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The Corporate Keepers of International Law

Published online by Cambridge University Press:  13 January 2020

Jay Butler
Jay Butler*
Affiliation:
Associate Professor, William & Mary Law School. This Article was selected for the 20th Session of the Yale/Stanford/Harvard Junior Faculty Forum (June 2019). It also benefited from comments made at the Jerome M. Culp Colloquium at Duke Law School and generous support from the Program in Law and Public Affairs at Princeton University.
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Abstract

In transborder environmental protection, territorial disputes, internet governance, anticorruption, international human rights, and humanitarian law, private businesses are increasingly supporting the implementation and enforcement of international law. This Article analyzes the various ways that corporate decision making contributes to this phenomenon, and assesses its prospects for enhancing international law's existing enforcement paradigms. In doing so, the Article opens new ground for scholarly and policy consideration of the proper role of corporations in the global legal order.

Type
Article
Information
American Journal of International Law , Volume 114 , Issue 2 , April 2020 , pp. 189 - 220
Copyright
Copyright © 2020 by The American Society of International Law

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References

1 Company Overview of Airbnb, Inc., bloomberg, at https://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=115705393.

2 See, e.g., East Timor (Port. v. Austl.), 1995 ICJ Rep. 90, paras. 26–29 (June 30) [hereinafter Portugal v. Australia]; Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, paras. 126–27 (Oct. 16); Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, 1971 ICJ Rep. 16, paras.124–27 (June 21). ICJ reports are available at http://www.icj-cij.org. See also Antonio Cassesse, International Law in a Divided World 103 (1986).

3 See 50 U.S.C. § 4607.

4 Listings in Disputed Regions, Airbnb: Newsroom (Nov. 19, 2018), at https://press.airbnb.com/listings-in-disputed-regions (announcing Airbnb's decision to “remove listings in Israeli settlements in the occupied West Bank …”).

5 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 120 (July 9) (“The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.”); SC Res. 2334 (Dec. 23, 2016) (stating the Security Council “[r]eaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law”). See also Roberts, Adam, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 44, 83–86 (1990)Google Scholar.

6 Human Rights Council Res. 31/36, para. 13, UN Doc. A/HRC/RES/31/36 (Mar. 24, 2016).

7 Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion, 1971 ICJ Rep. 16, para.124 (June 21) (noting that the duty of nonrecognition “impose[s] upon member States the obligation to abstain from entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory”).

8 Human Rights Watch, Bed and Breakfast on Stolen Land: Tourist Rental Listing in West Bank Settlements, 46–47 (Nov. 2018), available at https://www.hrw.org/sites/default/files/report_pdf/israel1118_web_0.pdf (asserting that “[s]ettlement businesses depend on and benefit from the Israeli military authorities’ unlawful confiscation of Palestinian land and other resources and contribute to the well-being and growth of settlements”).

9 Listing in Disputed Regions, supra note 4.

10 Id.

11 Julia Jacobs, Airbnb Reverses Policy Banning Listings in Israeli Settlements in West Bank, N.Y. Times (Apr. 9, 2019), at https://www.nytimes.com/2019/04/09/world/middleeast/airbnb-israel-west-bank.html.

12 Id.

13 Update on Listings in Disputed Regions, Airbnb: Newsroom (Apr. 9, 2019), at https://press.airbnb.com/update-listings-disputed-regions.

14 Shaw, Malcolm N., International Law 1242–51 (7th ed. 2014)Google Scholar

15 An important exception is business support for the boycott of apartheid South Africa and the adoption of the Sullivan Principles by companies that chose to continue operations in the country but not to abide by its racist laws and policies. See Sullivan Principles for U.S. Corporations Operating in South Africa, 24 LM 1496 (1985); S. Prakash Sethi & Oliver F. Williams, Creating and Implementing Global Codes of Conduct: An Assessment of the Sullivan Principles as a Role Model for Developing International Codes of Conduct–Lessons Learned and Unlearned, 105 Bus. & Soc'y Rev. 169, 170, 195–96 (2002); see also Kishanthi Parella, Improving Social Compliance in Supply Chains, 95 Notre Dame. L. Rev. 727 (2019) (examining why corporations might comply with nonbinding international legal institutions, including reputation and legitimacy).

16 Paris Agreement, Art. 4(2), Dec. 12, 2015, TIAS No. 16-1104 (“Each party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve.”).

17 Id. (“Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.”).

18 White House Press Release, President Trump Announces U.S. Withdrawal from the Paris Climate Accord (June 1, 2017), at https://www.whitehouse.gov/articles/president-trump-announces-u-s-withdrawal-paris-climate-accord; White House Press Release, Fact Sheet: U.S. Reports its 2025 Emissions Target to the UNFCCC (Mar. 31, 2015), available at https://obamawhitehouse.archives.gov/the-press-office/2015/03/31/fact-sheet-us-reports-its-2025-emissions-target-unfccc.

19 We are Still In, About, at https://www.wearestillin.com/about; America's Pledge, About America's Pledge, at https://www.americaspledgeonclimate.com/about.

20 David Francis, Cities, States and Companies Vow to Stick to the Paris Climate Agreement, For. Pol'y (June 2, 2017), at https://foreignpolicy.com/2017/06/02/cities-states-and-companies-vow-to-stick-to-the-paris-climate-agreement; Hiroko Tabuchi & Henry Fountain, Bucking Trump, These Cities, States and Companies Commit to Paris Accord, N.Y. Times (June 1, 2017), at https://www.nytimes.com/2017/06/01/climate/american-cities-climate-standards.html; see also All Things Considered: Mars Incorporated Criticizes Trump's Decision to Leave Paris Climate Accord, NPR (June 1, 2017), at https://www.npr.org/2017/06/01/531099035/mars-incorporated-criticizes-trumps-decision-to-leave-paris-climate-accordMars; Reducing Greenhouse Gas Emissions, Walmart, at https://corporate.walmart.com/global-responsibility/sustainability/sustainability-in-our-operations/reducing-greenhouse-gas-emissions.

