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Taming the Leviathans: Multinational Enterprises and Human Rights

Published online by Cambridge University Press:  21 May 2009

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Multinational Enterprises (MNEs) are very powerful entities in the current world order. Indeed, it is trite to note that the power of some MNEs outstrips the power of certain nation-states. In view of their vast economic power and ubiquitous presence, and consequent intrusion into many aspects of people's lives, it is not surprising that MNE activity can and does occasionally impact detrimentally on the enjoyment of internationally recognised human rights.

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Copyright © T.M.C. Asser Press 1999

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References

2. MNEs may be defined as ‘a cluster of corporations or unincorporated bodies of diverse nationality joined together by ties of common ownership and responsive to a common management strategy’; this definition has been adapted from D. Vagts, ‘The Multinational Enterprise: A New Challenge for Transnational Law’, 83 Harvard Law Review (1970) p. 739 at p. 740, quoting Vernon, ‘Economic Sovereignty at Bay’, 47 Foreign Affairs (1968) p. 110 at 114. It is conceded that numerous definitions for MNEs, or alternatively, ‘Multinational’ or ‘Transnational’ Corporations (the latter terms do not however cover unincorporated entities), have been put forward by economists and international organisations; see generally Muchlinski, P., Multinational Enterprises and the Law (Oxford, Blackwell 1995) pp. 1215. It is contended that the definition used herein accords generally with the most common definitions.Google Scholar

3. See C. Grossman and D. Bradlow, ‘Are We being Propelled towards a People-Centered Transnational Legal Order?’, 9 American University Journal of International Law and Policy (1993) p. 1 at pp. 8–9; D. Cassel, ‘International Security in the Post Cold-War Era: Can International Law Truly Effect Global Political and Economic Stability? Corporate Initiatives: A Second Human Rights Revolution?’, 19 Fordham International Law Journal (1996) p. 1963 at pp. 1963–1979; F. Johns, ‘The Invisibility of the Transnational Corporation: An Analysis of International Law and Legal Theory’, 19 Melbourne University Law Review (1994) p. 893 at p. 904; Muchlinski, op. cit. n. 2, at pp. 6–7.

4. See the seminal article by M. Friedman, ‘The Social Responsibility of Business is to Increase Profits’, New York Times (Magazine), 13 September 1970; see also M. Lippman, ‘Transnational Corporations and Repressive Regimes: The Ethical Dilemma’, 15 California Western International Law Journal (1985) p. 542 at pp. 549–550.

5. Hughes, A., ‘Is Business Everybody's Business?’, 20 (2)Alternative Law Journal (1995) p. 71 at p. 72.Google Scholar

6. For example, no human rights clauses exist in the GATT/WTO. However, the World Bank has recently taken a formal institutional interest in human rights, see World Bank, Governance: The World's Experience (Washington, D.C., World Bank 1994); P. Armstrong, ‘Human Rights and Multilateral Development Banks: Governance Concerns in Decision Making, 88 ASIL Proceedings (1994) p. 277.Google Scholar

7. See generally, ‘Human Rights: Ethical Shopping’, The Economist, 3 June 1995. Labour rights are protected under a variety of international treaty provisions, such as Art. 8 of the International Covenant on Civil and Political Rights (ICCPR), which prohibits slavery and forced labour; see generally, accompanying text at nn. 96–122.

8. One's right to health is guaranteed under the International Covenant on Economic Social and Cultural Rights (ICESCR), Art. 12; the right to life is protected under ICCPR, Art 6.

9. Minority rights are protected under the ICCPR, Art. 27, and self-determination is protected under Art. 1 of both Covenants. See, on MNEs and self-determination, Johns, loc. cit. n. 3, at pp. 907–908.

10. The rights to food and an adequate standard of living are guaranteed in ICESCR, Art. 11. See generally Eaton, J., ‘The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment’, 15 Boston University International Law Journal (1997) p. 261 at pp. 264–271,Google Scholar and Skogly, S., ‘Complexities in Human Rights Protection: Actors and Rights Involved in the Ogoni Conflict in Nigeria’, 15 Netherlands Quarterly of Human Rights (1997) p. 47.CrossRefGoogle Scholar

11. An example of inappropriate marketing of consumables was the marketing by Nestlé of unsuitable baby-milk products in Africa, which ultimately led to the adoption by the World Health Organisation (WHO) of an International Code of Marketing of Breast-Milk Substitutes 1981; see Muchlinski, op. cit. n. 2, at p. 7, fn. 19.

