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The responsibility of home states for violations of international obligations by their corporate citizens… Naef, Brendan 2019

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    THE RESPONSIBILITY OF HOME STATES FOR VIOLATIONS OF INTERNATIONAL OBLIGATIONS BY THEIR CORPORATE CITIZENS IN FRAGILE STATES      by BRENDAN NAEF   LL.M., Université de Genève, 2006 LL.B., Université de Montréal, 2004 B.A., McGill University, 1998      A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY  in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Law)    THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)      August 2019    © Brendan Naef, 2019 ii  The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled:  The Responsibility of Home States for Violations of International Obligations by their Corporate Citizens in Fragile States  submitted by Brendan Naef  in partial fulfilment of the requirements for the degree of Doctor of Philosophy in Law  Examining Committee: Benjamin Goold Supervisor  Catherine Dauvergne Supervisory Committee Member  Benjamin Perrin Supervisory Committee Member Brian Job University Examiner Pitman Potter University Examiner Robert Cryer External Examiner   iii  ABSTRACT The number of multinational corporations (MNC) operating across the globe and their size have grown markedly since the 1990s. Mainly based in Global North countries, MNCs are created under the laws of their home states, from which they are separated by a corporate veil. Although home states benefit from the operations of their MNCs in other countries, they cannot be held accountable for the out-of-country actions of their corporate citizens unless, as the home state, they exercise a significant degree of control over the corporation. Meanwhile, the existence of fragile states persists. Such states frequently cannot regulate foreign companies on their soil, which often operate to lower standards abroad than in their home country. The result is that MNCs regularly violate international obligations in fragile states with impunity.   In responding to this inequity, this dissertation uses Third World Approaches to International Law (TWAIL) to address the question of how international law has contributed to MNCs operating with impunity in fragile states. The dissertation attributes the persistence of an exaggerated corporate veil to the narrow application of the doctrine of state responsibility. The dissertation maintains this is manifested in the International Law Commission’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (draft articles), which functions, to the benefit of the Global North, as a hindrance to the true development of the international customary law of state responsibility.   As a solution, the dissertation argues in favor of increased investigation into the current state of customary law outside of the draft articles. It also proposes an application of state responsibility that holds states responsible for the acts of their corporate citizens in fragile states when states have  iv  aided or assisted a company without performing the requisite due diligence to ensure the corporation’s compliance with international law.  Finally, in addition to a theoretical discussion, the dissertation addresses the above through a case study involving the violation of an arms embargo by a private military and security company in Somalia.     v  LAY SUMMARY  Multinational corporations (MNC) are established under their home state’s domestic laws and operate in at least one other country. They are frequently incorporated in wealthy states, where they often benefit from different forms of assistance from their home government and are subject to the state’s human rights, environmental, and labour laws. Yet they may also operate abroad in areas absent of law, referred to in this dissertation as fragile states. When in these areas, they are often not subject to regulation and may violate international obligations without punishment. This dissertation argues that when homes states aid their MNCs, they should be held liable the acts of those companies in fragile states. The dissertation makes its case by using the Third World Approaches to International Law approach, applying it to the customary international law of state responsibility.      vi  PREFACE This dissertation is an original intellectual product of the author, B. Naef. The interviews reported in Chapter 7 were covered by UBC Ethics Certificate number H13-01242.      vii  TABLE OF CONTENTS   ABSTRACT ................................................................................................................................................................................... iii LAY SUMMARY ........................................................................................................................................................................... v PREFACE ...................................................................................................................................................................................... vi TABLE OF CONTENTS ........................................................................................................................................................... vii LIST OF ABBREVIATIONS ..................................................................................................................................................... xi ACKNOWLEDGMENTS ......................................................................................................................................................... xiv DEDICATION ............................................................................................................................................................................. xv CHAPTER 1 – INTRODUCTION ......................................................................................................................................... 1 1. The Concern ........................................................................................................................................................................ 1 2. Introduction to the theoretical approach .................................................................................................................... 7 3. Introduction to the evaluative and normative frameworks ................................................................................ 10 4. Structure of the dissertation ........................................................................................................................................ 16 4.1 Part A .............................................................................................................................................................................. 17 4.2 Part B .............................................................................................................................................................................. 18 4.3 Part C ............................................................................................................................................................................... 21 5. Conclusion ........................................................................................................................................................................ 23 PART A – THEORETICAL UNDERPINNING .............................................................................................................. 25 CHAPTER 2 - THIRD WORLD APPROACHES TO INTERNATIONAL LAW ................................................ 25 1. Introduction ...................................................................................................................................................................... 25 2. Explanation of the TWAIL method .......................................................................................................................... 26 2.1 Early Third World views and the lead up to TWAIL ................................................................................... 26 2.2 The TWAIL method ................................................................................................................................................... 29 3. TWAIL and the concept of fragile states ................................................................................................................ 34 4. Conclusion ........................................................................................................................................................................ 41 CHAPTER 3 – THE EVOLUTION OF STATE RESPONSIBILITY ....................................................................... 46 1. Introduction.................................................................................................................................................................... 46 2. Influence of Grotius (1583 – 1645) .......................................................................................................................... 47 3. Codifications in Europe ................................................................................................................................................ 50 4. Anzilotti’s influence: the removal of fault ............................................................................................................. 51 5. The lead up to the work of the International Law Commission ...................................................................... 55 6. Work of the International Law Commission ......................................................................................................... 56 7. Conclusion ........................................................................................................................................................................ 60  viii  PART B – SUBSTANTIVE LAW ....................................................................................................................................... 63 CHAPTER 4 - ATTRIBUTION UNDER THE DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS .......................................................................................................... 63 1. Introduction ...................................................................................................................................................................... 63 2. Relevant draft articles ................................................................................................................................................... 65 2.1 Article 4 – State organ .............................................................................................................................................. 67 2.2 Article 5 – Exercising elements of government authority ........................................................................ 69 2.3 Article 8 – Conduct directed or controlled by a state ................................................................................. 72 i) Instructions and Directions ............................................................................................................................ 75 ii) Control ..................................................................................................................................................................... 78 2.4 Article 16 and state complicity............................................................................................................................. 83 3. Issues with the draft codification of customary law ............................................................................................ 86 3.1 A draft code inconsistent with the views of most states .................................................................... 87 3.2 Inhibiting the development of customary law ........................................................................................ 94 3.3 How courts interpret draft codifications .................................................................................................. 99 4. Conclusion ...................................................................................................................................................................... 104 CHAPTER 5 – THE LIMITATIONS OF RIGHTS BASED SOLUTIONS ........................................................... 106 1. Introduction .................................................................................................................................................................... 106 2. The compatibility of state responsibility and international human rights law .......................................... 108 3. Direct and indirect horizontal human rights obligations .................................................................................. 110 4. Extraterritorial jurisdiction in international human rights law ....................................................................... 115 5. Conclusion ...................................................................................................................................................................... 121 CHAPTER 6 – EMERGING APPROACHES ................................................................................................................ 123 1. Introduction .................................................................................................................................................................... 123 2. Diverging customary law ........................................................................................................................................... 124 2.1 Lack of progress towards a convention ................................................................................................... 124 2.2 Declarations of states concerning the draft codification .................................................................. 126 2.3 Appropriate investigation by courts ......................................................................................................... 128 2.4 Official pronouncements of states ............................................................................................................. 132 2.5 Emerging responsibilities ............................................................................................................................. 137 i)  International initiatives ................................................................................................................................. 141 ii) Domestic legislation ........................................................................................................................................ 143 a) United States ....................................................................................................................................................... 143 b)  Canada .................................................................................................................................................................. 147  ix  c) Italy ......................................................................................................................................................................... 156 d) France .................................................................................................................................................................... 159 3. The changing concept of sovereignty .................................................................................................................... 164 3.1 Early definition of sovereignty ........................................................................................................................... 167 3.2 Changing definition of sovereignty .................................................................................................................. 171 4. Adjusted attribution criteria ........................................................................................................................................... 178 4.1 Other vulnerable spaces ........................................................................................................................................ 178 4.2 Emerging attribution criteria ...................................................................................................................... 183 i) Multinational legal person ............................................................................................................................ 184 ii) Determination of home state ....................................................................................................................... 184 iii) Fragility of the host state ............................................................................................................................... 185 iv) Link between the violating corporation and its home state ........................................................... 190 v) Due diligence of the home state .................................................................................................................. 195 5.  Conclusion ......................................................................................................................................................................... 198 CHAPTER 7 – VIOLATION OF ARMS EMBARGO IN SOMALIA ...................................................................... 201 1. Introduction .................................................................................................................................................................... 201 2. Somalia as a case study .............................................................................................................................................. 202 3. Application of the TWAIL method to PMSCs ................................................................................................... 206 4. Case study interviews ................................................................................................................................................. 213 4.1 Methodology for Case Study Interviews ........................................................................................................ 213 5. MNC at issue: Saracen International ...................................................................................................................... 216 6. Portrait of a fragile state ............................................................................................................................................. 219 6.1 Somalia from Mahammad Barre to 2012 ....................................................................................................... 219 6.2  Fragility assessment for attribution ............................................................................................................... 223 7.  Violation of international obligation by Saracen ................................................................................................... 229 7.1 Introduction ............................................................................................................................................................... 229 7.2 Breach of Security Council resolutions as violations of international obligations ....................... 230 7.3 Security Council resolutions in question ....................................................................................................... 232 7.4 Involvement of local and national government .......................................................................................... 234 7.5 Scenario 1: May 2010 and February 2011 violations of arms embargo by Saracen.................... 235 i) Assistance, training, and supply of weapons .............................................................................................. 235 ii) Financing .................................................................................................................................................................. 241 7.6  Scenario 2: Only applying SCR 733 (1992) .................................................................................................. 244 i) Applying attribution under the ASR ............................................................................................................... 244  x  ii) Responsibility under the rights-based approach .................................................................................... 246 iii) Attribution under the emerging approach ............................................................................................... 246 a) South Africa ......................................................................................................................................................... 247 b) The United Arab Emirates ............................................................................................................................. 248 7. Conclusion ........................................................................................................................................................................... 251 CHAPTER 8 – Conclusion ............................................................................................................................................... 254 1. Introduction .................................................................................................................................................................... 254 2. Summary of the dissertation and conclusions regarding the goals presented in the introduction ...... 255 3. TWAIL’s contribution to the dissertation ............................................................................................................ 257 4. Summary and analysis of the key findings ........................................................................................................... 260 4.1 The draft articles and CIL ..................................................................................................................................... 260 4.2 The proposed solution and determining CIL ................................................................................................ 262 4.3 The flexibility of the attribution and the proposed solution ................................................................. 262 5. Potential application of the research findings ..................................................................................................... 264 6. Possible future research directions ......................................................................................................................... 265 7. Conclusion ...................................................................................................................................................................... 266 Case study interviews list ................................................................................................................................................. 268 Case study interviews questionnaire ........................................................................................................................... 269 Case study interviews consent form ............................................................................................................................ 270 BIBLIOGRAPHY ..................................................................................................................................................................... 273     xi  LIST OF ABBREVIATIONS ACHR American Convention on Human Rights AMISOM African Union Mission in Somalia ANC African National Congress ARS Alliance for the Re-Liberation of Somalia ASR 2001 Draft articles on Responsibility of States for Internationally Wrongful Acts  ATS Alien Tort Statute or Alien Tort Claims Act ATT UN Arms Trade Treaty AU African Union CATSCA California Transparency in Supply Chains Act CDI Commission du droit international (French for ILC) CELAC Latin American and Caribbean states CESCR UN Committee on Economic, Social and Cultural Rights CFPOA Corruption of Foreign Public Officials Act CIA Central Intelligence Agency (US) CID Criminal Investigation Division CIDA Canadian International Development Agency CIL Customary International Law  CSR Corporate Social Responsibility  CTCS Canadian Trade Commissioner Service DRC Democratic Republic of Congo DSOA Dubai Silicon Oasis Authority ECA Export Credit Agency ECHR European Convention on Human Rights ECtHR European Court of Human Rights  EO Executive Outcome ESTMA Extractive Sector Transparency Measures Act EU European Union  FCPA Foreign Corrupt Practices Act G20 Group of 20 GDP Gross Domestic Product HDI Human Development Index ICCPR International Covenant on Civil and Political Rights  ICESCR International Covenant on Economic, Social and Cultural Rights ICISS International Commission on Intervention and State Sovereignty ICJ International Court of Justice  xii  ICoC International Code of Conduct for Private Security Service Providers  ICoCA International Code of Conduct Association  ICRC International Committee of the Red Cross ICSID International Centre for Settlement of Investment Disputes ICTY International Criminal Tribunal for the former Yugoslavia ICU Islamic Courts Union IHL International Humanitarian Law IHRL International Human Rights Law  ILC International Law Commission  IWA Internationally Wrongful Act    JCAP Justice and Corporate Accountability Project  LOSC United Nations Convention on the Law of the Sea MD Montreux Document on pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict   MNC Multinational Corporation  MSA UK Modern Slavery Act NCP National Contact Point NGO Non-Governmental Organization  NSA Non-State Actor      OAU Organization of African Unity OECD Organization for Economic Co-operation and Development OHCHR United Nations Human Rights Committee  OSCE Organization for Security and Co-operation in Europe  PCIJ Permanent Court of International Justice PLO Palestine Liberation Organization PMPF Puntland Maritime Police Force PMSC Private Military and Security Company  PSC Private Security Company PSPC Public Services and Procurement Canada PSSA Federal Act on Private Security Services Provided Abroad (Switzerland)  RCMP Royal Canadian Mounted Police SC Security Council (UN) SCR Security Council Resolution  SEMG Somalia and Eritrea Monitoring Group SWAPO South West Africa People’s Organization TFG Transitional Federal Government of the Republic of Somalia  xiii  TNC Trans-National Corporation TWAIL Third World Approaches to International Law  UN United Nations  UNC United Nations Charter UNCITRAL United Nations Commission on International Trade Law UNGA United Nations General Assembly UNGP United Nations Guiding Principles on Business and Human Rights  UNITAF Unified Task Force UNOSOM United Nations Operation in Somalia UNSC United Nations Security Council USC United Somali Congress USSR United Soviet Socialist Republic VCLT Vienna Convention on the Law of Treaties       xiv  ACKNOWLEDGMENTS This dissertation would not have been completed without the persistent support and advice of many generous individuals. My gratitude towards the members of my doctoral committee cannot be overstated. Our discussions and their comments on earlier drafts helped turn an abstract idea into something concrete. Professor Benjamin Perrin’s guidance, from my first visit to the Law Faculty at UBC, was candid, incisive, and encouraging. His detailed review of the first full draft of my dissertation identified crucial points for further consideration and helped remove lingering ambiguities in my arguments. Professor Catherine Dauvergne’s unwavering optimism and support ensured continued momentum during crucial periods. Professor Dauvergne’s interventions, as well as her continued confidence in my work, consistently pushed the project to the next step. Finally, I will be forever grateful for the patience and guidance of my supervisor, Professor Benjamin Goold. Professor Goold’s advice on everything from methodology to interview techniques, substantive law matters, and writing tips were second to none. His guidance on research and writing were matched by his practical tips on how to keep everything together, both within and beyond the confines of the Ph.D.   Professor Robert Cryer, my External Examiner, and Professors Pitman Potter and Brian Job, my University Examiners, provided exceptional feedback on the project. Their comments challenged me to consider the application of the dissertation’s arguments to new scenarios and helped refine my approach. I am grateful for the depth of their reviews and to have had the opportunity to discuss my ideas with them.      The project was made possible with support through UBC’s Four-Year Fellowship, a grant from the Scholarship of the Social Sciences and Humanities Research Council (SSHRC), as well as the Charles Bourne Graduate Scholarship in International Law.  I am indebted to the late Ian Townsend-Gault, who took me on as a doctoral student and guided me through the initial stages of the project.   Finally, Erin Naef directly and indirectly supported this project in countless ways. Her constant encouragement, editing and commentary on my writing greatly improved the dissertation. I will be forever grateful for her assistance and for the time we spent together.          xv   DEDICATION Numerous people provided immeasurable support throughout this project. Joanne Chung went above and beyond her role of graduate student advisor, providing friendship and advice and ensuring her door was always open for a chat. I benefited from her valuable encouragement from the first to the very last day of this project. Joanne continues to keep a wonderful group of people in touch and my appreciation extends to her husband, Michael Wegleitner.  Professor Stéphane Beaulac helped drive the initial momentum for the dissertation. I am grateful for his mentorship since meeting him during my law studies at Université de Montréal.    A group of generous UBC students provided much-needed mutual support throughout the dissertation. I am indebted to Jennifer Moroz, Winston Guo, Martina Capsoni, Erika Cedillo, John Ferguson, and Don McIntyre for their friendship and for providing respite from long periods of solitary work. I am also thankful to have had Michael McMillan and Carl Reilly, two incredible sources of wisdom and reason, to turn to for help along the way.   Without the understanding and support of John Maxon, my employer and friend throughout much of my Ph.D., I would have had to abandon the project. Allowing me to work flexible hours around dissertation deadlines was as valuable as John’s motivational talks. My colleagues from the Library of Parliament were also important in my final push to completion. I am grateful to Andrew Barton, Julie Bechard, Karine Azoulay, Marie Dumont and Laura Barnett, who were instrumental in different capacities over the final twelve months.   I am much obliged to Jeanne and Dale Hoag for their generosity in hosting me as I concentrated on the final sections of the dissertation, as well as to Ariana Trudel for doing the same as I wrapped things up. I am profoundly grateful to Robert Oliphant, Peter Price, and Elspeth Burris for taking the time to provide valuable feedback and important edits. I am also grateful to Professor Anne Condon, Professor Harvey Richer, and to Ann Hayes for their positive messages, coffee dates, and ocean swims. I owe a heartfelt thank you to the rest of the Saturday morning crew for their continued interest in, and encouragement of, my academic work.      Long talks with Senator Elain McCoy, Jonathan Heinz, and Kenneth Carruthers helped keep my spirits up and sustained my confidence. I only hope that I can pass on as much support and encouragement to someone as they have done for me. A huge thank you is also owed to Lawrence Chen for his endless generosity in the leadup to my final oral defence.   Finally, I will forever be indebted to my family, and particularly to Hans Naef, for their patience, help, and understanding.  1  CHAPTER 1 – INTRODUCTION 1. The Concern On August 13, 2015, the United Nations Human Rights Committee (OHCHR) released a report on Canada’s compliance with the International Covenant on Civil and Political Rights (ICCPR).1 Among the Committee’s concerns were human rights abuses by Canadian companies operating abroad and the absence of remedies for their victims.2 The Committee cited the lack of Canada’s oversight of Canadian firms as a violation of the convention and recommended that Canada enhance the effectiveness of its mechanisms designed to ensure that all Canadian corporations respect human rights when operating abroad.3 Less than a year later, more than 180 Latin American nongovernmental organizations (NGO) wrote Canadian Prime Minister Justin Trudeau requesting that the operations of Canadian mining companies abroad be better regulated by Canada.4 More recently, a December 2017 report by the Justice and Corporate Accountability Project (JCAP) revealed details behind the reasons for the Latin American NGOs’ concerns. The report listed 30 targeted deaths and 709 cases of criminalization related to operations of 28 Canadian mining companies in Latin America between 2000 to 2015.5  Given that Latin America accounts for only                                                         1 Concluding observations on the sixth periodic report of Canada, UN HRC, 114th Sess., 2015, UN Doc. CCPR/C/CAN/CO/6.  2 Ibid. at para 6.  3 Ibid.  4 The April 2016 letter is available on the Canadian Network on Corporate Accountability website at   https://www.devp.org/sites/www.devp.org/files/documents/press-releases/letter_to_trudeau_eng.pdf [Accessed 22 July 2018].  5 Shin Imai, Leah Gardner, and Sarah Weinberger “The 'Canada Brand': Violence and Canadian Mining Companies in Latin America” (December 1, 2017), Osgoode Legal Studies Research Paper No. 17/2017, at 4, online https://ssrn.com/abstract=2886584 [Accessed 22 July 2018].   2  30% of Canadian mining abroad, these numbers raise considerable concern about the scope of this problem.6 Questionable corporate behaviour abroad is not only a Canadian problem and is not limited to the extraction industry.7 In his book on multinational corporations (MNC)8 and international human rights law (IHRL), Professor John Ruggie presents a troubling view of the behaviour of MNCs across many countries’ industries as a result of corporate globalization beginning in the 1990s: Evidence mounted of sweatshop conditions and even bonded labour in factories supplying prestigious global brands; indigenous peoples’ communities displaced without adequate consultation or compensation to make way for oil and gas company installations; food and beverages firms found with seven-year-old children toiling on their plantations; security forces guarding mining-company operations accused of shooting and sometimes raping or killing trespassers and demonstrators; and Internet service providers as well as information technology companies turning over user information to government agencies tracking political dissidents in order to imprison them, and otherwise helping those governments to practice censorship.9  As the former UN Secretary General's Special Representative for Business and Human Rights, Ruggie’s expertise in the area is extensive and his work regarding how IHRL can protect vulnerable                                                         6 Natural Resources Canada, Canadian Mining Assets (CMA) by Country and Region, 2015 and 2016, online https://www.nrcan.gc.ca/mining-materials/publications/15406 [Accessed 22 July 2018].  7 Two notorious examples are the Blackwater private military and security company (PMSC) Nisour Square shooting in Iraq (2007) and the Rana Plaza garment production building collapse in Bangladesh (2013).  8 As the name suggests, multinational corporations (MNCs) consist of businesses, regardless of size, incorporated or registered under the laws of a state who operate in more than one country. While an ownership claim or effective control by a company in one state over the operations of firms abroad helps to identify a supply chain, the degree of autonomy within the corporation can vary widely from one MNC to the other. Ownership scenarios also range from fully private to parapublic organizations. A more precise definition of MNCs, while an instructive exercise, is not required for the purposes of this dissertation. For a discussion about the definition, see OECD Guidelines for Multinational Enterprises, (OECD Publishing, 2011) online http://dx.doi.org/10.1787/9789264115415-en [Accessed 25 November 2017]. See also Bruce Kogut, “Multinational Corporations” in Neil Smelser and Paul Baltes eds., International Encyclopedia of the Social and Behavioral Sciences, (Oxford: Perygamon, 2001) 10197.    9 John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton & Company Ltd., 2013) at xv [Ruggie, “Just Business”].    3  populations is insightful. However, while advocating for more rigorous application of human rights law is important, constraints on its application have limited its ability to solve the problems described above.  