Corporate misconduct is well-known and wide-spread. For example, Shell has been complicit in forcefully chasing the Ogoni people of Nigeria from their homes to gain access to oil and is still responsible for the devastation of the environment and health caused by numerous oil spills in the region. Nestlé promoted its ‘infant formula’ milk powder and discouraged breast feeding in developing countries which lead to major health problems for the children as the parents used unclean water to make the milk. More recently, in Bangladesh, where the buildings of cheap textile industries collapsed, clothes are produced for all major brands without any respect for labour rights of the employees.
International human rights law does however acknowledge that not all perpetrations are directly being committed by states, but had to bend over backwards to come up with a solution for the state-based human rights framework which didn’t allow obligations for non-state actors. The solution to the problem was found in the magic concept of “positive obligations” (also “the obligation to protect”, in addition to the classic “obligation to respect” human rights). Instead of making non-state actors such as corporations directly responsible under human rights law, human rights bodies started to hold states accountable not only for their conduct, but also for the conduct of private actors which operated on their territory. If certain non-state actors, including corporations and, even, individuals, violate, for example, my human right to privacy, the state is responsible for not having prevented this behaviour by, for example, adopting laws prohibiting the said conduct. This has led to ridiculous situations where states are held to have violated human rights law because paparazzi took pictures of certain persons (Von Hannover v. Germany before the European Court of Human Rights).
Consequently, non-state actors do not at all face the consequences of violating human rights. In addition, corporations are not confined within the borders of one state, but they operate worldwide through subcontractors and subsidiaries, which are separate entities which makes it even harder to hold ‘parent corporations’ operating abroad accountable at all.
However, international law has shown that it is not impossible to put direct obligations on actors other than the state. Under international criminal law individuals are internationally accountable for certain crimes they have perpetrated, regardless of national boundaries. Humanitarian law applies to certain armed groups when they have a certain amount of control over the territory they are operating in. Moreover, international human rights law is applied to corporations through domestic litigation. The best example is that of the US Alien Tort Claims Act, which allows foreign individuals to address human rights violations committed by corporations abroad.
Nevertheless, international human rights law as such does not (yet) impose binding obligations on corporations. There only exist multiple voluntary codes whereby corporations themselves can decide whether they sign up or not, and even when they violate the code they won’t face consequences such as court proceedings. The latest of these voluntary frameworks is the one introduced by the UN, namely the UN Guiding Principles on Business and Human Rights, which, however, places the primary responsibility for human rights on the state.
To my mind it is therefore feasible – with the necessary political will – to conclude binding treaties to regulate human rights violations by corporations. Moreover, this is even a necessary route to take if we want corporations to take human rights seriously. The human rights framework clearly needs to be updated, if it wants to stand a chance against its 21st century enemies
Culled from Humanimal Rights
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