HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS

HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FORHUMAN RIGHTS VIOLATIONS by briefly discussing preliminary issues of whether MNCs are capable of bearing internationalhuman rights obligation

HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FOR

HUMAN RIGHTS VIOLATIONS

by briefly discussing preliminary issues of whether MNCs are capable of bearing internationalhuman rights obligations and if so, whether such obligations actually exist in currentinternational law Concluding that any such claims are tenuous at best, the article then proceeds

to conduct an in-depth examination of the meaning and value of the notion of human dignity inmodern philosophy It then goes on to illustrate how the concept might facilitate theestablishment of a binding relationship in international law between MNCs and human rightsnorms This article ultimately concludes that human dignity is the best, if not the only, availableground for the development of international legal accountability for MNC human rights abuses

Key Words: Multinational corporations, Human dignity, Ruggie, Human rights, International

human rights law, Corporate accountability

1 INTRODUCTION

The international human rights framework was conceived on the assumption that States can and

do control all the activities of all individuals and entities operating within their respectivejurisdictions.1 Accordingly, some have contended that the protection of human rights is the sole

responsibility of the State such that any infringement of rights from non-State entities falls withindomestic jurisdictions to be pursued under national laws.2 This view is succinctly stated byMcCorquodale as follows:

International human rights law, for all its diversity and size, places direct legalobligations only on states The international human rights law system is a state-basedsystem, a system in which the law operates in only one area: state action It ignoresactions by nonstate actors, such as transnational corporations Nonstate actors aretreated as if their actions could not violate human rights, or it is pretended that states canand do control all their activities.3

However, the advent of globalization in the last few decades has spurred the growth ofmultinational corporations (“MNCs”), which are business entities with the ability to operate onthe global arena and transcend the regulatory capacity of a single State.4 Although the term

“MNC” has been used extensively in academic literature; there is currently no universallyagreeable definition.5 In this paper, the term MNC will be used to refer to an economic enterprisethat owns, controls or manages operations or productions in two or more countries, whether its

1 Adam McBeth, ‘Human Rights in Economic Globalisation’ in Sarah Joseph and Adam McBeth (eds), Research

Handbook on International Human Rights Law (Edward Elgar, 2010) 139 See also, Robert McCorquodale ‘Human

Rights and Global Business’ in Stephen Bottomley and David Kinley (eds) Commercial Law and Human Rights

(Dartmouth Publishing, 2002) 92.

2 Robert McCorquodale and Penelope Simons ‘Responsibility Beyond Borders: State Responsibility for

Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 The Modern Law Review

598, 605

3 Robert McCorquodale ‘Overlegalizing Silences: Human Rights and Nonstate Actors’ (2002) 96 American Society

International Law Proceedings 381, 384.

4 For a general discussion on the origin and development of MNCs over the last few decades, see Peter T

Muchlinski Multinational Enterprises and the Law (Oxford University Press, 2nd Ed, 2007) 8-44 See also, Emeka

Duruigo ‘Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and

Recurring Challenges’ (2008) 6 Northwestern Journal of International Human Rights 222, 229-231.

5 It should be noted that literature on this subject describes MNCs in a variety of interchangeable terms such as transnational corporations (TNCs), multinational enterprises (MNEs), global businesses or international

corporations According to Jenks, the lack of an agreed authoritative definition of an MNC attests to the fact that “it has no coherent existence as a legal entity; it is a political and economic fact which expresses itself in a bewildering variety of legal forms and devices” C.W Jenks ‘Multinational Entities in the Law of Nations’ in W Friedman, L

Henkin and O Lissitzyn (eds) Essays in Honor of Phillip C Jessup ( Columbia University Press, 1972), 80

actions are directed by a head office in a single State or by various control systems across theglobe.6 This definition is predicated on the modern corporate enterprise theory, which allows all

constituent corporations that are part of an integral business group to be treated as a singleeconomic unit for the purposes of attaching liability.7 The theory relies on the concept of

‘control’ between a parent company and its subsidiaries, which may take the form of holding amajority of the shares or the power of one entity to control or direct the management and policies

of another entity.8

While MNCs can and do facilitate the enjoyment of human rights for a wide range of people, thenegative impact that their operations have on human rights is also well documented MNCs,particularly those with operations in developing countries, have been associated with violations

of human rights such as labour rights (providing poor working conditions, including poorwages), the right to health (polluting the environment, which affects access to clean water), andthe rights to life, land, housing and adequate living standards, among others.9 Vulnerableindividuals, whose human rights have been adversely affected by the MNC’s activities, havelittle or no legal redress against the corporation under their country’s domestic laws.10 The result

