Memorandum submitted by Professor David
Kinley, Chair in Human Rights Law, University of Sydney
MAKING POWER RESPONSIBLE: REGULATING THE
RELATIONSHIP BETWEEN CORPORATIONS AND HUMAN RIGHTS[87]
NOTE: This submission draws from Chapter 4 of
a forthcoming book:
David Kinley, Civilising Globalisation: Human
Rights and the Global Economy (June 2009).
As the key drivers of today's global economy,
corporations have enormous capacity to create wealth, jobs and
income; the taxes they pay finance public goods; the competition
they generate accelerates innovation; they propagate the transfer
of technological and intellectual know-how; and by way of the
interdependency of their commercial operations they can contribute
to the establishment and maintenance of domestic social and economic
order, as well as international peace and stability.
Thus, there is no question that business and
its evident attributes and outputs benefit human rights, but,
not only can and should business do more, its abuses of human
rights—inadvertent, by neglect or design—must be curtailed.
As a matter of principle, these are non-negotiable precepts; as
a matter of practice, much more needs to be done.
The problem of regulating the relationship between
corporations and human rights has two facets: first, how to address
corporate abuses of human rights, and secondly, how best to encourage
corporate support for human rights. This submission addresses
the relative merits of the legal and non-legal aspects of corporate
regulation on human rights matters, and how the two aspects interrelate.
NON-LEGAL:
CORPORATE SOCIAL
RESPONSIBILITY (CSR)
CSR has increasingly gained purchase in the
minds and actions of critics, commentators and corporate leaders
alike. It has formed part of a "new governance", whereby
large corporations now dedicate sizeable resources and executive
effort towards building CSR into their business values or principles.
There now exists a vast array of codes, principles, guidelines
and standards to which corporations can sign up or have their
performance measured against.[88]
These codes range across six main categories:[89]
(i) model codes, developed by intergovernmental bodies (eg the
UN Global Compact); (ii) intergovernmental codes, concluded between
governments (eg the OECD's Guidelines for Multinational Enterprises);
(iii) multi-stakeholder codes, which are negotiated agreements
often involving corporations, labour representatives, NGOs and
governments (eg the UK Government's Ethical Trading Initiative
Base Code); (iv) industry codes, (nearly all major industries
have such codes—for example, the Equator Principles for
the banking sector); (v) company codes, which many companies (and
certainly all major ones), now possess, reflecting not only the
standards set by whichever of the above types of code they subscribe
to, but also their own particular CSR values, and may cover strategic
direction, employee and community relations, investment protocols,
complaint handling, compliance monitoring, and supply-chain management;
and finally, (vi) compliance and verification codes, which are
tools developed to assist corporations in assessing their CSR
performances (eg, Social Accountability 8000,[90]
the Global Reporting Initiative Guidelines,[91]
and the forthcoming (in 2010) ISO 26000 guidelines for Social
Responsibility[92]).
Many of these codes incorporate some human rights
values, usually embedded within avowedly social and environmental
standards, but few are explicitly and centrally concerned with
corporate abuses, and/or promotion, of human rights. Those that
are include: the Voluntary Principles on Security and Human Rights,
drawn up between a number of large mining and exploration corporations,
a number of prominent human rights NGOs, and the governments of
the Netherlands, Norway, the UK and US, and intended "to
guide companies in balancing the needs for safety while respecting
human rights and fundamental freedoms";[93]
Amnesty International's Human Rights Guidelines for Companies;
and the UN Norms on the Responsibilities of Transnational Corporations
and other Business Enterprises with Regard to Human Rights (henceforth,
the "UN Norms").
In terms of process, CSR has been about trying
to take issues that have been traditionally seen as outside the
purview of business and move them into the sphere of what business
is, or ought to be, concerned with. There has been mixed success
in this endeavour. On the one hand, corporations are, generally,
disinclined to take on board such a varied array of interests,
actors and objects that are seen as, at best, on the periphery
of their core business. CSR critics claim that such distractions
from a corporation's core concerns (centrally, to make a profit
in whatever they do), is neither good for business, nor legitimate.[94]
On the other hand, capitalism and corporations are nothing if
not enterprising and opportunistic. It did not take long for many
corporations to appreciate that if this is what stakeholders really
want (and they are, after all, potential consumers, financiers,
regulators, opinion-makers), then that is what they should deliver,
provided, crucially, that in the process they continue to make
profits—a kind of "enlightened self-interest",
as some have put it.[95]
There is also tension between the voluntarism
of CSR, and the role of the state in mandating its precepts.[96]
Some in the corporate world see the whole CSR enterprise to be
something largely outside (and typically trying to ward off) state
regulation. According to this view, CSR entails no more than a
voluntary adherence to principles that are seen as reflections
of community expectations, whatever the law might actually demand.
