Beyond the 100 Acre Wood: in which international human rights law finds new ways to tame global corporate power

Abstract

States and corporations are being forced out of their comfort zones. A consensus is building among international human rights courts and committees that states can and will be held accountable for overseas human rights abuses by corporations domiciled in their respective territories. The authors suggest that this development is rooted in a transition from a territory-based to a subject-based approach to human rights obligations that de-centres international human rights law from state territory. In this article, they construct a conceptual framework for understanding how and why this is happening and articulate what are and will be the consequences for the theory and practice of international human rights law.

Keywords:

• Human rights and business
• extra-territorial obligations
• international law
• Winnie-the-Pooh

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributors

Daniel Augenstein is Associate Professor in the Department of European and International Law at Tilburg University. In 2015 he works as a Humboldt Senior Research Fellow at the Wissenschaftszentrum Berlin. Daniel's main research interests are in the areas of business and human rights, and trans-national and global law.

Professor David Kinley holds the Chair in Human Rights Law at University of Sydney. He is also an Academic Panel member of Doughty Street Chambers in London. He works and writes principally in the area of human rights and the global economy.

Notes

1. See, for example, J. Donnelly, Universal Human Rights in Theory & Practice, 2nd ed. (Ithaca, NY: Cornell University Press, 2003), Chapter 1.

2. See, for example, G. Teubner, ‘The Anonymous Matrix: Human Rights Violations by “Private” Transnational Actors', Modern Law Review 69, no. 3 (2006): 327–46.

3. See A. Grear, ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights', Human Rights Law Review 7, no. 3 (2007): 511–43.

4. Council of Europe Parliamentary Assembly, ‘Resolution 1757 (2010) Human Rights and Business', http://www.assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/ERES1757.htm

5. For example, a study dating back to the year 2000 asserts that when comparing corporate sales with states' gross domestic products (GDPs), 51 of the 100 largest economies in the world are corporations, while only 49 are states. Moreover, the largest 200 corporations are estimated to account for 27.5% of the world's economic activity, see S. Anderson and U. Cavanagh, Top 200: The Rise of Corporate Global Power (Washington, DC: Institute for Policy Studies, December 2000).

6. L. Catá Backer, ‘Governance without Government: An Overview’, in Beyond Territoriality: Transnational Legal Authority in the Age of Globalisation, ed. G. Handl, J. Zekoll and P. Zumbansen (The Netherlands: Martinus Nijhoff, 2012), 87, 88.

7. C. Thomas, ‘International Financial Institutions and Social and Economic Rights: An Exploration’, in Human Rights Fifty Years On: A Reappraisal, ed. T. Evans (Manchester: Manchester University Press, 1998), 161, 163.

8. K. de Feyter, Human Rights: Social Justice in the Age of the Market (London: Zed Books, 2005), 11.

9. UN Human Rights Council (UN HRC), ‘Guiding Principles on Business and Human Rights: Implementing the United Nations' “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011).

10. See S. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, Yale Law Journal 111 (2001): 443–545; D. Kinley and J. Tadaki, ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law', Virginia Journal of International Law 44, no. 4 (2004): 931–1023.

11. On the practical implications of the distinction between obligations imposed by international human rights law and protecting human rights values through international (criminal, economic, etc.) law see D. Augenstein, ‘The Crisis of International Human Rights Law in the Global Market Economy’, in Netherlands Yearbook of International Law, Volume 44, ed. M. Bulterman and W. van Genugten (The Hague: T.M.C. Asser, 2014), 41–64.

12. UN Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, ‘Draft 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 (26 August 2003).

13. Ibid., para. 1.

14. See ‘Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights', E/CN.4/2005/91 (15 February 2005); and D. Kinley and R. Chambers, ‘The UN Human Rights Norms for Corporations: The Private Implications of Public International Law’, Human Rights Law Review 6, no. 3 (2006) 447, 448–51.

15. Statement of the US Government Delegation to the 61st Session of the UNCHR (20 April 2005), cited in Kinley and Chambers, ‘The UN Human Rights Norms for Corporations', 448.

