s tat e r e s p o n s i b i l i t y
789
Government Railway mistakenly appropriated neutral property during
the Boer War. It was held that there was still liability despite the honest
mistake and the lack of intention on the part of the authorities to appro-
priate the material in question. The key was that the action was within
the general scope of duty of the official. In the
Sandline
case, the Tribunal
emphasised that, ‘It is a clearly established principle of international law
that acts of a state will be regarded as such even if they are
ultra vires
or
unlawful under the internal law of the state . . . their [institutions, officials
or employees of the state] acts or omissions when they purport to act in
their capacity as organs of the state are regarded internationally as those
of the state even though they contravene the internal law of the state.’
62
Article 7 of the ILC Articles provides that the conduct of an organ or
of a person or entity empowered to exercise elements of governmental
authority shall be considered an act of the state under international law
if acting in that capacity, even if it exceeds its authority or contravenes
instructions.
63
This article appears to lay down an absolute rule of lia-
bility, one not limited by reference to the apparent exercise of authority
and, in the context of the general acceptance of the objective theory of
responsibility, is probably the correct approach.
64
Although private individuals are not regarded as state officials so that
the state is not liable for their acts, the state may be responsible for failing
to exercise the control necessary to prevent such acts. This was emphasised
in the
Zafiro
case
65
between Britain and America in 1925. The Tribunal
held the latter responsible for the damage caused by the civilian crew of
a naval ship in the Philippines, since the naval officers had not adopted
effective preventative measures.
State control and responsibility
Article 8 of the ILC Articles provides that the conduct of a person or
group of persons shall be considered as an act of state under international
62
117 ILR, pp. 552, 561. See also
Azinian
v.
United Mexican States
121 ILR, pp. 1, 23;
SPP(ME)
Ltd
v.
Egypt
106 ILR, p. 501 and
Metalclad Corporation
v.
United Mexican States
119 ILR,
pp. 615, 634.
63
See ILC Commentary 2001, p. 99 and see also
Yearbook of the ILC
, 1975, vol. II, p. 67.
64
See e.g. the
Caire
case, 5 RIAA, p. 516 (1929); 5 AD, p. 146; the
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