Corporations as international actors and international law makers

Italian Yearbook of International Law

Volumn 14, Issue , 2005, Pages 23-38

  Lowe, Vaughan ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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[No Author keywords available]

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EID: 85183160339     PISSN: 03915107     EISSN: None     Source Type: Book Series    
DOI: 10.1163/221161304X00028     Document Type: Article

References (33)

1. th ed., Vol. 1, 1928.
2. 2 Which I doubt. Non-sovereign entities have always participated in international legal relations. See, for example, the list of Contracting Parties to the 1899 Hague Convention on the Pacific Settlement of International Disputes.
3. 3 Published at www.itlos.org. See TREVES, “The International Tribunal for the Law of the Sea (2003)”, IYIL, 2003, p. 157 ff., p. 158 ff.
4. 4 Government-imposed obligations may, of course, influence or even determine what the industry practice is.
5. 5 See DAFFE/IME/WPG(2000)15/FINAL, 15 October 2001, http://www.olis.oecd.org/olis/2000doc.nsf/LinkTo/daffe-ime-wpg(2000)15-final.
6. 6 See http://www.un.org/News/Press/docs/1999/19990201.sgsm6881.html.
7. 8 Cf. http://www.unglobalcompact.org/Portal.
8. 9 See http://www.state.gov/g/drl/rls/2931.htm.
9. 10 See generally the study by Human Rights Watch, Corporations and Human Rights, available at http://www.hrw.org/about/initiatives/corp.html.
10. 11 For an account of allegations of human rights violations in this context, see the Human Rights Watch paper, The Price of Oil. Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities, 1999, http://www.hrw.org/reports/1999/nigeria/index.htm.
11. 12 See UN Doc. E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En?Opendocument.
12. 13 See the ILO study, Corporate Codes of Conduct, http://www.itcilo.it/english/actrav/telearn/global/ilo/code/main.htm, and the collection of codes at http://www1.umn.edu/humanrts/links/conduct.html. Cf. the US Council for International Business study, Corporate Codes of Conduct: A Review of Recent Initiatives, 1999, http://www.uscib.org/index.asp?documentID= 1357.
13. 14 For a critical account see SIMONS, “Corporate Voluntarism and Human Rights: the Adequacy and Effectiveness of Voluntary Self-Regulation Regimes”, Relations Industrielles/ Industrial Relations, 2004, pp. 101-141.
14. 15 In some States international law may have a status in the domestic law which makes it possible to make a claim under national law for a breach of standards and obligations established in international law. See, e.g., Doe I, et al. v. Unocal Corp., et al., Nos. 00-56603, 00-57197, 00-56628 and 00-57195, United States Court of Appeals for the Ninth Circuit, 18 September 2002, http://caselaw.lp.findlaw.com/data2/circs/9th/0056603p.pdf. The Burmese plaintiffs claimed that Unocal was liable for violations of their human rights by the Myanmar military. The claim was settled by Unocal in December 2004.
15. 16 See http://wbln0018.worldbank.org/ipn/ipnweb.nsf.
16. 17 See, e.g., the Inter-American Bank’s Independent Investigation Mechanism, http://www.iadb.org/cont/poli/mecanism.pdf and http://www.adb.org/Documents/Policies/Inspection/insp100.asp, and further materials at http://www.bicusa.org/bicusa/issues/idb_independent_investigation_mechanism/index.php.
17. 18 The reports are published on the website at http://wbln0018.worldbank.org/ipn/ipnweb.nsf. See also GOWLAND GUALTIERI, “The Environmental Accountability of the World Bank to Non-State Actors: Insights from the Inspection Panel”, BYIL, 2001, pp. 213-254.
18. 19 See Article 16 of the ILC Articles on State Responsibility, http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm.
19. 20 The Barcelona Traction saga is one example of protracted litigation.
20. 21 I put to one side the individual interest in participation in a small corporation or partnership.
21. 22 The answer to this question would no doubt be of interest to shareholders in Enron (or at least those of them who are nationals of States that have BITs with the US) and other corporations that suffer unexpected collapses.
22. 23 See ICJ Reports, 1970, p. 3 ff.
23. 24 See ICJ Reports, 1955, p. 4 ff.
24. 25 Barcelona Traction case, cit. supra note 23, p. 46, paragraph 88.
25. 26 Elettronica Sicula SpA (ELSI) (USA v. Italy), ICJ Reports, 1989, p. 15 ff.
26. 27 Barcelona Traction case, cit. supra note 23, p. 48, paragraph 92. See also JONES, “Claims on Behalf of Nationals Who Are Shareholders in Foreign Companies”, BYIL, 1949, pp. 225-258;
27. see the United Kingdom Rules Regarding the Taking Up of International Claims by Her Majesty’s Government, Rule VI: “Where a UK national has an interest, as a shareholder or otherwise, in a company incorporated in another State and of which it is therefore a national, and that State injures the company, [the British Government] may intervene to protect the interests of that UK national”: BYIL, 1983, p. 500 ff. at p. 501. For a treaty-based example, see Article 6 of the Peru-United Kingdom Agreement for the Promotion and Protection of Investments, 1993: BYIL, 1994, p. 666 ff. A comparable position can be achieved under Article 25(2)(b) of the 1965 ICSID Convention.
28. 31 In the Czech cases there were majority shareholdings in the chain connecting Mr Lauder to the ultimate investment. Logically, there seems to be no reason why a minority shareholder might not bring such a claim, albeit only in respect of his or her share.
29. 32 The cases are published at http://www.cetv-net.com/arbitration.asp.
30. 33 Again, if the shareholdings in the chain of ownership are less than 100%, there will be a corresponding reduction in recovery of any damages awarded in respect of injury to the ultimate investment.
31. 34 See the account of the Pipeline dispute in GYIL, 1985, pp. 37-108.
32. 35 See Libyan Arab Foreign Bank v. Bankers Trust, All England Law Reports, 1989, p. 252 ff.
33. 36 See LOWE, “Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution”, ICLQ, 1985, p. 724 ff.