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Chicago Journal of International Law

Abstract

Under what circumstances should international law impute to states the acts of private armed groups? Although states as a general rule are not liable for the conduct of nonstate actors, it is now well settled that the acts of de facto state agents are attributable to the state. That is, the conduct of ostensibly private actors may be sufficiently connected with the exercise of public power that otherwise "private acts" may be deemed state action. Of course, the question remains how best to distinguish de facto state action from purely private conduct. The attacks of September 11, and the international political firestorm that followed, underscore the importance of this issue. Indeed, the legal justification for Operation Enduring Freedom was predicated on the claim that the Taliban regime in Afghanistan was, as a formal matter, responsible for the acts of al Qaeda. The legal response to the terrorist attacks (and other recent developments) strongly suggests that the scope of state liability for private conduct has expanded. Moreover, this expansion of liability was achieved not by refashioning any "primary rules" defining the content of state obligations, but rather by relaxing the "secondary rules" defining state responsibility for breaches of any such obligation. This type of strategy, though not uncommon in international law, is potentially problematic. In this Article, I argue that (1) the response to the September 11 attacks may signal an important shift in the law of state responsibility; and that (2) this shift is likely to prove ineffective and counterproductive. The thrust of my policy argument is that the revision of trans-substantive secondary rules is a clumsy, and typically ineffective, device for vindicating specific policy objectives. Through an analysis of the role of state responsibility in global antiterrorism efforts, I illustrate several perverse collateral consequences of amending the secondary rules of attribution. My claim is that the formal characterization of terrorist acts as a specie of "state action" risks overapplication and underapplication of the relevant primary rules. The most effective strategy to restrain and deter state support for, or toleration of, terrorism is to define more clearly the primary obligations of states and the consequences for noncompliance with those obligations.

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