6 International Labour Organisation (ILO) Tripartite Declaration on Multinational Enterprises and Social Policy

(ILO, 4 th ed, 2006) para 6; Organisation for Economic Co-operation and Development (OECD) Guidelines for

Multinational Enterprises (OECD Publishing, 2011) ‘Concepts and Principles’ Part 1, para 4 See also, Christine

Baez ‘Multinational Enterprises and Human Rights’ (1999-2000) 8 University of Miami International &

Comparative Law Review 183, who analyses the definition of an MNC from various perspectives such as ownership,

location of production or operation, location of headquarter, size, and percentage of sales made in foreign countries.

7 Phillip I Bloomberg ‘The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary

Corporation Liabilities’ (1996) 28 Connecticut Law Review 295, 296-297 Bloomberg contrasts the doctrine against

the traditional ‘corporate entity theory’, which treats each corporation as a separate legal entity with its own rights and duties

8 Bloomberg Note 7, 298

9 David Kinley Civilizing Globalisation: Human Rights and the Global Economy (Cambridge University Press,

2009) 148-149 See also,Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises Interim Report E/CN4/2006/97 (22 February

2006).

10 Amnesty International ‘Oil in Sudan: Deteriorating Human Rights’ AFR 54/01/00ERR (2000) 2-4 Available at

http://www.amnesty.org/en/library/asset/AFR54/001/2000/en/82ee4ed1-dfc5-11dd-8e17-69926d493233/

afr540012000en.pdf (Last visited on 11 June 2012); Jenness Duke ‘Enforcement of Human Rights on Multinational

Corporations: Global Climate, Strategies and Trends for Compliance’ (2000) 28 Denver Journal of International

Law and Policy 339, 340-341.

has been what Justice Ian Binnie accurately describes as “an unfair imbalance between theprice paid by the first world and the real costs incurred in the third world”.11

The issue was most recently propelled to the forefront of the global debate in 2008 when theUnited Nations (“UN”) Human Rights Council unanimously welcomed a conceptual framework

known as the Protect, Respect and Remedy: a Framework for Business and Human Rights

proposed by John Ruggie, the Special Representative of the UN Secretary-General on the issuehuman rights, transnational corporations and other business enterprises.12 This was followed, in

2011, by Ruggie’s Guiding Principles on Business and Human Rights, which the UN Human

Rights Council also unanimously endorsed as practical steps for implementing the 2008framework.13

Ruggie’s framework has been instrumental in clarifying the wider debate on corporate socialresponsibility.14 For example, the thorny question as to whether corporations should respect

internationally recognized human rights, irrespective of whether domestic systems provide foreffective enforcement of such responsibility, can now be answered with an unequivocal ‘yes’.15

However, what remains deeply contested in the legal fraternity is the assertion by some human

rights commentators that such corporate responsibility can, and should, be legally enforceable

under international human rights law In other words, a lacuna currently exists as to howtransnational violations of human rights by MNCs can be legally addressed at the internationallevel particularly in situations where a State is unable or unwilling to address such abuses

11 Justice Ian Binnie ‘Confronting Corporate Complicity in International Human Rights Abuses’ (International Commission of Jurists, Conference on Legal Remedies for Human Rights Abuse Involving Corporations, 2010) Available at http://www.icj.org/dwn/img_prd/FINAL-BinnieJ-ICJSpeakingNotes_092310.pdf (Last visited on 11 November 2013)

12 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational

Corporations and Other Business Enterprises Protect, Respect and Remedy: A Framework for Business and Human

Rights UN Doc A/HRC/8/5 (7 April 2008).

13 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational

Corporations and Other Business Enterprises Guiding Principles on Business and Human Rights: Implementing the

United Nations ‘Protect, Respect and Remedy’ Framework UN Doc A/HRC/17/31 (16 June 2011) According to

Ruggie, while the 2008 framework and the Guiding Principles are basically two sides of the same coin, they in fact fulfil different objectives as follows: the 2008 framework provides the conceptual underpinnings whereas the Guiding Principles, as the name suggests, provide practical guidance on steps to be taken in order to foster business respect for human rights (Ruggie 2011, 129).

