Die Anfänge der völkerrechtlichen Organleihe

The article describes the beginning of the »lending of state's organs«. Nowadays it is acknowledged among experts in international law that the conduct of an organ placed at the disposal of a state by another state shall be considered an act of the former state under international law if the organ was acting in the exercise of elements of the governmental authority of the state at whose disposal it had been placed. This legal conception is based on the principle that the entity which exercises effective control over an organ will be held internationally responsible. However, it is still contentious whether this rule has already become part of customary international law. Those who deny this development have focused their analysis of international law on the time after WW I. On the contrary, the article demonstrates that the placing of organs at the disposal of other subjects of international law had already been a common practice before that time. It proves that after the Peace of Westphalia, institutions in the form of standing armies emerged, which used to exercise state authority in a continuous, coordinated and controlled manner, thus representing the first organs of early modern territorial states. During the wars in the 17th and 18th century, the small principalities, in particular, used to employ their standing armies not in their own name and at their own risk, but rather obligated in numerous contracts »to employ« them »in the service« of large states such as Great Britain. For this purpose the sovereigns of the smaller principalities transferred their command over their troops to the sovereigns of the larger states. As a legal consequence, these units turned into auxiliaries of the larger state whereas the sending state itself did not become a war party. The text at hand shows that the procedure which today is referred to as »lending of state's organs« was a frequently used practice already during the era of absolutism and widely accepted by the contemporary literature of international law.