The forces of globalization have changed the world and the human rights challenges it faces. States are no longer the exclusive or, in some cases, even the most powerful entities capable of affecting the human rights of individuals. Today, corporations have become prominent actors with the potential to transform the realities faced by communities within their spheres of influence.[1]
Several NGOs have documented corporate-related human rights abuses on the American continent, ranging from the absence of prior consultation processes with indigenous peoples and forced labor practices to the forced displacement of entire communities with grave effects on the right to a healthy environment.[2] Nevertheless, affected communities, human rights litigants, and advocates face enormous legal, economic, and political obstacles in their attempts to prevent the emergence of these problems and in their efforts to end the impunity often associated with them.
On the one hand, the legal systems and institutions of countries in the Americas have proven to be weak in preventing corporate human rights abuses and providing effective remedies to the victims. On the other hand, there are large legal vacuums in the existing international systems of responsibility that impede imposing liability in these cases.[3] Despite the long-standing efforts of civil society[4] to establish a binding international legal framework for corporate human rights abuses,[5] a plethora of disparate interests on the part of states, corporations and civil society have rendered the likelihood of consensus slim.[6]
In the meantime, thousands of individuals continue to be the subjects of egregious corporate-related human rights abuses, deprived of access to justice.[7] Hence, efforts aimed at establishing an international tribunal for corporate atrocities need to be accompanied by novel strategies to pressure existing international mechanisms, such as regional human rights bodies, to combat impunity for corporate human rights violations by using the bodies’ competencies in new and creative ways.[8] Such strategies can expand the available forums for victims to seek justice and contribute to building measures among states to prevent and address corporate human rights abuses within and outside their territories.[9] Additionally, they have the potential to put pressure on states to support the creation of a specific binding international framework capable of addressing corporate human rights violations.[10]
The Inter-American System: Untapped Potential
In the American continent, the ability of the Inter-American System of Human Rights to bring justice for victims of corporate-related human rights abuses offers a powerful opportunity. It is critical that civil society organizations, the Inter-American Commission on Human Rights (IACHR), and the Inter-American Court of Human Rights (I/A Court) explore their potential more systematically.[11]
In the past decade, the IACHR and I/A Court have been increasingly compelled to address human rights violations in which corporations have been involved to some degree. The IACHR in particular has held numerous thematic hearings on the threat of corporate activities on human rights,[12] issued thematic reports to address the issue,[13] and granted precautionary measures.[14] However, a review of the Commission’s decisions and the Court’s jurisprudence demonstrates that although these bodies have addressed cases involving human rights violations by businesses, they have rarely analyzed the role played by either the businesses or their complex interactions with the conduct of states.[15] Most importantly, they have not used these opportunities to develop specific state duties with regard to corporations acting in their jurisdiction.[16]
The recent judgment of the I/A Court in the case of the Kaliña and Lokono Peoples v. Suriname illustrates this lack of analysis. The case involved human rights violations against indigenous peoples resulting from the activities of the mining corporation, BHP Billiton-Suralco. This is the first case in which the Court “takes note” of the Guiding Principles on Business and Human Rights.[17] However, it is disconcerting that there is no evidence in the judgment of any argument brought by the parties asking the Court to further develop business and human rights principles in this case. Accordingly, the recognition on the part of the court shows the need for civil society to more forcefully advocate for a stronger commitment of the regional human rights bodies so that they might engage in the search of comprehensive approaches to cases related to corporate human rights abuses.
There are some indications that the developing political climate in the Americas will make progress in this area an achievable goal. In 2014, the General Assembly of the Organization of American States (OAS) issued a resolution on the “Promotion and Protection of Human Rights in Business.” In the resolution, the Assembly called on member states to continue promoting the application of the United Nations Guiding Principles on Business and Human Rights, urged them to “disseminate these principles as broadly as possible,” and requested “the IACHR […] to continue supporting states in the promotion and application of state and business commitments in the area of human rights and business.”[18] On January 29, 2015, the Committee on Juridical and Political Affairs of the Permanent Council of the OAS held its first special session on business and human rights.[19] For its part, the IACHR has taken concrete institutional steps to include the business and human rights issue in its agenda[20] and held the first thematic hearing explicitly on the issue of “Corporations, Human Rights and Prior Consultation in the Americas.”[21] Finally, in addition to its first recognition of the Principles mentioned above,[22] this year the I/A Court will issue an advisory opinion to clarify whether legal entities, such as businesses, are protected under the American Convention and can exhaust domestic remedies.[23]
A Way Forward
The civil society of the Americas should take advantage of this important political juncture to propose concrete alternatives to extend the protection offered to victims of corporate-related human rights abuses. There are at least two avenues worth exploring to develop specific standards around states’ obligations of respect and the guarantee of human rights.
First, the Commission and the Court should move to interpret the states’ general obligations enshrined in articles 1 and 2 of the American Convention in the light of specialized soft law standards on business and human rights.[24] There is still work to be done in defining the specific measures states should take to guarantee the full exercise of human rights in the context of corporate activities[25] and to prevent arbitrary interferences on the part of businesses in the territories and the rights of communities.[26] These measures should be defined according to specific corporate activities and the rights of each subject of protection.[27] As such, the fulfillment of state obligations must include specific duties such as i) encouraging business to respect human rights when they operate in conflict areas[28]; ii) denying assistance or access to public services to companies implicated in grave human rights violations; iii) encouraging, and if reasonable, demanding that businesses explain how they will consider the effect of their activities on human rights[29]; and iv) requiring businesses with whom the state is entering into commercial transactions with to follow strict human rights standards.[30] Once these specific obligations are developed in the Inter-American System, the attribution of international responsibility would come to depend on determining the due diligence of the state in fulfilling these standards.[31] Moreover, the Commission and the Court have the ability to pressure states to guarantee the right to provide access to justice for victims of corporate human rights abuses at the domestic level by reforming their domestic legislation, creating specific remedies for these victims, or other means.[32]
Second, it is crucial to determine the scope of the extraterritorial obligations (ETOs) of the home states of corporations. There has been progress in the international legal arena in this regard,[33] which may be used to establish the circumstances under which states could be held internationally responsible for acts of national companies committed outside their jurisdiction.[34] On a continent in which Canadian and Brazilian extractive companies have become major perpetrators of human rights abuses,[35] this is particularly important.
Finally, for these strategies to be feasible, the Inter-American System bodies have to take an active position in the ongoing debate over the ability of regional human rights protection bodies to react to matters allegedly related to states’ economic development policies. The answer to this question remains uncertain in the wake of the major political crisis within the System caused by the issuing of precautionary measures in Belo Monte Dam.[36] In this case, Brazil insisted on furthering its development agenda and refused to protect the rights of indigenous communities of the Xingu River Basin by suspending the construction of what would be the third largest dam in the world.[37] Retaliating against the precautionary measures issued by the Commission, Brazil withdrew its candidate for Commissioner to the IACHR, removed its ambassador to the OAS,[38] and threatened to withhold its annual dues to the OAS, which amount to 6 million U.S. dollars.[39] Moreover, Brazil refused to attend a working meeting at the IACHR on the case.[40]
In conclusion, the role of the Inter-American System of Human Rights in strengthening the principle that corporate activities must necessarily be accompanied by a strong commitment to the fulfillment of human rights has never been more important. Enshrining strong standards of protection against corporate human rights abuses in the Americas and establishing an international tribunal for corporate atrocities might be derided as an elusive panacea. However, these goals need not be idealistic if concrete steps are taken in the interim. To this end, it is essential that civil society continues combining innovative strategies and summoning allies, both to bring justice to the victims of corporate human rights abuses and to strengthen domestic institutions and regulations that will prevent such abuses from occurring.
* Ana María Mondragón holds an LL.M. from Harvard Law School and a law degree from the Javeriana University of Bogotá. She has worked at the Inter-American Association for Environmental Defense (AIDA), the Center for Justice and International Law (CEJIL) and the Inter-American Court of Human Rights. Ana María was a Fulbright Scholar and recipient of the Gary Bellow Public Service Award and the Henigson Human Rights Fellowship at Harvard Law School.
[1] See John Ruggie (Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises), Clarifying the concepts of “sphere of influence” and “complicity”, U.N. Doc. A/HRC/8/16, (May 15, 2008).
[2] The NGO Business and Human Rights Resource Centre has the broadest database of cases of human rights effects from corporate activities: http://business-humanrights.org/en/search-topics; see also Interamerican Association of Environmental Defense (AIDA) (human rights and the environment issues), http://www.aida-americas.org/.
[3] Corporations are not recognized as subjects of international law and cannot be held accountable for human rights violations under any of the available international legal frameworks.
[4] The concept civil society used in this article includes primarily non-governmental organizations (NGOs), communities, social movements, and academic institutions.
[5]See Movement for a Binding Treaty, http://www.treatymovement.com/.
[6] The difficulties in achieving consensus date back to the intent of approval of the Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises proposed by the UN Sub-Commission for the Promotion and Protection of Human Rights in 2003. That proposal failed “due to the resistance of the business community and of capital-exporting countries, and to a certain naïveté in transposing to corporations norms designed to be addressed to states.” Olivier De Shutter, Towards a New Treaty on Business and Human Rights, 1 Bus. and Hum. Rts. J. 41(2016), http://journals.cambridge.org/abstract_S205701981500005X; see also U. N. Subcomm. on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003). In June 2014, the United Nations Human Rights Council decided to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” See Human Rights Council, U.N. Doc. A/HRC Res. 26/9 (26 June 2014) (entitled “Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights”). For a summary of the main discussions hold in the first meeting, see Carlos Lopez & Ben Shea, Negotiating a Treaty on Business and Human Rights: A Review of the First Intergovernmental Session, 1 Bus. and Hum. Rts. 111 (2016), http://journals.cambridge.org/abstract_S2057019815000152.
