Corporate Accountability in International Law: a “State Shaming” Exercise

Author:Adeline Michoud
Corporate Accountability in International
Law: a “state shaming” Exercise
Adeline Michoud1*
When the United Nations system was
founded, States were the dominant power
and the main actors at the international
stage. They were thus the only bearers of
obligations in international law as they
were perceived as the only ones capable of
infringing international norms.
Globalization has seen the emergence of new
actors and corporations have gradually
exercised some functions similar to that of
states.
This change leads us to reconsider the
allocation of responsibilities in international
law. The growing recognition of the
potential impact of corporations upon
human rights has spurred the development
1* Adeline Michoud defended her PhD in Law in 2019 at the
University of Geneva with the magna cum laude distinction. She
has followed her studies in different European universities and
has obtained a LL.B in English law (King’s College London), a
Masters in French Law (Paris I Panthéon Sorbonne), a Bachelor
and Master’s degree in Swiss law (University of Geneva) and a
LL.M in International Law (Graduate Institute, Geneva).
Corporate accountability in international law: a “state shaming”
exercise 191
of a number of regulatory initiatives in the
last decades. The initiatives adopted have
mostly taken the shape of soft law initiatives
that do not impose direct binding
obligations on corporations, as these
initiatives rather focus on States’
obligations. Even at the regional level,
States tend to be the only duty-bearers, even
in cases involving corporations’ activities.
In this Article, the author discusses about
the allocation of responsibilities in
international law and criticizes the
reluctance of international instruments to
address the issue of corporate
accountability, by only targeting States as
the main wrongdoers and duty-bearers. The
author also undertakes a comparative
analysis of regional human rights systems
and their rulings relating to corporate
responsibility.
Introduction
In the last decades, a series of tragic events have revealed to
the public abusive business practices used by several
192 SLJ 7 (1)
transnational corporations (TNCs) having delocalized their
production abroad.2 Recent examples of irresponsible
corporate conduct in their supply chains include hazardous
working conditions in the textile industry in Bangladesh
(November 2012),3 the widespread use of forced labour in the
fishing industry in Thailand (June 2014)4 and the
environmental pollution and devastation of livelihoods
caused by a dam collapse in Brazil (November 2015).5 Human
2 We can notably quote the Bougainville conflict in Papua New
Guinea. For a more detailed analysis of the events surrounding
the mining and the civil war, see Kristian Lasslett, ‘State Crime
by Proxy: Australia and the Bougainville Conflict’ (2012) 52
BRIT J CRIMINOL 705; Anthony J. Regan, ‘Causes and Course
of the Bougainville Conflict’ (1998) 33 J PAC HIST 269; Herb
Thompson, ‘The economic causes and consequences of the
Bougainville crisis’ (1991) 17 RESOUR POLICY 69; and Ronald
James May, ‘Papua New Guinea’s Bougainville Crisis’(1999) 3
The Pacific Review 174.
3 See notably: Jason Burke and Saad Hammadi, ‘Bangladesh
textile factory fire leaves more than 100 dead’, The Guardian
(2012) at
textile-factory-fire>.
4 See for example: Kate Hodal, Chris Kelly and Felicity Lawrence
‘Revealed: Asian slave labour producing prawns for
supermarkets in US, UK’, The Guardian (2014) at
development/2014/jun/10/supermarket-prawns-thailand-
produced-slave-labour >.
5 See notably: Zoe Sullivan, ‘Brazil's Doce River still foul eight
months after dam collapse’, DW (2016) at
months-after-dam-collapse/a-19375872>; and Dom Phillips
Corporate accountability in international law: a “state shaming”
exercise 193
rights violations committed by TNCs are in fact
commonplace in developing countries.6
With globalization, TNCs have become important players in
the international arena,7 which benefits from transfers of
‘Samarco dam collapse: one year on from Brazil's worst
environmental disaster’, The Guardian (2016) at
samarco-dam-collapse-brazil-worst-environmental-disaster-bhp-
billiton-vale- mining> . See more generally Grégory Jackson and
Julia Bartosch, ‘Corporate Responsibility in Different Varieties of
Capitalism: Exploring the Role of National Institutions’, Freie
UniversitätBerlin,2016availableat:
stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikatione
n/Studie_BS_Corporate-Responsibility-in-Different-Varieties-of-
Capitalism-Exploring-the-Role-of-National-
Institutions_2016.pdf>.
6 Human Rights Council, Corporations and human rights: a
survey of the scope and patterns of alleged corporate-related
human rights abuse, A/HRC/8/5/Add.2 4, 23 May 2008.
7 Joel Paul, ‘Holding Multinational Corporations Responsible
Under International Law’(2001) 24 Hastings Int'l & Comp. L.
Rev. 285, 286; Alison Shinsato, ‘Increasing the Accountability of
Transnational Corporations for Environmental Harms: The
Petroleum Industry in Nigeria’ (2005), 4 Northwestern Journal of
International Human Rights 186, 188; Scott Pegg, ‘An Emerging
Market for the New Millennium: Transnational Corporations
and Human Rights’, in Jedrzeg Frynas and Scott Pegg (eds),
Transnational Corporations and Human Rights (Palgrave
Macmillan, 2003).
194 SLJ 7 (1)
capitals between countries through the removal of trade
barriers and the lowering of transactional costs. The
economic wealth is sometimes equal or even superior to
some countries.8 Indeed, it was estimated by an NGO in 2015
that among the 100 biggest economic entities of the world, 69
were corporations.9 Thus, corporations are increasing in
power, leading to a new public order. This new public order
justifies a shift in the repartition of rights and obligations.10
For the last decades, the growth of transnational corporations
has been paralleled by concerns to find ways to regulate
business activities, as their cross-national structures represent
new challenges for the traditional territorial regulation of
States.
Under international human rights law, the State is supposed
to be the sole duty-bearer to ensure the respect of human
rights. Yet, instruments such as the Universal Declaration on
8 Philip Blumberg, ‘Accountability of multinational corporations:
the barriers presented by concepts of the corporate juridical
entity’ (2001) 24 Hastings Int'l & Comp. L. Rev. 297.
9 See: ‘10 biggest corporations make more money than most
countries in the world combined’ Global Justice (2016) at
corporations-make-more-money-most-countries-world-
combined>.
10 Mirela Hristova, ‘The Alien Tort Statute: A Vehicle for
Implementing the United Nations Guiding Principles for
Business and Human Rights and Promoting Corporate Social
Responsibility’ (2012-2013) 47 U.S.F.L. Rev. 89; Heike Fabig,
‘The Body Shop and the Ogoni’, in Michael Addo (ed), Human
Rights Standards And The Responsibility Of Transnational
Corporations (Kluwer Law International, 1999) 309.
Corporate accountability in international law: a “state shaming”
exercise 195
Human Rights (UDHR) (which mentions the responsibility of
‘every organ of society’11) or the UN Covenant on Civil and
Political Rights (ICCPR) (which provides that no ‘group or
person’ shall be able to ‘engage in any activity (…) aimed at
the destruction of any of the rights and freedoms recognized
herein’12) tend to indicate a certain propensity to the
regulation of private actors as well.
When the United Nations system was founded, States were
the dominant power. They were deemed to be the only
bearers of obligations in international law as they were
perceived as the only ones capable of infringing international
norms.13 Globalization has seen the emergence of new
actors14 and corporations have gradually exercised some
functions similar to that of states.15 Indeed, corporations
exercise substantial influence over individuals, as they can
for example determine their working conditions or have an
11 Universal Declaration of Human Rights, U.N. Doc A/810
(1948).
12 International Covenant on Civil and Political Rights, U.N. Doc.
A/6316 (1966).
13 Chris Jochnick, ‘Confronting the Impunity of Non-State
Actors: New Fields for the Promotion of Human Rights’ (1999),
21 HUM RIGHTS Q. 56, 59.
14 Steven Ratner, ‘Corporations and Human Rights: A Theory
of Legal Responsibility’ (2001-2002) 111 YALE L.J. 442, 468.
