A Study Of Attribution And Due Diligence In State Responsibility

In the development of the international law, there is an inherent problem: in what circumstances do the subjects of international law shall bear responsibility for actions of individuals? Over the centuries, the standard according to which international law has held its subjects accountable for actions of individuals has varied greatly. This Article traces the historical development of the two contemporary doctrines that concern themselves with this question: the doctrine of attribution and the doctrine of due diligence.The article first shows how the nature of the state responsibility and its relation to its members, which has continuously changed over the centuries, are constantly reflected in these two doctrines.The concern of the doctrine of attribution is to establish that there is an act of the State for the purpose of responsibility and says nothing about the legality of that conduct. States are responsible for the acts or omissions of individuals exercising the state's "machinery of power and authority," since these actions are attributed to the state even if the acts exceeded the authority granted by the state. Acts which can be attributed to state have three categories: acts of state organs, acts of non-state entities and the acts of insurrections.The conduct of an organ of the State is attributable to that State. The State organ covers all the individual or collective entities which make up the organization of the State and act on its behalf. As for the attribution of non-state entity, the conduct of a person or entity which is not a organ of the State but which is enpowered by the law of that State to exercise elements of the governmental authority or which constitutes the defacto agents of the state shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.Acts or omissions of non-state actors are themselves generally not attributable; however, the state may incur responsibility if it fails to exercise due diligence in preventing or reacting to such acts or omissions. An analysis of international practice shows that the due diligence rule has been applied in the areas of customary international law concerning: a) the security of aliens and representatives of foreignStates; b) the security of foreign States; and c) the conservation of the environment. Within the context of general State duty towards aliens and representatives of foreign States, there are two duties: first, the obligation to try to prevent harmful acts of individuals and; second, the obligation, when a harmful acts has occurred, to punish those responsible.Concerning the security of foreign States, an examination of the practice shows that due diligence rule is relating to the duty to pay due diligence not to tolerate the use of its territory for hostile actions against another State.In the field of the international environment law, a customary rule exists today which binds the State to oversee activities carried on in the spaces subject to its jurisdiction and over activities subject to its control so that such activities do not cause significant environmental harm either to the territory or the resources of other States or to common space and resources. According to some authors, today international customary law also places procedural obligations on the States to cooperate with regard to the environment; that is, obligations of assessment of harm, prior notification and of consultation in the case of activities involving environmental hazard.The study of the two doctrines is of great meaning, especially for China. It can help to make better understanding of When do States bear responsibility for actions of individuals, in order for the State to make better decision in international practice.