Over recent decades, globalisation has stirred up a number of positive and negative developments in national and international environments. An important feature of globalisation is the rise of the economic, social, cultural and political power of corporations. While corporate activities may positively contribute to the livelihoods of individuals, communities and societies, a number of allegations have been made that corporations have been involved in systematically violating human rights. In contrast, only a limited of number of claims have been successfully brought against corporations or their directors and employees. As there is an urgent need for practical and victim-oriented solutions in the modern world in the area of human rights and business, this study argues that corporations have normative obligations in relation to fundamental human rights, around which there possibly appears to exist a value consensus across different cultures and societies around the world.
This study argues that the normative thrust of corporate human rights obligations derives primarily from national legal orders and only secondarily from the international level, whereas both draw their foundations from an international value system. Moreover, corporate human rights obligations may also derive from corporate unilateral commitments. The study argues that corporations should be held accountable for violations of human rights law.
Equally important to identifying corporate obligations is the question of how one can respond to corporate human rights violations. As international mechanisms are often ineffective and sometimes inexistent, the provision of effective remedies for victims of corporate human rights violations, the book argues, rests within national normative frameworks.
Jernej Letnar ?erni? is a Max Weber Postdoctoral Fellow at the European University Institute. He completed his doctorate in 2009 at the School of Law, University of Aberdeen. Jernej has worked in the European Ombudsman’s Office, the Superior Court of the Republic of Slovenia, the Law Institute in Ljubljana, the International Criminal Court and the University of Aberdeen. His research interests are in human rights law, business and human rights, investment law, international criminal law, transitional justice and criminal law. Jernej is a member of the International Human Rights Committee of the International Law Association.
Foreword
Acknowledgements
Summary
Contents
Abbreviations
Part I Introduction
Chapter 1 Introduction
1 Introduction
1.1 Fundamental issues and terminology
1.1.1 Corporations
1.1.2 The nature of corporations
1.1.3 Corporate responsibility or corporate liability?
1.1.4 Fundamental human rights
1.2 Normative framework: ‘respect, protect, fulfil’
1.3 The nature and extent of corporate human rights violations
1.4 The nature and scope of the study
Chapter 2 The Nature and Scope of the Concept of Corporate Responsibility for Fundamental Human Rights
2.1 Introductory observations
2.1.1 Changes in the international environment
2.2 Conceptual framework for corporate responsibility for fundamental human rights
2.3 A national and international value system
2.4 Corporate human rights obligations: From their sources to their legal nature and scope
2.5 Legal sources of corporate human rights obligations
2.5.1 Sources of corporate human rights obligations in national legal orders
2.5.2 Sources of corporate human rights obligations at the international level
2.5.3 Voluntary recognition of corporate human rights obligations
2.5.4 Interim conclusion
2.6 The horizontal application of human rights law
2.7 The nature and the scope of corporate human rights obligations
2.7.1 The corporate obligation to respect
2.7.2 The corporate obligation to protect
2.7.3 The Corporate obligation to fulfil
2.8 Which fundamental human rights are corporations asked to observe?
2.8.1 Fundamental human rights preserving the security of persons
2.8.2 Fundamental human rights preserving fundamental labour rights
2.8.3 Fundamental human rights preserving non-discrimination
2.9 The spectrum of corporate responsibility for fundamental human rights
2.9.1 Corporate spheres of responsibility
2.9.2 Levels of corporate responsibility
2.9.3 Causation
2.9.4 Corporate complicity
2.10 From responsibility to accountability: implementation and enforcement
2.11 Conclusion
Part II Examination of Current Normative Framework
Chapter 3 Corporations and State Responsibility
3.1 Introduction
3.2 Substantive human rights obligations of states
3.2.1 The tripartite obligations of states to respect, protect and fulfil fundamental human rights relating to corporate activities