Examples of this include the setting of social and/or environmental
targets that are "beyond compliance"; investing in local
communities (it is now not uncommon for extractive industry corporations
working in developing states to assist in providing health care,
school education, transport or communication facilities), and
institutionalised philanthropy in the tradition of Rockefeller
and Ford and now advanced by Buffett and Gates.
Important though it is, focusing too intently
on the business case for CSR undermines its rationale (it is concerned
with business "responsibility" not "opportunity"),
and it leaves the enterprise open to abuse. For such a "limited
form of CSR," as Tom Campbell points out, "amounts to
little more than intelligent business practice that enhances long-term
profitability, to the virtual exclusion of responsibilities that
are not just justifiable in terms of the economic interests of
the corporations in question".[97]
Campbell argues that "the real crunch questions in CSR concern
what to do when the business case does not hold because it is
not economically wise for a particular economic unit or business
sector to 'do the right thing'."[98]
Campbell's observation effectively marks the boundary between
that which can reasonably be expected of voluntary CSR, and that
which has to be mandated by law.
The voluntarism of CSR has its critics as well
as its supporters, but the debate and practice has now reached
a stage of maturity such that CSR can no longer (if ever it could)
be seen as a law-free domain. For in so far as CSR initiatives
can, broadly, be seen as beneficial, their multiplication and
their kaleidoscopic coverage and format, have provided fertile
grounds for confusion, and evasion. This is the salutary message
that John Conley and Cynthia Williams draw from their empirical
study of the implications (including for human rights) of CSR
practices in mainly UK and US corporations, noting that many corporations
were able to exploit this circumstance with significant skill
and stealth.[99]
The prospect of direction, or at least hierarchy, being established
through legal regulation (whether of the hard or soft law variety),
is therefore not only appealing, but necessary.
HARD LAW
AND SOFT
LAW APPROACHES
There is, in fact, already a significant body
of law regarding the human rights obligations of corporations.
As I have argued elsewhere,[100]
domestic laws governing occupational health and safety, labour
and workplace relations, anti-discrimination, privacy, environmental
protection, property rights, freedom of expression, fair trial
(complaints handling and disciplinary procedures), criminal prohibitions
(such as against physical abuse, fraud and corruption, and property
offences), are typically found in the statute books of developed
countries. Further, they are also, increasingly, to be found in
developing countries, as the twin forces of global economic order
and the rule of law propagate them, and the demands of regulatory
certainty and fairness become evermore insistent.[101]
Across and within nations, these laws are, of course, incomplete
and imperfect, but the records of the state courts and tribunals
that enforce them, such as they are, against corporations on a
daily basis, are testimony to the prevalence and importance of
existing community expectations about corporate observance of
human rights standards.
In all the debates about whether, or which,
or how human rights obligations apply to corporations, it is important
to remember that this array of legal regulation already exists.
The regulatory questions that are to be addressed in this field
are, therefore, concerned with how much further corporations
should be made to engage with human rights, rather than deliberations
about whether they should in the first place.
Domestic legislation, policies and practices
regarding the requirements made of corporations to protect and
promote human rights and the consequences of their breach must
continue to be the most significant and effective vehicles to
enunciate and enforce such responsibilities. While, evidently,
not all states utilise their regulatory frameworks sufficiently
and effectively in this regard, such limitations are due to variations
in political will, administrative capacity and economic imperatives,
not a lack of jurisdictional competence. What has been
of vital importance to much of the debate about corporations and
human rights in the past decade or so, is when the human rights
actions of the corporations in question are transnational.
