Introduction

This chapter reviews relevant WTO jurisprudence on the attribution of conduct to a State. In The Development of International Law by the European Court of Human Rights, Merrills noted that ‘[t]he Court is frequently faced with the problem of deciding whether conduct of which the applicant complains can be regarded as attributable to the respondent State. This issue, the scope of State responsibility, is, of course, prominent in general international law.’ General international law concepts and principles are codified in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (‘ILC Articles on State Responsibility’). The WTO agreements contain several provisions relating to the attribution of conduct to the State. Some of those provisions contain concepts that are similar to those found in the ILC Articles on State Responsibility, and for the most part the WTO agreements are silent in respect of issues regarding the attribution of conduct to the State. It has been said that ‘there is no major lex specialis on attribution’ in WTO law. This chapter reviews statements by WTO adjudicators of wider applicability on: (i) the conduct of organs of a State (including the executive branch, the legislative branch, the judicial branch, government agencies, individual government officials, and sub-federal governments); (ii) the conduct of entities exercising elements of governmental authority; (iii) the conduct of private parties directed or controlled by a State; and (iv) conduct taken in the context of a customs union.

Conduct of organs of a State

Article 4 of the ILC Articles on State Responsibility, entitled ‘Conduct of organs of a State’, reads:

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.[…]