Keitner: Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted Categorizing Acts by State Officials: Attribution and Responsibility in the Law of Foreign Official Immunity (Duke Journal of Comparative & International Law, forthcoming). Here's the abstract:

During the late nineteenth and early twentieth centuries, jurists elaborated principles of attribution in the context of the international law of State responsibility. State practice in the late nineteenth and early twentieth centuries was divided on the question of whether to attribute ultra vires acts to the State for the purposes of State responsibility. Faced with these divided views, the International Law Commission (ILC) ultimately chose to adopt a broad attribution rule in order to promote clarity and facilitate recovery. The ILC did not consider the potential implications of attributing an official’s ultra vires act to the State for the doctrine of foreign official immunity. This article explores the genesis of the ILC’s decision to codify a broad attribution rule in the Draft Articles on State Responsibility, and its unintended consequences for the doctrine of foreign official immunity. Understanding the origins and implications of the ILC’s broad approach to attribution in the law of State responsibility can help us move beyond an overly simplistic reliance on attribution as the sole criterion for delineating the scope of foreign official immunity in two ways: first, by encouraging decision-makers to differentiate explicitly between acts that fall into what I call Category One, in which attribution to the State discharges the individual from personal responsibility, and those that fall into what I call Category Two, in which attribution to the State does not discharge the individual from personal responsibility; and, second, by emphasizing that the trade-offs involved in developing principles of responsibility and immunity for States may overlap with, but are not identical to, the trade-offs involved in developing principles of responsibility and immunity for individuals. Only by unpacking these categories — which are not monolithic — can we move towards a more conceptually and doctrinally coherent account of conduct-based immunity.