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The Law of International Responsibility edited by Crawford, James; Pellet, Alain; Olleson, Simon; Parlett, Kate

Part III The Sources of International Responsibility, Ch.23.1 The Responsibility of Other Entities: Private Individuals

Christian Tomuschat

From: The Law of International Responsibility

Edited By: James Crawford, Alain Pellet, Simon Olleson, Kate Parlett

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 August 2019

Subject(s):
Responsibility of individuals — Responsibility of states — Wrongful acts — Individual criminal responsibility — Crimes against humanity — NGOs (Non-Governmental Organizations) — Soft law — Belligerents — National liberation movements

(p. 317) Chapter 23.1  The Responsibility of Other Entities: Private Individuals

While State responsibility is a well-known notion in international law, the international civil responsibility of private individuals, whether individuals or juridical persons, is not a well-defined and generally accepted concept. Often, it is an ensemble of rules of international and domestic law which define the rights and obligations of private individuals. Ideally, one could speak of international responsibility if all the questions pertaining to it were regulated by rules forming part of international law. But the evolution of the regime of individual responsibility is only in its initial stages. In particular, at present there is no specific system for the implementation of individual responsibility under international law, except for criminal responsibility. Given the limited number of disputes, the creation of a tribunal with special competence in the field is not necessary. However, in consequence, one is often found in a position where a vast number of the rules to be applied must be derived from the national law of the State implicated in such a dispute.

It goes without saying that international responsibility implies the breach of an international obligation. Every regime of responsibility is aimed at sanctioning the conduct of a subject of the law who behaves contrary to the duties incumbent upon it. In this respect, the initial point must be the same for both private individuals as well as for States or other subjects of international law. Thus, it will be always necessary to start by identifying the cases in which an individual is the direct addressee of a rule of international law.

(p. 318) As in classical international law of an inter-State character, it is convenient here to distinguish between primary rules, the violation of which can entail responsibility, and the regime of responsibility which defines the consequences of such a violation. After the ILC approached its work on responsibility following the Ago model, and after the General Assembly ‘took note’ of the articles in 2001,1 the belief spread that there was an automatic link between primary and secondary rules. But such automatism does not exist. The famous words of the Permanent Court of International Justice in Chorzów Factory, according to which the State author of a breach of international law must erase all the negative consequences arising from it,2 cannot be applied without having first examined the different classes of individuals who have breached a duty they were bound to respect. Often, the establishment of this secondary regime is left to States. In other cases, it is only the lack of certainty which is certain.

International responsibility of private individuals stricto sensu

(a)  The individual as a subject of international law

Even though the old model of international law where, save for pirates as hostes humani generis, private individuals existed only as objects of protection is now outdated, it still holds true today that individuals only sporadically have access to the international legal system. Sometimes they can hold rights, and sometimes they are considered as being subjected to certain international obligations. But there is no general law regulating the status of private individuals in international law. The essential rights of individuals have been set out in numerous instruments establishing human rights guarantees. However in contrast, the international community has deliberately left to States the task of defining the duties of individuals. It is true that the Universal Declaration of Human Rights establishes in its preamble that individuals themselves are called upon to:

… strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.3

Moreover, article 29 of the Declaration establishes that ‘everyone has duties to the community in which alone the free and full development of his personality is possible’. But this wording only enunciates a political truth, and not a legal obligation. It is significant in this respect that the International Covenants of 1966 do not speak of human duties in their respective operative sections. Only the preambles of these two instruments recall, in identical terms, that the individual has ‘duties to other individuals and to the community to which he belongs’.4 The African Charter on Human and Peoples’ Rights of 1981 finds itself in an isolated position by dedicating an entire section (articles 27–29) to the duties of individuals.5 But, failing the existence of mechanisms for the implementation of these duties in international law, this affirmation also remains solely on the plane of political postulates.

