23 12:20:45 2017
88 The international law of State responsibility
instructions received. The next of kin of the murdered US citizens thus

received some degree of compensation through the claim by their
All rights reserved. May not be reproduced in any form without permission from the publisher, except fair uses permitted under U.S. or applicable copyright law.
national State.
The standards set in article 7 ASR have further been codified in
particular areas of international law through leges speciales. This is the
case, for example, of article 91 of Additional Protocol I of 1977 to the
Four Geneva Conventions of 1949, on international humanitarian law,
where it is recalled that the State is responsible for all acts of its armed
forces, intra vires but also ultra vires.269
5. ATTRIBUTION BY AD HOC ENDORSEMENT

Article 11 ASR reads as follows:
Conduct which is not attributable to a State under the preceding articles shall
nevertheless be considered an act of that State under international law if and
to the extent that the State acknowledges and adopts the conduct in question
as its own.270
This ex post adoption of conduct which is per se not attributable and

becomes so only by a separate legal acquiescence had not been envisaged
by the R. Ago drafts. It was inserted only late in the stage of preparation
of the ASR under the lead of J. Crawford, in 1998.271 This rule is again
one of international law; there is no renvoi to the internal legal order; and
the approach is essentially normative. The endorsement of conduct can
be express or implied. There is no required form for the acknowledge-
ment and adoption. The State normally acknowledges first (i.e. accepts
the existence) and then adopts (i.e. recognizes as its own) the conduct at
stake. The gist of the matter is that a State accepts that the act or
omission in question be legally treated as its own. The acceptance can
concern only part of the conduct. If this is the case, only the accepted
part of the conduct is attributable. The endorsement has retroactive effect:
it operates an attribution ex tunc.
Copyright @ 2017. Edward Elgar Publishing.
269
Y. Sandoz, C. Swinarski and B. Zimmermann (eds), Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
1949, Geneva, 1987, p. 1057.
270
See Crawford, ILC’s, pp. 121–123; Crawford, State, pp. 181ff. For a
criticism, see e.g. J. Griebel, Die Zurechnungskategorie der de facto-Organe im
Recht der Staatenverantwortlichkeit, Münster, 2004, pp. 222ff.
271
J. Crawford, First Report, §§ 278ff.
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Attribution 89
This type of ex post endorsement should not be inferred lightly. Thus,

general verbal approval or ambiguous declarations would not be enough
to attribute conduct to a State. It is often the case that vague statements

of approval are made without, however, any assumption of responsibility.
The conduct must rather be endorsed by the State as being its own, as the
Diplomatic Staff precedent of 1980 shows (see below). The ILC has
accordingly stated that the adoption shall be ‘clear and unequivocal’.272
The matter is, however, plainly one of interpretation in the circumstances.
For example, an issue of good faith (legitimate expectations) can arise
here as elsewhere: if a State made some representations which in good
faith, i.e. reasonably, could and should have been understood by another
subject as an endorsement of conduct, attribution should occur. It must
also be stressed that the endorsement must occur through persons entitled
to bind the State. The acceptance of action by a petty official may not
bind the State, especially if the highest authorities disavow his utterances.
Conversely, the persons indicated in article 7 VCLT (1969) for their
capacity to bind the State through treaty commitments can also bind the
State to assume responsibility for an IWA.
It must further be noted that the attribution to a State may change the
qualification of a conduct as being internationally wrongful.273 A certain
conduct may not amount to a breach of an international obligation in the
phase where it is performed by, say, private individuals. But once the
State endorses this conduct, it will be considered an IWA, since it will
now contravene international obligations of the State. Thus, private
individuals are not bound by article 22 of the VCDR of 1961. They are
not, under international law, bound to abstain from infringing the
immunity of diplomatic premises (but they are bound by equivalent
municipal criminal law provisions). If the State endorses occupation of
the embassy, the attribution will turn the private conduct into an IWA,
since article 22 of the cited convention applies to the State. Finally, it
may be emphasized that if a State agrees to pay compensation for
conduct under an ex gratia heading,274 it does not thereby endorse the
272
Crawford, ILC’s, p. 123.
273
Ibid.
274
See e.g. RSDIE, vol. 9, 1999, p. 707, ex gratia payments envisaged in the
case of damages done to aliens where the State may have breached some due
diligence duty but where this is difficult to establish. In international practice, the
payments of the US to Japanese fishermen in the Pacific in the 1950s provide a
good example of such payments. The atmospheric nuclear tests of the US in the
Pacific, notably on the Bikini Islands, had produced significant fallout in the
surroundings. Areas of the high seas where the Japanese fishermen had fished for
conduct and does not make it attributable to it. It can therefore freely
choose the proportion of indemnity it wants to pay ex gratia. The whole
issue remains outside the scope of international responsibility.

