Corporate accountability in international environmental law

Th is book aims to defi ne the legal contours of the concept of corporate account-ability in international environmental law IEL.¹ It explores the current and future role of IEL in direc

I N T E R N AT ION A L E N V I RON M E N TA L L AW

Corporate Accountability

in International Environmental Law

E L IS A MORGE R A

1

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© Elisa Morgera, 2009

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Th e following book originates from a doctoral thesis accom plished at the

European University Institute in Florence, where the law department places a

great emphasis on exploring the increasing reach as well as the limits of

ever-evolving international law Now, the specifi c topic of this remarkable work by

Elisa Morgera serves to illustrate both the expansion and the lim its of

inter-national law

In a classical perspective, to which m any scholars still rem ain faithfully

attached, public international law does not deal with private corporations,

nei-ther does it deal with accountability Classically, it remains only interested in

States and in their responsibility Some venture even to challenge the place of

‘standards’ as real norms of international law, which are not referred to in any

respect at Article 38 of the Statute of the International Court of Justice (ICJ) For

such classically-oriented scholars, standards are seen at best as empiric tools for

the almost exclusive use by international judges and arbitrators in their eff orts

to accommodate the fl exibility and vagueness of rules of conduct or guidelines,

the legal status of which is often problematic Last but not least, focusing part of

the research on the impact of international organizations on the development of

such a moving picture could probably worry some good minds traditionally

ori-ented towards a vision of International Intergovernmental Organizations (IIOs)

(not even to speak of International Non-governmental Organizations (NGOs))

as mere collective emanations of States rather as actual—and at least sometimes

hyperactive—subjects of international law

Seen from such a classical, if not necessarily archaic, perspective, a book dealing

with ‘corporate accountability in international environmental law’ and exploring

‘emerging standards’ as well as the ‘contribution of international organizations’

to their creation would hardly be considered as legitimate, at least as far as public

international law is concerned

Indeed, the diffi culties exist from a theoretical as well as from a methodo logical

point of view; but one of the credits of this book is precisely to remain guided not

by an idealistic approach, where authors take their wishful thinking as if they

were a faithful description of the true reality On the contrary, Elisa Morgera has

been able to realistically construct in the most reliable way her patient review of

current eff orts: those made within and around international organizations for

establishing a normative framework to orient the action of multinational

cor-porations as well as for monitoring actual corporate conduct in order to make it

more compatible with a sustainable management of the human environment

In the interim, an increasing number of people understand the present limits

of traditional inter-State solutions with respect to the negative environm ental

impact of multilateral corporations Against this background, the empirical

elaboration of standards of conduct based on the growing expectations of the

international community, identifi ed with the help of international organizations,

provides a useful model against which to judge the compatibility of the conduct

of business with the promotion of sustainable development In this context, the

study undertaken by Elisa Morgera provides us also with a highly valuable

con-tribution to evaluating the true meaning of prevention and precaution in terms of

the effi cient protection of the environment against some destructive activities by

private international investors

Th e author remains also realistic as she acknowledges the rather limited

impact—until now—of international case law to the defi nition of sound and

reasonable corporate behaviour Morgera reviews the tools at the disposal of

States and private economic actors for promoting the actual respect of the

envi-ronmental standards defi ned at the national and international levels She

under-lines in particular that the screening and monitoring of international fi nancial

institutions working with the private sector (like the International Finance

Corporation (IFC)) are still not used as much as could be realistically expected

Th e same can be said for the potential direct or indirect monitoring role of a

number of hum an rights bodies Whatever the case m ay be, the author also

recognizes the interest and concrete limits of UN–business partnerships Much

remains indeed to be done by most multinational corporations, in particular in

terms of transparency of environmental management practices

In a straightforward but substantial way, Elisa Morgera demonstrates that the

inherent limits of the international public order to accommodate the concrete

socio-economic necessity of sustainable development do not inevitably draw

obstacles to enrich the concepts as well as the operational instruments of

inter-national law Th e author has found an elegant and reliable way to reconcile the

positive analysis of legal reality with the inspired vision of the goals and

perspec-tives to be reached by States as well as by private investors, the former having as

their duty to control that the latter do not operate only in terms of immediate

profi t

Professor Pierre-Marie DupuyUniversity of Paris (Panthéon-Assas)European University Institute, FlorenceGraduate Institute of International and Developments Studies, Geneva

Th is book aims to defi ne the legal contours of the concept of corporate

account-ability in international environmental law (IEL).¹ It explores the current and

future role of IEL in directing and controlling the conduct of business

enter-prises, in particular multinational corporations, through the identifi cation of

corporate accountability standards and their implementation by international

organizations Th e concept of corporate accountability is often related to the

insistent calls by international Non-Governmental Organizations (NGOs)²

and academics³ to ensure some sort of international oversight over private

com-panies, particularly multinationals, to avoid the most serious environmental

harm caused by them Corporate accountability is also equally relevant when

considering the growing practice of international organ izations to

increas-ingly engage the private sector in attaining global goals for the protection of the

environment

Corporate accountability became a buzzword in early 2002, when the

inter-national community was gearing up to the World Summit on Sustainable

Development (WSSD) At the time NGOs called for a binding convention on

corporate accountability and liability.⁴ Th is proposal was based on the continuing

damage to the environment caused by private companies, the limits of national

courts to provide redress to victims and recoup clean-up costs from polluters, and

the perceived shortcomings of international law in addressing this issue,⁵ while

providing vigorous protection to foreign investment

¹ Th e diffi culty in ascertaining precisely what ‘binds together’ the disparate developments on

global corporate accountability is affi rmed by P Muchlinski, ‘Human Rights, Social Responsibility

and the Regulation of International Business: Th e Development of International Standards by

Intergovernmental Organizations’ (2003) 3 Non-State Actors and International Law 23, 130.

² Friends of the Earth (FOE), ‘Towards Binding Corporate Accountability’ (Position paper for

the World Summit on Sustainable Development (WSSD), January 2002).

³ P Hansen and V Aranda, ‘An Em erging International Fram ework for Transnational

Corporations’ (1990) 14 Fordham International Law Journal 881; J Bendell and D Murphy, ‘Towards

Civil Regulation: NGOs and the Politics of Corporate Environmentalism’, in P Utting (ed), Th e

Greening of Business in Developing Countries (London: Zed Books in association with UNRISD,

2002) 244, 264; Th e International Council on Human Rights Policy, Beyond Voluntarism: Human

Rights and the Developing International Legal Obligations for Companies (Versoix: International

Council on Human Rights Policy, 2002) 8; M Mason, Th e New Accountability: Environmental

Responsibility Across Borders (London: Earthscan, 2005) 15.

⁴ FOE, ‘Towards Binding Corporate Accountability’ op cit

⁵ As well as other results of increased transnationalism, which are ‘testing the limits of the

adequacy and eff ectiveness of international law’, as described by C Tomuschat, ‘International

Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Recueil des cours

9, 42 On globalization and the competition between States and private subjects that more and

more are free from State control, see also the refl ections by P-M Dupuy, L’unité de l’ordre juridique

inter national (Leiden: Martinus Nijhoff Publishers, 2003) 41.