That is to say, when the corporation is legally incorporated in
one (home) state, while it conducts its operations in another
or other (host) states. The crux of this matter is when the human
rights laws that apply to corporations differ significantly, in
form and/or substance, between the home and host states. For such
legal gaps in human rights protections lead, almost inevitably,
to their neglect and abuse in practice. Though such gaps can appear
between any two states, they are most obvious and potentially
most damaging when the corporation's home state is a rich, liberal
state in the West, and the host state is a poor, weakly governed
state in the developing world.
Adopting the perspective of the victims (or
potential victims) of abuse in these circumstances, there exist
four possibilities by which legal regulation might possibly address
corporate infractions and provide redress for the abused.
First, most directly, international and domestic
pressure (from other states, international organisations, civil
society and even corporations themselves) might be put on the
states to plug the gaps in their own laws regarding corporate
behaviour within their jurisdiction, by enactment of legislation
where there is none or it is inadequate, or enforcing that which
exists but is ignored or easily evaded. In situations of states
with weak governance, however, this is to invest in hope more
than expectation. By definition, weakly governed states lack capacity
and probably political will, and many egregious breaches involving
corporations are perpetrated jointly with (and often principally
by) state organs themselves. In such cases this may be a pointless
exercise, and points of legal leverage will have to be sought
elsewhere.
The second possibility is the extension of the
extra-territorial reach of strong-state laws, effectively to make
corporations liable at home (under home-state law) for their actions
overseas (despite host-state laws). Extra-territoriality has many
legal guises,[102]
including, most directly, the criminalisation of acts taken by
individuals or other legal persons, including corporations, offshore—relatively
common examples of which include sex tourism, drug trafficking,
terrorism activities and war crimes.[103]
Tort liability is another example, in respect of offences against
persons, negligence resulting in egregious harm (such as severe
environmental damage), or, most notoriously, for breaches of fundamental
international legal norms, as with the US's revivified Alien
Torts Claims Act (ATCA), provided that such norms are "specific,
obligatory and universal".[104]
In addition, other laws or legal techniques may have a facilitative
extra-territorial capacity in this regard. Corporations laws,
for example, regulate the nature and extent of legal liability
of corporations for the actions of their overseas subsidiaries,[105]
which can include actions that violate human rights, and there
have been a series of attempts (so far unsuccessful) in Australia,
the UK, and the US to enact "corporate code of conduct"
legislation that would bind corporations, and/or their directors,
in respect of their conduct overseas.[106]
Use by corporations of forum non conveniens to deflect
litigation from home state courts (which are normally far more
rigorous, less tolerant and more punitively-minded of corporate
indiscretions than host-state courts) has also been watered down
in the certain common law courts in which it is applicable. As
a result, this peculiar, but important, determinant of the jurisdictional
competence (determining, that is, whether a home-state court has
the power to hear a case regarding action taken in another state's
jurisdiction, and if so, whether it should), has effectively extended
the extra-territorial reach of home-state courts in cases where
they are not "seen as a clearly inappropriate forum".[107]
Finally, the international legal facility of "universal jurisdiction"—whereby
states "have jurisdiction to define and prescribe punishment
for certain offences recognized by the community of nations as
of universal concern"[108]—has
also been used by states to arrogate extra-territorial powers
to their courts, which power might conceivably extend to corporations.[109]
All that said, such extra-territoriality in
the specific respect of corporate behaviour that affects human
rights is relatively rare, certainly as compared to normal, intra-territorial,
law. It is a potentially highly charged, political issue. Extra-territorial
laws emanate almost exclusively from Western states and are therefore
seen by many developing states as, at best, presumptuous and somewhat
patronising, and, at worst, imperialist challenges to their sovereignty.
In the home states themselves, the device can also be subject
to intense political pressure—from those activists in favour,
and, more significantly in terms of lobbying power, from the business
community against such extended jurisdictional reach in respect
of corporate activity. Indeed, the failures of the corporate code
of conduct bills mentioned above bear testimony to business's
lobbying power.[110]
The benefit of extra-territorial legislation
in this area for those whose human rights are abused, is that
it provides a potential alternative forum in which to pursue their
claims against corporations. But closing the gap in respect of
the human rights obligations of corporations across jurisdictions,
however, has not, and will not, be achieved on the back of extra-territorial
laws alone. Even their most celebrated manifestation, the now
much litigated ATCA has so far yielded just one concluded trial
(and then in favour of the corporation),[111]
and one notable out of court settlement.[112]
That is, despite dozens of high profile cases having been brought
against some of the world's largest companies,[113]
alleging human rights abuses including complicity in murder, forced
and child labour, assault, rape, forced relocation and expropriation,
and aiding and abetting apartheid. There is no doubt the ACTA
is useful publicity tool, but it is a less effective and efficient
tool of legal regulation. Harold Koh recognises the statute for
what it really is: an extremely limited, highly conditional, litigable
instrument of last resort.[114]
To be sure, it is an important, indeed, vital backstop, but does
not and cannot serve as central plank in any regulatory program
to address corporate abuses of human rights standards.