[7] There is no unified data about these effects in Latin America. The amount of information brought to the IACHR is an indicator of the magnitude of the problem. However, the Observatory on Mining Conflicts in Latin America (Observatorio de Conflictos Mineros de América Latina) database provides some important information in this regard. To date, it reports 210 conflicts, 220 extractive projects implicated in these conflicts and 315 communities affected. See Map of mining conflict, projects and mining companies in Latin America, http://mapa.conflictosmineros.net/ocmal_db/.
[8] The African and European regional human rights systems have made important progress in this area. Noteworthy is the recent approval of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights to the African Court of Justice and Human and Peoples’ Rights, which allows international criminal prosecution, not only of individuals, but also of corporations. See Anita Ramasastry, & Douglass Cassel, White Paper: Options for a Treaty on Business and Human Rights, 6 Notre Dame J. of Int’l & Comp. L. 1, 35 (2015), http://scholarship.law.nd.edu/ndjicl/vol6/iss1/1.
[9] The issue of extraterritorial obligations of home states of corporations has been highly discussed in recent years. This avenue would allow holding states accountable for their failure to regulate corporate activity overseas and to guarantee effective access to justice to the victims. See Int’l Network for Econ., Social and Cultural Rts. (ESCR-Net), Global Economy, Global Rights, A practitioners’ guide for interpreting human rights obligations in the global economy (2014).
[10] If States realize that these international bodies are holding them accountable for their lack of control, supervision and regulation of corporations operating in and outside their territories, and/or for failing in assuring adequate remedies and compensation to victims of corporate abuses, they might find incentives to create a specific jurisdiction in which corporation are held directly accountable.
[11] Under the framework set up by the Inter-American System, the regional human rights bodies are not competent to declare non-state actors liable for human rights violations. However, they still have a role to play in overcoming impunity in these cases and in developing appropriate standards that are consistent with the reality faced by affected communities.
[12] In the past ten years the IACHR has held at least 40 thematic hearings on related topics. See, e.g, Forced Displacement and Development in Colombia, 153 Period of Sessions, (Oct. 27, 2014); Extractive Industries and Human Rights of the Mapuche People in Chile, 154 Period of Sessions; Corporations, Human Rights, and Prior Consultation in the Americas, 154 Period of Sessions; Reports of Destruction of the Biocultural Heritage Due to the Construction of Mega Projects of Development in Mexico, 153 Period of Sessions; Impact of Canadian Mining Activities on Human Rights In Latin America, 153 Period of Sessions; Human Rights Situation of Persons Affected by the Extractive Industries in the Americas, 144 Period of Sessions.
[13]See, e.g., Inter-Am. Comm’n H.R., Indigenous and Tribal Peoples’ Rights over their Lands and Natural Resources, OEA/Ser.L/V/II. Doc. 56/09. (Dec. 30, 2009); Inter-Am. Comm’n H.R., Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, OEA/Ser.L/V/II. Doc. 58. (Dec. 24, 2009).
[14] For example, when corporate activities affect the right to health of communities, indigenous sacred zones, or the right to prior consultation of indigenous peoples while implementing large-scale projects. See, e.g., San Mateo de Huanchor community and members, Peru, Precautionary Measures, Case 504/03, Inter-Am. Ct. H.R., Report No. 69/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 (Aug. 17, 2004); La Oroya Community, Peru, Precautionary Measures, Petition 07/270, Inter-Am. Ct. H.R., Report No. 76/09, OEA/Ser.L/V/II.130, doc. 22, rev. 1 (Aug. 31, 2007); Maya Community – El Rosario – Naranjo, Guatemala, Precautionary Measures, Inter-Am. Ct. H.R. (July 14, 2006); Maya Community Sipakepense y Mam, Guatemala, Precautionary Measures, Petition 1566/07, Inter-Am. Ct. H.R., Report No. 20/14, OEA/Ser.L/V/II.150 Doc. 24 (May 20, 2010); Xingu River Indigenous Communities, Pará, Brasil, Precautionary Measures, Inter-Am. Ct. H.R., PM 382/10 (Apr. 1, 2011).
[15] A paradigmatic example of this approach can be found in the case of the Santo Domingo Massacre in which neither the IACHR nor the Court addressed the role of Occidental Petroleum Corporation (OXY) in Colombian Air Force bombing of the hamlet of Santo Domingo in the department of Arauca, Colombia. See Santo Domingo Massacre v. Colombia, Preliminary Objections, Merits and Reparations, Inter-Am. Ct. H.R.,(ser. C) No. 259 (Nov. 30, 2012).
[16]See,e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Inter-Am. Ct. H.R., (ser. C) No. 245 ( June 27, 2012); Santo Domingo Massacre v. Colombia, Preliminary Objections, Merits and Reparations, Inter-Am. Ct. H.R.,(ser. C) No. 259 (Nov. 30, 2012); Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 309 (Nov. 25, 2015).
[17] “[T]he Court takes note of the ‘Guiding Principles on Business and Human Rights,’ endorsed by the Human Rights Council of the United Nations, which establish that businesses must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights effects directly linked to their activities. Hence, as reiterated by these principles, ‘States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.’” Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 309, ¶ 224 (Nov. 25, 2015).
[18]See Organization of American States (OAS), General Assembly Res. AG/RES. 2840 (XLIV-O/14), OAS Doc. AG/doc.5452/14 rev. 1(June 4, 2014) (entitled “Promotion and Protection of Human Rights in Business”).
[19]See Organization of American States (OAS) Permanent Council, Rep. on the Inter-American Program for the Dev. of Int’l L., OAS Doc. AG/RES. 2852 (XLIV-O/14), at 40 (2014), http://www.oas.org/en/sla/dil/docs/annual_report_2014_DIL.pdf.
[20]See Inter-Am. Comm’n H.R., Memorandum of understanding between the General Secretariat of the OAS through the Inter-Am. Comm’n H. R. and the Danish Inst. for Hum. Rts. (Mar. 16, 2015), http://www.oas.org/es/cidh/mandato/docs/IACHR-DIHR-2015.pdf.
[21]See Inter-Am. Comm’n H.R., Rep. on the 154th Session of the Inter-Am. Comm’n H.R. (2015), http://www.oas.org/en/iachr/media_center/PReleases/2015/037A.asp.
[22]SeeKaliña and Lokono Peoples v. Suriname, supra note 17.
[23]See Press Release, Inter-Am Ct. H.R., Inter-American Court Celebrates 109th Ordinary Period of Sessions (June 15, 2015), http://www.corteidh.or.cr/docs/comunicados/cp_16_15.pdf.
[24]See Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011); OECD, OECD Guidelines for Multinational Enterprises (2011), and the Voluntary Principles on Security and Human Rights (2000).
[25] For example, one of the most pressing needs is the building of applicable standards for the implementation of development projects. In these cases, the application of principles of business and human rights and international environmental law can be helpful in crafting comprehensive standards. See, e.g., the Precautionary Principle, the Prevention Principle and the Environmental Assessment Principle, Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79; Rio Declaration on Environment and Development U.N. Doc. A/CONF. 151/5 (1992); Ramsar Convention on Wetlands of International Importance, Feb. 2, 1971, 996 U.N.T.S. 245.
[26]Compare Pueblo Bello Massacre v. Colombia, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 113 (Jan. 31, 2006) with Mapiripán Massacre v. Colombia, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 111 (Sept. 15 2005); see also Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Principle 1, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).).
[27] Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 195, ¶ 298 (Jan. 28, 2009); see also Vargas-Areco v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 155, ¶ 73 (Sept.26, 2006)..
[28] Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Principle 7, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011). (including, inter alia, collaboration in the determination, prevention and mitigation of risks, alongside the assurance of the efficiency of all valid policies, legal regulations and coercive measures to prevent the implication of businesses in grave human rights violations).
[31]Compare Mapiripán Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 123 (Sept. 15, 2005). with González and others (“Campo Algodonero”) v. Mexico, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 280 (Nov. 16, 2009).
[32] Given the strong resistance at the international level to recognize human rights obligations for corporations, this is an indirect avenue that is worth exploring; see also Principle 25 of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework: “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.” Special Representative of the Secretary-General, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).
[33] ETOs related to corporate activities have been applied under the International Covenant on Economic, Social, and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR); the Convention on the Elimination of All Forms of Discrimination Against Women; the International Convention on the Elimination of Racial Discrimination; and the Convention on the Rights of the Child. See Extraterritorial Obligations (ETOs) for Hum. Rts. Beyond Borders, Maastricht Principles on Extraterritorial Obligations in the area of Economic, Social and Cultural Rights (2013); see also Int’l Network for Econ., Social and Cultural Rts. (ESCR-Net), Global Economy, Global Rights, A practitioners’ guide for interpreting human rights obligations in the global economy (2014); Gwynne Skinner, Robert McCorquodale & Olivier De Schutter, The Third Pillar, Access to Judicial Remedies for Human Rights Violations by Transnational Businesses (Dec., 2013); Ilaşcu and Others v. Moldova and Russia, 2004-VII Eur. Ct. H.R. 1030 (July 8, 2004); Soering v. the United Kingdom, 161 Eur. Ct. H.R. (ser. A) (July 7, 1989).
[34] DPLF and the Human Rights Institute and Education Centre of the Ottawa University have done an interesting work raising this issue in the Americas and particularly, within the Inter-American System. See Due Process of Law Foundation (DPLF), Business and Human Rights, 20 Aportes DPLF (Aug. 2015), http://www.dplf.org/sites/default/files/aportes_20_english_web_nov_10b_1.pdf; Human Rights Institute and Education Centre of Ottawa University, Presentation on Extraterritoriality and Responsibility of Home States in the Protection of Human Rights for the Activities of Extractive Industries in Latin America before the Inter-American Commission, https://cdp-hrc.uottawa.ca/sites/cdp-hrc.uottawa.ca/files/hrrec-_oral_presentation_iachr-_march_17_2015.pdf.
