Published online by Cambridge University Press: 28 June 2013
1 Gilbert and Sullivan, Utopia Ltd (1893).
2 See Dine, J, The Governance of Corporate Groups (Cambridge University Press, Cambridge, 2000).Google Scholar
3 See, for example, the Corporate Law Project of the Special Representative of the Secretary-General of the United Nations on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG) <http://22.214.171.124/Ruggie-corporate-law-project-Jul-2010.pdf>, accessed 24 May 2013, which reviewed over 40 national jurisdictions and concluded that ‘most [though not all] jurisdictions bestow some form of limited liability and separate legal personality on companies at incorporation’, though they do so in a variety of ways (p 3).
4 See, for example, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) UN Doc E/CN.4/Sub.2/2003/12/Rev.2 and Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, (2003) UN Doc E/ CN.4/Sub.2/2003/38/Rev.2; and OECD, OECD Guidelines for Multinational Enterprises (OECD Publishing, 2011) <http://dx.doi.org/10.1787/9789264115415-en> accessed 24 May 2013, which require, for example, that all adhering state parties (of which there are 42 as at 24 May 2013) implement the complaint procedures against corporations given in the Guidelines.
5 See discussion and critique in text from n 84.
6 For example, International Council on Mining and Metals, ‘Human Rights in the Mining and Metals Industry: Handling and Resolving Local Level Concerns and Grievances’ (ICMM, October 2009) <http://www.icmm.com/page/15816/human-rights-in-the-mining-metals-sector-handling-and-resolving-local-level-concerns-grievances> accessed 24 May 2013.
7 The original mandate was given by the UN Commission on Human Rights (now the UN Human Rights Council) by Resolution 2005/69 of 20 April 2005, UN Doc E/CN.4/2005/L.10/Add.17.
8 The Framework is set out in the SRSG’s first substantive report to the Human Rights Council: Report to the Human Rights Council by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, 7 April 2008, UN Doc A/HRC/8/5 (‘SRSG Report 2008’).
9 United Nations Office of the High Commissioner for Human Rights, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, (United Nations, 2011) UN Doc HR/PUB/11/04 <http://www.ohchr.org/Documents/Publications/GuidingPrinciples BusinessHR_EN.pdf> accessed 24 May 2013 (Guiding Principles).
10 SRSG Report 2008 (n 8) para 3: ‘principled pragmatism’ is ‘an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people’.
11 See the portal created by the Special Representative on the Business and Human Rights Resource Centre website, available at <http://www.business-humanrights.org/Home> accessed 24 May 2013.
12 de Sousa Santos, B, Towards a New Legal Common Sense: Law, Globalization, and Emancipation (Butterworths, London, 2002) 94. See also Schiff Berman, P, Global Legal Pluralism: A Jurisprudence of Law beyond Borders (Cambridge University Press, Cambridge, 2012).
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18 See Oppenheim, L, International Law, vol 1 (Longmans, London, 1905) 341. For a discussion, see ’Aspremont, J D, Formalism and the Sources of International Law (Oxford University Press, Oxford, 2011).
19 Reparation for Injuries, Advisory Opinion, ICJ Reports 1949, 174, 178–9.
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25 See Schiff Berman, P, ‘From International Law to Law and Globalization’ (2005) 43 Columbia Journal of Transnational Law 555–6. On norm-creation in international law, see de Wet, E and Vidmar, J, ‘Conflicts between International Paradigms: Hierarchy versus Systemic Integration’ (2013) 2(2) Global Constitutionalism Special Issue.
26 Meron, T, The Humanization of International Law (Brill Academic, Boston, 2006); Boyle, A and Chinkin, C, The Making of International Law (Oxford University Press, Oxford, 2007). See further McCorquodale, R, ‘The Individual in the International Legal System’ in Evans, M (ed), International Law (3rd edn, Oxford University Press, Oxford, 2010).