(p. 319) The caution of the authors of these great human rights codifications is clearly understandable. The modern State has all the means at its disposal to impose its will on its nationals as subjects. The doctrine of sovereignty provides the State with a legal arsenal sufficient to overcome any individual resistance. It is because governments, ignorant of the duties they have towards citizens, may abuse their sovereign prerogatives that the concept of human rights arose as a tool of legal defence. The dictatorships of Hitler and Stalin taught the world that the international community bears a responsibility towards each human being and that their fate must not be left to the arbitrariness of a criminal government. To the contrary, the international community has never felt the need to support governments so that they could consolidate their authority within their respective national communities, by reminding individuals of their civic duties. Politically, it is trivial to maintain that all rights go hand in hand with obligations. A human group whose members insisted only on their rights would not be viable. But until recently, there was no need to establish in international law the corresponding legal obligations. The phenomenon of the failing State could, in the future, change this state of affairs.

(b)  Individual responsibility according to the law of international organizations

In the framework of its competence under Chapter VII of the Charter, the Security Council enjoys a wide margin of discretion. The text does not limit the ratione personae scope of application of its decisions. In consequence, it can be concluded that it is authorized to address not only States and international organizations, but also every subject or group that it considers to have an influence on international peace and security, of which it is the guardian. In fact, the Council frequently invites the parties to internal armed conflict to respect humanitarian law and human rights. To the contrary, so far it has refrained from imposing orders directly on individuals and private businesses. But it is not prevented from so doing. In imposing an economic embargo, for instance, it could without great difficulty determine the firms falling within the scope of application of the measure. The reasons for its reluctance to do so are easy to guess: the absence of a defined regime of responsibility would make any attempt to establish direct legal contacts illusory. Normally, States are in a much better position to compel individuals under their control to comply with constraining legal orders. If the Security Council wanted to command respect for its decisions by private entities it would find itself in great difficulty in the absence of a code specifying the sanctions capable of being imposed on those private entities which breach the obligations imposed by Security Council resolution.

However, in order to combat terrorist activities, to prevent the spreading of weapons of mass destruction or to put pressure to bear on parties to internal armed conflict, the Security Council has introduced a practice according to which persons bearing direct or even indirect responsibility for such activities may be targeted as persons individualized by their name. Their assets may be frozen, and a travel ban may be imposed upon them. The relevant orders are not addressed to the individuals themselves, but to the States that have jurisdiction over them. The Security Council has delegated these tasks to so-called Sanctions Committees, the best-known of which is the Al-Queda and Taliban Sanctions Committee established by Resolution 1267 (1999). They establish lists of persons presumed to be involved in any of the activities deemed to run counter to international peace and security. The burden of enforcement of such lists rests with the States concerned or, in (p. 320) the case of supranational organizations to which the relevant sovereign powers have been transferred, with these organizations. Evidently, States or other entities lack any discretion in making the orders issued by a Sanctions Committee operative. It is only natural that questions have arisen as to the judicial protection against such indirect targeting. Within the UN system itself, no such remedies are provided for. However, the Security Council has drawn up careful rules for the process of listing and delisting of such persons. According to the view of the Court of Justice of the European Communities, such administrative procedures fail to meet the requisite standard of protection as implied within the legal system of the European Union.6

Within the European Communities, certain provisions establish individual obligations which may be accompanied by sanctions. The most famous example is that of article 83 of the EC Treaty.7 Concerning the substantive articles on competition law, this provision stipulates in paragraph 2 that regulations and directives may establish a system of fines and penalties to ensure the respect for the substantive obligations. In fact, this authorization was implemented by Regulation (CEE) No 17/62 of the Council,8 which sets forth, especially in articles 15 and 16, the maximum amounts which may be imposed on businesses in case of breach. In dealing with the responsibility of individuals in international law, normally this supranational regime is not analysed. In fact, the regime of individual obligations as it is applied in the European Communities closely resembles the regimes established in the administrative law of the member States, on which it is based. Community law, although international in its origin, has acquired specific characteristics which bring it close to an internal legal order.

