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ABSTRACT
The application of human rights norms to the behaviour of corporations has challenged legal scholars for a long time. With few notable exceptions, studies dealing with the question have relied on interpretations of existing international instruments, not least decisions of human rights treaty bodies. The present article proposes an alternative approach referred to as a ‘bottom-up’ methodology: a pluralist and inductive approach to international law. It focuses on the human rights claims brought by individuals or local communities affected by corporate activity who seek redress through existing complaints mechanisms including domestic courts and the OECD National Contact Points. The assumption is that through their interpretation and application of international norms in their particular national context, these institutions act to clarify the ambit of corporate human rights obligations. The article asks: Which substantive human rights norms do domestic institutions apply to corporations? From which sources do they derive these norms? What is the underlying theory of responsibility?
Notes
1 In the present article, in the interest of flexibility, the terms ‘business enterprise’, ‘corporation’ and ‘company’ are used interchangeably to capture a broad range of business entities.
2 For similar arguments see Steven Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001–2002) 111 Yale LJ 443; Nicola Jägers, Corporate Human Rights Obligations: In Search of Accountability (Intersentia 2002) 5–6; Justin Nolan, ‘With Power Comes Responsibility: Human Rights and Corporate Accountability’ (2005) 28 U of New South Wales L J 581; Sarah Joseph, Corporations and Transnational Human Rights Litigation (Bloomsbury 2004) 1–8; Beth Stephens, ‘The Amorality of Profit: Transnational Corporations and Human Rights’ (2002) 20 BerkeleyJIntIL 45; Menno Kamminga and Saman Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (Kluwer 2000) 78; David Kinley and Junko Tadaki, ‘From Talk to Walk: the Emergence of Human Rights Responsibilities for Corporations at International Law’ (2004) 44 VaJIntlL 931; August Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’ in Philip Alston (ed), Non-State Actors and Human Rights (OUP 2005) 74–76; David Weissbrodt and Muria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2003) 97 AJIL 901; Mark B Baker, ‘Private Codes of Corporate Conduct: Should the Fox Guard the Henhouse?’ (1993) 24 UMiamiInterAmLRev 399, 402. See also Wilfred Jenks, ‘Multinational Entities in the Law of Nations’ in Wolfgang Friedman, Louis Henkin and Oliver Lissitzyn (eds), Transnational Law in a Changing Society (Columbia University Press 1972) 71: ‘the essence of the whole concept of due process of law’ lies in placing an ‘effective restraint upon power and ensuring responsibility’.
3 Susan Marks comments that not only the weaker states, but even the ‘most powerful’ nation states ‘face growing difficulty in controlling the activities of business’: Susan Marks, ‘Empire’s Law’ (2003) 10 IndJGlobalLegalStud 449, 464, quoted in Penelope Simons, ‘International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights’ (2012) 3 J of HumRts and the Env 5, 20.
4 Ralph G Steinhardt, ‘Soft Law, Hard Markets: Competitive Self-interest and the Emergence of Human Rights Responsibilities for Multinational Corporations’ (2007) 33 Brook J Intl L 933, 943.
5 Andrew Fagan, ‘Human Rights’ Internet Encyclopedia of Philosophy. <https://www.iep.utm.edu/hum-rts/> accessed December 2018. Former ICJ Judge Kotaro Tanaka was a strong proponent of this view: ‘human rights must be protected against abuse by public authorities as well as by fellow citizens’: Kotaro Tanaka, ‘Some Observations on Peace, Law and Human Rights’ in Friedman (n 2) 251. See also South West Africa, Ethiopia v South Africa (1966) ICJ Rep 6, ICGJ 158 (ICJ 1966) 250–324, (Tanaka J dissenting).
6 Fagan (n 5).
7 For the opinions affirming direct human rights responsibilities, Jägers (n 2); Andrew Clapham, Human Rights Obligations of Non-State Actors (OUP 2006); cf Markos Karavias, Corporate Obligations Under International Law (OUP 2013). See also edited volumes by Alston (n 2); Olivier De Schutter (ed), Transnational Corporations and Human Rights (Bloomsbury 2006).
8 H Thirlway, ‘Concepts, Principles Rules and Analogies: International and Municipal Legal Reasoning’ (2002) 294 Recueil des Cours 265, 349.
