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Regulating Corporations under International Law: From Human Rights to International Criminal Law and Back Again Larissa van den Herik and Jernej Letnar Černič ∗
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Abstract The discussion on corporate human rights obligations has been ongoing for some time. More recently, the potential for corporate accountability under a new domain of international law is being explored, namely international criminal law. This raises questions as to the interrelationship between and the intersection of the two fields of international law. This article argues that the intricacies of accepting corporations as duty-bearers of human rights obligations are of a quite distinct nature than those permeating the international criminal law debate. Moreover, the corporate violations at stake are to a very large extent of a different nature. It is thus argued that the discussions on corporate liability in the two fields of international law run parallel rather than that they directly intersect with each other. The debate on corporate human rights obligations may well be informed by potential future developments within international criminal law, but international criminal law is not the panacea that solves all the theoretical and practical obstacles surrounding the debate on corporate human rights obligations. 1. Introduction Corporations, particularly transnational corporations, have in the last decades become generators of international trade and globalization. They are increasingly operating most of the foreign direct investments in developed and developing countries. They have assumed the role of cardinal actors in foreign investment, even though states and individuals also often act as investors.1 Foreign direct investments can stimulate economic growth, development and employment, and they can contribute to improving the human rights situation in many developing countries as a direct or indirect consequence of those investments. Conversely, corporate action can also have a negative impact on specific human rights or the overall human rights situation in a country or given area. In first instance, such negative impact should be addressed at the national level through relevant national laws, such as labour law, environmental law, or corporate law. However, given that domestic regulation, and in particular enforcement at the national level, is often not feasible for a variety of reasons, the attention has shifted to international law, and in particular human rights law. More recently, Dr. L.J. van den Herik is associate professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University / Campus The Hague,
[email protected]. Dr. J. Letnar Černič is a Max Weber Postdoctoral Researcher at European University Institute and an adjunct professor at New York University in Firenze,
[email protected]. 1 See UN Human Rights Council (HRC), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, UN Doc. A/HRC/8/5, 7 April 2008 (prepared by John Ruggie), para. 12, available online at http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf (visited 4 January 2010), further refered to as Ruggie report 2008. ∗
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1 Electronic copy available at: http://ssrn.com/abstract=1666765
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the potential for corporate accountability under a new domain of international law is being explored, namely international criminal law.2 This raises questions as to the interrelationship between and intersection of the two fields of international law. Is it proper to regard international criminal law as the enforcement tool of corporate human rights obligations? Can international criminal law remedy some of the gaps and obstacles encountered in the discussions on corporations and human rights? In brief, is international criminal law complementary to human rights law in regulating corporations, or should the two bodies of law rather be seen as parallel regulatory frameworks? In order to address these questions, this article sets out the state of the art on corporate human rights obligations. In so doing, it examines the main practical and theoretical obstacles to accepting corporations as duty-bearers of human rights obligations. The greatest practical hurdle that the human rights framework has not been able to overcome so far in addressing corporate human right violations is the enforcement gap. The theoretical obstacle that is central to any discussion on corporate human rights obligations is the required paradigm shift from states to non-state actors as being capable of being the addressee of human rights obligations. Since non-state actors are well accepted under international criminal law and states are excluded as subjects in this field of law, a similar paradigm shift is not required under international criminal law. Under this field of law, the required shift is from individuals to corporations as subjects of law. Given that these entities are both non-state actors, the shift is less problematic from a public international law perspective, even though there are certain implications from a criminal law perspective which are not further explored here.3 This article will argue that any eventual acceptance of corporate responsibility under international criminal law may thus have beneficial effects on the human rights discussion in terms of recognizing the legal personality of corporations under international law. However, while the discussions in both domains are still ongoing it is to be realized that the intricacies of accepting corporations as duty-bearers of human rights obligations are of a quite distinct nature than those permeating the international criminal law debate. Moreover, the corporate violations at stake are rather different. It thus seems that the discussions on corporate liability in the two fields of international law mostly run parallel rather than that they directly intersect with each other. In addition, it is important to underline that international criminal law may not be able to remedy the existing enforcement gap to the extent that it can meet all expectations.