Yet, the example of the European Communities clearly shows that the responsibility of private individuals results from a different logic than that of the responsibility of States. The breach by a State of its obligations towards another State generates a legal relationship which, despite the wrongful action, is established on a level of parity. In the absence of a competent international jurisdiction, no State may ‘punish’ another State. The two actors, the State author of the unlawful act and the victim, are and remain sovereign entities. In contrast, when an individual commits an act contrary to an obligation which is imposed on him or her by international law, he or she may be characterized as the author of a criminal act. A private individual does not have the same ‘ceremonial dignity’ as a State.

This fundamental difference in approach also reveals that the consequences that the ILC articles establish for internationally wrongful acts are not generally appropriate to be applied to individuals. The responsibility of individuals has a different tone from that of States. The example of satisfaction (article 37 of the ILC Articles) clearly demonstrates this. Apologies or expressions of regret are adequate means of satisfaction for interstate relations; apologies presented by an individual are no more than a gesture of courtesy and do not have the same weight as official apologies offered by a State. On the other hand, as has already been said, while punishment is excluded in the relations between States, given that both parties have the same hierarchical rank in international law, nothing precludes a private person, an individual or a legal person, from being subjected to a true criminal (p. 321) sanction. Thus where an individual obligation directly derives from international law, it is necessary to take the greatest care to define the applicable secondary regime.

(c)  Responsibility for international crimes

The most accurate reflection of a regime of responsibility of private individuals can be found in the regime of criminal responsibility of individuals for the commission of international crimes. The crimes which were included initially in the Statutes of the International Military Tribunals for Nuremberg and the Far East,9 which were taken up by the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda,10 which appear in the draft Code of Crimes against the Peace and Security of Mankind adopted by the ILC in 1996,11 and which were finally included in the Rome Statute for the International Criminal Court,12 are all internationally wrongful acts which can never be justified by internal legislation. Whoever perpetrates one of these acts has, in all circumstances, committed a wrongful act. By logical deduction, the object of any attack must have the right to defend himself. The potential victim of a genocidal action cannot be obliged, by virtue of a rule of law, to allow his murder. In this respect, international law eliminates and destroys all justifications that internal laws could provide. Thus if the author of such a crime is responsible for an act characterized by international law as unlawful, all arguments seem to favour a right for the victim or persons claiming through the victim to obtain reparation for the damage caused and a corresponding obligation to do so on behalf of the author of the crime. It seems logical to argue that the effectiveness of the prohibitions enunciated in the relevant international instruments depends on a number of factors. As in internal legal systems, criminal proceedings constitute only one of the responses which the legal order establishes for the commission of criminal acts, the other being the establishment of civil responsibility. In international law, a right for the victim to obtain reparation would definitively wipe out the negative consequences of the injurious act.

Yet what initially seems to respond to perfect logic may often encounter practical difficulties. All international crimes are of a political nature. Both the Draft Code of Crimes and the Rome Statute highlight that these crimes are characterized either by their widespread character or their systematic commission. In other words, by definition the author of an international crime has not committed an isolated crime; he must normally threaten the life or physical integrity of at least dozens of persons, often hundreds, thousands, or millions of victims. Hitler, if he had survived the end of World War II in 1945, would have certainly been accused before the International Military Tribunal at Nuremberg. To bring against him an action to obtain reparation for the dreadful damages caused would not have made sense. Hitler was not a rich man. Even if he had garnered a considerable fortune during his time as head of the Nazi dictatorship in Germany, it would have (p. 322) not begun to cover all the damages which could be attributed to him. The problem of the just distribution of the goods of an accused convicted for having committed international crimes is not a contingent factor. It poses a structural problem.

It might be expected that the Statutes of the existing International Criminal Tribunals and in the Rome Statute would provide an answer to the questions posed. In fact, the Statute for the Yugoslavia Tribunal contains certain rules on this matter. But these rules do not assume that the author of a crime is under an international obligation to make reparation for the damage caused by him. Article 105 of the Rules of Procedure and Evidence of the ICTY make provision for the restitution of property;13 in relation to all other damage, article 106(B) specifies that the victim or persons claiming through the victim ‘pursuant to the relevant national legislation … may bring an action in a national court or other competent body to obtain compensation’. In other words, there is a renvoi to national legislation. In these circumstances it is difficult to interpret the Rules in the sense of recognizing an international law obligation for the author of the crime to make reparation. At a pinch, it could be argued that the obligation is found in international law and only the modalities of its implementation result from national law. However, there remains uncertainty as to the foundations of individual responsibility to victims.

