X Attribution

This chapter studies attribution, the process whereby international law determines that a particular conduct is to be regarded as activity of a State which is capable of leading to State responsibility. This area of customary international law was the object of extensive efforts at codification by the International Law Commission (ILC). This work culminated in the adoption of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) in 2001. Some treaties also offer special rules on attribution. For instance, the Energy Charter Treaty (ECT) contains its own rules on attribution in Articles 22 and 23. The ARSIWA give precedence to these treaty provisions where they represent a lex specialis. Ultimately, attribution follows three basic principles. First, actions of organs of States are attributed to the State. Second, even without the status of an organ, the acts of an entity will be attributed to the State if the entity is acting in the exercise of governmental authority. Third, even without the status of an organ, the actions of a person or entity will be attributed to the State if they take place under the direction and control of the State.