9 ICJ, Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) 1949 <https://www.icj-cij.org/en/case/4> accessed 1 December 2018 [174]- [178]; ICJ, Legality to Use of Nuclear Weapons in Armed Conflict (Advisory Opinion) 1996 <https://www.icj-cij.org/en/case/93> accessed 1 December 2018.
10 Statute of the International Court of Justice art 38(1), June 26, 1945, 59 Stat 1055, 33 UNTS 993.
11 Alan Boyle and Christine Chinkin, The Making of International Law (OUP 2007) 211. For further criticism, see Jan Klabbers, ‘Law-making and Constitutionalism’ in Jan Klabbers, Anne Peters and Geir Ulfstein (eds), The Constitutionalization of International Law (OUP 2009) 88.
12 Hilary Charlesworth, ‘Law-making Sources’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2013) 189.
13 ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’ (21 March 2011) UN Doc A/HRC/17/31. The Guiding Principles were endorsed by the Human Rights Council by virtue of Resolution 17/4 ‘Human Rights and Transnational Corporations and other Business Enterprises’ (6 July 2011) UN Doc A/HRC/ RES/17/4. The UNGPs have been developed by the United Nations Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (SRSG) and are intended to implement the SRSG’s Protect, Respect and Remedy policy framework, elaborated in his 2008 report, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5. Further on the UNGPs, see Maddalena Neglia, ‘The UNGPs – Five Years On: From Consensus to Divergence in Public Regulation on Business and Human Rights’ (2016) 34 NQHR 289.
14 Karin Buhmann, ‘Business and Human Rights: Understanding the UN Guiding Principles from the Perspective of Transnational Business Governance Interactions’ (2015) 6 TLT 339, 415.
15 ‘Protect, Respect and Remedy’ (n 13).
16 The UNGPs, Principle 11.
17 The UNGPs, Principles 12, 14.
18 ‘Protect, Respect and Remedy’ (n 13).
19 ibid [56]; ‘Business and Human Rights: Towards Operationalizing the ‘Protect, Respect, and Remedy’ Framework’ (22 April 2009) UN Doc A/HRC/11/13 [59]. Note that the human rights due diligence differs from due diligence ‘commonly deployed as a business practice’ which ‘aims at identifying possible financial risks to the company or legal liabilities that may flow from such a corporate activity’: Karin Buhmann, ‘Neglecting the Proactive Aspect of Human Rights Due Diligence? A Critical Appraisal of the EU’s Non-Financial Reporting Directive as a Pillar One Avenue for Promoting Pillar Two Action’ (2018) 3 Business and Human Rights Journal 23, 32.
20 The key elements of the human rights due diligence process are set out in General Principles 17 to 21. Further guidance is provided in Office of the High Commissioner for Human Rights, Corporate Responsibility to Respect, An Interpretive Guide (OHCHR 2012).
21 For a discussion of the concept of due diligence in the UNGPs, see Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of Due Diligence in the UN Guiding Principles on Business and Human Rights’ (2017) 28 EJIL 899.
22 Clarifying the Concepts of ‘Sphere of Influence’ and ‘Complicity’ (15 May 2008) A/HRC/8/16.
23 Human Rights Watch, ‘UN Human Rights Council: Weak Stance on Business Standards: Global Rules Needed, Not Just Guidance’ (16 June 2011); Carlos López, ‘The “Ruggie Process”: from Legal Obligations to Corporate Social Responsibility?’ in Surya Deva and David Bilchitz (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (CUP 2013); Mauricio Montalvo (Ecuador) (Address to the UN Human Rights Council, delivered at the Palais des Nations in Geneva, Switzerland, 16 June 2011); the comments of the South African representative (UN Human Rights Council, Information Release [not an official record] ‘Council holds dialogue with Experts on summary executions, independence of judges and lawyers, transnational corporations’ (30 May 2011)) both quoted in Simons (n 3).
24 Agencies established by adhering governments to promote and implement the OECD Guidelines for Multinational Enterprises.
25 What is still largely debated in business and human rights field is the extent to which corporate human rights obligations mimics to that of states’ human rights obligations. In its 2008 report, the SRSG, after having referred to corporations as ‘organs of the society’, has suggested that ‘they are specialized economic organs, not democratic public interest institutions. As such, their responsibilities cannot and should not simply mirror the duties of States’: ‘Protect, Respect and Remedy’ (n 13) [53].