15 See Louise Amoore, ‘Making the Modern Multinational’ in
Christopher May (ed), Global Corporate Power, (Lynne Rienner
Publisher, 2006), 62.
196 SLJ 7 (1)
impact on the pollution of the environment they live in.16
This new power leads to a necessity to better allocate
responsibilities and hold corporations accountable. Given the
serious detrimental impacts that TNCs’ operations can create,
some multilateral treaties already impose direct obligations
on companies, such as the Paris Convention on the Third
Party Liability in the Field of Nuclear Energy,17 the
International Convention on Civil Liability for Oil Pollution
Damage,18 and the European Council Convention on Civil
Liability for Damage Resulting from Activities Dangerous to
the Environment.19 These treaties all place responsibilities on
businesses.20 The growing recognition of the potential impact
of corporations on human rights has spurred the
development of a number of regulatory initiatives in the last
decades. The initiatives adopted have mostly taken the shape
of soft law initiatives that do not impose directly binding
obligations on corporations, but rather focus on states. Even
16 Steven Ratner, ‘Corporations and Human Rights: A Theory of
Legal Responsibility’ (2001-2002) 111 YALE L.J. 442, 462.
17 See Art. 6 of the Convention Third Party Liability in the Field
of Nuclear Energy of 29th July 1960, as amended by the
Additional Protocol of 28th January 1964 and by the Protocol of
16th November 1982.
18 See Arts. 3-4 of the International Convention on Civil Liability
for Oil Pollution Damage, 1992.
19 See Art. 6 of the Convention on Civil Liability for Damage
Resulting from Activities Dangerous for the Environment, 1993.
20 Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal, the
International Convention on Civil Liability for Oil Pollution
Damage (CLC) and the International Convention for the
Prevention of Pollution from Ships (MARPOL).
Corporate accountability in international law: a “state shaming”
exercise 197
at the regional level, States tend to be the only duty-bearers,
even in cases involving corporations’ activities. However, the
imposition of hard law obligations on corporations is
progressively discussed on the international stage. Indeed,
following a proposal made by Ecuador and South Africa
before the Human Rights Council in September 2013, the
Human Rights Council adopted a resolution on the
establishment of an Intergovernmental Working Group ‘to
elaborate an international legally binding instrument’, aiming
notably to ensure access to justice and redress to victims of
corporate abuse.21 Discussions are currently held at the
United Nations to find an agreement on the elaboration of
this treaty. This new instrument represents the hope for a
new era that would finally establish and recognise corporate
accountability in international law. Throughout this Article,
we shall hence discuss the allocation of responsibilities in
international law and criticise this evident reluctance to
address the issue of corporate direct accountability, as
international instruments mostly target States as the main
wrongdoers and duty-bearers. As we shall argue, soft law
instruments should pave the way to build consensus to set
the ground for the effective regulation of corporate actors.
Yet, as we shall illustrate with the analysis of regional human
rights systems, States remain the main duty-bearers before
21 Resolution A/HRC/26/9, United Nations, General Assembly,
Human Rights Council, 26th session, July 14 2014, Elaboration of
an International Legally Binding Instrument on Transnational
Corporations and other Business Enterprises with respect to
Human Rights.
198 SLJ 7 (1)
international jurisdiction, which allows evading the question
of corporations’ liability.
II. The repetitive adoption of international soft law
instruments relating to corporate accountability
International organisations have started to realise the
importance of the problem relating to corporate
accountability quite early on. In fact, a first effort to regulate
international business practice had been started in 1948 with
the inclusion of investment and social responsibility
provisions in the Havana Charter for an International Trade
Organization. However, the Charter was never adopted.22
A second attempt was then made in 1974 by the United
Nations Centre on Transnational Corporations (UNCTC)23
with the negotiation of a Code of Conduct on Transnational
Corporations. Indeed, in the 1970s, several scholars had
started warning that transnational corporations (TNCs) were
acquiring a certain importance on national economies.24 The
main concern was that TNCs operated beyond the reach of
22 The Charter was adopted in the final act of the United Nations
Conference on Trade and Employment held at Havana, Cuba,
from 21 November 1947 to 24 March 1948.
23 The Centre was established in 1974 and abolished in 1992.
24 See generally on the topic: Jean-Jacques Servan-Schreiber, Le
Défi Américain (Denoël, 1967); Kari Levitt, Silent Surrender: The
Multinational Corporation in Canada, (Canada Macmillan,
1970).
Corporate accountability in international law: a “state shaming”
exercise 199
states’ national sovereignty. Therefore, in November 1974,
the UN General Assembly mandated the UNCTC to
elaborate a normative framework for TNCs. The long-term
objective was the adoption of an international treaty to
monitor TNCs, which would require extended discussion.25
For 20 years, the United Nations Commission on
Transnational Corporations negotiated for the adoption of a
United Nations (UN) Draft Code of Conduct of Transnational
Corporations26 but no agreement could be found between
developing and developed countries to decide whether the
rules of conduct should be ‘detailed and mandatory’ or
more ‘general and voluntary’.27 The UN Draft Code raised so
much controversy that it was finally abandoned since the
idea of imposing direct obligations on companies met strong
opposition.28 As a result, only soft law instruments have been
25 United Nations, The Impact of Multinational Corporations on
Development and on International Relations, (United Nations
Press, 1974) 54.
26 Commission on Transnational Corporations, Proposed Text of
the Draft Code of Conduct on Transnational Corporations,
United Nations Centre on Transnational Corporations,
Transnational Corporations, Services and the Uruguay Round
Current Studies, Annex IV, UN Doc ST/CTC/103 (1990).
27 Sean Murphy, 'Taking Multinational Corporate Codes of
Conduct to the Next Level' (2005) 43:22 Columbia Journal of
Transnational Law 389, 404.
28 David Kinley, Justine Nolan and Nathalie Zerial, 'The p
olitics of c orporate s ocial r esponsibility: Reflections on
the United Nations Human Rights Norms for Corporations'
(2007) 25 Companies and Securities Law Journal 30, 35.
200 SLJ 7 (1)
adopted to this day at the international level to regulate
corporate activities in the field of human rights. In this first
section, we shall study the different ‘soft law’ instruments
that have been adopted at the international level relating to
business and human rights.
II A) The ILO Tripartite Declaration of Principles concerning
Multinational Enterprises and Social Policy
The International Labour Organisation (ILO) is a specialized
United Nations agency in charge of the drafting of
international labour standards as well as of their enforcement
by Member States. The ILO is one of the first international
organizations that has started measuring the importance of
the question of corporate social responsibility. Indeed, in the
1960s, it started drafting the Tripartite Declaration of
Principles concerning multinational enterprises and social
policy. The declaration was drawn up to define and regulate
the conduct of multinationals with their host countries.29 The
declaration was intended as a set of guidelines to help TNCs,
governments, and workers’ organizations in their activities
and their interactions.30 These guidelines are based on
principles contained in international labour conventions and
29 International Labour Organization, “Tripartite Declaration of
Principles concerning Multinational Enterprises and Social
Policy (MNE Declaration) - 5th Edition (2017)”
--
en/index.htm>.
30 Christine Kaufmann, Globalisation and Labour Rights: The
Conflict between Core Labour Rights and International
Economic Law, (Hart Publishing, 2007) 166
Corporate accountability in international law: a “state shaming”
exercise 201
recommendations and cover a broad range of areas such as
conditions of work and life. The original declaration was
amended three times and last revised in 2017 to better adapt
it to the role of TNCs in today’s globalization.31
The declaration is meant to ‘guide governments, employers’
and workers’ organisations of home and host countries and
multinational enterprises in taking measures and actions and
adopting social measures (…) to further social progress and
decent work’.32 The declaration also allows governments and
unions to conduct surveys to gather information from TNCs
in order to draw conclusions on policies and suggest possible
changes.33 In 2016, the Declaration has notably led to the
conclusion of an agreement with the construction sector in
the Arab states (in the context of the preparation of the 2020
World Expo in Dubai and the 2022 Football World Cup in
Qatar in which many migrant workers from Asia and Africa
31 International Labour Organisation, The Labour Principles of
the United Nations Global Compact A Guide for Business,
labour_principles_a_guide_for_business.pdf>.