12. See generally on human rights and tobacco marketing, Wike, J., ‘The Marlboro Man in Asia: US Tobacco and Human Rights’, 29 Vanderbilt Journal of Transnational Law (1996) p. 330.Google Scholar

13. Torture is prohibited by Art. 7 ICCPR and the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). Security of the person is protected by Art. 9 ICCPR. See ‘BP hands “tarred” in Pipeline Dirty War’, Guardian, 17 October 1998, p. 20, detailing allegations of the activities of security forces hired and armed by BP to protect its oil installations in Colombia. See, regarding allegations about Shell's security arrangements in Nigeria, Cassel, loc. cit. n. 3, at pp. 1965–66.

14. Democratic rights, in the form of the right to equal participation in public affairs, are protected under Art. 25 ICCPR. See generally, Franck, T., ‘The Emerging Right to Democratic Governance’, 86 AJIL (1992) p. 52.CrossRefGoogle Scholar

15. See 53 UN ESCOR (1822nd mtg) 19, 22, UN Doc. E/SR, 1822 (1972).

16. See Spiro, P J., ‘New Global Potentates: Non-governmental Organisations and the “Unregulated” Marketplace’, 18 Cardozo Law Review (1996) p. 957 at pp. 959–960; ‘Human Rights: Ethical Shopping’, The Economist, 3 June 1995; ‘The Fun of Being a Multinational’, The Economist, 20 July 1996.Google Scholar

17. On self-regulatory codes, see Orentlicher, D. and Gelatt, T., ‘Public Law, Private Actors: The Impact of Human Rights on Business Investors in China’, 14 Journal of International Law and Business (1993) p. 66, Appendices at pp. 125–128, printing the internal codes of Levi-Strauss, Reebok International Ltd., and Phillips-van Heusen.Google Scholar See Johnson, J., ‘Public-Private-Public Convergence: How the Private Actor can shape Public International Labour Standards’, 24 Brooklyn Journal of International Law (1998) p. 291 at pp. 299–302, on the Apparel Industry Partnership Initiative in the United States.Google Scholar

18. See European Parliament Resolution on ‘EU Standards for European Enterprises: Towards a European Code of Conduct’, 14 January 1999, para. 1.

19. See ‘Maastricht Guidelines on Violations of Economic, Social And Cultural Rights’, 20 HRQ (1998) p. 691, para. 6, confirming that these three duties exist with respect to all human rights; see also Shue, H., Basic Rights: Subsistence, Affluence and United States Foreign Policy (New Jersey, Princeton University Press 1980) p. 57.Google Scholar

20. See, e.g., CAT, Art. 4; International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), Art. 2(d); Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Art. 2(e); Convention on the Rights of the Child (CRC), Arts. 2(2), 3(3), 19(1).

21. Art. 2(1) ICCPR requires states to ‘ensure’ ICCPR rights, implying a positive duty to prevent human rights abuse by private bodies; see M. Nowak, UN Covenant on Civil and Political Rights (Kehl, N.P. Engel 1993) pp. 36–38. See, with respect to the ICESCR, ‘Maastricht Guidelines’, supra n. 19, paras. 6, 15(j) and 18.

22. Nowak, op. cit. n. 21, at pp. XVIII and 37–38.

23. See generally Clapham, A., Human Rights and Private Bodies (Oxford, Clarendon Press 1993) ch.4.Google Scholar

24. The right to form trade unions is protected by ICCPR Art. 22, ICESCR Art. 8, and the Convention concerning Freedom of Association and Protection of the Right to Organise, ILO Convention 87 (4 July 1950).

25. The Human Rights Committee's General Comment on Art. 6 (the right to life) confirms that this guarantee has a positive aspect, in that persons should be protected from unnecessary threats to their life; see General Comment 6, para. 5, 1 (2) International Human Rights Reports (1994) p. 5.

26. Whilst most MNE operations occur within the developed world, between one-third and two-fifths of all foreign direct investment occurs in the developing world, see European Parliament Resolution, supra n. 18, Explanatory Memorandum on ‘Globalisation, Foreign Investment and Development’.

