Veiled Power: International Law and the Private Corporation 1886-1981

250 Pages·2020·3.111 MB·English

by  Doreen Lustig

Veiled Power
LAW AND GLOBAL GOVERNANCE SERIES
Editors:
Andrew Hurrell, Benedict Kingsbury, and Richard B. Stewart
Global governance involves the exercise of power, beyond a single state,
to influence behaviour, to generate resources, or to allocate authority.
Regulatory structures, and law of all kinds, increasingly shape the nature,
use, and effects of such power. These dynamic processes of ordering and
governance blend the extra- national with the national, the public with the
private, the political and economic with the social and cultural. Issues of
effectiveness, justice, voice, and inequality in these processes are growing
in importance.
This series features exceptional works of original research and theory—
both sector-s pecific and conceptual—t hat carry forward the serious under-
standing and evaluation of these processes of global governance and the
role of law and institutions within them. Contributions from all disciplines
are welcomed. The series aims particularly to deepen scholarship and
thinking in international law, international politics, comparative law and
politics, and public and private global regulation. A major goal is to study
governance globally, and to enrich the literature on law and the nature and
effects of global governance beyond the North Atlantic region.
also published in the series
The Rise of China and International Law: Taking Chinese
Exceptionalism Seriously
Congyan Cai
Megaregulation Contested: Global Economic Ordering After TPP
Edited by Benedict Kingsbury, David M. Malone, Paul Mertenskötter,
Richard B. Stewart, Thomas Streinz, and Atsushi Sunami
Governance by Indicators: Global Power through Quantification and Rankings
Edited by Kevin Davis, Angelina Fisher, Benedict Kingsbury,
and Sally Engle Merry
Private International Law and Global Governance
Edited by Horatia Muir Watt and Diego P. Fernández Arroyo
Balancing Wealth and Health: The Battle over Intellectual Property
and Access to Medicines in Latin America
Edited by Rochelle Dreyfuss and César Rodríguez-G aravito
The Rise of the Regulatory State of the South: Infrastructure
and Development in Emerging Economies
Edited by Navroz K. Dubash and Bronwen Morgan
The Design of Competition Law Institutions: Global Norms, Local Choices
Edited by Eleanor M. Fox and Michael J. Trebilcock
Veiled Power
International Law and the Private
Corporation, 1886– 1981
DOREEN LUSTIG
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3
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To my father

Acknowledgements
I would like to thank the individuals and institutions who helped me write
this book.
I am indebted to my teacher and committed supervisor, Benedict Kingsbury,
who taught me how to read, think and study history and international law. As
I turn away from the keyboard I can almost see him at the other end of his office-
desk, gently pressing me to look further, to think harder, to dare and explore. His
rigorous mentorship defined my understanding of scholarly work. I am also deeply
grateful to Martti Koskenniemi, who provided me with guidance, encourage-
ment and close mentorship throughout the various stages of this project. His tire-
less motivation, intellectual curiosity and vitality proved wonderfully contagious
and inspired me to pursue unintended angles of this work. I wish to thank him for
the numerous conversations we had and for his unequivocal support during the
writing of this project.
The earlier stages of the writing of this book were written as part of my J.S.D dis-
sertation at NYU Law School. I’d like to thank the Hauser Global Legal Program
and the Institute of International Law and Justice at NYU for their generous in-
stitutional support and funding. I’d like to thank the NYU vibrant community of
international law for its kind friendship and collegial support. Amongst the mem-
bers of that inspiring community I’d like to thank Joseph H. H. Weiler who was a
close mentor to me throughout my studies at NYU and a dear friend in the years
which followed. Joseph Weiler taught me lasting lessons on what it means to be a
teacher. I can only aspire to follow his example.
Special thanks are owed to Lauren Benton who commented on earlier drafts of
this project and examined the original thesis. I am grateful to the teachers and col-
leagues at NYU who read and commented on various parts of the project: Kevin
Davis, Mattias Kumm, Jeremy Waldron, Guy Fiti Sinclair, Colin Grey, Arie Rosen,
Eran Shamir- Borer, Nourit Zimmerman, Vanessa Casado, Lisa Kerr, Maria Varaki,
Angela Delfino, and Galia Rivlin.
Much of the book was written while I was at Tel Aviv University Faculty of Law.
My special thanks to my dear friends and colleagues Leora Bilsky, Ron Harris, Roy
Kreitner, David Schorr, Assaf Likhovski, Hila Shamir, and Tami Kricheli-K atz
for their valuable comments and support. I am grateful for the Cegla Center for
Interdisciplinary Research of the Law, the David Berg Foundation Institute for Law
and History and the Edmond J. Safra Center for Ethics at Tel Aviv University for
their generous financial support.
viii Acknowledgements
I’d like to convey my thanks to Amanda Dale, who worked tirelessly on the ed-
iting of the book manuscript and to my research assistants Neli frost, Guy Priver,
and Jasmin Wennersbusch. I’d like to thank the staff at the College Park Archives
at Maryland, the Telford Taylor Papers Collection at Columbia University and the
librarians at NYU Libraries and Tel Aviv University Libraries for their close guid-
ance and assistance.
I would like to thank my dear friends Tami kricheli- Katz, Hila Shamir, Maytal
Giloba, Natalie Davidson, Eliav Lieblich, Ori Goldberg, and Ilana Toren-A mit for
their kind friendship and support.
Special thanks are owed to Yaniv Friedman, who was my companion and partner
during the better part of this journey. I wish to thank my aunt, Gila Menachem, for
her encouragement and good advice and to my grandfather, Avraham Blinder, who
made sure his grandchildren would sustain their curiosity whatever they do. I’d
like to thank the warmth and love of my mother and sisters Bella, Lian, and Shimrit
Lustig. I am grateful to Eyal, my kindred spirit. My boys, Avner and Yotam, have
always been my source of joy, faith and inspiration.
This book is dedicated to my father, Itzhak (Itzik) Lustig (1953– 1998), who en-
couraged me to pursue an intellectual life and had faith in my dreams.
Contents
List of Abbreviations xi
1. Introduction 1
Contribution and Methodology 5
Chapter Outline 9
2. Setting the Scene: The Facilitative Failure of the Chartered Company 15
The Royal Niger Company 1886–1 900 18
The Post- Charter International Legal Order 25
3. Liberia, Firestone, and the End of Slavery as a Political Cause:
Between the Weak State and the Unruly Corporation 1926–1 934 28
Introduction 28
The League of Nations and the Abolition of Slavery 31
Firestone: Harbinger of Turmoil 42
Firestone and the League of Nations 49
From the Regulation of Labour to the Regulation of the Concession 58
4. The Nature of the Nazi State and the Responsibility of Corporate
Officials at Nuremberg 69
Introduction 69
Introducing the Industrialist Cases 71
Intellectual Frameworks Shaping the Crime of Aggression 76
Followers, Not Leaders: Two Companies, Two Conspiracies in
the Crime of Aggression 83
Behemoth vs. Leviathan: Business Responsibility and Competing
Theories of the State 91
Historical Perspectives and the Behemoth Theory 94
The Normative State as the Private Sphere: Revisiting Ernst Fraenkel’s
Dual State Theory in the Crimes of Aryanization, Plunder,
and Spoliation 97
Conclusion 110
5. Without the Corporate Entity? Theories of Corporate Authority
and their Implications for Business Responsibility at Nuremberg 112
Introduction 112
Breaking Cartels Rather than Targeting the Corporate Entity 114
In Search of a Theory of the Corporate Entity 119
Responsibility of Corporate Officials without the Inclusion of
the Corporate Entity 122