32 Updated version of the Tripartite Declaration of Principles
concerning Multinational Enterprises and Social Policy (March
2017), para. 4.
33 Aishwarya Padmanabhan, 'Human Rights and Corporations:
An Evaluation of the Accountability and Responsibility of
MNCs under the ILO framework' (2011) 42 Journal of Corporate
Citizenship 8, 10.
202 SLJ 7 (1)
are involved).34 However, the declaration has only moral
authority.35 In case of breach, a complaint cannot be filed
against a State for not complying with the objectives of the
declaration.36 Therefore, one of the main triggers for change
and compliance under the Tripartite Declaration lies with the
public pressure.37
II B) The OECD Guidelines
The Organisation for Economic Co-operation and
Development (OECD) is an intergovernmental economic
organisation founded in 1960 to foster economic progress and
34 See International Labour Organisation, Engagement with the
construction sector in the Arab States,
--en/index.htm>.
35 See ILO Report, The ILO MNE Declaration : What’s in it for
Workers?, ---
ed_dialogue/--actrav/documents/publication/wcms_627351.pdf >
36 The complaint procedure under the ILO Constitution is
restricted to non-compliance with a ratified ILO Convention by
a Member State. See articles 26 to 34 of the ILO Constitution:
LIST_ENTRIE_ID:2453907:NO#A26>.
37 For more information, see : Ian Marshall Sander, Qatar,
Migrants Laborers and the ILO, Michigan Journal of
International Law, Vol. 39, available at :
ilo/> ; Beryl Ph. Ter Haar, The FIFA 2022 World Cup and Labour
Rights Seizing the Moment for Labour Law Reforms in Qatar,
Kutafin University Law Review, Vol.4 (1), 2017, available at :
018_04_Kutafin_University_Law_Review.pdf?sequence=1>.
Corporate accountability in international law: a “state shaming”
exercise 203
compare policy experiences among its 35 member countries.
The OECD started considering the question of business and
human rights in the 1970s by issuing guidelines (known as
the OECD Guidelines), a set-up of recommendations
addressed by governments to transnational corporations.
These Guidelines contain recommendations on human rights,
employment, industrial relations and environment among
others. They apply to all corporations which have a parent
company or operate in any of the signatory states, even if the
enterprises also operate in non-signatory states. National
Contact Points (NCPs) were created with the adoption of the
Guidelines. They are responsible for promoting observance
of the Guidelines in the national context and for ensuring that
the Guidelines are known and understood by enterprises.38
Governments that have adhered to the Guidelines are obliged
to set up National Contact Points which can be either a
government department or independent structures
comprising government officials, trade unions, employers’
unions, and sometimes non-governmental organizations.
NCPs can report regularly to the OECD Investment
Committee, which can then issue clarifications on how the
Guidelines should apply and be interpreted.39
38 OECD, General Policies I.1, OECD Guidelines for
Multinational Enterprises.
39 Pia Acconci, 'The Promotion of Responsible Business Conduct
and the New Text of the OECD Guidelines for Multinational
Enterprises' (2001) 2 Journal of World Investment 123, 140 141.
204 SLJ 7 (1)
The NCPs include a ‘specific instance’ procedure in charge of
handling complaints against companies operating within
their national jurisdiction and suspected of having failed to
comply with the Guidelines’ standards.40 This instance
oversees the resolution of disputes, through mediation and
conciliation. The dispute resolution procedure can be used by
anyone who can prove an interest in the alleged violation.41
However, the effectiveness of this mechanism has been
debated and some civil society actors have criticized NCP
procedures as uneven and often ineffective.42 Indeed, if no
conciliation is reached, the NCP does not offer any other
recourse to the victims.43
Although this ‘specific instance’ claim review mechanism
does not have the power to impose sanctions, the NCP can
publish information on non-compliance. This provides
some force to the Guidelines, as this information can notably
40 The Implementation Procedure of the OECD Guidelines for
Multinational Enterprises is included in Part II of the OECD
Guidelines, Section II.
41 Canosa Abogados, Argentina: The OECD Guidelines for
Multinational Companies and the Specific Instance, 5 August
2019, available at :
Law/833310/The-OECD-Guidelines-For-Multinational-
Companies-And-The-Specific-Instance>.
42 OECD Watch, Calling for Corporate Accountability
>.
43 Barnali Choudhury, 'Beyond the Alien Tort Claims Act:
Alternative Approaches to Attributing Liability to Corporations
for Extraterritorial Abuses' (2005) 26 Northwestern Journal of
International Law and Business 43, 54.
Corporate accountability in international law: a “state shaming”
exercise 205
be used in civil or criminal litigation.44 Thus, this can put
pressure on TNCs since they might fear the related negative
impact on their reputation towards the public. Nevertheless,
the efficiency of such a system is still criticized. The non-
binding nature of the Guidelines has been criticized as a
‘gentlemen’s agreement’45 without a real bite. Indeed,
according to the Guidelines, TNCs do not assume legal
liability for non-compliance.
Another critique relates to the fact that complaints are
considered by the NCPs are usually established within
governmental institutions which promote international trade
and investment46 rather than human rights47. This might
44 Antony Crockett, HUMAN RIGHTS COMPLAINTS
AGAINST MULTINATIONALS INCREASING (29 October
2015)
thinking/human-rights-complaints-against-multinationals-
increasing>.
45 Corporate Watch, OECD’s Crocodile Tears, (2000), at
>.
46 For example, the German NCP is part of the Federal Ministry
of Economics and Technology entrusted with the promotion of
foreign trade and investment. The Italian NCP is within the
Ministry of Economic Development, and the Korean NCP is
located in the Ministry of Commerce, Industry and Energy.
47 According to a report produced by Rights and Accountability
in Development (RAID) and the Centre for Research on
Multinational Corporations (SOMO), NCPs generally favour
business and even seem to be “designed to discourage
complaints” by responding too slowly and interpreting the
Guidelines in a restrictive manner. See OECD Watch, Review
206 SLJ 7 (1)
indicate a sign of bias or ineptitude of these authorities.
Therefore, the OECD Guidelines show some limitations in
being able to foster a real compliance with human rights
standards by corporations.
II C) The UN Global Compact
The UN Global Compact,48 which was launched in 2000,
consists of a ‘practical framework for the development,
implementation, and disclosure of sustainability policies and
practices’.49 It is a policy initiative addressed to public sector
bodies, corporations, NGOs, and labour organisations in
order for them to sign up to a set of ten universally accepted
principles in the areas of human rights, labour, environment
and anti-corruption, derived from various international legal
instruments. The ten principles of the Global Compact are
issued from four of the most widely ratified international
legal instruments, namely: The Universal Declaration of
Human Rights; the International Labour Organisation’s
Declaration on Fundamental Principles and Rights at Work;
the Rio Declaration on Environment and Development; and
the United Nations Convention Against Corruption.
of National Contact Points for the OECD Guidelines for the
Period of June 2003 June 2004,
content/uploads/sites/8/2004/06/2004.pdf>.
48United Nations, Global Compact,
.
49 The United Nations Global Compact, Global Compact Cities
Programme,
responsibility/un-global-compact >.
Corporate accountability in international law: a “state shaming”
exercise 207
Thus, the UN Global Compact breaks with the traditional
modes of standard-setting generally used by the UN.50 It is
the largest voluntary corporate social responsibility initiative
in the world, as it groups 12 000 signatories, among which 9
000 corporations and more than 4 000 non-business.51
Therefore, this initiative was described as a fundamental shift
by the previous UN Secretary-General Kofi Annan: ‘The
United Nations once dealt only with governments. By now
we know that peace and prosperity cannot be achieved
without partnerships involving governments, international
organizations, the business community and civil society’.52
Once an enterprise has signed onto the Global Compact, it
commits to apply the Global Compact principles by including
them in its business practice53 in a complete and long-term
50 For contrasting views on the merits of the Global Compact, see
David Coleman, 'The United Nations and transnational
corporations: From an inter-nation to a “beyond state” model of
engagement' (2003) 17 Global Society 339, 339; Betty King, 'The
UN Global Compact: Responsibility for Human Rights, Labor
Relations, and the Environment in Developing Nations' (2001)
34:3 Cornell International Law Journal 481, 482.
