Where is R2P grounded in international law? Anne-Marie Judson A ...

of international law, the conduct of any organ of a state must be regarded as an act of
that state. This rule (…) is of customary nature”. 113
There is no distinction between government organs and commercial organs of the
state. In a decision of the European Court of Human Rights in Swedish Engine Drivers
Union v. Sweden 114 it was stated that it does not matter for the purposes of attribution
that the conduct of the state may be classified as commercial or as acta iure gestionis.
All parts of the state must act in accordance with international law and it is the state’s
responsibility to ensure that its constitutive parts are undertaking implementation.
This has been consistently applied with reference to the La Grand case whereby the ICJ
held that “the Government of the United States is consequently under the obligation
to transmit the present order (…) whereas the Governor of Arizona is under the
obligation to act in conformity with the international undertakings of the United
States’. 115 It does not matter that an official is acting ultra vires of his or her official
position. The Claire case showed us that exclusion from responsibility is only possible
when the act had no connection with the official function and was an act of a private
individual. 116 If the state official is acting ultra vires in his official capacity the
attribution of responsibility remains with the state.
Article 5 of the Responsibility of States for Internationally Wrongful Acts (2001),
contends that the conduct of a person or entity which is not an organ of the state
under Article 4 but which is empowered by the law of that state to exercise elements
of the governmental authority shall be considered an act of the state under
international law, provided that the person or entity is acting in that capacity in that
particular instance. 117 For the purposes of attribution any entity, public or private,
that is exercising elements of government authority is considered an act of the state.
Again the preparatory committee for the 1930 Hague conference outlines some
support from governments for the attribution of conduct of autonomous bodies
113 ibid page 40 ILC, International Law Commission. (2001). Draft Articles on the Responsibilities
of States for internationally wrongful Acts with commentaries A/56.10. United Nations.
114 See page 41 ILC commission commentary, as well as European Court Human Rights Series a,
number 21, (1976) page 14
115 See LaGrand (Germany v. United States) (Judgment) (2001) ICJ reports 466 and LaGrand
(Germany v. United States) (Provisional measures) (1999) ICJ reports 9
116 See Caire claim (1929) 5 RIAA 516
117 ILC page 42,
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