MNCs often operate in states unable to provide domestic legal protection and the extent to which IHRL can fill the void by applying across territorial borders is limited. This means that a subsidiary of a Canadian company operating in a state experiencing civil unrest, for example, may face no enforceable human rights obligations. The state within which the company is operating (the host state) may simply not have the means to regulate MNCs on its territory. At the same time, save exceptions, the jurisdictional limits of Canada’s international human rights obligations (the home state of the company) are drawn at the border and do not apply to a subsidiary abroad.10 Despite a growing number of corporations in countries around the globe,11 the United States (US), the United Kingdom (UK), France, Germany and Japan remain home to the majority of large multinationals.12 Domestic laws in these countries are well developed, providing corporate regulation intended to protect citizens and residents. While MNCs based in Global North countries often benefit from economic stability, favourable taxation and regulatory environments, and a variety of export credit                                                         10 In R. v. Hape the Supreme Court of Canada ruled that the Canadian Charter of Rights and Freedoms applies only to state action abroad and not private actors. R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292.  11 Ruggie, “Just Business”, supra note 9. With respect to their increase since the 1990s, Ruggie states that “Multinational firms emerged robustly, in larger numbers and greater scale than ever before.”; For details and reasoning behind the growth, see the introduction to Paz Estrella Tolentino, Multinational Corporations: Emergence and Evolution (London: Routledge, 2001) at 3 - 5.   12 Jeffery W.J. Harrod, “Multinational Corporations” in Sohail Tahir Inayatullahaylo ed., Global Transformations and World Futures: Knowledge, Economy, and Society, Vol. I (Isle of Man: Encyclopedia of Life Support Systems, 2009) at para. 3.1.     4  programs available in their home countries, they operate worldwide – often in areas without the constraints on behaviour imposed in their home state.13   The growth in size and reach of MNCs, as well as their overall numbers adds impetus to their scrutiny. At the turn of the century, the sales of the top five corporations worldwide were each greater than the Gross Domestic Product (GDP) of 182 countries.14 The combined sales of the top 200 corporations were larger than the combined economies of all countries save for the biggest 10 and the top 25 MNCs in the world were richer than approximately 170 nations.15 Furthermore, according to the United Nations Conference on Trade and Development, there were more than 60,000 MNCs by the year 2000 (up from 37,000 in 1990) with approximately 800,000 foreign affiliates.16 Finally, in 2010, 57 corporations figured in the 100 largest economies in the world.17 Accordingly, regulation of such influential – and so many - players is no small task. For states                                                         13 Corporations possess legal personalities under the domestic law of the states in which they are incorporated or registered. Therefore, under international law, corporations hold a nationality. There is no single test to determine corporate citizenship. While the state of incorporation is the primary determinant, nationality is also a factor of a company’s siege social or location of administration. Other tests consider nationality of managers and shareholders or simply the state in which the majority of business is performed.  14 “General Motors is now bigger than Denmark, DaimlerChrysler is bigger than Poland, Royal Dutch/Shell if bigger than Venezuela, IBM is bigger than Singapore, and Sony is bigger than Pakistan.” Sarah Anderson and John Cavanagh, The Top 200; The Rise of Corporate Global Power, (Washington D.C.: Institute for Policy Studies at “Key Findings”), online http://www.ips-dc.org/top_200_the_rise_of_corporate_global_power/ [Accessed November 16, 2017].  15 M.B. Baker, “Tightening the Toothless Vice: Codes of Conduct and the American Multinational Enterprise” (2001) 20 Wisconsin International Law Journal 89 at 94.  16 World Investment Report 2005: Transnational Corporations and the Internationalization of R&D (New York and Geneva: United Nations, 2006) at xix, online http://unctad.org/en/Docs/wir2005_en.pdf [Accessed November 16, 2017].  17 Jernej Letnar Černič, Human Rights Law and Business; Corporate responsibility for fundamental human rights (Groningen: Europa Law Publishing, 2010) at 19.   5  preoccupied with drought, famine, armed conflict, or poverty, the exercise of authority over these entities is a formidable challenge.18  States, individually and collectively, have responded in different degrees and in different ways to the growing influence of MNCs. Some countries have tacitly welcomed investment by companies while remaining unable to respond to violations of their domestic law. Others have enacted and enforced legislation imposing obligations on corporations.19 Beyond domestic legislation, international guidelines and industry-written Corporate Social Responsibility (CSR) codes have attempted to influence corporate behaviour but remain non-binding and can be toothless when needed most.20 The UN Guiding Principles on Business and Human Rights (UNGP), endorsed by the OHCHR in June 2011, were an attempt by the organization to provide a global standard for addressing the risk of adverse impacts on human rights linked to business activity. Yet despite recent attempts by some states to regulate MNCs, the comments of the OHCHR above continue to ring true: clear remedies for victims of violations of international obligations by MNCs, as well as                                                         18 For Third World states poverty and its resulting economic disadvantage are often identified as the most widespread issue. See Ali AlʼAmin Mazrui, “Africa Entrapped: Between the Protestant Ethic and the Legacy of Westphalia” in Hedley Bull and Adam Watson eds. The Expansion of the International Society (Oxford: Clarendon Press, 1992) at 301.  19 Alice de Jonge, "Transnational corporations and international law: bringing TNCs out of the accountability vacuum" (2005) 7:1 Critical Perspectives on International Business 66 at 67. De Jonge explains that Western countries have enacted legislation “which, implicitly or explicitly, protect human rights standards, and include laws covering conditions and safety at work, environmental protection, non-discrimination, and rights of free speech and assembly.”  20 An example of the confusion created by the plurilegal setting is illustrated by Lee James McConnell in his article on liability of multinational corporations: “… complex challenges concerning selection of an appropriate forum, the allocation of jurisdictional competence, and the application of a particular state’s domestic law frequently arise. The situation is further exacerbated by the variety of tangentially relevant laws, including human rights, tort, employment, and company law.” Lee James McConnell "Establishing liability for multinational corporations: lessons from Akpan" (2014) 56:2 International Journal of Law and Management 88 at 88.   6  effective oversight and regulation are often absent from law.21 Simply stated, corporations with imposing power, primarily based in developed states, operate to lower standards with impunity in other states.  Finally, the problem is not limited to violations of human rights law. Cases abound of corporate violations of environmental law, bilateral investment treaties, International Humanitarian Law (IHL), and even United Nations (UN) Security Council Resolutions (SCR). Private military and security companies (PMSC), for example, risk violating IHL in addition to human rights law and, as the case study for this dissertation shows, companies have violated arms embargos implemented by the UN Security Council (UNSC). In summary, the scene set in this introduction is one of an imbalance. Global North countries benefit from goods and services of MNCs, from employment for their citizens and from taxation income. The citizens of these countries are protected by established laws, including labour legislation, human rights, and consumer protection laws, allowing them to benefit from the existence of the companies while remaining protected from exploitation. Meanwhile, a significant number of MNCs based in the Global North have subsidiaries in states with weak legal protection due to a variety of factors including, protracted armed conflict, civil unrest, corruption, and/or severe economic disparities. While some of these countries exercise their sovereign right to allow MNCs to operate with lower standards on their territory, for others, it is not a question of choice.                                                         21 Continuing with the example of Canada, Peña states that out of more than 100 countries hosting Canadian mining companies, most lack the legal remedies required to protect affected communities. Peña highlights that while there are no provisions in international law that negate home state jurisdiction, Canadian courts have refused to hear human rights cases on the grounds of forum non conveniens. Susana C. Mijares Peña, “Human Rights Violations by Canadian Companies Abroad: Choc v Hudbay Minerals Inc” (2014) 5:1 Western Journal of Legal Studies 1 at 1.    7   2. Introduction to the theoretical approach The purpose of this dissertation is to identify factors that contribute to the persistence of the scenario described above and to propose steps towards eliminating the imbalance. The dissertation is particularly concerned with hidden contributing factors that are part of the international legal system and that have thus far escaped academic legal scrutiny. To help frame the topic and to provide a methodological approach, the dissertation is guided by the Third World Approaches to International Law (TWAIL) method. Fully described in chapter two, TWAIL is a scholarly agenda that evolved under concern for the Global South. It identifies and critiques colonial legacies in international law, providing an alternative approach to understanding how international law operates. Rather than consider international law to be comprised of objective principles and rules emanating from the will of states, TWAIL operates under an assumption that international law consists of principles and rules that emanate from the will of certain states. TWAIL does not necessarily critique how the mechanisms of international law work, but rather how they are appropriated by certain powers to further their ends. The method seeks out subjugated voices in international law and illustrates how the international legal system perpetuates inequalities. Proposing solutions is equally important under the TWAIL approach, namely ones that promote balance and justice within the international system rather than relying on concepts of international law entrenched during the colonial period.   In choosing my supporting legal theory, I was mindful that adopting a traditional approach risked limiting the possible solutions. This concern stemmed from a suspicion that the absence of an effective mechanism for the regulation of MNCs operating outside their home state was not simply the result of a “blind spot” of international law but rooted in something systemic. My previous  8  studies in International Public Law focused on employing the authoritative sources listed in the Statute of the International Court of Justice (ICJ), but rarely included questioning the workings of the international legal system from a higher level. As such, the answers to these questions were only found by applying applicable treaties, customary law, and general principles of law rather than by reflecting upon how rules were formed or how they might be manipulated in favour of powerful states. The investigation of a potentially systemic problem required an approach that fundamentally questioned the international legal system rather than simply applying international law from within. While I chose my topic and applicable legal theory before Andrea Bianchi’s 2016 book International Law Theories, his statement about the importance of non-traditional legal theories resonated with my thoughts at the time of conception of my dissertation. Bianchi writes that his book is an “attempt to get an increasing number of scholars, researchers, and students to realize that there are different ways in which one can think about international law.”22 He advocates in favour of increased attention towards alternative approaches and highlights the need to “stir up ‘the water’ that we, as international lawyers swim in.”23 In this same spirit, and with the goal of uncovering lesser known systemic issues in international law, the chosen method for this dissertation was selected as a step away from traditional approaches.  The circumstances outlined in this introduction appear compatible with TWAIL at first blush. The scenario of powerful corporations based in the Global North and operating to lower standards in fragile states represents a symptom that should reflexively raise suspicion among TWAIL scholars.                                                          22 Andrea Bianchi, International Law Theories (Oxford: Oxford University Press, 2016) at 1.  23 Ibid.   9  Indeed, this situation inspired my initial interest in the topic and led me to introductory readings on Corporate Social Responsibility (CSR), the so-called universality of IHRL, colonialism, and on the proliferation of MNCs worldwide. While identifying why the imbalance exists is a legitimate pursuit, more profound thought considers whether aspects of international law not only allow for the imbalance but entrench or encourage it. This second layer of TWAIL-inspired thought emerged when I considered the impunity of MNCs in fragile states in relation to celebrated developments in international law, namely, the proliferation of multilateral human rights conventions and institutions since 1945. Critical views of how states easily dismiss their international human rights obligations24 provided me with an indication that the international system may not function in the way it appeared on the surface. Although instruments such as the UNGP and domestic legislation with respect to MNCs point towards an emerging trend of states acknowledging more responsibility vis-à-vis corporations within their jurisdiction, there appeared a need to determine whether hidden aspects of international law played a role in keeping some of the most vulnerable areas of the world free of controls on MNCs. That is, the persistence of a legal void despite advances made to control MNCs encouraged me to determine whether an aspect of international law was actively countering these progressive developments.   Finally, having studied law and having worked as a lawyer in Global North, TWAIL provided a counterbalance to my subject positioning. As noted above, when addressing topics of international law, my instinct has traditionally been to apply the tools I learned in Western legal studies rather than reflecting critically on the tools themselves. TWAIL removed my focus from this bubble and                                                         24 Jack L.Goldsmith and Eric Posner, Limits of International Law, (New York: Oxford University Press, 2005) at 112.  10  allowed me to question the validity of a fundamental component of modern international law.  Given that TWAIL inspired my focus on fragile states and that many such states are in the Global South,25 the approach safeguarded against tendencies to return to solutions limited by Global North approaches.    3. Introduction to the evaluative and normative frameworks In searching for possible factors contributing to the scenario described above, I became curious as to how corporate veils operate in international law. My initial interest was primarily with respect to the extent to which states that are home to large MNCs might profit from the separation between state and corporation. Given the benefits MNCs bring to their home states and that they are artificial entities constituted under the laws of those states, I pondered the fairness of companies violating laws outside of their home states with impunity when the same acts, if performed by a state, would trigger a form of recourse under international law. This led me to consider whether there is always a clear separation between the state and a corporate citizen or whether, in certain circumstances, home states could be held responsible for transgressions committed by their corporate citizens. The legal doctrine that came to mind when considering linking the acts of an entity to a state was that of the international customary law (ICL) of state responsibility. The doctrine of state responsibility contains mechanisms that can attribute the behaviour of entities or individuals abroad to a home state, triggering the home state’s responsibility and initiating forms of recourse. As explained below, focusing on how the doctrine of state responsibility functions and how it is being                                                         25 Fragile States Index, Measuring Fragility; Fragility in the Word 2019, online https://public.tableau.com/views/fsi-2018-world-heatmap/DashboardWorldMap820?:embed=y&:embed_code_version=3&:loadOrderID=0&:display_count=yes&publish=yes&:origin=viz_share_link [Accessed 27 May 2019]  11  manipulated not only identifies one of the contributing factors to the impunity of MNCs, but also provides a path to a solution to the problem.   Once again, in its concern for the Third World and systemic biases in international law, TWAIL influences where a researcher looks for a problem and sets parameters for how a problem is solved. Therefore, as the theoretical framework for this dissertation, TWAIL involves both evaluative and prescriptive aspects. The evaluative (or descriptive) aspect in this dissertation lays out the failure of international law to provide a legal framework to ensure fair practices by MNCs, thus protecting the public. It demonstrates this by revealing a bias in the formation of CIL, by revealing how the customary law of state responsibility is currently being applied through a narrow codification document, and by drawing attention to the limits of IHRL. The prescriptive aspect of the dissertation, that is, how the bias could and should be fixed, is provided by focusing on a normative solution in the form of a proposed application of state responsibility.  This, it will be argued, can be done by encouraging the eschewal of the narrow draft codification of the rules of state responsibility introduced by the International Law Commission (ILC) and by considering modern and postmodern applications of CIL. The proposed solution diminishes the strength of the corporate veil in international law, specifically with respect to the doctrine of state responsibility, and introduces the possibility of increasing the involvement of home states in the regulation of the behaviour of their corporate citizens abroad. The dissertation argues that when states can be (even partly) associated to the acts of MNCs incorporated on their territory, aspects such as domestic legislation calling for transparency of operations, improved domestic due diligence, and legislation with extraterritorial effects become options for controlling corporate behaviour abroad.    12  Before addressing the sources and structure of the dissertation, a short introduction to the normative framework being employed is provided below. Through the doctrine of state responsibility, international law provides a system in which states can be held responsible by their peers for breaches of their international obligations. State responsibility rules are founded in CIL, though they are often referred to in the form of their draft codification under the ILC’s 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter referred to as the ASR of the draft articles).26 The obligations subject to the doctrine consist of everything from centuries-old principles to the latest treaties. They contain “all the possibilities” of primary obligations of states under international law27 including, inter alia, bilateral and multilateral treaty obligations, CIL, and obligations under general principles of law.28 State responsibility manages what occurs between states when these primary obligations are violated. That is, the doctrine provides the rules to be followed, often referred to as secondary obligations, when states believe that primary obligations have been violated. In its attempt to codify these secondary obligations under the draft articles, the ILC claims to have taken into account long established principles of international law,29                                                         26 International Law Commission, “Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries 2001” (2001) 2:2 Yearbook of the International Law Commission para. 1, [ASR and Commentary] online http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf  [Accessed 29 November 2018]; The primary goal for codification, be it at the domestic or international level, is to make law more predictable and facilitate its application. Domestically, codifications replace existing rules with new versions that immediately hold authority. Within common law, the purpose is essentially to transform a rule of law from its unwritten form to one within legislation. Within civil law, codes have been established with the specific intent of establishing common rules within a defined jurisdiction. Civil codes go further than simply reformulating laws – they attempt to collect all the rules on given topics from all sources. See Pierre-André Côté and Stéphane Beaulac, Interprétations des lois, 4th ed, (Montreal: Themis, 2009) at 60, para. 180.  27 James Crawford, The International Law Commission’s Articles on State Responsibility; introduction, text, and commentaries (Cambridge: Cambridge University Press, 2002) at 85.  28 See Chapter 7 for a discussion on Security Council Resolutions (SCR) as primary obligations.  29 Ian Brownlie, Principles of Public International Law, 5th ed (Oxford: Oxford University Press, 1998) at 435; See also Olivier de Frouville “Chapter 16.3: L’attribution d’un fait à l’Etat - Les personnes privées ”  13  interpretations from international case law, and evidence of state practice.30 Indeed, the articles are meant to be a manifestation of a doctrine that has evolved over hundreds of years, culminating in rules that assign responsibility along with reparations.31 As per the ILC Commentaries on the ASR, the codification sets out the “basic rules of international law concerning the responsibility of states for their internationally wrongful acts.”32   After slow and divisive development of a draft codification under the ILC, progress towards a final document intensified as of 1992.33 Forty years of deliberations, drafts, and reports of Special Rapporteurs culminated in the finalizing of the ASR on August 9, 2001. At this point, the ILC was faced with differing opinions from states on how to review and consider the project. The majority favoured initiating the steps leading to the formation of a convention, which typically include a preparatory commission and diplomatic conference.34 Preparatory commissions are time-consuming but provide all states involved with a measure of input into a draft text and ensure that all participants can voice concerns. Yet rather than push to have the document signed by states as                                                         in Pierre Bodeau, James Crawford, Alain Pellet, and Sandra Szurek, eds, Le droit de la responsabilité internationale (Paris: Pedone, forthcoming) at 4 where Frouville traces the state responsibility debate back to Vattel and Grotius.   30 Danwood Mzikenge Chirwa, “The Doctrine of state Responsibility as a Potential Means of Holding Private Actors Accountable for Human Rights” (2004) 5 MJIL 1 at 2, see also Noble Ventures, Inc. v Romania, Award, ICSID Case No. ARB/01/11, IIC 179 para 69 (2005) “While those Draft Articles are not binding, they are widely regarded as a codification of customary international law.”   31 Borzu Sabahi, Compensation and Restitution in Investor-state Arbitration: Principles and Practice, (Oxford: Oxford University Press, 2011) at 7. Sabahi states that the modern doctrine of state responsibility is the result of 2000 years of thought.  32 ASR and Commentary, supra note 26 at 48 (para. 1).  33 Supra note 27 at 60.  34 Ibid.   14  a convention, the ILC chose the quicker option of having the articles recommended by the UN General Assembly (UNGA). The commission proposed that further consideration of the articles and possible adoption of a convention occur after a period of reflection.35 Almost two decades later, the period of reflection is ongoing with no preparatory commission or conferences in sight. This is a key observation for this dissertation as it underlines important TWAIL elements that are repeated in the chapters ahead. The ASR was written by jurists, not by official representatives of states. The rules included within the draft articles were extrapolated from primary obligations of international law and were intended to be further considered in later sessions of the UNGA.36 States have not had the opportunity to provide the type of input and to negotiate the elements of the ASR as they would in a preparatory session. Yet the ASR, which contain elements that clearly favour Global North states, are applied in a manner similar to a convention and are cited as the authority on the matter of state responsibility. Thus, the formation of the ASR was detrimental to weaker states, as has been its ongoing implementation.   Once again, the ASR do not hold the weight of a convention. Yet they are cited by the ICJ, as well as specialized arbitration tribunals and dispute settlement processes such as trade and investment law tribunals and the Dispute Settlement Understanding of World Trade Organization respectively. Courts and tribunals perform some general interpretation of the rules of state responsibility as reflected in the ASR, but their main focus is on the use of the rules to complete the application of                                                         35 Ibid. The GA was to “take note of the text and to commend it to states and to international courts and tribunals”; UN General Assembly, Responsibility of States for internationally wrongful acts: Resolution adopted by the General Assembly, 28 January 2002, A/RES/56/83, online http://www.refworld.org/docid/3da44ad10.html [Accessed 12 November 2017]  36 Supra note 27 at 59.   15  their specific areas of law. Even though much attention is paid to how deciding bodies have interpreted state responsibility, this overlooks the fact that no courts or central institutions are needed for application of the rules. The rules can be invoked through declarations of injured states, controlled countermeasures can be taken at an injured state’s will, and reparations are performed by offending states to stop or avoid countermeasures.   Although a cursory reading of the ASR suggests that there are several options for tying the actions of MNCs abroad to their home states, chapter four demonstrates that the imputation mechanism is prohibitively difficult to trigger under the narrow interpretations included in the draft codification. As demonstrated in chapter four, the criteria for attribution require either a significant amount of integration into the state structure (formal or not) by the company or a high degree of control over a company’s actions. Of the scholarly works that discuss the responsibility of states for the acts of their corporate citizens overseas, those that have applied the ASR have mostly stopped at literal readings of the draft articles.37 This dissertation picks up where others have left off by investigating attribution for acts of third-parties in ways not addressed in the ASR. Specifically, the dissertation focuses on acts of MNCs in fragile states. For example, most conclusions in this regard have been consistent with the ASR and its Commentaries: a corporate veil separates MNCs from their home states and without effective control over the company, attribution cannot occur.38 While other                                                         37 See Chapter 2 of Lindsey Cameron & Vincent Chetail, Privatizing War: Private Military and Security Companies under Public International Law (Cambridge: Cambridge University Press, 2013) at 134 for an extended investigation into the application of state responsibility to PMSCs and Carsten Hoppe “Passing the Buck: State Responsibility for Private Military Companies” (2008) 19:5 EJIL at 991 [Hoppe, “Passing the Buck”]; Chirwa, supra note 30 at 22; Chia Lehnardt, “Private military companies and state responsibility” in Simon Chesterman and Chia Lehnardt (eds.), From Mercenaries to Market: The Rise and Regulation of Private Military Companies, (Oxford: Oxford University Press, 2007) at 140.  38 See ASR and Commentary, supra note 26 at 48, Commentary to Article 8 paragraph 6: “[…] it is necessary to recall that international law acknowledges the general separateness of corporate entities at the national level […] The fact that a state initially establishes a corporate entity, whether by special law or  16  commentators have provided insight into how the ASR are generally to be applied, few have ventured outside the common interpretations of the draft codification, as this dissertation does in chapter six. I contest the extent to which the draft codification represents actual CIL throughout this dissertation. TWAIL therefore shapes this dissertation by helping to recognize the problem (impunity of MNCs in fragile states), by identifying an aspect of how international law perpetuates the imbalance (the role played by the draft articles), and by influencing the proposed solution (refocusing on fair customary law and an emerging application of state responsibility).   In summary, this dissertation addresses an aspect of international law that contributes to the continued existence of the regulatory gap described above and argues that emerging interpretations of international law can provide a solution. Its specific normative focus is narrowed to the doctrine of CIL of state responsibility. Admittedly, state responsibility is likely only one aspect in a web of contributing negative factors. However, the fact that it is both part of the problem and a possible solution make it particularly relevant to study. Framed as research questions, the dissertation addresses the following:     a) How has international law contributed to MNCs operating with impunity in fragile states?  b) How effectively can the application of an equitable doctrine of state responsibility contribute to more comprehensive regulations of MNC’s in fragile states?  4. Structure of the dissertation The dissertation is divided into three parts. Part A introduces the legal theory supporting the research and provides a short history of state responsibility, Part B addresses the applicable                                                         otherwise, is not a sufficient basis for attribution to the state of the subsequent conduct of that entity.” (footnotes omitted)    17  international law and the normative solution, and Part C provides a case study that tests the efficacy of the proposed solution through a comparison to the existing state of affairs.  4.1 Part A Part A focuses on the method that inspired the study and provides a brief historical review of state responsibility. Chapter two describes the TWAIL approach and outlines the role it plays in this dissertation. As noted above, in selecting a theoretical approach for the dissertation, preference was given to one that avoided assuming the legitimacy of international law. Chapter two therefore elaborates upon how TWAIL operates under the assumption that international law is not neutral and not impartially administered. The chapter shows that the TWAIL approach makes no apologies for being partisan. Its agenda to denounce inequalities in international law might subvert positivist views of neutrality and objectivity of law, but it does not discount using international law in a fair manner to address social, economic, and political injustice. The chapter further explains that while TWAIL scholars contest the partiality of international law, they generally do not bring into question the ability of international law to create and sustain legal norms. That is, for many TWAIL scholars the answer to inequality and injustice can be found within the legal system. Indeed, the same strength of international law that contributes to the institutionalization of inequalities can be used, once exposed, to overcome them.   The chapter traces the method’s history and outlines the contributions of distinguished scholars. The review includes a discussion of early Third World approaches, the emergence of TWAIL, and the method’s concerns with the current international legal system. The survey of the method culminates in the identification of three primary aspects of the approach that ultimately contribute to the framework of the dissertation: 1) identifying subjugated voices in international law, 2) determining how international law perpetuates this subjugation, and 3) offering a solution that  18  injects equality into the international system. The identified subjugated voice of fragile states is then defined before outlining how TWAIL applies to the rest of the dissertation. Naturally, the sources for chapter two are the writings of TWAIL scholars, as well as the works of Third World commentators that predate TWAIL. The early TWAIL views of Antony Anghie, Bhupinder Chimni, James Gathii, and Makau Mutua are considered, among others, along with the newer approaches of Pooja Parmar and Karin Mickelson. The literature review, as much as possible, included works of authors from different regions.  With the underlying thread of the dissertation identified, Chapter three provides background for the discussion of state responsibility by showing how the doctrine has evolved alongside other principles of international law. The chapter provides a history of the roots and development of state responsibility, as well as an explanation of the elements related to its application. Literature is primarily used to support the historical review of state responsibility. The primary source works of Hugo Grotius, August Heffter, and Dionisio Anzilotti, among others, are cited where possible, with secondary sources of scholarly writings used to complete the section. Once the pairing of state responsibility and concepts such as sovereignty are addressed, arguments pertaining to where CIL is heading become easier to grasp. Thus, I use chapters two and three to make readers familiar with concepts that surface throughout the dissertation and to set the dissertation’s direction.   4.2 Part B Part B discusses three scenarios related to how and to what extent MNCs might be subject to regulation by their home state: 1) under the ASR, 2) under IHRL, and 3) under emerging CIL of state responsibility. Together, the three chapters demonstrate how and why the regulatory gap for MNCs in fragile states exists, how international law contributes to its persistence, and the  19  possibility of addressing the issue by rethinking state responsibility. Chapters four and five provide the evaluative aspect of the dissertation. This is a necessary component of the dissertation as it demonstrates how international law both creates and fails to resolve lawless jurisdictions in fragile states, as well as sets up the solution proposed in chapter six. Although the early chapters show that the ASR and the rights-based solutions can bind home states for acts of their corporate citizens abroad, reviewing these methods is primarily done to demonstrate their limits.   Chapter four first delivers an overview of the few ways in which home states can currently be held responsible for acts of entities such as MNCs abroad under the ASR and outlines the high threshold of control needed to impute such acts to home states. The different possibilities of attribution are examined in turn, from state organs and those empowered to represent the state through domestic legislation to entities under the express direction and control of the state. The second part of the chapter includes a discussion of TWAIL, demonstrating how Global North states benefit from the high threshold and how international law consolidates theirs gains. In this part, I address the perpetuation of inequalities among states by discussing how narrow interpretations of the ASR restrict the development of the CIL of state responsibility. For sources, the first part of chapter four employs mainly the draft articles themselves, their accompanying Commentaries from the ILC, and international tribunal decisions interpreting the ASR. The partiality of the ILC Commentaries, however, are noted. While they are a useful aid for interpreting the ASR, they were written by the same commission that proposed the project and contribute to a narrow interpretation of the document. The second part of the chapter uses recent reports from the Sixth Committee of the UNGA (Legal), case law, and scholarly commentary to reveal the views of states with respect to the ASR and indicate how the use of the draft articles stunts the development of CIL. The chapter  20  therefore relies heavily on primary source materials, resorting to academic commentary mainly to aid with the interpretation of case law.  