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34 Tietje, C and Nowrot, K, ‘Forming the Centre of a Transnational Economic Legal Order? Thoughts on the Current and Future Position of Non-State Actors in WTO Law’ (2004) 5 European Business Organization Law Review 321; Brown, C and Hoekman, B, ‘WTO Dispute Settlement and the Missing Developing Country Case: Engaging the Private Sector’ (2005) 8 Journal of International Economic Law 861.
35 Annex IC to Marrakesh Declaration of 15 April 1994: see <http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm> accessed 24 May 2013.
37 SRSG Report 2008 (n 8) para 9.
38 United Nations Human Rights Council, in extending the mandate of the Special Representative, stated that it ‘recognizes the need to operationalize this framework’, HRC Resolution 8/7 (2008), Preamble.
39 Report to the Human Rights Council by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, 22 April 2009, UN Doc A/HRC/11/13 (SRSG Report 2009); and Report to the Human Rights Council by the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, 9 April 2010, UN Doc A/HRC/14/27 (SRSG Report 2010).
40 Guiding Principles (n 9). There are also other documents created, such as on responsible contracts (<http://www.ohchr.org/Documents/Issues/Business/A.HRC.17.31.Add.3.pdf>) and Voluntary Principles on Security and Human Rights <http://www.voluntaryprinciples.org/files/Implementation_Guidance_Tools.pdf> both accessed 24 May 2013.
42 SRSG Report 2010 (n 39) para 90; Guiding Principles 26–30 cover state-based judicial mechanisms, state-based non-judicial mechanisms, and non-state-based grievance mechanisms respectively. Guiding Principle 31 elaborates on the criteria necessary for effective grievance mechanisms, including legitimacy, accessibility, predictability, equitability, transparency, rights-compatibility, being a source of continuous learning, and being a basis for engagement and dialogue.
43 SRSG Report 2008 (n 8) paras 82–103; Guiding Principles 1–10.
45 See in particular Guiding Principles 1–6.
46 SRSG Report 2008 (n 8) paras 54–61.
47 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises: Mapping International Standards of Responsibility and Accountability for Corporate Acts, 2007, UN Doc A/HRC/4/35 (SRSG Report 2007) para 6.
48 This is due to the fact that international human rights law imposes the legal obligations to protect human rights on states alone, and has not yet developed so as to regulate directly the activities of corporations (or other non-state actors); see McCorquodale, R ‘Non-State Actors and International Human Rights Law’ in Joseph, S and McBeth, A (eds), Research Handbook on International Human Rights Law (Edward Elgar, Cheltenham, 2010) 97.Google Scholar
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50 See SRSG Report 2009 (n 39) para 46.
51 See SRSG Report 2010 (n 39) para 55.
52 ‘Social expectation’ is briefly referred to in the SRSG Report 2007 (n 47). See Morgera, E, Corporate Accountability in International Environmental Law (2009) 18: ‘[T]he concept of corporate responsibility is based on the expectation that private companies should no longer base their actions on the needs of their shareholders alone, but rather have obligations towards the society in which the company operates’ [emphasis in the original].CrossRefGoogle Scholar
53 Guiding Principle 18(b). Guiding Principle 20(b) requires corporations to ‘draw on feedback from both internal and external sources, including affected stakeholders’ and to communicate to stakeholders and others affected (Guiding Principle 21). In relation to requirements for the free prior and informed consent of indigenous peoples, see IFC, ‘Performance Standard 7: Indigenous Peoples, International Finance Corporation’ (April 30 2006).
54 Guiding Principle 29. These grievance mechanisms should be – according to Guiding Principle 31 – legitimate, accessible, predictable, equitable, transparent, rights-compatible and a source of continuous learning, and based on engagement and dialogue.
56 See, e.g., the study of Indian groups reported in K De Feyter, ibid, 18–20. This human rights language tends to add to the local group’s own language for the claim rather than to displace it: Engle Merry, S, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago, Chicago, 2006).Google Scholar
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58 See <http://www.shell.com/global/environment-society/society/nigeria/ogoni-land.html> accessed 24 May 2013.
59 Aurelio Cal and the Maya Village of Santa Cruz v Attorney General of Belize; and Manuel Coy and Maya Village of Conejo v Attorney General of Belize, (Consolidated) Claim Nos 171 and 172, 2007, Supreme Court of Belize (18 October 2007).