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This article will not deal with all intricacies of the concept of corporate responsibility under international criminal law. It rather approaches the discussion purely from a public international law perspective. For a comprehensive discussion of corporate responsibility under international criminal law, see L. van den Herik, ‘Corporations as future subjects of the International Criminal Court: An exploration of the counterarguments and consequences’, in C. Stahn and L. van den Herik (eds.), Future Perspectives on International Criminal Justice (The Hague: T.M.C. Asser Press/Cambridge University Press, 2009) 350-368. 3 Ibid.
2 Electronic copy available at: http://ssrn.com/abstract=1666765
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2. The International Human Rights Architecture and Corporations The international human rights architecture was built in the aftermath of the Second World War on the premise that individuals had to be protected from public state power. States were and still are perceived to be the primary and perhaps sole direct duty-holders in the human rights framework. Factors that have somewhat shifted the attention from states to corporations include privatization, but also more generally the increased power and influence of corporations in our global economy and hence our day-to-day life.4 Whereas the privatizationargument does not necessarily entail a shift in paradigm, as human rights obligations are still attached to the exercise of public tasks albeit by private entities, the globalization-argument is more intrusive and may require a new vision on human rights; a vision that more fully accepts non-state actors as new duty-holders. However, opponents to such a new vision argue that attaching human rights duties to private entities exercising private activities enters the private domain excessively, and has the potential to undermine specific obligations of states to protect human rights.5 They argue that currently corporations can be held to account for human rights violations indirectly, that is through national legal orders, and that on the international level, only states can be addressed directly for corporate misbehaviour through the doctrine of positive obligations. Yet, it appears that this state-centered approach might not be adequate as states may not live up to their obligations in this regard. More specifically, issues, including the expenses of legal representation, the lack of legal standing and the doctrine of separation of legal entities play a seminal role in hindering equal access for victims to a legal remedy at national levels. A. The Domestic Enforcement Gap Positive obligations to address corporate misbehaviour principally rest with host states, as the violations are committed on the territory of this state, and to a lesser extent with the home state of a corporation, i.e., the state where a corporation is registered or where its headquarters are. In situations where a multinational corporation outweighs a developing host state in terms of economic power, that state may not be inclined to regulate a corporation too stringently. The investment and economic activity coming from the multinational may be more appealing to the developing state than the need to protect its citizens from violations committed by the multinational. In other instances, domestic regulation may be inadequate because the host 4
A. Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), at 3. International Chamber of Commerce (ICC) and International Organization of Employers (IOE), Joint views of the IOE and ICC on the draft Norms on Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights, March 2004, available online at http://www.ioeemp.org/fileadmin/user_upload/documents_pdf/papers/statements_resolutions/english/state_2004march_subcom m.pdf (visited 4 January 2010). 5
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state lacks the institutional capacity and/or resources to live up to its international obligations to protect. Furthermore, a state may intentionally omit to regulate or adjudicate a multinational, if this multinational is in fact complicit in the violations committed by the state itself. In these cases, domestic regulation does not suffice and international law is required.6 As for the home state, there may currently be no hard-core legal obligation to control its legal persons in relation to activities conducted outside their territory. However, states are bound by a number of important principles agreed to in the context of the Organisation for Economic Co-operation and Development (OECD) and the International Labour Organization (ILO) and are expected, at least morally, to apply these to any corporation within its jurisdiction. Obviously, there may not be an economic incentive to do so.7 Hence, the situation may well occur that neither the host state nor the home state is inclined to fulfill its legal or moral duty to regulate corporate activity for different reasons. In sum, the rationale behind the focus on international law finds its ground in the increased power and influence of corporations, as well as in the incapacity or unwillingness of states for one reason or the other to regulate adverse corporate behaviour properly at the national level.8 Or in the words of Special Representative of the Secretary-General on Human Rights and Transnational Corporations and Other Business Enterprises John Ruggie: ‘the root causes of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences.’9 But why use human rights as the framework for regulating corporate conduct? Adverse corporate behaviour may have distinct forms and touch on different aspects of social justice, such as labour issues, health and safety issues, and consumer and environmental protection. The largest universal initiative on corporate social responsibility, the Global Compact, embraces 10 principles rooted in human rights law, environmental law, labour law and anti-corruption law. Emphasizing human rights law as the overarching regulatory framework is thus based on a broad conception of human rights law. Using this framework has several advantages. Most importantly, this framework provides uniform standards, or in the words of the NGO International Council on Human Rights a ‘uniform benchmark against which the behaviour of companies can be objectively measured’.10 A survey of voluntary 6
O. de Schutter, ‘The Accountability of Multinationals for Human Rights Violations in European Law’, in P. Alston (ed.), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005) 227-314, at 237-240. 7 Ibid., at 235-237. 8 Another important reason to strive for international regulation rather than national is to prevent a race to the bottom and to ensure that equal standards apply in all states, see R. M. Bratspies, ‘“Organs of Society”: A Plea for Human Rights Accountability for Transnational Enterprises and Other Business Entities, 13 Michigan State Journal of International Law (2005) 9-38 noting that ‘without common international standards, a race to human rights bottom will only be too likely’, at 37. 9 Ruggie report 2008, para. 3 10 International Council on Human Rights, Beyond Voluntarism, Human rights and the Developing International Legal Obligations of Companies (2002), available online at http://www.ichrp.org/files/reports/7/107_report_en.pdf (visited 4 January 2010), at 15.