21 Patricia Espinosa, Foreword, in Oil & Gas Climate Initiative, A Report from the Oil and Gas Climate Initiative (Sept. 2018), available at https://oilandgasclimateinitiative.com/wp-content/uploads/2018/09/OGCI_Report_2018.pdf.

22 See generally Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 Case W. Res. J. Int'l L. 387, 391–98 (2000) (distinguishing among compliance, implementation, and effectiveness as different kinds of action in support of international law and analyzing state actions consistent with each concept).

23 See Shima Baradaran, Michael Findley, Daniel Nielson & J. C. Sharman, Does International Law Matter?, 97 Minn. L. Rev. 743, 762 (2013) (noting that “governments play a vital role in formal compliance with international law by enacting and enforcing domestic laws that implement international agreements”); Carlos Manuel Vázquez, Direct vs. Indirect Obligations of Corporations Under International Law, 43 Colum. J. Transnat'l L. 927, 930 (2005) (observing that “[i]nternational law, as it exists today, includes norms that address the conduct of corporations and other non-state actors but, with very few exceptions, the norms do so by imposing an obligation on states to regulate non-state actors,” such that “for the most part, international law regulates such non-states actors indirectly”).

24 See Melissa J. Durkee, Persuasion Treaties, 99 Va. L. Rev. 63, 67 (2013) (observing that “‘[p]ersuasion’ treaties anticipate domestic implementation through regulation of private actors”); Paul B. Stephan, Privatizing International Law, 97 Va. L. Rev. 1573, 1591, 1650–62 (2011) (describing enforcement by companies of international legal obligations to which their home states have already subscribed, but also hinting at the possibility of “forum shopping” between national and international legal orders); Gregory C. Shaffer, How Business Shapes Law: A Socio-Legal Framework, 42 Conn. L. Rev. 147, 172 (2009) (asserting that to make transnational law, businesses “can enlist powerful states to create international public law,” “independently create transnational private legal orders,” or “export their internal standards globally through decentralized processes of diffusion,” but not discussing the adoption of international law rather than domestic law as represented by the sort of choice made by Airbnb); Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 Wm. & Mary L. Rev. 135, 146 (2005) (asserting that “[j]ust as the state is turning more and more to private actors to fulfill the domestic functions of government, private actors are increasingly fulfilling its foreign affairs functions as well”).

25 Melissa J. Durkee, International Lobbying Law, 127 Yale L.J. 1742 (2018); Melissa J. Durkee, The Business of Treaties, 63 UCLA L. Rev. 264 (2016).

26 For notable exceptions, see Ashley Deeks, A New Tool for Tech Companies: International Law, Lawfare (May 30, 2019), at https://www.lawfareblog.com/new-tool-tech-companies-international-law; Natasha A. Affolder, The Private Life of Environmental Treaties, 103 AJIL 510 (2009).

27 See, e.g., Detlev F. Vagts, The Governance of the Multinational, 23 Wisc. Int'l L.J. 525, 528 (2005) (asserting that “[t]he multinational enterprise presents challenges for the world economy and the world polity, particularly for states hosting multinationals that have their base somewhere else,” and that “[i]n some quarters, the multinational became an all-purpose scapegoat, blamed for all sorts of ills …”); Jonathan I. Charney, Transnational Corporations and Developing Public International Law, 1983 Duke L.J. 748, 784, 786 (arguing that “[t]he opportunities for TNC participation in international law enforcement appear remote,” and that “one must conclude that TNC compliance with public international law would be unlikely in the absence of a formal law enforcement system”); Raymond Vernon, Sovereignty at Bay: The Multinational Spread of U.S. Enterprises (1971).

28 See, e.g., John Ruggie (Special Representative of the Secretary-General), Protect, Respect and Remedy: A Framework for Business and Human Rights, para. 14, UN Doc. A/HRC/8/5 (Apr. 7, 2008) (observing that “States, particularly some developing countries, may lack the institutional capacity to enforce national laws and regulations against transnational firms doing business in their territory even when the will is there, or they may feel constrained from doing so by having to compete internationally for investment”).

29 See Nelson Lichtenstein, Two Cheers for Vertical Integration: Corporate Governance in a World of Global Supply Chains, in Corporations and American Democracy (Naomi R. Lamoreaux & William J. Novak eds., 2017); Kishanthi Parella, Outsourcing Corporate Accountability, 89 Wash. L. Rev. 747, 784 (2014); Dickinson, supra note 24, at 151–52.

30 Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005).

31 Eric A. Posner, Liberal Internationalism and the Populist Backlash, 49 Ariz. St. L.J. 795, 814–15 (2017).

32 Steven Press, Rogue Empires: Contracts and Conmen in Europe's Scramble for Africa (2017); Julia Adams & Steven Pincus, Imperial States in the Age of Discovery, in The Many Hands of the State: Theorizing Political Authority and Social Control 333–48 (Kimberly J. Morgan & Ann Shola Orloff eds., 2017); Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv. Int'l L.J. 1, 37 (1999).

33 Andrew T. Guzman, A Compliance-Based Theory of International Law, 90 Cal. L. Rev. 1823, 1826 (2002) (arguing that “compliance is one of the most central questions in international law”); Lori Fisler Damrosch, Enforcing International Law Through Non-forcible Measures, 269 Recueil des Cours 9, 19 (1997) (observing that “[a] fundamental (and frequent) criticism of international law is the weakness of mechanisms for enforcement”).