60 Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) IACtHR Series C 79.
61 Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication No 155/96 (2001), African Commission on Human and Peoples’ Rights.
62 See the various examples given in McBarnett, D, Voiculescu, A and Campbell, T (eds), The New Corporate Accountability (Cambridge University Press, Cambridge, 2007).Google Scholar
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65 Kasky v Nike, Inc., 45 P 3d 243 (Cal. 2002).
67 R Shamir, ‘Corporate Social Responsibility: A Case of Hegemony and Counter-Hegemony’ in B de Sousa Santos and C A Rodríguez-Garavito (n 63). Make Trade Fair, ‘Oxfam and Allies Persuade Procter & Gamble to Offer Fair Trade Coffee’ <http://www.maketradefair.com/en/index.php?file=12092003132827.htm> accessed 20 June 2012; and T Shifrin, ‘Oxfam Launches Fair Trade Coffee Chain’, The Guardian, 13 May 2004 <http://www.guardian.co.uk/business/2004/may/13/fairtrade.internationalaidanddevelopment> accessed 24 May 2013.
68 Republic of South Africa, Medicines and Related Substances Control Amendment Act, 1997, <http://www.doh.gov.za/docs/legislation/acts/1997/act90.pdf> accessed 24 May 2013; and W Fisher and C P Rigamonti, ‘The South Africa AIDS Controversy A Case Study in Patent Law and Policy’, Harvard Law School, 10 February 2005, available at <http://cyber.law.harvard.edu/people/tfisher/South%20Africa.pdf> accessed 24 May 2013.
69 Shamir (n 67), IRIN, ‘Activists Continue HIV/AIDS Protests’, 22 April, 2003, <http://www.irinnews.org/Report/34178/SOUTH-AFRICA-Activists-continue-HIV-AIDS-protests> accessed 24 May 2013; and M Fernandez, ‘S. Africa Protestors Decry AIDS Response Embassy Rally is Part of a Global Effort’, The Washington Post, 25 April 2003, B7, <http://www.healthgap.org/press_releases/a03/042403_WPost_HGAP_RSA_emb_demo.html> accessed 20 June 2012.
70 Adopted on 14 November 2001: See <http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm> accessed 24 May 2013.
71 United Nations Declaration on the Rights of Indigenous Peoples, General Assembly Resolution 13, (A/RES/61/295) September 2007.
72 A comprehensive account of the movement is contained in Morgan, R, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights (Ashgate, Farnham, 2011). See also Lâm, MC, At the Edge of the State: Indigenous Peoples and Self-Determination (Transnational Publishers, Ardsley, NY, 2000).
73 Adopted as Bolivian National Law 3760 on the Rights of Indigenous Peoples.
74 Aurelio Cal and the Maya Village of Santa Cruz (n 59).
75 Case of the Saramaka People v Suriname (Series C, No 172) (2007) IACHR 5 (28 November 2007), para 131.
76 Minority Rights Group International and CEMIRIDE (on behalf of the Endorois Community) v Kenya, Communication 276/2003. For other examples, see Baldwin, C and Morel, C, ‘Rights of Indigenous Peoples in Litigation’ in Allen, S and Xanthaki, A (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oxford, 2011).Google Scholar
77 For a more detailed discussion of the international community see McCorquodale, R, ‘International Community and State Sovereignty: An Uneasy Symbiotic Relationship’ in Warbrick, C and Tierney, S (eds), Towards an ‘International Legal Community’? The Sovereignty of States and the Sovereignty of International Law (British Institute of International and Comparative Law, 2006) 241.Google Scholar
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79 Shamir (n 67). He uses the acronyms GoNGOs (NGOs established or indirectly controlled by governments) and MaNGOs (NGOs established or indirectly governed by market players).