Chapter five then examines how IHRL fills part of the legal gap created by strict interpretations of the ASR. The chapter begins by explaining how a state’s positive human rights obligations ensure the protection of those in its territory from third parties. It then goes on to detail the limited instances in which the extraterritorial application of IHRL obligations can be relevant for cases of MNCs operating abroad. The chapter concludes by suggesting that the extraterritorial application of human rights law may be expanding but that it ultimately does not solve the problem of impunity of MNCs in fragile states. The chapter draws on a variety of sources including texts of international human rights instruments (e.g. UN and regional human rights conventions), decisions of regional treaty bodies such as the European Court of Human Rights (ECtHR), communications of the ICCPR’s Human Rights Committee (HRC), and domestic legislation and court decisions. Analysis from leading scholars helps to establish the foundation of the arguments related to extraterritorial jurisdiction and to identify key case law on the topic  Chapter six returns to TWAIL and state responsibility to argue that CIL of state responsibility has evolved beyond the ASR. The chapter then proposes a reconsidered, and fairer, attribution criteria that would be consistent with emerging CIL. Indicators of emerging CIL are therefore necessarily addressed first. These include declarations by states about the ASR and other official pronouncements, increasing use of extraterritorial legislation by states to regulate MNCs, and an evolution in the concept of state sovereignty. The chapter then argues that, with these developments, comes a necessary re-evaluation of the way attribution of responsibility is perceived in cases of MNCs in fragile states, contributing to diminishing the element of required control by  21  the state. The proposed reconsidered attribution criteria include consideration of the fragility of the host state, the amount of support provided to the MNC from the home state, and the existence or absence of due diligence by the home state. Sources for chapter six comprise of academic commentaries, international conventions, GA Sixth Committee meeting reports, and domestic law of various states. International and regional cases and comments reveal assumptions by deciding bodies surrounding the ASR and errors of interpretation. They also provide evidence of the true flexibility of the attribution criteria. International initiatives and domestic legislation for selected states are presented as evidence of a growing willingness of states to commit to regulating actions of MNCs abroad.39 Academic literature informs the background discussion on the evolution of the concepts of sovereignty and state responsibility. For its consideration of new attribution criteria, the chapter begins by employing two multilateral treaties that have dealt with lawless spaces for guidance. It then relies upon a mix of literature, open-source government departmental information, and case law to build the elements of the criteria.    4.3 Part C Chapter seven applies the substantive concepts of Part B to a case study. It considers state responsibility within the scenario of the violation of an international obligation by a MNC in Somalia. Specifically, the chapter analyses the case of a PMSC, Saracen International (Saracen), that allegedly violated several UNSC Resolutions (SCR), including a long-standing arms embargo. The value of choosing Somalia and Saracen is explained in section two of chapter seven. Briefly, Somalia provides a clear example of a fragile state with little to no control over much of its territory during the time of the case study.  Saracen, as the second largest military force in the country at the                                                         39 The selection criteria are listed in section 2.5 of chapter six.  22  time, was incorporated outside of the country and operated with impunity within Somalia, even after violating a UN arms embargo. Although the case study has certain confounding characteristics (ambiguous home state involvement with the company and funding from a third state), one can generally extrapolate lessons on MNCs as a whole. Indeed, all case studies will have intricacies and the Saracen case is no different. The chapter subsequently performs a TWAIL analysis of PMSCs before confirming the fragility of the state as one of the elements to be satisfied for the application of the emerging attribution criteria. The chapter then provides a comparative understanding of the legal concepts discussed in Part B by assessing the same fact pattern under the narrow application of the ASR, under IHRL, and under the proposed emerging approach. Moreover, it tests the feasibility of the emerging approach, helping to identify any problems with its application. The chapter relies on customary law, treaty texts, and several SCRs to establish the violation of international obligations by the PMSC in question. A significant portion draws on views of courts, tribunals, and committee reports. Interviews were sought with individuals familiar with the PMSC industry in Somalia, including representatives of NGOs working in the country, PMSC employees, academics, and journalists. The interviews were used to verify and elaborate upon preliminary information gathered from literature and to establish a more detailed picture of Somalia during the period of the case study. The questionnaire employed was designed to provide consistency among participants and to protect against the interviewer guiding the result. It was, however, also flexible enough to adapt the interview to issues uncovered during further research or brought up during other interviews. The complete methodology of the interviews is outlined in section four of chapter seven. The questionnaire has been included in the Annex in Part D.    23  5. Conclusion  The goal of this dissertation is to contribute, through a legal framework, to an increase in accountability of MNCs in fragile states. I chose the solution proposed in this dissertation for both concrete and abstract reasons. The more tangible reasons include the relative strength of home states in enforcing law. That is, saying nothing of obligations to do so, Global North states that are home to the majority and the largest of MNCs have the greatest capacity to regulate corporate acts at home and abroad. State responsibility applies to all violations of international obligations. Thus, state responsibility’s breadth reaches farther than, for example, IHRL. Finally, the framework of state responsibility already exists. In this respect, state responsibility already has a functioning set of norms and what is needed for it to contribute to corporate accountability is relatively small compared to what is required under other initiatives. The abstract reasons are founded in the shared responsibilities of the international community and in having developed states assume responsibility for the political, social, and economic systems they adopt. Indeed, it is curious that international law favours principles obliging states to use their property so as not to injure others, yet MNCs can establish themselves under the laws of one state and operate elsewhere to lower standards. The following chapters outline aspects of international law that hold state responsibility back from playing a role in regulating MNCs, as well as the potential the doctrine has should the inhibiting factors be removed. Of course, the proposal herein is not the only way of contributing to increased corporate accountability. Other approaches could include supporting the implementation of CSR guidelines promoted by international institutions, targeting executives through ICL, or encouraging industry led initiatives to name only a few. Efforts towards full corporate accountability can be exercised on several fronts and can complement one another; the support of  24  state responsibility as a tool to diminish corporate violations of international law should not be seen as a rebuke of other initiatives.       25  PART A – THEORETICAL UNDERPINNING CHAPTER 2 - THIRD WORLD APPROACHES TO INTERNATIONAL LAW   1. Introduction This chapter elaborates upon the theoretical approach briefly introduced in the first chapter. In its explanation of how TWAIL scholarship emerged, the chapter provides both an account of the source of TWAIL’s distrust of the international system and an understanding of how the theory can be applied. The chapter shows that TWAIL’s suspicion of the international legal system is less a presumption of fault or corruption than a method of prioritizing the consideration of the realities of how power operates between states. An important component of this is that the aspect of consolidation of power can operate behind the scenes of international law in a systemic manner. As such, TWAIL matches its concern of subjugated populations with an analysis of international law that is free from assumptions of equality within the international system. The description of TWAIL below confirms the theory’s status as an outside approach and makes it clear that it falls under Bianchi’s category of an alternative way of thinking about international law as noted in the introduction. TWAIL is reflected in this dissertation by the topic’s concern for fragile states, by the focus on how international law contributes to their fragility through the draft articles of state responsibility, and by the promotion of emerging customary law as a potential, if imperfect, solution. TWAIL, among other things, shapes how this dissertation considers the concepts of fragile states, state responsibility, sovereign equality of states, and CIL. Each of these aspects are addressed in light of TWAIL throughout the chapters ahead. Since it would be premature to discuss the issues before TWAIL is understood, this chapter outlines the concept of the approach. Finally,  26  given that they are the subjugated population of concern in this dissertation, the chapter addresses the challenges of fragile states and how these states should be considered under TWAIL.  2. Explanation of the TWAIL method 2.1 Early Third World views and the lead up to TWAIL Emerging during the second period of decolonization,40 academic interest in international law and the Third World remains relatively new. The various approaches to Third World scholarship share the goal of improving the condition of Third World populations and of subjugated groups. The differences between the main approaches, however, reflect the hopes of achieving equality through inclusion within the international system versus an understanding that the system itself reinforces inequalities. The first wave of commentaries concerning the struggles of subjugated populations and international law emerged during decolonization and continued through the Cold War.41 The focus at the time was centred on the incorporation of new states into the existing international system, along with it the right to self-determination and full national independence, as well as integration into the international economy.42 Early Third World scholars insisted on the promotion of development for the proper functioning of the principle of sovereign equality of states and they believed that international law could be changed from within. These scholars also contested the                                                         40 Defined as the period of post WWII up to 2000, the era began in 1945 with 50 nations signing the Charter of the United Nations, 26 June 1945, Can. T.S. 1945 No. 7 [UN Charter] with Article 1(2) indicating that among the purposes of the organization is the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.  41 Martin Gallié, “Les théories tiers-mondistes du droit international (TWAIL) Un renouvellement ?” (2008) XXXIX:1 Revue Études internationales at 19. Gallié explains that before decolonization Third World populations were subject to the national law of their parent states and their cases were rarely addressed by international institutions.  42 Ibid.  27  over-reliance on chronological aspects of international law. That is, they challenged the view that historical international norms were entrenched to the extent commonly believed and could not be changed. Therefore, not only did early Third World scholars believe that incorporation of subjugated groups into the international system would increase their welfare, they believed that, as new participants, these groups would change international law in a positive manner and break the system’s entrenched traditions. It appears that for some, incorporation into the system was less about improving international law and more about finding a means of empowerment to fight for sovereignty. By embracing the international system as established by Western states and by using doctrines based on recognized humanitarian values, Third World countries could make use of the tools created by the major powers against the latter.43 Thus, where TWAIL advocates suggest that the current international system systemically holds Third World states back, early Third World scholars saw benefits of incorporation into the institutions of their subjugators.  Building on momentum created by the Badung (Indonesia) Conference in 1955,44 the 1960s saw an emancipation of Third World nations that resulted in an important period of decolonization. Third World states used their increased numbers in the UNGA to pass important declarations, many of which affirmed the will of those states in political and economic matters.45 The flurry of activity                                                         43 This is an interpretation of Gallié’s statement “Ainsi, avec la décolonisation, les droits humain et l’ensemble des valeurs humanitaires du droit international se retournent contre leurs promoteurs au nom du droit des peuples à disposer d’eux-mêmes.”    44 The Badung Conference (1955), often referred to in discussions of resistance to colonialism, consisted of a meeting of 29 countries, many newly independent. The agenda covered cold war tensions and condemned colonialism in all its forms. It is commonly referred to as the precursor to the formation of the Non-Aligned movement.  45 Concerning declarations of independence of states under colonial tutelage: Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res. 1514 (XV), UN GAOR, 15th Sess., Supp. No. 16, UN Doc A/RES/1514(XV), (1960), 66; the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among states in Accordance with the Charter of the  28  from the newly formed states at the UN through GA resolutions, through declarations, through their own diplomatic meetings, and the fact that they represented more than fifty percent of the world’s population gave a perception of agency and optimism. Karin Mickelson describes the period as “the heyday of optimism regarding the possibilities of Third World solidarity to transform international society.”46 This optimism did not last. As Third World countries continued to struggle, the early theories evolved into the more critical TWAIL approach.47   Whereas early Third World scholarship began with a struggle by subjugated nations for recognition, TWAIL emerged after the wave of national independence. Its advent can be understood in part as a response to globalization, the end of the Cold War, and the growing strength of international law.48 During the post-Cold War period, many countries experienced true independence for the first time, allowing market economies and liberal democracies to spread across the globe.49 This contributed to the disappearance of homogeneous political blocs and highlighted the differences between countries normally considered together under the Third World banner. Fewer similarities existed between countries as some remained underdeveloped, others                                                         United Nations significantly developed the definition of self-determination: GA Res. 2625 (XXV), UN GAOR, 25th Sess., Supp. No. 28, UN Doc A/RES/2625, (1970), [Declaration on Friendly Relations] Principle 5; finally, the GA resolution on the Permanent Sovereignty over Natural Resources linked the right of self-determination and to the right to sovereignty over a country’s natural resources, GA Res. 1803 (XVII), UN GAOR, 17th Sess., Supp. No.17, UN Doc A/5217, (1962) at 15.  46 See Karin Mickelson, “Taking Stock of TWAIL Histories” (2008) 10 International Community Law Review 355 at 357.  47 The 1997 TWAIL Vision statement (included above) clearly shows disappointment with international law and legal scholarship: “We understand the historical scope and agenda of the dominant voice of international law scholarship as having participated in, and legitimated global processes of marginalization and domination that impact on the lives and struggles of third world peoples.”  48 Gallié, supra note 41 at 22.  49 Ibid at 19.  29  adopted different political systems, and still others began to see significant economic improvement.50 Increased recognition of these differences, the disappearance of Cold War alliances, and a step back from focusing on former colonial relationships also meant that more attention was paid to specific responsibilities of individual states. Consequently, TWAIL emerged in a setting where Third World states held less collective strength and were becoming more concerned with individual challenges.51 As it became clear that the status of “member state” under the international system changed little with respect to the welfare of traditionally subjugated populations, suspicion arose that the system of international public law might be the source of, or at least a main contributor to, the inequalities.   2.2 The TWAIL method TWAIL scholars are concerned with  imbalances in international law and hold that structural factors promoting inequalities between developed countries and emerging states remain embedded within the international system.52 The approach attributes these factors to the assertion that international law developed alongside colonialism and posits that “colonialism is central to the                                                         50 Alain Pellet & Patrick Daillier, Droit international public, 6th Edition (Paris: LGDJ, 1999) at 69. 51 See for example Philippe Berbard & Christophe Jakubyszyn, “À Dakar, Nicolas Sarkozy appelle l’Afrique à renaître et à s’élancer vers l’avenir ”, Le Monde, July 27 juillet 2007. Gallié states that during this period lingering colonial issues were outweighed by home grown concerns and solutions, specific to each state, see Gallié, supra note 41 at 21. Pooja Parmar’s interpretation of TWAIL appears to shape itself around this context, stressing the importance of considering specific state problems first and foremost while not providing an “uncritical privilege”, see Pooja Parmar, “TWAIL: An Epistemological Inquiry” International Community Law Review, vol. 10, 2008, at 365.                                                                                                                                                                                                                                                                                                                                      52 Antony Anghie & B.S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflict” in Steven R. Ratner & Anne-Marie Slaughter eds., The Methods of International Law: Studies in Transnational Legal Policy, No. 36 (Buffalo: William S. Hein & Co. Inc., 2006) at 191.    30  formation of international law.”53 Specifically, it sees the creation of international law in part as answering a need to account for the colonial relations existing between European and non-Europeans.54 The TWAIL approach by no means signifies that the analysis of a given situation is “limited and partial as opposed to other [more so-called universalist] methods”.55 Rather, in its consideration of disadvantaged or underrepresented regions, TWAIL assures that the plight of the most vulnerable is considered – a necessary component if the end goal is one of true universal protection under international law.56 Best described as an applied method rather than a theory, TWAIL is useful as both a foundation for research and for practical application of findings. The approach is less concerned with determining “what the law is” than understanding “the formulation of a particular set of concerns and the analytic tools with which to explore them.”57 The TWAIL method was chosen for this dissertation to both identify the problem and to construct a proposed solution.                                                           53 Ibid.; Antony Anghie, Imperialism, sovereignty, and the making of international law (Cambridge: Cambridge University Press, 2005) at 3 (see also, in general, the introductory chapter, pages 1 – 12).  54 Ibid. at 3.  55 Anghie & Chimni, supra note 52 at 210.  56 The lack of universality of international law is equally addressed in feminist legal theory. See Karen Engle, “After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights” in Dorinda G. Dallmeyer, Reconceiving Reality: Women and International Law (Washington D.C.: The American Society of International Law, 1993) at 143.  57 Anghie & Chimni, supra note 52 at 185; This view is consistent with Parmar’s premise that questions related to ‘how’ theories are constructed are a fundamental part of TWAIL and provide more insight than ‘what is’ questions: Parmar, supra note 51 at 363.   31  In its simplest form, TWAIL’s purpose is to uncover how international law subjugates the Third World to the West.58 While there are no mandated steps for a TWAIL “approach”, openness to diversity, concern for the populations of the Third World, and a willingness to question the current system of public international law are common characteristics of TWAIL studies.59 Although the context of TWAIL’s emergence can be considered a major influence on TWAIL’s workings, the method continues to draw inspiration from a variety of sources in its contemporary application. James Gathii, one of TWAIL’s founders, explains the role of diversity in his description of the history of the approach:  […] just like there is no single modernity, there is no single TWAIL. As has been discussed, a central project of TWAIL is to challenge the hegemony of the dominant narratives of international law, in large part by teasing out encounters of difference along many axes – race, class, gender, sex, ethnicity, economics, trade, etc – and in inter-disciplinary ways – social, theoretical, epistemological, ontological and so on. The approaches within TWAIL include critical, feminist, post-modern, Lat-Crit Theory (Latina and Latina Critical Theory Inc.), postcolonial theory, literary theory, modernist, Marxist, critical race theory and so on.60  While this suggests that the approach accepts, and even encourages, varied methodological paths to understanding international law,61 its proponents adhere to a number of founding constructs.                                                         58 Makau Mutua & Antony Anghie, “What is TWAIL” (2000) 94 Proceedings of the Annual Meeting (American Society of International Law) 31 at 31.  59 According to Sara Seck, while TWAIL is referred to as a theory or methodology, it is best considered “a broad approach”. Sara Seck “Home state Regulation of Environmental Human Rights Harms as Transnational Private Regulatory Governance”, (2012) 13 German Law Journal 1363.  60 James Thuo Gathii, “TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography”, (2011) 3 Trade L & Dev 26 at 37.  61 See ibid. at 27 where Gathii states that “TWAIL, however, has not sought to produce a single authoritative voice or text. Instead, it has generated a vibrant ongoing debate around questions of colonial history, power, identity and difference, and what these mean for international law”. This is consistent with TWAIL’s inclusion of, and arguably its foundation upon, post-colonialism, critical race theory and law and development studies.  32  These concepts are clearly stated in a vision statement discussed at a founding meeting in 1997 at Harvard University:   We are a network of scholars engaged in international legal studies, and particularly interested in the challenges and opportunities facing 'third world' peoples in the new world order. We understand the historical scope and agenda of the dominant voice of international law scholarship as having participated in, and legitimated global processes of marginalization and domination that impact on the lives and struggles of third world peoples.   Members of this network may not agree on the content, direction and strategies of third world approaches to international law. Our network, however, is grounded in the united recognition that we need democratization of international legal scholarship in at least two senses: (i) first, we need to contest international law's privileging of European and North American voices by providing institutional and imaginative opportunities for participation from the third world; and (ii)  second, we need to formulate a substantive critique of the politics and scholarship of mainstream international law to the extent that it has helped reproduce structures that marginalize and dominate third world peoples.  Thus we are crucially interested in formulating and disseminating critical approaches to the relationships of power that constitute, and are constituted by, the current world order. In addition, we appreciate the need to understand and engage previous and prevailing trends in third world scholarship in international law. 62  The participants aimed to regroup researchers with interests in the challenges faced by the Third World,63 and, more substantively, to question the dominant doctrine of international law with the view that it supports and legitimizes a system that marginalizes Third World populations.64 Two influential TWAIL advocates, Makau Mutua and Antony Anghie have offered their additions to                                                         62 For insight into the original TWAIL conference New Approaches to Third World Legal Studies at Harvard University in March 1997, see generally Mickelson, supra note 46.   63 This objective of the approach continued to be promoted by James Gathii more than a decade later as is evident in his description of TWAIL as “a decentralized network of academics who share common commitments in their concern about the third world.” Gathii, supra note 60 at 27.  64 The TWAIL vision statement was written by professors Bhupinder Chimni, James Gathii, Celestine Nyamu, Vasuki Nesiah, Elchee Noworjee, and Hani Sayed. The specific text can be found in James Thuo Gathii “Alternative and Critical. The Contribution of Research and Scholarship on Developing Countries to International Legal Theory” (2000) 41 International Law Journal 263.  33  this interpretation.65 Mutua considers the three objectives driving TWAIL scholarship to be 1) a search for understanding of how international law perpetuates norms that subordinate the Third World to the West, 2) the proposition of alternatives to the current system, and 3) ending the underdevelopment of the Third World.66 Anghie adds that “… TWAIL does no more than to make real the promise of international law to transform itself into a system based, not on power, but justice.”67 Hence, TWAIL is more than an expression of a concern for the challenges of Third World countries. Its fundamental drive must be understood as containing both this concern and a determination to discover aspects of international law that are not only responsible for past struggles but that continue to enforce a discriminatory system. Judging from the various statements above, the democratization of international law and a concern to improve the conditions of the Third World seem both interdependent and independent for TWAIL scholars.  In sum, TWAIL evolved to deal with more varied scenarios than early Third World commentary. It therefore follows that TWAIL is equipped to respond to an increasingly complicated political environment. Whereas original Third World commentators where able to invoke a larger common issue to advocate for their concerns (i.e. emancipation and decolonization) and a simpler solution (national and economic sovereignty), TWAIL represents varied supressed populations that do not all identify with the same cause. Moreover, solutions for scenarios under TWAIL are not always clear. By seeking out marginalization more generally, the TWAIL approach shows its ability to treat various issues touching upon a variety of groups. The path between early Third Word                                                         65 Mutua & Anghie, supra note 58 at 31.  66 Ibid.  67 Ibid. at 40.  34  approaches and TWAIL demonstrates that the former was fundamental to the birth of the latter. The first wave of scholars recognized an imbalance between populations that benefited from the international system in contrast to those that were kept outside. The legitimacy of TWAIL today exists because of the attempts made by early Third World commentators. It was the first wave’s attempt at using the international system as it was that confirms TWAIL’s suspicion of persisting bias.  3. TWAIL and the concept of fragile states  With the theory explained, a discussion of the term “fragile state” provides initial consideration of the object of concern of this dissertation. While the term has historically been reserved for state rankings and conflict-affected states,68 it is now being applied more judiciously and to a wider variety of situations. The first part of this section therefore briefly overviews how the term has been applied in literature and by international organizations before outlining a definition for this dissertation. As a preliminary comment, this dissertation avoids using the term “failed state” when referring to areas absent of legal protection. Since September 11, 2001 the term failed state has increasingly been associated with countries involved in armed conflict or states suspected of involvement with terrorist groups.69 Consider, for example, the former director of Harvard Kennedy School Program on Intrastate Conflict, Robert Rothberg’s description of failed states as deeply conflicted and dangerous areas contested by warring factions.70 Failed state appears to be                                                         68 Anne-Lise Klausen and Ella Humphry, “What is a fragile state?”, The World Bank, available online at http://blogs.worldbank.org/developmenttalk/what-fragile-state [Accessed 21 July 2018].  69 As opposed to being used in factual or more objective manners and often in relation to humanitarian needs. See Charles T. Call, “The Fallacy of the 'Failed state'” (2008) 29 Third World Quarterly 1491 at 1493.   70 Robert I Rothberg, "The New Nature of Nation-state Failure." (2002) 25 The Washington Quarterly 85.  35  increasingly related to outward repercussions or security issues that might emanate from a state rather than the well-being of the state and of the people in it. The detriment of using the term rests in diminishing concern from the international community towards the domestic challenges of the state.   Although Charles Call recognizes some positive aspects from using the term,71 he explains that the expression “contains culturally specific assumptions about what a ‘successful’ state should look like” and lumps states with diverse challenges into the same category.72 In addition, Call underlines that it colours foreign policy towards the state in question while silencing more useful remedies.73 In what Call labels ‘cookie-cutter prescriptions’, he details the problem with categorizing and designating a state as ‘failed’:  Just as the 'failed state' concept cobbles together diverse states, it tends to lead to a single prescription for diverse maladies: more order. Although those who advance the failed state concept prescribe diverse and tailored solutions to the problems of failing and failed states, they privilege policies that will reinforce order and stability, even when the prevailing order is unjust. This emphasis on order and stability clearly serves the interests of Western powers concerned about international insecurities stemming from drug trafficking, terrorism, or internal armed conflicts abroad.74                                                           71 Call, supra note 69 at 1494:  1. the directing of resources and attention to states that have let down their populations; 2. highlighting the link between international security and internal state stability;  3. highlighting the link between the existence of “basic freedoms and service delivery within small, powerless societies and the interests of Western powers […]”; 4. increasing awareness among humanitarian actors of the disadvantages of furnishing aid directly to populations without helping to build national institutions; 5. additional attention to the role of institutions in development efforts.  72 Ibid.  73 Ibid.  74 Ibid.   36   Similarly, although Donald Potter employs the term failed state in his work, he provides a nuanced definition and focuses on the different degrees of state incapacity. As he writes, “state failure need not be reserved for cases of complete state collapse, either into civil war or anarchy”.75 Rather, for Potter the expression is better understood in terms of a spectrum or a degree of a state’s capacity to meet its responsibilities. This approach reflects Call’s condemnation of the grouping of states into one category and allows for more tailored responses of support. Potter explains that the degree of integrity of the state can be measured through governance, corruption, economic, and social wellbeing models.76 Nevertheless, in view of Call’s concerns and mindful of TWAIL principles, this paper forgoes the use of the term failed state.   A recent attempt at improving how fragile state are identified is found in the Organisation for Economic Co-operation and Development’s (OECD) 2015 report on States of Fragility and its subsequent yearly reports.77 The 2015 study reassessed how fragility should be viewed, highlighting the need to look beyond the common practice of limiting consideration to economic indicators and stereotypes related to conflicts. Since 2015, the OECD has considered five “clusters” of fragility indicators: 1) level of violence; 2) access to justice; 3) effective, accountable and inclusive institutions; 4) economic inclusion and stability; and 5) capacities to prevent and adapt to                                                         75 Donald W Potter, “State Responsibility, Sovereignty, and Failed states” (2004) Australasian Political Studies Association Conference, University of Adelaide 2.  76 Ibid at 5.  77 Organisation for Economic Co-operation and Development (OECD) (2015), States of Fragility 2015: Meeting Post-2015 Ambitions, OECD Publishing, Paris, online https://doi.org/10.1787/9789264227699-en [Accessed 21 July 2018].  37  social, economic and environmental shocks and disasters.78 The organization considers these five vulnerabilities both separately and as a whole, with countries identified in several clusters likely being listed on the organization’s classification of fragile states. The approach is an expanded version of Potter’s view of degrees of incapacity discussed above. Just as Potter noted that there can be a spectrum of a state’s capacity to meet its responsibilities, the OECD approach underlines different state vulnerabilities to different degrees. According to the OECD, the intersection of these vulnerabilities provides a better indicator of fragility. The organization explains its approach as follows: Fragility is widely recognised as a multi-dimensional challenge. Rigorous approaches to analysing fragility allow for its dimensions to be separately monitored. Considering several dimensions of fragility separately differs from the traditional approach to tracking fragility (used, for instance, in previous OECD Fragile States reports) in several important respects. Rather than highlighting a single set of particularly vulnerable countries, it groups together those contexts that face quite distinct risks and development challenges. These include endemic violence, economic instability and weak institutions. Identifying subsets of countries facing specific forms of fragility and vulnerability will allow for a more focused prioritisation of development assistance. 79   The OECD method shows greater deference for Third World challenges by not indiscriminately placing states in the same broad category and by encouraging tailored responses to their vulnerabilities. While all the clusters identified could apply indirectly to different scenarios in this dissertation, they key ones to consider are access to justice, as well as effective, accountable and inclusive institutions. That is, the main considerations for fragility in this dissertation should be directly related to whether a state can control MNCs on its territory through legislation and institutions and whether it can provide access to justice for its citizens. The following paragraphs                                                         78 Ibid., at p. 19.  79 Ibid., at p. 43.   38  discuss some of the more hidden aspects affecting state ability to regulate MNCs before returning to the definition for this dissertation.   