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Spreading Weeds Beyond Their Garden: Extraterritorial Responsibility of States for Violations of Human Rights by Corporate Nationals

Published online by Cambridge University Press:  28 February 2017

Robert McCorquodale
Robert McCorquodale*
Affiliation:
University of Nottingham, United Kingdom
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Type
The Extraterritorial Application of Human Rights
Information
Proceedings of the ASIL Annual Meeting , Volume 100 , 2006 , pp. 95 - 102
Copyright
Copyright © American Society of International Law 2006

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References

1 John Le Carré, The Constant Gardener 497 (2001). The book was also made into a movie with the same name, which was distributed in 2005.

2 UK Foreign and Commonwealth, Office, Strategic International Policy Priorities for the UK in UK International Priorities: A Strategy for the FCO, §4 (December 2003), available at <http://www.fco.gov.uk/Files/kfile/FcostrategyFullFinal,0.pdf>. Similar statements have been made, for example, by the Australian government (Advancing the National Interest White Paper (2005), available at <http://www.dfat.gov.au/ani/foreword.html>) and the United States government (Strategic Plan for Fiscal Years 2004-2009 (2004), available at <http:// www.state.gov/s/d/rm/rls/dosstrat>).

3 See, for example, Awas Tingni v. Nicaragua, I-ACtHR, IHRR (2001) para.153: “According to the rules of law pertaining to the international responsibility of the State and applicable under international human rights law, actions or omissions by any public authority, whatever its hierarchic position, are chargeable to the State which is responsible under the terms set forth in the American Convention [on Human Rights].” This was also the position of the International Law Commission (ILC) in their Articles on Responsibility of States for Internationally Wrongful Acts, 53d session, A/56/10, August 2001 (see Commentaries, in James Crawford, The International Law Commission’S Articles on State Responsibility: Introduction, Text and Commentaries (2002). This is despite the criticism that state responsibility is a law of states in which states themselves determine their own obligations for certain public acts in relation to other states. See Clapham, Andrew, The ‘Drittwirkung ‘ of the Convention, in The European System for the Protection of Human Rights 163, 170 (Macdonald, Ronald et al. eds., 1993)Google Scholar; Charlesworth, Hilary and Chinkin, Christine, The Boundaries of International Law: A Feminist Analysis 148 (2000)Google Scholar. See generally Allott, Philip, State Responsibility and the Unmaking of International Law, 29 Harv. Int’l L.J. 1 (1988)Google Scholar.

4 Codified in the ILC Articles on State Responsibility, Article 4.1 : “The conduct of any state organ shall be considered an act of that state under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the state, and whatever its character as an organ of the central government or of a territorial unit of the state.”

5 Immunity of Special Rapporteur of the Commission on Human Rights, ICJ Rep. 1999 62 para. 62, where it is stated that this is a rule of customary international law.

6 Caire Claim (Fr. v. Mex.), 5 Reports of International Arbitral Awards 516 (1929). It includes where state officials “acted, at least apparently, as authorised officials or organs, or that, in so acting, they .. . used powers or measures appropriate to their official character.” State responsibility is only excluded where “the act had no connexion with the official function and was, in fact, merely the act of a private individual.” However, “much depends on the type of activity and the related consequences in the particular case.” Ian Brownlie, Principles of Public International Law 454 (5th ed. 1998).

7 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 27, 1155 Unts 331 (holding that the responsibility of a state cannot be avoided by use of its national law or practice). This undoubtedly represents customary international law, as the Permanent Court of International Justice held in Free Zones of Upper Savoy and the District of Gex (Fr./Switz.), 1932 PCIJ (ser. A/B) No. 46, at 167 (June 7) (stating that “it is certain that France cannot rely on her own legislation to limit the scope of her international obligations”).

8 See, for example, the series of cases discussed in Joseph, S., Schultz, J. & Castan, M., The International Covenant on Civil and Political Rights: Cases, Commentary and Materials 198-207, 275-77 (2d ed. 2004)Google Scholar.