34 See generally Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance 18–19, 229 (2003); Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1398–99 (1999).

35 Restatement (Third) of the Foreign Rel. L. U.S., pt. 1, ch. 1, intro. note (1987) (“Modern international law is rooted in acceptance by states which constitute the system. Specific rules of law also depend on state acceptance.”); cf. Andrew T. Guzman, Against Consent, 52 Va. J. Int'l L. 747 (2012) (challenging the normative desirability of maintaining consent as the basis of international legal obligation).

36 Hans Morgenthau, Politics Among Nations 270 (2d ed. 1954) (“There can be no more primitive and no weaker system of law enforcement than [international law]; for it delivers the enforcement of the law to the vicissitudes of the distribution of power between the violator of the law and the victim of the violation.”).

37 See generally Damrosch, supra note 33

38 Shaw, supra note 14, at 793–99, 1128–34.

39 See Rachel Brewster, Shadow Unilateralism: Enforcing International Trade Law at the WTO, 30 U. Pa. J. Int'l L. 1133, 1141–43 (2009); Jide Nzelibe, The Case Against Reforming the WTO Enforcement Mechanism, 2008 U. Ill. L. Rev. 319 (2008).

40 Oona Hathaway & Scott J. Shapiro, Outcasting: Enforcement in Domestic and International Law, 121 Yale L.J. 252, 341–42 (2011) (asserting that “[i]t is no secret that powerful states are often offered special treatment under international law”).

41 Shaw, supra note 14, at 1287–95.

42 José E. Alvarez, International Organizations as Law-makers (2005).

43 Saira Mohamed, Shame in the Security Council, 90 Wash. U. L. Rev. 1191, 1199–201 (2013); Stefan Talmon, The Security Council as World Legislature, 99 AJIL 175, 192–93 (2005).

44 Statute of the International Court of Justice, Art. 36; Shabtai Rosenne, The Law and Practice of the International Court, 1920–2005 (2006).

45 Monetary Gold Removed from Rome in 1943 (It. v. Fr., U.K. & U.S..), 1954 ICJ Rep. 19, 32–33 (June 15); see also Portugal v. Australia, supra note 2, at 104, para. 34.

46 See Medellín v. Texas, 128 S.Ct. 1346 (2008) (refusing to give effect to ICJ judgment requiring the United States to review and reconsider death sentences imposed in violation of the Vienna Convention on Consular Relations); see also Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 646 (2008).

47 See Durkee, supra note 24, at 64 (defining persuasion treaties as those that “require states to persuade third parties to do something different, through regulatory or other means”).

48 See, e.g., Rebecca J. Hamilton, Jesner v. Arab Bank, 112 AJIL 720 (2018); Beth Stephens, The Curious History of the Alien Tort Statute, 89 Notre Dame L. Rev. 1467, 1470 (2014); Ralph G. Steinhardt, Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink, 107 AJIL 841 (2013). See also Stephan, supra note 24, at 1655–56 (suggesting that “[p]erhaps no development over the last thirty years has contributed more to the privatization of the production of international law in the United States than the emergence of the ATS as a basis for litigation in federal courts.”).

49 Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081 (2015); Stephan, supra note 24, at 1612–16.

50 Jurisdictional Immunities of the State (Ger. v. It.), 2012 ICJ Rep. 99, para. 139 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 ICJ Rep. 3, para. 78 (Feb. 14).

51 Anthea Roberts & Sandesh Sivakumaran, Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law, 37 Yale J. Int'l L. 107 (2012).

52 See Fionnuala Ní Aoláin, States, Almost States, Non-state Actors and the Geneva Conventions: Palestinian President Abbas's Attempt to Join the Club, Just Security (Apr. 2, 2014), at https://www.justsecurity.org/8777/states-states-non-state-actors-geneva-conventions.

53 Robert E. Scott & Paul B. Stephan, The Limits of Leviathan: Contract Theory and the Enforcement of International Law 10 (2006) (observing that “[i]nformal enforcement occurs when one or more actors (perhaps states, but also firms, nongovernmental organizations, political parties, and others) imposes costs on a rulebreaker in the absence of centralized coordination and control”).

54 See, e.g., Koh, supra note 34, at 1409–10.

55 Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights Through International Law (2013)

56 Id. at 39 n.1 (2013) (acknowledging that their focus is on states and national governments, their analysis “would apply to a broad range of organizational entities including subnational governments, IGOs, NGOs, multinational corporations, and armed opposition groups”).

57 Id. at 112–13; Andrew T. Guzman, The Promise of International Law, 92 Va. L. Rev. 533, 549 (2006).

58 Mary Ellen O'Connell, The Power and Purpose of International Law 76 (2008) (asserting that “[i]n deciding what to do, policymakers take into consideration how violating the rule will affect their state's reputation as trustworthy and law-abiding”). Cf. Rachel Brewster, Unpacking the State's Reputation, 50 Harv. Int'l L.J. 231, 254 (2009) (challenging the actual influence of reputation on decisionmaking and instead asserting that “[i]n many circumstances, the reputation of the state is unconnected with the actions of government leaders”).

59 See, e.g., Chris Brummer, How International Financial Law Works (and How It Doesn't), 99 Geo. L.J. 257, 286–88, 302–06 (2011).

60 Krishnadev Calamur, No One Knows What Kim Jong Un Promised Trump, Atlantic (July 2, 2018), at https://www.theatlantic.com/international/archive/2018/07/north-korea-nuclear/564287; Ellen Nakashima & Joby Warrick, North Korea Working to Conceal Key Aspects of Its Nuclear Program, U.S. Officials Say, Wash. Post. (June 30, 2018), at https://www.washingtonpost.com/world/national-security/north-korea-working-to-conceal-key-aspects-of-its-nuclear-program-us-officials-say/2018/06/30/deba64fa-7c82-11e8-93cc-6d3beccdd7a3_story.html.

