Conclusion

The conclusions encapsulate one of the central messages of the book, namely its emphasis on the logical, technical, and ‘objective’ tenets of the international rules of attribution of conduct to States. Such a peculiar nature is held to justify their pedagogic role and influence in the treatment under international law of the ‘State’ (i.e. its organs, instrumentalities, and ‘private’ agents) somehow independently of the design of a given dispute settlement system or of the proper law applicable to the objective element of liability, so as to ensure coherent resolutions of attribution issues by different international law adjudicators.

Attribution in International Investment Law

Chapter III elucidates the application of attribution rules by international investment tribunals. This chapter is similar in structure to Chapter II, which is a consequence of the proximity of international investment law to public international law with regard to the topic of attribution of conduct to a party. In addition, this chapter contains critical discussion on investor–State dispute settlement (ISDS), chiefly on the dialectics between lex generalis (customary international law) and lex specialis (international investment law) as to the resolution of attribution issues, and on the distinction between treaty claims and contract claims for the purposes of the operation of so-called ‘umbrella clauses’. More generally, the chapter critiques the reasoning of arbitrators who have applied the test for attribution of conduct under ARSIWA Articles 4, 5, and 8 in a holistic way, rather than implementing each single test autonomously.

Attribution in Public International Law

Chapter II illustrates the application of attribution rules in public international law, as resulting from the early arbitral practice, the decisions of the Permanent Court of International Justice (PCIJ) and the International Court of Justice (ICJ) and the awards of the Iran–US Claims Tribunal, and eventually codified by ARSIWA. Accordingly, it explains the tests for attribution of conduct of State organs (de jure and de facto) under ARSIWA Article 4, ‘State entities’ under ARSIWA Article 5, and individuals under ARSIWA Article 8. The rule of attribution of acts ultra vires under ARSIWA Article 7 is also analysed, which applies to the conduct of State organs and ‘State entities’, but not of (private) individuals.

Introduction

The Introduction describes the role of international attribution rules and principles in connection with the meaning of ‘State’ under international law. It addresses how this study on attribution is innovative and helpful in relation to various issues. As to public international law, it deals with attribution of the acts or omissions of ‘independent’ State organs exercising functions of a regulatory or administrative nature (such as central banks and independent authorities), the definition of ‘governmental authority’ for the purposes of attribution of conduct of parastatal entities, and the determination of the thresholds of State ‘control’ either on de facto organs, on one side, or on ‘private’ individuals, on the other side. As to international investment law and arbitration, it is notably relevant to clarify the operation of the dialectics between lex generalis (customary international law) and lex specialis (international investment treaties) in relation to attribution issues. The Introduction also clarifies that the analysis that is found in this book is based on the practice of early arbitrations, the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), the Iran–US Claims Tribunal, the International Criminal Tribunal for the Former Yugoslavia (ICTY), investor–State arbitration, and the World Trade Organization (WTO) dispute settlement system. This means that the practice of other international courts and tribunals that is relied on (as to the attribution of conduct to a State) by the International Law Commission (ILC) in its Commentaries to Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) is not dealt with in this book.

The Meaning of Attribution

Chapter I offers a reconstruction of the definition of attribution for the purposes of State responsibility for internationally wrongful acts, drawing from the history and travaux of the process of codification of the international law of State responsibility that resulted in the adoption by the International Law Commission in 2001 of the text of the ARSIWA (Draft Articles on Responsibility of States for Internationally Wrongful Acts). This part emphasizes the preliminary operation and role of rules of attributability in comparison to the other ‘secondary’ rules of international law. In addition, it discusses the threshold principle of the supremacy of international law in order to convey the autonomous dimension of attributability issues in international law vis-à-vis municipal law. Last, it illustrates the distinction between issues of attribution, on the one hand, and issues of jurisdiction and of State immunity, on the other.