[35]See,e.g., Due Process of Law Foundation (DPLF), The impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report submitted to the Inter-American Commission on Human Rights (May 2014); Above Ground, Transnational Lawsuits in Canada against extractive companies: Developments in civil litigation, 1997-2016, http://www.aboveground.ngo/wp-content/uploads/sites/84/2016/02/Cases_Feb2016_LO.pdf.
[36]See Inter-Am. Ct. H.R., Indigenous Communities of the Xingu River Basin, Pará, Brasil, PM-382/10, (Apr. 1 2011).
[37] For more information on this case, see the work of the Interamerican Association for Environmental Defense (AIDA), http://www.aida-americas.org/our-work/human-rights/belo-monte-hydroelectric-dam.
[38]See Folha de São Paulo, Dilma retalia OEA por Belo Monte e suspende recursos, April 30, 2011, available at http://www1.folha.uol.com.br/fsp/mercado/me3004201117.htm.
[39]See O Estado de São Paulo, Brasil não paga OEA por causa de Belo Monte. (Oct. 20, 2011), http://www.estadao.com.br/noticias/impresso,brasil-nao-paga-oea-por-causa-de-belo-monte- ,787892,0.htm
[40] Brazil argued that the Inter-American Commission was interfering with its internal affairs. The Ministry of Foreign Relations on April 5, 2011 publically rejected the resolution as being “unjustifiable” and “rash.” Press Release No. 142, Ministry of Foreign Relations, Brasil considera medidas da OEA sobre Belo Monte “precipitadas e injustificáveis” (Apr. 5, 2011), http://blog.planalto.gov.br/brasil-considera-medidas-da-oea-sobre-belo-monte-precipitadas-einjustificaveis/. For more information, see Report of civil society for the Universal Periodic Review (UPR) Brazil, 2nd Cycle, 13th Session – Human Rights Violations caused by Large Hydropower., http://www.aida-americas.org/sites/default/files/refDocuments/LargeDams_UPR JointSub_Brazil_2nd_Cycle.pdf.
Irresponsible activities by corporate actors have severely affected human rights of persons worldwide. The peoples of the Americas have not been the exception. In our region, the Inter-American System has received information revealing this pressing problem mostly through the negative effects of extractive activities[1] performed by transnational corporations and the contribution of corporate actors to criminal activities.[2] This problem has been present for several years and its persistence today is notable and acknowledged by governments, corporations, and civil society alike. Seeking to reaffirm its historically relevant role in the promotion of the human rights movement, the Inter-American System has also started to address this issue through its various mechanisms.
The American region has a longstanding commitment to justice and human rights. This entrenched humanitarian identity is evident through the full institutionalization of human rights norms. The states of the Americas have contracted explicit obligations enshrined in the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man and the various treaties conforming the Inter-American corpus iuris.[3] Furthermore, they also created international institutions with the authority to interpret these instruments and act whenever a state had failed to meet its obligations: the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights. Due to this delegation, the content of these treaties now includes an extensive catalog of human rights expectations, classified according to a duty to either respect or ensure human rights.[4]
Currently, the fragmentation of international law and globalization has contributed to deconstruct many of the assumptions sustaining the institutional framework crafted in the last century.[5] Consequent to this change in international law, the Inter-American System has also evolved and adapted to stand up to the new challenges of our times.[6] The Inter-American System is aware of the need to discuss and address corporate responsibility in human rights violations. Therefore, it has sought to open forums of discussion and frame situations in such a way as to contribute to forging a solution. One of the most recent efforts in this sense was the Inter-American Commission’s call for a public hearing dealing with the extraterritorial jurisdiction of Canada over the effect of Canadian mining companies conducting extraction in Latin America.[7] Under this notable panorama of institutional willingness, the question then arises as to whether the Inter-American legal and political framework would be a useful forum to seek accountability of corporate executives.
Regarding this particular matter, it is evident that the Inter-American System would have to look at the issue mostly through the lenses of the state duty to “ensure” human rights— except when the corporation is a parastatal company or public enterprise in which case the duty to “respect” also arises—and would have to exert its authority under this approach. Following this perspective, the Inter-American Court has sought to demonstrate its awareness of the emerging problems of corporate responsibility and has addressed the problem of the extent of its jurisdiction by looking into the public or private nature of the corporate actor. According to its precedents, the Court has made clear that it has authority to adjudicate over human rights violations committed by executives of public corporations[8] or corporations assuming the provision of public services.[9] In cases where private corporations commit atrocities, the Court has reaffirmed a state’s responsibility to investigate and prosecute those responsible for criminal activities.[10]
The Inter-American Commission has maintained this approach. For instance, by granting precautionary measures to Honduran Campesino Leaders of the Bajo Aguán region, after the information provided by the petitioners suggested that the beneficiaries needed protection from a “death squadron” of private security forces hired by corporate actors acting in conjunction with public officials. In that case, the Commission reaffirmed the state obligation to ensure the life and personal integrity of the affected groups.[11] Similarly, through its thematic reports, the Commission received information suggesting that executives of Colombian public corporations played a role in designing the “Dragon Operation” aiming to eliminate syndical leaders.[12] Moreover, the Commission is also looking into two cases of human rights violations deriving from environmental impact caused by corporations in the Peruvian communities of Oroya and San Mateo de Huanchor.[13] Similarly, the Commission has recently issued an admissibility report in a case that alleges violation of indigenous people’s rights by corporate actors.[14]
Following this overall tendency, it seems highly likely that the Inter-American System will be ever more open and disposed to address claims exposing criminal responsibility of corporate executives, or liability of corporations themselves. The interpretation of the American Convention on Human Rights as a living instrument[15], along with the Inter-American openness to import universal standards[16] may present ways for victims and their representatives to formulate claims under the more recent documents codifying the responsibility of corporate actors under international law.
While the Inter-American System will not be able to establish the direct responsibility of an individual for the commission of international crimes, it could interpret the American Convention and the international obligations of states in such a way as to prevent impunity for mass atrocities or other type of human rights violations committed by corporations and its executives. By monitoring states’ compliance with their international obligations, the System could ultimately contribute to the objectives of justice. It is likely that the Inter-American System could promote both crime prevention and criminal prosecution for corporate liability.
Concerning the promotion of prosecution, both the Inter-American Commission and the Court emphasize the duty of states to investigate violations of human rights by private parties. Therefore, they could require a state to exercise its jurisdiction over particular criminal acts falling under its jurisdiction according to international law standards. Moreover, these bodies could also require domestic courts to prosecute and conduct diligent investigations against particular corporate executives suspected of being responsible for mass atrocities. In the case of transnational activities, the Inter-American System could also push states to assert their criminal jurisdiction over executives even if they reside elsewhere. The result of these recommendations or resolutions would be shifting the avenues pressing for bringing cross-border justice.[17]
Similarly, regarding crime prevention, the bodies of the Inter-American System could lead states to tighten domestic controls of corporate activities. While pushing for this preventive effect, the Inter-American system could request the respective states to regulate the activities of their companies abroad, and the domestic activities of foreign companies.[18] This characteristic becomes especially relevant in cases where both the matrix and the subsidiary offices of a transnational corporation are situated in the American region. The deterrent effect brought by more stringent regulation could also increase by promoting mechanisms in the Inter-American System itself. The press releases, public hearings and thematic reports of the Commission could assist advocating strategies seeking to produce an indirect shaming effect pressing jointly upon a particular company and a state.
Furthermore, the system would also be in a position to provide victims with considerable relief, as its integral approach to reparations includes not only compensation, but also measures of satisfaction and guarantees of no repetition.[19] Although these mechanisms would expect the state to produce the compensation, national authorities could then design domestic mechanisms to revert the costs upon corporations or its executives. Beyond this set of potential benefits, as of today the largest challenge to the Inter-American System is to develop concrete standards on the issue of corporate responsibility for human rights violations. The Inter-American jurisprudence has not had the chance to construct how states’ obligations to ensure human rights are influenced by the Guiding Principles on Business and Human Rights. This relatively recent body of principles endorsed in 2011 by the Human Rights Council could serve to advance interpretations of the American Convention that would require states to establish a legal and institutional framework assuring that corporations and corporate executives will be appropriately regulated and supervised. The Guiding Principles could, for instance, develop the responsibility of states under the American Convention and/or Declaration. This would ensure that domestic legislation require transnational companies acting within the states’ jurisdiction to meet domestically established requirements that aim to prevent executives from committing criminal activities.
In conclusion, the urgency to address this issue in the Americas is clear and evident. The Inter-American System, while remaining respectful to its mandate, is in a position to contribute to the solution in the different ways presented above. While the debate over corporate criminal responsibility evolves and further elaborates the adequacy of creating new international institutions or processes,[20] already existing institutions like the Inter-American System may still provide relief by supervising the state’s obligations. Human rights mechanisms can play an important role in triggering the international legal processes aimed at prosecuting these kinds of atrocities and in providing remedies for victims. To meet its full potential and to develop more specific standards, it is expected that civil society will continue to rely on the Inter-American System’s various mechanisms in order to address this pressing issue.
* Jesús Orozco-Henríquez is a Commissioner and former President of the Inter-American Commission on Human Rights and Titular Researcher at the Institute of Legal Research at the National Autonomous University of Mexico.
[1]See Due Process of Law Foundation, The impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report submitted to the Inter-American Commission on Human Rights (2014), http://www.dplf.org/sites/default/files/report_canadian_ mining_executive_summary.pdf.