16. On which, see the discussion in Kinley and Chambers, ‘The UN Human Rights Norms for Corporations', 480–1.

17. See, for example, R. McCorquodale, ‘Pluralism, Global Law and Human Rights: Strengthening Corporate for Human Rights Violations', Global Constitutionalism 2, no. 2 (2013): 287–315.

18. N. Jägers, Corporate Human Rights Obligations: In Search of Accountability (Antwerp: Intersentia, 2002), Chapter 2.

19. For a critique that traces the ideological roots of the public/private divide in modern international law to the co-emergence of state-based legal positivism and free-market liberalism see C. Cutler, Private Power and Global Authority: Transnational Merchant Law and the Global Political Economy (Cambridge: Cambridge University Press, 2003), 3. For an analysis of how that divide ought and might be overcome, by way of ‘de-closeting’ private international law in a way that enables it to ‘reclaim its governance potential’ by, for example, holding non-state actors accountable for their international human rights abuses, see Horatio Muir Watt, ‘Private International Law Beyond the Schism’, Transnational Legal Theory 2, no. 3 (2011): 347–428, at 427.

20. See Ratner, ‘Corporations and Human Rights', 496.

21. F. Johns, ‘The Invisibility of the Transnational Corporation: An Analysis of International Law and Legal Theory', Melbourne University Law Review 19 (1994): 893, 913.

22. J. Knox, ‘Horizontal Human Rights Law’, American Journal of International Law 102, no. 1 (2008): 1, 29–30.

23. See the recent proposal by C. Cronstedt et al., ‘An International Arbitration Tribunal on Business and Human Rights' (February 2014), http://www.l4bb.org/news/IntlArbTribunal25Feb2014.pdf

24. Ecuador, also on behalf of African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela and Peru, has recently initiated a new initiative towards developing a legally binding international instrument on business and human rights. It delivered a statement at the September 2013 session of the UN HRC stressing ‘the necessity of moving forward toward a legally binding framework to regulate the work of transnational corporations and to provide appropriate protection, justice and remedy to the victims of human rights abuses resulting from or related to the activities of some transnational corporations and other business entities'. To this effect, Ecuador has convened an expert workshop on this issue during the HRC's session in March 2014, see ‘Statement on behalf of a Group of Countries at the 24rd Session of the Human Rights Council, General Debate – Item 3: “Transnational Corporations and Human Rights”’ (Geneva, September 2013), http://www.business-humanrights.org/Links/Repository/1024755

25. UN HRC, ‘Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises', E/CN.4/2006/97 (22 February 2006), para. 65.

26. Apart from requiring states to protect human rights against ‘abuses' by corporations as third parties, international human rights law also imposes obligations on states to respect human rights in relation to corporations acting as state agents. In the latter case, the corporate act is attributed to the state so that the state is considered thereby to interfere directly with the victim's rights.

27. UN Human Rights Committee, ‘General Comment 31, Nature of General Legal Obligation Imposed on States Parties to the Covenant’, CCPR/C/21/Rev.1/Add. 13 (24 May 2004), para. 8.

28. Inter-Am. Ct. H. R., Velasquez Rodriguez v. Honduras (Judgment of 29 July 1988), para. 172.

29. ECtHR, Fadeyeva v. Russia (Judgment of 9 June 2005), para. 89.

30. UN HRC, ‘Mandate Consultation Outline’ (October 2010), http://www.reports-and-materials.org/Ruggie-consultations-outline-Oct-2010.pdf

31. UN HRC, ‘Business and Human Rights: Towards Operationalising the “Protect, Respect, Remedy” Framework’, A/HRC/11/13 (22 April 2009), para. 13.

32. O. de Schutter, ‘Globalisation and Jurisdiction: Lessons from the European Convention on Human Rights', Centre for Human Rights and Global Justice Working Paper 9 (2005): 22.

