Category Archives: Human Rights

The Expressive Value of Corporate Prosecutions


Wolfgang Kaleck and Miriam Saage-Maasz are Director and Vice Legal Director respectively of the European Center for Constitutional and Human Rights.


The birth of international criminal justice coincided with commercial responsibility for international crimes: the Nuremberg trials were based on a broad understanding of the political, social and economic causes of the Nazi Regime’s unspeakable atrocities. In this light, the prosecution concluded that corporations and businesspeople were relevant actors in the commission of international crimes. In the face of this legacy, the current practice of prosecuting corporations and their managers seems rather regressive. Apart from the ATS civil litigation in the USA, which hardly ever leads to any final judgements or admissions of legal responsibility, there is little modern practice. Neither the International Criminal Court nor any of the international or hybrid tribunals have investigated the responsibility of business actors in a meaningful way.

Still, on the national level there is some change: Since the US Supreme Court restricted the ATS in the Kiobel decision, there are even more efforts to use (international) criminal law at the national level to hold corporations and their managers to account. In the Netherlands a Dutch business man has been convicted of aiding and abetting war crimes committed by Saddam Hussein against the Kurdish minority by supplying chemicals which were used to produce mustard gas. Also in the Netherlands there has been prosecution against a businessman for supplying weapons to Charles Taylor. Many other efforts have been initiated by victims, their representatives and civil society groups. In France and Germany several criminal complaints have been filed against corporations and their managers for allegedly supplying security agencies in repressive states like Syria, Bahrain and Libya with surveillance technology. Also in Germany there are ongoing investigations against a manager of a Timber trading company, which allegedly called police and military forces to raid a village in the DRC and which paid those forces after having raped several women and girls. Such prosecution in not only taking place in the home countries of the companies involved. In Argentina there are several criminal proceedings pending against large Argentine as well as EU and US companies focussing on the corporate complicity in the dictatorship crimes..

Many factual and legal obstacles remain, including the lack of corporate criminal liability in many legal systems, modes of liability which make it difficult to establish the culpability of corporate actors involved in international crimes, complex corporate structures, and factual difficulties in establishing mens rea in these cases. In light of this yet very imperfect and unsatisfying practice, can any human rights lawyer ever promise her clients that criminal prosecution of corporations will bring justice? Should we even try to pursue these sorts of prosecutions or do we simply need solutions within the economic sphere?

Social movements in the Global South and their lawyers have developed a very particular approach to these problems that transcends existing legal categories, without discarding the value of law and criminal prosecutions. A good example can be found in suits that were filed in the aftermath of unionist persecutions under military rule (Argentina) and in the context of corporate complicity in crimes committed during armed conflict (Colombia). Colombia is home to one of the highest levels of attacks on unionists in the world, accounting for half of unionist murders worldwide.[1] According to some sources, over the last 25 years, about 2,500 unionists have been murdered in Colombia by paramilitary and state security forces.[2] At the same time, the level of impunity is high. Unionists are subjected to threats, arbitrary detention, torture and killings, and in some instances, their participation in unions is criminalized.

The government of Colombia is either unable or unwilling to protect unionists adequately. Even after repeated interventions of the Inter-American Commission on Human Rights,[3] the government failed to take the steps the Commission had imposed to protect threatened unionists. An emblematic case is the murder of the unionist Luciano Romero who, on 10 September 2005, was murdered by paramilitaries in Colombia while working for a subsidiary of the Swiss company Nestlé.[4] Five lower-level paramilitary members have been convicted of this murder,[5] and criminal proceedings have been initiated against other paramilitaries, informants and members of the former Colombian secret service.[6] In one of the rulings in this case, justice Nirio Sánchez ordered the prosecution to investigate the company’s role.[7]

In March 2012, the European Center for Constitutional and Human Rights and the Colombian union Sinaltrainal filed a criminal complaint against Nestlé AG and several of its leading figures.[8] The case became necessary because investigations against employees of the Colombian company have not progressed within Colombia,[9] and since they did not extend to the potential criminal liability of the foreign parent corporation. Thus, we have formally raised this question with the Swiss criminal investigative authority in order to determine the possible liability of Nestlé and its managers.[10]

Although regulations on corporate liability have entered into force as part of Swiss criminal law, they have yet to be applied in practice at all, let alone in cases of extraterritorial human rights violations. Corporate liability according to article 102(1) of the Swiss Criminal Code is clearly distinct from common criminal concepts. It is an offense against the administration of justice and is relevant only if the crime was perpetrated from within a company in which there is no identifiable individual who can be held to account. Often, individuals cannot be identified due to a lack of organization, surveillance, or documentation. Thus, the company is punished for lack of organization rather than for the crime perpetrated.[11]

The Swiss Federal Court rejected the complaint on 21 July 2014, as it considered the offences in question time-barred.[12] It thereby deviated from the opinion of broad parts of the literature and the Swiss Federal Council, which consider violations on the basis of corporate liability as continuing offenses, so that a statute of limitations would not run before the underlying shortcomings in the company’s organization are remedied.

Regardless of this outcome, human rights organizations that supported the Swiss litigation hope that the analysis of corporate behavior according to criminal law standards will contribute to the human rights performance of businesses operating in armed conflict and weak states. The proceedings will provide multinational corporations active in these fragile political environments with guidance as to the necessary risk assessment they undertake before entering into these commercial ventures. At the same time, they will contribute to further defining the “corporate responsibility to respect human rights,” as postulated by the former United Nations Special Representative on Business and Human Rights in his Guiding Principles.[13]

Criminal and civil proceedings against corporations for complicity in human rights violations face both practical and legal difficulties. Political interventions in favor of the accused companies constitute another challenge. All these problems can be observed in the cases discussed in this post. They are complemented by insufficient legal regulations to deal with these questions in countries such as Germany and the United States, where related legal challenges have failed. However, it might have been possible to overcome the legal problems raised by this type of litigation—just as it would potentially be possible to overcome them now in the United States and Argentina, where cases are currently pending—if the economic power of the defendant companies had not stymied proceedings.

Still, the cases mentioned here demonstrate that the judicial outcome is not the only measure of success of this litigation. The investigation, documentation and reporting of these sorts of cases are creating a new historical narrative in parts of German, Argentine, and Latin American societies. Often, an important and necessary first step toward ending impunity is to investigate cases of direct involvement in human rights violations. When justice and society accept the occurrence of human rights violations as a fact, it is then reasonable to inquire into the political and legal responsibility of economic and political actors. Legal proceedings in Europe, and later in the transitional countries themselves, can serve as models for human rights organizations and prosecutors all over the world, stimulating public discussions, academic research, and artistic engagement with the topic. In the course of this process, people have the opportunity to interrogate the root causes of a regime’s ruthless past, which constitutes a fundamental element of any effort to come to terms with a history of violence.

 

[1] IACHR, Second Report on the Situation of Human Rights Defenders in the Americas, OEA/Ser.L/V/II, 31 December 2011, para.262; Escuela Nacional Sindical (ENS), 2.515 o esa siniestra facilidad para olvidar, Ediciones ENS, Medellin, 2007, p.11, http://www.ens.org.co/aa/img_upload/45bdec76fa6b8848acf029430d10bb5a/cuaderno_19.pdf

[2] ENS, n.1, p.11.

[3]The IACHR has granted precautionary measures in favour of several trade unionist, see: IACHR, Precautionary measures of Marta Cecilia DíazSuárez and María MancillaGamboa-ASTEMP, 22September 2006, http://www.cidh.org/medidas/2006.eng.htm ; IACHR, Precautionary measures in favour of Francisco Eladio Ramírez Cuellar, 29 October 2004, http://www.cidh.org/medidas/2004.eng.htm ; IACHR, Precautionary measures in favour of Álvaro Vélez Carriazo et al, 19 May 2004, http://www.cidh.org/medidas/2004.eng.htm.

[4] Amnesty International (AI), Colombia: Killings, arbitrary detentions, and death threats – the reality of trade unionism in Colombia, London, July 2007, pp.40-41.

[5] European Center for Constitutional and Human Rights (ECCHR), Special Newsletter on the Criminal Complaint Against Nestle in the Case of theMurdered Colombian Trade Unioninst Luciano Romero, p.6, http://www.ecchr.de/index.php/nestle-518.html

[6] Ibid.

[7] Criminal Court of the District of Bogota, Judgement in proceedings against Jose Ustariz Acuna and Jonathan David Contrera Puella, 26 November 2007, p.106 cont.

[8] ECCHR, Nestle precedent case: Charges filed in murder of Colombian trade Unionist, 6 March 2012, http://www.ecchr.de/index.php/nestle-518.html

[9] ECCHR, n.6, pp.6-7.

[10] Ibid.

[11] This solution is satisfactory only in part, for it continues to view individual criminal liability as the norm. Large companies often operate in a decentralized manner and with divided tasks. This allows companies to escape criminal liability by appointing nominal directors who do not actually attend to any managerial tasks of their division. They do, however, take responsibility in criminal proceedings in order to unburden the company as a whole. Those nominal directors are then financially compensated for any inconvenience occurring in the course of the proceedings.

[12] Amerika 21, Schweizer Bundesgericht lehnt Mordklage gegen Nestlé ab, 5 August 2014 [in German] https://amerika21.de/2014/08/103485/nestle-bundesgericht.

[13] U.N. Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J. Ruggie, “Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework”, A/HRC/17/31 (21 March 2011), Principle 11.

