Corporate Obligations under International Law (Oxford Monographs in International Law) 0199674388, 9780199674381

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OX F O R D M O N O G R A P H S I N I N T E R N AT I O N A L L AW General Editors: VAU G HA N LOWE, QC Essex Court Chambers, London and Emeritus Fellow of All Souls College, Oxford

P RO F E S S O R D A N S A RO O S H I Professor of Public International Law in the University of Oxford and Senior Research Fellow of The Queen’s College, Oxford

P RO F E S S O R S T E FA N   TA L M O N Director of the Institute of Public International Law at the University of Bonn and Supernumerary Fellow of St Anne’s College, Oxford

Corporate Obligations Under International Law

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OX F O R D M O N O G R A P H S I N I N T E R N AT I O N A L   L AW The aim of this series is to publish important and original pieces of research on all aspects of international law. Topics that are given particular prominence are those which, while of interest to the academic lawyer, also have important bearing on issues which touch the actual conduct of international relations. Nonetheless, the series is wide in scope and includes monographs on the history and philosophical foundations of international law. recen t t itles in the serie s A Contemporary Concept of Monetary Sovereignty Claus D. Zimmermann Applicable Law in Investor-State Arbitration: The Interplay Between National and International Law Hege Elisabeth Kjos The International Minimum Standard and Fair and Equitable Treatment Martins Paparinskis The Margin of Appreciation in International Human Rights Law: Deference and Proportionality Andrew Legg Individual Criminal Responsibility in International Law Elies van Sliedregt Formalism and the Sources of International Law: A Theory of the Ascertainment of Legal Rules Jean d’Aspremont Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy Marko Milanovic State Responsibility for International Terrorism Kimberley N. Trapp Disobeying the Security Council: Countermeasures against Wrongful Sanctions Antonios Tzanakopoulos Maritime Security and the Law of the Sea Natalie Klein

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Corporate Obligations Under International Law

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M ARKO S K ARAVIAS

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Markos Karavias 2013 The moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013943836 ISBN 978–0–19–967438–1 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Acknowledgments The present monograph is an updated version of my D.Phil. thesis defended at the University of Oxford in June 2011. I  would like to thank the two examiners, Professors Guy Goodwin-Gill of All Souls College, Oxford and Guglielmo Verdirame of King’s College London for insightful comments, which, I am sure, have enabled the book to be an improvement on the thesis. My doctoral research was supervised by Professor Stefan Talmon, now Professor of Public Law, Public International Law and European Law at the University of Bonn. Words fail me when it comes to expressing my sincere gratitude. One would be hard pressed to find a more caring, supportive and rigorous supervisor. His faith in this research project sometimes even surpassed mine. All I can say is, ‘Thank you’. Along with my supervisor, I would like to thank my international law teachers in Oxford. First and foremost, Professor Vaughan Lowe QC, Emeritus Chichele Professor of International Law, who introduced me to novel ways of thinking about legal argumentation during the Public International Law Research Seminars held at All Souls College. I should also like to thank Professor Dan Sarooshi and Dapo Akande, from whom I have learnt so much. At the University of Athens Law School, I am particularly indebted to Emeritus Professor Emmanuel Roucounas for ushering me into the realm of public international law in the first place. Many thanks are further due to Professors Antonios Bredimas, Angelos Yiokaris, Linos-Alexandros Sicilianos (now Judge at the European Court of Human Rights), Lena Divani, Photini Pazartzis, Maria Gavouneli, Achilles Skordas (now at the University of Bristol) and Lina Kouskouna, as well as Eleni Micha, Aspasia Zirou and everyone else at the International Studies Department of the Athens School of Law. Special mention should here be made of the generous support I received from IKY, the Hellenic State Scholarship Foundation. IKY granted me a scholarship for doctoral studies, without which my research could not have been completed. I  would also like to thank my College, St. Catherine’s, for unwavering support through rough times, and especially Dr Justine Pila, Ashok Handa, Cressida Chappell and—last but definitely not least—James Bennett. Finally, I should also thank Ruth Bird and the staff at the Bodleian Law Library, who never failed to provide help when needed. Special thanks are naturally due to Oxford University Press and its Delegates, as well as personally to John Louth, Merel Alstein and Antony Hinton for their patience and support while turning the manuscript into a book, as well as two anonymous referees for their comments.

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Acknowledgments

I should here take the opportunity to thank my fellow D.Phil. students at Oxford University for their friendship and camaraderie. I was blessed with the good fortune to study international law in the company of Veronika Fikfak, Gleider Hernández, Mehmet Karlı, Keren Michaeli, Mārtiņš Paparinskis, James Upcher, Lema Uyar and Farid Ahmadov. A personal ‘thank you’ goes out to Antonios Tzanakopoulos for sharing Carrel XXI at the Bodleian Law Library and for everything else. I would further like to thank all Greek students in Oxford, but most of all those with whom I shared a roof or jammed during a music rehearsal: Lydia Bolani, John Hodges, Mike Riddell, Georgios Magdis, Denise Xifaras, Salim Mansoor, Loukas and Christina Moutsianas, Sam Bhatt, Erato Basea and the fabulous St. Mary’s Road Crew. My friends in Athens and elsewhere; particularly Fivos, Andreas, Roi, Eleni, Catherine, Alessandro and Ilaria and the people at the Asylum Appeals Committees. Ilias Plakokefalos, Efthymios Papastavridis, and Anastasios Gourgourinis, thank you for your valuable help at various stages. Valia, thank you for putting up with me during the final stages of preparing the manuscript. Last but definitely not least, my deepest gratitude goes out to my loving family, my father Captain Kostas Karavias, my mum Fotini and my sister Vicky, as well as my aunt Vera who always made sure I was home for Easter. This book is dedicated to them. MK Athens June 2013

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Table of Contents Table of Cases Table of Treaties and Other International Documents List of Abbreviations Introduction I. The Concept of Corporate Obligations under International Law 1. Corporations as Bearers of Obligations under International Law 2. Conditions of Corporate Obligations under International Law 3. Preliminary Conclusion II. Corporate Obligations under Treaty Law 1. Human Rights Treaties 2. International Criminal Law Treaties 3. Preliminary Conclusion III. Corporate Obligations under Customary International Law 1. The Formation of Customary International Law 2. International Human Rights Law 3. International Criminal Law 4. Preliminary Conclusion IV. Corporate Obligations under Internationalized Functional Contracts 1. The Concept of Internationalized Functional Contracts 2. International Responsibility of the Corporation for Violating the Contract 3. The Standing of Corporations before International Dispute Settlement Bodies 4. Preliminary Conclusion V. The Structural Framework for Corporate Obligations in the Context of Human Rights 1. Corporate Human Rights Obligations

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2. Structural Gradations of International Human Rights Obligations 3. Preliminary Conclusion Conclusion Bibliography Index

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Table of Cases (Arranged in chronological order) INTERNATIONAL DECISIONS Permanent Court of International Justice Article 3, Paragraph 2, of the Treaty of Lausanne (Advisory Opinion) [1925] PCIJ Rep Series B No 12  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 S.S. Lotus (Judgment) [1927] PCIJ Rep Series A No 10  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Factory at Chorzow (Jursdiction) [1927] PCIJ Rep Series A No 9  . . . . . . . . . . . . . . . . . . . . . . . . 154 Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] PCIJ Rep Series B No 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7–11, 199 Factory at Chorzow (Merits) [1928] PCIJ Rep Series A No 17  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Diversion of the Water from the Meuse (Judgment) [1937] PCIJ Rep Series A/B No 70  . . . . . . . . . 148 International Court of Justice Reparation for Injuries Suffered in the Service of the United Nations Case (Advisory Opinion) [1949] ICJ Rep 174 . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 128–129, 164–165 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 178 Fisheries Case (Judgment) [1951] ICJ Rep 116  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 South West Africa Cases (Preliminary Objections) [1962] ICJ Rep 319  . . . . . . . . . . . . . . . . . . . . . 122 North Sea Continental Shelf (Judgment) [1969] ICJ Rep 3  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69–71 Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 56, 146, 178 Nuclear Tests (Judgment) [1974] ICJ Rep 253  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 73  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68–72, 151 Arbitral Award of 31 July 1988 (Merits) [1991] ICJ Rep 53  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Territorial Dispute (Libyan Arab Jamahiriya/Chad) [1994] ICJ Rep 6  . . . . . . . . . . . . . . . . . . . . . . . 22 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 . . . . 70, 78 Gabčíkovo-Nagymaros Project (Judgment) [1997] ICJ Rep 7 . . . . . . . . . . . . . . . . . . . . . . . . . 71, 151 Kasikili/Sedudu Island (Judgment) [1999] ICJ Rep 1045  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 Arrest Warrant of 11 April 2000 (Judgment) [2002] ICJ Rep 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84–85 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Judgment) [2007] ICJ Rep  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Ahmadou Sadio Diallo (Judgment) [2010] ICJ Rep  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 International Tribunal for the Law of the Sea—Seabed Disputes Chamber Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (2011) 50 ILM 458 . . . . . . . . 121, 144, 146 International Military Tribunals IMT Judgment (1946) 1 Trial of the Major War Criminals 171 . . . . . . . . . . . . . . . . . . . . . 90–99, 112

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US Military Tribunals Exercising Jurisdiction under Control Council Law No. 10 In re Flick and Others (1947) 14 AD 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 96, 106 In re Krupp and Others (1948) 15 AD 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 In re Krauch and Others (IG Farben Trial) (1948) 15 AD 668 . . . . . . . . . . . . . . . . . . . . . . 91, 95–97 Von Weizsaecker (Ministries Case) (1949) 16 AD 344  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 International Criminal Tribunal for the former Yugoslavia (for full text of judgments/decisions see ) Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR 72 (2 October 1995)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Prosecutor v Tadić (Judgment) IT-94-1-T (7 May 1997)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 104–106 Prosecutor v Furundžija (Judgment) IT-95-17/1-T (10 December 1998)  . . . . . . . 104–106, 112, 192 Prosecutor v Tadić (Judgment) IT-94-1-A (15 July 1999)  . . . . . . . . . . . . . . . . . . . . . . . . 89, 111–112 Prosecutor v Jelisić (Judgment) IT-95-10-T (14 December 1999)  . . . . . . . . . . . . . . . . . . . . . . . . . 104 Prosecutor v Kunarac (Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001)  . . . . . . . . . . . 91 Prosecutor v Stakić (Judgment) IT-97-24-T (31 July 2003)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Prosecutor v Blaskić (Judgment) IT-95-14-A (19 July 2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Prosecutor v Kordić (Appeals Judgment) IT-95-14/2-A (17 December 2004)  . . . . . . . . . . . . . . . . . 60 Prosecutor v Krnojelac (Judgment) IT-97-25-T (15 March 2009)  . . . . . . . . . . . . . . . . . . . . . . . . . 105 International Criminal Tribunal for Rwanda (for full text of judgments/decisions see ) Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998)  . . . . . . . . . . . . . . . . . . 104–105 Prosecutor v Kambanda (Judgment) ICTR-97-23-S (4 September 1998)  . . . . . . . . . . . . . . . . . . . 112 Prosecutor v Musema (Judgment and Sentence) ICTR-96-13-A (27 January 2000)  . . . . . . . . . . . . 91 Prosecutor v Semanza (Judgment) ICTR-97-20-T (15 May 2003)  . . . . . . . . . . . . . . . . . . . . . . . . 105 Special Court for Sierra Leone (for full text of judgments/decisions see ) Prosecutor v Sesay, Kallon and Gbao (Decision on Challenge to Jurisdiction: Lomé Accord Amnesty) SCSL-04-15-PT-060 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Human Rights Committee (for full text of decisions see ) López Burgos v Uruguay Comm no R.12/52 (1981)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 MA v Italy Comm no 117/1981 (1981)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Lichtensztejn v Uruguay Comm no 77/1980 (1983)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 JB et al v Canada Comm no 118/1992 (1986)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 A Newspaper Publishing Company v Trinidad and Tobago Comm no 360/1989 (1989)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 Lubicon Lake Band v Canada Comm no 167/1984 (1990)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Errol Johnson v Jamaica Comm no 588/1994 (1996)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Judge v Canada Comm no 829/1998 (2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Cabal and Pasini Bertran v Australia Comm no 1020/2001 (2003)  . . . . . . . . . . . . . . . . . . . . . . . . 43 Jazairi v Canada Comm no 958/2000 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39–40 European Commission for Human Rights (for full text of decisions see ) X v UK App no 8160/78 (1981)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Hughes v UK App no 11590/85 (18 July 1986)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Verein ‘Kontakt-Information-Therapie’ (KIT) and Hagen v Austria App no 11921/86 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Stedman v UK App no 29107/95 (1997)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

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Scientology Kirche Deutschland v Germany App no 34614/97 (1997)  . . . . . . . . . . . . . . . . . . . . . . 181 Kara v United Kingdom App no 36528/97 (1998)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 European Court of Human Rights (for full text of decisions/judgments see ) Wemhoff v Federal Republic of Germany App no 2122/64 (1968)  . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ Apps no 1474/62 and others (1968)  . . . . . . . . . . . . . . . . . . . . . . . 35–42 De Wilde, Ooms and Versyp v Belgium Apps no 2832/66 and others (1971)  . . . . . . . . . . . . . . . . . 190 Golder v United Kingdom App no 4451/70 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33 Handyside v United Kingdom App no 5493/72 (1976)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Tyrer v United Kingdom App no 5856/72 (1978)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Airey v Ireland App no 6289/73 (1979)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 The Sunday Times v United Kingdom App no 6538/74 (1979) . . . . . . . . . . . . 27, 157, 181, 183, 189 Marckx v Belgium App no 6833/74 (1979)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Airey v Ireland App no 6289/73 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 45 Young, James and Webster v United Kingdom Apps no 7601/76 and 7806/77 (1981)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Malone v United Kingdom App no 8691/79 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 189 X and Y v The Netherlands App no 8978/80 (1985)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Olsson v Sweden App no 10465/83 (1988)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Gaskin v United Kingdom App no 10454/83 (1989)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Soering v United Kingdom App no 14038/88 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34 Powell and Rayner v United Kingdom App no 9310/81 (1990)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Thorgeir Thorgeirson v Iceland App no 13778/88 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 183, 193 Niemietz v Germany App no 13710/88 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184, 190 Costello-Roberts v United Kingdom App no 13134/87 (1993)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Kokkinakis v Greece App no 14307/88 (1993)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Informationsverein Lentia and others v Austria App no 13914/88 (1993)  . . . . . . . . . . . . . . . . . . . 182 López Ostra v Spain App no 16798/90 (1994)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36–37 Holy Monasteries v Greece Apps no 13092/87 and 13984/88 (1994)  . . . . . . . . . . . . . . . . . . . . . . 193 Loizidou v Turkey App no 15318/89 (1995)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 McCann and others v United Kingdom App no 18984/91 (1995)  . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Loizidou v Turkey App no 15318/89 (1996)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Gustafsson v Sweden App no 15573/89 (1996)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Chahal v United Kingdom App no 22414/93 (1996)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Laskey, Jaggard and Brown v United Kingdom Apps no 21627/93 and others (1997)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Hornsby v Greece App no 18357/91 (1997)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Van Mechelen and others v the Netherlands Apps no 21363/93 and others (1997)  . . . . . . . . . . . . . 191 United Communist Party of Turkey and others v Turkey App no 19392/92 (1998) . . . . . . . . . . . . . 182 Guerra and others v Italy App no 14967/89 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 169 Sidiropoulos and others v Greece App no 26695/95 (1998)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Assenov and others v Bulgaria App no 24760/94 (1998)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Chassagnou and others v France Apps no 25088/94 and others (1999)  . . . . . . . . . . . . . . . . . . . . . 191 Bladet Tromsø and Stensaas v Norway App no 21980/93 (1999)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Comingersoll SA v Portugal App no 35382 (2000)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Cyprus v Turkey App no 25781/94 (2001)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Vgt Verein gegen Tierfabriken v Switzerland App no 24699/94 (2001)  . . . . . . . . . . . . . . . . . . . . . . 41 Al-Adsani v United Kingdom App no 35763/97 (2001)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Banković and others against Belgium and others App no 52207/99 (2001) . . . . . . . . . . . . . . . . . . . . 85 Paul and Audrey Edwards v United Kingdom App no 46477/99 (2002)  . . . . . . . . . . . . . . . . . . . . . 43 Société Colas Est and others v France App no 3797/97 (2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

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Madsen v Denmark App no 58341/00 (2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 A v United Kingdom App no 35373/97 (2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Unison v United Kingdom App no 53574/99 (2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 Odièvre v France App no 42326/98 (2003)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Appleby and others v United Kingdom App no 44306/98 (2003) . . . . . . . . . . . . . . . . . . . . . . 188–189 Hatton and others v United Kingdom App no 36022/97 (2003)  . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Slivenko v Latvia App no 48321/99 (2003)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Wretlund v Sweden App no 46210/99 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187–188 Assanidze v Georgia App no 71503/01 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 87 Ždanoka v Latvia App no 58278/00 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Broniowski v Poland App no 31443/96 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Ilascu and others v Moldova and Russia App no 48787/99 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Pla and Puncernau v Andorra App no 69498/01 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184, 187 Taşkın and others v Turkey App no 46117/99 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Öneryildiz v Turkey App no 48939/99 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 177 Nachova and others v Bulgaria Apps no 43577/98 and 43579/98 (2005)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Fadeyeva v Russia App no 55723/00 (2005)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Storck v Germany App no 61603/00 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37–38, 43, 166, 168 Siliadin v France App no 73316/01 (2005)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Sychev v Ukraine App no 4773/02 (2005)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Wós v Poland App no 22860/02 (2006)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Hutten-Czapska v Poland App no 35014/97 (2006)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Zarb Adami v Malta App no 17209/02 (2006)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Öllinger v Austria App no 76900/01 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185–186, 191 Evans v United Kingdom App no 6339/05 (2007)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Saadi v Italy App no 37201/06 (2008)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 N v United Kingdom App no 26565/05 (2008)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Biriuk v Lithuania App no 23373/03 (2008)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Tatar v Romania App no 67021/01 (2009)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Al-Saadoon and Mufdhi v United Kingdom App no 61498/08 (2009)  . . . . . . . . . . . . . . . . . . . . . . 86 Medvedyev v France App no 3394/03 (2010)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Al-Skeini and others v United Kingdom App no 55721/07 (2011) . . . . . . . . . . . . . . . . . . . . . . . 84–86 Bayatyan v Armenia App no 23459/03 (2011)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Hirsi Jamaa and others v Italy App no 27765/09 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 Kasymakhunov and Saybatalov v Russia Apps no 26261/05 & 26337/06 (2013)  . . . . . . . . . . . . . . 29 Inter-American Court of Human Rights (for full text of decisions/judgments see ) The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Advisory Opinion) A 2 (1982)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Velásquez-Rodríguez v Honduras C 4 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 43, 50, 176 Godínez-Cruz v Honduras C 5 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 43 Blake v Guatemala C 36 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 52–53 Case of the ‘White Van’ (Paniagua-Morales et al.) v Guatemala C 37 (1998) . . . . . . . . . . . . . . . . . . . 43 Case of the ‘Street Children’ (Villagrán-Morales et al.) v Guatemala C 63 (1999) . . . . . . . . . . . . 34, 43 Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua C 79 (2001)  . . . . . . . . . . . . . . . 34 Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion) A 16 (2003)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54–57 Case of Tibi v Ecuador C 114 (2004)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Case of the ‘Mapiripán Massacre’ v Colombia C 134 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Case of the Yakye Axa Indigenous Community v Paraguay C 142 (2005) . . . . . . . . . . . . . . . . . . . . . . 32 Case of the Sawhoyamaxa Indigenous Community v Paraguay C 146 (2006)  . . . . . . . . . . . . . . . . . . 32

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Case of the Saramaka People v Surinam C 172 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Case of Valle Jaramillo and others v Colombia C 192 (2008)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Case of Ríos and others v Venezuela C 194 (2009)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Case of Perozo and others v Venezuela C 195 (2009)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Inter-American Commission on Human Rights (for full text of reports see ) Victor Saldaño v Argentina Report no 38/99 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Coard and others v US Report no 109/99 (1999)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 African Commission on Human and Peoples’ Rights (for full text of decisions see ) Commission Nationale des Droits de l’Homme et des Libertes v Chad Comm no 74/92 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 49–50 Avocats Sans Frontières (on behalf of Bwampamye) v Burundi Comm no 231/99 (2000)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Comm no 155/96 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 49–52 Antoine Bissangou v Republic of Congo Comm no 253/2002 (2006)  . . . . . . . . . . . . . . . . . . . . . . . . 32 European Court of Justice (for full text of judgments see ) Case 166/73, Rheinmühlen [1974] ECR 33  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 Case 52/76, Benedetti v Munari [1977] ECR 163  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 DECISIONS OF NATIONAL COURTS Germany BVerfG 21, 362—Sozialversicherungsträger  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 BVerfG 61, 82—Sasbach  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 United Kingdom Amin Rasheed Shipping Corporation v Kuwait Insurance Co. [1984] AC 50 HL  . . . . . . . . . . . . . . 136 United States Filártiga v Peña Irala, 630 F.2d 876 (2nd Cir 1980)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Doe I v Unocal, 963 F. Supp. 880 (CD Cal 1997)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Doe I v Unocal, 395 F.3d 932 (9th Cir 2002)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Sosa v Alvarez-Machain, 542 US 692 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107–108 In re Agent Orange Product Liability Litigation, 373 F.Supp.2d 7 (EDNY 2005) . . . . . . . . . . . . . . 110 Bowoto v Chevron Corp., WL 2455752 (ND Cal 2006)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Almog v Arab Bank, 471 F.Supp.2d 257 (EDNY 2007)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 In re South African Apartheid, 617 F.Supp.2d 228 (SDNY 2009)  . . . . . . . . . . . . . . . . . . . . . . . . . 108 Presbyterian Church of Sudan v Talisman Energy, Inc., 582 F.3d 244 (2nd Cir App 2009)  . . . . . . . 108 Kiobel v Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir App 2010)  . . . . . . . . . . . . . . . . . . . . 108 Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (DC Cir 2011)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Flomo v Firestone Natural Rubber Co., LLC, 643 F.3d 1013 (7th Cir 2011)  . . . . . . . . . . . . . . . . . 108 Kiobel v Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 108–110

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Table of Treaties and Other International Documents (Arranged in chronological order) TREATIES Articles of Agreement (signed 22 July 1944; entered into force 27 December 1945) 2 UNTS 134 . . . . . . . . . . . . . . . . 127–133, 140–141, 154 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (entered into force 8 August 1945) 82 UNTS 279  . . . . . . . . 92 Protocol Concerning the Entry into Force of the Agreement between the United Nations and the International Bank for Reconstruction and Development (signed 15 April 1948) 16 UNTS 341  . . . . . . . . . . . . . . . . . . 130 Convention on the Prevention and Punishment of Genocide (adopted 9 December 1948; entered into force 12 January 1951) 78 UNTS 277  . . . . 104 Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (adopted 1 July 1949; entered into force 18 July 1951) 96 UNTS 257  . . . . . . . . . . . . . . 13 Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950; entered into force 3 September 1973) 213 UNTS 222 . . . . . . 10, 27–37, 41–44, 84–87, 156–157, 180–193 Agreement on the Legal Status in Switzerland of the IBRD (signed 29 June 1951) 216 UNTS 348  . . . . . . . . . . . . . . . . . . . . 130 Protocol to the Central American Agreement on the Equalization of Import Duties and Charges (adopted 31 July 1962) 773 UNTS 196  . . . . . . . . . . . . . . . . . . . . 154 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (opened for signature 18 March 1965; entered into force 14 October 1966) 575 UNTS 159  . . . . . . . . . . . . . 18

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International Convention on the Elimination of all Forms of Racial Discrimination (adopted on 21 December 1965; entered into force 4 January 1969) 660 UNTS 195  . . . . . . . . . . . . . . . . . . 41–42 International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966; entered into force 3 January 1976) 993 UNTS 3 . . . . . . . 22, 28, 45–48, 84, 172 International Covenant on Civil and Political Rights (opened for signature 16 December 1966; entered into force 23 March 1976) 999 UNTS 171 . . . . . . 22, 24–29, 33, 39–43, 84–85, 166, 172, 180, 186–188 Vienna Convention on the Law of Treaties (adopted 22 May 1969; entered into force 27 January 1980) 1155 UNTS 331 . . . . . . . . . . . . 22–23, 31, 34, 52, 153 American Convention on Human Rights (adopted 21 November 1969; entered into force 18 July 1978) 1144 UNTS 123 . . . . . . . . . . . . 22–24, 28–29, 32, 38, 43, 52–57, 84, 180 Convention on the Elimination of All Forms of Discrimination against Women (adopted on 18 December 1979; entered into force 3 September 1981) 1249 UNTS 13  . . . . . . . . . . . . . . . . . . . 41–42 African Charter of Human and Peoples’ Rights (adopted 27 June 1981; entered into force 21 October 1986) 1520 UNTS 217 . . . . . . . . . 23–25, 32, 49–52 United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 . . . . . . . . . . 119–126, 137–138, 141–161, 175

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UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (adopted 10 December 1984; entered into force 26 June 1987) 1465 UNTS 85  . . . . . . . . . . . . . . . . . . . . . 104 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (opened for signature 20 December 1988; entered into force 11 November 1990) (1989) 28 ILM 493  . . . . . . . . . . . . . . . . . . . . . 62 Treaty Establishing a Common Market for Eastern and Southern Africa (signed 5 November 1993; entered into force 8 December 1994), reproduced in (1994) 33 ILM 1067  . . . . . . . . . . . . . 154 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994; entered into force 28 July 1996) 1836 UNTS 3 . . . . . . . . . 120–125 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 21 November 1997 (opened for signature 18 December 1997; entered into force 15 February 1999) (1998) 37 ILM 1  . . . . . . . . . 63–66 Rome Statute of the International Criminal Court (adopted 17 July 1998; entered into force 1 July 2002) 2187 UNTS 90 . . . 59, 99–105, 111 Council of Europe Convention on the Protection of the Environment through Criminal Law (opened for signature 4 November 1998) CETS 172  . . . . . . . 64 Council of Europe Criminal Law Convention on Corruption (opened for signature 27 January 1999; entered into force 1 July 2002) CETS 173  . . . . . . . . . 64–65 International Convention for the Suppression of the Financing of Terrorism, UNGA Res 54/109, Annex (adopted 9 December 1999; entered into force 10 April 2002)  . . . . . . . . . . . . . . . . . . . 65 Convention Against Corruption, UNGA Res 58/4, Annex (opened for signature 9 December 2003; entered into force 14 December 2005) (2004)  . . . . . . . . . 64 Additional Protocol to the South Asian Association for Regional Co-operation, Regional Convention on Suppression of Terrorism (signed 6 January 2004;

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entered into force 12 January 2006), reprinted in UN, International Instruments related to the Prevention and Suppression of International Terrorism (3rd edn, 2008) 250  . . . . . . . 64 Council of Europe Convention on the Prevention of Terrorism (opened for signature 16 May 2005; entered into force 1 June 2007) CETS 196  . . . . . . . 63 Council of Europe Convention on Action against Trafficking in Human Beings (opened for signature 16 May 2005; entered into force 1 February 2008) CETS 197  . . . . . . . . . . . . . . . . . . . . . . 65 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (opened for signature 16 May 2005; entered into force 1 May 2008) CETS 198  . . . . . . . 65 UNITED NATIONS SECURIT Y COUNCIL RESOLUTIONS UNSC Res 827 (25 May 1993) UN Doc S/RES/827  . . . . . . . . . . . . . . . . . . 59 UNSC Res 955 (8 November 1994) UN Doc S/RES/955  . . . . . . . . . . . . . . . . . . 59 UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373  . . . . . . . . . . . . . . . . . 61 UNITED NATIONS GENERAL ASSEMBLY RESOLUTIONS ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal’ UNGA Res 95 (I) (11 December 1946) UN Doc A/236 . . . . . . . . . . . . . . . . . . . . . . 59 ‘Universal Declaration of Human Rights’ UNGA Res 217 A (III) (10 December 1948) UN Doc A/810 . . . . . . . . . . . . . 23–24, 27, 29, 74–81, 88–89, 166, 184 ‘Measures to Eliminate International Terrorism’ UNGA Res 46/51 (9 December 1991) UN Doc A/RES/46/51  . . . . . . . . . . . . . . . . 61 ‘Declaration on Measures to Eliminate International Terrorism’ Annex to UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60  . . . . . . . . . . . . 61

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Table of Treaties and Other International Documents ‘Measures to Eliminate International Terrorism’ UNGA Res 51/210 (16 January 1997) UN Doc/A/RES/51/210  . . . . . . . . . . . 61

DOCUMENTS OF THE INTERNATIONAL L AW COMMISSION ‘Draft Code of Offences Against the Peace and Security of Mankind, Report by J Spiropoulos’ UN Doc A/CN.4/25 (1950) I ILC Ybook 253  . . . . . . . . 97–98 ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’, as included in the ‘Report of the International Law Commission Covering its Second Session’ UN Doc A/1316 (1950) I ILC YBook 374 . . . . . . . . . . . . . . 98, 104 ‘Report on the Law of Treaties, by JL Brierly’ UN Doc A/CN.4/23 (1950) II ILC Ybook 222  . . . . . . . . . . . . . . . . . . . . . . . 7 ‘Third Report on the Law of Treaties, by GG Fitzmaurice’ UN Doc A/CN.4/115 (1958) II ILC Ybook 20  . . . . . . . . . . 195 ‘Third Report on the Law of Treaties, by H Waldock’ UN Doc A/CN.4/167 (1964) II ILC Ybook 5  . . . . . . . . . . . . . . . . 9–10 ‘Second Report on State Responsibility, by R Ago’ UN Doc A/CN.4/233 (1970) II ILC Ybook 177 . . . . . . . . 14, 143–144 ‘Fourth Report on State Responsibility, by G Arangio-Ruiz’ UN Doc A/CN.4/444 (1992) II (1) ILC Ybook 1  . . . . . . . . . 155 ‘Draft Code of Crimes Against the Peace and Security of Mankind’, as included in the ‘Report of the International Law Commission on the Work of its Forty-Eighth Session’ UN Doc A/51/10 (1996) II (2) ILC Ybook 15 . . . . . 99, 104 ILC, ‘Third Report on State Responsibility, by J Crawford’ UN Doc A/CN.4/507 (2000) II (I) ILC Ybook 3  . . . . . . . . . . 56 ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’, as included in the ‘Report of the International Law Commission on the Work of its Fifty-Third Session’ UN Doc A/56/10 (2001) II (2) ILC Ybook 26 . . . . . . 150–155, 176–177

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‘First Report on Responsibility of International Organizations, by G Gaja’ (26 March 2003) UN Doc A/CN.4/532  . . . . . . . . 14 ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L.682 . . . . . . 152–153, 177, 185 ‘Sixth Report on Responsibility of International Organizations, by G Gaja’ (1 April 2008) UN Doc. A/CN.4/597 . . . . . . . . . . . 150–151 ‘Draft Articles on the Responsibility of International Organizations’ as included in the ‘Report of the International Law Commission on the Work of its Sixty-third Session’ (2011) UN Doc A/66/10 . . . . . . 150–151 GENERAL COMMENTS OF THE HUMAN RIGHTS COMMIT TEE ‘General Comment No 23: The Rights of Minorities’ (8 April 1994) UN Doc CCPR/C/21/Rev.1/Add.5  . . . . . . . . . . 40 ‘General Comment No 24: Issues relating to Reservations made upon Ratification or Accession’ (4 November 1994) UN Doc CCPR/C/21/Rev.1/Add.6  . . . . . . . . . . 32 ‘General Comment No 28: Equality of Rights between Men and Women’ (29 March 2000) UN Doc CCPR/C/21/Rev.1/Add.10  . . . . . 39 ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev.1/Add.13 . . . 39, 43, 86, 169, 176

GENERAL COMMENTS OF THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS ‘General Comment No 3: The Nature of States Parties Obligations’ (14 December 1990) UN Doc E/1991/23  . . . . . . . . . 48 ‘General Comment No 4: The Right to Adequate Housing’ (13 December 1991) UN Doc E/1992/23  . . . . . . . . . . . . . . 32

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Table of Treaties and Other International Documents

‘General Comment No 9: The Domestic Application of the Covenant’ (3 December 1998) UN Doc E/C.12/1998/24  . . . . . 32 ‘General Comment No 12: The Right to Adequate Food’ (12 May 1999) UN Doc E/C.12/1999/5 . . . . . . . . . . . 46, 47 ‘General Comment No 13: The Right to Education’ (8 December 1999) UN Doc E/C.12/1999/10 . . . . . . 31, 169 ‘General Comment No 14: The Right to the Highest Attainable Standard of Health’ (11 August 2000) UN Doc E/C.12/2000/4 . . . . . 32, 34, 47, 48 ‘General Comment No 15: The Right to Water’ (20 January 2003) UN Doc E/C.12/2002/11 . . . . . . . . . . . . . . 46, 48 ‘General Comment No 18: The Right to Work’ (24 November 2005) UN Doc E/C.12/GC/18 . . . . . . . . . . . . . . . 46 ‘General Comment No 19: The Right to Social Security’ (4 February 2008) UN Doc E/C.12/GC/19 . . . . . . . . . . . . . . . 48 REPORTS BY THE SPECIAL REPRESENTATIVE OF THE SECRETARY GENERAL ON THE ISSUES OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS ‘Interim Report of the Special Representative of the Secretary-General on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises’ (22 February 2006) UN Doc E/CN.4/2006/97 . . . . . . . 79, 81, 87 ‘Mapping International Standards of Responsibility and Accountability for Corporate Acts’ (9 February 2007) UN Doc A/HRC/4/035 . . . . . . 102, 103, 105, 172 ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5 . . . . . . . . . . . . 4, 82–83, 167–168, 172 ‘Business and Human Rights: Towards Operationalizing the “Protect, Respect and Remedy” Framework’ (22 April 2009) UN Doc A/HRC/11/13 . . . . . . . . 82, 89, 103 ‘Business and Human Rights: Further Steps toward the Operationalization

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of the “Protect, Respect and Remedy” Framework’ (9 April 2010) UN Doc A/HRC/14/27 . . . . . . . . . . . 82, 169 ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (21 March 2011) UN Doc A/HRC/17/31 . . . . . . . . 82–83, 164, 165, 166

DOCUMENTS OF THE INTERNATIONAL SEABED AUTHORIT Y ‘Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ (4 October 2000) Doc ISBA 6/A/18 . . . . . . . 121–126, 137, 144–149, 158, 159 ‘Standard Clauses for the Exploration Contract’ (4 October 2000) Doc ISBA 6/A/18, Annex 4 . . . . . . . . 124–126, 137, 144–149, 154 ‘Regulations for Prospecting and Exploration of Polymetallic Sulphides’ (7 May 2010) Doc ISBA/16/A12  . . . . . . . . . . . . . . . . . . . 121 ‘Regulations for Prospecting and Exploration of Cobalt-Rich Crusts’ (27 July 2012) Doc ISBA/18/A11  . . . . . . . . . . . . . . . . . . . 121

DOCUMENTS OF THE INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT ‘General Conditions for Loans’ (Dated 1 July 2005, as amended through 12 February 2008)  . . . . . . . . . . . 132–135, 147, 149, 150, 159–160

OTHER DOCUMENTS ‘UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (26 August 2003) UN Doc E/CN.4/ Sub.2/2003/38/Rev.2 . . . . . . . . . 3, 77–81, 165–166, 169, 172–173

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List of Abbreviations ACHR AfrCHPR AfrComHPR AdV AFDI AJIL AmUILR AnnIDI ARIEL ASIL Proc AYIL Berkeley JIL Brooklyn JIL BuffHRLR BULRev BYIL CalWILJ CathULR Cf CLJ CJTL ComESCR CUP ECHR EComHR ECtHR edn EPIL Georgia JICL GYIL HarvHRJ HarvILJ HarvLR HRC HRLJ HRLR HRQ HRR IACtHR ICCPR ICESCR ICLQ ICLR

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American Convention on Human Rights African (Banjul) Charter on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights Archiv des Völkerrechts Annuaire français de droit international American Journal of International Law American University International Law Review Annuaire de l’Institut de droit international Austrian Review of International and European Law American Society of International Law Proceedings Australian Yearbook of International Law Berkeley Journal of International Law Brooklyn Journal of International Law Buffalo Human Rights Law Review Boston University Law Review British Yearbook of International Law California Western International Law Journal Catholic University Law Review conferre Cambridge Law Journal Columbia Journal of Transnational Law Committee on Economic, Social and Cultural Rights Cambridge University Press European Convention on Human Rights European Commission of Human Rights European Court of Human Rights edition Encyclopedia of Public International Law Georgia Journal of International and Comparative Law German Yearbook of International Law Harvard Human Rights Law Journal Harvard International Law Journal Harvard Law Review Human Rights Committee Human Rights Law Journal Human Rights Law Review Human Rights Quarterly Human Rights Review Inter-American Court of Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International and Comparative Law Quarterly International Criminal Law Review

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xx ICTR ICTY IJMCL ILA Rep Conf ILC ILPCT J JAIL JDI JENRL JICJ JIEL LJ LRev L & Policy in Intl Bus MelbJIL MelbULR MichLR MLR NDLR NILR NYIL NwULRev Off Rec OJLS OUP ÖZöR RBDI RdC RUDH TexLR U UCLALRev VJTL VirgLR Ybook ZfgStr

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List of Abbreviations International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Journal of Marine & Coastal Law International Law Association Reports of Conferences International Law Commission International Law & Practice of Courts and Tribunals Journal Japanese Annual of International Law Journal de droit international Journal of Energy & Natural Resources Law Journal of International Criminal Justice Journal of International Economic Laws Law Journal Law Review Law & Policy in International Business Melbourne Journal of International Law Melbourne University Law Review Michigan Law Review Modern Law Review Notre Dame Law Review Netherlands International Law Review Netherlands Yearbook of International Law Northwestern University Law Review Third United Nations Conference on the Law of the Sea: Official Records Oxford Journal of Legal Studies Oxford University Press Österreichische Zeitschrift für öffentliches Recht Revue belge de droit international Recueil de cours de l’Académie de droit international de la Haye Revue universelle des Droits de l’homme Texas Law Review University University of California, Los Angeles Law Review Vanderbilt Journal of Transnational Law Virginia Law Review Yearbook Zeitschrift für die gesamte Strafrechtswissenschaft

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Introduction

The question of the international legal status of corporations posed a fundamental challenge to international law doctrine throughout the second half of the twentieth century. International law oscillated between the need to respond to emerging socio-economic realities, and more specifically the heightened visibility of the corporate phenomenon on the international level, and the difficulty in translating this phenomenon into the traditional international legal vernacular. This tension transpires in the Barcelona Traction judgment: on the one hand the ICJ highlighted ‘corporate personality [as] a development brought about by new and expanding requirements in the economic field’1 and on the other it stressed that international law is called upon to recognize institutions of municipal law that have an important and extensive role in the international field. This does not necessarily imply drawing an analogy between its own institutions and those of municipal law.2

This open-ended recognition offered by international law to the corporate entity resulted in a heated debate centering on the abstract question of the international legal personality of the corporation.3 The views expressed ranged from the affirmation of corporations’ international legal personality to a forceful negation thereof.4 Yet, as Nijmann suggests ‘[t]he Cold War context prevented international legal scholars from opting for realistic and pragmatic approaches, causing the state-centered reasoning to persist’.5 As the workings of corporations grew ever more complex, international lawyers realized that these entities did not easily square with conceptions derived from a

1

Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 35. Barcelona Traction, Light and Power Company, Limited (n1) 33. The ICJ reprised this dictum in Ahmadou Sadio Diallo (Judgment) [2010] ICJ Rep [104]. 3 See CN Okeke, Controversial Subjects of International Law (1974) 205–216; A Fatouros, ‘Transnational Enterprises in the Law of State Responsibility’ in RB Lillich (ed), International Law of State Responsibility for Injuries to Aliens (1983) 361; J Charney, ‘Transnational Corporations and Developing Public International Law’ (1983) Duke LJ 762–773. 4 In the context of corporate personality derived from state contracts, compare the contrasting views of F Rigaux, ‘Des dieux et des héros; Réflexions sur une sentence arbitrale’ (1978) 67 RCDIP 445 and I Seidl-Hohenveldern, ‘The Theory of Quasi-International and Partly International Agreements’ (1975) 11 RBDI 570. 5 JN Nijmann, The Concept of International Legal Personality (2004) 352. 2

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predominantly state-centric mode of reasoning.6 As noted by Baade, corporations are ‘neither States, nor public international organizations, and thus neither ‘natural’ nor ‘artificial’ subjects of international law as presently defined’.7 As a consequence of this realization, the initial debates on the personality or subjectivity of corporations began to subside. The focal point of the debate gradually shifted to the specific ways in which corporations functioned in particular contexts.8 Following the end of the Cold War, the question of the status of corporations in international law resurfaced on account of sensational instances of gross human rights violations and environmental disasters associated with corporate misconduct. Yet, the reasons for the resurfacing of the question are more complex. On the one hand, corporate entities have managed to muster enough economic power to dwarf the power of certain States.9 On the other hand, apart from the quantitative aspect of economic capacity, corporations have begun to exercise functions comparable to those of the State. The onset of globalization10 associated with an emerging trend towards privatization has given rise to a retreat of the State from various fields, where it traditionally has exercised a regulatory monopoly. Corporations have entered ‘what used to be in many countries “reserved” state businesses in the “public service” fields’,11 such as electricity, gas transports, the operation of prisons, even the conduct of war.12 They have gradually become fragmented hubs of power that could serve as sources of authority. Thus, privatization has in turn raised ‘concerns over whether the cost savings that result from such public delegations to private entities occur at the expense of democratic processes, legitimacy, and individual justice’.13 Whereas four decades ago it might have appeared absurd to speak of the corporation as an object of direct regulation by international law,14 from the 1990s onwards the application of international law, and more specifically international human rights and criminal law, to corporations has been considered key in efforts to combat corporate misconduct with deleterious effects on the enjoyment of

6

See D Carreau, Droit international (1986) 30–31. HW Baade, ‘The Legal Effects of Codes of Conduct’ in N Horn (ed), Legal Problems of Codes of Conduct for Multinational Enterprises (1980) 8. 8 See V Lowe, ‘Corporations as International Actors and International Law Makers’ (2004) 14 Italian YIL 26. 9 Cf S Joseph, Corporations and Transnational Human Rights Litigation (2004) 1–6. 10 The concept is admittedly elusive. A concise definition is given by Vagts, according to which the term refers to the ‘process through which natural and legal impediments to the movement of economic elements across national frontiers are being ground away’. D Vagts, ‘The UN Norms for Transnational Corporations’ (2003) 16 Leiden JIL 798. 11 A Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’ in P Alston (ed), Non-State Actors and Human Rights (2005) 75. 12 See P Singer, Corporate Warriors: The Rise of the Privatized Military Industry (2003); H Krieger, ‘Der privatisierte Krieg: Private Militärunternehmen im bewaffneten Konflikt’ (2006) 44 AdV 159. 13 A Aman, ‘Privatization, Prisons, Democracy, and Human Rights’ (2005) 12 Indiana J Global Legal Studies 524. 14 See the discussion in W Friedmann, ‘General Course in Public International Law’ (1969) 127 RdC 121–124. 7

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human rights.15 The submission of corporations to international law would bypass weak or corrupt states and would serve as a more credible deterrent for corporations, thus potentially inducing corporate compliance inter alia with fundamental human rights norms.16 During the 1998 Rome Conference certain delegations sought unsuccessfully to extend the jurisdiction ratione personae of the International Criminal Court to include legal persons. In 2004, a Sub-Commission of the UN Commission on Human Rights failed to win approval for a set of binding corporate human rights norms, entitled ‘UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (UN Norms),17 which—their drafters argued—served as a restatement of the human rights obligations binding on corporations under international law.18 These initiatives met with scepticism—if not hostility—on behalf of States, leaving the law in a state of flux. If regulation of corporations poses a fundamental challenge to international law, the same could be said of the definition of such entities. Much of the commentary has centred on the ‘transnational’/‘multinational’ ‘corporation’/‘enterprise’.19 The prevalence of this terminology can be justified on a number of grounds, such as the history of the topic at the United Nations and the preoccupation with upholding human rights against foreign corporations operating in the developing world.20 Those focusing on the operation of ‘transnational’ corporations are essentially concerned with the economic power of these entities, which presumably amplifies their capacity to hamper the enjoyment of human rights.21 Nonetheless, an analysis focusing solely on the operation of ‘transnational corporations’ appears too narrow. The designation of a cluster of entities as a ‘transnational’ corporation does not alter the fact that this ‘transnational’ corporation is composed of legal entities with separate personalities under the corporation law of the States in which they operate. Therefore, the parent company would not in principle be liable for the wrongdoing of a subsidiary. If international law obligations were to serve as a credible deterrent, they would have to directly bind each and every corporate entity with a distinct personality, irrespective of its position as parent or subsidiary. More significantly, national corporations may themselves pose a threat to human rights, and therefore they should not be excluded from the reach of potential 15 Cf A  Clapham, Human Rights Obligations of Non-State Actors (2006) 266–270; S Joseph, ‘Taming the Leviathans’ (1999) 46 NILR 185–186. 16 Joseph (n15) 185–186. 17 (13 August 2003) UN Doc E/CN.4/Sub.2/2003/12/Rev.2. 18 D Weissbrodt & M Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2003) 97 AJIL 912. 19 According to the definition offered by Vernon and quoted by Vagts, a ‘multinational’ corporation refers to ‘a cluster of corporations of diverse nationality joined together by ties of common ownership and responsive to a common management strategy’. D Vagts, ‘The Multinational Enterprise: A New Challenge for Transnational Law’ (1969-70) 83 HarvLR 740. According to Wildhaber, a ‘transnational corporation’ is an entity ‘if it has a certain minimum size, if it controls production or service plants outside its home state and if it incorporates these plants into a unified corporation strategy’. L Wildhaber, ‘Some Aspects of the Transnational Corporation in International Law’ (1980) 27 NILR 80. 20 21 Clapham (n15) 199. Joseph (n9) 4; Charney (n3) 768–773.

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international law obligations.22 As the UNSG Special Representative on the issue of human rights and transnational corporations noted, ‘[t]o attract investments and promote exports, governments may exempt national firms from certain legal and regulatory requirements or fail to adopt such standards in the first place’.23 The present monograph does not address the conduct of all forms of legal persons. The focus rests on the regulation by international law of private corporate conduct. Admittedly, a comparative study of the infinitely varied manifestations of the corporate phenomenon would go well beyond the scope of the analysis. When faced with the question of corporations from the viewpoint of international law, one has to be content with—what Seidl-Hohenveldern has termed—‘a rather untechnical definition [which will] keep clear of certain intricacies, which serve as distinguishing marks of the corporation laws of various States’.24 Thus, reference to a ‘corporation’ should be taken to mean an organization of persons and material resources, with a distinct legal personality, of limited liability and licensed by the state for the purpose of conducting profit-seeking business activity. The present monograph examines whether corporate obligations, namely obligations binding directly upon a corporation under positive international law, have indeed emerged, as well as what challenges are facing international law as a result of the emergence of corporate obligations. The focus on positive international law necessarily means that soft law or non-binding international law documents are solely assessed to the extent that they contribute to the emergence or recognition of international law obligations. The examination of corporate obligations under international law proceeds on three levels of analysis. At first, one needs to assess the applicability of international law to corporate conduct. The question is whether the predominantly state-centric international law may systemically include corporations within its reach. If international law is found to be directly applicable to corporate conduct, then the focus has to turn to the concept of corporate obligations and, specifically, the necessary conditions for the emergence of those obligations under international law. Second, the monograph will examine the sources of prospective corporate obligations under international law, namely treaty law, custom, as well as functional internationalized contracts concluded between corporations and international organizations. The examination will extend beyond international human rights and criminal law to include the law of the sea and international economic law as sources of potential corporate obligations. What is more, the analysis of the sources does not merely serve the ontological purpose of affirming or refuting the existence of corporate obligations under positive international law. It also will endeavor to

22

See Clapham (n15) 201. ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5 [15]. 24 I Seidl-Hohenveldern, ‘Public International Law Influences of Conflicts of Law Rules on Corporations’ (1968) RdC 7. A similar methodological point is made in P de Visscher, ‘La protection diplomatique des personnes morales’ (1961) 102 RdC 399–400. 23

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trace the normative content of potential corporate obligations, and the extent to which such content may bar the emergence of corporate obligations. Finally, the monograph will engage in a structural analysis of corporate obligations under international human rights law. Assuming that international law may produce corporate obligations, one needs to scrutinize the manner in which these obligations operate. Theoretically, corporate obligations may mirror the structure of performance of existing State obligations under international law or they may fundamentally challenge it.

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I The Concept of Corporate Obligations under International Law The concept of the corporation as a bearer of international law obligations in and of itself constitutes a departure from a strictly state-centric approach to international law, according to which only States can be addressees of international law rules.1 Still, even at the high tide of state-centrism, non-sovereign entities were not entirely excluded from the ambit of international law.2 In fact, the Dutch and English trading companies operating in East India between the 17th and 19th centuries were bestowed with powers comparable to those of a sovereign, as they were authorized to conclude treaties, wage war and acquire territory.3 The ambivalence of international law towards corporations persists. Certain authors caution that ‘[m]ultinational enterprises create . . . huge complications for traditional international legal concepts’.4 Others find the direct regulation of corporations under international law advantageous.5 Still, leaving policy-related arguments aside, international law scholarship continues to approach the question of corporate obligations in a piecemeal fashion. There is often use of or reference to the concept of corporate obligations under international law despite the fact that the content of the term remains contested. The first task when addressing corporate obligations under international law is to assess whether international law in principle applies to the conduct of corporations. Of course, to suggest that the existence of a corporate obligation under international law is theoretically conceivable reveals nothing about the conditions that have to be met for a corporate obligation to emerge. It is to these conditions that the second part of the present analysis turns. Their identification logically precedes any effort to identify potential sources of corporate obligations under international law. 1 The most famous exposition of this approach remains that of Oppenheim:  ‘Since the law of nations is based on the common consent of individual States, States solely and exclusively are subjects of international law’. See L Oppenheim, 1 International Law: A Treatise (2nd edn, 1912) 19; cf S.S. Lotus [1927] PICJ Rep Ser A 10, 18, where it was held that ‘International law governs relations between independent States’. 2 See JHW Verzijl, 2 International Law in Historical Perspective (1969) 339; C Berezowski, ‘Les sujets non souverains du droit international’ (1938) 65 RdC 1. 3 CH Alexandrowicz, ‘Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries’ (1960) 100 RdC 212–213. 4 L Henkin, ‘International Law: Politics, Values and Functions’ (1989) 216 RdC 199. 5 S Joseph, ‘Taming the Leviathans’ (1999) 46 NILR 185.

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One should note here that the examination of the corporation as a bearer of obligations under international law is necessarily correlated with the issue of the international legal personality of the corporation. Yet, the two questions are not identical. The capacity of the corporation to incur obligations is a necessary but may not be a sufficient condition of subjectivity under international law.6 At the same time, enquiring into the nature of such capacity logically precedes any question regarding the status of corporations as subjects of international law.7 The question of the applicability of international law to the corporation is not to be equated to the question of its personality under international law.8

1. Corporations as Bearers of Obligations under International Law The Advisory Opinion of the PCIJ in the Jurisdiction of the Courts of Danzig case9 appropriately serves as a departure point regarding the question of the corporation as a potential bearer of international law obligations. Whereas the Opinion dealt with the conferral of rights and the imposition of obligations under international law on individuals, it has been argued in theory that the pronouncements of the Court should by analogy apply to corporations, and more generally to groups of individuals not constituting states.10 The debates on the application of international law to non-State persons have traditionally centred on the individual, rather than the corporation, as the debate on the position of the individual in international law has been far more prominent in international legal theory. Nonetheless, no distinction has been drawn in theory between the corporation and individual in the context of rights and obligations derived from international law.11 It could be argued that the individual-based analysis should a fortiori apply to the corporation. The reason is that the corporation, as a legal fiction and juristic person, is structurally more akin to the recognized subjects of international law, namely the State and the international organization.12 In this vein, to establish an international law obligation binding on the corporation should in principle present less of a conceptual challenge than one binding on the individual. 6 The ICJ held that a subject of international law is an entity ‘capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims’. Reparation for Injuries Suffered in the Service of the United Nations Case (Advisory Opinion) [1949] ICJ Rep 179 (hereinafter Reparation). 7 H Lauterpacht, Private Law Sources and Analogies of International Law (1927) 75 lamented ‘publicists [for constructing] a definition into which, Procrustes-like, they endeavoured to fit actual facts’. 8 Cf S Rosenne, ‘The Perplexities of Modern International Law’ (2001) 291 RdC 291. 9 Jurisdiction of the Courts of Danzig (Advisory Opinion) [1928] PCIJ Rep, Series B 15 (hereinafter Jurisdiction). 10 Cf ILC, ‘Report on the Law of Treaties, by JL Brierly’ UN Doc A/CN.4/23 (1950) II ILC Ybook 229, fn 24. 11 Cf PC Jessup, ‘Modernization of the Law of International Contract Agreements’ (1947) 41 AJIL 389; see also RY Jennings, ‘The LaGrand Case’ (2002) 1 ILPCT 26, noting that ‘there are many treaties and conventions, of many different kinds and functions, that might likewise be alleged to create some sort of status, or rights, or obligations, for individuals and corporations’. 12 See the analogies drawn between corporations and States in H Kelsen, Principles of International Law (2nd edn, 1966) 180–182.

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The key issue in the above Advisory Opinion was whether the Beamtenabkommen, an international agreement between Poland and the City of Danzig, conferred upon Danzig railway officials a right of action against the Polish Railway Administration for the recovery of pecuniary claims. The Court first upheld the then traditional view by positing that: ‘It may be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals.’13 Nonetheless, it went on to add that it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts.14

This pronouncement elicited a variety of interpretations. Stressing the significance of the last phrase of the quoted dictum, Anzilotti argued that the treaty does not per se confer rights and impose obligations on individuals. On the contrary, he concluded, the Beamtenabkommen only enjoined Poland to incorporate the provisions of the agreement into municipal law.15 Thus, no international rights or obligations of individuals were created. Lauterpacht on the contrary espoused a much wider reading of the Opinion, according to which treaties, if the parties so intended, applied directly to individuals.16 This reading corresponded in Lauterpacht’s view to the then gradually evolving consensus that ‘there is nothing in international law which is fundamentally opposed to individuals and other legal persons becoming subjects of international rights and duties, i.e. subjects of international law’.17 Anzilotti’s dualist-inspired interpretation of the Opinion stands in contrast with its actual formulation. The PCIJ, in a lucid manner, held that ‘the wording and general tenor of the Beamtenabkommen show that its provisions are directly applicable as between the officials and the Administration’,18 thus glossing over the objections mentioned above.19 This passage is even more illuminating if one considers the fact that the agreement in question was never incorporated into Polish municipal legislation. Had it been incorporated, an argument could possibly be made that the applicability of the international law provisions to railway officials hinged on municipal legislation.

