The State Action Doctrine in International Law

Published date03 August 2011
Date03 August 2011
Pages213-232
DOIhttps://doi.org/10.1108/S1059-4337(2011)0000056009
AuthorLaura A. Dickinson
THE STATE ACTION DOCTRINE
IN INTERNATIONAL LAW
Laura A. Dickinson
ABSTRACT
Because international human rights and humanitarian law traditionally
binds only state action, courts must reconceive the state so that nominally
nonstate activity, such as the acts of private military contractors, f‌its
within this legal framework. I summarize state action cases under U.S.
constitutional law and the nascent jurisprudence in U.S. courts involving
the application of international law norms to government contractors.
I also consider holding nonstate actors accountable for violations of
international law norms through ordinary U.S. domestic law tort suits.
Yet, even in this context delineating the public/private divide is a core part
of the analysis.
In an era of increasing privatization, those applying international legal
norms must confront the changing nature of state action. In the nineteenth
and much of the twentieth centuries, public international law, including
international human rights law and humanitarian law (also called the law of
armed conf‌lict), concerned itself primarily with relations between and among
states. To be sure, nonstate entities such as the Catholic Church played key
roles in the emergence of a transnational law that predated the modern state.
And in the last century, international human rights treaties provided that
Special Issue: Human Rights: New Possibilities/New Problems
Studies in Law, Politics, and Society, Volume 56, 213–232
Copyright r2011 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000056009
213
individuals, and not just states, could hold rights under international law.
Yet these rights were in the main rights against state misconduct in the case
of negative rights, and rights to state action in the provision of services in the
case of positive rights (also known as economic, social, and cultural rights).
Similarly, in the arena of humanitarian law, the obligations such as those
found in the Geneva conventions were conceptualized primarily as limits on
government armed forces.
In the last 30 years, however, we have witnessed tremendous changes to
the international arena. Nonstate insurgent forces and guerrilla move-
ments are f‌ighting wars as much as states. Terrorists who may not be
associated with any one state launch attacks that may be more deadly
than those launched by off‌icial governments. Multinational corporations
do business around the world and in many cases are larger than states.
Nongovernmental organizations are championing causes and delivering
aid abroad. And, perhaps most signif‌icantly, governments, interna-
tional organizations, corporations, and nonprof‌it institutions are increas-
ingly hiring private military and security contractors to f‌ight wars, keep
peace, and protect assets and personnel. These various nonstate actors
inevitably are involved in the ongoing def‌inition of rules that regulate
conduct in areas as diverse as environmental protection, global health,
education, and conduct of armed conf‌lict. Moreover, individuals
associated with these nominally nonstate entities may sometimes act in
ways that might violate fundamental international law principles. Private
security contractors, for example, have f‌ired on civilians apparently
without observing the limitations on the use of force that soldiers are
normally expected to respect. Terrorists have wreaked havoc and
destruction without any regard for human life. And some corporations
have reportedly hired thugs to brutalize their workforces.
But where is the state in all this activity? This is a crucial legal question
because, as noted above, international legal norms traditionally bind only
state action. Thus, in applying such norms, courts need to determine how
best to conceive of state action so as to bring at least some of this nominally
nonstate activity within the ambit of international human rights and
humanitarian law.
Interestingly, U.S. constitutional law has long grappled with precisely this
question. Most constitutional commandments have been deemed to
proscribe only the conduct of governmental actors. For example, the
Fourteenth Amendment provides that ‘‘No state shall.y’’ As a result, the
Supreme Court has often refused to apply these constitutional provisions to
so-called ‘‘private’’ action. Yet, as many critics have noted, it is often
LAURA A. DICKINSON214

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