According to article 75(2) of the Rome Statute, the International Criminal Court is authorized to adopt against a convicted person an order indicating the reparation that should be paid to the victims or persons claiming through the victim. This reparation may take the form of restitution, compensation or rehabilitation. But if need be, the Court can decide that the award for reparations be made through a Trust Fund, created for the benefit of the victims. This Trust will be funded by money and other property collected through fines or forfeiture (article 79). Given the discretion that the Court enjoys in taking the appropriate decision, it might be asked whether this regulation is effectively the reflection of a civil responsibility in the proper sense of the term. In any event, the possible payments which a convicted person must make as a fine, pursuant to article 75(2), are the corollary of his punishment by the International Criminal Court.

(d)  Responsibility for human rights violations

International crimes constitute the worst form of violation of human rights. It is for this reason that international law expanded classical international responsibility and imposed criminal responsibility on the material authors of such criminal acts. In this context, it can be argued that there is a general responsibility for violations of human rights, which presupposes the horizontal effect (in the mutual relationships between private individuals) of the relevant norms. Essentially, however, private persons are not bound by human rights norms such as they exist in contemporary international law. The European Court of Human Rights has never recognized such a horizontal effect, all the less since individual applictions for breaches of the rights established in the European Convention on Human Rights14 can only be filed against the States parties to the Convention. Similarly, the caselaw of the Human Rights Committee, established under the International Covenant on Civil and Political Rights, contains no indication that the obligations under the Covenant are extended to subjects other than States parties. The General Comments of the (p. 323) Committee on Economic, Social and Cultural Rights, according to which civil society and the private business sector have responsibilities in the realization of the right to adequate food and the right to the highest attainable standard of health,15 are only recommendatory statements and do not have specific legal significance. The efforts to include the economic sector in this respect pertain more to a political than to a legal dimension. However, even characterized as such, these efforts deserve further attention.

Civil responsibility pursuant to conventional regimes

Several contemporary international treaties include provisions placing the responsibility for damages caused by the exploitation of an activity or a business that is intrinsically dangerous on the operator. The territorial State is thus relieved from responsibility for negligent control. Often, these conventions establish that the State assumes a supplementary guarantee in case the operator is not capable to meet his debts. This model of direct responsibility of the concerned economic operators can be found especially in the nuclear field as well as in environmental law.

(a)  The domain of nuclear energy

The OECD Paris Convention on Third Party Liability in the Field of Nuclear Energy16 constitutes the typical example of the regime of direct responsibility of the operator. Two Additional Protocols of 28 January 1964 and 16 November 1982 amended this Convention,17 but its guiding principles remained unchanged. According to article 3, the operator of a nuclear installation is directly responsible for the damage caused by its activity. This responsibility has an objective character. However, the absence of fault as a condition of responsibility corresponds to a rather low ceiling of 15 million Special Drawing Rights per nuclear incident (article 7). On the other hand, the operator is under an obligation to subscribe to an insurance covering the entire amount of its possible responsibility. In addition to the upper limit, the other great advantage for the operator is the limitation of jurisdictional competence. Only the tribunals of the place where the damaging incident occurred are competent to deal with legal actions concerning the incident.

Similar traits characterize the Vienna Convention on Civil Liability for Nuclear Damage,18 amended by a Protocol in 1997.19 This Convention owes its existence to the work of the International Atomic Energy Agency and is thus intended to apply universally. The 1997 Protocol raised the ceiling of responsibility from 5 to 300 million Special Drawing Rights. Moreover, through a joint Protocol in 1988 the two Conventions were linked so that the higher ceiling of the Vienna Convention can now benefit the victims of nuclear incidents residing in one of the OECD member States.20

Although regulated by an international agreement, responsibility for nuclear damage does not result from international law. The sole function of these two Conventions is to (p. 324) establish certain minimal rules for the responsibility of the operator of a nuclear installation, rules which must be transposed in the internal legal order by the States parties to them. The regulation of the damage is entirely left to the private persons concerned: the operator on the one hand and the victims of its activity on the other. Neither the national States of these parties nor the organs of the international community intervene in this process. In addition to the specific rules established in the international instruments, all other applicable rules are part of the internal laws of the State in question.