[2] See Press Release, Chiquita Brands, Chiquita statement on agreement with U.S. Department of Justice, (Mar. 14, 2007), http://phx.corporate-ir.net/phoenix.zhtml?c=119836&p=irol-newsArticle&ID=974081& highlight.
[3] This concept includes the Inter-American Convention to Prevent and Punish Torture; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “San Salvador Protocol” the Protocol to the American Convention on Human Rights to Abolish the Death Penalty; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará”; the Inter-American Convention on Forced Disappearance of Persons; the Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities; the Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance, and the Inter-American Convention Against All Forms of Discrimination and Intolerance.
[4] According to this classification, expectations deriving from the duty to respect place the state in a direct position to act or refrain from acting in order to meet international obligation. On the other hand, expectations emanating from a duty to “ensure” place the state in the indirect position to create the general conditions that would enable persons to assert their rights before third parties. See Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988); see also Eduardo Ferrer MacGregor & Carlos M. Pelayo, La Obligación de “Respetar” y “Garantizar” los Derechos Humanos a la Luz de la Jurisprudencia de la Corte Interamericana, 10 Estudios Constitucionales, 141 (2012).
[5]See Martii Koskenniemi (Chairman of the Study Group of the Int’l Law Comm’n), Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006).
[6] The System performs this task through its various contentious, protection and promotion mechanisms. The contentious system is compose of the Case and Petitions system in charge of both the Commission and the Court. The protection mechanism is composed of the precautionary and provisional measures decreed by the Commission and the Court respectively. The promotion mechanisms under the charge of the Commission consist of the thematic and country reports, press releases and public hearings.
[7]See Hearing on the Impact of Canadian Mining Activities on Human Rights in Latin America, Inter-Am. Comm’n H.R., Rec. of the 153rd Period of Sessions (Oct. 28, 2014).
[8] As the Inter-American Court has established that a Peruvian publicly owned enterprise (SEDAPAL) incurred in violations of the rights to property of its workers through a modification of the social security regime to which they are enrolled. See Abrill Alosilla and others v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 223 (Mar 4, 2011).
[9] For instance, by establishing the responsibility of the Minchala Private Health Clinic in violating the right to personal integrity of Ms. Suarez Peralta. See Suárez Peralta v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 261, ¶ 154 (May 21, 2013).
[10] “The Court notes that it has insufficient evidence to allow it to conclude that private companies could have been implicated in the facts of this case, and that there had been negligence in investigating this supposed participation. In any case, it is for the competent domestic authorities to continue investigating whether this hypothesis is relevant to the facts of the case and, if so, to take the corresponding decisions”. Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 270, ¶ 378 (Nov. 20, 2013).
[11]See Campesino Leaders of Bajo Aguán, Honduras, Inter-Am. Comm’n H.R., Precautionary Measure No. 50/14 (2014).
[12]See Second Report on the Situation of Human Rights Defenders in the Americas, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II. doc. 66 ¶ 273 (Dec. 31 2011).
[13]See La Oroya Community v. Peru, Petition 07/270, Inter-Am. Ct. H.R., Report No. 76/09 (2009); see also Community of San Mateo de Huanchor and its Members v. Peru, Petition 03.504, Inter-Am. Ct. H.R., Report No. 69/04,(2004).
[14]See Communities of the Sipakepense and Mam Mayan People of the Municipalities of Sipacapa and San Miguel Ixtahuacán v. Guatemala, Petition 07/1566, Inter-Am. Ct. H.R., Report No. 20/14 (2014).
[15] The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct of H. R., (ser. A) No. 16, ¶ 114-15 (1999)
[16]See Gerald L. Neuman, Import, Export and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. of Int’l L., 1, 101, 109-11 (2008).
[17] For instance, while supervising compliance with its judgment in the Case of Myrna Mack Chang, the Inter-American Court has insisted that the State has the duty to end impunity and capture the responsible of the execution of Ms. Mack. By pushing for this process, the State of Guatemala has had to issue request of coordination with the office of INTERPOL in order to seek for the culprit internationally. See Myrna Mack Chang v. Guatemala, Monitoring Compliance with Judgment, Order of the President of the Court, “Resolves,” (Inter-Am. Ct. H.R. Nov. 16, 2009), http://www.corteidh.or.cr/docs/supervisiones/mack_ 16_11_09_ing.pdf
[18] For instance, the Inter-American Court has established the State duty to regulate the provision of health services by private parties, specifically referring to blood banks. See Gonzales Lluy and others v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 298, ¶ 178 (Sept. 1, 2005).
[19] On the reparations issued by the Inter-American System, see Inter-Am. Ct. H.R., Principal Guidelines for a Comprehensive Reparations Policy, OEA/Ser/L/V/II.131 Doc. 1 (Feb. 19, 2008).
[20] Such examples include the mechanisms proposed by other contributors to this Online Symposium. See Douglass Cassel & Anita Ramasastry, White Paper: Options for a Treaty on Business and Human Rights 29 (May 2015), http://businesshumanrights.org/sites/default/files/documents/whitepaperfinal%20ABA%20LS% 206%2022%2015.pdf; Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75 (Dec. 2, 2014); Claes Cronstedt, An International Arbitration Tribunal on Business and Human Rights (version 5), Business & Human Rights Resource Center (Apr. 13, 2015), http://www.l4bb.org/news/ TribunalV5B.pdf.
Prior to embracing the international community, most Asian-Pacific states have experienced hardships in the early 20th century. The Asia-Pacific region witnessed, survived, and was reborn from the ashes left by the Russo-Japanese war and the invasion of Manchuria, World War II, the Korean division and subsequent war, the Vietnam War, and Pol Pot’s regime in Cambodia, to say the least. Consequently, millions of lives were lost, and a great deal of rich cultural, philosophical, and religious achievements that were developed up until the 19th century were completely destroyed. In the 21st century, with the rapid development of international justice, the question arising is whether the atrocities of the previous centuries can be prevented through more meaningful engagement in international justice such as the creation of a regional judicial body. If such a body were to exist in the Asia-Pacific region following the examples of our brothers and sisters in Africa, Europe, and the Americas—a so-called Asian-Pacific Court of Human Rights (“APCHR”)—one may consider whether it could serve as a forum of regional justice not only for violations by states, but also non-state actors.
Since the late 20th century, many Asian-Pacific states have experienced accelerated economic development, having joined the international community. In the 21st century, greater numbers of developing Asian-Pacific states have joined in the effort to achieve such economic development. There is no doubt that Asian-Pacific states will play a great role in the economic development of the international community throughout the 21st century.
Yet the economic development of Asian-Pacific states would become truly meaningful only if it were accompanied by the development of the rule of law and a system of national human rights protection. The disease of corruption and human rights abuses emerging in the wake of economic development can only be cured through the proper application and implementation of the rule of law. Apart from these domestic efforts, Asian-Pacific states also need to actively participate in and contribute to the international effort to enhance the rule of law and human rights protection.
The International Criminal Court functions as the center of such an effort. International crimes, the most atrocious forms of all human rights violations, often demand that the international community work together to tackle the issue given the lack of capacity in any one country to address the problem on its own. As stated in Article 1 of the Rome Statute, State Parties are allowed to try crimes of such extent if it is in their capacity to do so.[1] Thus, states becoming members of the International Criminal Court not only indicate confidence in their respective judicial systems, but also demonstrate support to those developing nations who have yet to reach such a stage.
Many cases of human rights violations that do not reach the seriousness of that of an international crime, by principle, should be managed by each nation’s domestic system. In support of such efforts, however, countries have attempted to protect the human rights of their citizens through joint conventions. As a result, various European, American, and African nations were able to establish their respective human rights courts. The only region that has yet to establish such a human rights court is the Asia-Pacific. Considering its population, economic power, and dynamic political situation, there is an even greater need to institute the APCHR than ever before.
The concerns of Asian-Pacific states over possible infringements of their sovereignty vis-à-vis international justice are important, and a regional approach may be a solution that would not compromise but rather promote respect for mutual co-existence. For instance, to bring a case before the African, Inter-American or European human rights systems, all domestic remedies must have been exhausted.[2] Moreover, before adjudicating a case in the African and American systems, the case must be reviewed by a commission whose members are respectively appointed by the Organization of American States (OAS) and the African Union (AU) to decide, inter alia, whether or not cases are admissible and have sufficient merit to be taken to trial.[3] Besides ensuring that every applicable and available domestic remedy has been duly exhausted, the Inter-American and African Commissioners respectively may dismiss any case that does not concern an OAS or AU state’s breach of their obligations under the corresponding American or African human rights instruments, which must have been consented to and ratified by the state.[4] The same facts should not have been brought before any other international body of adjudication,[5] and the case must have been filed within a reasonable time after the final domestic decision.[6] The commissioners appointed by the OAS and AU members are, at the end of the day, the gatekeepers of each state’s sovereignty, which is a system that ASEAN, ASEAN Plus Three, and even the East Asia Summit could consider for a regional judicial system.
The future APCHR would, at its early stages, focus mainly on state liability, but may also consider the question of corporate accountability at the behest of its members. To this extent it is important to take note of the emerging trend of corporate accountability. As recently held by the Special Tribunal for Lebanon, “in a majority of the legal systems in the world, corporations are not immune from accountability merely because they are a legal— and not a natural—person.”[7] For the sake of academic discussion, let us briefly review the regional human rights systems’ take on corporate accountability in order to provide some ideas that the APCHR could take into account once it is settled.
