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Moving towards Complicity as a Criterion of Attribution of Private Conducts: Imputation to States of Corporate Abuses in the US Case Law
Published online by Cambridge University Press: 03 November 2011
Abstract
According to the agency paradigm enshrined by the 2001 ILC Articles on State Responsibility, private conducts are attributed to a state when they are carried out on the state's behalf or under its tight control. On closer look, this legal framework proves to be unable to deal with state involvement in human-rights violations perpetrated by powerful non-state actors, such as terrorist groups or transnational corporations. These wrongs, indeed, are often put in place with the fundamental contribution of – but not on behalf of (or under the control of) – a state, with the consequence that, under the traditional paradigm, they could not be attributed to the latter. Against this backdrop, the present paper argues that a new secondary norm has been developing that provides that private wrongs are to be imputed to a state if the latter knowingly facilitated (or otherwise co-operated in) their commission. Although international practice will be duly taken into account, the analysis will be focused mainly on US case law concerning corporate liability for international human-rights violations.
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References
1 As noted, this principle has been unquestioned ‘from Grotius to Ago’, Christenson, A., ‘The Doctrine of Attribution in State Responsibility’, in Lillich, R. B. (ed.), International Law of State Responsibility for Injuries to Aliens (1983), 321, at 327Google Scholar.
2 The Articles are published in YILC, 2001, Vol. II (Part Two).
3 T. Becker, Terrorism and the State (2006), 43ff. For an overview of the Articles, see J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), 91ff. For an analysis of issues of attribution prior to the adoption of the Articles, see Condorelli, L., ‘L'imputation à l'état d'un fait internationalement illicite: Solutions classiques et nouvelles tendences’, (1984/VI) 189 RCADI 9Google Scholar.
4 Indeed, such a view has already been propounded by other authors. Hitherto, the most comprehensive (and groundbreaking) analysis of the issue has been by E. Savarese, ‘Issues of Attribution to States of Private Facts: Between the Concept of De Facto Organs and Complicity’, (2006) 15 ItYIL 111. For further bibliographical references, see subsection 2.2, infra.
5 Draft Art. 55 (lex specialis): ‘These articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by special rules of international law.’
6 On the distinction between attribution of responsibility and attribution of conduct, see notes 16–18, infra and accompanying text.
7 For a general appraisal of this subject, see R. Pisillo Mazzeschi, ‘Due diligence’ e responsabilità internazionale degli stati (1989); Mazzeschi, R. Pisillo, ‘The Due Diligence Rule and the Nature of the International Responsibility of States’, (1993) 35 GYIL 9Google Scholar.
8 See Pisillo Mazzeschi, ‘The Due Diligence Rule’, supra note 7, at 25.
9 See, e.g., E. Klein (ed.), The Duty to Protect and to Ensure Human Rights: Colloquium, Potsdam, 1–3 July 1999 (2000); Mazzeschi, R. Pisillo, ‘Forms of International Responsibility for Environmental Harm’, in Francioni, F. and Scovazzi, T. (eds.), International Responsibility for Environmental Harm (1991), 15Google Scholar; R. P. Barnidge, Non-State Actors and Terrorism: Applying the Law of State Responsibility and the Due Diligence Principle (2008).
10 See, e.g., Lawson, R., ‘Out of Control: State Responsibility and Human Rights: Will the ILC's Definition of the “Act of State” Meet the Challenges of the 21st Century?’, in Castermans-Holleman, M., van Hoof, F., and Smith, J. (eds.), The Role of the Nation-State in the 21st Century: Human Rights, International Organisations, and Foreign Policy: Essays in Honour of Peter Baehr (1998), 91, at 105Google Scholar; Sassóli, M., ‘State Responsibility for Violations of International Humanitarian Law’, (2002) 84 IRRC 401Google Scholar; Hessbruegge, J. A., ‘The Historical Development of the Doctrines of Attribution and Due Diligence in International Law’, (2004) 36 NYUJILP 265Google Scholar.