27. Stone, K. van Wezel, ‘Labor and the Global Economy: Four Approaches to Transnational Labour Regulation’, 16 Michigan Journal of International Law (1995) p. 987 at pp. 990–994; Grossman and Bradlow, loc. cit n. 3, at p. 8; Lippman, loc. cit. n. 4, at p. 545.Google Scholar

28. See R. Gribben, ‘Rolls-Royce will move if Britain adopts EU Labour Law’, Daily Telegraph, 25 November 1998. See Muchlinski, op. cit. n. 2, at p. 474, for comment on the UK's initial failure to sign up to the Social Provisions of the Maastricht Treaty of the European Union.

29. Lippman, loc. cit. n. 4, at p. 545. See also Donaldson, T., ‘Moral Minimums for Multinationals’, in Donaldson, T. and Werhane, P., eds., Ethical Issues in Business: A Philosophical Approach (New Jersey, Prentice Hall 1996) p. 99.Google Scholar

30. See, e.g., World Development Movement, ‘A Law unto Themselves - Holding Multinationals to Account: Discussion Paper’, September 1998, p. 4.

31. See also ‘Worldbeaters Inc.’, The Economist, 18 January 1998.

32. Muchlinski, op. cit. n. 2, at p. 124.

33. See Barcelona Traction Light and Power Co. Ltd. case, ICJ Rep. (1970) p. 3, para. 70.

34. See Eaton, loc. cit. n. 10, at p. 274, fh. 76, citing Fowler, R., ‘International Environmental Standards for Transnational Corporations’, 25 Environmental Law (1995) p. 1 at p. 2, in stating that ninety per cent of the world's MNEs originate in developed nations.Google Scholar

35. See, e.g., Eaton, loc. cit. n. 10, at p. 278, fn. 88. However, complex jurisdictional issues do arise with regard to home state jurisdiction over foreign subsidiaries; states have very different rules regarding the existence of jurisdiction in such situations. These issues are beyond the scope of this paper. See generally, Muchlinski, op. cit. n. 2, at pp. 126–171.

36. Eaton, loc. cit. n. 10, at p. 274.

37. The following examples do not describe the entire regime for extraterritorial MNE regulation in the UK or the USA. They merely provide snapshots of how such regulation can occur.

38. See Spiliada Maritime Corp v. Cansulex Ltd., [1987] AC 460, and Piper Oil v.Reyno, 454 US 235 (1981). No equivalent doctrine exists in European civil law jurisdictions, Muchlinski, op. cit. n. 2, at p. 144.

39. In re Union Carbide Corp. Gas Plant Disaster (Bhopal case), 809 F. 2d 195; see also Kapur, R., ‘From Human Tragedy to Human Rights: Multinational Corporate Accountability for Human Rights Violations’, 10 Boston College Third World Law Journal (1990) p. 1 at p. 3.Google Scholar

40. Unreported judgment of the Court of Appeal (UK), 30 July 1998.

41. The ramifications of this case are unconfirmed as the substantive elements of the case have not yet been decided.

42. Cape's own documents reveal that asbestos levels in its South African mines were much higher than would have been allowed in the UK; see ‘South African Factory Staff sue British Firms’, The Independent, 1 April 1997. See also Ngcobo v. Thor Chemicals, unreported decision of the Court of Appeal of 9 October 1995, where the Court also refused to strike out the case for forum non conveniens. In Thor, the plaintiffs alleged that the UK parent corporation had knowingly exported unsafe work practices to South Africa, where the laws were less onerous. Thor eventually settled the case for £1.3 million, see The Independent, 12 April 1997.

43. [1997] 3 WLR 376

44. Idem, at p. 388.

45. Other relevant statutes with extraterritorial scope include the Foreign Corrupt Practices Act 1976, which prohibits American companies from bribing foreign officials, and the Torture Victim Protection Act 1992.

46. 963 F. Supp. 880; 1997 U.S. Dist LEXIS 5094

47. D. Benceviga, ‘Suits Attempt to Extend Liability to Corporations’, The New York Law Journal, 4 September 1997.

48. Filartiga v. Peña-Irala, 630 F. 2d 876 (1980, US Court of Appeals, 2nd Cirt).

49. Kadic v. Karadzic, 70 F. 3d 232 (2nd Cirt, 1995)

50. W. Aceves, ‘Note: Doe v Unocal’, 92 AJIL (1998) p. 309 at pp. 312–313.

51. Benceviga, loc. cit. n. 47.

52. Johns, loc. cit. n. 3, at pp. 895–896.

53. See Cassel, loc. cit. n. 3, at p. 1975; Eaton, loc. cit n. 10, at p. 276; Spiro, P., ‘New Players on the International Scene’, 2 Hofstra Law and Policy Symposium (1997) p. 19 at p. 30.Google Scholar

54. Johns, loc. cit. n. 3, at p. 898.

55. See, ‘Draft United Nations Code of Conduct on Transnational Corporations’, Annex to UN Doc. E/1990/94, for the latest Draft Code (hereafter: UN Draft Code).