61 See Louis Henkin, How Nations Behave 47 (2d ed. 1979).

62 See Whaling in the Antarctic (Austl. v. Japan), 2014 ICJ Rep. 226, para. 247 (Mar. 31); GA Res. 74/17, Problem of Militarization of the Autonomous Republic of Crimea and the City of Sevastopol, Ukraine, as Well as Parts of the Black Sea and the Sea of Azov (Dec. 9, 2019); The South China Sea Arbitration (Phil. v. China), Award, para. 1203 (July 12, 2016).

63 W. Reisman, The United States and International Institutions, 41 Survival: Global Pol. & Strategy 62 (1999).

64 Max Weber, “Objectivity” in Social Science and Social Policy, in The Methodology of the Social Sciences 90 (Edward A. Shils & Henry A. Finch eds. and trans., 1949) (defining the ideal type as an analytical tool of sociological methodology).

65 José E. Alvarez, Are Corporations “Subjects” of International Law?, 9 Santa Clara J. Int'l L. 1 (2011); John H. Knox, Horizontal Human Rights Law, 102 AJIL 1 (2008).

66 Hathaway & Shapiro, supra note 40, at 276, 348–49.

67 H.L.A. Hart, The Concept of Law (3d ed. 2012).

68 Id. (discussing contract law and the choice of parties to subscribe voluntarily to the law's ordering of relationships).

69 See, e.g., All Things Considered, NPR, supra note 20 (when asked whether Mars, Inc. was committing to abide by the Paris Agreement “as a point of principle, or is renewable energy—does it check out now economically for Mars?,” its vice president for corporate affairs, Andy Pharoah, replied that, “Yeah it makes economic sense for us now. And also, you've got to think that in the future, carbon is going to have an economic price to it,” and that “[c]ustomers send signals.”).

70 See W. Michael Reisman, International Lawmaking: A Process of Communication, 75 ASIL Proc. 101, 105–08 (1981) (observing that “lawmaking or the prescribing of policy as authoritative for a community is a process of communication,” noting that “prescriptive or lawmaking communications … carry simultaneously three coordinate communication flows” and describing these flows as “the policy content, the authority signal and the control intention”).

71 HRC Res. 31/36, supra note 6, para. 13.

72 Human Rights Watch, supra note 8.

73 See Sarah Dadush, Identity Harm, 89 U. Colo. L. Rev. 863, 888 (2018) (charting the significant influence that a company's affinity with certain principles may play in structuring consumer preferences).

74 John Ruggie (Special Representative of the Secretary-General), Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (Mar. 21, 2011) [hereinafter Guiding Principles].

75 Human Rights Council Res. 17/4, UN Doc. A/HRC/RES/17/4 (July 6, 2011).

76 Guiding Principles, supra note 74, at prins. 11, 13.

77 Human Rights Council Res. 31/36, supra note 6, para 13.

78 Human Rights Watch, supra note 8.

79 This does not imply that external communication processes are always effective. For example, another target of the Human Rights Watch report, Booking.com, continues to list properties in the Occupied Territories. Tovah Lazaroff, Human Rights Watch Calls on Booking.com to Follow Airbnb Settler Boycott, Jerusalem Post (Nov. 20, 2018), at https://www.jpost.com/Israel-News/Human-Rights-Watch-calls-on-bookingcom-to-follow-Airbnb-settler-boycott-572387.

80 Note 20 supra.

81 Anthea Elizabeth Roberts, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757, 772–76, 788–90 (2001).

82 See Jens David Ohlin, The Assault on International Law 124–25 (2015).

83 Kevin Crowley & Eric Roston, Chevron Aligns Strategy With Paris Deal But Won't Cap Output, Bloomberg (Feb. 7, 2019), at https://www.bloomberg.com/news/articles/2019-02-07/chevron-pledges-alignment-with-paris-accord-but-won-t-cap-output (reporting that “Chevron Corp. vowed to cut greenhouse gas emissions in alignment with the Paris Accord on climate change, potentially averting a shareholder rebellion at its annual general meeting”); Jay Cassano, Shareholders Can't Force Pharmaceutical Company to Prove Drugs Aren't Used for Executions, Int'l Bus. Times (Aug. 8, 2017), at http://www.ibtimes.com/political-capital/shareholders-cant-force-pharmaceutical-company-prove-drugs-arent-used-executions (describing shareholders pressure to ensure that Cardinal Health's products are not used in lethal injections).

84 On the choice of international law over more stringent domestic law regimes by nongovernmental actors in the context of tobacco control, see, Harold Hongju Koh, Global Tobacco Control as a Health and Human Rights Imperative, 57 Harv. Int'l L.J. 433 (2016); Sergio Puig, Tobacco Litigation in International Courts, 57 Harv. Int'l L.J. 383 (2016).

85 See Einer Elhauge, Sacrificing Corporate Profits in the Public Interest, 80 N.Y.U. L. Rev. 733 (2005).

86 Sonam Sheth & John Haltiwanger, “POTUS Sided with a Brutal Dictator Over CIA? Shocking”: Trump Widely Bashed for Siding with Saudi Arabia Over Jamal Khashoggi's Killing, Bus. Insider (Nov. 20, 2018), at https://www.businessinsider.com/trump-standing-with-saudi-arabia-jamal-khashoggi-experts-react-2018-11

87 Other scholars have discussed that subject at length. See, e.g., Michael J. Kelly, Atrocities by Corporate Actors: A Historical Perspective, 50 Case W. Res. J. Int'l L. 49 (2018); James G. Stewart, The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute, 47 N.Y.U. Int'l L. & Pol. 121 (2014); Surya Deva, Human Rights Violations by Multinational Corporations and International Law: Where from Here?, 19 Conn. J. Int'l L. 1 (2003); Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int'l L. 45, 48–49 (2002); Andrew Clapham & Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, 24 Hastings Int'l & Comp. L. Rev. 339 (2001).