Transitional Justice, Corporate Responsibility and Learning from the Global South


Ruben Carranza is the Director of the Reparative Justice Program at International Center for Transitional Justice (ICTJ). These views are personal and do not necessary reflect those of the ICTJ.


When Latin American countries emerging from military dictatorships began their pursuit of transitional justice thirty years ago, they were not concerned with holding corporations accountable. They were more concerned with finding a balance between prosecuting individual perpetrators without jeopardizing political stability and responding to demands for truth and reparations. (They also didn’t call what they were then doing ‘transitional justice,’ which might be helpful to remember in debates over what kinds of human rights violations should be subject to accountability and whenever those from the global North involved in such debates presume to tell transitioning countries in the global South which kinds of perpetrators they should hold accountable.) But in the last few years, not only have Argentina, Chile and Brazil pursued prosecutions against former military leaders of their respective dictatorships; they have also started to seek the truth about economic crimes and the links between businesses and perpetrators of human rights violations during the dictatorships.

Corporate accountability, corruption, other economic crimes, violations of economic and social rights and disputes involving access to land and natural resources are all part of a broader set of grievances that many in the field of transitional justice simply regarded as background but did not consider inherent to the work of truth commissions, reparations programs or prosecutors. That has changed. There is now more pluralism and transitional justice has evolved from being narrowly focused on physical integrity violations to recognizing that armed conflict, political violence and repression cannot be de-linked from their economic and social causes and consequences. The way taken by transitional justice to get to where it is now might be a helpful map for those working on corporate accountability.

In 2011, Colombia’s Peace and Justice Court sentenced the notorious paramilitary leader known as El Aleman for various conflict-related crimes (this case was one of a number of domestic criminal cases cited in the reparations proceedings submission ICTJ filed in the Tomas Lubanga case). The Peace and Justice Courts are a transitional justice mechanism that imposes reduced sentences on leaders of right-wing paramilitary groups in exchange for confessing the truth and paying reparations. Instead of limiting herself to condemning El Aleman, the judge asked Colombia’s Attorney General to investigate the multinational company Chiquita Banana and to take measures to seize its assets in the country. It is not a thoroughly-argued discussion (the Justice and Peace court’s main mandate is to address the paramilitaries’ individual criminal responsibility) but it demonstrates that domestic courts established as a transitional justice mechanism can help establish certain corporate responsibility.

Before it became harder for victims of human rights violations abroad to sue corporations for compensation in the US under the Alien Tort Claims Act (ATCA), civil actions via ATCA were in effect the extensions of domestic transitional justice initiatives. By demanding compensation through their ATCA action, apartheid survivors belonging to Khulumani, were extending efforts in South Africa to hold corporations accountable through the truthseeking process. The ICTJ amicus brief in support of the plaintiffs argued that the TRC process “did not put an end to the pursuit of accountability for human rights violations committed under apartheid (but) in fact started it.”

But South Africa’s transitional justice experience shows the limits of holding corporations accountable in a transitional justice process animated by ‘reconciliation’ and guided by a design that limited to a matter of days the hearings on the role of business during apartheid. It did not help advance corporate accountability that post-apartheid governments ignored the TRC’s recommendation for a one-off ‘wealth tax’ on businesses that profited from apartheid. The failure of transitional justice in South Africa to hold corporations accountable was inherent in the design of the South African transitional justice ‘model.’ It makes it unreasonable to expect the Khulumani ATCA case to rectify these deficiencies.

But countries such as Timor-Leste, Chad, Liberia, Sierra Leone, Kenya and most recently Tunisia, were not dissuaded from turning to transitional justice as a way of extracting corporate accountability for the role of businesses during dictatorship or armed conflict. In different ways, their truth commissions and prosecutors examined ‘economic crimes’ alongside physical integrity violations, and the role of corporations in both types of abuse. The Liberia Truth and Reconciliation Commission (TRC) devoted 54 pages of its report to defining ‘economic crimes’ and identifying ‘economic criminal actors.’ The effort was inconsistent. The categories of violations, for example, refer to corporations involved in ‘aiding and abiding’ in economic crimes without an explanation of what that meant. On the other hand, the report detailed the impact of illegal timber exploitation during the conflict and the role played by corporations. This was possible because of the collaboration among local civil society, government and international community representatives in the Forest Concessions Review Committee (FCRC), whose data the TRC used. This suggests that when international technical expertise works with and respects local civil society and national government knowledge, examining corporate accountability in post-conflict contexts can be done effectively.

At the start of its work, the Sierra Leone truth commission decided that “perpetrators may be both natural persons and corporate bodies, such as transnational companies or corporations” and that its mandate “is not confined to violations of human rights that might constitute crimes, under either national or international law, nor is it limited to violations committed by States or governments.” The Timor-Leste truth commission not only investigated economic and social rights violations during the Indonesian occupation but found that “violations of economic and social rights did not occur only as a by-product of military operations” but were “intertwined with private and corporate interests,” including the Indonesian military’s partnerships with business persons in the coffee, timber, and oil sectors. These examples demonstrate that normative definitions may be helpful in examining corporate accountability but should not become obstacles to establishing the factual and more complex historical narrative underlying allegations of corporate complicity.

In post-Marcos dictatorship Philippines, foreign corporations had a decisive role in facilitating mutually reinforcing impunity for large-scale corruption and human rights violations (an argument that I have written about elsewhere). Among the transitional justice measures later initiated, three processes led to successful outcomes, all related to the link between human rights violations and economic crimes: a commission prosecuted the Marcos family for corruption and recovered $680M of their ill-gotten assets in Switzerland; an ATCA case filed in Hawaii found the Marcoses liable to compensate around 10,000 victims of human rights violations; and a 2013 reparations law and program is being funded using $200M out of the $680M recovered from Swiss banks.

Tunisia’s Truth and Dignity Commission (TDC) will examine the relationship among repression, resource extraction in the south and land use in the north, to large-scale unemployment and marginalization. Even in countries such as Argentina, a new wave of transitional justice initiatives have led to calls for examining the role of foreign and local banks in financing the military junta or the role of businesses in violent repression. Argentina has set up a special Ministry of Justice unit to examine the complicity of businesspersons in crimes committed during the military junta period.

What lessons stand out from these experiences? Without oversimplifying these complex examples, it is clear that how we define perpetrators, violations and crimes must evolve with the ways in which armed conflict and repression have intersected with economic crimes and business practices. In many of these examples, the roles of banks and financial institutions have to be considered in examining corporate accountability. In countries emerging from the Arab Spring, but particularly Tunisia and Egypt, these cases are assumed to be a matter of transitional justice. Banks and economic policymakers have been implicated in dictatorship-era crimes, including those linking political repression and corruption.

The 2008 ‘Framework for Business and Human Rights” drafted by Special Representative of the Secretary-General on Human Rights and Transnational Corporations is useful. But they are also too broadly-framed, which might explain why banks that have been implicated in laundering dictators’ assets have accepted it since it may not be as consequential as such standards ought to be. This business and human rights framework can be read alongside the 2005 UN Basic Principles and Guidelines on the Right to Remedy and Reparation, which contains many of the norms relied on in transitional justice contexts. Prof. Theo Van Boven, who drafted the 2005 Basic Principles, notes that these were meant to apply as well “to business enterprises exercising economic power.” Norms on the recovery of ill-gotten assets and against large-scale corruption are now codified in the UN Convention Against Corruption (UNCAC). These are rooted in the experiences of global South countries. These norms apply not only to individual dictators with ill-gotten assets or leaders of armed groups who may be implicated in pillage; they also explicitly cover banks and financial institutions and the profits that are the products of human rights violations or international crimes.

In teasing out the meaning of these norms, it will be important to encourage contributions from global South practitioners and policymakers. Reliance on the incestuous reproduction of ideas among those working on accountability and transitional justice in the global North can lead to ‘international standards’ that are disrespected by mostly Western economic actors and disowned by global South governments and activists. This might not seem immediate to academics, but these legal questions have life-changing implications for people in impoverished countries in the global South, many of whom are already marginalized even before the drive for profit and the agendas of dictators or armed groups intersect. When Arundhati Roy challenged the notion of corporate philanthropy, she asked whether the idea was simply to “keep the world safe for capitalism” while masking the role of corporations in creating or maintaining conditions of poverty and exclusion. We should ask why then do we want to pursue corporate accountability? Is the goal simply to make corporations as susceptible to prosecution as individuals? Should we stop at having binding and more consequential regulation of corporate conduct? Perhaps this can be more than that and can instead be an opportunity to reconsider the assumption – now increasingly questioned in the global South –that democratization, human rights and transitional justice can only be pursued in post-conflict or post-dictatorship developing societies that also accept an economic model that ensures the profitability of corporations, particularly foreign capital.

 

Uncharted Territory


Mark B Taylor, Research Director, Rights and Security, Fafo Research Foundation, Oslo


In his excellent article proclaiming a “turn” to corporate criminal liability, James Stewart suggests the tort remedies of the Alien Tort Statute needs some company. Several commenters have already noted that criminal law is not quite a novel approach to corporate involvement in atrocity and they are correct. But it has been a while since the post-war trials of German and Japanese industrialists and little has happened on the criminal law front in that time.

Stewart’s exemplifies his optimism about corporate criminal liability with an analysis of the Argor case. Criminal complaints against corporations are also being investigated in Sweden, in connection with oil extraction in Sudan, and in France in connection to surveillance technology sold by two different companies, one to the regime in Syria and the other to the Qaddafi regime in Libya. There have been several prosecutions of individual business people for war crimes or related offences in various jurisdictions – both in the U.S. and in Europe.

