This article examines the legal as well as political feasibility of four potential options for a legally-binding international instrument in the area of business and human rights. The four options that the open-ended intergovernmental working group may wish to consider while negotiating an instrument are: (i) to clarify and strengthen the states’ duty to protect human rights, including extraterritorially; (ii) to oblige states, through a framework convention, to report on the adoption and implementation of national action plans on business and human rights; (iii) to impose direct human rights obligations on corporations and establish a new mechanism to monitor compliance with such obligations; and (iv) to impose duties of mutual legal assistance on states to ensure access to effective remedies for victims harmed by transnational operations of corporations. As these options are not mutually exclusive, the author argues that a hybrid instrument building on elements of the first and the fourth option may be the best way forward both in terms of political feasibility and improving access to effective remedies for victims.
Professor at the University of Louvain (UCL) and at Sciences Po (Paris); former United Nations Special Rapporteur on the Right to Food (2008–2014); and Member of the Committee on Economic, Social and Cultural Rights. The positions taken in this article reflect the personal opinions of the author and should not be construed as representing the views of the Committee on Economic, Social and Cultural Rights.
1 Human Rights Council, ‘Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’, A/HRC Res. 26/9 (26 June 2014), para. 9.
2 Some 600 non-governmental organizations have formed the Treaty Alliance (or Global Movement for a Binding Treaty). See ‘Enhance the International Legal Framework to Protect Human Rights from Corporate Abuse’, http://www.treatymovement.com/statement/ (accessed 15 July 2015). Notably, however, neither Amnesty International nor Human Rights Watch, two major international human rights non-governmental organizations, have formally joined the Treaty Alliance.
3 Algeria, Benin, Burkina Faso, China, Congo, Cote d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russia, South Africa, Venezuela, and Vietnam voted in favour of the resolution.
4 The states who voted against the resolution are Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, the United Kingdom, and the United States of America.
5 Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, and the United Arab Emirates abstained.
6 Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/Res 26/22 (27 June 2014) (Resolution 26/22).
7 Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/Res 17/4 (16 June 2011), endorsing ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011).
8 Resolution 26/22, note 6, para. 3.
9 The Working Group on the issue of transnational corporations and other business enterprises and human rights was established by Resolution 17/4 adopted by the UN Human Rights Council in June 2011. Resolution 26/22 extends its mandate for another three years, for the period 2014–2017. Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/Res 26/22 (15 July 2014).
10 Resolution 26/22, note 6, para. 7.
11 It builds on previous contributions of the author, including ‘Sovereignty-Plus in the Era of Interdependence: Towards an International Convention on Combating Human Rights Violations by Transnational Corporations’ in Bekker, Pieter, Dolzer, Rudolf, and Waibel, Michael (eds.), Making Transnational Law Work in the Global Economy: Essays in Honour of Detlev Vagts (Cambridge: Cambridge University Press, 2010) 245–284; and ‘La responsabilité des Etats dans le contrôle des sociétés transnationales: vers une Convention internationale sur la lutte contre les atteintes aux droits de l’homme commises par les sociétés transnationales’ in Isabelle Daugareilh (ed.), La responsabilité sociale des entreprises (Bruxelles: Bruylant, 2011) 707–77.
12 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (2003); and for the Commentary, UN Doc E/CN.4/Sub.2/2003/38/Rev.2 (2003). See also Weissbrodt, David and Kruger, Muria, ‘Current Developments: Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2013) 97 American Journal of International Law 901; Weissbrodt, David and Kruger, Muria, ‘Human Rights Responsibilities of Businesses as Non-State Actors’ in Philip Alston (ed.), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005) 315. The Sub-Commission on Human Rights (as it was colloquially known) was a body of 26 independent experts advising the UN Commission on Human Rights, the intergovernmental body to which the Human Rights Council succeeded in 2007.
13 For a systematic overview, see De Schutter, Olivier, ‘The Challenge of Imposing Human Rights Norms on Corporate Actors’ in Olivier De Schutter (ed.), Transnational Corporations and Human Rights (Oxford: Hart Publishing, 2006) 1.
14 Note 7. For a critical appraisal, see Deva, Surya and Bilchitz, David (eds.), Human Rights Obligations of Business. Beyond the Corporate Responsibilty to Respect? (Cambridge: Cambridge University Press, 2013).
