Changing international 'Subjectivity' and rights and obligations under international law-Status of corporations

Utrecht Law Review

Volumn 8, Issue 1, 2012, Pages 145-154

  Pentikäinen, Merja ^a  

^a UNIVERSITY OF TURKU   (Finland)

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[No Author keywords available]

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EID: 84865579979     PISSN: None     EISSN: 1871515X     Source Type: Journal    
DOI: 10.18352/ulr.185     Document Type: Article

References (69)

1. See e.g. I. Brownlie, Principles of Public International Law, 1999, pp. 57-68.
2. A. Cassese, International Law, 2005, pp. 71-150.
3. M. Dixon, Textbook on International Law, 2007, pp. 111-141.
4. The word 'subjectivity' is probably not a very eloquent English expression. It is said to be a Germanism (J. Klabbers, An Introduction to International Institutional Law, 2009, p. 40, fn. 10), but since it does appear in the literature on international law addressing the subjects of international law, the author feels it is appropriate to use it.
5. Brownlie's definition echoes the elements put forth in the ICJ's advisory opinion on Reparation for Injuries Suffered in the Service of the United Nations.
6. See the remarks on this case below. Brownlie considers this conventional definition to be circular when it recognizes the capacity to act at the international level of an entity that is already capable of acting at the international level.
7. See also A. Clapham, Human Rights Obligations of Non-State Actors, 2006, p. 64.
8. Challenging this circularity, see A. eijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law, 2001, p. 24.
9. Klabbers points out that hypothetically entities can possess legal personality under any legal system, p. 44.
10. J. Wouters et al., 'Introductory Remarks', in J. Wouters et al. (eds.), Accountability for Human Rights Violations by International Organisations, 2010, pp. 1-18, at p. 6.
11. In his publication from the 1970s C.N. Okene considers international 'subjectivity' through treaty-making capacity.
12. See C.N. Okene, Controversial subjects of contemporary international law. An examination of the new entities of international law and their treaty-making capacity, 1974.
13. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, (1949) ICJ Reports 174, at p. 179.
14. The advisory opinion arose out of the establishment of the state of Israel. The resulting unrest in the Middle East forced the UN to nominate a mediator, the Swedish Count Folke Bernadotte, to consider the issue. Count Bernadotte and a number of his associates were killed in Jerusalem in September 1948, allegedly by a private gang of terrorists. After this incident the UN General Assembly sought an advisory opinion from the ICJ. The question was raised as to whether the UN, as an organisation, could claim reparation for these injuries from the responsible state.
15. D.E. Arzt & I.I. Lukashuk, 'Participants in International Legal Relations', in C. Ku & P.F. Diehl (eds.), International Law. Classic and Contemporary Readings, 1998, pp. 155-176, at p. 155.
16. For discussion of whether or not international organisations are bound by international human rights obligations under international law, see O. De Schutter, 'Human Rights and the Rise of International Organisations: The Logic of Sliding Scale in the Law of International Responsibility', in J. Wouters et al. (eds.), Accountability for Human Rights Violations by International Organisations, 2010, pp. 51-128, at pp. 55-73, 104, 125.
17. Insurgents and national liberation movements are noted to have special links to states since they are entities potentially on their way to becoming states. The former come into being through their struggle against the state to which they previously belonged. The latter group is viewed as consisting of organised groups particularly fighting against colonialism, racist regimes or alien domination. This legitimisation is based on the principle of self-determination. Cassese labels the Holy See, the sovereign order of Malta and the International Committee of the Red Cross as being sui generis entities. Clapham calls de facto regimes, the Holy See and the Order of Malta as the entities with state-like qualities also often counted among the subjects of international law.
18. For Brownlie, 'established legal persons' include states, political entities legally proximate to states, condominiums, internationalised territories, international organisations, agencies of states and agencies of organisations. Non-self-governing peoples, states in statu nascendi, legal constructions, belligerent and insurgent communities, entities sui generis and individuals he describes as having 'special types of personality'.
19. For the denial of international 'subjectivity' of individuals (in earlier literature), see e.g. H. Lauterpacht, International Law and Human Rights, 1968, pp. 6-9.
20. See Art. 5 of the Statute of the ICC, Rome, 17 July 1998, in force 1 July 2002, UN Doc. A/CONF.183/9, United Nations Treaty Series, Vol. 2187. Nowadays individual criminal responsibility under international law also extends to such international crimes as slavery, disappearances and torture.