14 Ibid.

15 2008 Framework Note 12, para 24

This paper posits that the concept of human dignity constitutes the best, if not the only, available

ground for the development of international obligations for MNCs with respect to human

rights.16 In fact, the principle of respect for human dignity has played an important legal role inseveral social and political movements of the 20th century including the civil rights movements inthe United States, the advancement of women’s rights in the workplace, discussions on the ethics

of biomedical research, the issue of euthanasia and the issues of genetic manipulation and humancloning, among others.17 It is the concept’s success, amongst other things, in these human rightsmovements that informs my argument that it is the appropriate legal (and philosophical) bedrock

to rely upon in order to create binding obligations in international human rights law forcorporations

My argument will proceed in the following three separate, but related, queries: (i) can anintimate relationship be established between MNCs and international human rights? In otherwords, are MNCs capable of bearing human rights obligations under international law (the

“Possibility” Issue)?; (ii) if so, do MNCs have real and existing obligations in internationalhuman rights law to respect and promote human rights (the “Reality” Issue)?; (iii) or is thereanother basis in international human rights law to create and impose legal obligations on MNCs(the “Source” Issue)? The first two issues have been explored at length by many commentators,and it is not my intention to give a detailed analysis of them here Instead, I shall briefly showthat while MNCs can be said to be subjects of international law, and are therefore capable ofbearing human rights obligations, claims for the actual existence of such obligations are tenuous

at best I will then conduct an in-depth examination of the Source Issue in order to determinepossible rules in international law that might facilitate the establishment of a binding relationshipbetween MNCs and human rights values I will argue that international human rights law is open

to such obligations coming into existence on the basis of the foundational principle of humandignity

2 THE POSSIBILITY ISSUE: CAN MNCS BE SUBJECTS OF INTERNATIONAL HUMAN RIGHTS LAW?

16 Roberto Andorno ‘Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ (2009)

Journal of Medicine and Philosophy 1, 5

17 Christopher McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 The European

Journal of International Law 665, 662-663.

This section will briefly address the question of whether MNCs are capable of bearing human

rights obligations

Traditionally, the system of international human rights law has predominantly focused on States

as the primary violators of human rights and thus the holders of binding human rightsobligations.18 However, non-State organs have also long been recognized as being subject tointernational law For example, the preamble of the Universal Declaration of Human Rights(“UDHR”) requires not only States but also “every individual and organ of society” to participate

in the promotion and protection of basic human rights.19 Thus it can be said that MNCs, as

‘organs of society’, have, at the very least, the ability to hold as well as enforce rights and

obligations.20

In addition, there have been certain developments in international law in the last few decades thathave led non-State actors to being increasingly recognized as subject to international law Tobegin with, jurisprudence emerging from international criminal tribunals for Nuremberg, Tokyo,Rwanda and Yugoslavia has confirmed that individuals who commit acts considered to be crimes

in international law will be held responsible for their actions and will be liable for punishment.21

Also, international organizations such as the United Nations and the World Health Organizationhave been recognized by the International Court of Justice as endowed with international legalpersonality and are therefore subject to international law independent of the member Statescomprising the organizations.22 This jurisprudence from the international courts confirms thatindividuals, whether natural or legal, can be held directly responsible for violating internationalhuman rights law rules in certain circumstances.23

18 McCorquodale Note 3, 384.

19 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948), preamble.

20 Surya Deva ‘Human Rights Violations by Multinational Corporations and International Law: Where From Here?’

(2003-4) 19 Connecticut Journal of International Law 1, 53.

21 Olefumi Amao, ‘Corporate Social Responsibility, Social Contract, Corporate Personhood and Human Rights Law:

Understanding the Emerging Responsibilities of Modern Corporations’ (2008) 33 Australian Journal of Legal

Philosophy 100, 132 See for example, United States v Goering, 6 F.R.D 69 (1946) cited in Duruigbo Note 4, 237.

22 See, respectively, Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178-179 and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World

Health organization) (Advisory Opinion) [1996] ICJ 66.