While the NGO proposal did not succeed in gathering

intergovernmen-tal support, the WSSD enshrined the idea of corporate accountability in the

inter national agenda on sustainable development,⁶ leaving several questions

unanswered as to its legal signifi cance and expected impacts on the way in which

States traditionally ensure an environmentally sound corporate conduct In the

aftermath, a growing interest of various international organizations in

cooperat-ing with the private sector and engagcooperat-ing business in the implementation of

multi-lateral environmental agreements soon became standard practice

Many of these attempts mushroomed without coordination, with little refl

ec-tion on how to structure and maximize them to achieve global environmental

objectives A few, however, also attempted to draw some basic principles or

bench-marks to guide business towards an environmentally sound and acceptable

per-formance Th e latter types of initiatives are analysed in this book Since 2000,

the UN Secretary-General and the UN Sub-Com m ission on Hum an Rights

have developed specifi c initiatives to better defi ne the minimum requirements

that business must fulfi l in order satisfactorily to respond to the expectations of

the inter national com munity Following the WSSD, a renewed interest in the

Guidelines for Multinational Corporations of the Organization for Econom ic

Cooperation and Development (OECD) also marked NGOs’ work on corporate

accountability In 2006, the IFC reshaped its policies with a clear defi nition of

per-formance standards for private companies based on IEL principles and objectives

In the face of such multi-faceted—yet largely convergent—international

prac-tice, this book examines ‘the tensions and tendency to change of law, and the

reper-cussions of social change on legal changes’.⁷ It provides a legal–political analysis

focusing on the creation and evolution of law, the social forces and tensions that

make law emerge and develop, and the reasons why law is such, at a certain point

in time.⁸ Th e progressive integration, or attempted integration, of the private

sec-tor in the implementation of IEL through the concept of corporate accountability

has come to represent one of the aspects of the continuous and constant process of

evolution of international law in general, and of IEL in particu lar Th e continuous

calls for increased corporate environmental accountability demonstrate that this

can indeed be identifi ed as one of the social values that are progressively emerging

and becoming so important in the social conscience that they are increasingly

expected to be formally sanctioned and protected by law.⁹

As a result of these tensions and widespread expectations, the fi ne line between

positive law and law in fi eri may not be clearly defi ned.¹⁰ Th is book will therefore

⁶ WSSD, Johannesburg Plan of Implementation, UN Doc A/CONF.199/20, Resolution 2,

Annex, 4 September 2002, paras 18, 49 and 140(f).

⁷ N Bobbio, Dalla struttura alla funzione: nuovi studi di teoria del diritto (Milano: Edizioni di

Comunità, 1977) 53.

⁸ G Abi-Saab, ‘Cours general de droit international public’ (1987) 207 Recueil des cours 9, 33.

⁹ Paraphrasing Abi-Saab, op cit 204–5.

¹⁰ Ibid 204–5 (‘Le seuil du droit entre lex lata et lex ferenda’).

try to explore the borderline between current IEL and developing IEL, which

is represented by em erging international standards for corporate environm

en-tal accountability and their operationalization thanks to the initiative of

inter-national organizations Th ese standards will be considered as the current response

to the calls for ‘a new legal order that brings multinational actors within the

principle of accountability’.¹¹ Th ese standards may be evolving into a sort of ‘law

of the future [that] will recognize as accountable to the international legal

sys-tem’¹² important new international actors such as multinational corpor ations

and other business entities

Th e present study therefore aim s to better defi ne the concept of corporate

accountability as the answerability of private companies to public expectations

based on international environmental standards Th ese standards are

consid-ered as a fundamental, minimum normative benchmark, fi rmly rooted in IEL,

according to which it is possible to critically appraise corporate conduct, even in

the absence of national laws to this eff ect

Th e fi rst part of the book seeks to prove the need for corporate environmental

accountability standards and their means of implementation at the international

level, based both on the egregious cases of environmental damage and day-to-day

negative impacts of the private sector, as well as on the desirability of the

pri-vate sector’s proactive contribution to the attainment of internationally agreed

goals (Chapter 1) Th e increasing attention of the international community to

corporate environmental accountability and responsibility—as refl ected in the

outcome of major global conferences—shows the emergence and strengthening

of expectations related to transparency, prevention and answerability on the part

of private companies (Chapter 2) Th is shift is motivated, on the one hand, by the

shortcomings of traditional legal solutions to ensure the environmentally sound

conduct of private companies: home and host State control, international State

responsibility and international environmental regimes for civil liability On the

other hand, it is counterbalanced by the disproportionate protection off ered by

international law to multinational companies as foreign investors, in the absence

of international legally binding obligations upon them (Chapter 3)

Against this background, the second part of the book points to the emergence

of converging international environmental standards for corporate

account-ability in various initiatives undertaken by diff erent international

organiza-tions on the basis of multistakeholder consultaorganiza-tions, often in the absence of

State involvement Corporate accountability standards that have reached a

sig-nifi cant level of detail and acceptance at the international level include:

envir-onmental integration through envirenvir-onmental impact assessments (EIAs) and

environmental management systems (EMS); prevention, particularly in case of

¹¹ C Weeramantry, ‘Human Rights and the Global Marketplace’ (1999) 25 Brooklyn Journal of

International Law, 27.

¹² Ibid 49.

likely transboundary environmental harm or environmental harm with serious

human rights consequences; precaution, disclosure of environmental

informa-tion; public involvement; and the sustainable use of natural resources,

particu-larly when part of an internationally protected site Although these concepts

may be considered at a glance akin to the general principles of IEL,¹³ they have

been signifi cantly re-elaborated, translating inter-State obligations, to specifi

c-ally target private companies A theoretical discussion of the role of legal

stand-ards, as opposed to rules and principles, premises the second part of the book

(Chapter 4)

Th e second part of the book is not only devoted to identifying emerging

stand-ards, but also the process through which international organizations defi ne or

choose these standards Such identifi cation is fi rst based on an analysis and

com-parison of the instruments elaborated in the framework of the United Nations

(UN) and the OECD, to assess whether a signifi cant convergence in the choice of

international environmental standards for private companies is occurring Such

assessment will also provide further historical and conceptual background to this

research, in highlighting the diff erent approaches adopted to ensure the

respon-sible conduct of the private sector and the diff erent processes and actors involved

in the defi nition of these standards (Chapter 5) An analysis of the growing case

law on the environmentally irresponsible conduct of private companies follows It

fi rst concentrates on reviewing decisions by national courts facing claims of

inter-national environmental NGOs and victim groups calling for the direct

appli-cation of international environmental rules upon private corporations It then

turns to the international level, to assess the extent and the basis upon which

human rights monitoring bodies focus on the conduct of private companies, in

addition to that of the State in which they operate, when human rights violations

are concomitant with or caused by major environmental damage (Chapter 6)

Furthermore, an assessment is made of the international environmental

stand-ards utilized by international fi nancial institutions to review private companies’

projects’ eligibility for funding and to set conditions in loan agreements Once

again, the aim is to ascertain the extent to which the standards identifi ed by these

organizations are based on IEL, the extent to which the process for

standard-setting involves diff erent stakeholders, and the extent to which standards are

expected to be taken into account directly by private companies (Chapter 7)

Th e concluding chapter clarifi es the level of detail and international acceptance

of em erging international standards, also drawing upon recent developm ents

in multilateral environmental agreements and in particular the Convention on

Biological Diversity (CBD) (Chapter 8)

To show the practical impact of international standards for corporate

account-ability and the continued relevance of the work of international organizations in

this respect, the third part of this book focuses on the existing and potential tools

¹³ P Sands, Principles of International Environmental Law (2nd edn, Cambridge: CUP, 2003).

for compliance that international organizations have at their disposal to ensure

the actual respect of standards by private companies through information,

com-munication, monitoring and stakeholder empowerment First of all, the

envir-onmental performance standards utilized by international fi nancial institutions

working with the private sector are analysed, with a view to suggesting further

means to strengthen their application and integration in contractual loan

agree-m ents In addition, the role of international fi nancial institutions’ coagree-mplaints

mechanisms is considered as an avenue for victims of corporate environmental

damage (Chapter 10) Second, the oversight role of human rights monitoring

bodies, the UN and in particular the Security Council, and the OECD national

contact points is assessed, and questions related to their increased cooperation are

addressed (Chapter 11) Finally, the growing practice of establishing partnership

between the UN and the private sector is analysed, together with the possibility

of basing these initiatives on the emerging standards for corporate environmental

accountability, of strengthening them by using contractual agreements, and

pos-sibly directing them to the further defi nition of these standards in specifi c

indus-try sectors or circumstances, in a collaborative way (Chapter 12)