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codes of conduct shows that these codes are selective in their inclusion of particular human rights and their understanding of what these rights and correlating duties entail.11 Besides the need for uniform global treatment, Ratner points out that using the human rights framework and terminology underlines that corporate violations of human rights are a matter of public concern.12 Moreover, the advocacy power of human rights can be essential in the attempt to protect vulnerable and marginalized individuals against powerful economic entities.13 B. Corporate Human Rights Obligations de Lege Lata Given the apparent need, the question arises as to whether human rights law can address corporations and to which extent it is already doing so. Phrased in more dimensional terms, the question is whether human rights law exclusively establishes a vertical relationship between the individual and the State, or whether it also contemplates direct horizontal effect between private actors, for instance between an individual and a corporation. Only the latter dimension comprises the concept of private duties which could be translated into specific corporate human rights responsibilities. In his article on horizontal human rights law, Knox distinguishes between converse private duties, which are duties that individuals have towards the State and correlative private duties, which are duties that directly relate to specific human rights of others, so a duty of one private actor to respect the human rights of another private actor.14 The correlative duties are most relevant to the discussion on corporate responsibilites. Knox explains that the concept of private duties has not been accepted in the main human rights treaties in light of the fear of governmental abuse. This fear concerns in particular the converse duties, but has produced the collateral effect of a reluctance to accept correlative duties.15 Therefore, the current human rights system de lege lata is still based on the premise that only States are the direct addressees of human rights obligations. As part of their human rights obligations, States may have the duty to restrict corporate behaviour at the national level. This duty can be phrased in general terms, such as in Article 2 of the International Covenant on Civil and Political Rights which requires States to respect and ensure the rights of the Covenant. But the duty of affirmative State action at the national level can also be more specific, such as in for example, the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which stipulates that each state ‘shall prohibit and bring to an end, […], racial discrimination by any persons, group or organization’ and even more specifically Article 11(2)(a) of CEDAW which 11
John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. E/CN.4/2006/97 (2006), 22 February 2006, para. 53, further refered to as Ruggie report 2006. 12 S. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, 111 Yale Law Journal (2001) 443-545, at 395. 13 International Council on Human Rights, supra note 10, at 18. 14 J.H. Knox, ‘Horizontal Human Rights Law’, 102 American Journal of International Law (2008) 1-47. 15 Ibid., p. 3.