15 See, for a systematic exposition, De Schutter, Olivier, International Human Rights Law (Cambridge: Cambridge University Press, 2014) 427–526.
16 Human Rights Committee, ‘General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add.13 (26 May 2004), para. 8.
17 ‘The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food’. Committee on Economic, Social and Cultural Rights, ‘General Comment No. 12 (1999): The Right to Adequate Food (Art 11)’, UN Doc E/C.12/1999/5, para. 15.
18 See, e.g., under the European Social Charter of the Council of Europe, European Committee of Social Rights, complaint no. 30/2005, Marangopoulos Foundation for Human Rights (MFHR) v Greece, decision on admissibility of 30 October 2005, para. 14 (‘the state is responsible for enforcing the rights embodied in the Charter within its jurisdiction. The Committee is therefore competent to consider the complainant’s allegations of violations, even if the State has not acted as an operator but has simply failed to put an end to the alleged violations in its capacity as regulator’); under the African Charter of Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, Comm. No. 155/96 (2001) AHRLR 60 (ACHPR 2001) (15th Annual Activity Report) (on the duty of Nigeria to protect the Ogoni people from the impacts of the activities of oil companies in the Niger delta).
19 Guiding Principles, note 7, Principles 1–10, 25–27, and 31.
20 Building on Article 13, para. 1 of the UN Charter, Article 15 of the Statute of the International Law Commission (adopted by the General Assembly in resolution 174 (II) of 21 November 1947, as amended by resolutions 485 (V) of 12 December 1950, 984 (X) of 3 December 1955, 985 (X) of 3 December 1955 and 36/39 of 18 November 1981) makes a distinction ‘for convenience’ between ‘progressive development’ of international law as meaning ‘the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States’ and ‘codification’ as meaning ‘the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine’.
21 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14 (2000): The Right to the Highest Attainable Standard of Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights)’, E/C.12/2000/4 (2000), para. 39; Committee on Economic, Social and Cultural Rights, ‘General Comment No. 15 (2002): The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’, E/C.12/2002/11 (26 November 2002), para. 31.
22 Committee on Economic, Social and Cultural Rights, ‘Statement on the Obligations of States Parties regarding the Corporate Sector and Economic, Social and Cultural rights’ E/C.12/2011/1 (20 May 2011), para. 5.
23 In addition to the Committee on Economic, Social and Cultural Rights, see, e.g., Committee on the Elimination of Racial Discrimination, Concluding Observations: Canada, CERD/C/CAN/CO/18, para. 17, and Concluding Observations: United States, CERD/C/USA/CO/6, para. 30; and Human Rights Committee, Concluding Observations: Germany, CCPR/C/DEU/CO/6, para. 16.
24 The Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, adopted in Maastricht on 28 September 2011 by a number of human rights experts, non-governmental organizations, and academic research institutes, testify to the growing consensus around this requirement. See De Schutter, Olivier et al, ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34 Human Rights Quarterly 1084, at 1084-1171; Coomans, Fons and Künnemann, Rolf (eds.), Cases and Concepts on Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights (Antwerp: Intersentia, 2012); Langford, Malcolm et al (eds.), Global Justice, State Duties. The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: Cambridge University Press, 2013) (as regards the duty of the state to regulate corporations, see in particular the chapter by Smita Narula).
25 The International Court of Justice has affirmed the extraterritorial reach of human rights instruments on a number of occasions. Most noteworthy in this regard are its Advisory Opinion on the construction by Israël of a wall to protect its territory from potential incursions by terrorists (Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 109) and its judgment concerning armed activities in the DRC (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), judgment of 19 Dec. 2005, paras. 178–80 and 216–17.
26 See, e.g., Restatement (Third) of the Foreign Relations Law of the United States, Vol. 2 (Washington: American Law Institute Publishers, 1987), § 402(2) (‘a state has jurisdiction to prescribe law with respect to ... (2) the activities, interests, status, or relations of its nationals outside as well as within its territory’).
27 Hadari, Yitzhak, ‘The Choice of National Law Applicable to the Multinational Enterprises’ (1974) Duke Law Journal 1, at 16 (noting that the determination by the US of the rules of the nationality of the corporation has occasionally been relied upon in order to allow for an extension of US law to corporations whose main connections may be to foreign countries).
