Dionisio Anzilotti and the Law of International Responsibility of States

Pierre-Marie Dupuy ¹

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At nearly a century's distance in time, Dionisio Anzilotti offers the spectacle, fascinating to any contemporary author, of an international lawyer who put his stamp not only on the theoretical thought of his era but also on legal practice. Rightly regarded as one of the most eminent representatives of positivist voluntarism, it may even be said that he marked the Golden Age of that school, as he was one of its greatest and most outstanding classic authors.

An unfailing indicator of the value of his work is that even today authors frequently define their own conceptions in relation to his theses. Thus, even critical reference to Anzilotti's theories is indispensable to sound legal scholarship, and it is hard to think of anyone among the great jurists of the earlier part of this century, except Hans Kelsen, who enjoy a similar privilege. It would, incidentally, be very tempting to draw a systematic comparison between these two masters; but such an analysis would risk degenerating into simplistic stereotypes, particularly if it were noted that both authors were caught up by positivism, each in a very different way. One would be viewed as the thoroughly Latin intellect, demystified and steeped in `realism'; in contrast with the other, devotee of the Germanic tradition of the essentialist search for a `pure' theory of law, as it were, irrespective of the practical conditions of its application.

However, it remains true for Anzilotti that he was concerned to give an account which approximated as closely as possible to the actual practice of States, while illuminating it by strictly defining the central concepts which he employed for technical analysis. The general enterprise of his work was thus concerned with clarifying positive law (understood in his terms as `the law in force') which he complains is too often confused with `the ideas and aspirations of doctrine'.²

As President of the Permanent International Court of Justice, Anzilotti had the opportunity both for privileged observation of the conduct of States and for direct influence over the course of international case-law. However, he distrusted incautious transfers into the international legal order of analyses or notions commonly accepted in domestic law. A great theoretician, along with Triepel, of legal dualism, he accordingly rigorously separated the municipal and international legal orders, and was always very concerned to emphasize the specific features of public international law, since its distinguishing facet is that it governs the relationships between legal subjects endowed with equal sovereignty.

The contribution of Anzilotti's work, though relatively slight as regards the sources of international law, (since for him by definition there is none apart from the will of States), is by contrast particularly rich when it comes to the general theory of international responsibility.³ More than most of his contemporaries he codified, as it were, the content of these various constitutive elements in order to state the overall theory of classical positivism in relation to international responsibility. The syntax which he more or less formulated was subsequently taken up by the majority of authors, whether in connection with the act giving rise to responsibility, the conditions for attributing the act to the State as a person or, the legal consequences of the act having been committed, and therefore, in particular, the various forms of reparation.

I.

Anzilotti's twofold objective of clarifying the theory of responsibility in international law and making it autonomous first emerged in connection with the act giving rise to responsibility. A great number of authors around the end of the last century, in particular jusnaturalists like Albert de Lapradelle - but also a considerable proportion of those claiming to be positivists - remained attached to the theory of fault, which had been inherited through municipal civil law from Roman law, or at least from the interpretation that the latter was commonly given at the time they were writing.⁴

But Anzilotti does not approach the question of the act giving rise to responsibility or the origin of responsibility from the viewpoint, close to legal philosophy, of the foundation of responsibility. On the contrary, it is through the technical conditions for attributing a wrongful act to the State that he comes up with the question of fault, in order to arrive at an objective conception of the internationally wrongful act. In the French version of his Course of International Law, he puts it this way:

Above all, one needs to determine of what the issue really consists.

`Malice and fault', in the proper senses of the words, express human will as a psychological fact, and one cannot therefore speak of them except in relation to the individual. The point is, subsequently, whether an action contrary to international law, in order to be imputable to the State, has to be caused by malice or of fault by individual agents; in other words, whether the latters' malice or fault is a condition laid down by the law in order for particular acts to lead to particular consequences for the State.⁵

Anzilotti saw many barriers to an affirmative answer to this question. Firstly, an act of an individualized agent of the State may be in absolute conformity with its municipal law while being at the same time an infringement of international law. Secondly, any search for fault is `uncertain and fleeting' due to both its psychological components and the difficulty of correctly interpreting from an external viewpoint the relevant provisions of domestic law.

Returning, therefore, to the conceptions developed by Grotius, who was traditionally understood as an adherent to the idea that there is no responsibility or liability without fault, Anzilotti asserted that:

... in reality, this doctrine may equally be understood in the sense that international liability is born not of an act of an individual but of an act of the State; putting it better, that the act wrongful in the eyes of international law exists not for the mere reason that an offence has been committed, but for the reason that the agents have in this connection engaged in particular conduct.⁶

Anzilotti thus purifies the conception of the act giving rise to liability in order to free it of any subjective connotation or link with domestic legality, by providing it with an objective conception. The act or `wrongful act' results only from the gap existing between the actual conduct of the State (by intermediary of its agents) and the substance of the rule of law applicable in the situation considered: `the internationally wrongful act is an act contrary to objective international law'.⁷ In other words, it is because it is imputed to the State that the individual fault is made an objective breach of law.