21. These entities have been described using different combinations of the terms multinational, transnational, business and enterprise. Regardless of the exact term used, this kind of entity is characterised by its ability to operate across national borders and outside the effective supervision of domestic and international law that makes them important actors from the viewpoint of international law. M.T. Kamminga & S. Zia-Zarifi, 'Introduction', in M.T. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law, 2000, pp. 1-15, at pp. 2-3.
22. For the remarks on defining multinational corporations, see also C. Wells & J. Elias, 'Catching the Conscience of the King: Corporate Players on the International Stage', in P. Alston (ed.), Non-State Actors and Human Rights, 2005, pp. 141-175, at pp. 148-150.
23. S. Tully, Corporations and International Lawmaking, 2007, p. 323.
24. Brownlie notes that legal persons created by states by treaty nowadays perform important functions, and the status of the bodies is regulated by the national law of one or more of the parties. Brownlie calls these bodies 'intergovernmental corporations of private law' and 'établissements publics internationaux'. A corporation may receive a privileged status in (even independence from) national law, and it may have both a considerable quantum of delegated powers and organs with autonomy in decision- and rule-making. In this case, the body concerned has the characteristics of an international organisation. Despite this, Brownlie does not view it as representing a distinct species of legal person on the international plane.
25. J.A. Zerk, Multinationals and Corporate Social Responsibility. Limitations and Opportunities in International Law, 2006, p. 75.
26. This is the case before the International Convention for the Settlement of Investment Disputes (ICSID) Tribunals. Corporations may also submit amicus briefs to WTO panels.
27. The Iran-United States Claims Tribunal was established in the aftermath of the Iranian Islamic revolution of 1979 to resolve claims between Iran and the United States as well as between Iranian and US nationals, including corporations.
28. A corporation could be a respondent in the Seabed Disputes Chamber of the Law of the Sea Tribunal. See Arts. 187 and 291(2) of the UN Convention on the Law of the Sea (1982), United Nations Treaty Series, Vol. 1833.
29. [1979] ECHR, Ser. A. No. 30.
30. Clapham refers to the case of Agrotexim and Others v Greece, judgment of 24 October 1995.
31. Case of OAO Neftyanaya Kompaniya Yukos v Russia, judgment of 20 September 2011, [2011] ECHR 1342.
32. Among other things, the Court found that the respondent state had violated the company's rights under Art. 6 of the European Convention on Human Rights (right to a fair trial).
33. For remarks on the standing of corporations before the Strasbourg Court, see S. Joseph, 'Scope of Application', in D. Moeckli et al. (eds.), International Human Rights Law, 2010, pp. 150-170, at p. 153.
34. In his earlier writings Clapham noted that non-state bodies, including corporations, have long been subject to human rights obligations, as implemented and enforced under domestic and regional law.
35. See A. Clapham, Human Rights in the Private Sphere, 1993.
36. It is worth noting that corporate actors can contribute to international law making through the work of the International Labour Organization (ILO) in which 'tripartism' enables the representation of employers' interests and thereby can incorporate corporate contributions in the work of the organisation.
37. For some remarks on historical developments of corporate contributions to international law making, see pp. 320-321.
38. This is noted to be a result of concern over the practicalities of prosecuting corporate defendants, rather than doubt as to whether international criminal law actually applies to companies.
39. See more elaborately A. Clapham, 'The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court', in M.T. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law, 2000, pp. 139-195, at pp. 143-160.
40. Several international treaties have expressly included corporate crimes, including the Apartheid Convention, and treaties governing corruption and bribery, hazardous wastes, and other environmental violations.
41. B. Stephens, 'The Amorality of Profit: Transnational Corporations and Human Rights', 2002 Berkeley Journal of International Law 20, pp. 45-90, at p. 77.
42. For regimes of domestic regulation (including civil liability) of corporate behaviour, see R.G. Steinhardt, 'Corporate Responsibility and the International Law of Human Rights: The Next Lex Mercatoria', in P. Alston (ed.), Non-State Actors and Human Rights, 2005, pp. 177-226, at pp. 187-202.
43. Corporations acquired benefits under international law when a huge number of international treaties contributed to a conducive business environment.
44. The Special Representative of the UN Secretary General on Business and Human Rights (SRSG) points to a far-reaching role of bilateral investment treaties and host government agreements.
45. See SRSG 2010, infra note 40, p. 6.