When it comes to this topic, there is no doubt that the African human rights system has a progressive body of jurisprudence and statutes. In SERAC et al v. Nigeria, the African Commission on Human and Peoples’ Rights found that “[g]overnments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties.”[8] In fact, the Commission held that such an obligation was breached in the case at hand as “the Nigerian Government [gave] the green light to private actors, and the oil companies in particular, to devastatingly affect the well-being of the Ogonis.”[9]
Further, the AU has recently issued a Protocol merging the African Court on Human and Peoples’ Rights along with the Court of Justice of the AU.[10] This Court “shall have jurisdiction over legal persons”[11] for genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and aggression.[12] The amendment further explains that “[c]orporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.”[13] Similarly, “[c]orporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.”[14]
While it is not yet possible to bring cases entailing corporate liability at the Inter-American and European human rights systems, the Inter-American Commission on Human Rights has issued precautionary measures in cases where state liability is sought for human rights abuses allegedly caused by state and corporate actors in infrastructure projects.[15]
Given this state of affairs, there is no doubt that the APCHR would allow Asian jurists to contribute to the national, regional, and international pursuit of justice. For instance, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) has shown vast potential for development in the areas of the rule of law and human rights throughout the Asia-Pacific region. Through the participation of the Cambodian judiciary in the ECCC proceedings, the ECCC has enhanced the sense of involvement of the Cambodian people in the court cases. By collecting and exchanging information on capacity-needs, the ECCC has positioned itself to strengthen the Cambodian national justice system and its functioning. Furthermore, the ECCC has demonstrated a number of jurisprudential and structural innovations, being the first international court to allow victims to participate as full parties in the proceedings, and has demonstrated that victims’ full participation can be successfully balanced with the rights of other parties. The legacy of the ECCC may enable the integrated and well-balanced development of the rule of law and human rights in this region, and could be extended throughout Asia by establishing the APCHR.
In the 21st century, I hope that every Asian-Pacific country will be able to develop its own judicial system for the protection human rights, while taking an equally active role in the International Criminal Court. Those participating nations would certainly receive international recognition and acknowledgement that would boost confidence for further contribution to the international community. And finally, I hope to see greater attention devoted towards the establishment of the APCHR through the options elaborated above.
* Chang-ho Chung is a Judge of the International Criminal Court serving in the Pre-Trial Division. Prior to his appointment to the ICC, he served as a United Nations International Judge in the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh, Cambodia for three and half years. At the ECCC, he was a member of both the Rules and Procedure Committee and the Judicial Administration Committee. Prior to this, Judge Chung served six years as a high court judge, eight years as a district court judge and three years as a military judge in the Republic of Korea from 1993. From 2008 to 2009 he served as a Legal Advisor and Korean Delegate to the United Nations Commission on International Trade Law (UNCITRAL) at the Embassy of the Republic of Korea and Permanent Mission in Vienna, Austria. Judge Chung holds a B.A. in Law and an LL.M. in International Law from Seoul National University. He has also been a Research Scholar at the London School of Economics and Political Science (2001), as well as at the University of Hong Kong (2005). The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court.
[1] Rome Statute of the International Criminal Court, art. 1, U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90 (July 17, 1998) (entered into force July 1, 2002).
[2]See Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Arts. 50, 56(5), (entered into force Oct. 21, 1986) [hereinafter African Charter]; Organization of American States (OAS), Convention on Human Rights, art. 46(1)(a), Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978) (reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc. 6 rev. 1 at 25 (1992)) [hereinafter American Convention]; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 35(1), Nov. 4, 1950, 213 U.N.T.S. 222, (entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11, which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively) [hereinafterEuropean Convention].
[3]See African Charter, supra note 3, arts. 30, 55(2), 56; American Convention, supra note 3, arts. 35, 46.
[5]See African Charter, supra note 3, art. 56(7); American Convention, supra note 3, art. 46(c).
[6]See African Charter, supra note 3, art. 56(6); American Convention, supra note 3, art. 46(b).
[7] Prosecutor v. New TV S.A.L. & Karma Mohamed Tahsin al Khayat, Case No. STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, ¶ 58 (Special Tribunal for Lebanon, Appeals Panel, Oct. 2, 2014) (holding a corporation can be held liable for contempt), https://www.stl-tsl.org/en/decision-on-interlocutory-appeal-concerning-personal-jurisdiction-in-contempt-proceedings.
[8] SERAC et al v. Nigeria, African Comm’n on Human and Peoples’ Rights, Comm. No. 155/96, ¶ 57 (Oct. 27, 2001), http://www.achpr.org/communications/decision/155.96/.
[10] African Union (AU), Protocol on the Statute of the African Court of Justice and Human Rights, art. 2 (July 1, 2008), http://www.au.int/en/sites/default/files/treaties/7792-file-protocol_statute_ african_court _justice_and_human_rights.pdf.
[11] African Union (AU), Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 22, (27 June, 2014) (inserting art. 46C(1)), http://lawyersofafrica.org/wp-content/uploads/sites/84/2014/10/PROTOCOL-ON-AMENDMENTS-TO-THE-PROTOCOL-ON-THE-STATUTE-OF-THE-AFRICAN-COURT-OF-JUSTICE-AND-HUMAN-RIGHTS-EN.pdf .
The commission of gross violations of human rights and international humanitarian law (“IHL”) requires the participation of many actors, including businesses, since economic life does not cease with the start of an armed conflict. Various types of businesses play a role in armed conflict: for example, the extractive industry, private military companies, and private banks do so by allowing the flow of money and financial transfers. In cases of gross violations of international law involving corporations, it can sometimes be difficult to identify who is responsible for a particular crime. This is notably due to the complex structure of corporations and, according to a majority of scholars today, the lack of corporate legal personality in international law.
IHL applies in the context of armed conflict, during which it is considered as lex specialis.[1] Grave breaches of IHL are sanctioned by international criminal law (“ICL”), which gives rise to international crimes.[2] The idea of international crime is not new, but there is no universal definition of what exactly can amount to it[3]. Today, it is accepted that the Rome Statute, which created the International Criminal Court (“ICC”), provides definitions for crimes such as war crimes, crimes against humanity, genocide and aggression,[4] albeit limited to cases that fall within the Court’s jurisdiction.
International tribunals prosecute individuals for IHL violations, regardless of the lack of their legal personality in international law. This is founded on the belief that some crimes should be governed by international law, rather than domestic law, because of the gravity of the crime. Some argue that core crimes[5] hurt universal values respected by all actors of international community. Consequently, international justice can eliminate obstacles that are usually present in domestic courts, including prescription and immunities.[6]
In the course of contemporary international legal development, the remit of international crimes naturally extends to corporations alleged to be responsible for core crimes. Crime in itself is not limited to individuals as authors of crime. By prosecuting corporate executives for their involvement in international crimes, the Nuremberg trials[7] opened a new era, progressively erasing the traditional legal theory of societas delinquere non potest, which stated that enterprises cannot be held criminally responsible. It also opened new opportunities for international criminal justice to prosecute not only corporate executives, but also corporations, as legal entities.
International Criminal Court (ICC) and Corporate Criminal Liability as Appropriate Jurisdiction
From the very start of the negotiations to create the ICC, the issue of whether to provide for jurisdiction over legal persons was controversial because of the diverse ways that national legal systems addressed corporate criminal responsibility.[8]
In its final version, the Rome Statute excludes legal persons from its jurisdiction.[9] The inclusion of legal persons would, seemingly, be constrained primarily by the principle of complementarity. The ICC is the “last resort” jurisdiction; it can prosecute only if states were unwilling or unable to do so. But many of them do not recognize legal persons in their internal orders, which would challenge the effective implementation of the principle of complementarity.[10]
The decision to exclude legal persons was, however, far from unanimous. As underscored by Professor Andrew Clapham, though the negotiations failed to include legal persons in the Rome Statute, the discussions during negotiations reinforced the idea that there was a need for further development of corporate liability.[11] The first opportunity to do so arose when Prosecutor Luis Ocampo announced the investigation of corporations for crimes committed in the Democratic Republic of Congo.[12] But as he had no legal basis, the corporations do not appear in the indictments. It is regrettable to note, that while the Prosecution has considerable discretion over the choice of affairs to investigate, the procedures motu proprio were limited[13] and no executive directors were indicted either. Although the option to prosecute corporate executives exists within article 25 of the Rome Statute, the modification of the Statute to include corporations would provide the most opportune solution for both victims and international justice. Not only would the ICC qualify the crimes and pronounce sanctions for them, but victims already have rights that no other international criminal tribunal accorded them previously (such as participation in the procedure and obtaining reparation through the Trust Fund for Victims). Thus, any potential financial sanction of legal persons would assist in allocating potentially significant reparation amounts.
Is International Arbitration a Substitute for a Civil or Commercial Proceeding and an Appropriate Arena for International Crimes?
Many commercial contracts signed between states and corporations have an arbitration clause in which the parties agree to settle any contractual disputes in an arbitration proceeding rather than in a court of law. But when it comes to corporate core crimes, who would sign the arbitration agreement in the name of victims? Their legal representatives? The state? The same state that often proves too weak to process civil or commercial disputes?
Arbitration is a process where the parties may have unequal power and the corporation can easily impose conditions through the arbitration agreement. Many arbitration agreements signed between states and companies contain clauses of immunity from criminal prosecution. Indeed, arbitration agreements allow parties broad flexibility in designing arbitral procedures, including choice of applicable law and which acts will be prosecutable, which is why corporations favor this type of dispute settlement.
Arbitration procedures are most often private and the final awards are confidential, permitting the corporation to continue its (criminal) business with full discretion. Furthermore, it discards one of the basic criminal procedure principles as there can be no appeal of the arbitration award.
Therefore, it appears that arbitration stands in full contradiction to the ideology behind international crime and its prosecution. It is not an appropriate institution to process international crimes, and it is highly unlikely that it would provide victims with satisfaction or justice.
New tribunal: International Court for Human Rights and Humanitarian Law?
