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 1 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Doreen Lustig 2020 The moral rights of the author have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019957399 ISBN 978– 0– 19– 882209– 7 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. 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