23 Amao Note 21, 133.

MNCs, admittedly, entered the international scene at a much later stage and like private citizens,were assumed to be accountable only under domestic law.24 However, in recent years, MNCs

have been treated as distinct legal personalities with the ability to enjoy certain rights under the

international law regime For instance, they have the capacity to bring international claims inareas concerning economic law under bilateral or regional investment treaties and free tradeagreements.25 The First Protocol to the European Convention on Human Rights also recognizesthe rights of corporations to property,26 free speech,27 fair trial28 and privacy.29 This modern trend,which allows and enables MNCs to utilize international law mechanisms to protect their interestsand facilitate their activities, leads me to the conclusion that MNCs must also possess the legalcapacity to bear direct duties under the same regime.30 As noted by Ratner, “If states andinternational organizations can accept rights and duties of corporations in some [internationallaw] areas, there is no theoretical bar to recognizing duties more broadly, including duties in thehuman rights area”.31 Indeed, some international treaties, especially in the field of internationalenvironmental law, have already placed direct legal obligations on MNCs, albeit in a limitedfashion.32

Moreover, new economic realities in modern times, which have been exacerbated by the process

of globalisation, render the traditional argument that MNCs, as non-State actors, cannot be

24 David Kinley and Junko Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for

Corporations at International Law’ (2003-04) 44 Virginia Journal of International Law 931, 937.

25 Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds),

Liability of Multinational Corporations under International Law (Kluwer International, 2000) 7- 8.

26 First Protocol to the European Convention on Human Rights signed 4 November 1950 (hereinafter “European

Convention”), article 1.

27 European Convention Note 26, article 10.

28 European Convention Note 26, article 6.

29 European Convention Note 26, article 8.

30 Muchlinski Note 4, 509; McBeth Note 1, 71-72.

31 Steven R Ratner ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 The Yale Law

Journal 443, 488.

32 For example, the International Covenant on Civil Liability for Oil Pollution Damage, opened for signature 20 November 1969 UNTS (entered into force 19 June 1976); Protocol to the International Convention on the

Establishment of an International Fund for Compensation for Oil Pollution Damage , opened for signature 27

November 1992 UNTS (entered into force 30 May 1996).

subjects of international law as antiquated and impractical Triggs argues that “through theirnetwork of subsidiaries and their capacity to invest and conduct business in other States, trans-national corporations appear to have gained … international legal personality and defined rightsand responsibilities”.33 Hence, the view that MNCs are capable of bearing human rightsobligations should not be viewed as an extraordinary and unprecedented development but rather

as an extension of the position prevailing at international law and practices under which MNCsalready enjoy rights, and bear limited obligations

Critics may argue that imposing direct human rights obligations on MNCs would take away theresponsibility of a State to protect and promote human rights.34 MNCs, so the argument goes, arenon-State actors whose only duty is to obey the law, whereas States should regulate on matters ofsocial responsibility.35 It is conceded that States continue to be the primary subjects ofinternational human rights law.36 However, international law does not preclude the existence ofconcurrent obligations to be borne by non-State actors, including MNCs.37 In my view, giventheir capacity to transcend a single State’s jurisdiction and the effect of their activities onpeople’s lives across the globe, conferring legal status to MNCs in international human rightslaw should be viewed as merely complementary to the existing State-centric regime.38

In all, States should not be absolved of their primary obligations to protect and promote human rights within their jurisdictions.39 However, MNCs are entities also capable of being the bearers

of direct human rights obligations and thus should be held responsible for human rights abuses,

33 Gillian Triggs International Law: Contemporary Principles and Practices (LexisNexis Butterworth, 2nd Ed, 2011), 183.

34 Peter T Muchlinski, ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77 International Affairs 31,

35-36.

35 Ibid.

36 Duruigbo Note 4, 241.

37 Ibid.

38 Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds),

Liability of Multinational Corporations under International Law (Kluwer International, 2000), 6.

39 Adam McBeth International Economic Actors and Human Rights (Routledge, 2010) 251.

at the very least within the scope of their operations.40 Simply put, “MNCs to an extent have, or

at least have the potential to possess, international legal personality”.41

3 THE REALITY ISSUE: DO CORPORATIONS HAVE HUMAN RIGHTS OBLIGATIONS UNDER INTERNATIONAL LAW?

Having concluded that MNCs are capable of bearing human rights obligations, the key questionthen becomes whether existing international human rights law already imposes obligations oncorporations, or whether substantive legal change would be necessary to impose suchobligations

