State Responsibility Revisited. The Factual Nature of the Attribution of Conduct to the State

Abstract
This article contains a thorough critique of the arbitrary notion that attribution of conduct to the State was, for the purposes of State responsibility, a matter to be covered by normative propositions (the so-called normative theory of attribution). In the conclusive part of the article the Author sharply criticizes, in particular, not only the ILC’s purely deductive assumption of the existence of given customary rules on attribution. The Court, for its part, improperly relied on the assertion of such rules by the ILC, refraining from any effort of its own to demonstrate their existence. Attribution of conduct to the State remains a pure questio facti to be resolved as such by the judge or arbitrator. The Author finds it very surprising that the main judicial organ of the United Nations should assume the existence of customary rules of international law without engaging in a serious research with regard to their existence and content. The article was circulated with the first issue of 2017 of the Rivista di Diritto internazionale.