28 Restatement (Third) of the Foreign Relations of the United States, note 26 at 213 (note 5). On this question, see generally Mabry, Linda, ‘Multinational Corporations and US Technology Policy: Rethinking the Concept of Nationality’ (1999) 87 Georgetown Law Journal 563, at 563–631.
29 As noted by Mabry, this allows the aggregation of the different corporate entities integrated within the multinational group and treating them as one single enterprise whose benefits will be taxed on a consolidated basis, reflecting the operations of both domestic and foreign subsidiaries. Mabry, note 28, 567. She refers to Container Corp. of Am. v Franchise Tax Bd. 463 US 159 (1983).
30 Restatement (Third) of the Foreign Relations of the United States, note 26, § 414.
31 ‘Normally the corporation is an insulator from liability on claims of creditors. The fact that incorporation was desired in order to obtain limited liability does not defeat that purpose. Limited liability is the rule, not the exception’. Anderson v Abbott 321 US 349, 362 (1944) (citations omitted). See also Burnet v Clark 287 US 410, 415 (1932) (‘A corporation and its stockholders are generally to be treated as separate entities’).
32 Taken alone, neither majority or even complete stock control, nor common identity of the parent’s and the subsidiary’s officiers and directors, are sufficient to establish the degree of control of required. What is required is ‘control [...] of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction has at the time no separate mind, will or existence of its own’ (Lowenthal v Baltimore & Ohio RR Co. 287 NYS 62, 76 (NY App. Div.), cited by Blumberg, Philip I, ‘Accountability of Multinational Corporations: The Barriers Presented by Concepts of the Corporate Juridical Entity’ (2001) 24 Hastings International and Comparative Law Review 297, 304.
33 See Taylor v Standard Gas Co. 306 US 307, 322 (1939) (‘the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when to do so would work fraud or injustice’).
34 Chicago, M & St P R Co. v Minneapolis Civic and Commerce Assn 247 US 490, 501 (1918) (principles of corporate separateness ‘not applicable where stock ownership has been resorted to, not for the purpose of participating in the affairs of a corporation in the normal and usual manner, but for the purpose […] of controlling a subsidiary company so that it may be used as a mere agency or instrumentality of the owning company’).
35 See, e.g., United States v Betterfoods 524 US 51 (1998).
36 As Justice (then Judge) Cardozo summarized in Berkey v Third Avenue R. Co. 244 NY 84, 95: ‘Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent’.
37 Blumberg, note 32, 307.
38 Bowoto v Chevron Texaco, No. C 99-2506 SI, 2004 US Dis LEXIS 4603 (ND, Cal 2004). The case is discussed by Sarah Joseph, Corporations and Transnational Human Rights Litigation (Portland: Hart Publishing, 2004) 132–3.
39 Bowoto v Chevron Texaco, ibid.
40 See, e.g., Labor Board v Deena Artware 361 US 398, 402 (1960).
41 Since the New Deal period, therefore, an alternative line of cases has emerged in the US courts, which has led a number of these courts to set aside the classical tests for allowing the piercing of the corporate veil in order to ensure that the legislative policy will not be defeated by the choice of corporate forms. See, e.g., Anderson v Abbott 321 US 349, 362–3 (1944) (‘the interposition of a corporation will not be allowed to defeat a legislative policy, whether that was the aim or only the result of the arrangement’); Bangor Punta Operations, Inc v Bangor & Aroostook R Co. 417 US 703, 713 (1974) (‘the corporate form may be disregarded in the interests of justice where it is used to defeat an overriding public policy’); First National City Bank v Banco Para El Comercio Exterior de Cuba 462 US 611, 630 (1983) (refusing to ‘give effect to the corporate form where it is interposed to defeat legislative policies’). However, the abandonment of the classical ‘piercing the corporate veil’ test has been piecemeal rather than systematic, and this has not contributed to legal certainty.
42 This was the approach adopted in the Amoco Cadiz Oil Spill Case by the District Court of Illinois, even in the absence of any legislative mandate, in order to conclude that the parent corporation should be held liable for environmental damage caused by an oil spill from a tanker off the coast of France. Amoco Cadiz Oil Spill 1984 AMC 2123. The US legislator occasionally established the same presumption, in order to extend the extraterritorial reach of legislation by also addressing the subsidiaries of US firms. See, e.g., Title VII of the 1964 Civil Rights Act, 42 USC § 2000e, or the 1990 Americans with Disabilities Act, 42 USC § 12112 (c)(2)(A).