56. J. Braithwaite, ‘Regulation of Transnational Corporations: Towards a Code of Conduct for Australian Businesses Operating Offshore’, Discussion Paper for the ICJ (Victorian Branch), January 1997, p. 21.

57. Reprinted in 15 ILM (1976) p. 967 (hereafter OECD Guidelines).

58. J. Karl (OECD), ‘The OECD Guidelines for Multinational Enterprises’ (unpublished paper for ‘The Importance of Human Rights in International Business’, University of Exeter, September 1998). See generally on the Guidelines, Muchlinski, op. cit. n. 2, at pp. 578–592.

59. Policies with regard to these matters can have a large impact on human rights. However, the human rights implications of these matters are not expressly addressed in the OECD Guidelines.

60. Reprinted in 17 ILM (1978) p. 422 (hereafter ILO Declaration).

61. See Muchlinski, op. cit. n. 2, at pp. 460–490.

62. Idem, p. 458.

63. Idem, p. 459.

64. Idem, p. 460.

65. It is beyond the scope of this article, and possibly premature, to discuss the ideal modalities of such legislation, such as types of remedies and rules of standing.

66. See Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Bribery Convention), 17 December 1997 (text available at http://www.oecd.org), Arts. 2 and 4. The OECD Bribery Convention entered into force on 15 February 1999.

67. See Rome Statute of the International Criminal Court, adopted 17 July 1998, UN Doc. A/CONF.183/C.1/L.76, Art. 12.

68. The type of jurisdiction might vary according to the human rights abuse at issue.

69. It is beyond the scope of this paper to discuss the relative merits of the numerous potential models for international direct regulation of MNEs.

70. Indeed, the UN Sub-Commission has instigated a study into the relationship between human rights and MNEs; see UN Sub-Commission Resolution 1997/11.

71. Donaldson, op. cit. n. 29, at p. 97.

72. See, e.g., Alston, P., ‘The Myopia of the Handmaidens: International Lawyers and Globalisation’, 8 European Journal of International Law (1997) p. 435; Spiro, loc. cit. n. 53; Grossman and Bradlow, loc. cit. n. 3, especially at pp. 6–10 and 22–25.CrossRefGoogle Scholar

73. Alston, loc. cit n. 72, at pp. 440–448.

74. Note, in this regard, that the Lord Chancellor's reaction to the Connelly decision has been to suggest legislation to reverse its effects. Lord Laing has suggested that Connelly paves the way for litigation which has no connection with the UK. See F. Gibb, ‘How Britain can stop Exploitation Overseas’, The Times, 10 November 1998, p. 39.

75. Davies, M., ‘Just (Don't) Do It: Ethics and International Trade’, 21 Melbourne University Law Review (1997) p. 601 at p. 619.Google Scholar

76. See accompanying text at n. S3; S. Skogly (University of Lancaster), ‘Economic and Social Human Rights, Private Actors, and International Obligations’ (unpublished paper for ‘The Importance of Human Rights in International Business’, University of Exeter, September 1998), pp. 8, 13.

77. R. Mayne (Oxfam), ‘Regulating TNCs: The Role of Voluntary and Governmental Approaches’ (unpublished paper for ‘The Importance of Human Rights in International Business’, University of Exeter, September 1998), p. 3

78. Grossman and Bradlow, loc. cit n. 3, at p. 20; J. Spero, ‘Human Rights and our International Economic Interests’, 88 ASIL Proceedings (1994) p. 274 at p. 277; Orentlicher and Gelatt, loc. cit. n. 17, at p. 97; Skogly, supra n. 76, at p. 13.