Both the Paris Convention and the Vienna Convention establish that the nature, form and amount of compensation, as well as its equitable distribution, depend on internal law. Similarly, internal laws can to a certain extent modify the maximum and minimum amounts established in the Conventions; the contracting parties equally granted themselves the rights to determine the statutes of limitation. Finally, every dispute shall be settled before the tribunals of the State where the incident occurred. All things considered, the obligations of the operator remain essentially subject to the civil law of a State. Both Conventions have only established an agreement over certain modifications of the normal regime of responsibility, modifications which seemed necessary in view of the special dangers inherent to nuclear energy. They also reflect a method well known to private international law, which often seeks to harmonize or make uniform the rules of internal laws by drafting an international treaty whose content will then be translated in the internal legal orders of the States parties. The entire work of the ILO is based on this method.

(b)  The domain of the environment

The same scheme underlies several treaties concerning the responsibility for damage caused to the environment. The most ambitious instrument is the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, which created an objective responsibility for the operators of such activities, without limitation to a specific field.21 But the political ambition has exceeded reality. As at 23 September 2009 no State had ratified the Convention. The 1999 Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Wastes and their Disposal,22 intended to complement the Basel Convention,23 also follows this general model. In article 18 the Convention establishes that all substantive or procedural questions concerning claims not expressly regulated by the Protocol are regulated by the laws applied by the national tribunal approached by the claimant.

The treaties drafted by the International Maritime Organization fall within this same category: the 1969 International Convention on Civil Liability for Oil Pollution Damage,24 which makes the owner of the vessel aboard which the leak or waste of polluting hydrocarbons occurred responsible; the 1971 Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material25 as well as the 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous (p. 325) and Noxious Substances by Sea.26 Also according to these treaties, the relationship between the person causing the damage and the victims of the damage are essentially placed under the domain of the national laws of one of the contracting parties, save for the specific rules established under the convention which have become an integral part of national laws.

Responsibilty pursuant to national law, based on a breach of international law

Another form of ‘indirect’ international responsibility is constituted by national regimes which attach a system of national sanctions to acts which are internationally unlawful. In principle, each State is authorized to promote respect for international norms by placing at the disposal of victims certain means of implementation which are absent in international law itself. Often international treaties invite States to provide the victims of violations with a right to reparation. Thus, for instance, article 14(1) of the UN Convention against Torture27 establishes that each State party ‘shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation’. Normally, effectiveness seems to require that this right be directed against a responsible State, but nothing prevents national legislation to provide for a claim of reparation against the responsible agent himself. The only problem raised in this context is that of international jurisdiction. Even by providing a means for the performance of international obligations, a State must respect the limits by which international law defines its scope of application. If the State places its judicial system at the service of international legality in relation to acts occurred abroad, it must be able to invoke a valid jurisdictional link.

In the United States, a legislative act of 1789, the Alien Tort Claims Act (ATCA),28 was rediscovered by American tribunals in the Filártiga v Peña Irala case.29 In this case, the parents of a young Paraguaian tortured to death by a police officer filed, in the United States, an action for the reparation of the damage caused by this barbarous act against the agent who inflicted the torture, whom they had located in New York. To proceed with the request presented by the claimants, the tribunal referred to the ATCA, specifying that torture was a crime pursuant to international law. Since then, the ATCA has served as a basis for numerous legal actions. It establishes that:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