26 On this approach, among others, see, Janet K Levit, ‘A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments’ (2005) 30 YaleJIntlL 125.
27 The UNGPs, Principle 11.
28 Daria Davitti, ‘Refining the Protect, Respect and Remedy Framework for Business and Human Rights and its Guiding Principles’ (2012) 16 HRLRev 55, 57.
29 John Ruggie, Business and Human Rights: Further Steps Toward the Operationalization of the ‘Protect, Respect and Remedy’ Framework, A/HRC/14/27, para 4; Florian Wettstein, ‘Normativity, Ethics, and the UN Guiding Principles on Business and Human Rights: A Critical Assessment’ (2015) 14 J HumRts 2, 175: ‘[The SRSG] is principled in the sense that he is committed “unflinchingly” to the principle of promoting and protecting human rights as they relate to business. He is a pragmatist insofar as he focuses on “what works best to create change where it matters most”, that is, on “maximizing tangible results for affected individuals and communities”’ (citations omitted). For a critique of ‘principled pragmatism’, see Surya Deva, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles’ in Deva (n 23) 9.
30 Ingrid Landau, ‘The Promise and Perils of Human Rights Due Diligence as a Tool of Transnational Labour Regulation’ (2018) ( Young Researchers Summit on Business and Human Rights, April 2018, New York: copy on file with the author); Landau citing Christine Bell and Kathleen Cavanaugh, ‘“Constructive Ambiguity” or Internal Self-Determination? Self-Determination, Group Accommodation, and the Belfast Agreement’ (1998) 22 FILJ 1345; John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 HHRJ 1.
31 Landau (n 30) 4.
32 Note, however, that the UNGPs refer corporations to the text of the International Bill of Human Rights (UDHR, ICCPR and the ICESCR) and the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work; the UNGPs, Principle 12.
33 Jennifer Zerk notes that ‘clarifying the direct responsibilities of multinationals under international law is in everyone’s interests (not least multinationals themselves)’: Jennifer Zerk, Multinationals and Corporate Social Responsibility Limitations and Opportunities in International Law (CUP 2006) 306.
34 Jägers (n 2); Karavias (n 7).
35 There appears to be exceptions to this rule, such as the United Nations Convention on the Law of the Sea deep seabed dispute settlement regime (Montego Bay, 10 December 1982, in force 16 November 1994, 1833 UNTS 3). Also the Special Tribunal For Lebanon in a decision in 2014 for the first time asserted a jurisdiction over corporations: ‘the ordinary definition of the term “person” in a legal context can include a natural human being or a legal entity (such as a corporation) that is recognized by law as the subject of rights and duties’ and ‘corporations are not immune from accountability merely because they are a legal – and not a natural – person’: STL, Prosecutor v New TV SAL Karma Mohamed Tahsin Al Khayat, STL-14-05/PT/AP/ARI26.1, Appeals Hearing, 2 October 2014, 22 and 26. For the significance of this decision for business and human rights debate, see Nadia Bernaz, ‘Corporate Criminal Liability under International Law The New TV SAL and Akhbar Beirut SAL Cases at the Special Tribunal for Lebanon’ (2015) 13 JICJ 313.
36 Aurora Voiculescu, ‘Human Rights and the New Corporate Accountability: Learning from Recent Developments in Corporate Criminal Liability’ (2009) 87 J Bus Ethics 419, 424: ‘it is always more likely that a shift in the concept of corporate responsibility can more easily reach formal legal acknowledgement at the domestic level rather than at the international level where the processes of deliberation are much more fluid and somewhat indistinct.’
37 Karavias (n 7) 15.
38 Antonios Tzanakopolous and Christian Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’ (2013) 26 LJIL 531, 534.
39 Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57, 91. Along the same line, see Karen Knop, ‘Here and There: International Law in Domestic Courts’, (2000) 32 NYUJIntlL&Pol 501, 506.
40 Tzanakopolous and Tams (n 38) 535 and references therein.
41 Karavias (n 7) 14.
42 Tzanakopolous and Tams, (n 38) 535: ‘at the present stage of the academic debate, both approaches indeed seem defensible: it is a matter of perspective and assumption, not one of “right or wrong.”’
43 André Nollkaemper, National Courts and the International Rule of Law (OUP 2012) 10; Roberts (n 39) 60.
44 The Case of the SS ‘Lotus’ (France v Turkey) PCIJ, Series A, No 10, pp 28–29. See, UN A/CN4.672, ILC, Second report on identification of customary international law, by Michael Wood, 23 and 55, with further references.
