Extracting corporate responsibility: Towards a human rights impact assessment

Cornell International Law Journal

Volumn 40, Issue 1, 2007, Pages 135-169

  Maassarani, Tarek F ^a   Drakos, Margo Tatgenhorst ^b   Pajkowska, Joanna ^b  

^a Neighborhood Legal Services Program

^b Fortuna Classical ^*

Author keywords

[No Author keywords available]

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EID: 34547726671     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (218)

1. The Business and Human Rights Resource Centre website contains a continuously updated compendium of documented allegations and rebuttals of corporate human rights abuses. See Business and Human Rights Resource Center, http://www.business-humanrights.org.
2. See generally INTERNATIONAL COUNCIL ON HUMAN RIGHTS, BEYOND VOLUNTARISM: HUMAN RIGHTS AND THE DEVELOPING INTERNATIONAL LEGAL OBLIGATIONS OF COMPANIES (2002), available at http://www.ichrp.org/paper_files/107_p_01.pdf [hereinafter BEYOND VOLUNTARISM];
3. David Kinley & Junko Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 VA. J. INT'L L. 931, 935 (2004).
4. See, e.g., BEYOND VOLUNTARISM, supra note 3, at 7;
5. Kinley & Tadaki, supra note 3, at 1021-22;
6. VILJAM ENGSTROM, WHO IS RESPONSIBLE FOR CORPORATE HUMAN RIGHTS VIOLATIONS?, http://www.abo.fi/instut/imr/norfa/ville.pdf (last visited Feb. 17, 2005);
7. Developments in the Law: International Criminal Law, 114 HARV. L. REV. 1943, 2025 (2001);
8. Robert McCorquodale, Globalization and Human Rights, 21 HUM. RTS. Q. 735, 763 (1999).
9. See infra note 19 and accompanying text.
10. Jeff Moore, Unocal's Stake in Southeast Asia, ASIA TIMES ONLINE, Jul. 20, 2005, http://www.atimes.com/atimes/Southeast_Asia/GG20Ae03.html.
11. U.N. GLOBAL COMPACT OFFICE & OFFICE OF THE U.N. HIGH COMMISSIONER FOR HUMAN RIGHTS, EMBEDDING HUMAN RIGHTS IN BUSINESS PRACTICE, 17-18 (2004), available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/embedding.pdf [hereinafter EMBEDDING HUMAN RIGHTS]. This recent joint publication of the U.N. Global Compact and High Commissioner for Human Rights offices is an ambitious step in the promotion of human rights through business. Although it is seen only as educational material, it offers practical meaning on the Global Compact principles for companies by presenting four case studies and a policy report on business practice in different industries. The Global Compact will be further discussed below.
12. Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997);
13. see Complaint, Doe v. Unocal Corp., No. 96-CV-06959 (C.D. Cal. filed Oct. 3, 1996) [hereinafter Doe-Unocal Complaint].
14. UNION OF MYANMAR, MINISTRY OF INDUSTRY, COUNTRY REPORT FOR MYANMAR 8, available at http://www.petronas.com.my/intranet/ascope/ascope.nsf/ 3b269571c10e71e5482568960033edc8/d9b2645688f00ced48256b05001451fl/$FILE/ Myanmar.pdf.
15. Id.
16. 28 U.S.C. § 1350 (1789).
17. Id.; Moore, supra note 6.
18. Unocal Corp., 963 F. Supp. 880, aff'd in part rev'd in part, 395 F.3d 932 (9th Cir. 2002).
19. Unocal Corp., 395 F.3d. at 956.
20. Donal O'Neill, Impact Assessments: Preventing Slow-Burn Issues from Bursting into Flames, 2 COMPACT Q. (2005), available at http://www.enewsbuilder.net/globalcompact/e_article000375801.cfm.
21. See, e.g., Chevron's Social Responsibility, http://www.chevron. com/social_responsibility.
22. Consider, for example, the 1971-1992 Trans-Ecuadorian Pipeline Project led by Texaco (now ChevronTexaco). See pages 2-5 of the complaint that initiated the November 1993 lawsuit against Texaco, Aquinda v. Texaco Inc., 945 F. Supp. 625 (S.D.N.Y. 1996), available at http://www.texacorainforest.com/case/ index.htm. For information regarding ChevronTexaco and Halliburton's projects in Angola,
23. see France's Ministry of Finance Summary Report, Evaluation of Angolan Petroleum Sector, http://www.angola.org/referenc/reports/ oil_diagnostic_eng.pdf; Some Transparency, No Accountability: The Use of Oil Revenue in Angola and Its Impact on Human Rights, HUM. RTS. WATCH, Vol. 16, No. 1(A), Jan. 2004, available at http://www.hrw.org/reports/2004/angola0104/angola 0104.pdf.
