By Carel Heloise and Najeh Inès / GICJ
The adoption of the United Nations Declaration of Human Rights in 1948 marked a pivotal moment in history, as it became the very first legal document to lay out fundamental human rights. This declaration emphasises the significance of safeguarding fundamental rights for all individuals worldwide. It underscored the universal principles of dignity, equality, and justice, serving as a beacon of hope for a world recovering from the devastation of World War II. It affirmed the moral imperative to protect individuals from oppression, discrimination, and abuse, paving the way for a more just and equitable international community.
The human rights system was originally modelled to shield individuals from state-inflicted harm. However, with the expansion of globalisation, transnational corporations started to implant themselves in countries where human rights and environmental policies were lacking. The complex link between human rights and business became a significant point of concern in the 1990s. Indeed, awareness surged following events such as the Bhopal disaster in 1984, where a chemical leak at a Union Carbide pesticide plant in India resulted in thousands of deaths and injuries, highlighting the dire consequences of corporate negligence and the need for stricter regulations protecting human rights. Similar worries also arose in Nigeria during the 1990s, where the Ogoni people faced environmental degradation and human rights abuses as a result of oil exploitation by multinational corporations in the Niger Delta.
These incidents prompted a growing realisation that businesses wield significant power and must be held accountable for their impacts on human rights. There was an urgent need to integrate human rights considerations into corporate governance, operation, and supply chains, shaping a vision where business practices are increasingly considered within human rights frameworks. Consequently, in 2000, former UN Secretary General Kofi Annan initiated the United Nations Global Compact, which calls on companies “to align their strategies and operation with ten universal principles related to human rights, labour, environment and anti-corruption”[1], and to work within UN principles.
United Nations Guiding Principles on Business and Human rights
The UN Special representative on the issue of human rights and transnational corporations and other business enterprises, John Ruggies, developed the UN Guiding Principles on Business and Human Rights, a document designed to compel companies to respect human rights and address violations committed during their activities. The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011.[2]
These Guiding Principles promote corporate responsibility and outline a framework for businesses to respect human rights along three main points:[3]
Firstly, the State has a duty to protect human rights, which includes the responsibility of governments to ensure that companies respect them. However, the fulfilment of this duty can vary depending on the political and legal landscape of each country. States remain entrusted with the task of safeguarding human rights within their territory and jurisdiction by implementing measures to “prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”. Indeed, the first pillar of the UN Guiding Principles (UNGPs) indicates that states should communicate requirements for all businesses to uphold human rights standards, notably by exploring a balanced approach with obligatory and voluntary domestic and international measures. As the UNGPs explain in the comments, states are not automatically accountable for violations committed by private actors such as business entities. Nonetheless, if such abuses or the failure to take appropriate measures to prevent abuses can be linked to States, they risk violating international human rights law and their commitments.
Secondly, businesses have an obligation to avoid infringing on the rights of individuals and address any violations associated with their operations, regardless of their size, sector or structure. The UNGPs recall that the responsibility endorsed by businesses refers to internationally recognised human rights set out in multiple texts such as the International Bill of Human Rights and the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work. The obligation set by the UNGPs exists regardless of whether States are willing to fulfil their own Human rights’ obligations. Indeed, it is considered that the obligation for companies extends beyond compliance with national laws and regulations protecting Human rights. This requires companies to act with due diligence to identify and mitigate potential risks and violations. The UNGPs consider that companies’ due diligence includes their understanding of the negative effects on Human rights that their activities might cause or contribute to. In order to minimise violations, it is also crucial that businesses grasp that human rights hazards tend to change as their circumstances and operations develop.
Finally, the UNGPs note that victims must have access to judicial and non-judicial remedies if their rights were infringed on by businesses. The duty to protect individuals and to allow remediation for victims is a role States must take on. In this regard, the Office of the UN High Commissioner for Human Rights (OHCHR) has examined the remedy mechanisms and developed guidance aiming at improving the efficiency of such mechanisms through the Accountability and Remedy Project (ARP).