43 Meeran, Richard, ‘The Unveiling of Transnational Corporations’ in Michael K Addo (ed.), Human Rights Standards and the Responsibility of Transnational Corporations (The Hague: Kluwer Law International, 1999) 170.
44 Mabry, note 28, 565.
46 Joseph, note 38, 134, citing Natale, Andrew J, ‘Expansion of Parent Corporate Shareholder Liability through the Good Samaritan Doctrine: A Parent Corporation’s Duty to Provide a Safe Workplace for Employees of its Subsidiary’ (1988) 57 Univeristy of Cincinnati Law Review 717, 736; and Cassels, Jamie, ‘Outlaws: Multinational Corporations and Catastrophic Law’ (2000) 31 Cumberland Law Review 311, 326.
47 Connelly v RTZ Corporation plc  UKHL 30;  AC 854.
48 Lubbe v Cape plc  1 WLR 1545. On 14 December 1998, the House of Lords had already refused to allow leave to the defendants for filing a further appeal against an initial decision by the Court of Appeal. Following this, over 3,000 new plaintiffs emerged, fundamentally transforming the nature of the litigation presented before the United Kingdom courts.
49 Ibid, 1550 (emphasis added).
50 Chandler v Cape plc  EWCA (Civ) 525. The Court of Appeal confirmed the approach of the High Court in Chandler v Cape plc  EWHC 951 (QB).
51 Chandler v Cape plc  EWCA (Civ) 525, para. 80 (emphasis added).
52 ‘A subsidiary and its company are separate entities. There is no imposition or assumption of responsibility by reason only that a company is the parent company of another company’. Ibid, para. 69.
53 Under the ‘integrated enterprise’ approach, the law of the forum state is extended to foreign corporations on the basis that they are part of one single economic group, coordinated by the parent corporation: indeed, as illustrated by the examples of the Civil Rights Act and the Americans with Disabilities Act mentioned above (see note 42), this approach has been adopted precisely in order to justify the extraterritorial reach of the concerned statutes.
54 The ATS, adopted as part of the First Judiciary Act 1789, provides that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’ (28 USC §1350). It has been interpreted to allow foreign victims to file civil liability claims against defendants over which US courts have personal jurisdiction, for violations of international norms ‘accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [violation of safe conducts, infringement of the rights of ambassadors, and piracy]’ which Congress had in mind when adopting the First Judiciary Act 1789. Sosa v Alvarez-Machain 542 US 692 (2004).
55 Kiobel v Royal Dutch Petroleum Co. 569 US 12 (2013) (where the Supreme Court concludes, in a unanimous decision authored by Chief Justice Roberts, that ‘the presumption against extraterritoriality [of United States legislation, based on the idea that “United States law governs domestically but does not rule the world” (Microsoft Corp. v AT&T Corp., 550 US 437, 454 (2007)], applies to claims under the ATS, and that nothing in the statute rebuts that presumption’). The concurring opinions that four Justices appended to the judgment would allow for the ATS to apply in relation to harms caused outside the US in certain limited circumstances, including when the defendant is a company incorporated in the US.
56 Joseph, note 38, 134, citing Rogge, Malcolm J, ‘Towards Transnational Corporate Liability in the Global Economy: Challenging the Doctrine of Forum non Conveniens in Re: Union Carbide, Alfaro, Sequihua, and Aguinda’ (2001) 26 Texas International Law Journal 299, 313–14.
57 For instance, sections 747 to 756 and Schedules 24 to 26 of the United Kingdom Income and Corporation Taxes Act 1988, rely on the notion of the ‘controlled foreign company’, defined as a foreign company in which the resident company owns a holding of more than 50 per cent.
58 Maastricht Principles, note 24, Principle 27 (Obligation to Co-operate) and Principle 37 (General Obligation to Provide Effective Remedy). As discussed further below, the duty to provide an effective remedy to victims, which, in situations where transnational human rights are concerned, is a duty both for the host state (under whose territorial jurisdiction the damage occurred) and a duty of the home state (under whose juridiction the transnational corporation is domiciled), can only be effectively discharged if the two states co-operate with one another. This explains the close link established within the Maastricht Principles between the right to an effective remedy on the one hand, and the duty of states to co-operate on the other hand.