45 VCLT (adopted 22 May 1969; entered into force 27 January 1980) 1155 UNTS 331.
46 Tzanakopolous and Tams (n 38) 536.
47 Tzanakopolous and Tams (n 38).
48 Daniel Bodansky and Jutta Brunnee, ‘The Role of National Courts in the Field of International Environmental Law’ (1998) 7 RECIEL 11, 13.
49 Lori F Damrosch, ‘Enforcing International Law through Non-Forcible Measures’ (1997) 269 Recueil des Cours 155, 185.
50 Markos Karavias, ‘Shared Responsibility and Multinational Enterprises’ (2015) 62 NILR 91, 106, 108.
51 OECD, ‘OECD Guidelines for Multinational Enterprises: Review 2000: Report by the Secretary-General’ (27 June 2000) OECD Doc C(2000)96/REV1, para 3; OECD 2004 Roundtable Background Report. See also, Karin Buhmann, ‘Still Young at Forty: How Continuous Innovation Keeps the OECD Guidelines for Multinational Enterprises Meaningful and Timely for Responsible Business Conduct and Policy Coherence’ in Nicola Bonucci and Catherine Kessedjian (eds), 40 Years of the OECD Guidelines for Multinational Enterprises (Pedone 2018) 55: ‘For many of those familiar with international law concerned with the social and environmental impacts of business, it is well-known that the “Guidelines” are a unique instrument of international law.’
52 Halina Ward, ‘The OECD Guidelines for Multinational Enterprises and Non-Adhering Countries: Opportunities and Challenges of Engagement’ (OECD Global Forum on International Investment: Investment for Development, New Delhi, October 2004) http://www.bollettinoadapt.it/old/files/document/18094WARD_2003.pdf> accessed December 2017. A distinction, however, has to be drawn between the substantive provisions of the Guidelines and the procedural requirements they impose. To put it simply, the Guidelines establish a binding procedure to enforce non-binding substance, because the establishment of functioning NCP forms part of an OECD Council decision which is binding on adhering states as a matter of international law.
53 Adhering countries share of global FDI flows 2007–2013: Inflows 62%, outflows 82%/ Adhering Countries share of global FDI stock 2007–2012: 73% inward, 87 outward: source OECD International Direct investment database, IMF.
54 Elisa Morgera, Corporate Accountability in International Environmental Law (OUP 2009) 99.
55 Roel Nieuwenkamp, ‘40 Years Guidelines and National Contact Points: A Beautiful Glass, But Only Half Full … ’ in Bonucci and Kessedjian, 40 Years of the OECD Guidelines (n 51) 36.
56 HR Council Res A/HRC/11/13 (22 April 2009).
57 OECD, ‘Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015’ (OECD 2016).
58 Thirty per cent (total number 29) of all human rights related cases have been filed since then.
59 See e.g. the NAP of Luxembourg, adopted in June 2018, underscoring the importance of the NCPs in the implementation of the NAP. Ministry of Foreign and European Affairs ‘National Action Plan of Luxembourg for the Implementation of the United Nations Guiding Principles on Business and Human Rights’ 2018–2019, 15–16. On this topic see Christine Kaufmann, ‘National Contact Points and Access to Remedy under the UNGP: Why Two Can Make a Dream So real’ in Bonucci and Kessedjian, 40 Years of the OECD Guidelines (n 51) 178–81.
60 The exception being the NAP of Lithuania because at the time of the adoption of their NAP, Lithuania was not adhering to the OECD Guidelines. Lithuania became a full member of the OECD on 5 July 2018.
61 For a list and an overview of the NAPs, see https://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx
62 The Federal Foreign Office, ‘National Action Plan Implementation of the UN Guiding Principles on Business and Human Rights, 2016–2020’ (16 December 2016) The Secretary of State For Foreign and Commonwealth Affairs, 25 <https://www.ohchr.org/Documents/Issues/Business/NationalPlans/NAP_Germany.pdf> accessed December 2018.
63 ‘Good Business, Implementing the UN Guiding Principles on Business and Human Rights, Updated May 2016’ (May 2016) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/522805/Good_Business_Implementing_the_UN_Guiding_Principles_on_Business_and_Human_Rights_updated_May_2016.pdf> accessed December 2018.