While certain external factors contributing to the undermining of governance are easy to understand (e.g. protracted armed conflict, extensive corruption), others, such as marked economic dependence, are more complex. Dependence on foreign investment can place countries in the position of creating a legal environment with few constraints on the operations of foreign corporations. The resource extraction industry provides an example. David Szablowski explains that mineral rich countries have been strained by economic crises and neoliberal fiscal policies that have increased “the importance placed upon transnational mining investment in relation to other sectors of the economy.”80 Mining is an important source of taxation and foreign exchange revenue and such revenue is badly needed by states in the Global South. He further states that:  Some 34 countries worldwide (mainly in the Global South) rely on the mining sector for at least 25 per cent of their total merchandise exports. In Peru, mining accounts for roughly 45 per cent of the country’s exports, and over 7 per cent of its tax revenue. Particularly when a state is in the grip of a macroeconomic straightjacket and is struggling to pay its foreign debt, the access to foreign exchange provided by the mining sector is vital.81  In some cases, even if states wished to regulate MNCs on their territory, approaches to investment in the Global South discourage them from doing so. Be it stabilization clauses in contracts with corporations guaranteeing minimal regulations,82 bilateral investment treaties, or the threat of                                                         80 David Szablowski, Transnational Law and Local Struggles, Mining, Communities and the World Bank (Oxford: Hart Publishing, 2007) at 45 and 58 respectively.   81 Ibid. at 43.  82 See Thomas Waelde & George Ndi, “Stabilizing International Investment Commitments: International Law Versus Contract Interpretation” (1996) 31 Texas International Law Journal 215.  39  losing a reputation as an investor friendly environment, debt-heavy and cash poor states have little ability to advocate for MNCs to absorb a part of the social costs of their actions. Danwood Mzikenge Chirwa explains how depleted funds can cripple a host state’s ability to have any command over corporations on its territory: Regulation requires financial and human resources. For under-resourced or developing states, resource constraints present another difficulty for regulating and controlling private actors. It has been argued that the resources needed to ensure compliance by MNCs with labour rights far outweigh the resource capabilities of developing countries.83   Thus, while lack of resources in developing countries affects ability to regulate, severe economic pressures linked to competition for foreign investment may compromise the will of some jurisdictions to restrict corporate behaviour.84 Alice De Jong explains that “poorer, less developed nations are often so captive to the need for foreign investment funds that their ability to impose or enforce employment, environmental, social and other standards on MNCs within their borders is severely compromised.”85 Although host state collaboration with MNCs can be manifest, more subtle versions of compromise exist, including the delegation of select aspects of state authority to MNCs.86 Consider the Peruvian interaction with foreign mining companies during the 1990s where                                                         83 Chirwa, supra note 30 provides insight into the issue with reference to human rights and labour rights.    84 Diane F. Orentlicher & Timothy A. Gelatt, PublicLaw, “Private Actors: The Impact of Human Rights on Business Investors in China” (1993) 14 J. Int'L L. Bus. 66; Lena Ayoub explains that the competition existing between developing countries for foreign investment combined with MNCs goals of decreasing costs diminishes motivation of host countries to impose effective labour rights protection and environmental standards: “Many developing countries will even condone MNCs’ labor rights violations by turning a blind eye to employee abuse or by purposefully omitting domestic labor laws, as applicable to visiting MNCs, from their legislation.” Lena Ayoub, “Nike Just Does It—And Why the United States Shouldn’t: The United States’ International Obligation to Hold MNCs Accountable for Their Labor Rights Violations Abroad” (1999) 11 DePaul Business Law Journal 422; on the topic of limitations of the host state approaches and their need for sound legal systems see Chirwa, supra note 30 at 25.   85 de Jonge, supra note 19 at 70.  86 Szablowski, supra note 80 at 58.  40  the Fujimori87 government quietly removed itself from aspects of regulation while delegating other aspects to the industry.88 During a crisis of hyperinflation, public debt, and civil war, Peru liberalized its mining laws, turning the sector to large-scale private foreign investment while relegating state involvement to that of a regulator of “narrowly defined technical issues.”89 Peru’s amended legislation removed agency from both the state and community actors and provided “mining enterprises with formal mechanisms to assist them in establishing relatively swift, secure and inexpensive control over the entitlements necessary for project development.”90 Szablowski explains that in addition to regulatory frameworks favourable to the mining sector, companies also benefited from the responsibility of social mediation for industry development:  It is the mining enterprise that is left to negotiate contracts of sale with community actors and to determine the local commitments that will be assumed in its environmental impact statement. Meanwhile, the state appears removed from these processes, seeking both to preserve its image as a sovereign neutral arbiter of the public interest and to avoid the responsibility and expense involved in direct mediation of the local costs of mine development.91  This passage shows that judging the fragility of a state can be a complicated exercise. This is especially true when governments cede certain powers to corporate interests due to economic                                                         87 President from 1990 to 2000, Fujimori’s regime was characterized by human rights abuses and systematic corruption. Fujimori fled into exile during his presidency in 2000, ibid. at 40.  88 Ibid.   89 Ibid. at 36. In addition to other regulatory changes, the government reduced the influence of unions through new labour legislation, enacted changes to indigenous land tenure, and generally decreased its formal state responsibilities with respect to the mining sector.  90 Ibid. at 58.  91 Ibid.  41  pressure as it may be difficult to determine where effective government regulation ends and corporate measures begin.   The definition of fragile state for this dissertation favours models that are inward looking and that consider ability to govern and enforce the rule of law as key indicators. In elaboration to the above, consideration should therefore be given to the promotion of the rule of law within the state, including access to justice. The existence of effective institutions capable of implementing policies and regulations with respect to corporate actors should also be considered.92 Thus, fragility is related to the absence of the capacity to regulate the behaviour of a MNC on its territory, as well as the inability provide remedy to citizens victim of human rights violations by the company. While reference to fragile states is made more casually in the following two chapters, the dissertation adopts a more technical definition in its chapter six discussion. The refined definition of chapter six is intended to be precise enough to provide consistent determination of such states for the purpose of the application of state responsibility.   4. Conclusion The goal of this chapter was to provide background into TWAIL to clarify its application to the dissertation. The chapter also introduced the concept of state fragility as it is to be understood                                                         92 Hans-Joachim Spanger focuses rather on the demise of governmental institutions: Hans-Joachim Spanger, "Failed state or Failed Concept? Objections and Suggestions" (2000) Peace Research Institute, Frankfurt, online http://www.comm.ucsb.edu/faculty/mstohl/failed_states/2000/papers/spanger.html [Accessed 16 November 2017]; William Olson, for his part, considers serious internal challenges that threaten coherence or political order: William J. Olson, "The New World Disorder: Governability and Development." in Max G. Manwaring, ed., Gray Area Phenomena: Confronting New World Disorder (Boulder: Westview Press, 1993) at 3; Robert Jackson focuses on whether states can or will safeguard minimal domestic civil conditions such as peace, order, and security: Robert H. Jackson, Surrogate Sovereignty?: Great Power Responsibility and "failed States", Issue 25 of Working paper (Vancouver: University of British Columbia Institute of International Relations, 1998).  42  within the following chapters. It began by explaining that TWAIL’s purpose is to uncover the ways in which international law has not only subjugated the Third World to the West, but how it perpetuates the subjugation. This dissertation’s concern with how wealthy states benefit from corporate citizens that exploit fragile jurisdictions provides a clear example of inequities in international law that lead to such subjugation. The chapter demonstrated, too, how and why TWAIL cautions that the power exercised by the West can operate behind the scenes of international law and in a systemic manner. This is shown in the chapters ahead by the ways international law reinforces the corporate veil that primarily protects Global North states.   Through TWAIL, chapter four exposes how international law perpetuates the identified inequity by over-valuing the authority of the draft codification of state responsibility. The chapter first explains how the narrow application of the attribution criteria within the ASR protect home states from being held responsible for corporations they support and benefit from. TWAIL reveals that this mainly benefits Global North countries at the expense of fragile states. The chapter argues that deciding bodies and commentators mistakenly treat the ASR, a draft codification last modified in 2001, as a treaty text, and warns that doing so effectively extinguishes curiosity as to whether the customary rules of state responsibility have evolved. It further holds that the crystalizing characteristics of the draft codification hinder the customary law of state responsibility from adapting to the influx of MNCs. The chapter shows that a majority of states, including almost all Latin American and African states, have requested that negotiations regarding the draft articles be reopened and debated to adapt them into an acceptable form and sign them as a treaty. Countries such as Canada, the UK, the US, and Australia have resisted any such negotiations, preferring to apply the ASR as drafted. Thus, chapter four not only reveals an aspect of international law that contributes to the normative gap in fragile states, it exposes how international law perpetuates the  43  gap though systemic processes. Chapter five continues the discussion of the normative gap by showing that IHRL, while being touted as universal, suffers from lack of enforcement in fragile states and only obliges home states to provide extraterritorial protection in limited scenarios.   The description of TWAIL above also explained that among the objectives that drive the method is the proposition of alternatives to the current system. Chapter six is therefore devoted to recommending a fair solution through TWAIL considerations. To neutralize the bias of the ASR, the chapter proposes considering the law of state responsibility outside of what is represented in the draft articles. It argues in favour of returning to the practice of considering the components of customary law, opinio juris (a state considering itself bound by a rule) and state practice, when applying the rules of state responsibility. It further argues that once focus is removed from the ASR, a more progressive trend within CIL of state responsibility becomes visible. However, along with the proposition of returning to customary law outside of the draft articles comes a warning: CIL may indeed prove to be more equitable than what is reflected in the ASR, but it is not immune to the systemic biases of international law noted above. As such, when considering the benefits of CIL, attention must focus on whether current CIL is equitable to the Global South. The chapter puts forward a fairer application of the mechanism of attribution within state responsibility, requiring a lower threshold to link violations of international obligations by MNCs to their home states. The TWAIL inspired solution takes into account the fragility of the host state, any support offered to the MNC in question by the home state, as well as any precautionary steps the home state may have taken to ensure that its corporate citizens respect international obligations. The purpose of the proposed criteria is to inject equality into the international system by engaging home states to better regulate their MNCs, thereby reducing the normative gap described above.    44  Section three above discussed the challenges fragile states face with respect to MNCS and provided an understanding of what a fragile state is for the purposes of this dissertation. The section highlighted the many potential causes of fragility and warned against definitions purely relating to stereotypes of conflict. Given that fragility is used in this dissertation to describe areas absent of regulation in which MNCs may operate, the definition is limited to the inability of states to control MNCs on their territory and to provide remedy to their citizens in the event of violations by MNCs. Linking the definition to the ability of the state to perform these tasks means that the TWAIL solution is not applicable to states that are unwilling to perform them. This aspect is discussed in chapter 6 and in the conclusion of the dissertation.        Finally, there is no doubt that a TWAIL inspired approach advocating permission for stronger states to dictate how companies should behave in weaker states may seem peculiar. That is, some may argue that it is a host state’s sovereign right to lower labour standards, for example, to attract foreign investment and that a home state’s intervention would be a violation of the international law doctrine of non-intervention into the domestic affairs of others. Arguments may further suggest that encouraging powerful states to enact legislation with extraterritorial effects risks initiating colonial-like control, precisely what the Third World fought against for so long. Yet it is difficult to conceive of how ensuring regulation exists where the host state lacks the capacity to enforce any violates the fragile state’s sovereignty. Indeed, the presence of a MNC operating to lower standards in a state that cannot control the company’s entry or operations is in itself a violation of that state’s sovereignty that ought to be addressed. Furthermore, and with reference to the immediate paragraph above, the proposed solution of this dissertation only applies to situations where states are unable to regulate companies on their territory. The dissertation does not argue in favour of home state control when the host state has the means but not the will.    45   The first step to seeing how the TWAIL approach may contribute to decreasing the normative gap in fragile states is understanding how state responsibility is linked to fundamental principles of international law as well as how the doctrine evolved. This is therefore addressed in the following chapter.    46    CHAPTER 3 – THE EVOLUTION OF STATE RESPONSIBILITY 1. Introduction TWAIL scholars understand that the marginalization of the Third World has occurred through a process of entrenchment of Western approaches. Its search for understanding how current international law perpetuates subjugation requires understanding past struggles that have been incorporated into a discriminatory system. Thus, TWAIL’s suggestion that history is essential for us to unveil untold truths of international law inspires the historical review provided in this chapter. The chapter maps out the early influences on, and evolution of, state responsibility. Although much has been written about modern state responsibility and the draft codification, relatively few commentators have addressed the historical development of the norms. The following therefore provides a short survey of the major influences on the topic and outlines the lead up to the ASR. The individuals and events below are discussed due to either their stature and lasting impact on international law (Grotius), the pertinence of considering their view for reasons based in TWAIL (Anzilotti), or for their direct role in shaping the draft codification (the ILC).   State responsibility is the result of a fusion of legal concepts and the culmination of hundreds of years of customary law development. Its rules can be traced back to the Roman law of delict, canon law, theological doctrines, natural law, and the form these laws took in the chapters of extra-contractual liability in European civil codes. Yet, regardless of its extended history, the topic was long overlooked by legal scholars in favour of more substantive rules. For much of their existence, the rules were merely considered by-products of other early international law doctrines including  47  diplomatic protection, treatment of foreigners, law of the sea, or the laws of war.93 State responsibility only emerged as its own subject during the late nineteenth century, not surprisingly during a time when states came to monopolize the role of international actors.94 Considering the short period between its emergence as a stand-alone topic and today, state responsibility has evolved rapidly. This chapter discusses the early influences on what would become state responsibility, starting with the work of Hugo Grotius. It also looks at the emergence of the first forms of modern state responsibility. The section concludes with a review of the ILC’s efforts to codify the customary law. Considered within the greater view of the dissertation, the chapter provides more than a simple historical background. It shows how state responsibility has developed and adapted over time only to be captured at a specific moment by the framers of the ASR. In other terms, the draft codification provides a snapshot of state responsibility and freezes, or “crystalizes” a narrow view of the doctrine at a time where the utmost deference was provided to the concept of state sovereignty. The subsequent chapters explain how this favours Global North states by stunting the grown of a doctrine that previously showed flexibility.   2. Influence of Grotius (1583 – 1645) Grotius is often credited as the founder of international law.95 His development of a doctrine of liability based on fault and his interpretation of Roman law, canon law, theology and general                                                         93 James Crawford, State Responsibility: The General Part (Cambridge: Cambridge University Press, 2013) 3.  94 Ibid.  95 “Leading Figures in International Law: Hugo Grotius” (2007) 2:3 International Judicial Monitor, American Society of International Law and the International Judicial Academy, online http://www.judicialmonitor.org/archive_1007/leadingfigures.html [Accessed 18 November 2017]; Grotius’ works Mare Liberum (The Freedom of the Seas) and De Jure Belli ac Pacis (On the Laws of War and Peace) are two important examples of his contribution to international law. The common use of the  48  principles of liability were early contributions to the topic. Additionally, his domestic law efforts could be considered a catalyst for the formation of state responsibility. Grotius’ principles of liability are absent from his well-known texts on the law of nations, which never specifically identify a separate responsibility of states.96 This is unsurprising as the principles stemmed from his work on civil law and during Grotius’ time there were no distinctions between civil law and the law of nations on these matters. Simply, no institutions or procedures existed at the international level that would allow for differences to be drawn between states and citizens.97 Nevertheless, it must be understood that his civil liability writings indeed influenced interactions between nations.  Two works on delictual liability that contributed to the formation of state responsibility are Inleiding tot de Hollandsche Rechtsgeleerdheid (Introduction to the Laws of Holland) and De Jure Belli ac Pacis (On the Laws of War and Peace). In Book 2, Chapter 17 of On the Laws of War and Peace (entitled Damage Caused Injury and Obligations Arising Therefrom Through) Grotius explains that legal actions may arise from “pact, wrong, and statute” and details diverse wrongs and their relationships with fault and damage.98 His description of the process of violation of obligations, damage, and retribution shows similarities to the modern interpretations of state responsibility. Grotius posited that fault could result from commission or omission of acts “in                                                         phrase “Grotian Moment”, which represents a significant development where new rules of customary international law emerge rapidly, is yet another indication of Grotius’ lasting influence.   96 Crawford “The General Part”, supra note 93 at 8. 97 Ibid. 98 Hugo Grotius, “Chapter 17: Damage Caused Through Injury and Obligations Arising Therefrom” in Book 2 of On the Laws of War and Peace (1625), trans. by A.C. Campbell (London, 1814) at I, online at https://lonang.com/library/reference/grotius-law-war-and-peace/gro-217/ [Accessed 18 November 2017].  49  conflict with what men ought to do” and that if damage ensued, it should be “made good.”99 Damage, per Grotius, was defined as having occurred “when anyone has less than belonged to him.”100 As part of the concept of damage, loss of property included the loss of products belonging to the property “whether they have been gathered or not”. With respect to reparation, Grotius wrote that some damages “may be made good with money, if the injured party so desire”.101 Grotius widened the focus from purely that of the injurer’s actions to one that included the need for compensation of the victim. Furthermore, his interpretation of compensation marked a shift from the traditional Roman law approach to one where compensation is disassociated from the degree of fault and associated to the nature of damage.102 That shift understood, however, Borzu Sabahi explains that it is not so much Grotius’ widened focus on fault as his creation of the foundations of a general theory of liability that could be considered his significant contribution.103  Regardless, Konrad Zweigert and Hein Kötz encapsulate the overall importance of Grotius’ contribution to civil law and eventually the European civil codes, writing: Roman Lawyers […] never arrived at the general principle that everyone is responsible for the harm he or she is to blame for causing. This principle had to wait until the seventeenth and eighteenth centuries for its promulgation by the great natural lawyers, especial Grotius and Domat. Thereafter it made its way into many of the codes of Europe.104                                                          99 Ibid. 100 Ibid. at II. 101 Ibid. at XXII. 102 Supra note 31 at 29.  103 Ibid. at 27.  104 Konrad Zweigert & Hein Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press, 1998) 597.  50  It is a testament to the quality and originality of Grotius’ overall work that his doctrine of civil liability would have a sustaining impact at the international level. Concepts elucidated by Grotius linking the breach of obligations with reparation, restitution and compensation are the pillars of the customary law of state responsibility.   3. Codifications in Europe  Civil law codifications in Europe during the 19th century provided the next major influence on the development of state responsibility. Swiss, German, French, and Scandinavian civil codes adopted the principles of full compensation (compensate to the extent of loss) and restitution (restoring the state of affairs) as consequences for extra-contractual liability.105 Although most legal systems focused their remedies on compensation, some codes offered it only as an alternative to restitution in certain cases – allowing the harmed party to make a special request for a monetary amount instead of restoration.106 The private law influence from these codifications is most evident in one of the earlier attempts at an international system of responsibility between states. August Wilhelm Heffter’s 1844 treatise on international law manifestly copies the European civil code chapters on extra-contractual responsibility and applies them to violations of international law.107 Sabahi notes the extent to which Heffter modelled his system on domestic law: Chapter 3 of his treatise is called obligations; and, predictably, he divides his chapter into two sections: (1) public treaties; and (2) obligations that do not arise from conventions. This division mirrors the general division of the law of obligations in some civil law jurisdictions to obligations arising from contracts, and obligations arising extra-contractually.108                                                         105 Supra note 31 at 31. 106 Ibid. at 12.  107 August Wilhelm Heffter, Le Droit International de l’Europe (Muller, 1883). 108 Supra note 31 at 41.   51   Although the extent to which Heffter’s scholarship may have influenced the more recent deliberations of the ILC is questionable, his work is the first clear attempt at state responsibility.109 Given its translation into French in 1883, the least that can be said is that it reinforced the early influence of civil domestic law on the doctrine of state responsibility.110   Heffter’s model of liability based on fault would be replaced by another theory of state responsibility posited by Dionisio Anzilotti. Anzilotti’s theory focuses on harm rather than fault of the committing agent.111   4. Anzilotti’s influence: the removal of fault  Dionisio Anzilotti, President of the Permanent International Court of Justice and a professor of law, wrote two important manuscripts112 that included deliberations on state responsibility.                                                         109 Although it does not mean his work did not influence the evolution of state responsibility, a search of the deliberations of the ILC unveiled no specific mention of Heffter’s model. 110 The civil liability influence on state responsibility is especially important when considering current and proposed interpretations of how third-party actions are imputed to a home state. Civil liability, as shown in modern European Civil Codes and in the Quebec Civil Code, contains different levels of liability for injury to others for the acts or faults of another. Parental authority, persons entrusted with custody of a child or thing, and owners of animals are all subject to presumptions of liability for the acts of another. Of course, the levels of liability vary. Parents, for example, can overcome a presumption of liability (attribution) by proving they did not commit fault with respect to custody, supervision, or education while animal owners are subject to strict liability. Given this influence, it is interesting to note where the ILC decided to draw the line with respect to presumptions of liability in the ASR. As is shown in the discussion of the ASR articles in the following chapter, presumptions of liability only exist for state organs, actors representing the state, or actors under a high degree of control by the state.  111 Pierre-Marie Dupuy, “Dionisio Anzilotti and the Law of International Responsibility of States” (1992) 3 EJIL at 139. 112 Teoria generale della responsabilita dello Stato nel diritto internazionale (1902) and La responsabilité internationale des Etats (1906).  52  Concerned that domestic law principles should not be applied between legal subjects endowed with equal sovereignty under international law, Anzilotti was preoccupied with separating the domestic and international legal orders. At the turn of the century, fault continued to form an important basis of liability in Roman law113 and Anzilotti differentiated its application in state responsibility: 'Malice and fault', in the proper senses of the words, express human will as a psychological fact, and one cannot therefore speak of them except in relation to the individual. The point is, subsequently, whether an action contrary to international law, in order to be imputable to the State, has to be caused by malice or of fault by individual agents; in other words, whether the latter's malice or fault is a condition laid down by the law in order for particular acts to lead to particular consequences for the State.114  Anzilotti believed that fault should not matter in state responsibility as ‘malice and fault’ are characteristics that could only be linked to an individual. He believed that malice or fault should only be considered on an international level if they were elements of a violation of an international obligation. What mattered for Anzilotti was the confirmation that the act breached an international obligation and was attributable to the state. He replaced the use of fault under Grotius and within early civil law cases with a focus on confirming that the act was indeed that of a state organ. This  shift of focus is reflected within the draft articles of state responsibility, where an ‘internationally wrongful act’ (and not fault) incurs responsibility. Anzilotti further explains that, under state responsibility, a violation of an international obligation is considered to occur only if it is performed by an organ of the state:  In reality, the doctrine may simply be understood to apply to scenarios in which international responsibility is not due to an act of an individual but rather one by the state. More accurately, the illicit act under international law does not exist for the simple fact that                                                         113 Supra at note 112. 114 Dionisio Anzilotti, Corso di diritto intemazionale (3rd ed. 1927), reprinted in Opere di Dionizio Anzilotti, Vol. 1 (1964), trans. Gilbert Gidel, Cours de droit international (1929), Vol. 1,466-534, "Internationally Wrongful Acts" at 503.  53  a wrongful act offered. It occurs because state organs behaved, in this respect, in a certain manner.115  As the following chapters show, the ASR mirror the concepts put forth by Anzilotti, making his influence on the formation of the draft code clear. While the above citation does not deny that attribution of private acts to states can occur, the tone of Anzilotti’s conceptual framework plainly advocates strict removal of the individual.116 In doing so, his opinions appear to have galvanized a turn away from the more universalistic positions of state responsibility, such as Herffter’s above. To understand the shift, consideration of Anzilotti’s opinions should take into account the foundation of international law at the time. In his article comparing Anzilotti’s views to those of other scholars, and in discussion of the rejection of universalism at the turn of the century, Nolte explains:   Given the general political situation at the end of the nineteenth century – a group of European powers in a race for colonies and dominance – such a statement was not unreasonable. It should not be forgotten that, in this situation, the theory was gaining ground according to which the sovereignty of states took precedence over international law and that this sovereignty would exclude any form of legal responsibility against the will of the state.117  The acceptance of the above model of sovereign rights of the state is consistent with (and determinative of) a narrow reading of state responsibility. That is, views supporting the unchecked                                                         115 Ibid. (Author’s translation) Gidel’s translation reads: “En réalité, cette doctrine peut également s'entendre simplement en ce sens que la responsabilité internationale ne nait pas d'un fait de l'individu mais d'un fait de l'Etat; pour mieux dire, que le fait illicite au regard du droit international, n'existe pas pour la simple raison qu'un délit a été commis, mais pour la raison que les organes ont tenu, a tel égard, une certaine conduite.”  116 Dionisio Anzilotti, “La responsabilité internationale des États à raison des dommages soufferts par des étrangers” (1906) 13 RGDIP at 6. The page can be viewed online at http://gallica.bnf.fr/ark:/12148/bpt6k734812/f9.image.r=revue%20g%C3%A9n%C3%A9rale%20droit%20international%20public.langFR, [Accessed 18 November 2017]. 117 Georg Nolte, “The Classical International Law of State Responsibility” (2002) 13 EJIL at 1086.  54  power of sovereign states, as were popular at the turn of the century, naturally favour limiting the possibilities of imputation of acts of third parties to states.118  Nation states were consolidated as the only clear actors in international law and violations of international obligations “did not exist”119 if they were committed by private entities. This is important to the dissertation as chapter six argues that the evolution of sovereignty no longer supports the narrow representation of attribution in the draft articles. Viewed through the TWAIL lens, this means that a major influence on the draft codification emerged during a period of international law that eschewed positive obligations between states, focusing mainly on non-intervention. Thus, any consideration for weak states during the period came in the form of how dominant states could control them rather than support.  Yet, since Anzilotti formed his theory of state responsibility, the concept of sovereignty has begun to shift away from absolute watertight compartments and there has been a marked rise of non-state actors (NSA) in the form of MNCs with GDPs that surpass that of many states. Chapter four demonstrates how the ASR fails to take these changes into account and how it captures a version of state responsibility mostly consistent with Anzilotti’s approach favouring powerful states. Chapter six, in turn, identifies these issues as ones that should affect how state responsibility is considered today.                                                           118 For example, the views would resist any suggestions that the acts of MNCs could be imputed to the state as this paper argues in chapter six. 119 See Anzilotti quote earlier in this section: “…the illicit act under international law does not exist for the simple fact that a wrongful act offered. It occurs because state organs behaved, in this respect, in a certain manner”.  55  5. The lead up to the work of the International Law Commission As the balance of power between nation-states unfolded in the 1800s, general rules emerged setting an international standard of justice, i.e. a minimum standard of international protection for individuals. The standard was both vague and low, as well as arbitrarily applied. 120 Indeed, the ways in which these rules, precursors to state responsibility, were applied provides an example of how early versions of the doctrine favoured powerful states. The standard was meant to apply to various fields of state conduct including protection of foreigners, operation of tribunals, and acts of armed forces. Western European countries and the US advocated for the application of the standard, while Eastern European, Asian, and Latin American countries argued in favour of simply applying equal protection to nationals and foreign-nationals irrespective of their country of citizenship.121 Western Europe and the US provided rights equivalent to those afforded their own citizens amongst each other,122 yet applied the minimum standard to citizens of countries excluded from the select number of states parties privy to this mutual understanding.   Given the unpredictability of the standard’s application, disputes concerning state responsibility where often solved through arbitration.123 Diplomacy was favoured to settle the disputes and even played an important role for cases reaching arbitration.124 Naturally, such situations were                                                         120 Y. Matsui, “The Transformation of the Law of State Responsibility”, in René Provost (ed), State Responsibility and International Law (Burlington: Ashgate, 2001) 5. 121 Ibid. 122 Ibid. at 7. 123 Ibid. at 8. 124 Ibid.   56  favourable for developed states as they tended to hold predominant weight during negotiations.125 According to Myres McDougal et al., “the decision makers of powerful industrialized states [were] in a position to exert disproportionate influence upon the outcome of controversies.”126 Nevertheless, the international standard of justice remained the closest representation of state responsibility and continued to develop under customary law through failed attempts at codification under the League of Nations. The next attempt at codification would begin after the shock of the Second World War, with the encouragement of the United Nations, and as a project of a commission (ILC) with a mandate to promote the growth of international law.  6. Work of the International Law Commission  The ILC’s draft codification was the result of nearly forty years of work. Earmarked for codification under the League of Nations, the process for the formation of the ASR was initiated by the ILC in 1956.127 Six reports submitted between 1956 and 1961 evoked little interest and resulted in a lack of consensus on how to proceed.128 In 1963, under the direction of Roberto Ago as Special Rapporteur, the ILC approved a wider focus on the “general” rules of international responsibility over a previous narrow focus on rules of diplomatic protection. That same year, Ago proposed to a sub-committee of the ILC that codification work should avoid mixing the “genres” of primary and secondary rules of international law and focus purely on the secondary rules. Today,                                                         125 Myres S. McDougal, Harold D. Lasswell, & James C. Miller, The Interpretation of Agreements and World Public Order: Principles of Content and Procedure (New Haven: Yale University Press, 1967) at 42. 