Regulating corporations under international law: From human rights to international criminal law and back again

Journal of International Criminal Justice

Volumn 8, Issue 3, 2010, Pages 725-743

  van den Herik, Larissa ^a   Černič, Jernej Letnar ^b  

^a LEIDEN UNIVERSITY   (Netherlands)

^b EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955251761     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mqq031     Document Type: Article

References (72)

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), § 12, available online at http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf (visited 4 January 2010), further referred to as 'Ruggie report 2008'.
2. 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.
3. 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.
4. A. Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006), at 3.
5. International Chamber of Commerce (ICC) and International Organization of Employers (IOE), Joint views of ICC and the IOE on the draft "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights submitted to the Members of the United Nations Commission on Human Rights, March 2004, available online at http://www.ioe-emp.org/fileadmin/user_upload/documents_pdf/papers/statements_resolutions/english/state_2004march_subcomm.pdf (visited 4 January 2010).
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. 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, at 37, noting that 'without common international standards, a race to human rights bottom will only be too likely'.
8. Ruggie report 2008, § 3
9. 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.
10. S. Ratner, 'Corporations and Human Rights: A Theory of Legal Responsibility', 111 Yale Law Journal (2001) 443-545, at 395.
11. UNHRC, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (prepared by John Ruggie), UN Doc. E/CN.4/2006/97 (2006), 22 February 2006, § 53, further referred to as 'Ruggie report 2006'.
12. J.H. Knox, 'Horizontal Human Rights Law', 102 American Journal of International Law (AJIL) (2008) 1-47.
13. UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), 26 May 2004, § 8.
14. N. Jägers, Corporate Human Rights Obligations: In Search of Accountability (Antwerp: Intersentia, 2002), at 75-95.
15. D. Weissbrodt and M. Kruger, 'Current Developments: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights', 97 AJIL (2003) 901-922, at 913-915, 921.
16. 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.
17. P.T. Muchlinski, Multinational Enterprises and the Law (Oxford: Oxford University Press, 2007) 519-524.
18. 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.
19. P.T. Muchlinski, 'Human Rights and Multinationals - is there a Problem?' 77 International Affairs (2001) 31-48.
20. UNHRC, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts: Report of the Special Representative of the Secretary-General (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), § 44, further referred to as 'Ruggie report 2007'.
21. Declaration of C. Greenwood, Presbyterian Church of Sudan v. Talisman Energy Inc., Civil Action No.1 CV 9882 (AGS), (7 May 2002) 8, § 20 (on file with the authors).
22. C.M. Vasquez, 'Direct vs. Indirect Obligations of Corporations under International Law', 43 Columbia Journal of Transnational Law (2005) 927-959, at 940.
23. V. Nerlich makes a similar argument regarding the question whether corporations are bound by the prohibitions underlying core crimes of international criminal law in his contribution to this issue of the Journal.
24. 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.
25. Paris Convention on the Third Party Liability in the Field of Nuclear Energy, done 29 July 1960, 956 UNTS 251
26. The Brussels Convention Relating to Civil Liability in the field of Maritime Carriage of Nuclear Material, 17 December 1971, 974 UNTS 255
27. The International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969: Art. 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'.
28. 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).
29. The International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, Art. 1(1).
30. 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, Art. 2(6).
31. 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).
32. Ruggie report 2007, § 19
33. See the Universal Declaration of Human Rights (UDHR), adopted and proclaimed by UN General Assembly Res. 217A (III) of 10 December 1948.
34. L. Henkin, 'The Universal Declaration at 50 and the Challenge of Global Markets', 25 Brooklyn Journal of International Law (1999) 17-25, at 25.
35. UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003 (UN Norms), Section 1.
36. 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'.
37. Ruggie report 2006, § 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'.
