The Attribution to States of Conducts by Public Enterprises in the Fields of Investment and Human Rights Law

Since the 2008 global crisis, States have developed new forms of State intervention in economics, by influencing and controlling in different ways the activities of enterprises which, irrespective to their legal characterization into the national legal orders, may be defined as “public enterprises” due to the State-business nexus. This article aims at discussing the test of attribution according to which their internationally wrongful acts may be attributed to States in the fields of investment law and human rights law. To this purpose, it surveys whether and to what extent the general rules codified in the Draft articles on State Responsibility (DARSIWA), particularly Articles 4, 5 and 8, have been applied in the fields of law concerned. The article concludes that, although Articles 4, 5 and 8 DARSIWA are not always mentioned in the examined case law, their underlying criteria normally apply, albeit with some specificity in their interpretation. In particular, the functional test, according to which the conduct of enterprises is attributable to States when they are empowered to exercise governmental activities, embodies the test codified in Article 5 (which refers to “elements of governmental authority). However, the author argues that the relevant concept of “governmental authority” in both fields of the surveyed practice has been interpreted as including not only the traditional sovereign functions mentioned in the ILC Commentary to Article 5 DARSIWA, but also a wider set of economic activities strategic for the States, including the provision of services of general interest. According to the author, this wide construction of the concept of “governmental authority” has the merit of reducing the risk that States escape attribution by outsourcing goods, services and tasks of general interest. It also enhances the responsibility of States and the role of international courts and monitoring bodies as watchdogs of international rule of law.