As this study tackles an ongoing development within IEL, many questions

remain unanswered to which only continuous monitoring and analysis of

inter-national practice will in time provide adequate response

E M

I wish to express my gratitude to Prof Pierre-Marie Dupuy, for sharing his views

about legal standards, the social function of international lawyers and the critical

importance of legal theory to substantiate empiric legal research among many

other challenges of international law Many sincere thanks are also owed to

Prof Francesco Francioni for his tireless assistance and his rigour in assessing

legal research It has been a privilege to receive the comments and suggestions

of Prof Alain Boyle and Tullio Scovazzi on the Ph.D thesis upon which this

book is based I am also very grateful to Prof Fabrizio Cafaggi and Prof

Marie-Ange Moreau for having engaged me in multidisciplinary debates on corporate

accountability

I am very thankful to the Italian granting authorities for having had the

oppor-tunity to undertake a Ph.D programme at the European University Institute

(EUI), an environment that prevents academic research from becoming a solitary

endeavour and treats researchers with beauty and history It has been a pleasure

to be part of the EUI Environmental Law Working Group, and I wish to thank

Patricia, Emanuela and the other members for having kept this forum alive

I am also grateful to the friends and colleagues of the International Institute

for Sustainable Development (IISD), with whom I assisted in and analysed

inter-governmental negotiations—particularly those in the framework of the CBD—

which have signifi cantly contributed to the refl ections in this book

I also owe my gratitude for the stimulating exchanges of ideas on UN initiatives

to Mr Peter Utting (United Nations Research Institute on Social Development),

Mr Simon Walker (UN High Commissioner’s Offi ce for Human Rights), and

Mr Khalil Ham dani and Ludger Odenthal (United Nations Conference on

Trade and Development), whom I met during a mission to the UN Offi ce in

Geneva, Switzerland, in July 2004, funded by the EUI

I wish to express my gratitude also to the Foundation for International

Environmental Law and Development, where I fi rst undertook research on

cor-porate environmental accountability under the guidance of Alice Palmer I am

indebted to Prof Philippe Sands at University College London (UCL), with

whom I fi rst explored the links between IEL, and the work of international

organizations

Finally, a million thanks to the friends I made while at the EUI—Graciela,

Louisa, Alessandro, Tom and Clemens; at the UCL—Rika and Harry; and to

my old friends Francesca and Lorraine, who have always been there for me and

with whom distance does not make a diff erence Finally, my lasting gratitude to

my family, to whom this book is dedicated: mamma, papà, Franci, Andrea, and

Riccardo

Table of Treaties and International Materials xxiii

PA RT I: PR E L I M I N A RY QU E S T IONS

1 Th e Need for Corporate Environmental Accountability 3

1.1 Th e private sector’s share of negative environmental impacts 5

1.2 Business opportunities to contribute to the global protection

2 History and Defi nitions 11

2.2 Th e concept of corporate responsibility 18

2.3 Th e concept of corporate accountability 19

2.4 From corporate responsibility to corporate accountability 22

3 Th e Shortcomings of Traditional Legal Solutions 25

3.2 Th e limits of international law on State responsibility 34

3.3.1 International regimes on civil liability for environmental

3.3.2 International environmental crimes? 423.3.3 International environmental law: implications, expectations

and legal standards of conduct for private companies 44

3.4 Links with other areas of international law 48

3.4.1 Synergies with international human rights law 493.4.2 Balancing the international protection of

3.5 Th e status of MNCs in international law and the need for

PA RT I I: E M E RGI NG I N T E R N AT ION A L S TA N DA R DS

OF C OR P OR AT E E N V I RON M E N TA L

AC C OU N TA BI L I T Y

4.2 Th e international character of legal standards for corporate

4.4 Th e role of international organizations 75

5 Th e UN and the OECD: Parallel or Convergent Paths? 77

5.1 International regulation of MNCs: the UN draft Code of

5.2 Subsequent practice of the UN in the 1990s: the

5.3.1 Th e ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with

5.3.2 Th e UN Special Representative on Corporate Responsibility 985.4 Th e parallel story of the OECD Guidelines

5.5 Th e convergence of environmental standards 106

6 A Contribution of Human Rights Monitoring Bodies? 119

6.1.1 Earlier cases piercing the corporate veil 121

7 Standard-setting by International Financial Institutions 144

7.2 Th e IFC Policy and Performance Standards for

7.2.1.1 Environmental impact assessment 151 7.2.1.2 Environmental management system 1537.2.2 Pollution prevention and climate change 156

7.2.3.1 Sustainable use of natural resources 162

7.3 Th e IFC contribution to corporate environmental accountability 167

7.3.1 Trend-setting for corporate environmental accountability? 169

8 Emerging Standards on Corporate Accountability in IEL 172

8.1 Th e Convention on Biodiversity and the private sector 173

8.2 Emerging international standards on corporate

9.2 International organizations’ tools for compliance 207

10 Th e Tools of International Financial Institutions: Conditions in

Loan Agreements and Complaints Mechanisms 209

10.1.1 Lessons learnt from past implementation 21210.1.2 Ways to enhance the IFC’s monitoring role 215

10.2 Th e contribution of complaint mechanisms 21610.2.1 Ways to enhance the IFC’s complaint mechanism 222

12.3 Recommendations on UN–business partnerships based

12.3.1 Recommendations for CBD–business partnerships 26212.4 Conclusions: binding standards for voluntary partnerships 265

List of Acronyms

ADR Alternative dispute resolution

ATCA Alien Tort Claim Act

BITs Bilateral investment treaties

CAO Compliance Advisor/Ombudsman of the IFC

CBD Convention on Biological Diversity

CIME OECD Committee on International Investment and

Multilateral EnterprisesCITES Convention on International Trade in Endangered Species

CMS Convention on Migratory Species

CoE Council of Europe

COP Conference of the Parties

CSD Commission on Sustainable Development

EBRD European Bank for Reconstruction and Development

ECHR European Court of Human Rights

EIA Environmental impact assessment

EMS Environmental management systems

FDI Foreign direct investment

FOE Friends of the Earth

GATS General Agreement on Trade and Services

GDP Gross domestic product

G-77 Group of Developing Countries

HRC Human Rights Council

ICJ International Court of Justice

ICSID International Centre for Settlement of Investment Disputes

IDB Inter-American Development Bank

IEL International environmental law

IFC International Finance Corporation

IIOs International Intergovernmental Organizations

ILC International Law Commission

ILO International Labour Organization

IPCC International Panel on Climate Change

IPR Intellectual property rights

ISO International Standards Organization

IUCN International Union for Conservation of Nature

MAI Multilateral Agreement on Investment

MDGs Millennium Development Goals

MEAs Multilateral environmental agreements

MNCs Multinational corporations/companies

MNEs Multinational enterprises

NAFTA North American Free Trade Agreement

NCPs National contact points

NGOs Non-Governmental Organizations

NIEO New International Economic Order

ODA Offi cial Development Assistance

OECD Organization for Economic Cooperation and Development

OHCHR Offi ce of the High Commissioner for Human Rights

PPP Polluter-pays principle

PRTRs Pollution release and transfer registers

TNCs Transnational corporations

TRIMS Trade-Related Aspects of Investment Measures Agreement

TRIPS Trade-Related Aspects of Intellectual Property

Rights AgreementUDHR Universal Declaration of Human Rights

UNCLOS United Nations Convention on the Law of the Sea

UNCHR United Nations Commission on Human Rights

UNCTAD United Nations Conference on Trade and Development

UNCTC United Nations Commission on Transnational Corporations

UNDESA United Nations Department of Economic and Social Aff airs

UNECE United Nations Economic Commission for Europe

UNECOSOC United Nations Economic and Social Council

UNESCO United Nations Education, Scientifi c and Culture Organization

UNESCRC UN Economic, Social and Cultural Rights Committee

UNGC United Nations Global Compact

UNGA United Nations General Assembly

UNRISD United Nations Research Institute for Social Development

WHO World Health Organization

WSSD World Summit on Sustainable Development

WTO World Trade Organization

WWF World Wide Fund for Nature

Table of Treaties and International

Materials

T R E AT I E S Articles of Agreement of the International Finance Corporation (20 July 1956, as amended by

resolutions eff ective 21 September 1961 and 1 September 1965) 144

Convention on Civil Liability for Nuclear Damage (Vienna, 29 May 1963, into force 12