51 UN Global Compact, Our Participants,
is-gc/participants>.
52 United Nations, United Power of Markets with authority of
Universal Values, Secretary-General Urges at World Economic
Forum, Press Release, SG/SM/6448, January 30 1998.
53 UN Global Compact, 'After the Signature- A Guide to
Engagement in the Global Compact' (UN Nations Press, 2008)
11,
http://www.unglobalcompact.org/docs/news_events/8.1/after_th
e_signature.pdf> Verlag, 2010) 164.
208 SLJ 7 (1)
manner.54 The company is also required to conduct risk-
assessments of its activities and to issue strategies to tackle
these risks.55 Therefore, under the Global Compact system,
businesses are expected to ‘support and respect the
protection of internationally proclaimed human rights’.56
On the other hand, we shall note that the terms used to
describe the responsibilities of corporations are quite elusive.
In fact, it is not completely clear what behaviour is expected
from participating businesses. The Global Compact is
criticised for its lack of enforcement mechanisms.57 A too-
54 UN Global Compact, ‘After the Signature- A Guide to
Engagement in the Global Compact’ (UN Nations Press, 2008)
11,
http://www.unglobalcompact.org/docs/news_events/8.1/after_th
e_signature.pdf>.
55 Deloitte, UN Global Compact Management Model,
Framework for Implementation, Human Rights, Labour
Environment, Anti-Corruption 12,
_archives/2010_06_17/UN_Global_Compact_Management_Mod
el.pdf>
56 UN Global Compact, Principles 1 and 2.
57 Justine Nolan, 'The United Nations’ Compact With Business:
Hindering or Helping the Protection of Human Rights?' (2005)
24:2 University of Queensland Law Journal 445, 460; Surya
Deva, 'Global Compact: A Critique of the U.N.’s Public-Private
Partnership For Promoting Corporate Citizenship', (2006) 34:1
Syracuse Journal of International Law and Commerce 107,150;
Evaristus Oshionebo, 'The UN Global Compact and
Accountability Transnational Corporations: Separating Myth
from Realities' (2007) 19 Florida Journal of International Law 1,
2325.
Corporate accountability in international law: a “state shaming”
exercise 209
wide margin of appreciation is left to businesses regarding
the interpretation and application of the Compact’s
principles.58 Thus, it is even affirmed that the Global
Compact hinder development ‘by disguising profit-making
aspirations under a veil of social conscience’.59 Others invoke
the fact that the Global Compact represents a perfect
opportunity for corporations to green wash their image,
using the image of a UN flag to indicate to the public that
they are respectful of UN principles, while breaching at the
same time human rights that they are supposed to comply
with. This results in allowing them to benefit from a good
reputation despite their non-compliance with the initiative.60
One of the weaknesses of the Global Compact is the fact that
it does not provide any compliance or control mechanism
through which victims of adverse impacts caused by TNC’s
activities can obtain redress. In fact, corporations can decide
by themselves how to implement the Global Compact
Agenda. The Global Compact mostly relies on the idea that
good practices should be rewarded by being publicised on
58 Justine Nolan, 'The United Nations’ Compact with Business:
Hindering or Helping the Protection of Human Rights?' (2005)
24:2 University of Queensland Law Journal 445, 460
59 Jean-Philippe Thérien and Vincent Pouliot, 'The Global
Compact: Shifting the Politics of International Development?'
(2006) 12:1 Global Governance: A Review of Multilateralism and
International Organizations 55, 67.
60 David Bigge, 'Bring on the Bluewash: a social constructivist
argument against using Nike v. Kasky to attack the UN Global
Compact' (2004) 14(1) International Legal Perspectives 6, 12.
210 SLJ 7 (1)
the official website of the initiative. Therefore, just like the
OECD Guidelines or the ILO Tripartite Declaration, the
Global Compact fails to create binding obligations for
corporations. It has even been underlined that many
corporate members of the Global Compact have been
criticized for violations of the compact’s principles.61
Under the Global Compact system, a written complaint can
be submitted by any individual, organisation or state to the
Global Compact Office, which will require the relevant
company to provide written comments and keep it informed
of action undertaken to address the situation brought to its
attention. The Office will not assess the situation but simply
provide guidance and assistance to the company to remedy
the situation. The Office can also refer the matter to the
relevant UN specialized entity for advice, assistance or
action, but it cannot take enforcing measures against the
corporation to make it comply with the protected principles.
To tackle this criticism of inefficiency, a Communication on
Progress (COP) mechanism was introduced in 2005 to create
a public reporting requirement. A communication must thus
be sent annually by signatories to communicate on their
application of the Global Compact’s principles. The COP
61 Andrew Clapham, Human Rights Obligations of Non-State
Actors (Oxford University Press, 2006) 225; Surya Deva,
'Treating Human Rights Lightly: A Critique of the Consensus
Rhetoric and the Language Employed by the Guiding Principles’
in Surya Deva and David Bilchitz (eds), Human Rights
Obligations of Businesses: Beyond the Corporate Responsibility
to Respect? (Cambridge University Press, 2013) 92.
Corporate accountability in international law: a “state shaming”
exercise 211
must be published on the UN Global Compact website and
shared with the company’s stakeholders. Failure to submit an
annual COP results in a change in the participant’s status
from ‘Active’ to ‘Non-Communicating’. Participants who do
not communicate progress for two years in a row are then
delisted. In November 2015, 2,063 companies were ranked
under the ‘Delisted’ status on the Global Compact website62,
which shows that a substantial number of companies do not
take proper care to communicate on their efforts to comply
with the Global Compact’s principles.
Another measure taken in 2005 introduced strict rules on the
use of UN and Global Compact logos. Moreover, a new
complaint mechanism was set up: Section 4 of the 2005 Public
Sector Integrity Measures63 introduced a dialogue process to
settle ‘credible allegations of (…) abuse of the Global
Compact’s (…) principles by a participating organization’.
The purpose of the dialogue is to ‘assist participants in
aligning their actions with the commitments they have
undertaken with regards to the Global Compact principles’.
Yet, these initiatives are insufficient to cure the initial failure
of the UN Guiding Principles relating to the lack of efficient
62 Alice De Jonge and Roman Tomasic, Research Handbook on
Transnational Corporations (Elgar, 2017) 25.
63 See OECD, Public Sector Integrity: A Framework for
Assessment,
http://www.oecd.org/gov/ethics/publicsectorintegrityaframewor
kforassessment.htm>.
212 SLJ 7 (1)
sanctions.64 Fostering dialogue does not constitute a strong
enough measure to answer the critiques raised by several
relevant actors, who perceive the instrument as a
greenwashing tool for companies.65 Surely aware of the
shortcomings of the UN Global Compact, the UN tried to
conduct other initiatives in order to impact business practices
more deeply.
II D) The UN Guiding Principles
The 2011 UN Guiding Principles on Business and Human
Rights (UNGPs, also referred to as the Ruggie’s Principles, by
the name of the Harvard Professor in charge of their drafting)
represent one of the most recent soft law attempts at
regulating corporations in international public law. The
UNGPs have gathered an unprecedented consensus among
states, corporations and human rights defenders.66 The UN
64 Mari a Alej andra Gonzal ez-Pe rez an d Liam Leona rd, The
UN G lobal Compac t in A lice d e Jong e, Re search Handb ook
on T ransna tional Compa nies, (Edwar d Eld gars, 2017) 117-
138.
65 See Gustavo Capdevila, UN: Global Compact with Business
‘Lacks Teeth’ – NGOs, 2007, available at :
lacks-teeth-ngos>.