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requires States to prohibit dismissal on the grounds of pregnancy or maternity. Ultimately, this latter provision aims to prevent that a corporation, among other entities, dismisses a pregnant women. However, under the current paradigm the international obligation to ensure this specific right is addressed to the State and corporations are only restricted indirectly, that is through State action at the national level. The state of the art has been set out as follows by the Human Rights Committee in its General Comment 31: “The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law. However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties' permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.”16
In sum, corporate behaviour that infringes on a given human right may give rise to State responsibility. The prevailing question in the debate on corporate human rights obligations is, whether within this paradigm, there is room for additional international responsibility for corporations. The scholarly debate on the potential of direct and/or indirect international legal obligations of corporations is in full flow. Several commentators have argued that, despite the primary focus on states, corporations can have additional obligations under international human rights law.17 Others claim that the trend is to view ‘human rights responsibilities of multinational enterprises as corollary of their ability to bring human rights claims.’18 In contrast, Special Representative Ruggie has concluded in his report, inter alia referring to General Comment 31 as just quoted, that the main international human rights instruments do 16
UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), 26 May 2004, para. 8. Clapham, supra note 4, at 266-270; N. Jägers, Corporate human rights obligations: In search of accountability (Antwerp: Intersentia, 2002), at 75-95; D. Weissbrodt and M. Kruger, ‘Current Developments: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, 97 American Journal of International Law (2003) 901-922, at 913-915, 921; D. Kinley and J. Tadaki, ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’, 44 Virginia Journal of International Law (2004) 931-1023, at 962-992; P. T. Muchilinski, Multinational enterprises and the Law (Oxford: Oxford University Press, 2007), 519-524; N. Stinnet, ‘Note: Regulating the Privatization of War: How to Stop Private Military Firms from Committing Human Rights Abuses’, 28 Boston College International and Comparative Law Review (2005) 211-223. 18 P. T. Muchlinski, ‘Human Rights and Multinationals - is there a Problem?’, 77 International Affairs (2001) 31-48. 17
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not seem to impose direct legal responsibilites on corporations.19 In a similar vein, Greenwood argues that ‘there is no basis in existing international law for the liability of corporations and, consequently, no rules of international law regarding the questions which necessarily arise when a corporation is accused of wrongdoing.’20 For Vasquez an international norm has applicability to corporations if ‘an international mechanism is established for enforcing an international norm against a non-state actor, then it may clearly be said that the international norm applies directly to non-state actors’,21 or if the ‘language is indicating an intent to subject (the actors) to international enforcement mechanisms in the future.’22 In other words, international obligations cannot be directed towards corporations if they leave its enforcement to national legal orders of states.23 However, it appears that such an approach confuses apples with oranges. The nature of an obligation cannot be equated with the way it is implemented. As Ratner has observed, such an approach ‘confuses the existence of responsibility with the mode of implementing it’.24 Articulating the direct human rights obligations of private actors, including corporations, should not depend on establishing a jurisdiction of implementing them. The recognition of the international human rights obligations of corporations cannot be subject to the (non-)existence of a potential international jurisdiction. Moving beyond the human rights framework, there are several other conventions that indirectly regulate corporate behaviour. For instance, Article 2 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transaction states ‘each Party shall take such measures as may be necessary, in accordance with its legal principles to establish the liability of legal persons for bribery of a foreign public official.’25 Moreover, treaties and agreements relating to nuclear activity, such as the Paris Convention the Third Party Liability in the Field of Nuclear Energy,26 hold operators of nuclear facilities liable for damages or loss of life to persons and property from private nuclear accidents.27 19
UN Human Rights Council [HRC], “Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts” Report of the Special Representative of the SecretaryGeneral (SRSG) on the issue of human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/4/035, 9 February 2007 (prepared by John Ruggie), para. 44 < http://www.businesshumanrights.org/Documents/SRSG-report-Human-Rights-Council-19-Feb-2007.pdf >, further refered to as Ruggie report 2007. 20 Declaration of C. Greenwood, Presbyterian Church of Sudan v. Talisman Energy Inc., Civil Action No. 1 CV 9882 (AGS), (7 May 2002) 8, para. 20 (on file with the authors). 21 C. M. Vasquez, ‘Direct vs. Indirect Obligations of Corporations under International Law’, 43 Columbia Journal of Transnational Law (2005) 927-959, at 940. 22 Ibid., at 941. 23 Ibid., at 934. 24 Ratner, supra note 12, at 481. 25 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 18 December 1997, S. Treaty Doc. 105-43, 37 International Legal Materials (1998), entered into force 15 February 1999. 26 Paris Convention on the Third Party Liability in the Field of Nuclear Energy, done 29 July 1960, 956 UNTS 251. 27 The Brussels Convention Relating to Civil Liability in the field of Maritime Carriage of Nuclear Material, 17 December 1971, 974 UNTS 255.