33. Ibid., 13.

34. M. Milanović, Extraterritorial Application of Human Rights Treaties (Oxford: Oxford University Press, 2011), 210.

35. Paradigmatic ECtHR, Loizidou v. Turkey, Preliminary Objections (Judgment of 23 February 1995), para. 62.

36. H. King, ‘The Extraterritorial Human Rights Obligations of States', Human Rights Law Review 9, no. 4 (2009): 521–56. This view finds support in the International Court of Justice's Genocide Judgment, according to which the scope of the state ‘obligation of conduct’ to prevent genocide ‘must also be assessed by legal criteria, since it is clear that every state may only act within the limits permitted by international law’, ICJ, Application of the Convention on the Prevention of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, para. 430.

37. ECtHR (Grand Chamber), Banković & Others v. Belgium & Others (Admissibility Decision of 12 December 2001), para. 59. While the bulk of Banković has meanwhile been overruled, the court continues to hold fast to the view that extraterritorial human rights protection is exceptional and in need of special justification in the light of the rights of third states, see ECtHR (Grand Chamber), Al-Skeini and Others v. United Kingdom (Judgment of 7 July 2011), para. 131.

38. C. Ryngaert, ‘Jurisdiction: Towards a Reasonableness Test’, in Global Justice, State Duties, ed. M. Langford et al. (Cambridge: Cambridge University Press, 2013), 192, 207–10. According to Ryngaert, ‘the home state might even be prohibited from regulating the overseas conduct of its MNCs [multi-national corporations] when such regulation collides with the sovereign interest of the host state’ (ibid., 209).

39. UN HRC, ‘Guiding Principles on Business and Human Rights'.

40. The UNGPs are explicit in this regard: ‘The Guiding Principles' normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for states and businesses … ’, see ibid., para. 14.

41. UN HRC, ‘Business and Human Rights: Further Steps towards the Operationalisation of the “Protect, Respect and Remedy” Framework’, A/HRC/14/27 (9 April 2010), para. 55.

42. UN HRC, ‘Business and Human Rights', para. 15.

43. UN HRC, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights', A/HRC/8/5 (7 April 2008), para. 3.

44. See UN HRC, ‘Guiding Principles on Business and Human Rights', para. 4.

45. Ibid.

46. Ibid.

47. Ibid.

48. Ibid., para. 2; the commentary adds that ‘some human rights treaty bodies recommend that home states take steps to prevent abuse abroad by business enterprises within their jurisdiction’.

49. In his earlier work, the SRSG also explored other bases of extra-territorial jurisdiction under general international law, including the nationality of the victim (i.e., the passive personality principle), see, for example, UN HRC, ‘Corporate Responsibility under International Law and Issues of Extraterritorial Regulation’, A/HRC/4/35/Add.2 (15 February 2007).

50. See UN HRC, ‘Business and Human Rights: Further Steps', para. 48.

51. See UN HRC, ‘Guiding Principles on Business and Human Rights', para. 2.

52. F.A. Mann, ‘The Doctrine of Jurisdiction in International Law’, Recueil des Cours 111 (The Hague: The Hague Academy of International Law, 1994), 1, 15: the concept of jurisdiction fulfils ‘one of the fundamental functions of public international law’, namely ‘the function of regulating and delimiting the respective [legislative, judicial and administrative] competences of States'.

53. We have previously distinguished between these two forms of a state jurisdiction in respect of human rights by characterising the first as the ‘permissive question' and the second as ‘the prescriptive question', see D. Augenstein and D. Kinley, ‘When Human Rights “Responsibilities” Become “Duties”: The Extra-territorial Obligations of States that Bind Corporations', in Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. S. Deva and D. Bilchitz (Cambridge: Cambridge University Press, 2013), 271–94.

54. See, for example, S. Joseph, ‘Taming the Leviathans: Multinational Enterprises and Human Rights', Netherlands International Law Review 46 (1999): 171–203; S. Deva, ‘Acting Extraterritorially to Tame Multinational Corporations for Human Rights Violations: Who Should “Bell the Cat”?', Melbourne Journal of International Law 46 (2004): 37–65.