66 See for example European Commission, Commission Staff
Working Document on Implementing the UN Guiding
Principles on Business and Human Rights State of Play, SWD,
44 final, (July 14 2015) ; Robert Blitt, 'Beyond Ruggie’s Guiding
Principles on Business and Human Rights: Charting an
Embracive Approach to Corporate Human Rights Compliance'
(2012) 48 Texas International Law Journal 33, 52; Jan Wouters
Corporate accountability in international law: a “state shaming”
exercise 213
Guiding Principles aim to clarify the implications of relevant
international human rights provisions for both states and
businesses.67 Similarly to the UN Global Compact, the
Principles do not create new obligations but explain how
existing human rights principles should be enforced by states
and corporate actors. The UNGPs rest on a three pillars
framework, often summarised as the ‘Protect, Respect and
Remedy’ formula:
i) States have a duty to protect against human rights abuses
through their legislation and their policies to ensure an
effective enforcement (Principles 1 to 10);
ii) Enterprises have a responsibility to respect human rights:
they must avoid breaching human rights and must address
harms that they have caused (Principles 11 to 24);
iii) When individuals are victims of human rights breaches
caused by business activities, they should be able to seek
redress. States and corporations both share a responsibility to
and Anna-Louise Chané, 'Multinational Corporations in
International Law, in Non-State Actors in International Law' in
Math Noortmann, August Reinisch and Cedric Ryngaert (eds),
Non-State Actors in International Law (Bloomsbury, 2015) 241
242.
67 OHCHR, Frequently Asked Questions About the Guiding
Principles on Business and Human Rights, (United Nations
Publication, 2014).
214 SLJ 7 (1)
provide such an access to effective remedy.68 This pillar
encompasses both judicial and non-judicial mechanisms69
(Principles 25 to 31).
The first pillar corresponds to the traditional understanding
of human rights obligations of states. The first pillar confirms
that States are still the primary actors in securing compliance
with human rights. The UN Guiding Principles emphasise
that States have a critical role to play and can use a ‘smart
mix of measures national and international, mandatory and
voluntary- to foster business respect by for human rights.’70
68 Surya Deva claims that the right to a remedy is encompassed
in human rights themselves. Therefore, he claims that
businesses’ responsibility to respect human rights comprises the
right for victims to obtain redress, as the three pillars of the
UNGPs should be seen as a whole. See Surya Deva, Access to
Effective Remedy: Taking Human Rights and Rights Holders
Seriously, Cambridge Core Blog, (November 2017)
to-
effective-remedy-taking-human-rights-and-rights-holders-
seriously> .
69 UN Human Rights Council, Report of the Special
Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business
enterprises, John Ruggie: Guiding Principles on Business and
Human Rights: Implementing the UN “Protect Respect and
Remedy” Framework, 21 March 2011, Principle II A 11,
ges/reports.aspx>.
70 Guiding Principles on Business and Human Rights:
Implementing the United Nations « Protect, Respect and
Remedy » Framework, UN Doc. A/HRC/17/31, 21 March 2011,
Principle 3.
Corporate accountability in international law: a “state shaming”
exercise 215
The key role of States rather than corporations is confirmed
by the terminology used for the second pillar, which refers to
the ‘responsibility’ of corporations. The use of the term
‘responsibility’ rather than ‘duty’ implies that respecting
human rights is not an obligation which is imposed on
companies.
Nevertheless, companies do have a role to play in the
implementation of Pillar 3, as they can establish ‘non-state-
based grievance mechanisms (Principles 28, 29 and 30).
According to the Commentary on the UN Guiding Principles,
remedies can be:
apologies, restitution, rehabilitation, financial or non-
financial compensation and punitive sanctions (whether
criminal or administrative, such as fines), as well as the
prevention of harm through, for example, injunctions or
guarantees of non-repetition.71
The Ruggie principles insist much more on the issue of
remedies in comparison to the UN Global Compact. States
have a responsibility to provide both judicial and non-judicial
remedies, while businesses have a responsibility to provide
non-judicial remedies for violations in which they are
involved.72 For the remedies to be effective, the UNGPs insist
71 ibid, Principle 25.
72 Report of the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and
other business enterprises, UN Doc. A/HRC/8/5, 7 April 2008, 22.
216 SLJ 7 (1)
on the fact that the ‘remedy should be impartial, protected
from corruption and free from political or other attempts to
influence the outcome.’73
On the other hand, the UNGPs are also the object of many
critiques.74 The lack of a monitoring and enforcement
mechanism to provide efficient compliance creates problems
which the recurring theme with the previous initiatives
mentioned above. The NGO Amnesty International notably
explained: ‘The draft guiding principles enjoy broad support
from business, precisely because they require little
meaningful business. The fundamental challenge was how to
address these problems. His draft guiding principles fail to
meet this challenge’.75 Moreover, social expectations
formulated in soft law instruments do not have a clear
73 ibid, 22.
74 See Robert Blitt, 'Beyond Ruggie’s Guiding Principles on
Business and Human Rights: Charting an Embracive Approach
to Corporate Human Rights Compliance' (2013) 48:1 Texas
International Law Journal 33, 5254; Carlos López, 'The 'Ruggie
Process': From Legal Obligations to Corporate Social
Responsibility?', in Surya Deva and David Bilchitz (eds), Human
Rights Obligations of Business: Beyond the Corporate
Responsibility to Respect? (Cambridge University Press, 2013)
5859; See also International Federation For Human Rights
(FIDH), Joint Civil Society Statement on the Draft Guiding
Principles on Business and Human Rights, (31 January 2011),
pdf >.
75 See Widney Brown, Stronger UN draft on human rights a
buses needed, Financial Times (19 January 2011)
.
Corporate accountability in international law: a “state shaming”
exercise 217
normative basis76, as soft law approaches are ineffective
when it comes to protecting human rights.77 According to the
critiques, the UNGPs were not ambitious enough as they
have only established negative responsibilities towards
corporations (not to infringe human rights)78 and have
ignored important questions such as extraterritorial
jurisdiction of tribunals to ensure access to justice.79
76 David Bilchitz, ‘A Chasm Between “Is” and “Ought”? A
Critique of the Normative Foundations of the SRSG's
Framework and the Guiding Principles’ in Surya Deva (ed),
Human Rights Obligations of Business: Beyond the Corporate
Responsibility to Respect? (Cambridge University Press, 2013)
65-67.
77 See U.N. Economic and Social Council, Interim Report on the
Issue of Human Rights and Transnational Corporations and
Other Business Enterprises, para. 81, available at:
ages/Reports.aspx>.
78 See David Bilchitz and Surya Deva, The Human Rights
Obligations of Business: A Critical Framework for the Future, in
Human Rights Obligations of Business: Beyond the Corporate
Responsibility to Respect? (Cambridge University Press, 2013) 1,
15.
79 See Tebello Thabane, 'Weak Extraterritorial Remedies: The
Achilles Heel of Ruggie’s’ “Protect, Respect and Remedy”
Framework and Guiding Principles' (2014) 14 African Human
Rights Law Journal 43, 60. For further discussion on this issue,
see, from the same author: Adeline Michoud, ‘The exercise by
U.S. courts of their extraterritorial jurisdiction over corporate
wrongs claims: overview and perspectives’ (2018-2019) 20
Yearbook of Private International Law, 217.
218 SLJ 7 (1)
Despite the effort made in the UNGPs to underline the
importance of access to remedies, commentators have raised
the fact that the UNGPs failed to provide adequate remedies
to victims. A representative from Amnesty International
observed that not enough was being done for victims and
that business enterprises continued to evade accountability
for their human rights violations.80 In fact, the succession of
international instruments has failed to foster proper remedies
that victims of corporate abuses can rely on, but has also
failed to lead to the overall recognition of corporations as
duty bearers in international law. In the next section of the
Article, we shall analyse how regional human rights
instruments regulate corporations and see if more obligations
are expected from corporations at this level.
III. Regional regulations
At the regional level, the question of corporate accountability
has also been raised. In this second part, we shall discuss
regional human rights systems with a focus on the European,
American. and African systems.
a) In Europe
i) Instruments adopted by the European Union
80 United Nations Forum on Business and Human Rights,
Closing Conversation: Strategic Paths Forward and Next Steps
for the Global Business and Human Rights Regime (3 December
2014).