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Also, the International Convention on Civil Liability for Oil Pollution Damage28 and the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment of the Council of Europe place responsibilities on businesses by extending their reach to legal persons.29 Both conventions define the persons liable to the convention as ‘any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions’.30 The Hazardous Waste Convention imposes strict liability on the corporate generator of hazardous waste.31 Reading these international treaties together, Kamminga notes that ‘there are no reasons of principle why companies cannot have direct obligations under international law.’32 Many authors agree that the traditional argument that corporations are no subjects of international law has lost most of is ground and that this argument is “yielding to new realities”.33 Since private actors do already enjoy rights under international law and have duties under international criminal law, Knox concludes that international law “has the legal capacity to place direct horizontal duties on all private actors”, including corporations.34 However, whether it has actually done so in specific treaties is a matter of interpretation. The transnational conventions that have just been cited are to some extent ambiguous, but ultimately when read in their entirety it seems that they do follow the traditional paradigm of indirect responsibility, since they all include provisions that defer to States’ prescriptive jurisdiction. In sum, the state of the art seems to be that – for now - ‘international law, as it exists today, includes norms that address the conduct of corporations and other non-state actors but, with very few exceptions, the norms do so by imposing an obligation on states to regulate non-state actors.’35 C. Corporate Human Rights Obligations under Soft Law
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The International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969: Article 3(1) states: ‘... the owner of a ship at the time of accident, or where the incident consists of a series of occurrences at the time of the first such occurrence, shall be liable for any pollution damage caused by oil which has escaped or been discharged from the ship as a result of the incident’. 29 The COE Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 21 June 1993, available online at http://conventions.coe.int/treaty/en/treaties/html/150.htm (visited 4 January 2010). 30 The International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, Article 1(1). 31 Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal, 22.3.1989. Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Article 2 (6). 32 M. T. Kamminga, Corporate Obligations under International Law, paper presented at the 71st Conference of the International Law Association, plenary session on Corporate Social Responsibility and International Law, Berlin, 17 August 2004, at 4 (on file with the authors). 33 Ruggie report 2007, para. 19. 34 Knox, supra note 14, p. 19. 35 C. M. Vasquez, ‘Direct vs. Indirect Obligations of Corporations under International Law’, 43 Columbia Journal of Transnational Law (2005) 927-959, at 930.
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Attempts to move beyond the current paradigm are often based on the preambular paragraph of the Universal Declaration of Human Rights (UDHR), which stipulates: ‘that the General Assembly proclaimed the Declaration as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society … shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance [...]’36 The preambular provision is implemented in Articles 29 and 30 of the Universal Declaration. Article 29(2) articulates the correlative private duty that everyone has to respect the rights of others. Similarly, Article 30 provides that a ‘group or person do not have any rights to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.’ Reading the preamble, Henkin notes that: ‘every individual includes juridical persons. Every individual and every organ of society excludes no one, no company, no market, and no cyberspace. The Universal Declaration applies to them all.’37 Undoubtedly, the language of the preambular provision includes the role of corporations in the promotion and the protection of human rights. It may be argued that also corporations have obligations to respect (‘obligation to do no harm’). An obligation to protect would mean that corporations are obliged to adopt internal regulations and take other measures to prohibit and prevent human rights violations internally, in their own activities, but also externally, in business relationships with third parties (subsidiaries, contractors, sub-contractors and business partners), throughout their supply chains. On the other hand, the obligation to fulfil human rights would require that a corporation adopts a human rights policy and internal codes of conduct that address human rights challenges and this would include measures on how to prevent and respond to human rights violations. What, however, is the legal significance of these provisions given that the UDHR itself is a non-binding document? Notably, the International Convenants do not include a provision on correlative private duties similar to Article 29(2) of the UDHR, and only the preambular paragraphs make reference to duties that individuals have towards other individuals. At best, these provisions and references may serve as a spring board towards a new conception of human rights in which commitments of corporations are more clearly articulated. How to move towards such a new conception is being explored in soft law initiatives. Our analysis takes as a starting point the 2003 UN Norms on the Responsibilities of Transnational Corporations and Other Business Corporations and Other Business Enterprises with Regard to Human Rights which states that corporations are required to promote, respect, 36