64 Federal Council, ‘Report on the Swiss Strategy for the Implementation of the UN Guiding Principles on Business and Human Rights’ (9 December 2016) 23. <https://www.ohchr.org/Documents/Issues/Business/NationalPlans/Switzerland_NAP_EN.pdf> accessed December 2018.
65 Non-binding instruments play a significant role both in domestic and international adjudication. In Kaliña and Lokono Peoples v Suriname, the Inter-American Court of Human Rights found Suriname responsible for the violation of the right to collective property and political rights partially based on the Guiding Principles: IACtHR, Case of Kaliña and Lokono Peoples v Suriname, 223–26.
67 In 2008, in one of his first reports to the UN Human Rights Council, the SRSG observed that: ‘In the absence of a universal database that stores allegations of abuse, the Resource Centre’s online library is the most comprehensive, objective source available’: UN Human Rights Council, ‘Corporations and Human Rights: A Survey of the Scope and Patterns of Alleged Corporate-Related Human Rights Abuse’ A/HRC/8/5/Add.2 (23 May 2008). B&HR RC website is at https://business-humanrights.org/en
68 See http://opil.ouplaw.com/page/ILDC/oxford-reports-on-international-law-in-domestic-courts. ILDC is as accessed through the Oxford Reports on International Law (ORIL) available on the Oxford Public International Law platform: http://opil.ouplaw.com
69 28 USC s 1350. Regrettably, however, the US Supreme Court in Jesner et al v Arab Bank PLC of 24 April 2018, barred suits against foreign corporations under the ATS, and thus restricted the reach of the Statute significantly.
70 Although both CLAP and ILDC databases are very comprehensive, arguably the most comprehensive within their respective scopes, they are not conclusive. New entries, both recent and old, are added to each database continuously.
71 It should be readily admitted that exclusion of certain cases on this ground created a blind spot in light of the fact that in some of the cases the US courts have dismissed the claims for failing to state a claim which includes the comments of the court on the status of customary international law obligations of corporations.
73 OECD Watch, http://www.oecdwatch.org/cases
75 OECD, Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 (2016) (hereinafter OECD NCP Report). Note that some of the older cases are not included in the database.
76 OECD NCP Report (n 75) 34.
77 John Ruggie and Tamaryn Nelson, ‘Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges’ (2015) 66 CSR Initiative Working Paper, 7.
78 OECD NCP Report (n 75) 34.
79 OECD NCP Report (n 75).
80 Ruggie and Nelson (n 77) 13.
81 The institutional setup and the procedures for the follow-up of the NCP system are prescribed by the Council Decision on the Guidelines and the attached Procedural Guidance. References to the amended version, OECD Decision C(2000)96/FINAL and C/MIN(2011)11/FINAL (25 May 2011).
82 It should be noted that not accepting or rejecting a complaint does not necessarily indicate that allegations are not material. The NCP may not accept the complaint, for several other reasons. For example, if the parties ‘initiate a dialogue to find a solution’ outside the NCP, the NCP would not formally accept the case: see Swedwatch v Mölnlycke, NCP Sweden (9 April 2013).
83 Thirty-five of these countries are OECD members, and the remaining 13 are non-OECD countries, adhering the OECD Guidelines. For the list see <https://mneguidelines.oecd.org/OECD-Guidelines-for-MNEs-NCP-FAQ.pdf> accessed December 2018.
84 For those NCPs that use their local language in their initial assessment we obtained assistance in translation. One of the reasons that English is used commonly by the NCPs concerns the lack of translation resources from local languages. The Norwegian NCP, for example, had to reject additional evidence by the complainants which was in Spanish due to lack of translation resources in ForUM and Friends of the Earth Norway v Cermaq ASA, NCP Norway (19 May 2009).
85 The Rome Statute identifies these three crimes as ‘the most serious crimes of concern to the international community’. They are considered ‘core’ international crimes to the extent that they create individual responsibility independently of domestic law and are distinguished from ‘treaty crimes and other crimes of international concern, such as torture or piracy’: Marko Milanovic, ‘Is the Rome Statute Binding on Individuals? (And Why We Should Care)’ (2011) 9 JICJ 25. Milanovic also notes that some authors, such as Antonio Cassese, ‘argue that certain treaty crimes, e.g. torture and terrorism, have now become true international crimes’: 28, 49.