Corporate accountability in international law: a “state shaming”
exercise 219
The European Union (EU) has taken significant initiatives in
the field of business and human rights, including access to
remedy. The EU has repeatedly underlined its commitment
to the implementation of the UNGPs.81 In 2016, the European
Parliament discussed a report drafted on its own initiative on
‘corporate liability for serious human rights abuses in third
countries’. The ensuing resolution, adopted on 25 October
2016, ‘calls on the Commission and Member States to
guarantee policy coherence on business and human rights at
all levels: within different EU institutions, between the
institutions, and between the EU and its Member States’.82
ii) Instruments adopted by the Council of Europe
The European Convention on the Protection of Human
Rights and Fundamental Freedoms (ECHR), which entered
into force in 1953, established the first international
complaints procedure and international court where claims
could be presented against States for the violation of human
rights enshrined in the Convention.
81 These commitments have notably been asserted in the 2011-
2014 Action Plan, the 2015 Staff Working Document on the
implementation of UNGPs and in the 2015-2019 EU Action Plan
on Human Rights and Democracy. Communication from the
commission to the European Parliament, The Council, The
European Economic and Social Committee and The Committee
Of The Regions, A Renewed EU Strategy 2011-2014
82 European Parliament, Resolution on corporate liability for
serious human rights abuses in third countries, 2015/2315 (INI),
25 October 2016.
220 SLJ 7 (1)
However, in 2012, a report of the Steering Committee for
Human Rights (CDDH) indicated that there were no
remedies at the level of the Council of Europe to address civil
claims against corporations for human rights violations.
Following this report, the Committee of Ministers of the
Council of Europe issued a declaration reaffirming its
commitment to the UNGPs and establishing that
corporations had a responsibility to respect human rights.83
Yet, this declaration was not the occasion to propose
solutions, nor an attempt to lay out operative remedies.
Therefore, the Council of Europe calls for States to adopt
national measures to implement business and human rights
principles. The Council of Europe also disposes of a judicial
mechanism to enforce business and human rights principles.
As mentioned, the European Court of Human Rights
(ECtHR) can hear individuals’ complaints against States
alleging a breach of one of the human rights protected by the
European Convention on Human Rights. One limitation to
the ECtHR is that it does not allow claims against private
actors according to Article 35 para. 3a ECHR. In fact, claims
of ECHR violations can only be made against States as stated
in Article 34 ECHR.84
83 Declaration by the Committee of Ministers of the Council of
Europe on the UN Guiding Principles on Human Rights and
Business of 16 April 2014.
84 EU Steering Committee for Human Rights, Draft preliminary
study on corporate social responsibility in the field of human
rights, R76, Addendum VII, p. 10; Olufemi Amao, Corporate
Corporate accountability in international law: a “state shaming”
exercise 221
The ECHR only provides an indirect means by holding the
State responsible for the human rights violations that took
place in their territory and jurisdiction to sanction abuses
committed by corporations in the course of their activities. As
the Court stated in Hatton and Others v. United Kingdom:
‘Article 8 may apply in environmental cases whether the
pollution is directly caused by the State or whether the State
responsibility arises from the failure to regulate private
industry properly.’85 Therefore, a State can be held
responsible under the ECHR when it fails to appropriately
regulate the conduct of private actors within its jurisdiction,
but human rights obligations are not imposed on private
actors.
The ECtHR has also held that the State is responsible for the
protection of individuals from the adverse impact on
human rights by businesses. In Cyprus v. Turkey, the Court
explained that a State’s responsibility may be engaged for
violations of the Convention rights committed by private
social responsibility, human rights and the law: multinational
corporations in developing countries (Routledge, 2011) 27. See
notably the case of the European Court of Human Rights : Lopez
Ostra v Spain, no. 16798/90, (1994), where the Spanish
government was held accountable for failing to prevent the
inconvenience caused by the pollution emanating from a waste
treatment plant, which was held to be against Article 8 of the
European Convention on Human Rights.
85 Hatton and Others v. The United Kingdom, no. 36022/97,
(2003), p.22.
222 SLJ 7 (1)
individuals in its jurisdiction.86 Moreover, in Soering v. United
Kingdom, the ECtHR held that a State could be held
responsible for extraterritorial effects of its domestic acts.87 In
addition, the ECtHR has ruled that States are also responsible
for the breaches of human rights protected under the
European Convention on Human Rights committed by their
agents.88
Furthermore, the European Committee of Social Rights has
adopted a very similar approach to the one of the ECtHR.
The European Committee of Social Rights examines reports
submitted by individuals and judges if contracting states to
the European Social Charter have failed to comply with their
obligations from the Charter. A key difference between the
European Court of Human Rights and the collective
complaints before the European Committee of Social Rights
is that all the State parties to the Council of Europe are
committed to the ECHR whereas the Additional Protocol to
the Social Charter relating to Collective Complaints has been
ratified by only less than half of the Council of Europe’s
Member States. Moreover, the European Committee of Social
Rights has dealt with some complaints involving
corporations. In the case Marangopoulos Foundation for Human
Rights v. Greece89, the European Social Committee stated the
following: the State is responsible for enforcing the rights
86 Cyprus v. Turkey, no. 25781/94, (2001), para 81.
87 Soering v. United Kingdom, no. 14038/88, (1989), para 88.
88 Al Skeidi v. United Kingdom, no. 55721/07, (2011), para 137.
89 FIDH v. Greece, European Committee of Social Rights, no.
72/2011, (2013).
Corporate accountability in international law: a “state shaming”
exercise 223
embodied in the Charter within its jurisdiction. The
Committee is therefore competent to consider the claimant’s
allegations of violations, even if the State has not acted as an
operator but has simply failed to put an end to the alleged
violations in its capacity as regulator.90
As a result, if an enterprise is registered in a State’s territory
or has business in its territory, the State has the competence
and duty to regulate its behaviour. However, the answer to
the question of knowing if a State is responsible for
extraterritorial wrongs committed by private persons
domiciled on their territory is uncertain under the European
Committee of Social Rights’ case law.91 In any case, both
mechanisms by the ECHR and the European Committee on
Social Rights only focus on States’ responsibilities, leaving
corporate accountability aside. Public international law tools,
including at the European regional level, thus mostly focus
on the obligations of States, without tackling the issue of
corporate stakeholders’ accountability.
III b) The Inter-American Court of Human Rights
90 Marangopoulos Foundation for Human Rights (MFHR) v.
Greece, European Committee of Social Rights (Complaint no.
30/2005, 2006c), para 14.
91 See: Ashfaq Khalfan, ‘Division of Responsibility amongst
States’, in Malcolm Langford et al (eds), Global Justice, State
Duties: The Extraterritorial Scope of Economic, Social and
Cultural Rights in International law, (Cambridge University
Press, 2013) 321.
224 SLJ 7 (1)
The first regional human rights declaration was the American
Declaration of the Rights and Duties of Man adopted under
the auspices of the Organisation of American States (OAS) in
1948. Article 26 of the Convention particularly insists on
economic and social rights. Article 25 of the American
Convention on Human Rights underlines the importance for
State Parties to provide access to judicial remedies for victims
of human rights violations. The Commission on Human
Rights hears complaints of human rights violations against
State parties.92 Both individuals and NGOs are recognized the
capacity to submit complaints.
Since the adoption of the American Convention on Human
Rights, the Commission was confronted with questions
relating to business and human rights. In the case of Mayas
indigenous peoples v. Belize, the Commission recommended
that the State should ‘abstain from all acts that could
encourage public agents or third parties that could act with
its acquiescence or tolerance that affects the existence, value,
use and enjoyment of the property of the Maya indigenous
peoples’.93 Decisions adopted from 1985 to 2004 mainly
focused on the State duty to protect or States’ due diligence
regarding business activities that threatened or violated
indigenous peoples’ right to land.94
92 Article 44 of the American Convention on Human Rights.
93 Maya indigenous peoples v. Belize, IACHR, no. 12.053, (2004),
para. 6.