It may not seem like much, but together these developments represent a simple reality: there are today more cases before prosecutors alleging corporate involvement in international crimes than ever before. If one widens the lens to include trafficking cases, or civil cases involving serious human rights abuses, or resulting from environmental harms, there would appear to be a case to be made that companies operating in high-risk zone face an increasing liability risk.

Stewart points tantalizingly into the future when he suggests that there is as yet “uncharted” terrain in the relationship between commerce, atrocity and international crime. About a decade ago, Fafo – along with Professor Anita Ramasastry, Robert Thompson and small group of fellow travelers – began the search for international criminal law options in domestic law. Finding far more black letter than we had bargained for, we proclaimed a “potential web of liability” both criminal and civil. But then, as now, we could find no conviction of a corporate entity for involvement in war crimes, crimes against humanity or genocide. It is true that more cases have been launched in the ensuing decade than previously, but few have ever reached trial.

One explanation for this is that corporate criminal liability is only one legal instrument with which to address a problem that in fact requires a much broader regulatory approach; namely, the problem of war economies. International law has left the problem of war economies undefined and relatively untroubled as a focus of legal research. There is no general rule against economic activity in armed conflict. Profiting from armed conflict is not forbidden under international law. But this hasn’t stopped various initiatives from lurching forward in international fora in response to the pathologies that result from these economies. As already mentioned, prosecutions have been launched in domestic courts over allegations that business entities, both natural and legal persons, have perpetrated or contributed to violent crimes, including war crimes, crimes against humanity and genocide. In addition,

  • International criminal tribunals established in the aftermath of armed conflicts have prosecuted individuals in connection with their role in economic aspects of international crimes, such as forced labour and pillage;
  • Authorizations of various sanctions by the United Nations Security Council under Chapter VII of the U.N. Charter have increasingly sought to limit the flows of men, arms and finance to various conflicts, not least through the counter-terrorism committee;
  • The UN Arms Trade Treaty, passed by the General Assembly in April 2013, came into force in December 2014, marking the first time states at the U.N. have collectively agreed to regulate the trade in a sector vital to the preparation and conduct of conventional warfare.
  • The U.N. General Assembly, and regional organisations such European Union, the Organisation for Economic Cooperation and Development (OECD), and the International Commission on the Great Lakes Region (ICGLR), the U.S Congress and governments in central Africa have introduced measures to regulate the cross-border trade in conflict minerals;

Taken together, these seem to indicate that an increasingly diverse range of international and trans-national law regimes are moving towards the regulation of certain aspects of commerce in armed conflict. But it is questionable – to say the least – as to whether this diverse range of legal bits and pieces adds up to a regulatory whole.

Public scrutiny is increasing, and with it the likelihood of prosecutions. But this shift – if it is a shift – is taking place in a context in which there is real uncertainty as to what is criminal about economic activity associated with conflict or widespread violence…as distinct from what might be unlawful, or what is merely socially or ethically proscribed. Stewart’s “turn” suggests that international criminal law may offer some coherence to this diversity. I suspect he is correct, not least because international criminal law can furnish the substantive norms to help define what is in fact criminal about commerce connected to atrocities.

Stewart’s advice is that we begin the process of charting the relationships between commerce, atrocity and international criminal law. Some of this work has already begun at Fafo, with the support of the NOREF, the Norwegian Peacebuilding Resource Centre. The literature points to the centrality of violence and economic informality to an understanding of contemporary war economies. For applied social science research, this suggests that, for the purposes of charting the relationships between commerce and atrocity, approaches from criminology or the sociology of armed violence may have more to offer our understanding of contemporary war economies than law or economics.

Consider Syria. In the spring of 2014, insurgents – the Islamic State in Iraq and al-Sham (ISIS), also known by its Arabic acronym Dha’ish – leapt onto the global stage by capturing the Iraqi city of Mosul from government forces. As Dha’ish consolidated its hold on territory spanning north-eastern Syria and north-western Iraq, and declared itself to have established a new Caliphate or Islamic State, news reports soon emerged of the looting of bank reserves in Mosul, protection rackets and kidnapping rings, and the integration of Dha’ish conflict financing into illicit global flows, such as fuel smuggling across the border into Turkey, child soldier recruitment in Jordan and a steady stream of foreign fighters arriving to swell the rebel ranks. Combined with donations from supporters in the region and globally, this activity very quickly earned Da’ish a reputation in the media as possibly “the most cash-rich militant group in the world

If states are serious about grappling with the problem of conflict financing, they are going to have to get serious about regulating the economic activities which integrate these war economies to the global economy. Sanctions are one way to do that but, on their own they cannot hope to respond effectively to the diversity of economic activities at issue, not least when large parts of the relevant sectors of global trade – arms trade, commodities – remain largely unregulated.

The phenomenon of insurgents financing their activities through a combination of illicit economic activity and state-sponsored support is not new. Nor is it a revelation that many civilians survive on the very same local and informal economies with insurgents use to help finance their war. But the larger significance of Stewart’s “turn” to corporate criminal liability is, I hope, that we are beginning to ask the right questions about this age old activity. Questions such as How are those of us not living in the conflict zone nonetheless implicated in these war economies? Are there really no barriers to trade which supports murderous insurgents or government war criminals? Who is enabling these illicit war economies to be integrated to the global economy? And are there really no laws against this sort of thing?

 

One of the Missing Pieces in the Accountability Puzzle


Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.


Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.

Corporate Criminal Liability for International Crimes? Yes Please


Simon Taylor is a Director and co-founder of Global Witness


Over the last 20 years, we at Global Witness have waded through an endless stream (now a torrent) of corporate and individual abuse, asset-stripping and the furtherance, through financial support, of mass murder and destruction. So with great excitement, I read James Stewart’s paper, “The Turn to Corporate Criminal Liability for International Crimes.” From my perspective, anything that could be deployed to begin the process of holding companies and their officers to account for the kind of behaviours that we regularly expose is a welcome development. So please continue the debate and bring us those tools.

I should pre-empt my comments by stating I am not a lawyer, and have little exposure to legal matters and their finer points beyond the often tough process we conduct to ensure our output stands, despite the brutalities of the UK’s libel laws. That leaves me, I think, with a fairly basic understanding of James Stewart’s arguments, and comments about his paper on the Opinio Juris site. I am also left with many questions. For this reason, I would ask readers to forgive me my likely mangling of terminology, and instead, I hope I can contribute to the debate with a challenge or two, and hopefully provide you with an insight into our world of investigation, exposé and frequent collision with corporate and individual perpetrators.

Some of you will be familiar with our work – from its start with the exposure and shutting down of illegal timber exports from Khmer Rouge areas in Cambodia to Thailand, through bringing “blood diamonds” to world attention, conceiving and co-launching the global Publish What You Pay (PWYP) movement, and our work on banks that take dictators loot, and anonymous companies and trusts that hide the perpetrators. Across our work, there are common themes and many of them relate to the mechanisms and facilitators used, not to mention the legal inadequacies that variously aid and abet the perpetrators.

Global Witness “investigates and campaigns to prevent natural resource-related conflict and corruption and associated environmental and human rights abuses.” For the purpose of this discussion, think of the following question: How could we ensure that exploitation of natural resources can lead to a positive development outcome given that the natural resources of a country generally belong to the people of that country? Rather than what we currently see, with very few exceptions, which is a predatory relationship between exploiting company/investors, more often than not, involving a “Faustian pact” with kleptocratic elites who view their country’s resources as their own personal cash-cow?

Half of what we do is to investigate. We look for the facts. We want credible evidence that clarifies what is happening, who is doing what, and how they are doing it. The other half is seeking change – and that can often end up in the long-term grind of seeking new international mechanisms that bring change in behaviour. We deploy the strength of our evidence to help shape the outcome. James Stewart mentions a number of these, including the Kimberley process on conflict diamonds. I won’t go into that here, but I would mention another, the Extractive Industry Transparency Initiative, or EITI, where civil society in theory is empowered to hold governments and companies to account for the payments received and paid.

In seeking to answer my development question, I think the following analogy helps: Imagine in front of you, a bathtub, full of milky water, due to bath salts. You cannot see the bottom, but the water is leaking away. This is because the tub has various holes in the bottom, of differing sizes, and in multiple locations. Your task is to find the location of the holes, work out how large they are and their shape, and then fashion a plug to stem the flow. EITI, which remains a work in progress, should eventually become one of those plugs.

Over time, my attitude to the corporate role in these processes has hardened, but it has been because of the behaviour of the companies. To illustrate this point, let me focus on corruption in the oil sector. Thinking back to the late 1990’s and early 2000’s, and to the question asked of oil companies: whether they should disclose the payments they make for extraction in countries like Angola? At that time, around 90% of Angolan state income was generated from oil, and tens of billions of dollars were being (and continue to be) siphoned off by the elite. I remember the response: “What is the business interest?” I found it unfathomable how anyone, given the situation of utter deprivation that prevailed in Angola at the time, could ask such a question. That is unless one takes into account the thesis of Joel Bakan in his extraordinary documentary/book “The Corporation” – that the predominant corporate model behaves like a psychopath! I don’t mean as we often think of psychopaths as deliberate and unthinking killers, more that the corporate interest always comes first, thus outright criminal behaviour, or behaviour that by any normal ethical standards should be criminalised, can become acceptable – the cost-benefit analysis being the extent of thinking about whether to proceed!