13 Jurisdiction (n9) 17; cf Factory at Chorzow [1928] PCIJ Rep Series A 17, 28, noting that ‘[r]ights or interests of an individual . . . are always in a different plane from rights or interests belonging to a State’. 14 Jurisdiction (n9) 17–18. 15 See D Anzilotti, Cours de droit international (1929) 407; for similar views, cf A McNair, The Law of Treaties (1961) 338; WE Beckett, ‘Decisions of the Permanent Court of International Justice on Points of Law and Procedure of General Application’ (1930) 11 BYIL 4; L LeFur, ‘Le litige sur la compétence des tribunaux dantzikois’ (1928) 35 RGDIP 272–273. 16 H Lauterpacht, The Development of International Law by the Permanent Court of International Justice (1934) 51. 17 18 Lauterpacht (n7) 79. Jurisdiction (n9) 18. 19 Cf T Buergenthal, ‘Self-Executing and Non-Self Executing Treaties in National and International Law’ (1992) 235 RdC 324.

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Yet, a closer reading of the Opinion does not wholly vindicate Lauterpacht’s view concerning the direct applicability of treaties to individuals. The PCIJ was preoccupied with the narrower question whether the provisions of the Beamtenabkommen did produce rights and obligations for Danzig railway officials when transposed into the ‘contract of service’ between the Polish Railways Administration and the Danzig officials, in other words as part of the contract governing their terms of service.20 According to the Court, the object of the Beamtenabkommen was to create a special legal regime governing the relations between the Polish Railway Administration and the Danzig officials.21 Furthermore, as noted above, the Court stressed that the provisions of the Beamtenabkommen should not be construed in a manner, which would make the applicability of these provisions dependent on their incorporation into a Polish Regulation.22 One could thus suggest that the Court recognized the applicability of international law to individuals, yet not under the heading of the direct application of treaties to individuals. The Court accepted that the creation of a special legal regime governing the employment of Danzig officials necessitated its insulation from national legislation. The parties to the Beamtenabkommen essentially agreed on the substantive content of the contract and its transposition into the actual contract. Via this form of renvoi, States were free to create rights and obligations for individuals under international law. The significance of the decision lies in the refusal of the Court to uphold States as exclusive beneficiaries of rights and bearers of obligations under international law. The Court, thus, departed from the then traditional view by ignoring the ‘postulated insurmountable barrier between the individual and international law’.23 Yet, the Opinion stops short of reinterpreting international law as a legal system, which by definition regulates the conduct of persons other than States. Individuals and corporations may become bearers of obligations under international law, albeit exceptionally and in accordance with State consent.24 Lauterpacht’s aforementioned proposition that ‘there is nothing in international law which is fundamentally opposed to individuals and other legal persons becoming subjects of international rights and duties, i.e. subjects of international law’,25 was later upheld by the ICJ, which has posited that ‘the subjects of law in any legal system are not necessarily identical in their nature or in their extent of their rights’,26 thus dissociating sovereignty from subjectivity. The idea that international law does not systemically exclude non-State entities has been affirmed in international law theory27 and practice.28 20

21 22 Jurisdiction (n9) 17. Jurisdiction (n9) 18. Jurisdiction (n9) 20. H Lauterpacht, The Development of International Law by the International Court (1958) 175. 24 In this sense, Lauterpacht has argued that the Jurisdiction Opinion may be interpreted as establishing a rebuttable presumption against the existence of direct rights and obligations for individuals. Lauterpacht (n23) 175–176; cf I Brownlie, ‘The Place of the Individual in International Law’ (1964) 50 VirgLR 440. 25 26 Lauterpacht (n7) 79. See Reparation (n6) 178. 27 Cf CN Okeke, Controversial Subjects of Contemporary International Law (1974) 220; J Charney, ‘Transnational Corporations and Developing Public International Law’ (1983) Duke LJ 762; Y Dinstein, ‘The Interaction between Customary International Law and Treaties’ (2006) 322 RdC 339. 28 During the ILC debate on the Law of Treaties, Sir Humphrey Waldock, in his capacity as the Special Rapporteur, and a number of ILC members underlined that, in principle, States were perfectly 23

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The applicability of international law to corporations has been most importantly reaffirmed in the framework of the European Convention on Human Rights29 (ECHR), which expressly provides for the protection of the right to private property of ‘legal persons’,30 a term logically encompassing corporations. More fundamentally, the European Court of Human Rights (ECtHR) has held that corporations fall within the scope of Art 34 ECHR. They may in their capacity as ‘non-governmental organizations . . . claiming to be the victim of a violation by one of the . . . Parties’ of the rights guaranteed by the Convention lodge individual applications with the Court. In this manner, the Court has accorded them protection that extends beyond the right of private property.31 Whereas the status of corporations as rights holders under international law has been affirmed in the case law of the ECtHR, the question of corporate obligations sparks heated debates. Interestingly, the literature has abstained from providing a fully fledged analysis of what one means when referring to obligations derived from international law and binding on corporations. Such an effort is undertaken in the following Part.

2. Conditions of Corporate Obligations under International Law The dominant view in international law theory affirms that the addressees of international law are ‘normally and primarily’ the governments of States.32 Yet, it cannot be denied that international law rules may impact on the conduct of persons, whether individuals or corporations, on the domestic plane. The performance of an international treaty, apart from being an intergovernmental affair, holds significance for corporations as it might modify their legal status under domestic law. Still, to suggest that international law binds corporations qua legal entities is a different matter altogether that merits detailed scrutiny. free to agree on conferring rights and obligations directly on groups of individuals, as there was nothing in international law to prevent them from doing so. See ILC, ‘Third Report on the Law of Treaties, by H Waldock’ UN Doc A/CN.4/167 (1964) II ILC Ybook 46. In his commentary to draft Article 66, Waldock referred to the Jurisdiction Opinion and concluded that a treaty can be directly applicable to non-State entities, thus affirming Lauterpacht’s interpretation of the opinion. See also the views expressed by Verdross (1964) I ILC Ybook 114 [22]; Yasseen (1964) I ILC Ybook 114 [26]; Castrén, (1964) I ILC Ybook 114 [24]; Amado (1964) I ILC Ybook 114 116 [38]; De Luna (1964) I ILC Ybook 114 [40]. Equally, customary international law may be directly applicable to non-State entities, such as armed opposition groups. This was more recently affirmed in SCSL, Prosecutor v Sesay, Kallon and Gbao (Decision on Challenge to Jurisdiction:  Lomé Accord Amnesty) SCSL-0415-PT-060 (2004) [47]. 29 Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950; entered into force 3 September 1973) 213 UNTS 222. 30 Art 1 (1) of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 20 March 1952; entered into force 18 May 1954) ETS 9. 31 For an exhaustive treatment of the human rights protection accorded to corporations under the ECHR, see M Emberland, The Human Rights of Companies (2006). 32 I Brownlie, The Rule of Law in International Affairs (1998) 14.

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Some authors suggest that the lack of international law rules binding upon corporations is a ‘legal vacuum’.33 Such a finding is peculiar for two reasons. First, when reference is made to the existence of a vacuum or a gap in the law, one is making ‘use of a tendencious metaphor appropriate to critics, but not one of the jurist’s terms of art’.34 Indeed, the idea of a vacuum is a teleological one, amounting in fact to ‘a statement that a result reached by the application of the law as it stands is unsatisfactory’.35 Second, the essentially state-centric nature of international law logically implies the exceptional character of obligations binding upon corporations under international law. Therefore, to suggest that the lack of corporate obligations under international law amounts to a legal vacuum actually goes against the grain of positive international law. Others might venture as far as finding that corporations do bear obligations under positive international law. Leaving aside methodological questions, the finding in itself does not present any logical problems. Nonetheless, to suggest that the corporation is bound by international law again does not reveal much about the conditions of these obligations. The following analysis aims at charting the necessary conditions that need to be fulfilled in order to affirm the existence of a corporate obligation, namely an obligation under international law binding upon a corporation qua legal entity.

a. The nature of the obligation as directly regulating corporate conduct An obligation under international law logically presupposes as a minimum the existence of an international law rule, which demands of the obligor to act or prohibits the latter from acting in a certain manner.36 To accept that an international law obligation may arise solely on the basis of national legislation is paradoxical and should be refuted. Amerasinghe notes that ‘[t]he obligations . . . of individuals or group of individuals under municipal law could not necessarily sound in international law for the reason only that they are existent in municipal law’.37 Still, as noted, the condition that the international rule regulates the conduct of the obligor is the bare minimum. The next—and more crucial—question is whether the international law rule applies directly to the conduct of corporations. The Jurisdiction Opinion, in examining the nature of the rights conferred and obligations imposed by the Beamtenabkommen on individuals, posited that its provisions should not be construed in a manner that would render the applicability of the international instrument dependent on incorporation into municipal legislation.38 In other words, an obligation is of an international law character if it

33 34 35 36 37 38

A Clapham, Human Rights Obligations of Non-State Actors (2006) 247. JL Brierly, ‘The General Act of Geneva, 1928’ (1930) 11 BYIL 128. H Lauterpacht, The Function of Law in the International Community (1933) 68. Cf B Garner (ed), Black’s Law Dictionary (8th edn, 2004) 1104. CF Amerasinghe, State Responsibility for Injuries to Aliens (1967) 42. Jurisdiction (n9) 20.

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applies to corporations without prior recourse to municipal law.39 Thus, if States, for example, agree by virtue of treaty law to criminalize certain corporate conduct in their national legal systems, then there only exists an international obligation assumed by the contracting States to adopt such municipal legislation. In such a case, corporations would not come into direct contact with international law. Those arguing otherwise proceed from the following premise: logically, if the international law rule ultimately affects the conduct of a corporation, then this means that it creates an obligation on the latter, or at least an indirect one.40 ‘Indirect obligations’ of corporations, in this sense, encompass ‘obligations of states to ensure national laws and procedures effectively enforce international standards in relation to companies’.41 This terminology is troubling. The phrase ‘indirect obligation’ actually refers to typical obligations binding on States according to the traditional international law doctrine. This is a distinction the significance of which needs to be reaffirmed for practical reasons. If the obligation binds the State only, then corporate directors ‘need concern themselves, as a legal matter, only with the domestic laws of the States in which they operate’.42 Furthermore, if one takes the above position to its logical extreme, then the obligation does not indirectly bind the corporation, but ultimately the individuals that form the corporation. It is the individuals who make decisions regarding corporate conduct. Once we accept the indirect effect of international law obligations, there is no cogent reason why such an effect should not extend to the individuals behind the corporate screen. On the contrary, one could draw an analogy between such a line of argumentation and the Kelsenian proposition that ‘individual human beings are indirectly and collectively, in their capacity as organs or members of the state, subjects of obligations . . . presented as obligations . . . of the state’.43 This terminological confusion between direct and indirect obligations often arises from the formulation of international treaty provisions, which appear to impose an obligation on the corporation itself. Yet, as Cheng cautions legal rules, including rules of international law, are often formulated in such an elliptical way that . . . they transpose, not in law but merely for drafting purposes, the rights and duties from the subjects of the law to the objects concerned.44

In the same vein, Barberis notes that the bearer of the obligation may not be the one appearing as such in the text of the treaty, but the one actually assuming 39 Cf H Lauterpacht, International Law and Human Rights (1958) 38; A Verdross, Völkerrecht (5th edn, 1964) 218; J Barberis, ‘Nouvelles questions concernant la personnalité juridique internationale’ (1983) 179 RdC 161. 40 S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001-02) 111 Yale LJ 488; International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies (2002) 45. 41 International Council on Human Rights Policy (n40) 45. 42 CM Vázquez, ‘Direct vs Indirect Obligations of Corporations under International Law’ (2004-05) 43 CJTL 936. 43 Kelsen (n12) 195. 44 B Cheng, ‘Introduction to Subjects of International Law’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 29.

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the obligation under international law.45 The key issue in this respect is naturally  the interpretation of the relevant international law rule and the extent to which it binds corporations directly. Admittedly, certain authors have set a rather low threshold when affirming the existence of treaty-based corporate obligations, exclusively relying on the wording of the instrument.46 Yet, such strictly literal interpretation, without due consideration for the context of the instrument may lead to paradoxical results. Ratner has argued that ‘both the purpose of [international labour conventions] and their wording make clear that they do recognize duties on enterprises regarding their employees’.47 He goes on to add that international labour conventions ‘show that states have accepted the need to regulate corporate conduct through international law’,48 thus affirming that the duties he envisages derive from international law. In order to substantiate the argument he relies on Art 1 of the 1949 Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively,49 which reads:  ‘Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.’ Yet, Art 3 of the same instrument makes it clear that the Convention requires of States to enact legislation and establish the appropriate machinery ‘for the purpose of ensuring respect for the right to organise’. Ratner himself expressly acknowledges that the addressees of the above Convention are States.50 Nonetheless, he goes on to add that the obligations produced by the above Convention also entail, or indeed presuppose, a duty on the corporation not to interfere with the ability of employees to form unions.51 Ratner gives no cogent explanation as to why the obligation binding on States as of logical necessity presupposes the corresponding duty of the corporation. A corporate entity acting as an employer will be enjoined to abstain from interfering with the right of employees to form trade unions. Still, such obligations will in principle derive from domestic labour law. And in accordance with Art 3 of the above Convention the enactment by States of such obligations under domestic law as necessary to ensure respect for the right to organize lies at the heart of the instrument. These obligations cannot bind corporations directly under international law since they derive from domestic law. To argue that the above Convention seeks to establish international labour law obligations on corporations goes against the context of the instrument and ultimately the purpose of international labour law. International law rules cannot be lightly presumed to regulate corporations directly. Yet, this may be the case, once a minimum condition is met, that is when a rule of international law obliges a corporation to act or refrain from acting, and it does so without prior recourse to municipal legislation.

45

Barberis (n39) 167; see also Vázquez (n42) 934. See Ratner (n40) 481; see also N Jägers, Corporate Human Rights Obligations: In Search of Accountability (2002) 32. 47 48 Ratner (n40) 478. Ratner (n40) 479. 49 (adopted 1 July 1949; entered into force 18 July 1951) 96 UNTS 257. 50 51 Ratner (n40) 478. Ratner (n40) 478–479. 46

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b. The nature of corporate responsibility as responsibility under international law Whereas direct regulation serves as a necessary condition, in the sense of the logical minimum content of an obligation, it is argued that it is not sufficient for a corporate obligation under international law to emerge. The existence of an obligation under international law necessitates that the bearer incurs responsibility under international law in case of a wrongful act in breach of the obligation attributed to him.52 Conversely, the international responsibility of a corporation cannot be invoked if its conduct does not amount to a violation of an international law obligation. Whereas this fundamental principle has been formulated in terms of the international responsibility of States, it is properly applicable to all subjects of international obligations.53 Although some variations may be necessary when applying rules of State responsibility to other international legal persons by analogy, the abovementioned fundamental principle should be considered applicable mutatis mutandis.54 The justification of this principle resides in the existence of the international legal order and the legal nature of the obligations imposed by the international legal order on its subjects.55 To negate this principle would do away with the duty of international persons to behave in accordance with international law.56 Jägers argues that ‘international law occasionally directly addresses corporations’, in the sense that ‘international legal rules exist which require certain conduct from corporations irrespective of whether the corporation can be held responsible for violating these rules’.57 Then she goes on to cite international environmental and maritime treaties providing for civil liability regimes, which allegedly establish ‘direct obligations for legal persons’. At first, the author refrains from elaborating on how civil liability regimes bind corporations. Secondly, she refers to the treaties in abstract without pinpointing the provision which serves as the basis of the obligation. Jägers errs in speaking of ‘binding material duties’ or ‘treaties [that] directly place obligations’ on corporations, since in the first place the civil liability instruments cited by the author bind States and require that they regulate the conduct of corporations under domestic law. Bothe has succinctly summarized the function of ‘civil liability’ regimes in stating that ‘[t]his is a question of national law to begin with, but international law may have an impact by prescribing certain rules of liability to be adopted in the internal sphere’.58 Thus, Jägers is only 52 See ILC, ‘Second Report on State Responsibility, by R Ago’ UN Doc A/CN.4/233 (1970) II ILC Ybook 179. 53 The Special Rapporteur of the ILC on the question of Responsibility of International Organizations found this principle to be ‘easily transposable to international organizations’. See ILC, ‘First Report on Responsibility of International Organizations, by G Gaja’ (26 March 2003) UN Doc A/CN.4/532 18–19; for an affirmation of the principle in relation to armed opposition groups see L Zegveld, Accountability of Armed Opposition Groups in International Law (2002) 133. 54 C Eagleton, ‘International Organization and the Law of Responsibility’ (1950) 76 RdC 324–325. 55 Second Report on State Responsibility (n52) 180. 56 57 Verdross (n39) 373. Jägers (n46) 32. 58 M Bothe, ‘Environment, Development, Resources’ (2005) 318 RdC 437; see also J Barboza, ‘International Liability for the Injurious Consequences of Acts Not Prohibited by International Law and Protection of the Environment’ (1994) 247 RdC 371; A Boyle, ‘Making the Polluter Pay?

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able to dissociate obligation from responsibility because essentially an obligation under international law does not exist, and accordingly there is no reason why responsibility under international law should. Yet, if an obligation does exist under international law, then conduct, attributable to the corporation, which amounts to a violation of the obligation, will give rise to the international responsibility of the corporation, which is governed by the general international law of responsibility.

c. The implementation of corporate responsibility under international law Should a corporation violate an obligation incumbent upon it under international law, thus incurring international responsibility, the question arises as to how such responsibility is to be implemented on the corporation. If we accept that municipal law does not govern the emergence of the obligation or the nature of the responsibility in case of breach, it logically will not be called upon to regulate the implementation of the responsibility of the corporation. On the contrary, such implementation will take place on the basis of an application of international law. In case a dispute regarding the violation by a corporation of its international law obligations is brought before a judicial body, the latter should be entitled to apply international law, in order to decide whether there has been a violation and what are the consequences flowing from such violation. Since States may exceptionally impose international obligations on corporations, they may accordingly grant such corporations access to international judicial bodies as regards the disputes arising from the performance of their international obligations. It remains to be seen whether States opt to follow such practice. The thornier question is the role of domestic courts and the extent to which they may serve as judicial fora in which the responsibility of a corporation under international law may be implemented. It has been argued that ‘the use of domestic courts to implement [responsibility under international law] does not change the reality’ that international law in the first place has imposed such responsibility.59 This is true. The application of an international norm by a municipal court entitled to apply international law does not add to or detract from the nature of the rule. Ratner’s warning against confusing ‘the existence of responsibility with the mode of implementing it’60 is of use only to those unsure about the source of the obligation.

Alternatives to State Responsibility in the Allocation of Transboundary Environmental Costs’ in F Francioni and T Scovazzi (eds), International Responsibility for Environmental Harm (1991) 367–368. According to Morgera, ‘there are no international environmental norms directly binding upon private companies or multinational corporations in particular’. See E Morgera, Corporate Accountability in International Environmental Law (2009) 72. 59 60 Ratner (n40) 481. Ratner (n40) 481.

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3. Preliminary Conclusion International law does not prevent States from creating obligations directly binding on corporations under international law. In order for a corporate obligation under international law to be affirmed, three conditions have to be met: (a) the obligation must be provided for in an international law rule, regulating corporate conduct directly, that is without prior recourse to municipal legislation; (b) corporate conduct attributable to the corporation and amounting to a violation of the obligation should engage the responsibility of the corporation under international law; (c) the responsibility of the corporation should be enforced via the application of international law.

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II Corporate Obligations under Treaty Law

The imposition of international law obligations on corporations through international treaty law appears to be theoretically uncontroversial and an appropriate first port of call when seeking to identify sources of corporate obligations under international law. International treaties, whether general or particular, are unequivocally recognized as sources of international law.1 What is more, since the end of World War II, an array of factors have given rise to a notable trend towards treaty law, evidenced by the exponentially growing number of international treaties concluded.2 An overview of the rapports between treaties and corporations calls for two preliminary observations: States have generally abstained from regulating corporate conduct through international treaties. Since corporate activities have been perceived as challenging State sovereignty, States have been sceptical, if not hostile, about the idea of utilizing international law to regulate corporate activities, with the notable exception of international rules governing the treatment of foreign investors. And even in this case, international law has historically been criticized as accommodating the interests of corporations and of their home States.3 Corporations have been seen as instrumental in shaping international norms regarding foreign investment law under the ‘convenient cloak’ of positivism, which accepts that ‘only States [act] in the international sphere’.4 The truth of the matter is that whereas international treaties have been replete with norms establishing rights of and guarantees for foreign corporate investors,5 they have been more or less parsimonious as to the latter’s obligations. Following the end of World War II, this trend has been part reinforced, part resisted. It has already been noted that the proliferation of international human rights treaties has led to the recognition of fundamental human rights for corporate persons. At the same time, the institutionalization of mixed arbitration, 1

Art 38 (1) (a) ICJ Statute. See H Thirlway, International Customary Law and Codification (1972) 1–16; Y Dinstein, ‘The Interaction between Customary International Law and Treaties’ (2006) 322 RdC 261. 3 J Makarczyk, Principles of a New International Economic Order (1988) 9; cf DA Ijalaye, The Extension of Corporate Personality in International Law (1978) 148. 4 M Sornarajah, The International Law on Foreign Investment (2nd edn, 2004) 39. 5 For a historical account of the law on the diplomatic protection of legal persons up to the end of World War II, see L Caflisch, La protection des sociétés commerciales et des intérêts indirects en droit international public (1969) 25–54. 2

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prominently as a result of the conclusion of the ICSID Convention6 and the rapidly expanding number of bilateral investment treaties (BITs), has enabled corporations to initiate dispute settlement procedures against States in the field of investment. Yet, since the 1970s and amidst claims for a ‘New International Economic Order’, geared towards remedying the ‘unjust . . . reciprocal economic powers of States’,7 there have been efforts to regulate corporate conduct on the basis of international law. The first cycle of corporate responsibility8 under international law can be traced back to the drafting of the UN Code of Conduct on Transnational Corporations.9 The Draft Code was solely concerned with questions of investment law, yet the friction it caused was such that the effort was altogether abandoned. Following the end of the Cold War, there have been renewed calls for the regulation of corporate conduct by international law. Nonetheless, the focus has shifted. The current cycle of corporate responsibility focuses predominantly on the deleterious effects of corporate conduct on human life and the enjoyment of human rights. Correspondingly, international human rights and international criminal law are seen as the most appropriate means of regulating corporate conduct and minimizing its adverse effects. These two fields of international law share common roots. They achieved their breakthrough as a consequence of World War II atrocities. The rules contained in both these fields can best be described as rules for the treatment and protection of human beings based on considerations of humanity. Structurally, they mirror each other: the individual becomes the addressee of human rights and duties, the latter including criminal responsibility for actions or omissions.10 Indeed, the attribution of human rights may be seen as a corollary of the establishment of international criminal responsibility. As Lauterpacht noted, ‘it is difficult to urge and justify the existence of the former without admitting the validity of the latter’.11 Essentially, international criminal law responds to gross violations of human rights, resulting from a failure of traditional human rights protection mechanisms.12

6 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (opened for signature 18 March 1965; entered into force 14 October 1966) 575 UNTS 159. 7 Makarczyk (n3) 10. 8 The idea of a ‘cycle of corporate responsibility’ derives from CA Wells, ‘Cycles of Corporate Social Responsibility’ (2002-2003) 51 U of Kansas L Rev 77. The author posits that whereas discussions on the responsibilities of corporations in American literature are recurring, with each debate being the product of its time, all cycles of debate necessarily share conceptual foundations. The same can be said of the debates on the international law regulation of corporate conduct. Cf P Muchlinski, Multinational Enterprises and the Law (2nd edn, 2007) 573- 575. 9 For a presentation of the Draft Code’s history and drafting process, see A Fatouros, ‘Le projet de Code international de conduite sur les entreprises transnationales: essai préliminaire d’évaluation’ (1980) 107 JDI 5–47. 10 G Werle, Principles of International Criminal Law (2005) 40. 11 H Lauterpacht, International Law and Human Rights (1958) 45. 12 See MC Bassiouni, ‘The Proscribing Function of International Criminal Law in the Process of International Protection of Human Rights’ in T Vogler and others (eds), 2 Festschrift für Hans-Heinrich Jescheck zum 70. Geburtstag (1985) 1453.

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The following analysis focuses on the position of corporations in international treaties appertaining to human rights and international criminal law, and the extent to which such instruments, concerned predominantly with rights and obligations of the individual, can and in fact do serve as the fountainhead of obligations directly binding upon corporations under positive international law.

1. Human Rights Treaties The internationalization of human rights following the end of World War II constitutes a shift of ‘Copernican’ proportions in the structure of international law.13 International law moves beyond ‘procedural and ceremonial rules regulating the external intercourse of States’ to incorporate a body of rules concerned with the ‘substantive interests’ of individuals, which operate vis-à-vis States.14 More importantly, the relationship between a government and its nationals, which in the past was seen as the core of domestic jurisdiction lying beyond the reach of international law, has become ‘a matter of international concern and a proper subject for regulation by international law’.15 International human rights law, in other words, has been ‘turning the States inside out in an almost literal sense’.16 Human rights from a historical and normative point of view are concerned with the relations between individuals and power.17 The internationalization of human rights constituted an effort to create a body of law that stands extraneous to power.18 Such power has on the international level been associated with the sovereign power of States. Consequently, international human rights have traditionally been perceived as intending to safeguard the rights and freedoms of individuals against arbitrary State action.19 Henkin argues that human rights are claims upon society. These claims may derive from moral principles governing relations between persons, but it is society that bears the obligation to satisfy the claims . . . in human rights term, my rights are against the State.20

Such reading of human rights norms is in accord with the fundamental assumption of human rights belonging to the realm of public law. Human rights appear not to impinge on relations between individuals. A divide thus emerges between two

13

14 Cf C Tomuschat (ed), Menschenrechte (1992) 5. Lauterpacht (n11) 6. 2 Restatement of the Law (Third) The Foreign Relations Law of the United States (1987) 144–145. 16 B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 RdC 243; cf M Virally, ‘Panorama du droit international contemporain: cours général de droit international public’ (1983) 183 RdC 124. 17 Cf H Ruiz-Fabri, ‘Droits de l’homme et souveraineté de l’Etat’ in C Grewe and others (eds), Les droits individuels et le juge en Europe (2001) 371. 18 P Wachsmann, Les droits de l’homme (3rd edn, 1999) 3; cf C de Visscher, ‘Les droits fondamentaux de l’homme, base d’une restauration du droit international’ (1947) 41 AnnIDI 152–154. 19 T Buergenthal, ‘International Human Rights in an Historical Perspective’ in J Symonides (ed), Human Rights: Concepts and Standards (2000) 3. 20 L Henkin, The Age of Rights (1990) 3; cf C Tomuschat, Human Rights (2nd edn, 2008) 4. 15

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realms: the private and the public.21 In the private realm, individuals are thought to operate within a protected sphere of autonomy, ‘free to make self-willed individual choices . . . [and free from] the encroachment of others’.22 To limit the application of human rights to the acts of States preserves an area of individual freedom. To view the State as the natural addressee of international human rights rules reflects the reality of post-World War II international relations: in essence it reflects the concern and basic assumption that the amount of power a sovereign State wields renders it more capable of inflicting systematic abuse than individuals or groups of individuals, but at the same time also of promoting human rights. Whether the human right is ‘negative’, commanding the State to abstain from arbitrary interference with rights protecting the private sphere of the individual, or ‘positive’, enjoining the State to act in order to ensure the wellbeing of its nationals, the State is the addressee of human rights claims advanced. Legal relations flowing from human rights law are thus bipolar, between the State on the one hand, and individuals and groups of individuals on the other hand. Suggesting that international human rights treaties bind persons other than States challenges traditional human rights thinking as it implies that non-State actors may exercise such power against which the human rights protection of individuals should be guaranteed. Yet, here lies the crux of the debate: it is being argued that persons other than States, and more prominently among them corporations, nowadays wield such power that their conduct poses a threat to the enjoyment of most human rights.23 If human rights law is ever to gain significant effectiveness, it arguably cannot disregard human rights abuses committed by one private person against another by excluding them from its ambit.24 The core idea that human rights should apply in the dealings of individuals between themselves, but also of individuals and corporations, has been described in practice and theory in a wide gamut of manners. The German doctrine of Drittwirkung (third-party effect) of the fundamental rights has served as a prominent analytical tool.25 Drittwirkung posits that fundamental rights enshrined in the Constitution may be brought to bear upon relations between private persons where private law has apparently been unable to offer adequate protection to individuals against social powers.26 Reliance on Drittwirkung is logical if one considers that human rights, their nature, and content have their conceptual source in the principles of domestic constitutional law.27 The use of a domestic constitutional law 21 For a historical account: MJ Horwitz, ‘The History of the Public/Private Distinction’ (1982) 130 U Pennsylvania LRev 1423–1424. 22 A Freeman and E Mensch, ‘The Public-Private Distinction in American Law and Life’ (1985) Buffalo LR 237. 23 See S Joseph, ‘Taming the Leviathans’ (1999) 46 NILR 173–174. 24 T Meron, Human Rights and Humanitarian Norms as Customary Law (1989) 162; N Jägers, ‘The Legal Status of the MNC under International Law’ in MK Addo (ed), Human Rights Standards and the Responsibility of Transnational Corporations (1999) 269. 25 A Drzemczewski, European Human Rights Convention in Domestic Law (1983) 199. 26 A Drzemczewski, ‘The European Human Rights Convention and Relations between Private Parties’ (1979) 26 NILR 163. 27 Cf EA Alkema, ‘The Third Party Applicability or Drittwirkung of the European Convention on Human Rights’ in F Matscher and H Petzold (eds), Protecting Human Rights: The European Dimension (1988) 36.

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analogy has been a viable means for international human rights law to describe the emerging phenomenon of human rights moving beyond the regulation of strictly State-individual oriented relationships. The spatial concept of ‘horizontality’ has also been employed as a means of describing the extent to which human rights are applicable to the conduct of persons other than States. The State is considered as the prime potential violator of fundamental rights due to its sovereign power. The relationships formed by human rights law are predicated on an imbalance in legal power, and thus thought of as hierarchical or vertical.28 The idea of horizontality lies exactly in overcoming the traditional conceptualization of the function of human rights, arguing instead for an application of human rights in the relationships between individuals themselves. Whereas the question of corporations as addressees of human rights obligations has emerged over recent years to occupy a prominent place in doctrine, it is certainly not of recent vintage. Corporations do not have to be woven into the fabric of human rights theory ex post facto. The question of purported corporate human rights obligations has been an underlying theme ever since the conclusion of international and regional human rights instruments. Those participating in those initial debates were acutely aware of the potentially detrimental effect corporations could have on the enjoyment of human rights due to their economic power.29 The key question then becomes whether corporations wield such power that international human rights law, in reflecting the consent of States, has come to recognize them as bearers of direct obligations. The debate on treaty-based corporate human rights obligations can be divided into two phases: textual and dynamic, reflecting the approaches towards interpretation employed in order to derive such obligations from the respective treaty provisions. At the outset, it was argued that a literal interpretation of the treaties in question was sufficient in order to affirm their direct application between individuals and corporations. The obligation of the corporation lurked in the treaty text as it were. Gradually the focus shifted to an interpretation of human rights treaties in the light of contemporary circumstances. Corporate obligations had to be read into the human rights provisions as a means of curtailing corporate conduct detrimental to the liberty of individuals. The present chapter seeks to ascertain to what extent, whether during the textual or the later dynamic phase of the debate, corporations have been recognized as bearers of obligations under international human rights treaties. Nonetheless, one needs to keep in mind the words of caution offered by Provost: due to the continuously debated nature of obligations arising from human rights instruments, ‘a valid conclusion that there exist obligations . . . must rely on a clear intention of states expressed in substantive provisions of binding multilateral conventions’.30

28

D Friemann and D Barak-Erez (eds), Human Rights in Private Law (2003) 13. See S Marcus-Helmons, ‘Les personnes morales et le droit international’ in Les droits de l’homme et les personnes morales (1970) 72. 30 R Provost, International Human Rights and Humanitarian Law (2002) 64. 29

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a. Textual approach Interpretation of treaties may be thought of ‘as essentially a textual matter’.31 The logical primacy of the text in the process of interpretation is reflected in Art 31 (1) Vienna Convention on the Law of Treaties (VCLT).32 According to the ICJ, interpretation must be based ‘above all upon the text of the treaty’.33 Alas, the text of human rights treaties has raised more questions than it has answered in relation to those instruments’ third-party application. It has been argued that the subject matter regulated by human rights treaties ‘lends itself eminently to Drittwirkung’.34 The abstract formulation of human rights provisions in the majority of cases does not bar horizontal application since it does not expressis verbis target state action. This of course does not mean that human rights provisions dictate that they apply in private relations. Likewise it does not prove that the drafters of human rights treaties had Drittwirkung in mind when drafting the instruments.35 The variety of freedoms and rights guaranteed by the various human rights instruments and the manner in which they may affect relations between individuals make it impossible to treat the third-party effect of human rights treaties in a sweeping manner. In using Van Dijk’s and Van Hoof’s phraseology one may argue that Drittwirkung does not ‘imperatively ensue’ from human rights treaties.36 Whether a human rights treaty produces obligations on persons other than States, such as corporations, should be derived from the nature and formulation of each separate provision.

(1) ‘Duty’ clauses References to ‘duties’ in the texts of international human rights treaties, though sparse, are not unheard of. It has therefore been argued that a ‘textual exegesis’ of international human rights treaties ‘should lay to rest all pretense of describing human rights merely in terms of rights against the state’.37 The International Covenants in their Preamble recognize that ‘the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights’.38 In the same vein, Art 32 (1) of the American Convention on Human Rights39 (ACHR) reads: ‘Every person has responsibilities to his family, his community, and mankind’. Finally, the

31

RY Jennings and A Watts, 1 Oppenheim’s International Law (9th edn, 1992) 1271. (adopted 22 May 1969; entered into force 27 January 1980) 1155 UNTS 331. 33 Territorial Dispute (Libyan Arab Jamahiriya/Chad) [1994] ICJ Rep 6 [41]. 34 P Van Dijk and others, Theory and Practice of the European Convention on Human Rights (4th edn, 2006) 31. 35 36 Drzemczewski (n26)168. Van Dijk and others (n34) 32. 37 J Paust, ‘The Other Side of Right:  Private Duties Under Human Rights Law’ (1992) 5 HarHRJ 62. 38 Preamble para 5 of the International Covenant on Civil and Political Rights (opened for signature 16 December 1966; entered into force 23 March 1976) 999 UNTS 171 (ICCPR); Preamble para 5 of the International Covenant Economic, Social and Cultural Rights (opened for signature 16 December 1966; entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 39 (adopted 21 November 1969; entered into force 18 July 1978) 1144 UNTS 123. 32

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African Charter of Human and Peoples’ Rights40 (AfrCHPR) clearly stresses in its Preamble that ‘the enjoyment of rights and freedoms also implies the performance of duties on the part of everyone’, and sets out in its Chapter II, entitled ‘Duties’, a list of duties binding on the individual (Arts 27-29 AfrCHPR). Considering the use of ‘duty’ clauses in human rights treaties, the challenge then is to assess the extent to which reference to such duties can be interpreted as forming the basis of obligations under positive international law. The first objection to deriving corporate obligations on the basis of a textual interpretation of ‘duty’ clauses included in international human rights treaties is based on those clauses’ actual formulation. Art 32 ACHR recognizes that ‘every person has responsibilities’, but under Art 1 (2)  ACHR ‘person’ means ‘human being’ for the purposes of the Convention. Thus, it would be hard to read the clause as extending to reach corporations. In the same vein, whereas the Preamble of the AfrCHPR refers to ‘everyone[’s]’ duties, the rest of the provisions refer to those of the ‘individual’. Thus, whereas the term ‘everyone’ could be seen as conceptually wider, potentially inclusive of corporate persons, reference to the ‘individual’ makes such interpretation harder to accept. Furthermore, some of the duties provided for in the AfrCHPR can, due to their nature, solely target natural persons as opposed to legal ones. Suffice here to mention Art 29 (1) AfrCHPR establishing the duty of the individual, inter alia, ‘to respect his parents at all times, to maintain them in case of need’ and Art 29 (2) AfrCHPR enjoining the individual to ‘serve his national community by placing his physical and intellectual abilities at its service’. Turning to the legal effect of the ‘duty’ clauses, their inclusion in the case of the Covenants in the Preamble does not strip them of all legal effect. The Preamble, according to Art 31 (2) VCLT, forms part of the ‘context’ of the treaty, and thus is significant in the process of treaty interpretation. According to Judge Weeramantry, the Preamble is ‘a principal and natural source from which indications can be gathered of a treaty’s objects and purposes’.41 Suy has further argued that the Preamble to multilateral treaties could constitute the object of intense negotiations, and to that extent its significance should be more pronounced than in cases of bilateral instruments.42 In the present case, whereas the placement of the duties in the Preamble does not necessarily prove fatal to the actual legal effect of the provisions, their vague formulation surely does. The fifth Preamble of the Covenants derives its language from Art 29 of the Universal Declaration of Human Rights43 (UDHR). The latter also makes reference to private duties but deliberately refrains from listing such duties at all bar a general statement that private duties exist. Despite calls to go ahead with a detailed

40

(adopted 27 June 1981; entered into force 21 October 1986) 1520 UNTS 217. See the Dissenting Opinion of Judge Weeramantry, Case Concerning the Arbitral Award of 31 July 1988 (Guinea-Bissau v Senegal) (Merits) [1991] ICJ Rep 142. 42 E Suy, ‘La préambule’ in E Yakpo and T Boumedra (eds), Liber Amicorum Judge Mohammed Bedjaoui (1999) 256. 43 (adopted 10 December 1948) UNGA Res 217 A (III), UN Doc A/810, 71. 41

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formulation of the content of the duties, the drafters of the UDHR chose not to do so, mainly because such clearly formulated duties could fall prey to the hands of governments wishing to limit human rights protection in unacceptable ways.44 As Cassin noted, the drafters of the UDHR were preoccupied above all with protecting the human from the unlimited tyranny of the State.45 The reference to private duties in the Preamble of the Covenants could be seen as lending support to the idea of private duties, as expressed in the UDHR.46 Nonetheless, the legal significance of the concept of private duties appears to have been diluted rather than bolstered by the adoption of the ICCPR. The Covenant’s drafters did not elaborate on the scope of potential duties, in stark contrast to their efforts to restrict the grounds on which governments may limit the rights guaranteed under the instruments.47 One can therefore infer that whereas lip service was paid to the concept of private duties, the overall formulation of the ICCPR seems to move away from the concept. The same can be said of the ACHR, which mentions duties in the most general and abstract terms.48 Exceptionally, the AfrCHPR provides in its Arts 27-29 a detailed analysis of the duties of the individual vis-à-vis ‘his family and society, the State and other legally recognized communities and the international community’.49 The inclusion of a list of duties in the AfrCHPR, coupled with the virtually non-existent restriction on governments’ power to limit the exercise of human rights, has been derided as ‘an invitation to the imposition of unlimited restrictions on the enjoyment of rights’.50 Those in favour of the formulation of the AfrCHPR have refuted such criticism as ‘simplistic’.51 The truth lies somewhere in the middle. The inclusion of a clause on individual duties in a human rights instrument does not ipso facto result in the curtailment of the enjoyment of human rights,52 especially taking into consideration the vague wording of Art 27 (1) AfrCHPR. The problem with deriving duties from the latter lies in its generic formulation. Precisely because of it, and of the fact that it cannot be interpreted as producing a legal obligation, it is suggested that

44 T Opsahl and V Dimitrijevic, ‘Articles 29 and 30’ in G Alfredsson and A Eide (eds), The Universal Declaration of Human Rights (1999) 638. 45 R Cassin, ‘De la place faite aux devoirs de l’individu dans la Déclaration Universelle des Droits de l’Homme’ in Mélanges offerts a Polys Modinos (1968) 481. 46 See UN Doc A/2929, Chapter III [11] recognizing ‘that rights and duties were correlative and that every right carried with it a corresponding duty’, reprinted in MJ Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) 12. 47 J Knox, ‘Horizontal Human Rights Law’ (2008) 102 AJIL 10–13; Opsahl and Dimitrijevic (n44) 638. 48 49 See Provost (n30) 66–67. See Art 27 (1) AfrCHPR. 50 T Buergenthal, International Human Rights (1988) 178; cf C Heyns, ‘The African Regional Human Rights System: The African Charter’ (2003-4) 108 Penn State LRev 688; UO Umozurike, ‘The African Charter on Human and Peoples’ Rights’ (1983) 77 AJIL 911; C Tomuschat, ‘Grundpflichten des Individuums’ (1983) 21 AdV 307–308. 51 M Wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ (1995) 35 VirgJIL 364. 52 VO Orlu Nmehielle, The African Human Rights System (2001) 163.

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it has no great legal significance.53 Ouguergouz rightly notes that ‘[t]he imposition of a legal obligation should be clearly circumscribed, like the exercise of rights. On this point, the African Charter is anything but exemplary’.54 Further downplaying the significance of Art 27 (1) AfrCHPR, Murray has suggested that private duties are not enforceable on the international level.55 This might be the reason why the African Commission on Human and Peoples’ Rights (AfrComHPR) has refrained from pronouncing on the content of the ‘duties’ provisions of the AfrCHPR. In the light of the foregoing arguments, it would be difficult to sustain that the AfrCHPR ‘duties’ provisions can serve as the basis for corporate obligations under international law. The conclusion appears to be that States have been reluctant to spell out obligations binding on corporations, or more generally on persons other than States, under human rights treaty law. Such a conclusion can be based on the generic and vague formulation of the ‘duty’ clauses, which do not lend themselves to forming the basis for obligations under international law. One could argue that the hesitation of States to do so may also be attributed to the logical problems presented by the idea that human rights should give rise to ‘private duties’ under human rights law. This idea in this simplified and abstract form flies in the face of international human rights doctrine. As Castberg has argued, ‘it can hardly be said to be unreasonable or even illogical to omit from [human rights instruments] any mention of the duties . . . of the private individual’.56 Indeed, individuals—and to a certain extent corporations—may and do enjoy human rights protection without a need for them to bear any duty arising from human rights law.57 One needs to distinguish here between two types of ‘duties’ envisaged under international human rights law. On the one hand, there exist converse duties, namely duties owed by a person to the society or state, such as the duty to obey the laws. In practice, the State acting on behalf of the society enforces such duties.58 On the other hand, correlative duties constitute duties of persons to respect the rights of others.59 As Knox notes, correlative duties ‘run between actors on the same legal plane’.60 Suggesting that converse duties may give rise to corporate obligations under international law seems to run counter to the scope of these duties. Individuals and corporations owe duties to their society, albeit such duties are not of the same nature 53 F Ouguergouz, The African Charter on Human and Peoples’ Rights (2003) 413; MG Ahanhanzo, ‘Introduction a la Charte africaine des droits de l’homme et des peuples’ in Études offertes à Claude-Albert Colliard (1984) 526. 54 Ouguergouz (n53) 421. 55 R Murray, The African Commission on Human and Peoples’ Rights and International Law (2000) 87; cf M Baderin, ‘The African Commission on Human And Peoples’ Rights’ in M Baderin and R McCorquodale (eds), Economic, Social and Cultural Rights in Action (2007) 143. 56 F Castberg, ‘Natural Law and Human Rights’ (1968) 1 Droits de l’homme 31. 57 See H Gros Espiell, ‘La Convention américaine et la Convention européenne des droits de l’homme’ (1989) 218 RdC 307. 58 Knox (n47) 2. 59 Cf E Brems, Human Rights: Universality and Diversity (2001) 423, who speaks of counterpart duties and ‘right-respective duties’. 60 Knox (n47) 2.

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as human rights.61 It is true that national constitutions alongside human rights guarantees spell out duties binding on the individual as citizen of the State under constitutional law. Yet, drafters of international human rights treaties were cautious in detailing obligations of the individual vis-à-vis the State. The instruments, as noted above, were geared toward protecting the rights of individuals against State action, since historically it had been shown that there was need for such a kind of protection under international law, as opposed to the need to safeguard States against their citizens.62 Unlike national constitutions, the internationalization of human rights was dominated by the memory of conflict.63 This characteristic seems to weigh decidedly against utilizing converse duties under international human rights law in order to produce obligations binding on corporations. The crucial set of duties to which one should turn is that of duties correlative to rights. Castberg has stressed that ‘[t]he concept of “rights” has no meaning whatever except as an expression of a normative situation. Rights . . . is an expression of the juridical situation that one is entitled to definite performances from another person subject to law’.64 The right of a person is a reflection of the obligation of another person or persons.65 Thus, if two States conclude a loan agreement, then the lending State has a right against the borrowing State to be repaid the sum of money lent, whereas the borrowing State bears an obligation owed to the lending State to repay the loan. In this case we have a strong form of correlativity, or ‘conceptual correlativity’, in the sense that there exists a formal rule connecting the contents of the right and obligation.66 ‘The expression of the content of the right is related to the expression of the content of the obligation.’67 Whether ‘conceptual correlativity’ exists in respect of human rights is a different matter. One could here take Art 19 (2)  ICCPR as an example. This provision establishes that ‘[e]veryone shall have the right to freedom of expression’. The essence of the provision is that (a) it is lawful for individuals to express themselves freely and (b) it is unlawful for others to interfere with the exercise of such right. Supposing that a person wishes to express himself freely in a shopping mall owned by a private corporation, then one would need to consider whether the exercise of such a human right under international law establishes a correlative duty on the corporation not to interfere with the exercise of the right and to abstain from evicting the person from the shopping mall. To suggest that the right to freedom of expression produces an unfettered right of entry to private spaces and of expression therein, and thus a correlative obligation not to interfere with any form of exercise of the right, misconstrues the nature and function of human rights. The right to freedom of expression delimits a protected area, the protection of which may not 61 For an early exposition of the structural differences between human rights and duties, see C Schmitt, Verfassungslehre (5th edn, 1970) 174–175. 62 Cf E-I Daes, The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights (1983) 17. 63 64 Cf Cassin (n45) 481. Castberg (n56) 31. 65 Cf H Kelsen, Principles of International Law (2nd edn, 1966) 7. 66 D Lyons, ‘The Correlativity of Rights and Duties’ (1970) 4 Nous 47–48. 67 Lyons (n66) 48.

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be revoked by the State. The essence of Art 19 (2) ICCPR obliges the State not to interfere with the exercise of the right. Thus, the conceptual correlative as regards Art 19 (2) should be more appropriately thought of as an immunity in Hohfeldian terms.68 As Hohfeld noted, immunity is ‘one’s freedom from the legal power or “control” of another as regards some legal relation’.69 As Cassin has argued, in practice, an individual—or for that matter a corporation, we may add—wishing arbitrarily to hamper the enjoyment of the human rights of another will find that such actions fall within the scope of national criminal or civil law provisions, but not human rights law.70 Setting aside the question of the existence of ‘conceptual correlativity’, it is doubtful whether the function of correlative duties in the first place is to establish obligations binding on persons other than States under human rights law, which exist and operate alongside human rights. Correlative duties bind holders of rights in the exercise of their rights. Thus, the bearer of the correlative duty is presumably a right holder. The prototype correlative duty, derived from Art 29 (2) UDHR, is that in the exercise of his or her rights every person has duties to other individuals. During the UDHR debates, it was stressed that the duty to respect the rights of others ‘operates at all times as a restriction upon the arbitrary exercise of rights’.71 In the same vein, the delegate of the Netherlands observed relating to Art 29 UDHR that ‘[i]t was necessary to define the restrictions demanded by respect for the rights of other individuals’.72 One could here draw a comparison to the operation of correlative duties in the ECHR. Art 10 (2) ECHR provides that the exercise of the freedom of expression ‘carries with it duties and responsibilities . . . for the protection of the reputation or rights of others’. The Court has held that these duties, enshrined in Art 10 (2) ECHR are ‘inherent in the exercise of the freedom of expression’.73 If these duties produced obligations under human rights, then media corporations would be directly bound by the Convention, since media corporations are in the first place recognized as rights holders under the ECHR.74 Yet, this does not seem to be the case. Correlative duties function as limits to the exercise of rights, rather than as distinct freestanding obligations. Establishing a human right implies defining it and thus circumscribing it. If we accept that correlative duties are inherent in the exercise of rights, then there is no reason why they should be considered as producing at the same time a human rights obligation. What lies beyond the scope of a human rights norm is not rendered automatically an obligation under human rights law.

68

Lyons (n66) 51. WN Hohfeld, ‘Some Fundamental Legal Conceptions as applied in Judicial Reasoning’ (1913-1914) 23 Yale LJ 55. 70 Cassin (n45) 486; cf T McCarthy, ‘Human Rights and Human Duties’ in Karel Vasak Amicorum Liber (1999) 688. 71 Art 19 of the Chilean Proposal, quoted in J Morsink, The Universal Declaration of Human Rights (1999) 248–249. 72 Statement of the Delegate of the Netherlands, quoted in Morsink (n71) 249. 73 ECtHR, Bladet Tromsø and Stensaas v Norway App no 21980/93 (1999) [65]. 74 ECtHR, The Sunday Times v United Kingdom App no 6538/74 (1979) [45]. 69

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The concept of ‘correlative duties’ makes for a convenient portmanteau term when discussing corporate obligations. At the same time, it conveniently misrepresents the essence of human rights law. There is a qualitative difference between the concept of right and obligation under human rights law.75 Human rights seek to guarantee a minimum of human dignity, a minimum that to a certain extent has been accepted universally. Private duties, on the other hand, cannot be reasonably equated to human rights, as they lack such basic underpinning.76 The question of the recognition of persons other than States as international human rights addressees should bring us back to the initial rationale behind the establishment of the international system of human rights protection. The necessity to counteract the injustices attributed to the State through the means of international law rests exactly upon the fallibility and inadequacy of the sovereign State.77

(2) ‘Abuse of rights’ clauses The majority of human rights treaties include a similarly worded clause prohibiting the abusive exercise of the rights guaranteed under them. Traditionally, the clause reads: ‘[n]othing in the present [treaty] shall be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of the rights’ recognized by the instrument or their ‘limitation to a greater extent’ than is provided for in the respective instrument.78 The reference to groups of persons in the provision led certain scholars to argue that the treaties themselves recognized that conduct of non-State actors could result in the ‘destruction’ of human rights. In the same vein, it was argued that the treaties placed those groups of persons on the same footing as States. Thus, the ‘abuse of rights’ clause indicated that the treaties envisaged obligations binding directly on persons and groups of persons.79 It is true that the provision is exceptional inasmuch as it expressly addresses the conduct of private individuals and groups of persons. Yet, to construe such ‘abuse of rights’ clauses as establishing an obligation on non-State actors runs counter to their content and function. At first, it would be hard for such provision to establish an obligation in and of itself taking into consideration that it ‘does not have an independent character’ and that the violation ‘is necessarily connected with one or more of the rights’ enumerated in the treaties.80

75 Cf N Barney Pityana, ‘The Challenge of Culture for Human Rights in Africa:  The African Charter in a Comparative Context’ in MD Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights (2002) 231. 76 77 Tomuschat (n50) 311. Tomuschat (n50) 307. 78 Art 5 (1) ICCPR, Art 5 (1) ICESCR, Art 17 ECHR; see also Art 28 (3) (a) ACHR. 79 As regards Art 17 ECHR, M-A Eissen, ‘La Convention et les devoirs de l’individu’ in La protection internationale des droits de l’homme dans le cadre européen (1961) 176–177; K Vasak, La Convention européenne des droits de l’homme (1964) 78; Marcus-Helmons (n29) 72; as regards Art 5 (1) ICCPR, T Meron, Human Rights in Internal Strife (1987) 35; J Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 VJTL 813; Marcus-Helmons (n29) 73. 80 Van Dijk and others (n34) 1084; cf S Joseph and others, The International Covenant on Civil and Political Rights (2nd edn, 2004) 12 [1.23]; as regards Art 5 (1) ICESCR, M Sepúlveda, The Nature of the Obligations under the ICESCR (2003) 305.

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Besides, the purpose of the provision, as highlighted in the context of the ECHR, is to ‘prevent totalitarian or extremist groups from justifying their activities by referring to the [ECHR]’.81 That the provision solely targets activities subversive of the treaties can be inferred from its formulation, which highlights that activities must be ‘aimed at the destruction’ of the rights protected.82 Furthermore, such a narrow reading of the clause is supported by its drafting history. ‘Abuse of rights’ clauses build on Art 30 UDHR. The UDHR travaux préparatoires suggest that Art 30 was geared towards the need to prevent the resurrection of Nazism and its equivalents.83 In conclusion, it would be safe to assume that not only do ‘abuse of rights’ clauses serve a very limited function but they also do not intend to impose an obligation on groups of persons in the first place. On the contrary, they place a restriction on the invocation of human rights by persons or groups of persons, when such invocation is intended to serve as a justification for acts aimed at destructing human rights themselves. The absence of a right should not be taken ipso facto to indicate the establishment of an obligation.84

(3) ‘Effective remedy’ clauses A final argument for the affirmation of corporations’ obligations has been made on the basis of human rights provisions establishing the right to an effective remedy. Human rights treaties provide that in the case of a human rights violation, everyone is entitled to ‘an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’.85 Eissen argued that the formulation of the provision and, especially, the use of the term ‘notwithstanding’, suggests that it does not only target those acting in an official capacity, and thus representing State power, but it also targets persons acting in a private capacity, who are under an obligation to abstain from interfering with the enjoyment of human rights.86 Eissen’s arguments regarding the interpretation of Art 13 ECHR did not go unnoticed or uncontested. Art 13 has been characterized as ‘unsatisfactory’ in the sense that it is ‘difficult to construe’.87 In the same vein, two judges of the ECHR have called it the ‘most obscure’ provision of the ECHR.88 As regards the last 81 See ECtHR, Ždanoka v Latvia App no 58278/00 (2004) [109]. Cf ECtHR, Kasymakhunov and Saybatalov v Russia Apps no 26261/05 and 26337/06 (2013) [103], where the ECtHR reaffirmed that the ‘general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated by the Convention’. In the context of Art 5 (1) ICCPR, cf HRC, M.A. v Italy Comm no 117/1981 (1981) [7.2]. 82 A Clapham, Human Rights in the Private Sphere (1993) 186. 83 A Verdoodt, Naissance et signification de la déclaration universelle (1964) 273. 84 Provost (n30) 66. 85 Art 2 (3) (a) ICCPR; Art 13 ECHR; cf Art 25 ACHR. 86 Eissen (n79) 178; for a similar view, cf Vasak (n79) 78; W Leisner, Grundrechte und Privatrecht (1960) 334, fn 114i, according to whom Art 13 ECHR suggests ‘eine allgemeine Drittwirkung’; as regards Art 2 (3) (a) ICCPR, Marcus-Helmons (n29) 73. 87 J Fawcett, Application of the European Convention on Human Rights (2nd edn, 1987) 289. 88 ECtHR, Partially Dissenting Opinion of Judges Matscher and Pinheiro Farinha, Malone v United Kingdom App no 8691/79 (1985).