94 Cecilia Anicama, ‘State Responsibilities to Regulate and
Adjudicate Corporate Activities under the Inter-American
Corporate accountability in international law: a “state shaming”
exercise 225
In 1979, the Organization of American States established the
Inter-American Court of Human Rights to enforce and
interpret the provisions contained in the American
Convention on Human Rights. Following Article 1 of the
Statute of the Inter-American Court of Human Rights, the
Court can only hear claims directed against Member States.
The Inter-American Court provides the widest range of
reparations among regional courts’ systems, including
restitution (when feasible) and money damages for material
and moral injuries.95 The aim of the Court is to follow the
principle of restitution in integrum, according to which the
Court will do everything it can restore the victims back to
their previous position in which they were before the
violation occurred.96
Conversely, the Inter-American Court is more limited than
the Commission. Indeed, it can only decide on cases brought
by OAS Member States against other Member States that
Human Rights System, Report on the American Convention on
Human Rights’, (2008) 14, available at : -
humanrights.org/sites/default/files/reports-and-materials/State-
Responsibilities-under-Inter-American-System-Apr-2008.pdf>.
95 See generally Douglas Cassel, ‘The Expanding Scope and
Impact of Reparations Awarded by the Inter-American Court of
Human Rights’, in Koen De Feyter, Stephan Parmentier, Marc
Bossuyt, Paul Lemmens (eds), Out of the Ashes : Reparations for
Gross Violations of Human Rights, (Intersentia, 2005).
96 Almonacid Arellano et al. v. Chile, IACHR, no. 154, (2006),
para. 136.
226 SLJ 7 (1)
have accepted the Court’s jurisdiction97 or cases brought by
the Commission on Human Rights against OAS Member
States.98 The Inter-American Court was confronted with the
question of oil99, logging100, mining101, and other
exploitation102 of territories by non-state actors. Notably, case
law on indigenous and tribal peoples’ rights contains express
references to corporate actions endangering human rights.103
On these occasions, the Court has emphasized on States’
obligations and seemed to indicate that corporations could
not be held accountable. In the case of Awas Tigni,104 a
concession had been granted to a Korean company by
97 Article 61(1) of the American Convention on Human Rights.
98 Article 51 of the American Convention on Human Rights.
99 Kichwa Indigenous People of Sarayaku v Ecuador, IACHR,
no. 245, (2012).
100 Mayagna (Sumo) Awas Tingi Community v Nicaragua,
IACHR, no. 79, (2001), para. 104.
101 Kaliña and Lokono Peoples v. Suriname, IACHR, no. 198/07,
(2007).
102 Yakye Axa Indigenous Community v Paraguay, IACHR, no.
125, (2005); Sawhoyamaxa Indigenous Community v. Paraguay,
IACHR, no. 146, (2006); Xákmok Kásek Indigenous Community
v Paraguay, IACHR, no. 214, (2010).
103 Mayagna (Sumo) Awas Tingi Community v Nicaragua,
IACHR, no. 79, (2001); Saramaka People v Suriname; Kichwa
Indigenous People of Sarayaku v. Ecuador, IACHR, no. 245,
(2012); Kaliña and Lokono Peoples v. Suriname, IACHR, no.
198/07, (2007). For further analysis of this case law, see Thomas
M. Antkowiak, Rights, Resources, and Rhetoric: Indigenous
Peoples and the Inter-American Court (2013) 35 University of
Pennsylvania Journal of International Law 113.
104 Mayagna (Sumo) Awas Tingi Community v. Nicaragua,
IACHR, no. 79/01, (2001).
Corporate accountability in international law: a “state shaming”
exercise 227
Nicaragua to exploit timber in the zone where the Mayagna
indigenous community lived. The Court held that Nicaragua:
‘must abstain from any acts that might lead the agents of
the State itself, or third parties acting with its acquiescence
or its tolerance, to affect the existence, value, use or
enjoyment of the property located in the geographic area
where the Members of the Mayagna (…) community
live.’105
The Court did not refer to any obligation of the corporation
to abide to the principles enshrined in the American
Convention.
Several other cases have been instructed on the issue of the
adverse impacts on indigenous people caused by extraction
companies activities.106 Nevertheless, in these cases, the
accountability retained was always that of the State and not
that of corporations.107 In fact, corporations are not held to
have any obligation to pay reparations to affected
105 ibid para 173.
106 Comunidad Yanamami v. Brazil, IACHR, IACHR, no. 7615,
(1985); Enxet-Lamenxay and Kayleyphapopyet (Riachito) v.
Paraguay, IACHR, no. 11.713, (1998); Maya indigenous peoples
v. Belize, IACHR, no. 12.053, (2004); Kichwa Indigenous People
of Sarayaku v. Ecuador, IACHR, no. 245, (2012), para. 299.
107 For example, IACHR, Report on the Situation of Human
Rights in Ecuador, Doc. OEA/Ser.L/V/II.96, Doc.10 rev.1, April
24, 1997, Chapter IX.
228 SLJ 7 (1)
communities.108 For example, in the case of Kichwa Indigenous
People of Sarayaku v. Ecuador, the Court held that ‘there is no
environmental liability’109 for corporations. However, in the
case Kaliña and Lokono Peoples v. Suriname, a step was made as
for the first time, the Court placed an obligation on the state
‘in conjunction with the company’.110 Despite this statement,
the Court required the State of Suriname to establish ‘the
necessary mechanisms to monitor and supervise the
execution of the rehabilitation of the company’.111 Therefore,
even though the Court recognized that the corporation had
played a role in the infringement and had a responsibility for
it, the duty to repair and make amends was imposed solely
on the government of Suriname. This state-centric
conception of the Inter-American system on Human Rights
was recently confirmed in a recent report of the Inter-
American Commission on Human Rights relating to human
rights protection in the context of extraction, exploitation,
and development activities.112 Indeed, this report solely
focuses on the responsibility of States and does not mention
108 Mayagna (Sumo) Awas Tingi Community v Nicaragua,
IACHR, no.79, (2001), paras 104ff.
109 Kichwa Indigenous People of Sarayaku v. Ecuador, IACHR,
no. 245, (2012), para 123.
110 Case of the Kalina and Lokono Peoples v. Suriname, IACHR,
no. 309, (2015), para 224.
111 Kichwa Indigenous People of Sarayaku v. Ecuador, IACHR,
no. 245, (2012), para 290.
112 Inter-American Commission on Human Rights, Indigenous
Peoples, Afro-Descendant Communities, and Natural Resources:
Human Rights Protection in the Context of Extraction,
Exploitation, and Development Activities, OEA/Ser.L/V/II, 2015.
Corporate accountability in international law: a “state shaming”
exercise 229
the responsibility of corporations or private actors.113
Therefore, just as the European human rights regime, the
Inter-American system applies a state-centric conception to
designate responsible entities of human rights breaches.
III c) The African Commission on Human Rights and People’s
Rights
Africa has also adopted a regional human rights instrument
intended to promote fundamental human rights in the
continent. The African Charter on Human and People’s
Rights came into effect on October 21st 1985 under the
auspices of the Organization of African Unity. The Preamble
to the African Charter underlines the importance of the right
to development: it is henceforth essential to pay a particular
attention to the right to development and that civil and
political rights cannot be dissociated from economic, social
and cultural rights in their conception as well as universality
and that the satisfaction of economic, social and cultural
rights is a guarantee for the enjoyment of civil and political
rights.
The Charter established at the same time of its adoption a
quasi-judicial body, the African Commission on Human and
113 ibid., pp.25-75.
230 SLJ 7 (1)
People’s Rights in charge of interpreting and enforcing the
rights enshrined in the Charter.114 According to Article 45 of
the Charter, the Commission is ‘in charge of the promotion of
human and peoples’ rights and ensures the protection of
these rights.’ Article 46 states that the Commission can
benefit from ‘any appropriate method of investigation’.