For me, this demonstrates the limits of Corporate Social Responsibility. For sure, there have been some major improvements in corporate behaviour, thanks to some incredible work by key CSR specialists within and outside companies – and this should continue. But they do not go anywhere near far enough. In my experience, the limits of CSR are delineated by the boundary that separates corporate interests from public interests – where they are aligned, progress can be made, but where not, the corporate interest always comes first. Our experience from over 17 years of campaigning to obtain a global standard of disclosure of project-level payments made by extractive companies strongly supports this thesis. Within months of launching the PWYP campaign in 2002, we had won the moral argument as to whether extractive companies should disclose such payments. But, with some notable company exceptions, it has taken what I would describe as trench warfare ever since, with us and our amazing PWYP colleagues, fighting the companies for every incremental improvement.

Why do companies that now profess their support for transparency behave in this way? In my opinion, this is because in many natural resource-rich, but desperately poor countries, access to concessions often requires illicit payments – often a situation created by the companies. Thus disclosure, could either lead to companies falling foul of anti-corruption legislation, or at least major embarrassment. This is precisely why we are seeking mandatory disclosure laws so that companies cannot make such payments without being exposed. Conversely, rather than helping to make a global standard, thereby helping themselves to avoid this situation, many companies have decided they want to maintain the status quo, and are expending considerable effort to undermine incoming disclosure laws, such as Amendment 1504 of the Dodd-Frank Act and the transposition in Europe of the Accounting and Transparency Directives, which require project-level payment disclosure.

So back to my bathtub – we need help. We’ve found many of the holes, and we are shaping several of the plugs – and we will continue to do so. But there are several we simply cannot find, and perhaps we do not even appreciate their existence. Here I am particularly thinking of legal remedies that can be used to bring cases, or at least imply that possibility, to impact decision-making at the board room. People often think of corruption as an exercise of payments with brown envelopes to get what you want. But in our experience, it is much more pervasive and of a scale that frequently bleeds countries dry – driving conflict, acting as a recruiting sergeant for disenfranchised youth. Denial of healthcare, education or frankly any prospect of a future breeds violence – and whilst it often might not be possible to link corrupt corporations and their officers with pulling the trigger, we know of many examples where they have been directly responsible for the conditions that lead to the trigger being pulled, and even bankrolled buying the gun. Of course we want to see efforts on all fronts to bring about changes in corporate behaviour, but until we see serious jail time as a possibility, and an end to what I consider ineffectual “cost of doing business” style fines, nothing will change.

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: stewart@law.ubc.ca with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.

 

JGS

Blackwater’s Unsung Heroes


This piece is a cross-post from something Sara Grey and I published on Just Security several days ago (see here). Working on atrocities can be corrosive of one’s respect for humanity, so honoring incidents of moral courage is a healthy antidote. I remember one example of a junior soldier refusing his drunk (and armed) superior officer access to a warehouse of women at Čelebići prison camp in Bosnia for fear that the women would be raped, but this is an especially striking story of moral courage, too. Note that deliberately, we have never said anything about our perception of the guilt or innocence of the four Blackwater guards tried in Washington D.C., even though we collectively sat through the whole trial. I am grateful to Matt Murphy and Adam Frost for their kind emails to me since we originally posted this.


In a recent discussion of newly released memos on torture in the War on Terror, David Cole has surmised that “had anyone had the temerity to say no, the program almost certainty would have halted.” Likewise, in an excellent two-part blog (here and here) a decade after the Abu Ghraib scandal, David Luban cited Hannah Arendt’s observation that “most people will comply but some people will not,” before lauding those who never lost their moral bearings in America’s decent into systematized torture.

Some time has passed since four Blackwater guards were convicted last October of killing numerous unarmed civilians at Nisour Square, Baghdad. Understandably, the trial and verdict attracted a great deal of media attention, but something very important, paralleling the concerns that preoccupy Luban and Cole, has gone entirely unnoticed in the aftermath. Some people within that Blackwater unit said “no,” and maintained that position in the face of tremendous opposition.

Based on public perception, one might be tempted to think that nothing noble happened amongst the group of Blackwater guards at Nisour Square that afternoon. That impression is wrong. On the contrary, three members of Blackwater’s Raven 23 team who deployed that day displayed tremendous moral courage during and after the massacre. Without them, the death toll would likely be higher and there would almost certainly have been no trial or convictions. For this reason, we must remember, honor and celebrate their moral courage and humanity.

When Raven 23 set out from the Green Zone on September 16, 2007, Mark Mealy, Matthew Murphy, and Adam Frost were in the first two of four armored vehicles. According to their own testimony at trial, they watched in horror as their mission quickly transformed into what Murphy later called “the most horribly botched thing I’ve ever seen in my life.”

Matthew Murphy, now a policeman in Boston, was a rifleman in the Marines for two years before joining Blackwater in Iraq. During the trial, he testified that he heard gunfire from his teammates, then looked over his left shoulder to see one of them firing grenades at a white Kia, before others also turned their machine guns on civilians in a traffic jam. On the stand, Murphy bravely contradicted his teammates who said that they regretted nothing, by testifying that he saw no incoming gunfire and perceived no threat.

After the ordeal subsided, the Blackwater convoy left Nisour Square to the North against the flow of traffic, in what prosecutors described as like trying to enter a football stadium at the end of a game while the crowd is pouring out to the parking lot. During this obstructed exit, Murphy signaled to some children to get down, out of fear for what his teammates might do. It’s hard to say in hindsight what might have happened if he hadn’t done this, but given how events unfolded that day, there are strong chances Murphy prevented more unnecessary casualties.

Later, two cars blocked the convoy’s path, so Murphy directed the cars to turn around. When one of his teammates, Paul Slough, opened fire on the vehicles anyway, Murphy yelled, “Cease fucking fire!” As a result of his intervention, the injured driver was able to drive away, unlike so many others that afternoon. Needless to say, those legal advisers Luban and Cole have discussed were not in a war zone, surrounded by armed colleagues who had demonstrated the capacity to shoot people who posed no threat to them.

Murphy was not alone. Mark Mealy joined Blackwater after ten years in the Army, six of which were in active service. After retiring from the Army, he joined the National Guard with hopes of completing post-secondary education, but when his National Guard unit deployed to Iraq in 2003, his plans changed. After his Guard deployment, he worked for several private contractors in Iraq, eventually took a position with Blackwater, and in a stroke of exceptionally poor fortune, found himself in one of the firm’s armored vehicles in Nisour Square during that terrible fifteen minutes.

When the chips were down, Mealy was also on the right side of Arendt’s divide. After returning to base, he convened a meeting in his room, where he and the others we mention here confronted their teammates, saying they’d seen people “murdered out there.” Predictably, this did not go down well. The team leader barked that they needed to find a new line of work if they had a problem with what had happened. After that, the defendants gave Murphy, Frost, and Mealy the “stink eye,” and one later told Frost, now a policeman in Phoenix, that things might get rough for him around the base.

Undeterred, these three men jointly approached their commander, Chuck Pearson, complaining of “excessive use of force” and “reckless conduct.” At trial, Pearson testified that in all his years in the armed forces, he’d never seen a group of soldiers so disturbed by their own unit’s actions: the three men seemed to be in shock and Frost was crying. Revealing this emotion at trial was also an act of bravery for a soldier, but in this very human reaction, we also find something to cherish and honor.

Several days after these men met with their superior, Blackwater ordered all members of this team to report to the US Embassy in Iraq to provide confidential statements about what transpired at Nisour Square. When these statements were subsequently leaked to the public, Adam Frost began a diary to memorialize events as they really took place. In one entry he wrote:

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public … .”

That this premonition did not come to pass is largely the result of these few men; Murphy, Frost, Mealy, and others who bravely provided essential testimony in the landmark trial in Washington, DC. They also paid a price for doing so. In its rousing closing statement, the prosecution told the jury that Murphy, Frost, and Mealy “were called rats and they were looked down upon by the contractor community. And they nonetheless did it. Why? Because they were courageous enough and strong enough to know that that was wrong. That was slaughter.”

None of these men worked for Blackwater again. Murphy signed another contract with the company soon after the harrowing incident, and then went on leave. While away, he got a phone call from his employer telling him that, because of the incident, he was “suspended indefinitely.” Frost also went on leave and was fired a week later. As for Mealy, he simply told the jury that he was done with Blackwater’s Raven 23 Unit.

All of this, of course, suggests that these men deserve recognition alongside the other moral heroes David Luban rightly praises. Martin Luther King, Jr. once said, “courage is an inner resolution to go forward despite obstacles.” In the face of these sorts of pressures in warfare, many would play down their conscientious reactions and say nothing, especially given the dangers they themselves faced. Murphy, Frost, and Mealy “went forward” with their consciences and emerged from this horrendous saga as unsung heroes deserving of our praise and respect.

In reading David Cole’s new reports, it’s hard not to feel like the American leadership in the War on Terror has, on these crucial issues at least, had far less moral courage or humanity in far easier personal circumstances. Perhaps that makes them all the more blameworthy.

Life in the Global Public Domain: Response to Commentaries


John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. From 1997-2001 he served as the first-ever UN Assistant Secretary-General for Strategic Planning, where his responsibilities included establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. From 2005-2011 he was the Special Representative of the UN Secretary-General for Business and Human Rights, in which capacity he developed the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, entitled Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013), has been translated into Chinese, Japanese, Korean, Portuguese, and Spanish.