It was originally believed by the American courts that the ATCA had two functions. On the one hand, it established the competence of the federal courts—and thus, the competence of the United States. On the other hand, it would also establish a substantive right to reparation. This second component was eventually denied by the US Supreme Court in Sosa v Alvarez-Machaín,30 which held that a cause of action must be derived from common law: it allowed courts to recognize private claims for violations of international law norms with a ‘definite content and acceptance among civilized nations’ comparable to the torts originally understood to be covered by the statute: violations of safe conducts, infringement of the rights of ambassadors, and piracy. After having realized the inherent limitations of (p. 326) ATCA, and especially the fact that it operates to discriminate against American nationals who cannot benefit from it, another legislative act was adopted in 1991, the Torture Victims Protection Act (TVPA).31 This law confers on all victims of torture or extrajudicial executions perpetrated ‘under actual or apparent authority, or color of law, of any foreign nation’ a right to reparation that can be actioned before American tribunals, as long as the claimants have duly exhausted all the adequate and available remedies in the State where the crime occurred. Abuses committed at home in private relationships are not taken into account.

Clearly under both the ACTA and the TVPA, the starting point is a violation of international law. The ATCA expressly establishes it, while the TVPA presupposes this type of violation, at least implicitly. The first article of the Convention against Torture specifies in its definition of torture that it can only be committed ‘by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. On the other hand, extrajudicial, summary and arbitrary executions were recognized by the General Assembly as constituting a flagrant violation of the fundamental right to life.32 It has already been shown that the rules elevating an act to the rank of international crime constitute at the same time prohibitions: the person who commits an international crime does not only become subject to punishment, but at the same time breaches a rule of international law. Thus the two statutes cover a broad field of tortuous activities that may entail individual civil responsibility.

In the United States, a debate took place on the circumstances in which a private person is capable of infringing international law, as required by the ATCA. In the case of Forti v Suarez Mason,33 the Court specified that the breach must concern universal, obligatory and definable norms; another formulation speaks of specific, universal and obligatory norms. These definitions are infelicitous for they englobe a great number of rules that can produce their effects only as between States. Recently, in Doe v Unocal34 a court affirmed that the rules of international law to which ATCA refers are those having the character of jus cogens, an opinion that has been dismissed by legal scholarship.35 In principle, it seems correct to affirm that the rules of general international law which create obligations for private persons are norms of jus cogens. In any event, the practice of American courts considers that a single act is sufficient for the ATCA to be applicable. It is not necessary that the claim deals with a group of acts attaining the gravity of a crime against humanity.

Although legal persons are not yet subject to any regime of international criminal responsibility, they may incur responsibility under the ATCA. Tribunals consider that a private business may particularly be accomplice to governmental actions which breach human rights. In this respect, in Doe v Unocal the claimants had argued that the defendant supported the unlawful operations of the Burmese government, engaged in expelling indigenous populations from their ancestral lands in order to facilitate the construction of a gas pipeline. Since the case was settled, Doe v Unocal has essentially lost its character as an authoritative precedent. But other courts have followed suit. In Khulumani v Barclay National Bank Ltd,36 where dozens of corporations were sued for aiding and abetting (p. 327) the South African apartheid regime, the Second Circuit came also to the conclusion that civil liability of private entities was indeed conceivable. The case is currently proceeding before the lower courts.37

Up until now, the ATCA has mostly been considered as a great step forward towards the progressive realization of human rights. But it is clear that it also brings a number of inconveniences. It is not certain that a State can assume the right to establish itself as a civil judge of all violations of international law committed by private persons, without regard for the place where the relevant events occurred. Thus, as already hinted above, some claims have been brought in order to obtain reparation orders against the European banks which remained in South Africa during the apartheid era. The claimants allege that these banks lent active assistance to the minority white government. It is true that eventually the claims may not have any serious chance of success, because the attempt, based on the 1973 International Convention on the Suppression and Punish ment of the Crime of Apartheid,38 to render apartheid a punishable international crime was unanimously opposed by western States. But it is in any event worrisome that the United States wishes to impart justice in a matter which has no relationship at all with the United States. The requests made by the claimants can only be based on the principle of universal jurisdiction. On the other hand, it is precisely the United States which has challenged universal jurisdiction, inter alia in its opposition to the Inter national Criminal Court. As the caselaw concerning the application of ATCA develops, it will more clearly be seen whether the international community accepts the role that American courts have assumed, somewhat accidentally, in rediscovering a law whose original philosophy remains obscure to this day. It should be mentioned, in this connection, that according to the jurisprudence of the International Court of Justice and the majority of writers neither the immunity of States nor the immunity of their highest representatives ceases if a claim is based on the allegation that an international crime has been committed. In the relevant Arrest Warrant case,39 Judges Higgins, Kooijmans, and Buergenthal delivered a dissenting opinion to the contrary;40 but their view has not gained significant ground.