55. See UN HRC, ‘Business and Human Rights: Further Steps', para. 48.

56. An important example of this trajectory outside ‘business and human rights’ is the increasing currency of the ‘responsibility to protect' (R2P), see for example, A. Peters, ‘Humanity as the A and Ω of Sovereignty’, European Journal of International Law 20, no. 3 (2009): 513–44.

57. ECtHR (Grand Chamber), Ilaşcu and Others v. Moldova and Russia (Judgment of 8 July 2004), para. 331.

58. ECtHR, Cyprus v. Turkey (Judgment of 10 May 2001).

59. Ibid., para. 81.

60. ECtHR, Isaak and Others v. Turkey (Admissibility Decision of 28 September 2006).

61. Ibid., para. 21.

62. As Miltner notes in her discussion of the case, it is unlikely that the court could have established jurisdiction ‘without the broadening of the authority and control test via the use of the “acquiescence” device’. B. Miltner, ‘Extraterritorial Jurisdiction under the European Convention on Human Rights: An Expansion Under Isaak v Turkey?’, European Human Rights Law Review 2 (2007): 172, 181.

63. See de Schutter, ‘Globalisation and Jurisdiction’; and Milanović, Extraterritorial Application of Human Rights Treaties.

64. For a discussion of the parallel evolution of the ‘control over territory’ and the ‘control over persons' test in the jurisprudence of the ECtHR see M. Gondek, The Reach of Human Rights in a Globalising World: Extra-territorial Application of Human Rights Treaties (Antwerp: Intersentia, 2009). The further specification of the kind and degree of state control necessary to trigger a corresponding human rights obligation is beyond the scope of this article. Propositions to this regard range from (very restrictive) direct physical capture to (very broad) cause-and-effect notions of control. Behind this doctrinal debate lies the normative issue regarding the conditions necessary and appropriate for states to accept positive human rights obligations in cross-border contexts, see also further section 6.

65. ECtHR, Banković, para. 54; see further R (Al-Skeini and Others) v. Secretary of State for Defence [2007] UKHL 26, 34 (HL), para. 64. Having regard to the case law of the ECtHR, Lord Roger remarked: ‘It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state.'

66. Inter-Am. Com. H. R., Coard et al. v. The United States, Case 10.951, Report No. 109/99 (Judgment of 29 September 1999), para. 37.

67. UN Human Rights Committee, López Burgos v. Uruguay, Communication No. 52/1979, CCPR/C/OP/1 (Judgment of 29 July 1981), para. 12.2.

68. M. Hakimi, ‘State Bystander Responsibility', European Journal of International Law 21, no. 2 (2010): 341, 356–7. This approach bears a resemblance to Ryngaert's proposal to tie extraterritorial human rights obligations to a reasonableness requirement, see Ryngaert, ‘Jurisdiction'.

69. In a similar vein, Rick Lawson distinguishes between an ‘all or nothing’ approach and a ‘gradual’ approach to human rights jurisdiction, see R. Lawson, ‘“Life After Banković”: On the Extraterritorial Application of the European Convention on Human Rights', in Extraterritorial Application of Human Rights Treaties, ed. F. Coomans and M.T. Kamminga (Antwerp: Intersentia, 2004), 83–123. Arguably overruling Banković, the ECtHR acknowledged in Al Skeini that human rights obligations under the ECHR can be ‘divided and tailored’, see ECtHR, Al Skeini, para. 137.

70. Such an approach can be discerned in the ECtHR's holding Russia responsible for human rights violations committed in Transdniestria because it exercised ‘decisive influence’ over the Moldovan separatists, see ECtHR, Ilaşcu, para. 392; and further Hakimi, ‘State Bystander Responsibility’, 376–9.

71. Indeed, research conducted by the SRSG suggests that today the majority of corporate-related human rights violations are committed in developing countries by business entities that are based in, and remain controlled from, states in the developed world, see UN HRC, ‘Interim Report'.