The third and fourth regulatory possibilities
are both situated in the same transnational sphere, and though
very different and controversial in their own ways, together offer
the prospect of bolstering a more globalised perspective of the
legal regulation of corporations in regard to human rights protections.
The third possible avenue relates to the already
noted burgeoning instances of transnational codes of conduct,
developed by industry peak bodies, governments, NGOs, or by transnational
corporations themselves, in so far as they contain human rights
standards. Though soft-law and, in the main, entirely voluntary
initiatives, they nonetheless constitute the foundations for harder
legal regulation, being not only the policy firmament from which
future domestic and international laws are likely to develop,
but also in their desire to stipulate standards and to proclaim
their adherence to them, corporations are in effect engaging in
commercial speech—or, to put it more directly, in marketing.[115]
All developed states, and many strictly so, have trade practices
rules governing false advertising, and misleading or deceptive
conduct such that a company is prevented from making any false
or misleading claims in an effort to entreat you to purchase their
products. In a landmark case brought against Nike in California,
anti-corporate activist, Marc Kasky claimed that he had been so
entreated to buy a pair of Nike shoes on the basis of the company's
self-declared good human rights business practice of not engaging
sweat-shop labour in the manufacture of its products, only for
him later to discover, he alleged, that the claims were false.
The veracity of Kasky's allegation was never tested in court as
the case was settled,[116]
but the point was made that specific claims as to one's human
rights practices can be just as strictly regulated as are those
made in respect of the quality of one's stitching, or the curative
effects of one's drugs, or the longevity of one's battery life.
Rather curiously, there have been few repetitions of such litigation
under similar trade practices and competition laws in other developed
states, but the prospect of such litigation appears to have had
the salutary effect of making corporations think more carefully
about the justifications for their public pronouncements about
their respect for or compliance with human rights standards.
The fourth possibility is perhaps the most ambitious
as it entails proposals for the regulation of corporate entities
regarding human rights under international law. There are in fact
two dimensions to this possibility. One is actively to encourage
such international human rights bodies as the committees that
oversee the implementation of the main UN human rights treaties,
to make more use of their existing authority to press signatory
states to do more within their respective jurisdictions to protect
and promote human rights, including in respect of relevant
acts of commission or omission by corporations. Some of these
committees through their consideration of periodic reports, hearings
of individual communications, and publication of General Comments,
do already inquire of states what they are doing in this regard,
make specific suggestions as to how they might do it better, and
indicate more broadly how corporations might assist, or be required
to assist, in the domestic protection of human rights. A survey
by the Special Representative of the UN Secretary-General (SRSG)
of the position in respect of the UN's core human rights treaties
concludes that "an examination of the treaties and treaty
bodies' commentary and jurisprudence … confirms
that the duty to protect includes preventing corporations—both
national and transnational, publicly or privately owned—from
breaching rights and taking steps to punish them and provide reparation
to victims when they do so."[117]
In actual practice, however, moves to extend this duty to cover
corporations are still in their infancy. Such moves also rely
on the very entities that give us cause for concern about their
competence to regulate effectively the errant activities of corporations—namely,
states, and especially weakly governed states.