86 It is worth noting, however, there have been instances in which corporate officials have been prosecuted for the crimes stemming from the conduct of their business’ operations: Wolfgang Kaleck, ‘International Criminal Law and Transnational Businesses: Cases from Argentina and Colombia’ in Sabine Michalowski (ed), Corporate Accountability in the Context of Transitional Justice (Routledge 2014).
87 The domestic jurisprudence on the extension of responsibility for international crimes and other human rights abuses to corporations also influenced some of the conclusions of the SRSG, who in his first report stated that; ‘[e]merging practice and expert opinion increasingly do suggest that corporations may be held liable for committing, or for complicity in, the most heinous human rights violations amounting to international crimes, including genocide, slavery, human trafficking, forced labour, torture, and some crimes against humanity’: Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc E/ CN4/2006/97 (2006) para 61.
88 See e.g. Al Shimari v CACI Premier Tech, Inc 758 F3d 516 (4th Cir 2014).
89 Chowdhury v Worldtel Bangladesh Holding, Ltd, No 08 Civ 1659(BMC) 2009 WL 9053203, (EDNY Sept 16, 2009); Chowdhury v Worldtel Bangladesh Holding, Ltd, 746 F3d 42 (2d Cir 2014).
90 Chowdhury v Worldtel Bangladesh Holding, 383.
91 Gbemre v Shell Petroleum Development Company of Nigeria, First Instance Decision, FHC/B/CS/53/05, ILDC 924 (NG 2005).
92 For an analysis of the Gbemre Case, see Amy Sinden, ‘An Emerging Human Right to Security from Climate Change: The Case against Gas Flaring in Nigeria’ in William CG Burns and Hari M Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (Cambridge University Press 2009) 173.
93 The decision of the court, however, has been with little practical effect: Sinden (n 92). See also The Essex Business and Human Rights Project, ‘Corporate Liability in a New Setting: Shell and the Changing Legal Landscape for the Multinational Oil Industry in the Niger Delta’ (2012, University of Essex) 96–97.
94 Abdullahi v Pfizer, Inc, 562 F3d 163, 169 (2d Cir 2009).
95 Wiwa v Royal Dutch Petroleum Co., 626 F Supp 2d 377, 383 n4 (SDNY 2009); Estate Rodriquez v Drummond Company Incorporated, 256 F Supp 2d 1250 (ND Ala 2003).
96 Sarei v Rio Tinto, PLC, 671 F3d 736, 744 (9th Cir 2011).
97 Wiwa v Royal Dutch Petroleum Co, 626 F Supp 2d 377, 383 n4 (SDNY 2009).
98 Wiwa v Royal Dutch Petroleum Co, 626 F Supp 2d 377, 383 n4 (SDNY 2009).
99 Bahrain Watch et al v Dae Kwang, NCP Korea (26 November 2013); ADHRB v Condor Non-Lethal Technologies, NCP Brazil (22 September 2015).
100 Bart Stapert v Mylan, NCP The Netherlands (3 March 2015) Final Statement (11 April 2016).
101 Privacy International et al v Gamma International, NCP UK, Final Statement (21 May 2014).
102 Privacy International et al v Gamma International, Briefing note on OECD Complaints against Gamma International and Trovicor in the UK and Germany (February 2013) 5, hereinafter, ‘Privacy International Briefing Note’ <https://www.oecdwatch.org/cases/Case_286>.
103 Privacy International Briefing Note, 1.
104 According to the complainant NGOs the malware in question is called FinSpy which ‘is sent to target individuals disguised as a harmless email, link or software update, installs itself on the target’s computer or phone device and relays information back to the sender, including the contents of all emails and Skype conversations, as well as address books and other data stored on the target’s device. FinSpy can also be used to activate the device’s internal camera and microphone and so capture images and audio recordings of the user’: Privacy International Briefing Note, 2.
105 Privacy International et al v Trovicor, NCP Germany (1 February 2013) Final Statement (21 May 2014).
106 Privacy International et al v Trovicor, Final Statement. Due to the narrow focus of the NCP, the complainant NGO refused to take part in the mediation proceedings upon which the NCP terminated the instance without substantive findings.
107 Privacy International et al v Gamma, Final Statement, paras 50 and 57.
108 OHCHR, The Right to Privacy in the Digital Age (June 2014) UNDoc No A/HRC/27/37.
109 Privacy International et al v Gamma, Final Statement, para 47.
110 ibid, para 63.