79. See Frey, B., ‘The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights’, 6 Minnesota Journal of Global Trade (1997) p. 153 at pp. 180–187; Cassel, loc. cit n. 3, at pp. 1980–1984.Google Scholar

80. Orentlicher and Gelatt, loc. cit n. 17, at p. 102.

81. See idem, pp. 98–99, on the arguments in favour of constructive engagement, and pp. 99–102 for counter-arguments.

82. Davies, loc. cit. n. 75, at p. 619.

83. The Draft UN Code contains such a provision in para. 15, specifically calling on MNEs to refrain from activities which supported or sustained the (former) minority racist regime in South Africa.

84. Davies, loc. cit. n. 75, at p. 614, notes that the allegations against sports shoe manufacturers such as Nike have generally concerned their business partners’ labour practices.

85. Idem, p.615.

86. Idem, pp. 615–620.

87. Sex discrimination in the area of employment is contrary to both Covenants; see ICCPR Art. 26, ICESCR Art. 2(2); see also CEDAW and ILO Declaration, paras. 21–23.

88. Such a defence would parallel the ‘foreign sovereign compulsion’ exemption applied by the US Department of Justice in respect of US antitrust legislation, Muchlinski, op. cit. n. 2, at p. 132.

89. Frey, loc. cit. n. 79, at p. 175.

90. Ibid.

91. The ‘McBride Principles’ were a similar initiative adopted by US companies to combat the legacy of religious discrimination in Northern Ireland, see idem, pp. 175–176.

92. S. Livingstone, ‘Economic Strategies for the Enforcement of Human Rights’, in A. Hegarty and S. Leonard, eds., A Human Rights Agenda for the Twenty-First Century’ (Cavendish, to be published in 1999), cites ‘partiality’ as one of the major criticisms of the use of trade sanctions to combat human rights abuse.

93. See Davies, loc. cit. n. 75, at pp. 605–607; note that under Art. 13 of the UN Draft Code, MNEs are required to ‘respect the social and cultural objectives, values and traditions or the countries in which they operate.’

94. See, e.g., Livingstone, op. cit. n. 92.

95. Frey, loc. cit. n. 79, at pp. 160–161; European Parliament Resolution, supra n. 18, para. 12.

96. Cappuyns, E., ‘Linking Labor Standards and Trade Sanctions: An Analysis of their Current Relationship’, 36 Colombia Journal of Transnational Law (1998) p. 659 at p. 662; Johnson, loc. cit. n. 17, at p. 309.Google Scholar

97. The ‘core’ labour rights are reaffirmed in the ILO Declaration on Fundamental Principles and Right at Work and its Follow-up, adopted 18 June 1998, Art. 2.

98. See, e.g., Arts. 8 (freedom from slavery and forced labour), 22 (freedom of association), 24 (children's rights), and 26 (freedom from discrimination) ICCPR; see also Arts. 2 (freedom from discrimination) and 8 (trade union rights) ICESCR.

99. The OECD Guidelines also include provisions relating to ‘employment and industrial relations’ within OECD nations. Generally, MNEs should observe labour standards that are not less favourable than those observed by comparable employers in the host state. The OECD Guidelines do not however address deficiencies in host state law, see Muchlinski, op. cit. n. 2, at p. 477.

100. See generally, Cappuyns, loc. cit. n. 96; also see Muchlinski, op. cit. n. 2, at p. 461; Johnson, loc. cit. n. 17, at pp. 312–318.

101. ILO Declaration on Fundamental Principles and Right at Work and its Follow-up, adopted 18 June 1998, Art. 5.

102. Freedom from slavery can even be classified as a customary rights, see American Law Institute, Restatement (Third) of Foreign Relations Law, para. 702.

103. See ILO Declaration, para. 37; see also accompanying text at nn. 137–138.

104. K. Vossler Champion, ‘Who Pays for Free Trade? The Dilemma of Free Trade and International Labour Standards’, 22 North Carolina Journal of International Law and Commerce (1996) p. 181 at p. 219.

105. See European Parliament Resolution, supra n. 18, Explanatory Memorandum on ‘Towards a European Monitoring Platform’, point 2.

106. The ILO Declaration addresses some of its ‘freedom of association’ duties to host states rather than MNEs, at paras. 44, 45 and 47.

107. The ILO Declaration states that MNEs should pay ‘the best possible wages, benefits and conditions of work, within the framework of government policies’; wages ‘should be adequate enough to satisfy basic needs of the workers and their families’, at paras. 33–34.