Proponents point out that the preamble of the UDHR asserts that “every organ of society …[shall] secure [the] universal and effective recognition and observance [of human rights]” Also,articles 29 and 30 of the UDHR stipulate that “everyone” owes human rights duties to thecommunity to which they are a part Likewise both the International Covenant on Civil andPolitical Rights (“ICCPR”) and International Covenant on Economic, Social and Cultural Rights(“ICESCR”) contemplate the existence of obligations for non-State entities by asserting: “theindividual, having duties to other individuals and to the community to which he belongs, is under

a responsibility to strive for the promotion and observance of the rights recognized in the presentcovenant”.42 It has therefore been argued that every ‘individual’ and every ‘organ of society’, asthe case may be, excludes no one, not even corporations in the promotion and the protection ofhuman rights.43

Also offered in support of this viewpoint are some commentaries by human rights treaty bodies.For instance, the UN Committee on Economic Social and Cultural Rights (“ESCR Committee”),

in its General Comment 12, asserted that “all members of society [including] private business

40 Ibid.

41 Duruigbo Note 4, 241.

42 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), preamble; and International Convention on Economic, Social and Cultural

Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), preamble

43 Michael K Addo ‘Introduction’ in Michael K Addo (ed) Human Rights Standards and the Responsibility of

Transnational Corporations (Kluwer Law International, 1999) 31; Louise Henkin ‘The Universal Declaration at 50

and the College of the Global Markets’ (1999) 25 Brooklyn Journal of International Law 17, 25

sector have responsibilities in the realization of the right to adequate food”.44 On the basis ofthese provisions, proponents assert that international human rights law is not limited to reachStates only but also clearly imposes duties on corporations to respect and promote humanrights.45 Some argue that from the perspectives of the victims, it is irrelevant for them whetherthe violator is a State, an individual or a corporation; therefore whoever the perpetrator is shall

be liable under international human rights law.46

With respect, even though some authors may claim that the UDHR represents customaryinternational law47 in its entirety, this article takes a cautious approach and recognizes that whilesome aspects of the instrument are indeed customary law, it is doubtful that the provisionsinvoked above, in as far as MNC obligations are concerned, qualify.48 That is, the status of theUDHR as customary international law, especially with respect to corporate duties, by no meansenjoys universal acceptance.49 This is illustrated by the lack of consistent State practice in so far

as directly imposing international human rights duties on corporations is concerned and theambiguity in the “duties” provisions themselves.50 With respect to the latter, even if a reference is

44 Committee on Economic, Social and Cultural Rights, General Comment 12: Right to Adequate Food, UN Doc E/

C12/1999/5 (1999) para 20

45 McBeth Note 39, 8; Henkin Note 43, 24-25; Jordan J Paust ‘The Reality of Private Rights, Duties and

Participation in the International Legal Process’ (2004) 25 Michigan Journal of International Law 1229, 1242-1243;

David Kinley ‘Human Rights as Legally Binding or Merely Relevant?’ in Bottomley and Kinley Note 1, 38.

46 Andrew Clapham Human Rights Obligations of Non-State Actors (Oxford University Press, 2006) 546; Addo

Note 43, 266-269.

47 Customary international law generally emerges when two essential criteria are met: first, unambiguous and consistent practice by States in a particular field (State practice) and second, a sense of legal obligation by States to

follow the practice (opinion juris) Clapham Note 46, 86.

48 For more discussion on the status of the UDHR as customary international law, see Sigrun I Skogly and Mark

Gibney ‘Transnational Human Rights Obligations’ (2002) 24 Human Rights Quarterly 781 and H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995/6) 25 Georgia

Journal of International and Comparative Law 287.

49 Certain provisions under the UDHR are generally accepted to have acquired the status of customary international law, and are therefore legally binding These include rules prohibiting slavery, torture, arbitrary killing and

systematic racial discrimination The customary law status of other rights, especially economic, social and cultural rights, remains deeply contested Clapham Note 46, 86-87 See also, Philip Alston ‘A Human Rights Perspective on the Millennium Development Goals’ (Paper Presented as a Contribution to the Work of the Millennium Project Task Force on Poverty and Economic Development, 2004), para 35 Available at

www2.ohchr.org/english/issues/millenium-development/ /alston.doc (Last visited on 14 June 2012).