126 Ibid. 127 Supra note 27 at 1. 128 Ibid.  57  the primary rules are not addressed by the codification129 simply because, during the examination of Ago’s first report in 1969, almost all the speakers accepted the idea of limiting the Commission’s work to the secondary rules. Nevertheless, Eric David highlights that the positions taken by various delegates at the ILC at that time demonstrate that “sufficiently clear principles as to how the responsibility of the state could be engaged on account of the violation of other rules of international law did not yet exist.”130 This absence of clear demarcation between the primary rules and the principles of engaging the responsibility of states is especially relevant to this dissertation, as discussed below, as it suggests that the secondary rules may be somewhat arbitrary.  Due to Ago’s accepted proposal, the draft articles therefore attempt to codify the application of the secondary rules only.  Accordingly, the ASR are what enable states that have been wronged to assert breaches and claim compensation – they contain no catalogue of specific wrongful behaviour. The ASR instead “outsource” this function under the definition of Internationally Wrongful Acts (IWA). Under state responsibility, IWAs exist when a breach of an international obligation of the state occurs and when that breach is attributable to the state under international law.131 As noted above, an IWA can result from a violation of a wide variety of norms, including CIL, treaties, or general principles of international law. Given the primary/secondary distinction, there is minimal discussion below on the proscription of specific acts.                                                          129 Once again, primary obligations are wide ranging and encompasses any “breach of an international obligation”. This includes, but is not limited to, bilateral and multilateral treaty obligations, international customary law, and obligations under general principles of law. The primary obligations for the case study in chapter seven, for example, are Security Council Resolutions (SCR). 130 Eric David, “Chapter 3: Primary and Secondary Rules”, in James Crawford, Alain Pellet, & Simon Olleson eds. The Law of International Responsibility (Oxford: Oxford University Press, 2010) at 28.  131 ASR and Commentary, supra note 26 at 34 (article 2).  58   In its 1980 Report, the ILC stated the following to clarify that the scope of the draft articles encompassed no more than an attempt to codify the secondary rules of international law:  […] the purpose of the present draft articles is not to define the rules imposing on states, in one sector or another of inter-state relations, obligations whose breach can be a source of responsibility and which, in a certain sense, may be described as ‘primary’. In preparing the present draft the Commission is undertaking solely to define those rules which, in contradistinction to the primary rules, may be described as ‘secondary’, inasmuch as they are aimed at determining the legal consequences of failure to fulfil obligations established by the ‘primary’ rules. Only these ‘secondary’ rules fall within the actual sphere of responsibility for internationally wrongful acts.132  Malcom Evans explains this aspect of state responsibility more succinctly: The concepts which are bundled up into the rubric of state responsibility in international law are said to be a means to an end, that end being the establishment of responsibility at the international level for international wrongs. State responsibility is not concerned with defining what comprise international wrongs that are capable of being addressed at the international level.133  It is important to keep in mind, however, that the distinction between primary and secondary rules was, at its heart, little more than a way of framing, or adding focus to, the codification exercise. Careful reading of the articles reveals that classification of the rules into two separate categories is not always possible. Being aware of this helps to remove some of the connotations associated with draft ‘codes’ while considering the ASR, i.e. that they represent significantly entrenched law and are difficult to change. While it would be wrong to say that excluding the primary rules from the codification framework simplified what remained a Herculean task, it did seem to move the project                                                         132 ILC, “Report of the ILC, 32nd Session”, ILC Yearbook 1980, Vol II (2), 27 at para. 23. 133 Malcolm D. Evans, “State Responsibility and the European Convention on Human Rights: Role and Realm”, in Malgosia Fitzmaurice & Dan Sarooshi eds., Issues of State Responsibility before International Judicial Institutions; The Clifford Chance Lectures, Volume 7 (Oxford: Hart Publishing, 2004) 139.  59  into high gear. Between 1969 and 1980, the ILC would be particularly productive, producing eight reports and completing proposed articles for a draft of Part One. The ILC continued to develop the articles with the next major step being the publication of the 1996 version of the draft articles. By this time, the draft articles were being cited by courts and provoking reflection in academic literature.134   This dissertation focuses primarily on the composition of IWAs and on the articles related to the attribution of acts of third parties to states. These important concepts make up Part One of the draft articles along with sections outlining different modes of shared responsibility, as well as a list of circumstances that may preclude the responsibility of state (for example, self-defence, force majeur, and necessity). Yet it is worth noting that the final 2001 version of the ASR also include three other main sections. Part Two addresses the legal consequences of an IWA, including obligations of cessation of behavior, reparation for injury, and compensation. Part Three addresses the methods of invocation of the responsibility by injured states, along with rules to be followed when implementing countermeasures. Part Four contains general provisions dealing with, among others, how the ASR interact with special rules of international law and asserting they operate without prejudice to the UN Charter.     Chapter six, section two, discusses the unconventional way the 2001 version (the latest version) of the draft articles were introduced. After years of deliberation, the ILC chose to promote the draft codification through a UNGA resolution rather than the longer process of convening states to work towards a convention. As explained below, doing so ensured quicker implementation of the ILC’s                                                         134 Supra note 27 at 11.   60  version of state responsibility, but it was to the detriment of a more representative and democratic process favoured by developing states.  The history of the efforts of the ILC may seem less significant than the developments in the previous sections, but it is important to acknowledge that the doctrine of state responsibility appeared to have been prone to growth. When considering the time it took for the ASR to come to fruition, the partially arbitrary classification of primary and secondary rules for the purpose of advancing the project, original interpretations of attribution when courts thoroughly consider CIL,135 and the fact that the articles have never been agreed to as a convention, alternative interpretations of the ASR become plausible.    7. Conclusion  The purpose of the short history was to provide an understanding of the significant European influence on the development of state responsibility, culminating in a doctrine that poorly accounts for NSAs. The intention was also to show that, up until 2001 and the introduction of the ASR, the history of state responsibility was one of evolution. CIL of state responsibility both formed and transformed as actors within the international community emerged and interacted. The chapter began by using Grotius’ work to show the origins of linking breaches of obligations with reparation, restitution and compensation and to highlight that these remain fundamental principles of state responsibility. European civil law codifications from the 19th century were noted as another important influence on the development of the doctrine. Heffter’s 1844 treatise on international law, which reflected European civil code chapters on extra-contractual responsibility, was                                                         135 See the discussion of the Tadić case in chapters four and six.  61  highlighted as an example of how the principles of the codifications were incorporated into international law. Anzilotti’s contribution, in turn, was noted as removing fault from state responsibility and confirming its state-centric status. A violation of an international obligation, for Anzilotti, would occur only if it was performed by an organ of the state. The chapter explained that this reflected a period where sovereignty of states became dominant and where such sovereignty would exclude any form of legal responsibility against the will of the state.   It should now be clear that state responsibility developed over time only to be seized at a specific moment by the framers of the ASR. Whether the narrow view of the doctrine, as represented in the ASR, was appropriate during its period of negotiations (1956 – 2001) has now become less relevant than the fact that the draft articles have manage to inhibit further development of the doctrine. Otherwise stated, the European influenced evolution of state responsibility may indeed have contributed to a doctrine that favours the Global North. But more imperative, today, is the fact that the Global North was able to pause the doctrine’s evolution at a time when developing states were becoming increasingly emancipated and beginning to contribute to the formation of customary law. The subsequent chapters explain how the ASR operate to favour Global North states by reinforcing a strong corporate veil in international law and by stunting the grown of a doctrine that previously showed flexibility. Once again, this contributes to the normative gap describe in chapter one by absolving home states of any responsibility for the overseas actions of their corporate citizens.  At this point, the dissertation moves from the theoretical section into three chapters of substantive law discussion. Given that the original content of this dissertation lies in its arguments pertaining to the second founding condition of the IWA – attributing breaches of law to the state - the next chapter is dedicated to understanding the limits of attribution under the ASR. It further addresses  62  how the draft articles fail to represent the views of a majority of states and how they prohibit the evolution of CIL of state responsibility.        63  PART B – SUBSTANTIVE LAW CHAPTER 4 - ATTRIBUTION UNDER THE DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS 1. Introduction In the introductory chapter, I noted that my methodological approach foresaw a descriptive component of the state of the law before applying a normative tool to propose a solution to the problem of weak control of MNCs in fragile states. This chapter’s discussion of the draft articles and the following chapter on IHRL contribute to the descriptive element. Although the ILC’s draft codification might provide an impression of being the authority on state responsibility, the document, once again, does not represent a treaty agreed to by states. Indeed, having never reached convention status, the common and casual reference to the draft by both scholars and courts as a “codification” is manifestly wrong. The ASR represent the culmination of research and opinions of jurists on the rules of customary law at the time.136 Yet even when the UNGA recommended the draft articles in 2001, the codification was not a comprehensive reflection of the corresponding customary law. The significant number of customary rules could not be simply replicated in the document and not all the articles included could be considered to accurately mirror their customary counterparts.137 While the codification of CIL may, in general, contribute to practicality and to the reduction of doubt in the application of law,138 the 59 Articles of the ASR were already a step behind upon their adoption.                                                         136 See chapter three, section 6, Work of the International Law Commission. 137 For an indication of the variety of state views with respect to the comprehensiveness of the draft codification, see their statements from the General Assembly Sixth Committee (Legal): UN GA (6th Committee), 71st Sess. 9th Mtg., UN Doc. A/C.6/71/SR.9 (2016) page 5, para. 27 and following. 138 Timothy Meyer, “Codifying Custom” (2011) 160 University of Pennsylvania Law Review at 995. In his critique of custom, Meyer notes “[c]ommentators laud codification’s purported virtues, including  64   The respective characteristics of codes and of customary law compounds the schism between what is represented in the draft articles and actual customary law of state responsibility. Draft codified rules are essentially attempts to restate customary law in an organized or condensed form and can often resemble treaties. As such, codified rules that have not been subsequently entrenched by a convention (such as the ASR) should only hold the same legal weight as customary law where they are confirmed to match their corresponding customary rules. For this reason, draft codified rules must continuously be reviewed for conformity with customary law. Customary rules, by their nature, evolve over time (this dissertation argues below that this process does not happen enough). The contention that the ASR represent an accurate reflection of current customary law becomes increasingly difficult to defend as time passes, especially considering geopolitical changes. Addressing the draft codification from a TWAIL perspective reveals why the inconsistency between the draft codification and customary law is important. Global North states have benefited from the narrow interpretation of state responsibility reflected in the ASR as detailed in section two below. The explanation of attribution below demonstrates the high threshold of control over a MNC needed for its acts to be considered attributable to its home state. Recall that chapter one highlighted the predominance of MNCs based in Global North countries. Maintaining the interpretation of                                                         systematizing, centralizing, and clarifying the law. These attributes are thought to increase the general welfare of those subject to legal rules and therefore to justify and explain codification.”; According to the Max Planck Institute with respect to the Vienna Convention on the Law of Treaties (1969), the positive effects of codification include practicality and the reduction of scope for doubt and argument, and therefore less judicial law-making. Anthony Aust “Vienna Convention on the Law of Treaties (1969)”, (2017) Oxford Public International Law, Max Planck Encyclopedia of Public International Law, online http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1498?prd=EPIL [Accessed 23 November 2017].  65  attribution provided by the ASR therefore protects these states from incurring international responsibility for violations of international obligations.   Since I argue that the threshold for the imputation of acts of third parties to a state in the ASR is exceedingly high, the goal of this chapter is, first and foremost, to reveal the threshold and then to show, through a TWAIL inspired analysis, how it benefits powerful states. This chapter begins by explaining why it is difficult to link the behaviour of MNCs to their home states. The second part of the chapter shows how components of international law reinforce the restrictive reading of the ASR, consolidate the advantages afforded to the Global North, and encourage the crystallization of rules of state responsibility as reflected in the draft articles. This second section also shows how less powerful states are advocating in favour of reopening negotiations with respect to the draft articles with the purpose of having their concerns properly represented in any future codification efforts.   2. Relevant draft articles Since states must carry out their actions through organs or individuals, rules concerning attribution of conduct play a fundamental role in the system of international responsibility. Attribution is the process developed under customary law that determines whether an individual or group’s conduct (in the form of an act or omission) can be characterized as an act of a state.139 The rules are found in Part I of the ASR and reflect various possibilities for linking conduct to states. For example,                                                         139 Luigi Condorelli & Claus Kress, “Chapter 18, The Rules of Attribution: General Considerations” in James Crawford, Alain Pellet, & Simon Olleson eds., The Law of International Responsibility (Oxford: Oxford University Press, 210) 221.    66  while state organs bind the state without controversy, the conduct of one state’s organ may, under certain circumstances, become attributable to a different state. Conduct that is prima facie private may become attributable to a state where the individual or entity acts on the instructions of, or under the direction or control of a state. There also exist possibilities of states acknowledging and adopting relevant conduct as their own. The articles pertaining to attribution within the ASR are reviewed below in the order in which they are presented in the draft codification.   The draft codification contains four articles defining methods of attribution that are relevant to MNCs.  Article 4 denotes attribution for conduct of state organs. Article 5 applies to conduct of persons or entities exercising elements of governmental authority. Article 8 highlights conduct directed or controlled by a state and Article 16 pertains to attribution through complicity. While Article 4 is based on a structural assessment of attribution (when an entity holds a position within the organization of the state), Article 5 is functional (when an entity exercises government authority). Article 8 is based on aspects of control (when an entity acts on the instructions of or is under the direction or control of a state)140 and Article 16 attribution is founded on complicity im the form of knowledge and assistance. Articles 4, 5, and 16 will be addressed in a briefer manner than Article 8 as attribution through instruction, direction or control is most relevant to this dissertation.                                                            140 Michael Feit, “Responsibility of the State under International Law for the Breach of Contract Committed by a State-Owned Entity”, (2010) 28:1 Berkeley Journal of International Law, 2010, at 147.  67   2.1 Article 4 – State organ   Article 4  Conduct of organs of a State  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.  2. An organ includes any person or entity which has that status in accordance with the internal law of the state.  Article 4 addresses the responsibility of states for the acts or omissions of entities determined to be de jure state organs. Considered the “starting point” of attribution, acts of state organs are deemed to be acts of the state and the components of these organs are characterized, minus exceptions, by a state’s domestic law.141 This was confirmed before the ILC codification by the ICJ in the Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v. United States of America) through its statement that states are free to formulate their own “political, economic, social and cultural system[s]” with respect to foreign policy.142 State organs come in all shapes and sizes and are composed of individuals or collective entities that either constitute part of the state organization or act on its behalf.143 Distinctions between state organs that can commit IWAs and ones that cannot are not made under the ASR – an approach in keeping with the principle of unity of states and of                                                         141 ASR and Commentary, supra note 26 at 40. Article 4 specifically lists legislative, executive, and judicial organs, and outlines that an organ “includes any person or entity which has that status in accordance with the internal law of the State.”; Hannah Tonkin, State Control Over Private Military and Security Companies in Armed Conflict (Cambridge: Cambridge University Press, 2011) 57. 142 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, International Court of Justice, 27 June [1986] ICJ Rep p. 14m at 108, para 205. [Nicaragua v. United States of America (Merits)] 143 Supra note 27 at 94.   68  diversity of international obligations.144 Similar to the discussion of primary obligations above, state responsibility confirms its flexibility through its application to the various numbers and forms of state organs from, for example, police to immigration officials.145   For a MNC to be considered under Article 4, its status as a de jure organ would need to be established through domestic law. One possibility is that of a company established separately from the state that is subsequently formally incorporated into the state apparatus through domestic law.146 Such situations require incorporation beyond everyday contact between a state and its contractors. PMSCs established as state organs through domestic legislation are a recent example of this phenomenon.147 These include a contract for ‘special constables’ between the PMSC Sandline International and Papua New Guinea,148 the work of Executive Outcomes (EO) in Sierra Leon and Angola,149 and a recent security force established in the United Arab Emirates (UAE) trained by a PMSC but placed under the command of the UAE.150  Despite these examples, however, such cases remain rare.                                                          144 ASR and Commentary, supra note 26 at 40 (article 4, para 5). 145 Ibid.  146 Cameron & Chetail, supra note 37 at 138 discuss this as possible “in theory” for a PMSC. 147 Ibid. at 141; Tonkin, supra at note 141 at 58. 148 Sinclair Dinnen “Trading in Security” in Sinclair Dinnen, Ronald James May & Anthony J. Regan eds., Challenging the State: The Sandline Affair in Papua New Guinea (Canberra: National Centre for Development Studies, 1997); Tonkin, supra at note 141 at 85. 149 Before the start of its civil war in 1995, Sierra Leone incorporated EO personnel into its armed forces. Tonkin, supra at note 141 at 85. 150 Cameron & Chetail, supra note 37 at 141.  69  Given domestic law plays the determinative role in establishing what is to be considered a state organ, it is beyond the scope of this study to discuss the many possibilities of integration of corporate entities into state organs aside from what has been mentioned above. It suffices to highlight certain points from the ILC Commentaries to Article 4. Reference to state organs is meant to be made “in the most general sense” and extend to “organs of government of whatever kind of classification, exercising whatever functions, and at whatever level of the hierarchy[.]”151 For the purpose of this dissertation, companies incorporated within the state to the extent considered under Article 4 should pose little problem in terms of attribution. Their attachment to the state in such cases is manifest and explicit and states will likely take appropriate action to control their behaviour abroad. Furthermore, in cases of violations of international obligations, there is little a state can do to distance itself from the MNC. Of greater interest are cases that go beyond the starting point of Article 4, that is, entities for which international law is used to determine whether there is a connection to the state. The first of these is expressed in Article 5 of the ASR.   2.2 Article 5 – Exercising elements of government authority  Article 5  Conduct of persons or entities exercising elements of governmental authority  The conduct of a person or entity which is not an organ of the state under Article 4 but which is empowered by the law of that state to exercise elements of governmental authority shall be considered an act of the state under international law, provided the person or entity is acting in that capacity in the particular instance.152                                                          151 ASR and Commentary, supra note 26 at 40 (article 4, para. 5). 152 Ibid. at 42 (article 5).  70  Article 5 covers conduct of entities other than state organs that are nevertheless empowered by domestic law to exercise governmental authority. The article provides the mechanism to trigger attribution for the first degree of removal of an entity from the state. While a greater burden of proof is imposed on a state invoking Article 5 as opposed to Article 4, the gap between the two is much smaller than between Articles 5 and 8. This is partly because articles 4 and 5 both belong to a category referred to by Crawford as the “hard core” of attribution, dealing specifically with “organs and agencies of state exercising sovereign authority.”153 The obvious common component for attribution tests within this category is the focus on domestic legal features of the state under discussion.154 By contrast, as will be shown, the amount of control exercised by the state is what preoccupies scenarios under Article 8. The elements between Articles 4 and 5 are close enough that Article 5 has frequently been referred to in combination with Article 4.155  Simply put, if a person or entity is not found to constitute an organ under Article 4 but exercises “elements of governmental authority,” the attribution test is rolled over to Article 5.156 See, for example, the tribunal’s reasoning in Eureko BV v Republic of Poland:  [t]he principles of attribution are cumulative so as to embrace not only the conduct of any state organ (Article 4) but the conduct of a person or entity which is not an organ of the state but which is empowered by the law of that state to exercise elements of governmental authority (Article 5). It embraces as well the conduct of a person or group of persons if he                                                         153 Crawford “The General Part”, supra note 93 at 115. 154 Ibid. 155 Simon Olleson, The Impact of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts, Preliminary Draft, (The British Institute of International and Comparative Law, 2007) at 69, online https://www.biicl.org/files/3107_impactofthearticlesonstate_responsibilitypreliminarydraftfinal.pdf [Accessed 25 November 2017]. 156 Ibid.  71  or it is in fact acting on the instructions of, or under the direction or control of, that state (Article 8).157   When applying Article 5, claimant states need to identify the conduct of the entity, its empowerment under domestic law, and that the person/entity acted in its governmental capacity (even if beyond its power or instructions). Included within the term “entities” are public and semi-public corporations, public agencies, and private companies.158 Article 5 does not define “government authority,” however, leaving its application uncertain. While roles related to public order and security spur little controversy as to their governmental character, other roles may be more related to the culture, customs, and traditions of the country in question.159 Using the example of corporations (as entities), Brigitte Stern distinguishes between actions that are jure imperii (companies exercising the public acts of the state where the corporate veil doesn’t apply) and those considered jure gestionis actions (representing the private, commercial acts of the state).160 This approach highlights the difference between a state contracting out services and a corporation acting as a representative of the state. The Commentaries to the ASR attempt to provide guidance by identifying four aspects to consider when evaluating whether an entity is acting within its government authority. They include contemplation of the content of the powers, the way they are conferred, the purpose for which they are exercised, and the extent to which the entity is responsible                                                         157 Eureko BV v Republic of Poland (Netherlands-Poland BIT Ad Hoc Award, 23 November 2006) para. 129. (parentheses added) 158 ASR and Commentary, supra note 26 at 43 (article 5, para 2). 159 See Ibid. at 43 (article 5 para 6). 160 Brigitte Stern, “Chapter 17, Elements of an Internationally Wrongful Act” in James Crawford, Alain Pellet, & Simon Olleson eds., The Law of International Responsibility (Oxford: Oxford University Press, 210) 208.   72  to government.161 Unfortunately, while this approach may be a step towards defining the term, it does little to facilitate its application.   2.3 Article 8 – Conduct directed or controlled by a state  Article 8  Conduct directed or controlled by a State  The conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct.  The draft codification foresees limited situations in which the behaviour of private entities not officially delegated state power can be assimilated to a state. If the conditions of Article 5 are not satisfied, attribution may still occur if the requisite instruction, direction or control by the state is present, creating de facto agents of the state. The tests for “acting on the instructions,” “under the direction” or “control of” a state are disjunctive.162 As such, any of the three tests can individually trigger responsibility. However, while the draft codification may appear to provide greater certainty for the amount of involvement required for state responsibility to arise under the three scenarios, attempts to interpret Article 8 show that the issue is far from settled. The current debate revolves mainly around the final “control” criterion and the amount of control needed by a state over a private entity in order to trigger responsibility. Before discussing the specific amount of state                                                         161 ASR and Commentary, supra note 26 at 43 (article 5, para. 6). 162 Such is the view stated in Tulip Real Estate and Development Netherlands B.V. v. Republic of Turkey, ICSID, Case No. ARB/11/28, Award, 10 March 2014, para. 281; See also Antonio Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia” (2007) 18:4 EJIL at 650; ASR and Commentary, supra note 26 at 48 (article 8, para. 7).   73  instruction, direction, or control required for Article 8 to apply, more general aspects of this type of attribution to MNCs are summarily addressed.  The ILC Commentaries to Article 8 opens by noting that “in theory” the conduct of all human beings, including corporations, can be attributed to the state “whether or not they have any connection to the government.”163 This point, while simple, is important because it confirms that attribution begins with the possibility that MNCs can indeed be linked to states. This, as shown below, isolates the discussion to the details of imputation rather than the legitimacy of the process. The Commentaries’ qualification of the above statement is found in its subsequent limits to linking private acts to states:  In international law, [strict imputation is] avoided, both with a view to limiting responsibility to conduct which engages the state as an organization, and also so as to recognize the autonomy of persons acting on their own account and not at the instigation of a public authority. Thus the general rule is that the only conduct attributed to the state at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the state.164   The Commentaries caution that “[b]earing in mind the important role played by the principle of effectiveness in international law, it is necessary to take into account […] the existence of a real link between the person or group performing the act and the state machinery.”165 They further support this by explaining that “the fact that a state initially establishes a corporate entity […] is not a sufficient basis for the attribution to the state of the subsequent conduct of that entity.”166                                                         163 ASR and Commentary, supra note 26 at 38.  164 Ibid. 165 Ibid. at 47 (article 8, para. 1). 166  Ibid. at 48 (article 8, para. 6).   74  Considering this, the invoking of the principle of effectiveness167 and the need for a “real link,” the Commentaries frame the use of Article 8 restrictively, rendering circumspect its applicability to the acts of third parties.   While the logic of limiting the responsibility of the state to acts that are substantially tied to it is clear, the bar for the consideration of state participation is set too high. This dissertation does not posit that the simple establishment of a corporate entity under national law forms the necessary link for state responsibility. However, a test that lies between strict responsibility and the current interpretation of the ILC would, it is argued below, better reflect CIL. The “real link” referred to by the Commentaries currently has no definition in international law and the various interpretations of the tests of control discussed below reflect this. Moreover, the fact that “persons acting on their own account” but who still have substantial support from their home state can often act with impunity in fragile states compounds the problem, resulting in an important gap in the coverage of international law. To examine this gap more closely, the high threshold for imputation (through instructions, direction or control) set by the ASR are discussed in more detail below. Following this discussion, a subsequent section will address how this high threshold favours Global North states and how international law contributes to sustaining the criteria.                                                             167 The principle of effectiveness provides that statutory interpretation in international law should lie primarily with the treaty text representing the original agreement of the parties.   75  i) Instructions and Directions The Commentaries to Article 8 and some commentators specify that imputation only occurs under instructions when a state provides instructions pertaining to a specific illegal act.168 The ICJ echoed this view in 2007 in the Genocide Convention case:  It must however be shown that […] the state’s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. 169  This interpretation significantly limits what may be considered “instruction” under Article 8. Given that it is rare to find evidence of instructions by a state ordering an unlawful act, this first test under Article 8 has not received the same attention as the control criteria. When proof of instruction is absent, recourse is made to the more abstract processes of determining direction or control. Although instructions and direction are often referred to together,170 direction as a reason for attribution stands on its own.171 Colloquially a synonym for instructions, direction differs under the draft codification through the requirement that the state lead in the commission of the unlawful                                                         168 Cameron & Chetail, supra note 37 at 205; ASR and Commentary, supra note 26 at 47 (para. 1).  169 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ICJ Rep 2007, 43, para 400. [Genocide Convention case] 170 The ICJ in Nicaragua v. United States of America (Merits) seems to conflate the terms at 64, para 115, supra note 142. 171 The title of Article 8 (Conduct directed or controlled by a State) likely contributes to the lumping together of the tests in Article 8. Nevertheless, when referring to Article 8 in the Commentary, the ILC writes “Article 8 deals with conduct carried out on the instructions of a State organ or under its direction or control.” ASR and Commentary, supra note 26 at 39 (para. 8).  76  act.172 In this respect, under directions, a state “must show how the operation is to be conducted”173 whereas for instructions the state must simply provide orders. Determining a more precise meaning of direction remains challenging as the criterion has received less treatment by courts and scholars than the other elements. Moreover, the ILC’s attempt at clarification of the term has not been entirely successful. To begin with, the ILC employs the term “instigation” instead of direction in its introduction to attribution in the Commentaries.174 Given that the terms “instigation” and “direction” are far from synonyms in international law, the ILC’s use of the former is confusing. Indeed, the burden for proving instigation would be lower than direction. Consider the following definition, albeit borrowed from international criminal law, which appears in the International Law Reports:   Instigating entails “prompting another to commit an offence”. The wording is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct. The ordinary meaning of instigating, namely, “bring about” the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof.175   Given this definition, the replacement of direction with instigation should be considered an anomaly and should not be interpreted to have an impact on the definition of direction proposed by                                                         172 Cameron and Chetail explain that for “direction” to be considered, the State must “show how the operation is to be conducted.” Cameron & Chetail, supra note 37 at 209. 