In drafting article 11 ASR, the ILC had relied mainly on two
precedents, the second being more important than the first. In the
Lighthouses arbitration (1956), the arbitrators had mentioned the
endorsement by Greece of the breach of a concession contract initiated
by Crete when it was still under Ottoman control.275 It is far from clear
that this legal position would have passed to Greece under the law of
State succession. However, the endorsement clarified the matter and
allowed the attribution. Additionally, Greece had maintained in force the
former illegal practice under its own authority up to the year 1914.276 It
can obviously be argued that the holding of the arbitral tribunal is to be
considered as part and parcel only of the law of State succession. But it
is equally possible to consider that its utterance had a more general reach.
The second, essential, precedent is the Diplomatic and Consular Staff of
the US at Tehran case (1980).277 US diplomatic premises in Tehran had
been occupied by militants and students, i.e. by a series of private
persons. These were thus not agents of the Iranian State. However, the
Iranian State subsequently by decree and by several verbal declarations
expressly approved and maintained the situation. According to the ICJ,
this fact profoundly transformed the legal situation. The Iranian approval
generations were spoiled. Japan brought the matter to the attention of the US,
which was sensitive to the claims of a newly gained ally. There was a certain
propensity to pay damages on an equitable basis, but at the same time a firm
intention to maintain the position that the tests were lawful under international
law. The ex gratia payment was the best way out of the quagmire. It allowed the
US to pay the damages without binding itself for the future (see AFDI, vol. 2,
1956, pp. 309ff). More recently, the US has used the same instrument for the
payment of damages to the family members of a civilian aircraft shot down by
their military forces near the Iranian coast. The official position was that the US
acted in self-defence, i.e. lawfully under international law, and the point was not
to prejudice this position by the payment of indemnities, which could have been
interpreted as an implicit admission of guilt (see the Agreement in ILM, vol. 35,
1996, p. 553). The US also allegedly paid ex gratia for damage caused to the
Chinese Embassy in Belgrade, which was bombed during the military campaign
against Serbia in 1999: AJIL, vol. 94, 2000, pp. 127ff. Other States have
similarly had recourse to such ex gratia payments, e.g. in a convention between
the UK and Mexico for losses sustained by British citizens during revolutionary
movements in Mexico (see ICLQ, vol. 14, 1965, pp. 1199–1200, 1231–1233).
275
RIAA, vol. XII, p. 198.
276
Ibid., p. 197.
277
ICJ, Reports, 1980, p. 35, § 74.
Attribution 91
‘translated continuing occupation of the Embassy and detention of the

hostages into acts of that State’.278 Lastly, in the Eichmann abduction
affair (1960), it was not initially clear whether the persons acting on
Argentinean soil were private individuals or persons entrusted by Israel
with the mission to abduct Eichmann. If the latter were true, the
applicable provision would have been article 8 ASR; if the former were
true, the endorsement of the action could have been seen in the light of
article 11 ASR. Plainly, these provisions had not yet been drafted at that
time.
Article 11 ASR has elicited staunch criticism. This is understandable in
the light of the fact that the ILC engaged in progressive development of
international law, founded mainly on the Diplomatic Staff precedent.279 A
first criticism is that the Diplomatic Staff case does not support the rule.
The Court would have acknowledged that the approval by the highest
State organs did not modify the initially unofficial (i.e. private) character
of the action. Rather, the ‘adoption’ by Iranian authorities had shown the
involvement of the Iranian State since the first phase of the occupation of
the embassy. In this view, the endorsement was an acknowledgement that
the basis of attribution for action by State organs had existed from the
outset.280 But this reading seems rather adventurous. The ICJ states
expressis verbis that the adoption ‘fundamentally transforms the legal
nature of the situation’ and ‘translates continuing occupation [of the
embassy] into acts of the State’.281 These qualifications concern the
second phase of events and are manifestly forward looking, not back-
wards oriented. Private acts are here ‘transformed’ into public acts by the
endorsement of the Iranian authorities. It is easier to square such words
with the position taken by the ILC than with that of the critics. In fact, it
is probably true that the Iranian State had concurred with the IWA from
the outset; but the Court, rather diplomatically, envisaged the most
favourable case for Iran, namely that its organs were not implicated to
that degree from the outset and that only the ex post endorsement
transformed the legal situation.
Second, it has been said that the ex post attribution is contrary to the
fundamental logic of the rules on State responsibility. The issue of
attribution must be clear at the time of the conduct, if only for elementary
278
Ibid.
279
It has been said that this provision has no solid basis in international
practice but that it is in theory unobjectionable: L. Condorelli and C. Kress, ‘The
Rules of Attribution’, in: Crawford, Pellet and Olleson, p. 231.
280
Ibid., p. 232.
281
ICJ, Reports, 1980, p. 35, § 74.
considerations of legal certainty.282 The aggrieved State should already

