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Pluralism, global law and human rights: Strengthening corporate accountability for human rights violations

Published online by Cambridge University Press:  28 June 2013

ROBERT MCCORQUODALE*
Affiliation:
British Institute of International and Comparative Law, and University of Nottingham, 17 Russell Square, London WC1B 5JP

Abstract

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Research Article
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Copyright © Cambridge University Press 2013 

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References

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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’).

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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.

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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.

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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.

41 UN Human Rights Council Resolution 8/7, A/HRC/RES/17/4, 16 June 2011. For an indication of some concerns about the SRSG Framework, see McCorquodale, R, ‘Corporate Social Responsibility and Human Rights’ (2009) 87 Journal of Business Ethics 385.

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43 SRSG Report 2008 (n 8) paras 82–103; Guiding Principles 1–10.

44 See McCorquodale, R and Simons, P, ‘Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 Modern Law Review 598.

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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, RNon-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.

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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.

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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).

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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).

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83 SRSG Report 2007 (n 47) para 52. The examples given by the SRSG have been subject to their own criticisms.

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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.

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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.

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105 Ibid 80.

106 Ibid 77.

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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.

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.

116 For a discussion of the role of BHP, an Australian extractive corporation, in Papua New Guinea, see McCorquodale, R, ‘Corporate Social Responsibility and Human Rights’ (2009) 87 Journal of Business Ethics 385, 387.

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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.

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121 The Human Rights Undertaking was entered into by BP in September 2003 and is available at <http://subsites.bp.com/caspian/Human%20Rights%20Undertaking.pdf> accessed 24 May 2013.

122 See, e.g., Darrow, M, Between Light and Shadow, The World Bank, The International Monetary Fund and International Human Rights Law (Hart Publishing, Oxford, 2003).

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123 See, e.g., the approach of the Extractive Industries Transparency Initiative, available at <http://eitransparency.org> accessed 24 May 2013.

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.

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Pluralism, global law and human rights: Strengthening corporate accountability for human rights violations
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Pluralism, global law and human rights: Strengthening corporate accountability for human rights violations
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