11 See Pisillo Mazzeschi, ‘The Due Diligence Rule’, supra note 7, passim.
12 Ibid., at 32ff.
13 It is worth stressing that it is not here contended that every state inaction with respect to private wrongs amounts to complicity and legitimates treating the state as the main perpetrator (this argument sometimes appears in the works by feminist legal scholars; see, e.g., Romany, C., ‘Women as Aliens: A Feminist Critique of the Public/Private Distinction in International Human Rights Law’, (1993) 6 HHRJ 87, at 88)Google Scholar. I only refer to a qualified state inaction, which is characterized, on the objective plane, by the repetition in time of the omissive conducts and, on the subjective one, by the knowledge of helping the private wrongdoer. For a similar view, see Becker, supra note 3, passim.
14 As has been noted, every primary norm can be legitimately reframed as a secondary norm and vice versa; Nollkaemper, A., ‘Attribution of Forcible Acts to States: Connections between the Law on the Use of Force and the Law of State Responsibility’, in Blokker, N. and Schrijver, N. (eds.), The Security Council and the Use of Force: Theory and Reality: A Need for Change? (2005), 133, at 148Google Scholar.
15 See, e.g., Cassese, A., ‘Terrorism Is Also Disrupting some Crucial Legal Categories of International Law’, (2001) 12 EJIL 993, at 999CrossRefGoogle Scholar.
16 Becker, supra note 3, at 258.
17 Ibid.
18 In this regard, see also, for further references, D'Aspremont, J., ‘Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents’, (2009) 58 ICLQ 427, at 433CrossRefGoogle Scholar.
19 See, with regard to state complicity in corporate abuses, Clapham, A., ‘State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations Responsibility’, in Bomann-Larsen, L. and Wiggen, O. (eds.), World Business: Managing Harmful Side-Effects of Corporate Activity (2004), 50, at 66Google Scholar; MacCorquodale, R. and Simons, P., ‘Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’, (2007) 70 MLR 598, at 611CrossRefGoogle Scholar. See also, with reference to terrorist activities, Wolfrum, R. and Philips, C. E., ‘The Status of the Taliban: Their Obligations and Rights under International Law’, (2002) 6 MPYUNL 559, at 595Google Scholar.
20 In this sense, see Becker, supra note 3, at 225.
21 See note 59, infra and accompanying text.
22 ECOWAS Court of Justice, Socio-Economic Rights & Accountability Project v. Nigeria and Others, 10 December 2010, No. ECW/CCJ/APP/07/10, para. 69: ‘the process of codification of international Law has not yet arrived at a point that allows the claim against corporations to be brought before International Courts. Any attempts to do so have been dismissed on the basis that the Companies are not parties to the treaties that the international courts are empowered to enforce.’
23 R. Ago, ‘Fourth Report on State Responsibility’, 1972 YILC, Vol. II, para. 64, at 96ff.
24 Ibid., paras. 80ff., 102ff.
25 See Savarese, supra note 4, at 115–16.
26 Savarese, E., ‘Fatti di privati e responsabilità dello Stato tra organo di fatto e “complicità” alla luce di recenti tendenze della prassi internazionale’, in Spinedi, M., Gianelli, A., and Alaimo, M. L. (eds.), La codificazione della responsabilità internazionale degli Stati alla prova dei fatti: Problemi e spunti di riflessione (2006), 53, at 55Google Scholar.
27 Poggioli case, UNRIAA, Vol. X (Sales No. 60.V.4), 669.
28 Janes case, UNRIAA, Vol. IV (Sales No. 1951.V.I), 82.
29 Poggioli, supra note 27, at 689 (emphasis added).
30 Janes, supra note 28, at 87 (emphasis in original).
31 Savarese, supra note 4. See also Cerone, J., ‘Re-Examining International Responsibility: Inter-State Complicity in the Context of Human Rights Violations’, (2008) 14 International Law Student Association Journal of International & Comparative Law 525Google Scholar.
