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XVI State Responsibility, Attribution, and Circumstances Precluding Wrongfulness

Sabahi Rubins

From: Investor-State Arbitration (2nd Edition)

Borzu Sabahi, Noah D Rubins, Don Wallace, Jr

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 28 November 2023

Customary international law — Conduct of proceedings — Consent to jurisdiction — State entities and attribution

This chapter looks at the rules governing the determination of state responsibility. In 2001, the International Law Commission, as part of its mandate to codify and progressively develop international law, adopted rules reflecting customary law on state responsibility, the Articles on Responsibility of States for Internationally Wrongful Acts (the ILC Articles). Among the rules on state responsibility, attribution and circumstances precluding wrongfulness have been at the centre of numerous investment treaty disputes. Attribution is the process through which the actions and omissions of agents and representatives is imputed to a state. Meanwhile, under customary international law, respondent states can assert a variety of defences to justify their failure to abide by international obligations. The ILC Articles refer to such defences as ‘circumstances precluding wrongfulness’. These circumstances include necessity.

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