Individuals and NGOs’ complaints are admissible before the
Commission, despite the ambiguity of the wording of the
African Charter in this regard.115
Since its creation, the Commission has had to deal with cases
relating to business and human rights. In the case of Socio-
Economic Rights Action Centre v. Nigeria116, a complaint
concerning the environmental damage caused by the
wrongful practices of oil companies in the Ogoni region in
Nigeria, which caused serious damage to the health of the
local population. The Commission ruled that the Ogoni
people had suffered violations of their rights to health117 and
to a satisfactory environment favourable to development118,
due to the government’s failure to prevent pollution and
114 See Article 30 of the African Charter.
115 Christof Heyns and Magnus Killander, ‘The African regional
human rights system’, in Isa Gomez and al (eds), International
Protection of Human Rights: Achievements and Challenges
(Humanitarian Net-University of Deusto, 2006) 525.
116 Communication 155/96, African Commission on Human and
Peoples’ Rights, African Human Rights Law Reports, 2001, p.60.
117 See Article 16 of the African Charter on Human and Peoples
Rights.
118 See Article 24 of the African Charter on Human and Peoples
Rights.
Corporate accountability in international law: a “state shaming”
exercise 231
ecological degradation. It held that the State’s failure to
monitor oil activities and to involve local communities in
decisions violated the right of the Ogoni people to dispose
freely of their wealth and natural resources.119 The
Commission thus found that the Nigerian State had a duty to
protect its citizens against violations of their rights by private
parties.120 Nevertheless, the Commission did not recognize
that corporations were themselves bound by the human
rights contained in the African Charter. In fact, the
Commission chose to omit the question of their
responsibility, even though the complainants explicitly
accused the oil exploiting companies.
This case highlights once again the problem of holding
corporations accountable. As long as corporations are not
bound by international human rights instruments, it will be
impossible for victims to obtain redress from them directly
before supranational bodies. Access to a remedy is a
fundamental right in international law121 but without any
prior legal obligations or recognition of private actors as
bearers of these obligations, corporations shall keep
benefiting from this impunity. To deal with this situation, an
119 See Article 21 of the African Charter on Human and Peoples
Rights.
120 Communication 155/96, African Commission on Human and
Peoples’ Rights, African Human Rights Law Reports, 2001, para.
58.
121 Article 2 of the International Covenant on Civil and Political
Rights.
232 SLJ 7 (1)
African Court on Human and People’s Rights has been
created.122 The introduction of the African Court on Human
and People’s Rights was due to the lack of enforcement
powers of the African Commission, whose decisions were not
binding on States. The African Human Rights Court was
granted the mission to ‘complement the protective mandate’
of the African Commission.123 The Court has both contentious
and advisory jurisdiction.124
However, the Court is only competent to hear complaints
against Member States of the African Union, not against
individuals that have breached human rights provided in the
African Charter. Therefore, the African Court’s functioning,
similarly to its European and American counterparts,
illustrates one more time, the lack of mechanisms to hold
corporate actors liable under international law. In a recent
publication, the African Commission has confirmed its
position, stating that African States are ‘the primary duty
122 See Article 1 of the Protocol to the African Charter on Human
and People’s Rights on the Establishment of an African Court on
Human and People’s Rights.
123 Article 2 of the Protocol to the African Charter on Human
Rights and Peoples’ Rights on the Establishment of the African
Court on Human and Peoples’ Rights.
124 Under Article 28 of the Protocol on the Statute of the African
Court of Justice and Human Rights, the African Court has
jurisdiction over a wide range of treaties of a general nature,
including all treaties of the African Union. Article 17(2) of this
same Protocol provides that the Human Rights Section of the
Court “shall be competent to hear all cases relating to human
and/or people’s rights”.
Corporate accountability in international law: a “state shaming”
exercise 233
bearers’125 that have to comply with human rights, while
making reference to the ‘responsibility of the private
sector’126, without evoking corporations’ liability in case of
non-compliance. All regional human rights systems thus
seem to leave aside the question of direct corporate
accountability.
IV Conclusion
The various attempts to hold corporations accountable for
their human rights breaches in international law have been
insufficient so far. Until recently, the prevailing view of
international organizations such as the UN127, the ILO128, the
OECD129 and the EU130 was that corporate social
125 Report of the African Commission’s Working Group on
Indigenous Populations/Communities, Extractive Industries,
Land Rights and Indigenous Populations’ / Communities Rights,
Eks-Skolens Trykkeri, 2017, p.132, available at :
https://www.iwgia.org/images/documents/extractive-industries-
africa-report.pdf>.
126 ibid 134.
127 UN Global Compact, 2000.
128 ILO Tripartite Declaration of Principles Concerning
Multinational Enterprises and Social Policy, 1977.
129 OECD Declaration on International Investment and
Multinational Enterprises, 1976.
130 Promoting a European Framework for Corporate Social
Responsibility, European Commission Green Paper, 2001. See on
this topic : Kathia Martin-Chenut, ‘Devoir de vigilance :
internormativités et durcissement de la RSE’ (2017) Droit Social,
Dalloz, 798.
234 SLJ 7 (1)
responsibility is a matter that can best be left to self-
regulation by the industry. In setting up soft law mechanisms
which are not legally binding and therefore incapable of
enforcement, public international law has failed so far to
provide a satisfactory remedy for victims of wrongful
business activities. Regional human rights instruments have
also failed to address the question of corporate accountability
correctly, by choosing to focus solely on the responsibility of
States, as the question of application of human rights to
private actors is still unresolved.
Yet, the numerous soft law instruments consecutively
adopted do have a relevance and could contribute to the
establishment of binding human rights obligations on
corporations. The fact that soft law rules lack enforcement
mechanisms does not mean that they do not have any
normative character.131 In fact, these rules do have a
normative significance as they can provide evidence of opinio
juris of the international community over certain principles
and participate in the elaboration of future norms. As George
Abi-Saab described, soft law allows the international
community to reflect on the need to adopt new legal rules to
tackle emerging issues. Therefore, it allows us to articulate
common values and defines guidelines that States are
131 Patrizio Merciai, Les entreprises multinationales en droit
international (Bruylant, 1993) 241.
Corporate accountability in international law: a “state shaming”
exercise 235
encouraged to develop through binding normative
standards.132
As a consequence, soft law should be acknowledged as a way
to create consensus among States and other parties to
progressively amount to legal reforms and changes. In fact,
soft law consolidates political opinion around the need for
action on a new issue and can provide guidance or a model
for hard law provisions. This might actually be the main
function of soft law instruments in the context of corporate
responsibility: foster discussion among the different
stakeholders to progressively amount to a mutual agreement.
As Günther Handl rightly explained: ‘soft law will capture
emerging notions of international public order and thus help
extend the realm of legitimate international concern to
matters to previously exclusive national jurisdiction’.
Therefore, soft law represents an opportunity for States to
reflect upon solutions to current challenges.
132 See George Abi-Saab, Cours général de droit international
public, 207 Collected Courses of the Hague Academy of
International Law, (Brill, 1987) 210. See also Dinah Shelton,
‘Comments on the normative challenge of environmental “soft
law’, in Société française pour le droit international, Le droit
international face aux enjeux environnementaux, (Pedone, 2010),
111 ; Christian Huglo, L’influence du droit international sur le
développement de la responsabilité civile des personnes privées
pour les dommages environnementaux in Société Française pour
le Droit International, Le droit international face aux enjeux
environnementaux, (Pedone, 2010), 165.
236 SLJ 7 (1)
Soft law should thus be considered as a preliminary step, an
initial phase of consolidation for the necessary consensus to
establish binding norms. In fact, the current developments
intervening, notably the discussions at the UN regarding the
adoption of a binding instrument relating to transnational
corporations, or the enactment in several countries of
corporate due diligence duties, can be seen as the result of the
progressive reflection that was fostered through the adoption
of the soft law instruments described above.133 The outcome
of the current negotiations for the adoption of this treaty will
be key to finally establish the direct accountability of
corporations in international law.
133 For more discussion on the role of soft law, see René -Jean
Dupuy, L’humanité dans l’imaginaire des nations, (Julliard,
1991) 243; Adefolake O. Adeyeye, Corpora te Social
Responsibility of Multinational C orporations in Developing
Countries, (Cambridge University Press, 2012), 20.
Corporate accountability in international law: a “state shaming”
exercise 237
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