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1 He applied the Roman legal principle of “qui in culpa non est, natura ad nihil tenetur” both to torts between individuals and responsibility between sovereigns.136 Whether the subject was a petty criminal or a king was of no relevance to him, and this led him to misrepresent the position of the Roman jus gentium on the international level. Assuming that the sovereign fully controlled his lands and subjects also would have been practically unrealistic. Grotius wrote De Jure Belli Ac Pacis in 1623 and 1624, while the Thirty Years’ war was raging.137 Thus, it comes as no surprise that he finds that kings cannot be expected to control all actions of their mercenary armies abroad. “In truth we could not avoid utilizing the services of wicked men, that otherwise an army cannot be collected,” he reasoned in support of his concept of limited responsibility.138 Even after the war, when Zouche andPufendorf were writing, the factual power of the ruler only (and at best) extended to the political realm. In the religious sphere, Martin Luther had freed the human being from the bondages of membership in the universal church and turned him into an individual in front of God.139 Calvin’s teachings, which legitimized interest-based lending and encouraged profit-oriented activity, laid the foundation for the rise of a middle class and the economic liberation of the individual citizen.140 Sir Henry Maine has characterized the shift from ancient to modern society as one from status as the key legal paradigm to contract, from family dependency to individual obligation.141 With this shift members became individuals and the state no longer could be expected to assume full responsibility for these individuals’ actions. Yet, the remnants of the pre-Westphalian international legal order still are detectable. To Grotius, the king was responsible for controlling the actions of his subjects and not the actions occurring within his lands. This differs from the current position, which requires a state to control actions in its territory. It is a reflection of the fact that the pre-Westphalian state was a tribal, and not a territorial, unit. Only in the 19th century would these remnants be overcome and the concept of due diligence based on territorial, rather than personal, control emerge. V. 18TH CENTURY: (RE-) EXPANSION OF STATE RESPONSIBILITY The 18th and 19th centuries were characterized by a gradual (re-) expansion of state responsibility. The replacement of the king with the state as the subject of international law slowly took hold in the writings of the 18th century publicists and allowed them to develop new doctrines of responsibility. Building on Grotius’s writings, Christian Wolff, who wrote his main work, Jus Gentium Methodo Scientifica Per Tractatum, in 1749,142 was one of the writers expanding the doctrines of responsibility. Wolff reiterated the Grotian concept of due diligence. The state ought not to allow any of its subjects to injure foreign nationals.143 If an injury nevertheless occurs, the ruler is required to compel the offender to repair the loss or, where a criminal act is concerned, punish the offender.144 This being said, an action of a single citizen is not itself imputable to the nation because “one citizen and an entire nation are not one and the same person, as is self-evident.”145 One should note that, unlike Grotius, Wolff juxtaposed “citizen” and “nation,” rather than “subject” and “king.” At the same time, Wolff is the first writer to introduce the doctrines that we today conceive of as doctrines of attribution or imputability. In this way, he managed to overcome the Grotian equation of ruler and nation, not only in his formal choice of words, but also in substance. This seems remarkable given that Wolff has been aptly described as “an apostle of absolutism.”146 Yet, the specific form of state absolutism to which he adhered was the enlightened absolutism represented by the Prussian King Frederick the Great.147 Whereas absolute monarchism, as pronounced by authors like Jacques-Benigne Bossuet, legitimized the sovereign by the divine will of God,148 Frederickian absolutism justified the ruler’s position as one of a necessary servant to state and people.149 The majesty of the state stands above that of the ruler. Thus, Wolff was able to conceive of the state as an entity separate from the king. As anabstract entity it can and must have organs. The German writer developed the notion of attribution by adoption, which the International Court of Justice applied in the Tehran case:150 According to Wolff an act is imputed to the ruler of a state—and “consequently . . . to the nation itself”—if the ruler ratifies or approves the act of the individual.151 Wolff also seems to be the first writer to accept that a state could be responsible for the acts of individuals it employs as its agents without there being the need of fault on behalf of the ruler himself: The acts of a private citizen are not the acts of the nation to which he is subject, since they are not done as by a subject or so far as he is a subject. . . .The situation is different if he acts by order of the ruler of the state, whom he obeys as a superior.152 The last sentence of the quoted section could mean that responsibility is assumed because the specific act was done “by order” of the ruler. In that case, one would not deal with a case of agency but with one of responsibility for an intentional act of the ruler himself. However, if that were the case the second half of the sentence would be inexplicable. It is more sensible to assume that Wolff meant that acts are imputable solely because a general order-obedience relationship (i.e., a relation of agency) exists between the ruler and the individual. The latter alternative also corresponds with references to agency in other parts of Wolff’s work. For instance, Wolff argues that promises made by minor authorities in war are binding upon the state if the promise remains “within the limits of [the minor authority’s] mandate, or of the function entrusted to it . . . .”153 To Wolff’s successor in thought, Emmerich de Vattel, responsibility did not mean obligations between sovereign kings either. In his main work of 1758, Le Droit de Gens, 154 he writes: “of the observance of justice between nations” [emphasis added].155 Nations he defines—undoubtedly influenced by Hobbes—as “bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.”156 His writings are still rooted in the jus gentium—as the title of his work suggests. According to Vattel, international law originates from the “law of nature.”157 Unlike Grotius, however, he realized that: A state or civil society is a subject very different from an individual of the human race; from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights; since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different. . . . There are cases, therefore, in which the law of Nature does not decide between state and state in the same manner as it would between man and man.158 Nevertheless, he seems unable to detach himself from the basic paradigm stemming from the private branch of the jus gentium that assigns responsibility only where there is fault. Unlike Wolff, he states nowhere that actions of officials are attributable to the nation. Instead, his starting point is again the sovereign. Vattel writes that “the sovereign ought not to suffer the citizens to do an injury to the subjects of another state . . . and this, not only because no sovereign ought to permit those who are under his command to violate the precepts of the law of nature.”159 If he tolerates injurious private action, “he does no less injury to that nation than if he injured it himself.”160 Vattel clarified: [A]s it is impossible for the best regulated state, or for the most vigilant and absolute sovereign, to model at his pleasure all the actions of his subjects, and to confine them on every occasion to the most exact obedience, it would be unjust to impute to thenation or the sovereign every fault committed by the citizens.161 From Wolff he takes over the concept of attribution by adoption.162 Vattel forms one new doctrine. A nation is generally responsible for the crimes of its citizens, he argues, “when, by its manners, and by the maxims of its government, it accustoms and authorises its citizens indiscriminately to plunder and maltreat foreigners, to make inroads into the neighbouring countries &c.”163 Accordingly, he deems retributive action of all nations against the Uzbek nation and the states of Barbary, which he terms “ces repaires d’ecumeurs ´ ,”164 as justified. The idea introduced by Vattel still resounds in the ILC’s Draft Articles. Where the Draft Articles hold a state responsible for the actions citizens undertake “in the absence or default of the official authorities,”165 one is not really dealing with “an agency of necessity” but with a failure to organize the manners and maxims of government appropriately. Vattel also recognized a principle, stated by Grotius, that requires the sovereign to effect reparation of damages caused by a subject, to punish the offender, or to extradite him.166 It must be noted in this regard that some legal practitioners of the time, who already grounded their argument in legal positivism, demanded less than an absolute duty to effect reparation. A report of the British Law Officers from 1753 regarded