Fragmentation of Attribution in International Law

Abstract

This chapter examines the practice of international courts and tribunals and contends that adjudicators, consciously or unconsciously, use the notion of attribution in a narrow and in a broad sense, without however properly distinguishing between nuanced attribution standards. Attribution tests in the narrow sense are drawn from ARSIWA and are applied in the context of establishing the international responsibility of states. Whereas broad sense attribution concepts serve a variety of other legal purposes. This phenomenon will be termed as the fragmentation of attribution. The chapter will map various attribution concepts used in the field of jus ad bellum, jus in bello, and international investment law. It concludes by raising awareness about the doctrinal inconsistencies that arise from the judicial use of different attribution tests in an interchangeable way and about a corresponding need for doctrinal scrutiny and methodological consistency in dealing with secondary rules of international law.