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phrase of Art 13 ECHR, which lies at the heart of the debate, Fawcett found it ‘meaningless’ as the jurisdiction ratione personae of the bodies established under the Convention ‘extends . . . only to acts of persons exercising public authority’.89 In the same vein, Castberg noted that ‘the unlawful acts of citizens among themselves is something with which the Convention in general is not concerned. Art 13 cannot be said to assume the opposite, whatever its terms might lead one to believe’.90 The problem with Eissen’s argument is its extremely far-reaching scope. ‘Effective remedy’ is guaranteed in cases of prior violations of substantive human rights provisions. The clause is ancillary in character. Eissen seeks through an expansive interpretation of this ancillary provision to widen the scope of human rights tout court in order to reach the actions of individuals inter se. It is highly dubious whether the insertion of an ‘effective remedy’ clause in an international human rights treaty could lead to such complete reversal of human rights doctrine. A more plausible interpretation of the provision is that it should be read as denying effect to national legislation granting immunity to public officials for acts in contravention of human rights treaties.91 In any case, Art 13 cannot be seen as the basis for direct obligations binding on corporations under international law.

b. Dynamic approach The dynamic phase of the debate on corporate obligations rests upon a fundamental pillar: the need to interpret human rights rules in light of emerging economic and political realities and to reconceptualize the function of human rights law with a view to securing the protection of human dignity.92 Cast in the light of dynamic interpretation, corporate human rights obligations do not appear as an oxymoron, but as a reflection of the exponentially burgeoning significance of the activities of corporations. In the aftermath of the Cold War and the wake of liberalism, corporations are ‘being asked to undertake a wide range of functions and responsibilities which it had previously been unimaginable to entrust to them’.93 Indeed, the onset of the privatization trend has been coupled with a retreat of the State from various fields where it has traditionally exercised a regulatory monopoly. Such trends should not be viewed as temporal changes in regulatory paradigms, but as indicative of a changing relationship between market and State, which is moving towards a ‘fusion of public and private values . . . integral to the fusion of global and local economies’.94 The delegation of public functions to corporations, resulting in their increasing economic and political strength, render them fragmented centres 89

Fawcett (n87) 293. F Castberg, The European Convention on Human Rights (1974) 157. 91 J Raymond, ‘A Contribution to the Interpretation of Article 13 of the ECHR’ (1980) 5 HRR 169; M Forde, ‘Non-Governmental Interferences with Human Rights’ (1985) 56 BYIL 264; Van Dijk and others (n34) 1024. 92 Clapham (n82) 151. 93 P Alston, ‘The “Not-a-Cat” Syndrome:  Can the International Human Rights Regime Accommodate Non-State Actors?’ in P Alston (ed), Non-State Actors and Human Rights (2005) 7. 94 A Aman, ‘Privatization, Prisons, Democracy, and Human Rights’ (2005) 12 Indiana J Global Legal Studies 524. 90

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of power, which may serve as sources of threat towards the enjoyment of human rights. Only by binding corporations through human rights law could arguably the enjoyment of human rights be properly secured. International human rights bodies have not turned a blind eye to the conduct of non-State actors that may adversely affect human rights. The horizontal effect of human rights in the relationships between individuals and corporations under international human rights law, as exemplified by the case law examined below, is a legal reality.95 Nonetheless, this says nothing of the extent to which human rights are applied horizontally under positive international law. On the contrary, the use of the concept is indicative of the shortcomings of transposing a notion from domestic to international law. One should not ‘be lulled into a sense of terminological security in the conviction that the vocabulary of international law, like the law itself is universal. Most emphatically that is not the case’.96 This could not be truer in the case of international human rights law. Considering the nature of international human rights treaties, global or regional, general or topic-specific, it comes as no surprise that horizontality has manifested itself under various terminological guises. The focus rests on the following four: the concept of ‘positive obligations’, the obligation to protect under the ‘tripartite typology’ of human rights obligations, the integrated application of the aforementioned two, and the idea of the horizontal application of jus cogens human rights norms. In analysing these instances of horizontality in the case law of human rights treaty bodies with specific reference to corporate conduct, one seeks to assess the extent to which a horizontal application of international human rights treaty law can serve as an alchemist’s stone transmuting corporations into direct addressees of human rights obligations.

(1) The interpretation of human rights treaties and horizontality The interpretation of human rights treaties logically proceeds on the basis of Arts 31 and 32 VCLT on the interpretation of treaties. Human rights treaty bodies have in fact either expressly97 or impliedly98 accepted that Arts 31 and 32 VCLT govern the interpretation of international human rights instruments. Still, such affirmation has always been coupled with the caveat that human rights treaties are essentially of a special nature. The European Commission of Human Rights (EComHR) in Austria v Italy stressed that the purpose of States Parties to the ECHR

95 Clapham (n82) 90; A Reinisch, ‘The Changing International Legal Framework for Dealing with Non-State Actors’ in Alston (n93) 78. 96 WE Butler, ‘Comparative Approaches to International Law’ (1985) 190 RdC 59. 97 ECtHR, Golder v United Kingdom App no 4451/70 (1975) [29], Saadi v United Kingdom App no 13229/03 (2008) [61]; HRC, Alberta Union v Canada, App no 118/1982 (1986) [6.3]. 98 ComESCR, ‘General Comment No 13: The Right to Education’ (8 December 1999) UN Doc E/C.12/1999/10 [51], where the Committee appears to rely on the VCLT rules of interpretation without a specific reference to the Convention.

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was not to concede each other reciprocal rights and obligations in pursuance of their individual national interests . . . it follows that the obligations . . . are essentially of an objective character, being designed to protect the fundamental rights of individual human beings.99

The peculiar nature of human rights instruments has led human rights treaty bodies to lay considerable emphasis on a teleological approach to interpretation, i.e. an interpretation of the treaty text in the light of the treaty’s ‘object and purpose’.100 The object and purpose of a treaty connotes the reasons why the treaty exists, its ratio legis.101 The ECtHR, the Inter-American Court of Human Rights (IACtHR), and the AfrComHPR have all employed general terms in suggesting that the object of the ECHR, the ACHR and the AfrCHPR respectively is, inter alia, ‘the protection of individual human rights’.102 An interpretation in the light of the object and purpose of the treaty cannot produce new obligations binding on States Parties, yet it can lead to an expansion of the reach of an international instrument. The espousal of a teleological interpretation has a further consequence: it ushers into the interpretative process the principle of effectiveness, which posits that the rights guaranteed by human rights treaties should be genuinely ‘practical and effective’ rather than ‘theoretical or illusory’.103 Indeed, only through an effective interpretation, can the key aim of realizing the ‘object and purpose’ of the treaty 99 Austria v Italy App no 788/60 (1961) 4 Ybook ECHR 138–140. Cf IACtHR, The Effect of Reservations on the Entry into Force of the American Convention on Human Rights A 2 (1982) [29] (hereinafter Effect of Reservations), where the IACtHR expressly relies on the Austria v Italy dictum. See also HRC, ‘General Comment No 24: Issues relating to Reservations made upon Ratification or Accession’ (4 November 1994) UN Doc CCPR/C/21/Rev.1/Add.6 [17]. Overall, the way human rights treaty bodies have approached the question of the special nature of the obligations established by the respective human rights treaties builds on the ICJ’s obiter dictum in the Reservations to the Convention on Genocide Advisory Opinion. The Court noted that as regards the Genocide Convention ‘the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention’. See Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 23. 100 ECtHR, Soering v United Kingdom App no 14038/88 (1989) [87]; HRC, Errol Johnson v Jamaica Comm no 588/1994 (1996) [8.1]; IACtHR, Effect of Reservations (n99). The AfrComHPR has impliedly adopted an ‘object and purpose approach’ in Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Comm no 155/96 (2001) [37–38]; cf F Viljoen, International Human Rights in Africa (2007) 325. The ComESCR has also employed the purposive interpretation: see ComESCR, ‘General Comment No 4: The Right to Adequate Housing’ (13 December 1991) UN Doc E/1992/23 [7]. 101 See U Linderfalk, On the Interpretation of Treaties (2007) 204. 102 ECtHR, Soering (n100) [87]; IACtHR, Effect of Reservations (n99). The AfrComHPR appears to espouse a similar view in Commission Nationale des Droits de l’Homme et des Libertés v Chad Comm no 74/92 (1995) [20]. 103 ECtHR, Airey v Ireland App no 6289/73 (1981) [24]. The ECtHR relying on the principle of effectiveness has held that the right to access to a court under Art 6 ECHR would be ‘illusory’ if a final judgment were allowed to remain inoperative to the detriment of one party. See Hornsby v Greece App no 18357/91 (1997) [40]. This dictum was impliedly referred to by the AfrComHPR in Antoine Bissangou v Republic of Congo Comm no 253/2002 (2006) [Merits 11]. The IACtHR has upheld the effectiveness principle in Case of the Yakye Axa Indigenous Community v Paraguay C 142 (2005) [63]; Case of the Sawhoyamaxa Indigenous Community v Paraguay C 146 (2006) [83]; Case of the Saramaka People v Surinam C 172 (2007) [178]. Cf ComESCR, ‘General Comment No 14: The Right to the Highest Attainable Standard of Health’ (11 August 2000) UN Doc E/C.12/2000/4 [31]; ‘General Comment No 9: The Domestic Application of the Covenant’ (3 December 1998) UN Doc E/C.12/1998/24 [11].

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be fulfilled.104 The correlation between the two was addressed by the ILC during its law of treaties codification process in the following terms: when more than one interpretation is possible, with one of them ‘enabling the treaty to have appropriate effects . . . good faith and the objects and purposes of the treaty demand that [this] interpretation should be adopted’.105 Thus, the principle of effectiveness should not be seen as a freestanding interpretative technique, but as forming a necessary corollary of the teleological approach.106 The interplay between the teleological and effective interpretation can be best exemplified on the basis of ECtHR case law. In Wemhoff, the Court characterized the ECHR as a ‘law-making’ treaty.107 A ‘law-making treaty’ establishes ‘objective rights’, and to this extent differs from the typical reciprocal rights and duties to be found in other international agreements.108 Due to this special nature of the Convention, the Court stressed that one should seek that interpretation which is the most apposite to achieve the ‘object and purpose’ of the Convention, as opposed to an interpretation ‘which would restrict to the greatest possible degree the obligations undertaken by the Parties’.109 Such an approach was upheld in the subsequent Golder v United Kingdom, where the Court relied on the object and purpose of the treaty in order to interpret the fair trial guarantee of Art 6 ECHR in such a manner as to enshrine a right to access to a court. The Court held that one could not perceive how the right to access to courts can be omitted from a fair trial guarantee under the rule of law, and therefore it should be considered as an implied part of it.110 At the same time, the Court hastened to add that it was not following ‘an extensive interpretation forcing new obligations on the Contracting States’.111 Be that as it may, the teleological interpretation of human rights challenges the international law rule that, when in doubt, preference should be given to an interpretation which least impinges on State sovereignty.112 This view resonated in the case of JB and others v Canada brought before the HRC under the Optional Protocol to the ICCPR.113 The dissenting Members underlined that ‘in a treaty for the promotion of human rights . . . limitation of the exercise of rights . . . [is] not readily to be presumed’.114

104 This has been expressly acknowledged by the ECtHR in Loizidou v Turkey App no 15318/89 (1995) [72]. 105 ILC, ‘Report of the International Law Commission on the Work of its 18th Session’ (1966) II ILC Ybook 219 [6]. 106 Sepúlveda (n80) 80; cf A  Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (2008) 394. 107 ECtHR, Wemhoff v Federal Republic of Germany App no 2122/64 (1968) [The Law 8]. 108 F Matscher, ‘Methods of Interpretation of the Convention’ in RStJ Macdonald and others (eds), The European System for the Protection of Human Rights (1993) 66. 109 110 Wemhoff (n107) [The Law 8]. Golder (n97) [34–36]. 111 112 Golder (n97) [36]. Cf Matscher (n108) 66–67. 113 Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966; entered into force 23 March 1976) 999 UNTS 171. 114 HRC, Individual Opinion of Higgins, Lallah, Mavrommatis, Opsahl and Wako concerning the admissibility of J.B. et al v Canada Comm no 118/1992 (1986) [5].

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Another interpretative technique employed by human rights bodies, which is key to the question of horizontality, is evolutive interpretation. The evolutive interpretation postulates that human rights treaties should be interpreted in the light of present day conditions.115 In the terminology used by the ECtHR, and echoed by the IACtHR, the ECHR is a ‘living instrument’.116 The use of the evolutive interpretation by the ECtHR has been justified on the basis of the nature of the treaty. Thus, in Zarb Adami v Malta, the ECtHR held that ‘[s]ince the Convention is first and foremost a system for the protection of human rights, the Court must . . . have regard to the changing conditions in Contracting States’.117 This obiter should not be interpreted as establishing that the evolutive interpretation is extraneous to the rule of Art 31 VCLT118 but that it is a further corollary of the teleological interpretation. The object and purpose of a human rights instrument are not crystallized in time. They can only be assessed taking into consideration the developments in the policy of States Parties.119 Thus, the evolutive interpretation operates in the context of accepted rules of interpretation. The evolution in question may refer to a variety of factors including, inter alia, an expansion of the meaning of a term or of the object and purpose of the treaty more generally.120 As such, evolutive interpretation reflecting an existing consensus on the present circumstances is ‘permitted and even . . . necessary’.121 It would be difficult if not outright impossible to speak of a general theory of interpretation applicable across the wide spectrum of human rights treaty bodies. Authors have even argued that even within the confines of the case law of a single body, there may exist a certain degree of inconsistency as to the interpretation techniques espoused.122 Yet, as mentioned at the outset of the present chapter, the key to the dynamic phase of the debate on corporate obligations is that horizontality is the product of a dynamic interpretation. The following analysis of the various approaches to horizontality seeks, inter alia, to establish the extent to which such an approach to interpretation, purposive in nature and emphasizing the principle

115 Soering (n100) [102]; HRC, Judge v Canada Comm no 829/1998 (2002) [10.3-10.4]; IACtHR, Case of the ‘Street Children’ (Villagrán-Morales et  al.) v Guatemala C 63 (1999) [193]; ComESCR, General Comment No 14 (n103) [10]. 116 Tyrer v United Kingdom App no 5856/72 (1978) [31]; IACtHR, Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua C 79 (2001) [146]. 117 Zarb Adami v Malta App no 17209/02 (2007) [74]. 118 Orakhelashvili (n106) 290. 119 See Tyrer (n116) [31]; Soering (n100); Bayatyan v Armenia App no 23459/03 (2011) [102]; cf C Ovey and R White, The European Convention on Human Rights (4th edn, 2006) 46. 120 Orakhelashvili (n106) 291. It should be noted here that an evolutive interpretation could in theory also lead to a restriction of the meaning of a term. See R Bernhardt, ‘Evolutive Treaty Interpretation’ (1999) 42 GYIL 22–23. 121 H Mosler, ‘Problems of Interpretation in the Case Law of the European Court of Human Rights’ in F Kalshoven and others (eds), Essays on the Development of the International Legal Order (1980) 160; cf J Christoffersen, ‘Impact on General Principles of Treaty Interpretation’ in R McCorquodale and M Scheinin (eds), The Impact of Human Rights Law on General International Law (2009) 49–50. 122 DJ Harris and S Joseph (eds), The International Covenant on Civil and Political Rights and United Kingdom Law (1995) 19–20.

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of effectiveness, has in fact been employed by human rights bodies as a key tool enabling them to apply human rights norms in the relations between corporations and individuals.123

(2) ‘Positive obligations’ of states: The transformation of human rights guarantees The origins of the doctrine of ‘positive obligations’ in international human rights law can be traced back to the early case law of the ECtHR. In the Belgian Linguistic Case, dealing with the right to education under Art 2 of the First Protocol, the ECtHR held that the negative formulation of the provision should be taken to mean that the Parties did not recognize a right to education which would require them to ‘establish at their own expense, or to subsidise, education of any particular type or at any particular level’.124 However, the Court continued to note that it cannot be concluded from this that the State has no positive obligation to ensure respect for such a right . . . As a ‘right’ does exist, it is secured, by virtue of Article 1 of the Convention, to everyone within the jurisdiction of a Contracting State.125

In Marckx v Belgium, the Court found that the responding State had violated a positive obligation under Art 8 ECHR, inter alia, because Belgian family law did not recognize a child born out of wedlock as a member of the mother’s family. The Court relied on an evolutive interpretation of the Convention in the light of present day conditions in noting that the legislation of the majority of the States Parties to the ECHR was evolving towards ‘a full juridical recognition of the maxim “mater semper certa est” ’.126 Thus the distinction maintained by Belgian law between legitimate and illegitimate children was in violation of Art 8, read in conjunction with Art 14 ECHR. The Court went on to affirm that the right to respect for family life, as enshrined in Art 8 ECHR, not only aims at ‘protecting the individual against arbitrary interference by the public authorities . . . in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective “respect” for family life’.127 It is true that the applicants in Marckx were the mother and the child. In other words, no third party existed, against which a horizontal effect would be recognized by the Court. Yet, the significance of Marckx lies exactly in the fact that in most family cases, as exhibited by later case law, there is a third party as a matter of principle, and thus the question of horizontality arises.128 Indeed, the ECtHR proceeded to acknowledge expressis

123 Cf J Merrills, The Development of International Law by the European Court of Human Rights (2nd edn, 1993) 102–103; A Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (2004) 3. 124 ECtHR, Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ Apps no 1474/62 and others (1968) [31]. 125 Use of Languages in Education in Belgium (n124) [31]. 126 ECtHR, Marckx v Belgium App no 6833/74 (1979) [41]. 127 Marckx (n126) [31] [emphasis added]. 128 Cf ECtHR, Evans v United Kingdom App no 6339/05 (2007) [75-76].

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verbis that Art 8 ECHR sets forth a positive obligation, which ‘may involve the adoption of measures designed to secure the respect for private life even in the sphere of the relations of individuals between themselves’.129 In the celebrated X and Y v The Netherlands, the respondent State was found in breach of Art 8 ECHR because criminal proceedings were not available against the perpetrator of a sexual assault on a mentally handicapped minor girl. X and Y is significant as an acknowledgment that the actions of a private individual may interfere with the rights of another and that they do not lie tout court outside the ambit of the ECHR.130 The obligations envisaged in X and Y, i.e. ‘positive obligations’ of States to ensure that the human right to private and family life is respected in the sphere of private relationships, constitute the core of the doctrine as a manifestation of horizontality. The ECtHR has through its case law refined the doctrine of ‘positive obligations’, ‘which has served as its primary tool to implement human rights between private actors’.131 The Court has extended the protection afforded by the rights enshrined in the ECHR to cover those cases where the conduct interfering with the enjoyment of human rights is actually the conduct of a corporation. Initially, such cases focused on complaints concerning interference with the enjoyment of the right to respect for home and private and family life enshrined in Art 8 ECHR. In Powell and Rayner v United Kingdom, the applicants invoked Art 8 ECHR alleging that the quality of their private lives had been adversely affected by noise pollution from aircraft using Heathrow Airport. The UK Government in its submissions to the ECtHR argued that Heathrow Airport and the aircraft using it were not and never had been owned, controlled or operated by the Government or any agency of the Government.132 Still, the ECtHR held that ‘[w]hether the present case be analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8 or in terms of an “interference by a public authority” to be justified in accordance with paragraph 2, the applicable principles are broadly similar’.133 Although ultimately the ECtHR found no violation of Art 8 ECHR, the decision in Powell and Rayner highlights that the Court was willing to accept that complaints regarding environmental pollution arising from private corporate conduct could be brought under Art 8 ECHR. In the landmark decision of López-Ostra v Spain the Court dealt with an Art 8 ECHR complaint alleging that the applicant’s private and family life was adversely affected due to the emission of noxious and toxic gases by a waste-treatment plant owned by a limited company and situated twelve metres from her home. The Court held that ‘severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private

129

ECtHR, X and Y v The Netherlands App no 8978/80 (1985) [23]. See Clapham (n82) 198. 131 D Spielmann, ‘The European Convention on Human Rights’ in D Oliver and J Fedtke (eds), Human Rights and the Private Sphere (2007) 464. 132 ECtHR, Powell and Rayner v United Kingdom App no 9310/81 (1990) [39]. 133 Powell and Rayner (n132) [41]. 130

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and family life adversely, without, however, seriously endangering their health’.134 The ECtHR went on to find a violation of Art 8 since the State had not struck a fair balance ‘between the interests of the town’s economic well-being—that of having a waste-treatment plant—and the applicant’s effective enjoyment of her right to respect for her home and her private and family life’.135 López-Ostra has been cited with approval by the Court in cases of environmental hazards associated with corporate conduct, which enjoin the State to act in order to ensure respect for the fundamental rights of individuals.136 The Court has expressis verbis held that ‘State responsibility [may arise] from the failure to regulate private industry properly’.137 Indeed, the State could reasonably be expected to act so as to prevent the infringement of the individual’s rights in cases where it exercised control over the conduct of the corporation in imposing operating conditions, supervising their implementation and subjecting the corporation to inspections by the State environmental agency.138 Recently there has been an expansion in the array of fundamental rights that may be interfered with as a result of corporate conduct, as evidenced in the ECtHR case law. In Öneryildiz v Turkey, the ECtHR Grand Chamber held that Turkey had violated the right to life protected under Art 2 ECHR due to the lack of appropriate measures to prevent the accidental death of nine of the applicant’s close relatives resulting from a gas explosion in a waste tip. The Court underlined that the ‘the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied in such a way as to make its safeguards practical and effective’.139 The Court went on to stress that the positive obligation on States under Art 2 ECHR to take appropriate steps to safeguard the lives of those within their jurisdiction must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous, such as the operation of waste-collection sites.140

Finally, the ECtHR has read positive obligations into Art 5 (1)  ECHR on the right to liberty. In Storck v Germany, the Court was called upon to examine the lawfulness of the detention of a disabled person in a private psychiatric hospital against her will. The Court in employing the effectiveness principle141 interpreted Art 5 (1) ECHR as giving rise to a positive obligation on behalf of the State to provide ‘effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have 134

ECtHR, López Ostra v Spain App no 16798/90 (1994) [51]. López Ostra (n134) [58]. 136 ECtHR, Guerra and others v Italy App no 14967/89 (1998) [60]; Taşkın and others v Turkey App no 46117/99 (2004) [113]; Tatar v Romania App no 67021/01 (2009) [85]. 137 ECtHR, Hatton and others v United Kingdom App no 36022/97 (2003) [98]; Fadeyeva v Russia App no 55723/00 (2005) [89]. 138 Fadeyeva (n137) [90]. 139 ECtHR, Öneryildiz v Turkey App no 48939/99 (2004) [69]. 140 Öneryildiz (n139) [71]. 141 ECtHR, Storck v Germany App no 61603/00 (2005) [93]. 135

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knowledge’.142 The Court then went on to add that ‘the State cannot completely absolve itself of its responsibility by delegating its obligations in this sphere to private bodies or individuals . . . [on the contrary] the State [remains] under a duty to exercise supervision and control over private psychiatric institutions’.143 The IACtHR has followed a course similar to that charted by the ECtHR as regards the horizontal application of the rights enshrined in the ACHR. In its first judgment, namely Velásquez-Rodríguez v Honduras, the IACtHR held that under Art 1 (1) ACHR the obligation to ‘ensure’ free and full exercise of the Convention’s rights enjoins States to ‘prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated’.144 The IACtHR in analysing the scope of States Parties’ obligations under Art 1 (1) ACHR added that ‘[a]n illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person . . . ) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’.145 This expansive reading of the term ‘ensure’, upheld in later case law,146 produces an array of positive obligations on States Parties to the ACHR and hints towards a marked degree of convergence between the European and American human rights systems, especially as to the extent of the horizontal effect of the treaties.147 This is further substantiated by the prominent place accorded to the effectiveness principle in the Velásquez reasoning.148 The IACtHR has addressed the question of the horizontal effect of the ACHR in relationships between individuals and corporate entities in cases relating to the rights of indigenous populations and the potentially adverse effects of corporate conduct thereon. In its Order for Provisional Measures in Sarayaku, the representatives of the indigenous community complained that the personnel of CGC, an Argentine enterprise granted an oil exploration concession by Ecuador in a province within the ancestral territory of the Sarayaku community, allegedly abducted, detained and tortured members of the indigenous community.149 According to the Court, the right to life obliges States to ‘guarantee the creation of the conditions required in order that violations of this basic right do not occur’.150 The IACtHR did not hesitate to affirm its previous case law and held that the general obligation under Art 1 (1) ACHR ‘applies not only with respect to the power of the State but also with respect to actions by third parties’.151

142

143 Storck (n141) [102]. Storck (n141) [103]. IACtHR, Velásquez-Rodríguez v Honduras C 4 (1988) [166]. 145 Velásquez-Rodríguez (n144) [173]. 146 IACtHR, Godínez-Cruz v Honduras C 5 (1989) [182]; Blake v Guatemala C 36 (1998) [92] and [97]. 147 Gros Espiell (n57) 235; cf G Cohen-Jonathan, ‘L’arrêt Velásquez’ (1990) 94 RGDIP 457–459. 148 See Velásquez-Rodríguez (n144) [64]. 149 For a statement of the facts, IACtHR, Matter of Pueblo Indígena Sarayaku (Provisional Measures, Order of 6 July 2004) [2]. 150 Matter of Pueblo Indígena Sarayaku (n149) [11]. 151 Matter of Pueblo Indígena Sarayaku (n149) [10]. 144

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A similar doctrine of ‘positive obligations’ on States to regulate corporate conduct has emerged in the work of the HRC regarding the implementation of ICCPR. HRC General Comment 31 is the most recent and lucid formulation of the horizontal effect that provisions of the ICCPR may produce. The Comment suggests that the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.152

Thus, according to the Comment, a violation of Art 2 ICCPR may occur ‘as a result of States Parties permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’.153 It is true that the Comment does not speak of corporations but the reference to ‘private entities’ should be read as inclusive of corporate entities. Such a finding can be substantiated on the basis of the practice of the HRC, which in the past has underlined the horizontal effect of ICCPR rights in relations between individuals and corporations. The two fields in which the HRC has more significantly affirmed such a horizontal effect are employment relations and the impact of extracting industries on the rights of indigenous populations. As regards employment relations, the HRC in its General Comment 28 on equality of rights between men and women, underlines that ‘[w]omen’s privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman. States parties should report on . . . public or private actions that interfere [with women’s right to privacy]’.154 It then expressis verbis ‘requires States to act against discrimination by public and private agencies in all fields’.155 The HRC in a series of Concluding Observations has tackled these issues and has demanded of States Parties to the ICCPR to prohibit and punish practices amounting to workplace discrimination.156 Equally, in Nuri Jazairi v Canada, brought before the HRC under the procedure of the Optional Protocol to the ICCPR, the Committee was called upon to deal with the applicant’s complaint that his right to equal treatment with respect to employment without discrimination had been infringed because of his political beliefs: the fact that his application for promotion was refused by his employer, a private university, on the basis of his ‘creed’ and ‘political opinion’, coupled

152 HRC, ‘General Comment No 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004) CCPR/C/21/Rev.1/Add.13 [8]. 153 General Comment No 31 (n152) [8]. 154 ‘General Comment No 28: Equality of Rights between Men and Women’ (29 March 2000) UN Doc CCPR/C/21/Rev.1/Add.10 [20]. 155 General Comment 28 (n154) [31]. 156 Concluding Observations regarding Brazil (2005) UN Doc CCPR/C/BRA/CO/2 [10] and [11]; Concluding Observations regarding Paraguay (2006) UN Doc CCPR/C/PRY/CO/2 [8].

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with the omission in applicable Canadian legislation to enumerate ‘political opinion’ as a ground for prohibited discrimination, resulted in Canada violating its positive obligation under Art 26 ICCPR. The HRC found the complaint to be inadmissible on a number of grounds, yet it went on to note that ‘the State party may have failed to ensure that, in an appropriate case, there would be a remedy available to a victim of discrimination on political grounds in the field of employment’.157 The other field in which the HRC has affirmed States Parties’ positive obligations is the protection of indigenous populations’ rights against the deleterious effects of the conduct of extractive corporations. Art 27 ICCPR states that where ethnic, religious, or linguistic minorities exist, ‘persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture . . . ’.158 The HRC in its General Comment 23 on the interpretation of Art 27 has made two observations: the concept of culture under Art 27  ‘manifests itself in many forms, including a particular way of life associated with the use of land resources’.159 Furthermore, in order to secure the enjoyment of the protection guaranteed under Art 27 ICCPR, positive measures are required against the actions of persons other than States.160 The HRC, in its Concluding Observations, noted with concern that Canada should consult with the Lubicon Lake Band population before granting licences for economic exploitation that would result in the compromising of the land of the Band by logging and large-scale oil and gas extraction activities.161 In Lubicon Lake Band v Canada, the communication of the Band to the HRC contained allegations that Canada had allowed the expropriation of the territory of the Lubicon Lake Band for the benefit of private corporate interests, thus violating the Band’s rights under Art 27 ICCPR.162 The HRC in rather oracular manner held that ‘[h]istorical inequities . . . and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of article 27 so long as they continue’.163 The finding of a violation in any case should be taken to imply that Canada had violated its positive obligations under Art 27 to protect the rights of the Band from the adverse effects of private corporate conduct. The preceding comparative analysis of human rights case law suggests that the concept of ‘positive obligations’ has emerged as a tool used by various human rights bodies in order to approach the problem of horizontality. At the same time, these bodies have refrained from providing a theoretical grounding of ‘positive

157

HRC, Jazairi v Canada Comm no 958/2000 (2004) [7.4]. Despite the apparent terminological divergence between ‘minorities’ and ‘peoples’ it is now accepted that ‘the overlap between the two definitions [of the concepts] is obvious’. P Thornberry, ‘The Rights of Minorities’ in Harris and Joseph (n122) 604. 159 ‘General Comment No 23: The Rights of Minorities’ (8 April 1994) UN Doc CCPR/C/21/ Rev.1/Add.5 [7]. 160 General Comment No 23 (n159) [6.1]. 161 Concluding Observations regarding Canada, UN Doc CCPR/C/CAN/CO/5 (2006) [9]. 162 HRC, Lubicon Lake Band v Canada Comm No 167/1984 (1990) [2.3]. 163 Lubicon Lake Band (n162) [33]. 158

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obligations’ in human rights doctrine.164 Yet, one could highlight areas of convergence relating to the nature and use of the concept of ‘positive obligations’ as a manifestation of horizontality, and thus describe the type of horizontality envisaged. That a human rights norm may enjoin the State to act in order to ensure its enjoyment is uncontroversial. Quintessential civil and political rights, such as the right to fair trial, may produce similar obligations requesting the State to act. This may be gleaned from a quick reading of Art 6 (3) ECHR. Still, the concept of ‘positive obligations’ in contemporary human rights doctrine seems to go beyond those few cases in which the actual text of a civil or political rights provision obliges the State to act. Whereas a flurry of definitions of ‘positive obligations’ has been proposed,165 the distinguishing feature seems to be the fact that they are judge-made.166 Such obligations have been ‘read into’ or ‘inferred’ from human rights treaties by their respective monitoring bodies or courts.167 And these bodies have used a purposive interpretation to create ‘positive obligations’. Thus, to suggest that a human right produces a ‘positive obligation’ does not reveal much about the obligation’s content or scope. What it does reveal though is the manner in which such obligations come into being. The point can be further clarified by pitting ‘positive obligations’ against Art 2 (1) (d) of the International Convention on the Elimination of all Forms of Racial Discrimination168 (CERD) and Art 2 (e) of the Convention on the Elimination of All Forms of Discrimination against Women169 (CEDAW). Essentially, both provisions oblige the State expressly to take ‘all appropriate means’ in order to eliminate racial discrimination and discrimination against women by any person, group, organization, or enterprise. Traditionally, a prohibition of racial discrimination would imply a duty of abstention on behalf of the State. Yet, the rationale of the above provisions lies in the belief that the elimination of racial discrimination and discrimination against women could only be realistically achieved if law sanctioned discriminatory conduct of individuals, as well as State conduct.170 What

164 See ECtHR, Vgt Verein gegen Tierfabriken v Switzerland App no 24699/94 (2001) [46], where the Court held obiter that it ‘does not consider it desirable, let alone necessary, to elaborate a general theory concerning the extent to which the Convention guarantees should be extended to relations between private individuals inter se’. 165 See C Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menschenrechtskonvention (2003) 4–6. 166 D Spielmann, ‘Obligations positives et effet horizontal des dispositions de la Convention’ in F Sudre (ed), L’interprétation de la Convention européenne des droits de l’homme (1998) 134; for a similar view, J-F Akandji-Kombe, Positive Obligations under the European Convention on Human Rights (2007) 8. 167 DJ Harris and others, Law of the European Convention on Human Rights (2nd edn, 2009) 19; Van Dijk and others (n34) 31. 168 (adopted on 21 December 1965; entered into force 4 January 1969) 660 UNTS 195. 169 (adopted on 18 December 1979; entered into force 3 September 1981) 1249 UNTS 13. 170 J Delbrück, Die Rassenfrage als Problem des Völkerrechts (1971) 113. The practice of CERD and CEDAW Committees also lends support to such a broad reading of the instruments. CERD General Recommendation 20 states that ‘to the extent that private institutions influence the exercise of rights . . . the State must ensure that the result has neither the purpose nor the effect of creating or

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is essentially different in the cases of CERD and CEDAW is that an obligation on the State to act is the starting point of the interpretation of the abovementioned provisions, as opposed to those ‘positive obligations’ read into human rights instruments. A strictly literal interpretation suffices to underscore the obligations of States to act in eliminating discrimination. On the contrary, ‘positive obligations’ under international human rights law are the end product of a purposive interpretation, which incorporates the evolutive interpretation and the principle of effectiveness.171 That may be said to be the methodological foundation of these obligations. The systemic foundations are those provisions laying down the general duty to protect human rights, which are often read in tandem with the specific human rights norm.172 Art 1 ECHR enjoins States to ‘secure to everyone within their jurisdiction the rights and freedoms’ protected by the Convention. In the Belgian Linguistic Case, the reference of Art 1 to States’ obligation to ‘secure’ the rights was key in holding that the right to education may also produce positive obligations on the State.173 As regards the scope of Art 1 ECHR itself, the Court has consistently held that the responsibility of a State is engaged if the violation of a guaranteed right is a result of that State’s non-observance of the Art 1 obligation to secure the right under domestic law to all under its jurisdiction.174 At the same time the Court has interpreted Art 1 ECHR as barring States from absolving themselves from responsibility ratione personae by delegating their obligations to private bodies or individuals.175 In Wós v Poland, the ECtHR found that the acts of a private law foundation, empowered to administer a compensation scheme agreed upon by Poland and Germany, could engage the responsibility of the defendant State, since the exercise of State powers which affects Convention rights and freedoms raises an issue of State responsibility regardless of the form in which these powers happen to be exercised, be it for instance by a body whose activities are regulated by private law.176

It becomes apparent that Art 1 ECHR is a framework provision that cannot be breached on its own.177 At the same time, this joint application of Art 1 ECHR

perpetuating racial discrimination’. CERD, ‘General Recommendation No 20: Non-discriminatory implementation of rights and freedoms’ (1996) UN Doc A/51/18 [5]. In the same vein, CEDAW General Recommendation 24 underlines that ‘the obligation to protect rights relating to women’s health requires States Parties . . . to take action to prevent and impose sanctions for violations of rights by private persons and organizations’. CEDAW, ‘General Recommendation No 24:  Women and Health’ (1999) UN Doc A/54/38/Rev.1 [15]. 171 Arguably, the ICJ espoused an analogous interpretative technique when called upon to assess the scope of the obligation to prevent genocide under Art I of the Genocide Convention. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Judgment) [2007] ICJ Rep [161–166] and [429]. 172 Cf Spielmann (n131) 431–432. 173 Use of Languages in Education in Belgium (n124) [3]. 174 See ECtHR, Young, James and Webster v United Kingdom Apps no 7601/76 and 7806/77 (1981) [49]. 175 ECtHR, Sychev v Ukraine App no 4773/02 (2006) [53]. 176 ECtHR, Wós v Poland App no 22860/02 (2006) [72]. 177 ECtHR, Biriuk v Lithuania App no 23373/03 (2009) [23].

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and of the particular right in each case has enabled the Court to interpret Art 1 as a general guarantee clause, which justifies the emergence of ‘positive obligations’.178 Art 1 (1) ACHR imposes an obligation on States to ‘respect’ the rights and freedoms protected under the ACHR and ‘ensure’ free and full exercise thereof. Gros Espiell has suggested that the terms are not synonymous but that the obligation to ensure can only be interpreted as a positive obligation of States to prevent violations of rights by any person, physical or legal.179 Such an extensive interpretation reflects the approach taken by the IACtHR. In Velásquez-Rodríguez v Honduras, the Court held that the obligation ‘to ensure’ obliges States to ‘prevent, investigate and punish any violation of the rights recognized by the Convention’,180 thus accepting that Art 1 (1) ACHR serves as the basis of the positive effect flowing from the rights guaranteed under the ACHR. The link between Art 1 (1) ACHR and ‘positive obligations’ was highlighted in the Case of the ‘White Van’. The Court held that Guatemala had violated Art 1 (1)  ACHR in connection with violations of the right to personal liberty and safety, to life, and to physical, psychological, and moral integrity, since it had failed to guarantee persons subject to its jurisdiction the free and full exercise of human rights, a guarantee applicable ‘whether those responsible for the violations of those rights are members of the public authorities, private individuals, or groups’.181 Finally, the obligation of States Parties to the ICCPR to ‘respect and to ensure’ to all individuals under their jurisdiction the rights protected by the Covenant has been interpreted by the HRC in a comparable manner. In its General Comment 31, which deserves to be quoted at length, it states that [t]he article 2 (1) obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law . . . However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities.182

Such an interpretation of Art 2 (1)  ICCPR is in conformity with the previous case law of the Committee as regards individual communications under the Optional Protocol procedure. Thus, in Cabal and Pasini Bertran v Australia, the HRC relied, inter alia, on Art 2 (1) ICCPR to find that Australia had violated Art 10 (1) ICCPR as a result of the treatment of the applicants within a private detention facility.183 In the same vein, the HRC held that ‘the contracting out to the private commercial sector of core State activities . . . does not absolve a State party of its obligations under the Covenant’.184

178 See ECtHR, McCann and others v United Kingdom App no 18984/91 (1995) [161]; Assenov and others v Bulgaria App no 24760/94 (1998) [102]; Storck (n141) [101]; Paul and Audrey Edwards v United Kingdom App no 46477/99 (2002) [69]. 179 Gros Espiell (n57) 231–232. 180 Velásquez-Rodríguez (n144) [166]; Godínez-Cruz (n146) [175]. 181 IACtHR, Case of the ‘White Van’ (Paniagua-Morales et al.) v Guatemala C 37 (1998) [174–175]; Case of the ‘Street Children’ (n115) [139] and [147]. 182 183 General Comment No 31 (n152) [8]. Comm no 1020/2001 (2003) [11]. 184 Comm no 1020/2001 (2003) [7.2].

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The emergence of ‘positive obligations’ across the board of human rights as a manifestation of horizontality significantly alters our perception as to the manner in which human rights operate. Civil and political rights traditionally perceived as ‘negative’ rights ultimately produce obligations on States to act. The restriction of State action is not enough to protect individual rights and freedoms. Restrictions on private action are necessary to guarantee the protection of human rights. This conception of human rights echoes Berlin’s ‘positive liberty’, an ideal of the truly free man, which justifies restraints on others in order to realize justice.185 This shift in the way we think of human rights surely corresponds to a shift in the way we think of the State. The concept of ‘positive obligations’ highlights the transition of the State from its traditional role as ‘violator’ of human rights to its emerging function as ‘guarantor’ thereof.186 The concept of ‘positive obligations’ is the result of the observation of changing social realities by human rights treaty bodies. The effective protection of human rights necessitates a realistic take on the function of abstract human rights norms in contemporary society. As Mowbray has noted, the ECtHR by insisting on ‘positive obligations’ was reacting to the widespread privatizations of formerly publicly owned and controlled industries which as of necessity would mean that interferences with human rights could ultimately result from the private rather than the public sector.187 The manner in which ‘positive obligations’ have materialized in international law corresponds to the ‘prophetic’188 idea of Evrigenis of a kind of ‘ecological liability [of the State] in the human rights field’.189 This idea suggested that the State should be answerable for all violations of human rights within its jurisdiction and not only for those violations committed by its organs. Evrigenis based such reasoning on the ‘growing complexity of the social fabric [which] is obliging the State to take positive action to protect rights and freedoms which, in the traditional view, only required protection against interference by public authorities’.190 Yet, whereas the doctrine of ‘positive obligations’ has transformed human rights, and has sought to render it more effective by refining the scope of the obligations incurred by States Parties to human rights instruments, it has not resulted in turning corporations into addressees of international human rights norms. Corporate conduct has been recognized as a source of ‘interference’ with the enjoyment of human rights. But, in no case has a human rights treaty body accepted to go a step further and recognize corporations themselves as addressees of the international norms. The corporation is affected by the emergence of ‘positive obligations’ insofar as the State is under an obligation to regulate corporate conduct in order to secure the maximum level of human rights enjoyment. Yet, those obligations operate on the municipal level and they do not 185 Cf S McInerney, ‘The ECHR and the Evolution of Fundamental Rights in the Private Domain’ in C Harding and CL Lim (eds), Renegotiating Westphalia (1999) 292. 186 187 Dröge (n165) 1. Mowbray (n123) 183. 188 E Bates, ‘Book Review of A Mowbray, The Development of Positive Obligations under the European Convention on Human Rights’ (2005) 5 HRLR 192. 189 D Evrigenis, ‘Recent Case Law of the European Court of Human Rights on Articles 8 and 10 ECHR’ (1982) HRLJ 137. 190 Evrigenis (n189) 136.

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always flow from human rights law. Such a form of horizontality has been described in theory as ‘indirect’.191 Yet, ‘indirect’ horizontality cannot give rise to direct obligations binding on corporations under international human rights treaty law.

(3) The tripartite typology and the consolidation of human rights obligations The ComESCR in interpreting the ICESCR has also been faced with the question of horizontality. Nonetheless, it has refrained from employing the language of ‘positive obligations’. An approach to horizontality cast in the mould of ‘positive obligations’ may not have been apposite since economic, social, and cultural rights are predominantly seen as ‘positive’ themselves in the sense that they enjoin States to act. On the contrary, the ComESCR has broken new ground by espousing a novel approach to human rights with a focus on the tripartite typology of obligations arising from human rights norms. The significance of the work of the ComESCR in the field of horizontality can only be fully comprehended against the backdrop of the evolution of human rights thinking with respect to economic, social, and cultural rights. As noted above, human rights are traditionally seen as either negative or positive. This dichotomy reflects the traditional distinction between social, economic, and cultural rights on the one hand, and civil and political rights on the other.192 Proponents of the distinction have pointed to the fact that positive rights are not formulated as individual rights, but follow a ‘means-and-ends’ approach.193 Furthermore, positive rights have traditionally been couched in unclear and vague terms.194 Turning to the actual texts of the Covenants, it has been noted that ‘there is even a subtle but conscious and pervasive difference in tone and in terms of legal prescription’.195 This classification has significantly influenced the structure of international human rights law. In turn, the adoption of two separate Covenants in 1966 institutionalized the distinction and amplified it. Nevertheless, the positive/negative divide has come under fire as overly simplistic allowing both for an unsophisticated reading of human rights problems196 and for discrepancies in the level of protection accorded to human rights depending on which category they fall under.197 Negative rights are erroneously viewed as cost-free. Quintessential civil and political rights, such as those pertaining to fair

191

Van Dijk and others (n34) 23; Harris and others (n167) 20. Scott has forwarded the following argument:  in classifying human rights, certain characteristics are attached to the categories. Economic, social, and cultural rights are viewed as positive, resource-intensive, progressive, vague, unmanageable, complex. On the contrary, civil and political rights are considered negative, cost-free, immediate, precise, and manageable. On the basis of these characteristics civil and political rights are considered justiciable whereas economic and social rights are considered non-justiciable. See C Scott, ‘The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights’ (1989) 27 Osgoode Hall LJ 833–834. 193 Cf IE Koch, ‘Dichotomies, Trichotomies or Waves of Duties’ (2005) 5 HRLR 83. 194 See IE Koch, ‘The Justiciability of Indivisible Rights’ (2003) 72 Nordic JIL 4. 195 196 Henkin (n20) 33. See Airey (n103) [26]. 197 E Roucounas, ‘Facteurs privés en droit international public’ (2002) 299 RdC 132–133. 192

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trial, entail costs and, furthermore, positive action from the government. At the same time, the vagueness of economic, social, and cultural rights is partly owed to their relative novelty but is also exacerbated by the fact that they have not received sufficient attention from courts, academics, or other agencies exactly because of their alleged vagueness.198 The ComESCR crossed the Rubicon of the positive/negative divide and replaced it with a novel typology. Every human right is thought to produce three types of obligations on the State, namely an obligation to respect, to protect, and to fulfil.199 This typology builds on the work of Henry Shue. According to Shue, a complete account of a human right must specify what needs to be done and who ought to do it. Besides these, a third element is necessary: a list of allocative principles to assign duties amongst the various agents.200 The focus thus shifts from rights and rests on the obligations flowing therefrom. ‘It is in part because there are multiple agents, or duty-bearers, with different kinds and degrees of responsibility towards various right-bearers that we need to distinguish among duties.’201 The tripartite typology underlines the indivisibility of human rights, which has constituted a recurring theme in international human rights doctrine.202 In other words, there are three interdependent duties flowing from all human rights, independent of their classification as either negative or positive.203 As duties are interdependent, States are obliged to observe all of them.204 Thus, actual compliance with human rights cannot be restricted to complying with a general ‘positive’ or ‘negative’ obligation. The continuum of States’ compliance with human rights encompasses measures ranging from State non-interference to the State actively ensuring the needs of individuals. The obligation to respect appears to coincide conceptually with the obligations associated with ‘negative’ rights. States Parties are under an obligation to refrain from interfering directly or indirectly with the enjoyment of that right. In certain cases, it is clear that state abstention is as crucial to the realization of economic, social, and cultural rights as is positive action on behalf of the State. Art 8 (1) ICESCR on the right to form and join trade unions serves to prove the point. It would appear illogical to place emphasis exclusively on positive action, ignoring

198 M Gomez, ‘Social and Economic Rights and the Human Rights Commission’ (1995) 17 HRQ 161. 199 The typology was first employed by A  Eide, Special Rapporteur of the Sub-Commission on the Right to Food. See Report on the Right to Adequate Food as a Human Right, UN Doc E/CN.4/ Sub.2/1987/23. It has been introduced in a series of ComESCR’s General Comments. See ‘General Comment No 12:  The Right to Adequate Food’ (12 May 1999)  UN Doc E/C.12/1999/5 [15]; ‘General Comment No 15: The Right to Water (20 January 2003)’ UN Doc E/C.12/2002/11 [20]; ‘General Comment No 18: The Right to Work’ (24 November 2005) UN Doc E/C.12/GC/18 [22]. 200 See H Shue, ‘The Interdependence of Duties’ in P Alston and K Tomasevski (eds), The Right to Food (1984) 83. 201 Shue (n200) 83. 202 See Art 5 of the Vienna Declaration and Programme of Action, as attached in (12 July 1993) UN Doc A/CONF.157/23. 203 204 General Comment No 12 (n199) [15]. Sepúlveda (n80) 170.

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at the same time the obligation of the State to respect freedom of association by abstaining from any interference with the exercise of the right. The obligation to protect requires States Parties to take measures that prevent third parties from interfering with the enjoyment of the right in question.205 In its General Comment 12 on the right to food, the ComESCR interpreted the obligation to protect as requiring measures by the State to ensure that ‘enterprises or individuals do not deprive individuals of their access to adequate food’206 and that ‘activities of the private business sector . . . are in conformity with the right to food’.207 Respectively, in its General Comment 14 on the right to the highest attainable standard of health, the ComESCR highlighted that States Parties would be in violation of their obligation to protect if they failed to ‘regulate the activities of . . . groups or corporations so as to prevent them from violating the right to health of others’.208 Finally, the obligation to fulfil includes obligations to provide, facilitate, and promote rights. The ComESCR has employed the tripartite analysis in order to refine the obligations binding on States as regards corporate conduct interfering with the enjoyment of human rights. Thus, in its Concluding Observations regarding Ecuador the ComESCR expressed concern at the ‘negative health and environmental impacts of natural resource extracting companies’ activities at the expense of the exercise of land and culture rights of the affected indigenous communities’.209 Affirming Ecuador’s obligation to protect indigenous rights vis-à-vis private actors, the ComESCR recommended that it ‘[implemented] legislative and administrative measures to avoid violations of environmental laws and rights by transnational companies’.210 Equally, in its Concluding Observations for Brazil the ComESCR expressed its concern that ‘the right of indigenous peoples to own land is not respected and that mineral, timber and other commercial interests have been allowed to expropriate . . . large portions of land belonging to indigenous peoples’.211 It required of Brazil to ‘ensure that indigenous peoples are effectively protected from threats and danger to their lives and from eviction from their lands’.212 The initial purpose behind the introduction of the tripartite typology in the practice of the ComESCR was to clarify the scope of States’ obligations under the ICESCR. Alston had argued that even a State deeply committed to achieving compliance with the ICESCR would be ‘hard pressed to determine for itself exactly what the Covenant [required] of it with respect to a given right’.213 Indeed, lack of precision concerning State obligations would mean that it is ‘difficult or near impossible to determine whether a right has been violated.’214

205 Cf A Eide, ‘Realisation of Social and Economic Rights and the Minimum Threshold Approach’ (1989) 10 HRLJ 37. 206 207 General Comment No 12 (n199) [15]. General Comment No 12 (n199) [27]. 208 209 General Comment No 14 (n 103) [51]. (2004) UN Doc E/C.12/1.Add.100 [12]. 210 211 (2004) UN Doc E/C.12/1.Add.100 [35]. (2003) UN Doc E/C.12/1/Add.87 [35]. 212 (2003) UN Doc E/C.12/1/Add.87 [58]. 213 P Alston ‘Out of the Abyss:  The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’ (1987) 9 HRQ 352. 214 See Report on the Right to Adequate Food as a Human Right (n199) [56–58] and [63–64].

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Nonetheless, the use of the tripartite typology, and more specifically the obligation to protect, has evolved through time into a means of applying social, economic, and cultural rights horizontally.215 Eide has suggested that such protection should be offered ‘against . . . more assertive or aggressive subjects’ and as such ‘[t]his protective function of the State is the most important aspect of state obligations also with regard to economic, social and cultural rights and it is similar to the role of the state as protector of civil and political rights’.216 Both the obligation to protect and ‘positive obligations’ reconfigure human rights seeking to bring about their effective implementation and do so by collapsing traditional distinctions adhered to in the past. It may be argued that the ‘obligation to protect’ does not solely reflect the doctrine of ‘positive obligations’ functionally, but also methodologically. The tripartite typology is not enshrined in the ICESCR. On the contrary, this analytical framework has been ‘developed by scholars . . . applied to various economic, social and cultural rights and has clarified their normative content’.217 The application of the typology to the ICESCR is the result of the interpretative approach espoused by the ComESCR. The ComESCR has from early on highlighted the significance of the object and purpose of the Covenant.218 Indeed, such a teleological approach has been coupled with the need to interpret the Covenant in such a manner as to give the fullest possible effect to its provisions.219 Finally, the overriding object and purpose of the ICESCR further requires that developments in international law be taken into account when interpreting the Covenant.220 Such a broad and dynamic interpretation of the Covenant rights is in accord with the need to ensure full effect to human rights in the light of present day conditions, but also in line with the approach espoused by other human rights bodies.221 It becomes apparent that horizontality is not only confined to civil and political rights. It is also a crucial problem in the law of economic, social, and cultural rights. Actually, the threat posed by corporate conduct may be even more acute in the latter field since economic interests, of logical necessity, affect the freedom of individuals to use resources, which lies at the heart of socio-economic rights.222 The ComESCR, in espousing the tripartite typology, has consolidated the obligations flowing from human rights guarantees. It is no longer sound to look to the nature 215 This interlinking between the obligation to protect and horizontality has been affirmed in theory. Brems (n59) 463; Koch (n193) 94; M Dowell Jones, Contextualising the ICESCR (2004) 30; T Kiefer and C Brölmann, ‘Beyond State Sovereignty: The Human Right to Water’ (2005) 5 Non-State Actors and IL 192. 216 A Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in A Eide and others (eds), Economic, Social and Cultural Rights: a Textbook (2nd edn, 2001) 24. 217 B Toebes, ‘The Right to Health’ in Eide and others (n216) 170–171. 218 See ‘General Comment No 3:  The Nature of States Parties Obligations’ (14 December 1990) UN Doc E/1991/23 [9] highlighting the need for an interpretation ‘in the light of the overall objective, indeed the raison d’être, of the Covenant which is to establish clear obligations for States Parties in respect of the full realization of the rights in question’. 219 See General Comment No 14 (n103) [31]; General Comment No 15 (n199) [7]; ‘General Comment No 19: The Right to Social Security’ (4 February 2008) UN Doc E/C.12/GC/19 [4]. 220 221 See General Comment No 14 (n103) [10]. Cf Sepúlveda (n80) 87. 222 Eide (n216) 24.

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of the right for a definition of the obligation it produces. Correspondingly, the tripartite typology underscores the function of the State: ‘double-faced, like Janus’, it is called upon to both respect human rights limitations and be active in its role as ‘protector and provider’.223 It becomes obvious that horizontality in economic, social, and cultural rights does not result in corporations becoming addressees of human rights norms. As is the case with ‘positive obligations’, the obligation to protect exclusively burdens the State, which is called upon to act in such a manner on the domestic plane so as to guarantee the full enjoyment of human rights.