80 See Kamphuis, C, ‘Foreign Investment and the Privatization of Coercion: A Case Study of the Forza Security Company in Peru’ (2012) 37 Brooklyn Journal of International Law 529, 563.Google Scholar
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82 See, e.g., the International Chamber of Commerce, Joint Views of the International Chamber of Commerce and the International Organisation of Employers to the 8th session of the Human Rights Council, March 2009, available at <http://www.ioe-emp.org> accessed 24 May 2013.
83 SRSG Report 2007 (n 47) para 52. The examples given by the SRSG have been subject to their own criticisms.
85 Ward, H, ‘Corporate Social Responsibility in Law and Policy’ in Boeger, N, Murray, R and Villiers, C (eds), Perspectives on Corporate Social Responsibility (Edward Elgar, Cheltenham, 2008) 8, 10. See, more generally, D McBarnett, A Voiculescu and T Campbell (n 62).Google Scholar
86 The preamble to each of the International Covenants on Economic, Social and Cultural Rights 1966 and on Civil and Political Rights 1966 proclaims: ‘human rights derive from the inherent dignity of the human person’.
87 See, for example, Haines, F, MacDonald, K and Balaton-Chrimes, S, ‘Contextualising the Business Responsibility to Respect: How Much is Lost in Translation?’ in Mares, R (ed), The UN Guiding Principles on Human Rights: Foundations and Implementation (Martinus Nijhoff, Leiden, 2012).Google Scholar
91 SRSG Report 2007 (n 47) para 61. Of course, corporations can draft their codes of conduct to match the reality of how they do business, and so the codes can provide for lower standards than the international standards: see D McBarnett, ‘Corporate Social Responsibility beyond the Law, through the Law, for Law: The New Corporate Accountability’ in D McBarnett, A Voiculescu and T Campbell (n 62) 9.
92 Apple Press Info, ‘Fair Labor Association Begins Inspections of Foxconn’, 13 February 2012, <http://www.apple.com/pr/library/2012/02/13Fair-Labor-Association-Begins-Inspections-of-Foxconn.html> accessed 24 May 2013. It is interesting to note that Apple chose to join the FLA rather than the EICC, perhaps suggesting that the normative weight of the former organization is stronger than that of the latter group.
93 Maquila Solidarity Network, ‘Levi’s drops from 1st to 5th place in ethical ranking’, 29 January 2007, <http://en.maquilasolidarity.org/node/416?SESS89c5db41a82abcd7da7c9ac60e04ca5f=mrdvpcufw> accessed 24 May 2013. This impacted negatively on external perceptions of Levi Strauss plc as an ethical corporation.
94 The Equator Principles is a credit risk management framework adopted by financial institutions for determining, assessing and managing environmental and social risk, primarily intended to provide a minimum standard for due diligence to support responsible risk decision-making, <http://www.equator-principles.com> accessed 24 May 2013. The third version of the Equator Principles was approved on 14 May 2013 and includes human rights impact assessment requirements.
95 N Prins, ‘Other People’s Money’ New Press, 2006. Private banks in Hong Kong have, allegedly, been influential in passing legislation favourable to them, prompting a spokesman from the monetary authority to assure the public that investor protection would not be compromised by the new rules: Davies, P J, ‘HK Regulator Bows to Private Banking Demand’, Financial Times, 13 June 2012.Google Scholar
96 Global Witness, ‘BP Makes Opaque Payments for Angola Oil Block as Petro-Lobby Seeks Weak Transparency Rules’, 21 February 2012, <http://www.globalwitness.org/library/bp-makes-opaque-payments-angola-oil-block-petro-lobby-seeks-weak-transparency-rules> accessed 24 May 2013.
97 See the Nike companies’ codes of conduct <http://nikeinc.com/pages/compliance>; and its Licensee/Agent Sustainable Manufacturing and Sourcing Playbook <http://nikeinclicensees.com/being-a-licensee/program-fundamentals/> both accessed 24 May 2013.
98 This is not always the case, as governments can be the entities sourcing the goods and services, and a number of local and national governments have ethical procurement and living wage regulations.