38. Ruggie Report 2008, § 69
39. Ruggie Report 2006, § 60
40. Ruggie Report 2008, § 9
41. 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).
42. UNHRC, 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, § 46.
43. J. Ruggie, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Business and Human Rights: Further steps toward the operationalization of the "protect, respect and remedy" framework, UN Doc. A/HRC/14/27, 9 April 2010, available at http://www.reports-and-materials.org/Ruggie-report-2010.pdf (visited 28 May 2010), § 58.
44. 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 UDHR (1948), the Rio Principles on the Environment and Development (1992) and the ILO's Fundamental Principles on Rights at Work (1988).
45. See also http://www.unglobalcompact.org/index.html (visited 4 January 2010).
46. See UN Global Compact, Principle 1
47. See UN Global Compact, Principle 2
48. The OECD Guidelines for Multinational Enterprises: Text, Guidelines, Commentary, DAFFE/IME/WPG (2000) 15 Final (Paris: OECD, 2001)
49. ILO, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 204th Sess., 83 ILO Official Bulletin (2000), § 8.
50. For a critical discussion, see J.L. Černič, 'Corporate Responsibility for Human Rights: Analyzing the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy', 6 Miskolc Journal of International Law (2009) 24-34.
51. 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'.
52. 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 General Assembly Res. 53/144, Art. 18.
53. See Business & Human Rights Resource Centre webpage at http://www.business-humanrights.org/Home (visited 4 January 2010).
54. 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.
55. 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, §§ 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.
56. 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-emp.org/fileadmin/user_upload/documents_pdf/papers/statements_resolutions/english/state_2008may_jointbiacioe.pdf (visited 4 January 2010).
57. Ruggie report 2008, § 66
58. Ruggie report 2008, § 56
59. See, for example, C.M. Dickerson, 'Human Rights: The Emerging Norms of Corporate Social Responsibility', 76 Tulane Law Review (2002) 1431-1460, at 1457.
60. Red Flags website, which focuses on the liability risks for companies operating in high-risk zones, http://www.redflags.info (visited 4 January 2010).
61. See Human Rights Watch, Ripe for Reform: Stemming Slovakia's Arms Trade with Human Rights Abusers (2004), available online at http://www.hrw.org/en/reports/2004/02/10/ripe-reform.
62. Angola Unravels: The Rise and Fall of the Lusaka Peace Process (1999), available at http://www.hrw.org/reports/1999/angola/, ch. IX, 'Arms Trade and Embargo Violations', at 89-141.
63. Afghanistan: Crisis of Impunity-The Role of Pakistan, Russia, and Iran in Fueling the Civil War (2001), available at http://www.hrw.org/reports/2001/afghan2/, 4, 30-31.
64. Worldwide Production and Export of Cluster Munitions (2005), available at http://hrw.org/backgrounder/arms/cluster0405/, 3, 12-14 (websites visited 4 January 2010).
65. Human Rights Watch, Sudan, Oil, and Human Rights (2003), available online at http://www.hrw.org/reports/2003/sudan1103/ (visited 4 January 2010), at 41-42, 65-69, 189, 251-273, 428-429, 434-435, 438-449, 524.
66. See also D. Watch, Bad Connections: How your mobile phone is linked to abuse, fraud and unfair mining practices in DR Congo (May 2008), available online at http://www.danwatch.dk/images/rapport_version_1.1.pdf (visited 4 January 2010).
67. Judgment, Kunarac and others (IT-96-23-T), Trial Chamber, 22 February 2001, § 467
68. R (on the application of Al-Skeini and others) v. Secretary of state for Defence [2007] UKHL 26; Banković v. Belgium, ECtHR (2001) 11 BHRC 435; Issa and Others v. Turkey, ECtHR (20 04) 41 EHRR 567, §§ 69-71; Alejandre et al. v. Cuba, IACHR Case 11.589, Report No. 86/99, 29 September, 1999.
69. See also J. Kyriakakis, 'Corporations and the International Criminal Court: The Complementarity Objection Stripped Bare', 19 Criminal Law Forum (2008) 115-151, at 151.
70. Arguing that 'the legal persons proposal does not jeopardize the complementarity regime of the Court. The system is far more adaptable than such a claim suggests. Rather the complementarity regime itself provides a most compelling argument in favour of the ICC as a mechanism to address corporate misconduct'.
71. Prosecutorial Strategy 2009-2012,The Hague, 1 February 2010, § 19
72. In given situations, this may be different. An example of a business actor who did play an important part in the organization of an international crime by financing it is Felicien Kabuga, indictee at large from the ICTR; see UN Doc. S/RES/1534, 26 March 2004, § 2.