Can Acta Jure Gestionis Be Attributable to the State? A Restrictive Doctrine of State Responsibility

Abstract

The distinction between acta jure imperii and jure gestionis, while playing a pivotal role in the law of state immunity, appears alien to the law of state responsibility. However, recent practice has shown conceptual overlaps between these different areas of international law. The sovereign/commercial dichotomy has informed the attribution of parastatal entities’ conduct to a state under Article 5 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). More precisely, acta jure gestionis have been excluded from the scope of attributable conduct. Against this backdrop, this study investigates whether, and to what extent, the distinction between acta jure imperii and jure gestionis dictates the interpretation and application of Article 5 of ARSIWA. We conclude that the distinction does have relevance in this context, although Article 5 was not designed to preclude the attributability of commercial acts. However, its obscure wording has allowed subsequent practice to overly narrow the scope of attributable conduct. This study, critically analysing a restrictive doctrine of state responsibility, aims to provide a more accurate and desirable conception of the rule and a clear and detailed guideline on when the commercial act of parastatal entities can be attributable to the state.