32 As known, the ‘overall-control’ test provides that, as far as well-organized private groups are concerned, for the purposes of attribution, it is not necessary that the state controlled every single act of the group, it being enough that the private entity acted under the state's general direction (ITCY, Appeals Chamber, Prosecutor v. Duško Tadić, Case IT-94–1-A (1999), ILM, Vol. 38, No. 6 (November 1999), 1518, at 1541, para. 117).
33 Ibid., at 117ff.
34 ITCY, Trial Chamber, Prosecutor v. Kordić and Cerkez, Judgement of 26 February 2001, IT-95-14/2.
35 Ibid., para. 115.
36 IACHR, Case of the Rochela Massacre, Judgment of 11 May 2007, Series C No. 163, para. 78; Case of the Ituango Massacres, Judgment of 1 July 2006, Series C No. 148, paras. 125.1, 125.25, 133; Case of the Mapiripán Massacre, Judgment of 15 September 2005. Series C No. 134, paras. 121–123; Case of the 19 Tradesmen, Judgment of 5 July 2004, Series C No. 109, paras. 84(b), 115, 134, 135, 137, 138.
37 ECtHR, 8 July 2004, Ilascu and Others v. Moldova and Russia, 48787/99.
38 Ibid., para. 384.
39 In the same vein, Cerone, supra note 31, at 530.
40 AHRLR 60 (ACHPR 2001).
42 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, [1986] ICJ Rep. 14.
43 ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, [2007] ICJ Rep. 43.
44 In the Nicaragua judgment, as is well known, the ICJ developed the (strict) ‘effective-control’ test (see Nicaragua, supra note 42, paras. 109, 115). In the second case, on the other hand, the Court confirmed this test, bluntly rejecting the evolutive approach followed by the ICTY in Tadić (Bosnian Genocide, supra note 43, para. 406).
45 ICJ, Nicaragua, supra note 42, para. 86; Savarese, supra note 4, at 119 (emphasis added). However, this passage has been interpreted in very different ways (Kress, C., ‘L'organe de facto en droit international public: Réflexions sur l'imputation à l'état de l'acte d'un particulier à la lumière des développements récents’, (2001) 105 RGDIP 93, at 106Google Scholar). According to the ICTY (Tadić, supra note 32, para. 109), for instance, in this case, the ICJ applied the ‘overall-control’ test.
46 ICJ, Bosnian Genocide, supra note 43, paras. 418ff.
47 See Savarese, E., ‘Complicité de l'Etat dans la perpétration d'actes de génocide: Les notions contiguës et la nature de la norme: En marge de la décision’, Application de la convention sur la prévention et la répression du crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro), (2007) 53 AFDI 280, at 284–6Google Scholar.
48 See, e.g., Malzahn, S. M., ‘State Sponsorship and Support of International Terrorism: Customary Norms of State Responsibility’, (2002) 26 HICLR 83Google Scholar.
49 See the practice mentioned in Savarese, supra note 4, at 123.
50 President George W. Bush, Address to a Joint Session of Congress and the American People, Washington, DC, 20 September 2001, available online at www.whitehouse.gov; UN Security Council, Letter Dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. No. S/2001/946 (2001); ‘Bush's Remarks on U.S. Military Strikes in Afghanistan’, NY Times B6, 8 October 2001. See Jinks, D., ‘State Responsibility for the Acts of Private Armed Groups’, (2003) 4 Chicago JIL 83Google Scholar; Nollkaemper, supra note 14.
51 As one author noted (Savarese, supra note 4, at 124), this represents a typical answer provided by legal systems to respond to grave attacks against values of particular importance.
52 On this case law, see M. Koebele, Corporate Responsibility under the Alien Tort Stature: Enforcement of International Law through US Torts Law (2009); S. Joseph, Corporations and Transnational Human Rights Litigations (2004).
53 It has been noted that the US system offers several procedural advantages for novel claims: Joseph, supra note 52, at 16ff.
54 28 USC §1350.