(4) An integrated approach to horizontality: The Serac decision The AfrCHPR stands out from other regional human rights instruments due to certain characteristics peculiar to it, most prominent amongst which is the express recognition of the indivisibility of civil and political and economic, social, and cultural rights.224 Indeed, the Charter guarantees a wide variety of rights of all denominations. It is only reasonable that when faced with the question of the horizontal application of the rights guaranteed under the AfrCHPR, the AfrComHPR had to chart a unique approach. Still, to a certain extent, the Commission’s practice could be classified alongside that of the ECtHR and IACtHR. In Commission Nationale des Droits de l’Homme et des Libertés v Chad, the complaint referred to severe and massive violations which occurred during the civil war period. The Commission stressed that ‘if a state neglects to ensure the rights in the African Charter, this can constitute a violation, even if the state or its agents are not the immediate cause of the violation’.225 In the same vein, the Commission added that ‘even where it cannot be proved that violations were committed by government agents, the government had a responsibility to secure the safety and the liberty of its citizens’.226 Its interpretation of Art 1 AfrCHPR mirrors that of other regional human rights bodies, in the sense that Art 1 is seen as a general guarantee provision, which generates ‘positive obligations’ binding on States Parties. The Commission went on to find Chad in violation of Arts 4, 5, 6 and 7 AfrCHPR. In later case law where the violations complained of involved both civil and political and economic, social, and cultural rights, the Commission decided to adopt an integrated approach to horizontality, which sets it apart from other human rights bodies. In Serac v Nigeria, the Commission was called upon to deal with the conduct of the Nigerian military government through its State oil company, the Nigerian National Petroleum Company, acting as majority shareholder in a consortium with Shell Petroleum Development Company. It was alleged that the consortium exploited ‘oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the 223

224 Eide (n205) 37. Preamble para 7 AfrCHPR. AfrComHPR, Commission Nationale des Droits de l’Homme et des Libertés (n102) [20]; cf Avocats Sans Frontières (on behalf of Bwampamye) v Burundi Comm no. 231/99 (2000) [31]. 226 Commission Nationale des Droits de l’Homme et des Libertés (n102) [22]. 225

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environment and local waterways in violation of applicable international environmental law standards’, thus as a result ‘contamination of water, soil and air has had serious short and long-term health impacts’.227 Whereas the communication against Nigeria was submitted to the AfrComHPR in accordance with Art 55 AfrCHPR, which states that communications can only be lodged against a State Party to the Charter,228 Serac was hailed as a turning point regarding horizontality, as the Commission had to examine allegations of violations perpetrated by corporations acting in tandem with the State under the organizational form of a consortium. The Commission started off by affirming that ‘internationally accepted ideas of the various obligations engendered by human rights indicate that all rights . . . generate at least four levels of duties for a State’.229 These are the duties to respect, protect, promote, and fulfil these rights.230 Whereas the typology does not feature anywhere in the AfrCHPR, the Commission endorsed it without any further discussion. The AfrComHPR held the typology to be applicable with equal vigour to all human rights instruments and therefore the AfrCHPR as well. The Commission noted that with regard to the obligation to protect, it ‘requires the State to take measures to protect beneficiaries of the protected rights against political, economic and social interferences’.231 The AfrComHPR then turned to the examination of each of the rights allegedly violated as a result of Nigerian actions as suggested by the complainants, amongst which featured Art 21 AfrCHPR establishing the right of peoples to freely dispose of their wealth and natural resources. The AfrComHPR found that governments have a duty to protect their citizens from ‘damaging acts that may be perpetrated by private parties’, a duty which ‘calls for positive action on the part of governments in fulfilling their obligation under human rights instruments’.232 In order to substantiate its reading of a ‘positive obligation’ into Art 21 AfrCHPR, the Commission referred to its own case law, namely Commission Nationale des Droits de l’Homme et des Libertés v Chad, but also explicitly referred to X and Y v the Netherlands and Velásquez-Rodríguez v Honduras decided by the ECtHR and the IACtHR respectively. The significance of this finding is twofold: on the one hand, it underlines the convergence between human rights bodies with respect to the question of horizontality. On the other hand, it provides an explicit link between the two manifestations of horizontality analysed above, as it essentially argues that the ‘obligation to protect’ under Art 21 AfrCHPR is equivalent in function and scope to a ‘positive obligation’ of Nigeria under the same provision. Serac is the most vocal affirmation of the fact that traditional human rights classifications have been bypassed. 227

Social and Economic Rights Action Center (n100) [2]. Art 56 (3) AfrCHPR; cf F Viljoen, ‘Communications under the African Charter’ in M Evans and R Murray (eds), The African Charter on Human and Peoples’ Rights (2nd edn, 2008) 101. 229 Social and Economic Rights Action Center (n100) [44]. 230 Social and Economic Rights Action Center (n100) [44]. 231 Social and Economic Rights Action Center (n100) [46]. 232 Social and Economic Rights Action Center (n100) [57]. 228

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Somewhat surprisingly, when examining whether the right to life guaranteed under Art 4 AfrCHPR has been violated, the Commission notes that a violation has indeed taken place ‘given the widespread violations perpetrated by the Government of Nigeria and by private actors (be it following its clear blessing or not)’.233 The formulation of the decision is ambivalent and the finding that private actors have participated in violations of the right to life could be interpreted as an implied affirmation of the fact that private actors are bound by the rule in the first place. Such a take on Art 4 AfrCHPR would distance the Commission from the rest of human rights bodies insofar as it would amount to recognizing the private actors as direct addressees of the AfrCHPR. Still, the Commission later on in the judgment reverts to finding that Nigeria, as the obligor under the AfrCHPR, ‘did not live up to the minimum expectations of the African Charter’.234 In holding thus, the Commission stopped short of entering a discussion on the potential human rights obligations of corporations. Serac appears to be an affirmation of the exclusive nature of the States’ position as obligors under human rights treaty law. Not only does the AfrComHPR refrain from excoriating corporations as violators of human rights, but it also strikes a middle-of-the-road position. On the one hand, it recognizes the deleterious effects corporate conduct can have on the enjoyment of human rights by stating that ‘the Nigerian Government has given the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis’.235 On the other hand, it hastens to underline that ‘the intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities’.236 Serac came under heavy fire from academic quarters. Oloka-Onyango has characterized the decision as ‘limited’.237 The author contends that the Commission ‘could have examined the issue of the direct liability of the oil companies more extensively’.238 At first, it is argued that ‘where the criminal law or the regulatory mechanisms of the host state are inadequate to tackle the problem’, the ‘accountability of the non-state actor’ should be considered.239 Second, Oloka-Onyango suggests that ‘[w]here a [transnational corporation] is directly involved with the host country in human rights violations, direct liability should be found’.240 As to the first argument, it does not follow that the inadequacy of domestic regulatory mechanisms results in transposing the human rights obligations assumed by the State to other natural or legal persons, national or international. In the present 233

Social and Economic Rights Action Center (n100) [67]. Social and Economic Rights Action Center (n100) [68]. 235 Social and Economic Rights Action Center (n100) [58]. 236 Social and Economic Rights Action Center (n100) [69]. 237 J Oloka-Onyango, ‘Reinforcing Marginalized Rights in an Age of Globalization’ (2003) AmUILR 903. 238 Oloka-Onyango (n237) 905; cf JC Nwobike, ‘The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter’ (2004-05) 1 African J Legal Studies 143. 239 240 Oloka-Onyango (n237) 903. Oloka-Onyango (n237) 904. 234

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case, such transposition would also equal the granting of international legal personality to the corporation, in order to be found in violation of an obligation under the AfrCHPR. If the Commission ventured that far, then it would radically reinterpret the content of the AfrCHPR. The second argument refers to the corporation being involved in state-sponsored human rights violations. Oloka-Onyango makes use of the terms ‘direct liability’, without specifying whether such ‘liability’ should be taken to actually mean international responsibility for conduct in violation of the African Charter. In any case, if a State and a corporation act jointly and such cooperation results in human rights violations, the fact that the two are not considered jointly responsible under human rights treaty law does not ipso facto preclude the liability or responsibility of the corporation under any other corpus of legal rules.241 Besides, the widening of the scope of the international responsibility of Nigeria via the affirmation of horizontality seeks to curb corporate misconduct even though corporations are not seen as addressees of human rights themselves.

(5) Horizontality of peremptory human rights norms Over recent years there has been a shift in the manner in which the IACtHR approaches human rights, and consequently the question of their horizontal application. In its initial case law, the IACtHR was clearly influenced by the ECtHR’s ‘positive obligations’ approach leading to a marked degree of convergence.242 Yet, the IACtHR in its more recent case law has adopted a radical and unique approach to human rights guarantees set forth in the ACHR, focusing on their nature as peremptory.243 The theory was expounded mainly by former Judge Cançado Trindade leading certain authors to speak of a ‘Cançado Trindade’ era.244 The turning point for this understanding of the ACHR human rights guarantees is the Separate Opinion of Judge Cançado Trindade in Blake v Guatemala.245 The case concerned the alleged abduction and murder of Mr Nicholas Blake by agents of the Guatemalan State, as well as allegations of a subsequent cover-up of Mr Blake’s disappearance by Guatemalan officials. The IACtHR held Guatemala in violation of the judicial guarantees set out in Art 8 (1) ACHR and the right to humane treatment, enshrined in Art 5 ACHR. Furthermore, it held that Guatemala was under an obligation to use all means to investigate the acts and punish all those responsible.

241 Oloka-Onyango himself takes note of the existing legal avenues to seeking redress for interference with the enjoyment through filing civil law claims before Nigerian Courts. Oloka-Onyango (n237) 903. 242 See A Cançado Trindade, ‘The Merits of Coordination of International Courts on Human Rights’ (2004) 2 JICJ 309–310. 243 A peremptory norm of international law or jus cogens norm is defined as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. See Art 53 VCLT. 244 H Tigroudja, ‘La Cour interaméricaine des droits de l’homme au service de “l’humanisation” du droit international public’ (2006) 52 AFDI 618. 245 IACtHR, Blake v Guatemala (n146).

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The reason behind Trindade’s Opinion was his objection to the limitation ratione temporis raised as to the competence of the Court in Blake. According to the Opinion, to speak of limitations ratione temporis to the competence of an international tribunal in relation to peremptory norms would be impossible.246 Trindade identified, inter alia, systematic practices of forced disappearance as objectively illegal and thus as constituting violations of jus cogens. Yet, such affirmation of the existence of jus cogens norms does not reveal much about the nature of the norms. International jus cogens remains a ‘terra nova’.247 Trindade goes on to identify the effects of the emergence of jus cogens norms as ‘[pointing] in the direction of the consolidation of erga omnes obligations of protection, that is, obligations pertaining to the protection of human beings’.248 Such consolidation of erga omnes obligations is ‘a manifestation of the emergence itself of imperative norms of international law’.249 In practical terms, the protection accorded to human beings has to be ensured ‘in any circumstances, against all the manifestations of arbitrary power’, which according to the author corresponds to the new ‘ethos of our times’.250 The heart of the argument lies in Trindade’s suggestion that erga omnes obligations do not only bind States, but all other actors, including non-State actors.251 Cançado Trindade further bolstered this last point in his later Concurring Opinion in the case of Haitians and Dominicans of Haitian Origin by arguing that the ‘greatest challenge’ for legal science from the perspective of human rights is to develop conceptually the law of the international responsibility of non-State actors, besides that of the State.252 According to Trindade, those ACHR human rights guarantees, which amount to rules of jus cogens, produce direct obligations both on States and non-State actors under international law, for the violation of which non-State actors bear international responsibility. Conscious of the fact that such a finding goes against dominant human rights doctrine, Cançado Trindade has launched an attack on the ‘rigid postulates’ of treaty law and, by implication, on the voluntarist conception of international law on which they are based, and urged for a ‘demystification’ of ‘the presentation, frequent and undue, of [such] postulates as eternal and immutable truths’.253 There exists, he argued, a ‘manifest incompatibility with the concept of jus cogens of the voluntarist conception of international law’.254 It is only by ‘a transformation and revitalization of the law of treaties’ that human rights can be effectively upheld,255

246

IACtHR, Separate Opinion of Judge Cançado Trindade, Blake v Guatemala (n146) [24]. Separate Opinion of Judge Cançado Trindade, Blake v Guatemala (n146) [15]. 248 Separate Opinion of Judge Cançado Trindade, Blake v Guatemala (n146) [26]. 249 Separate Opinion of Judge Cançado Trindade, Blake v Guatemala (n146) [28]. 250 IACtHR, Separate Opinion of Judge Cançado Trindade, Blake v Guatemala (Reparations and Costs) 1999 C 48 [34]. 251 See the Reply of AA Cançado Trindade (2005) 71-I AnnIDI 156. 252 IACtHR, Concurring Opinion of Judge Cançado Trindade, Haitians and Dominicans of Haitian-origin in the Dominican Republic (Provisional Measures Order of 18 August 2000) [25]. 253 Separate Opinion of Judge Cançado Trindade Blake, v Guatemala (n250) [29]. 254 Separate Opinion of Judge Cançado Trindade Blake, v Guatemala (n250) [23] and [30]. 255 Separate Opinion of Judge Cançado Trindade Blake, v Guatemala (n250) [30]. 247

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thus contributing ‘to the creation of a true international ordre public based on the respect and observance of human rights’.256 Cançado Trindade’s arguments initially found resonance with the IACtHR which embraced the idea of erga omnes obligations of protection, albeit with a catch:  the Court did not accept the far-reaching proposition of human rights producing binding obligations on non-State actors. In a series of Orders for Provisional Measures, the IACtHR held that the obligation of States Parties under Art 1 (1) ACHR to guarantee the free and full exercise by all persons under their jurisdiction of the human rights guaranteed under the Convention is ‘imperative not only with respect to the power of the State but also with respect to actions by third parties, including irregular armed groups of any type’.257 The Court included corporations in the groups of individuals that could act as sources of interference with the enjoyment of human rights in Sarayaku. Yet, the erga omnes nature of the protection afforded by the rights concerning the cases in question only extend as far as to enjoin States to uphold human rights in the relations between individuals and groups of individuals. The latter in and of themselves do not become addressees of the ACHR. The Court revisited its approach to the question of erga omnes obligations in its Advisory Opinion 18/03 concerning the Juridical Condition and Rights of the Undocumented Migrants.258 The Advisory Opinion was issued in response to a request by Mexico questioning the compatibility of denying fundamental workplace rights to unauthorized workers in the Americas with the principles of equality before the law and non-discrimination, as enshrined in the ACHR. The Court, first and foremost, held the principle of equality before the law and non-discrimination to form part of jus cogens, because ‘it is a fundamental principle that permeates all laws’.259 If a human right belongs to the realm of jus cogens, then in accordance with the Court’s case law it entails ‘obligations erga omnes of protection that bind all States and give rise to effects with regards to third parties, including individuals’.260 The crucial challenge then becomes to delineate the exact range of the effects of the erga omnes obligations of protection. The Court found that such obligations imply that the State, both internationally and in its domestic legal system, and by means of the acts of any of its powers or of third parties who act under its tolerance, acquiescence or negligence, cannot behave in a way that is contrary to the principle of equality and non-discrimination, to the detriment of a determined group of persons.261

256

Separate Opinion of Judge Cançado Trindade Blake, v Guatemala (n250) [24]. IACtHR, Matter of the Peace Community of San José de Apartadó (Provisional Measures, Order of 18 June 2002) [11]; Matter of The Communities of Jiguamiandó and Curbaradó (Provisional Measures, Order of 6 March 2003) [11]. 258 IACtHR, Juridical Condition and Rights of the Undocumented Migrants (Advisory Opinion) A 16 [2003]. 259 Juridical Condition and Rights of the Undocumented Migrants (n258) [101]. 260 Juridical Condition and Rights of the Undocumented Migrants (n258) [110]. 261 Juridical Condition and Rights of the Undocumented Migrants (n258) [100]. 257

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This finding appears uncontroversial in the sense that it fits in with the Court’s case law, which interprets the erga omnes obligations as enjoining States to secure human rights in the relations between individuals. Yet, the Court goes on to make a groundbreaking pronouncement, holding that [i]n labor relations, employers must protect and respect the rights of workers, whether these relations occur in the public or private sector. The obligations to respect the human rights of migrant workers has a direct effect on any type or employment relationship.262

Trindade in his Concurring Opinion complements this obiter by suggesting that erga omnes obligations have a ‘vertical dimension’ which results in legal obligations that ‘bind both the organs and agents of (State) public power, and the individuals themselves (in the inter-individual relations)’.263 Interestingly, Judge Salgado Pesantes in his Concurring Opinion seems to share Trindade’s interpretation of the erga omnes obligations. He stresses that ‘an extremely important point in this Advisory Opinion is that of establishing clearly the effectiveness of human rights with regards to third parties, in a horizontal conception’.264 He then adds that ‘the environment of free will that prevails in private law cannot become an obstacle that dilutes the binding effectiveness erga omnes of human rights’.265 From that, it is only logical for the Judge to conclude that ‘third parties (the private sphere) . . . may violate [human] rights in the ambit of individual relationships’.266 It is beyond the scope of the present analysis to examine in full the implications of the Court’s affirming the jus cogens nature of the principle of equality before the law or the methodology behind such affirmation. Suffice to say that the finding has met with considerable scepticism at best.267 The crucial question in respect of horizontality is whether the identification of a human rights rule as jus cogens ipso facto results in extending the ratione personae scope of application of the rule to bind corporations directly. In Furundžija, the ICTY held that ‘the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community . . . the prohibition . . . is an absolute value from which nobody must deviate’.268 Likewise, it has long been accepted in international law theory that jus cogens norms operate in an unconditional way.269 Since the ratio legis of jus cogens norms is the protection of the interests of the international 262

Juridical Condition and Rights of the Undocumented Migrants (n258) [151]. IACtHR, Concurring Opinion of Judge Cançado Trindade, Juridical Condition and Rights of the Undocumented Migrants (n258) [77]. 264 IACtHR, Concurring Opinion of Judge Salgado Pesantes, Juridical Condition and Rights of the Undocumented Migrants (n258) [17]. 265 Concurring Opinion of Judge Salgado Pesantes, Juridical Condition and Rights of the Undocumented Migrants (n258) [18]. 266 Concurring Opinion of Judge Salgado Pesantes, Juridical Condition and Rights of the Undocumented Migrants (n258) [19]. 267 See G Neuman, ‘Import, Export and Regional Consent in the Inter-American Court of Human Rights’ (2008) 19 EJIL 120; A Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19 EJIL 506. 268 Prosecutor v Anto Furundžija (Judgment) IT-95-17/1-T (10 December 1998) [154]. 269 Cf M Virally, ‘Réflexions sur le “jus cogens” ’ (1966) 12 AFDI 8. 263

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community as a whole, as opposed to the interests of individual States, it is only logical that jus cogens norms operate in an ‘imperative manner’.270 Yet, such imperativeness does not attach to the scope of the norm but to its normativity. The recognition of a norm as jus cogens reflects the common consensus of States to attribute this specific character to certain rules.271 To that extent jus cogens norms can be qualified.272 In conclusion, the jus cogens nature of a rule does not necessarily result in expanding its scope of application ‘but relates to that scope as it stands’.273 Yet, the IACtHR does not directly base the extension of the circle of obligors on the peremptory nature of equality before the law and the prohibition of non-discrimination. It does so indirectly, as it were, via the concept of obligations erga omnes. Traditionally, the concept of obligations erga omnes has been approached on the basis of relevant ICJ jurisprudence. The ICJ has expressly referred to obligations erga omnes and has described them as obligations towards the international community as a whole. The ICJ has held that owing to the importance of the subject matter of these obligations all States have a legal interest in their protection.274 This reading laying emphasis on the importance of the subject matter naturally gives rise to questions as to the relationship between jus cogens norms and erga omnes obligations, a relationship which has been described by Tomuschat as ‘a thicket with . . . almost impenetrable layers of doctrinal fights’.275 Despite the controversy, one could at least safely subscribe to the proposition that erga omnes obligations follow from peremptory norms,276 leaving aside the question as to whether the proposition applies vice versa. To this extent the finding of the IACtHR that a presumed peremptory norm gives rise to an obligation erga omnes is fairly uncontroversial. Yet obligations erga omnes and jus cogens norms differ also as regards the legal consequences attributed to them. The peremptory character of a given norm of general international law speaks to its normative priority over other rules of international law. On the contrary, obligations erga omnes speak to the legal interest of all States in compliance with international law obligations and as such they have been considered cognate to the international law of responsibility.277 The key issue is whether the IACtHR in referring to obligations erga omnes adheres to the traditional usage of the concept in the field of law enforcement or

270 G Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957) 92 RdC 125. 271 C Rozakis, The Concept of Jus Cogens in the Law of Treaties (1976) 23. 272 Cf S Kadelbach, ‘Jus Cogens, Obligations Erga Omnes and Other Rules’ in C Tomuschat and J-M Thouvenin (eds), The Fundamental Rules of the International Legal Order (2006) 29. 273 A Orakhelashvili, Peremptory Norms in International Law (2006) 68. 274 Barcelona Traction, Light and Power Company, Limited (Judgment)) [1970] ICJ Rep 32 [33]. 275 C Tomuschat, ‘Reconceptualizing the Debate on Jus Cogens and Obligations Erga Omnes’ in Tomuschat and Thouvenin (n272) 428. 276 Cf ILC, ‘Third Report on State Responsibility by J Crawford’ UN Doc A/CN.4/507 (2000) II (1) ILC Ybook 99; C Tams, Enforcing Obligations Erga Omnes in International Law (2005) 157; L-A Sicilianos, ‘The Classification of Obligations’ (2002) 13 EJIL 1137; Orakhelashvili (n273) 269. 277 See the Commentaries to the ILC Articles on State Responsibility in ILC, ‘Report of the International Law Commission on the Work of its Fifty-Third Session’ (2001) UN Doc A/56/10, (2001) II (2)  ILC Ybook 112; Kadelbach (n272) 26; cf M Ragazzi, The Concept of International

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distances itself from such usage by speaking to the ‘substantive structure ratione personae of [the] legal commitment’.278 In other words, the question is after all whether the IACtHR is mainly concerned with the content of the primary obligation and by describing the obligation as erga omnes seeks to broaden the circle of persons bound by it. Admittedly parts of the Advisory Opinion seem to vindicate such a view.279 Still, the better view is that the IACtHR stops short of espousing Trindade’s arguments. It is true that the Undocumented Migrants Advisory Opinion constitutes the high tide of Trindade’s push towards reconceptualizing the scope of human rights. Nonetheless, the Opinion has not had resonance with the IACtHR in its later jurisprudence in contentious cases. In Mapiripán, the IACtHR revisited the effect of an erga omnes obligation and obiter held that this effect goes beyond the relationship between State agents and the persons under its jurisdiction ‘as it is also reflected in the positive obligation of the State to take such steps as may be necessary to ensure effective protection of human rights in relations amongst individuals’.280 While the Court quoted from the Undocumented Migrants Opinion there was no reference to potential obligations of non-State actors.281 On the contrary, the Court stressed that States Parties may incur international responsibility for acts by private individuals in cases in which, through acts or omissions of State agents, they fail to fulfil their erga omnes obligation under Art 1 (1)  ACHR.282 Mapiripán may thus be seen as a clear indication that the Court is loath to expand the reach of the ACHR to directly regulate private conduct. The problem with Trindade’s two-step approach of identifying norms as jus cogens and affirming their binding effect vis-à-vis individuals on the basis of their erga omnes nature is that, as suggested above, the two concepts do not necessarily result in expanding the scope of the norm. Yet, reliance on jus cogens may have been a necessary tool in order to override the spirit and context of the ACHR and read into it obligations directly binding on persons other than States, echoing Trindade’s intention to demystify the ‘rigid postulates’ of human rights treaty law.

(6) Horizontality of international human rights law revisited Human rights have come a long way since their internationalization following World War II. It is no longer tenable to consider human rights either as guarantees of freedom from State interference or as aspirational norms without a legal status. The dilemma between ‘freedom’ and ‘equality’ is no more. Horizontality underscores the need to ensure that individuals are in fact capable of exercising their

Obligations Erga Omnes (1997) 206; M Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’ (1997) 66 Nordic JIL 229–230. 278 Tomuschat (n275) 430. 279 See especially Undocumented Migrants (n258) [110]. 280 IACtHR, Case of the ‘Mapiripán Massacre’ v Colombia C 134 (2005) [111]. 281 ‘Mapiripán Massacre’ (n280) [112]. 282 ‘Mapiripán Massacre’ (n280) [111]; cf IACtHR, Case of Valle Jaramillo and others v Colombia C 192 (2008) [78]; Case of Ríos and others v Venezuela C 194 (2009) [109]; Case of Perozo and others v Venezuela C 195 (2009) [120].

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rights without interference, whether public or private. According to Fredman, such a positive view of freedom cannot be dissociated from a substantive view of equality:  ‘[g]iven that human rights promote freedom by removing constraints, the promise of equality must require all to be in a position actually to enjoy that freedom’.283 Horizontality could not have impacted on the nature of the right without equally impacting on the obligations it produces. Human rights produce a variety of obligations, which the negative/positive dichotomy fails to reflect. One may at this point pause to think whether there was any reason to treat civil and political rights as inherently negative and economic, social, and cultural rights as inherently positive in the first place, apart from the political realities created by the Cold War. Be that as it may, the nature of the right no longer dictates the nature of the obligation it produces. Horizontality ushers into the picture the new function of the State as guarantor of human rights: a guarantor who does not cease to function as the prime potential violator of the same norms. States need to be restrained from interfering with individuals’ freedoms but at the same time they are enjoined to uphold human rights in the relations between individuals and corporations inter se. It is true that by recognizing the State as the guarantor of human rights, human rights law takes into consideration private conduct as a source of interference. This in turn may appear as the entry point to corporate obligations under international human rights treaty law. From the moment human rights law becomes cognizant of corporate conduct, it is only a logical step away from targeting corporate conduct directly. Whether such a line of reasoning holds water is dubious. As noted above horizontality is the response of human rights law to the onset of privatization. The withdrawal of the State from what is perceived as the public sphere would imply the withdrawal of the protection afforded by human rights. Yet, such a view is no longer sound. Human rights treaties bodies have upheld that privatization does not absolve the State of its responsibility for human rights violations arising out of the conduct of corporate entities to which it has delegated any of its functions. The horizontal application of international human rights norms does not equal an application of human rights in the private sphere tout court. On the contrary, horizontality should be seen as serving a remedial function: it extends human rights protection on the margins of the public and the private realm where the actions of corporate actors and other groups of individuals cause State sovereignty to erode. It is true that the divide between the public and the private ‘is not a pre-ordained static border. It is closer to a battleground, with ideological forces wishing to shift the frontline in order to consolidate their own gains’.284 The emergence of horizontality is an indication that the border is shifting. It should not be seen as a reason to collapse the border altogether. Due to the variety in international human rights law treaties, horizontality has emerged in fragments. Yet, responding to common problems, it is characterized 283 284

S Fredman, Human Rights Transformed (2008) 9. A Clapham, Human Rights Obligations of Non-State Actors (2006) 1.

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by marked convergence. What lies at the heart of the concept is that the State is called upon to act: to adopt legislation,285 to change its administrative practices,286 to investigate287 and punish violations of human rights.288 Horizontality of human rights law ultimately impacts on corporate conduct, albeit via the medium of domestic law. The horizontal application of human rights, if anything, is indirect. International human rights treaties do not directly regulate the conduct of corporations and vice versa such conduct cannot violate human rights treaties per se. No corporate obligations have emerged under positive international human rights treaty law. The horizontal application of human rights conceptually appears to subvert rather than provide support for claims for the establishment of corporate human rights obligations under international law.

2. International Criminal Law Treaties International criminal law rests on the fundamental principle of individual criminal responsibility. The principle cannot be described in a more concise manner than that of the International Military Tribunal sitting at Nuremberg (IMT), which famously held that ‘[c]rimes against International Law are committed by men not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced’.289 The principle was subsequently reiterated by the UN General Assembly in the ‘Affirmation of the Nuremberg Principles’ Resolution290 and further reinforced with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), the Statutes of which embodied the principle of individual criminal responsibility for the commission of international crimes.291 Finally, Art 25 of the Statute of the International Criminal Court (ICC)292 solely provides for individual criminal responsibility. The evolution of international criminal law (ICL) from Nuremberg to the Hague has rightly been described as the ‘history of the subjectivation of the individual under international law’.293 In the light of the predominance of individual responsibility, the suggestion that corporations qua legal entities should be, or even more so, that they already 285

See X and Y (n129) [23]. See ECtHR, Gaskin v United Kingdom App no 10454/83 (1989) [49]. 287 See ECtHR, Nachova v Bulgaria Apps no 43577/98 and 43579/98 (2005) [90]. 288 See IACtHR, Case of Tibi v Ecuador C 114 (2004) [159]. 289 1 The Trial of the Major War Criminals Before the International Military Tribunal (1947) 223. 290 ‘Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal’ (11 December 1946) UNGA Res 95 (I). 291 See Arts 7 (1) and 23 (1) of the ICTY Statute, UNSC Res 827 (25 May 1993) UN Doc S/ RES/827; Arts 6 (1) and 22 (1) of the ICTR Statute, UNSC Res 955 (8 November 1994) UN Doc S/RES/955. 292 Rome Statute of the International Criminal Court (adopted 17 July 1998; entered into force 1 July 2002) 2187 UNTS 90. 293 See K Ambos, Internationales Strafrecht (2006) 128 (translation by the author). 286

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are addressees of international criminal law norms may ring peculiar. Yet, over recent years the calls for the regulation of conduct of legal persons and groups of individuals by international criminal law have proliferated.294 The applicability of international criminal law to corporations would constitute a fundamental shift in the nature of international criminal law itself. Still, it is argued that such a shift may reflect the rapid changes in the nature of contemporary criminal activities. One needs to assess whether new modes of criminality dictate that international criminal law bind corporations directly as a means of curbing unlawful corporate conduct. This can only be assessed by examining the response of States to such changes, as reflected in the elaboration of international law rules.

a. Obligations under international criminal law in general It has been noted above that it is necessary to draw a sharp line between those international rules that directly bind corporations and rules that solely obligate States to regulate corporate conduct on the national level. This need to distinguish between direct and ‘indirect’ obligations can further be elucidated in the context of international criminal law, which differentiates between two categories of crimes, namely ‘international crimes’ and ‘crimes under international law’.295 ‘Crimes under international law’ differ from the conceptually wider category of ‘international crimes’ in that they are directly punishable under international law.296 The relevant criminal proscription emanates from international treaty or customary law297 and ‘enjoy[s] direct binding force on [the person] without intermediate provisions of municipal law’.298 In contrast, the basis of prosecution and punishment in the case of ‘international crimes’ is domestic law, as international agreements merely obligate States to declare certain offences criminal under their respective municipal legislation.299 If a treaty establishes an international crime, then this means that it necessarily imposes an obligation on the State and not on the corporation.300 Failure by a State Party to the agreement to enact the requisite domestic laws could lead to the engagement of that State’s international 294 As regards corporations, see Clapham (n284) 244–247; C Wells and J Elias, ‘Catching the Conscience of the King: Corporate Players on the International Stage’ in Alston (n93) 155. As regards armed opposition groups, see L Zegveld, Accountability of Armed Opposition Groups in International Law (2002) 55; cf M Cherif Bassiouni, 1 International Criminal Law (3rd edn, 2008) 49–51. 295 G Werle, Principles of International Criminal Law (2005) 36; A Cassese, International Criminal Law (2nd edn, 2008)  11–12; H-H Jescheck, ‘International Crimes’ in R Bernhardt (ed), 2 EPIL (1995) 1120; R Cryer, Prosecuting International Crimes (2005) 3; C Kreß, ‘Völkerstrafrecht und Weltrechtspflegeprinzip im Blickfel des internationalen Gerichthofs’ (2002) 114 ZfGStr 829. 296 Werle (n295) 36; Cassesse (n295) 11. 297 See Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1-AR 72 (2 October 1995)  [94]; Prosecutor v Kordić (Appeals Judgment) IT-95-14/2-A (17 December 2004) [40–46]. 298 Jescheck (n295) 1120. 299 N Boister, ‘Transnational Criminal Law?’ (2003) 14 EJIL 962; N Boister, An Introduction to Transnational Criminal Law (2012) 18–19. 300 See A Clapham, ‘The Question of Jurisdiction under International Criminal Law over Legal Persons’ in M Kamminga and S Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (2000) 174.

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responsibility, but in no case would any responsibility under international law attach to the corporation engaging in conduct criminalized by the international instrument.301

b. Emergence of international financial criminal law A ‘new generation of treaties’ seeking to ‘criminalise and prevent the abuse of the financial system through outlawing at the transnational level corruption, organized crime, money laundering, terrorism financing and other [criminal activities]’302 constitutes the response of international law to the emergence and diversification of the phenomenon of transnational financial crime. The mid 1980s proved to be a turning point in reassessing ‘the magnitude and complexity of the problem . . . when international concern came to focus on the threat posed by the international drugs trade’.303 Until the collapse of the USSR, financial organized crime was a domestic affair, at least if one takes into consideration the relative lack of international law rules.304 Nonetheless, following the end of the Cold War, the onset of economic globalization and trade liberalization and the spread of information technology have provided new impetus to transnational criminal operations.305 International practice has reaffirmed the linkages between transnational organized crime and terrorism,306 especially in the wake of the 9/11 terrorist attacks.307 Whereas during the Cold War it was not uncommon for terrorist groups to receive funding from States, following the collapse of communism, such groups increasingly turned to organized crime, the proceeds from which would strengthen the financing of their activities.308 The main difference between the two criminal activities is that terrorist organizations are not motivated by financial gain. Still, they too need to develop an adequate financial infrastructure to support their operations.309 In the same vein, there exists little difference in practice as both terrorists and other criminals need to launder the money prior to investing in further criminal activities.

301

See B Broomhall, International Justice and the International Criminal Court (2003) 13. I Bantekas, ‘The Legal Nature of Transnational Financial Crime’ in I Bantekas (ed), International and European Financial Criminal Law (2006) 18. 303 W Gilmore, Dirty Money: The Evolution of International Measures to Counter Money Laundering and the Financing of Terrorism (3rd edn, 2004) 14. 304 Cf A Veng Mei Leong, The Disruption of International Organised Crime (2007) 17. 305 See ‘The Impact of Organised Criminal Activities Upon Society at Large: Report of the Secretary General’ (11 January 1993) UN Doc E/CN.15/1993/3, 10; B Zagaris, ‘Brave New World Revisited’ (2005) 50 Villanova L Rev 509, 510. 306 ‘Measures to eliminate international terrorism’ UNGA Res 46/51 (9 December 1991) UN Doc A/RES/46/51 [9]; ‘Declaration on Measures to Eliminate International Terrorism’ Annex to UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60, preambular paras [e] and [f ]; ‘Measures to eliminate international terrorism’ UNGA Res 51/210 (16 January 1997) UN Doc A/RES/51/210 [3 (f )]. 307 See UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373 [4]. 308 F Bovenkerk and B Abou Chakra, ‘Terrorism and Organised Crime’ in L Holmes (ed), Terrorism, Organised Crime and Corruption (2007) 32–33. 309 Gilmore (n303) 30; M Findlay, Governing Through Globalised Crime (2008) 69. 302

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Corruption, on the other hand, constitutes ‘a factor [contributing] to the eruption of organized crime at the dawn of the 21st century’.310 In this sense, it is an accompanying phenomenon of organized crime, but also a crime in itself, and for these reasons a number of international treaties proscribe the crime of corruption in its own name. It is through corruption that organized crime seeks to ‘obtain the information it seeks, to minimize the risk of being subject to law enforcement measures and to acquire decisive influence in society’.311 Overall, the factual interconnectedness of the phenomena has led to the creation of a regulatory regime, which might be thematic, in the sense that each agreement focuses on a specific crime, but, nonetheless, is to a certain extent harmonized, as the international agreements share a series of common traits. First, the conventions have, to a certain extent, been modelled upon the 1988 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,312 which ‘laid the legal foundation for the international effort to combat crime from a financial perspective by establishing new offences . . . and developing new procedures for international cooperation’.313 To seek to curb transnational organized crime by attacking the money-management of criminality is an approach closely linked to the process of economic globalization.314 Second, the international financial criminal law conventions rely on measures derived from money laundering initiatives. Money laundering has been characterized as a ‘chameleon character’ regime, as measures derived from money laundering initiatives have been employed to combat drug trafficking, organized crime, and corruption.315 It has been forcefully argued that the emerging counter-terrorism financial enforcement regime is substantially derived from the process of establishing an anti-money laundering enforcement initiative.316 Still, money laundering measures, when applied to the criminal hypothesis of terrorism financing, have a markedly different role: namely that of tracing the destination of the funds, rather than their origin, as in the classic money laundering initiatives.317 A final characteristic common to all of these treaties is the establishment of the liability of legal persons for conduct amounting to the criminal activity proscribed by each treaty. The reason for this shift of attention towards corporate liability is twofold. On the one hand, corporate structures are becoming increasingly decentralized. Corporate decision-making 310

I Bantekas and S Nash, International Criminal Law (3rd edn, 2007) 233. See Statement by the Minister of Justice of the Czech Republic, quoted in Gilmore (n303) 19. 312 (opened for signature 20 December 1988; entered into force 11 November 1990) (1989) 28 ILM 493. 313 J Sollier, ‘The United Nations Security Council and the Effort to Combat Money Laundering and the Financing of Terrorism’ in W Muller and others (eds), Anti-Money Laundering: International Law and Practice (2007) 41–42. 314 M Pieth, ‘Criminalizing the Financing of Terrorism’ (2006) 4 JICJ 1075. 315 V Mitsilegas, ‘Countering the Chameleon Threat of Dirty Money: “Hard” and “Soft” Law in the Emergence of a Global Regime Against Money Laundering and Terrorist Finance’ in A Edwards and others (eds), Transnational Organised Crime, Perspectives on Global Security (2003) 195. 316 B Zagaris, ‘The Merging of the Counter-terrorism and Anti-money Laundering Regimes’ (2002) 34 L & Policy in Intl Bus 46; A  Gardella, ‘The Fight Against the Financing of Terrorism between Judicial and Regulatory Cooperation’ in A Bianchi (ed), Enforcing International Law Norms Against Terrorism (2004) 415. 317 Gardella (n316) 426. 311

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procedures by result become more complex, thus obstructing the attachment of responsibility to a certain individual for criminal financial activities and rendering corporations a safe vehicle for financial criminal networks. On the other hand, it is not uncommon for companies to deliberately become involved in financial crime.318 In this case, the target is to curb a corporate climate that would condone financial crimes. In both cases, the provision for corporate liability could be perceived as a deterrent, notwithstanding the theoretical debates revolving around its efficacy.319

c. Criminal liability of corporations for financial crimes Surveying the international financial criminal agreements, which include a provision on the liability of legal persons, one comes to the conclusion that they are essentially moulded on one of the two following instruments: the 1997 OECD Bribery Convention320 or the Second Protocol to the EU Convention on the Protection of the European Communities’ Financial Interests (Second Protocol).321 The OECD Bribery Convention deals with the liability of legal persons in two separate provisions:  Art 2, establishing the responsibility of legal persons, states that ‘Each Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official’. Art 3 on Sanctions, states 1. The bribery of a foreign public official shall be punishable by effective, proportionate and dissuasive criminal penalties. . . 2. In the event that, under the legal system of a Party, criminal responsibility is not applicable to legal persons, that Party shall ensure that legal persons shall be subject to effective, proportionate and dissuasive non-criminal sanctions, including monetary sanctions. . . 4. Each Party shall consider the imposition of additional civil or administrative sanctions upon a person subject to sanctions for the bribery of a foreign public official. Whereas all subsequent international financial criminal treaties basically mirror the formulation of Art 2 of the OECD Bribery Convention, their drafters have opted to include the general provision on responsibility of legal persons and the concomitant sanctions in a single provision.322

318 Cf M Pieth, ‘Article 2:  The Responsibility of Legal Persons’ in M Pieth (ed), The OECD Convention on Bribery: A Commentary (2007) 175–176. 319 Cf J Coffee, ‘Corporate Criminal Liability: An Introduction and Comparative Survey’ in A Eser and others (eds), Criminal Responsibility of Legal and Collective Entities (1999) 28–30. 320 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 21 November 1997 (opened for signature 18 December 1997; entered into force 15 February 1999) (1998) 37 ILM 1. 321 Second Council Protocol of 19 June 1997 to the Convention on the Protection of the European Communities’ Financial Interests [1997] OJ C221/12. 322 See Art 10 of the Council of Europe Convention on the Prevention of Terrorism (opened for signature 16 May 2005; entered into force 1 June 2007) CETS 196; Art 10 of the UN Convention

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It has been rightly argued that Art 2 has served as a ‘forerunner of a worldwide harmonization effort’.323 Yet despite constituting a ‘breakthrough’,324 Art 2 remains rudimentary in its conception. Its general formulation is owed to the fact that the drafters were ‘mindful . . . of national peculiarities’.325 The result is that the provision merely ‘imposes in very general terms’ an obligation on States Parties to adopt the necessary measures.326 Furthermore, Art 3 (2) of the OECD Bribery Convention gives States the option to avoid establishing corporate criminal liability if, in accordance with the principles of their legal order, criminal law is not applicable to corporations. Such possibility makes the obligation envisaged in the OECD Convention weaker ‘in terms of criminal dissuasiveness’.327 The Second Protocol, in its Art 3 (1), retains the formulation of the basic obligation in stating: ‘Each Member State shall take the necessary measures to ensure that legal persons can be held liable for fraud, active corruption and money laundering’. Nonetheless, it goes one step further in adding that legal persons are liable for such crimes if they were committed for their benefit by any person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on - a power of representation of the legal person, or - an authority to take decisions on behalf of the legal person, or - an authority to exercise control within the legal person, as well as for involvement as accessories or instigators in such fraud, active corruption or money laundering or the attempted commission of such fraud.

Art 3 (2) adds that legal persons shall be held liable furthermore ‘where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal person by a natural person under its authority’. It is true that with respect to the provisions of Art 3 (1) and (2) of the Second Protocol, and those mirroring their formulation,328 the legal fiction of the criminal liability of the legal person is somewhat clarified ‘as the provision allocates liability

on Transnational Organized Crime, UNGA Res 55/25, Annex I (entered into force 29 September 2003) UNTS; Art 26 of the UN Convention Against Corruption, UNGA Res 58/4, Annex (opened for signature 9 December 2003; entered into force 14 December 2005) (2004) 43 ILM 37; Art 6 of the Additional Protocol to the South Asian Association for Regional Co-operation, Regional Convention on Suppression of Terrorism (signed 6 January 2004; entered into force 12 January 2006), reprinted in UN, International Instruments related to the Prevention and Suppression of International Terrorism (3rd edn, 2008) 250; see also Art 9 of the Council of Europe Convention on the Protection of the Environment through Criminal Law (opened for signature 4 November 1998) CETS 172. 323 Pieth (n318) 176. 324 M Möhrenschlager, ‘Developments on the International Level’ in Eser (n319) 102. 325 Pieth (n318) 184. 326 Bantekas (n302) 12; cf Pieth (n318) 184, who finds the provisions of Arts 2 and 3 ‘not very articulate’. 327 Bantekas (n302) 12. 328 See Art 18 of the Council of Europe Criminal Law Convention on Corruption (opened for signature 27 January 1999; entered into force 1 July 2002) CETS 173; Art 22 of the Council of

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in accordance with the nature, involvement and position (of natural persons) of each actor in the offence’.329 Irrespective of the differences in formulation, both model provisions, and by implication all of the treaties based thereon, set forth an obligation of the State Party to the treaty to criminalize certain behaviour under its domestic law. This is underscored by the formulation of the provisions, which squarely place on States Parties the obligation to ‘adopt such measures as may be necessary’. The fact that the obligation rests on States exclusively is further underlined by the inclusion of the clause regarding the primacy of the principles of the domestic legal order, which results essentially in barring the criminalization of corporate conduct under domestic law in the first place. During the negotiation of relevant treaties, the insertion of such a ‘safeguard clause’ upholding the legal principles of the State Party was a condition sine qua non for the acceptance of any reference to the liability of legal persons.330 The reason for such a cautious approach is the variance of domestic legal systems regarding the ‘standard of liability’ of corporations under criminal law, not to mention the fact that in certain jurisdictions the corporation remains in any case beyond the reach of criminal law.331 This divergence has been the reason for an ambivalent attitude on behalf of a group of States towards international financial criminal law treaties. Suffice here to mention the reaction to Art 10 (2) of the UN Convention against Transnational Organized Crime (CATOC). The provision reflecting the diversity that exists within legal traditions allows States to choose between civil, criminal, and administrative liability of legal persons ‘subject to the legal principles’ of each State Party. Nonetheless, certain States still felt the need to append reservations to CATOC relating to the recognition of criminal liability of legal persons. Thus, some States reiterated in their reservations that criminal liability of legal persons was a concept alien to their national legislation,332 whereas others made a reservation to the effect that the implementation of the Convention had to conform to their national legislation.333 Jägers has argued that the OECD Bribery Convention and the Council of Europe Criminal Convention on Corruption serve as examples of corporations

Europe Convention on Action against Trafficking in Human Beings (opened for signature 16 May 2005; entered into force 1 February 2008) CETS 197; Art 10 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (opened for signature 16 May 2005; entered into force 1 May 2008) CETS 198; cf the formulation of Article 5 of the International Convention for the Suppression of the Financing of Terrorism, UNGA Res 54/109, Annex (adopted 9 December 1999; entered into force 10 April 2002). 329 Bantekas (n302) 13. 330 See D McLean, Transnational Organized Crime (2007) 127–128. 331 Cf M Pieth, ‘Criminal Responsibility of Legal and Collective Entities:  International Developments’ in Eser (n319) 114; Möhrenschlager (n324) 102; for a summary of the divergent national approaches see Coffee (n319) 13–25. 332 See the Reservations of Uzbekistan and Ecuador to the UN Convention Against Transnational Organized Crime, available at . 333 See the Declaration of Bolivia and the Statement of Belarus, available at .

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having ‘obligations at the international level’, although ‘the subjects of responsibility remain predominantly States’.334 Ratner, in the same vein, has argued that the OECD Bribery Convention is an effort by States to ‘[develop] international law creating binding obligations on corporations’.335 Yet, Ratner later on reaffirms that States in creating international financial criminal law treaties have ‘adher[ed] to the orthodox distinction between duties of governments under international law and duties of enterprises under domestic law, the treaty nonetheless mak[ing] clear that the responsibility of business is recognized and may be regulated by international law’.336 There exists an inherent contradiction in the argumentation of the two authors. They suggest that the ‘responsibility’ or ‘liability’ of the corporation operates under international law, despite the fact that the obligations created by the treaties bind States exclusively. Such arguments have to be rebutted since they create terminological confusion by mixing ‘international crimes’ with ‘crimes under international law’. An obligation under international law cannot in any way emerge solely by virtue of domestic law. Furthermore, a violation of such an obligation should logically result in the engagement of the corporation’s responsibility under international law. International financial criminal law treaties clearly establish ‘international crimes’. They plainly impose an obligation on the State to ensure that corporations may be held liable under domestic law. The bare minimum of an obligation binding directly upon corporations under international law is that it does not hinge on domestic law, which is not the case here. It is for these reasons that Bantekas has argued that ‘one cannot talk of international criminal corporate responsibility’ based on international financial criminal treaties alone.337 International financial criminal law treaties do require States to regulate corporate conduct. This obligation is a necessary key component of a realistic strategy to curb the emerging forms of financial criminality. Therefore, international financial criminal law treaties do not deviate from the foundational principle of individual criminal responsibility by recognizing international corporate criminal responsibility. The responsibility of the corporation operates exclusively under domestic law, and it is not necessarily of a criminal law nature. It is surprising to see this new generation of treaties employed as an argument for the recognition of corporate obligations under international law. As noted, the regulation of corporate conduct is a key component of this international regulatory system. What goes amiss is the plurality of instruments concluded in a relatively short span of time as a response to the threat that criminal activities pose post 9/11. This series of treaties should be seen as reaffirming international cooperation between States as an effective means of responding to the novel threats. The assumption that regulating non-State actors such as corporations efficiently necessitates their formal incorporation into the international legal order has been

334

N Jägers, Corporate Human Rights Obligations: In Search of Accountability (2002) 33. S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001-02) 111 Yale LJ 482. 336 Ratner (n335) 482. 337 Bantekas (n302) 13. 335

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turned on its head. On the contrary, the advent of international financial criminal law should be seen as a reassertion of State power in the transnational financial system against the challenge posed by corporations.338

3. Preliminary Conclusion International human rights and criminal agreements do not give rise to corporate obligations under international law. Although their somewhat abstract formulation has led scholars to argue the contrary, these agreements fall short of directly regulating corporate conduct. Still, this does not mean that they disregard corporate conduct altogether. Both under international human rights and criminal law, States assume obligations to regulate corporate conduct, albeit via the medium of domestic law. The dynamic interpretation of international human rights treaties has resulted in their horizontal application. As is most clearly reflected in the emerging doctrine of positive obligations, States are under an obligation to guarantee the enjoyment of human rights in the private relationships of individuals. Yet, horizontality is not direct, in the sense that corporations do not emerge as human rights addressees. Equally, under international financial criminal law, States are required to criminalize the conduct of corporations involved in the commission of the crimes prescribed in the treaties. Naturally, the conclusion of international financial criminal law treaties impacts on the operations of corporations. Yet, any obligations imposed on them are solely of a domestic law nature. The examination of international human rights and criminal law treaties goes to show that the challenges posed by corporate conduct may be addressed via international law, without corporations necessarily becoming addressees of international law rules.

338 M DaCosta Alleyne, ‘The “War on Terror” and the Resuscitation of State Power as an Anti-Corruption Strategy’ in Holmes (n308) 209.

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III Corporate Obligations under Customary International Law An account of corporate obligations under international law cannot be complete unless coupled with a detailed examination of corporate obligations arising under customary international law (hereinafter CIL). The preceding analysis of treaty law, which concluded in refuting the existence of treaty-based corporate obligations, serves to underscore States’ cautious attitude towards utilizing international agreements to directly bind corporations. Yet, such caution in the field of treaty law does not a priori forestall a foray into the field of CIL. Whereas the basic sources of international law, treaties, and custom are complementary in their functions, the two retain a separate existence.1 Besides, international custom does not need treaties as its support.2 The lack of corporate obligations under treaty law does not defeat the possibility that corporate obligations have been established by virtue of CIL. In fact, from a historic point of view, CIL appeared first, as it were. Most of international law evolved from customary law. And there still exist areas of international law, such as international responsibility, which by and large are governed by CIL. It is accepted that subjects of international law, in their capacity as such, are bound by any obligations incumbent upon them under general rules of international law.3 Yet, a suggestion that corporations are bound directly by CIL in their capacity as subjects of international law would be begging the question of the legal foundation of such customary corporate obligations. Corporations are not normally recognized as subjects of international law. Any measure of international legal personality accorded to them would flow from the existence of corporate obligations. In order to avoid such circular reasoning, one may explain the application of a CIL rule to a corporation on the basis of an analogy to the operation of treaty law:  States may enter an international treaty with the intention to create international obligations binding on persons other than States and this proposition 1

Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 96 [179]. C Tomuschat, ‘The Complementarity of International Treaty Law, Customary International Law, and Non-Contractual Law-Making’ in R Wolfrum and V Röben (eds), Developments of International Law in Treaty Making (2005) 404. 3 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) [1980] ICJ Rep 89–90 [37]. 2

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applies with equal force to rules of CIL. Indeed, there exists no rule in international law which is fundamentally opposed to the conduct of States giving rise to a customary rule regulating the conduct of a corporation. The foundation of customary corporate obligations remains the consent of States, which may elect to submit corporations to obligations derived from CIL. The present analysis is not concerned with an in-depth exposition of the methodological complexities of international custom. The focus is admittedly narrower and rests on whether corporations have become bearers of customary obligations in the fields of international human rights and criminal law. Nevertheless, it is necessary to make certain preliminary statements and hypotheses concerning CIL, on the basis of which the analysis will proceed. After all, ‘the view one takes of customary law, and particularly of the way it comes into existence, necessarily affects the view taken of the present and future part to be played by custom in developing the law’.4

1. The Formation of Customary International Law Any general practice of States accepted and observed as law may give rise to rules of CIL. In the terms of Art 38 (1) (b) of the ICJ Statute, CIL constitutes ‘evidence of a general practice accepted as law’. It is largely agreed upon that the two elements, namely general practice and the acceptance of such practice as legally required, prohibited, or allowed, are necessary and sufficient conditions for the emergence of a CIL rule.5

a. Practice The term ‘practice’ naturally refers to the actual conduct of States in connection with the issue regulated by the putative CIL norm. Such conduct may assume a variety of forms. Indeed, the material sources of customary rules are diverse and numerous. Practice contributing to the formation of custom logically comprises ‘physical’ acts of States. The relevance of ‘verbal’ acts for the process of custom formation has been refuted by D’Amato, who accepts that only ‘physical’ acts count.6 Still, this view appears unnecessarily narrow. There is no reason why unilateral ‘verbal’ acts of States should not be considered as practice for the purposes of custom formation when it is accepted that under certain conditions unilateral verbal declarations can in and of themselves produce binding obligations on States under international law.7 ‘Verbal’ acts essentially form part of State practice.8 For the purposes of custom 4

H Thirlway, International Customary Law and Codification (1972) 46. See North Sea Continental Shelf (Judgment) [1969] ICJ Rep 44 [77]; Nicaragua (n1) 108–109 [277]; cf G Van Hoof, Rethinking the Sources of International Law (1983) 87; A Pellet, ‘Article 38’ in A Zimmermann and others (eds), The Statute of the International Court of Justice (2006) 753. 6 See A D’Amato, The Concept of Custom in International Law (1971) 88. 7 Nuclear Tests (Judgment) [1974] ICJ Rep 473 [48]. 8 The ICJ itself has relied on ‘verbal acts’ when assessing the customary character of a rule in Nicaragua (n1) 107 [203]; cf M Mendelson, ‘The Formation of Customary International Law’ (1998) 272 RdC 206. 5

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formation, to express oneself is to act.9 Thus, State practice comprises ‘any act or statement by a State from which views can be inferred about international law’,10 such as national legislation11 and case law, the attitude of States at diplomatic conferences12 and international organizations,13 policy statements, and comments by governments on draft treaties. The value of each State act or statement depends on the circumstances:14 some may carry more weight than others, a distinction akin to that of admissibility and weight of evidence under the law of evidence.15 That certain behaviour, either an act or an omission, occurs is not sufficient to give rise eo nomine to a rule of CIL. Practice has to be qualified in a number of ways, which ‘taken together are the trademark of the customary process’.16 The two key problems are the intertwined problems of time and repetition. The ICJ has stressed that ‘the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law’.17 A customary norm may arise ‘even without the passage of any considerable period of time’.18 What appears to matter is the repetition of the relevant conduct within a given period of time. Additionally, the ICJ has required that, in order for a rule to emerge, practice has to exhibit certain constancy and uniformity. Alas, the standard has been formulated in a variety of manners. Whereas in North Sea Continental Shelf the ICJ was satisfied with a ‘virtually uniform’ State practice,19 in Nicaragua, it held that ‘[i]t is not to be expected that in the practice of States the application of the rules in question should have been perfect . . . ’.20 The Court added that it is sufficient, in order to deduce the existence of a rule, that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.21

9 M Kohen, ‘La pratique et la théorie des sources du droit international’ in SFDI (ed), La pratique et le droit international (2004) 89. 10 M Akehurst, ‘Custom as a Source of International Law’ (1974-75) 47 BYIL 10; cf M Bos, ‘The Identification of Custom in International Law’ (1982) 25 GYIL 22–23; L Ferrari Bravo, ‘Méthodes de recherche de la coutume internationale dans la pratique des états’ (1985) 192 RdC 261. 11 Cf the reliance of the ICJ on national legislation concerning the delimitation of the territorial sea in the Fisheries Case (Judgment) [1951] ICJ Rep 131. 12 Cf the reliance of the PCIJ on the ‘rule of unanimity’, ‘which is also in accordance with the unvarying tradition of all diplomatic meetings or conferences’ in Article 3, Paragraph 2, of the Treaty of Lausanne (Advisory Opinion) [1925] PCIJ Rep Series B 12, 30. 13 See Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 254–255 [70-71]. 14 I Brownlie, Principles of Public International Law (7th edn, 2008) 7. 15 See Mendelson (n8) 200. 16 17 Pellet (n5) 752. North Sea Continental Shelf (n5) 43 [74]. 18 North Sea Continental Shelf (n5) 42 [73]. See Brownlie (n14) 7, who argues that ‘no particular duration is required’. Cheng has taken this position to the extreme by arguing for a conception of ‘instant’ customary law, which appears to deny the relevance of the time factor, and by implication to minimize the significance of the element of State practice. See B Cheng, ‘United Nations Resolutions on Outer Space: “Instant” International Customary Law?’ (1965) 5 Indian JIL 23. Cheng’s argumentation has not gone undisputed. See Pellet (n5) 752. 19 20 North Sea Continental Shelf (n5) 43 [74]. Nicaragua (n1) 98 [186]. 21 Nicaragua (n1) 98 [186].