72. See section 3.

73. ECtHR, Banković, para. 54.

74. ECtHR, Kovaĉić and Others v. Slovenia (Admissibility Decision of 1 April 2004). The case was struck out at the merits stage due to new facts that had come to the court's attention.

75. Ibid.

76. ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights' (Maastricht, 2011), Principle 8(a), published with extensive commentary in Human Rights Quarterly 34 (2012): 1084–169.

77. Ibid., Principle 25.

78. CESCR, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health’, E/C.12/2000/4 (11 August 2000), para. 39.

79. CESCR, ‘General Comment No. 15: The Right to Water’, E/C.12/2002/11 (20 January 2003), para. 33.

80. CESCR, ‘General Comment 19: The Right to Social Security’, E/C.12/GC/19 (4 February 2008), para. 54.

81. CESCR, ‘Statement on the Obligations of States Parties Regarding the Corporate Sector and Economic, Social and Cultural Rights', E/C.12/2011/1 (12 July 2011), para. 5.

82. CRC, ‘General Comment 16 on State Obligations Regarding the Impact of the Business Sector on Children's Rights', CRC/C/CG/16 (17 April 2013), para. 43.

83. Respectively, CESCR, ‘General Comment 19′, at para. 3, and CRC, ‘General Comment 16', at para. 41. In a similar vein, the Maastricht Principles list ‘obligations of a global character that are set out in the Charter of the United Nations and human rights instruments to take action, separately, and jointly through international cooperation, to realise human rights universally’. Such ‘international assistance and cooperation’ stipulations also exist in a number of other principal human rights instruments, including: the Universal Declaration on Human Rights (Preamble) and the Convention on the Rights of Persons with Disabilities (Art 32); and it is implied in the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Art. 7). In addition, the Vienna Declaration and Programme of Action (1993) reiterates (in para. 4) the command in Article 56 of the UN Charter that states ‘take joint and separate action’ to achieve (inter alia) the UN's human rights goals, which, the Declaration adds, “must be considered a priority objective of the UN”'.

84. CERD, ‘Concluding Observations: United Kingdom of Great Britain and Northern Ireland’, CERD/C/GBR/CO/18-20 (14 September 2011), para. 29.

85. CERD, ‘Concluding Observations: Australia’, CERD/C/AUS/CO/15-17 (13 September 2010), para. 13.

86. Ibid.

87. See CERD, ‘Concluding Observations/Comments: Canada’, CERD/C/CAN/CO/18 (25 May 2007), para. 17; CERD, ‘Concluding Observations: United States', CERD/C/USA/CO/6 (8 May 2008), para. 30; and CERD, ‘Concluding Observations: China’, E/C.12/CHN/CO/2 (23 May 2014), para. 13.

88. CRC, ‘Concluding Observations: Australia’, CRC/C/AUS/CO/4 (19 June 2012), para. 28(a).

89. The existence of places beyond the 100 Acre Wood in both Winnie-the-Pooh (1926) and the House at Pooh Corner (1928) collected stories is based on the simple fact that Milne himself did not seem to have a fixed idea of its boundaries, such that its coverage and dimensions, as well as those of the forest as a whole, differ between stories; see AA Milne, The World of Pooh: The Complete Winnie-the-Pooh and The House at Pooh Corner (1958).

90. For example: ‘In which Christopher Robin leads an Expotition (sic) to the North Pole', and ‘In which Tigger is unbounced' (The World of Pooh).

91. As to the former – the inclemency of the weather, for example: (i) ‘In which Piglet is Entirely surrounded by Water'; (ii) ‘In which a House is built at Pooh Corner for Eeyore' (snow); and (iii) ‘In which Piglet does a Very Grand Thing' (wind), ibid.; and as to the latter – the spectres of Heffalumps and Woozles (‘In which Piglet meets a Heffalump' and ‘In which Pooh and Piglet go Hunting and nearly catch a Woozle', ibid.

92. For example: Tigger (‘In which Tigger comes to the Forest and has Breakfast'), and Kanga and Roo (‘In which Kanga and Baby Roo come to the Forest, and Piglet has a Bath'); ibid.