88 Roper v. Simmons, 543 U.S. 551 (2005); Gregg v. Georgia, 428 U.S. 153 (1976); Furman v. Georgia, 408 U.S. 238 (1972).

89 See, e.g., UN Secretary-General, Question of the Death Penalty, para. 4, UN Doc. A/HRC/39/19 (Sept. 14, 2018) (noting that “[s]ome 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years”); UN Comm'n Hum. Rts., The Question of the Death Penalty, para. 5, UN Doc. E/CN.4/RES/2005/59 (Apr. 20, 2005) (the Commission “[c]alls upon all States that still maintain the death penalty: To abolish the death penalty completely and, in the meantime, to establish a moratorium on executions …”); GA Res. 44/128, Second Optional Protocol to the International Covenant on Civil and Political Rights, Art. 1 (Dec. 15, 1989).

90 See William A. Schabas, The Abolition of the Death Penalty in International Law 259 et seq. (3d ed. 2002)

91 Vázquez, supra note 23, at 646 .

92 Rob Crilly, U.S. Capital Punishment in Crisis as Pfizer Blocks Drugs from Use in Lethal Injections, Telegraph (May 14, 2016), at https://www.telegraph.co.uk/news/2016/05/14/pfizer-blocking-use-of-its-drugs-for-lethal-injections; Erik Eckholm, Pfizer Blocks the Use of Its Drugs in Executions, N.Y. Times (May 13, 2016), at https://www.nytimes.com/2016/05/14/us/pfizer-execution-drugs-lethal-injection.html; see also James Gibson & Corinna Barrett Lain, Death Penalty Drugs and the International Moral Marketplace, 103 Geo. L.J. 1215 (2015); Mary D. Fan, The Supply-Side Attack on Lethal Injection and the Rise of Execution Secrecy, 95 B.U. L. Rev. 427 (2015); Ty Alper, The United States Execution Drug Shortage: A Consequence of Our Values, 21 Brown J. World Aff. 27 (2014).

93 Eckholm, supra note 92

94 Pfizer, Inc., Pfizer's Position on Use of Our Products in Lethal Injections for Capital Punishment (Apr. 2016), available at https://www.pfizer.com/sites/default/files/b2b/GlobalPolicyPaperLethalInjection.pdf.

95 See, e.g., Emily Wax-Thibodeaux, Nebraska's First Lethal Injection May Be Halted After a German Drugmaker Files Lawsuit, Wash. Post (Aug. 9, 2018), at https://www.washingtonpost.com/news/post-nation/wp/2018/08/09/nebraskas-first-ever-lethal-injection-may-be-halted-after-a-german-drugmaker-files-a-lawsuit; Steve Gorman & Andrew Hay, Nevada Execution Blocked After Drugmaker Protests Use of Its Sedative, Reuters (July 11, 2018), at https://www.reuters.com/article/us-nevada-execution/nevada-execution-blocked-after-drugmaker-protests-use-of-its-sedative-idUSKBN1K10Z3; Ed Pilkington, Arkansas Executions: Health Giant Sues State as Federal Judge Issues Injunction, Guardian (Apr. 15, 2017), at https://www.theguardian.com/world/2017/apr/15/arkansas-executions-mckesson-sues-lethal-injection.

96 UN Human Rights Office of the High Comm'r Press Release, UN Human Rights Chief Welcomes Pfizer Decision to Bar Use of its Drugs for Executions (May 19, 2016), at https://news.un.org/en/story/2016/05/529632-un-human-rights-chief-welcomes-pfizers-decision-bar-use-its-drugs-executions.

97 Lundbeck, Lundbeck Overhauls Pentobarbital Distribution Program to Restrict Misuse (July 1, 2011), at https://investor.lundbeck.com/news-releases/news-release-details/lundbeck-overhauls-pentobarbital-distribution-program-restrict; Open Letter from David J. Nicholl et al., to Ulf Wiinberg, Chief Exec. Of Lundbeck Pharm., Response from Lundbeck (June 9, 2011), 377 Lancet 2079 (2011), at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(11)60843-X/fulltext; Sten Stovall, Lundbeck “Horrified” at Drug Execution Use, Wall St. J. (June 8, 2011), at https://www.wsj.com/articles/SB10001424052702304259304576373020954841208.

98 Josh Sanburn, The Hidden Hand Squeezing Texas’ Supply of Execution Drugs, Time (Aug. 7, 2013), at http://nation.time.com/2013/08/07/the-hidden-hand-squeezing-texas-supply-of-execution-drugs; Hospira, Statement from Hospira Regarding Its Halt of Production of Pentothal (Sodium Thiopental) (Jan. 21, 2011), available at https://files.deathpenaltyinfo.org/legacy/documents/HospiraJan2011.pdf (stating that “Italy's intent is that we control the product all the way to the ultimate end user to prevent use in capital punishment” and that “we cannot take the risk that we will be held liable by the Italian authorities if the product is diverted for use in capital punishment”).

