Memorandum submitted by Paul Harpur, Associate
Lecturer, Queensland University of Technology
I would like to thank the Joint Committee for
inviting submissions and commend them for engaging in this extremely
important topic. My submission will respond to the question:
How do activities of UK businesses engage the
human rights obligations of the UK?
Human rights documents require States to take
steps to ensure human rights are protected by laws and policies.
This means if UK corporations breach human rights then the UK
has an obligation to ensure there are sufficient regulatory vehicles
to prohibit this conduct and provide a remedy. A very good example
of such a law is the Disability Discrimination Act 1995
(UK). Where the corporation is engaging in human rights violations
outside the UK's geographical jurisdiction then the extent of
the human rights duties imposed the UK to regulate such conduct
is unclear. This submission seeks to focus upon the responsibility
upon the UK to regulate corporations' exterritorial conduct.
The imposition of human rights obligations upon
corporations has been developing for a considerable period of
time. One of the most substantial statements of corporation's
human rights obligations can be found in the United Nations Global
The UN General Assembly has accepted the complicity
principle and provided direction where a person will be complicit.
The UNGC Principles state in Principles 1 and 2:
1. Corporations should support and respect the
protection of internationally proclaimed human rights
their sphere of influence
2. Corporations should make sure that they are
not complicit in human rights' abuses.
Clapham and Jerbi explain that these first two
principles impose duties upon corporations firstly to ensure corporations
do not abuse human rights in their operations and secondly, take
reasonably practicable steps to ensure corporations are not complicit
in others' human rights' violations.
When introducing the UNGC to business leaders, Kofi Annan
You can uphold human rights and decent labour
and environmental standards directly, by your own conduct of your
You can at least make sure your
own employees, and those of your subcontractors, enjoy those rights.
On the basis the UNGC principles are
based on the UDHR, the principles which are reflected in
the UNGC, in effect, re-state existing international law
obligations. As a result, Principles 1 and 2 effectively
re-state corporations' existing obligations under the horizontal
conceptualisation of international human rights law.
What obligations does the UK have to ensure corporations
subject to their jurisdiction satisfy the complicity principle?
Arguably corporations have a moral obligation
to take reasonably practicable steps to ensure they are not directly,
indirectly or silently complicit in human rights' abuse within
their domestic and international spheres of influence. Does the
imposition of duties upon corporations create any additional obligations
upon States? Paust has observed that one of the issues surrounding
corporations' obligations under international human rights law
is how the extension of obligations over corporations will impact
on "public responsibility".
The imposition of human rights' obligations over corporations
to ensure they are not complicit in human rights' abuses means
corporations have human rights' obligations which were previously
exclusively the province of States. The fact that human rights'
obligations have been imposed over corporations does not mean
States' human rights' obligations have decreased because corporations
also have obligations to ensure the same rights. Clapham and Jerbi
The boundaries of what is expected from business,
and what a State is obliged to do under international law, cannot
be neatly drawn. It must be stressed, however, that governments
do still possess wide powers overand primary responsibility
forthe well-being of their citizens and for the protection
of human rights.
The fact States horizontally impose obligations
upon corporations under international law arguably does not mean
States have their obligations under vertical international law
reduced. States impose obligations on corporations to enable States
to discharge their human rights' obligations. Where the operation
of horizontal rights ensures the protection of human rights, then
States have discharged their obligations. Conversely, if the imposition
of horizontal rights fails to ensure rights, then States will
be liable to find alternative means to ensure those human rights
are protected. Ruggie concludes:
[T]he State duty to protect against nonState
abuses is part of the international human rights regime's very
foundation. The duty requires States to play a key role in regulating
and adjudicating abuse by business enterprises or risk breaching
their international obligations.
