Special Rules of Attribution of Conduct in International Law

Abstract

Are there are any special rules of attribution in international law? Are there, in other words, imputational rules that are not recognized as such in general international law, but are specific to particular branches of international law? This is the first article to systematically analyse the notion of special rules of attribution in international law. In particular, it searches for such rules in international humanitarian law, the law on the use of force, and European human rights law.

The article argues that that, to the extent special rules of attribution exist, they are rare and never uncontroversial. In most situations putative special rules attribution can be, and should be, conceptualized differently. It is particularly difficult to justify why rules of attribution should vary depending on the context or particular subject-matter, e.g. why a special rule of attribution should exist for terrorism but not (say) for genocide. Therefore, we should, to the extent reasonably possible, try to reconcile the various jurisprudential divergences identified in this article with the general attribution framework so as to minimize the incidence of special rules, unless there is a very good reason why such a rule should exist. One such reason could be emerging subject-specific state complicity doctrines, which do require sectoral adjustment, but even these doctrines would in most cases not be attributive in nature.

Keywords: attribution, state responsibility, special rules of attribution, lex specialis