There are several regional courts with jurisdiction over human rights violations.[14] Nevertheless, not all regions have a court on human rights. Furthermore, some regions that do have them have technical, political or financial difficulties that constrain the courts in their pursuit of human rights violators. Amending their statutes and allowing the court’s jurisdiction over corporations would inevitably require more experts, research, and logistics in international business, criminal and humanitarian law.
However, one alternative might be to create a new international court with jurisdiction over human rights and international humanitarian law violations. Such a court could act as universal human rights court—which is lacking today—with both human rights (with its derogation systems) and IHL as lex specialis and its basic principles can govern ratione materiae jurisdiction (jurisdiction over core crimes). Various UN bodies already report on violations of both HR and IHL by natural persons, including non-state actors and corporations. In this new ad hoc jurisdiction, judges could identify human rights and IHL violations, and pronounce an appropriate judgment accordingly, taking a step further from the report phase. It could also provide the possibility for victims to claim compensation, while international justice could be attained. However, not many states would be willing to finance the new international tribunal.
To this day, the doctrine has not fully seized the opportunity opened by the Nuremberg trials; the main focus remains on individuals, business leaders, or states, leaving aside legal persons like corporations. Their role and implication in international crimes is significant and it should not be left in impunity. International criminal law remains the best option for the prosecution of legal persons for international crimes.
* Jelena Aparac, PhD candidate in public international law, Lecturer in international humanitarian law at University Paris Ouest Nanterre La Defense, invited lecturer at CERAH in Geneva, former Legal Advisor in international humanitarian law for Médecins Sans Frontières.
[1] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Rep. 1996, ¶ 22-428 (July 8); Juan-Carlos Abella v. Argentina, Report No. 55/97, Inter-Am. Ct. H.R. (ser. C) No. 137 ¶ 157-165 (Nov. 18, 1997); Las Palmeras v. Colombia, Judgment on Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 67 ¶ 32-34 (Feb. 4, 2000); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Rep. 2004, ¶ 105-109 (July 9).
[2] Ole Kristian Fauchald & Jo Stigen, Corporate Responsibility Before International Institutions, 40 Geo. Wash. Int’l L. Rev. 1040, 1044 (2009).
[3] It was the post-WWII courts at Nuremberg and Tokyo that established a list of international crimes for the first time, although limited to their jurisdiction. It is important to underline, that the international crimes established in these courts were different from domestic crimes known up until that time. Professor Antonio Cassese proposed several common cumulative factors to identify international crimes. See Antonio Cassese, International criminal law 11-12 (3rd ed. 2013).
[4] Rome Statute of the International Criminal Court, art. 5, July 17, 1998, 2187 U.N.T.S. 90.
[5] Core crimes are considered to be war crimes, crimes against humanity and genocide.
[6] Droit international pénal 67 (Robert Kolb et al. Eds., 2008), according to Robert Kolb, it is widely recognized today that there is not a prescription for an international crime. See also Rome Statute of the International Criminal Court, supra note 4, at arts. 27, 29.
[7] Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. VI (1950) (regarding the Flick Case); Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. VII (1950) (regarding the I.G. Farben Case); Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. IX (1950) (regarding the Krupp Case).
[8] The United Nations Committee on International criminal court has issued a report on the proposal for the future status of court 5 September 1951. Regarding the article 25 of the proposal, the Committee asked: “Should the court be competent to try individuals only, or should it also be competent to try legal entities?” United Nations Committee on International Criminal Jurisdiction, Draft Statute for an International Criminal Court, U.N. Doc. A/AC/48/4 (Sept. 5 1951); Subsequently, the Committee rejected the Australian proposal to include legal persons in the statute stating that the courts of Nuremberg and Tokyo were not ready to recognize a new principle of corporate criminal liability, U.N. G.A.O.R., 9th Sess., Suppl. No. 12, U.N. Doc. A/2645 (1954) (proposition of revised article 25). Notwithstanding the various attempts to provide the basis for the ICC, the project actually began in earnest in 1992 with the request by the General Assembly of the Commission to develop the proposal for the future status of court; G.A. Res. 47/33 (Nov. 24, 1992); G.A. Res. 48/31 (Dec. 9, 1993). See also Andrew Clapham, The Questions of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in Liability of Multinational Corporations Under International Law 171 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000).
[9] For detailed comment of this article, see Kai Ambos, Article 25, Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court 743-770 (Otto Triffterer, ed., 2008). For the historical process of Rome statute negotiations regarding the legal persons, see William Schabas, International criminal law and the business world, in La Responsabilité des Entreprises Multinationales en Matière de Droit de l’Homme (Emmanuel Decaux, ed., 2010). See also Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2 (Feb. 4, 1998); Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1 (Apr. 14, 1998), U.N. Doc. A/CONF.183/2/Add.1/Corr.1 (May 26, 1998); Draft Rules of Procedure Revision for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.2/Rev.1, at art. 23 (Apr. 15, 1998).
[10] Albin Eser, Individual Criminal Responsibility in The Rome Statute of the International Criminal Court: A Commentary 767, 778-79 (Antonio Cassese et al. eds., 2002); Harmen van der Wilt, Corporate Responsibility for International Crimes: Exploring the Possibilities, 12 Chinese J. of Int’l L. 43, 45 (2013).
[12] Press release, Office of the ICC Prosecutor, Communications Received by the Office of the Prosecutor of the ICC, 009-2003 (Jul. 16 2003).
[13]See Situation in the Republic of Kenya, ICC-01/09-19-Corr, Pre-Trial Chamber II Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Mar. 31, 2010).
[14] European Court for Human Rights, Inter-American Court for Human Rights, African Court for Human Rights, The Arab Human Rights Committee’s experts.
Can corporate perpetration of genocide, crimes against humanity, and war crimes (atrocity crimes) be investigated and prosecuted before the International Criminal Court (ICC)? The answer is conditionally affirmative with respect to corporate officers responsible for their company’s criminal conduct. However, investigation and prosecution of corporations themselves as juridical persons would require complex amendments to the Rome Statute of the ICC.
Corporate officers are already subject to investigation and prosecution by the ICC because the Rome Statute confers personal jurisdiction only over natural persons, particularly if he or she is a national of a “State Party” to the Rome Statute. One corporate executive, Joshua Arap Sang,[1]—former head of operations and well-known radio personality of Kass FM in Nairobi, Kenya—recently faced prosecution at the ICC as an indirect co-perpetrator of three counts of crimes against humanity. He was charged with using coded messages in his radio broadcasts to commit murder, forcible transfer, and persecution. His prosecution was in connection with the larger situation being investigated in Kenya for the period between June 1, 2005 and November 26, 2009 and, in particular, the post-election violence of 2007-2008. However, the Trial Chamber vacated the charges against Sang on April 5, 2016.[2] Two judges, with a third dissenting, found that the Prosecutor had presented insufficient evidence, with one judge explaining that witness interference and political meddling were reasonably likely to intimidate witnesses.[3]
The ICC will entertain individual criminal responsibility[4] or superior responsibility[5] for corporate officers when their actions are part of an overall situation of atrocity crimes that either has been referred[6] to the Prosecutor by a State Party or the Security Council, or the Prosecutor has initiated an investigation,[7] approved by the Pre-Trial Chamber, of essentially a situation of atrocity crimes. This means that the isolated commission of, or complicity by, a corporation in genocide, crimes against humanity, war crimes, or even aggression[8] (once amendments relating to the crime of aggression are procedurally ratified and activated by a sufficient number of States Parties) will only subject corporate officers to ICC scrutiny if the alleged illegal conduct is part of a situation of atrocity crimes that has fallen under the jurisdiction of the Court by virtue of a proper referral or investigation. As of early 2016, this would entail corporate activity in one or more of the situations[9] currently under either official investigation by the Court (Democratic Republic of the Congo, Uganda, Central African Republic (two situations), Darfur (Sudan), Kenya, Libya, Côte d’Ivoire, Mali, and Georgia) or, for purposes of determining whether an investigation can be launched under the Prosecutor’s proprio motu powers, preliminary examinations[10] by the Prosecutor of Afghanistan, Burundi, Colombia, Nigeria, Guinea, Iraq, Ukraine, and Palestine. Therefore, corporate officers need not fear ICC jurisdiction while conducting most global corporate activities unless such actions fall within the narrow parameters of a relatively small number of situations of atrocity crimes being officially investigated by the ICC at the time.
However, atrocity crimes arising as a consequence of corporate operations or complicity in government commission of atrocity crimes to facilitate corporate investments might trigger the jurisdiction of the ICC. Tough requirements of personal, territorial, temporal, and subject-matter jurisdiction requirements must still be met, particularly in the context of individual corporate officers who could be investigated and prosecuted, and the situation must also meet the gravity[11] threshold required to qualify for the ICC’s attention.
It is certainly possible that in the future, a single atrocity crime of relatively limited magnitude, perhaps caused by corporate criminal conduct, may be a situation that merits ICC investigation. The Pre-Trial Chamber’s decision of 16 July 2015[12] found factors militating in favor of sufficient gravity in the Israeli Defense Forces’ singular attack on the Mavi Marmara (a Comoros-registered vessel) bound for the Gaza Strip on 31 May 2010, and thus requested the ICC Prosecutor to reconsider her Decision Not to Investigate.[13]
The Article 98(2)[14] non-surrender agreements negotiated and concluded by the United States with over 100 governments prior to 2009,[15] exclusively by the George W. Bush Administration, seek to protect any U.S. national from surrender to the ICC for the purposes of standing trial; facially, these agreements would seem to include corporate officers of U.S. citizenship.[16] As the chief U.S. negotiator of the Rome Statute, I was deeply involved in the negotiation and drafting of Article 98(2), a provision that was originally intended to preserve the rights accorded under status of forces agreements.[17] In their current formulation, the agreements negotiated by the George W. Bush Administration overreach the original intent[18] of Article 98(2), which is that these bilateral agreements would protect only government personnel such as military, diplomatic, and government-employed humanitarian employees, of the “sending State.”[19] The term “sending State” is well understood in treaty law to exclude private actors. In negotiating that provision of the Rome Statute, neither U.S. nor other negotiators had any intent to insulate private corporate officials.