59 See note 54.
60 Council Regulation No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001 L 12/1 (now succeeded by Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2012 L 351/1). For an early assessment of the potential of this instrument to ensure that EU-based transnational corporations shall be liable for human rights violations committed in their activities abroad, see De Schutter, Olivier, ‘The Accountability of Multinationals for Human Rights Violations in European Law’ in Philip Alston (ed.), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005) 227.
61 The ‘recognition of the extraterritorial obligations of States allows victims of transboundary environmental degradation, including damage to the global commons such as the atmosphere and dangerous climate change, to have access to remedies. Those who are adversely affected by environmental degradation must be able to exercise their rights, irrespective of whether the cause of environmental harm originates in their own State or beyond its boundaries and whether the cause of environmental harm lies in the activities of States or transnational corporations.’ United Nations High Commissioner for Human Rights, ‘Analytical Study on the Relationship between Human Rights and the Environment’, A/HRC/19/34 (19 December 2011) para. 72
62 Green Paper on the Review of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM (2009) 175 final (21 April 2009). See also Article 26 in the Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the regulation and enforcement of judgments in civil and commercial matters, COM (2010) 748 final (14 December 2010).
63 WHO Framework Convention on Tobacco Control (opened for signature on 21 May 2003, entered into force on 27 February 2005) (2302 UNTS 166).
64 Ibid, Art 5.1.
65 Ibid, Art 23(a).
66 Resolution 26/22, note 6.
67 Office of the High Commisisoner for Human Rights, ‘State National Action Plans’, http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx (accessed 15 July 2015).
68 These are the United Kingdom, the Netherlands, Italy, Denmark, Spain, Finland, and Lithuania.
69 Guiding Principles, note 7, Commentary to Principle 8.
70 Ibid, Principle 9. Regarding the requirement that states do not make undertakings under trade or investment treaties that would create obstacles to their ability to regulate the conduct of corporations under their jurisdiction, see the ‘Guiding Principles on Human Rights Impact Assessments of Trade and Investment Agreements, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter: Addendum’, A/HRC/19/59/Add.5 (19 December 2011). See also ‘Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations: Guidance for Negotiators’, A/HRC/17/31/Add.3 (25 May 2011).
71 The Statement of the Treaty Alliance includes a paragraph stating that: ‘The treaty should provide for an international monitoring and accountability mechanism. A dedicated unit or centre within the United Nations may improve the international capacity for independent research and analysis and for monitoring the practices of transnational corporations and other business enterprises. The needs and feasibility of a complementary international jurisdiction should be discussed’. Note 2.
72 Draft UN Norms, note 12.
73 Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie’, A/HRC/17/31 (21 March 2011), para. 15.
74 ‘Transnational corporations under the jurisdiction’ of the state concerned could be defined, for the purposes of such an instrument, as any corporation which has its centre of activity, is registered or domiciled, or has its main place of business or substantial business activities, in the state concerned, or whose parent or controlling company presents such a connection to the state concerned.
75 The draft statute establishing a World Court of Human Rights was produced by a Panel of Eminent Persons appointed by the Swiss Government. Kozma, Julia, Nowak, Manfred, and Scheinin, Martin, A World Court of Human Rights: Consolidated Statute and Commentary (Graz: Studienreihe des Ludwig Boltzmann Instituts für Menschenrechte/COST, 2010). The World Court anticipated that business entities would be allowed to recognize the jurisdiction of the Court (Art 51), which would assess human rights violations by being guided by ‘the principles of the international law of State responsibility which it shall apply also in respect of Entities subject to its jurisdiction, as if the act or omission attributed to an Entity was attributable to a State’ (Art 6, para. 1).
76 Rome Statute of the International Criminal Court (signed on 17 July 1998, entered into force on 1 July 2002), 2187 UNTS 3.
77 See Clapham, Andrew, ‘The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ in Menno T Kamminga and Saman Zia-Zarifi (eds.), Liability of Multinational Corporations under International Law (The Hague: Kluwer Law International, 2000) 139.
78 See, in particular, Ramasastry, Anita, ‘Corporate Complicity: From Nuremberg to Rangoon. An Examination of Forced Labor Cases and their Impact on the Liability of Multinational Corporations’ (2002) 20 Berkeley Journal of International Law 91.
