This chapter reveals the gap between the legal assumption that corporations and governments are formally separated and the reality of deep interdependence between governments and corporations in colonial settings, analyzing how this situation provided private business corporations with the legal infrastructure they needed to leverage their position to thrive in the colonization of Africa. It then explores related doctrines of international law – —diplomatic protection, human rights, and investment protection – —as additional aspects of the the international legal infrastructure that protected corporate actors from responsibilities while granting them significant benefits as individual rights bearers. This chapter chronicles the lingering presence and influence of international law on the regulatory options available for corporations operating both within and outside state borders.

This Chapter focuses on governmental use of private military and security companies (PMSCs) to evade the law of state responsibility, using offering as a case study of Russia’s deployment of a shadowy corporation known as the Wagner Group as a case study. The cChapter then suggests ways in which we might rethink the law of state responsibility in order to respond to the increasing threat of this sort of hybrid warfare. Drawing from scholarship on global legal pluralism, the cChapter argues for a less formalist and more functionalist analysis of the law of state responsibility. I I n the context of hybrid war, formalist conceptions of the state allow governments such as Russia to skirt state responsibility solely because there may be no formal contract between Russia and a PMSC such as the Wagner Group. One possible response then is to reinterpret Article 8 of the Articles of State Responsibility so that it looks at the real functional ties between a state actor and a PMSC, along with the “governmentality” of the function the PMSC performs.

As state ownership of private firms grows, morphs, and globalizes, states increasingly channel their influence through the financialized markets. The ensuing merger of the state’s commercial and sovereign roles suggests that state ownership is, again, becoming a vector of sovereign authority. This chapter analyzes the international legal system that has developed around surging state ownership. It suggests that the legal construction of distinctive “shareholder identities” in international economic law plays a key role in this complex regulatory matrix. Specifically, the chapter focuses on how arbitral tribunals adjudicating claims arising from international investment treaties use attribution, a doctrine of customary international law, in creating, maintaining, and disciplining state shareholders. Arbitral tribunals use the analytical category of the state shareholder in order to delineate and construct state and company identities and to understand the economic, political, and legal implications of those identities in the the global economy. Accordingly, the interactions between substantive international economic law and the law of state responsibility form important, but underappreciated, elements of this constitutive process, which comes to affect the institutional design of state shareholding and disincentivize hands-on control over state-owned entities.

The doctrine of attribution in international law has been defined, in large part, by the International Law Commission’s (ILC) provisions on attribution of conduct in the Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). It is uncontroversial to note that despite the influence of the ILC’s rules on attribution, the regime of international responsibility remains underdeveloped. In addition to being underinclusive, the rules of attribution in ARSIWA are beginning to appear outdated. The central question, therefore, is whether the rules of attribution in ARSIWA are flexible enough to accommodate two disparate trends. On the one hand, we have witnessed an outsourcing of public functions to private actors in areas such as immigration, prison management, and education, whereby privatization has reduced state control and, consequently, potential state responsibility. On the other hand, there is a marked centralization of power in SOEs, some of which are now playing a global role as investors. This chapter assesses whether the default rules on attribution are flexible enough to manage both ends of the spectrum of state activity, which will be a crucial issue for regulators going forward.