This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally – within their territories – and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law.
The United Nations General Assembly, in its Resolution 56/83,125
adopted as its Annex the International Law Commission’s Responsibility of States for Inter-nationally Wrongful Acts which recognizes that every internationally wrongful act of a State entails the international responsibility of that State126
and that there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law and constitutes a breach of an international obligation of the State.127
Article 5 of the ILC document provides that the conduct of a person or entity which is not an organ of State but which is empowered by the law of that State to exercise elements of the govern-mental authority shall be considered an act of State under international law, provided the person or entity is acting in that capacity in the particular instance.
In the Pan Am case, where an aircraft was destroyed over Lockerbie, which has been referred to earlier in this article, the British allegation against Libya’s involve-ment in the act of terrorism was that the accused individuals (Libyan nationals) had acted as part of a conspiracy to further the purposes of the Libyan Intelligence Services using criminal means that amounted to terrorism. The United Kingdom appeared to stress the point in the UN Security Council that Libya had failed to respond to the request for extradition of the implicated Libyan nationals, and arguably as a consequence, the Security Council adopted Resolution 731 on 21 January 1992 which expressed concerns over certain investigations which imputed reprehensibility to of.cials of the Libyan Government.128
The above discussion leads one to conclude that the responsibility of a State for private acts of individuals which unlawfully interfere with civil aviation is deter-mined by the quantum of proof available that could establish intent or negligence of the State, which in turn would establish complicity or condonation on the part of the State concerned. One way to determine complicity or condonation is to establish the extent to which the State adhered to the obligation imposed upon it by international law and whether it breached its duty to others. In order to exculpate itself, the State concerned will have to demonstrate that either it did not tolerate the offence or that
124Report of the International Law Commission to the General Assembly on the Work of the 1st
Session, A/CN.4/13, June 9 1949, at 21.
125A/RES/56/83, 56th Session, 28 January 2002.
126A/RES/56/83, Article 1.
127A/RES/56/83, Article 2.
128For a discussion on this point see Jorgensen (2000, pp. 249–254).
it ensured the punishment of the offender. Brownlie is of the view that proof of such
breach would lie in the causal connection between the private offender and the State.129
In this context, the act or omission on the part of a State is a critical determinant particularly if there is no speci.c intent.130
Generally, it is not the intent of the offender that is the determinant but the failure of a State to perform its legal duty in either preventing the offence (if such was within the purview of the State) or in taking necessary action with regard to punitive action or redress.131
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