The other dimension is to seek to establish
some form of international legal regime under which corporations
might also be held directly liable for breaches of particular
human rights standards, thereby, where needs be, avoiding the
intermediary of state action. This second option is more revolutionary—and
controversial—because it promotes the as yet nascent idea
that international law can apply to (and bind) non-states entities
as well states. The focus of much of the debate and controversy
on this issue has, at least since their "publication"
in 2003, been on the UN Human Rights Norms for Corporations.[118]
In formulating his "protect, respect and remedy" framework,
as outlined in his third report to the Human Rights Council in
June 2008, the SRSG has steered away from the treaty approach,
on the basis that the prospects of any international initiative
to plug the gap (which he acknowledges is there and is serious)
left by inadequate or non-existent state-based hard and soft law
regulation is impolitic and impractical because it would be "unlikely
to get off the ground" (and even if it did, likely be counter-productive).[119]
In and of itself, the "protect, respect
and remedy" framework is unobjectionable—rightly urging
states to "protect", by taking more seriously and implement
more thoroughly their obligations under international human rights
law regarding corporate activities in their jurisdiction (the
first possibility above); corporations to "respect"
rights, by which the SRSG means, ultimately, that failure to do
so "can subject companies to the courts of public opinion—comprising
employees, communities, civil society, as well as investors—and
occasionally to charges in actual [domestic] courts";[120]
and victims to have access to "remedies" that "could
include compensation, restitution, guarantees of non-repetition,
changes in relevant law, and public apologies".[121]
But this framework with these features does not address the problem
of situations in which states are so weak or unwilling to protect
human rights, and corporations are so comparatively strong or
conveniently transnational to evade human rights responsibilities.
This is the gap that an international treaty regime can address.
While hesitations might exist about the prudence of engaging with
the controversial treaty approach and potentially undermining
present levels of positive engagement between corporations, NGOs
and states currently manifest under the goodwill of the SRSG,
this is not sufficient reason to sideline potential international
options. If we were always to back away from the invariably tough
challenges of establishing new international human rights regimes
merely because "treaty-making can be painfully slow"
and "serious questions remain about how [any treaty obligations]
would be enforced", as the SRSG argues,[122]
then few if any of the human rights instruments that populate
the post-War international law landscape of today would have made
it beyond the stage of high-minded rhetoric. It may be that with,
from June 2008, another three years added to the term of his mandate,
and the extension of the mandate itself regarding, in particular,
the provision of "concrete and practical recommendations
on ways to strengthen the fulfillment of the duty of the State
to protect all human rights from abuses by or involving transnational
corporations",[123]
the SRSG will be able to develop a consensus for a bolder foray
into the international field.
CONCLUSION
In the business and human rights debate, one
must stress the singular importance of the role of states in urging,
facilitating and, if necessary, coercing corporations to better
protect and promote human rights, starting by demonstrating greater
vigilance themselves in these respects. The front line will be
in corporate board-rooms and management mindsets. Lawrence Mitchell,
an eminent corporate law scholar, has argued that CSR and the
human rights guarantees it encompasses, must be "something
central to the corporation's business, not something the corporation
does in addition to business",[124]
and as such, he maintains, "corporate management that looks
to the best interests of the business over the long term will
largely, if not completely, fulfil many of the goals of CSR".[125]
Corporate mindsets are changeable in this regard,
and there has been evidence to prove this in recent years, from
the now significant involvement of transnational corporations
in various forms of embracing CSR and human rights principles
at the level of business strategy, engagement with CSR and human
rights experts and organisations, and implementation of lessons
learned in policies and practices. Such outcomes are preferable
to all interested parties—corporate, activist, state, and
above all those whose human rights might otherwise suffer. In
the end, therefore, underpinning all the initiatives canvassed
in this submission, what will serve human rights best in the field
will be if corporations "pray not for lighter burdens but
for stronger backs."[126]
And it will be up to states both to insist and assist in the quest.
Professor David Kinley
April 2009
87 Odette Murray of the Sydney Centre for International
Law, Sydney University, greatly assisted in the compilation
of this submission. Back
88
Phillip Rudolph reports that there are at least 1,000 codes
of conduct in existence. See: Phillip Rudolph, "The History,
Variations, Impact and Future of Self-Regulation" in Ramon
Mullerat (ed.) Corporate Social Responsibility: The Corporate
Governance of the 21st Century (Hague, Netherlands: Kluwer Law
International, 2005), pp.367-84. Back
89
Drawing directly on Rudolph's typology for the first five listed
categories; ibid. Back
90
www.sa-intl.org Back
91
www.globalreporting.org Back
92
www.iso.org/sr Back
93
www.voluntaryprinciples.org Back
94
Martin Wolf, "Sleep-walking with the Enemy", Financial
Times, 16 May 2001, p.21 Back
95
See the report of the Australian Parliamentary Joint Committee
on Corporations and Financial Services, Corporate Responsibility:
Managing Risk and Creating Value (Canberra: Parliamentary Joint
Committee on Corporations and Financial Services, 2006), at para.