November 1977) 12, 40, 108

Convention on the Settlement of Investment Disputes between States and Nationals

of Other States (ICSID Convention) (Washington, 18 March 1965, in force

14 October 1966) 52, 54, 55

Convention on the Law of the Treaties (Vienna, 23 May 1969, in force 27 January 1980) 167

American Convention on Human Rights (San José, 22 November 1969, in force

18 July 1978) 138

International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29 November

1969, in force 19 June 1975) 12, 40, 108, 126

Brussels International Convention on Civil Liability for Oil Pollution Damage (Brussels, 29

November 1969, in force 19 June 1975) 132, 173

Ramsar Convention on Wetlands of International Importance Especially as

Waterfowl Habitat (Ramsar Convention) (Ramsar, 2 February 1971,

in force 21 December 1975) 161, 164, 196, 198, 253, 264

International Convention on the Establishment of an International Fund for Compensation for

Oil Pollution Damage (Brussels, 18 December 1971, in force 16 October 1978) 40

Convention for the Protection of the World Cultural and Natural Heritage

(World Heritage Convention) (Paris, 16 November 1972, in

force 17 December 1975) 161, 196, 198, 264

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other

Matter (London Convention on Ocean Dumping) (London, 29 December 1972,

in force 30 August 1975) 158

Convention on International Trade in Endangered Species of Wild Fauna and Flora

(CITES) (Washington, 3 March 1973, in force 1 July 1975) 126, 160, 195, 264

Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for and

Exploitation of Seabed Mineral Resources (London, 1 May 1977, not in force) 42

Protocol Additional to Geneva Conventions of 1949 relating to the Protection of Victims of

International Armed Confl icts (Geneva, 8 June 1977, in force 7 December 1978) 131

Convention on the Conservation of Migratory Species of Wild Animals (CMS)

(Bonn, 23 June 1979, in force 1 November 1983) 253, 264

Convention on Long-range Transboundary Air Pollution (Geneva, 13 November 1979,

ILO Convention concerning Indigenous and Tribal People in Independent Countries

(Geneva, 27 June 1987, in force 5 September 1991) 155

Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal,

16 September 1987, in force 1 January 1989) 158, 253

Convention on the Control of Transboundary Movements of Hazardous

Wastes and Th eir Disposal (Basel Convention) (Basel, 22 March 1989,

in force 24 May 1992) 54, 132, 157, 167, 254

Kingston Protocol concerning Specially Protected Areas and Wildlife in the Wider Caribbean

Region (Kingston, 18 January 1990, in force 25 April 2000) 198

Bamako Convention on the Ban of Import into Africa and the Control of Transboundary

Movement and Management of Hazardous Wastes within Africa (Bamako,

29 January 1991, in force 22 April 1998) 132

Protocol to the Antarctic Treaty on Environmental Protection (Madrid, 4 October 1991,

in force 14 January 1998) as amended by the 28th Antarctic Treaty Consultative

Meeting on 14 June 2005, to include Annex VI on Liability Arising from

Environmental Emergencies 41

Th e United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay,

10 December 1992, in force 16 November 1994) 130, 163, 195

UNECE Convention on the Transboundary Eff ects of Industrial Accidents

(Helsinki, 17 March 1992, in force 19 April 2000) 192

United Nations Framework Convention on Climate Change (New York, 9 May 1992,

in force 21 March 1994) 167, 186, 264

Convention on Biological Diversity (CBD) (Rio de Janeiro, 5 June 1992,

in force 29 December 1993) 8, 108, 126, 166, 167,

172–4, 180–1, 194, 199 Convention on Civil Liability for Damage resulting from Activities Dangerous to the

Environment (Lugano, 21 June 1993, not in force) 173

International Convention to Combat Desertifi cation in those Countries Experiencing

Serious Drought and/or Desertifi cation, particularly in Africa (Paris, 17 June 1994,

in force 26 December 1996) 264

Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean

(Barcelona, 10 June 1995, in force 12 December 1999) 198

United Nations Agreement for the Implementation of the Provisions of the United Nations

Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and

Management of Straddling Fish Stocks and Highly Migratory Fish Stocks ((New York, 04

August 1995, in force 11 December 2001) 164

Convention on Liability and Compensation for Damage in Connection with the Carriage of

Hazardous and Noxious Substances by Sea (London, 3 May 1996, not in force) 41

Protocol to the Framework Convention on Climate Change (Kyoto Protocol) (Kyoto, 11

December 1997, in force 16 February 2005) 253

Convention on Access to Information, Public Participation in Decision-Making and

Access to Justice in Environmental Matters (Aarhus Convention) (Aarhus,

25 June 1998, in force 30 October 2001) 20, 110, 132, 189, 239

Statute of the International Criminal Court (Rome, 17 July 1998, in force 1 July 2002) 43

Convention on the Protection of the Environment through Criminal Law (Strasbourg,

4 November 1998, not in force) 44

Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals

and Pesticides in International Trade (PIC Convention) (Rotterdam, 10 September 1998,

in force 1 January 2006) 169

Protocol on Liability and Compensation for Damage Resulting from the Transboundary

Movement of Hazardous Wastes and their Disposal (Basel, 10 December 1999,

not in force) 40–1

Cartagena Procotol on Biosafety to the Convention on Biological Diversity

(Montreal, 29 January 2000, in force 11 September 2003) 186

International Convention on Civil Liability for Bunker Oil Pollution Damage,

(London, 23 May 2001, in force 21 November 2008) 40

Stockholm Convention on Persistent Organic Pollutants (Stockholm, 22 May 2002,

in force 17 May 2004) 158, 169

United Nations Convention against Corruption (UNGA Res 58/4 (31 October 2003),

in force 14 December 2005) 90

Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary

Eff ects of Industrial Accidents on Transboundary Waters to the 1992 Convention on

the Protection and Use of Transboundary Watercourses and International Lakes and

to the 1992 Convention on the Transboundary Eff ects of Industrial Accidents

(Kiev, 21 May 2003, not in force) 40

Protocol on Pollutant Release and Transfer Register (Kiev, 21 May 2003, not in force) 191

D O C U M E N T S OF I N T E R N AT ION A L ORG A N I Z AT ION S

DI PL OM AT IC C ON F E R E NC E S

‘Declaration of the United Nations Conference on the Human Environment’

(16 June 1972) UN Doc A/CONF.48/14/Rev.1 (Stockholm

Declaration) 11, 17, 23, 125–6, 136, 183, 250

‘Rio Declaration on Environment and Development’ (13 June 1992)

UN Doc A/CONF.151/6/Rev.1 (Rio Declaration) 11–12, 17, 20, 74, 90, 104, 110, 126,

136, 139, 173, 178, 182, 186, 194, 252, 256

‘Agenda 21’ (13 June 1992) UN Doc A/CONF.151/6/Rev.1 13–14, 17, 23, 60, 84–6,

104, 110, 250, 256 86th Session of the General Conference of the International Labour Organization,

‘Declaration on Fundamental Principles and Rights at Work International Labour

Organization’ (19 June 1998) 90

‘Report of the World Summit on Sustainable Development’ (WSSD) (4 July 2002)