24. For project details of ExxonMobil's hydrocarbon project in Chad, see The World Bank Group, The Chad Cameroon Petroleum and Development Project: Project Overview, 10 April 2003, available at http://www.worldbank. org/afr/ccproj/project/pro_overview.htm. For information regarding ExxonMobil's project in Indonesia, see Complaint, Doe v. ExxonMobil, No. 01-CV-01357 (D.C Cir. filed Jun. 19, 2001) [hereinafter Doe-ExxonMobil Complaint]. To consider accusations against Shell,
25. see Complaint, Wiwa v. Royal Dutch Petroleum and Shell Transport and Trading Company, P.L.C., No. 96-CV-8386 (S.D.N.Y. filed Nov. 8, 1996), available at http://www.ccr-ny.org/v2/legal/corporate_accountability/ corporateArticle.asp?ObjID=SReYTC75tj&Content=46. For information regarding the Talisman Energy project in Sudan,
26. see Presbyterian Church of Sudan et al. v. Talisman Energy Inc. and the Republic of Sudan, 244 F. Supp. 2d 289 (S.D.N.Y. 2003). Allegations also arose against ExxonMobil in Ache for human rights abuses perpetrated by Exxon security guards.
27. See Doe-ExxonMobil Complaint. The recent World Bank-sponsored Baku-Tblisi-Ceyhan (BTC) Main Export Pipeline has also come under criticism as the Host Government Agreement entered into by Turkey and the consortium of participating oil companies requires the former to compensate the government for any laws that "will disturb the economic equilibrium of the project[,] chilling . . . Turkey's ability to improve its general human rights record." AMNESTY INTERNATIONAL, HUMAN RIGHTS ON THE LINE: THE BAKU-TBILISI-CEYHAN PIPELINE PROJECT 5 (2003), available at http://www.amnestyusa.org/business/humanrightsontheline.pdf;
28. Paul Brown, Human Rights Row Over BP Plan to Lay Turkish Pipeline, THE GUARDIAN, Aug. 31, 2002, available at http://www.guardian.co.uk/oil/story/0,11319,783937,00.html. Although British Petroleum (BP) has just been granted approval to begin a gas pipeline project in West Papua on the island of New Guinea, there is growing concern that this project will result in massive human rights violations.
29. See George Monbiot, In Bed with the Killers, THE GUARDIAN, May 3, 2005, available at http://www.monbiot.com/ archives/ 2005/05/03/in-bed-with-the-killers.
30. See Monbiot, supra note 17.
31. Genoveva Hernandez Uriz, The Application of the World Bank Standards To The Oil Industry, 28 BROOKLYN J. INT'L L. 77 (2002).
32. See, e.g., Unocal Corp., 963 F. Supp. at 884 (outlining the abuses which the State Law and Order Restoration Council levied against locals in Burma when the group was hired to provide labor and security for the Yadana pipeline project);
33. see also Manbiot, supra note 17.
34. See Uriz, supra note 19.
35. For example, over the course of the projected twenty-five year pipeline project, beginning July 2003, Chad will receive estimated revenues of $US 1.8 billion (based on projected production levels of 917 million barrels averaging $15.25 a barrel). See Martin Plaut, Chad Hopes for Oil Wealth, BBC WORLD SERVICE AFRICA, Oct. 3, 2003, available at http://news.bbc.co.uk/1/hi/business/3161216.stm.
36. To date, however, Chad remains one of the five most impoverished countries according to the United Nations 2002 Human Development Index. Id. Although an Oil Revenues Control and Monitoring Board was created to oversee the allocation of revenue, the Chadian government used a $25 million "welcome" bonus to refurbish the ministers' offices and purchase arms and other military equipment to fight rebel groups. Chad's New Oil Bonanza Buys Guns, Not Schools, THE DAILY TELEGRAPH, Oct. 10, 2003, available at http://www.telegraph.co.uk/news/main.jhtml?xml=/ News/2003/10/11/wchad11.xml. Chad also ranked last in Transparency International's 2005 Corruption Perceptions Index, http://www.transparency.org/ policy_research/surveys_indices/cpi/2005.
37. ChevronTexaco's operation in Ecuador dumped approximately 4.3 million gallons of toxic wastewater into the Ecuadorian rainforest per day. MIGUEL SAN SEBASTIAN & JUAN CORDOBA ANTONIO, YANA CURI REPORT: THE IMPACT OF OIL DEVELOPMENT ON THE HEALTH OF THE PEOPLE OF THE ECUADORIAN AMAZON (1999), http://www.amazonwatch.org/amazon/EC/toxico/downloads/ yanacuri_eng.pdf.