Reconciling logic and realism, Anzilotti pushes this conception to its ultimate consequences, thus, by rejecting legal fictions customarily maintained in order to attach to the State the internationally wrongful conduct of its individual agents: that of culpa in eligendo, the deputed fault committed by it in choosing its agents, or of culpa in vigilando, or negligence committed in supervising their acts.⁸ Notwithstanding, this sort of `objective' conception of the act giving rise to responsibility should not be confused with so-called objective liability, namely that `for activities not forbidden by international law' which is founded on a primary obligation to make reparation.⁹

This legal construct has aroused a number of criticisms, particularly in its application to certain types of offence such as those provoked by omission; one may in particular think of the wrongful act constituted by the lack of diligence of the State, a contemporary example being the abstention by the authorities of the Islamic Republic of Iran in the initial stages of the taking hostage of American diplomats in Tehran.¹⁰ It is submitted that another criticism that can be made is that this objective conception does not give a faithful account of all situations in which primary obligations make the legality of the conduct they cover depend on its conformity with certain motives or certain purposes, as can be found particularly, for example, with regard to conditions for nationalization of foreign private assets, the definition of aggression, or the various specific applications of the principle of non-discrimination.¹¹

Nonetheless, for decisive reasons which shall be returned to later, Anzilotti's doctrine on this point rapidly secured the support of his contemporaries. We can subsequently find analyses thoroughly concordant with his, particularly in the general courses given at The Hague Academy of International Law by various important authors in the 1930s.¹²

One might add that in fifty years the conception of the internationally wrongful act adopted by the International Law Commission on the basis of Professor Roberto Ago's remarkable reports, does not depart from Anzilotti's theories, but on the contrary completes their consecration;¹³ even if one may note that the current special rapporteur, Professor Gaetano Arangio Ruiz, tends to favour partial reintroduction of fault, particularly in assessing the consequences of the implementation of the responsibility of States.¹⁴

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1 Professor at the University of Panthéon-Assas (Paris 2).

2 Anzilotti, `La responsabilité internationale des Etats à raison des dommages soufferts par des étrangers', RGDIP (1906) 14.

3 See esp. Anzilotti, Corso di diritto internazionale (3rd ed. 1927), reprinted in Opere di Dionizio Anzilotti, Vol. 1 (1964) (hereafter referred to as Opere). This work was translated into French by Gilbert Gidel under the title Cours de droit international (1929), of which Vol. 1, 466-534, entitled `Internationally Wrongful Acts', deals with the essential points of the general theory of responsibility. See also ibid., note 1, and, in Italian, Teoria generale della responsabilità dello Stato nel diritto internazionale (1902), reprinted in the Scritti di diritto internazionale pubblico, Vol. 1 (1956) 1ff.

4 The commonly accepted idea, taken up by Anzilotti himself, was the affirmation that `the basis of liability in Roman law, so rigidly individualistic, was specifically fault' (G. Gidel, ibid., 497). However, more recent works by Romanists have stressed that if the theory of `culpa' is indeed Roman, it plays only an incidental part in the provisions on liability and does not constitute the cause of the obligation to make reparation. The advance of the theory of fault is held in fact to be later, and was due essentially to the tradition of natural law, in its various aspects. See esp. M. Villey, `Esquisse historique sur le mot responsable', Archives de philosophie du droit, 22; La responsabilité (1977) 45-62; A. Lebigre, Quelques aspects de la responsabilité pénale en droit romain classique (1967).

5 `Avant tout, il est nécessaire de déterminer en quoi consiste véritablement la question.
Le dol et la faute, dans les sens propres du mot, expriment les manières d'être de la volonté comme fait psychologique et on ne peut donc en parler qu'en se rapportant à l'individu. Il s'agit, par suite, de voir si l'attitude contraire au droit international, pour être imputable à l'Etat, doit être l'effet du dol ou de la faute des individus-organes, en d'autres termes, si le dol ou la faute de ceux-ci est une condition que le droit établit pour que des faits déterminés produisent pour l'Etat des conséquences déterminées.' G. Gidel, supra note 2, at 498.

6 `En réalité, cette doctrine peut également s'entendre simplement en ce sens que la responsabilité internationale ne naît pas d'un fait de l'individu mais d'un fait de l'Etat; pour mieux dire, que le fait illicite au regard du droit international, n'existe pas pour la simple raison qu'un délit a été commis, mais pour la raison que les organes ont tenu, à tel égard, une certaine conduite.' G. Gidel, ibid., at 503.

7 Supra note 1, at 14.

8 Ibid., at 287; G. Gidel, supra note 2, at 501.

9 On this distinction, see esp. P.-M. Dupuy, `Le fait générateur de la responsabilité internationale des Etats', RdC (1984-V) 61ff. and 188, and P.-M. Dupuy, `The International Law of State Responsibility: Revolution or Evolution?', Michigan Journal of International Law (1989) 105-126.

10 See the judgment of the International Court of Justice in the case relating to the diplomatic and consular staff of the United States in Tehran, ICJ Reports (1980) 3, at paras. 32 and 67ff; on responsibility for omission of due diligence see R. Pisillo Mazzeschi, `Due Diligence' e responsabilità internazionale degli stati (1989) 418; P.-M. Dupuy, `Due Diligence in the International Law of State Responsibility', in Legal Aspects of Transfrontier Pollution (1977) 369-379.

11 P.-M. Dupuy, `Le fait générateur de la responsabilité internationale des Etats', supra note 8, at 33ff.; P.-M. Dupuy, `Faute de l'Etat et fait international illicite', Droits (1987) 5, 51ff.

12 See esp. Bourquin, `Règles générales du droit de la paix', 35 RdC (1931-I) esp. 218ff; Strupp, `Les règles générales du droit de la paix', 47 RdC (1934-I) esp. 561; Basdevant, `Règles générales du droit de la paix', 58 RdC (1936-IV) esp. 668.

13 See the text of all articles in the first part of the Draft Codification of the Law of International Liability of States in ILC Yearbook (1980) Vol. 2, second part, 29ff., and in particular article 1: `Every internationally wrongful act of a State engages its international liability'.

14 See Arangio Ruiz, `State Fault and the Forms and Degrees of International Responsibility: Questions of Attribution and Relevance, contribution to Mélanges Michel Virally', Le droit international au service de la paix, de la justice et du développement (1991) 25-44; see also G. Arangio Ruiz's second report to the International Law Commission, UN.4/426/Add., 22 June 1989, 3ff.

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