50 Jan Arno Hessbruegge ‘Human Rights Violations Arising from the Conduct of Non-State Actors’ (2005) 11

Buffalo Human Rights Law Review 21, 35.

made to individual “duties” in the UDHR, which arguably could include those of corporations,there is no clarification of exactly what these duties entail.51 It is also instructive to note thatother international human rights treaties do not include a provision on correlative private dutiessimilar to articles 29 and 30 of the UDHR; only their preambular paragraphs make reference toduties that individuals have towards other individuals.52 In my view, these provisions at best mayserve as a springboard towards a new conception of human rights in which commitments ofcorporations are more clearly articulated.53 This avenue shall be explored in greater detail in thesection directly below For now, it suffices to say that the above arguments fail to offer sufficient

proof that the UDHR provides binding corporate human rights obligations.54

Furthermore, the reliance on the commentary from human rights treaty bodies for the existence

of corporate human rights obligations seems to be misplaced While these treaty bodies doindeed acknowledge that corporations have human rights duties, they seem to endorse theirexistence only through domestic State action For instance, in its General Comment 15, theESCR Committee stated that “steps should be taken by States parties to prevent their owncitizens and companies from violating the right to water of individuals and communities in othercountries”.55 Similarly, the ESCR Committee stated that “the violations of the obligation toprotect follow from the failure of a State to take all necessary measures to safeguard personswithin their jurisdiction from infringements of the right to health by third parties … [including]failure to regulate the activities … corporations so as to prevent them from violating the right tohealth of others”.56

Therefore, under the current paradigm of international law, the obligation to ensure specificrights is addressed to the State, and corporations are only restricted indirectly through State

51 Ibid.

52 See for example, ICCPR Note 42, preamble and ICESCR Note 42, preamble.

53 Larissa van den Herik and Jernej Letnar Cernic, ‘Regulating Corporations under International Law: From Human

Rights to International Criminal Law and Back Again’ (2010) 8 Journal of International Criminal Justice 725, 734.

54 McCorquodale Note 1, 94.

55 Committee on Economic, Social and Cultural Rights, General Comment 15: The Right to Water (UN Doc

E/C12/2002/11 (2002), para 33

56 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable

Standard of Health UN Doc E/C12/2000/4 (2000) para 51.

action at the domestic level This contemporary position has been set out as follows by theHuman Rights Committee in its General Comment 31: “The article 2, paragraph 1, obligationsare binding on States [Parties] and do not, as such, have direct horizontal effect as a matter ofinternational law The Covenant cannot be viewed as a substitute for domestic criminal or civillaw”.57

The prevailing position appears to be that for victims of corporate human rights violations toobtain effective remedy, they must seek justice within a domestic legal system This explainswhy MNCs have been able to largely operate in a legal vacuum - because international humanrights law does not impose direct obligations on their transnational activities At this juncture, itwould be prudent to briefly discuss, and clarify, recent developments involving internationalcriminal responsibility of corporations, a subject currently under intense debate by theinternational community.58 Whereas the assertion that international human rights law imposesclear duties on corporations has been rejected in this paper, recent scholarship suggests that theposition may be different in the international criminal law context.59 Indeed, there is growingevidence that a marked shift towards direct liability under international criminal law hasoccurred in the last few decades with respect to individuals, including corporate entities, whichcommit international crimes such as genocide or crimes against humanity.60 A detailed

57 Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States

Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (2004) para 8.

58 See, for example, Kiobel v Royal Dutch Petroleum, US Supreme Court Docket No 10-1491 (12 June 2012), a

matter involving Nigerian plaintiffs seeking to bring civil claims against a US corporation for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention, among others The United States Supreme Court rejected the proposition that any international corporation with a link to the US may be held directly

liable for torts in violation of international law under the antiquated Alien Torts Claims Act 1789 (US) For further

information on developments surrounding the case, see generally,

petroleum-co/ (Last visited on 3 January 2014).

http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/alien-tort-statute/kiobel-v-royal-dutch-59 Duruigbo Note 4, 226-227; Andrew Clapham ‘The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ in Kamminga and Zia- Zafiri Note 38, 139.