As the author of the United Nations Guiding Principles (GPs), I am honored that so distinguished a group of scholars has agreed to address them in this symposium. They do so not only from a policy perspective but also on deeper conceptual, legal and even philosophical grounds. I am particularly pleased that several of the commentators recognize that the heterodox nature of the GPs is necessitated by fundamental changes in the system of global governance and law-making of which human rights traditionalists may be unaware, tend to ignore or fail to understand.

Foundational Logics

Before responding to the commentaries, allow me to provide some of the intellectual and policy context within which the GPs were conceived, because their text alone cannot possibly convey it. In developing them over the course of a six year UN mandate, involving nearly fifty international consultations, extensive research and pilot projects, I had no interest in producing a piece of paper that would gather dust (or whatever electronic files gather) on library or scholars’ shelves. I strove to achieve what Professors Pauwelyn, Wessel and Wouters describe as “thick stakeholder consensus,” in contrast to the “thin state consent” that so often emerges from intergovernmental negotiations.[i] And I then hoped to leverage that consensus into “endorsement” by the UN Human Rights Council, adding to the GPs’ authoritative stature, helping to achieve their uptake by other international standard setting bodies, and embedding them in the global regulatory ecosystem for business and human rights.

In the event, the Council’s reception was unprecedented: never before had it endorsed a normative text that governments did not negotiate themselves. International uptake of key elements was swift: by the Organization for Economic Cooperation and Development, the European Union, the International Organization of Standardization, the International Finance Corporation, the Human Rights Commission of the Association of Southeast Asian Nations, the General Assembly of the Organization of American States, and the African Union, as well as by scores of individual states and businesses—even by the American and International Bar Associations. Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.

But here comes a confession: these things involved politics. I state it openly in my book reflecting on the experience: “Accordingly, the GPs needed to be carefully calibrated: pushing the envelope, but not out of reach.”[ii] For some critics, this is the GP’s original sin, staining them beyond absolution. Thankfully, most observers see it as precisely what enabled long-standing aspiration to be admitted into the realm of actual policy and practice. And when I presented the GPs to the Human Rights Council I stated that its endorsement would not end all business and human rights challenges; but I added that it would mark the end of the beginning, because for the first time there would be a commonly agreed-upon foundation on which to build.

Now on to loftier matters. I next want to elaborate briefly on the idea of “polycentric governance” which the GPs embody because it is not always fully understood but is critical to how the GPs are structured and intended to operate. It rests on the observation that corporate conduct at the global level today is shaped by three distinct governance systems. The first is the traditional system of public law and governance, domestic and international. Important as it is, by itself it has been unable to do all the heavy lifting on this and many other global policy challenges, ranging from poverty eradication to combating climate change. Indeed, formal state-based multilateralism has become harder, not easier in the past decade or so.[iii] The second is a system of civil governance involving stakeholders affected by business enterprises and employing various social compliance mechanisms, such as advocacy campaigns, law suits and other forms of pressure, but also partnering with companies to induce positive change. The third is governance by business enterprises of their own affairs, which internalizes elements of the other two. In the case of multinational corporations, corporate governance so conceived is a distinct transnational law-making system in its own right—the private law of contracts, with direct consequences that can equal and in many cases surpass the scale and effectiveness of public governance in particular issue areas.[iv] Thus, the intellectual and policy challenge as I saw it was to try and formulate an authoritative basis whereby the three forms of governance systems become better aligned in relation to business and human rights, compensate for one another’s shortcomings and begin to play mutually reinforcing roles, out of which cumulative change can evolve over time. From the outset I rejected the voluntary/mandatory dichotomy that had paralyzed creative thinking and policymaking for too long, and insisted that “a smart mix of measures” would be required to get from here to there.

To foster alignment among the three governance systems, the GPs deliberately draw on the different discourses and rationales that reflect the different social roles they play in regulating corporate conduct. Thus, for states the emphasis is on the legal obligations they have under the international human rights regime to protect against human rights abuses by third parties, including business, as well as policy rationales that are consistent with, and supportive of, meeting those obligations. For businesses, beyond compliance with legal obligations, the GPs focus on the need to manage the risk of involvement in human rights abuses, which requires that companies act with due diligence to avoid infringing on the rights of others and address harm where it does occur. For affected individuals and communities, the GPs stipulate ways for their further empowerment to realize their rights to remedy where negative impacts occur. This multi-perspectivalism too has caused puzzlement if not consternation among traditionalists.

 

Drawing these foundational elements together, the GPs rest on three distinct but what I hoped would become dynamically interrelated pillars:

  1. The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
  2. An independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved;
  3. Greater access by victims to effective remedy, judicial and non-judicial.

The thirty-one principles, each with commentary, elaborate the meaning of these foundational elements and their implications for law, policy, and practice. For its part, the Human Rights Council didn’t simply endorse a general idea; its endorsement covered the specific guidance that the GPs stipulate.

This approach may come more naturally to a political scientist than to human rights lawyers, ethical theorists or advocacy groups. In his commentary, John Tasioulas identifies several of what he calls “dogmas” that have limited past efforts to strengthen the international protection of human rights against corporate abuse: statism, legalism, a failure to recognize that human rights globally can only be secured through forms of polycentric governance, the growing fragmentation of international law and of the international political order—to which I would add the passionate belief on the part of some that certain human rights protections already “exist” in some ethereal sense, when the battle precisely is how to bring them into being and secure their effectiveness.[v]

Questions about Polycentric Governance

I now turn to the commentaries, taking them up thematically rather than by author. It comes as little surprise that the first concerns polycentric governance. To begin, Tasioulas raises what he calls a “vexing prospect” regarding the GPs corporate pillar. Let me explain. Under the GPs, companies have two types of requirements. One is to comply with all applicable laws. The other is to respect internationally recognized human rights in their own activities and through their business relationships, irrespective of what the host state does or does not do. Apart from legal requirements, the source of this independent corporate responsibility to respect is rooted in social norms and expectations. Tasioulas raises the concern that some societies are resigned to accepting lower expectations than others; he may well be right but we don’t need to debate the point here. More important for present purposes is that from it he infers the fear that “the idea of unitary human rights standards for the entire globe goes by the board.” This misses a critical element of the polycentric governance model.

A decade ago I published an academic article that introduced the concept of “the global public domain.” I described it as “an increasingly institutionalized transnational arena of discourse, contestation and action concerning the production of global public goods, involving private as well as public actors. It does not by itself determine global governance outcomes any more than its counterpart does at the domestic level. But it introduces opportunities for and constraints upon both global and national governance that did not exist in the past.”[vi] The GPs incorporate this understanding. Thus, the social norms and expectations regarding the corporate responsibility to respect are not simply local. The local increasingly is connected to and reinforced within the global public domain, thanks to civil society networks, social media, and the growing recognition by companies themselves in many sectors that enterprise-wide social risk management is in their own best interest.

When Oxfam America funds a community group in Cajamarca, Peru, which organizes protests against the local operation of Newmont Mining, headquartered in Denver, Colorado, and brings the community leader to Newmont’s annual shareholder meetings to make their case to the CEO and the press, those actions unfold in transnational space, not simply separate local spaces. Similarly, when Zambian or Andean communities lodge complaints against Chinese companies, based on social norms and expectations previously established with Western companies in the same or nearby locales, and the Chinese managers request guidance from Beijing, and Beijing’s guidance in turn references the GPs and the OECD Guidelines for Multinational Enterprises, those acts involve transnational space.[vii] The aggregation of such transnational spaces constitutes “the global public domain.”

Surya Deva also observes that “operations of business are no longer constrained by artificial territorial boundaries.” But in contrast to Tasioulas, his understanding of international law-making remains resolutely statist in character. Corporations are merely targets of regulation by the public governance system. In his scheme, they have no role in governance including as transnational law-makers, which is ironic because, at the same time, he insists that multinationals are so much more powerful than many states.

Questions about Scale of Treaty

The second major theme in the commentaries concerns the scope and scale of any international business and human rights treaty, a discussion renewed by the adoption by the Human Rights Council Resolution 26/9 in June 2014, which established an intergovernmental working group “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” A “treaty alliance” of some 600 NGOs have signed on in support.[viii]

Before responding to the commentaries on the matter of the proposed treaty, a few basic facts are in order. The resolution’s sponsors were Ecuador and South Africa, supported by Bolivia, Cuba and Venezuela. It did not garner a majority of votes in the Council, only a plurality. To obtain even a plurality, the sponsors had to include a footnote in the resolution excluding national firms from the treaty’s scope, notwithstanding its title.[ix] Virtually every major home country of multinationals either voted against the proposal or abstained. China was an exception, but its explanation of vote made it clear that its position hardly differed in substance from other home countries’.[x] Nor can it be said that the vote divided cleanly on North-South lines. For example, apart from the sponsors, all Latin American members of the Council, including Brazil and Mexico, abstained. Under the UN’s informal protocol, abstaining on a resolution pushed strongly by your neighbors can be taken to signify non-support. Finally, the proposal makes no effort to build on the GPs; in fact, the most ardent treaty supporters have done virtually nothing to act on the GPs within their own countries, and some have opposed references to the GPs in other international fora. Instead, the proposal essentially would start the process all over again with the aim of producing a single, overarching legal instrument that, like a silver bullet, promises the resolve business and human rights challenges once and for all.

