340 / 536
326
PAVEL CABAN
CYIL 7 ȍ2016Ȏ
attribution of the conduct of an organ of a state or of a person or entity empowered to
exercise elements of the governmental authority in situations of excess of authority or
contravention of instructions) of the International Law Commission’s Draft Articles on
the Responsibility of States for InternationallyWrongful Acts, the judges of the House
of Lords opined that “international law does not require, as a condition of a state’s
entitlement to claim immunity for the conduct of its servant or agent, that the latter
should have been acting in accordance with his instructions or authority. A state may
claim immunity for any act for which it is, in international law, responsible, save
where an established exception applies”, and that “[i]t has until now been generally
assumed that the circumstances in which a state will be liable for the act of an official
in international law mirror the circumstances in which the official will be immune
in foreign domestic law. There is a logic in this assumption: if there is a remedy
against the state before an international tribunal, there should not also be a remedy
against the official himself in a domestic tribunal. The cases and other materials on
state liability make it clear that the state is liable for acts done under colour of public
authority, whether or not they are actually authorised or lawful under domestic or
international law.”
52
Ms. Concepción Escobar Hernández, the second Special Rapporteur on the
topic of the immunity of state officials from foreign criminal jurisdiction dealt with
this issue in her fourth report of 2015 and came, in some respects, to rather different
conclusions.
53
In the opinion of the Special Rapporteur, “it is questionable whether
all the criteria for attribution contained in the articles on responsibility of States for
internationally wrongful acts are useful for the purposes of immunity. Particularly
unsuitable are the criteria set out in articles 7, 8, 9, 10 and 11.”
54
The arguments of
the Special Rapporteur concerning the non-applicability of article 7 seem to be based
on the suggestion that, while the conduct in question is attributable to the state for
the purpose of the responsibility of states, “the attribution of their acts to the State
for the purposes of immunity cannot be justified”, since the “officials acted for their
own benefit or in a manner that was inconsistent with or exceeded the mandate
that the State had conferrred on them”.
55
Article 8 covering the conduct of
“de facto
officials”
should not be, in her opinion, applicable, “as it seems unreasonable that the
State could claim immunity for individuals to whom it had not voluntarily conferred
the status of organ or person authorized to exercise elements of the governmental
authority, or with whom it had not established a special link of dependence and
effective control at the time of commission of the acts that constitute the material
element with regard to immunity.” As regards article 9 (which deals with a conduct
carried out in the absence or default of the official authorities), according to the
52
Jones v. Saudi Arabia,
op. cit
. sub 51, paras. 12, 74 and 78.
53
Fourth Report of the Special Rapporteur, 67th session of the ILC, 2015, doc. A/CN.4/686, pp. 48-51.
54
Ibid.
, p. 49.
55
Ibid.
, p. 50.