See the Universal Declaration of Human Rights (UDHR), Adopted and proclaimed by UN General Assembly Res. 217 A (III) of 10 December 1948. 37 L. Henkin, ‘The Universal Declaration at 50 and the Challenge of Global Markets’, 25 Brooklyn Journal of International Law (1999) 17-25;
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and protect ‘human rights recognized in international as well as national law.’38 The UN Norms have been described by their principal author as a ‘restatement and clarification of the existing human rights obligations of corporations’.39 However, the UN Norms have earned a great deal of criticism, perhaps unwarranted, for the perceived lack of certainty of corporate human rights obligations. The Norms were eventually not adopted by the then UN Commission on Human Rights. Instead, the Commission asked the UN Secretary-General to appoint a Special Representative on the issue of corporations and human rights. In July 2005, John Ruggie, a professor at Harvard University was appointed Special Representative of the UN Secretary-General. The primary obligations in the 2003 Norms are that corporations promote, secure the fulfillment of, respect, ensure respect of and protect human rights.40 The obligation of corporations to respect human rights means that corporations are obliged to refrain from interfering with the enjoyment of fundamental human rights of the others. In other words, it is an obligation to do no harm to the human rights of others. The obligation to protect human rights includes the obligations of corporations to protect persons from human rights violations by third parties. The obligation to fulfill human rights requires that corporations adopt a number of measures toward full realization of human rights. Ruggie criticized the 2003 Norms and has submitted that the ‘[n]orms exercise became engulfed by its own doctrinal excesses.’41 The 2008 Ruggie Report noted that ‘flaws of the Norms make […] a distraction from rather than basis for moving the Representative’s mandate forward.’42 He further observed that ‘if the Norms merely restate established international legal principles then they cannot also directly bind business because, with the possible exception of certain war crimes and crimes against humanity, there are no generally accepted international legal principles that do so.’43 In the 2008 report, Ruggie proposed a three-pillar framework for corporate accountability for human rights, which he describes as ‘Protect, Respect and Remedy’. The framework ‘rests on differentiated but complementary responsibilities’44, which include: the state duty to protect against human rights violations by or involving corporations; the
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UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003 (UN Norms), Section 1. Weissbrodt and Kruger, supra note 13, at 913-5, 921. 40 UN Norms, Section 1. In this regard, the Commentary under 1(b) states: ‘Transnational corporations and other business enterprises shall have the responsibility to use due diligence in ensuring that their activities do not contribute directly or indirectly to human rights abuses, and that they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware.’ 41 Ruggie report 2006, para. 59. He further suggests that ‘even leaving aside the highly contentious though largely symbolic proposal to monitor firms and provide for reparation payments to victims, its exaggerated legal claims and conceptual ambiguities created confusion and doubt even among many mainstream international lawyers and other impartial observers.’ 42 Ruggie report 2008, para. 69. 43 Ruggie report 2006, para. 60. On the question whether corporations are bound by the prohibitions underlying core crimes of international criminal law see the contribution by V. Nerlich in this Issue. 44 Ruggie report 2008, para. 9. 39
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corporate responsibility to respect human rights; and effective access to remedies.45 In his 2009 report, Ruggie noted that corporate responsibility to respect human rights ‘has acquired near-universal recognition by all stakeholders’.46 Going beyond the previous report, the 2009 Report recognized that ‘there may be situations in which companies have additional responsibilities. But the responsibility to respect is the baseline norm for all companies in all situations.’47 The UN Global Compact encourages corporations to ‘embrace and enact’ ten principles concerning human rights, labour rights, the protection of the environment and corruption.48 The two human rights principles included in the Compact ask businesses to ‘support and respect the protection of internationally proclaimed human rights’49 within their sphere of influence and that businesses ‘should make sure that they are not complicit in human rights abuses’.50 With the exception of labour rights, the Global Compact does not specify which human rights businesses should support and respect. It seems that the UN Global Compact is not conceptually clear, which leaves a wide margin of appreciation to corporations on how to interpret and apply principles. The OECD 1976 Guidelines for Multinational Enterprises (revised in 2000) requires multinational enterprises to ‘respect the human rights of those affected by their activities consistent with the host government’s international obligations and commitments.’51 The ILO Tripartite Declaration notes that ‘all parties (including corporations) should contribute to the realization of the ILO Declaration on Fundamental Principles and Rights to at Work and follow-up adopted in 1998.’52 Clapham suggests that: ‘despite the fact that the Tripartite Declaration contains only recommendations, the Declaration provides material evidence that 45