108. See Johnson, loc. cit. n. 17, at p. 330, on ‘the tremendous profit margins’ of MNEs.

109. Cassel, loc. cit. n. 3, at p. 1982.

110. Johnson, loc. cit. n. 17, at p. 334, notes that host governments would not support such a market initiative unless there was ‘the broadest implementation possible among States, and equitable treatment to all impacted by the implemented labour standards.’

111. Idem, pp. 328–329, and 335, fn. 209.

112. Idem, pp. 336–337, citing R. Nurkse, ‘Some International Aspects of the Problem of Economic Development, in R. Kanth, ed., Paradigms in Economic Development (Armonk, N.Y., Sharpe 1994) pp. 47–50.

113. Idem, p. 337; also see p. 333, fn. 198.

114. In June 1994, the International Confederation of Free Trade Unions ICFTU launched a campaign to abolish child labour; see ‘Human Rights: Ethical Shopping’, The Economist, 3 June 1995.

115. ‘Human Rights: Ethical Shopping’, The Economist, 3 June 1995, reporting on the observations of Caroline Lequesne of Oxfam after visiting Bangladesh.

116. See also Mayer, A.E., ‘Law and Ethics in Emerging Markets: An Introduction’, 18 University of Pennsylvania Journal of International Economic Law (1997) p. 1153 at p. 1160.Google Scholar

117. Convention concerning Minimum Age for Admission to Employment, 26 June 1973. As of November 1998, only 67 states had ratified this Convention, and relatively few of these States Parties are from the developing world. However, it must be noted that almost a quarter of these ratifications (16) have occurred in the last two years, so it may be that the Convention is finally acquiring international acceptability.

118. Creighton, B., ‘Combating Child Labour. The Role of International Labour Standards’, 18 Comparative Labour Law (1997) p. 362 at pp. 386–392.Google Scholar

119. See Resolution concerning the Elimination of Child Labour, adopted at the 84th Session of the International Labour Conference in 1996 (text available at http://www.ilo.org).

120. Ibid.

121. Creighton, loc. cit. n. 118, at p. 396.

122. This is the approach voluntarily taken by Levi-Strauss in Bangladesh, Muchlinski, op. cit n. 2, at pp. 468–469. See also European Parliament Resolution, supra n. 18, Explanatory Memorandum on ‘Codes of Conduct and Developing Countries’.

123. See, e.g., Report of the UN Conference on the Human Environment (The Stockholm Declaration), UN Doc. A/CONF.48/14/Rev. 1 (1972), Principle 1; Adoption of Agreements on Environment and Development (The Rio Declaration), UN Doc. A/CONF.151/5/Rev. 1 (1992), Principle 1.

124. Additional Protocol to the American Convention on Human Rights (Protocol of San Salvador 1988), Art 11(1); African Charter on Human and People's Rights 1981, Art. 24.

125. Eaton, loc. cit n. 10, at p. 299.

126. See, on Agenda 21, idem, pp. 274–276.

127. See, e.g., EHP v. the Netherlands (Communication on 67/1980, reported in Selected Decisions of the Human Rights Committee, Vol. 2 (New York, United Nations 1990) p. 20), where the Human Rights Committee agreed that the dumping of toxic waste raised ‘serious issues’ with regard to the right to life; the communication was inadmissible for failure to exhaust domestic remedies.

128. See case 715 (Brazil), in Inter-American Yearbook on Human Rights (1985) p. 264 at p. 279, cited in Desgagné, R., ‘Integrating Environmental Values into the European Convention on Human Rights’, 89 AJIL (1995) p. 263 at p. 266.CrossRefGoogle Scholar

129. Lopez Ostra v. Spain, series A, 303C, decision of the European Court of Human Rights; Bessert v. France (HRC Communication no. 549/1993), reported in 5 International Human Rights Reports (1998) p. 703.

130. See Ominayak v. Canada (Communication no. 167/1984), reported in 11 Human Rights Law Journal(1990)p.305.

131. Watson, P., ‘The Framework for the new Trade Agenda’, 25 Law and Policy International Business (1994) p. 1237 at p. 1257, cited by Johnson, loc. cit. n. 17, at p. 315, fn. 113. See also Grossman and Bradlow, loc. cit. n. 3, at pp. 14–16.Google Scholar

132. See Eaton, loc. cit. n. 10, at p. 291, detailing how corruption severely undermined the effectiveness of Nigerian environmental laws with regard to Shell's operation in the Ogoniland.