99 Ciara Linnane, Akorn Calls for Halt on Use of its Drugs in Lethal Injections, MarketWatch (Mar. 4, 2015), at https://www.marketwatch.com/story/akorn-calls-for-halt-on-use-of-its-drugs-in-lethal-injections-2015-03-04; Assoc. Press, Family Sues in Protracted Ohio Execution, N.Y. Times (Jan. 25, 2014), at https://www.nytimes.com/2014/01/26/us/family-sues-in-protracted-ohio-execution.html.

100 Pharmaceutical Products and Lethal Injection, Fresenius Kabi,at https://www.fresenius-kabi.com/us/pharmaceutical-products-and-lethal-injection (declaring that “[w]hile Fresenius Kabi takes no position on capital punishment, the use of our products for lethal injection is contrary both to our mission and to the FDA-approved indications for, and labelling of, our products”); Abbvie, Statement of Opposition to Use of Abbvie Products in Lethal Injections for Capital Punishment, available at https://www.abbvie.com/content/dam/abbvie-dotcom/uploads/PDFs/statement-of-opposition-to-capital-punishment.pdf.

101 Gibson & Lain, supra note 92.

102 See European Commission Regulation 1352/2011, 2011 OJ (L 338/31); European Commission, Regulation 1236/2005, 2005 OJ (L 200), repealed by Regulation 2019/125, OJ (L 30/1).

103 OECD, National Contact Points for the OECD Guidelines for Multinational Enterprises, at http://www.oecd.org/investment/mne/ncps.htm.

104 Complaint to the Netherlands National Contact Point under the Specific Instance Procedure of the OECD Guidelines for Multinational Enterprises, Bart Stapert v. Mylan, (Mar. 3, 2015), at https://complaints.oecdwatch.org/cases/Case_355.

105 OECD, OECD Guidelines for Multinational Enterprises (2011 ed.), available at http://www.oecd.org/daf/inv/mne/48004323.pdf.

106 Id. at 71. The composition of NCPs is often drawn from a cross-section of government officials, independent experts, and business representatives.

107 Complaint to the Netherlands National Contact Point under the Specific Instance Procedure of the OECD Guidelines for Multinational Enterprises, supra note 104.

108 Initial Assessment of National Contact Point, Bart Stapert v. Mylan (July 17, 2015), at https://www.oecdguidelines.nl/notifications/documents/publication/2015/07/17/inititial-assessment-stapert-mylan.

109 Final Statement of National Contact Point, Bart Stapert v. Mylan (Apr. 11, 2016), at https://www.oecdguidelines.nl/documents/publication/2016/4/11/bart-stapert-attorney-vs-mylan.

110 Evaluation of the Final Statement of 11 April 2016 of National Contact Point, Bart Stapert v. Mylan, (Sept. 27, 2017), at https://www.oecdguidelines.nl/documents/publication/2017/09/27/evaluation-final-statement-stapert-vs-mylan.

111 Id.

112 Drug Maker Mylan Takes $70 Million Hit in Battle Over Lethal Injection, NBC News (Feb. 27, 2014), at https://www.nbcnews.com/storyline/lethal-injection/drug-maker-mylan-takes-70-million-hit-battle-over-lethal-n230051.

113 Matthias Hartwig, ICANN—Governance by Technical Necessity, in The Exercise of Public Authority by International Institutions: Advancing International Institutional Law 575, 581–82 (Armin von Bogdandy, Rüdiger Wolfrum, Jochen von Bernstorff, Philipp Dann & Matthias Goldmann eds., 2010).

114 Kal Raustiala, Editorial Comment, Governing the Internet, 110 AJIL 491, 491–93 (2016); Kristen E. Eichensehr, The Cyber-Law of Nations, 103 Geo. L.J. 317, 349 (2015).

115 About the Program, ICANN: New Generic Top-Level Domains,at https://newgtlds.icann.org/en/about/program; Adamantia Rachovitsa, International Law and the Global Public Interest: ICANN's Independent Objector as a Mechanism of Responsive Global Governance, in Non-state Actors and International Obligations 342, 342–43 (James Summers & Alex Gough eds., 2018).

116 Rachovitsa, supra note 115.

117 Explanatory Memorandum, Morality and Public Order Objection Considerations in New gTLDs, ICANN: New gTLD Program (Oct. 29, 2008), available at https://archive.icann.org/en/topics/new-gtlds/morality-public-order-draft-29oct08-en.pdf (affirming that “[s]trings must not be contrary to generally accepted legal norms relating to morality and public order that are recognized under international principles of law,” including UN human rights conventions and intellectual property treaties).

118 See Deeks, supra note 26.

119 Google AI, Artificial Intelligence at Google: Our Principles, at https://ai.google/principles; Sundar Pichai, CEO, AI at Google: Our Principles, Google: The Keyword (June 7, 2018), at https://blog.google/technology/ai/ai-principles.

120 Richard Allan, Hard Questions: Where Do We Draw the Line on Free Expression?, Facebook: Newsroom (Aug. 9, 2018), at https://newsroom.fb.com/news/2018/08/hard-questions-free-expression.

121 Glob. Network Initiative, Our Members ,at https://globalnetworkinitiative.org/#home-menu.

122 Glob. Network Initiative, The GNI Principles, at https://globalnetworkinitiative.org/gni-principles.

123 Dina Bass, Almost Everyone Involved in Facial Recognition Sees Problems, Bloomberg (Dec. 12, 2018), at https://www.bloomberg.com/news/articles/2018-12-12/almost-everyone-involved-in-facial-recognition-sees-problems.

124 Deeks, supra note 26.

125 Kevin Collier & Frank Berkman, Hacked Emails Show What Microsoft Charges the FBI for User Data, Daily Dot (Mar. 20, 2014), at https://www.dailydot.com/news/microsoft-compliance-emails-fbi-ditu.

