Private Law Analogies and the Evolution of International State Responsibility for Acts of Non-Governmental Entities Exercising Decentralized/Privatized Governmental Functions

Abstract

Can a State be held legally responsible for wrongs committed by a non-governmental entity (individual or corporation) on the basis that the entity committed them while performing governmental functions on behalf of the State? The affirmative answer of international law to this question relying on concepts that are analogous to concepts of domestic private law constitutes the focus of this article. This article looks at the evolution of a general principle of international law which states that the wrongful act of a non-governmental entity performing governmental functions is to be deemed State action for which the State is responsible. This principle which extends beyond regular government organs, the scope of entities whose wrongful conduct may be attributed to the State for liability purposes, constitutes one of public international law’s responses to the increasing decentralization and privatization of public interest functions (such as rail transportation, water supply, social security, health care, prisons and immigration control). Proceeding from the viewpoint that elements of this principle bear a close analogy to legal relations established by the respective concepts of vicarious liability, the non-delegable duty and strict liability in domestic tort law, this article sheds light on the unique manner in which international law has made use of these private law analogies to impose liability on the State for conduct of non-governmental entities. The very reliance of international law, under this principle, on the concept of the governmental functions as a basis for apportioning responsibility has also been criticised as being out of touch with the present day reality of an erosion of boundaries between government/public and private spheres of activity. The article sets out to demonstrate with the aid of international case law that this reliance is not entirely misplaced. Rather, the approach of international law provides valuable lessons for national and regional legal orders regarding the proper division of competences and tortious liability between State and private sectors.