60 See, for example, Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity

in International Crimes Facing the Facts and Charting a Legal Path (Corporate Complicity and Legal

Accountability, Vol 1, 2008) Available at http://icj.org/IMG/Volume_1.pdf (Last visited on 28 August 2013) It agrees with the position that corporations are now considered direct duty bearers under international criminal law See also, Brief Amici Curiae of the Former UN Special Representative for Business and Human Rights, Professor John Ruggie, Professor Philip Alston and the Global Justice Clinic at NYU School of Law in Support of Neither

Party’ submitted to the US Supreme Court in Kiobel v Royal Dutch Petroleum, US Supreme Court Docket No

10-1491 (12 June 2012)

consideration of these circumstances, however, lies beyond the scope of the paper and is moreappropriately discussed under international humanitarian law.61 For now, it suffices to note thatdespite the strong insistence by some quarters that these changes in the international criminal lawcontext extend beyond international crimes to include violations of international human rights

law, it is contended that corporations have only gradually incurred responsibilities towards human rights, not actual human rights obligations.62 This distinction is important as a misdirectedreliance on direct legal obligations under international criminal law may constitute a formidableobstacle in making meaningful progress in devising effective ways through which MNCs can beheld accountable for their negative human rights impacts

The question then becomes whether there is additional room under international law forharnessing the emerging human rights responsibilities of corporations towards accountability.63

How to move towards such a new conception will be explored in the section below

4 THE SOURCE ISSUE: IS THERE A BASIS IN INTERNATIONAL LAW TO IMPOSE CORPORATE HUMAN RIGHTS ACCOUNTABILITY?

Having accepted that international economic (and even political) power has shifted fromindividual States to MNCs, this paper posits that a re-examination of the international humanrights framework is necessary in order to determine a basis upon which MNCs can and should beheld accountable for their transnational violations of human rights.64 In this section, I shall seek

to fill this jurisprudential gap by using the concept of human dignity as the foundational principle

of corporate accountability My aim is to show that human dignity represents both a modernphilosophical concept and a key legal principle for dealing with threats to human rights posed byMNCs To this end, I shall explore the meaning of the concept of human dignity and the ways inwhich human rights rest on, give voice to, or seek to realize this concept Ultimately, it shall be

61 Ibid

62 Report of the Special Representative Note 13, paras 23 and 54

63 Van den Herik and Cernic Note 53, 731.

64 Surya Deva ‘Human Rights Violations by Multinational Corporations and International Law: Where From Here?’

(2003-4) 19 Connecticut Journal of International Law 1, 51.

argued that the notion of human dignity constitutes the best, if not the only, available ground forthe development of international accountability for MNC human rights abuses.

4.1 A Brief Reflection on the Philosophical Discourse on Human Dignity

The concept of human dignity is not confined to modern legal discourse but has deep roots in thetheology of religion, moral and political philosophy This section will provide a brief overview

of the historical development of human dignity While a detailed account would not be possible

or, indeed, desirable here, I hope to draw upon historical philosophical conceptions to shed light

on the meaning of the term in modern times

The philosophical underpinnings of the principle of human dignity can be traced all the way back

to classical Roman law, which used the concept to convey an individual’s rank and status insociety.65 This viewpoint was later displaced by early Christian religious teachings, whichasserted that human dignity was completely based upon one distinguishing feature bestowedupon humans by God: that man was created in His own likeness and has dominion over all othercreatures.66 St Thomas Aquinas (1225-1274), in particular, considered that the likeness of man

to God constituted human dignity.67 This idea was subsequently developed in the period ofRenaissance, where human dignity was seen as a universal quality enjoyed by all humanbeings.68 This period served to fortify the idea that dignity is not merely inherent and inalienablebut also universal to all people.69

The notion of human dignity was eventually received in the secular context where prominentphilosophical writers in the 17th century such as Samuel von Pufendorf (1632-1694) incorporated

65 Yehoshua Arieli ‘The Emergence of the Doctrine of the Dignity of Man’ in David Kretzmer and Eckart Klein

(eds) The Concept of Human Dignity in Human Rights Discourse (Kluwer Law International, 2002) 12-15.

66 Ibid.

67 For an in-depth teleological account of the concept of human dignity and its emergence in early Christian religious teachings, see Yair Lorberbaum ‘Blood and the Image of God: On the Sanctity of Life in Biblical and Early

Rabbinic Law, Myth and Ritual’ in Kretzmer and Klein Note 65, 55-85.

68 Matthias Mahlmann ‘The Basic Law at 60 - Human Dignity and the Culture of Republicanism’ (2010) 11 German

Law Journal 9, 14.

69 Don Chalmers and Ryuichi Ida ‘On the International Legal Aspects of Human Dignity’ in Jeff Malpas and Norelle

Lickiss (eds) Perspectives on Human Dignity: A Conversation (Springer, 2007) 158.