Attribution of corporate conduct to the state

The central issue examined in Chapter Three is the applicability of the customary rules codified by the International Law Commission in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) to cases of business-related human rights abuses. These principles apply to corporations only if their conduct can be attributed to the state; whenever such attribution is possible, state responsibility absorbs corporate responsibility, and the hybrid responsibility model does not apply. The chapter focuses particularly on attribution based on a corporation’s exercise of elements of governmental authority (Art. 5 ARSIWA) and on the control exercised over a corporation by the state (Art. 8 ARSIWA). The analysis is complemented by an overview of the case law of the European Court of Human Rights and the Inter-American Court of Human Rights concerning state-owned enterprises. It concludes that even for companies owned or controlled by states, the institutional or functional links required for attribution are often absent.