38. See generally id.
39. The term "Dutch Disease" originated during the 1960s in reference to the natural gas discoveries in the North Sea which led to an appreciation of Dutch real exchange rates and subsequent adverse effects on Dutch manufacturing. See W.M. Corden, Booming Sector and Dutch Disease Economics: Survey and Consolidation, OXFORD ECONOMIC PAPERS 16 (1984).
40. See PLATFORM RESEARCH, PUMPING POVERTY: BRITAIN'S DEPARTMENT FOR INTERNATIONAL DEVELOPMENT AND THE OIL INDUSTRY, http://www.bankwatch.org/documents/Pumping_poverty_full_web. pdf.
41. See Christin Ebrahimzadeh, Dutch Disease: Too Much Wealth Managed Unwisely, 40 FIN. AND DEV. 1 (2003).
42. See Henry J. Steiner & Philip Alston, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 112-35 (2d ed. 2000);
43. see also Thomas Buergenthal, The Normative and Institutional Evolution of International Human Rights, 19 HUM. RTS. Q. 705-08 (1997).
44. Kinley & Tadaki, supra note 3, at 937.
45. LOUIS HENKIN, THE AGE OF RIGHTS 1-10 (1990);
46. see also Louis Henkin, The Age of Rights, in HUMAN RIGHTS 2-6 (Louis Henkin et al. eds., 1999).
47. Kinley & Tadaki, supra note 3, at 937.
48. Id.
49. Id. at 938. Kinley and Tadaki go on to describe the infamous "race to the bottom," in which states vie to attract desperately needed foreign corporate investment by lowering their environmental and labor standards.
50. Id. at n.12.
51. ATCA allows U.S. district courts to hear "any civil action by an alien for a tort only, committed in violation of the law of nations . . . ." 28 U.S.C. § 1350 (1789). Despite its successes, ATCA suffers from a number of shortcomings, such as (1) ambiguity and narrowness in the modern interpretation of "the law of nations"; (2) the limitations of the "state action" requirement; (3) the difficulty of establishing personal jurisdiction over foreign defendants; (4) the doctrine of forum non conveniens, providing judicial discretion to turn down a case that is deemed more appropriately tried in another forum; and (5) separation of powers issues arising from judicial interference in the Executive's authority over foreign relations. See Kinley & Tadaki, supra note 3, at 940-43. Other examples of extraterritoriality include the U.S. Racketeer Influenced and Corrupt Organizations statute and Torture Victim Protection Act, id. at 939, both of much narrower scope, as well as Belgium's brief interlude with a "universal competence" law that empowered courts to hear human rights cases by anyone, against anyone. Id. at 940. Along with the Belgian law, other recent attempts at domestic extraterritorial legislation in the United States, the United Kingdom, and Australia that specifically targeted corporations' overseas conduct have fallen by the wayside. Id. at 939.
52. BEYOND VOLUNTARISM, supra note 3, at 165. Just as individuals, rebel groups, and international institutions have all been found to bear an international legal personality, there is no theoretical constraint on conferring international legal duties on corporations as well. Id. at 55-58. In some instances corporations already enjoy supranational rights, including the right to privacy, a fair trial, and free expression.
53. See Autronic AG v. Switzerland, Eur. Ct. H.R. (ser. A) at 178 (1990), 12 E.H.R.R. 485 ¶ 47 (1990). Moreover, the preamble to the Universal Declaration of Human Rights declares 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 . . . ." Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 10, 1948) (emphasis added).
54. Kinley & Tadaki, supra note 3, at 948;
55. see also Engstrom, supra note 4, at 50.
56. See Corporate Social Responsibility Initiative, The Initiative Partners, http://sparky.harvard.edu/m-rcbg/CSRI/init_partners.html (listing supporters of the Corporate Social Responsibility Initiative, including Chevron Corporation, The Coca-Cola Company, General Motors, etc.).
57. See American Petroleum Institute, Avila Beach: A New Beginning (2003), http://www.api.org (search for "avila beach");
58. see also Press Release, Socially Responsible Companies Rank High with Job Seekers, http://www.csrwire.com/PressRelease/php?id=6046, Aug. 2, 2006.
59. Mary Robinson, The Business Case for Human Rights, in VISIONS OF ETHICAL BUSINESS (1998).
60. See U.N. Econ. & Soc. Council [ECOSOC], Subcomm. on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/ 2003/12/Rev.2 (Aug. 26, 2003) [hereinafter "the Norms"]; see also U.N. Global Compact website, http://unglobalcompact.org/.