173 Ibid. 174 ASR and Commentary, supra note 26 at 38 (para. 2) “the general rule is that the only conduct attributed to the State at the international level is that of its organs of government, or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State.” (emphasis added) 175 Elihu Lauterpacht, C. J. Greenwood, A. G. Oppenheimer eds. International Law Reports, Volume 122 (Cambridge: Cambridge University Press, 2002) at 98, para 280. (footnotes omitted)  77  the ASR. It does, however, point out a lack of consistency within the draft codification. Curiously, at a later point in the Commentaries the ILC specifically indicates that direction should not be considered “incitement” (a relative of instigation). In a footnote related to the definitions of direction and control within the Commentaries to Article 8, the ILC refers to this paragraph, which describes the direction and control exercised over the commission of an IWA by another state:    In the formulation of article 17, the term “controls” refers to cases of domination over the commission of wrongful conduct and not simply the exercise of oversight, still less mere influence or concern. Similarly, the word “directs” does not encompass mere incitement or suggestion but rather connotes actual direction of an operative kind.  Although Article 17 applies direction and control adjunctively to the situation of states directing and controlling another, the reference included by the ILC indicates that this definition also applies to Article 8.   It is appropriate to attempt to define “direction” by incorporating the definition provided by the ILC above. According to the ILC, direction should encompass aspects of an “operative kind” and should relate to the specific operation at issue with the conduct in question being an “integral part of [the] operation.”176 As a final note on the term, instruction, direction, and control can be understood as nuances, moving from the specific to the more general.177 In such a view, the specificity of instructions would require less evidence of authority over the third party and control would require evidence of authority but not specific instructions.                                                           176 ASR and Commentary, supra note 26 at 47 (article 8, para. 3) and 69 (article 17, para. 7). 177 The ILC refers to direction and control as ‘more general’ situations. Ibid. at 47, article 8 para. 1.  78  ii) Control As is the case for direction, for conduct to be attributable to a state under the control criterion of the ASR (according to the ILC) the state must have controlled the specific operation and the act must have been integral to the event.178 According to the ILC, attribution cannot be considered if the conduct at issue was only “incidentally or peripherally associated with an operation.”179 In specifying the amount of control needed to impute the acts of a third party to a state, the Commentaries refer to the control criteria discussed in cases before international courts, ultimately favouring the most restrictive interpretation. Two seminal cases are addressed within the text of the Commentaries, one emanating from the ICJ and the other from the International Criminal Tribunal for the former Yugoslavia (ICTY).180    The ILC clearly indicates it favours the ICJ’s more stringent test from the aforementioned Nicaragua v. United States of America. The ICJ’s test sets a benchmark of “effective control” over a third party by a state in order for responsibility to be imputed. The case involved violations of IHL by pro-US contra rebels during the Nicaraguan civil war. The ICJ categorized three types of groups under varying degrees of US control in the affair: CIA operatives and US Forces, Latin American operatives, and the contras rebels. Per the Court, there was no doubt concerning US responsibility for actions of its own forces and for the Latin American operatives who operated                                                         178 Ibid. at 47, article 8 para. 3. 179 Ibid. 180 Prosecutor v. Tadić, ICTY-94-1-A, Appeals Chamber (15 July 1999) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber).  79  under instructions of US agents.181 However, Nicaragua’s argument that the contra rebels’ actions were attributable to the US was rejected. The following much cited paragraph demonstrates that, according to the ICJ, in the absence of a satisfactory level of “direction” or “enforcement,” even “preponderant” or “decisive” support from a state may be deemed insufficient for attribution to exist: That United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent state over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant state. 182   The Court opined that effective control of the specific operations over the course of which the violations occurred was needed: Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to the legal responsibility of the United States, it would in principle have to be proved that that state had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.183   The paragraph above marks the extent to which the court described effective control. Thus, in order to know what effective control consists of, one needs to take note of what the Court suggested was missing, namely the US directing or enforcing the perpetration of the acts. In assessing the Court’s opinion on effective control, eminent jurist Antonio Cassese states that: It seems clear from these words that by ‘effective control’ the Court intended either (1) the issuance of directions to the contras by the US concerning specific operations                                                         181 Nicaragua v. United States of America (Merits), supra note 142 paras. 75-80. 182 Ibid. para. 115. (emphasis added) 183 Ibid. para. 115.  80  (indiscriminate killing of civilians, etc.), that is to say, the ordering of those operations by the US, or (2) the enforcement by the US of each specific operation of the contras, namely forcefully making the rebels carry out those specific operations.184  There is little risk in stating that, under the view expressed in Nicaragua, attributing the conduct of a private party to a state under the doctrine of state responsibility entails satisfying a high threshold.185 The fact that preponderant or decisive involvement by a state remained insufficient to trigger responsibility in Nicaragua and that the ILC adopted the reasoning of the decision should raise concern. Returning to the concepts discussed previously under TWAIL, it is this particular threshold that protects Global North states from attribution for their involvement in other countries. With specific respect to MNCs, the threshold upholds the strong corporate veil of international law, protecting states for any responsibility for the acts of their corporate citizens abroad. This veil persists despite significant potential support given to companies by state (discussed in chapter six, section four) and despite benefits for home states from the operations of such actors.      Although state responsibility falls within the purview of international public law, the interpretation of the concept of attribution is not limited to a particular court. While bodies that decide matters of state responsibility may be the venue in which attribution plays “the greatest practical importance,”186 its application has extended to other topics where legal repercussions exist due to linking an individual to a state. For this reason, the contribution made by ICL in Prosecutor v.                                                         184 Cassese, “The Nicaragua and Tadić Tests Revisited”, supra at note 162 at 653. 185 Mark Gibney, Katarina Tomasevski & Jens Vedsted-Hansen, “Transnational state Responsibility for Violations of Human Rights” (1999) 12 Harvard Human Rights Journal at 267. Gibney et al. have observed that the control test in Nicaragua v. United States of America is “extraordinarily high.”  186 Supra note 139 at 222.   81  Tadić (Tadić)187 in 1999 should not be understated. Attribution was discussed in this case by the ICTY with the purpose of determining the classification of the armed conflict within which the supposed acts of the accused occurred. Although the court found that the conflict was of international character prior to May 19, 1992, it used attribution criteria from case law and Article 8 of the ASR to determine whether the conflict maintained that character once the Federal Republic of Yugoslavia removed itself from the fighting.   Of particular importance are the Appeals Chamber’s comments that attribution can be satisfied without fulfilling the high degree of effective control outlined by the ICJ in the Nicaragua case and the possibility of the degree of control varying case by case:  The requirement of international law for the attribution to states of acts performed by private individuals is that the state exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control.188   Tadić shows that Courts may be open to considering individual circumstances and adapted cases of control. The insistence of the Appeals Chamber on providing consideration of the “factual circumstances of each case” suggests that current restrictive views of attribution may not be set in stone. Moreover, questioning the definition from Nicaragua and opening attribution to a wider application provides fodder for the approaches discussed in chapter six. Tadić will be revisited in                                                         187 Supra at note 180. 188 Ibid. at para. 117.  82  section 2.3 of chapter six, where I argue that more a thorough consideration of CIL lead the ICTY to propose the lower threshold of “overall control.”   Still, as noted above, the ILC favoured the stricter standard of control espoused by the ICJ. After discussing both judgements, the Commentaries spell out the ILC’s conclusion that:  […] where persons or groups have committed acts under the effective control of a State, the condition for attribution will still be met even if particular instructions may have been ignored. The conduct will have been committed under the control of the State and it will be attributable to the State in accordance with Article 8.189   The extent to which effective control is described in both the Nicaragua decision and within the Commentaries is surprisingly short. Indeed, the ILC does not outline its reasons for adopting the criteria, suggesting implicitly that the authority of the ICJ is the reason for the adoption of effective control. More worrisome is the fact that the ICJ’s investigation into CIL relating to attribution is cursory as well. The result is an overly strict standard for imputing responsibility of third actors to states within the draft codification that appears not to have any basis in actual CIL. This, of course, is problematic for a document that purports to represent existing CIL and holds significant weight in international forums. Section three, below, addresses how international law upholds the high threshold and the effects this has on fragile states. Before this, Articles related to more particular aspects of attribution are briefly addressed.                                                           189 Supra note 27 at 113.  83  Articles 4, 5, and 8 represent the most discussed methods of attribution under the ASR, with the high threshold of Article 8 identified as a contributor to the impunity of MNCs. Other rules related to precise scenarios fill out the rest of the articles related to attribution in the ASR. For example, attribution can be triggered when actors violate an international obligation while assuming government authority in the absence of the state.190  Also, the conduct of an organ of a state that has been put at the disposal of another state can be attributed to the state exercising temporary authority over the entity.191 Behavior that is not normally attributable to a state can be considered an act of the state if a government acknowledges and adopts the conduct in question.192 Conduct  occurring during insurrectional movements is not imputable to a state unless the movement successfully forms a government or succeeds in establishing a new state.193 Finally, acts of official organs or entities in excess of authority are nevertheless attributable to the state.194  2.4 Article 16 and state complicity In addition to identifying the components of an IWA and the various methods of attribution, Part One of the ASR addresses modes of participation in an act and circumstances that may preclude the responsibility of a state. Article 16 provides for attribution through connection of a state with the act of another. The relationship between a home state and a MNC could render the home state                                                         190 Article 9; Such cases involve persons taking up governmental functions on their own initiative when the state has lost control of part of its territory. See Robert Kolb, The International Law of State Responsibility; An Introduction, Northampton: Elgar (2018) at 83. 191 Article 6. 192 Article 11. 193 Article 10. 194 Article 7.  84  responsible for an IWA of another state in cases where the support provided amounts to collaboration. Article 16 of the ASR holds a state responsible for an IWA when it “aids or assists another state in the commission of an [IWA]”:  Article 16  Aid or assistance in the commission of an internationally wrongful act  A state which aids or assists another state in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:  (a) that state does so with knowledge of the circumstances of the internationally wrongful act; and  (b) the act would be internationally wrongful if committed by that state.  While the host state remains simply the victim of the in the cases above, under Article 16 the host state is part of the violation. To consider invoking Article 16 for acts of MNCs abroad, the roles of three actors must be considered: the corporation that undertakes the triggering act; the host state that has either participated in the act or acquiesced to it; and the home state that has contributed to it. Rather than focusing on home state control, Article 16 considers the home state’s knowledge of the circumstances of the act and any assistance furnished. For the first part of this analysis, consider situations involving states alone. The material act under Article 16 is committed by the assisted state. The assisting state is “responsible for its own act in deliberately assisting another state to breach an international obligation”195 and not for the primary act of the assisted state. However, the facts of the individual case will determine whether there is truly a distinction between the acts. Where assistance is significant and determinative of the act occurring, both states could be attributed the same amount of injury caused. Where there is less contribution, the assisting state                                                         195 ASR and Commentary, supra note 26 at 67 (article 16, para. 10).  85  would only be responsible for consequences linked to its involvement. The following examples of aid or assistance in the commission of an IWA are listed by the ILC: “providing financing for an activity that violates an international obligation,” “providing means for the closing of an international waterway,” “facilitating the abduction of persons on foreign soil,” and “assisting in the destruction of property belonging to nationals of a third country.”196 An often-cited accusation of complicity under state responsibility was made by Iran about UK assistance to Iraq in 1984. Iran claimed that the UK had supplied financial and military aid to Iraq that included chemical weapons and facilitated the act of aggression by Iraq.197   The involvement of a MNC in a violation of an international obligation complicates the application of complicity. Four conditions would need to be satisfied for a home state to incur responsibility under Article 16: the host state must allow the MNC to operate on its territory; the aid or assistance by the home state must contribute to a breach of an international obligation that would be internationally wrongful if committed by both the host and assisting states; the assisting state must have knowledge of the circumstances leading to the act in questions; and the assistance must be given with the purpose of facilitating commission of the act.198 The first two conditions are essentially related; it is difficult to imagine the existence of a mutual violation between the two states involved if the host state does not accept the presence of the MNC within its jurisdiction.                                                         196 Ibid. at 66 (Article 16, para. 1). 197 Ibid. at 67 (Article 16, para. 8). See generally Robert McCorquodale and Penelope Simons, “Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law” (2007) 70:4 MLR, 598 at 611.  198 The conditions are extrapolated from the elements of Article 16 and the fact scenario that would need to exist for Article 16 to apply.  86  Robert McCorquodale and Penelope Simons use support provided by home state export credit agencies (ECA) to offending companies to demonstrate what the link between a MNC and home state could consist of.  […] ECAs routinely provide a full range of services to their corporate nationals to develop the latter’s competitiveness in global markets. These services range from the provision of export credits and risk insurance to developing essential contacts in other states and participating in government trade missions abroad […] The direct link between the provision of such services to assist the foreign direct investment of a state’s corporate nationals, could be seen as a state aiding and assisting internationally wrongful acts. 199  Although the potential in Article 16 to bind MNCs and home states is of interest and study, further review falls outside of the scope of the dissertation. Chapter six nevertheless explores the implications of ECA support to MNCs when discussing its emerging attribution proposal.  3. Issues with the draft codification of customary law The next sections show how international law helps Global North countries consolidate their benefits under the ASR and how the draft articles are systemically applied to the disadvantage of weaker states. The sections demonstrate that, despite being promoted by the UN, the practise of codification is harmful to the fair development of CIL of state responsibility and that it perpetuates inequalities between states. This is shown below in three ways: 1) through the existence of a draft code that does not adequately represent the views of all states; 2) through the stunting of the development of fair customary law; and 3) through strict readings of the codified text by commentators and deciding bodies.                                                           199 McCorquodale & Simons, “Responsibility Beyond Borders”, supra note 197.  87  3.1 A draft code inconsistent with the views of most states Recent views expressed by states about the adoption of a convention on state responsibility provide an indication of how they view the draft codification. That is, the pattern of states wishing to negotiate a treaty on state responsibility versus those advocating to maintain the current draft codification reveals which states feel adequately served by the ASR and which consider themselves disadvantaged by them. A 2016 report from the Sixth Committee of the UNGA (Legal) listed the concerns and opinions of member states and regional group representatives with respect to moving toward a true codification of the rules of state responsibility.200 Of the states included in the report, those in favour of negotiating a convention were the Dominican Republic on behalf of Latin American and Caribbean states (CELAC),201 South Africa on behalf of the African Group,202 Cuba, El Salvador, Russia, Venezuela, Algeria, Iran, Mexico, and China. Against (in favour of maintaining the current state) were the US, Canada, the United Kingdom, Israel, Finland, Denmark, Iceland, Norway, Sweden, New Zealand, and Australia. While there are countries of varying Human Development Indexes (HDI) and GDPs on both sides of the argument, those in favour of keeping the ASR in their current form are all developed states. Most developing states (along with a majority of all states) advocate for initiating treaty negotiations. In other words, not only have                                                         200 Supra at note 137 at 5. 201  Antigua and Barbuda, Argentina, The Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago, Uruguay, and Venezuela. 202 Algeria, Angola, Benin, Botswana, Burkina Faso, Burundi, Cabo Verde, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d'Ivoire, Democratic Republic of the Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea, Bissau, Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, São Tomé and Príncipe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, South Sudan, Sudan, Swaziland, Togo, Tunisia, Uganda, United Republic of Tanzania, Zambia, and Zimbabwe.  88  most states expressed a desire to move beyond the current version of the ASR, support is also drawn along geo-political and economic index lines.   The occurrence of the differing views renders it difficult to argue that the ASR currently reflect CIL. This chapter repeatedly argues this point and a TWAIL analysis provides clues as to why the schism exists. In deference to the ILC, I do not argue that there was an intentional bias in favour of Global North states among the drafters of the ASR. The membership composition of the ILC from 1956 to 2001 provides no outright indication of undue representation from one set of countries. Member states submit the names of candidates who are subsequently voted upon by the UNGA. The members do not represent their countries of citizenship and the nationalities of members appear varied and generally representative of all regions.203 No two members of the ILC may be nationals of the same state and eligibility for election is not restricted to nationals of member states of the UN (however, no national of any non-member state has ever been elected).204 As such, the process of member selection, on the surface, appears fair. However, when addressing systemic bias, diverse national representation does not necessarily equate to impartiality. The ILC’s founding statute provides insight into other aspects that deserve consideration when attempting to verify its impartiality. Section 15 of the Statute of the ILC describes the codification of international law as the “systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.”205 TWAIL scholars have noted that state practice,                                                         203 A list of all 228 members from 1949 to present can be consulted on the International Law Commission’s website under Membership: http://legal.un.org/ilc/guide/annex2.shtml [Accessed on August 08, 2018]. 204 Statute of the International Law Commission, GA Resolution 174 (II), November 21, 1947, article 2(2). 205 Ibid at 15.  89  precedent and scholarly writings in international law, however, have historically been Western-based. The lack of availability of state practice of Third World nations has been highlighted by Chimni as contributing to Western-influenced customary law through “the identification of rules of CIL primarily on the basis of state practice of advanced capitalist nations and the opinions of their scholars.”206 Although Chimni notes that customary law is becoming increasing representative of all states, his observation is directly applicable to the formation of draft customary law codes under earlier CIL practice.207 Codification during the period of the lead up to the draft articles contributed to a systemic bias in international law by further legitimizing customary law that evolved from Western state practice. Compounding this, the statutes of the ILC highlight the importance of considering what is essentially Western state practice in the formation of draft codifications. In addition, although the ILC’s 34 members are described in the statute as “persons of recognized competence in international law,”208 during the period in which the ASR was developed this recognized competence could well have meant members with competence in European or Global North concepts of international law, regardless of the country of nationality.209 Thus, while there may not be intentional bias among members, an inquiry into where members were trained in law or into their professions could provide insight into Western influence within                                                         206 Bhupinder Chimni, “Customary International Law: A Third World Perspective”, American Journal of International Law, (2018) 112:1 at 6. 207 Concern surrounding the bias of CIL, whether or not it persists, and the proposition that increased attention be paid to CIL outside of the draft articles is raised in chapter seven.     208 Supra at note 204, article 2(1). 209 ILC members are often referred to as imminent scholars and consist of lawyers, professors, and judges. Some, nevertheless, have noted the importance of not over-evaluating the ILC. See Marko Milanovic who writes “The ILC’s work is certainly not gospel and its authority, as well as that of the ICJ for that matter, does not place it or the ICJ beyond criticism” Marko Milanovic, “State Responsibility for Genocide” (2006) 17 (3) European Journal of International Law, at 561.  90  the ILC. Despite TWAIL encouraging analysis beyond the surface to identify systemic biases, the goal of this section is less to reveal bias at the ILC upon formation of the draft codification than to demonstrate a current eschew of the draft articles by states outside of the Global North. In other words, the need to confirm historical bias, although of academic interest, is not as important as recent declarations by states showing disagreement with respect to the codification.   In addition to the problem that the ASR represent an artificially high threshold, they are increasingly (and wrongly) being referred to as a veritable codification. Courts applying the ASR without investigating their customary status means that the longer the ASR do not proceed to negotiations to be formalized as a convention, the more chance they will crystalize into accepted rules to the benefit of states such as Canada, the US, and the UK. The arguments voiced by these states in support of leaving the ASR untouched include that initiating negotiations would “dilute or undermine” the influence of the articles,210 that “a convention based on the articles would not bring additional authority or clarity,”211 and that discussions could “unravel the fragile balance struck in the wording of the articles.”212 Curiously, these statements do not reflect the existence of a stable set of rules or an existing opinio juris. If the draft codification truly mirrored customary law to the extent pronounced by the courts in the sections below, states would have little issue initiating negotiations for codification as the articles would not risk significant change. Another argument, this one concerning the evolution of customary law, advanced by the US and the United Kingdom seems inconsistent with the current reality. The representative of the UK stated that:                                                          210 New Zealand, supra at note 137 para. 37. 211 United States of America, ibid. para. 70. 212 Israel, ibid. para. 54.  91  It would be dangerous to press ahead with a convention during the process of natural development of customary international law. The very premise upon which the codification was founded, namely that customary law was settled, would be absent. The process of elaborating a convention would highlight and exacerbate the differences of approach, thereby threatening the very coherence that the articles sought to and did indeed instil.213  The US, for its part, noted: Although the Secretary General’s report (A/71/80) demonstrated that the articles had already become a helpful guide for international courts and tribunals, states and legal experts on both the state of the law and how it might be progressively developed, the negotiation of a convention risked undermining the very important work undertaken by the International Law Commission in crafting the articles. Particularly worrisome was the prospect that such an instrument might deviate from important existing rules or ultimately not enjoy widespread acceptance by states.214  Essentially, the two paragraphs above argue that the ASR came to fruition at a moment when customary law on state responsibility was settled (or settling) and that any negotiations by states would disrupt a delicate balance and throw customary law into chaos. However, the American argument overestimates support for the ASR (which is far from widespread, as shown below) and uses presumptive reasoning to state that countries wishing to negotiate a treaty would push for provisions that do not coincide with customary law rules. Moreover, it is ironic that the quotes above refer to the development of customary law when the ASR are currently doing the opposite. Statements from deciding bodies mistakenly referring to the ASR as an authoritative reflection of CIL and treating the ASR as a treaty text can hardly be said to contribute to the progression of customary law; they are, rather, stunting it. Indeed, the negotiations feared by the US, Canada, and the UK would likely be more representative than deliberations at the ILC and would include all interested parties on equal footing. Consider the messages from states supporting the negotiation                                                         213 United Kingdom, ibid. para. 52. 214 United States of America, ibid. para. 70.  92  of a treaty, the common thread being that they seek their opportunity to be part of negotiations and want rules to be based on a conference with full participation of states:  Dominican Republic on behalf of the 33 CELAC stated:  Despite persisting differences of opinion, CELAC was convinced that a consensus agreement could be reached at a diplomatic conference and that the interests of the international community would prevail over the interests of individual states.215  South Africa on behalf of the 54 African Group stated:  A diplomatic conference to negotiate a treaty would allow for the participation of all states, further enhancing the political acceptance of the rules reflected in the articles, and provide a forum for reaching a consensus.216   Cuba was forthright in its criticism of states not wanting to proceed to a convention: The reports of the Secretary General (A/71/79 and A/71/80) and information and observations received from Member states showed that a number of states were reluctant to move ahead with codification of those norms, arguing that opening up the text to negotiation might jeopardize the current consensus on the binding nature and acceptance of the articles, and upset the delicate balance in the text. There was also a risk that some states would not ratify or see any benefit in adopting such a convention. However, certain states were delaying the adoption of a convention simply as a way of continuing to evade their responsibility and to act with impunity, owing to the absence of clear international obligations on the topic. Court rulings in those same states were often ambiguous and contradictory, because decisions on such a crucial issue were left in the hands of judges who were free to interpret the articles as they chose.217  In addition to hidden biases, TWAIL focuses attention on how powerful states consolidate the advantages afforded to them under international law. While the quotes above show that most states seek dialogue on state responsibility, the priority of a smaller number is to crystalize the restrictive                                                         215 Dominican Republic on behalf of CELAC, ibid. para. 29. 216 South Africa on behalf of the African Group, ibid. para. 31. 217 Cuba, ibid. para. 40.  93  application encapsulated in the ASR. This approach is described by Timothy Meyer, who notes that countries advocating centralization and clarification of customary law through codification may intend to capture its development at an opportune moment.218 As chapter four demonstrated, the ASR significantly limit the application of attribution, protecting Global North countries (home of the largest and most powerful MNCs)219 from responsibility for the actions of their corporate citizens. The high level of control required under interpretations of the draft articles for a state to be held responsible for the acts of their MNCs do nothing to encourage home states to legislate in favour of due diligence or transparency. In fact, it was shown that this high threshold allows powerful states to benefit from MNCs incorporated on their territory while these same companies can operate with impunity to lower standards in fragile states. Yet the paragraphs above show that not all countries are comfortable with this approach, recognizing that the draft articles permit certain states to evade responsibility. Considering the advantages afforded to powerful states and the suspicion voiced by certain cohorts, it is indeed an opportune moment, as Meyer states, for certain states to capture the development of state responsibility.  In conclusion to the subsection, the snapshot of a Western-influenced and aging view of CIL created by the ASR is not supported by a majority of states. Current views express disagreement between states over the progress of state responsibility and demonstrate a desire to capture the rules in the ASR versus one to renegotiate them. The following section will show the role the draft                                                         218 Timothy Meyer, “Codifying Custom”, supra at note 138 at 995. 219 The 71 largest corporations from a list of the 100 largest are based in 5 countries: France, Germany, Japan, the UK, and the US. UNCTAD, World Investment Report 2005: Transnational Corporations and the Internationalization of R&D, (New York and Geneva: United Nations, 2006) at xix and 15 – 18 online: http://unctad.org/en/Docs/wir2005_en.pdf [Accessed 23 November 2017].   94  articles play in inhibiting state responsibility from evolving to consider changes in components of international law. The subsequent section demonstrates how the overreliance on the draft codification by courts and scholars compounds this. All this leads to the understanding that emerging views are now pitted against increasingly indiscriminate mention of the ASR as representing customary law by tribunals. The UNGA advocated for the ASR to be considered a comprehensive representation of customary law by referring to them as part of the “codification and progressive development of international law.”220 Given the dissatisfaction of many states with the draft codification, and given the wide acceptance of the ASR by deciding bodies in spite of this, it is difficult to argue that the UNGA’s vision of a comprehensive, definitive representation of CIL has been achieved.   3.2 Inhibiting the development of customary law The second reason codification is detrimental to weaker states evolves from the first. A common practice of commentators, and indeed judges, with respect to draft codifications of international law is to refer to both the codification and the customary law it is meant to reflect. An example of this is the Vienna Convention on the Law of Treaties (1969) (VCLT), an instrument that was the result of another ILC project.  Entered into force in 1980 with 108 state parties, the convention is referred to as a codification of the customary law of treaty interpretation despite not being a pure replication of such.221 Nevertheless, the similarities between customary law and the VCLT are                                                         220 To mention only two instances, the introduction of the ASR by the GA in 2001 Responsibility of States for internationally wrongful acts, GA Res. 83, UN GAOR, 56th Sess., UN Doc. A/RES/56/83 (2002) [UNGA Res. 56/83] and its latest resolution on the topic of state responsibility from December 13, 2016 Responsibility of states for internationally wrongful acts, GA Res. 133, UN GAOR, 71st Sess., UN Doc. A/RES/71/133 (2016) [UNGA Res.71/133] at para 8. 