O. Amao, Review of the Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, Professor John Ruggie to the United Nations Human Rights Council, ‘Protect, Respect and Remedy: a Framework for Business and Human Rights’ UN Doc. HRC/8/5, 7 April 2008, at 5, available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1131682 (visited 4 January 2010). 46 UN Human Rights Council (HRC), Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, UN Doc. A/HRC/11/13, 22 April 2009, para. 46. 47 Ibid., para. 48. 48 It was introduced by UN Secretary-General Kofi Annan at the 1999 World Economic Forum in Davos. The Global Compact was designed to promote good corporate citizenship and aimed to bring companies together with UN agencies, labour and civil society groups to support nine principles in the areas of human rights, labour and the environment. Each principle draws on established UN conventions, namely, the Universal Declaration of Human Rights (1948), the Rio Principles on the Environment and Development (1992) and the ILO’s Fundamental Principles on Rights at Work (1988); see also http://www.unglobalcompact.org/index.html (visited 4 January 2010). 49 See UN Global Compact, Principle 1. 50 See UN Global Compact, Principle 2. 51 The OECD Guidelines for Multinational Enterprises: Text, Guidelines, Commentary, DAFFE/IME/WPG (2000) 15 Final (Paris: OECD, 2001). 52 ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 204th Sess., 83 ILO. Official Bulletin (2000), para. 8. For a critical discussion see J. Letnar Černič, Corporate Responsibility for Human Rights: Analyzing the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, Miskolc Journal of International Law, Vol. 6, No. 1. pp. 24-34, 2009.
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the international labour law regime has come to include human rights obligations for national and multinational enterprises.’53 The UN Declaration on the Rights and Responsibilities of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms notes that private actors have an ‘important role and responsibility ... in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.’54 Finally, it may be mentioned that some 242 corporations explicitly include a human rights policy statement.55 In its General Business Principles, Shell Corporation, for example, supports fundamental human rights as part of the legitimate role of business, within its five areas of responsibility.56 The leading international business organizations have also confirmed that corporations have obligations to respect human rights.57 The problem with all these references is that they are not specific and do not articulate clear guidelines as to the extent and limits of corporate human rights responsibility. They do not articulate the precise content of corporate human rights obligations. D. Operationalizing Corporate Human Rights Responsibility If corporations have, at least indirect and soft, human rights obligations, the logical next question is what these obligations entail. The extent and limits of corporate responsibility are directly linked to the rationale of subjecting corporations to human rights law. As explained, the need for corporate responsibility has arisen as a result of the increased economic power and related influence of these entities.58 This is different from states whose responsibility rests 53
Clapham, supra note 4, at 242. He continues ‘[e]ven though the [core ILO] Conventions might be seen as primarily addressed to states, their impact reaches well beyond those states that can become contracting parties. As companies increasingly come within the reach of these Conventions, it will not be enough simply to avoid conduct that violates their terms. Positive obligations also accrue.’ 54 See Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN GA General Assembly Resolution 53/144, Art 18. 55 See Business & Human Rights Resource Centre webpage at http://www.business-humanrights.org/Home (visited 4 January 2010). 56 Shell, General Business Principles, available online at http://wwwstatic.shell.com/static/public/downloads/corporate_pkg/sgbp_english.pdf (visited 4 January 2010), at 5. 57 ICC and IOE, supra note 5. 58 It is interesting to observe that whereas the 2003 Norms placed responsibilities mainly on transnational corporations and only to a lesser extent on ‘other business entities’ (UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, paras. 20 and 21), the Special Representative does not make such a distinction between national, international and transnational corporations. This was positively appraised by some, but one may question how this relates to the rationale of subjecting corporations to human rights obligations, which is based on their influence and economic power. See for a positive appraisal the IOE, ICC, and Business & Industry Advisory Committee to OECD (BIAC), Joint initial views to the Eight Session of the Human Rights Council on the Third Report of the Special Representative of the UN Secretary-General on Business and Human Rights (May 2008), available online at http://www.ioe-