61. See Larry Cata Backer, Multinational Corporations, Transnational Law, 37 COLUM. HUM. RTS. L. REV. 287, 357 (2006).
62. See Kinley & Tadaki, supra note 3, at 993-1020.
63. Fleur Johns, The Invisibility of the Transnational Corporation, 19 MELB. U. L. REV. 893, 900 (1994).
64. See Anne-Marie Slaughter, A Liberal Theory of International Law, 94 AM. SOC'Y INT'L L. PROC. 240, 242 (2000) ("Proponents of a liberal theory of international relations identif[y] multiple bodies of rules, norms and processes that contribute to international order, beginning with voluntary codes of conduct adopted by individual and corporate actors operating in transnational society and working up through transnational and transgovernmental law to traditional public international law . . . .").
65. See C.J. BARROW, ENVIRONMENTAL AND SOCIAL IMPACT ASSESSMENT 65 (1997).
66. See, e.g., International Covenant on Civil and Political Rights arts. 19, 25, Dec. 19, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR];
67. European Convention for the Protection of Human Rights and Fundamental Freedoms art. 10, Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter European Convention];
68. American Convention on Human Rights arts. 13, 23, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 144;
69. African Charter on Human and Peoples' Rights arts. 9, 13, June 27, 1981, 1520 U.N.T.S. 245.
70. See BARROW, supra note 45, at 172 (stating that corporations have already begun to use their own impact assessment models).
71. Id. at 166.
72. Id. at 167 (discussing "little NEPAs" enacted by states).
73. Id at 170.
74. Id.
75. See Australian Government Department of the Environment and Heritage, Referrals, Assessments, and Approvals, http://www.deh.gov.au/epbc/ assessmentsapprovals/ (2006).
76. See Kamta Prasad, Environmental Impact Assessment: An Analysis of the Canadian Experience, 30 INT'L STUDIES 299 (1993).
77. See Cass R. Sunstein, Irreversible and Catastrophic, 91 CORNELL L. REV. 841, 853 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=70532.
78. BARROW, supra note 45, at 171; see also International Association for Impact Assessment, http://www.iaia.org/.
79. See Convention on Environmental Impact Assessment in a Transboundary Context, www.unece.org/env/eia/convratif.html.
80. BARROW, supra note 45, at 170-72.
81. See, e.g., Inter-American Development Bank, http://www.iadb.org/ exr/pic/environmental/environmental.cfm.
82. The World Bank, http://www.worldbank.org.
83. MARIA TERESA SERRA, WHY/WHEN DO WE NEED SEA?, http://info.worldbank.org/ etools/docs/library/107861/sea/sea/materials.html (select "presentation script" link). The differences between SEAs and EIAs revolve around three main issues: the timing of decisions, the nature of decisions, and the level of information, all of which occur at much higher levels of generality in the SEA. Maria Partidario, History, Trend, and Drivers of SEA, available at http://info.worldbank.org/etools/docs/library/107861/sea/sea/pdf/transcript/ m1_partidario.pdf?33540.
84. Rabel J. Burge & Frank Vanclay, Social Impact Assessment, in ENVIRONMENTAL AND SOCIAL IMPACT ASSESSMENT 31 (Frank Vanclay & Daniel A. Bronstein eds., 1995) (emphasis added).
85. C.P. Wolf, What is Social Impact Assessment?, in SOCIAL IMPACT ASSESSMENT 83-84 (1983) (emphasis added).
86. Burge & Vanclay, supra note 61, at 34.
87. Id. at 36.
88. BARROW, supra note 45.
89. See Burge & Vanclay, supra note 61, at 59.
90. Id. at 32.
91. See generally The Interorganizational Committee on Guidelines and Principles for Social Impact Assessment, Guidelines and Principles for Social Impact Assessment (1994) [hereinafter "Guidelines and Principles"] (formed to assist NEPA officials in carrying out their mandate, the Interorganizational Committee includes representatives from several government agencies, academic disciplines, and professional associations), available at http://www.st.nmfs.gov/tm/spo/spo16.pdf;
92. see also Jessica Glicken Turnley, Social, Cultural, Economic Impacts: A Literature Review (Oct. 2002) (prepared for the Environmental Protection Agency), available at http://www.epa.gov/superfund/action/ guidance/SILitRevFinal.pdf.
93. See Burge & Vanclay, supra note 61, at 31.
94. Guidelines and Principles, supra note 68, at 18.
95. Id. at 20.
96. See id.
97. Id. at 22, 24.
98. See id. at 21.
99. See Burge & Vanclay, supra note 61, at 57-60.
100. Id. at 38-39.
101. Guidelines and Principles, supra note 68, at 10-16.
102. See Burge & Vanclay, supra note 61, at 37-38.
103. Id.
104. BARROW, supra note 45, at 230;
105. see also R.M. Muth, & R.G. Lee, Social Impact Assessment in Natural Resource Decision-making: Toward the Structural Paradigm, 4 IMPACT ASSESSMENT BULLETIN 168, 168-83 (1986).