The Working Group on the issue of Human rights and transnational corporations and other business enterprises
The Working Group on the issue on Human rights and transnational corporations and other business enterprises was created by the Human Rights Council in 2011 through resolution 17/4. The Working Group is composed of 5 independent experts whose role is to promote and advocate for effective practices learned on the implementation of the principles[4]. One of their key responsibilities involves the evaluation and analysis of country reports, which detail the status of Human rights adherence. Through these reports, the Working Group assesses the effectiveness of policies and practices related to business conduct and Human rights within different contexts. Furthermore, they facilitate knowledge exchange by promoting good practices and lessons learned in the implementation of the UNGPs. By engaging in these activities, the Working Group aims to foster dialogue, encourage collaboration, and drive positive change towards a more sustainable global business environment. Its last session was in February 2024 in Geneva, where the Chair of the Working group provided updates on the upcoming report to the Human Rights Council’s 56th session in June 2024, on Investors, Environmental, Social, and Governance (ESG), and Human Rights.
Another working group was established in June 2014, called the “open ended intergovernmental working group on transnational corporations and other business enterprises with respect to human Rights”. This working group aims to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises with respect to Human rights”.[5] The working group held its ninth session from 23 to 27 October 2023, and focused on the challenges posed by global businesses, emphasising the need to address Human rights risks associated with supply chains, such as labour rights abuses and attacks on Human rights defenders. Discussions centred on aligning the updated draft of the legally binding instrument with the Guiding Principles on Business and Human Rights to enhance accountability and provide effective remedies for affected stakeholders.
Including corporations under the Rome Statute: a path to accountability?
Multinationals are increasingly becoming key players in international law. For this reason, the question often arises as to whether to recognise them as subjects of international public law, placing them on an equal footing with states. Developing countries, however, often perceive the granting of this status to companies as potentially fostering a competitive environment that grants the latter greater freedom within their territories. Consequently, they fear that this could lead to an increase in violations of human rights and environmental standards, exacerbating issues of corporate impunity.
Nevertheless, companies already benefit from a certain degree of impunity with respect to their activities, which has created a growing demand for accountability for corporations’ violations. This demand has thus far been hindered by the inability to prosecute corporations under the Rome Statute.
The discourse surrounding the possibility of prosecuting corporations under the jurisdiction of international criminal law traces its roots back to the tribunals established by the Allies after World War II, particularly the Nuremberg tribunal, which laid the groundwork for modern international criminal law.[6] As international criminal law traditionally focuses on individual accountability for crimes such as genocide, crimes against humanity, war crimes, and aggression, corporations have been excluded from the jurisdiction of the International Criminal Court (ICC) as a result of its mandate to prosecute individuals.[7]
Despite early discussions during the Allied tribunals and subsequent debates, the Rome Statute adopted in 1998 omitted provisions for the criminal liability of corporate entities. This omission stemmed from unresolved disagreements during the drafting process, leaving the ICC with jurisdiction only over natural persons. However, calls to include corporations persist, fueled by globalisation and the significant influence of corporations in international affairs. With corporations in many cases becoming as influential as states, proponents argue that their power and involvement in human rights abuses warrant their inclusion in the Rome Statute.[8]
One argument supporting the expansion of the ICC's jurisdiction to include corporations is the significant role they play in global politics and economics. As powerful actors with extensive economic influence, corporations wield considerable influence over states through lobbying and economic leverage. Corporations have been implicated in various human rights abuses, such as complicity in international crimes.[9] Moreover, the immunity enjoyed by corporations for their involvement in human rights abuses perpetuates an accountability gap. Unlike individuals, corporations can often evade prosecution due to the complexity of their structures and the lack of legal mechanisms to hold them accountable.[10]
Integrating corporations into the Rome Statute would enhance the ICC's legitimacy, particularly given distrust in the Court over its focus on African cases.[11] Critics have accused the ICC of bias and neo-colonialism[12], citing its disproportionate focus on African situations and defendants. By prosecuting corporations, particularly those based in the Global North but involved in violations in the Global South, the ICC can address perceptions of bias and demonstrate its commitment to global justice.