If a government argues that it cannot surrender a corporate executive of U.S. citizenship who is in its custody and has been charged by the ICC because such government must comply with its Article 98(2) obligations with the United States, the ICC judges could sever the wording of the Article 98(2) agreements that purports to exclude a “national” of strictly private character from the government’s obligation to surrender such individual under the Rome Statute. Alternatively, the judges could nullify the entire agreement for the purpose of Article 98(2) protection before the ICC. The obligation to surrender would arise where the government detaining a corporate officer subject to an ICC arrest warrant is either a state party with treaty obligations to cooperate or a non-party state directed to cooperate pursuant to a Security Council referral of a situation to the Prosecutor.
If it were better understood as a risk in corporate circles, the potential exposure of corporate officers to ICC jurisdiction could significantly influence the conduct of multinational corporations in situations of atrocity crimes under investigation by the Prosecutor. But that exercise needs to begin in university instruction and graduate business schools where the future leaders of multinational corporations are educated and trained.
The larger question, though, looms: why not authorize the ICC to pursue criminal charges directly against corporations as juridical persons? This option was considered and rejected during the U.N. talks leading to the Rome Statute in July 1998.[20] I have written extensively in other publications[21] and amicus curiae briefs[22] about the reasons for the exclusion of criminal liability for juridical persons from the Rome Statute.[23] In brief, as the court was originally designed to hold natural persons accountable for atrocity crimes, there was too little time to fully consider the proposal. Also, at that time, there were an insufficient number of national jurisdictions that held corporations liable under criminal law, as opposed to civil tort liability, which has long been universal. The principle of complementarity under the Rome Statute,[24] a principle dependent on compatible criminal law in state party jurisdictions, would have been crippled as a consequence. Finally, the proposal would have imperiled the ratification of the treaty by many governments given the novelty of corporate exposure to criminal liability before the ICC.
Today, the global landscape regarding corporate criminal liability in national jurisdictions has changed,[25] including in many of the States Parties to the Rome Statute. Theoretically, the exercise of complementarity, while still problematic in some jurisdictions, will become more plausible in the event the Rome Statute is amended to embrace corporate liability and a significant number of States Parties transform their own national criminal codes to cover juridical persons in the commission of, or complicity in, atrocity crimes.
Obtaining approval for amendments to the Rome Statute that would extend the ICC’s jurisdiction over juridical persons would be extremely difficult to achieve diplomatically. Nations with economies that are fueled by multinational corporations, either as home states or host states, would likely oppose efforts to expose these companies to criminal liability before the ICC. The potential economic cost of a finding of corporate criminal liability, or even the possibility of an ICC investigation in the future, could have devastating impacts on a nation’s economy.
Nonetheless, there is value in contemplating the possible phrasing of an amendment to the Rome Statute intended to extend the Court’s personal jurisdiction over juridical persons. Article 25(1)[26] could be amended to read: “The Court shall have jurisdiction over natural and juridical persons pursuant to this Statute” (new wording in italics). For good measure, the second sentence of Article 1[27] could be amended to read: “It shall be a permanent institution and shall have the power to exercise its jurisdiction over natural and juridical persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. Any use of ‘person’ or ‘persons’ or the ‘accused’ in this Statute shall mean a natural or juridical person unless the text connotes an exclusive usage.” (new wording in italics)
Beyond those two amendments, careful consideration would have to be made to distinguish, if necessary, between natural and juridical persons for purposes of production of evidence, the exercise of due process rights, proper physical presence of the defendant (which natural person would appear on behalf of the corporation) in relevant proceedings, state cooperation requirements unique to corporations, and discerning which penalties are available and enforceable against corporations in the event of a guilty judgment. Any group of amendments covering juridical persons in the Rome Statute would require approval by two-thirds of the States Parties pursuant to Article 121(3)[28] and, if that hurdle is passed, then such amendments would have to be ratified or accepted by seven-eighths of the States Parties in order to come into force pursuant to Article 121(4).[29]
It might be possible to avoid these stringent amendment requirements by negotiating a protocol to the Rome Statute that would permit States Parties that ratify or accept it to “opt in” to coverage of juridical persons. However, such a protocol may be very difficult to negotiate as it would still have to transform the Rome Statute radically to cover juridical persons only for those States Parties ratifying or accepting the protocol. The protocol itself would have to largely mirror the complex amendments required for a comprehensive overhaul of the Rome Statute described above, and may still need to be initially adopted by two-thirds of the States Parties pursuant to Article 121(3).
Corporate accountability for atrocity crimes may be more pragmatically accomplished through 1) the investigation of corporate officers under existing Rome Statute powers where the ICC is exercising jurisdiction over a relevant situation, and 2) the further development of national criminal codes covering corporate commission of, or complicity in, atrocity crimes. Governments that have modernized their criminal codes to include corporate accountability for atrocity crimes may one day find it useful to create a treaty-based multilateral tribunal on atrocity crimes with clear jurisdiction to adjudicate criminal complaints, and perhaps also civil claims, against juridical persons. If they choose to rebuild the ICC as the international forum in which to adjudicate such corporate crimes, then the tribunal carpentry required to indict corporations may prove quite daunting to master.
* David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law at Northwestern Prizker School of Law. He was the U.S. Ambassador at Large for War Crimes Issues (1997-2001) and led the U.S. delegation in the United Nations talks creating the International Criminal Court.
[1] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), https://www.icc-cpi.int/iccdocs/doc/doc1314535.pdf.
[2] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Public redacted version of Decision on Defence Applications for Judgments of Acquittal (Apr. 5, 2016), https://www.icc-cpi.int/en_menus/icc/situations and cases/situations/situation icc 0109/related cases/icc01090111/court records/chambers/tcVa/Pages/2027.aspx.
[3] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Dissenting Opinion of Judge Herrera Carbuccia (Apr. 5, 2016), https://www.icc-cpi.int/en_menus/icc/situations and cases/situations/situation icc 0109/related cases/icc01090111/court records/chambers/tcVa/Pages/2027.aspx.
[4] Rome Statute of the International Criminal Court, art. 25, July 17, 1998, 2187 U.N.T.S. 90.
[11] International Criminal Court, Policy Paper on Case Selection and Prioritisation, (Feb. 29, 2016), https://www.icc-cpi.int/iccdocs/otp/29.02.16_Draft_Policy-Paper-on-Case-Selection-and-Prioritisation_ENG.pdf#search=gravity requirements.
[12] Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation (Jul. 16, 2015), https://www.icc-cpi.int/iccdocs/doc/doc2015869.pdf.
[13] Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-6-AnxA, Article 53(1) Report (Nov. 6, 2014), http://www.legal-tools.org/uploads/sites/15/ tx_ltpdb/doc1913979_05.pdf.
[14] Rome Statute of the International Criminal Court, supra note 4, at art. 98(1).
[15] Bilateral Immunity Agreement Campaign, American Non-Governmental Organizations Coalition for the International Criminal Court, http://www.amicc.org/usicc/biacampaign.
[16] The 2002 non-surrender agreement between the United States and Afghanistan has typical language reading, “For purposes of this agreement, ‘persons’ are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.” See Beth Van Schaack & Ronald C. Slye, International Criminal Law and Its Enforcement: Cases and Materials, 171 (3rd ed. 2015).
[17] International Security Advisory Board, Final Report of the International Security Advisory Board (ISAB) on Status of Force Agreements (2015).
[18] David Scheffer, Article 98(2) of the Rome Statute: America’s Original Intent 344-50 (2005).
[20] Per Saland, International Criminal Law Principles, in The International Criminal Court: The Making of the Rome Statute 189, 100 (Roy Lee ed., 1999).
[21] David Scheffer & Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency of Corporate Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, 29 Berkley J. of Int’l L. 334 (2011).
[22] Supplemental Brief of Ambassador David J. Scheffer, Northwestern University School of Law, as Amicus Curiae in Support of the Petitioners, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491).
[23] David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 203 (2012).
[24] William Schabas, International Criminal Court 190-199 (4th ed. 2011).
[25] Supplemental Brief of Ambassador David J. Scheffer, supra note 22, at 13-26.
[26] Rome Statute of the International Criminal Court, supra note 4, at art. 25(1).
Where Can Victims of Corporate Human Rights Atrocities Turn for Justice?
On the night of 2 December 1984, toxic gas leaked from a pesticide plant in the Indian city of Bhopal, killing between seven and ten thousand people within three days of the leak. It was the biggest industrial disaster in modern history. The plant was owned by U.S.-based chemical giant Union Carbide Corporation (UCC). On paper, the Bhopal victims had at least two options to pursue justice: the Indian courts (the courts of the state in which the atrocities were committed, commonly referred to as the “host state”), and the U.S. courts (the courts of the state in which UCC is incorporated, commonly referred to as the “home state”). The Bhopal victims pursued both. However, decades of litigation in both countries only led to further frustration and anger with very little in effective corporate accountability and reparations. UCC, though charged with “culpable homicide” in India immediately after the disaster, has for almost three decades failed to appear before the Indian criminal court to face charges. It remains today a proclaimed “absconder from justice” in the country.[1]
The case of Bhopal is representative of hundreds of cases across the globe where neither the host nor home state is able to provide victims of corporate human rights atrocities an adequate avenue to obtain legal redress. There often is an abyss between what the law says on paper and what is possible in reality. When multinational companies are involved in serious abuses of human rights, for a number of reasons, they often get away scot-free. In practice, it is as though they operate above the law.