‘Soft law’

It cannot be denied that large companies, especially multinational companies, play a decisive role in many States. Often, in the third world, the budget of a multinational company is larger than the budget of the State where it has established a subsidiary company. Due to the social climate which may prevail in the relevant country, it is essential that multinational companies are guided in their commercial practices by the same principles which must inspire public authorities. Thus, a considerable number of instruments already in existence or currently being drafted emphasize the duty of these large enterprises to respect human rights. Yet without exception all these instruments are conceived as bills or charters to which the companies must voluntarily adhere. Lacking any mandatory character, they are not capable of engaging the responsibility of an actor who infringes the rules (p. 328) established therein. However, as these instruments may evolve from soft law into hard law eventually, it is convenient to briefly look at the most relevant ones.

On the one hand, international organizations have made an effort to collect in a single code the principles by which large companies, especially companies with transboundary ramifications, should be guided. It is thus that the 1997 ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy establishes that these enteprises must respect notably the Universal Declaration of Human Rights as well as the two 1966 International Covenants on Human Rights.41 While the ILO declaration has a universal application, the OECD Guidelines for Multinational Enterprises,42 are addressed to multinationals operating in the territory of the member States of the Organization. But their content is nearly identical. They recommend enterprises to ‘[r]espect the human rights of those affected by their activities’.43 Another expression of this same idea may be found in the ‘Global Compact’ initiated by the former Secretary General of the United Nations, KofiAnnan in January 1999.44 The first of the ten principles established in this compact requests that businesses should support and respect the protection of internationally proclaimed human rights. More recently, the Sub-Commission for the Promotion and Protection of Human Rights, acting under the authority of the Commission of Human Rights of the United Nations, adopted in 2003 ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’45 according to which transnational corporations and other commercial companies ‘shall’ recognize and respect the applicable norms of international law, notably civil, cultural, economic, political and social rights, and contribute to their realization, in particular the right to development and a long list of other rights. At the same time, this text provides that the concerned enterprises ‘shall’ make reparation for all the damage caused by their failure to respect the rules enounced therein. It is evident that these Principles find little basis in existing international law; it therefore seems unlikely that they will move from soft to hard law at any point in the near future. Indeed, this text was not well received by the Commission of Human Rights,46 but the subject has given rise, within the United Nations, to new studies by independent experts.

It is not surprising that a great number of NGOs, including Amnesty International, the Caux Roundtable, the Global Reporting Initiative, as well as Social Accountability International, have supported such initiatives. Up to the present, however, all of their initiatives have remained in the domain of legal policy. International law has not yet evolved to the point of imposing on multinational enterprises proper legal obligations that could serve as a basis for their potential international responsibility.

(p. 329) Further reading

  • A Clapham, Human Rights Obligations of Non-State Actors (Oxford, Oxford University Press, 2006)
  • O de Schutter (ed), Transnational Corporations and Human Rights (Oxford, Hart, 2006)
  • MT Kamminga and S Zia-Zarifi, Liability of Multinational Corporations under International Law (The Hague, Kluwer, 2000)
  • D Kinley (ed), Human Rights and Corporations (Farnham, Ashgate, 2009)
  • JJ Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) Vanderbilt JTL 801
  • S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) Yale LJ 443
  • B Stephens, ‘Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’ (2002) Yale JIL 1
  • B Stephens, ‘Expanding Remedies for Human Rights Abuses: Civil Litigation in Domestic Courts’ (1997) GYBIL 117
  • C Tomuschat, ‘Grundpflichten des Individuums nach Völkerrecht’ (1983) Archiv des Völkerrechts 289
  • SG Wood & KBG Scharffs, ‘Applicability of Human Rights Standards to Private Corporations: an American Perspective’ (2002) American Journal of Comparative Law 801
  • JA Zerk, Multinationals and Corporate Social Responsibility (Cambridge, Cambridge University Press, 2006)(p. 330)

Footnotes:

GA Res 56/83, 12 December 2001.