133. See supra n. 13.

134. Cassel, loc. cit n. 3, at pp. 1965–1966.

135. See, respectively, Arts. 7 and 6 ICCPR.

136. See American law Institute, supra n. 102, para. 702.

137. The prohibitions of torture, inhuman and degrading treatment in Art. 7 ICCPR and CAT, and the protection for the security of the person in Art. 9 ICCPR, combine to prohibit the deliberate, reckless and negligent infliction of bodily harm.

138. The ILO Declaration exhorts MNEs to adopt uniform ‘best’ safety practices throughout their operations, para. 40. The UN Draft Code calls for MNEs to adopt adequate consumer protection standards at paras. 37–40.

139. This is of course a generalisation. Relevant laws in developing states are not necessarily inadequate. Furthermore, developed states do not necessarily protect these rights, see, e.g., n. 145 infra. Indeed, environmental and labour activists may feel that, whilst protection for labour and environmental rights is better in developed states, this protection is still inadequate.

140. Steiner, H. and Alston, P., International Human Rights in Context (Oxford, Clarendon Press 1996) p. 187 and material at pp. 166–187Google Scholar; Robertson, A. and Merrills, J., Human Rights in the World, 2nd edn. (Manchester, Manchester University Press 1994) p. 3.Google Scholar

141. Wilborn, S. Elizabeth, ‘Revisiting the Public/Private Distinction: Employee Monitoring in the Workplace’, 32 Georgia Law Review (1998) p. 825 at pp. 825–826.Google Scholar

142. Idem, pp. 827–828.

143. Idem, pp. 836–837.

144. Idem, p.839.

145. Wilborn details the weakness of union power in the USA at idem, p. 865

146. This policy resulted in the cancellation of at least one ‘controversial’ story on homosexuality; see Dave Phillips, ‘Chrysler drops magazine censorship policy’, Detroit News, 14 October 1997, reproduced at http://www.detnews.com/1997/autos (accessed October 1998).

147. Freedom of expression is protected by Art. 19 ICCPR. See also R. Abel, ‘Speech and Respect’ (London, Sweet and Maxwell 1994) pp. 56–57.

148. There are permissible limits to most human rights in international human rights law. However, no limit is essentially provided to protect a state's ‘rights’ per se. All limits to human rights essentially relate to the protection of other people within jurisdiction. Even national security limitations, which could be mistaken for ‘State rights’, are essentially permitted to protect the state's people.

149. See Arts. 1 and 25 ICCPR.

150. Paras. 15–19.

151. See, e.g., Meyer, W.H., ‘Human Rights and MNCs: Theory Versus Quantitative Analysis’, 18 HRQ (1996) p. 368 at pp. 391–397.CrossRefGoogle Scholar

152. Idem, p. 368, quoting K, Pritchard, ‘Human Rights and Development: Theory and Data’, in D. Forsythe, ed., Human Rights and Development: International Views (Basingstoke, Macmillan 1989) p. 329; see also Cassel, loc. cit n. 3, at p. 1980.

153. See ‘Worldbeaters Inc’, The Economist, 18 January 1998; Livingstone, op. cit. n. 92.

154. The MAI has been rejected in its present form, see ‘The Sinking of the MAI’, The Economist, 14 March 1998. An OECD Ministerial Statement on the MAI, dated 28 April 1998, noted the need for a new draft MAI to adequately redress environmental and labour issues. As of December 1998, negotiations over the MAI had stalled.

155. The elimination of such discrimination was the major aim of the MAI.

156. Agenda 21 encourages MNEs to adopt environmental policies which are not below the standards of their home state, even if the host state's law permits lower standards; see Eaton, loc. cit. n. 10, at pp. 274–276.

157. Indeed, para. 11 of the ILO Declaration states that the principles therein are designed to reflect ‘good practice’ for all employers.

158. For example, they would be able to pay ‘living wages’ in accordance with the recommendations in the accompanying text at nn. 107–113.

159. See text after n. 150. Para. 16 of the UN Draft Code obliges MNEs not to interfere in a host country's internal affairs. However, it is largely accepted that human rights protection is not a purely internal affair.

160. European Parliament Resolution, supra n. 18, para. 30.

161. Alston, loc. cit. n. 72, especially at pp. 442 and 447.