99 Arthurs, H, ‘Private Ordering and Workers’ Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation’ in Cragg, W (ed), Ethics Codes, Corporations, and the Challenge of Globalization (Edward Elgar, Cheltenham, 2005), who points out that state regulation is a more democratic paradigm of governance, whereas self-regulation allows companies to prioritize themselves in relation to other stakeholders.Google Scholar
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101 SRSG Report 2007 (n 47) para 62.
102 Arthurs (n 99) 196.
103 P Schiff Berman (n 12). See also Steinhardt, R, ‘Soft Law, Hard Markets: Competitive Self-Interest and the Emergence of Human Rights Responsibilities for Multinational Corporations’ (2007) 33 Brooklyn Journal of International Law 933.Google Scholar
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105 Ibid 80.
106 Ibid 77.
107 Arthurs (n 99) 194.
109 See also the analysis in T Isiksel, ‘Considering the Subjects of Global Legal Pluralism’ in (2013) 2(2) Global Constitutionalism Special Issue.
110 UNCTAD, ‘The CTC Reporter’, No 19, Spring 1985, <http://unctc.unctad.org/data/ctcrep19a.pdf> accessed 24 May 2013.
111 Fair Work Amendment (Textile, Clothing and Footwear Industry) Act (Commonwealth of Australia) 2012, <http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s861> accessed 24 May 2013.
112 OECD (n 4).
113 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, <http://www.ilo.org/wcmsp5/groups/public/@ed_emp/@emp_ent/documents/publication/wcms_101234.pdf> accessed 24 May 2013.
114 IFC Performance Standards 2012, <http://www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability/Sustainability+Framework/Sustainability+Framework+-+2012/Performance+Standards+and+Guidance+Notes+2012> accessed 24 May 2013.
115 P Feeney, Rights and Accountability in Development, Making Companies Accountable: An NGO Report on Implementation of the OECD Guidelines for Multinational Enterprises by National Contact Points, October 2002, <http://www.oecd.org/dataoecd/16/37/2965489.pdf> accessed 24 May 2013.
117 Kamphuis (n 80) 576.
119 The consortium members include Amerada Hess, AzBTC, BP, Chevron, ConocoPhillips, Eni, INPEX, Itochu, Statoil, Total and TPAO.
120 Thus, for example, in its Host Government Agreement for the Baku pipeline, the Turkish government is prevented from requiring any consortium members to comply with labour standards ‘that i) exceed those international labour standards or practices which are customary in international petroleum transportation projects, or ii) are contrary to the goal of promoting an efficient and motivated workforce’, see Amnesty International, Human Rights on The Line: The Baku-Tbilisi-Ceyhan Pipeline Project, May 2003, available at <http://www.amnesty.org.uk/news_details.asp?NewsID=14542> accessed 24 May 2013. See also Lawson-Remer, T E, ‘A Role for the International Finance Corporation in Integrating Environmental and Human Rights Standards into Core Project Covenants: Case Study of the Baku-Tbilisi-Ceyhan Oil Pipeline Project’ in De Schutter, O (ed), Transnational Corporations and Human Rights (Hart Publishing, Oxford, 2006) 393, 410–11.Google Scholar
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124 The SRSG has highlighted the role of stabilization clauses as a potential vehicle for corporate influence over state legislation and policy decision-making: see A. Shemberg, ‘Stabilization Clauses and Human Rights: A Research Project Conducted for IFC and the United Nations Special Representative to the Secretary General on Business and Human Rights’ (IFC, 11 March 2008) <http://www1.ifc.org/wps/wcm/connect/9feb5b00488555eab8c4fa6a6515bb18/Stabilization%2BPaper.pdf?MOD=AJPERES&CACHEID=9feb5b00488555eab8c4fa6a6515bb18> accessed 24 May 2013.
125 SRSG Report 2007 (n 47) para 56.
126 N Krisch, Beyond Constitutionalism (n 16) 88. This does not imply that the processes are necessarily democratic.
127 See Diva, S, Regulating Corporate Human Rights Violations: Humanizing Business (Routledge, New York, 2012), who offers an ‘integrated theory of regulation’, where there are regulatory strategies at the institutional (corporation), national (state) and international (UN) levels and which need to be coordinated.Google Scholar