Factory at Chorzów, 1925, PCIJ, Series A, No 17, p 4, 47.

GA Res 217A (III), 10 December 1948.

International Covenant on Civil and Political Rights, New York, 16 December 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, 993 UNTS 3.

African Charter on Human and People’s Rights, Banjul, 27 June 1981 (1982) 21 ILM 58.

C-402/05 P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council and Commission, 3 September 2008, OJ C 106.

Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community (consolidated text), OJ C 321E of 29 December 2006; see now art 103 of the Treaty on the Functioning of the EU.

Regulation (CEE) No 17/62 of the Council, 6 February 1961, OJ L 285 of 29 December 1971, 49.

Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, signed and entered into force 8 August 1945, 82 UNTS 279, art 6; Charter of the International Military Tribunal for the Far East, 19 January 1946 (as amended 26 April 1946), 4 Bevans 21.

10  Statute of the International Tribunal for the Former Yugoslavia, SC Res 827, 48 UN SCOR (3217th mtg), UN Doc S/Res/827 (1993), 32 ILM 1203, arts 2–5; Statute of the International Tribunal for Rwanda, SC Res 955, 49 UN SCOR (3452nd mtg), UN Doc S/Res/955 (1994), 33 ILM 1598, arts 2–4.

11  ILC Yearbook 1996, Vol II(2), 15.

12  Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, arts 5–9.

13  ICTY, Rules of Procedure and Evidence, IT/32/Rev.43, 23 July 2009, art 105.

14  213 UNTS 222.

15  ECOSOC, The right to adequate food (art 11), E/C.12/1999/5, 12 May 1999, para 20; ECOSOC, The right to the highest attainable standard of health, E/C.12/2000/4, 11 August 2000, para 42.

16  956 UNTS 251.

17  1519 UNTS 329.

18  1063 UNTS 265.

19  (1997) 36 ILM 1454.

20  Joint Protocol Relating to the Application of the Vienna Convention on Civil Liability for Nuclear Damage and the Paris Convention on Third Party Liability in the Field of Nuclear Energy (Vienna, 21 September 1988), 1672 UNTS 301.

21  ETS No 150, (1993) 32 ILM 1228.

22  Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal, Basel 10 December 1999, UN Doc UNEP/CHW.5/29. The Protocol currently has 10 States parties and is not yet in force.

23  Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Basel 22 March 1989; 1673 UNTS 126.

24  973 UNTS 3.

25  974 UNTS 255.

26  (1996) 35 ILM 1406.

27  1465 UNTS 112.

28  28 USC par 1350.

29  630 F.2d 876 [2d Cir. 1980]; (1980) 19 ILM 966.

30  542 US 692 (2004).

31  28 USC par 1350.

32  GA Res 55/111, 4 December 2000.

33  672 F Supp 1531, 1540 (ND Cal 1987).

34  110 F Supp 2d 1294, 1304 (CD Cal 2000). Eventually, a settlement was reached by the parties.

35  JJ Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) Vanderbilt JTL 801, 824.

36  504 F 3rd 254 (2nd Cir 2007).

37  See also Prebsyterian Church of Sudan v Talisman Energy Inc, 2 October 2009, where the 2nd Circuit materially limited the scope of complicity in conduct of the state.

38  1015 UNTS 243.

39  Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, 3.

40  Ibid, 63, 84–89.

41  ILO, OB Vol LXI, 1978, Series A, No 1, para 8.

42  Adopted in 1976, and revised in 2000, the text is available at: <http://www.oecd.org/document/28/0,3343,en_2649_34889_2397532_1_1_1_1,00.html>.

43  OECD Guidelines for Multinational Enterprises, §II, para 2.

45  ECOSOC, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/2003/38/Rev.2, 26 August 2003.

46  ECOSOC, Commission on Human Rights, Decision No 2004/116.