9 For example, the (federal) Australian government was internationally responsible for the actions of the (subnational) Tasmanian government in Toonen v Australia, UN Doc. CCPR/C/50/D/488/1992 (Apr. 4, 1994).

10 Some views on the changing views of corporations include looking at the “centre of main interests,” rather than the place of incorporation (see European Union Council Regulation No. 1346/2000, Art. 3, on Insolvency Proceedings); and the “constitutionalism” approach (see S. Bottomley, From Contractualism to Constitutionalism: A Framework for Corporate Governance, 19 Sydney L. Rev. 277-313 (1997)). Note that J. Dine considers this approach consistent with the history of TNCs, with the early global corporations, such as the Dutch East India Company and the Newfoundland Company, being granted charters as a delegation of powers by the monarch, and carried with it some aspect of public interest in the activities of these TNCs.

11 ‘ See Mann, F. A., The Doctrine of International Jurisdiction Revisited After Twenty Years, Collected Courses of the Hague Academy of International Law (1985)Google Scholar; Dubin, L., The Direct Application of Human Rights Standards to, and by, Transnational Corporations, 61 Rev. Int’l Comm’n Jurists 35, 38 (1999)Google Scholar.

12 UNCTAD’s World Investment Report 2005 notes that the 100 largest TNCs account for twelve, eighteen, and fourteen percent of the estimated foreign assets, sales, and employment of all TNCs in the world (see id. at 15). The world’s largest TNCs are geographically concentrated in a few industrialized states (France, Germany, Japan, the United Kingdom, and the United States accounting for 71 of top 100). The European Union accounted for 50 of these. Only four of the top 100 TNCs are from developing states, with the largest of those four ranking sixteenth and being Hong Kong-based.

13 See, for example, the House of Lords decisions in Connelly v. Rtz, [1998] A.C. 854, and Lubbe et al v. Cape pic, [2000] 4 All E.R. 268. There is also the case law under the unique U.S. Alien Tort Claims Act of 1789, where, to date, in all the cases brought against TNCs, none has been rejected solely due to the corporate veil.

14 Meeran, R. in Human Rights Standards and the Responsibility of Transnational Corporations (Addo, M. ed., 1999)Google Scholar.

15 ILC Commentary at 91 and 121.

16 See, for example, Article 2 of both the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). This obligation has been expressed as a threefold responsibility on states to respect, protect and fulfil human rights. See, for example, the analysis by the UN Committee on Economic, Social and Cultural Rights, General Comment No. 13 on the Right to Education para 46. The issue of reservations is not considered here because no state has argued that it has no obligation to adopt any measures to comply with its international human rights treaty obligations.

17 Vélásquez Rodriguez v. Honduras, Inter-Am. Ct. H.R. (ser. C), No. 4, 28 ILM 294 (1989).

18 Id. at paras. 172, 176. See also HRC General Comment 20 (1992), para. 4, 1 IHRR 26 (1994).

19 Herrera Rubio v. Colombia (161/1983), HRC Report, GAOR, 43rd Sess., Supp. 40, 190, para. 11 (1988).

20 For example, Ergi v. Turkey (App. 23818/94), Eur. H.R. Rep. (July 28, 1998); Timurtas v. Turkey (App. 23531/94), Eur. Ct. H.R. (June 13, 2000). See also the further extension of this obligation in A v. UK, (1999) 27 EHRR 611, as discussed by Smith, To Smack or Not to Smack? A Review of A v United Kingdom in an International and European Context and its Potential Impact on Physical Parental Chastisement, [1999] 1 Web J. Current Legal Issues, available at <http://webjcli.ncl.ac.uk>.

21 Young, James & Webster v. UK, 4 Eur. H.R. Rep. 38 (1981); Marcelino Santos Chajon et al., Case 7383, Inter-Am. Ct. H.R. 65, OEA/ser. L/V/II. 54, doc. 9 rev. 1 (1981) (Annual Report 1980-1981).