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Irrespective of the variance in formulation, it becomes obvious that there exists a minimum threshold for practice to generate a customary rule and that such threshold is intertwined with the question of the rule’s authority. As has been convincingly argued, ‘[i]t is necessary to show that a putative rule is rooted in the community, and not an ephemeral reflection of the views or aspirations of particular litigants or lawyers’.22

b. Opinio juris The existence of a constant practice by States does not ipso facto give rise to a CIL rule. Practice has to be coupled with opinio juris. As the ICJ stressed in North Sea Continental Shelf, the acts amounting to a settled practice ‘must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’.23 Yet, what matters is not what the legal fiction of the State believes in a literal sense, which is undiscoverable, but rather what the State says it believes, or what belief can be deduced from its conduct.24 Statements are ‘grist to the mill of State practice’ as they ‘explain or rationalize [conduct], protest or object to it’.25 In order to delineate the content of such belief, and prove the existence of a customary rule, the ICJ has relied, inter alia, on resolutions of international organizations. In Nicaragua, the ICJ focused on the attitude of States towards UNGA resolutions, and more prominently Resolution 2625 (XXV). The Court concluded that ‘the attitude referred to expresses an opinio juris respecting such rule’.26 Still, States’ attitude aside, the adoption of a resolution ‘affords an indication of [States’] opinio juris as to customary international law on the question’.27 In other cases, the ICJ has referred to the work of the ILC as a means of highlighting the existence of opinio juris.28 The aforementioned caveat regarding resolutions should also apply in the case of the work of the ILC. In assessing its legal value, one should consider not only what it says, but also what States have to say about it.29

c. The identification of customary rules Custom formation remains a ‘mysterious’ phenomenon.30 One of the main sources of confusion is the fact that custom is seen both as a material and a formal source 22

23 V Lowe, International Law (2007) 41. North Sea Continental Shelf (n5) 44 [77]. See Akehurst (n10) 36–37; ILA, ‘Final Report of the Committee:  Statement of Principles Applicable to the Formation of General Customary International Law’ (2000) 69 ILA Rep Conf 744. 25 Y Dinstein, ‘The Interaction between Customary International Law and Treaties’ (2006) 322 RdC 275, 278. 26 27 Nicaragua (n1) 100 [188]. Nicaragua (n1) 101 [191]. 28 See Gabčíkovo-Nagymaros Project (Judgment) [1997] ICJ Rep 40 [51]; Kasikili/Sedudu Island (Judgment) [1999] ICJ Rep 1075 [49]. 29 Pellet (n5) 758. 30 H Waldock, ‘General Course on Public International Law’ (1962) 106 RdC 41. 24

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of law. Thus, there is a conflation between the process of custom formation and the legal rule resulting from this process.31 Still, the moment of the formation of a customary rule cannot be ascertained, since ‘it is practically speaking intangible’.32 The question of when a customary rule emerges is ultimately a question of fact and not of theory.33 The affirmation of a customary rule occurs a posteriori once the criteria set out above have arguably been met. What the present analysis aspires to do is to deal with the legal issue of whether a customary corporate obligation has emerged at a given ‘critical’ moment. The traditional methodological approach to ascertaining custom consists in a ‘practice-plus-opinio juris’ approach:  customary rules are established through inductive reasoning, by identifying patterns of State practice, and then turning this empirical finding into ‘a normative projection for the future’.34 Henkin has described the traditional methodology of custom as follows: ‘the practice of States did not create [the law], state practice recognized the law as having happened’.35 The relevance of this traditional methodological approach for international human rights and criminal law has been challenged in theory.36 The reason is the transformation in the nature of States’ interaction on the international level. ‘Today States engage only exceptionally in gunboat diplomacy or in equivalent “real acts” but attack each other verbally . . . in international fora’.37 Thus, one has to rely more on ‘verbal’ acts, which are called upon to fulfil that function in relation to custom formation that the ‘physical’ act was called upon to fulfil in the past. The predominance of ‘verbal’ acts has led to a blurring of the rigid categorization of acts as either practice or opinio juris. ‘Verbal’ acts of States count as State practice but at the same time it follows that they reflect States’ legal convictions.38 Indeed, States themselves in their interaction on customary law do not adhere exclusively to ‘dogmatically determined types of acts’.39 It has been argued that this change in the way States perceive custom formation may ultimately lead first to the creation of an opinio juris, which then has to be verified in practice.40 By implication, there is a shift of emphasis from practice to opinio juris.41 A chronological reversal of the role of the two elements of custom takes place: an inquiry into the emergence of a rule may consist exactly in deductively ascertaining whether ‘the existence of the rule in the opinio juris of States is confirmed in practice’.42 31

See P-M Dupuy, ‘L’unité de l’ordre juridique international’ (2002) 297 RdC 158. K Wolfke, Custom in Present International Law (2nd edn, 1993) 54. 33 RY Jennings and A Watts (eds), 1 Oppenheim’s International Law (1992) 30. 34 B Simma and P Alston, ‘The Sources of Human Rights Law’ (1988-89) 12 AYIL 89. 35 L Henkin, ‘Human Rights and State Sovereignty’ (1995-96) 25 Georgia JICL 37. 36 See O Schachter, ‘International Law in Theory and Practice’ (1982) 178 RdC 334; T Meron, ‘International Law in the Age of Human Rights’ (2003) 301 RdC 385. 37 K Zemanek, ‘The Legal Foundations of the International System’ (1997) 266 RdC 166. 38 J-M Henckaerts and others (eds), 1 Customary International Humanitarian Law (2005) xl; I Scobbie, ‘The Approach to Customary International Law in the Study’ in E Wilmshurst and S Breau (eds), Perspectives on the ICRC Study (2007) 24. 39 Zemanek (n37) 163. 40 R-J Dupuy, ‘Declaratory Law and Programmatory Law’ in R Akkerman and others (eds), Declarations on Principles: A Quest for Universal Peace (1977) 249. 41 P Weil, ‘Le droit international en quête de son identité’ (1992) 237 RdC 172–173. 42 Nicaragua (n1) 98 [184]; cf Meron (n36) 386. 32

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Yet, this reversal in the mechanics of custom formation does not overturn the fundamental requirement that both elements as described above be present for a rule to emerge under CIL.43 Opinio juris alone cannot remedy ambiguous practice or amplify restricted or exceptional practice and lead to the production of a customary rule. As Scobbie has lucidly explained, ‘the normative canonisation of propositions on the basis of restricted practice raises an obvious danger of the consolidation of norms whose implications have not been fully thought out or thought through’.44 In this respect, there exists a strong presumption against change in the law,45 on which the present analysis is premised. One needs to take into consideration whether the putative emerging CIL rule modifies or terminates a previous CIL rule. The better established the latter rule is, the greater the quantity of practice needed to overturn or modify it, as opposed to a CIL rule emerging in an unregulated field of international intercourse.46 This is logical considering that an existing CIL rule equals the accumulation of a general and constant practice accepted as law. In order for this rule to be overturned or modified, there has to exist at least a comparably general and constant practice accompanied by the corresponding opinio juris. If such widespread and consistent practice exists, a presumption may arise in favour of the existence of opinio juris. The latter is largely enfolded within practice.47 On the contrary, sporadic or inconsistent practice cannot terminate or modify an existing rule of CIL. Traditionally customary human rights law is conceived predominantly as targeting State action,48 whereas customary international criminal law is perceived as addressed exclusively to individuals.49 The following analysis seeks to assess the extent to which the presumption against change in the law has been rebutted and corporations have emerged as addressees of human rights or international criminal law rules under CIL.

2. International Human Rights Law The extensive case law of human rights monitoring bodies provides a clear picture regarding the status of corporations under human rights treaties. The situation under CIL is somewhat more nebulous. Corporations cannot be all too easily excluded from the ambit of human rights law. Whereas human rights law in principle addresses the conduct of States, international human rights instruments include textual references to the duties of persons other than States, thus potentially encompassing corporations. Yet, the normative character and the content 43

44 45 Schachter (n36) 335. Scobbie (n38) 28–29. Akehurst (n10) 19. Akehurst (n10) 19; Wolfke (n32) 65; E Suy, Les actes juridiques unilatéraux en droit international public (1962) 263. 47 M Sørensen, ‘Principes de droit international public’ (1960) 101 RdC 51; O Schachter, ‘Entangled Treaty and Custom’ in Y Dinstein (ed), International Law at a Time of Perplexity (1989) 731; Dinstein (n25) 297. 48 See L Henkin, The Age of Rights (1990) 3. 49 See R Cryer and others, An Introduction to International Criminal Law and Procedure (2007) 1. 46

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of these duties are subject to debate. This uncertainty in the law has allowed for contradicting assertions to be made in theory both including50 and excluding51 corporations from the ambit of customary human rights law.

a. The Universal Declaration of Human Rights The contemporary debate on customary corporate human rights obligations can essentially be stripped down to two provisions of the Universal Declaration of Human Rights (UDHR), namely its Preamble and Art 29, and by implication to the rationale behind those provisions. On the one hand, corporations presumably bear customary human rights obligations because of their status as ‘organs of society’. On the other hand, corporations arguably may be bound by general duties forming an intrinsic part of human rights law. An inquiry into the UDHR as a source of international law obligations presupposes an assessment of the legal nature of the UDHR, but also of its significance as part of evolving customary law. One then needs to turn to the two aforementioned key UDHR provisions, analyse the scope of the duties they set out, and assess whether they ultimately bind corporations.

(1) Legal nature of the UDHR The UDHR was adopted and proclaimed as a UN General Assembly resolution.52 It has been accepted that General Assembly resolutions do not in principle have a legally binding effect, as they do not constitute sources of international law.53 Equally, the UDHR was not adopted as a statement of law or of legal obligations, but as a statement of non-binding principles. The drafting history of the UDHR corroborates this suggestion: the unanimity of States in stressing the Declaration’s significance was accompanied by an equally general repudiation of the idea that the UDHR produced any legal obligations.54 According to the UN itself, the status of the UDHR in 1948 was that of a ‘manifesto with primarily moral authority’.55 This description reflects the sentiments of international lawyers towards the normative implication of the UDHR from the time of its adoption onwards.56 50 See B Stephens, ‘The Amorality of Profit’ (2001) 20 Berkeley JIL 77–78; N Jägers, Corporate Human Rights Obligations (2002) 40–41; A  Wilson, ‘Beyond Unocal’ in O De Schutter (ed), Transnational Corporations and Human Rights (2006) 53. 51 CM Vázquez, ‘Direct vs. Indirect Obligations under International Law’ (2004-05) 43 CJTL 947. 52 (10 December 1948) UN Doc A/RES/3/217. 53 See the discussion in R Higgins, Problems and Process (1994) 24–25; Van Hoof (n5) 180–181. 54 H Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 BYIL 356; cf R Cassin, ‘La déclaration universelle et la mise en œuvre des droits de l’homme’ (1951) 79 RdC 289; E Schwelb, ‘The Influence of the Universal Declaration of Human Rights on International and National Law’ (1959) 53 ASIL Proc 218. 55 UN, The International Bill of Human Rights (1985) 1. 56 See J Kunz, ‘The United Nations Declaration of Human Rights’ (1949) 43 AJIL 321; H Kelsen, The Law of the United Nations (1950) 39–40; B Cheng, ‘International Law in the United Nations’ (1954) 8 Ybook of World Affairs 185; CW Jenks, Human Rights and International Labour Standards (1960) 13.

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A separate question is whether the UDHR at the time of its adoption reflected or crystallized CIL and in this sense constituted a source of international law. Considering the history of the internationalization of human rights, one has to rebut the proposition that the UDHR at the time of its adoption reflected CIL. This proposition flies in the face of the fact that prior to their internationalization via the UDHR, human rights, with the exception of labour and minority rights, were considered to fall within the ambit of domestic jurisdiction.57 Besides, to recognize the UDHR as reflecting customary law would go against the expressed intention of States to consider it non-binding.58

(2) The UDHR as evolving customary law Whilst it is correct to assume that the UDHR was a non-binding instrument when adopted by the UNGA, it is equally correct to assume that over time it has come to be accepted as a normative instrument in its own right, spelling out human rights obligations.59 The UDHR is the cornerstone of international human rights law and as such it has contributed to the development of customary rules of human rights binding on all States.60 Still, the question whether the UDHR in its entirety forms part of CIL is beyond the scope of the present chapter, which is solely concerned with ascertaining the customary nature of the Preamble and Art 29 UDHR. It is accepted that principles included in non-binding international documents may evolve into rules of CIL.61 That a non-binding legal form was chosen to clothe the UDHR in the first place does not mean that it cannot over the course of time acquire legal force as part of CIL. Of course, in order for this transformation to take place, two conditions must be fulfilled. The principle included in the resolution must have the characteristics of a legal rule. Besides, there must be sufficient evidence of State practice and opinio juris on the basis of which a claim may be made that a customary rule has emerged. As noted above, in the field of human rights law, for the purposes of affirming the emergence of a CIL rule, one has to rely predominantly on verbal acts of State.62

b. ‘Organ of society’ status The Preamble to the UDHR proclaims the UDHR to be a common standard for achievement for all peoples and all nations, to the end that every individual and every organ of society . . . shall strive by teaching and education to promote

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58 Cf Lauterpacht (n54) 365. Schachter (n36) 337. T Buergenthal, ‘The Normative and Institutional Evolution of International Human Rights’ (1997) 19 HRQ 708. 60 Henkin (n48) 17. 61 See C Chinkin, ‘The Challenge of Soft Law’ (1989) 38 ICLQ 857. 62 Schachter (n36) 336; Jenks (n56) 13–14. 59

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respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance. . .

The significance of the Preamble lies in the fact that it envisages human rights as extending beyond their traditional State-centred function by entailing a variety of duties binding on persons other than the State. On the face of it, the term ‘organ of society’ logically comprises corporations. The term ‘organ’ refers to ‘a person, body of people, or thing by which some purpose is carried out’.63 Corporations are a legal fiction through which the purpose of profit maximization is carried out, and to this extent they constitute ‘organs of society’ in a literal sense. Yet, any ‘organ of society’ does not ipso facto become a human rights addressee. In order to assess the extent of the obligations imposed by the UDHR Preamble on ‘organs of society’ one has to scrutinize the actual scope of the clause. The cited clause has a two-fold purpose. On the one hand, it stresses that the ‘universal and effective recognition’ of human rights shall be secured by national and international ‘progressive measures’. The obligation to resort to the measures necessary is logically addressed to States.64 Such a conclusion is validated by the UDHR travaux préparatoires, which suggest that one of the rationales behind the UDHR adoption was to spark off legislative action in the field of human rights,65 a task normally undertaken by States. The structure of the UDHR itself provides a similar argument. Should one pit the cited Preamble paragraph against the paragraph preceding it, which reaffirms that ‘Member States have pledged themselves to achieve . . . the promotion of universal respect for and observance of human rights’, it is clear that the bearers of the obligation to take the necessary measures to secure observance of human rights are in principle only States.66 On the other hand, the UDHR calls upon individuals and ‘organs of society’ to promote respect for human rights through ‘teaching and education’. Thus, apart from its legislative purpose, the proclamation of the UDHR as a ‘common standard of achievement’ has an explicit educational goal. As Morsink notes, ‘the document was meant to be used as an educational text to tell people about all the inherent rights they already have’.67 As such the Preamble has hortatory value and falls short of establishing a legal obligation. This can also be gleaned from its actual formulation: the organs of society are not obliged to promote respect for human rights. The UDHR appeals to them to ‘strive’ to promote such respect. This wording suggests an intention to establish a moral duty, as opposed to a legal obligation.68 But even if we accept for the sake of argument that a legal obligation were established, one needs to distinguish between the obligation of ‘organs of society’ 63 According to the definition of the Oxford English Dictionary, available at . 64 65 Kelsen (n56) 39. J Morsink, The Universal Declaration of Human Rights (1999) 323. 66 N Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’ in K Mahoney and P Mahoney (eds), Human Rights in the Twenty First Century (1993) 306. 67 Morsink (n65) 323–324. 68 M Koskenniemi, ‘The Preamble of the UDHR’ in G Alfredsson and A Eide (eds), The Universal Declaration of Human Rights (1999) 33; Vázquez (n51) 942.

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to strive to promote respect for human rights through education and teaching and the obligations of States to protect and respect human rights. The duty imposed on ‘organs of society’ is far less demanding than the human rights obligations imposed on States. ‘Organs of society’ are called upon to take educational measures towards the satisfaction of the ultimate goal, which is the respect of human rights. A textual interpretation of the UDHR suggests that its drafters believed that ‘organs of society’ have a certain role to play with regard to human rights, albeit that role is an educational and promotional one. In no way was the role of non-State actors in the field of human rights considered to be comparable to that of States. The issue of the human rights obligations of ‘organs of society’ in the terms of the UDHR lay dormant for decades. Any reference to ‘organs of society’ in subsequent human rights treaties was dropped. The question was reprised during the drafting of the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (hereinafter UN Norms).69 The UN Norms were intended as a legally binding code of conduct for corporations and purportedly restated a wide range of international law obligations, including human rights obligations, binding on corporations.70 The UN Norms in their third Preamble paragraph state that ‘transnational corporations, and other business enterprises, as organs of society, are also responsible for promoting and securing the human rights set forth [in the UDHR]’. The return to the concept of ‘organs of society’ was justified on the basis of the argument that the UDHR ‘places responsibility on both Governments and other organs of society for affording these rights’.71 Still, the scope of the Preamble of the UN Norms is wider than that of the UDHR. The reference to ‘organs of society’ in the UDHR did not elevate them to the status of human rights addressees or grant them any responsibility in securing human rights. The obligations assumed by non-State actors and States under the UDHR Preamble were not comparable or even alike. Nonetheless, if one considers the nature and scope of the UN Norms as an initiative restating existing obligations of corporations under international human rights law, it is logical that the scope of the duties of ‘organs of society’ is wider. The rationale behind the drafting of the UN Norms after all was that ‘business enterprises have increased their power in the world. With power comes responsibility. Hence, there is a need to consider what human rights duties should be expected of companies’.72 In other words, the increased economic power of corporations, which may even compare to that of States, necessitates that their function with

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(26 August 2003) UN Doc E/CN.4/Sub.2/2003/38/Rev.2. D Weissbrodt and M Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (2003) 97 AJIL 912. 71 Sub-Commission on the Promotion and Protection of Human Rights, ‘Principles Relating to Human Rights Conduct of Companies’ (25 May 2000)  UN Doc E/CN.4/Sub.2/2000/WG.2/ WP.1, 5. 72 Principles Relating to Human Rights Conduct of Companies (n71) 4. 70

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respect to human rights be assimilated to the function of States as human rights addressees.73 A preliminary objection to employing the Norms’ Preamble as the basis of corporate obligations under CIL derives from the formulation of the clause per se. In order for a principle to harden into a rule of CIL it has to exhibit the basic characteristics of a legal rule: brevity, succinctness and clarity.74 The Preamble to the Norms does not set out any specific or concrete obligations binding on corporations, apart from an abstract statement that corporations are responsible for promoting and securing human rights. It is hard to see how this clause can serve as a building block in the process of establishing a legal rule. At most, to affirm the customary nature of the Preamble to the Norms would lead to an acknowledgment that corporations may serve as addressees of human rights obligations without clarifying which human rights obligations these would be. What one needs to consider at this point is whether this expansive reading of the human rights obligations of corporations arising from their status as ‘organs of society’ actually corresponds to an emerging rule of CIL. In other words, one needs to assess the extent to which States have moved towards explicitly affirming corporations as human rights addressees under CIL. This presupposes an inquiry into the legal nature of the UN Norms themselves. Shortly after their adoption,75 the Commission on Human Rights stated that the UN Norms had no legal standing, and by implication no binding effect.76 The UN Norms’ lack of legal status was reaffirmed in a series of submissions made by State representatives to the Office of the High Commissioner for Human Rights (OHCHR), which was tasked to hold a Consultation Round on the question of standards relating to corporate responsibility with regard to human rights.77 Their lack of legal status negates any impact that the UN Norms themselves could have on custom formation. Resolutions of international organizations do have a normative value in the process of custom formation, even if they are not binding: they can provide evidence for the establishment of a rule or the emergence of an opinio juris.78 Yet, a resolution, which has unequivocally been considered as devoid of legal significance, can have little normative weight. Consequently, the Norms fall short of crystallizing a rule of CIL.

73 Cf J Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 VJTL 802; D Aguirre, ‘Multinational Corporations and the Realisation of Economic, Social and Cultural Rights’ (2004-05) 35 CalWILJ 54. 74 C Tomuschat, ‘International Law:  Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 RdC 353. 75 Sub-Commission on the Promotion and Protection of Human Rights Res 2003/16 (13 August 2003) UN Doc E/CN.4/Sub.2/2003/L11. 76 CHR 2004/116 (22 April 2004) UN Doc E/CN.4/DEC/2004/116. 77 The State submissions to the Office of the High Commissioner for Human Rights on the Responsibilities of Transnational Corporations can be found at . Reference will hereinafter be made to ‘OHCHR Submissions’. For an explicit rejection of the legal status of the Norms, see the submissions of Canada, 2; EU Member States, 9; Switzerland, 2; the United States, 1. 78 See Legality of the Threat or Use of Nuclear Weapons (n13) 254 [70].

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Outside the context of the UN Norms, one should still examine the extent to which State practice lends support to the emergence of a rule of CIL, according to which corporations bear human rights obligations due to their ‘organ of society’ status. State practice is limited as evidenced by the abovementioned fact that the ‘organ of society’ clause was dropped from subsequent international human rights treaties. Turning anew to the statements made by State representatives to the OHCHR Consultation Round, it becomes clear that States refuted the existence of corporate obligations derived from ‘organ of society’ status both on legal and policy grounds. On the one hand, EU Member States opined in their common submission that ‘[the UDHR Preamble] does not constitute direct legal obligations for companies under human rights law’.79 On the other hand, this refusal to acknowledge the Declaration Preamble as a source of corporate obligations conveys a rejection of the proposed conflation between States and corporations with respect to their function as human rights addressees.80 This last point has been addressed by the Special Representative of the Secretary-General on Human Rights and Transnational Corporations. The Special Representative has convincingly argued that ‘[corporations] are not a microcosm of the entire social body’ and therefore, ‘by their very nature . . . [they] do not have a general role to play in relation to human rights like States’.81 Thus, the position of corporations under human rights law cannot and should not simply mirror that of States. The core legal obligation of corporations remains the obligation to respect the laws of the countries in which they do business.82 It becomes apparent that the status of corporations as ‘organs of society’ both under the UDHR and the UN Norms does not ipso facto turn them into human rights addressees under CIL. On the contrary, relevant State practice is scant. What is more, States expressing themselves on the matter have explicitly rebutted the argument that due to their status corporations have become bound by human rights.

c. ‘Duty’ clauses One of the key provisions when dealing with human rights duties of persons other than States is Art 29 (1) UDHR, which reads: ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’. The scope of the clause appears quite far-reaching. The term ‘everyone’ arguably encompasses corporations. Thus, Art 29 (1) UDHR could serve as the legal foundation of corporate human rights obligations under CIL.

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OHCHR Submission of EU Member States, 2. OHCHR Submission of the United Kingdom, 1; cf Norway, 2, the United States, 2. 81 ‘Interim Report of the Special Representative of the Secretary-General on the Issues of Human Rights and Transnational Corporations and Other Business Enterprises’ (22 February 2006) UN Doc E/CN.4/2006/97, 18. 82 OHCHR Submissions of Australia, 1; Canada, 1; Croatia, 2; EU Member States, 2; Norway, 2; Philippines, 1; Syria, 1; the United States, 2. 80

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Art 29 (1)  UDHR affirms that persons have general duties with respect to human rights. Yet, proposals to make explicit the precise scope of the ‘duties to the community’ were rejected during the drafting of the UDHR. One reason was the fear that a provision for clearly formulated duties under the UDHR could fall prey to the hands of abusive governments.83 Another reason was the disagreement as to the nature of the duties referred to in Art 29 (1) UDHR. During the drafting debates, numerous duties were proposed for consideration, such as ‘loyalty to the State’, ‘obedience to law’, and ‘exercise of a useful activity’.84 Yet, whereas the nature of the proposed obligations varied, at no point during the drafting of the UDHR was it suggested that the duties under Art 29 (1) consist in legal obligations mirroring those of States under human rights law. The drafters of the UDHR did not have an intention to make a human rights addressee out of every non-State actor by referring to ‘duties to the community’. Provisions on ‘duties’ are included in the majority of international human rights agreements. Still, as argued above in the context of human rights treaty law, the duties envisaged are predominantly those of the individual.85 Besides, the legal significance of duty clauses has been diluted, rather than bolstered, by the adoption of human rights treaties.86 Human rights treaties duty clauses replicating the formulation of Art 29 (1) UDHR propagate a generic concept of duties, wanting in clarity, which does not give rise to concrete enforceable legal obligations binding on corporations under human rights law.87 If we consider the adoption of treaties as evidencing State practice, then such practice suggests a distancing from the concept of ‘duties’ under human rights rather than an affirmation of obligations on persons other than States. The same conclusion is reached if one surveys the few relevant statements by State officials in international organizations. In a Study undertaken by the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, which focused on the content and scope of Art 29 UDHR,88 a number of States refuted the existence of human rights obligations binding on persons other than States on two grounds. The concept as such was alien to certain States since their constitutions or legislation did not include such obligations.89 Besides, States felt that the duties of the individual to the community did not need institutionalized safeguards in the same way as human rights did.90

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T Opsahl and V Dimitrijevic ‘Articles 29 and 30’ in Alfredsson and Eide (n68) 638. See ICHRP, Taking Duties Seriously (1999) 25. 85 See earlier at 23. 86 See earlier at 24. 87 In his ‘Minimum Humanitarian Standards’ Report, the UN Secretary-General suggested that it is unclear whether human rights treaties’ ‘duty’ clauses produce any legal obligations on individuals regarding human rights violations. See ‘Minimum Humanitarian Standards’ (5 January 1998) UN Doc E/CN.4/1998/87 [62]. 88 Published as E-I Daes, Freedom of the Individual under Law:  an Analysis of Article 29 of the Universal Declaration of Human Rights (1990). 89 See Comments by Austria, in E-I Daes (n88) 21; Israel, in E-I Daes (n88) 22; Mauritius, in E-I Daes (n88) 26; Luxembourg, in E-I Daes (n88) 26. 90 See Comment by the Federal Republic of Germany, in E-I Daes (n88) 23. 84

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The Commission on Human Rights encountered the same objections by States during the drafting of its ‘Human Rights and Human Responsibilities’ Report. The Special Rapporteur noted a ‘clear division’ between ‘developed States “of the North” ’ and States of the ‘underdeveloped “South” ’ insofar as the former opposed the formal establishment of any correlation between human rights and responsibilities of persons other than States under human rights law.91 The controversial nature of the question of potential human rights obligations of corporations is most clearly evidenced by the aforementioned OHCHR Consultation Round, which took place following the adoption of the Norms. The majority of States expressly stated that the responsibility to uphold human rights lies with States.92 As the EU Member States noted, ‘the Covenants, Conventions and Declarations that lay at the basis of human rights responsibilities and duties have been negotiated, signed and ratified by States’.93 States appear to stand by the traditional understanding of human rights as limits to State power and at the same time to exclude corporations from the ambit of human rights addressees under international law. Taking into consideration the abstract formulation of Art 29 (1) UDHR and the explicit reaffirmation by a number of States of the state-centred nature of human rights, one has to reject the proposal that Art 29 (1) UDHR has given rise to human rights obligations binding directly on corporations under CIL.

d. Corporate responsibility to respect human rights It should come as no surprise that following States’ criticism of the UN Norms, Professor Ruggie, in his capacity as the UNSG Special Representative on Human Rights and Transnational Corporations, decided to chart a completely novel approach to the conundrum. On 22 February 2006, Ruggie submitted to the Commission on Human Rights an Interim Report, wherein he launched an attack on the UN Norms concluding that ‘[w]hat the Norms have done, in fact, is to take existing State-based human rights instruments and simply assert that many of their provisions now are binding on corporations as well. But that assertion itself has little authoritative basis in international law—hard, soft, or otherwise’.94 He then went on to note that under customary international law, ‘emerging practice and expert opinion increasingly do suggest that corporations may be held liable for committing, or for complicity in, the most heinous human rights violations amounting to international crimes . . . [n] one of these changes, however, support the claim . . . that international law has been transformed to the point where it can be said that the broad array of international human rights attach direct legal obligations to corporations’.95

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‘Human Rights and Human Responsibilities’ (17 March 2003) UN Doc E/CN.4/2003/105 8. OHCHR Submissions of Australia, 1; Canada, 1; EU Member States, 1; Germany, 1; Norway, 2; the United Kingdom, 1; the United States, 2. 93 OHCHR Submission of EU Member States, 2. 94 95 Interim Report (n81) [69]. Interim Report (n81) [60] and [64]. 92

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In his 2008 Report, the Special Representative proposed a new framework, which eventually became the foundation of his mandate, the ‘Protect, Respect and Remedy’ framework. This framework is premised on three core principles:  ‘the State duty to protect against human rights abuses by third parties . . . the corporate responsibility to respect human rights; and the need for more effective access to remedies’.96 The State duty to protect human rights evokes conceptions of horizontality and essentially mirrors the international obligations of States to uphold human rights in the relationships between individuals. Nonetheless, one should here make note of the fact that the Special Representative chose to speak of a State ‘duty’ as opposed to an ‘obligation’, which may be an additional indication of his willingness to propose a framework that is not embedded in traditional international human rights law doctrine. As regards corporations, they assume a ‘responsibility to respect human rights’. According to the Report, this ‘baseline responsibility of companies’ operates ‘in addition to compliance with national laws’.97 Moreover, the responsibility of corporations exists independently of States’ duties and its scope is ‘defined by social expectations’.98 The concept of the ‘corporate responsibility to respect’ elicited a variety of concerns by corporate representatives, who required that its normative content be further clarified. Thus, in a later Report, the Special Representative made the following remarks. At first, the use of the term ‘responsibility’ as opposed to ‘duty’ ‘is meant to indicate that respecting rights is not an obligation that current international human rights law generally imposes on companies, although elements may be reflected in domestic laws’.99 The corporate responsibility to respect is a ‘well established and institutionalized social norm’.100 Because companies can affect virtually the entire spectrum of internationally recognized rights, the scope of this social norm speaks to all such rights.101 The final question then is the manner in which corporations may discharge their responsibility to respect. According to the Special Representative, corporations are called upon to exercise ‘human rights due diligence’, which comprises four key components, namely (a) a statement of human rights policy, articulating the corporation’s commitment to respect human rights, (b) a periodic assessment of actual and potential human rights impact of company activities and relationships, (c) integrating the commitments and assessments into internal control and oversight systems, and (d) tracking and reporting performance.102 These fundamental concepts ultimately found their way into the ‘Guiding Principles on Business and Human Rights’, which the Special Representative 96 ‘Protect, Respect and Remedy:  a Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5 [9]. 97 Protect, Respect and Remedy (n96) [54]. 98 Protect, Respect and Remedy (n96) [54 and 55]. 99 ‘Business and Human Rights:  Further Steps toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (9 April 2010) UN Doc A/HRC/14/27 [55]. 100 ‘Business and Human Rights: Towards Operationalizing the “Protect, Respect, and Remedy” Framework’ (22 April 2009) UN Doc A/HRC/11/13 [48]. 101 Further Steps (n99) [59]. 102 Further Steps (n99) [83].

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presented to the Human Rights Council at the lapse of his mandate.103 In his introduction to the Guiding Principles, the Special Representative reiterated that the Principles’ ‘normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template’.104 He also noted that the Principles ‘are not intended as a tool kit, simply to be taken off the shelf and plugged in . . . [w]hen it comes to means for implementation, therefore, one size does not fit all’.105 One should now turn to assessing the normative character of the ‘corporate responsibility to respect human rights’, as identified and analysed in the Reports of the Special Representative. It becomes obvious that the latter, from the beginning of his mandate onwards, has steered clear of employing concepts cognate to international human rights law. The core idea is that corporations do not function like States and therefore they should not be assimilated to States in terms of human rights protection. A wholesale application of international human rights law in the corporate sphere would not move the agenda forward. After all, the Representative noted in various Reports that corporations have not emerged as direct addressees under international human rights law. Therefore, it is clear that the ‘corporate responsibility to respect human rights’ does not carry an international law pedigree and does not intend to impose international law obligations on corporations. That said, the ‘corporate responsibility to respect’ is not a ‘law-free zone’ as it does not absolve, but it builds upon the obligation of corporations to comply with the national legislation of the State in which they operate. Ruggie’s conclusion on the lack of international human rights law obligations binding on corporations corresponds to the current state of international custom. There exists no general practice, let alone a uniform one, which would justify a different conclusion. Statements made by State representatives, considered as ‘verbal’ acts evidencing practice, exhibit a marked reluctance on behalf of States to recognize any human rights obligations binding on corporations under international law. Besides, one needs to take into account the presumption against change in the law: the better established a rule is, the greater the quantity of practice needed to overturn it. In the present case, arguing for corporate obligations under customary international human rights law equals arguing for revisiting the state-centred foundations of international human rights. One may pause to consider the quantity of practice needed to modify the idea that human rights exclusively target State action. State practice does not even indicate an intention on behalf of States in the first place to reconsider the state and function of international human rights law.

103 ‘Guiding Principles on Business and Human Rights:  Implementing the United Nations “Protect, Respect and Remedy” Framework’ (21 March 2011) UN Doc A/HRC/17/31. The Guiding Principles were endorsed by the Human Rights Council by virtue of Resolution 17/4 ‘Human Rights and Transnational Corporations and other Business Enterprises’ (6 July 2011)  UN Doc A/HRC/ RES/17/4. 104 Guiding Principles (n103) [14]. 105 Guiding Principles (n103) [15].

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e. Jurisdiction as the normative threshold of human rights obligations The suggestion that customary corporate human rights obligations have not yet emerged under international law may be a valid suggestion from the standpoint of positive law, yet it fails to address the normative considerations behind recognizing an entity as an addressee of human rights norms. Proponents of corporate human rights obligations espouse an ‘impact-based reasoning’.106 The essence of this reasoning is that power should entail responsibility. Corporations have accrued enough power to challenge that of sovereign States. Thus, their conduct may severely impact individual and group human rights. In order to curb the potential impact of corporate conduct on the enjoyment of human rights, corporations should be recognized as human rights addressees under international law.107 Still, the conduct of any person or group of persons in ordinary social life has some influence and may impact on others’ rights. This should not be taken to mean that ‘every causal factor hindering the enjoyment of human rights is a violation thereof ’.108 Clearly, the essence of human rights obligations under international law lies elsewhere and mere impact on the enjoyment of human rights due to power is in itself not a sufficient condition to justify the imposition of international human rights obligations. Guidance as to the rationale behind the imposition of human rights obligations under international law may be sought in the text of international human rights instruments. The majority of these instruments establish an obligation on States Parties to ‘respect’ and/or ‘ensure’ human rights ‘within their jurisdiction’.109 Breaches of this obligation to respect and secure human rights are the default cases perceived as human rights violations. Yet, it is from the term ‘jurisdiction’ that one may derive the necessary conditions for recognizing an entity as a human rights addressee under international law. Thus, ‘jurisdiction’ in the sense of human rights treaties may serve as a normative threshold above which international human rights obligations emerge.110

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F Megret and F Hoffman, ‘The UN as a Human Rights Violator’ (2003) 25 HRQ 321. A Clapham, Human Rights in the Private Sphere (1993) 137; S Ratner, ‘Corporations and Human Rights’ (2001-2) 111 Yale LJ 469; Paust (n73) 802. 108 Megret and Hoffmann (n106) 322. 109 See Art 2 (1) ICCPR; Art 1 ECHR; Art 1 (1) ACHR; Art 2 (1) Convention on the Rights of the Child (adopted 20 November 1989; entry into force 2 September 1990) 1577 UNTS 3. The ICESCR lacks a general clause on the scope of its application, comparable to that of Art 2 (1) ICCPR. Yet, the ICJ in the Wall Opinion appears to suggest that the ICCPR jurisdiction test applies equally to the ICESCR, at least as regards its extraterritorial application. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 180–181 [112] (hereinafter Wall). 110 In the words of the ECtHR, ‘The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention’. ECtHR, Al-Skeini and others v United Kingdom App no 55721/07 (2011) [130]. Cf M Milanovic, Extraterritorial Application of Human Rights Treaties (2011) 19. 107

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Under general international law, the rules of ‘jurisdiction’ serve to determine States’ lawful ‘competence’111 or ‘entitlement’112 to exercise their legal authority over a particular situation. The same term serves a further purpose in human rights law:  it determines the applicability of human rights rules to a given State conduct.113 The two conceptions of ‘jurisdiction’ are related but they should not be conflated.114 First and foremost, the concept of ‘jurisdiction’ in human rights treaties has a spatial facet. As the ICJ held in the Wall Opinion, jurisdiction under the ICCPR is ‘primarily territorial’.115 Similarly, the ECtHR held that the jurisdiction of States for the purposes of the ECHR is ‘presumed to be exercised normally throughout the State’s territory’.116 These judicial pronouncements reflect the default situation, according to which a State enjoys plenary jurisdiction in respect of its territory due to its character as sovereign. It is upon this presumptive capacity of the State to exercise its authority over territory that human rights law is predicated.117 Therefore, everyone situated in the territory of a State falls within its jurisdiction as they are within its lawful authority.118 Indeed, in the clear majority of cases the victim of a human rights violation is within the territory of the State alleged to have committed a human rights violation. Yet, the spatial facet does not merely speak to geographical coordinates. It implies that the State assumes human rights obligations due to its capacity to impact human rights that results from a certain form of factual control over territory or the concerned individuals.119 This control may assume a variety of forms. First, it is accepted that acts of diplomatic and consular agents, present on foreign territory in accordance with international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others.120 Second, in certain circumstances, the use of

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V Lowe, ‘Jurisdiction’ in M Evans (ed), International Law (2nd edn, 2006) 335. Higgins (n53) 146. 113 M Gondek, ‘Extraterritorial Application of the European Convention on Human Rights’ (2005) 52 NILR 364; H King, ‘The Extraterritorial Human Rights Obligations of States’ (2009) 9 HRLR 523. 114 M Milanovic, ‘From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties’ (2008) 8 HRLR 429; Milanovic (n110) 26–30. 115 Wall (n109) 179 [109]. cf ECtHR, Al-Skeini (n110) [131]; Hirsi Jamaa and others v Italy App no 27765/09 (2012) [71]. 116 ECtHR, Ilascu and others v Moldova and Russia App no 48787/99 (2004) [312]; Assanidze v Georgia App no 71503/01 (2004) [139]; Al-Skeini (n110) [131], Hirsi Jamaa (n115) [71]. 117 J Cerone, ‘Jurisdiction and Power’ (2007) 40 Israel LRev 438. 118 King (n113) 542. 119 Megret and Hoffmann (n106) 323; L Loucaides, ‘Determining the Extra-Territorial Effect of the European Convention’ (2006) 4 EHRLR 399. See Milanovic, (n110) 41, where the author succinctly states that ‘the notion of jurisdiction in human rights treaties relates essentially to a question of fact, of actual authority and control that a state has over a given territory or persons. “Jurisdiction”, in this context, simply means actual power, whether exercised lawfully or not—nothing more, and nothing less’. 120 ECtHR, Banković and others v Belgium and others App no 52207/99 (2001) [69]; HRC, Lichtensztejn v Uruguay Comm no 77/1980 (1983) [6.1]; IAComHR, Coard and others v US Report no 109/99 (1999) [37]. 112

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force by a State’s agents operating outside its territory may bring an individual into the State’s jurisdiction by bringing it under the control of the said agents. This would be the case where an individual is taken into the custody of State agents abroad.121 In Al-Saadoon and Mufdhi v the United Kingdom, the ECtHR held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the UK, since the latter exercised ‘total and exclusive de facto, and subsequently also de jure, control’ over the prisons and the individuals detained in them.122 A third, and perhaps the more prominent exception, to the principle of territorial application of human rights treaties is the exercise by a State of effective control over an area outside its national territory as a consequence of lawful or unlawful military action. As a result of this effective control by a State, the latter assumes the obligation to secure human rights for everyone within the controlled area.123 The ECtHR has offered a normative analysis of the ‘effectiveness’ standard. In Al-Skeini it held that as regards situations of military occupation or military action outside the territory of a State, the control exercised by the State engaging in this action is considered effective when the fact of domination over the territory is established.124 The ECtHR went on to note that ‘[i]n determining whether effective control exists, the Court will primarily have reference to the strength of the State’s military presence in the area . . . Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region’.125 Furthermore, a State may exercise ‘effective control’ not only over territory, but also over a vessel. Thus, in Medvedyev the ECtHR noted that the interception of a ship flying a Cambodian flag by a French warship, the subsequent boarding of the ship by a French commando group, and the confinement of crew members to their cabins until the ship reached France resulted in the latter exercising full and effective control over the Cambodian ship and its crew, at least de facto.126 It becomes obvious that human rights law does not seek to mitigate the negative effects on the enjoyment of human rights of individuals resulting from the exercise of any sort of control. On the contrary, human rights rules seek to ‘restrain the use of the absolute socio-economic and legal power which the sovereign has over the individual in the absence of constitutional restraints’.127 In the words of former ECtHR Judge Loucaides human rights address ‘the possibility of imposing the will of the State on 121 ECtHR, Öcalan v Turkey App no 46221/99 (2005) [91]; HRC, López Burgos v Uruguay Comm no R.12/52 (1981) [12.1-12.3]. 122 ECtHR, Al-Saadoon & Mufdhi v United Kingdom App no 61498/08 (2009) [86-89]. 123 ECtHR, Loizidou v Turkey App no 15318/89 (1996) [56]; Cyprus v Turkey App no 25781/94 (2001) [77]; Al-Skeini (n110) [138]; HRC, ‘General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties’ (2004) UN Doc CCPR/C/21/Rev.1/Add.13 [10]; IAComHR, Victor Saldaño v Argentina Report no 38/99 (1999) [17-19]. 124 Al-Skeini (n110) [138]. 125 Al-Skeini (n110) [139]. 126 ECtHR, Medvedyev and others v France App no 3394/03 (2010) [66–67]. 127 F Raday, ‘Privatising Human Rights and the Abuse of Power’ (2000) 13 Canadian J of L and Jurisprudence 108.

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any person’.128 This functional aspect of jurisdiction has been employed as a yardstick when considering the international human rights obligations of international territorial administrations129 and de facto regimes.130 To the extent that these actors exercise powers akin to those of a State over certain territory, either exclusively or with final decision-making authority, then they are essentially public authorities and in this capacity they may meet the normative threshold of human rights obligations.131 Turning to corporations, it is questionable whether they satisfy any of the two criteria set out. Corporations lack permanent sovereignty or title over territory. Thus, the applicability of human rights law to corporations cannot proceed on the basis of the concept of ‘spatial jurisdiction’. Equally, their function cannot be fully assimilated to that of a public authority. The aforementioned remark made by the Special Representative of the Secretary-General on Human Rights and Transnational Corporations, namely that ‘[corporations] are not a microcosm of the entire social body’,132 is of key significance. It is erroneous to seek to establish by analogy corporate human rights obligations under CIL on the basis of an unfounded assimilation between the function of States and corporations. Corporations wield economic power but they do not exercise the requisite level of control for the purposes of human rights.133 Control, after all, for the purposes of human rights, as Megret and Hoffmann have incisively argued, is ‘a short hand for something that looks surprisingly like sovereignty’.134 Those who call for the establishment of corporate human rights obligations as a corollary of corporate economic power tend to gloss over the fact that sovereignty and economic power are incommensurate. As Seidl-Hohenveldern has noted, ‘[e]ven a very small State has sovereign powers, which even a powerful transnational corporation does not have’.135

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Concurring Opinion of Judge Loucaides, Assanidze (n116) [1]. C Stahn, The Law and Practice of International Territorial Administration (2008) 490. 130 M Schoiswohl, ‘De Facto Regimes and Human Rights Obligations’ (2003) 6 ARIEL 80. 131 132 Stahn (n129) 480; Schoiswohl (n130) 83–84. Interim Report (n81) 18. 133 The only category of corporations that could perhaps be thought to exercise jurisdiction over persons in human rights terms is that of private military firms. States have as of late sought to outsource security and military services to private actors, which are then called upon to assume a role traditionally assigned to members of regular armed forces in situations of armed conflict, peace keeping, and territorial administration. This phenomenon has not led to the total privatization of armed forces, but remains limited in scope compared to the operations of national militaries. The problem with private military firms is the inherent nature of their operations, which blurs conceptual divides between the private and the public. ‘Their acts are not in principle acts of the state but acts of private persons, even though their services entail carrying weapons and exposing other persons to the risk of injury’. F Francioni, ‘Private Military Contractors and International Law: An Introduction’ (2008) 19 EJIL 962. Indeed, the operation of private military firms ‘entails a certain potential for human rights breaches. This potential danger is increased in the light of the fact that [private military firms] are often in possession of and make use of highly sophisticated military and security technology and operational systems’. F Lenzerini and F Francioni, ‘The Role of Human Rights in the Regulation of Private Military and Security Companies’ in F Francioni and N Ronzitti (eds), War by Contract (2011) 79. 134 Megret and Hoffmann (n106) 323. 135 I Seidl-Hohenveldern, ‘The United Nations and Transnational Corporations’ in K Simmonds (ed), Legal Problems of Multinational Corporations (1977) 49; cf in this sense A  Nollkaemper, 129

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The normative threshold of human rights obligations is closely linked to the nature of the relations regulated by, and the theoretical underpinnings of, human rights themselves. International human rights norms undoubtedly derive from respective domestic public law norms. In this sense, human rights protection may be conceived as appertaining to the domain of public law, with legal relations running between individuals or groups and the State.136 International human rights are formulated as public law norms applicable to public authorities. Therefore, Nollkaemper is correct in suggesting that ‘[i]t may not be possible to solve the legal problems created by a shift in authority from the public to the private sphere by a wholesale and non-discriminate transfer of public international law norms to the private sphere’.137 Conclusively, the growing economic power of corporations cannot be cast in doubt. What is doubted however is that such economic power in and of itself suffices to potentially elevate corporations to the level of human rights addressees under international law. There exists a normative threshold over which human rights obligations run and it transpires that this is a threshold corporations have not crossed.

f. Human rights and corporate conduct One may pause here to consider whether the spheres of corporate activity and human rights ever intersect. If this is not the case, then the reference to the duties of ‘organs of society’ in the UDHR is devoid of any legal significance. Yet, this concept of duties, as reflected in the Preamble of the UDHR and Art 29 (1) UDHR respectively, is central to the question of human rights protection. The drafters of the UDHR were aware of the fact that securing human rights could not be achieved solely by regulating the State-individual relationship. The individual had to be further envisaged in his or her relations with societal actors and groups, to which he or she belongs, such as family, religious, and professional groups.138 Responsibility to protect human rights had to be allocated to such societal actors operating on a national level, since respect for human rights depends first and foremost on the mentalities of individuals and social groups.139 Thus, Henkin is correct in suggesting that ‘[e]very individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal Declaration applies to them all’.140 The question that appears to have gone unanswered, and ultimately lies at the heart of the matter, is whether the allocation of a responsibility to respect human rights equals the establishment of direct obligations under international human rights law. In other words, whether the one ‘Responsibility of Transnational Corporations in International Environmental Law’ in G Winter (ed), Multilevel Governance of Global Environmental Change (2006) 180. 136 C Scott, ‘Translating Torture into Transnational Tort’ in C Scott (ed), Torture as Tort (2001) 48. 137 138 Nollkaemper (n135) 196. Cassin (n54) 280. 139 MA Glendon, ‘Knowing the Universal Declaration of Human Rights’ (1997-8) 73 NDLR 1170. 140 L Henkin, ‘The Universal Declaration at Fifty and the Challenge of Global Markets’ (1999) 25 Brooklyn JIL 25.

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follows necessarily from the other. Henkin’s reading of the UDHR is open-ended. The author goes on to add that the UDHR ‘challenges states to enforce their obligation to respect and ensure rights against violation by the markets and companies which states can curtail. It challenges “private” institutions to recognize their responsibility’.141 But Henkin does not explicitly suggest that this ‘responsibility’ means assuming direct obligations under CIL. On the basis of the normative account proposed above, corporations do not function as human rights addressees under international law. Nevertheless, it appears that States do agree that an obligation should be imposed on corporations vis-à-vis human rights protection, namely the obligation of corporations to respect the laws of the State in which they do business.142 Beyond this obligation, corporations may assume a ‘responsibility to respect human rights’, which again does not appertain to international law, but it is a responsibility the scope of which is defined by social expectations. Concluding, the fact that corporations do not assume customary international human rights obligations does not mean that positive international human rights law is blind to the deleterious consequences of corporate power for human rights. On the contrary, human rights doctrine has evolved to take cognizance of this fact by revisiting the scope of the obligations of States, resulting in their diversification and extension via the emergence of ‘positive obligations’.143 Corporations increasingly find their activities regulated by human rights law, albeit indirectly, via the screen of domestic law. Therefore, the spheres of human rights law and corporate activity do intersect despite the fact that positive CIL does not include corporations in its circle of addressees. From a policy perspective, this goes to show that the imposition of human rights obligations on corporations under international law is not the only viable alternative to securing the enjoyment of human rights. After all, ‘[a] responsibility shared by all is a responsibility that risks being felt by none’.144

3. International Criminal Law The idea that a corporate entity may incur obligations under international criminal law appears to be in conflict with the latter’s perceived function, which is geared predominantly towards establishing individual responsibility. Yet, at a second reading, international criminal law precisely deals with crimes, the commission of which in principle requires the cooperation of a plurality of actors.145 The definitions of core crimes in the International Criminal Court Statute should suffice as an affirmation of the fact that such crimes are the result of organizational or collective choices. Ultimately, the nominal individualism of international criminal

141 143 144 145

142 Henkin (n140) 25. Towards Operationalizing (n100) 16. See earlier at 35–45. Megret and Hoffmann (n106) 323. See Prosecutor v Tadić (Judgment) IT-94-1-A (15 July 1999) [191].

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law does not exclude considerations about structure.146 Therefore, crimes under international law should also be examined from the standpoint of ‘system criminality’, described by Nollkaemper as ‘a situation where collective entities order or encourage international crimes to be committed, or permit or tolerate the commission of international crimes’.147 These collective entities may have an official or unofficial status, and they may be public or private bodies.148 They may end up serving as causal mechanisms, causing or contributing to international crimes.149 In other words, a collective entity, such as a corporation, may become involved in the commission of criminal acts. Yet, involvement by a corporation does not lead to its criminal responsibility under international law as of logical necessity, unless one admits that the systemic nature of criminality should lead to the criminality of the corporation per se. This assumption is reflected in theory in the distinction between organizational and corporate criminality. Whereas the former makes the individuals within a collective entity susceptible to punishment, the latter directs the punishment towards the collective entity itself.150 In order to affirm corporate obligations under customary international criminal law, one has to assess whether it recognizes one or the other form of criminality, and furthermore whether these forms of criminality encompass corporations within their scope.

a. International criminal responsibility for private conduct It is beyond doubt today that serious breaches of specific obligations owed to the international community as a whole entail individual criminal responsibility. The legal foundation of this position remains the oft-quoted affirmation by the International Military Tribunal at Nuremberg (hereinafter IMT) that ‘crimes against International Law are committed by men, not by abstract entities’.151 This citation has a fundamental two-fold significance. First, it highlights the intrinsic links between individual criminals and the States on whose behalf they acted in violation of international law. Second, the IMT reversed the then prevalent state-centric logic in international law by affirming the international criminal responsibility of Nazi defendants as individuals for the crimes they themselves had committed or organized.152

146 G Simpson, ‘Men and Abstract Entities’ in H van der Wilt and A Nollkaemper (eds), System Criminality in International Law (2009) 76. 147 A Nollkaemper, ‘Introduction’ in van der Wilt and Nollkaemper (n146) 16. 148 B Swart, ‘Modes of International Criminal Liability’ in A Cassese (ed), The Oxford Companion to International Criminal Justice (2009) 89. 149 Nollkaemper (n147) 5. 150 N Jørgensen, The Responsibility of States for International Crimes (2003) 69. 151 IMT Judgment (1946) 1 Trial of the Major War Criminals 223. 152 Cf P-M Dupuy, ‘International Criminal Responsibility of the Individual and International Responsibility of the State’ in A  Cassese and others (eds), 2 The Rome Statute of the International Criminal Court: A Commentary (2002) 1085–1086.