Ideally, justice and reparation should be achieved in the host state. Local courts and judicial systems should be able to hold corporate perpetrators accountable and provide effective remedy to the victims. However, this is often not the case. While efforts must continue to improve host state response to corporate abuses, options for seeking justice must be found in the next most obvious place: the home state of the multinational corporation involved.
Over the last few years, Amnesty International has increased its advocacy efforts to prompt home states to do much more to ensure corporate accountability for human rights abuses.[2] The prospect of effective sanctions and an adverse legal finding in the home state can provide companies at the headquarter level with the incentive to put measures in place to ensure that no human rights abuses occur in the context of their global operations.
Justice in Home States
Home states need to reform their laws and policies to ensure that corporate perpetrators of human rights abuses domiciled or headquartered within their territory are held criminally and/or civilly accountable, regardless of where the abuses took place.
Under international human rights law, the home states of multinational companies are obliged to act to prevent abuses by corporate actors, including abuses that occur outside their territory, when they have the legal and practical capacity to do so.[3]
Amnesty International believes that two sets of legal reforms are both needed and possible. First, home states should place parent or controlling companies of multinational corporations domiciled or headquartered in their countries under an express legal duty of care towards individuals and communities whose human rights are affected by their global operations.[4]
In France, efforts are underway to pass legislation that would impose on certain large companies a “duty of vigilance.” In 2010 the UK imposed on companies incorporated or carrying out business in the country a “duty to prevent” foreign bribery.[5] Whether a “duty of care,” a “duty of vigilance,” a “duty to prevent,” or a similar construction is the most fitting response will depend on the particular national legal system. What matters is that the notion that companies in control of subsidiaries or other entities with whom they do business are legally responsible for the harm these entities cause if they knew or should have known of the likelihood of this harm is firmly entrenched in law. The routes to get there may vary.
These laws could provide the legal basis for home states to take action (for example, to investigate) in cases of alleged breaches; and lead to sanctions if breaches are found. Crucially, they could provide foreign victims with a direct cause of action against parent or controlling companies in their home states, before their home state courts, leading to an obligation to provide reparations if liability is established. However, to be effective, these reforms would have to be accompanied by other measures to facilitate access to justice such as financial assistance to resource-trapped claimants.[6]
Second, home states should scale up their response to criminal activity, including when this occurs abroad, by enforcing existing criminal laws or creating new ones to hold companies under their jurisdiction liable for criminal acts that either are, or lead to, human rights abuses. This should be done in a way that is proportionate to the severity of the crime committed and the human rights impact.
Adequate responses to criminal activity might require home states to investigate and prosecute cases through the effective enforcement of existing laws. Where these laws do not exist, home states may need to adopt new laws or reform existing laws to criminalize certain unacceptable corporate conduct, to ensure criminal laws apply to crimes committed abroad or to provide for corporate criminal liability, whatever the legal gap may be.
As radical as these reforms may sound, home states already have many of these measures in place in areas such as human trafficking, sexual abuse of children, corruption and transnational organized crime. For example, national and international efforts to tackle corruption and to expose its negative impacts on society have increased over recent years. Today, there is greater acknowledgement by governments of the scale and trans-national nature of the problem. Bribing a foreign official to obtain a business advantage is now a crime in a large number of states.[7]
Corporate impunity for serious abuses to human rights is an issue of increasing international concern, particularly in cross-border cases. There is no reason why the international momentum and commitment to take action to tackle corruption cannot be emulated to combat corporate involvement in human rights atrocities.
Justice in host states
A focus on home states is in addition, and not as a replacement to, host state justice. Efforts to strengthen the functioning and effectiveness of host state courts and other accountability mechanisms should not be abandoned. On the contrary, efforts to improve justice both in host and home states should go hand in hand so that victims of corporate human rights abuses have more options for obtaining justice.
In recent years, there have been a number of powerful and promising developments. For example, on 14 February 2011, an Ecuadorian judge found multinational oil company Chevron guilty of severe environmental contamination of the land where it operated in Ecuador for over thirty years. The company was ordered to pay $8.6 billion in damages and cleanup costs, with the damages increasing to $18 billion if Chevron did not issue a public apology. Ecuador’s Supreme Court later halved damages to $9.51 billion. This decision followed over two decades of litigation against the company, including a class action lawsuit in the U.S. which was dismissed on forum non conveniens grounds.[8]
The claimants are now trying to have the judgment enforced in various national jurisdictions where Chevron has assets, and this is bringing a whole new array of legal and political hurdles. Ideally, it should not take over a decade of litigation to reach a court decision. However, the fact that the claimants managed to obtain a final court judgment in a case of this nature, establishing Chevron’s liability and ordering payment of substantial damages is a victory in itself.
In another development, on 25 November 2015, Argentina passed a law creating a Truth Commission[9] to investigate, identify and report on the economic actors who contributed to and/or benefited from the country’s military dictatorship of 1976-1983. The creation of this Commission follows years of concern, allegations, investigations and some judicial decisions over the way in which several business actors, both national and foreign, collaborated with and benefited from the human rights violations of the military regime.
The Commission is not meant to replace the courts but to supplement and contribute to judicial efforts. It will have ample powers to receive complaints and request information and evidence, including from all parts and levels of government, companies and other private actors. Its mandate includes a number of innovative features, which should help fulfill critical aspects of the right to remedy, such as the ability to order reparations and seek full knowledge of the truth and guarantees of non-repetition. It is an unprecedented initiative that could serve as a model for efforts in other parts of the world to unmask and combat corporate complicity with abusive governments. The next big battle now that the law has been approved will be forged on the ground and determined by the Commission’s ability to fulfill its mandate and deliver on its stated goals in practice.
Both these examples demonstrate that local responses are possible, even against foreign corporate giants. This type of effort must be encouraged, respected and supported, including by the home states of the foreign corporations involved. Despite some encouraging developments, many obstacles still prevent effective justice and accountability in a large number of cases of human rights abuses involving multinational companies in the developing world. While efforts to improve local judicial and other mechanisms to hold corporate perpetrators of human rights abuses to account must continue, the spotlight must also be placed on home state responses.
Should forums of international justice be made available?
Forums of international justice should be available and a number of options have been put forward by some experts, including the idea of an international court of civil justice. A crucial question in relation to such a court would be about its ability to respond adequately to a potentially large and increasing number of claims. If, to address this challenge, the remit of the court was narrowly defined and provisions were made for only a few types of case to qualify, adequate solutions would still need to be offered to the other cases that did not meet the criteria.
Whatever the nature and scope of a supranational body, its creation seems a long way away. In the meantime, efforts must be intensified to move home states to take action to prevent corporate atrocities, to hold corporate perpetrators of these atrocities to account and to provide adequate reparations to the victims.
* Gabriela Quijano is the legal adviser on business and human rights at the International Secretariat of Amnesty International. Since 2009, she has led the organization’s work on access to remedies for business-related human rights abuses. She has also done research, legal analysis and advocacy on corporate legal accountability and access to effective remedy for corporate human rights abuses. Gabriela is the lead author of Amnesty International’s book Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, published in March 2014. She also holds a Masters degree on the Theory and Practice of Human Rights from the Human Rights Centre of Essex University. Gabriela practiced civil, commercial and corporate law in Buenos Aires prior to moving to the UK.
[1] For a detailed description of this case, see Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, 33-64, POL 30/001/2014 (Mar. 7, 2014), https://www.amnesty.org /en/documents/pol30/001/2014/en; see also Amnesty Internationall, India: “30 Years is Too Long to Get Justice,” ASA 20/035/2014 (Nov. 30, 2014), https://www.amnesty.org/ en/documents/asa20/ 035/2014/en/.
[2]See, e.g., Amnesty Int’l, Too Toxic to Touch? The UK’s Response to Amnesty International’s Call for a Criminal Investigation into Trafigura Ltd, EUR 45/2101/2015 (July 23, 2015), https://www.amnesty.org/ en/documents/eur45/2101/ 2015/en/; Amnesty Int’l, Côte d’Ivoire: The Toxic Truth: About a Company Called Trafigura, a Ship Called the Probo Koala, and the Dumping of Toxic Waste in Côte d’Ivoire, AFR 31/002/2012 ( 25, 2012), https://www.amnesty.org/en/ documents/afr31/002/2012/en/; Amnesty Int’l, United Kingdom: Briefing to the UN Committee on the Elimination of Racial Discrimination, EUR 45/008/2011 (Aug. 2011), http://www2.ohchr.org/english/bodies/cerd/docs/ngos/AI_UK_ CERD79.pdf.
[3] For an explanation of the legal basis for this, see Amnesty Int’l, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, supra note 2, at 21-26.
[4] This recommendation is explained in more detail in Amnesty Int’l, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, supra note 2, at 143.
[5] 2010 UK Bribery Act, Bribery Act, 2010, c. 23 (U.K.).
[6] This and many other measures to alleviate barriers to justice in home state courts are addressed in the recently adopted Council of Europe Recommendation of the Committee of Ministers to member States on human rights and business, Council of Europe, Recommendation of the Committee of Ministers to member States on human rights and business, at 31-43, CM/Rec(2016)3 (Mar. 2016), https://wcd.coe.int/ViewDoc.jsp?p= &Ref=CM/Rec%282016%293&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true.
[7] For example, forty-one states have passed anti-bribery legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. See Organization for Economic Co-operation and Development, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: Ratification Status as of 21 May 2014, http://www.oecd.org/daf/anti-bribery/ WGBRatificationStatus.pdf (last visited February 2016).
[8]See Business & Human Rights Resource Centre, Texaco/Chevron lawsuits (re Ecuador), http://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador.
[9] The “Bicameral Commission for the Truth, Memory, Justice, Reparation and Strengthening of Democratic Institutions.”