22 Guerra and Others v. Italy, 1998-1 Eur. Ct. H.R. 2101; López Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) (1994). See generally Andrew Clapham, Human Rights in the Private Sphere (1993); Clapham, Andrew, Revisiting Human Rights in the Private Sphere: Using the ECHR to Protect the Right of Access to the Civil Court, in Torture As Tort 513 (Scott, C. ed., 2001)Google Scholar.

23 Yanomami v. Brazil, Case 7615 (Brazil), Inter-Am. Ct. H.R., 1984-1985 Annual Report 24, OEA/Ser.L/V/11.66, doc. 10, rev. 1 (1985); Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Inter-Am. Ct. H.R. (ser. C. ) No. 79 (2001); Hopu and Bessert v. France, Human Rights Committee, Decision on Admissibihty, Comm. No. 549/1993 (June 30, 1994).

24 In their general comments, human rights treaty monitoring bodies have also highlighted the problem of violations of human rights through the actions of corporations. See, for example, the General Comment of the Committee on Economic, Social and Cultural Rights on the Right to Health.

25 Also to provide redress. See Z v. UK, App. 29392/95, Eur. Ct. H.R. (May 10,2001) para. 109. See also Keenan v. UK, App. 27229/95, Eur. Ct. H.R. (Apr. 3, 2001); Roht-Arriaza, Naomi, State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law, 78 Cal. L. Rev. 449 (1990)CrossRefGoogle Scholar; Méndez, O., Accountability for Past Abuses, 19 Hum. Rts. Q. 261 (1997)CrossRefGoogle Scholar; the Declaration on the Elimination of Violence Against Women, GA Res. 48/104 (Dec. 20, 1993), 33 ILM 1049 (1994).

26 See, for example, The Rainbow Warrior (N.Z./Fr.), 20 R.I.A.A. 217 (1990). See also Nicola JäGers, Corporate Human Rights Obligations: in Search of Accountability (2002).

27 See, for example, Trail Smelter Case (U.S. v. Can.) 3 R.I.A.A. 1905 (1938 & 1941).

28 See Sornarajah, M., Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States, in Torture As Tort (Scott, C. ed., 2001)Google Scholar; Non-State Actors and Human Rights (Philip Alston ed., 2005).

29 This came into force in December 2005 and has a range of obligations on states in relation to prevention and enforcement in this area.

30 Organisation for Economic Co-operation and Development, Guidelines for Multinational Enterprises, Oct. 31, 2001, available at <http://www.oecd.org/home>; Non-State Actors and Human Rights (Philip Alston ed., 2005). The ИХ Commentary on its Articles on State Responsibility includes as examples of an attribution to the state where “individuals or groups of individuals who ... are employed as auxiliaries or are sent as ‘volunteers’ to neighbouring countries, or who are instructed to carry out particular missions abroad,” id. at 110[2].

31 In addition, the Inter-American Commission on Human Rights considered that, although the detainees at Guantanamo Bay, Cuba, were outside U.S. territory, they were subject to its jurisdiction because they were “wholly within the authority and control of the Us government.” Decision on Request for Precautionary Measures (Detainees at Guantanamo Bay, Cuba) (Mar. 12, 2002), 41 ILM 532, 533 (2002). The United States is not a party to the Achr and so no contentious case can be brought to the Inter-American Court of Human Rights.

32 Joseph, S., Schultz, J., & Castan, M., The International Covenant on Civil and Political Rights: Cases, Commentary and Materials 65 (2000)Google Scholar.

33 Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A) (1995).

34 Id. This is subject to having the necessary control. Banković v. Belgium, Admissibility, App. No. 52207/99 (Eur. Ct. H.R. Dec. 12, 2001), 213 ILR (2003) 94, 41 ILM 517 (2002). See also Al Skeini v. Secretary of State for Defence, [2004] EWHC 2911, paras. 265-68, available at <http://www.bailii.org>. This decision is criticized in Wilde, Ralph, “The Legal Space” or “Espace Juridique“ of the European Convention on Human Rights: Is it Relevant to Extraterritorial state Action?, [2005] E.H.R.L.R. 15 at 121Google Scholar.