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It was argued before the IMT that ‘international law is concerned with the action of sovereign States, and provides no punishment for individuals’.153 The IMT went on to rebut this argument by affirming that ‘international law imposes duties and liabilities on individuals as well as upon States’.154 The text of the judgment suggests that individual criminal responsibility has a complementary role to state responsibility. After all, the function of individual responsibility was to reach where state responsibility itself could not reach, namely the punishment of perpetrators of crimes under international law.155 The issue of the relationship between the criminal individual and the State re-emerged in the context of the war crimes trials against Nazi industrialists subsequent to the Nuremberg Trial, which were conducted by the Occupying Powers in Germany by virtue of Allied Control Council Law No 10 (hereinafter CCL). In Flick, the Defence forwarded the argument that ‘the accused were private individuals holding no public official positions within the State, and that as they did not represent the State in any capacity, they could not be criminally liable for violations of international law’.156 The Tribunal roundly rejected this submission by opining that ‘[i]nternational law, as such, binds every citizen just as does municipal law. Acts adjudged when done by an officer of the Government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality’.157 Equally, in Krupp, the Tribunal held that ‘[t]he laws and customs of war are binding no less upon private individuals than upon government officials and military personnel’.158 The extension of criminal responsibility to private conduct was ultimately affirmed in Krauch, where it was stated that ‘[i]t can no longer be questioned that the criminal sanctions of international law are applicable to private individuals’.159 The above case law indicates that the reach of international criminal law may extend beyond the conduct of state agents stricto sensu in that it may sanction the conduct of private persons who do not belong to the state apparatus, but solely have a factual link to the State which is party to the conflict.160 International criminal tribunals have upheld this principle161 with a view to maximizing the protection afforded to victims of atrocities.162 Thus, the private nature of corporate conduct does not bar the possibility that the corporation may incur international criminal responsibility. What remains to be assessed though is the extent to which international criminal law targets the conduct of a private corporation qua legal entity. 153

154 IMT Judgment (n151) 41. IMT Judgment (n151) 41. See Dupuy (n152) 1087; B Bonafe, The Relationship between State and Individual Responsibility for International Crimes (2009) 37. 156 In re Flick and Others (1947) 14 AD 267 (hereinafter Flick). 157 Flick (n 156) 269. 158 In re Krupp and Others (1948) 15 AD 627. 159 In re Krauch and Others (IG Farben Trial) (1948) 15 AD 678 (hereinafter Krauch). 160 See E David, Principes de droit des conflits armés (4th edn, 2008) 248. 161 Prosecutor v Kunarac (Judgment) IT-96-23-T & IT-96-23/1-T (22 February 2001)  [491]; Prosecutor v Musema (Judgment and Sentence) ICTR-96-13-A (27 January 2000) [270]. 162 Musema (n161) [274]. 155

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b. Organizational criminality The drafters of the IMT Charter were fully aware both of the complexities associated with the systemic nature of Nazi criminality and of the challenges inherent in an effort to punish criminal activity on such a massive scale. It was argued that ‘[p]unishment of war criminals necessarily involved more than the trial of a handful of Nazi leaders . . . organization trials offered the only effective means for punishing thousands of Nazi collaborators who might otherwise have escaped justice’.163 Moreover, besides its effectiveness, ‘judicial pronouncement of the major Nazi structures as criminal organizations was to have a great symbolic, moral, political and ideological significance’.164 Thus, the decision was reached to prosecute ‘second-tier’ members of the Nazi apparatus involved in the commission of the crimes proscribed in the IMT Charter. It is in this decision that the rationale of the ‘criminal organizations’ provision of the IMT Charter lies. Art 9 of the IMT Charter provides that ‘[a]t the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization’.165 Art 10 of the IMT Charter states: ‘In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts’. The task fell upon the IMT to establish a ‘logically consistent and just theory of criminal organizations’,166 since the vaguely formulated Art 9 of the IMT Charter neither defined the concept of criminal organizations nor provided guidance as to the requisite link between the crime of the individual and the activities of the organization. The IMT seized this opportunity to flesh out in its Judgment a theory on the concept of ‘criminal organizations’, whilst pronouncing on the criminal nature of the indicted six organizations.167 The IMT, in dealing with the nature and effects of the declaration of criminality, held that its discretionary power to declare an organization criminal ‘should be exercised in accordance with well-settled legal principles, one of the most important is that criminal guilt is personal, and that mass

163

H Leventhal and others, ‘The Nuernberg Verdict’ (1947) 60 Harvard LRev 887, 901. S Pomorksi, ‘Conspiracy and Criminal Organizations’ in S Ginsburgs and VN Kudriavtsev (eds), The Nuremberg Trial and International Law (1990) 225. 165 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (entered into force 8 August 1945) 82 UNTS 279 (hereinafter IMT Charter); on Art 9 IMT Charter see E Van Sliedregt, Criminal Responsibility of Individuals for Violations of International Humanitarian Law (2003) 21; cf C Eustathiades, ‘Les sujets du droit international et la responsabilité internationale’ (1953) 84 RdC 452. 166 Jørgensen (n150) 61. 167 These were: the Reich Cabinet; the Leadership Corps of the Nazi Party; the SS along with the SD as its integral part; the Gestapo; the SA; and General Staff and High Command of the German Armed Forces. Ultimately, only the Leadership Corps of the Nazi Party, the Gestapo, and the SS were pronounced criminal by the Tribunal. See IMT Judgment (n151) 28, 262, 268, 273. 164

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punishments should be avoided’.168 It then proceeded to define criminal organizations in the following manner: [t]here must be a group bound together and organized for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organizations and groups will . . . fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership . . . Membership alone is not enough to come within the scope of these declarations.169

Prima facie, there seems to be a contradiction between the concept of a criminal organization and the finding of the Court that any declaration of criminality has to take place in accordance with the principle of personal guilt.170 Yet, at no point did the IMT actually distance itself from the principle of individual responsibility. The jurisdiction ratione personae of the IMT only extended over natural persons.171 It has been argued that not only did the IMT lack the power to punish legal persons, but it was also disinclined to do so.172 Such a cautious approach to the nature of the criminality of the organization, evident in the judgment itself, was also expressed by leading jurists.173 Donnedieu de Vabres, the French member of the IMT, argued that, by virtue of Art 9 IMT Charter, the criminality of the group was accorded an accessory character.174 Criminal responsibility solely attached to those voluntary members of a criminal organization who were aware of the organization’s criminal purposes and activities and acquiesced in them. Ultimately, the concept of ‘criminal organizations’ was a concept highlighting the significance of individual criminal responsibility.175 The mode of criminality envisaged was ‘organizational’, in the sense that each individual within the organization was susceptible to punishment, rather than the organization as a legal entity.176 To treat the concept of ‘criminal organizations’ as a precursor to corporate criminal responsibility under international law leads to conceptual and normative paradoxes.177 At first, it conflates two distinct modes of criminality. Organizational criminality does not encompass any punishment of or sanctions on the legal entity

168

169 IMT Judgment (n151) 256. IMT Judgment (n151) 256. Cf H Kelsen, ‘Will Nuremberg constitute a Precedent?’ (1947) 1 ILQ 166–167. 171 See Art 6 IMT Charter. 172 G Dahm, 3 Völkerrecht (1961) 308. 173 Kelsen (n170) 166; Q Wright, ‘International Law and Guilt by Association’ (1949) 43 AJIL 754–755; cf AM Danner and J Martinez ‘Guilty Associations’ (2008) 93 California LR 113. 174 H Donnedieu de Vabres, ‘Le procès de Nuremberg devant les principes modernes du droit pénal international’ (1947) 70 RdC 545; cf JA Hessbruegge, ‘Human Rights Violations Arising from the Conduct of Non-State Actors’ (2005) 11 BuffHRLR 43. 175 Cf H Meyrowitz, La répression par les tribunaux allemands des crimes contre l’humanité (1960) 440; S Bouiffror and C Derycke, ‘Les organisations criminelles’ in H Ascencio and others (eds), Droit international pénal (2000) 169. 176 Jørgensen (n150) 69; cf R Woetzel, The Nuremberg Trials in International Law (1962) 213. 177 For a view affirming the significance of ‘criminal organizations’ as a precedent for corporate responsibility, see B Stephens, ‘Sosa v Alvarez-Machain’ (2004-05) 70 Brooklyn JIL 557. 170

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per se. Besides, a criminal organization is a group organized for the common purpose of perpetrating crimes under international law. It would be hard to think of any private corporation actually satisfying this criterion today. It is true that corporate conduct may have deleterious effects on the enjoyment of human rights of individuals. Yet, this is a far cry from treating the corporation as criminal in the sense of the IMT Charter. Branding private corporations as criminal would only result in watering down the concept as elaborated in the IMT Judgment. The use of this concept reflected ‘the mass character of the crimes which had been committed by the totalitarian aggressors’.178 It cannot in any meaningful manner serve as precedent in relation to the potential applicability of ICL to corporations nowadays. The prosecution of members of criminal organizations was a procedure peculiar to the historical context and the unprecedented violence unleashed by Nazi criminals. The exceptional nature of the concept of ‘criminal organizations’ is evidenced by the fact that post-Nuremberg it did not find its way into international custom.179 Spiropoulos, the ILC Special Rapporteur on the Formulation of the Nuremberg Principles, argued that Arts 9 and 10 of the IMT Charter ‘did not contain a true principle . . . the proclamation of the criminal character of certain German groups or organizations had had no consequences of a penal nature’,180 a conclusion upheld by Brierly.181 Accordingly, the ILC decided to omit any reference to ‘criminal organizations’ as a principle of international law in its Nuremberg Principles. The debate on ‘criminal organizations’ resurfaced during the drafting of the ICTY Statute, yet any reference to the concept was omitted due to objections.182 It was noted in this context that the Security Council’s refusal to accept liability for membership in a criminal organization constituted evidence of progress.183 The discarding of the concept reaffirms the suggestion that it was exclusively relevant to the prosecution of the Nazi crimes, and cannot be seen as a rule of customary international criminal law.184 Whereas organizational criminality in the form of the provisions on ‘criminal organizations’ formed part of Nuremberg law, the concept as such has failed to attain the status of a customary rule. Yet, even if we had affirmed its customary status, it would have fallen short of producing obligations binding on the corporation qua legal entity, since by its very nature it does not seek to sanction the collective entity as such. Ultimately, the provisions on ‘criminal organizations’ neither established criminal obligations binding on corporations as legal entities nor can they serve as legal precedent of corporate obligations under international criminal law. 178

G Schwarzenberger, ‘Judgment at Nuremberg’ (1947) 21 Tulane LR 358. N Jørgensen, ‘Criminality of Organizations under International Law’ in van der Wilt and Nollkaemper (n146) 202–203. 180 See Statement by Spiropoulos, UN Doc A/CN.4/SR.28 (1949) I ILC Ybook 204. 181 Statement by Spiropoulos, UN Doc A/CN.4/SR.28 (1949) I ILC Ybook 204; cf Eustathiades (n165) 456, fn 1. 182 ‘Report of the Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808’ (3 May 1993)  UN Doc S/25704 [51]; cf D Shraga and R Zacklin, ‘The International Criminal Tribunal for the Former Yugoslavia’ (1994) 5 EJIL 369. 183 J Alvarez, ‘Nuremberg Revisited: The Tadic Case’ (1996) 7 EJIL 262, fn 104. 184 Bouiffror and Derycke (n175) 168. 179

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c. Corporate criminality Both under international and domestic criminal law, those involved in the commission of a criminal act can be held responsible either as principal perpetrators or as accomplices, depending on the nature of their conduct and role in the commission of the proscribed criminal act. Taking into account the collective nature of crimes under international law, it becomes clear that the major task of international criminal law is to establish and weigh individual contributions to the crime and assess their criminal nature.185 Equally, corporations may become involved in the commission of crimes under international law in a variety of manners. Therefore, it is imperative to contemplate whether corporations may incur criminal responsibility under ICL for their involvement in the commission of criminal acts, either as principal or as accomplices.

(1) The corporation as principal (a) The Nuremberg legacy The involvement of corporations in the commission of crimes against international law was first scrutinized by the Military Tribunals sitting in occupied Germany and tasked by CCL to pronounce judgment on German industrialists for their participation in and support of the Nazi Party and German war efforts. The jurisdiction of the Military Tribunals, according to Art 2 CCL, extended solely over natural persons. Yet, despite this reaffirmation of the principle of individual criminal responsibility, the formulation of certain judgments appears to espouse a corporate criminality approach, insofar as the corporation qua legal entity is treated as an addressee of international law rules, and by implication as responsible thereunder. Thus, the US Military Tribunal (hereinafter USMT) in Krauch, while discussing the Hague Regulations on the protection of private property during belligerent occupation, held that where a private individual or a juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of the Hague Regulations.186

The USMT went on to add that ‘[s]uch action on the part of Farben constituted a violation of the Hague Regulations. It was in violation of rights of private property, protected by the Laws and Customs of War . . . ’.187 Clapham has argued that, despite the lack of jurisdiction ratione personae over the Farben corporation as a legal entity, the USMT ‘did in fact treat Farben as a legal entity (juristic person) capable of violating the laws of war’.188 Reference to the criminal conduct of the 185

G Werle, Principles of International Criminal Law (2005) 117. 187 Krauch (n159) 673. Krauch (n159) 676. 188 A Clapham, ‘The Question of Jurisdiction under International Criminal Law over Legal Persons’ in M Kamminga and S Zia-Zarifi (eds), Liability of Multinational Corporations under International Law (2000) 169; cf A Ramasastry, ‘Corporate Complicity: From Nuremberg to Rangoon’ (2002) 20 186

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legal entity as such logically denotes its criminal responsibility. This reading of Krauch leads to a conclusion that ICL applied to the corporation per se, as well as the defendants. The above quoted dicta in and of themselves, at least prima vista, seem to vindicate Clapham’s assertion that ‘[t]he Tribunal is clear that it is the action of Farben which has violated the Hague Regulations’,189 implying that the Hague Regulations and the Customs of War in this respect were binding upon Farben as a legal entity in the first place. The judgment ‘can be read as implying that the Farben company itself had committed the relevant war crime, even though the Tribunal had no jurisdiction over Farben as such’.190 The idea is that if the USMT had been vested with jurisdiction ratione personae, it would not have hesitated to hold the corporation responsible under ICL.191 The formulation of the judgment is indeed noteworthy. If this argumentation is upheld, then Krauch constitutes the first judgment affirming ICL obligations directly binding on a corporate entity. The first problem with Clapham’s reading of Krauch is that it constitutes a marked departure from the principles enunciated in the IMT Judgment. It would be surprising if the USMT ignored the concerns surrounding any finding of corporate responsibility associated with the concept of ‘collective guilt’. But, more fundamentally, the USMT would be recognizing a private corporation as an addressee of the international law of occupation. It is doubtful, however, whether at the time Krauch was decided, international law of occupation directly targeted the conduct of corporations. The USMT itself addressed this point in Flick. Discussing the scope of the Hague Regulations, the USMT held that the rules contained therein ‘were written in a day when armies traveled on foot, in horse-drawn vehicles and on railroad trains . . . Concentration of industry into huge organizations transcending national boundaries had barely begun’.192 Thus, the USMT admitted that at the time the Hague Regulations were drafted, it would be unlikely for these rules to apply to corporations. Which brings us back to the initial question, namely why the USMT employed language that could be interpreted as recognizing the existence of international law obligations binding on corporations. The USMT provides guidance in Krauch. The USMT held that [i]t is appropriate here to mention that the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings. We have used the term Farben as descriptive of the instrumentality of cohesion in the name of which the enumerated acts of spoliation were committed. But corporations act through individuals and, under the conception of personal individual guilt to which previous reference has been Berkeley JIL 107; O De Schutter, ‘The Accountability of Multinationals for Human Rights Violations in European Law’ in P Alston, Non-State Actors and Human Rights (2005) 233; D Kinley and R Chambers, ‘The UN Human Rights Norms for Corporations’ (2006) 6 HRLR 479–480. 189 Clapham (n188) 170. 190 Clapham (n188) 171. 191 ‘[I]t was for purely jurisdictional reasons, rather than substantive ones, that the corporation I.G. Farben was not convicted as such by the US Military Tribunal in Nuremberg which convicted its directors.’ See De Schutter (n188) 233. 192 Flick (n156) 271.

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made, the Prosecution . . . must establish by competent proof beyond a reasonable doubt that an individual defendant was either a participant in the illegal act or that, being aware thereof, he authorized or approved it. Responsibility does not automatically attach to an act proved to be criminal merely by virtue of a defendant’s membership in the Vorstand.193

The question then is whether reference by the USMT to the name of the corporation as ‘descriptive of the instrumentality of cohesion’ should lead us to the conclusion that it considered the crimes attributed to Farben as a legal entity and its conduct in violation of international law. In order to answer this question, recourse must first be had to the IMT Judgment. Therein, the IMT did not hesitate to employ a similar approach to that of the USMT in Krauch, while dealing with the indicted criminal organizations. In relation to the criminal activities of the Leadership Corps of the Nazi Party, the IMT held that ‘[t]he Leadership Corps played its part in the persecution of the Jews’.194 In the same vein, the IMT noted that ‘[t]he SS was even a more general participant in the commission of War Crimes and Crimes against Humanity’.195 Employing Clapham’s argument, textual references by the IMT to the conduct of the organization per se equals the acknowledgment of its criminality. Thus, relying on the formulation of the IMT Judgment, one could infer that the IMT considered the SS and the Leadership Corps to be criminally responsible as organizations. Yet, such conclusion is nothing but a revision of Nuremberg law. At first glance, Krauch appears to offer textual arguments in favour of affirming ‘corporate’ criminality under Nuremberg law. Still, upon closer scrutiny, this conclusion does not hold water. Both the IMT and the USMT were called upon to pronounce on the criminal responsibility of individuals who acted in the organizational context of a group or organization or corporation. In order for these individuals to be convicted, their participation in and acquiescence to the criminal activities of the group or corporation had to be proven beyond reasonable doubt. It is only logical that reference is made to the acts of the group as a whole. The USMT, as was the case with the IMT, employed language that indicated the group as having committed the crime, as a form of legal shorthand. There is no convincing reason why such reference to the activities of the group or corporation should of necessity imply its criminal responsibility under international law. Private corporations qua legal entities were neither bound by ICL nor punished for a violation thereof according to the case law of WWII military tribunals.196 (b) Evolving customary international law (i) The Draft Code of Offences Whether corporations have, post-Nuremberg, emerged as addressees of customary ICL is a vexed question. It first arose in the work of the ILC on the Draft Code of Offences against the Peace and Security of Mankind. When called upon 193

194 Krauch (n159) 678 [emphasis added]. IMT Judgment (n151) 259. IMT Judgment (n151) 270. 196 The same conclusion is reached by KJ Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011) 253. 195

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to comment on the issue of determination of criminal responsibility, Special Rapporteur Spiropoulos stated that ‘there existed no precedents for the recognition of the criminal responsibility of States or organizations; the Nürnberg Tribunal had also restricted itself exclusively to the criminal responsibility of individuals only’.197 Scelle, in the same vein, added that the criminal responsibility of ‘corporate bodies . . . had not so far been recognized’ and that ‘it was extremely difficult to determine group responsibility’.198 Spiropoulos, in his Report, proceeded to tackle the problem in a Chapter entitled ‘Organizations, Subjects of Criminal Responsibility under International Law’. At the outset, he stressed that [f ]rom a general theoretical point of view it is debatable whether organizations (abstract entities), as such, can be subjects of penal responsibility. From the point of view, however, of international practice, the precedent of Nürnberg is decisive . . . the Charter attaches no penal sanction to the declaration of criminality . . . No responsibility of the organization as such was established.199

It is obvious that Spiropoulos was of the opinion that the IMT Charter and the IMT Judgment did not, under any guise, recognize the criminal responsibility of any other person but the individual. More significantly though, he explained his negative predisposition to corporate criminal responsibility by adding that ‘municipal laws, with rare exceptions, do not establish the penal responsibility of legal persons’.200 Finally, he suggested: ‘from a practical point of view, the lack of criminal responsibility in this regard is met, to a satisfactory extent, by the application of the notions of conspiracy and complicity’.201 Spiropoulos’ views on the exclusivity of the individual as the addressee of ICL met with the approval of delegates of the General Assembly’s Sixth Committee.202 Nonetheless, the overall momentum towards a Code of Offences was eclipsed due to the onset of the Cold War. The deep divergence surrounding the definition of ‘aggression’ led the GA to decide on the postponement of further discussion on the draft Code pending a resolution on the definition of aggression.203 The ILC was called upon to resume its work on the draft Code two decades later.204 When in 1991 the ILC concluded on first reading its draft Code, one of the criticisms levelled against it was exactly the lack of any consideration of the problem of the criminal responsibility of groups.205 Special Rapporteur Thiam defended this choice suggesting that he had ‘deliberately chosen not to introduce 197

See Statement by Spiropoulos (1950) I ILC Ybook 105. Statement by Spiropoulos (1950) I ILC Ybook 105. 199 ‘Draft Code of Offences Against the Peace and Security of Mankind, Report by J Spiropoulos’ UN Doc A/CN.4/25 (1950) II ILC Ybook 260. 200 Draft Code of Offences Against the Peace and Security of Mankind (n199) 261. 201 Draft Code of Offences Against the Peace and Security of Mankind (n199) 261. 202 See the Statements by Amado, Röling, Bartos, Van Glabbeke, and Hunge, in their respective capacities as delegates in the Sixth Committee, reprinted in (1951) II ILC Ybook 49. 203 UNGA Res 897 (IX) (4 December 1954). 204 UNGA Res 36/106 (10 December 1981). 205 See Statement by Pellet (1991) I ILC Ybook 194. 198

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into the Code the question of assigning responsibility to groups. It was a difficult matter on which viewpoints differed widely . . . Even in the case of domestic law, the concept of the responsibility of groups continued to be a matter of debate’.206 The draft Code, following its first reading, was transmitted to governments for their comments and observations. Of those States expressing their view on the matter, the clear majority was in accord with focusing on individual criminal responsibility.207 When the Code was finally adopted, the ILC in its Commentary to Art 2 of the Code held that individual responsibility as described in the IMT Judgment is the ‘cornerstone’ of international criminal law.208 (ii) The ICC Statute The drafting of the ICC Statute is a turning point regarding the question of criminal responsibility of corporations. The protracted debates leading to the adoption of the Statute stand as testament to the renewed significance attached to international criminal law as an appropriate and effective means of curbing the involvement of corporate entities in the commission of crimes under international law. The Preparatory Committee on the Establishment of an ICC in 1997 was called upon to deliberate on a proposal extending the jurisdiction of the ICC over ‘juridical persons’ for crimes committed on behalf of such persons by their representatives.209 Yet, it was noted by the Committee that ‘[t]here is deep divergence of views as to the advisability of including criminal responsibility of juridical persons in the Statute. Many delegations are strongly opposed, whereas some strongly favour its inclusion . . . ’.210 States’ ambivalence towards the inclusion of corporate entities within the jurisdiction of the ICC became the staple characteristic of the ensuing debates. During the UN Diplomatic Conference on the Establishment of an ICC, held in Rome in 1998, the French delegation made several attempts at extending the ICC jurisdiction ratione personae in order to include corporations. At first, it put forward a proposal, which essentially reflected Arts 9 and 10 of the IMT Charter and provided that once the ICC had declared the criminality of the juristic person, the State would be obliged to take measures in response to the Court’s declaration. Thus, this proposal did not advocate corporate criminality properly so called, but a form of organizational criminality where consequences would flow from the characterization of the corporation as criminal by the ICC. Yet, even this proposal

206 See Statement by Thiam, (1991) I ILC Ybook 194; cf the Statement by Mahiou, (1991) I ILC Ybook 194 essentially aligning his position to that of the Special Rapporteur suggesting that ‘[t]he debate had given rise to serious division of opinion’. 207 See Comments by Austria (1993) II (1) ILC Ybook 66; Costa Rica, (1993) II (1) ILC Ybook 76; Nordic Countries, (1993) II (1) ILC Ybook 89; Poland, (1993) II (1) ILC Ybook 95; United Kingdom, (1993) II (1) ILC Ybook 98; United States, (1993) II (1) ILC Ybook 102; cf Uruguay, (1993) II (1) ILC Ybook 106. 208 ‘Draft Code of Crimes Against the Peace and Security of Mankind’, as included in the ‘Report of the International Law Commission on the Work of its Forty-Eighth Session’ UN Doc A/51/10 (1996) II (2) ILC Ybook 19. 209 See ‘Report of the Preparatory Committee’ (14 April 1998) Doc A/CONF.183/2/Add.1, 49. 210 ‘Decisions taken by the Preparatory Committee at its Session held in New York from 11 to 21 February 1997’ (12 March 1997) Doc A/AC.249/1997/L.5, Annex II, fn 46.

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did not result in breaking the impasse, as certain delegations supported it, whereas others rejected it outright.211 In the course of the negotiations the French formula was modified a number of times. The latest version of the draft proposal employed the term ‘juridical person’, taken to mean ‘a corporation whose concrete, real or dominant objective is seeking private profit or benefit, and not a State or other public body in the exercise of State authority, a public international body or an organization registered, and acting under the national law of a State as a non-profit organization’.212 According to this proposal, the Court would have the power to render judgment over a juridical person for the crime charged if the following conditions were satisfied: a natural person, in a position of control within the juridical person, had been convicted of the crime charged, acting on behalf of and with the explicit consent of that juridical person in the course of its activities. Under this proposal, the criminal responsibility of a legal person could attach by association with a natural person that had committed a crime within the jurisdiction of the ICC. The legal person was to be declared criminal as such if a crime were found to have been committed on its behalf. Despite the rather limited liability it envisaged, this proposal was also withdrawn following three weeks of negotiations.213 There is a string of explanations as to why the final proposal was dropped.214 According to Saland, one of the reasons was that ‘time was running out’.215 Be that as it may, this does not suggest that States were more in favour then they were against the proposal. The debate may have been left open but there is no reason to weigh in on one of the sides to the debate. The more substantive reasons though were the marked divergence among States as to the extent their respective domestic legal orders recognized the concept of ‘corporate criminal responsibility’ and the effect such divergence could have on the principle of complementarity.216 The ICC Statute debates are significant from the standpoint of customary international criminal law. The positions of States vis-à-vis the various proposals made constitute first-hand evidence both of State practice and States’ opinio juris. It is hard to discern the existence of a general, let alone a uniform, practice regarding the international criminal responsibility of the corporation. The contradiction and uncertainty in the official views expressed during the ICC Statute debates and the ambivalence of States towards the French proposals indicate a belief that no customary rule had emerged at the time regarding the responsibility of a legal person for conduct in violation of international criminal law.

211

Clapham (n188) 147. For the text of A/CONF.183/C.1/WGCP/L.5/Rev.2, see Clapham (n188) 150–151. 213 Clapham (n188) 150. 214 See K Ambos, ‘General Principles of International Law in the Rome Statute’ (1999) 10 Criminal L Forum 7; J Kyriakakis, ‘Corporations and the International Criminal Court’ (2008) 19 Criminal L Forum 119–120. 215 P Saland, ‘International Criminal Law Principles’ in R Lee (ed), The International Criminal Court (1999) 199. 216 Saland (n215) 199; Clapham (n188) 157; A  Sereni ‘Individual Criminal Responsibility’ in F Lattanzi (ed), The International Criminal Court (1998) 145–146; Ambos (n214) 7. 212

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This conclusion is logical: when the ILC had first transmitted the draft Statute for an ICC to States for their comments, the majority of States expressly supported a jurisdiction ratione personae restricted to individuals, since this was thought to reflect the status of international criminal law de lege lata.217 It would of course be possible for the majority of States to modify their position in the course of the negotiation on the ICC Statute and support the establishment of criminal responsibility of corporations under international criminal law. Yet, as the heated debate in Rome shows, this was decidedly not the case. No customary criminal law obligations bound corporations directly when the Rome Statute was being discussed.218 (iii) Municipal law Whereas the Rome Statute excluded corporations from the jurisdictional reach of the ICC, it arguably opened up alternative avenues for the potential enforcement of international criminal law obligations on corporations at a municipal law level. Following the ratification of the ICC Statute, a number of States have passed legislation incorporating the Statute’s provisions into their respective municipal law.219 What is more, certain States have incorporated international criminal law provision into their domestic statutes without making a distinction between natural and legal persons,220 opening up the possibility for the application of international criminal law to corporations by national courts. This process of incorporating international criminal provisions into the municipal law of States Parties to the ICC Statute is of fundamental significance in the light of the principle of complementarity:  the ICC is not meant to replace municipal criminal jurisdictions regarding the prosecution and investigation of crimes against international law, but ‘to provide an additional concurrent jurisdictional layer’221 in cases where municipal jurisdictions are unwilling or unable to bring to justice those suspected of having committed such grave crimes. Thus, national courts retain a crucial role in the administration of international criminal justice, and by implication in the potential prosecution of corporations for international crimes. Ruggie has noted that we are witnessing ‘an 217 See Observation by Algeria in UN Doc A/CN.4/458 and Add.1-8, (1994) II (2) ILC Ybook 24 where Algeria posits that the ‘generally accepted view [is] that the competence ratione personae should be limited to individuals’; Belarus, (1994) II (2) ILC Ybook 35; Chile, (1994) II (2) ILC Ybook 37; Cuba, (1994) II (2) ILC Ybook 38; Hungary, (1994) II (2) ILC Ybook 42; Japan, (1994) II (2) ILC Ybook 48; Nordic Countries, (1994) II (2) ILC Ybook 62; Slovenia, (1994) II (2) ILC Ybook 68; Tunisia, (1994) II (2) ILC Ybook 73; Yugoslavia, (1994) II (2) ILC Ybook 93; Switzerland, (1994) II (2) ILC Ybook 96. 218 A further indication of States’ reluctance to recognize the criminal responsibility of corporations under international law is the omission of the topic from the agenda of the ICC Review Conference, which took place in Uganda in 2010. Whereas numerous States Parties have proposed amendments to the Rome Statute, no proposal has been aimed at extending the jurisdiction ratione personae of the ICC. For a brief presentation of the proposed amendments, see D Kaye, ‘The First Review Conference for the Rome Statute of the International Criminal Court’ (2010) 11 ASIL Insight, available at . 219 See the findings of the FAFO comparative survey, A Ramasastry and RC Thompson, Commerce, Crime and Conflict (2006) 15. 220 Ramasastry and Thompson (n219) 16. 221 V Nerlich, ‘ICC (Complementarity)’ in Cassese (n148) 346.

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extension of responsibility for international crimes to corporations under domestic law [which may lead to] an expanding web of potential corporate liability for international crimes—imposed through national courts’.222 Indeed, it has been argued that Australia and Canada, in enacting Division 268 of the Australian Criminal Code and Section 22.2 of the Canadian Crimes Against Humanity and War Crimes Act of 2000 respectively, have created a juridical basis allowing for the prosecution of corporations qua legal entities for the commission of crimes against international law, even though no prosecutions against corporations have taken place yet.223 The enactment of a law is a form of State practice for the purposes of custom formation, even if the law has not been applied.224 Yet, one has to be cautious when drawing rash conclusions from municipal legislation concerning the formation of international custom unless one knows how State courts have actually interpreted the respective municipal legal rules.225 One may rightfully argue that the incorporation of ICC provisions into municipal legislation and the potential application of international criminal law by national courts to corporations may evidence a shift in State practice towards acknowledging international criminal corporate obligations.226 Tenable though this proposition may be, it remains a proposition. In order for a customary rule to emerge, State practice has to exhibit uniformity and constancy. National legislation stipulating that corporations are addressees of international criminal law obligations constitutes evidence of State practice, albeit practice of a sporadic nature. Besides, instances of national legislation, if viewed as evidence of State practice affirming the fact that international criminal law binds corporations qua legal entities, logically clash with the aforementioned expressed position of a number of States that international criminal law solely binds individuals de lege lata. Considering the controversial nature of the question and the conflicting positions of States respectively, one has to conclude that the corporation has not, post-Nuremberg, evolved into an addressee of customary international criminal law obligations.227 Of course, this does not mean that international criminal law disregards the conduct of corporations. Indeed, as the trials of Nazi industrialists highlight, corporations have been utilized as instrumentalities in the commission of crimes under international law. Still, the involvement by a corporate entity in the commission of a crime does not render that entity criminally responsible under international law. On the contrary, the leitmotiv in the evolution of international 222 ‘Business and Human Rights:  Mapping International Standards of Responsibility and Accountability for Corporate Acts’ (19 February 2007) UN Doc A/HRC/4/35 [22]. 223 J Kyriakakis, ‘Australian Prosecution of Corporations for International Crimes’ (2007) 5 JICJ 814; W Cory Wanless, ‘Corporate Liability for International Crimes under Canada’s Crimes Against Humanity and War Crimes Act’ (2009) 7 JICJ 206. 224 225 Akehurst (n10) 9. Akehurst (n10) 9; cf Van Hoof (n5) 110. 226 See A Clapham, ‘Extending International Criminal Law Beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 JICJ 919. 227 Cf PHF Bekker, ‘Corporate Aiding and Abetting and Conspiracy Liability under International Law’ in W Heere (ed), From Government to Governance (2004) 211; M Koebele, Corporate Responsibility under the Alien Tort Statute (2009) 196.

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criminal law from Nuremberg to Rome has remained the exclusivity of the individual as the addressee of international criminal proscriptions.

(2) The corporation as accomplice The last aspect of the relationship between corporations and customary ICL, which calls for detailed analysis, is that of ‘corporate complicity’. This notion has as of late gained such currency that it is viewed as the ‘the kernel of attempts to hold corporations accountable for human rights abuses’.228 The emergence of the concept results from and is linked to the assumption that ‘few legitimate firms may ever directly commit acts that amount to international crimes’.229 Indeed, despite the somewhat symbolic, albeit unsuccessful, effort to extend the jurisdiction ratione personae of the ICC to include legal entities, the truth of the matter is that the actual perpetrators of gross human rights abuses are in principle public security forces, government agents, and armed factions in cases of civil conflicts. Yet, one needs to assess the criminal responsibility of corporations associated with gross human rights abuses owing to their role as financiers, contractors, suppliers of those who actually commit violations of international criminal law. At the outset, one needs to limit the analysis to the international law aspects of the question. Indeed, corporate complicity nowadays has both legal and non-legal pedigrees.230 The operation of the latter can be exemplified by considering Principle 2 of the Global Compact, which urges corporations to make sure that ‘they are not complicit’ in human rights abuses.231 This Principle is devoid of legal normativity, since the Global Compact does not seek to regulate, measure in any way the conduct of, or enforce legal rules on corporations.232 Such non-legal uses of corporate complicity fall outside the scope of the present analysis. The term ‘corporate’ itself can give rise to a variety of meanings. ‘Corporate complicity’ is an umbrella term for a range of manners in which businesses can become involved in human rights abuses, and may refer both to the corporate official or representative and the legal entity itself. Since the present analysis is preoccupied with those international law obligations binding on corporations qua legal entities, the question of the accomplice liability of a corporate manager or representative under customary international criminal law will not be dealt with herein. What is crucial in this respect is to assess the extent to which a corporation as a legal entity may be held responsible as an accomplice. At first one needs to analyse the normative scope of the doctrine of aiding and abetting under international criminal law and then affirm whether the scope of the doctrine extends to cover the conduct of corporations.

228

A Clapham, Human Rights Obligations of Non-State Actors (2006) 563. Mapping (n222) 10; cf A Reggio, ‘Aiding and Abetting in International Criminal Law’ (2005) 5 Intl Criminal L Rev 654. 230 Towards Operationalizing (n100) 20. 231 . 232 See J Ruggie, ‘The Theory and Practice of Learning Networks’ (2002) 5 J of Corporate Citizenship 27. 229

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(a) Aiding and abetting The doctrine of aiding and abetting belongs to the wider concept of complicity or accomplice liability under international criminal law but it has come to dominate the field in relation to corporate responsibility, resulting in the two terms being used interchangeably. The doctrine of accomplice liability is firmly entrenched in international custom.233 It was first fleshed out in the judgments of the post-WWII military tribunals, which were granted jurisdiction ratione personae over ‘accomplices’.234 The principle has been further recognized in international treaty law235 and the work of the ILC.236 Finally, it has been included in the Statutes of the International Criminal Tribunals237 and the ICC.238 Complicity is not a crime in itself. It amounts to ‘borrowed criminality’: the complicitous conduct does not have its own inherent criminality but it borrows the criminality of the act committed by the principal perpetrator.239 Thus, a crime needs to have been consummated in order for the conduct of the aider or abettor to amount to a crime.240 Complicity presupposes a predicate offence committed by a person other than the aider or abettor. Still, even if the principal has not been identified, or faced prosecution for personal or other reasons, or the guilt of the principal has not been proven, the aider or abettor may still be tried.241 As long as the trier of fact is satisfied that the principal offence was committed, and is further satisfied of the accused being involved in the offence, then the latter may be liable as an aider or abettor. When addressing the conduct of an aider or abettor under international criminal law, one has to delineate the objective requirement, i.e. the actus reus, as well as the subjective one, i.e. the mens rea. As to the objective requirement, in Furundžija, the ICTY distinguished between the nature of the assistance and its effect on the act of the principal.242 The assistance need not always be tangible. On the contrary, moral support and encouragement may suffice.243 Mere presence at the scene may also be sufficient to fulfil the actus reus ‘if [the status of the spectator] is such that his presence had a significant legitimising or encouraging 233 Prosecutor v Tadić (Judgment) IT-94-1-T (7 May 1997) [666]; Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [526]. 234 See Art 6 (3) IMT Charter; cf Art 2 (2) CCL. 235 Art III (e) Convention on the Prevention and Punishment of Genocide (adopted 9 December 1948; entered into force 12 January 1951) 78 UNTS 277; Art 4 (1) UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (adopted 10 December 1984; entered into force 26 June 1987) 1465 UNTS 85. 236 See Principle VII of the ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’, as included in the ‘Report of the International Law Commission Covering its Second Session’ UN Doc A/1316 (1950) I ILC YBook 374, 478; Art 2 (d) of the ‘Draft Code of Crimes Against the Peace and Security of Mankind’, as included in the ‘Report of the International Law Commission on the Work of its Forty-Eighth Session’ UN Doc A/51/10 (1996) II (2) ILC Ybook 18. 237 Art 7 (1) ICTY Statute; Art 6 (1) ICTR Statute. 238 239 Art 25 (3) (c) ICC Statute. Akayesu (n233) [528]. 240 Prosecutor v Jelisić (Judgment) IT-95-10-T (14 December 1999) [87]. 241 Akayesu (n233) [531]. 242 Prosecutor v Furundžija (Judgment) IT-95-17/1-T (10 December 1998) [192]. 243 Furundžija (n242) [199].

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effect on the principals’.244 Turning to the effect of the assistance on the act of the principal, the case law signals that the acts of the accomplice need not be a conditio sine qua non for those of the principal.245 Under ICL, the assistance must have a ‘substantial effect on the commission of the crime’.246 On the question of the mental element, the case law of the international criminal tribunals has convincingly shown that the aider or abettor has to be aware that he is influencing or assisting the perpetrator to commit the crime.247 In other words, the case law espouses a ‘knowledge’ criterion. Nonetheless, Art 25 (3) (c) ICC Statute provides that with regard to facilitating the commission of the crime, the aider must act with ‘purpose’: he or she must know as well as intend that his or her assistance facilitated the commission of the crime. This threshold appears stricter than that of mere knowledge.248 The employment of a ‘purpose’ criterion causes uncertainty as to the applicable criterion under CIL.249 Therefore, one should conclude that whereas there exists agreement on the normative character of the doctrine of aiding and abetting as part of CIL, the scope of the doctrine, at least as to the mens rea required, is in a state of flux. (b) Corporate complicity under the Alien Tort Statute The contemporary debate on corporate complicity has been mostly framed by drawing analogies to the doctrine of aiding and abetting. This choice of paradigm results from a combination of factors. On the one hand, the emergence of international criminal justice has led to a belief that international criminal law is the most expedient means of deterring and punishing companies for becoming involved in gross human rights abuses. On the other hand, the significant pull of national case law, with the Alien Tort Statute (hereinafter ATS) case law being the prime example, has resulted in the criminalization of the debate on corporate responsibility.250 It was exactly in the context of the ATS litigation that the modern concept of ‘corporate complicity’ was created in the image of Nuremberg accomplice liability. Besides, complicity per se evokes conceptions of criminality due to its familiarity in both national and international criminal law and therefore it appears natural to frame and phrase the question in international criminal law terms. It is true that the Nuremberg war crimes trials embedded accomplice liability in international law. Particularly, the cases brought against Nazi industrialists

244 Furundžija (n242) [232]; cf Prosecutor v Krnojelac (Judgment) IT-97-25-T (15 March 2009)  [89]; Akayesu (n233) [692]; Prosecutor v Semanza (Judgment) ICTR-97-20-T (15 May 2003) [386]. 245 Prosecutor v Blaskić (Judgment) IT-95-14-A (19 July 2004) [48]. 246 Furundžija (n242) [233]. 247 Tadić (n233) [692]; Furundžija (n242) [249]; Blaskić (n245) [49]; Akayesu (n233) [467-9]; Semanza (n244) [388]; cf Werle (n185) 127. 248 A Eser, ‘Individual Criminal Responsibility’ in A Cassese and others (eds), 1 The Rome Statute of the International Criminal Court (2002) 801. 249 J Ohlin, ‘Aiding and Abetting’ in Cassese (n148) 239. 250 Cf Mapping (n222) 8. It may sound odd to speak of a criminalization of the debate and refer to the ATS, which, as its name suggests, is a tort statute. Yet, as will be argued below, the ATS is essentially a hybrid the application of which hinges on the application of criminal law norms.

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highlight the possible links between business and human rights abuses. As per Flick, ‘[the person, who] knowingly by his influence and money contributes to the support [of the commission of war crimes] must be deemed to be if not a principal, certainly an accessory to such crimes’.251 Still, not all cases suggest unequivocally that financial assistance by a corporation should mean that the corporation becomes ipso facto involved in the criminal activity. Thus, the USMT held in von Weiszaecker that ‘[w]e cannot go so far as to enunciate the proposition that the official of a loaning bank is chargeable with the illegal operations alleged to have resulted from loans or which may have been contemplated by the borrower’.252 As already stressed, the Nazi industrialist cases were not concerned with the criminal responsibility of legal persons, but were exclusively dealing with the criminal responsibility of the industrialists themselves. Therefore, it is erroneous to treat these cases as providing ‘case support’253 for imposing aiding and abetting liability on corporations. As regards the question of aiding and abetting more specifically, the ICTY has held that, ‘the judgments [of war crimes tribunals] failed to discuss in detail the criteria upon which guilt was determined’.254 In so doing the ICTY offers a further reason to negate the role of the Nazi industrialist cases as establishing a clear standard of aiding and abetting under customary law, which applies to corporations qua legal entities. Setting the Nazi industrialist trials aside, the question of corporate involvement in the commission of crimes under international law received minimum attention in international legal practice until the question of corporate complicity resurfaced following the creation of the UN Global Compact in 1999.255 What is more, the exclusive focus of international criminal law on individual responsibility unavoidably means that State practice regarding corporate complicity is scant. The question has been dealt with predominantly in national case law, and more specifically in the context of the ATS litigation before US courts. The ATS was adopted in 1789 as part of the original Judiciary Act and it simply states:  ‘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’.256 Numerous claims have been brought before US courts against corporations under the ATS serving a double purpose, namely to stigmatize corporate misconduct and secure reparation for harms arising from such misconduct. As Fletcher has succinctly argued, the two purposes of the ATS litigation ‘should be as much to do well (by making money) as to do good (to make the right moral point)’.257 The Statute essentially lay dormant for approximately two centuries until the Filártiga judgment, which breathed new life into the Statute in 1980. The Court in 251

Reprinted in UNWCC, 9 Law Reports of Trials of War Criminals (1949) 29. Von Weizsaecker (Ministries Case) (1949) 14 Trials of War Criminals Before the Nuremberg Tribunals 854. 253 Ramasastry (n188) 104; Ratner (n107) 477. 254 255 Tadić (n233) [674]; cf Furundžija (n242) [193]. See Clapham (n226) 902–905. 256 28 USC § 1350 (2005). 257 G Fletcher, Tort Liability for Human Rights Abuses (2008) 163. 252

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Filártiga held that the ATS conferred jurisdiction over a suit by the sister and father of a Paraguayan national, who had been tortured in Paraguay by the defendant, a Paraguayan official, who at the time was living in New York City.258 Filártiga thus spurred the transformation of ‘a tort primarily protecting international commerce to a tort embodying the general principles of compensation for suffering human rights abuses’.259 In Doe I v Unocal, the California Central District Court ruled, for the first time in US legal history, that a corporation could be held liable under the ATS for violations of the law of nations occurring abroad and that US courts have jurisdiction to adjudicate claims regarding such violations.260 On appeal, a Ninth Circuit Panel reversed the summary judgment ruling and held that Unocal could be found liable for human rights abuses if it provided ‘knowing practical assistance or encouragement that ha[d] a substantial effect on the perpetration of the crime[s]’.261 The majority reasoned that the application of international law would better serve the needs of the international system and it therefore went on to apply an international criminal law standard of aiding and abetting liability derived from the jurisprudence of the ad hoc international criminal tribunals.262 Unocal spawned a slew of ATS claims against corporations, and set the parameters of legal liability for corporations under the ATS, by referring to the doctrine of aiding and abetting. The sheer magnitude of the claims and the persistence of plaintiffs placed the ATS litigation at the forefront of efforts to hold corporations liable under international law as accomplices. At first it might appear paradoxical to consider litigation under a tort statute as relevant to the establishment of a criminal law standard. Still, ‘despite being technically a civil statute . . . [the ATS] deploys substantive concepts that are drawn explicitly from criminal law, phrased in the very language of the criminal law’.263 ATS claims, although nominally civil, utilize substantive legal standards, derived undisputedly from criminal law, as yardsticks against which the conduct in question should be measured.264 The US Supreme Court threw open the question of corporate aiding and abetting liability in Sosa. Therein the Court noted in a footnote to the judgment that when turning to international law as the applicable controlling standard one needs to consider ‘whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor, such as a corporation or individual’.265 258

Filártiga v Peña Irala, 630 F.2d 887 (2nd Cir. 1980). 260 Fletcher (n257) 157. 963 F. Supp. 891–892 (CD Cal 1997). 261 Doe I v Unocal Corp., 395 F.3d 932, 947 (9th Cir. 2002). 262 Doe I v Unocal Corp (n261) 247. 263 J Menon, ‘The Alien Tort Statute:  Blackstone and Tort/Criminal Law Hybridities’ (2006) 4 JICJ 379. 264 Menon (n263) 380–381. 265 Sosa v Alvarez-Machain, 542 US 733, fn 20 (2004). This footnote has generated contradicting conclusions in legal theory as to whether the applicable aiding and abetting standard should be derived from international or federal common law. See C Keitner, ‘Conceptualizing Complicity in Alien Tort Cases’ (2008) 60 Hastings LJ 97; the opposite view is held by C Bradley and others, ‘Sosa, Customary International Law, and the Continuing Relevance of Erie’ (2007) HarvLR 928. 259

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This pronouncement gave rise to a trend in later ATS case law towards affirming the application of an aiding and abetting standard derived by analogy from customary international law.266 This jurisprudential trend though was not universal. Thus, in the Kiobel case, the Second Circuit dismissed the entire complaint rejecting the proposition that corporations may be held liable for torts in violation of international law under the ATS. Judge Cabranes, writing for the majority held that ‘no corporation has ever been subject to any form of liability (whether civil, criminal or otherwise) under the customary international law of human rights. Rather, sources of customary international law have, on several occasions explicitly rejected the idea of corporate liability’.267 He then concluded that corporate liability cannot form the basis of a suit under the ATS.268 Kiobel in turn came under heavy criticism in subsequent decisions by D.C. and Seventh Circuit courts.269 The contradictions and contrasts in ATS case law regarding corporate liability led the Supreme Court to grant a writ of certiorari in Kiobel to consider the question. It then went on to hand down a judgment which may be interpreted as a bar to future ATS litigation considering corporate violations of human rights occurring abroad. The petitioners in Kiobel were a group of Nigerian nationals, residing in the US, alleging before US courts that the respondent corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. According to Chief Justice Roberts, who delivered the Opinion, the crucial question was whether ‘a claim [under ATS] may reach conduct occurring in the territory of a foreign sovereign’.270 Roberts then went on to answer the question in the negative, holding that the presumption against extraterritoriality applies to the ATS. This canon of statutory interpretation provides that ‘when a statute gives no clear indication of an extraterritorial application, it has none’.271 At first, Roberts referred to the ‘danger of unwarranted judicial interference in the conduct of foreign policy [which] is magnified in the context of the ATS’.272 He suggested that foreign policy concerns were ‘not diminished by the fact that Sosa limited federal courts to recognizing causes of action only for alleged violations of international law norms that are “specific, universal and obligatory” ’.273 Roberts then turned to the argument forwarded by the petitioners, namely that the text, history, and purposes of the ATS rebut the presumption against extraterritoriality for causes of action brought under this statute. He found that nothing in the text of the statute implies extraterritorial reach, nor does the fact that the 266 Bowoto v Chevron Corp., 2006 WL 2455752, 4; Almog v Arab Bank, 471 F.Supp.2d 287 (EDNY 2007); In re South African Apartheid, 617 F.Supp.2d 256 (SDNY 2009); Presbyterian Church of Sudan v Talisman Energy, Inc., 582 F.3d 259 (2nd Cir App 2009). 267 Kiobel v Royal Dutch Petroleum Co., 621 F.3d 148 (2nd Cir App 2010). 268 Kiobel v Royal Dutch Petroleum Co. (n267) 148–149. 269 See Doe VIII v Exxon Mobil Corp., 654 F.3d 15 (DC Cir 2011); Flomo v Firestone Natural Rubber Co., LLC, 643 F.3d 1021 (7th Cir 2011). 270 Kiobel v Royal Dutch Petroleum Co., 133 S.Ct. 1664 (2013). 271 Kiobel v Royal Dutch Petroleum Co. (n270) 1664. 272 Kiobel v Royal Dutch Petroleum Co. (n270) 1664. 273 Kiobel v Royal Dutch Petroleum Co. (n270) 1665.

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statute speaks of ‘any civil action’ suggest application to torts committed abroad.274 Furthermore, Roberts held that two of the three principal offences against the law of nations, identified by Blackstone at the time Congress passed the ATS, namely violation of safe conduct and infringement of the rights of ambassadors, have no necessary extraterritorial application.275 As regards piracy, he noted that it typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country . . . The Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application . . . Applying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences . . . pirates may well be a category unto themselves.276

Interestingly, while Kiobel is an archetypal ATS case revolving around alleged corporate misconduct abroad, the Supreme Court says little regarding corporations. Coming to the end of the Opinion, and after having concluded that ATS does not apply extraterritorially, Roberts makes the following statement:  ‘On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application . . . Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices’.277 Perhaps, an a contrario argument could be made that when a corporation is not merely present abroad but actively participates in atrocities, the presumption could be rebutted. Indeed, Justice Kennedy, concurring, insinuated as much noting that ‘[o]ther cases may arise . . . covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation’.278 Yet, such a line of reasoning would undermine the logic of the judgment. The Supreme Court was cognizant of the allegations levelled by the petitioners against the implicated corporations and despite them did not enter into a debate concerning the degree of participation necessary for the survival of an ATS claim against a corporation. Finally, one should here make note of Justice Breyer’s concurrence, with whom Justices Ginsburg, Sotomayor and Kagan joined. Breyer, while agreeing with the Court’s conclusion, proposed a different approach to the ATS focusing on a presumption against extrajurisdictionality, according to which statutes should not be interpreted in a manner that violates international law’s rules on jurisdiction. He suggested that jurisdiction under the ATS existed when (a)  the alleged tort occurred on American soil, (b) the defendant was an American national or (c) the

274 275 276 277 278

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Kiobel v Royal Dutch Petroleum Co. (n270) 1665. Kiobel v Royal Dutch Petroleum Co. (n270) 1666. Kiobel v Royal Dutch Petroleum Co. (n270) 1667. Kiobel v Royal Dutch Petroleum Co. (n270) 1669. Kiobel v Royal Dutch Petroleum Co. (n270) 1669.

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defendant’s conduct substantially and adversely affected an important American national interest,279 essentially evoking the territoriality, nationality, and the protective principles. As regards the specific facts of Kiobel, Breyer underlined that the defendants were foreign nationals and their only presence in the US consisted of an office in New  York City. Furthermore, the plaintiffs alleged that the corporations helped other non-American nationals to perpetrate acts of torture and genocide, but did not perpetrate them themselves. Breyer then concluded, that ‘under these circumstances . . . it would be farfetched to believe, based solely on the defendants’ minimal and indirect American presence, that this legal action helps to vindicate a distinct American interest’.280 Thus, according to Breyer, ATS claims against foreign corporations should be thrown out of the docket, whereas it is not wholly clear that claims alleging American corporations’ complicity in human rights atrocities abroad would necessarily survive scrutiny. Kiobel thus seems to shut the door to future litigation concerning corporate complicity in human rights atrocities abroad. In doing so, it brings to a close a story of high expectations, admirable motives, but also of unsettled case law and clashing dicta, and by implication of an inconsistency in US jurisprudence, which seriously impaired the relevance of such case law in respect of custom formation. In addition, one should here note as an afterthought that the US Executive had on more than one occasion intervened as amicus to refute the propriety of ATS cases against corporations. More specifically in Agent Orange, the Executive squarely rejected the contention that the use of chemical herbicides in Vietnam constituted a violation of the laws of war, cognizable under ATS. It further stressed that ‘because the Executive . . . expressly determined that the conduct at issue did not violate international law, and the President himself acted based upon that determination . . . the President’s actions displace any contrary international legal norm as a rule of decision in this case’.281 In cases of conflicting practices by the organs of a State, one may be disinclined to attach greater importance to one kind of practice than another.282 It remains undisputed though that, in such cases, the internal consistency needed for a State’s practice to count towards the formation of a customary rule may be prejudiced.283 Finally, when analysing incidents of State practice in the context of affirming the emergence of a customary rule, one has to take into account that the conduct of a State may help to elucidate the content of a customary rule, but it may also be in violation of international custom.284 The legality of ATS litigation from the standpoint of international law constituted a controversial question. Suffice to note here that ICJ Judges Higgins, Kooijmans and Buergenthal held in respect of the ATS cases that ‘this unilateral exercise of the function of guardian of international values . . . has not attracted the approbation of States generally’.285 279

Kiobel v Royal Dutch Petroleum Co. (n270) 1671. Kiobel v Royal Dutch Petroleum Co. (n270) 1678. 281 In re Agent Orange Product Liability Litigation, 373 F.Supp.2d 43-44 (EDNY 2005). 282 283 284 Akehurst (n10) 21. ILA (n24) 18. Van Hoof (n5) 110. 285 Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Arrest Warrant of 11 April 2000 (Judgment) [2002] ICJ Rep 77 [48]. 280

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The ATS has constituted a sensational exception in the context of establishing corporate obligations under international law.286 To some it exemplified the ‘need to move towards more binding norms’ for corporations.287 Still, the ATS saga is a phenomenon peculiar to US courts. There exists no other example of such protracted litigation concerning the effects of corporate conduct on human rights. Whereas the ATS was seen by some as the first step in a long march towards affirming the emergence of a customary corporate aiding and abetting standard, Kiobel effectively brought this march to an abrupt halt. The foregoing analysis leads to the conclusion that the bulk of ATS cases falls a step short of impacting on international custom. The fact that international custom is silent on an aiding and abetting standard applicable to corporations is logical in the light of the Rome Statute negotiations. Indeed, during these negotiations States were reluctant to recognize corporations as potential addressees of international criminal law. If it were difficult to conceptualize the corporation as a principal, then it must have been even harder to conceptualize it as an accomplice, considering that the law on aiding and abetting liability is in flux. In addition, the affirmation of corporate complicity under international law in the form of aiding and abetting liability would conjure a fundamental paradox: whereas the corporation qua legal entity cannot perpetrate a crime in its own name, since it is not an addressee of international criminal law, it is nonetheless potentially recognized as an accomplice in the commission of the crime. In other words, the corporate entity can aid or abet another in committing a crime under international law, although it is not bound by the same rule in the first place. Yet, the fact that complicity in the form of aiding and abetting is a manifestation of accessorial criminality does not mean that it is a lesser form of criminality, as it were, and thus by implication that it is unproblematic to acknowledge the corporation as a potential accomplice, without at the same time recognizing it as a principal. Complicity remains a form of criminality. One should accept that in order for a person to be accused of aiding or abetting, this person should simultaneously be recognized as a potential addressee of the criminal proscription. The reason is that ‘the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it frequently grows’.288 Facilitating the commission of a crime is often neither less nor different from the perpetration of the crime itself.289

d. The ‘moral core’ as the normative threshold of international criminal law obligations The ever-expanding reach of corporate activity, coupled with the heightened awareness of the corporation as a potential perpetrator of criminal acts signal, if anything, that calls for the extension of criminal responsibility under international 286 Cf A  Nollkaemper, ‘Translating Public International Law into Corporate Liability’ in Heere (n227) 225. 287 MD Kielsgard, ‘Unocal and the Demise of Corporate Neutrality’ (2005) 36 CalWIJL 191. 288 289 Werle (n185) 150. Tadić (n145) [191].