UN Doc A/CONF.199/20 (WSSD Report) 14, 17, 250–1, 256–7

WSSD, ‘Political Declaration’ (4 July 2002) UN Doc A/CONF.199/20, 2002,

Resolution 1 (WSSD Declaration) 14–15

WSSD, ‘Johannesburg Plan of Implementation’ (4 July 2002) UN Doc A/CONF.199/20,

Resolution 2 (WSSD Plan of Implementation) 11, 16, 20, 23, 108, 173, 199

U N S E C U R I T Y C OU NC I L

UN Security Council Res 687/1991 (8 April 1991) 131

UN Security Council Presidential Statement on the situation concerning the Democratic

Republic of the Congo (19 December 2001) UN Doc S/PRST/2001/139 240

UN Security Council, ‘Final Report of the Panel of Experts on the Illegal Exploitation

of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo’

(2002) UN Doc S/2002/1146 240–1

UN Security Council, ‘Final Report of the Panel of Experts on the Illegal Exploitation

of Natural Resources and Other Forms of Wealth of the Democratic Republic

‘International Covenant on Civil and Political Rights’, UNGA Res 2200(XXI)

(16 December 1966) 140

‘Declaration on the Establishment of a New International Economic Order’

UNGA Res 3201 (6 September 1974) 81

‘Programme of Action for the Establishment of a New International Economic

Order’ UNGA Res 3202 (6 September 1974) 81

UNGA Res 37/7 (28 October 1982) 136

‘Declaration on the Right to Development’ UNGA Res 41/128 (4 December 1986) 173

UNGA Res 44/228 (22 December 1989) 12

UNGA, ‘Report of the Secretary-General: Renewing the United Nations: A Programme for

Reform’ (14 July 1997) UN Doc A/51/950 248

‘United Nations Millennium Declaration’, UNGA Res 55/2 (8 September 2000) 248

UNGA Res 55/215 (6 March 2001) 108, 249

UNGA, ‘Report of the Secretary General: Cooperation between the

United Nations and all relevant partners, in particular the

private sector’ (9 October 2001) UN Doc A/56/323 258

UNGA Res 56/76 (24 January 2002) 249

UNGA Res 57/300 (7 February 2003) 250

‘Role of the United Nations in Promoting Development in the context of Globalization and

Interdependence’ UNGA Res 58/225 (23 December 2003) 16

UNGA, ‘Report of the Secretary-General: Enhanced Cooperation between the

United Nations and all Relevant Partners, in particular the Private

Sector’ (2003) UN Doc.A/58/227 86–7

UNGA Res 58/129 (19 February 2004) 249

UNGA, ‘Note by the Secretary-General transmitting the report of

the High-level panel on threats, challenges and change’

(2 December 2004) UN Doc A/59/565 241

UNGA, ‘Report of the UN Secretary-General: In Larger Freedom: Towards Development,

Security and Human Rights for All’ (21 March 2005) UN Doc A/59/2005 249

UNGA, ‘Report of the Secretary General: Enhanced Cooperation between the

UN and All Relevant Partners, in particular the Private Sector’ (10 August 2005)

UN Doc A/60/214 249, 255, 258

‘Summit Outcome Document’, UNGA Res 60/1 (24 October 2005) 249

UNGA Res 60/215 (29 March 2006) 249, 259

UNGA Res 60/251 (3 April 2006) 92

‘United Nations Declaration on the Rights of Indigenous Peoples’ UNGA Res 61/295

(13 September 2007) 155

UNGA, ‘Enhanced Cooperation between the United Nations and all relvant partners, in

particular the private sector’ (14 April 2007) UN Doc A/62/341 91, 256, 259

UNGA Res 62/211 (11 March 2008) 18, 91, 249–50, 259

U N I T E D N AT ION S E C ONOM IC A N D S O C I A L

C OU NC I L  E C O S O C

ECOSOC Res 1721 (LIII) (28 July 1972) 79

ECOSOC, ‘Eff ects of Transnational Corporations on Development and International

Relations’ (1974) UN Doc E/5500/Rev.1/ST/ESA/6 79

ECOSOC Res 1913(LVII) (5 December 1974) 79

ECOSOC Res 60 (24 July 1980) 80

ECOSOC, ‘Report of Secretary-General: Transnational corporations and Issues relating to the

Environment’ (4 March 1991) UN Doc E/C.10/1991/3 44

‘Recommendations of the Commission on Transnational Corporations at its seventeenth session

and its contribution to the preparations for the United Nations Conference on Environment

and Development’ ECOSOC Res 1991/55 (26 July 1991) 44

ECOSOC, ‘Report of the Secretary-General: Follow-up to the United Nations

Conference on Environment and Development as related to Transnational

Corporations’ (4 March 1993) UN Doc E/C.10/1993/7 12

ECOSOC, ‘Report of the Secretary-General: Partnerships for Sustainable Development

Background paper n.1 for the Twelfth Session of the Commission on Sustainable

Development’ (10 February 2004) UN Doc E/CN.17/2004/16 250, 255

U N C OM M I S S ION ON T R A N S N AT ION A L

C OR P OR AT ION S  U NC TC

UNCTC, ‘Environmental Aspects of the Activities of Transnational Corporations:

A Survey’ (1985) UN Doc ST/CTC/55 190

UNCTC, ‘Report of the Secretary General: Ongoing and Future Research:

Transnational Corporations and Issues Relating to the Environment’ (1989)

UN Doc E/C.10/1989/12 189

UNCTC, ‘Report of the Secretary General: Transnational Corporations and Issues

Relating to the Environment’ (1990) UN Doc E/C.10/1990/10 65

UNCTC, ‘Proposed Text of the Draft Code of Conduct on Transnational

Corporations’ (12 June 1990) UN Doc E/1990/94

(UN Draft Code of Conduct) 39, 79–85, 90, 106–7, 113, 116, 126, 190, 192, 267

UNCTC, ‘Transnational Corporations and Sustainable Development: Recommendations

of the Executive Director’ (1991) UN Doc E/C.10/1992/2 74

UNCTC, Criteria for Sustainable Development Management (1991), reproduced in UNCTC,

‘Transnational Corporations and Sustainable Development: Recommendations of the

Executive Director’ (16 December 1991) UN Doc E/CN.10/1992/2 84

UNCTC, ‘Activities of Transnational Corporations and Management Division and its Joint

Units: Follow-up to the UN Conference on Environment and Development as related to

Transnational Corporations’ (1993) UN Doc E/C.10/1993/7 11

U N DE PA RT M E N T OF E C ON OM IC A N D S O C I A L

A F FA I R S  U N DE S A  UNDESA, ‘Partnerships for Sustainable Development – Update Background paper

n.1 for the Th irteenth Session of the Commission on Sustainable Development’

(2005) UN Doc DESA/DSD/2005/1 251

U N C OM M I S S ION H U M A N R IG H T S  U NC H R / U N

H U M A N R IG H T S C OU NC I L H RC

UNCHR, Lubicon Lake Band v Canada, Communication No 167/1984

(26 March 1990) UN Doc Supp No 40 (A/45/40) 140

UNCHR, ‘Report of the Special Rapporteur on the adverse eff ects of the illicit

movement and dumping of toxic and dangerous products and wastes’

(6 July 1994) UN Doc E/CN.4/Sub.2/1994/9 49, 128, 132, 201

UNCHR Sub-Commission on the Prevention and Discrimination of Minorities,

‘Human Rights and the Environment’ (6 July 1994) UN Doc E/CN.4/Sub.2/

1994/9 (Ksentini Report) 120

UNCHR Sub-Commission on the Prevention and Discrimination of Minorities, ‘Draft

Principles on Human Rights and the Environment’ (6 July 1994) UN Doc E/CN.4/

Sub.2/1994/9, Annex I 126

UNCHR Sub-Commission on the Promotion and Protection of Human Rights

(UNCHR Sub-Commission), Res 1997/11 (22 August 1997) 92

UNCHR Sub-Commission Res 1998/8 (20 August 1998) 92

UNCHR Sub-Commission, ‘Principles related to the Human Rights Conduct

of Companies: working paper prepared by D Weissbrodt’ (2000)

