The Structural Crack of the International Legal System:What Happens with Unattributed Conduct?

A great deal of international conduct escapes international legal regulation. This is because international law systematically only regulates relations between states. While other actors may have certain international obligations, these are not general in nature and are limited by the functional purpose of such actors. At the same time, the threshold for attribution of non-state conduct to states remains rather demanding. Non-state conduct that is not attributed to a state in most circumstances cannot constitute an internationally wrongful act. Although international legal doctrine has been reluctant to modify the general attribution test based on the ICJ’s Nicaragua judgment, state practice indicates that new attribution standards have been silently developed, at least where omissions are concerned. While actions are generally subjected to a high attribution bar, omissions have sometimes been subjected to the concept of strict liability. This leads to a clear imbalance and even lack of legal certainty. It is doctrinally unclear which, if any, international legal obligations even carry strict liability. At present, it seems that such a determination is political rather than legal in nature. This article thus demonstrates that the current attribution theory in international law is in need of systemic change. Otherwise, international law risks a situation where states will increasingly resort to political criteria to determine when conduct is attributable to a certain state