The European Union and the United States indicated that they will not participate in the negotiations, although I suspect that eventually they will. NGO critics of their position attribute it to corporate influence, which of course cannot be discounted. But they fail to entertain the possibility that there is also something fundamentally flawed with the proposed approach, which on their own analysis has produced repeated failure in the past, and on which I elaborate below.[xi] Ecuador, the main force behind the proposal, estimates that negotiations could take a decade or more. Erika George, in the subtitle of her commentary, cleverly expresses the main challenge we now face as “making the most of the meantime.” But my best guess is that if the current parameters of the resolution and the intent of the treaty sponsors hold fast, one of two outcomes is likely to occur: either the process will drag on like the 1970s UN Code of Conduct for Multinational Corporations negotiations, which were finally abandoned in 1992; or Ecuador and its allies gather enough votes and ratifications from small states to produce an equivalent to the Migrant Workers Convention, which entered into force in 1990 but has not been ratified by a single migrant worker-receiving country—the equivalent in the present case being the major home countries of multinational corporations. By 2025 nearly half of the Global Fortune 500 firms are expected to be domiciled in emerging market countries, further narrowing the North-South divide that some have sought to resurrect in support of the current treaty initiative.[xii]

Now back to the commentaries. Tasioulas notes my long-standing objections to any attempt to shoehorn the entire complex of business and human rights issues into a single, overarching international legal instrument. The brief explanation is that the category of business and human rights involves an enormous range of problem diversity, legal and institutional variations, as well as conflicting interests across and even within states. Therefore, a general business and human rights treaty would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places. Jenny Martinez reaches much the same conclusion in her commentary. But Tasioulas as well as Surya Deva and Frederic Megret ask: why doesn’t this objection apply to the GPs? They are comprehensive, involving all states, all businesses and all internationally recognized rights. The answer is simple: because the GPs are not a treaty. Governments would never have endorsed them if they were. The GPs are a “soft law” instrument, which increasingly is how governments make initial moves into highly complex and conflicted issues. Even so, several generally human rights-friendly states needed considerable persuasion to accept certain foundational formulations in the GPs, not merely because they were protecting “their” corporations as might be assumed, but in defense of strongly held legal doctrines and to avoid setting precedents for other, unrelated, matters.[xiii]

The commentators also address my suggestion that, if treaty negotiations are to have any chance of success, they should focus on “carefully constructed precision tools” aimed at specific governance gaps. I first argued this case in a 2007 law journal article.[xiv] In the context of the current treaty debate, I have suggested that an obvious first instance would be corporate involvement in “gross abuses.”[xv] I did so because of the severity of the abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains considerable confusion about how they should be implemented in practice when it comes to legal persons (think Alien Tort Statute post-Kiobel); and because the knock-on effects for other aspects of the business and human rights agenda would be considerable, as was true of the ATS.

Surya Deva rejects these arguments. He believes that the first takes too constricted a view of the role of international law. I well understand that international law has expressive functions in addition to its regulative role. But there is no shortage of expressive international human rights law. The last thing victims need is a symbolic gesture that makes promises which cannot be kept. What is needed is laws that get implemented and make a difference on the ground. Deva also rejects the focus on gross abuses because it doesn’t cover enough human rights territory (it is “irrelevant whether human rights violations are regarded as ‘gross’ or not,” he states). But the real choice, as Jenny Martinez puts it bluntly in her commentary, is between a first step and no step at all. For my part, I find it unfathomable that in the current international political order states would agree to establish and enforce a single set of global standards for corporate conduct concerning every internationally recognized human right, ranging from extrajudicial killings to providing an adequate work-life balance. And I shudder to think of the damage that would be done to existing human rights standards in the process. At a deeper level, Deva would do well to engage the analysis of scholars such as John Douglas Bishop and scholar-practitioners like Philip Alston and José Alvarez, who have thought seriously about the societal risks of over-extending legal human rights obligations to corporations.[xvi] In short, like it or not, making choices about the substantive focus of a treaty is inevitable; the only question is who makes them, on what basis and with which consequences.

Tasioulas and James Stewart also raise questions about the “gross abuses” focus, but of a more technical nature. Both assume that addressing gross abuses would require states to establish a standard of corporate criminal liability as a matter of international or national law. This, Tasioulas fears, would “obscure the need for other sorts of responses, such as compensation.” But criminalization is not necessary. While the trend to recognize criminal liability of legal persons has been increasing, a number of countries still do not do so. Following the kinds of approaches adopted in the OECD and UN anti-bribery conventions, states would be free to consider appropriate forms of liability in line with the fundamental principles of their national legal systems, which could include civil or administrative liability, with corporate dissolution as the ultimate penalty. Compensation could also be made available, and the liability of legal persons could be without prejudice to criminal liability of natural persons who may have contributed to the corporation’s liability.

Moreover, while it is true that it remains unclear how far a treaty instrument on gross abuses would reach in addressing serious violations of social and economic rights, it certainly would encompass a number of grave harms in which business enterprises have been involved, including slavery and slavery-like practices, such as forced and bonded labor, both of which remain widespread.[xvii] In any case, bear in mind that the burden of my argument has been that international legal instruments in business and human rights should address specific governance gaps. Gross abuses are but one plausible instantiation. Erika George suggests additional ideas that are well worth considering.

Questions about Remedy

Understandably, the third theme that runs through the commentaries is the challenge of providing effective remedy for victims, particularly judicial remedy. The GPs, like every NGO report on the subject that I’ve ever read, are better at decrying inadequate access to judicial remedy than fixing it. GP 25 affirms that providing access to effective remedy is part and parcel of the state duty to protect against human rights abuses within their jurisdiction. The GPs go on to identify obstacles, and urge states to take steps to overcome them. Clearly this is not enough to ensure that it happens in practice, as I have readily acknowledged. What the treaty sponsors and advocates have in mind, however, is comprehensive forms of extraterritorial jurisdiction under international human rights law. Here too we enter very tricky terrain.

The Commentary to GP 2 summarizes, based on extensive research, what I believed to be international law and practice at the time of writing: “At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”[xviii] Being grounded in a multilateral agreement, the Commentary goes on to say, would provide one such jurisdictional basis. But this brings us right back to the scale of a treaty. Sit back for a moment and ponder the following two questions: for how many internationally recognized human rights do you believe states would endorse extraterritorial jurisdiction? Even more important for a symposium such as this, for how many rights should they do so? Does anyone expect, and should we want, extraterritorial jurisdiction to prevail across the entire range of internationally recognized rights? In my view, the answer to both questions is a resounding “no.”

That states would not agree requires little elaboration. While some UN human rights treaty bodies have urged home states of multinationals to provide greater extraterritorial protection against certain corporate-related human rights abuses, and research conducted under my mandate identified the grounds on which, and the ways in which, states have done so in a number of related policy domains, state conduct generally makes it clear that they do not regard this to be an acceptable means to address violations of the entire array of internationally recognized human rights. It makes little difference whether the states in question are located in the North, South, East, West or whatever azimuth one prefers to reference. Therefore, once again choices have to be made.

That it is an intrinsically bad idea undoubtedly will be more controversial for some. Deva ends his commentary by proposing a Business and Human Rights Declaration, similar to the Universal Declaration of Human Rights. He insists that it must “assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.” I have no principled objection to a Declaration. But if that same hierarchy were established in a legally binding international instrument and coupled with extraterritorial jurisdiction, it would utterly incapacitate national and local governments from conducting the often extensive number and variety of trade-offs that the very act of governance requires. Policy choices typically do not come neatly packaged, with human rights on one side and “other areas/instruments” on the other. They may involve conflicts between different human rights themselves. Moreover, “other areas/instruments” can equally implicate human rights, of different rights-holders, say, or over different temporal horizons. No single treaty could possibly resolve these complex interactions, so it would be left to each state to take its own approach to enforcement. But that would simply produce confusion and conflicting outcomes, and in some cases chaos, not uniform practices.

In sum, if we accept, as elementary logic requires, that not all internationally recognized human rights would or should trigger extraterritorial jurisdiction, then which ones? As a matter of record, extraterritorial jurisdiction in cases of gross abuses when committed by natural persons has greater international support than any other human rights-related abuse. In principle, this ought to make it easier to forge agreement for clarifying that the same prohibitions apply to legal persons, thus reinforcing the argument for a focus on corporate involvement in gross abuses.

At present, the most promising practical development on the legal remedy front comes as a result of a second resolution the Human Rights Council adopted in June 2014 (HRC 26/22), introduced by Norway and adopted by consensus (meaning that it required no vote). Among other things, it requests the Office of the High Commissioner for Human Rights to explore “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses” and, in collaboration with the expert working group that was established to succeed my mandate, to organize consultations among all relevant stakeholders—which will include national investigators and prosecutors who struggle with these issues in their daily work. This could inform the treaty process if the sponsors were willing to draw on it. If the treaty negotiations make no progress, then perhaps it could come to serve as a basis for a constructive alternative initiative.

Whatever one’s preferences may be regarding the specifics of a binding international legal instrument, everyone agrees that legal reform is difficult and takes time. But remedy is not limited to punishment. It may also include apologies, restitution, rehabilitation, financial or non-financial compensation, as well as prevention of harm through, for example, guarantees of non-repetition. Alternative dispute resolution techniques can play a critical role in this regard. Accordingly, the GPs also stressed the importance of promoting forms of non-judicial remedy. GP 31, the longest of the entire set, lays out effectiveness and legitimacy criteria to which such mechanisms must adhere.