UN Doc E/CN.4/Sub.2/2000/WG.2/WP.1 65, 95

UNCHR Sub-Commission, ‘Proposed Draft Human Rights Code of Conduct for

Companies with source materials’ (25 May 2000) UN Doc E/CN.4/Sub.2/2000/

WC.2/WAT1/Add.1 93

UNCHR Sub-Commission, ‘Compte rendu analytique de la 25 e séance’ (available

only in French) (31 August 2001) UN Doc E/CN.4/Sub.2/2001/SR.25 92

UNCHR Sub-Commission, ‘Draft Universal Human Rights Guidelines for Companies’

(2001) UN Doc E/CN.4/Sub.2/2001/WG.2/WP.1/Add.1 65, 108

UNCHR Sub-Commission, ‘Report of the 3rd Session of the Working Group’ (2001)

UN Doc E/CN.4/Sub.2/2001/9 66

‘Adverse eff ects of the illicit movement and dumping of toxic and dangerous products

and wastes on the enjoyment of human rights’ UNCHR Resolution 2001/35

(20 April 2001) 227

Offi ce of the High Commissioner for Human Rights (OHCHR), ‘Human Rights and

the Environment, Conclusions of a Joint OHCHR-UNEP Meeting of Experts on

Human Rights and the Environment’ (16 January 2002) <http://www.unhchr.ch/

environment/conclusions.html> 50

UNCHR Sub-Commission, ‘Human Rights Principles and Responsibilities for

Transnational Corporations and Other Business Enterprises with Commentary on

the Principles’ (2002) UN Doc E/CN.4/Sub.2/2002/XX/Add.2 65, 108

UNCHR Res 2003/59 (24 April 2003) 91

UNCHR Sub-Commission, ‘Norms on the Responsibilities

of Transnational Corporations and Other Business Enterprises

with regard to Human Rights’ (26 August 2003) UN Doc E/

CN.4/Sub.2/2003/12/Rev.2 (UN Norms) 49, 74, 83, 91–9, 104, 106–9,

113–18, 154, 162, 167–8, 170, 173, 179–80, 182, 184, 187–8, 190, 192,

194, 226–7, 267, 269 UNCHR Sub-Commission Res 2003/16 (13 August 2003) 93

UNCHR, ‘Report of the Special Rapporteur on the Adverse Eff ects of the Illicit Movement

and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of

Human Rights’ (19 December 2003) UN Doc E/CN.4/2004/46/ Add 2 97

UNCHR Res 2004/60 (20 April 2004) 91

UNCHR Decision 2004/116 (20 April 2004) 93, 104

UNCHR, ‘Report of the UN High Commissioner on Human Rights on the

Responsibilities of Transnational Corporations and related Business Entities

with regards to Human Rights’ (15 February 2005) UN Doc E/CN.4/

2005/91 (High Commissioner’s report) 97–8

UNCHR Res 2005/69 (20 April 2005) 22, 98

UNCHR, ‘Interim Report of the Special Representative of the Secretary-General

on the issue of Human Rights and Transnational Corporations and other

Business Enterprises’ (2006) UN Doc E/CN.4/2006/97 (2006 Special

Representative Report) 3, 34, 72, 88, 99, 133, 205

HRC, ‘Report of the Special Representative of the Secretary-General on the issue of Human

Rights and Transnational Corporations and Other Business Enterprises: Mapping

International Standards of Responsibility and Accountability for Corporate Acts’

(2007) UN Doc A/HRC/4/35 (2007 Special Representative Report) 19, 57, 99–100

HRC, ‘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’ (2008) UN Doc A/HRC/8/35 (2008

Special Representative Report) 23, 100–1, 149, 211, 232, 266

HRC Res 8/7 (18 June 2008) 92, 101

I N T E R N AT ION A L L AW C OM M I S S ION  I L C

ILC, ‘Draft Articles on State Responsibility’ (1976) UN Doc A/31/10 43

ILC ‘Draft Articles on State Responsibility’ (1980) UN Doc A/35/10 43

ILC, ‘Summary Record of the 2019th Meeting’ (6 July 1987) UN

Doc A/CN.4/SR.2019 37

ILC, ‘Report of the 48th Session’ (1996) UN Doc A/51/10 42

ILC, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities’ (2001) UN Doc A/56/10 36, 189

ILC, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’

(2001) UN Doc A/56/10 34

ILC, ‘First Report on the Legal Regime for Allocation of Loss in case of Transboundary

Harm arising out of Hazardous Activities’ (2003) UN Doc A/CN.4/531 36–7, 40–1

ILC, ‘Draft Principles on the Allocation of Loss in the case of Transboundary Harm

arising out of Hazardous Activities’ (2006) UN Doc A/61/10 36

U N G L OB A L C OM PAC T OF F IC E

UN Global Compact Offi ce, ‘United Nations Guide to the Global Compact: A Practical

Understanding of the Vision and the Nine Principles’ (undated) <http://www.

unglobalcompact.org/irj/servlet/prt/portal/prtroot/com.sapportals.km.docs/

ungc_html_content/Public_Documents/gcguide.pdf> 87–90, 107, 114, 184,

187–8, 190, 193

UN Global Compact Offi ce, Th e Global Compact’s Next Phase (New York, 2005) 244

United Nations Global Compact Offi ce, ‘Note on Integrity Measures’

(26 November 2007) 244

U N I T E D N AT ION S C ON F E R E NC E ON T R A DE A N D

DE V E L OPM E N T  U NC TA D

UNCTAD, ‘Self Regulation of Environmental Management: Guidelines set by World

Industry Associations for their Members’ Firms’ (1996) UN

Doc UNCTAD/DTCI/29 83

UNCTAD, ‘Environment’ (2001) UN Doc UNCTAD/ITE/IIT/23 6, 7, 13, 19, 111, 182

UNCTAD, ‘Disclosure of the Impact of Corporations on Society: Current Trends

and Issues’ (2003) UN Doc TD/B/COM.2/ISAR/20 231

UNCTAD, ‘Self Regulation of Environmental Management – Guidelines set by

World Industry Associations for their Members’ Firms: an Update 1996–2003’

(2003) UN Doc UNCTAD/DITE/IPC/2003/3 83

UNCTAD, ‘Sao Paulo Consensus’ (25 July 2004) UN Doc TD/410 83

C ON V E N T ION ON BIOL O G IC A L

DI V E R S I T Y C BD

CBD COP decision III/6 (1996) in Report of the Th ird Meeting of the Conference

of the Parties to the Convention on Biological Diversity (11 February 1997)

UN Doc UNEP/CBD/COP/3/38 174

CBD COP decision IV/12 (1998) in Report of the Fourth Meeting of the Conference of the

Parties to the Convention on Biological Diversity (15 June 1998) UN Doc UNEP/CBD/

COP/4/27 174

CBD COP decision V/11 (2000) in Report of the Fifth Meeting of the Conference of the

Parties to the Convention on Biological Diversity (22 June 2000) UN Doc UNEP/CBD/

COP/5/23 174

CBD, ‘Strategic Plan’ (Decision VI/26, 2002) in Report of the Sixth Meeting of the

Conference of the Parties to the Convention on Biological Diversity (27 May 2002)

UN Doc UNEP/CBD/COP/6/20 174, 199

CBD, COP decision VI/26 in Report of the sixth meeting of the Conference of the

Parties to the Convention on Biological Diversity (27 May 2002)

UN Doc UNEP/CBD/COP/6/20 174

CBD, ‘International Guidelines for Activities related to Sustainable Development in

