EU External Action and the Attribution of Conduct under International Law

The thesis addresses the issue of the attribution of conduct under international law in the context of EU external activity. The focus is on the distinction between conduct attributable to the Union and conduct attributable to its member states. The analysis concerns only conduct carried out in the context of relations with third parties. Issues of responsibility of the Union or member states in their mutual relations are not covered. The starting point for the identification of the rules of attribution applicable to the EU are the two sets of articles on international responsibility prepared by the International Law Commission (ILC), namely the Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (ARS) and the Articles on the Responsibility of International Organizations of 2011 (ARIO). The first chapter analyses the extent to which customary international law corresponds to the ILC articles. The ARS correspond largely, at least as far as the provisions on the attribution of conduct are concerned, with customary international law. On the contrary, Article 7 of the ARIO, concerning the attribution of acts of state organs placed at the disposal of an international organisation, must be viewed as progressive development of customary international law on which international practice has not yet achieved a high level of uniformity. Uncertainties surround situations in which cooperation between organisations and member states involves organs of both and in which member states’ organs operate on behalf of the organisation or in the application of its internal rules. The second chapter describes the legal and organisational framework of EU external action. In this policy area, relations with third parties are not fully subject to specific and comprehensive regulation and, therefore, the general rules of attribution find wider application. Particular attention is paid to the division of external competences under EU law, which, according to a widespread view within the EU institutions and scholarship, should form the basic framework for the attribution of conduct also under international law. The third chapter investigates the practice concerning EU external action to examine whether the general rules of attribution drawn up by the ILC must apply also in this context. An alternative model that has attracted support in the literature is that of normative control, according to which acts carried out by officials or authorities of states whose legality is entirely determined and reviewed by the Union’s organs should be attributed to the Union itself. This thesis rejects the theory of normative control, since not only do the general rules of attribution apply to the EU’s external activity but they also lead to outcomes that are more coherent with the general principles of international responsibility than those to which the application of the theory of normative control would lead. The theory of normative control is rejected both as a possible general criterion for the attribution of acts of state organs placed at the disposal of an international organisation and as a special rule of attribution applicable solely to the EU or to the category of regional economic integration organisations. In relation to areas where the application of the rules of attribution is more controversial, such as immigration management, it is shown that the criterion of effective control, when applied to the factual circumstances of each case, better meets the requirements of legal certainty and protection of third subjects involved in the EU’s activities. Even the most controversial cases are in fact resolved either through the application of the general rules in the specific context or through the application of special rules established by international agreements, which exclude, in accordance with Articles 55 of the ARS and 64 of the ARIO, the application of the general rules of attribution.