55 On the historical reasons that led Congress to adopt this peculiar statute, see Burley, A.-M. Slaughter, ‘The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor’, (1989) 83 AJIL 461CrossRefGoogle Scholar.
56 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).
57 See, e.g., Forti v. Suarez-Mason, 672 F. Supp. 1531 (N.D.Cal. 1987); Linder v. Portocarrero, 963 F.2d 332 (11th Cir. 1992); Hilao v. Marcos, 25 F.3d 1467 (9th Cir. 1994); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995).
58 Kadic v. Karadzic, 70 F.3rd 232 (2nd Cir. 1995).
59 Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).
60 So far, companies that have been sued under the ATS include, among others, Coca-Cola, Pfizer, Exxon Mobil, Texaco, Shell, Rio Tinto, Freeport-McMoran, Ford, Banque Paribas, Chevron, Drummond.
61 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). See also Doe v. Nestlé, 2010 U.S. Dist. LEXIS 98991 (C.D. Cal. 2010); Flomo v. Firestone, 2010 U.S. Dist. LEXIS 112249 (S.D. Ind., 2010).
62 Kadic, supra note 58, at 240.
63 See, e.g., Doe I v. Unocal Corp., 395 F.3d 932, 932 (9th Cir. 2002); In Re South Africa Apartheid Litigation, 617 F. Supp. 2d 228 (S.D.N.Y. 2009). On this case law, see Cassel, D., ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’, (2008) 6 Northwestern University Journal of International Human Rights 304Google Scholar; Coliver, S., Green, J., and Hoffman, P., ‘Holding Human Rights Violators Accountable by Using International Law in US Courts: Advocacy Efforts and Complementary Strategies’, (2005) 19 EILR 169Google Scholar. On corporate complicity in human-rights violations, see, in general, A. Clapham, ‘On Complicity’, in M. Henzelin and R. Roth (eds.), Le droit pénal à l'épreuve de l'internationalisation (2002), 241. Also, this case law is threatened by the Kiobel precedent.
64 Indeed, the analysis concerning the ‘aiding and abetting’ test is sometimes (erroneously) conflated with that regarding the ‘state-action’ requirement. See, e.g., In Re Agent Orange Products Liability Litigation, 373 F. Supp. 2d 7, 58–9 (E.D.N.Y. 2005); Beanal v. FreeportMcMoRan, Inc., 969 F. Supp. 362, 375 (E.D. La. 1997).
66 In particular, section 1983 provides that ‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress’.
67 The leading case, in this regard, is Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). On this issue, see, in general, Kritchevsky, B., ‘Civil Rights Liabilities of Private Entities’, (2004) 26 Cardozo Law Review 35Google Scholar.
68 This analogy was first affirmed by the District Court for the Northern District of California in Forti, supra note 57, at 1546.
69 Crawford, J. and Olleson, S., ‘The Nature and Forms of International Responsibility’, in Evans, M. D. (ed.), International Law (2006), 452, at 460Google Scholar.
70 Lugar v. Edmondson Oil Co., 457 U.S. 922, at 935 (emphasis added).
71 This analogy has already been underlined by other authors. See, e.g., Priselac, J., ‘The Requirement of State Action in Alien Tort Statute Claims: Does Sosa Matter?’, (2007) 21 EILR 789Google Scholar, who suggests substituting the ‘state-action’ canons with the criteria envisaged by the Articles on State Responsibility.
72 It is worth noticing, however, that, in these cases, the perspective is reversed, since courts link conducts of private entities to states in order to hold the former somehow responsible and not vice versa.
73 Beanal, supra note 64.
75 In this sense, see also Koebele, supra note 52, at 219. Another (obvious) factor that has to be taken into account is the greater familiarity US judges have with domestic-law principles.