Non-judicial mechanisms can be state-based, as in the case of administrative labor tribunals, or the National Contact Points under the OECD Guidelines, which included the GPs’ corporate responsibility to respect pillar in the Guidelines’ 2011 revision, and which have witnessed a spike in human rights-based complaints since. They can also involve grievance mechanisms that companies establish at local and/or corporate levels as many are doing, or collaboratively. Effective company-related grievance mechanisms can serve two important functions. First, they can make it possible for grievances to be addressed early and directly when and where they occur, thereby preventing harms from compounding and grievances from escalating. Second, they can serve as an early-warning system for companies, enabling them to adapt their practices accordingly. Many such operational level grievance procedures remain a work in progress that are still being tested (and in some cases contested by activist groups and plaintiffs lawyers). But for now they fall neatly into Erika George’s category of “making the most of the meantime.” And if they succeed, in the long run they will serve as a significant complement to whatever international legal regime may evolve, just as they do at the domestic level in even the most robust legal systems.

Concluding Thoughts

Much more could be said about the thoughtful commentaries this symposium has brought together, and the broader issues at stake. But in concluding I limit myself to two points. The first is to reiterate the important contributions of Amartya Sen to my understanding of human rights, which John Tasioulas notes in his commentary. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights.[xix] My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Second, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people—and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.

Endnotes

[i] Joost Pauwelyn, Ramsel A. Wessel and Jan Wouters, “The Stagnation of International Law,” Leuven Centre for Global Governance Studies, Working Paper No. 97, October 2012.

[ii] John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013).

[iii] Pauwelyn, Wessel and Wouters report that new multinational treaties have declined precipitously for more than a decade, and that not a single one was deposited with the UN in 2011.

[iv] The most creative work by lawyers on the subject of transnational law-making by multinational corporations with which I am familiar is by Larry Catá Backer, and Jean-Philippe Robé. It is too voluminous to even begin citing here, but see their respective websites: https://pennstatelaw.psu.edu/faculty/backer; and http://works.bepress.com/jean-philippe_robe/. Both reference the work of the German sociologist of law Günther Teubner, whose writings on the fragmentation of international law and its implications for “legal regime collision” should be required reading for all students of human rights law. See, for example, Andreas Fischer-Lescano and Gűnther Teubner, “Regime Collision: The Vain Search for Legal Unity in the Fragmentation of International Law,” Michigan Journal of International Law, 25 (2003-2004).

[v] A leading exemplar of this last tendency is David Bilchitz, “A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles,” in Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013).

[vi] John Gerard Ruggie, “Reconstituting the Global Public Domain: Issues, Actors, and Processes,” European Journal of International Relations, 10(4): 499–531, citation on p. 519.

[vii] The first example is described in my book, Just Business, p. xli; also see Louis V. Galdieri, “Ruggie and the Red Priest,” available at https://lvgaldieri.wordpress.com/2013/05/22/ruggie-and-the-red-priest-a-lesson-in-listening/. For the second, see “Guidelines for Outbound Mining Investments,” produced by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, available at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines_for_Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.

[viii] See http://www.treatymovement.com/.

[ix] The resolution is entitled “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.” But the oddly worded footnote defines “other business enterprises” as “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.”

[x] China’s delegate stated that their affirmative vote was based on the following “understanding”: that the issue of a business and human rights treaty is complex; that differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds, which need to be taken into account; and that it will be necessary, therefore, to carry out “detailed and in-depth” studies, and for the treaty process itself to be “gradual” and “inclusive.” See http://webtv.un.org/search/ahrc26l.22rev.1-vote-item3-37th-meeting-26th-regular-session-human-rights-council/3643474571001?term=human rights council&sort=date.

[xi] A recent NGO survey sums up the overall record since the 1970s: “All these efforts met with vigorous opposition from TNCs and their business associations, and they ultimately failed.” See “Corporate Influence on the Business and Human Rights Agenda of the United Nations,” Working paper issued by Misereor, Global Policy Forum, and Brot für die Welt,” June 2014, p. 5, available at http://www.globalpolicy.org/home/221-transnational-corporations/52638-new-working-paper-corporate-influence-on-the-business-and-human-rights-agenda-of-the-un.html.

http://www.treatymovement.com/.

[xii] The estimate comes from McKinsey; see http://www.mckinsey.com/insights/urbanization/urban_world_the_shifting_global_business_landscape.

[xiii] For example, the United States objected to my stipulation that the state duty to protect applies within a state’s jurisdiction; they insisted that it was limited to its territory—I suspect with Guantanamo in mind. The UK objected that it did not accept to the idea of a general state duty to protect, that this was strictly a treaty-specific obligation. Sweden objected to the inclusion of an independent corporate responsibility to respect human rights because it feared that it would detract from state obligations. And so it went, even with friendly states. I managed to satisfy the U.S. by changing the referent to “jurisdiction and/or territory.” The UK agreed that it would express its reservation in explaining its vote after the fact, which did not affect its endorsement. In the case of Sweden, thanks to personal relations with higher officials the objections of legal advisors were withdrawn. The UK subsequently released a letter sent to me by the Legal Advisor at the Foreign and Commonwealth Office, so I also released my response. They are available at http://www.reports-and-materials.org/sites/default/files/reports-and-materials/UK-Foreign-Office-letter-to-Ruggie-9-Jul-2009.pdf; and http://www.reports-and-materials.org/sites/default/files/reports-and-materials/Ruggie-letter-to-UK-Foreign-Office-14-Jul-2009.pdf.

[xiv] John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law, 101 (October 2007).

[xv] See, for example, my blogs “A Business and Human Rights Treaty? International Legalization as Precision Tools,” available at http://www.ihrb.org/tags.html?tag=business+and+human+rights+treaty; and “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” available at http://www.ihrb.org/commentary/quo-vadis-unsolicited-advice-business.html.

[xvi] John Douglas Bishop, “The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations,” Business Ethics Quarterly, 22 (January 2012); Philip Alston, “The ‘Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Alston, ed., Non-State Actors and Human Rights (New York: Oxford University Press, 2005); and José E. Alvarez, “Are Corporations ‘Subjects’ of International Law,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1703465.

[xvii] Conceivably one might be able to make the case that systematic and widespread patterns of corporate-related involvement in what the ILO defines as the worst forms of child labor be included: “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.” http://www.ilo.org/ipec/facts/WorstFormsofChildLabour/lang–en/index.htm

[xviii] On this and related points, also see John H. Knox, “The Ruggie Rules: Applying Human Rights Law to Corporations,” in Radu Mares, ed., The UN Guiding Principles on Business and Human Rights (Leiden: Martinus Nijhoff, 2012). Knox, a professor international law, currently serves as UN Independent Expert on Human Rights and the Environment.

[xix] See Amartya Sen, “Human Rights and the Limits of the Law,” Cardoso Law Review, 27 (No. 6, 2006); “Elements of a Theory of Human Rights,” Philosophy and Public Affairs, 32 (Autumn 2004); and The Idea of Justice (Cambridge: Harvard University Press, 2009).

Would a Treaty Be All It Is Made Up to Be?


Frédéric Mégret is an Associate Professor at the Faculty of Law, McGill University and the Canada Research Chair on the Law of Human Rights and Legal Pluralism


In moving towards the negotiation of a treaty on business and human rights, the international human rights movement is on familiar terrain. Indeed, legalization has represented a hallmark of the movement’s strategy ever since the adoption of the Universal Declaration of Human Rights. “From declarations to conventions” seems to be the natural direction that the project has been taking for decades. The International Covenants for example were a specific response to the perceived limitations of the UDHR. There is a time for politics, and there is a time for law. Human rights both domestically and internationally are fundamentally invested in the idea that the move from policy to binding standards is indispensable.

The move to a treaty on business and human rights should therefore not come as a surprise. No doubt it has some things to commend it. At the same time, doubts are already being voiced about whether it is a good idea. Some of these doubts may have to do with perceived hidden motivations for proposing a treaty, and the sort of substantive instrument that might result. For example, there is concern that the current treaty agenda reflects an anti-business bias, seeking to draw attention away from the responsibilities of the host state at the expense of the state of incorporation and transnational businesses themselves. Violations of human rights as a result of the activities of corporations result from a complex chain of causation that may include predatory corporate actors, but also irresponsible states on both ends (sending, receiving). The balance achieved in the Guiding Principles is a fragile one and there is a risk that it might be disrupted. The interstate environment in which treaties are negotiated might resurrect South-North antinomies that today are not the most helpful when it comes to the question of business and human rights. As Ruggie points out helpfully, whether a corporation is “transnational” or not is increasingly irrelevant. If nothing else, a human rights paradigm ought to inform a more cosmopolitan approach (as it has for most existing human rights treaties) one which is as much focused on the domestic as the transnational.

Nonetheless, it is far too early to anticipate what the eventual substance of a Treaty on business and human rights might be. Fears about its orientation are not really a reason for not having a treaty at all, only a reason to fight to have as good a treaty as possible. The real question at this stage is whether there is something inherently problematic about having a treaty as opposed to the Guiding Principles as they stand. And if one is to look for an inherent problem with having a treaty, it must be a problem with a treaty as a form. Although the Guiding Principles would presumably not be eliminated merely as a result of the emergence of a treaty, they would most likely be sidelined, or at least cease to reflect the global consensus alone, especially if the treaty was comprehensive. Here the question is whether, as in the traditional human rights vision, “Guiding Principles” were always a second best to a treaty, or whether there is something in the notion of Guiding Principles that is inherently appealing as a regulatory model when it comes to that particular topic (business and human rights) and in the current conditions (largely post-national and post-modern). I take John Ruggie’s Harvard piece as ambivalent on this very issue, at the same time not ruling out the need for a treaty yet cautiously trying to defend the sui generis character of the Guideline and the need to stay true to their “regulatory dynamics.” As I am in broad agreement with that cautious attitude, I want to suggest three ways in which we might see a comprehensive treaty as problematic.

