10 - Causation, Fault and Function in the Rules of Attribution

Summary

This chapter raises the question whether attribution of wrongful acts to the State is based on ‘objective’ causal chains or ‘subjective’ mental states. It argues that attribution of conduct to the State is not primarily causal or fault-based. First, it shows that several of the Articles on the Responsibility of States for Internationally Wrongful Acts cannot be understood in terms of causation or fault. Second, it argues that causal and fault-based theories of attribution are either circular or incomplete. Instead, the chapter claims, the logic of attribution is primarily functional. The rules of attribution converge around the central principle that an act of State is an act performed in the service of a State function, such as defence or detention. Functional attribution is best understood as ‘intersubjective’: it is determined not by objective causal chains or by subjective mental states, but by shared ideas about the functions of the State and what it means to perform them. The functional character of the rules of attribution allows them to adapt to economic and technological changes, such as the growth of corporations and the development of autonomous weapons.