46. For advantages of direct regulation of multinational corporations, see S. Joseph, 'An Overview of the Human Rights Accountability of Multinational Enterprises', in M.T. Kamminga & S. Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law, 2000, pp. 75-93, at pp. 87-88.
47. The SRSG draws attention to the use of extraterritorial jurisdiction. See e.g. SRSG 2010, infra note 40, p. 11.
48. SRSG 2011, infra note 40, p. 7.
49. The existing international regulation of business conduct in the area of human rights is characteristically of a non-binding nature.
50. See also D. Weissbrodt & M. Gruger, 'Human Rights Responsibilities of Businesses as Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights, 2005, pp. 315-350.
51. The UN Secretary General appointed Professor John Ruggie from Harvard University as his Special Representative on this matter. The most important reports summarizing the work of the SGSR are the reports published in 2008, 2009 and 2010, as well as the final report of 2011: Reports of the SRSG on the issue of human rights and transnational corporations and other business enterprises, John Ruggie: 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, A/HRC/8/5, 2008 (SRSG 2008).
52. Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Business and human rights: Towards operationalizing the 'protect, respect and remedy' framework, A/HRC/11/13, 2009 (SRSG 2009).
53. Business and human rights: Further steps towards the operationalization of the 'protect, respect and remedy' framework, A/HRC/14/27, 2010 (SRSG 2010).
54. Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework, Advanced edited version, A/HRC/17/31, 2011 (SRSG 2011).
55. The SRSG's Framework is intended to apply to all states and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.
56. Note e.g. the critical remarks of Radu Mares.
57. The SRSG notes that the normative contribution of his proposal does not lie in the creation of new international law obligations but 'in elaborating the implications of existing standards and practices for states and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved'.
58. See also Annex, p. 6.
59. According to the SRSG, where a business enterprise is controlled by the state, or where its acts can be attributed otherwise to the state, an abuse of human rights by the business enterprise may entail a violation of the state's own international law obligations.
60. M. Rajavuori, Corporate Human Rights Due Diligence and Congolese Conflict Mineral Supply Chains, Master of Laws thesis, Law Faculty of the University of Turku, 2011.
61. The 'subjectivity' of non-state entities is characterised as derivative. J. Klabbers, '(I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors', in J. Petman & J. Klabbers (eds.), Nordic Cosmopolitanism. Essays in International Law for Martti Koskenniemi, 2003, pp. 351-369, at p. 361.
62. Meijknecht points out that international legal personality and international (legal) 'subjectivity' are not identical, but rather they are two different aspects of the fact that an entity enters the field of international law.
63. Clapham mentions two fears that create resistance to the recognition of international legal personality for corporations. First, the fear that foreign corporations would somehow more easily be able to interfere in the political and economic affairs of states if they were acknowledged as possessing a degree of international personality. Second, the fear that these foreign corporations would be able to trigger excessive diplomatic protection for national companies of the host state where the foreign nationals are controlling shareholders in those companies, p. 78.
64. R. Higgins, Problems and Process. International Law and How We Use it, 1994, pp. 49-50.
65. Klabbers refers to views according to which the very metaphor of personality (in this case as regards international organisations) is misleading, p. 52.
66. Also Arzt & Lukashuk deem it more important to concentrate on actual participation in the process of creating, making claims under, and enforcing international law, rather than focusing on the formal issues of international 'subjectivity' or international legal personality.
67. R. Urueña puts forth interesting views on 'subjectivity' and participation in international law in R. Urueña, No Citizens Here: Global Subjects and Participation in International Law, Centre on Excellence in Global Governance Research, Faculty of Law, University of Helsinki, 2010.
68. These challenges are elaborated upon in K. Creutz, Transnational Privatised Security and the International Protection of Human Rights, publications of the Erik Castrén Institute of International Law and Human Rights, University of Helsinki, the Erik Castrén Institute Research Reports 19/2006.
69. For instance, it has been pointed out that in these contexts private security forces have often become part of the problem instead of becoming part of the solution. One of the solutions offered to this challenge is to consider private security firms as (modern) mercenaries in armed conflicts or agents of the state. At the same time it has been stated that this legal analysis fails to capture the full picture.