35 See H.L.R. v. France (24573/94) [1997] ECHR 23, para 40. See also Elmi v. Australia, Committee Against Torture, (2000) 7 IHRR 603, and McCorquodale, R. and La Forgia, R., Taking off the Blindfolds: Torture by Non-State Actors, (2001) 1 HRLR 189 Google Scholar.

36 Others include where a state may be responsible if it failed to take necessary measures to prevent those effects, even though the nonstate actors cannot be considered state agents: ILC Articles, Article 11, which reflects the decision in Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 ICJ Rep. 3, paras. 57, 69-71 (May 24).

37 ILC Articles, Art. 5.

38 Id., Art. 9.

39 Id., Art. 8.

40 Prosecutor v. Tadić, Appeals Judgment, No. IT-94-1-A, para. 117 (July 15, 1999), 38 ILM 1518 (1999) (noting that the degree of control will “vary depending on the factual circumstances of each case.”). See also Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Merits, 2005 ICJ Rep. 116, para. 164.

41 ILC Commentaries at 100.

42 See Article 16 of the ILC Articles on State Responsibility. The ILC Commentary provides examples of situations where a state is responsible because it assists another state by financing an unlawful activity, by facilitating the abduction of persons on foreign soil or by assisting in the destruction of property belonging to nationals of a third state. ILC Commentary at 148.

43 Export credits could be considered financing of what becomes in part an unlawful activity. Aiding and abetting would also include a situation where a state and a corporation act together to overthrow the government of another state.

44 Clapham, Andrew, State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations, in Responsibility in World Business: Managing Harmful Side-Effects of Corporate Activity 50, 68 (Bomann-Larson, L. & Wiggen, O. eds., 2004)Google Scholar.

45 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14.

46 Sornarajah, M., Linking State Responsibility for Certain Harms Caused by Corporate Nationals Abroad to Civil Recourse in the Legal Systems of Home States, in Torture as Tort 507 (Scott, C. ed., 2001)Google Scholar. See also the British government’s request to Premier Oil to cease its investment in Burma.

47 ECOSOC, The Realization of Economic, Social and Cultural Rights: The Relationship Between the Enjoyment of Human Rights, in particular, International Labour and Trade Union rights, and the Working Methods and Activities of Transnational Corporations, UN Doc. E/CN.4/Sub.2/1995/11 (1995). Oxfam states that EPZs set up in developing states such as China, the Philippines, and Sri Lanka in the 1970s and 1980s had regulations that limited the right of workers to create unions and imposed “weaker social obligations on foreign employers.” Oxfam, The Emperor’S New Clothes: Why Rich Countries Want A WTO Investment Agreement (April 2003); Oxfam International Briefing Paper 46, at 10.

48 See United Nations Conference on Trade and Development, World Investment Report 2003: FDI Policies for Development: National and International Perspectives 102 (2003); see also World Trade Organization, Communication From India, Working Group on the Relationship Between Trade and Investment, Doc. No. WT/WGTI/150, para. 4 (Oct. 2, 2002), where India notes that apart from a recent BIT between Japan and Korea, only the U.S. and Canadian BITs or FIPAs require pre-establishment national treatment.

49 India has argued in the WTO that developing states need to retain this capacity to screen investments. See WTO, supra note 48, para. 12.

50 R. Bachand & S. Rousseau, Investment in Developing Countries: Meeting the Human Rights Challenge 21 (June 11, 2003), available at <http://www.ichrdd.ca/english/commdoc/publications/globalization/thinkTank2003/reportTteng2003.pdf>.

51 Loizidou v. Turkey, Preliminary Objections, 310 Eur. Ct. H.R. (ser. A) (1995).