126 In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation, Brief for Appellant, 2d Cir., at 33, 51, Dec. 8, 2014, No. 14-2985-cv.

127 In the Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation, Oral Argument, at 15, Transcript, SDNY, July 31, 2014, Case 1:13-mj-02814-UA, Doc. 93 (emphasis added)

128 Int'l Law Comm'n, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Art. 7 (2001), available at http://legal.un.org/ilc/texts/instruments/english/commentaries/9_7_2001.pdf; Case Concerning Pulp Mills on the River Uruguay, (Arg. v. Uru.), 2010 ICJ Rep. 14, para. 204 (Apr. 20).

129 Equator Principles Ass'n, The Equator Principles, prin. 2 (June 2013), available at https://equator-principles.com/wp-content/uploads/2017/03/equator_principles_III.pdf.

130 Id.; see also Williams, John P., “International Best Practice” in Mining: Who Decides and How—and How Does it Impact Law Development?, 39 Geo. J. Int'l L. 693, 697–98 (2008)Google Scholar.

131 See, e.g., HP, HP Policy Position: Climate Action (2017), available at http://h20195.www2.hp.com/V2/getpdf.aspx/c05320887.pdf (“HP signed the ‘We are Still In’ open letter to the international communities and parties to the Paris Agreement committing to remain actively engaged as part of the global effort to hold warming to below 2 degrees Celsius … .”).

132 Paris Agreement, supra note 16, at Art. 4(2), (9).

133 Id. Art. 4(3), (11). Cf. John Schwartz, Debate Over Paris Climate Deal Could Turn on a Single Phrase, N.Y. Times (May 2, 2017), at https://www.nytimes.com/2017/05/02/climate/trump-paris-climate-accord.html.

134 We Are Still In, “We Are Still In” Declaration, (June 5, 2017), at https://www.wearestillin.com/we-are-still-declaration (declaring that “[w]e, the undersigned … are joining forces for the first time to declare that we will continue to support climate action to meet the Paris Agreement” and contending that “the actors that will provide the leadership necessary to meet our Paris commitment are found in city halls, state capitals, colleges and universities, investors and businesses”).

135 Gowlland-Debbas, Vera, Security Council Enforcement Action and Issues of State Responsibility, 43 Int'l & Comp. L. Q. 55, 62, 77–79 (1994)Google Scholar.

136 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Order, Provisional Measures, 1993 ICJ Rep. 325, 441, para. 102 (Sept. 13) (sep. op., Lauterpacht, J.).

137 Stevick, W. Michael Reisman & Douglas L., The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 Eur. J. Int'l L. 86 (1998)Google Scholar

138 Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures Against Wrongful Sanctions (2011).

139 GA Res. 69/49, The Arms Trade Treaty (Dec. 24, 2014).

140 Id. Arts. 7, 14.

141 Id., pmbl. A treaty's preamble is not merely a collection of aspirational statements, but is instead expressly understood to possess significance for the agreement's interpretation. Vienna Convention on the Law of Treaties, Art. 31(2), Jan. 27, 1980, 1155 UNTS 243 (noting the “general rule of interpretation” that “the context for the purpose of interpretation of a treaty shall comprise … the text, including its preamble …”).

142 Tovah Lazaroff, HSBC Tells “Post”: “We Divested from Elbit Over Cluster Bombs, Not BDS,” Jerusalem Post (Jan. 2, 2019), at https://www.jpost.com/BDS-THREAT/HSBC-tells-Post-We-divested-from-Elbit-over-clusters-bombs-not-BDS-576175.

143 Avraham Gold & Tovah Lazaroff, Citing Human Rights, HSBC Bank Divests from Israeli Arms Developer Elbit, Jerusalem Post (Dec. 27, 2018), at https://www.jpost.com/Arab-Israeli-Conflict/HSBC-bank-decides-to-divest-from-Israeli-defense-contractor-Elbit-575632; Lazaroff, supra note 142.

144 Natasha Turak, The Khashoggi Fallout: A Timeline of Events, CNBC (Nov. 22, 2018), at https://www.cnbc.com/2018/11/22/the-khashoggi-fallout-a-timeline-of-events.html.

145 Saphora Smith, Aziz Akyavas & F. Brinley Bruton, Khashoggi Was Strangled or Suffocated and Body Dismembered, Turkish Prosecutor Says, NBC News (Nov. 4, 2018), at https://www.nbcnews.com/news/world/khashoggi-was-strangled-or-suffocated-body-dismembered-turkish-prosecutor-says-n931026 (reporting of statement by U.S. Secretary of State Mike Pompeo that the Khashoggi killing “violates the norms of international law”); Steven Ratner, The Khashoggi Murder: How Mohammed bin Salman Underestimated International Law, Lawfare (Oct. 22, 2018), at https://www.lawfareblog.com/khashoggi-murder-how-mohammed-bin-salman-underestimated-international-law.

146 See, e.g., Council of the EU Press Release, Declaration by the High Representative on Behalf of the European Union on the Recent Developments on the Case of Saudi Journalist Jamal Khashoggi, Press Release 588/18 (Oct. 20, 2018), available at https://www.consilium.europa.eu/en/press/press-releases/2018/10/20/declaration-by-the-high-representative-on-behalf-of-the-european-union-on-the-recent-developments-on-the-case-of-saudi-journalist-jamal-khashoggi/pdf (describing the incident as a “shocking violation of the 1963 Vienna Convention on Consular Relations and particularly its Article 55”)

147 Saphora Smith & Reuters, “Davos in the Desert”: Business Leaders Pull out of Saudi Conference After Khashoggi Disappearance, NBC News (Oct. 15, 2018), at https://www.nbcnews.com/news/world/davos-desert-business-leaders-pull-out-saudi-conference-after-khashoggi-n920066.