4.76. Back
96
See the recent comments on this tension by Professor John Ruggie,
the Special Representative of the UN Secretary-General on Business
& Human Rights: "Prepared Remarks by SRSG John G. Ruggie",
Public Hearings on Business and Human Rights, Sub-Committee on
Human Rights, European Parliament, Brussels, 16 April 2009,
at http://www.reports-and-materials.org/Ruggie-remarks-to-European-Parliament-16-Apr-2009.pdf Back
97
Tom Campbell, "The Normative Grounding of the Corporate Social
Responsibility: A Human Rights Approach" in Doreen McBarnet,
Aurora Voiculescu and Tom Campbell (eds.), The New Corporate Accountability:
Corporate Social Responsibility and the Law (Cambridge University
Press, 2007), p.530. Back
98
Ibid, p.531. Back
99
John Conley and Cynthia Williams, "Engage, Embed, and Embellish:
Theory Versus Practice in the Corporate Social Responsibility
Movement" (2005-06) 31 Journal of Corporation Law 1,
at 34. Back
100
David Kinley, "Human Rights as Legally Binding or Merely
Relevant?", in David Kinley and Stephen Bottomley (eds.)
Commercial Law and Human Rights (Aldershot: Ashgate Dartmouth,
2002), pp.25-45. Back
101
See David Trubek, "The 'Rule of Law' in Development Assistance:
Past, Present and Future" in David Trubek and Alvaro Santos
(eds) The New Law and Economic Development: A Critical Appraisal,
(New York: Cambridge University Press, 2006), pp.84-6. Back
102
Surya Deva, "Acting Extraterritorially to Tame Multinational
Corporations for Human Rights Violations: Who Should 'Bell the
Cat'?" (2004) 5 Melbourne Journal of International Law
37 Back
103
See Eric Engle, "Extraterritorial Corporate Criminal Liability:
A Remedy for Human Rights Violations?" (2006) 20 St.
John's Journal of Legal Commentary 287, at 291. Back
104
As stipulated in the US Supreme Court's landmark decision in Sosa
v. Alvarez-Machain 542 U.S. 692 (2004), at 732; see
further, Lucien Dhooge, "Lohengrin Revealed: The Implications
of Sosa v. Alvarez-Machain for Human Rights Litigation Pursuant
to the Alien Tort Claims Act", (2006) 28 Loyola of Los
Angeles International and Comparative Law Review, 393. Also see
Joanna Kyriakakis, "Freeport in West Papua: Bringing Corporations
to Account for the International Human Rights Abuses under Australian
Criminal and Tort Law", (2005) 31 Monash University
Law Review 95 Back
105
See Lubbe and Others v Cape Plc [2000] 1 WLR 1545, in which
the House of Lords, rejecting the defendant's argument of forum
non conveniens, demolished attempts of a parent company to distance
itself from the damage done by its asbestos mining subsidiary
in South Africa. Back
106
Adam McBeth, "A Look at Corporate Code of Conduct Legislation"
(2004) 33 Common Law World Review 222 Back
107
This is the formulation that prevails in Australian courts as
enunciated in Oceanic Sun Line Special Shipping Company Inc v
Fay [1988] HCA 32, per Deane J, at para.18. In the UK, forum non
conveniens was also similarly removed as an effective defence
against removal of cases to home-state courts in Connelly v RTZ
Corporation Plc and Others [1998] AC 854. For a discussion of
the much more limited inroads into the defensive use of forum
non conveniens in the US, see Malcolm Rogge, "Towards Transnational
Corporate Accountability in the Global Economy: Challenging the
Doctrine on Forum Non Conveniens in In re: Union Carbide, Alfaro,
Sequihua, and Aguinda" (2001) 36 Texas International
Law Journal 299. Back
108
These are the defining words used in the Restatement (Third),
The Foreign Relations Law of the United States (1987), section
404. Back
109
For a overview of the various forms of implementation of universal
jurisdiction in the common law and civil law jurisdictions of
Europe, see Human Rights Watch, Universal Jurisdiction in Europe:
The State of the Art (June 2006) Vol.18, No.5(D). It should also
be noted here that officers of corporations, as individuals, may
be subject to the jurisdiction of the International Criminal Court
for grave breaches of international law, including genocide, war
crimes, crimes against humanity and the crime of aggression; Rome
Statute of the International Criminal Court 2000, Articles 6-9. Back
110
Though, in Australia, it seems that this issue might be put to
the test once again, following the Rudd Government's decision
in June 2008 to support a Parliamentary motion to consider
"the development of measures to prevent the involvement or
complicity of Australian companies in activities that may result
in the abuse of human rights, including by fostering a corporate
culture that is respectful of human rights in Australia and overseas",
see Oxfam Australia media release, 23 June 2008, at www.reports-and-materials.org/Oxfam-Australia-on-parliament-motion-23-Jun-2008.doc. Back
111
On 26 July 2007, an Alabama jury found the coal corporation,
Drummond, not to be guilty of complicity in the 2001 murder
of three union leaders at one of its mines in Colombia; In Re
Juan Aguas Romero v Drummond Company, Inc., et al., United States
District Court for the Northern District of Alabama, (Case No.
