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Dionisio Anzilotti and the Law of International Responsibility of States
II.
The contribution Anzilotti made to analysing the conditions for attributing a wrongful act to a State occupies a fundamental place in his work on State responsibility. For it is in this connection that he manages to systematically isolate international law as an autonomous entity in relation to municipal law, the latter constituting for him (as case-law was subsequently frequently to repeat) `a mere fact'. More generally still, acts by an individual agent are one thing and the international obligations of the State on whose account he is acting are another. In the international legal order the State's responsibility will be involved, only when individual conduct breaches an international norm prescribing particular conduct to the State:
... international law regards acts injuring or offending foreign States committed by individuals as individual acts not attributable to the State; but it combines with these acts particular international obligations, and corresponding duties; a liability of the State for a wrongful act, accordingly, arises not in consequence of the individual's action, but only from the failure to meet the obligations that international law combines therewith.15
We thus meet with a purified, simplified conception of attribution, which
... from the viewpoint of international law is nothing other than the consequence of the relationship of causality that exists between an act contrary to the law of nations and the activity of the State that is the author of that act.16
This sort of simplification clearly cannot have the effect of abolishing all relationships between municipal law and international law. But these relationships are more perceptible the more they are clarified. Thus, it is indeed the legal organization of the State itself that provides the conditions for associating an individual or agency with the State as a legal person. By being an agent of the State, an individual acting on its account is identified with it. But two clarifications are necessary.
On the one hand, imputation to the State of acts of individuals can come about only pursuant to rules of international law, which as we have seen remain indifferent to the subjective conduct of the author of the act as such, and call for a distinction between the individual's conduct and the international obligation on the State for whom he is acting. On the other hand, and there is no contradiction here, international law does not interfere with the circumstances of the State's internal organization, and is unable to establish whether the individual author of the act was or was not acting on behalf of the public authority concerned. In particular, international law remains indifferent to the distribution of competences among the various agents of the State, just as no credit can go to the notion that the State would exercise powers in the domestic order by delegation from international law. A consistent dualist, Anzilotti categorically rejected, in clear contrast with the ideas of Georges Scelle,17 any idea of involvement of international law in the sphere of domestic law, noting instead that nothing is more repugnant to States than the idea of exercising powers `granted' by international law.18
Thus the attribution of the internationally wrongful act does not bind together the municipal and international legal orders, since one (the domestic order) determines whether the immediate author of the act under consideration is an agent, while the other (the international order) attributes to the act its quality of wrongfulness. But each of these two orders nonetheless retains its autonomy vis-à-vis the other, even if the wrongfulness of the act becomes invocable internationally by attribution to the State.
The durability of Anzilotti's ideas is certainly beyond doubt. One need not necessarily adhere to the dualist view of international law to note the reciprocal position of the two legal orders in the context of the law on imputation of the wrongful act. This can be found faithfully in Articles 5 to 15 of the first part of the ILC draft on the Law of International Liability of States,19 and it may be said that the classic rules for imputing the wrongful act to the State as a person still remain thoroughly permeated by Anzilotti's conception.
15 `Le droit international considère les actes lésant ou offensant des Etats étrangers commis par des individus comme des faits individuels non imputables à l'Etat; mais, à ces faits, il rattache des obligations internationales déterminées et des droits correspondants; une responsabilité de l'Etat pour fait illicite ne naît pas par suite de l'action de l'individu, mais seulement de l'inaccomplissement des obligations que le droit international y rattache.' Supra note 2, at 491.
16 `[l'imputation,] au point de vue du droit international, n'est pas autre chose que la conséquence du rapport de causalité qui existe entre un fait contraire au droit des gens et l'activité de l'Etat dont ce fait émane.' Supra note 1, at 291.
17 On Georges Scelle's ideas see the series of articles that appeared in the 1 EJIL (1990) No. 1/2, entitled `The European Tradition in International Law: Georges Scelle'; on the idea of delegation, see esp. A. Cassese, `Remarks on Scelle's Theory of `Role Splitting', ibid., 210-229.
18 See his Corso di diritto internazionale (3rd ed., 1927), in Opere, supra note 2, at 52ff.
19 See text in ILC Yearbook (1979) Vol. 2, (part 2) 91-93, and for a particularly qualified commentary, L. Condorelli, `L'imputation à l'Etat d'un fait internationalement illicite: solutions classiques et nouvelles tendances', 189 RdC (1984-VI).
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