Prior to delving into the grist of the instant issue, a brief discussion concerning the terminology utilized by the ARS is necessary. When the ARS discusses attribution, attribution does not necessarily mean imputability or vice versa. However, the terms should not create confusion as they both operate within the legal framework posited. The argument concerning the choice of term is largely academic. Brownlie posited that attribution should not be confused with imputability as the “major issue in any given situation is whether there has been a breach of duty: the content of imputability will vary according to the particular duty, the nature of the breach, and so on.”22 To support this proposition, Brownlie cited the second report of the ILC concerning the progress of codification of the CIL of state responsibility by Robert Ago, in which Ago discusses Anzilotti’s work and definition regarding imputability versus attribution. In pertinent part, Anzilotti equated imputability to simply linking the wrongful act to the actions or omission of a state.23 As Brownlie put it, “[t]o speak of imputation to a state, therefore, merely indicates that the international legal order must be able to regard the action or omission concerned as an act of the state.”24 Based upon the scholarship on the topic and at a base level, there is very little difference between the two terms. However, the debate was carried over into the final version of the ARS.
While Ago’s version of the ARS differs significantly from Crawford’s final version of the ARS, the distinction between imputability and attribution is carried into the final version of the ARS with the ARS seemingly adopting Brownlie’s argument that the focus is on the determination of whether the wrongful act was that of a state.25 In addition, the ILC adopted
22 Ian Brownlie, System of the Law of Nations State Responsibility (Part I) 36 (1983).
23 Id. at 37.
24 Id.
25 Ian Brownlie, System of the Law of Nations State Responsibility (Part I) 36 (1983). International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, ch.
87 the term attribution versus imputation “in order to avoid any suggestion that the legal operation of connecting conduct to the state involved a kind of fiction.”26 However, the terminology does not necessarily have any impact on the operation of the legal theory of linking a wrongful act to a state irrespective of the academic arguments put forth in favor of one term or another.27 This debate, however, is presented, in part, to demonstrate the continued scholarly debate concerning almost every facet of the ARS and its representation of custom.
Attribution under the ARS has been described as a restrictive normative process in which attribution operates as a matter of law but not fact.28 This idea that attribution is not based upon the fact of the matter has resulted in much academic debate regarding whether attribution may operate without a fact-based test.29 The ARS’s focus is solely on attribution as a legal principle and does not concern itself with the issues related to the violation of the primary norm.
The ARS posits that:
[w]hether responsibility is ‘objective’ or ‘subjective’ in this sense depends on the circumstances, including the content of the primary obligation in question.
The articles lay down no general rule in that regard. The same is true of other
II, cmt. 4, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/RES/56/10 (Dec. 12, 2001).
26 Luigi Condorelli and Claus Kress, The Rules of Attribution: General Considerations, in The Law of International Responsibility 233 (James Crawford, Alain Pellet, and Simon Olleson ed. 2010).
27 Id.
28 Luigi Condorelli and Claus Kress, The Rules of Attribution: General Considerations, in The Law of International Responsibility 221-225 (James Crawford, Alain Pellet, and Simon Olleson ed.
2010). See also, International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, ch. II, cmt. 4, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp.
No. 10, U.N. Doc. A/RES/56/10 (Dec. 12, 2001). (“[A]ttribution of conduct to the State as a subject of international law is based on criteria determined by international law and not on the mere recognition of a link of factual causality. As a normative operation, attribution must be clearly distinguished from the characterization of conduct as internationally wrongful. Its concern is to establish that there is an act of the State for the purposes of responsibility. To show that conduct is attributable to the State says nothing, as such, about the legality or otherwise of that conduct, and rules of attribution should not be formulated in terms which imply otherwise.”) 29Luigi Condorelli and Claus Kress, The Rules of Attribution: General Considerations, in, The Law of International Responsibility 221, 225 (James Crawford, Alain Pellet, and Simon Olleson ed.
2010).
88 standards, whether they involve some degree of fault, culpability, negligence or want of due diligence. Such standards vary from one context to another for reasons[,] which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation.30
The ARS allows for the primary rule violated to dictate all facets of the means to attribute an act. Therefore, attribution under the ARS must be addressed in a case-by-case manner depending on the primary obligation violated and the circumstances of the violation. This application of attribution may cause a host of issues, particularly with regard to the standards of evidence needed to support proper attribution depending upon the primary norm violated. This issue of the requisite degree of proof required for an act to be attributed to a state will be addressed infra.
Two initial issues need to be addressed prior to a doctrinal discussion regarding the ILC’s ARS. The first is how an internationally wrongful act on behalf of a state occurs, and the second is whether the issue of mens rea operates within the issue of attribution.
How an internationally wrongful act on behalf of a state occurs is important in that a state as an entity does not act; the human actors within the state entity act in its stead. As such, only natural persons acting on behalf of a state may commit an internationally wrongful act.31 Therefore, an internationally wrongful act may only occur when an individual actor with an identifiable relationship with the state commits an internationally wrongful act, or when a state adopts an internationally wrongful act after the fact.32 This necessarily means that for full attribution under the ARS, the act must be attributable to an individual actor who has an identifiable relationship with the state.33 This, in the context of attributing
30International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 2 cmt. 3 p.34, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc.
A/RES/56/10 (Dec. 12, 2001).
31 Constantine Antonpoulos, State Responsibility in Cyberspace, in, Research Handbook on International Law and Cyberspace 55, 58 (Nicholas Tsaqourias and Russell Buchan, eds.
20015).
32 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, art. 11, G.A. Res. 56/83, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/RES/56/10 (Dec. 12, 2001). United States Diplomatic and Consular Staff in Tehran, Judgment, 1980 I.C.J.
Rep. 3, 29, ¶90 (24 May).
33 Id. at 59.
89 malicious cyber-attacks based upon current technical attribution practices, is virtually impossible.
The second issue is whether the ARS includes a mens rea element for the individual actor within the state committing the internationally wrongful act. The simple answer is no; as a general rule, the ARS does not require any mens rea or intent for the purposes of attribution.34 The focus is solely on proving that the accused state is responsible for an internationally wrongful act based on the primary norm violated. As such, this study will address the question of “proof” based on the specific primary norms discussed in this study.
This chapter will begin in Section 3.2 with a discussion regarding legal attribution as set forth by the ARS, followed by a discussion regarding the effective control test which establishes the needed control a state must have over other actors for responsibility to lay.
This study will then turn to the issue of proof to ascertain the evidentiary burden that an injured state bears to prove state responsibility for an injury in cyberspace. After concluding this discussion, Chapter Four will focus on technical attribution with a discussion of general attribution techniques, an overview of cyberspace, and conclude with a discussion regarding how the posited rules apply to the examples discussed in Chapter One.