221 As per Malcolm Shaw, only certain provisions of the convention may be truly regarded as reflective of customary international law (the rules on interpretation, material breaches, and fundamental changes of  95  assumed by the ICJ to be close enough to refer to the convention without even determining whether litigants were in fact parties to it.222  The Max Planck Encyclopedia of Public International Law states the following with respect to the issue: When questions of treaty law arise during negotiations or litigation, whether concerning a new treaty or one concluded before the entry into force of the VCLT, the rules set forth in the VCLT are invariably relied upon by the states concerned, or the international or national court or tribunal, even when the states concerned are not parties to the VCLT. In treaty negotiations non-parties will refer to specific articles of the VCLT. The justification for invoking the VCLT is rarely made clear, though the unspoken assumption is that the VCLT represents customary international law. Whether a particular convention rule represents customary international law is likely to be an issue only if the matter is litigated, and even then the court or tribunal will take the VCLT as its starting—and probable finishing—point.223   A similar practice has developed for the ASR even though, unlike the VCLT, the draft codification has not reached treaty status. By inferring authority from a draft codification, courts place the opinions of the 34 members of the ILC above CIL. While it is true that the UN GA recommended the use of the ASR in 2001, its statement does not give courts leave to place the value of the ASR above a fundamental source of international law. Keeping TWAIL related concerns in mind, courts’ assumptions of validity of the draft articles result in less investigation into current CIL and tilt their reasoning to favour powerful states. Moreover, excessive dependence and trust in the ASR by courts risks prematurely entrenching the draft articles along with an interpretation of state responsibility that best serves Global North states. Alain Pellet expresses concern with respect to                                                         circumstances), Malcolm N. Shaw, International Law: Sixth Edition, (Cambridge: Cambridge University Press, 2008) at 903. 222 Karl Zemanek, “Vienna Convention on the Law of Treaties”, Audiovisual Library of International Law (United Nations, 2017) online http://legal.un.org/avl/ha/vclt/vclt.html [Accessed 23 November 2017]. 223 Aust,“Vienna Convention on the Law of Treaties”, supra at note 138 at para 14.  96  an absence of thorough investigation into the components of attribution and reveals the following as a result of his review of investment tribunal decisions:  Still in the field of state responsibility, one would expect frequent references to the Court’s case law with regard to attribution issues, for which, as some tribunals noted, neither the Washington Convention nor generally BITs are of any help. This is only partially—or indirectly—true: on these particular issues, ICSID tribunals use much more readily and systematically the 2001 ILC Articles than the jurisprudence of the Court. The 2001 ILC Articles, together with their commentaries, often constitute sufficient evidence of the applicable law on that matter, the case law (including but not exclusively) of the ICJ appearing only as a secondary argument to support the reasoning. Here, it is not polite indifference but rather ‘eclipsed jurisprudence’—eclipsed by a soft law instrument considered to be law.224   An example of Pellet’s point is Conoco Phillips Petrozuata B.V. and others v. Bolivarian Republic of Venezuela where the International Centre for Settlement of Investment Disputes (ICSID) stated that the ASR “have been regularly referred to […] as codifying or declaring customary international law.”225  Reference to the ASR in this manner is not reserved to the ICSID. In Samsonov v. Russia, the ECtHR noted simply that the ASR “codified the principles provided by modern international law regarding state responsibility.”226 In another recent ECtHR case, Liseytseva and Maslov v. Russia, the court supports its reasoning by casually noting that the draft articles and Commentaries are recognized as “codified principles developed in modern international law in respect of the                                                         224 Alain Pellet, “The Case Law of the ICJ in Investment Arbitration”, (2013) 28:2 ICSID Review 223 at page 234. (footnotes omitted and emphasis added) 225 ConocoPhillips Petrozuata B.V., and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/30 (Decision on Jurisdiction and Merits) 3 September 2013, para. 339; Electrabel S.A. v. Republic of Hungary, ICSID Case No. ARB/07/19, Award, 25 November 2015, para. 7.60.  226 Samsonov v. Russia, No. 2880, [2014] First Section, 10, Decision, para 45. Author’s translation. Original French text reads: “ont codifié les principes dégagés par le droit international modern concernant la responsabilité de l’État…”.   97  state’s responsibility for internationally wrongful acts.”227 Yet another tribunal, the Permanent Court of Arbitration under the United Nations Commission on International Trade Law (UNCITRAL), stated in Hulley Enterprises Limited (Cyprus) v. The Russian Federation that the substantive rules applied by the tribunal include those “authoritatively set out in the Articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission.”228 Sweeping comments that the articles have codified state responsibility are not accurate. Indeed, they squarely contradict the views of the states quoted above. Perhaps the most striking example, though, is found in the ICJ’s Genocide Convention case.229 In this case, the Court uses its previous reasoning in Nicaragua to affirm that it is “settled jurisprudence” that Article 8 reflects customary law:   398. On this subject the applicable rule, which is one of customary law of international responsibility, is laid down in Article 8 of the ILC.  […]  399. This provision must be understood in the light of the Court’s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United states of America) referred to above (paragraph 391). In that Judgment the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United states because they were “completely dependent” on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself “directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant state” (I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion: “For this conduct to give rise to legal responsibility of the United states, it would in principle have to be proved that that state had effective control of the military or                                                         227 Liseytseva and Maslov v. Russia, Nos. 39483/05 and 40527/10, [2014] First Section, Judgment, para 128. 228 Hulley Enterprises Limited (Cyprus) v. The Russian Federation, UNCITRAL, PCA Case No. AA 226, Final Award 18 July 2014, para. 113. 229 Genocide Convention case, supra at note 169.  98  paramilitary operations in the course of which the alleged violations were committed.” (Ibid., p. 65.)  […]  406. It must next be noted that the “overall control” test has the major drawback of broadening the scope of state responsibility well beyond the fundamental principle governing the law of international responsibility: a state is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with state organs because they are in a relationship of complete dependence on the state. Apart from these cases, a state’s responsibility can be incurred for acts committed by persons or groups of persons — neither state organs nor to be equated with such organs — only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above (paragraph 398). This is so where an organ of the state gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the “overall control” test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a state’s organs and its international responsibility.  407. Thus it is on the basis of its settled jurisprudence that the Court will determine whether the Respondent has incurred responsibility under the rule of customary international law set out in Article 8 of the ILC Articles on state Responsibility.230  The court makes no mention of state practice or opinio juris, the two traditional components of customary law. Instead, to confirm that Article 8 represents customary law, it refers to a previous decision from more than 20 years prior. Even if the court felt that the Nicaragua decision laid out customary law at the time, a complete decision would include a discussion of whether customary law had evolved since Nicaragua. The decision lacks any indication that such a scenario was considered. In responding to the court’s reasoning in his writings about revisiting the Nicaragua and Tadić decisions, Antonio Cassese states:  The Court’s basic assumption, that Article 8 of the ILC Articles reflects customary law, is undemonstrated, being simply predicated on the authority of the Court itself (the Nicaragua precedent), as well as the authority of the ILC. The logical sequences of propositions in                                                         230 Ibid.  99  which the Court’s holding is grounded could perhaps be set out as follows: (1) The Court in Nicaragua enunciated the test [as an apodictic truth in the Kantian sense, namely as enouncing an absolute and necessary truth] (2) the ILC upheld the same test (based only on Nicaragua); (3) hence the test is valid and reflects customary international law.  […]  Thus, the Court’s assertion that the ‘overall control’ test has ‘the major drawback’ of excessively broadening state responsibility by going beyond the three ILC standards, simply begs the question: as I have just pointed out, the Court should have proved that, if applied to state responsibility, ‘overall control’ was unsupported by state practice and opinio juris.  It follows that the reader expecting a closely-argued decision will be left instead with the impression that the Court’s holdings have a tinge of oracularity (oracles indeed are not required to give reasons).231  Failing to refer to customary law contributes to its disappearance. It is true that court decisions do not officially form customary law. Nevertheless, their contribution to its evolution should not be underestimated. Decisions solve contentious matters between states in the manner in which they interpret the law and contribute to states’ understanding of and belief in CIL. This, in turn, influences state practice and opinio juris. States that benefit from the ASR will naturally disseminate the views of courts that repeatedly refer to the ASR as representative of customary law. In this respect, rather than improving the application of international law as codifications are meant to do, the ASR risk enforcing disparities between states – effectively confirming and entrenching the biases of international law in favour of powerful states.   3.3 How courts interpret draft codifications The third issue with respect to the draft codification is again related to how courts use the document. However, the concern in this case extends beyond over-referencing the ASR and focuses on how                                                         231 Cassese, “The Nicaragua and Tadić Tests Revisited”, supra at note 162 at 651.  100  the articles are referred to. It has been established above that the draft codification does not equate to a treaty, but by setting aside discussions of customary law in their decisions, deciding bodies effectively refer to the draft as if it were a treaty text. In doing so, courts are not applying treaty interpretation techniques. Instead, interpretations of the ASR are being made mainly through “ordinary meaning” readings of the codification and the accompanying ILC Commentaries. An example of recourse to the ILC Commentaries as an authority on state responsibility is found in a recent decision of the ECtHR. In assessing whether the conduct of a company could be attributed to a state in Samsonov v. Russia in 2014, the court addressed the effective control test and stated “this approach is consistent with previous cases […] as well as the ILC’s interpretation of article 8 of the articles of state responsibility.”232 Thus, the court looked no further than its previous non-binding cases and the Commentaries as authorities to apply the effective control test. In other examples, the Commentaries are the only other source of law referred to. Consider Giorgio Gaja’s conclusion after reviewing ICJ cases to determine how various instances dealt with the ASR: […] no methodology has yet been developed with regard to the interpretation of the ILC articles. In most cases, the ILC texts have been viewed as self-explanatory. The Court has not addressed questions of interpretation of ILC articles. In particular, the Court has not dwelt on the question of the respective weight of the articles and their commentaries. While the reference to the commentaries has been significant in certain cases, the Court has not hinted at the possible discrepancy between an article and its commentary and at the resulting problem of interpretation.233  Of course, it is understandable that courts shy away from traditional interpretation techniques as, once again, the draft codification is not a convention. However, it leaves courts in a peculiar                                                         232 Supra at note 226 at para. 73. Author’s translation. Original French text reads: “cette approche est conforme tant à sa jurisprudence antérieur […] qu’à l’interprétation donnée par la CDI à l’article 8 des articles sur la responsabilité de l’État”. 233 Giorgio Gaja, “Interpreting Articles Adopted by the International Law Commission” (2015) 85:1 The British Yearbook of International Law, Oxford University Press 10 at 15.  101  position with respect to the legal weight of the instrument, to judicial reasoning, and to the consideration of customary norms. Indeed, their preoccupation with the text of the ASR could have the odd outcome of stifling the evolution of customary law more than if the rules were based in a treaty. Upon interpretation of an actual treaty, courts are guided by the interpretation articles of the VCLT (Articles 31 to 33). This permits judges to take into account such aspects as the context, object and purpose of the convention. Articles are often interpreted in a broader manner than originally deliberated at the birth of the respective treaties (as discussed below, this has been the trend with human rights treaties). Yet given that the ASR do not benefit from the interpretation rules of the VCLT, courts have limited their interpretations to strict readings and textual arguments. To be clear, this dissertation does not argue that the draft codification should be considered a treaty and treated as such. As discussed above, the proper solution would be for courts to delve deeper into whether the codified articles accurately reflect customary law. However, if deciding bodies choose to continue to only turn to the ASR and accompanying Commentaries to understand state responsibility, consistency suggests that they should consider interpretation tools being used in international law. This section therefore builds upon the TWAIL based reasoning from the previous two sections to demonstrate how misguided legislative interpretation can further entrench a bias in favour of Global North states within the draft articles. Specifically, restrictive readings of the text of the draft articles by courts ensure that the high threshold for attribution of acts of MNCs to home states outlined above is maintained at its most limiting level. This means that restrictive readings are not only unfavourable to weaker states in individual court decisions, but that they also risk contributing to the crystallization of rules of state responsibility that are unrepresentative of actual CIL. It is important to note that the decisions of international deciding bodies, be they from the ICJ, the ECtHR, or the various tribunals, are not bound by stare decisis. Yet while they do not  102  create law directly, their decisions influence the formation of customary law and are used to inform further decisions.  Inspired by TWAIL, I argue that judges ought to, at a minimum, apply interpretation techniques that avoid restrictive readings, take present day conditions into account, and provide an effective application of state responsibility. Moreover, progressive interpretations should consider the issue of fragile states and increasingly universal aspects of international law. The first point is simple: International law does not foresee restrictive interpretations of treaties.234 A passage from the ECtHR in Wemhoff explains that judges must “seek the interpretation that is most appropriate in order to realize the aim and achieve the object of the treaty, not that which would restrict to the greatest possible degree the obligations undertaken by the Parties.”235 With this in mind, recourse to the Commentaries by deciding bodies is consistent with an ordinary (or textual) reading of a treaty and an overreliance on the treaty text. The Commentaries may give the impression of informing a court of the aim of the ASR, but the reality is that in consulting the Commentaries, the court never ventures outside the ILC’s writings. Once again, the Commentaries do not represent the will of states and their purpose is to reinforce or justify the ASR rather than provide an interpretation tool. As such, they are better understood as an extension of the draft articles rather than an annotation or commentary by jurists. Even reference to scholarly writings could at least be considered independent from the draft articles. In other words, it seems inappropriate to use the Commentaries as the only interpretation tool when they were created to support the ASR.                                                         234 Rudolf Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention of Human Rights” (1999) 42 German Y.B. Int'l L. at 14. 235 Wemhoff v. Federal Republic of Germany (1968) 7 E.C.H.R. (Ser. A), at 23, para. 8, 1 EHRR 55, 75.  103  The second point addresses interpretations that consider present day conditions and an effective interpretation of state responsibility. The evolutive principle of interpretation has been applied to readings of human rights treaties in international law. In Loizidou v. Turkey, for example, the ECtHR describes the ECHR as “a living instrument which must be interpreted in the light of present day conditions is firmly rooted in the Court’s case-law” and that “[i]t follows that these provisions cannot be interpreted solely in accordance with the intentions of their authors as expressed more than forty years ago.”236 The Inter-American Court considered the same principle in an advisory opinion on the interpretation of the American Declaration of the Rights and Duties of Man:237  It is appropriate to look to the Inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948.238   Finally, the same court referred to the ECtHR’s evolutive approach while indicating that “human rights treaties are living instruments, the interpretation of which must evolve over time in view of existing circumstances.”239 Of course, the sources of obligations under human rights treaties differ from those under state responsibility: as discussed above, human rights treaties protect individuals from state power whereas state responsibility evolved to manage matters between states. It is understandable that wider treaty interpretations are easier to accept when considering the disparity of power between an individual and a state. Nevertheless, in cases where courts have chosen to                                                         236 Case of Loizidou v. Turkey (Preliminary Objections) (ECtHR) Series A No 310 at para. 71. 237 Interpretation of the American Declaration of the Rights and Duties of Man within the framework of article 64 of the American Convention on Human Rights, (1989) Advisory Opinion OC-10/90, July 14, 1989. 238 Ibid., para. 37. 239 The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, (1999) Advisory Opinion OC-16/99, Inter-Am. Ct. H.R. (Ser. A) No.16, at para. 113.  104  analyze the ASR as they would a treaty text, inequalities between states should be considered and interpretations adjusted in a similar manner as the examples above. The underlying justification for this is the declining concept of strict sovereign equality and increasing universality of international law discussed in chapter six. This is the evolutive aspect that courts can consider upon interpretation. This would, for example, permit a more flexible interpretation of the definition of “control” in attribution, that is, one that sets the bar lower for linking acts of MNCs to home states. Finally, the effectiveness rule overlaps with the argument above and encourages the deciding body to interpret provisions using a method that gives full meaning to a convention. The introduction to this dissertation highlighted the strength of MNCs, their predominant establishment in powerful states, and the fact that they often have subsidiaries operating in fragile states. Excluding any possibility of linking acts of MNCs to home states (under strict readings of attribution), even in cases of significant state involvement, creates a blind spot in the law of state responsibility and renders parts of it ineffective. Once again, a broader interpretation of attribution could solve this problem. In conclusion to this subsection, it is important to again stress that the preferred solution is for deciding bodies to refrain from treating the ASR as a treaty text. Rather, courts should be using the draft codification merely to guide their inquiries of the current state of customary law. However, when courts wrongly apply the ASR as a treaty, they should at the very least consider a wider interpretation than that offered by the treaty text and the accompanying Commentaries.   4. Conclusion  The goal of the chapter was to demonstrate the high threshold set by the ASR to attribute conduct of a MNC to its home state and to show, through TWAIL, how Global North states benefit from the high threshold and how international law protects these benefits. The different possibilities of attribution under the ASR were examined in turn, from state organs and those empowered to  105  represent the state through domestic legislation to entities under the express direction and control of the state. This part of the chapter was mainly descriptive and focused particular attention on the attribution criteria of article 8 of the ASR. The chapter discussed reasoning for the Nicaragua and Tadić decisions noting the role of Tadić in slightly lowering the threshold of attribution. Once the chapter identified how the draft articles contribute to the normative gap introduced in chapter one, it addressed how they are systemically applied to the disadvantage of weaker states. The chapter highlighted that, despite being promoted by the UN, the ASR do not adequately represent the views of all states, they inhibit the development of fair customary law, and are being applied by courts through strict readings of the codified text.   The following chapter addresses the manner in which another regime (IHRL) partly makes up for the current shortcomings of state responsibility.      106  CHAPTER 5 – THE LIMITATIONS OF RIGHTS BASED SOLUTIONS 1. Introduction This chapter provides the second part of the descriptive component of the dissertation. In a similar vein to chapter four, the following shows where limits of regulation and protection are drawn in international law and how this contributes to the persistence of a normative gap.   IHRL foresees human rights obligations for home states with respect to its MNCs operating abroad in certain situations. However, territorial limitations on the application of IHRL remain strong and, by definition, IHRL only covers a subset of international obligations. In other words, while IHRL may apply to some cases not covered by attribution under the draft articles (as described in the previous chapter), it does so in few scenarios and only for violations of international obligations related to human rights treaties. Addressing the limits of IHRL within a dissertation primarily concerned with state responsibility may, at first, seem arbitrary. The importance of this short chapter within the greater view of the dissertation is to highlight the difference between actual application of IHRL and its associated rhetoric. Significant attention paid to human rights issues across academic fields, the proliferation of human rights conventions and institutions since 1945, and increasing mention of these instruments by courts contribute to an assumption of universality of human rights for those in the West. One need only consult the introductory chapter of this dissertation, however, to understand that universality of human rights remains a goal rather than a reality. Yet in and of itself the belief of the existence of universal human rights should be understood as a concern. Otherwise stated, blind assumptions, especially by the West, that universal coverage exists perpetuates legal voids such as the one identified in this dissertation.    107  Two characteristics of rights based solutions can be identified as pillars of their application to home states for acts of MNCs. The first is the existence of positive obligations of states under human rights law. This chapter shows that states are responsible under human rights law not only to refrain from violating the rights of individuals, but also to fulfil those rights in a proactive manner by undertaking due diligence to keep private parties from violating rights. The second pillar is the potential, albeit limited, for extraterritorial application of human rights law. While not a frequent occurrence, a state’s jurisdiction can extend beyond its borders when the state has a requisite amount of control over areas or individuals outside of its territory. This means that, when the necessary conditions are met and jurisdiction is extended outside a state’s territory, the violation of human rights by a MNC can amount to a violation of the state’s obligation to protect human rights. For such cases, the nationality of the MNC and its link to the state are of less importance given the state’s general positive obligation to protect flowing from its control of the area. Considering the two driving arguments combined, states have extraterritorial rights obligations, and could be held responsible for rights violations by a MNC outside their territory, if they exercise control over the territory in which an act occurred (or control over the individual harmed) and if they did not take adequate measures to prevent the violation (due diligence).  The chapter first demonstrates the limits of IHRL with respect to the regulation of MNCs operating outside of their home states. It explains the method by which human rights law imposes obligations on states to ensure they undertake the necessary due diligence to keep corporations from violating human rights within their ‘jurisdiction’. The chapter subsequently differentiates a state’s territory from its jurisdiction, outlining cases in which a state can be held responsible for rights abuses that occur outside of its territory, yet within its jurisdiction. The section concludes by reviewing cases from international deciding bodies to demonstrate that extraterritorial jurisdiction can be applied  108  to acts of MNCs and not merely to acts of states. The chapter then addresses whether concepts of extraterritorial application might reach beyond traditional definitions of state jurisdiction under international human rights law. Before beginning the analysis of how human rights law can indirectly bind companies, the chapter briefly addresses the compatibility of human rights law and state responsibility.   2. The compatibility of state responsibility and international human rights law State responsibility and IHRL and are founded in different systems of international obligations: state responsibility focuses on the relationship between states; human rights law is founded in the protection of the individual from the state. For the most part, this chapter looks at human rights separately from state responsibility. This should not suggest, however, that both cannot apply simultaneously and influence the regulation of MNCs in a belt and suspenders fashion. This dissertation submits that this is so despite the ILC’s initial reticence toward examining how human rights law could be incorporated into state responsibility240 and despite certain detractors towards a concurrent application of the regimes.241 From the IHRL point of view, the principles of state                                                         240 McGoldrick explains that while Garcia Amador, Special Rapporteur from 1957 to 1961, presented six reports on state responsibility for injuries to aliens, subsequent Rapporteurs shied away from examining the issue: Dominic McGoldrick, “State Responsibility and the International Covenant on Civil and Political Rights” in Malgosia Fitzmaurice & Dan Sarooshi eds., Issues of State Responsibility before International Judicial Institutions; The Clifford Chance Lectures, Volume 7 (Oxford: Hart Publishing, 2004) 162.   241 Andrew Clapham, a supporter of direct application of human rights to third parties, claims that the rules of state responsibility are not appropriate for human rights violations under the ECHR as the convention “…does  not  primarily operate at the inter-State level, as it grants remedies to individuals; effective protection demands that the  Convention  control  private  actors;  the  Convention  takes  effect  in  the  national  order  of  the Contracting  Parties…”: Andrew Clapham, “The ‘Drittwirkung’ of the Convention”, in Franz Matscher, R St John Macdonald & Herbert Petzold eds., The European System for the Protection of Human Rights (Boston: Nijhoff, 1993) 170; Malcolm Evans, for his part, states that the European Convention’s “character as a human rights treaty […] makes the international principles of state  109  responsibility have been overlooked by human rights actors to the extent of Theodor Meron declaring state responsibility a terra incognita for human rights lawyers.242 Nevertheless, in my view, as well as that of recent commentators,243 compatibility clearly flows from the manner in which state responsibility takes into account all international obligations of states. Human rights law forms part of the corpus of international obligations identified as primary rules; these rules are established separately from state responsibility, are applied to the doctrine without discrimination, and include obligations owed to states, individuals, or the international community as a whole.244 The ILC itself confirmed this in remarks concerning the structure of the proposed ASR in its Yearbook of the International Law Commission in 1973. The organization declared that the articles covered the responsibility of states “not only in regard to certain particular sectors” and that “the responsibility of the state is a situation which results not just from the breach of certain specific                                                         responsibility irrelevant to its operation, so it is not clear why they should be referred to at all.” Evans, supra at note 133 at 159. 242 Theodor Meron, “State Responsibility for Violations of Human Rights”, (1989) Proceedings of the American Society of International Law, (1989) 83(Proceedings of the Annual Meeting (American Society of International Law) 372 at 373. 243 Each discussing compatibility to varying extents, see Nicola Jägers, “Corporate Human Rights Obligations: In Search of Accountability” (2002) 17 School of Human Rights Research Series at 166; Viljam Engström, “Who is Responsible for Corporate Human Rights Violations?” (2002) Institute for Human Rights, Åbo Akademi University, Finland, 13, online http://www.abo.fi/media/24259/report2.pdf [Accessed 18 November 2017]; Celina Romany, “State Responsibility Goes Private: A Feminist Critique of the Public/Private Distinction in Human Rights Law” in Rebecca Cook ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994) 85, 95.    244 See Rainbow Warrior (New Zealand v France), France-New Zealand Arbitration Tribunal (1990) 20 RIAA 217 at 251 where the Court held that “any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation”; Also see Case concerning the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, 39 at para. 38 where the ICJ held that when a state commits an IWA, “its international responsibility is likely to be involved whatever the nature of the obligation it has failed to respect’ at 38.  110  international obligations, but from the breach of any international obligation.”245 Although confusion may stem from state obligations towards protection of individuals under human rights law, breaches of these obligations are indeed violations of international treaties and, consequently, also violations of international obligations. Finally, if doubt persists concerning their compatibility, one may consider that the ILC refers to human rights conventions as examples for the application of the draft ASR in their publications246 with the Commentaries to the ASR containing references to human rights law and to the ICCPR specifically.247    3. Direct and indirect horizontal human rights obligations To better understand the reasoning of the rights based approach, it is important to appreciate the relationship of rights and obligations between states, individuals, and corporations. Initially, human rights law, as represented by the French Declaration of the Rights of Man and of the Citizen and the American Bill of Rights, introduced vertical rights protection; human rights norms existed to defend individuals from repressive or irresponsible actions of the state.248  Under vertical rights, individuals suffering harm from a state would be victims of a rights violation, while equivalent                                                         245 ILC, “Report of the International Law Commission on the work of its twenty-sixth session”, Yearbook of the International Law Commission, 1974, vol. II, Part One, at 274, para 113. 246 Rick Lawson, “Out of Control. State Responsibility and Human Rights: Will the ILC’s Definition of ‘Act of State’ Meet the Challenges of the 21st Century?” in Monique Castermans-Holleman, Fried van Hoof, & Jacqueline Smith eds., The Role of the Nation-State in the 21st Century: Human Rights, International Organisations and Foreign Policy; Essays in Honour of Peter Baehr, (The Hague: Kluwer Law International, 1998) at 99. Two examples given by Lawson are YBILC, Vol. II, 1973, at 183, para, 12 and YBILC, Vol. II (part 2), 1977, at 20, para. 7. 247 McGoldrick, supra at note 240 at 162.  248 Francesca Klug, “Human Rights and Victims” (2003) Centre for the Study of Human Rights, LSE, June 2003, at 6, online http://www.lse.ac.uk/humanRights/aboutUs/articlesAndTranscripts/Human_rights_victims.pdf [Accessed 18 November 2017].  111  harm caused by NSAs would fall outside of rights protection.249 More recent accounts of human rights acknowledge a horizontal application of the rules. In such cases, rights and obligations between persons (legal or natural) exist in addition to those apropos the state. While the identification of the rights at play remain the purview of the state, the procedure of enforcement depends on whether there exists direct rights protection between individuals or whether the rights are defended in an indirect manner (through the state).250 For example, the Bill of Rights incorporated into the South African Constitution enables provisions to be applied in both vertical and horizontal manners to the extent that the rights and associated obligations can affect natural and/or legal persons.251 The Constitution lays out the rights to be protected and courts decide whether they are applicable to given situations between citizens. If the right is applicable, the link between the right holder and the obligation holder, both NSAs, is direct. Constitutional jurisprudence from Germany and Ireland confirm this type of application of rights in their respective countries.252   While I acknowledge the argument that human rights law may apply directly between private actors in some situations, exploring the mechanisms of direct application between private parties is                                                         249 The latter may nevertheless be a crime in of itself, depending on domestic law. 250 Černič, supra at note 17 at 49. 251 Ibid. at 51. 252 Ibid.; David Jason Karp, Responsibility for Human Rights: Transnational Corporations in Imperfect States (Cambridge: Cambridge University Press, 2014) at 27. Karp explains that in Ireland, the direct horizontal effect means that rights means that “if it can be established that freedom from discrimination on the basis of religion or sexual orientation is a human right, then any State or non-State actor can be taken to an Irish court for this kind of discrimination.” By comparison, in Germany human rights principles can be used by judges when deciding cases other than specific human rights law cases (ex contract law or criminal law), thus directly horizontal, but remains indirectly horizontal for human rights cases.  112  outside of its scope. Rather, the work focuses on indirect, yet still horizontal, applications of international human rights law. Under this approach, private parties (including corporations) have human rights obligations towards one another, however these obligations exist through the responsibility of the state within its jurisdiction. Specifically, the positive obligations of states ‘to protect’ individuals and to allow them to fully actualize their rights provides the source of the obligation.253 State obligations to respect human rights, to take action to prevent their violation, to fulfil rights, and to punish rights violations on their territory are found in numerous conventions, from fundamental documents of human rights law254 to labour law.255 This method of actualizing rights has been confirmed in prominent cases across treaty bodies. In A. v. United Kingdom1999, a case where the applicant (a young boy) was abused by his stepfather, the ECtHR ruled that the failure of UK domestic law to provide adequate protection for the applicant constituted a breach of Article 3 (inhuman or degrading punishment) of the European Convention on Human Rights.256  In the Velasquez Rodriguez Case, the Inter-American Court considered that, although the rights of                                                         253 Typically, a state’s obligations related to a right include respecting the right (not violating the right), protecting the right (taking positive measures to ensure the existence of the right), and fulfilling the right (providing recourse in cases of violation of the right). See Benedetto Conforti, “Exploring the Strasbourg Case-Law: Reflections on State Responsibility for Breach of Positive Obligations” in Malgosia Fitzmaurice & Dan Sarooshi eds., Issues of State Responsibility before International Judicial Institutions; The Clifford Chance Lectures, Volume 7 (Oxford: Hart Publishing, 2004) 129, while the ECtHR uses the term obligation to protect, the ILC prefers obligation to prevent; both conveying a need for action from the State. 