106. BARROW, supra note 45, at 230.
107. O'Neill, supra note 15.
108. See ALAN GILPIN, ENVIRONMENTAL IMPACT ASSESSMENT (EIA) 158 (1995).
109. Id.
110. O'Neill, supra note 15.
111. U.S. FISH & WILDLIFE SERVICE, DRAFT ENVIRONMENTAL IMPACT STATEMENT AND DRAFT REGULATIONS: PROPOSED OIL AND GAS EXPLORATION WITHIN COASTAL PLAIN OF THE ARCTIC NATIONAL WILDLIFE REFUGE S-3 (1982).
112. O'Neill, supra note 15.
113. Id.
114. L. GRAHAM SMITH, IMPACT ASSESSMENT AND SUSTAINABLE RESOURCE MANAGEMENT 125 (1993).
115. A.L. Rydant, A Methodology for Successful Public Involvement, in SOCIAL IMPACT ASSESSMENT 96-98 (1984); Burge & Vanclay, supra note 61, at 60.
116. SMITH, supra note 89, at 4.
117. Id. at 8-9.
118. Id.
119. See supra note 83 and accompanying text.
120. Vienna Declaration and Programme of Action, U.N. Doc. A/CONF. 157/23 (July 12, 1993).
121. See supra Figure 1.
122. See Global Reporting Initiative, Sustainability Reporting Guidelines 53-54 (2002), available at http://www.globalreporting.org/ ReportingFramework/G3Online/.
123. See id. at 24.
124. Guidelines and Principles, supra note 68, at 10-16.
125. The Humanist Committee on Human Rights is a Dutch organization, founded in 1981, with considerable influence on Dutch and European human rights issues, partly through its facilitation of a dialogue among experts. At a workshop in March 2004, they devised the following steps to an HRIA: i) assessment of the actual human rights situation; ii) political analysis; iii) development of a view on the desired situation; iv) selection of essential questions; v) formulation of policy options and activities; vi) decision on policy and activities; vii) monitoring; and viii) evaluation. Marike Radstaake & Jan de Vries, "Reinvigorating Human Rights in the Barcelona Process": Using Human Rights Impact Assessment to Enhance Mainstreaming of Human Rights 14-15 (March 2004) (presented at the Fifth Mediterranean Social and Political Research Meeting, Workshop XIV), available at http://www.hom.nl/publicaties/Morocco_paper_and_bibliography. pdf.
126. For a helpful approach for evaluating baseline conditions, see the Danish Institute for Human Rights' Human Rights Compliance Assessment [hereinafter "the HRCA"]; M. Jungk, Building a Tool for Better Business Practice: The Human Rights Compliance Assessment (2003).
127. These classifications, drawn from the IA tradition, are fairly intuitive and will help organize decision-making according to relevant criteria. Nonetheless, their application to human rights will require substantial clarification and harmonization. The Human Rights Richter scale discussed in Embedding Human Rights, supra note 7, at 59, offers a useful starting point for an analysis of significance.
128. The HRCA, supra note 101, a tool for assessing on-going human rights compliance, is instructive in this respect as well.
129. Radstaake & de Vries, supra note 100, at 13.
130. Daniel Kaufmann, Corruption: The Facts, 107 FOREIGN POL'Y 114, 114 (1997);
131. see also Susan Rose-Ackerman, The Political Economy of Corruption - Causes and Consequences, WORLD BANK, Apr. 1996;
132. Mark Stevenson, U.N. Countries Reveal Costs of Corruption, ASSOCIATED PRESS NEWS WIRE, Dec. 10, 2003.
133. The intellectual seeds for a human right to be free from corruption are nonetheless being sown. See Nihal Jayawickrama, Corruption: A Violation of Human Rights? (Transparency Int'l Working Paper, 1998), available at http://www.transparency.org/working_papers/jayawickrama/ jayawickrama.html;
134. Ndiva Koefele-Kale, The Right to a Corruption-Free Society as an Individual and Collective Human Right, 34 INT'L LAWYER 1, 152-53 (2000).
135. UNITED NATIONS, THE GLOBAL COMPACT (2004), available at http://www.unglobalcompact.org/docs/about_the_gc/2. 0.1.pdf.
136. The Norms, supra note 40.
137. Press Release, Secretary-General, Secretary-General Proposes Global Compact on Human Rights, Labour, Environment, in Address to World Economic Forum in Davos, U.N. Doc. SG/SM/6881 (Feb. 1, 1999).