A first concern might be what one might call the untranslatability of the Guiding Principles project into the language of a human rights treaty. As a human rights instrument, an international treaty on multinational corporations would be an almost unprecedented treaty focused not on proclaiming certain rights or protecting certain groups (as has traditionally been the case), but on imposing obligations upon a certain category of actors. It would therefore be more a treaty on obligations than on rights, even though the implementation of the obligations would be presumed to lead to the fulfillment of the rights. The combination of rights and duties is, admittedly, not unprecedented and, in fact, increasingly common. For example the Convention on the rights of persons with disabilities is a very mixed bag of rights proclamation and insistence on certain standards that states, local authorities and private actors ought to respect to make the rights of persons with disabilities a reality. However at stake is clearly a change in the style of human rights and it may be that something is lost by legalizing too many things, in ways that reflect international legislative inflation and perhaps a move away from the parsimony of rights. In other words, one might think there should be an international regulatory division of labour between human rights treaties (that remain at the level of quasi-constitutional principles) and implementing instruments (guidelines, corporate guides of conduct) that seek to chart the many ways in which treaties ought to be implemented.

A second perhaps more significant concern might be that the move to a treaty does too much of the promise of legal bindingness and therefore the prospect of enforceability. There is no doubt that currently there continues to exist huge gaps in the sort of accountability that victims of corporate rights violations can hope to obtain. The question, however, is whether this is because of the absence of a treaty. In practice, for example, it is not clear that simply because treaties are binding in Law means that they are regularly or systematically enforced. There is by now two decades of theoretical and empirical literature on whether treaties improve human rights compliance that is at best inconclusive. Note that the issue of whether human rights treaties induce compliance generally is distinct from whether they can command compliance in particular cases: the latter may be true even as the former is not, in the sense that one can evidently win an individual case under a treaty on the basis of its binding character even as that treaty is otherwise regularly ignored. In practice the existence of a treaty may or may not be the focus of strategies to promote human rights, but many such efforts do not particularly rely on its binding character (except rhetorically). In fact, as pointed out by Ruggie, the Guiding Principles have already become influential (with international institutions for example) largely despite not being binding. It is no small feat, in particular, that a non-binding international instrument has already translated into binding legislation, where many binding treaties are never incorporated into domestic law.

The lesson is that at least when it comes to that issue area, orienting institutional change may be more important than imposing it. At least as important to treaty compliance is the extent to which treaties set realistic standards or have a degree of legitimacy with the actors whose behaviour they claim to regulate. But herein lies the crux: bindingness, of course, is not everything. One might have standards that are scrupulously observed only because they are so low in the first place, something that would hardly count as a victory for human rights. In that sense human rights might be said to be at an implicit disadvantage in international normative competition since they start from a certain axiological high ground rather than simply some promise of rational-efficiency. At any rate, the binding character of a treaty might be obtained only at the cost of diluted standards, as states awaken to some of the legal ramifications of a treaty entering into force; or a treaty might be “strong” but fail to secure the participation of key states (as happened with the Convention on the Rights of Migrant Workers), a potentially disastrous result when it comes to transnational corporations. The move to a treaty, in other words, might destroy some of the constructive ambiguity upon which the Guiding Principles were based and signal, paradoxically, a decline in the implementation of the standards it champions.

Third, moving to the treaty form may effectively redefine the nature of the regulation involved, beyond the question of whether the resulting standards are binding or not. The “treatification” of the Guiding Principles might be seen as pushing in two, not necessarily compatible directions. On the one hand, the existence of a treaty directly regulating multinational corporations might be said to reinforce the status of such corporations as, henceforth, fully fledged subjects of international law and not merely entities producing their own form of endogenous regulation existing in a grey transnational normative zone. This strengthens the idea of corporations as human rights actors in their own right (even if substantively the treaty remains focused on their respecting rather than protecting human rights), in ways that can only challenge the state’s centrality. Given how vexed an issue the status of corporations as subjects of international law has been, a treaty – whatever else it does substantively – might at least clarify this issue. An alternative way of looking at it is that the adoption of a treaty would manifest a strong return of the “public” and an emphasis on the role of the state in regulating non-state actors. This at least is implicit in the idea that treaties’ source of authority is sovereign consent to them. Multinational corporations, even though they would be presumably regulated by the treaty and even though they would presumably lobby states both directly and indirectly, would not be a party to the treaty itself. Under this view, they would ultimately appear more as objects than subjects where one of the merits of the Guiding Principles was to put them at the centre of the regulatory effort that focused on them, thus presumably encouraging ownership and accountability.

In other words, the move to a treaty is a move to “normalize” the regulation of corporations within the vernacular of public international law and away from the sort of “private ordering” that has become a hallmark of the regulation of corporations today. It thus arguably does away with one of the central features of the Guiding Principles as a hybrid instrument at least partly “owned” by corporations. As such, one can wonder whether the move to a treaty does not manifest a form of failure of legal imagination. Is it so difficult to imagine a global instrument that would be binding under international law yet not restricted by nature to state membership?

A First Step is Better than No Step at All


Jenny S. Martinez is the Warren Christopher Professor in the Practice of International Law and Diplomacy at Stanford Law School. She is the author of The Slave Trade and the Origins of International Human Rights Law (OUP, 2012).


Last year, the U.N. Human Rights Council voted to “establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights.” The objective of this working group would be to “clarify the obligations of transnational corporations and other business enterprises with respect to human rights.” The new initiative has largely been supported by states in the Global South, while the United States and the European Union have opposed the treaty effort on the grounds that it is unlikely to succeed and will divert attention from implementation of the non-binding but widely discussed Guiding Principles on Business and Human Rights. The Guiding Principles were, of course, spearheaded by John Ruggie when he was the U.N. Special Representative for Business and Human Rights, and endorsed by the Human Rights Council in 2011.

Last December at the U.N. Forum on Business and Human Rights, however, Ruggie himself resisted this framing of the path forward, saying that he “saw no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other” and urging “in the strongest possible terms that as the treaty negotiations unfold, we resist any attempt to polarize the debate as one between the Guiding Principles and a treaty.”

Ruggie is correct that, in principle, there need be no contradiction between pursuit of the voluntary implementation of the non-binding principles as to some aspects of the human rights obligations of businesses and simultaneous negotiation of binding international legal obligations as to other aspects. In practical terms, however, the danger is that the treaty drafting process will slowly limp forward without resulting in a document with any legal bite, while giving states and businesses an excuse to abandon all effort to implement the Guiding Principles. How can this trap be avoided?

Ruggie is right to suggest that the best path forward may be through narrower, more focused agreements on specific topics rather than one overarching treaty that attempts to govern the entire field. A single treaty is likely to be rich in aspiration and weak on detail and tools for implementation. Moreover, narrower and more specific treaties might be more likely to garner eventual ratifications from initially skeptical states.

What kinds of problems might treaties address, and how might they do so? One comparison might be the ILO Convention on the Worst Forms of Child Labor, which was adopted by the ILO in 1999 and has now been ratified by 174 countries (the fastest pace for ratification of any ILO agreement). In that treaty, states obligate themselves to take “immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” Contrast with the murky language of the International Covenant on Economic, Social and Cultural Rights, wherein a ratifying state “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” While intrepid international lawyers have attempted for decades to give teeth to this vague language through forceful and elaborate interpretations, the basic mushiness remains.

Moreover, rather than relying on lofty generalities, the ILO child labor treaty lists several concrete practices — such as slavery, debt bondage, forcible use of child soldiers, and prostitution — that automatically constitute worst forms of child labor, while also including more open-ended definitions that encompass abuses of similar gravity. It is much easier to tell whether a state has prohibited five very concrete things than to tell whether it has achieved a much vaguer goal like promoting equality. Moreover, concrete goals provide a rallying point for domestic political advocacy, as civil society groups can lobby for adoption of legislative and administrative measures in compliance with the international standard.

Now, it would be a mistake to treaty the ILO Convention on the Worst Forms of Child Labor as a model treaty, because despite its wide ratification, it is not clear how successful it has been. Despite its immediate and binding language, and sharp definition of certain prohibited practices, the lack of a strong international enforcement mechanism is a problem. A more effective treaty would provide stronger means for monitoring, measuring and enforcement.

A good start in the area of business and human rights would be a treaty focused on the worst types of abuses, such as corporate actors knowingly aiding and abetting core international crimes as defined in the Rome Statute of the International Criminal Court. Such a treaty would oblige states to take immediate measures in domestic law to prohibit and provide for appropriate civil and criminal liability for such abuses.  It would provide for some kind of international monitoring and oversight, and might include jurisdictional provisions clarifying which states would have obligations and would be entitled to exercise jurisdiction in the case of corporate actors whose activities span multiple jurisdictions. Would such a treaty lead us to a perfect world? Would it address fundamental issues of distributional justice between global north and global south, between the haves and have nots of globalization? Of course not. But a first step is better than no step at all, and it would be a sensible place to start the effort of moving from soft to hard law in this arena. Such a focused treaty would be more likely to garner support from wary countries, and if it clarified jurisdictional rules, could even gain support from businesses because it would bring greater predictability and clarity.   This would not preclude simultaneous efforts to implement the Guiding Principles, nor would it preclude later treaties addressing other aspects of business and human rights. The long-term questions raised by the relationship between business and human rights will ultimately require long-term solutions, but this would be a sensible place to start.