79 Economic and Social Council Resolution 1503 (XLVIII) (27 May 1970), para. 1. See now UN General Assembly ‘Human Rights Council’, A/Res/60/251 (mentioning that ‘the Council should address situations of violations of human rights, including gross and systematic violations, and make recommendations thereon’, para. 3), and Human Rights Council, ‘Institution-building of the United Nations Human Rights Council’, Res 5/1, Annex (establishing a complaint procedure, modeled on the former ‘1503’ procedure, ‘to address consistent patterns of gross and reliably attested violations’ of human rights and fundamental freedoms, para. 85).
80 See, e.g., Ermacora, Felix, ‘Procedures to Deal with Human Rights Violations: A Hopeful Start in the United Nations?’ (1974) 7 Revue des droits de I'homme/Human Rights Journal 670, 679; Tardu, Maxime E, ‘United Nations Response to Gross Violations of Human Rights: The 1503 Procedure’ (1980) 20 Santa Clara Law Review 559, 583–4.
81 UN General Assembly, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law’, A/Res/60/147 (16 December 2005).
82 See, inter alia, Case of Gomes Lund Et Al (‘Guerrilha Do Araguaia’) v Brazil (Preliminary Objections, Merits, Reparations, and Costs), Judgment, IACtHR, 24 November 2010, para. 105; Decision 1 (63) Situation in the Lao People’s Democratic Republic, 21 August 2003, CERD Annual Report A/58/18 at 17, para. 2; Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under Article 8 of the Optional Protocol to the Convention, and Reply from the Government of Mexico, 27 January 2005, CEDAW/C/2005/OP.8/MEXICO at 42, para. 263; Middle East (Lebanon), SC Res. 2004, 30 August 2011; Somalia, SC Res. 2010, 30 September 2011; Middle East (Syria), SC Res. 2043, 21 April 2012; Middle East (Syria), SC Res. 2042, 14 April 2012; Situation of Human Rights in Iran, GA Res. 66/175, 19 December 2011, Opp. 2. See also van Boven, Theo, ‘Distinguishing Criteria of Human Rights’ in Karel Vasak (ed.) and Philip Alston (ed., English edition), The International Dimensions of Human Rights, Vol I (Westport, Connecticut: Greenwood Press, 1982) 43, 48.
83 Restatement (Third) of the Foreign Relations Law of the United States, note 26. Sec 702(g).
84 In the Commentary to the ‘Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises’ proposed by the UN Sub-Commission for the Promotion and Protection of Human Rights (note 12), corporations were expected to ‘use due diligence in ensuring that their activities do not contribute directly or indirectly to human abuses, and that they do not directly or indirectly benefit from abuses of which they were aware or ought to have been aware’, a responsibility that extended to all situations falling within the ‘sphere of influence’ of the company concerned. This implied in particular that “Transnational corporations and other business enterprises shall inform themselves of the human rights impact of their principal activities and major proposed activities so that they can further avoid complicity in human rights abuses’.
85 See, e.g., Wallace, Gregory, ‘Fallout from Slave-Labor Case is Troubling’ (1997) 150 New Jersey Law Journal 896.
86 Useful attempts are, e.g., Clapham, Andrew, ‘Corporate Complicity in Violations of International Law: Beyond Unocal’ in Wybo P Heere (ed.), From Government to Governance: The Growing Impact on Non-State Actors on the International and European Legal System. Proceedings of the Sixth Hague Joint Conference held in the Hague, The Netherlands, 3–5 July 2003 (The Hague: TMC Asser Press, 2004) 227; Clapham, Andrew, ‘State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations’ in Lene Bomann-Larsen and Oddny Wiggen (eds.), Responsibility in World Business. Managing Harmful Side-Effects of Corporate Activity (Tokyo: United Nations University Press, 2004) 50; Clapham, Andrew and Jerbi, Scott, ‘Categories of Corporate Complicity in Human Rights Abuses’ (2001) 24 Hastings International and Comparative Law 339.
87 ‘Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises with regard to Human Rights’, UN Doc E/CN.4/2005/91 (15 February 2005), para. 34 (citing International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies, (Geneva: ICHRP, 2002) 125–36). See also ‘Report of the United Nations High Commissioner for Human Rights to the 56th Session of the General Assembly’, UN Doc A/56/36 (28 September 2001) (distinguishing direct, beneficial, and silent complicity); UN Global Compact and OHCHR, ‘Embedding Human Rights into Business Practice’ 19, http://www.ohchr.org/Documents/Publications/Embeddingen.pdf (accessed 15 July 2015).