138. THE GLOBAL COMPACT, supra note 107.
139. The Ten Principles of the UN Global Compact, http://www.unglobalcompact. org/AboutTheGC/TheTenPrinciples/.
140. Global Compact Principle One, http://www.unglobalcompact.org/AboutThe GC/TheTenPrinciples/principle1.html.
141. Global Compact Principle Two, http://www.unglobalcompact.org/AboutThe GC/TheTenPrinclples/principle2.html.
142. See id.; see also Global Compact Principle One, supra note 112.
143. Mahmood Monshipouri et al., Multinational Corporations and the Ethics of Global Responsibility, 25 HUM. RTS. Q. 965, 980 (2003).
144. See Communication on Progress Overview, http://unglobalcompact. org/communicatingprogress (2003). In order to protect the integrity of the United Nations and the GC, rigorous and transparent procedures were developed to communicate progress. Participants failing to submit the mandated progress reports by June 30, 2005 have been considered inactive until such submission is made (GC Integrity Measures). Global Compact also actively consults with its members on how to enhance the quality of its engagement mechanisms and ensure continuous quality improvement, integrity, and accountability. Another independent initiative on promoting human rights in business practices culminated on January 28, 2005 with the launching of world's first website devoted to the topic of business and human rights. See Business & Human Rights the Resource Centre, www.business-humanrights.org.
145. The Norms, supra note 40.
146. AMNESTY INTERNATIONAL, THE UN HUMAN RIGHTS NORMS FOR BUSINESS: TOWARDS LEGAL ACCOUNTABILITY 4 (2004), available at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/IOR420022004ENGLISH/ $File/IOR4200204.pdf.
147. The Norms, supra note 40, ¶¶ 2-19 (further describing TNCs' obligations with respect to national sovereignty, human rights, consumer protection and environmental protection, followed by five general provisions of implementation).
148. Id. ¶¶ 15-16.
149. U.N. Econ. & Soc. Council [ECOSOC], Subcomm. on the Promotion and Protection of Human Rights, Report on the Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/2005/91 (Feb. 15, 2005), available at http://www.business-humanrights.org/Categories/UNintlorgs/ UNintergovernmentalorgs/UN/SubmissionstoUN-2004consultation-business humanrights. Following a day of consultation with a wide range of actors, including businesses, inter-governmental organizations, and NGOs, the report was submitted to the Commission on Human Rights in February 2005.
150. Id. ¶ 52.
151. U.N. Econ. & Soc. Council [ECOSOC], Comm. on Human Rights, Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2005/ L.87 (Apr. 15, 2005).
152. U.N. Econ. & Soc. Council [ECOSOC], Comm. on Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, ¶¶ 35, 76, U.N. Doc. E/CN.4/ 2006/97 (Feb. 22, 2006).
153. BUSINESS LEADERS INITIATIVE ON HUMAN RIGHTS, A GUIDE FOR INTEGRATING HUMAN RIGHTS INTO BUSINESS MANAGEMENT (2005), available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/ guide_hr.pdf. Consider the following subheadings for the Guide's chapter on "Measuring impact and auditing: key steps for your business"
154. Set relevant performance indicators for measuring human rights impact across the different functions of your business
155. Undertake human rights-based audits
156. Analyze the results of audits and use results to inform strategic development of your business
157. Id. at 32.
158. U.K. Department for International Development, Launch of Extractive Industries Transparency Initiative, http://www.dfid.gov. uk/news/files/eiti_website_launch.asp [hereinafter "Launch"];
159. Extractive Industries Transparencies Initiative, About EITI, http://www.eitransparency.org/section/abouteiti [hereinafter "EITI"].
160. EITI, supra note 126.
161. Launch, supra note 126.
162. Press Release, Global Witness, EITI on the Right Track: Let's Go Further and Faster, Mar. 16, 2005, available at http://www. globalwitness.org/press_releases/display2.php?id=280.
163. For example, the World Bank Group is extensively involved in this initiative. See id.
164. See Allens Arthur Robinson, The Equator Principles - Guidelines for Responsible Project Financing, in FOCUS: PROJECT FINANCE (Aug. 2005), available at http://www.equator-principles.com/documents/ aar_article.pdf.
165. See Press Release, International Finance Corporation, Leading Banks Announce Adoption of Equator Principle (June 4, 2003), available at http://ifcln001.worldbank.org/ifcext/pressroom/ifcpressroom.nsf/ pressrelease?openform&9BD14621E26623B78525 6D3A0071E0A4;
166. see also Frequently Asked Questions about the Equator Principles, http://www.equator-principles.com/faq.shtml. On April 5, 2005, JPMorgan Chase became "the third U.S. bank and the 30th financial institution globally to adopt the Equator Principles." Press Release, The Equator Principles, JPMorgan Chase Adopts the Equator Principles (Apr. 25, 2005), available at http://www.equator-principles.com/ index.html.