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law to corporations will proliferate. Both on the national and international levels, there is already a shift from individual to collective responsibility.290 In the light of such shift, it is imperative to reconsider the nature and scope of positive international criminal law as potentially excluding corporations from the circle of its addressees on the basis of normative considerations. The IMT Judgment erected the modern edifice of international criminal law on the cornerstone of individual responsibility, which in its turn reflects the principle of personal culpability: ‘nobody may be held criminally responsible for acts . . . in which he has not personally engaged’.291 Personal culpability presupposes ‘a free-willed, intentional, rational . . . responsible, individual subject: a subject morally suitable for punishment’.292 Indeed, criminal law distinguishes itself from other areas of law in that in principle it is concerned with intentional and knowing behaviour.293 Should a person make a voluntary decision and, acting in accordance with the latter, commit an act of wrongdoing that he could have avoided and that is in violation of a criminal proscription, then criminal law is justified in imposing a sanction, which has an inherent element of moral blame, and is addressed to the offender and relating to the offence.294 In other words, criminal law imposes a social and moral blame on the perpetrator because of his or her decision to violate the law despite his or her capacity to comply with it.295 The criminal responsibility of the individual is rooted in the dual capacity of cognition and will.296 The inherently moral nature of the criminal sanction can be further deduced from the theories justifying the imposition of criminal sanctions. The case law of international ad hoc tribunals indicates two prominent rationales for imposing a criminal sanction:  retribution and deterrence.297 From a retributive perspective, the imposition of the criminal sanction ‘rectifies the moral balance insofar as punishment is what the perpetrator deserves’.298 On the contrary, deterrence suggests that the purpose of the imposition of a criminal sanction is to dissuade others from criminal behaviour in the future.299 Punishment serves as the ‘necessary communicative element’ of the fact that the perpetrator has done a moral wrong.300

290 T Weigend, ‘Societas Delinquere Non Potest?’ (2008) 6 JICJ 927; MC Bassiouni, Crimes Against Humanity in International Law (2nd edn, 1999) 377. 291 Tadić (n145) [186]. 292 D Brown and others, Criminal Laws (3rd edn, 2001)  24; cf B Broomhall, ‘Article 22’ in O Triffterer (ed), Commentary on the Rome Statute of the ICC (2nd edn, 2008) 716; S Lamb, ‘Nullum Crimen, Nulla Poena sine Lege in International Criminal Law’ in Cassese (n148) 749. 293 W Schabas, An Introduction to the International Criminal Court (2nd edn, 2004) 108. 294 Weigend (n290) 936. 295 A Eser and F Rettenmaier, ‘Criminality of Organizations’ in van der Wilt and Nollkaemper (n146) 223. 296 See N Lacey, ‘In Search of the Responsible Subject’ (2001) 64 MLR 353. 297 See Furundžija (n242) [288]; Prosecutor v Stakić (Judgment) IT-97-24-T (31 July 2003) [900]; Prosecutor v Kambanda (Judgment) ICTR-97-23-S (4 September 1998)  [28]; cf G Mettraux, International Crimes and the Ad Hoc Tribunals (2005) 345–346. 298 M Drumbl, ‘Collective Violence and Individual Punishment’ (2005) 99 NwULRev 559. 299 Drumbl (n298) 560. 300 C Safferling, ‘The Justification of Punishment in International Criminal Law’ (1999) 4 ARIEL 135.

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It becomes thus apparent that international criminal law has an irreducible minimum core relevant to moral considerations, which serves as a normative threshold. The main obstacle to submitting corporations to international criminal regulation is that they do not fulfil two fundamental conditions of criminal responsibility.301 First, corporations do not have the capacity to act. The rights and duties of the corporation have to be exercised by natural persons acting as corporate agents. Second, corporations lack culpability, namely the requirement that the perpetrator can be socially and morally blamed for his or her wrongdoing. It is difficult to see how a corporation is to be found culpable, since it lacks a moral conscience and, thus, the capacity to recognize moral or legal norms. Culpability may attach to the conduct of an individual as a result of action in the name of the corporation but not to the corporation itself. If international criminal law is predicated upon personal culpability, it is hard to see how corporations qua legal entities can be culpable thereunder. One way out of the conundrum is by relying on the doctrine of corporate criminal responsibility under domestic law, which is constantly gaining traction.302 Since the biggest obstacle to imposing international criminal law obligations on corporations is the divergence in domestic legislation, it could be argued that the mainstreaming of the latter could pave the way towards the emergence of the corporation as an addressee of international criminal law norms. Yet, this argument has to be qualified. At first, the recognition of corporate criminal liability in domestic law does not proceed uniformly. On the contrary, the term ‘corporate criminal responsibility’ is often used to denote both criminal regulations of corporate conduct properly so-called and pseudo-criminal regulations such as regulatory offences and administrative sanctions.303 Yet, even if we accept for the sake of argument that there is a noticeable trend in domestic law towards recognizing the criminal liability of corporations proper, this should not be taken to mean necessarily that a corresponding form of liability should be recognized on the international level by way of analogy. Weigend has argued that the establishment of corporate criminal liability has been feasible in jurisdictions that have always been ‘comparatively loose in attributing criminal responsibility, using concepts such as strict and vicarious liability, when deemed necessary to reach criminal policy goals’.304 In US law, for example, the strict dividing line between criminal law and civil law is blurred and corporate criminal liability falls exactly on the borderline. Corporations are recognized as criminally liable, yet their liability relies upon vicarious guilt, as opposed to personal fault. This could be seen as running contrary to the main purpose of criminal law, namely the punishment of the morally blameworthy.305 The purpose of the regulation is ultimately more akin to a tort law standard of care as opposed to a

301

302 See Eser and Rettenmaier (n295) 231–232. Bassiouni (n290) 377. See the categorization by Eser and Rettenmaier (n295) 228–229. 304 Weigend (n290) 944. 305 Cf V Khanna, ‘Corporate Criminal Liability:  What Purpose Does It Serve?’ (1995-6) 109 Harvard LRev 1484–1485. 303

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criminal law regulation.306 Weigend is thus correct in suggesting that ‘[a] certain amount of de-moralization of the criminal law is thus a prerequisite for adoption of corporate criminal responsibility’.307 Proponents of corporate obligations under international criminal law rely on two principal arguments. On the one hand, finding the corporation criminally responsible under international law could lead to the seizure and forfeiture of the assets of the corporation, thus making possible the provision of compensation to the victims of corporate misconduct.308 This view of corporate responsibility geared towards securing compensation is conceptually closer to the function of tort law than criminal law and in this sense corresponds to a ‘de-moralized’ conception of international criminal law. On the other hand, certain authors seek to stigmatize corporate misconduct by applying international criminal law to corporations.309 Yet, they are confronted with a normative ‘catch-22’. In order for corporations to be stigmatized they have to be recognized as addressees of international criminal law. In order for this to happen, international criminal law has to be ‘de-moralized’ resulting in it losing some of its sting. The heart of the matter is that such recognition would not merely result in an expansion of the ratione personae scope of international criminal rules but would significantly alter the nature and function of the law itself. International criminal law as it stands has an irreducible core relevant to moral considerations, which functions as a normative threshold of corresponding obligations. To seek to weave corporations into its fabric amounts to pushing the square peg through the hole. Corporate criminal responsibility under international law is not impossible. At the same time, it appears impossible to fit corporations within the ‘structural corsetry’ of positive international criminal law.310 In order for the recognition of corporate criminal responsibility to take place, it is necessary to reconfigure the general principles of international criminal law. The refusal of States to recognize corporations as international criminal law addressees may reflect a continuous belief in its moral core.

4. Preliminary Conclusion The quest for the establishment of corporate obligations under international custom is an effort undertaken as a response to the growing concern about the consequences of corporate misconduct, amplified by the onset of economic globalization. Still, the ascertainment of customary norms cannot occur without due

306 See J Coffee, ‘ “Does Unlawful Mean Criminal”?: Reflections on the Disappearing Tort/Crime Distinction in American Law’ (1991) 71 BULRev 195. 307 Weigend (n290) 944. 308 W Schabas, ‘Enforcing International Humanitarian Law:  Catching the Accomplices’ (2001) 83 IRRC 453. 309 310 See only Clapham (n188) 140. Eser and Rettenmaier (n295) 236.

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regard for the authority of the putative rules within the international legal order. It is true that a customary rule may emerge without there being a need for the accumulation of State practice over time immemorial. Still, the above analysis exhibits that no general and uniform practice has emerged with regard to corporate obligations in the fields of international human rights and criminal law. This lack of uniform practice may correspond to normative concerns as to how far the reach of these two fields of law can be extended. Concluding, one has to negate those claims calling for the recognition of corporate criminal obligations under customary international law. Such claims my reflect the ‘aspirations’ of lawyers—to reprise the language employed by Lowe—but this is not sufficient reason to recognize them as part of international custom de lege lata.

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IV Corporate Obligations under Internationalized Functional Contracts Assessing the legal nature of obligations arising from contracts between international organizations and private law persons, such as corporations, does not lend itself to the application of hard and fast rules. The reasons behind this ambivalence are multifold. Following World War II, there has been an unprecedented proliferation of international organizations, whose structures are infinitely varied. But the emergence of international organizations as a phenomenon cannot only be quantified in terms of the increasing number of organizations. The scope of international organizations’ competence has significantly extended into fields such as economic development and the management and preservation of natural resources. It was noted as far back as 1945 that public international organizations of a permanent character which have responsibilities of any substantial importance will almost always be called upon, in the course of discharging their responsibilities, to enter into a wide variety of legal relations with individuals and corporate bodies in connection with banking transactions, real property, contracts for supplies, copyright and other matters.1

Participating in the market economy through producing, procuring, or selling does not in principle form part of the primary functions of international organizations, at least not more than it does for States. Still, international organizations necessarily enter into contractual transactions with private persons, both legal and natural, as is necessary to ensure their everyday operations. Such transactions may be characterized as incidental to the function of the organization. Yet, commercial transactions, such as the granting of loans, may at the same time also form the core of the mandate of certain international organizations. International practice appears too inchoate to allow for a clear and exhaustive classification of contracts entered into by international organizations and private persons.2 Nonetheless, at least with a view to ascertaining the legal order to which the contractual obligations are subject, certain patterns have emerged in practice.

1

CW Jenks, ‘The Legal Personality of International Organizations’ (1945) BYIL 272. F Seyersted, ‘Applicable Law in Relations between Intergovernmental Organizations and Private Parties’ (1969) 122 RdC 609; CF Amerasinghe, Principles of the Institutional Law of International Organizations (2nd edn, 2005) 388. 2

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Batiffol has proposed a tripartite classification of contracts concluded between international organizations and private persons.3 The first category comprises ordinary or auxiliary contracts, considered to be incidental to the operation of the organization and generally submitted to a certain municipal legal order.4 This category includes construction and maintenance contracts, contracts of service, contracts for the purchase of goods, and insurance contracts. The choice of municipal law reflects ordinary usage in commercial transactions. Unless international organizations make a stipulation to the contrary, when they engage in ordinary commercial transactions, they should be regarded by their contractants as abiding with ordinary commercial usage.5 The second category comprises employment contracts. It is generally accepted that the internal law of the organization acting as the employer governs the employment relationships of international civil servants.6 International organizations nowadays proceed to fully regulate the legal status of the personnel on the basis of rules that are incorporated in staff regulations or decisions of the organization.7 The third category comprises contracts made by an international organization in direct implementation of its functions, and therefore these could be termed functional contracts.8 Transactions with private law persons are in specific cases acknowledged in the constituent instrument of international organizations as an essential component of their function. Notwithstanding the variation in practice as to the express or implied nature of a choice-of-law contractual clause, the prevalent view is that such relations are as a matter of principle subject to the municipal law applicable to the contract.9 Seyersted has argued for a ‘presumption . . . in favour of a particular municipal law’.10 Nonetheless, two types of functional contracts have been described in literature as a ‘special problem’,11 or a ‘rare instance’,12 in relation to which ‘circumstances point towards the application of . . . international law’.13 These are the contract for exploration for polymetallic nodules concluded with the International Seabed Authority (ISA) and the private loan agreement concluded with the International Bank for Reconstruction and Development (IBRD). The present chapter analyzes these two types of contracts with a view to establishing the extent to which they 3 H Batiffol and P Lagarde, 2 Droit international privé (7th edn, 1983)  282–286; cf P Reuter ‘Organisations internationales et évolution du droit’ in L’évolution du droit public (1956) 457. 4 Cf Amerasinghe (n2) 388; HG Schermers and N Blokker, International Institutional Law (4th edn, 2003) 1059. 5 CW Jenks, The Proper Law of International Organisations (1962) 154; N Valticos, ‘Les contrats conclus par les organisations internationales avec des personnes privées’ (1977) 57/I AnnIDI 38. 6 See Amerasinghe (n2) 279. 7 Schermers and Blokker (n4) 379. 8 See Observations by FA Mann, (1977) 57/I AnnIDI 119; cf K Zemanek, Vertragsrecht der internationalen Organisationen (1957) 52, where he speaks of ‘funktionelle Verträge’. 9 P Sands and P Klein, Bowett’s Law of International Institutions (5th edn, 2001) 461. 10 11 Seyersted (n2) 463; cf Jenks (n5) 151. Amerasinghe (n2) 388. 12 A Clapham, Human Rights Obligations for Non-State Actors (2006) 266. 13 Seyersted (n2) 463.

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produce obligations binding directly upon the contracting corporation under international law. A first indication of the international law character of the respective obligations would be the nature of the contracts as functional internationalized contracts, namely contracts governed by international law the terms of which form part of the secondary law of the organization. Yet, in order to uphold the proposition that the contract produces international law obligations binding upon the corporation, one has to scrutinize two further elements of the contract, namely the nature of responsibility attaching to corporations for wrongful acts in violation of their contractual undertakings, and finally the standing of corporations before international dispute settlement bodies.

1. The Concept of Internationalized Functional Contracts The concept of internationalized contracts is not alien to international legal theory. Originally, the term was used to describe contracts entered into by States and foreign investors. The key implication of internationalizing a contract was that once the latter had moved to the international level, it could not be affected by unilateral, national legal action.14 Thus, the idea of internationalization does not speak to the possible methods espoused to subject a contractual relation to international law, but the consequences to be drawn from such subjection: the removal of the contract from the control of municipal legislation. The fact that international organizations in given cases choose national law to govern their contracts with private law persons suggests that the problems arising are less significant compared to contracts between States and private law persons, where the State may have an interest in unilaterally amending contractual terms by way of a unilateral act. As has correctly been noted, ‘the problem arises less in terms of principles (the submission of the organization to another state and its law) than to purely practical considerations’.15 Still, the international organization may exceptionally choose to internationalize its contracts, in order to prevent them from being subject to the legislative will of a State. The internationalization here proceeds from the need of the organization to safeguard the execution of its core functions. The internationalization of a contract entered into by an organization and a private law person may be derived from two factors: (a) the nature of the contractual terms as forming part of the secondary law of the organization and (b) the choice of international law as the governing law of the contract.

14 A Fatouros, ‘International Law and the Internationalized Contract’ (1980) 74 AJIL 137; D Bowett, ‘Claims between States and Private Entities’ (1985-6) 35 CathULR 931. 15 Sands and Klein (n9) 464.

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a. Contracts as secondary treaty law (1) The exploration contract under the Law of the Sea Convention It was not until forty years ago that the potential of seabed mining was fully appreciated when the existence of reserves of polymetallic nodules with considerable contents of nickel, copper, cobalt, and manganese was acknowledged.16 Deep seabed mining, at the time, was considered to be a potential source of wealth.17 The commercial exploration for and, at a later stage, exploitation of seabed resources was thought to be imminent.18 Such developments conditioned the need for the establishment of a regime governing the legal status of seabed mineral resources beyond the limits of national jurisdiction. Naturally, the investment necessary to finance and conduct exploration activities would only become available if there existed a legal regime under which operators could securely acquire legal titles.19 Establishing this legal framework was the ‘decisive motive’20 for convening the Third Conference on the Law of the Sea (hereinafter LOSC Conference), which culminated in the conclusion of the 1982 United Nations Convention on the Law of the Sea (hereinafter LOSC).21 Following extensive negotiations, States agreed to grant mining corporations access to seabed mineral resources and allow the exploration for polymetallic nodules on the basis of a contract that corporations would enter into with the International Seabed Authority (ISA),22 an international organization entrusted with the control over ‘activities’23 in the ‘Area’.24 (a) The contract as a necessary condition for exploration25 The exploration for polymetallic nodules constitutes an ‘activity in the Area’, thus falling within the scope of Section 3 of Part XI LOSC, namely Arts 150-155 of the 16 Cf J-P Lévy, ‘The International Sea-Bed Area’ in R-J Dupuy and D Vignes (eds), 1 A Handbook on the New Law of the Sea (1991) 588–589. 17 S Oda, ‘International Law of the Resources of the Sea’ (1969) 127 RdC 458 noting the ‘vast benefits to be derived from the last frontiers of earth, the deep ocean floor’. 18 See ‘Mineral Resources of the Seabed beyond the Continental Shelf, Report of the Secretary General’ (19 February 1968) UN Doc E/4449/Add. 1 36. 19 Cf ED Brown, 2 Sea-Bed Energy and Minerals: The International Legal Regime (2001) 3. 20 R Wolfrum, ‘Law of the Sea: An Example of the Progressive Development of International Law’ in C Tomuschat (ed), The United Nations at Age Fifty, A Legal Perspective (1995) 315; WG Vitzthum, ‘Sea-Bed and Subsoil’ in 4 EPIL (2000) 328–332. 21 United Nations Convention on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 22 For an overview of the negotiations leading to the establishment of the ISA and the commencement of its function see MC Wood, ‘International Seabed Authority: The First Four Years’ (1999) 3 Max Planck UNYB 173–241. 23 According to Art 1 (1) (3) LOSC, ‘activities’ in the Area are defined as ‘all activities of exploration for, and exploitation of, the resources of the Area’. 24 According to Art 1 (1) (1) LOSC, the ‘Area’ is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’. 25 The focus of the present Chapter lies on the exploration phase and not that of exploitation of polymetallic nodules. Whereas the LOSC often pairs the two under the heading of ‘activities in the Area’ according them identical legal treatment, exploitation of nodules is not yet operational and for this reason the Authority has refrained from issuing corresponding Regulations for Exploitation. Should exploitation become operational, then arguably the main tenets of the present argument would apply equally to the exploitation phase.

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Convention. The LOSC expressly recognizes the right of corporations to access seabed resources and conduct exploration activities. According to Art 153 (2) LOSC Activities in the Area shall be carried out . . . : (b) in association with the Authority by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, when sponsored by such States, or any group of the foregoing which meets the requirements provided in this Part and in Annex III.

This Article should be read in conjunction with Art 153 (3) LOSC, which dictates that activities in the Area, undertaken by any of the entities mentioned in the above quoted provision, are to be carried out on the basis of a contract between the ISA and the entity in question. The contract is to be drawn up in accordance with Annex III LOSC, entitled ‘Basic Conditions of Prospecting, Exploration and Exploitation’. Annex III forms ‘an integral part of the Convention’26 and lays out basic contractual conditions attached to exploration activities. Despite the fact that the LOSC seabed mining regime had been exhaustively negotiated, at the end of the LOSC Conference States remained divided over the Convention, essentially due to the disagreement between developing and industrialized States regarding the resulting seabed mining regime, as incorporated in Part XI.27 The majority of industrialized States objected to it.28 In order to curb these objections, the 1994 Agreement Relating to the Implementation of Part XI LOSC (hereinafter the Implementation Agreement)29 was concluded. The Implementation Agreement extensively modified Part XI and Annex III LOSC in the light of the political and economic changes that had come about since the adoption of the LOSC, as well as the increased knowledge of the nature of deep seabed resources. The provisions of the LOSC and the Implementation Agreement are to ‘be interpreted and applied together as a single instrument’30 and in the case of inconsistency between the provisions of the two instruments, those of the Agreement prevail.31 (b) The contract as a legislative enactment by the ISA An international organization’s capacity to draft and enter into any contract constitutes in the first place a consequence of it being clothed with legal personality on the basis of its constituent instrument. The ISA came into existence on 16 November 1994, as a result of the entry into force of the LOSC on the same date. 26

See Art 318 LOSC; cf A Aust, Modern Treaty Law and Practice (2nd edn, 2007) 436–437. A de Marffy-Mantuano, ‘The Procedural Framework of the Agreement Implementing the 1982 United Nations Convention on the Law of the Sea’ (1995) 89 AJIL 814, noting that ‘a zone without any foreseeable economic uses had held the whole Convention hostage for more than a decade’. 28 See Statements by the Delegates of the U.S.A., XVI Off Rec 155; Belgium, XVI Off Rec 157; France, XVI Off Rec 159; U.K., XVI Off Rec 160. 29 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted 28 July 1994, entered into force 28 July 1996) 1836 UNTS 3 (hereinafter Implementation Agreement). 30 31 Implementation Agreement Art 2. Implementation Agreement Art 2 (1). 27

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Art 176 LOSC grants the ISA ‘international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes’. This express recognition of the international legal personality of the ISA is noteworthy since ‘[t]he explicit conferment of international legal personality on intergovernmental organizations has for a long time remained the exception rather than the rule’.32 The ISA powers encompass the adoption of rules and regulations necessary for the commencement of the conduct of activities in the Area. The legislative mandate of the ISA is in fact expressly provided for in the LOSC.33 The first legislative task of the ISA was to develop and adopt in 2000 the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (hereinafter Regulations).34 The Regulations hold great significance, as they give practical effect to the scheme laid out in the LOSC and the Implementation Agreement and enable the ISA to enter into contracts for exploration with the entities that are eligible to carry out activities in the Area. The substance and language of the Regulations mirror that of the corresponding provisions of Annex III LOSC, the rationale being that contractors would ‘have only one piece of reference material . . . and [would] therefore have no need to refer to the Convention or to its annexes’.35 At the same time, the Regulations consolidate the LOSC provisions with those of the Implementation Agreement. The Regulations, thus, render the complicated conventional regime of polymetallic nodules exploration more coherent and readily understandable. It has been argued that while the Regulations ‘could be read independently from the Convention, [they are] not legally independent from the Convention’.36 Indeed, the LOSC, in establishing the legislative mandate of the ISA, serves as the basis of the Regulations’ validity. Thus, the Regulations should be seen as forming part of the secondary law enacted by the ISA. Each international organization 32

Sands and Klein (n9) 470. See Arts 160 (2) (f ) (ii) and 162 (2) (o) (ii) LOSC, construed in conjunction with Annex III, Art 17 LOSC and Annex, Section 1, Art 5 (f ) of the Implementation Agreement. 34 (4 October 2000)  Doc ISBA 6/A/18, reproduced in (2000) 16 International Organizations and the Law of the Sea Documentary Yearbook 426. The ISA has further adopted (a) the Regulations for Prospecting and Exploration of Polymetallic Sulphides (7 May 2010)  Doc ISBA/16/A12 and (b) Regulations for Prospecting and Exploration of Cobalt-Rich Crusts (27 July 2012) Doc ISBA/18/ A11. The texts of these two instruments are available at . 35 Doc LOS/PCN/SCN.3/WP.6/Rev.1, reproduced in R Platzöder, 6 The Law of the Sea Documents: 1983-1989 (1990) 425, 426. 36 Statement to the Plenary by the Chairman of Special Commission 3 on the Progress of Work in that Commission, Doc LOS/PCN/L.16, reproduced in R Platzöder, 1 The Law of the Sea Documents:  1983-1989 (1990) 479, 479–480 [emphasis added]. As the ITLOS Seabed Disputes Chamber held in Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (2011) [59-60] (hereinafter Responsibilities and Obligations), ‘The Chamber is also required to interpret instruments that are not treaties and, in particular . . . the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area of 2000 . . . The fact that these instruments are binding texts negotiated by States and adopted through a procedure similar to that used in multilateral conferences permits the Chamber to consider that the interpretation rules set out in the Vienna Convention may, by analogy, provide guidance as to their interpretation. In the specific case before the Chamber, the analogy is strengthened because of the close connection between these texts and the Convention.’ [emphasis by the author] 33

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produces certain legal rules on the basis of a mandate provided for in the constitutive instrument. Secondary law should be distinguished from primary law, i.e. the constitutive instrument from which the former derives its validity and legal effect.37 Whereas secondary law is rooted in an international treaty, it may not be equated to acquiring force of a treaty itself.38 Still, it is undisputed that such secondary rules form part of international law.39 Yet, one should rebut the classification of secondary law as a ‘quasi-source’ of international law. Indeed, as explained by Professor Kearney, ‘ “quasi” is part of the legal legerdemain that justifies treating one thing as something else, usually for laudable purposes’.40 The classification of secondary treaty law as a ‘quasi-source’ would only seem to be adding to the confusion surrounding the doctrine of sources, rather than serving as a means of clarification. The Regulations, like other instruments of a technical nature promulgated by international organizations, seek to produce effects beyond the organization’s internal legal order, governing the relationship between the ISA and other persons. To this extent, they may be classified as ‘external secondary law’.41 Overall, it may be argued that the classification of the Regulations as ISA secondary law means that they form part of international law, and that this finding serves as a preliminary indication of the international law nature of the obligations they may impose. The assessment of the legal effect of secondary legal rules, and the extent to which they have obligatory force, is crucial, especially in light of the fact that the legal effect of such acts is often not expressly stated.42 This seems to be the case with the Regulations as well. Their legal effect can only be derived from the provisions of the LOSC, the ISA constituent instrument.43 The nomenclature itself cannot serve as a reliable criterion. There is such variance in practice as to the names given to legal instruments enacted by international organizations that it would be safe to assume that the name of the instrument alone does not indicate its actual legal force.44 The analysis of the legal force of the Regulations can be broken down into two levels. At first, the actual binding force or lack thereof of the Regulations should be examined. Once the binding nature of the instrument is ascertained, one can turn to the question of who is bound by the Regulations and how. 37 Schermers and Blokker (n4) 753; A Verdross and B Simma, Universelles Völkerrecht (3rd edn, 1984) 323; I Seidl-Hohenveldern and G Loibl, Das Recht der Internationalen Organisationen (6th edn, 1996) 219; see also the criticisms of C Tomuschat, ‘Obligations for States Arising Without or Against their Will’ (1993) 241 RdC 326; J Klabbers, An Introduction to International Institutional Law (2002) 204–206. 38 Cf Joint Dissenting Opinion of Sir Percy Spender and Sir Gerald Fitzmaurice, South West Africa Cases (Preliminary Objections) [1962] ICJ Rep 491, stating ‘the fact that an act is done under an authority contained in an instrument which is itself a treaty . . . does not per se give the resulting act a treaty character’. 39 A Pellet, ‘Article 38’ in A Zimmermann and others (eds), The Statute of the International Court of Justice: A Commentary (2006) 714; cf Seidl-Hohenveldern and Loibl (n37) 213. 40 As quoted in Pellet (n39) 712. 41 Schermers and Blokker (n4) 765; Sands and Klein (n9) 280. 42 Amerasinghe (n2) 169. 43 Amerasinghe (n2) 169; cf P Reuter, International Institutions (1958) 241. 44 K Skubiszewski, ‘Enactment of Law by International Organizations’ (1965-66) 41 BYIL 201.

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On the basis of an interpretation of the LOSC relevant provisions, we may distinguish between those Regulations that are obligatory and those that serve a recommendatory function. If the enactment of the Regulations is indispensable for the application of a LOSC provision, then it should be assumed that such Regulations are intended to have binding force. Art 153 (1)  LOSC posits that any activities carried out in the Area must conform, inter alia, to the relevant ISA Regulations. Annex III, Art 17 (1) (b) LOSC demands of the ISA to adopt Regulations in respect of the conduct of operations, including duration, inspection, and supervision of operations, as well as mining standards. Only following the adoption of detailed Regulations on the aforementioned issues could exploration become operational. Thus, as regards the conduct of exploration activities in the Area, the Regulations should be considered of a binding character. The binding character of the Regulations can further be derived from the ISA’s central role in the regime laid out by the LOSC and the Implementation Agreement. The ISA is called upon to act in a monopolistic way as regards organizing activities in the Area.45 ‘This legal monopoly is a logical consequence of the establishment of an international régime for the Area and its resources.’46 In discharging its legislative mandate, the ISA has ‘broad powers to make decisions binding upon States and individuals.’47 Indeed, the ISA assumes the role of the legislature for the Area. The Regulations do bear the hallmarks of a legislative enactment in the sense that the obligations imposed thereby are of a general and abstract character48 addressed not to a specific circle of addressees but an unlimited number of entities that fall under the ISA’s mandate.49 Still, the system of exploration encompasses a plurality of potential contractors, ranging from States to corporations. It is obvious that the latter cannot become a party to the LOSC or a member of the ISA. As a result, the Regulations per se cannot bind the contracting corporations. The necessary condition for the conduct of any exploration activities in the Area, irrespective of whether the contractor is a State Party to the LOSC or a corporation, is the conclusion of a contract with the ISA. It is through the incorporation of the Regulations into the contract for

45 F Paolillo, ‘Institutional Arrangements’ in Dupuy and Vignes (n16) 706. Indeed, the Authority is recognized as the entity exclusively mandated to act on behalf of mankind as a whole as regards the resources of the Area by virtue of Art 137 (2) LOSC and the sole entity entrusted with organizing and controlling activities in the Area, according to Art 153 (1) LOSC. On the basis of this monopoly, it can be argued that States Parties to the LOSC have agreed on a ‘transfer of powers’ to the Authority, at least with regard to its legislative mandate relating to the conduct of activities in the Area. On the notion of ‘transfer of powers’, see D Sarooshi, International Organizations and their Exercise of Sovereign Powers (2005) 29–33. 46 F Paolillo ‘Institutional Arrangements for the International Sea-Bed’ (1984) 188 RdC 196. 47 Remarks by F Seyersted in A Koers and others (eds), The 1982 Convention on the Law of the Sea (1984) 219–220. 48 Cf S Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL 176. 49 R Wolfrum, Die Internationalisierung staatsfreier Räume (1984) 517, who describes the Regulations as ‘generelle und abstrakte Regelungen gegenüber einem unbestimmten Personenkreis’; cf generally on law-making by international organizations K Skubiszewski, ‘A New Source of the Law of Nations: Resolutions of International Organisations’ in IUHEI, En hommage à Paul Guggenheim (1968) 509–510.

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exploration that their binding force takes effect. Such incorporation takes place via the use of standardized clauses. The Regulations set out, in the form of Annexes, the Contract for Exploration50 and the Standard Clauses for the Exploration Contract (hereinafter Standard Clauses).51 The contract for exploration must incorporate the Standard Clauses by reference, thus granting them legal force as between the contracting parties. In this manner, Regulations of an obligatory character bind contractors uniformly.52 The Standard Clauses, in turn, transpose the content of the LOSC provisions regarding activities in the Area and of the Regulations into the contractual arrangement, thus providing a nexus between the LOSC and the secondary law enacted by the ISA and the contract for exploration. The Standard Clauses do not constitute a stand-alone instrument. They must be interpreted and applied together with LOSC and the Implementation Agreement as a single instrument.53 Terms and phrases defined in the Regulations shall have the same meaning when mentioned in the Standard Clauses.54 Such provisos reflect an effort to prevent a fragmentation of the legal regime for seabed exploration through variations in interpretation. The ISA opted for the standardization of the contractual relationship in order to ‘clarify the relationship between the contract and the regulations and [ensure] that contract terms are uniform among contractors’.55 (c) The content of the contractual relationship56 The basic rights of corporations conducting exploration activities, namely security of tenure and exclusivity of the right to explore, have been provided for both in the contract for exploration and the LOSC. According to Standard Clause 2.1, the contractor is granted security of tenure. The contract shall not be suspended, terminated or revised, with the exception of the cases so provided for in the contract. In essence, Standard Clause 2.1 builds into the contract the rights of the corporation, as recognized by Art 153 (6) and Annex III, Art 16 LOSC. The issue 50 Doc ISBA 6/A/18, Annex 3, Contract for Exploration, reproduced in (2000) 16 International Organizations and the Law of the Sea Documentary Yearbook 456–457. 51 Doc ISBA 6/A/18, Annex 4, Standard Clauses for Exploration Contract, reproduced in (2000) 16 International Organizations and the Law of the Sea Documentary Yearbook 458 et seq. 52 G Jaenicke, ‘Legal Aspects Concerning the Rules and Regulations of the International Sea-bed Authority to be Drafted by the Preparatory Commission’ in A Koers and others (eds), The 1982 Convention on the Law of the Sea (1984) 207. 53 54 Standard Clause 1.3. Standard Clause 1.2. 55 Chairman of the Legal and Technical Commission, Statement to the Council of 23 March 1998, reproduced in MW Lodge, ‘International Seabed Authority’s Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area’ (2002) 20 JENRL 279. 56 As of 2013, the Authority has entered into thirteen contracts for exploration. The Contractors are:  the Government of India; Institut français de recherché pour l’exploitation de la mer; Deep Ocean Resources Development Company (DORD); State Enterprise Yuzmorgeologiya; China Ocean Mineral Resources Research and Development Association (COMRA); Interoceanmetal Joint Organization (IOM); The Government of the Republic of Korea; The Federal Institute for Geosciences and Natural Resources of the Federal Republic of Germany; Nauru Ocean Resources Inc.; Tonga Offshore Mining Limited; Marawa Research and Exploration Ltd; UK Seabed Resources Ltd; G-Tec Sea Mineral Resources NV. See .

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of security of tenure was negotiated during the LOSC Conference and there was agreement amongst participants that ‘[d]eep seabed mining was a high risk venture and involved sophisticated technology and high investments and therefore security of tenure and investments were necessary’.57 Standard Clause 2.2 further provides for the ‘exclusive right [of the contractor] to explore for polymetallic nodules in the exploration area in accordance with the terms and conditions of [the] contract’.58 The exclusive right of the contractor involves a corollary obligation imposed on the ISA to ‘ensure that no other entity operates in the same area for a different category of resources in a manner that might unreasonably interfere with the operations of the Contractor’.59 Turning to the basic obligations of the contractor, the latter is required to carry out the exploration activities in accordance with the terms and conditions of the contract, the Regulations, the LOSC, and the Implementation Agreement, and other rules of international law not incompatible with the LOSC.60 Any obligations arising from the contract or by virtue of the contract from the aforementioned instruments are to be fulfilled in good faith. Furthermore, the corporation is under a dual obligation to (a) submit to the ISA for approval proposed training programmes for the training of ISA personnel61 and (b) to transfer to the ISA all data and information necessary for and relevant to the effective exercise of the powers and functions of the ISA in respect of the exploration area.62 The underlying rationale behind these obligations is to enable the ISA to properly exercise its functions,63 and to promote the transfer of technology and scientific knowledge to the Enterprise.64 Finally, the contracting corporation is obliged under Standard Clause 15.2 to observe and comply with such labour regulations as may be adopted by the ISA while carrying out exploration activities under the contract.65 The ISA has yet to develop regulations regarding labour standards applicable to the personnel of the corporations engaging in exploration activities. Still, relying on the LOSC

57 Weekly Report by the Co-Chairmen on the Activities of the Workshop, Doc. A/CONF.62/C.1/ WR.2, VI Off Rec 164. 58 Cf Annex III, Art 3 (4) (c) LOSC establishing the exclusivity of the right to be conferred by the Authority on the Contractor. 59 60 Standard Clause 2.2; cf Annex III, Art 16 LOSC. Standard Clause 13. 61 Standard Clause 8, which mirrors the obligation envisaged by Annex III, Art 15 LOSC, as reaffirmed by Section 5 (1) (c) of the Annex to the Implementation Agreement. 62 Standard Clause 11.1. See also Annex III, Art 14 (1) LOSC. 63 Explanatory Memorandum by the Chairman of Negotiating Group  1, Doc A/CONF.62/ RCNG/2, incorporating NG1/13/Add.1, X Off Rec 135–136. 64 See ‘Economic Implication of Sea-Bed Mineral Development in the International Area: Report of the Secretary-General’ Doc A/CONF.62/25, III Off Rec 27; cf S Nandan and others (eds), 6 United Nations Convention on the Law of the Sea 1982: A Commentary (2002) 733. 65 The Clause reads: ‘The Contractor shall, in carrying out exploration under this contract, observe and comply with such rules, regulations and procedures as may be adopted by the Authority relating to protection against discrimination in employment, occupational safety and health, labour relations, social security, employment security and living conditions at the work site. Such rules, regulations and procedures shall take into account conventions and recommendations of the International Labour Organization and other competent international organizations.’

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Conference and the ISA Preparatory Committee debates, one may argue that a consensus had emerged that ‘conditions of work should be in conformity with the common minimum international standards established by the ILO’.66 More specifically, during the ISA Preparatory Committee debates, it was clarified that a distinction should be drawn between the existing standards incorporated in ILO Conventions, and those standards to be promulgated by the Authority.67 ‘The Authority should draw relevant provisions from ILO Conventions for application in the Area. Those provisions would then not be provisions of the ILO but of the Authority.’68 Thus, the contractors would have to comply with the regulations promulgated by the ISA, by virtue of the contract for exploration incorporating them by reference. Labour standards by their nature often deal with the conferral of rights to individuals. It could be supported that labour standards promulgated by the ISA and transposed into the contract for exploration could result in establishing obligations of corporations owed to their employees. However, as was noted during the Preparatory Committee discussions, ‘[t]he intention was not to create new health and safety rules, but to clarify the contractor’s relationship with the Authority in that regard’.69 At no point during these discussions was it suggested that regulations on labour adopted by the Authority established obligations owed to individuals. On the contrary, the obligations assumed by the contracting corporations under the exploration contract were thought to operate reciprocally in a bilateral manner between the corporation and the ISA.

(2) Private Loan Agreements under the auspices of the IBRD The creation of the International Bank for Reconstruction and Development (hereinafter IBRD) at the Bretton Woods Conference of 1944 should not only be considered as a means of remedying the financial crisis raging throughout WWII but predominantly as a reflection of the significance attached to the need for international organization in the field of international economic development. Throughout the first half of the twentieth century, international economic transactions operated on a strictly bilateral basis, in the form of commerce or customs treaties, commodity agreements, and inter-State loans. The disruption of the international economy following the collapse of the gold standard led to a criticism of the existing financial system as one that failed to assure stability of exchange rates. At the same time, the security of loans could not be guaranteed, and the conditions under which loan agreements were made enabled the lending State to intervene 66 See Statement by the Delegate of Israel, A/CONF.62/SR 150, XV Off Rec 29; as regards the Preparatory Commission, see Draft Final Report of Special Commission 3, Doc LOS/PCN/ SCN.3/1992/CRP.17, in R Platzöder (ed), 15 The Law of the Sea: Documents 1983-1992 (1993) 212. 67 Statement by the Representative of Jamaica, Doc SEA/KIN/14, reprinted in R Platzöder (n66) 497; Statement by the Representative of Switzerland, reprinted in Platzöder (n66) 500. 68 Statement by the Representative of Germany, Doc SEA/KIN/20, reprinted in Platzöder (n66) 520, 526. 69 Statement by the Representative of Kenya, reprinted in Platzöder (n66) 500; cf Statement by the Representative of Tunisia, reprinted in Platzöder (n66) 499, who noted that ‘[w]ork should focus on contracts between the contractors and the Authority’.

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in the domestic affairs of the borrowing State. Such criticisms, coupled with the realization that international financial efforts were necessary in order to reconstruct the economies influenced by the War, formed the background against which the Articles of Agreement70 of the IBRD were negotiated at Bretton Woods.71 The Articles of Agreement of the IBRD constitute the first international agreement of an economic character and universal scope, and as such they constitute a turning point marking the extension of international law into the new domain of international economic development.72 The Articles mandate the Bank to act as a financier lending funds directly to private investors on the basis of a private loan agreement, concluded between the IBRD and the private investor. (a) The legal personality of the IBRD and its capacity to enter into contracts The IBRD was established in 1944 as the original institution of the World Bank Group. Today, the Group also comprises the International Development Association (IDA), the International Finance Corporation (IFC), the International Centre for Settlement of Investment Disputes (ICSID) and the Multilateral Investment Guarantee Agency (MIGA). The IBRD is a specialized agency of the United Nations in accordance with Art 57 of the UN Charter. Nonetheless, such designation does not bear on the legal personality of the Bank, in the sense that it does not in and of itself clothe it with international legal personality. Specialized agencies are no different to other international organizations and they may be recognized as subjects of international law to the extent that they actually have been endowed with international legal personality.73 Art VII of the Articles of Agreement (hereinafter AA) provides for the personality of the IBRD in the following terms: Section 1 of Art VII AA establishes that ‘To enable the Bank to fulfill the functions with which it is entrusted, the status . . . set forth in this Article shall be accorded to the Bank in the territories of each member’. Section 2 of Art VII AA goes on to describe this status as ‘full juridical personality, and, in particular, the capacity: (i) to contract; (ii) to acquire and dispose of immovable and movable property; (iii) to institute legal proceedings’. These provisions do not confer upon the Bank international legal personality expressis verbis. On the contrary, the use of terms such as ‘to contract’ and ‘capacity to acquire and dispose of property’ would rather suggest that the personality envisaged is personality under municipal law.74 A further argument in the same direction is the formulation of Art VII Section 1 AA, which speaks of recognition of the Bank’s personality ‘in the territories of each member’. 70

(signed 22 July 1944, entered into force 27 December 1945) 2 UNTS 134. On the historical background of the establishment of the IBRD, see A Rigo-Sureda, ‘The Law Applicable to the Activities of International Development Banks’ (2004) 308 RdC 29–31; R Lavalle, La Banque mondiale et ses filiales (1972) 19–20. 72 Cf W Friedmann, ‘General Course in Public International Law’ (1969) 127 RdC 105–107. 73 W Meng, ‘Article 57’ in B Simma and others (eds), The Charter of the United Nations: A Commentary (2nd edn, 2002) 950; R Matzel, Die Sicherung von Weltbankkrediten (1968) 6. 74 Amerasinghe (n2) 69; Zemanek (n8) 28–29. 71

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The constituent instruments of international organizations often grant these organizations legal personality in municipal law expressis verbis, so as to allow them to act as legal persons within the municipal legal order of the Member States.75 Once legal personality under municipal law has been conferred upon an international organization on the basis of its constituent instrument, Member States are under an obligation to recognize such personality in their respective domestic legal orders.76 Yet, the express conferral of legal personality under municipal law on the international organization does not preclude the possibility that the latter has been granted international legal personality impliedly.77 Silence of the constitution does not imply absence of personality.78 On the contrary, the presumption under international law is, if anything, in favour of the organization having international legal personality.79 Such presumption has then to be confirmed through the examination of the constitutional provisions. Any examination of the question of international legal personality has to start from the ‘epoch-making’80 Reparation Advisory Opinion.81 The ICJ, asked to pronounce on the capacity of the UN to claim damages for injuries suffered by UN staff, ruled that the organization was deemed to possess ‘a large measure of international personality’.82 The Court substantiated such a finding by holding that entities other than States may in principle enjoy international legal personality since ‘the subjects of law in any legal order are not necessarily identical in their nature or in the extent of their rights’.83 The ICJ then proceeded to derive the international legal personality of the organization from four objective considerations.84 First, ‘to achieve [its] ends the attribution of international personality [to the organization] is indispensable’.85 Second, the organization has been equipped by virtue of its constitutive instrument ‘with organs, and . . . special tasks’.86 Third, the constitutive instrument has defined the position of Member States vis-à-vis the organization, inter alia, ‘by giving the Organization legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the Organization and its Members’.87 Fourth, ‘[p]ractice . . . has confirmed this character of the Organization, which occupies a position in certain respects in detachment from its Members’.88 The test adopted by the Court is a functional one, which is logical considering that international law lacks a constitutional system for recognizing associations 75

Jenks (n1) 267–270. Amerasinghe (n2) 70; cf Observation by D Vignes, (1995) 66/I AnnIDI 304. 77 Cf Rigo-Sureda (n71) 153. 78 N White, The Law of International Organisations (2nd edn, 2005) 33. 79 White (n78); P-M Dupuy, Droit international public (8th edn, 2006)  184; cf Klabbers (n37) 55–56. 80 CW Jenks, The Common Law of Mankind (1958) 181. 81 Reparation for Injuries Suffered in the Service of the United Nations Case (Advisory Opinion) [1949] ICJ Rep. 174. 82 83 Reparation (n81) 179. Reparation (n81) 178. 84 M Rama-Montaldo, ‘International Legal Personality and Implied Powers of International Organizations’ (1970) 44 BYIL 124. 85 86 Reparation (n81) 178. Reparation (n81) 178. 87 88 Reparation (n81) 179. Reparation (n81) 179. 76

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as legal persons.89 The Court, in an inductive manner, affirmed the conferral of specific legal capacities on the organization as such and of functions which could not be practically carried out if the organization was deprived of international legal personality.90 Whereas the judgment referred in passing to the ‘objective international personality’91 of the organization, it did not reach the conclusion that organizations are ipso facto international legal persons.92 On the contrary, ‘judges took great care to link the attribution of such personality to the will of the Member States’.93 The international personality of an organization can thus be based on the use of objective criteria, representing nonetheless the ‘disembodied will of States’.94 Since the Reparation Opinion referred solely to the capacity of the UN, it is only by way of analogy that one may apply the reasoning of the ICJ to the IBRD in order to assess the extent to which it has been clothed with international legal personality.95 At the outset, the purposes of the Bank, as set forth in Art I of the Articles of Agreement, encompass the Bank’s providing assistance ‘in the reconstruction and development of territories of members’ and ‘promot[ing] the long-range balanced growth of international trade and the maintenance of equilibrium in balances of payments by encouraging international investment for the development of the productive resources of members’. It would be difficult to conceive how the IBRD could achieve such broad-ranging tasks if it were deprived of international legal personality. Second, the legal capacity of the Bank encompasses the prescription of terms of membership to the Bank for other than original members (Art II, Section 1 (b) AA), the determination of the minimum number of shares to be subscribed by other than original Members (Art II, Section 3 (a)  AA), the prescription of rules laying down the conditions under which members may subscribe shares of the authorized capital stock of the Bank in addition to their minimum subscriptions (Art II, Section 3 (b) AA), and more significantly the determination of the conditions and terms of loans made to members (Art III Section 1(b) AA). Such provisions constitute evidence that Members bestowed upon the Bank a legislative mandate, encompassing the adoption of a series of rules and instruments. Finally, a series of provisions in the Articles of Agreement underline the fact that the Bank was conceived as an organization with a distinct legal personality. Art IX AA expressly states that a question of interpretation arising ‘between any

89

I Brownlie, Principles of Public International Law (7th edn, 2008) 676. Sands and Klein (n9) 472; Amerasinghe (n2) 81–82. 91 Reparation (n81) 185. 92 On the question of ‘objective international personality’, see F Seyersted, Objective International Personality of Intergovernmental Organizations (1963). 93 Sands and Klein (n9) 472; cf Schermers and Blokker (n4) 990; J Alvarez, International Organizations as Law-Makers (2005) 133–134. Indeed, the Court stressed that ‘[i]t must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged’. See Reparation (n81) 179. 94 White (n78) 45. 95 Cf Schermers and Blokker (n4) 990; A  Reinisch, International Organizations before National Courts (2000) 56–57. 90

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member and the Bank or between any members of the Bank shall be submitted to the Executive Directors for their decision’. According to Broches, the distinction between the Bank as a separate entity and Members ‘could not be clearer’ when it comes to Art IX.96 On the basis of the above considerations, one could conclude that the intention of the founding Members, as crystallized in the Articles of Agreement, was to confer international legal personality on the IBRD.97 Such a conclusion has been upheld in practice. In 1951 Switzerland concluded an agreement with the IBRD concerning the Bank’s legal status in the Swiss legal order, affirming expressly the international legal personality of the IBRD.98 Furthermore, in 1948 the UN and the IBRD entered into an international agreement regarding the relationship between the two organizations. This agreement in its Preamble characterizes the IBRD as ‘an agenc[y] established by inter-governmental agreement and having wide international responsibilities as defined in [its] basic instrument in economic . . . fields’.99 (b) The guarantee as a necessary condition of the Private Loan Agreement According to Art III, Section 4 (i) AA, the Bank may ‘make loans to any . . . business, industrial, and agricultural enterprise in the territories of a member’. Still, such private loans are made subject to the condition that ‘when the member in whose territory the project is located is not itself the borrower, the member or the central bank or some comparable agency of the member which is acceptable to the Bank, fully guarantees the repayment of the principal and the payment of interest and other charges on the loan’. On the one hand, IBRD private lending is in principle project-specific, i.e. financing should contribute to the completion of a certain project.100 On the other hand, the express and unqualified formulation of the Articles of Agreement affirms the State guarantee as a prerequisite to the Bank’s lending to entities other than a Member State. The State essentially grants its previous consent to the making of a private loan agreement in the form of the guarantee. The provision cannot be read as allowing for exceptions. Such a reading would contravene the preparatory works, as well as the subsequent practice, of the Bank.101 During the Bretton 96 A Broches, ‘International Legal Aspects of the Operations of the World Bank’ (1959) 98 RdC 328. 97 Broches (n96). 98 See Art I of the Agreement on the Legal Status in Switzerland of the IBRD (signed 29 June 1951) 216 UNTS 348. 99 Protocol Concerning the entry into force of the Agreement between the United Nations and the International Bank for Reconstruction and Development (signed 15 April 1948) 16 UNTS 341. 100 Still, over the years the IBRD has also been engaging in non-project lending. See I Shihata, 3 The World Bank in a Changing World (2000) 107–110. 101 The policy reasons behind the Bank’s insistence on the necessity of a governmental guarantee are numerous. The guarantee serves as an additional insurance that Bank loans would be serviced on time, and it gives the State a say in directing investment into projects which are regarded as the most beneficial for the welfare of that State as a whole. See ‘The Requirement of a Governmental Guarantee of Bank Loans to Entities Other than a Member Country’, Memorandum of the General Counsel, 16 April 1991, reproduced in I Shihata, The World Bank Legal Papers (2000) 426.

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Woods Conference, it was suggested that the Bank should, under certain circumstances, lend to business enterprises without any guarantee. However, such a proposal was not accepted.102 What is striking in the case of the IBRD is that the guarantee of a State is considered a condition sine qua non for the making of a loan to a private investor. Normally, private borrowers do not seek governmental guarantees, since this might result in governmental interference with the conduct of their business.103 Furthermore, the IBRD Guarantee Agreements seem to be giving rise to a rather ‘unusual situation in which the obligations of the guarantor are not merely accessory to those of the borrower’.104 The nature of the guarantee agreement as a precondition to the loan agreement logically bears on the nature of the private loan agreement itself. For the above reasons, the nature of the relationship between the guarantee and the loan agreement calls for closer scrutiny. First of all, the guarantee agreement between the IBRD and the Member State is generally considered to be an international treaty.105 The applicability of international law to the guarantee agreement is unproblematic in the sense that both contracting parties are subjects of international law. In what has become a standard clause in Guarantee Agreements concluded between the IBRD and Member States, ‘the Guarantor hereby unconditionally guarantees, as primary obligor and not as surety merely, the due and punctual payment of the principal of, and the interest and other charges on, the Loan . . . ’.106 The guarantee agreement between the Bank and the Member State is based on legal conceptions developed mainly in the context of municipal law.107 Under a guarantee agreement, the party acting as the guarantor assumes the obligation to discharge another’s debt by payment to the creditor.108 Yet, there has been considerable debate in theory as to the nature of the obligations assumed by the guarantor as regards the IBRD practice. It has been argued that the obligations of the guarantor are subsidiary to that of the debtor, and although the guarantor remains a primary obligor, he is not the principal.109 In other words, the guarantor undertakes the obligation to fulfil the obligation in case the principal obligor fails to perform his engagement.110 This line of argument does not seem to sit comfortably with the actual formulation of the aforementioned clause though. The negative formulation 102 See Report of Subcommittees A and B of Committee 2, on the Operations of the Bank, to Commission II, July 13 1944, reproduced in 1 Proceedings and Documents of the UN Monetary and Financial Conference (1948) 560. 103 G Delaume, Legal Aspects of International Lending (1967) 218. 104 Broches (n96) 351; G Delaume, ‘The Proper Law of Loans Concluded by International Persons’ (1962) 56 AJIL 69. 105 See Broches (n96) 344. 106 See for example Art II, Section 2.01 of the Guarantee Agreement between the IBRD and Belgium (signed 30 March 1960) 379 UNTS 104 [emphasis added]. 107 Matzel (n73) 119. 108 See J O’Donovan and J Phillips, The Modern Contract of Guarantee (2003) 9–13. 109 J Salmon, Le rôle des organisations internationales en matière de prêts et d’emprunts (1958) 248; CH Alexandrowicz, World Economic Agencies (1962) 206. 110 Salmon (n109), drawing an analogy between the guarantee agreement and the French legal concept of caution solidaire conventionelle.

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of the second part of the clause, namely ‘not as surety merely’, seems to rebut the suggestion of the subsidiary nature of the guarantor’s obligations.111 The better interpretation seems to be that of Broches, who argued that ‘under the Bank’s guarantee agreements the obligations of the guarantor are . . . those of a joint co-debtor’.112 The guarantor may be required to perform without any prior notice to the borrower or any action against the latter.113 Such assessment of the legal status of the guarantor is affirmed in practice. The IBRD has in the past held the guarantor State liable in the absence of, or refusal or incapability to perform on the part of, the genuine debtor in connection with a number of loans to Central African countries.114 The loan agreement can no longer be viewed exclusively as a bilateral contractual relationship in the light of the arising interdependent tripartite relations under the guarantee agreement, namely between Bank-lender, corporation-borrower and State-guarantor. The loan agreement cannot be made in the first place if the State does not consent to it by entering into a guarantee agreement with the Bank. The guarantee is a condition sine qua non for the agreements between the Bank and corporations. These tripartite relations ‘are so intimately related that to consider them separately would ignore both the factual and the juridical considerations pertaining to the IBRD’s lending operations’.115 (c) The Private Loan Agreement as a regulative enactment by the IBRD The determination of the conditions and terms of loans is a power that resides with the IBRD. The Articles of Agreement confer this power to the Bank expressly.116 The Bank has respectively issued a set of ‘General Conditions for Loans’ (hereinafter GenCon).117 The Conditions comprise a number of standardized clauses. Such clauses may be incorporated, by reference, into the Bank’s Loan Agreements and Guarantee Agreements, thus acquiring legal effect by virtue of the Agreement as between the contracting parties. Nonetheless, such incorporation is, in the first place, not mandatory. Section 1.01 GenCon provides that [t]hese General Conditions set forth certain terms and conditions generally applicable to the Loan Agreement and to any other Legal Agreement. They apply to the extent the Legal Agreement so provides.118

Thus, the General Conditions promulgated by the Bank seem to lack a binding legal effect vis-à-vis Member States, since the latter may refuse to incorporate them into any Loan or Guarantee Agreement they conclude with the Bank. The same 111

Matzel (n73) 126. Broches (n96) 351; cf Delaume (n104) 69; Lavalle (n71) 224. 113 H Hahn, ‘Agreements of Credit and Financial Guarantees by States under Public International Law’, in C Voskuil and others (eds), Credit and Guarantee Financing Transfer of Technology (1987) 27. 114 115 Hahn (n113) 28; Matzel (n73) 127. Delaume (n104) 69 [emphasis added]. 116 Art V, Section (2) (f ) AA. 117 IBRD, General Conditions for Loans (Dated July 1, 2005, as amended through February 12, 2008)  available at . 118 [emphasis added]. 112

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could be said to apply to contracting corporations. In principle, the incorporation of the General Conditions is not a precondition of the making of the loan agreement. States and corporations may only be bound by the Conditions by virtue of their incorporation into the Loan and Guarantee Agreements to the extent such incorporation has been agreed upon. In the case of incorporation, the Conditions govern the rights and obligations of the parties with the same force and effect as if they were fully set forth in the agreement. Yet, in case of inconsistency between the Loan Agreement and the General Conditions, the Loan Agreement prevails.119 The position of the General Conditions within the framework of international institutional law has often been disputed.120 Seyersted has argued that since the General Conditions produce legal effect solely on the basis of incorporation, by reference, then they are part of the contract and not of unilateral legislation promulgated by the Bank.121 Alexandrowicz, on the contrary, contends that the General Conditions are ‘in the nature of a quasi-legislative instrument being part of the internal law’ of the IBRD.122 Whether the General Conditions are legislative in nature or whether they form part of the secondary law of the IBRD are two related, but separate questions. On the one hand, the claim that the General Conditions are of a legislative or quasi-legislative nature should be refuted. An instrument should be considered to be a legislative enactment only when it is of a general character and intended to be binding, as is the case with the Regulations and the contract for exploration. Still, the lack of binding force does not ipso facto mean that the General Conditions should be excluded from the ambit of the Bank’s secondary law. To do so for lack of binding force, despite the fact that their determination is expressly envisaged as part of the IBRD mandate in the Articles of Agreement, would imply a very narrow conception of what secondary law entails.123 The General Conditions constitute a regulative enactment of the Bank, as opposed to a legislative one.124 One could draw a parallel here between the General Conditions and what Schermers terms ‘special forms of conventions’.125 This category encompasses rules or regulations adopted by an international organization which become binding on the State as a matter of international law, if it explicitly consents to them. If not, then these rules only have a recommendatory function. This is the case with the General Conditions. If the State incorporates them in a Guarantee Agreement, then they acquire treaty status, since the guarantee agreement between the Bank and the State is an international treaty. Otherwise, they serve as a recommendation in the terms of the definition given by Virally: an instrument of an international organization with one or more addressees external to the organization itself, serving as an invitation to adopt certain conduct.126 As regards the positions of

119 121 123 124 125 126

120 Section 1.02 GenCon. Cf Skubiszewski (n44) 248. 122 Seyersted (n2) 512. CH Alexandrowicz (n109) 209. Cf Sands and Klein (n9) 286–287, on non-binding acts forming part of ‘secondary legislation’. See the analysis earlier at 120–124. Schermers and Blokker (n4) 790. M Virally, Le droit international en devenir: essais écrits au fil des ans (1990) 171.

