State responsibility From the standpoint of International Law and of the Court which is its organ, municipal laws ... express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures.109 Thus, article 4 covers organs, whether they exercise “legislative, executive, judicial or any other functions”. This language allows for the fact that the principle of the separation of powers is not followed in any uniform way, and that many organs exercise some combination of public powers of a legislative, executive or judicial character. Moreover, the term is one of extension, not limitation, as is made clear by the words “or any other functions”.110 It is irrelevant for the purposes of attribution that the conduct of a State organ may be classified as “commercial” or as acta iure gestionis. Of course, the breach by a State of a contract does not as such entail a breach of international law.111 Something further is required before international law becomes relevant, such as a denial of justice by the courts of the State in proceedings brought by the other contracting party. But the entry into or breach of a contract by a State organ is nonetheless an act of the State for the purposes of article 4,112 and it might in certain circumstances amount to an internationally wrongful act.113 (7) Nor is any distinction made at the level of principle between the acts of “superior” and “subordinate” officials, provided they are acting in their official capacity. This is expressed in the phrase “whatever position it holds in the organization of the State” in article 4. No doubt lower-level officials may have a more restricted scope of activity and they may not be able to make final decisions. But conduct carried out by them in their official capacity is nonetheless attributable to the State for the purposes of article 4. Mixed commissions after the Second World War often had to consider the conduct of minor organs of the State, such as administrators of enemy property, mayors and police officers, and consistently treated the acts of such persons as attributable to the State.114 109 Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, at p. 19. 110 These functions might involve, e.g. the giving of administrative guidance to the private sector. Whether such guidance involves a breach of an international obligation may be an issue, but as “guidance” it is clearly attributable to the State. See, e.g., GATT, Report of the Panel, Japan–Trade in Semi-conductors, 24 March 1988, paras. 110–111; and WTO, Report of the Panel, Japan–Measures affecting Consumer Photographic Film and Paper (WT/DS44/R), paras. 10.12–10.16. 111 See article 3 and commentary. 112 See, e.g., the decisions of the European Court of Human Rights in Swedish Engine Drivers’ Union v. Sweden, Eur. Court H.R., Series A, No. 20 (1976), at p. 14; and Schmidt and Dahlström v. Sweden, ibid., Series A, No. 21 (1976), at p. 15. 113 The irrelevance of the classification of the acts of State organs as iure imperii or iure gestionis was affirmed by all those members of the Sixth Committee who responded to a specific question on this issue from the Commission (see Yearbook ... 1998, vol. II (Part Two), p. 17, para. 35). 114 See, e.g., the Currie case, UNRIAA, vol. XIV (Sales No. 65.V.4), p. 21, at p. 24 (1954); Dispute concerning the interpretation of article 79 (footnote 106 above), at pp. 431–432; and Mossé case, UNRIAA, vol. XIII (Sales No. 64.V.3), p. 486, at pp. 492–493 (1953). For earlier decisions, see the Roper case, ibid., vol. IV (Sales No. 1951. V.1), p. 145 (1927); Massey, ibid., p. 155 (1927); Way, ibid., p. 391, at p. 400 (1928); and Baldwin, ibid., vol. VI (Sales No. 1955.V.3), p. 328 (1933). Cf. the consideration of the requisition of a plant by the Mayor of Palermo in ELSI (see footnote 85 above), e.g. at p. 50, para. 70. 41 (8) Likewise, the principle in article 4 applies equally to organs of the central government and to those of regional or local units. This principle has long been recognized. For example, the Franco-Italian Conciliation Commission in the Heirs of the Duc de Guise case said: For the purposes of reaching a decision in the present case it matters little that the decree of 29 August 1947 was not enacted by the Italian State but by the region of Sicily. For the Italian State is responsible for implementing the Peace Treaty, even for Sicily, notwithstanding the autonomy granted to Sicily in internal relations under the public law of the Italian Republic.115 This principle was strongly supported during the preparatory work for the 1930 Hague Conference. Governments were expressly asked whether the State became responsible as a result of “[a]cts or omissions of bodies exercising public functions of a legislative or executive character (communes, provinces, etc.)”. All answered in the affirmative.116 (9) It does not matter for this purpose whether the territorial unit in question is a component unit of a federal State or a specific autonomous area, and it is equally irrelevant whether the internal law of the State in question gives the federal parliament power to compel the component unit to abide by the State’s international obligations. The award in the “Montijo” case is the starting point for a consistent series of decisions to this effect.117 The French-Mexican Claims Commission in the Pellat case reaffirmed “the principle of the international responsibility ... of a federal State for all the acts of its separate States which give rise to claims by foreign States” and noted specially that such responsibility “... cannot be denied, not even in cases where the federal Constitution denies the central Government the right of control over the separate States or the right to require them to comply, in their conduct, with the rules of international law”.118 That rule has since been consistently applied. Thus, for example, in the LaGrand case, ICJ said: Whereas the international responsibility of a State is engaged by the action of the competent organs and authorities acting in that State, whatever they may be; whereas the United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings; whereas, according to the information available to the Court, implementation of the measures indicated in the present Order falls within the jurisdiction of the Governor of Arizona; whereas the Government of the United States is consequently under the obligation to transmit the present Order to the said Governor; whereas the Governor of Arizona is under the obligation to act in conformity with the international undertakings of the United States.119 115 UNRIAA, vol. XIII (Sales No. 64.V.3), p. 150, at p. 161 (1951). For earlier decisions, see, e.g., the Pieri Dominique and Co. case, ibid., vol. X (Sales No. 60.V.4), p. 139, at p. 156 (1905). 116 League of Nations, Conference for the Codification of International Law, Bases of Discussion … (see footnote 104 above), p. 90; Supplement to Vol. III … (ibid.), pp. 3 and 18. 117 See Moore, History and Digest, vol. II, p. 1440, at p. 1440 (1874). See also De Brissot and others, Moore, History and Digest, vol. III, p. 2967, at pp. 2970–2971 (1855); Pieri Dominique and Co. (footnote 115 above), at pp. 156–157; Davy case, UNRIAA, vol. IX (Sales No. 59.V.5), p. 467, at p. 468 (1903); Janes case (footnote 94 above); Swinney, UNRIAA, vol. IV (Sales No. 1951.V.1), p. 101 (1925); Quintanilla, ibid., p. 101, at p. 103 (1925); Youmans, ibid., p. 110, at p. 116 (1925); Mallén, ibid., p. 173, at p. 177 (1927); Venable, ibid., p. 218, at p. 230 (1925); and Tribolet, ibid., p. 598, at p. 601 (1925). 118 UNRIAA, vol. V (Sales No. 1952.V.3), p. 534, at p. 536 (1929). 119 LaGrand, Provisional Measures (see footnote 91 above). See also LaGrand (Germany v. United States of America), Judgment, I.C.J.Reports 2001, p. 466, at p. 495, para. 81.