88 Under the ATS (note 54), it has been authoritatively held that the standard for aiding and abetting is ‘knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime’: John Doe I v Unocal Corp 395 F 3d 932, 945–6 (9th Cir, 2002). This standard is borrowed from the approach of international criminal tribunals. See, e.g., Prosecutor v Furundzija, IT-95-17/1-T (10 December 1998), reprinted in (1999) 38 ILM 317, where the International Criminal Tribunal for the former Yugoslavia (ICTY) held that ‘the actus reus of aiding and abetting in international criminal law requires practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime’ (at 235).
89 For instance, in the Trial Chamber judgment delivered in the case of Prosecutor v Akayesu, the International Criminal Tribunal for Rwanda convicted a village mayor as an accomplice as it considered that his presence ‘sent a clear signal of official tolerance for sexual violence’, thus in effect encouraging the offence. Prosecutor v Akayesu, Case No. ICTR-96-4-T (Trial Chamber) (2 September 1998), §§ 693 and 694.
90 ‘Report of the United Nations High Commissioner for Human Rights to the 56th Session of the General Assembly’, note 87, para 111.
91 Aguinda v Texaco, Inc, 142 F.Supp 2d 534 (SDNY 2001) (claims filed by residents of the Oriente region of Ecuador suing Texaco for environmental and personal injuries that allegedly resulted from Texaco’s exploitation of the region’s oil fields); Ashanga v Texaco Inc., SDNY Dkt. No. 94 Civ. 9266 (similar allegations made by certain residents of Peru, who live downstream from Ecuadors Oriente region).
92 Jota v Texaco, Inc 157 F.3d 153 (2d Cir 1998) (holding that dismissal on the ground of forum non conveniens, as decided by the district court, is erroneous in the absence of a condition requiring Texaco to submit to jurisdiction in Ecuador); Aguinda v Texaco, Inc 303 F 3d 470 (2d Cir 2002) (confirming the dismissal of the case).
93 18 USC Chapter 96.
94 These obstacles were systematically collected in a report co-authored by Gwynne Skinner, Robert McCorquodale, and Olivier De Schutter, with case studies by Andie Lambe, The Third Pillar. Access to Judicial Remedies for Human Rights Violations by Transnational Business (ICAR, CORE, and ECCJ, December 2013). The appendix to the report includes a detailed description of seven case studies that illustrate the various obstacles faced by victims of human rights violations caused by the activities of transnational corporations, stemming from the fact that such activities span across a number of jurisdictions.
95 Convention on the Rights of Persons with Disabilities (signed on 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3.
96 Ibid, Art 32. The Convention also lists illustrative measures to fulfil this commitment.
97 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (signed on 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85.
98 Ibid, Art 9 (1).
99 Article 15 provides: ‘States Parties shall cooperate with each other and shall afford one another the greatest measure of mutual assistance with a view to assisting victims of enforced disappearance, and in searching for, locating and releasing disappeared persons and, in the event of death, in exhuming and identifying them and returning their remains’. International Convention for the Protection of all Persons from Enforced Disappearance (signed on 20 December 2006, entered into force on 23 December 2010) 2716 UNTS 3.
100 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2171 UNTS 227, art 10; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, 2173 UNTS 222, Art 7.
101 Maastricht Principles, note 24, Principle 27.
102 In order to clarify what might be included in a new international instrument providing for legal mutual assistance to combat human rights violations by transnational corporations, inspiration may be found in Chapter IV of the UN Convention against Corruption (UNCAC) (opened for signature on 31 October 2003, entered into force on 14 December 2005) 2349 UNTS 41.
103 Ruggie, John, ‘Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors’ (9 September 2014), http://www.ihrb.org/commentary/quo-vadis-unsolicited-advice-business.html (accessed 20 July 2015).
* Professor at the University of Louvain (UCL) and at Sciences Po (Paris); former United Nations Special Rapporteur on the Right to Food (2008–2014); and Member of the Committee on Economic, Social and Cultural Rights. The positions taken in this article reflect the personal opinions of the author and should not be construed as representing the views of the Committee on Economic, Social and Cultural Rights.
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