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on the premise that they exercise public power over a given territory and within a given jurisdiction and economic domain. The extent of corporate responsibilities is therefore less clear-cut than that of states responsibilities and will depend on the extent of power that corporations exercise. In the 2003 Norms, the term ‘sphere of influence’ as first employed in the Global Compact was used to delineate the responsibilities of corporations. In his theory of legal responsibility for corporations, Ratner uses the term ‘nexus’, and explains the spheres in terms of concentric circles where responsibilities diminish as the circles widen. At the heart of the circles, we find the employees and their families, next the vicinity, and even further the entire country where a corporation operates.59 Ruggie has criticized the term ‘sphere of influence’ as being too elusive. By more clearly delineating the basis for corporate responsibilities and their limits, the Special Representative tried to undercut some of the fiercest criticism that was voiced against the 2003 Norms, namely that they failed to differentiate between the state and corporations as duty-holders of human rights. Even if it was accepted that corporations could be subjected to human rights duties, they could never be placed on equal footing with states. This is so for various reasons: corporations do not enjoy full control over a given territory, and they do not exercise full public power. In addition, it should be emphasized that corporations are inherently undemocratic, and as such unfit to make the balancing decisions that the implementation of human rights, and in particular economic and social rights, often require. In contrast to the 2003 Norms, the Final Report of the Special Representative articulates more explicitly that corporations are specialized organs, performing specialized functions, and that therefore they cannot be vested with a general role in relation to human rights.60 Thus, even though the same human rights apply, they may entail distinct duties for different duty-holders, such as the state on the one hand and the corporation on the other hand.61 In this context, Ruggie placed more emphasis on due diligence requirements, which involve ‘steps a corporation must take to become aware of, prevent and address adverse human rights impacts.’62 Three particular steps were mentioned, namely that corporations had to (i) take stock of specific human rights challenges in the state of operation, (ii) list potential human rights impacts of their own activities, and (iii) investigate to what extent they could contribute to human rights violations through their business partners, suppliers and other relationships such as with the state.63 It is to be noted though that identifying obligations is only one of the aspects of corporate responsibility. Equally important is the question of how one can respond to human emp.org/fileadmin/user_upload/documents_pdf/papers/statements_resolutions/english/state_2008may_jointbiaci oe.pdf (visited 4 January 2010). 59 Ratner, supra note 12, at 506-508. 60 Ruggie report 2008, para. 66. 61 As also observed by Ratner, supra note 12. 62 Ruggie report 2008, para. 56. 63 Ibid., para. 57.
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rights violations by corporations. It appears that victims of corporate human rights violations have little to no access to justice at the international level to complain against corporations directly.64 It may be that human rights are best protected within national legal orders in either the host or home state. Yet, that brings us full circle as the human rights framework was relied on in the first place, precisely with a view to overcoming the enforcement gap that exists at the national level. 3. Can International Criminal Law Serve as Human Rights’ Enforcement Tool? The next query therefore is whether international criminal law can serve as the enforcement tool that human rights law lacks. Are the two bodies of international law complementary to the extent that human rights law provides the normative framework and international criminal law the enforcement mechanism? Or do the human rights obstacles equally apply to the discussions regarding corporate criminal responsibility? The relevance of international criminal law to corporate action is borne out by the growing evidence to suggest that corporations have been involved in international crimes.65 Such violations are particularly common in weak governance zones and in conflict areas. Evidence is abundant where private military and security corporations exercise a number of traditionally governmental functions. Human Rights Watch reports, for example, that corporations have provided arms to tyrannical regimes66 and that they have provided logistical support to corrupt regimes to facilitate even more human rights violations.67 Similarly, the involvement of oil, gas and mining corporations operating in the extractive industry in human rights violations and international crimes has been well documented. This has spurred the debate on envisaging a form of corporate responsibility under international criminal law. This debate may seem to be intertwined with the debate on corporate human rights responsibility. After all, human rights law on the one hand and international humanitarian law and international criminal law on the other bear resemblance 64
See, for example, C. M. Dickerson, ‘Human Rights: The Emerging Norms of Corporate Social Responsibility’, 76 Tulane Law Review (2002) 1431-1460, at 1457. 65 For reports and cases see Business & Human Rights Resource Centre website, supra note 58, and Red Flags website, which focuses on the liability risks for companies operating in high-risks zones, http://www.redflags.info (visited 4 January 2010). 66 See Human Rights Watch, Ripe for Reform: Stemming Slovakia’s Arms Trade with Human Rights Abusers, Vol. 16, no. 2(D), February 2004, available online at