254 Ibid. 255 Conventions identified as “fundamental” by the International Labour Organization (ILO) identify the obligations of member states to take measures on their own territories to promote various labour associated rights. For example, “to pursue a national policy designed to ensure the effective abolition of child labour” (art. 1 Convention concerning Minimum Age for Admission to Employment Minimum Age, 1973 (No. 138) (Entry into force: 19 Jun 1976) and that “Each Member shall […] ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value […] by means of - a) national laws or regulations” (arts.1, 2 Equal Remuneration Convention, 1951 (No. 100) (Entry into force: 23 May 1953).  256 A. v. United Kingdom, no. 25599/94 , [1998] E.C.H.R. 85, 27 EHRR 611.  113  Rodriguez (a victim of forced disappearance) had been violated by private actors, the state was responsible for failing to take steps to prevent, investigate, and punish the violation.257 The HRC highlights the importance of positive obligations under the ICCPR in its General Comment Number 6 in 1982. With respect to the right to life, the committee states that:   “…the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures.258  As shown in A. v. United Kingdom, a state’s obligation to protect extends to more than the right to life. It also applies to all private actors, including corporations. According to the HRC, states must provide a legislative framework prohibiting acts amounting to unlawful interference with “privacy, family, home or correspondence” by both “natural and legal persons”.259 In Franz Nahlik v. Austria260 the HRC confirmed that state parties are under an obligation to ensure that individuals within their territory or jurisdiction are free from discrimination whether it occurs “within the public sphere or among private parties in the quasi-public sector of, for example, employment.”261 Thus, the burden on states to establish effective restraints on activities of corporations to protect                                                         257 Velásquez Rodríguez v. Honduras, [1988] Inter-Am.Ct.H.R., (Ser. C) No. 4 (1988) 9 HRLJ 212.. 258 Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982), U.N. Doc. HRI\GEN\1\Rev.1 at 6 (1994) para 5. 259 UN Human Rights Committee, General Comment No. 16, Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, (8 April 1988), HRI/GEN/1/Rev.9 (Vol. I).) para 9.  260 Franz Nahlik v. Austria, Communication No. 608/1995, U.N. Doc. CCPR/C/57/D/608/1995 (1996). 261 Ibid. at 8.2.  114  human rights on their territories has become clear.262 In 2009, the UN Secretary General’s Special Representative for Business and Human Rights highlighted the state duty to protect as a fundamental principle in the framework for addressing MNC regulation. Indeed, the UNGP place the obligation of states to protect against human rights abuses within their own jurisdiction as the first “foundational principle” of the document:  A) 1. States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.263    The phrase “appropriate steps to prevent” is an indicator of the presence of due diligence and applies in a similar manner in the human rights cases above. Positive human rights obligations are generally not obligations of result. This means that states must take reasonable measures to ensure the fulfilment of rights (not just their respect or protection) but are not bound to ensure their existence under every possible scenario. Under IHRL, states are given a large margin of appreciation as to how they will satisfy their positive obligations and, should their efforts be considered sufficient by a deciding body, they will have fulfilled their due diligence. As a preliminary conclusion, the existence of positive obligations appears undisputed under human rights law. Their applicability to the acts of corporations, not just individuals, has also been demonstrated. The next step is therefore to discuss the possibility of extraterritorial jurisdiction of                                                         262 See the wording of Article 2, International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171 [ICCPR], (“ensure”) and Article 2, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, U.N.T.S. 993 [ICESCR]. 263 Guiding Principles on Business and Human Rights, Office of the High Commissioner, UN, (2011), art. I A) 1, online http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf  [UNGP][Accessed 18 November 2017].   115  human rights law and whether states have the same positive obligation to protect against actions of a company beyond its borders.  4. Extraterritorial jurisdiction in international human rights law  Although the wording of certain international treaties suggests an existence of globally accepted human rights, human rights obligations of states are often considered delimited by national borders.264 Commentators and both regional and international treaty bodies have hinted at a more expansive vision.265 The conventional interpretation of international human rights jurisdiction limits state obligations to respecting, protecting, and fulfilling rights within their respective territories, only stretching beyond borders in exceptional circumstances and when the state exercises the requisite control over territory or over an individual This view continues to be promulgated by certain states even though the jurisdictional clauses of contemporary international human rights instruments clearly indicate that state obligations are not exclusively defined by                                                         264 Malcom Langford, Wouter Vandenhole, Martin Scheinin, and Willem van Genugten eds., Global Justice, State Duties, The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (Cambridge: Cambridge University Press, 2013) 3. 265 Supporters of the expansive view include Robert McCorquodale and Penelope Simons (see McCorquodale & Simons, “Responsibility Beyond Borders”, supra note 197) and Muthucumaraswamy Sornarajah, “Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States” in Scott & Craig, Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford: Hart Publishing, 2001). Of all the works read, Olivier De Schutter’s is the most extensive, arguing for an application of human rights law beyond the classic application of extraterritorial jurisdiction. Olivier De Schutter, “Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations”, background paper to the seminar organized in collaboration with the Office of the UN High Commissioner for Human Rights (Brussels, 3-4 November 2006) online https://business-humanrights.org/sites/default/files/reports-and-materials/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf [Accessed 15 February 2017]; CF See Tonkin, supra at note 141 at 256 who states “Whatever the merits of these arguments, they do not represent the current State of the law.”  116  territory. Article 1 of both the European Convention on Human Rights (ECHR)266 and the American Convention on Human Rights (ACHR)267 refer to jurisdiction rather than territory whereas the ICCPR at Article 2 refers to both territory and jurisdiction.268   While narrow readings of the articles suggest that conventions are not constrained by territory, opinions from the ECtHR and communications from the Human Rights Committee (HRC) have limited the breadth of the term jurisdiction, rendering its definition unpredictable.269 Accordingly, Malcolm Langford et al. explain that “obligations that extend beyond [the] domestic sphere have been largely understood or interpreted in residual, minimalistic or moral terms, if at all.”270 Nevertheless, the authors also state that the territorial framing of rights is a model “under strain”.271 Both Nicola Jägers and Viljam Engström claim that there is a movement away from the presumption that a state’s obligations are limited to its territory.272 Jägers states that “in general a state is not under an obligation to control the activities of private individuals (being its nationals)                                                         266 European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221 at 223 [ECHR], art. 1: “secure to everyone within their Jurisdiction”. 267 Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969) at art. 1: “all persons subject to their jurisdiction”.  268 ICCPR, supra at note 262 at art.2: “ensure to all individuals within its territory and subject to its jurisdiction”. 269 Marko Milanović, “From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties” (2008) 8:3 Human Rights Law Review 411 at 412.   270 Langford et al., supra note 264 at 3. 271 Ibid. 272 Jägers, supra at note 243 at 166-7; Engström, supra at note 243 at 18.   117  beyond the bounds of state territory [h]owever the territorial principle […] has been modified.”273 She adds that while territoriality is currently the rule, there are circumstances in which “the principle should be moderated.”274 Ian Brownlie, for his part, adds that territorial views are “open to serious question and can operate, if at all, only as a weak presumption.”275 Finally Olivier de Shutter notes that in international law “a clear obligation for states to control private actors […] operating outside their national territory, to ensure that these actors will not violate the human rights of others, has not crystallized yet” but adds that the “classical view might be changing.”276 The perspectives noted above combined with the open wording of the conventions suggest that restrictive readings of jurisdiction clauses may not be everlasting and that pressure is mounting for an extended role of international human rights law.  The latter part of this chapter submits that this is especially so for cases involving MNCs.  Although specific criteria can vary per convention, generally, for a state’s human rights obligations to apply outside of its territory, it must either have control over an individual whose rights are violated (e.g., arrest by state agents on another state’s territory) or have effective control over territory (e.g., certain occupation scenarios277). The HRC has confirmed the application of the                                                         273 Jägers, ibid. 274 Ibid. 275 Ian Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford: Oxford University Press, 1983) 165. 276 De Schutter, “Extraterritorial Jurisdiction as a tool”, supra at note 265 at 19. 277 See for example Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136.   118  ICCPR for extraterritorial violations on several occasions. In Lopez Burgos v Uruguay,278 for example, the Committee states that violations perpetrated by a state’s agents outside its territory (in this case the arrest, detention, and mistreatment of Lopez Burgos in Argentina) does not bar the Committee from hearing the case brought against Uruguay. The HRC claims that “it would be unconscionable to so interpret the responsibility under Article 2 of the Covenant as to permit a state party to perpetrate violations of the Covenant on the territory of another state, which violations it could not perpetrate on its own territory.”279 Jurisdiction was confirmed in this case as state agents had control over the individual whose rights were in question. The often-cited example of Loizidou v. Turkey at the ECtHR, a case concerning a Greek Cypriot prevented from returning to her property in Turkish-held northern Cyprus, provides an example of jurisdiction through control of territory. The Court affirmed that “the responsibility of a Contracting Party could also arise when, as a consequence of a military action, it exercises effective control over an area outside of its national territory.”280 The Court further established that control of the area could be deemed to exist simply due to the substantial presence of Turkish troops and that the applicant therefore fell under Turkish ‘jurisdiction’ within the meaning of Article 1 of the Convention.                                                          278 Saldias de Lopez (on behalf of Lopez Burgos) v Uruguay, Merits, Communication No 52/1979, U.N. Doc. CCPR/C/13/D/52/1979, IHRL 2796 (UNHRC 1981). 279 Para 12.3; The HRC repeated this reasoning in Lilian Celiberti de Casariego v Uruguay, Human Rights Committee, Communication No 56/1979, UN Doe CCPRJC/13/D/56/l979. In a case concerning the abduction of the plaintiff from Brazilian territory and held in detention in Uruguay, the HRC rejected the purely territorial reading, stating “Article 2(1) […] does not imply that the State party concerned cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State […] it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.” 280 Case of Loizidou v. Turkey (Preliminary Objections) (ECtHR) Series A No 310, para. 61, confirmed at the merits stage, Case of Loizidou v Turkey (Judgment of 18 December 1996) (Merits) (ECtHR) Reports 1996-VI 2216., para. 52.  119   These cases confirm that jurisdiction extends beyond territory in cases of control over an individual or territory. The question of whether positive rights exist alongside negative rights in such cases is therefore fundamental for the discussion of acts of MNCs abroad. In Cyprus v. Turkey, the ECtHR held that Turkey’s obligations as an occupying power in Cypress extended to acts of private parties violating the rights of both Greek and Turkish Cypriots: […] the acquiescence or connivance of the authorities of a Contracting State in the acts of private individuals which violate the Convention rights of other individuals within its jurisdiction may engage that State’s responsibility under the Convention. Any different conclusion would be at variance with the obligation contained in Article 1 of the Convention.281  While the HRC and ECtHR have confirmed through decisions that this is so, and consequently that acts of MNCs in such cases would bind the state in control of the area, the UN Committee on Economic, Social and Cultural Rights (the CESCR) has gone further by specifically referring to third parties in its General Comments. In General Comment 14 with respect to Art. 12 ICESCR (right to mental and physical health), the Committee declares that states must take steps to ensure ‘third parties’ respect human rights outside of the home state’s territory: To comply with their international obligations in relation to article 12, states parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law.282  The Committee set the same tone in its General Comment 15 with respect to the right to water:                                                          281 Cyprus v Turkey (Merits) ECHR 2001-IV, IHRL 3076 (ECHR 2001) para. 81. 282 Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 85 (2003). para. 29.  120  Steps should be taken by states parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. Where states parties can take steps to influence other third parties to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law.283  Thus, positive rights obligations can, in some cases, extend beyond borders. The extraterritorial aspect of the CESCR comments have added significance in that they do not call for any type of control of foreign territory in order to be enacted. Indeed, the ‘control’ referred to is linked to the ability to perform due diligence with respect to companies (“parties can take steps to influence other third parties”). This reflects a bourgeoning principle in international law that values responsibility based on ability to influence rather than the simple criteria of whether an entity falls within a state’s territorial jurisdiction. This view appears increasingly plausible when combined with recent signs that the requirement of effective control under human rights law is not as prominent as many perceive. In Isaak v. Turkey, the ECtHR held Turkey responsible for rights violations that occurred in a neutral UN buffer zone between Turkish and Greek Cyprus.284 The case involved an individual beaten to death by a Turkish gang, in which Turkey, while occupying the area, was not deemed to have held effective control of the territory. The Court reiterated its reasoning from Cyprus v. Turkey, that the acquiescence of authorities in the acts of private individuals may engage the state’s responsibility. Thus, the possibility exists for a state to violate the European Convention through a failure to act, even in the absence of effective control of an                                                         283 Committee on Economic, Social and Cultural Rights, General Comment 15, The Right to Water (Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2002), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 105 (2003) at para. 33. 284 Isaak and Others v. Turkey case, (Application no. 44587/98), Chamber, (Admissibility Decision) 28 September 2006, ECtHR; confirmed at the merits stage, Isaak v. Turkey case, (Application no. 44587/98), Chamber (Merits and Just Satisfaction), 24 June 2008, ECtHR.  121  area. While the acts in this case were committed by individuals, the reasoning is transferable to acts of corporations. And although the definition of acquiescence arguably includes aspects of approval, the failure to perform positive obligations to protect from violations is not far removed.   Violation of Convention rights within a host state can also be linked to the failure of a home state to control private actors on its territory. In Kovačič and Others v. Slovenia, the ECtHR examined whether domestic legislation regulating a company could ultimately violate rights outside of the country.285 The applicants, of Croatian origin, complained that they had been kept from withdrawing funds from the branch of a Slovenian bank in Croatia due to a Slovenian law, therefore incurring a violation of their property rights. No effective control over the territory by Slovenia existed and, in Slovenia’s view, any obligation to ensure rights under the ECHR was limited to its territory. The ECtHR concluded that the acts of Slovenian authorities had produced effects outside of the country, rendering Slovenia responsible under the convention. Thus, it appears possible that the true test of control is linked to the potential of the home state to have played a role in inhibiting the rights violation from occurring. This view of power over the rights holder is especially relevant for cases of fragile states, a particular interest of this dissertation.     5. Conclusion  The chapter began by setting out the purpose for studying the extraterritorial application of human rights law and by explaining its role under the analogy of belt and suspenders. IHRL partially picks up where restrictive readings of attribution under the draft articles leave off. That is, in cases where                                                         285 Kovačič and Others v. Slovenia, (Application no. 44574/98) Chamber (Admissibility Decision), 1 April 2004, ECtHR.  122  a MNC’s acts abroad are not attributable to its home state under state responsibility, a select number of scenarios could nevertheless trigger the home state’s responsibility under human rights law. Thus, the chapter first sets out to confirm that states indeed have positive obligations to ensure that MNCs refrain from violating human rights within the state’s jurisdiction. Despite the existence of these obligations, the few scenarios in which a state’s jurisdiction is currently considered to extend past its territorial boundaries is noted as limiting the utility of the regime (jurisdiction being linked to control exercised by a state over a foreign area or individual). Thus, IHRL remains an incomplete solution to the issue of MNCs operating in fragile states. This conclusion is all the more valid when the limited breadth of rights is considered as opposed to the system of state responsibility that covers all primary international obligations.   There are, however, indications that the application of IHRL is evolving to incorporate more extraterritorial responsibilities by considering the home state’s ability to control an entity rather than actual control. As a final point, it is worth reiterating that the role of human rights law in the regulation of MNCs has clearly been significant on the territory where the state has the will and the means to enforce human rights. Positive human rights are entrenched in the workings of the system and rights abuses within home states for Global North countries are scarcely tolerated. In situations where human rights appear to be needed the most, however, they remain absent.      123  CHAPTER 6 – EMERGING APPROACHES 1.  Introduction The previous chapter demonstrated how IHRL, under limited circumstances, reduces the legal gap with respect to MNCs maintained by the draft codification. Inspired by TWAIL, this chapter argues that a more effective solution consists in adjusting the way acts of MNCs are considered imputable to their home states. The proposed adjustment targets the so-called secondary rules of international law, specifically, those establishing the criteria of control under attribution within state responsibility. It posits lowering the burden to link home states to corporate citizens violating international law when fragile host states are involved. The argument for more inclusive attribution criteria is based on indications that the customary law of state responsibility has evolved beyond what is reflected in the draft codification. This wider interpretation of attribution also has TWAIL related moral justifications. Recall that much of MNC intellectual and physical capital is often based in Global North states. These home states benefit from MNCs through tax revenue, employment of citizens, and general contribution to the domestic economy, among other advantages. Often, the same MNCs operate abroad to lower standards in areas of weak legal protection.   As impediments to the evolution of CIL were already described in chapter four, section two of this chapter turns to demonstrating how the customary rules of state responsibility have evolved beyond what is currently reflected in the ASR. In support of this argument, the section begins by listing indicators that suggest the draft codification is inconsistent with current customary law related to state responsibility. The section first addresses reasons to dismiss the strict interpretations of the ASR and later describes the direction in which state responsibility may be heading. Recent  124  initiatives at both the international and domestic levels are then discussed to demonstrate a shift in perception about home state obligations towards MNCs. Following this, section three links the concept of attribution under state responsibility to that of sovereignty and argues that as the latter changes, so must the former. Developments in international law are considered and the evolution of the definition of sovereignty is discussed. Within this discussion, it is shown that changes in the balance between international law principles of non-intervention and emerging obligations to protect vulnerable states allow for a corresponding modification of the attribution principle. Finally, section four posits what a reconsideration of attribution might look like. To provide an analogy to fragile states, existing laws that manage ambiguous jurisdictional areas (Law of the Sea and Space Law) are briefly discussed to demonstrate how they hold home states responsible for corporate acts in lawless areas. The points from previous sections are then pulled together to propose original attribution criteria specific to the scenario of MNCs operating in fragile states.  2. Diverging customary law Judicial confidence in the authority of the ASR was discussed in chapter four. However, there are signs that state responsibility, at least as reflected in the ASR, is not as stable as some perceive. The awkward implementation of the ILC’s codification project, informed court decisions, and recent declarations from state representatives suggest that the ASR are outdated and hint toward a lower bar for imputing responsibility of third parties to states.   2.1 Lack of progress towards a convention The inability of the international community to transform the draft articles into a convention manifests doubt as to the extent to which the ASR reflect current customary law. Firstly, it is telling  125  that the ILC chose the path of a GA resolution to promote the draft codification, rather than convening states to work towards a convention. After years of deliberation, it is understandable that the ILC preferred what would likely be the quickest method for the introduction of the draft codification. Indeed, the ILC’s work was already being mentioned by courts, which may have removed pressure to seek a convention at the time. However, it also suggests that the ILC was not confident in the possibility of concluding a convention on the issue.286 Moreover, since 2001, steps towards a convention have not passed beyond the stage of mentions of further investigation by the UNGA. In its original December 12, 2001, resolution encouraging the application of the ASR, the UNGA included a mention in the ILC recommendation that the UNGA “should consider at a later stage, in the light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft articles with a view to concluding a convention on the topic.”287 Seventeen years later, states are no closer to convening an initial conference to discuss the possibility of doing so. In its latest statement on the issue on December 13, 2016, the UNGA noted in a resolution that it would, once again, place the question of a convention on responsibility of states for IWAs on the provisional agenda of its 74th session.288 The process of adjournment of the topic to the next session has become routine over the past decade. While it remains to be seen whether this routine will be broken, a review of recent state opinions suggests such an outcome is unlikely for the time being. A persistent lack of consensus related to the formation and future of the draft codification renders it difficult to argue that the ASR accurately                                                         286 A GA statement promoting the use of the ASR is far from equivalent to concluding a convention on the basis of the codification. Despite possibly contributing to the eventual formation of CIL, GA statements are not considered a source of international law. 287 UNGA Res. 56/83 supra at note 220 at preamble. 288 UNGA Res. 71/133 supra at note 220 at para 8.  126  reflects CIL.  Considering TWAIL and recalling state opinions outlined in section 3.1 of chapter four, the lack of progress towards the negotiation of a treaty is no coincidence. Rather, the active resistance of certain states in the face of calls by developing states to negotiate a representative treaty is an example of how the Global North manipulates the international system. By keeping a convention from being negotiated by all interested states and by promoting the ASR, the Global North essentially benefits from favourable rules with codification-like qualities. As such, not only do they avoid a convention that would be less favourable to them, they contribute to stalling the progressive development of customary law.  2.2 Declarations of states concerning the draft codification Recent declarations from states demonstrate two important aspects with respect to state responsibility and, specifically, the acts of MNCs abroad. The first aspect is that, while not referring to specific articles, many states continue to publicly assert that the ASR do not fully capture the doctrine. The opinions expressed in the Summary record of the ninth meeting of the Sixth Committee of the UNGA held on October 7, 2016 provide an idea of the extent to which states feel bound (or not) by the draft articles. The Dominican Republic, on behalf of CELAC, noted that the articles had been referred to by courts and that “some of the articles had been regarded as reflecting customary international law.”289 Finland, a strong supporter of the ASR, stated on behalf of Denmark, Iceland, Norway and Sweden that the articles reflected a consensus about the international responsibility of states “even though there might be different views on specific details in that regard.”290 New Zealand, Australia, and Canada stated that courts have increasingly used                                                         289 Supra at note 137 at para. 37. 290 Ibid. at para. 34.  127  the ASR as guidelines and that “many of the articles reflected international customary law.”291 El Salvador noted that the ASR reflected the customary nature “of a number of their provisions.”292 Peru, for its part, stated that “it could be said that some of the articles even reflected customary international law.”293 Finally, the statement of the United Kingdom is the most nuanced with respect to the customary character of the ASR:  51. Ms. Sornarajah (United Kingdom) said that the articles on state responsibility covered a range of sensitive and controversial topics and sought to reconcile the differing views of states. While some articles had codified existing customary international law, others represented progressive development. Courts and tribunals had chosen to draw on some of the articles to resolve issues arising in cases before them. It was not possible to identify the consensus view on certain key questions or to draw firm conclusions as to whether some aspects of the articles reflected customary international law — hardly surprising, given the breadth, complexity and controversy of many of the issues covered.  […]  53. The articles could not be said to capture the state of customary international law in its entirety at the current stage.294  Most of the declarations, while partially supportive of the draft articles, do not reinforce their legal heft. That is, statements claiming that “many” or “some” articles reflect customary law do not carry the same weight as court decisions that fully rely on the ASR, such as those mentioned above. Once again, given the importance of opinio juris in the formation of customary law, the above quotes from states are a strong indication that the ASR do not reflect customary law. While the quotes call into question whether the ASR reflect customary law, the discussion below addresses future ways in which the customary law of state responsibility may evolve.                                                          291 Ibid. at para. 37. 292 Ibid. at para. 43. 293 Ibid. at para. 67. 294 Ibid. at paras. 51 and 53.    128   2.3 Appropriate investigation by courts  Despite the strict readings of the ASR discussed above, interpretations of attribution have shown a measure of flexibility when Courts have delved into the founding elements of customary law.295 As a preliminary remark, it is important to recall that the statements of international courts and tribunals, be they from the ICJ, the ECtHR, or the various tribunals, are not bound by stare decisis. Their decisions may influence the formation of customary law and are used to inform further decisions, but they do not create law directly. This allows customary law related to state responsibility to evolve beyond early opinions from courts about its application. As such, cases such as Nicaragua, while important considerations of law, should not be held to have locked in or crystalized legal norms or criteria of state responsibility.   A thorough consideration of state practice and opinio juris in evaluating CIL notably occurred in the Tadić decision, previously discussed in chapter four. Recall that Nicaragua discussed the concept of attribution within state responsibility whereas Tadić was applying international criminal law. Once again, in Nicaragua, attribution was discussed to determine whether the acts of the contras could be linked to the US, while in Tadić the test was used to determine whether and armed conflict was of international character in order to determine the applicable law. Although the Tadić appeal decision is from 1999 (before the UNGA recommended the use of the ASR), the court nevertheless referred to an earlier version of the draft codification throughout its decision.296                                                         295 Since the Tadić decision was released before the Commentaries to the ASR, it cannot be said that the court purposefully ignored them as a source of interpretation. 296 Report of the International Law Commission on the work of its Forty-Eighth Session (6 May-26 July 1996), U.N. Doc. A/51/10.  129  Among other references to state practice, the ICTY appeals bench considered national liberation movements in its determination of the amount of control needed for imputation of acts of organized groups to states:  Judging from international case law and state practice, it would seem that for such control to come about, it is not sufficient for the group to be financially or even militarily assisted by a state. This proposition is confirmed by the international practice concerning national liberation movements. Although some states provided movements such as the PLO, SWAPO or the ANC with a territorial base or with economic and military assistance (short of sending their own troops to aid them), other states, including those against which these movements were fighting, did not attribute international responsibility for the acts of the movements to the assisting states.297  In its footnote to the section above, the court listed the extensive number of SC debates and resolutions that informed their conclusion that states had not held counterparts to account in cases where territory and assistance were provided to liberation movements.298 In addition to its consultation of state practice, the following reasoning of the court showed independence from the draft articles and more respect for customary law than the decisions discussed in chapter four (namely, Nicaragua). The court began its discussion of Article 8 of the ASR by stating that “[a] first ground on which the Nicaragua test as such may be held to be unconvincing is based on the very logic of the entire system of international law on state responsibility.”299 The “logic” of the                                                         297 Tadić, supra at note 180 at 130. 298 Ibid. The Footnote reads as follows “See e.g., the debates in the U.N. Security Council in 1976, on the raids of South Africa into Zambia to destroy bases of the SWAPO (see in particular the statements of Zambia (SCOR, 1944th Meeting of 27 July 1976, paras. 10-45) and South Africa (ibid., paras. 47-69); see also SC resolution no. 393 (1976) of 30 July 1976)); see also the debates on the Israeli raids in Lebanon in June 1982 (in particular the statements of Ireland (SCOR, 2374th Meeting of 5 June 1982, paras. 35-36) and of Israel (ibid., paras. 74-78 and SCOR, 2375th Meeting of 6 June 1982, paras. 22-67) and in July-August 1982 (see the statement of Israel, SCOR, 2385th Meeting of 29 July 1982, paras. 144-169)); see also the debates on the South African raid in Lesotho in December 1982 (see in particular the statements of France (SCOR, 2407th Meeting of 15 December 1982, paras. 69-80), of Japan (ibid., paras. 98-107), of South Africa (SCOR, 2409th Meeting of 16 December 1982, paras. 126-160) and of Lesotho (ibid., paras. 219-227)).” 299 Ibid. at 116.  130  system, the court continues, is that the “principles of international law concerning the attribution to states of acts performed by private individuals are not based on rigid and uniform criteria.”300 The court uses this as its foundation to argue that the less strict “overall control” test (in comparison to Nicaragua’s effective control test) needed to be satisfied for imputation of acts of members of an organized group to a state:  120. Plainly, an organised group differs from an individual in that the former normally has a structure, a chain of command and a set of rules as well as the outward symbols of authority. Normally a member of the group does not act on his own but conforms to the standards prevailing in the group and is subject to the authority of the head of the group. Consequently, for the attribution to a state of acts of these groups it is sufficient to require that the group as a whole be under the overall control of the state.   […]  124. The “effective control” test propounded by the International Court of Justice as an exclusive and all-embracing test is at variance with international judicial and state practice: such practice has envisaged state responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised. In short, as shall be seen, this practice has upheld the Nicaragua test with regard to individuals or unorganised groups of individuals acting on behalf of states. By contrast, it has applied a different test with regard to milita