Prosecuting corporations for international crimes could additionally serve as a deterrent against future abuses, as the stigma and reputational damage associated with international criminal prosecution could dissuade them from engaging in unlawful behaviour. Sanctions imposed by the ICC, such as asset freezes and travel restrictions, could further incentivise corporations to comply with international law.[13]
This advancement has unfortunately been impeded by certain countries that lack corporate criminal responsibility legislation, as they believe a legal person cannot be held criminally liable, for such misdeeds can only fall on the natural persons driving their policies. Defendants of a prosecutorial approach centred on individuals have argued that a corporation has “no soul to be damned and no body to be kicked”[14], and, therefore, their prosecution is not something to engage in.
While the inclusion of corporations under the jurisdiction of the ICC presents legal and practical challenges, it is a necessary step towards ensuring accountability for human rights abuses perpetrated by powerful economic actors. By holding corporations accountable for their actions, the ICC can fulfil its mandate to prosecute international crimes and contribute to a more just and equitable global order.
Geneva International Center for Justice (GICJ) strongly advocates for the protection of Human rights within the realm of business activities. In committing to uphold the principles of justice and accountability, we aim to underscore the importance of raising awareness of Human rights violations linked to corporate practices and of holding accountable those responsible for such abuses. Moreover, GICJ supports the work of the Working Group on Business and Human Rights as a significant step towards enhancing accountability and promoting respect for human rights within the business sector. GICJ looks forward to the pursuit of an international legally binding instrument regulating activities of transnational corporations. We additionally support the inclusion of corporations under the Rome Statute to ensure their accountability in the commission of gross human rights violations.
#BuisinessandHumanRights #TNCs #ICC #HumanRights #WorkingGroup #UNGPs #Endcorporateimpunity #Corporations #GenevaInternationalCenterforJustice #Geneva4Justice #GICJ
[1] https://www.un.org/en/un-chronicle/un-global-compact-finding-solutions-global-challenges
[2]https://scholar.harvard.edu/files/john-ruggie/files/2013_business_and_human_rights_the_next_chapter_0.pdf
[3] https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf
[4] https://www.ohchr.org/en/special-procedures/wg-business
[6] Gerhard Werle, Principles of International Criminal Law, 2nd edn, ( TMC Asser Press 2009) p 7.
[7] Joanna Kyriakakis, Corporations, Accountability and International Criminal Law. (Cheltenham, UK : Edward Elgar Publishing, 2021)
[8] Dominik Brodowski, Manuel Espinoza de los Monteros de la Parra, Regulating Corporate Criminal Liability (Joachim Vogel, Klaus Tiedemann, 1st ed. 2014.).
[9] Joseph S (2004) Corporations and Transnational Humans Rights Litigation Oxford, Hart Publishing.- Kathryn Haigh “Extending the International Criminal Court's jurisdiction to corporations: overcoming complementarity concerns” (2008) Australian Journal of Human Rights, 14:1, 199-219
[10] United Nations Human Rights Council (UNHRC), “Protect, Respect and Remedy: a Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie” (7 April 2008) UN Doc A/HRC/8/5 [3] (hereafter “Framework”).
[11] C. Jalloh, ‘Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction’, (2010) 21 Criminal Law Forum 1
[12] Christian M. De Vos, 'The International Criminal Court - Between Law and Politics' in Philipp Kastner, International Criminal Law in Context (Routledge, 2018) (pp 240-259)
[13] Joanna Kyriakakis, Corporations, Accountability and International Criminal Law. (Cheltenham, UK : Edward Elgar Publishing, 2021)
[14] Dominik Brodowski, Manuel Espinoza de los Monteros de la Parra, Regulating Corporate Criminal Liability (Joachim Vogel, Klaus Tiedemann, 1st ed. 2014.).
