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Florida State University Journal of Transnational Law & Policy

Abstract

Territory is ordinarily the basis for and the limit to law-making and law-enforcement: this is the legal meaning of the so-called "Westphalian system. "But territory also serves as a fallback for the determination of responsibility, and entities lacking in territory (such as multinational corporations) have a decided advantage in evading responsibility. This paper investigates the role of territory in state and corporate responsibility by looking at attribution. Attribution is the first phase of determining responsibility, wherein we ask whether the illicit acts committed can be attributed to the organization (be it a state or a corporation) that we want to hold liable. Attribution within hierarchical organizations, by most standards, requires both information about the will and knowledge of each relevant actor within the organization and an accepted definition of the limits of the organization. Because of the complexity and the possibility of loopholes in every form of institutional attribution, states' failure to protect becomes a ground for attribution whenever an internationally illicit act takes place on state territory. A short comparison with the responsibility of transnational corporations (TNCs) shows us how TNCs can pass responsibility on to states, because TNCs are based on different national laws and have neither a set territory, nor undisputed organizational limits. Thus, territory leads both towards increased responsibility for states, especially decentralized and federal states, and to corporations which can always push responsibility either onto the states whose territory they are acting on, or onto subsidiaries they can separate from the mother company and discard.

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