76 For a general appraisal of ‘state-action’ tests, see Chemerinsky, E., ‘Dialogue on State Action’, (2000) 16 Touro Law Review 775Google Scholar. Indeed, US courts employed two other tests, namely the ‘close-nexus’ and the ‘symbiotic-relationship’ tests. Yet, it has to be noted that US courts tend to conflate them in the ‘joint-action’ test (see, e.g., Lugar, supra note 70, at 941; Dennis v. Sparks, 449 U.S. 24, 27 (1980); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, at 1453–5. For a similar approach, see Robbins, I. P., ‘Privatisation of Corrections: A Violation of US Domestic Law, International Human Rights, and Good Sense’, in Feyter, K. De and Isa, F. Gómez (eds.), Privatisation and Human Rights in the Age of Globalisation (2005), 57, at 64)Google Scholar.
77 Jackson v. Metropolitan Edison Co., 419 U.S. 345, at 353 (1974).
78 Adickes v. S.H. Kress & Co., 398 U.S. 144, at 170 (1970).
79 Collins v. Womancare, 878 F.2d 1145, at 1154 (9th Cir. 1989).
80 Similarly, Priselac, supra note 71, at 811.
81 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 632 (Judge O'Connor, Dissenting Opinion).
82 At this juncture, a quick clarification is needed. All the rulings I will consider have been handed down in response to a motion to dismiss lodged by the corporate defendant. According to US case law, at this procedural stage, courts must accept as true all of the factual allegations set forth in the plaintiff's complaint; see, e.g., Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986). In no case, therefore, has state involvement in human-rights abuses been judicially ascertained. This circumstance, however, does not weaken our arguments but, on the contrary, makes it easier to identify the relevant points of law, since the courts’ findings are cleansed of any evidentiary problem.
83 The possibility of invoking the lack of due diligence on the part of the host state in order to establish ‘state action’ was suggested by Joseph, supra note 52, at 39.
84 416 F.3d 1242 (11th Cir. 2005).
85 Ibid., at 1249.
86 The existence of such an obligation has been inferred from the general duty of a state not to act in such a way as to cause harm outside its territory (see MacCorquodale and Simons, supra note 19, at 617). See also O. De Schutter, ‘Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations’, background report to the seminar organized with the Office of the High Commissioner for Human Rights, Brussels, 3–4 November 2006, available online at www.business-humanrights.org/Links/Repository/775593.
87 See MacCorquodale and Simons, supra note 19, at 620. This qualification is needed in order to preserve the sovereignty of the home state.
88 381 F. Supp. 2d 1164 (C.D. Cal. 2005).
89 Ibid., at 1175. In the same vein, Presbyterian Church of Sudan et al. v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 328 (S.D.N.Y. 2003).
90 562 F.3d 163 (2nd Cir. 2009).
91 Ibid., at 188. See also Abdullahi and Others v. Pfizer, 2002 U.S. Dist. LEXIS 17436 (S.D.N.Y. 2002), at 18.
92 517 F. Supp. 2d 221, (D.D.C. 2007).
93 Ibid., at 18. Colombian allegedly wrongful conduct is also the object of controversy pending before the International Court of Justice (Ecuador v. Colombia, Case Concerning Aerial Herbicide Spraying, General List, No. 138).
94 In the same vein, Doe and Others v. Unocal and Others, 963 F. Supp. 880, at 889 (C.D. Cal. 1997); The Estate of Rodriquez and Others v. Drummond and Others, 256 F. Supp. 2d 1250, at 1265 (N.D.Al. 2003).
95 Wiwa and Others v. Royal Dutch Petroleum, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. 2002).
96 Ibid., at 42–6.
97 In this sense, see Condorelli, supra note 3, passim.
98 Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760, at note 151Google Scholar.
99 Iwanowa v. Ford Motor Company and Others, 67 F. Supp. 2d 424, at 445 (D.N.J. 1999).
100 In Re Sinaltrainal Litigation, 474 F. Supp. 2d 1273, at 1302 (S.D. Fla. 2006).
101 See supra note 32.
102 See, e.g., Cassese, A., ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’, (2007) 18 EJIL 649CrossRefGoogle Scholar.