Moving towards complicity as a criterion of attribution of private conducts: imputation to states of corporate abuses in the US case-law

According to the agency paradigm enshrined by the 2001 ILC Articles on State Responsibility, private conducts are attributed to a state when they are carried out on the state’s behalf or under its tight control. On closer look, this legal framework proves to be unable to deal with state involvement in human-rights violations perpetrated by powerful non-state actors, such as terrorist groups or transnational corporations. These wrongs, indeed, are often put in place with the fundamental contribution of – but not on behalf of (or under the control of) – a state, with the consequence that, under the traditional paradigm, they could not be attributed to the latter. Against this backdrop, the present paper argues that a new secondary norm has been developing that provides that private wrongs are to be imputed to a state if the latter knowingly facilitated (or otherwise co-operated in) their commission. Although international practice will be duly taken into account, the analysis will be focused mainly on US case law concerning corporate liability for international human-rights violations.