Vulnerable Terrestrial, Marine And Coastal Ecosystems and Habitats of Major

Importance for Biological Diversity and Protected Areas, including Fragile

Riparian and Mountain Ecosystems’ (Montreal: CBD

Secretariat, 2004) 162, 181, 184, 188, 190, 263–4

CBD, ‘Th e Addis Ababa Principles and Guidelines for the Sustainable Use

of Biodiversity’ (Montreal: CBD Secretariat, 2004) (Addis Ababa

Principles) 151, 177, 181, 184, 188, 196, 263

CBD, ‘Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental

and Social Impact Assessment regarding Developments proposed to take place,

or which are likely to impact on Sacred Sites and Lands and Waters Traditionally

Occupied or Used by Indigenous People and Local Communities’ (Montreal:

CBD Secretariat, 2004) (Akwé: Kon Guidelines) 177, 180–1, 188, 193–4, 264

CBD, ‘Report of the Technical Working Group of Experts on Liability and Redress in the

Context of the Cartagena Protocol on Biosafety’ (2004) UN Doc

UNEP/CBD/BS/TEG-L&R/1/3 42

CBD, ‘Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien

Species that Th reaten Ecosystems, Habitats or Species’ (2004) UN Doc UNEP/CBD/

COP/7/23, Annex 162

CBD, ‘Report of the Second Business and the 2010 Biodiversity Challenge Meeting’

(9 February 2005) UN Doc UNEP/CBD/COP/8/INF/11 174–5

CBD, Executive Secretary, ‘Private Sector Engagement in the Implementation

of the Convention’ (26 July 2005) UN Doc UNEP/CBD/WG-RI/1/8 174, 260

CBD, ‘Report of the Business and the 2010 Biodiversity Challenge Meeting’

(2 August 2005) UN Doc UNEP/CBD/WG-RI/1/INF/5 174–5, 177

CBD, ‘Note on Cooperation with the other Conventions, International Organizations and

Initiatives and Engagement of Stakeholders, Addendum: Engagement of Business’

(27 March 2008) UN Doc UNEP/CBD/COP/9/21/Add.1 175

CBD, ‘Voluntary Guidelines on Biodiversity-Inclusive Environmental Impact Assessment’

(2006) UN Doc UNEP/CBD/COP/8/28 175

CBD COP Decision VIII/11 ‘Private Sector Engagement’ in Report of the Eighth

Meeting of the Parties to the Convention on Biological Diversity (15 June 2006)

UN Doc UNEP/CBD/COP/8/31 175–6, 252

CBD COP Decision IX/26 ‘Promoting Business Engagement’ (2008) in Report of the Ninth

Meeting of the Parties to the Convention on Biological Diversity (20 June 2008) UN Doc

OECD, ‘Recommendation of the Council on Equal Right of Access in Relation to

Transfrontier Pollution’ (11 May 1976) C(76)55 (fi nal) 39

OECD, ‘Recommendation of the Council for the Implementation of a Regime of Equal

Right of Access and Non-Discrimination in Relation to Transfrontier Pollution’

(17 May 1977) C(77)28 (fi nal) 39

OECD, ‘Th e OECD Declaration and Decisions on International Investment and

Multinational Enterprises: Basic Texts’ (9 November 2000) OECD

Doc DAFFE/IME 74, 102

OECD, ‘Guidelines for Multinational Enterprises: Text, Comment and Clarifi cations’

(2000) 40 ILM 237 105

OECD, ‘Report by the Secretary-General: OECD Guidelines for Multinational Enterprises:

Review 2000’ (27 June 2000) OECD Doc C()/REV. 105

OECD, ‘Implementation of the OECD Guidelines for Multinational Enterprises:

Implementation Procedures’ (2000) <http://www.oecd.org/document/43/0,2340,

en_2649_34889_2074731_1_1_1_1,00.html> 230

OECD, Council Decision of the Council on the OECD Guidelines for Multinational

Enterprises (19 July 2000) OECD doc C(2000)96/FINAL 230

OECD, ‘Guidelines for Multinational Corporations’ (31 October 2001)

DAFFE/IME/WPG(2000)15/FINAL (OECD Guidelines) 102, 104–7, 109–12, 114–15,

117–18, 154, 162, 167–8, 170, 179–81,

183, 187–8, 190, 192–4, 200, 208,

224, 229–46, 267, 269, 271 OECD, ‘Guiding Principles for Chemical Accident Prevention, Preparedness and Response’

(2003) <www.oecd.org/guidingprinciples/> 111

OECD, ‘Principles of Corporate Governance’ (2004) <www.oecd.org/dataoecd/32/

18/31557724.pdf> 22

OECD ‘Multilateral Environmental Agreements and Private Investment Business

Contribution to Addressing Global Environmental Problems’ (2005) ENV/EPOC/

IFC, ‘Environmental Analysis and Review of International Finance Corporation Projects,

Procedure for Environmental Review of the International Finance Corporation.’

(8 September 1993) 147

IFC, ‘Pollution Prevention and Abatement Handbook’ (1998) 148

IFC, ‘Environmental Impact Assessment Safeguard Policy’ (OP 4.01) (October 1998)

IFC, ‘Response to the Compliance Advisor/Ombudsman Review on IFC Policy

and Performance Standards on Social and Environmental Sustainability’

(22 September 2005) 153, 213–15

IFC, ‘Policy on Social and Environmental Sustainability’ (30 April 2006) 210–11, 217

IFC, ‘Performance Standards on Social and Environmental Sustainability’

(30 April 2006) <www.ifc.org/sustainability> (IFC Performance

Standards) 148–71, 180, 182, 184, 193, 210, 264, 268

I F C C OM PL I A NC E A DV I S OR /OM BU D SM A N C AO

CAO, ‘A Review of IFC’s Safeguard Policies’ (January 2003) 144, 159, 163–4, 209, 212–15

CAO, Assessment report in relation to a complaint against IFC’s investment in ENDESA

Pangue S.A., Chile (May 2003) 221

CAO, Assessment report on the complaint regarding the Zambia Konkola Copper

Mine Project (November 2003) 219

CAO, Assessment report of the complaint regarding Allain Duhangan Hydropower

Project, India (March 2005) 220

CAO Assessment report on a complaint regarding the Lukoil Overseas Project,

Kazakhstan (April 2005) 221

CAO, Report of the independent evaluation of the Mesa de Dialogo y Consenso

CAO-Cajamarca, Peru (May 2005) 218–19

CAO, Assessment report on the complaint regarding IFC’s investment in Kalahari

Diamonds Ltd, Botswana (June 2005) 218

CAO, Assessment report of a complaint in relation to the Marlin Mining Project in

Guatemala (September 2005) 218

CAO, Audit of IFC’s and MIGA’s due diligence for two pulp mills in Uruguay

(22 February 2006) 219

CAO, Assessment report in relation to a complaint regarding the Baku-Tbilisi-Ceyhan (BTC)

Pipeline Project, Georgia (February 2006) 221

CAO, Exit report regarding two complaints fi led with the CAO in relation to Minera

Yanacocha Cajamarca, Peru (February 2006) 218–19

CAO, Follow-up assessment report on complaint regarding the Marlin Mining Project (May

2006) 217

CAO, Preliminary stakeholder assessment regarding community and civil society

concerns in relation to activities of the Wilmar Group of Companies, Indonesia

(November 2007) 218

CAO, Allain Duhangan conclusion report, India (March 2008) 221

WOR L D T R A DE ORG A N I Z AT IO N  W TO

WTO, ‘Working Group on the Relationship between Trade and Investment:

Communication from China, Cuba, India, Kenya, Pakistan and Zimbabwe –

Investors’ and Home Governments’ Obligations’ (2002) WTO

Doc WT/WGTI/W/152 30

F O OD A N D AG R IC U LT U R E ORG A N I Z AT ION OF T H E U N I T E D

N AT ION S  FAO

FAO, ‘Code of Conduct for Responsible Fisheries’ (1995) 164

FAO, ‘International Plan of Action to prevent, deter and eliminate illegal, unreported and

IDB, ‘Environment Strategy Document’ (2003) 145

IDB, ‘Environment and Safeguards Compliance Policy’ (January 2006)