148 Patrick Wintour, Saudi Summit in Crisis as Khashoggi Case Prompts Mass Withdrawals, Guardian (Oct. 13, 2018), at https://www.theguardian.com/world/2018/oct/12/saudi-arabia-fii-conference-withdrawal-jamal-khashoggi.

149 Mark Landler, In Extraordinary Statement, Trump Stands with Saudis Despite Khashoggi Killing, N.Y. Times (Nov. 20 2018), at https://www.nytimes.com/2018/11/20/world/middleeast/trump-saudi-khashoggi.html; David Choi, Trump Says “We Have a Tremendous Order” with Saudi Arabia, Doesn't Want to Cancel Defense Contracts “As Retribution” for Jamal Khashoggi's Death, Bus. Insider (Oct. 19, 2018), at https://www.businessinsider.com/trump-reaction-jamal-khashoggi-death-saudi-arabia-defense-contract-2018-10. But see Richard Branson, My Statement on the Kingdom of Saudi Arabia, Virgin (Oct. 11, 2018), at https://www.virgin.com/richard-branson/my-statement-kingdom-saudi-arabia (“What has reportedly happened in Turkey around the disappearance of journalist Jamal Khashoggi, if proved true, would clearly change the ability of any of us in the West to do business with the Saudi Government.”).

150 UN Rights Experts Stand with Businesses Protesting Saudi Journalist's Disappearance, UN News (Oct. 19, 2018), at https://news.un.org/en/story/2018/10/1023652.

151 Dana Rubinstein, Uber CEO: “Doing the Right Thing” is Uber's New “Norm,” Politico (Sept. 5, 2018), at https://www.politico.com/states/new-york/albany/story/2018/09/05/uber-ceo-doing-the-right-thing-is-ubers-new-norm-594079; Tony West, Turning the Lights On, Uber: Newsroom (May 15, 2018), at https://www.uber.com/newsroom/turning-the-lights-on.

152 Khashoggi Case Drives Growing Exodus from Saudi Business Ventures, Fin. Times (Oct. 12, 2018), at https://www.ft.com/content/507f2c24-cd0a-11e8-b276-b9069bde0956.

153 Uber's decision to pull out of the conference was not without controversy. Indeed, one of its major investors expressed its displeasure with Khosrowshahi's decision not to attend. CEO of Mangrove Capital Partners, Mark Tulszcz tweeted, “When a CEO confuses his role … No upside for @Uber” and later commented that “personally [a CEO] can do what they want, but should NOT use their position to express personal opinions.” Natasha Lomas, Saudi Ally Calls for Uber Boycott Over Response to Khashoggi's Vanishing, Tech Crunch (Oct. 15, 2018), at https://techcrunch.com/2018/10/15/saudi-ally-calls-for-uber-boycott-over-response-to-khashoggis-vanishing. Yet, having already announced the company's commitment to doing the right thing, Saudi Arabia's breach of international law through the Khashoggi incident seemed to demand a response if the new mission statement was to be thought credible.

154 Listings in Disputed Regions, supra note 4

155 Sanctions are not, however, uncontroversial. For further discussion, see, for example, August Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions, 95 AJIL 851 (2001); Reisman & Stevick, supra note 137; Shaw,supra note 14, at 1242–51.

156 See Joined Cases C-402/05 P & C-415/05 P (Kadi v. Council of EU), 2008 ECRI-6351 (Oct. 28).

157 Reisman & Stevick, supra note 137

158 Peter J. Spiro, New Global Potentates: Nongovernmental Organizations and the “Unregulated” Marketplace, 18 Cardozo L. Rev. 957 (1996).

159 Id.

160 See Anne Peters, Crimea: Does “The West” Now Pay the Price for Kosovo?, EJIL:Talk! (Apr. 22, 2014), at http://www.ejiltalk.org/crimea-does-the-west-now-pay-the-price-for-kosovo.

161 President of Russia Press Release, Telephone Conversation with U.S. President Barack Obama (Mar. 17, 2014), at http://eng.kremlin.ru/news/6881 (“Regarding the March 16 referendum in Crimea, Mr. Putin said that the decision to hold the referendum was in line with international law and the UN Charter, and was also in line with the precedent set by Kosovo.”).

162 Sari Bashi, If the U.S. Government Won't Act, Airbnb Will, For. Pol'y (Nov. 27, 2018), at https://foreignpolicy.com/2018/11/27/if-the-u-s-government-wont-act-airbnb-will-west-bank-settlements-rentals-occupation-israel-palestinians-netanyahu.

163 See generally B. S. Chimni, International Law and World Order (2017)

164 Id. at 509

165 See Majinge, Charles R., The Concept of Global Governance in Public International Law: Addressing Democratic Deficit and Enhancing Accountability in the Decision-making Process of the African Union, 3 J. Afr. & Int'l L. 1 (2010)Google Scholar; Alfred C. Aman, Jr., The Democracy Deficit: Taming Globalization Through Law Reform (2004); Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (1996).

166 Doreen Lustig & Eyal Benvenisti, The Multinational Corporation as “the Good Despot”: The Democratic Costs of Privatization in Global Settings, 15 Theoretical Inq. L. 125, 140, 153 (2014).

167 Sir Christopher Greenwood, 2018 ASIL Assembly Keynote (Apr. 6, 2018), available at https://www.youtube.com/watch?v=_NzoGnbNCVs.

168 Id.

169 Id.

170 Id.

171 Id.

172 Update on Listings in Disputed Regions, supra note 13

173 Note 19 supra.

174 See Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration 59–62 (2008)