As a result it is argued that the operation
of horizontal rights assists States to discharge their human rights'
obligations, but it does not enable States to avoid their human
It is submitted that as States remain the paramount
actors under international law and thus all corporations' rights
and obligations flow through States. Rather than reducing States'
obligations, the operation of imposing horizontal obligations
upon corporations may actually increase States' obligations. Generally,
States' human rights' obligations are limited to territory the
State controls. For example, article 2 of the ICCPR
provides that through ratification, all States undertake "to
respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present
Article 2(2) requires Australia to introduce laws to ensure the
rights contained in the ICCPR are protected and article
2(3) requires Australia to ensure there is a judicial remedy if
such a right is breached. These obligations upon States have been
read widely to include some exterritorial obligations. The International
Court of Justice has read article 2 widely. In Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory,
(Advisory Opinion) the court advised:
This provision can be interpreted as covering
only individuals who are both present within a State's territory
and subject to that State's jurisdiction. It can also be construed
as covering both individuals present within a State's territory
and those outside that territory but subject to that State's jurisdiction.
The UN Committee has supported the concept that
States have extraterritorial human rights' obligations.
Kamchibekova has concluded that "[i]t seems that human rights
bodies have accepted the possibility of extraterritorial state
responsibility". The extraterritorial obligations of States
under international law can be further evinced by the "effects
doctrine". The "effects doctrine" extends a State's
extraterritorial obligation to any conduct which is performed
outside the State which is intended to have an impact within the
Further evidence of the extraterritorial obligations of States
can be demonstrated by the International Law Commission's Draft
Articles on Responsibility of States for Internationally Wrongful
Draft Articles on Responsibility of States for Internationally
Wrongful Acts do not impose any territorial limitation upon
is clear States' legal obligations under international human rights
law are not restricted to the State's own geographical territories.
One manifestation of States' extraterritorial
duties concerns the conduct of corporations. It could be argued
that States have a moral obligation to ensure corporations operating
within their jurisdiction are not directly, indirectly or silently
complicit in human rights' abuse. The extension of corporations'
human rights duties has resulted in an increase in States' moral
obligations. States have increasingly imposed human rights' obligations
over how corporations manage their international supply chains.
While corporations cannot impact upon the vertical conceptualisation
of human rights and bind States, States, through extending corporations'
obligations, may in turn extend States' obligations. The horizontal
imposition of human rights' obligations upon corporations effectively
extends the obligations of States, to all the international and
national activities of corporations operating in their jurisdiction.
Through imposing non-binding extraterritorial human rights' obligations
over corporations, it could be argued that States have effectively
extended their own obligations.
A number of jurisdictions have acted to regulate
the exterritorial affairs of corporations within their jurisdictions.
Examples of this can be found in Europe and in the USA. The European
Parliament has recognised that European States have a responsibility
to regulate for European-based corporations dealing in developing
States. In 1999, the European Parliament passed a resolution calling
for a legally-binding framework for regulating European transnational
corporations operating in developing countries. While the European
Commission has not adopted this mandatory model,the
European Commission has adopted a voluntary code and individual
European nations have developed voluntary regulatory frameworks
to encourage corporations to engage in ethical conduct.
The USA has recognised it has an obligation
to attempt to prevent its corporations from using sweatshops.
In 1997, the Clinton administration reached an agreement with
the Apparel Industry Partnership for an industry-wide code, aimed
at preventing child labour and sweatshop conditions generally
in supply chains.
The most recent USA government involvement in international supply
chain regulation has occurred through the Sweatfree Procurement
movement. This movement was started by the City of Maine, and
requires all corporations which supply products to the public
bodies associated with the City of Maine, not to have acquired
those products from domestic or international sweatshops.
Similar laws have now been introduced in other states, including
This submission has argued that the operation
of the imposition of human rights obligations upon States, such
as through the United Nations Global Compact, have increased the
human rights of the UK to ensure corporations are respecting human
rights within those corporations' spheres of influence. Due to
the 2500 word length I was unfortunately unable to discuss
possible regulatory vehicles which could assist the UK to discharge
this extended human rights obligation.
If the Committee would be interested in further
submissions or comments I would be honoured to oblige them.