ORG A N I Z AT ION  U N E S C O

UNESCO, ‘Report of the World Heritage mission – Kakadu National

Park, Australia, 26 October–1 November 1998, submitted to the

twenty-second extraordinary session of Bureau’ (1998) UN

Doc WHC-98/CONF.203/INF.18 197, 228–9

UNESCO, Decision 03EXTCOM III.3 (12 July 1999) in Report of the Th ird extraordinary

session of the World Heritage Committee: Paris, 12 July 1999 (19 November 1999)

UN Doc WHC-99/CONF.205/5Rev 229

G  8 G–8, Evian Summit Declaration, ‘Fostering Growth and Promoting a Responsible Market

Economy (2003) <http://www.g8.fr/evian/english/navigation/2003_g8_summit/summit_

documents/fostering_growth_and_promoting_a_responsible_market_economy_-_a_g8_

declaration.html> 104

I N T E R N AT ION A L S E A BE D AU T HOR I T Y International Seabed Authority, ‘Recommendations for the guidance of the contractors for

the assessment of the possible environmental impacts arising from exploration for

polymetallic nodules in the Area / issued by the Legal and Technical Commission’

(13 February 2002) UN Doc ISBA/7/LTC/1/Rev.1 192

E U ROPE A N C OM M I S S ION European Commission, Communications on the ‘Policy Coherence for Development –

Accelerating progress towards attaining the Millennium Development Goals’ (18 April 2005)

COM(2005)134 248

European Commission, Communication from on the ‘Proposal for a Joint declaration by the

Council, the European Parliament and the Commission on the European Union Development

Policy’ (13 July 2005) COM(2005)311 248

European Commission, Communications on the ‘Accelerating Progress towards Achieving the

Millennium Development Goals – Th e European Union’s Contribution’ (7 October 2005)

COM(2005)132/fi nal.2 248

European Commission, Communication on ‘Accelerating progress towards attaining the

Millennium Development Goals – Financing for Development and Aid Eff ectiveness’ (7

October 2005) COM(2005)133 248

Tribunal Civil de Bastie, 4 July 1985, n.422, reprinted and translated in Italian in (1986)

Rivista Giuridica dell’Ambiente 99 124

India

Union Carbide Corporation v Union of India, Civil Appeal Numbers 3187-88 of 1988,

order dated 14 February 1989 29, 123

USA

Aguinda v Texaco, No 93 Civ 7527 (VLB), 1994 U.S Dist

(S.D.N.Y Apr 11, 1994) 22–23) 31, 120, 126

Aguinda v Texaco, Inc., 1994 WL 142006 (S.D.N.Y 1994) 65, 127

Aguinda v Texaco, Inc., 945 F Supat 625, 627 (S.D.N.Y 1996) 127

Aguinda v Texaco, 303 F.3d 470, (SDNY 11 March 2002) 127

Amlon Metals, Inc v FMC Corp., 775 F Sup 668, 669 (S.D.N.Y 1991) 73, 125, 129

Amoco Cadiz, District Court of Chicago, 18 April 1984, in Lloyd’s

Review Report 1984, 304 121–2

Bano v Union Carbide Corat, No 99 Civ 11329 (JFK) (S.D.N.Y., March 18, 2003) 128–9

Bano v Union Carbide Corat, No 03-7416 (S.D.N.Y., March 17, 2004) 128

Beanal v Freeport-McMoRan, Inc., 969 F Supat 362 (E.D La 1997)

(No 96-1474) 128, 137, 187

Doe v Unocal, 963 F Supat 880 (C.D Cal 1997) 133

Flores v Southern Peru Copper Corp., 2002 U.S Dist (S.D.N.Y 2002) 129–32

In re Union Carbide Corp Gas Plant Disaster, 634 F Supat 842, 844 (S.D.N.Y 1986),

aff ’d, 809 F.2d 195 (2d Cir 1987) 31, 122–3

Sarei v Rio Tinto PLC., 221 F Supat 2d 1116 (C.D Cal 2001) 130

Wiwa v Royal Dutch Petroleum Co., No CIV.A.96-8386 (S.D.N.Y 1996) 120, 142

US case-related materials

Brief for Plaintiff s, Aguinda v Texaco, Inc., 1994 WL 142006 (S.D.N.Y 1994) (No 93-7527) 126

Amici Curiae Brief by Sierra Club and Earthrights International in the Beanal v Freeport

McMoran case (13 November 1998) <http://www.earthrights.org/legaldocs/beanal_v._

Amici Curiae Brief by Earthrights International in the Flores v Southern Peru Copper

Corp case (3 December 2002) <http://www.earthrights.org/legaldocs/fl ores_v._

southern_peru_copper_corporation.html> 73, 131–2

B I N T E R N AT ION A L

European Court of Justice (ECJ)

Guerra and Others v Italy, ECHR (1998), 1998-I, n 64 135

Lopez Ostra v Spain, ECHR (1994), Series A, n 303-C 135

International Court of Justice (ICJ)

ICJ, Gabcikovo-Nagymaros Project (Hungary-Slovakia), Judgment (25 September 1997) 39, 125

ICJ, Legality of the Th reat or Use of Nuclear Weapons, Advisory Opinion (8 July 1996) 185

ICJ, Pulp Mills on the River Uruguay (Argentina v Uruguay), Order (13 July 2006) 220

Reparations for Injuries Suff ered in the Service of the United Nations, ICJ, Advisory Opinion (11

April 1949) 58

Permanent Court of Arbitration

Iron Rhine Railway Arbitration (Belgium and the Netherlands), Award of the Arbitral Tribunal

(24 May 2005) 183

Inter-American Commission of Human Rights and Inter-American Court of Human Rights

Inter-American Court of Human Rights, Maya Indigenous Communities

of the Toledo District v Belize, Report 96/03, Case 12.053,

judgment (24 October 2003) 50, 139–40, 142, 226

Inter-American Court of Human Rights, Mayagna (Sumo) Indigenous Community of Awas

Tingni v Nicaragua, case 11.555 (ser C) n 79, judgment (31 August 2001) 50, 138–9

‘Report on the Situation of Human Rights in Ecuador’ Inter-American Commission

of Human Rights, (24 April 1997) OEA/ser L/V/II.96, doc10 rev1 120, 142

International Centre for Settling Investment Disputes (ICSID)

Compañía del Desarrollo de Santa Elena S.A v Republic of Costa Rica, ICSID,

Case No ARB/96/1, Final Award (17 February 2000) 53, 54

ICSID, Metalclad Corporation v United Mexican States, Case No ARB (AF)/97/1,

Award (30 August 2000) 27, 53

S D Myers Inc v Government of Canada, NAFTA Arbitration under UNCITRAL

Arbitration Rules, Partial Award (17 November 2000) 27, 53, 54

Human Rights Committee

Hopu and Bessert v France (Views under article 5, paragraph 4, of the Optional Protocol)

Human Rights Committee, Communication No 549/1993 (29 December 1997)

UN Doc CCPR/C/60/D/549/1993 135

Lubicon Lake Band v Canada, Human Rights Committee, Communication

No 167/1984 (26 March 1990) UN Doc A/45/40 140–1

African Commission on Human and Peoples’ Rights

African Commission on Human and Peoples’ Rights, ‘Th e Social and Economic Rights Action

Centre and the Centre for Economic and Social Rights/Nigeria’ (2001) Communication

155/96, Case No ACHPR/COMM/A044/1 120, 137–8, 225

PA RT I

PR E L I M I N A RY QU E S T IONS

Th e search for international standards aimed at ensuring the environmentally

sound conduct of the private sector is based upon the rising awareness at the

glo-bal level of the ever-increasing economic and political power of multinational

corporations (MNCs), which often overcome the power and wealth of States, and

the impacts of multinational and other private companies on the global

environ-ment Impacts may either be negative, such as egregious cases of environmental

damage and day-to-day adverse impacts on the environment, or positive, such

as the private sector’s proactive contribution to the attainment of internationally

agreed goals