167. See The "Equator Principles": A Financial Industry Benchmark for Determining, Assessing and Managing Social & Environmental Risk in Project Financing (Jul. 2006), available at http://www.equator- principles.com/documents/Equator_Principles.pdf.
168. Id.
169. Int'l Labor Org. [ILO], Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 204th Sess., 83 I.L.O. Official Bull. (2000), available at http://www.ilo.org/public/english/employment/ multi/download/english.pdf;
170. ILO Declaration on Fundamental Principles and Rights at Work, Document CIT/1998/ PR20A (June 1998), available at http://www.ilo.org/dyn/ declaris/declarationweb.static_jump?var_pagename=DECLARATIONTEXT; The Organization for Economic Co-Operation and Development, The OECD Guidelines for Multinational Enterprises (2000), available at http://www.oecd.org/dataoecd/56/36/1922428.pdf.
171. Embedding Human Rights, supra note 7. See also Business Leaders' Initiative on Human Rights, U.N. Global Compact, and Office of the U.N. High Commissioner for Human Rights, A Guide to Integrating Human Rights in Business Management (December 2005) for a persuasive presentation of the "business case."
172. The Norms, supra note 40, Preamble.
173. Potential development of HRIA would help to overcome the main weaknesses in current approaches to CSR, as identified by the Chatham House Report: excessive of CSR initiatives at the international level; a lack of clarity about how these initiatives relate to each other; an excessive focus on getting businesses to make commitments to CSR without follow-up assistance on implementing them; and finally, an absence of credible monitoring and verification processes. See FANNY CALDER & MALAIKA
174. CULVERWELL, FOLLOWING UP THE WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT COMMITMENTS ON CORPORATE SOCIAL RESPONSIBILITY 7 (Final Report, 2005), available at http://www.chathamhouse.org.uk/pdf/research/ sdp/CSRWSSDf.pdf.
175. See Debora L Spar, Creating Corporate Social Responsibility, BLUEPRINT MAGAZINE, June 1, 2000, available at http://www.ppionline.org/ppi_ci.cfm?contentid= 964&KnlgAreaID=0.
176. See CALDER & CULVERWELL, supra note 138, at 50.
177. See Spar, supra note 139.
178. See Robinson, supra note 39.
179. See id.
180. Global Compact Principle One, supra note 112.
181. Id.
182. Robinson, supra note 39.
183. A letter excerpt from a Consultant to Unocal, 1995. Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1299-1300 (CD. Cal. 2000).
184. Terry Collingsworth, Separating Fact from Fiction in the Debate over Application of the Alien Tort Claims Act to Violations of Fundamental Human Rights by Corporations, 37 U.S.F.L. REV. 563, 564 (2002).
185. See id. at 578-86.
186. Cynthia A. Williams & John M. Conley, Is There an Emerging Fiduciary Duty to Consider Human Rights?, 74 U. CIN. L. REV. 75, 92 (2005).
187. Daphne Eviatar, A Big Win for Human Rights, THE NATION, May 9, 2005, available at http://www.thenation.com/doc/ 20050509/eviatar.
188. These were Unocal's words in the lawsuit against its insurance companies. Id.
189. Id.
190. Id.
191. Kenny Bruno & Jim Valette, Cheney & Halliburton: Where the Oil Is, 22 MULTINATIONAL MONITOR 22 (2001).
192. Lisa Girion, Pipeline to Justice?, L.A. TIMES, June 15, 2003, at A32.
193. See U.S. Department of State, 2005 Investment Climate Statement - Burma, available at http://www.state.gov/e/eb/ifd/2005/41990.htm.
194. See Unocal Corp., 110 F. Supp. 2d at 1296.
195. See id. (stating that Burma's ruling military government has changed its name to the State Peace and Development Council).
196. See id.
197. See Stephen Erlanger, Slim Chance is Seen for Burmese Democracy, N.Y. TIMES, Mar. 28, 1991, at A15.
198. SLORC Coup in Burma (2006), http://www.globalsecurity.org/military/world/ war/slorc.htm.
199. Id.
200. Unocal Corp., 110 F. Supp. 2d at 1297.
201. Id.
202. U.S. Department of State, Burma Report on Human Rights Practices for 1996 (1997), http://www.state.gov/www/global/human_rights/1996_hrp_report/ burma.html.
203. See id. The report continues: "The Government's statistics on these contributions and infrastructure projects suggest that the market value of these uncompensated 'contributions' has increased since 1992. According to the Prison Department exhibit in the Defense Services Museum in Rangoon, the quantity of stone quarried by prisoners increased more than fourfold between fiscal year 1988/89 and fiscal year 1994/95." Id.