know at the time of the conduct whether the State concerned is
responsible or not. This certainty may be important, for example in the

context of CM. However, these criticisms are hardly decisive. The
aggrieved State does not lose but acquires rights and faculties by the ex
post endorsement. The uncertainty as to the initial situation is thus
compensated by the extension of secondary rights in the case of later
endorsement. Further, it is frequently the case that the legal situation
changes after the conduct, e.g. by renunciation of claims, waivers,
various settlements, State succession, attribution of deeds of successful
insurrectional movements, and the like. Thus, if changes of the legal
situation with regard to responsibility are frequent, why should article 11
ASR not find its place?
Third, it has been said that article 11 marks a return to the theory of
‘complicity of the State’, which was abandoned at the beginning of the
20th century (the State is an accomplice to the unlawful acts of private
persons and thus assumes responsibility for them).283 Again, this criti-
cism fails to convince. The old-fashioned complicity theory was based on
the fiction that a State is responsible for private action through some fault
(hence the Grotian patientia vel receptus). By committing such fault,
notably through breaches of due diligence duties, the State makes itself
the accomplice of the private acts or omissions and thus engages its
responsibility. The fact that States may endorse some conduct in making
it their own is hardly a resurgence of this old Grotian theory of
complicity. The limb of fault exists nowhere in article 11 ASR. This is
true all the more since the nature of the act is precisely ‘transformed’:
formerly purely private, it now becomes in whole or in part State
conduct. The State thus does not participate in the private action. It rather
makes conduct State conduct. There is no complicity here. There is rather
transformation of action from private into State. Why should an old
misconstruction of the applicable law impede such endorsement? Why
should ex gratia endorsements remain possible but not a legally binding
endorsement? It is difficult to see a reason for such a distinction.
Fourth, it has been said that there is no practical need for such a
provision, and that the solution could simply lie in primary rules whereby
282
J. Griebel, Die Zurechnungskategorie der de facto-Organe im Recht der
Staatenverantwortlichkeit, Münster, 2004, pp. 222–223.
283
Ibid., p. 224.
Attribution 93
the State accepts liability for damage.284 It has to be said, in this regard,
that there is indeed no reason why such primary rules should not exist.
But the point is that they can only be created, for the time being, through
particular international law. There exist no such primary obligations
under general international law. And if there is endorsement under some
particular legal act, this is tantamount to saying that the State has
accepted a certain degree of attribution of the acts – which is precisely
the object of article 11 ASR.
Fifth, it has been claimed that the term ‘adoption’ contained in
article 11 is too vague, e.g. that a State which refuses to extradite a
certain person under aut dedere aut judicare could already be seen as
‘endorsing’ the criminal conduct.285 The construction is rather contrived.
It stands to reason that there are many reasons to refuse extradition. A
refusal in no way amounts to endorsing the underlying criminal conduct
that gave rise to the demand for extradition. This is all the more true
since the ILC has clearly stated that the relevant act must as such be
made an ‘act of the State’ and that the interpretation of what has been
endorsed is to be restrictive. That the term ‘adoption’ creates a grey area
of difficulties is manifest. But this is true of many other provisions of the
ASR, as the ultra vires problem has shown (distinction between action ex
qualitate and private action).
Overall there is thus no good reason to deny article 11 ASR its
standing.
6. ATTRIBUTION OF ACTS OF INSURRECTIONAL

MOVEMENTS
Article 10 ASR reads as follows:
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.
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.
284
Ibid., pp. 224–225.
285
Ibid., p. 226.

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JOBNAME: Kolb PAGE: 88 SESS: 5 OUTPUT: Thu Mar 23 12:20:45 2017

88 The international law of State responsibility

instructions received. The next of kin of the murdered US citizens thus

5. ATTRIBUTION BY AD HOC ENDORSEMENT

This ex post adoption of conduct which is per se not attributable and

This type of ex post endorsement should not be inferred lightly. Thus,

to attribute conduct to a State. It is often the case that vague statements

90 The international law of State responsibility

issue remains outside the scope of international responsibility.

‘translated continuing occupation of the Embassy and detention of the

92 The international law of State responsibility

considerations of legal certainty.282 The aggrieved State should already

responsible or not. This certainty may be important, for example in the

6. ATTRIBUTION OF ACTS OF INSURRECTIONAL

1. The conduct of an insurrectional movement which becomes the new

2. The conduct of a movement, insurrectional or other, which succeeds in

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