111 ibid, para 86.
112 ibid, para 69. The UK NCP issued recommendations and requested an update from the parties. On the deadline of the expected updates, the NGOs provided an update, but the company refused to do so. The NCP issued a followed up statement restating its findings and highlighting that ‘no progress (or effort)’ towards meeting the recommendations were made by the company: NCP UK, Follow-up Statement after Recommendations in Complaint from Privacy International against Gamma International (February 2016). UK NCP handled another case concerning human rights violations in Bahrain. ADHRB v Formula One Management Ltd questioned the human rights compatibility of organising the Formula One Grand Prix with a global audience in Bahrain, amid human rights violations. The NCP concluded that holding a high profile event despite attracting protests ‘does not itself link [the company] to alleged abuses of protestors’ (para 28). However, in the light of the fact that there were enhanced risks associated with the event after 2012, as is evidenced by the cancellation of the F1 Grand Prix in 2011 by the Bahraini government citing the instability in the country, the company failed to update and adopt its due diligence process to changing circumstances as warranted by the new risks: ADHRB v Formula One Management Ltd, NCP UK (31 May 2014) Initial Assessment (24 October 2014).
113 Concerning the domestic court decisions, see Doe I v Unocal Corp, 395 F3d 932, 945–46 (2002); Doe v Nestle, SA, 748 F Supp 2d 1057, 1074–76 (CD Cal 2010); John Roe I v Bridgestone Corp, 492 F Supp 2d 988, 1014 (SD Ind 2007); Jane Doe I v Reddy, 492 F Supp 2d 988 (ND Cal 2007) for the prohibition of enslavement and forced labour; Rodriguez Licea and ors v Curaçao Drydock Company, 584 F Supp 2d 1355 (SD Fla 2008) for the prohibition of Human trafficking; Flomo v Firestone Natural Rubber Co, 744 F Supp 2d 810, 814–16 (SD Ind 2010); Doe v Nestle, SA, 748 F Supp 2d 1057, 1075–76 (CD Cal 2010) for the prohibition of child labour.
114 ILDC Reference, Yang and ors v Mitsubishi Heavy Industries Limited, Court of First Instance, 2012 Ga-Hap 10852 ILDC 2105 (KR 2013) (full text not available; case details and analysis provided by Ethan Hee-Seok Shin, 27 January 2014). For an account of forced and slave labour during WWII, see T Webster, ‘Note, Sisyphus in a Coal Mine: Responses to Slave Labor in Japan and the United States’ (2005) 91 Cornell L Rev 733.
115 Complainant Union v Greenpeas Enterprise ApS, NCP Denmark (22 October 2013) Initial Assessment (21 January 2014) Final Statement (14 August 2014).
116 An initial assessment concluded that the agreement between the parties only resolved the case partially in regards to salaries of some workers whereas the complaint dealt with a variety of issues, including the withholding of some of the employees’ passports, which had not been considered in the settlement.
117 Sherpa & UGF v Devcot SA, NCP France (25 October 2010) Final Statement (21 September 2012).
118 CCCDK v PWT Group, NCP Denmark, Final Statement (17 October 2016); ADHRB v Formula One Management Ltd, NCP UK (31 May 2014).
119 Clarifying the Concepts of ‘Sphere of Influence’ and ‘Complicity’, UN Doc A/HRC/8/16 (2008) para 42.
120 See e.g. Canada Tibet Committee v China Gold Int. Resources, NCP Canada (29 January 2014) Final Statement (1 April 2015).
121 Global Witness v Afrimex, NCP UK (20 February 2007) Final Statement (28 August 2008); RAID v Das Air, NCP UK (28 June 2004) Final Statement (1 July 2008).
122 Privacy International et al v Gamma International, NCP UK, Final Statement (21 May 2014).
123 CCCDK v PWT Group, NCP Denmark, Final Statement (17 October 2016);
124 ADHRB v Formula One Management Ltd, NCP UK (31 May 2014).
125 ADHRB v SAE Alsetex, Etienne Lacroix Group, NCP France (4 July 2016).
126 Bart Stapert v Mylan, NCP The Netherlands (11 April 2016).
127 Lawyers for Palestinian Human Rights v G4S, NCP UK (31 March 2015).