BBus (HRM), LLB (Hons), LLM, PhD (under examination),
Attorney of Law, Associate Lecturer with the Queensland University
4 Andrew Clapham and Scott Jerbi, "Categories
of Corporate Complicity in Human Rights Abuses" (2001) 24 Hastings
International and Comparative Law Review 339, 341. Back
Secretary-General Proposes Global Compact on Human Rights, Labour,
Environment, in address to World Economic Forum in Davos"
(1999) UN Press Release SG/SM/6881. Back
Jordan Paust, "The Significance and Determination of Customary
International Human Rights Law: the Complex Nature, Sources and
Evidences of Customary Human Rights" (1995) 25 Georgia
Journal of International and Comparative Law, 147, 162; See a
further discussion in: Jordan Paust, "The Other Side of Right:
Private Duties Under Human Rights Law" (1992) 5 Harvard
Human Rights Journal 51. Back
Andrew Clapham and Scott Jerbi, "Categories of Corporate
Complicity in Human Rights Abuses" (2001) 24 Hastings
International and Comparative Law Review 339. Back
John Ruggie, Interim Report (The Special Representative of the
Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97,
2006); John Ruggie, "Business and Human Rights: the evolving
international Agenda" (2007) 101 American Journal of
International Law 819; John Ruggie, Business and Human Rights:
Mapping International Standards of Responsibility and Accountability
for Corporate Acts' (Report of the Special Representative of the
United Nations Secretary-General on the Issue of Human Rights
and Transnational Corporations and Other Business Enterprises,
2007); John Ruggie, Protect, Respect and Remedy: a Framework for
Business and Human Rights (Report of the Special Representative
of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises to the Human Rights
Council Eighth session, 7 April 2008) 27-50. Back
Peter Newell and Jedrzej George Frynas,"Beyond CSR? Business,
Poverty and Social Justice: an Introduction" (2007) 28 Third
World Quarterly 4, 669. Back
See for general discussion: Sarah Joseph, Jenny Schultz and Melissa
Castan, International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (2004) 679 and 752. Back
 ICJ 136, 178-79. Back
Damira Kamchibekova, "State Responsibility for Extraterritorial
Human Rights Violations" (2007) 13 Buffalo Human Rights
Law Review 87, 145. Back
Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim's International
Law (9th ed, 1992) 459-460. Back
Statute of the International Law Commission, G.A. Res. 174 (II). Back
Rick Lawson, "Out of Control. State Responsibility and Human
Rights: Will the ILC's Definition of the "Act of State"
Meet the Challenges of the 21st Century?" in M. Castermans-Holleman
(ed.), The Role of the Nation-State in the 21st Century (1998)
Pall A. Davidsson, "Legal Enforcement of Corporate Social
Responsibility within the EU" (2002) 8 Columbia Journal
of European Law 529, 531, 534. Back
Magdalena Bexell, Exploring Responsibility: Public and Private
in Human Rights Protection (PhD Thesis, Lunds University (Sweden),
Yaraslau Kryvoi, "Enforcing Labor Rights against Multinational
Corporate Groups in Europe" (2007) 46 Industrial Relations
2, 366; Pall Davidsson, "Legal Enforcement of Corporate Social
Responsibility within the EU" (2002) 8 Columbia Journal
of European Law 529. Back
European Commission, Communication From The Commission Concerning
Corporate Social Responsibility: a Business Contribution To Sustainable
Development (2002); For a summary of the United Kingdom's regulatory
framework see Commonwealth Parliamentary Joint Committee on Corporations
and Financial Services, Corporate Responsibility: Managing Risk
and Creating Value' (Report, 2006) 6.17.4 and 6.17.5. Back
For a discussion of various regulatory vehicles proposed and implemented
in the USA see: Mark B. Baker, "Promises and Platitudes:
Toward a New 21st Century Paradigm for Corporate Codes of Conduct?"
(2007) 23 Connecticut Journal of International Law 123, 150-62. Back
Heidi S. Bloomfield, " "Sweating' the International
Garment Industry: A Critique of the Presidential Task Force's
Workplace Codes of Conduct and Monitoring System" (1999)
22 Hastings International and Comparative Law Review 567,
Administrative Procedures and Services Regulation (City of Maine),
Part 4, Subchapter I-B, State Purchasing Code of Conduct for Suppliers. Back
An Act to amend S 6108 of the Public Contract Code, Relating
to Public Contracts 2003 (California, SB 578). Back
Executive Order for Sweat-free Apparel Procurement 2004 (Pennsylvania). Back
Sweat-free Procurement Ordinance for the City of Portland. Back
Sweat-free Procurement Rules 2006 (New Jersey). Back
The Sweatfree Contracting Ordinance of the City and County of
San Francisco, 2005. Back