702-CV-00665). Back
112
Appeals pending in the Unocal litigation were dismissed by the
Ninth Circuit Court of Appeals following the settlement of the
case: see John Doe I v Unocal Corp. 403 F.3d 708 (9th
Cir. 2005). For a discussion of the settlement, see Rachel Chambers,
"The Unocal Settlement: Implications for the Developing Law
on Corporate Complicity in Human Rights Abuses" (2005) 13(1)
Human Rights Brief 14. Back
113
Including, Coca-Cola, Chevron, Chiquita, Exxon-Mobil, Nestl
, Shell, Texaco, Yahoo!, and Wal-Mart. For an overview, see Beth
Stephens, et al, International Human Rights Litigation in US Courts
(Leiden: Martinus Nijhoff, 2008 (2nd edn)), pp.309-33. Back
114
Harold Koh, "Separating Myth From Reality About Corporate
Responsibility Litigation", (2004) 7 Journal of International
Economic Law, 263. Koh specifically notes that these conditions
(as to forum and personal jurisdiction; compliance with the Statute
of Limitations; nature of breaches of international law amounting
to complicity in a state crime; and, meeting the substantial burden
of proof linking cause to effect) constitute "very high multiple
barriers to recovery" under the statute; at 269. Back
115
Codes might also be framed and adopted in ways that make them
contractually binding, such as when comprising part of a contractual
agreement between a company and its suppliers. Back
116
In 2002 the Supreme Court of California found in favour of
Kasky (see Kasky v Nike, Inc. 27 Cal.4th 939 (2002)).
Nike appealed to the US Supreme Court, which initially granted
leave to appeal, but later determined not to decide the issue:
Nike, Inc. v Kasky 539 U.S. 654 (2003). In September
2003 the case settled, with Nike agreeing to pay $1.5 million
to the Fair Labor Association. Back
117
Special Representative of the UN Secretary-General on Business
& Human Rights, "State responsibilities to regulate and
adjudicate corporate activities under the United Nations core
human rights treaties" (12 Feb 2007), para.7, at www.humanrights.ch/home/upload/pdf/070410_ruggie_2.pdf. Back
118
Norms on the Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human Rights, UN Doc.E/CN.4/Sub.2/2003/12/Rev.2 (26 August
2003) Back
119
John Ruggie, "Business and Human Rights: Treaty Road Not
Travelled", Ethical Corporation, 6 May 2008, at www.ethicalcorp.com/content.asp?contentid=5887 Back
120
Report of the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and
other business enterprises, John Ruggie, "Protect, Respect
and Remedy: a Framework for Business and Human Rights", UN
Doc.A/HRC/8/5 (7 April 2008), para. 54. Back
121
Ibid, para. 83. Back
122
Ruggie, "Treaty Road Not Travelled", ibid. Back
123
Human Rights Council, Mandate of the Special Representative of
the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, Resolution 8/7 (18 June
2008), para.4(a). Back
124
Lawrence Mitchell, "The Board as a Path Toward Corporate
Social Responsibility" in McBarnet et al (eds.), The New
Corporate Accountability, p.280. Back
125
Ibid, at p.181. Back
126
Attributed to Theodore Roosevelt. Back
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