204. Although experience from the Chad-Cameroon Pipeline Project has not brought about the desired result, the World Bank Group took unique steps to create a project that would give Chad control of its own profits while maintaining accountability and fostering opportunities for growth. Signs of corruption and mismanagement are already apparent in Chad, but with modification this model could prove beneficial in future projects. In the Chad case, all oil royalties are first placed in a transparent escrow account from which various organizations receive loan repayments. The remaining profits are subject to the newly created Oil Revenues Control and Monitoring Board (part of the World Bank created Petroleum Revenue Management Law). This nine-member Chadian committee is composed of various members of society and government and is to allocate funds from the escrow account. The rules specify that 10% of the Chadian money be set aside for future generations and that 5% go to the oil producing regions for social development programs. 80% of the royalties are to be applied to education, health, infrastructure, rural development, environment, water and other various social projects. The remaining money is to be allocated to government operating costs. See The World Bank Group, The Chad-Cameroon Pipeline: What is the Revenue Management Program? (2006), available at http://www.worldbank.org/afr/ccproj/ (select "Revenue Management" link).
205. Unocal Corp., 110 F. Supp. 2d at 1299.
206. For more information regarding these independent consulting corporations, see Jane's Strategic Advisory Services, http://www2.janes.com/public/ trans_news_analysis.html, and Rand Policy Research, http://www.rand.org/.
207. Although questionnaires were conducted in the Chad/Cameroon pipeline project, the military that had committed recent atrocities accompanied the interviewers, which scared the local population and interfered with an accurate assessment of the situation. See Genoveva Hernandez Uriz, To Lend or Not to Lend: Oil, Human Rights, and the World Bank's Internal Contradictions, 14 HARV. HUM. RTS. J. 197, 221 (2001).
208. Unocal Inc., 110 F. Supp. 2d at 1301.
209. Id. ("In June 1995 Amnesty International sent David Garcia, a Unocal employee, a copy of its 1994 Human Rights Report on Burma. Attached was a personal cover note addressed to Mr. Garcia which warns that there is a disturbing quote from Thein Oo Po Saw, director of the Scientific and Technology Research Department of the Ministry of Industry. His comment could mean that the government plans to use 'voluntary' labor in conjunction with the pipeline. We know that from long experience with this regime that what they call 'voluntary' labor is called forced labor in other parts of the world; and forced labor not of convicts, but of ordinary citizens. Myanmar forced labor conditions have been documented to be brutal and even deadly.").
210. Id. at 1302.
211. Id.
212. Id. at 1297.
213. Rosabeth Moss Kanter, From Spare Change to Real Change: The Social Sector as Beta Site for Business Innovation, 77 HARV. Bus. REV. 122, 124 (1999).
214. See HRCA, supra note 101. The four-year research project to develop the Human Rights Compliance Assessment was sponsored by the Danish Foreign Ministry (DANIDA), the Confederation of Danish Industries (DI), and the Danish Industrialization Fund for Developing Countries (IFU). User's Guide to the HRCA Quick Check, http://www.humanrightsbusiness.org/pdf_files/ Introduction%20to%20HRCA%20Quick%20Check.pdf. HRCA comprises "approximately 350 questions and more than 1,000 corresponding human rights indicators, developed from the Universal Declaration of Human Rights and over 80 other major human rights treaties and ILO conventions." Human Rights Compliance Assessment, http://www.humanrightsbusiness.org/040_hrca.htm.
215. Rights & Democracy Initiative on Human Rights Impact Assessment, http://www.dd-rd.ca/site/what_we_do/index.php?subsection=projects&lang= EN&id=1489.
216. Radstaake & de Vries, supra note 100.
217. NGO Working Group on EDC, Risk, Responsibility and Human Rights: Taking a Rights-based Approach to Trade and Project Finance (July 2004), available at http://www.halifaxinitiative.org/updir/ Final_HR_discussion_paper.pdf. The International Finance Corporation is also funding the development of "an actual impact assessment guide." According to its authors the guide will review the entire spectrum of human rights, focusing on the areas where the responsibilities of companies are clearest but reminding companies that they should review all areas of rights relevant to their operations. Human rights issues will be addressed at both country and project levels. The country assessment will focus on what impact human rights challenges can have on projects and vice versa. At the project level the guide will take companies through a methodology that includes outlining each step of a typical impact assessment, identifying what human rights considerations should be taken into account at each step, and explaining the implications of a human rights approach for the impact assessment process.
218. U.N. Econ. & Soc. Council [ECOSOC], Comm'n on Human Rights, Promotion and Protection of Human Rights: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 1 19, U.N. Doc. E/CN.4/2006/97 (Feb. 22, 2006).