Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by Professor David Kinley, Chair in Human Rights Law, University of Sydney


    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.


  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.


  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.


  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 Back

91 Back

92 Back

93 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 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

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. 

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

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 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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2009
Prepared 16 December 2009