3.2.2 Reference to corporate actors in relation to fundamental human rights
3.2.3 The state obligation to protect
3.2.4 Towards a collective responsibility to protect fundamental human rights of the individual?
3.2.5 Interim conclusion
3.3 Home state responsibility – rules of attribution
3.3.1 State responsibility for the extraterritorial acts of corporations
3.3.2 Private conduct that is state conduct: a question of attribution
3.3.2.1 Attribution de iure: the exercise of governmental authority
3.3.2.2 Attribution de facto – corporations acting under the control, directions and instructions of the state
3.3.3 Due diligence
3.4 Summary and conclusion
Chapter 4 National and International Responses to Corporate Criminal Responsibility for Fundamental Human Rights
4.1 Corporate criminal liability for fundamental human rights
4.2 Corporations and criminal liability in general
4.2.1 Corporate criminal liability in national legal orders
4.2.2 Corporate criminal liability as provided in international documents
4.3 Corporate criminal liability for international crimes
4.4 Attribution of responsibility
4.5 Corporations and the Rome Statute of the International Criminal Court
4.5.1 The Rome Statute of an International Criminal Court de lege lata
4.5.2 Travaux préparatoires of the Rome Statute
4.5.3 Rome ICC Statute de lege ferenda
4.5.4 Interim conclusion
4.6 Individual criminal responsibility – Possibilities of prosecution of agents of corporations
4.6.1 National legal orders – Public Prosecutor v. Van Anraat
4.7 Concurrence of corporate and individual criminal responsibility
4.8 Conclusion
Chapter 5 Corporate Civil Responsibility for Fundamental Human Rights
5.1 Introduction
5.2 Corporate civil responsibility for fundamental human rights
5.3 Human Rights litigation in the United States under the Aliens Torts Claims Act
5.3.1 Introduction
5.3.2 Development of the ATCA
5.3.3 Corporations and the Aliens Torts Claims Act
5.3.3.1 Subject matter and personal jurisdiction of the U.S. federal courts
5.3.3.2 Norms, the violation of which gives rise to the tortious liability of corporations and other non-state actors
5.3.4 When does corporate tortious liability under the ATCA arise?
5.3.4.1 Corporate complicity under the ATCA
5.3.5 Criteria for corporate complicity in the absence of a state action requirement
5.3.5.1 Interim conclusions re U.S. case law relating to complicity
5.3.6 Corporate conspiracy in international torts
5.4 Conclusion
Chapter 6 A Critical Examination of Emerging International Quasi-Judicial Legal Regimes for Corporate Responsibility for Fundamental Human Rights
6.1 Introduction
6.2 The OECD Guidelines for Multinational Enterprises
6.2.1 Nature and scope of the guidelines
6.2.2 Content of the Guidelines
6.2.3 The OECD Guidelines’ Implementation Procedure
6.2.4 The procedure of National Contact Points
6.2.5 Case law of the National Contact Points
6.2.6 Global Witness v Afrimex Ltd.: Decision Applying OECD Guidelines on Corporate Responsibility for Human Rights
6.2.7 Shortcomings and merits of the OECD Guidelines
6.2.7.1 Shortcomings
6.2.7.2 Merits
6.2.8 Proposals
6.2.9 Interim conclusion
6.3 The Tripartite Declaration of Principles Concerning Multinational Enterprises and Fundamental Human Rights
6.3.1 Contents of the Tripartite Declaration
6.3.2 Implementing the Tripartite Declaration
6.3.2.1 Subcommittee on Multinational Enterprises
6.3.3 Interpretation procedure of the Tripartite Declaration
6.3.4 Critical assessment of ILO Declaration of Principles on Multinational Enterprises
6.3.5 Conclusion
Chapter 7 United Nations and Corporate Responsibility for Human Rights
7.1 Attempts to regulate corporate behaviour within the United Nations framework
7.2 The UN Norms on Human Rights Responsibilities of Corporations
7.3 Implementation of the UN Norms
7.4 The work of the UN Special Representative on business and human rights
7.5 Global Compact
7.6 Conclusion
Chapter 8 Corporate Responsibility and Investment Law
8.1 Introduction
8.2 Stabilization clauses and the fundamental human rights obligations of corporations
8.2.1 Application of stabilization clauses – MDA Agreement
8.2.2 The Application of the stabilization clauses – The Baku-Tblisi-Ceyhan (BTC) Pipeline Project
8.3 Right to effective remedy for the victims
8.4 Integrating fundamental human rights obligations of corporate investors in foreign investment agreements
8.5 Conclusion
Part III De Lege Ferenda Framework for Corporate Responsibility for Fundamental Human Rights
Chapter 9 Towards a Normative Framework de Lege Ferenda for Human Rights Law and Business
9.1 Introduction
9.2 Why normative framework de lege ferenda?
9.3 Concept of corporate responsibility for fundamental human rights in de lege ferenda normative framework
9.4 Human Rights Impact Assessment
9.5 Human rights law and business – a holistic approach
9.6 From responsibility to accountability de lege ferenda: access to justice
9.7 Summary of recommendations
9.8 Conclusion
Chapter 10 Summary and Conclusion
Selected Bibliography
Table of Cases
Table of Treaties and Legislation
Index