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THE 19TH AND EARLY 20TH CENTURIES: THE EMERGENCE OF THE CURRENT SYSTEM Not until the late 19th and early 20th centuries were the full range of doctrines that are currently conceived of as the law of responsibility for individual acts developed. The law freed itself from historical baggage stemming from Roman and Medieval conceptions. Even though they wrote over 100 years after the Peace of Westphalia, Wolff and Vattel’s concept of responsibility still had not shed the old notion of the state as a tribal unit, defined by personal membership, rather than a territorial entity. Vattel regarded the state as responsible only for acts of its citizens and not for those of foreigners operating within its territory.168 Wolff explicitly stated: “In order that doubt may not arise, on the ground that an observance of the law of nature to be encouraged by the ruler of the state applies only to citizens, but is not to be extended to foreigners . . . .”169 In the 19th century this changed. The British writer Sir Robert Phillimore, who first published his Commentaries upon International Law between 1854 and 1861,170 found that a state has to control not only the actions of its citizens, but also all actions emanating from its territory: In all cases where the territory of one nation is invaded from the country of another—whether the invading force be composed of the refugees of the country invaded, or of subjects of the other country, or of both—the Government of the invaded country has a right to be satisfied that the country from whichthe invasion has come has neither by sufferance nor reception (patientia aut receptu) knowingly aided or abetted it. She must purge herself of both these charges; otherwise . . . the invaded country is warranted in redressing her own wrong . . . .171 Phillimore makes reference to Grotius in support of his opinion.172 Yet, Phillimore’s position is really a blend of the Grotian fault-based conception of law and the modern notion of the territorial state. On top of that, he limited the practical relevance of the fault requirement by creating a presumption, which the potentially responsible state has to purge.173 Phillimore’s compatriot, William Edward Hall, took a similar position: “Prima facie a state is of course responsible for all acts or omissions taking place within its territory by which another state or the subjects of the latter are injuriously affected.”174 However, the state can escape responsibility by showing that it acted without fault (i.e., without intent or negligence) or that there exists no causal link between its negligence and the injury.175 While Hall did not manage to extricate himself from the old jus gentium requirement of fault, he nevertheless created doctrines of agency and attribution. To achieve this result he used a legal fiction: The state is responsible for the acts of its administrative officials and its naval and military commanders. Because these persons carry out state policy as well as government orders and act under the immediate and disciplinary control of the executive, their acts are presumed to be sanctioned by the state.176 The agents’ actions are attributed to the state until the latter has disavowed them and, where necessary, punished the offenders.177 In any case, the government has to make reparation for injuries incurred prior to the disavowal.178Hall acknowledged that his fiction of avowal does not really fit as far as judicial officials are concerned, since judges enjoy a large degree of freedom from executive control.179 While the state can therefore not be expected to stop the injury, it is nevertheless under a secondary obligation to give compensation.180 Hall could not elucidate why there should be compensation even though the necessary element of fault is lacking. With regard to private persons outside of the state machinery, his reasoning is again on firm ground. The state becomes responsible only if it fails to prevent, repress, or punish injurious acts of private persons (not only citizens!) within its territory.181 Conversely, the state exercises due diligence if it “honestly gives so much care as may seem to an average intelligence to be proportional to the state of things existing at the time.”182 Lassa Oppenheim’s concept of state responsibility resembled Hall’s in many respects. Oppenheim, whose treatise on international law was first published 1905-06,183 also seemed to be unable to detach himself from the leftovers of the absolutist legal order of kings. He contended that state responsibility necessitates fault in the form of intent or negligence.184 Oppenheim distinguished between original and vicarious responsibility. The former, which gives rise to “international delinquency,” is incurred for a state’s own actions, i.e., acts of members of the government and acts of lower agents or private individuals at the command or authorization of the government.185 In so far as lower agents or private individuals are concerned, it is presumably the command (or authorization), rather than the act itself, which gives rise to state responsibility. This would befit Oppenheim’s contention that acts oflower agents do not cause original responsibility of the state if these are acting outside their authority (i.e., ultra vires).186 Likewise, acts of government members do not cause original responsibility if they act only in their private capacity. As far as “original responsibility” is concerned, Oppenheim’s position mirrored the Grotian one, except that the king was now replaced by “government members acting in [their official] capacity.”187 Yet, Oppenheim went beyond Grotius by creating the new category of vicarious responsibility. Vicarious responsibility is the new branch Oppenheim grafted onto the historic stem of responsibility. It replaces Grotius’s patientia and receptus. Oppenheim faced great difficulties in his attempt to effectively create a system of attribution, while purporting to retain the concept of fault. Under the principle of vicarious responsibility the state may be held responsible for certain acts of its “agents . . . subjects, and . . . of such aliens as are for the time living within [its] territory.”188 The state is vicariously responsible for all acts of its officials and soldiers, because they are under its disciplinary control and their acts are thus prima facie acts of state.189 The state has to “disown and disapprove” of such acts by “expressing its regret or even apologizing” to the injured state and even then it has to pay damages.190 Thus, Oppenheim also employs the legal fiction of culpa in vigilando: The state is deemed to have culpably failed to exercise its disciplinary power if one of its organs steps out of line. Consequently, he is in the same predicament as Hall as far as judicial decisions are concerned. Oppenheim can only contend that “in case of such denial or undue delay of justice by the Courts as is internationally injurious, a State must find means to exercise compulsion against such Courts. And the same is valid with regard to an obvious and malicious act of misapplication of the law . . . .”191 With regard to other miscarriages of justice, he has to say that “matters become so complicated that there is hardly a peaceable way in which the injured State cansuccessfully obtain reparation . . . unless the other party consents to bring the case before a Court of Arbitration.”192 His argument with regard to private acts of heads of state is also weak. Oppenheim reasoned that heads of state are not subject to the jurisdiction of municipal courts or any other kind of disciplinary control.193 At the same time, only states have obligations under international law. Thus, an injured state cannot hold a head of state personally responsible under municipal nor international law. This “makes it a necessity for the Law of Nations to claim a certain vicarious responsibility from States for internationally injurious acts committed by their heads in private life.”194 His argument is similar with regard to vicarious responsibility for the private acts of diplomats, whose immunity shields them from municipal procedures.195 With regard to acts of private persons, Oppenheim restates the usual due diligence principle (prevent where possible, punish, compel to pay damages).196 It comes as a surprise that Hall and Oppenheim purported to retain the concepts of fault and the related concept of excluding ultra vires acts from responsibility, while they went to great lengths to create objective state responsibility. As stated earlier, the concept of fault is based on two premises Grotius made.197 First, Grotius viewed responsibility as the responsibility among kings. Second, since kings were natural persons Grotius applied the jus gentium requirement of fault to them.