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corporations, they could not themselves be bound by the Conditions, even if they were intended to be binding, since corporations are not members of the IBRD. Still, the incorporation of the General Conditions by reference into the loan agreement renders them binding by virtue of the latter. (d) The content of the contractual relationship An analysis of the rights and obligations assumed by the contracting parties to the IBRD loan agreement, as embodied in the General Conditions, highlights the fact that the agreement basically derives from legal conceptions of municipal law. Arguably the characteristics of a loan comprise an agreement ‘whereby one person lends . . . a sum of money to another, in consideration of a promise . . . to repay that sum on demand or at fixed or determinable future time . . . with or without interest’.127 The corporation as a borrower is granted the right to make ‘withdrawals of amounts of the Loan from the Loan Account in accordance with the provisions of the Loan Agreement’.128 These withdrawals are permitted solely with the purpose of meeting expenses in connection with the project as they are actually incurred.129 Any such withdrawal shall be made following a written request from the borrower accompanied by evidence in support of the application.130 The application and the accompanying evidence must be sufficient in form and substance to satisfy the Bank that the borrower is actually entitled to withdraw from the Loan Account.131 The borrower has finally a right to request the Bank to deposit amounts from the Loan account to a designated account as advances for the purposes of the Bank.132 Turning to the obligations of the borrower vis-à-vis the IBRD, they may be classified as loan-specific, project-specific and supervision-specific. The loan-specific obligations encompass first and foremost the obligation of the corporation to repay the withdrawn amount to the Bank,133 as well as the obligation to pay interest on the withdrawn amount at the rate specified by the loan agreement134 and, finally, to pay the Bank a front-end fee on the whole of the loan amount at the rate specified in the agreement.135 The IBRD loans, as mentioned, are in principle made with the purpose of financing a specific project. This aspect of the IBRD lending activities is mirrored in the loan agreement, which incorporates an array of obligations assumed by the corporation vis-à-vis the Bank regarding the execution of the project. The corporation is under a general obligation not to take, or permit the taking of any action, which would prevent or interfere with the execution of the project or the performance of its obligations under the loan agreement.136 In executing the project, the borrower is obliged to act with due diligence and in conformity with appropriate, 127 Chitty on Contracts (29th edn, 2004)  § 38-223; cf P-H Antonmattei and J Raynard, Droit civil, Contracts spéciaux (4th edn, 2004) 259; H-P Mansel, ‘Vor §488’ in C Berger and others (eds), Bürgerliches Gesetzbuch: Kommentar (11th edn, 2004) 597–599. 128 129 Section 2.01 (b) GenCon. Cf Art III, Section 5 (b) AA. 130 131 Section 2.01 (a) and (c) GenCon. Section 2.01 (d) GenCon. 132 133 Section 2.04 (a) GenCon. Section 3.03 GenCon. 134 135 Section 3.02 (a) GenCon. Section 3.01 GenCon. 136 Section 5.02 GenCon.

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administrative, technical, financial, economic, environmental and social standards and practices and the loan agreement itself.137 Finally, the borrower is under an obligation to promptly provide, as needed, the funds, facilities, services and other resources required for the project, and ensure that all goods, works and services financed out of the proceeds of the Loan are used exclusively for the purposes of the project, unless otherwise agreed with the Bank.138 Moreover, the General Conditions include a series of obligations binding on the borrowing corporation that aim at facilitating the supervision function of the Bank over the execution of the project. The contractor is enjoined to furnish to the Bank all plans, schedules, reports, and contract documents.139 At the same time, it is requested of the corporation that it maintain policies and procedures, which are adequate to enable it to monitor and evaluate the progress of the project and periodically submit reports integrating the results of such monitoring and evaluation activities to the Bank.140 Finally, the corporation and the Bank shall cooperate fully to assure that the purposes of the loan and the objectives of the project will be accomplished. Thus, they are under an obligation to exchange views on the project and inform each other of any condition that might interfere with the performance of their obligations under the project.141 It has been suggested that one of the major changes in the Bank’s lending activities is that it has moved from a strict bank-borrower relationship to a participatory approach in project lending.142 The Bank has developed a series of instruments, most notably the Operational Policies and Procedures, which are designed to guide the staff of the IBRD in preparing, assessing and implementing the financed project.143 These instruments provide for the consultation with stakeholders, such as NGOs and indigenous peoples, prior to the Bank’s making a decision on the financing of a project. More prominently, in the direction of ensuring wider transparency regarding its operation, the Bank has established the Inspection Panel, which grants groups of individuals direct access to the IBRD in case their rights or interests have been or are likely to be directly and adversely affected by an action or omission of the Bank as a result of a failure of the Bank to follow its operational policies and procedures with respect to the design, appraisal and/or implementation of a project financed by the Bank.144 Such developments should not be considered as affecting the contractual relationship between the Bank and the borrowing corporation in any way. The inspection process does not create new contractual obligations binding on any of the parties to the loan agreement, i.e. the Bank or the corporation.145 The Operation Policies can produce obligations on the corporation and become enforceable 137

138 Section 5.01 GenCon. Sections 5.03 and 5.06 GenCon. 140 Section 5.07 GenCon. Section 5.08 GenCon. 141 142 Section 5.10 GenCon. Shihata (n100) 97. 143 See L Boisson de Chazournes, ‘The Bretton Woods Institutions and Human Rights’ in W Benedek and others (eds), Economic Globalization and Human Rights (2007) 228. 144 IBRD, Resolution No. IBRD 93-10, 22 December 1993, available at . 145 I Shihata, The World Bank Inspection Panel (2nd edn, 2004) 258. 139

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solely if they are incorporated in the contract by consent of the Parties.146 Any findings of the Inspection Panel can only alert the Bank to the borrower’s obligations under the existing loan agreement.147 It is of course possible that the borrowing corporation in executing the project may violate the law of the State in whose territory the project is located, resulting in the injury of private individuals. The latter may then seek appropriate remedial action against the corporation under municipal law. Nonetheless, such responsibility is extra-contractual. The loan agreement envisages the establishment of a strictly defined bundle of reciprocal obligations between the Bank and the corporation, with third parties not being privy to the agreement.

b. Contracts governed by international law Contracts cannot exist in a legal vacuum. Contractual relationships need to be subjected to a system of law ‘by reference to which their mutual rights and obligations under it are to be ascertained’.148 That contracts with an international element are subject to the law governing the contract is a principle common to the leading systems of private international law.149 As a rule, the law governing a contract is that expressly chosen by the parties.150 The choice of international law as the governing law of the contract should be opposed to a mere incorporation of international law into the contract. In the latter case, ‘we have simply a contractual provision with a meaning and effect derived from a particular legal system contained in a contract which is not otherwise subject to that system’.151 On the contrary, a real choice of international law as the governing law would mean that the contractual relationships are subject to public international law stricto sensu: ‘[the contract’s] existence and fate would [then] be immune from any encroachment by a system of municipal law’.152 A wrongful act in violation of a contract governed by international law would necessarily lead to a violation of international law as such.153 The present analysis seeks to ascertain the extent to which the two types of contracts under examination include a choice of international law as the governing law of the contract, which would result in subjecting the bundle of the contractual relationships to international law.

146 B Kingsbury, ‘Operation Policies of International Institutions as Part of the Law-Making Process’ in G Goodwin-Gill and S Talmon (eds), The Reality of International Law—Essays in Honour of Ian Brownlie (1999) 338. 147 Shihata (n145) 231. 148 Amin Rasheed Shipping Corporation v Kuwait Insurance Co. [1984] AC 50 HL. 149 See only Jenks (n5) 147. 150 FA Mann, ‘The Proper Law of Contracts Concluded by International Persons’ (1959) 35 BYIL 41. The primacy of ‘party autonomy’ in determining the governing law of a contract is a principle common to the overwhelming majority of municipal legal orders, see J Kropholler, Internationales Privatrecht (6th edn, 2006) 459. 151 152 Jenks (n5) 149; cf Mann (n150) 45. Mann (n150) 43. 153 Observations by Ago (1979) 59/II AnnIDI 52.

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(1) Express choice The choice-of-law provision of the contract for exploration, namely Standard Clause 27.1, reads This contract shall be governed by the terms of this contract, the rules, regulations and procedures of the Authority, Part XI of the Convention, the Agreement and other rules of international law not incompatible with the Convention.

The scope of this provision can only be ascertained by an interpretation of the former in combination with the LOSC. As mentioned above, the Standard Clauses and the LOSC should be read as a single instrument. Turning to the LOSC, it appears striking that the Convention itself includes a choice-of-law provision applicable to the contract for exploration.154 Standard Clause 27.1 essentially duplicates Annex III, Art 21 (1) LOSC and incorporates it into the contract for exploration.155 Determining the law governing the contract for exploration can only proceed on the basis of an interpretation of Annex III, Art 21 (1) LOSC. Annex III, Art 21 (1)  LOSC has been characterized in theory as ‘unremarkable’,156 which should be taken to mean ‘not contentious’. The ordinary meaning of the terms used in the provision affirms the applicability of international law to the contract for exploration.157 Such a reading is upheld by the negotiating history of the clause. Turning to the travaux préparatoires, participants of the LOSC Conference were in agreement that international law is the law applicable to the contract. Such consensus is evidenced by any lack of debate on the actual formulation of the provision. The phrases ‘terms of the contract’, ‘rules, regulations and procedures of the Authority’ and ‘Part XI’ formed part of the initial Proposal submitted by the Group of 77 to the First Committee during the Second Session.158 The clause, despite slight rewording, was incorporated in the Negotiating Texts that ensued throughout negotiations.159 The phrase ‘other rules of international law not incompatible with this Convention’ was added by the Chairman of the First Negotiating Group during the Eighth Session. The Chairman stated: ‘I included the rules of international law not incompatible with the present convention as the 154 Even in 1977, before the adoption of the Convention, the question of the exploration of seabed resources was viewed as a curiosum, as a field, where there could arise ‘unsuspected developments’. Valticos (n5) 7, fn 16. 155 Annex III, Art 21 (1) LOSC stipulates: ‘The contract shall be governed by the terms of the contract, the rules, regulations and procedures of the Authority, Part XI, and other rules of international law not incompatible with this Convention.’ 156 Brown (n19) 148. 157 G Sacerdoti, ‘State Contracts and International Law: A Reappraisal’ (1986-87) 7 Italian YBIL 38, affirming the submission of the contracts between the Authority and corporations to international law by virtue of Annex III, Art 21 LOSC. 158 The proposal stated: ‘The applicable law shall be solely the provisions of this Convention, the rules and regulations laid down by the Authority, and the terms and conditions of relevant contracts, joint ventures and any other such form of association entered into by the Authority.’ See Text on Conditions of Exploration and Exploitation prepared by the Group of 77, Doc A/CONF.62/C.1/L.7, III Off Rec 172, 173. 159 Informal Single Negotiating Text, Doc A/CONF.62/WP.8, IV Off Rec 137, 152; Revised Single Negotiating Text, Doc A/CONF.62/WP.8/Rev.1/Part I, V Off Rec 125, 142.

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law applicable to the contract’.160 The formulation of the provision was finalized during the Resumed Eleventh Session.161 It becomes apparent that the applicability of international law to the exploration contract never came into question during the Conference. The contract for exploration constitutes a novelty in the field of contracts between international organizations and private law persons for a number of reasons. First of all, the choice of international law as the governing law is express. This is exceptional taking into consideration the fact that it departs from the practice followed by international organizations, namely of not including a provision on the applicable law when contracting with private law persons.162 If a clause on applicable law is expressly included in a contract, the clause takes priority over any other factor of rattachement.163 Second, the omission of any reference to a municipal law in the contract for exploration logically hints at its insulation from municipal law. More significantly, the contract is exceptional in the sense that the choice of law appears to operate, as it were, ex lege, rather than ex contractu. The significance of ‘party autonomy’ in deciding upon the governing law of the contract for exploration is minimal, if any at all. States, in adopting the LOSC, granted the ISA the capacity to enter into contracts with corporations as regards ‘activities in the Area’. These contracts are a necessary condition for the conduct of any activities in the first place. At the same time States established in the constitution of the ISA that these contractual arrangements are subject to international law. Thus, the ISA would be acting ultra vires the LOSC if it concluded a contract with a corporation that chose a municipal legal order as the governing law. The choice of international law as the governing law is ultimately provided for expressly in the LOSC itself, which prevails in case of inconsistency between itself and a contract for exploration. This choice of law constitutes evidence that obligations binding by virtue of the contract upon the corporation derive directly from public international law.164

(2) Implicit Choice The General Conditions for Loans of the IBRD become part of the loan agreement to the extent that parties to the agreement so agree. Still, the clause on applicable law has been incorporated into all loan agreements concluded between the IBRD and private corporations.165 It has been suggested that the essence of the 160

Report by the Chairman of Negotiating Group I, Doc A/CONF.62/L.35, XI Off Rec 86, 90. United Nations Convention on the Law of the Sea, Doc A/CONF.62/122, XVII Off Rec 151, 211. 162 Valticos (n5) 37; Seyersted (n2) 493; T Rensmann, ‘Internationale Organisationen im Privatrechtsverkehr’ (1998) 36 AdV 334. 163 P Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens (1998) 175. 164 Cf Mann (n150) 56–57. 165 J Head, ‘Evolution of the Governing Law for Loan Agreements of the World Bank and other Multilateral Development Banks’ (1996) 90 AJIL 219. 161

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choice-of-law clause incorporated in the General Conditions ‘is . . . always included in the Bank’s loan agreements’.166 The provision on the applicable law to the agreements, set out in Section 8.01 of the General Conditions, reads The rights and obligations of the Bank and the Loan Parties under the Legal Agreements shall be valid and enforceable in accordance with their terms notwithstanding the law of any state or political subdivision thereof to the contrary. . . .

What is uncommon about the provision is its negative formulation. It does not subject the agreement to a certain legal order. On the contrary, it posits that rights and obligations under the agreement are valid and enforceable in accordance with the terms of the Agreements and that they are not affected in any way by domestic law. Broches has justified the caution evident in the drafting of the provision by suggesting that ‘[a]t that time there was much less agreement as to the legal nature of international organizations and their legal capacity than there is today’.167 Section 8.01 unambiguously excludes the application of municipal law to the loan and the guarantee agreement.168 The question then emerges as to which law governs the contract. Salmon has argued that the terms of the contract forming part of the secondary law of the IBRD govern. He has supported such a reading on the basis of the nature of the relationship between the Bank and the borrower, and especially its ‘immediate character’.169 Interestingly enough, Salmon’s analysis is based on the internal law of the IBRD as distinct from international law, suggesting that the former is comparable to municipal law.170 This peculiar argumentation cannot be upheld. Nor should the loan agreement be recognized as a self-supporting contract. The rules enacted by the IBRD form part of international law, as their validity derives from the constituent instrument of the organization. Still, one should go beyond the secondary law of the Bank and argue more generally that loan agreements between the Bank and private corporations, incorporating Section 8.01 of the General Conditions as their governing law provision, are internationalized and insulated from municipal law.171 The justification behind the internationalization of the loan agreement lies in the nature of the loan agreement as a guaranteed loan. As mentioned above, in the case of the IBRD’s guaranteed loans, the State assumes the role of a joint co-debtor, in the sense that it undertakes a guarantee as a primary obligor, and not as surety merely. Broches has argued that ‘in the circumstances the loan agreement is only one element . . . in the dealings on the international level between the Bank and its member, and partakes of the international character of these dealings’.172 It would be of course possible for the guarantee and the loan agreements to be subject to different legal systems. Yet, as Mann notes in relation to the IBRD, it is, in the absence of express regulation, legitimate to impute to the parties the intention to submit two closely connected transactions to a single legal system. It would certainly be 166 168 169 171

167 Broches (n96) 344. Broches (n96) 344; Salmon (n109) 228. Broches (n96) 345; Salmon (n109) 230; Lavalle (n71) 231. 170 Salmon (n109) 230. Salmon (n109) 230. 172 Broches (n96) 352. Broches (n96) 352.

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a less attractive solution if the [loan agreement was] held to be governed by some undefined system of municipal law and the [guarantee agreement was] subject to public international law.173

Broches’ interpretation has been consistently upheld in Bank practice174 and theory.175 The IBRD itself has argued in the same vein that ‘the accompanying guarantee agreement with the borrower’s home country authorizes the subjection of the loan agreement to international law . . . ’.176 The incorporation of Section 8.01 into the guarantee agreement insulates from the operation of municipal law both the rights and obligations of the Bank and guaranteeing Member and those of the borrowing corporation.177 The corporation thus does not contract out of municipal law in and of itself. This would seem impossible, taking into consideration that it is presumed to be devoid of international legal personality. It is by virtue of the agreement between the Bank and the Member State that such contracting-out takes place.178 The loan agreement between the Bank and the corporation does not operate as a stand-alone agreement, but can only be seen in the context of the tripartite relations between borrower, lender, and guarantor. The rights and obligations produced by the private loan agreement are effective in international law as the State and the Bank have, by virtue of their guarantee agreement, consented to subjecting the loan agreement itself to international law. A contrary view seems to be contradicting the actual practice of the Bank. It follows from the above that the loan agreement entered into by the Bank and the private corporation is subject to international law. This internationalization is not effective under international law by virtue of the loan agreement as such, but on the basis of the guarantee agreement between the Bank and the guaranteeing Member, which serves as a connecting point between the loan agreement and the international legal order.

(3) Institutional Internationalization The contract for exploration and the loan agreement constitute exceptional cases in the framework of international institutional law to the extent that they are effectively governed by international law. An analysis of the legal nature of this internationalization of contracts may serve as a means of raising important issues. At the outset, to talk of contracts between international organizations and corporations subject to international law logically admits the possibility of such internationalization. Still, traditional doctrine has refused to concede this point. The 173

Mann (n150) 53. See the Report entitled ‘Legal Implications of Amending the Articles of Agreement to Authorize Bank Loans to Private Enterprises without Government Guarantee’ reproduced in Shihata (n129) 434. 175 Amerasinghe (n2) 388–389; Delaume (n103) 82; Jenks (n5) 181; Alexandrowicz (n101) 212; Rigo Sureda (n71) 116; W Friedmann, ‘The Uses of General Principle in the Development of International Law’ (1963) 57 AJIL 283; OA Adede, ‘Legal Trends in International Lending’ (1983) 180 RdC 70. 176 177 Legal Implications (n174) 434–435. Broches (n96) 351. 178 Broches (n96) 352. 174

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main theoretical objection to the idea of internationalization of contracts can be summarized as follows: in order for international law to be the governing law of the contract, the corporation has to be clothed with international personality.179 Still, the corporation derives its international legal personality precisely from entering into an internationalized contract, the reason being that corporations are prima facie presumed deprived of international legal personality.180 The circular logic in this respect is evident.181 Yet, the situation with regard to the contracts under examination is radically different from other contracts between international organizations and corporations. States have in the first place consented by treaty law, i.e. LOSC and the IBRD Articles of Agreement, to grant corporations the requisite capacity to enter into agreements with international organizations governed by international law. Corporations thus enter into contracts governed by international law to the extent that such capacity is conferred on them by the concerted volition of states.182 That this is the case as regards the contract for exploration can be deduced from a combination of Art 153 and Annex III, Art 21 LOSC. The former provides that the corporation may participate in exploration solely on the basis of a contract with the ISA, whereas the latter provision establishes that such contract shall be governed by international law. As regards the private loan agreements, the situation is somewhat different. Art III, Section 4 enables the Bank to make loans to corporations on the basis of an agreement. Yet, the constituent instrument of the IBRD does not provide a choice-of-law provision. The legal capacity of the corporation to enter into a contract governed by international law derives from the guarantee agreement between the IBRD and the State in whose territory the financed project is located. As stated above, the Bank considers the guarantee agreement as authorizing the submission of the loan agreement to international law. It would be a paradox for the same agreement not to constitute the basis of the legal capacity of the borrowing corporation to enter into a contract governed by international law. The internationalization of the contracts in question can be further supported on the basis of a distinction drawn in theory primarily in relation to the question of the governing law of state contracts. Authors have distinguished between the law governing the contract and the legal order validating this choice of law.183 Jennings argues that parties may choose international law as the governing law of the contract if ‘there was first a point of contact with international law whereby this choice of law [becomes] an obligation existing in and effective in international law’.184 This contacting point exists in the form of the LOSC and the guarantee agreement. They encapsulate the consent of States recognizing as valid and effective the submission of the contract for exploration and the loan agreement respectively to international law. Such submission 179

180 Zemanek (n8) 55. See Brownlie (n89) 77. See F Rigaux, ‘Des dieux et des héros; Réflexions sur une sentence arbitrale’ (1978) 67 RCDIP 445. 182 Cf F Rigaux, ‘Transnational Corporations’ in M Bedjaoui (ed), International Law (1991) 129. 183 Cf RY Jennings, ‘State Contracts in International Law’ (1961) 37 BYIL 178; FA Mann, ‘The Theoretical Approach towards the Law Governing Contracts Between States and Private Persons’ 184 Jennings (n183) 178. (1975) 11 RBDI 562–563. 181

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does not result from the exercise of an unfettered ‘party autonomy’ in choosing the governing law. On the contrary, the aforementioned international treaties authorize the submission of the contracts to international law as the sole choice. As opposed to typical State contracts, international law exceptionally contains a rule which renders it applicable to a contract between an international and a private person.185 The internationalization of such a contract occurs in order to make applicable the provisions of a treaty, which in the first place gives rise to the transaction.186 Ultimately, the validity of the corporations’ rights and obligations and their effectiveness under international law derive from States’ prior consent. If the possibility of internationalization of contracts is admitted, then one needs to contemplate the position of such contracts in the hierarchy of international law sources. Arguing for international law as the governing law does not amount to stating that the contracts under consideration are assimilated to international treaties.187 To some authors, the idea of an agreement governed by international law, which is not a treaty at the same time, is an oxymoron.188 Such ‘black or white’ reasoning should be refuted.189 The international legal order has evolved to recognize a plurality of relationships, beyond international treaties, which could be, to a certain extent, subject to international law.190 The most obvious example in this respect would be investment law. In the framework of the ICSID Convention, international law has been recognized as a body of substantive rules applicable to investment contracts between States and foreign investors.191 Apart from legal considerations, the internationalization of contracts between international organizations and corporations is justified on the basis of practical expediency.192 As Jenks noted, ‘the novelty of the situation is that not only does the contract contain an international element, but one of the contractants is itself international in nature’.193 The legal order of an international organization is markedly different from that of States, both in its functions and scope.194 The

185

Mann (n183) 565. FA Mann, ‘The Law Governing State Contracts’ (1944) 21 BYIL 19. 187 Broches (n96) 352 underlines this point as regards Private Loan Agreements. 188 See Matzel (n73) 21. 189 G Cohen-Jonathan, ‘L’arbitrage Texaco-Calasiatic contre Gouvernment Libyen’ (1977) 23 AFDI 457. 190 A Fatouros, ‘Le role de la Banque mondiale dans le droit international’ (104) 1977 JDI 564. 191 See Wena Hotels Limited v Arab Republic of Egypt (ICSID Case No. ARB/98/4) (Decision on Application for Annulment) (2002) 41 ILM 941, where it is noted as regards Art 42 ICSID Convention that ‘ . . . international law can be applied by itself if the appropriate rule is found in this other ambit . . . ’; cf E Gaillard and Y Banifatemi, ‘The Meaning of “and” in Article 42 (1), Second Sentence, of the Washington Convention’ (2003) 18 ICSID Review 404; more generally P Weil, ‘The State, the Foreign Investor and International Law’ in S Schlemmer-Schulte and others (eds) Liber Amicorum Ibrahim F.I. Shihata (2001) 851. 192 Mann notes in the same vein ‘[t]he real justification of the possibility of ‘internationalization’ is provided by the requirements of international intercourse. There are cases in which no solution other than the choice of public international law is practicable’. Mann (n150) 46. 193 Jenks (n5) 148. 194 Cf G Van Hecke, ‘Contracts between International Organizations and Private Law Persons’ in 1 EPIL (1992) 812. 186

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international organization does not have a legal order, comparable to the domestic law of the State, to which the contract could be subject. A second argument against the application of municipal law to the contract is the public international character of these organizations and the concern with safeguarding their independent function.195 It has been argued that ‘[t]he validity and performance of the organization’s contracts can be influenced by municipal regulations of a public law character’.196 Moreover, there exists the danger of fragmentation in case different municipal laws apply to the same category of contracts, depending, for example, on the nationality of the private contracting party.197 Avoiding such fragmentation is also the rationale behind the standardization of contracts in certain areas of interest, such as projects of technical cooperation and economic development. Both the ISA and the IBRD have opted for standard clauses to be incorporated in their contracts with private corporations. The difference is that in the case of the IBRD such incorporations has to be agreed upon, but as regards the choice-of-law provision, it has consistently been incorporated in its private loan agreements. The contract for exploration and the private loan agreement should be considered as examples of an institutional internationalization of contracts. A series of conditions need to be met, in order to affirm the internationalization of contracts concluded between international organizations and corporations. A  preliminary indication of the internationalization is the fact that an organization has enacted secondary law, which is to be incorporated, by reference, into its contracts with corporations. The contracts need to provide for an express choice of international law as the governing law of the contract, or for an implicit choice, which cannot be read otherwise but as subjecting the contract to international law. Such choice of law must be validated per se in international law, in the sense that an international law rule authorizes the subjection of the contract to international law. In the cases at hand, such authorization is provided for in the LOSC and the Guarantee Agreement. The pertinent rules operate per se as conflicts of laws rules. At the same time, these rules should be read as granting corporations the requisite legal capacity to enter into contracts governed by international law for the purposes of contract performance. If a contract between an international organization and corporation is so rooted in international law, it should be regarded as internationalized.

2. International Responsibility of the Corporation for Violating the Contract The failure of a person to comply with what is demanded of it by an international obligation constitutes an internationally wrongful act engaging the responsibility of that person under international law.198 The justification for this rule is rooted in 195

196 197 Valticos (n5) 9. Van Hecke (n194) 813. Valticos (n5) 11. ILC, ‘Second Report on State Responsibility, by Roberto Ago’ (1970) II ILC Ybook 179; RY Jennings and A Watts, Oppenheim’s International Law (9th edn, 1992) 501; Verdross and Simma (n37) 845–846. 198

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the legal nature of the obligations that international law imposes on its subjects.199 The system of international responsibility operates, as is the case with any given legal order, as a guarantee of its subjects behaving in accordance with the obligations binding on them.200 One of the necessary conditions for the existence of an internationally wrongful act is a breach of an obligation laid down by a rule of international law.201 International responsibility cannot be separated from the international obligation.202 If the responsibility of the contracting corporation is provided for under international law, then this leads to the conclusion that the obligation, which was breached by the corporation, derives itself from international law. This proposition stands if the wrongful act of the corporation is taken to mean a breach of an obligation imposed by a rule of international law. At the same time, the consequences flowing from the violation of contractual terms will be scrutinized with a view to ascertaining whether they constitute responses to a prior internationally wrongful act. Logically, the nature of the responsibility of corporations may provide further evidence of the nature of the obligations incurred by the corporation.

a. Wrongful act of the corporation The contract for exploration provides in Standard Clause 16.1 that the Contractor shall be ‘liable for the actual amount of any damage . . . arising out of its acts or omissions and those of its employees, subcontractors, agents and all persons engaged in working or acting for them in the conduct of its operations under [the] contract . . . ’. In order to ascertain the content of the term ‘liable’ one needs to revert to the Regulations, in accordance with Standard Clause 1.2 providing that ‘[t]erms and phrases defined in the Regulations shall have the same meaning in these standard clauses’. Still, the Regulations provide for a further renvoi, establishing in Regulation 30 that ‘[r]esponsibility and liability of the contractor shall be in accordance with the Convention’. This solution is satisfactory in that it provides for a unified regime of responsibility, and is in accordance with the principle that the Regulations and Standard Clauses are to be read as a single instrument with the LOSC. Annex III, Art 22 LOSC establishes that the ‘contractor shall have responsibility or liability for any damage arising out of wrongful acts while conducting activities in the Area’. The formulation of the LOSC, and respectively the Regulations, is problematic since it employs both terms, namely ‘responsibility’ and ‘liability’, simultaneously.203 The choice to use both terms simultaneously reflects common 199

Second Report (n198). See A Verdross, Völkerrecht (5th edn, 1964) 373; G Cottereau, ‘Système juridique et notion de responsabilité’ in SFDI (ed), La responsabilité dans le système international (1991) 3. 201 Second Report (n198) 187; CF Amerasinghe, State Responsibility for Injuries to Aliens (1967) 37. 202 B Graefrath, ‘Responsibility and Damages Caused:  Relationship between Responsibility and Damages’ (1984) 185 RdC 21. 203 This divide occurs only in respect of the English language. The texts in the other languages employ a single term. The French version of the LOSC speaks of responsabilité, whereas in the Spanish version use is made of the term responsabilidad. According to Responsibilities and Obligations 200

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law usages—‘it corresponds to basic legal concepts and constitutes juridical concordance’.204 Still, this terminology should not bear on the nature of the responsibility of corporations, which is to be derived from the actual interpretation of the relevant LOSC provisions. The formulation of Art 22 specifies that ‘wrongful acts’ can only be committed by the contractor in the conduct of its operations. The corporation may only conduct activities in the Area on the basis of the contract for exploration. Consequently, a corporation may incur responsibility only for violating its contractual obligations. This flows from the fact that the LOSC does not generally establish obligations binding directly upon corporations. On the contrary, obligations binding on the corporation arise solely in relation to activities in the Area by virtue of the contract for exploration. The key to interpreting Art 22 is keeping in mind that it applies to all contractors, whether States or corporations.205 The formulation of the provision supports such a reading. Moreover, at no point during the LOSC negotiations was it suggested that a distinction between contractors could be read in the Article depending on their nature. The suggestion that the nature of responsibility for breaching a standardized contract varies depending on the nature of the contractor as a State or a non-State entity constitutes an invitation for criticism as it diverges from the formulation of the provision and the overall context of the LOSC. This singular approach to the term ‘contractor’ is evident in Standard Clause 16.1 which plainly provides that responsibility for wrongful acts, i.e. conduct amounting to a violation of the contract for exploration, shall reside with the contractor, who is prima facie responsible.206 The interpretation of Annex III, Art 22 LOSC that seems to be in accord with the LOSC is that contractors’ responsibility for wrongful acts is under international law. The contract for exploration is governed exclusively by international law. At the same time, States are not obliged to transpose the Regulations of the Authority into their municipal legal orders.207 Thus, a violation of the contractual terms could not be equated to a violation of municipal law. The responsibility of the contractor is distinct from the responsibility of the sponsoring State.208 The general obligation of States Parties with respect to activities in the Area is to ensure that contractors carry out such activities in accordance with Part XI.209 This obligation does not extend to cover a contractor’s compliance with the Regulations and the terms of the contract for exploration. On the (n36) [66-67] ‘the term “responsibility” refers to the primary obligation whereas the term “liability” refers to the secondary obligation, namely, the consequences of a breach of the primary obligation. Notwithstanding their apparent similarity to the English term “responsibility”, the French term “responsabilité” and the Spanish term “responsabilidad”, respectively, indicate also the consequences of the breach of the primary obligation . . . the English version of [Annex III, Art 22 LOSC] uses the terms “responsibility and liability” together . . . the term “responsibility” has the same meaning as in the ILC Articles on State Responsibility’. 204 M Nordquist (ed), 5 United Nations Convention on the Law of the Sea 1982: A Commentary (1989) 163. 205 206 207 Wolfrum (n49) 521. Nandan (n64) 127. Wolfrum (n49) 524. 208 Brown (n19) 76–77; Wolfrum (n49) 521. 209 While Art 139 (1) LOSC establishes the State’s obligation to ensure compliance, Art 139 (2), in combination with Annex III, Art (4) 4 LOSC, limits its scope, in providing that the State will not be

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contrary, according to Art 153 (4) LOSC, it is the ISA which is entrusted with exercising control over activities in the Area in order to secure compliance with its secondary law. Thus, responsibility for a wrongful act of the contractor in violation of the contract for exploration is not allocated ipso facto to the sponsoring State.210 To suggest that the contractor is responsible under municipal law would lead to the following absurd situation:  as explained above, the term contractor does not only refer to corporations, but to States as well. In the latter case, to suggest that the responsibility of the contractor is under municipal law implies that the State would have the ability to pass municipal legislation dealing with its own responsibility as a contractor. It would be perfectly possible for States entering into contracts with the ISA to adopt such municipal legislation in order to exonerate themselves, or the corporations sponsored by them for that matter, from any form of responsibility. In the same vein, responsibility under municipal law implies that each contractor’s responsibility would be judged on the basis of the corresponding municipal rules of its sponsoring State. Such an interpretation would fly in the face of the context of the LOSC. The rationale behind the deep seabed mining regime has been to achieve certain uniformity of standards applied to all potential contractors. This has been the justification behind the ISA’s promulgation of the Standard Clauses. The existence of an infinite variety of responsibility rules, depending on the sponsoring State’s legislation, hardly concords with this objective. Furthermore, according to Annex III, Art 4 (3) LOSC, a corporation might have more than one nationality, as in the case of a partnership or consortium. If the corporation is controlled by a State other than the State of incorporation, or nationals of the former, then both States will sponsor the application. The question of the municipal law governing responsibility in this case becomes even more complex and there is no good legal reason why in the case of a partnership the municipal law of one of the sponsoring States should be chosen over the others as the basis of responsibility.211

found responsible if it has taken all appropriate measures to secure compliance. In essence, this obligation of supervision of the contractors is an obligation of due diligence. It arises not from the fault of the operator but the supervisory fault of the State. See Brown (n19) 76. 210 Wolfrum (n49) 521. In the words of the ITLOS Seabed Dispute Chamber: ‘the main liability for a wrongful act committed in the conduct of the contractor’s operations or in the exercise of the Authority’s powers and functions rests with the contractor and the Authority, respectively, rather than with the sponsoring State. In the view of the Chamber, this reflects the distribution of responsibilities for deep seabed mining activities between the contractor, the Authority and the sponsoring State . . . the liability of the sponsoring State and the liability of the sponsored contractor exist in parallel. The liability of the sponsoring State arises from its own failure to comply with its responsibilities under the Convention and related instruments. The liability of the sponsored contractor arises from its failure to comply with its obligations under its contract and its undertakings thereunder.’ Responsibilities and Obligations (n36) [200] and [204]. 211 Sponsorship under LOSC and nationality of the corporation are not synonymous though interrelated. Sponsorship is a wider concept than nationality. As regards nationality, ordinarily, the corporation will have the nationality of the State in which it is incorporated and in which it has its seat of management or ‘registered office’. Cf Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 42–43.

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As such, it becomes apparent that conduct of the contractor, whether a State or a corporation, in violation of the contract for exploration, constitutes conduct in breach of obligations imposed by international law, namely in breach of the LOSC, through the Regulations, incorporated in the said contract. Such an act of the contractor is thus an internationally wrongful act. The IBRD loan agreements approach the wrongful act of the contractor in a manifestly different manner compared to that of the contract for exploration. Instead of an overall clause on contractors’ responsibility, the drafters of the General Conditions have chosen to spell out a string of events, the occurrence of which amount to a wrongful act of the borrowing corporation. Essentially, Section 7.02 of the General Conditions (GenCon) includes a variety of situations of the borrower being in violation of the loan agreement. The events can be classified as loan-specific and project-specific. The most significant examples of the first category are ‘payment failure’ and ‘misrepresentation’. In the first case, under Section 7.02 (a), the borrower fails to make payment of the principal or interest due to the IBRD under the loan agreement. ‘Misrepresentation’ occurs, according to Section 7.02 (g), when a representation made by a borrower in or pursuant to the agreement intended to be relied upon by the Bank in making the loan was incorrect in any material respect. Project-specific events refer to conduct of the borrower amounting to a use of the Bank’s funding in violation of the contractual terms. Section 7.02 (c) covers cases where any representative of the borrower has engaged in corrupt, fraudulent, coercive, or collusive practices in connection with the use of the proceeds of the loan. Section 7.02 (b) can be seen as an overarching saving clause as it refers to the failure of ‘a Loan Party . . . to perform any other obligation under the Legal Agreement to which it is a party’. Despite the overly analytical formulation of the General Conditions as regards acts in violation of the contract, they do not allude at any point to the law governing responsibility. Taking into consideration the above analysis on the law governing the loan agreement, it is argued that Section 8.01 GenCon is pertinent to determining the nature of responsibility. As mentioned above, Section 8.01 posits that ‘the obligations of the Bank and the Loan Parties under the Legal Agreements shall be valid and enforceable . . . notwithstanding the law of any State’. The Bank has indicated that loan agreements concluded with corporations should be considered subject to international law, due to their nature as guaranteed loans. It would go against the grain of Section 8.01 to argue that responsibility of the contractor is responsibility under municipal law since the latter cannot affect the validity of the borrowing corporation’s obligations. Thus, conduct of the corporation under the internationalized loan agreement should be considered as conduct in violation of an international obligation, amounting to an internationally wrongful act. In any case, the solution of international law as the law governing the regime of responsibility for violation of the loan agreement is also justified from the viewpoint of legal policy. Doctrine has long supported that to subject the loan agreement to a municipal law and the guarantee agreement to international law, and in doing so

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to fragment the legal nature of responsibility, can lead to paradoxical and complex results.212 With regard to both the contract for exploration and the loan agreement, it is obvious that the performance of the obligation, as well as the contravention thereof, are insulated from the effect of municipal law and should be regarded as subject to international law instead. To speak of corporate responsibility under international law might seem at first curious, but it would be more curious to override the nature and structure of the contractual arrangements, and subject the responsibility of corporations to a municipal law.

b. Content of corporate international responsibility The very idea of reciprocity traverses the notion of the contract. The enforcement of the promise seeks to ensure the performance of the reciprocal obligation for a benefit already received.213 If the contractual equilibrium is upset due to the failure of one of the contractants to perform its obligations, then the other party should not be held to the performance of its own obligations under the contract. A contrary argument would fly in the face of equity, but also good sense. The right of a party to terminate or suspend the performance of its obligations under a contract that has been breached should be considered a general principle of law.214 Both the contract for exploration and the loan agreement bestow upon the ISA and the Bank respectively the power to suspend or terminate the contract with the corporation, in case the latter fails to discharge its obligations. In the case of the contract for exploration, the ISA may further impose monetary penalties on a recalcitrant contractor. The following part seeks to assess the nature of these measures and the extent to which they may be interpreted as responses to a prior internationally wrongful act.

(1) Suspension or termination of contract Standard Clause 21 grants the ISA Council the power to suspend or terminate the contract for exploration where the contractor has conducted its activities in such a way as to result in serious, persistent, and willful violations of the fundamental terms of the contract, Part XI of the Convention, the Agreement, and the Regulations of the Authority or if the contractor has failed to comply with a final binding decision of a dispute settlement body applicable to it. Standard Clause 21 constitutes an elaboration of the corresponding provision of Annex III, Art 18 LOSC dealing with penalties. The suspension or termination of the contract is allowed solely as a response to conduct of a contractor amounting to a violation of the fundamental contractual 212

See only the case of the Austrian Debt Settlement Plan, Delaume (n103) 112. Cf DW Greig, ‘Reciprocity, Proportionality and the Law of Treaties’ (1993) 34 Virginia JIL 296. 214 See Dissenting Opinion of Judge Anzilotti, Diversion of the Water from the Meuse [1937] PCIJ Rep Series A/B No 70, 50. 213

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terms. It has a limited temporal scope. Standard Clause 21.4 accords the Council the right to require the resumption of operations by the contractor. It becomes obvious that this form of penalty serves as a means of inducing compliance with the Convention and the ISA Regulations, or a binding decision of a dispute settlement body,215 rather than as a punitive measure. It aims at the cessation of the contractor’s conduct amounting to a violation of the contractual terms and the restoration of a condition of legality. For the duration of the suspension, the contractor is deprived of its exclusive right to explore for polymetallic nodules, and correspondingly the obligations of the Authority towards the contractor are suspended. Standard Clauses 21.2 and 21.3 provide for procedural safeguards that need be abided with by the Council. First, suspension and termination have to be preceded by written warnings by the ISA. If the latter decides to proceed to suspending or terminating the contract, it is under an obligation to provide prior notice to the contractor stipulating the reasons for such a decision. The suspension or termination takes effect sixty days after such notice, thus giving the contractor the opportunity to cease any conduct in violation of the contract for exploration. The contractor in turn has a right to dispute the decision of the Council within this period of sixty days before the LOSC dispute settlement mechanism. Should the contractor seek recourse to dispute settlement procedures, then the contract can be suspended only following a final binding decision handed down by the competent tribunal. Significantly, the option of suspending or terminating the contract is seen as an ultima ratio. Only if the violation is persistent and willful may the Council revert to suspension or termination. Otherwise, it may only impose monetary penalties on the contractor. There is an element of proportionality at play as regards distinguishing the penalties imposed under Section 21 and Annex III, Art 18 LOSC. The suspension or termination of the contract is lawful only as a response to a violation of fundamental terms of the contract. Proportionality serves to establish the threshold beyond which suspension or termination is allowed.216 The drafters of the provisions balanced the seriousness of the violation against the nature of the contractual rights to be suspended, seeking to allow for the latter option as long as it is commensurate with the nature of the violation. The General Conditions grant the IBRD the ‘double-barreled sanction’217 to suspend or terminate the loan agreement in case the borrowing corporation violates its obligations thereunder. Section 7.02 and 7.03 GenCon delimit in exhaustive detail the circumstances under which the Bank is entitled to suspend or terminate (‘cancel’) the right of the borrowing corporation to make withdrawals from the loan account. Such breach of contract does not only result from the inability of the corporation to repay the debt, but also from violating the project-specific obligations regarding the manner in which the funding provided by the IBRD is used. The right of suspension and termination vested in the IBRD should be seen as a

215 217

216 Nandan (n64) 745. Cf Klein (n163) 399. F Kirgis, International Organizations in their Legal Setting (2nd edn, 1993) 569.

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corollary of Art III (5) (b) AA, which enjoins the Bank to ‘make arrangements to ensure that the proceeds of any loan are used only for the purposes for which the loan was granted’. The suspension is temporally limited in scope. Once the events that gave rise to the suspension cease to exist, the rights of the corporation are restored. Yet, the Bank may, according to Section 7.02 in fine, restore the rights of the borrower even prior to the cessation of the conduct in violation of the contract. The powers granted to the IBRD constitute a means of inducing compliance of the corporation with the terms of the contract.218 Such reasoning is logical if one considers the nature of the loan agreement as guaranteed. The Bank can turn to the guaranteeing State and demand, inter alia, repayment of the debt. Thus, suspension and termination should be seen as a means of holding borrowing corporations to the contract and inducing them to fulfil the purpose for which the loan has been made. That compliance with the contract is the main purpose of suspension and termination may also be inferred from Section 7.08 GenCon, which affirms that ‘notwithstanding any cancellation, suspension or acceleration . . . all the provisions of the Legal Agreements shall continue in full force and effect . . . ’. The General Conditions lack a procedural framework comparable to that of the contract for exploration clauses. The only procedural requirement that the Bank is called upon to meet is that of prior notice. Failure on behalf of the IBRD to notify its co-contractants of its intention to suspend or terminate the contract would amount to an act in contravention of the loan agreement. In any case, it would be erroneous to assume that the IBRD may suspend or terminate borrowers’ rights interchangeably, without consideration for the nature of the conduct amounting to a wrongful act. The Bank may terminate the agreement following a suspension with respect to any amount of the loan for a continuous period of thirty days. As regards fraud and corruption as reasons for suspension and termination, the provisions of Section 7.02 (c) and Section 7.03 (c) GenCon respectively have the exact same wording. Presumably, the IBRD would cancel the contract only in cases of gross misconduct on behalf of the corporation or a failure of the borrowing corporation to take appropriate action satisfactory to the Bank. Suspending or terminating the performance of international obligations in reaction to a previous internationally wrongful act has traditionally been conceived under the international law of responsibility as a countermeasure. Yet, whether the customary rules on countermeasures, as codified by the ILC hitherto in respect of the responsibility of States219 and international organizations,220 are of relevance to the suspension or termination of the contracts by the ISA and the IBRD, is a question that merits closer scrutiny.

218

Matzel (n73) 57. See the Commentary to the ILC, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’, as included in the ‘Report of the International Law Commission on the Work of its Fifty-Third Session’ UN Doc A/56/10 (2001) II (2) ILC Ybook 128–143. 220 See ILC, ‘Sixth Report on Responsibility of International Organizations, by Giorgio Gaja’ (1 April 2008) UN Doc A/CN.4/597. 219

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It is accepted in theory221 and practice222 that international organizations may in principle resort to countermeasures. Such capacity flows from their personality under international law. Whereas the countermeasures generally contemplated in the ILC codification are against States or other international organizations, there is no cogent reason why a corporation owing an obligation under international law to an organization should be shielded from action amounting to a countermeasure in case it breaches that obligation. What is crucial in respect of countermeasures taken by international organizations is that they conform to the rules of the organization, with regard to the organ competent to decide on the use of countermeasures and the form the latter may take.223 As regards the LOSC, the express bestowal upon the ISA of the power to resort to the suspension or termination of the contract leaves little room to doubt the legality of the action taken against the recalcitrant corporation. As regards the IBRD, the power to suspend or terminate the contract could be inferred from Art III (5) (b) AA. In order for a countermeasure to be justifiable under customary law, it has to meet certain conditions.224 It has been submitted that no distinction should be made between the regime governing countermeasures resorted to by an injured State and by an injured organization as regards such conditions.225 In any case, a common core of requirements under international customary law could be discerned.226 First, the countermeasure must take place in response to a previous wrongful act of another international person which owes the violated obligation to the injured entity. In the absence of a wrongful act, the measure resorted to is contrary to international law.227 It is derived from this proposition that in principle a countermeasure may only be directed against the entity committing the wrongful act, and which has not complied with its obligations to cease the wrongful act and provide reparation.228 Second, the permissible scope of the countermeasure is to induce compliance with the obligation breached, rather than punish the responsible entity.229 The corrective character of the countermeasure implies that 221

E Zoller, Peacetime Unilateral Remedies (1984) 107; Klein (n163) 397. Sixth Report (n220) 16. The Special Rapporteur noted ‘that there are no reasons why an injured international organization should not have at its disposal such a significant instrument’. See also the commentary to Art 51 of the Draft Articles on the Responsibility of International Organizations as included in the ‘Report of the International Law Commission on the Work of its Sixty-third Session’ (2011) UN Doc A/66/10, 149-151. 223 Sixth Report (n220) 17; Commentary to Article 52 of the Draft Articles on the Responsibility of International Organizations in Report on the Work (n222) 151-152; Zoller (n221) 109. 224 Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep 127 [249]. 225 See the statements cited in Sixth Report (n220) 15. 226 International law has consistently affirmed the necessity of meeting certain conditions justifying the legality of countermeasures. However, in the course of history, the regime of countermeasures has been modified. It has been argued that the ILC codification of the regime of countermeasures in the Articles on the Responsibility of States incorporates all of the fundamental conditions set forth in international law practice. Moreover, the ILC codification has attracted a considerable degree of support from governments. See J Crawford, ‘The ILC’s Articles on Responsibility of States for Internationally Wrongful Acs: A Retrospect’ (2002) 96 AJIL 884; cf Y Matsui, ‘Countermeasures in the International Legal Order’ (1994) 37 JAIL L 9–10. 227 Commentary (n219) 130; see Gabčíkovo-Nagymaros Project (Judgment) [1997] ICJ Rep 55 [83]. 228 229 Commentary (n219) 130. Gabčíkovo (n227) 56–57 [87]. 222

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its temporal scope is limited, and that once equality is restored between the contracting parties, the countermeasure should be terminated. On the other hand, international customary law provides for a series of procedural requirements, which highlight the subsidiary character of countermeasures.230 The injured person is under an obligation to call upon the responsible person to comply with its obligation to cease the conduct amounting to a wrongful act and provide reparation, to offer to negotiate with that person, and finally to notify it of its decision to take countermeasures.231 Furthermore, a countermeasure may not be taken if a dispute is pending before a tribunal competent to make decisions binding on the parties.232 Finally, proportionality is an essential element of the law on countermeasures. It addresses the relationship between the internationally wrongful act and the countermeasure. It has been suggested that in order to guarantee that the adoption of the countermeasure does not lead to inequitable results, one needs to consider the ‘quantitative’ and the ‘qualitative’ element of the injury suffered. The former is associated with the injury suffered by the injured person, whereas the latter deals with the gravity of the wrongful act.233 A  measure that is not proportionate amounts to a wrongful act under international law. Suspension and termination of contracts by the ISA Council in response to wrongful acts of contracting corporations are in substance very close to countermeasures, both in the procedural and the functional aspect, as they may not be imposed without prior warning or during dispute settlement proceedings, they may not be disproportionate, and they have to aim at inducing compliance. Nonetheless, the above noted similarity does not mean that such customary rules would apply ipso facto to the measures resorted to by the ISA. As regards the suspension or termination of a contract for exploration, it could be argued that the regime of responsibility is incorporated in the first place in the LOSC, which constitutes lex specialis. Although the latter term cannot be meaningfully codified in international law in a general, context-independent manner,234 it may be schematically conceived as a special body of law distinct from the generally applicable law. The establishment of a special treaty-based regime of responsibility, distinct from the general international law rules, is justified to the extent that the LOSC seeks to ensure compliance with an effective sea-bed mining regime through resolving contractual disputes, rather than to exclusively remedy harm.235 Actually, the ILC

230 See L-A Sicilianos, ‘The Relationship between Reprisals and Denunciation or Suspension of a Treaty’ (1993) 4 EJIL 394. 231 232 Commentary (n219) 136–137. Commentary (n219) 136. 233 Commentary (n219) 134–135. See generally, R Kolb, ‘La proportionnalité dans le cadre des contre-mesures et des sanctions’ in L Picchio Forlati and L-A Sicilianos (eds), Economic Sanctions in International Law (2004) 410–427. 234 ILC, ‘Fragmentation of International Law:  Difficulties Arising from the Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L.682 64; cf B Simma and D Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 EJIL 488–490. 235 Cf in the context of WTO law, C Carmody, ‘A Theory of WTO Law’ (2008) 11 JIEL 532.

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expressed the ‘wish . . . to allow States to develop, apply and to derogate from the general rules of State responsibility by agreements between themselves’.236 The crucial question is whether the LOSC provisions on penalties constitute an instance of contracting out237 from the general international law on remedies. The answer should be in the negative. Art 304 LOSC provides that any question on responsibility according to the Convention is ‘without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law’. In this sense, customary international law rules on responsibility, where applicable, are accorded a residual character. The overlap between the LOSC provisions and Standard Clauses and the customary law rules on countermeasures suggests that the LOSC actually bestows the ISA with a capacity to resort to action similar to a countermeasure. Nonetheless, such action does not constitute a countermeasure proper governed by international customary law. On the contrary, it constitutes a special form of implementation of international responsibility of the contractor, derived from the LOSC and displacing the application of customary international law. One may here refer to Art 60 of the Vienna Convention on the Law of Treaties (hereinafter VCLT),238 granting the right to one of the parties to a treaty to invoke its material breach by another party as a ground for terminating the treaty or suspending its operation in whole or in part. Such a legal faculty of abrogation is to be seen as a response to the prior internationally wrongful act of breach of treaty, which is a ground for suspension or termination. Again there exists similarity between the provisions of the VCLT and the general international law of countermeasures. Yet, they have to be distinguished.239 Art 60 VCLT establishes a treaty-based means of implementing the responsibility of the party violating the treaty,240 as does the LOSC with respect to the contract for exploration. In both cases, such measures are procedurally and functionally similar to a countermeasure. In fact, it has been argued that there exist more similarities than differences as regards the substantive and procedural requirements to be met prior to resorting to countermeasures and suspending or terminating a treaty.241 The only reason they are not termed ‘countermeasures proper’, is that they are peculiar to their specific regimes. Whereas the specific character of these measures within the context of the VCLT and the LOSC respectively prevents them from being termed ‘countermeasures’, the fact remains that they—like countermeasures—constitute a method of 236 Fragmentation (n234) 38, analysing Art 55 of the Articles on the Responsibility of States for Internationally Wrongful Acts. 237 For the use of the terminology, see J Pauwelyn, Conflict of Norms in Public International Law (2003) 218 et seq. 238 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 239 Commentary (n219) 128. 240 And in doing so, Dupuy has argued that it establishes a secondary norm. See P-M Dupuy, ‘Droit des traits, codification et responsabilité internationale’ (1997) AFDI 22–23; cf P Weckel, ‘Convergence du droit des traités et du droit de la responsabilité internationale’ (1998) 102 RGDIP 649. 241 Cf B Simma, ‘Reflection on Article 60 of the Vienna Convention on the Law of Treaties and Its Background in General International Law’ (1970) 2 ÖZöR 13–15, 29–35.

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implementation of international responsibility. They are to be seen as operating within the ambit of the international law of responsibility. Turning to the measures taken by the IBRD in case of breaches of contract, the situation appears different. The reason is that the Bank is not mandated by the Articles of Agreement to take specific measures as a reaction to a previous internationally wrongful act. There seems to be no specific treaty regime regulating the powers of the Bank to implement the responsibility of its co-contractants. Yet, the guarantee agreement between the IBRD and the Member State, incorporating the General Conditions for Loans, which in the first place authorizes the subjection of the private loan agreement to international law, may be seen as the basis of the IBRD’s capacity to resort to action similar to countermeasures against the corporation. Such an approach would be justified on the basis of the interdependent tripartite nature of the relationships arising from private loan agreements. Moreover, if one accepts that the private loan agreement is per se subject to international law on the basis of the guarantee agreement, then it would be illogical to treat the measures taken by the IBRD as something other than a method of implementing the international responsibility of the corporation.

(2) Monetary penalties The ISA has an additional means of inducing compliance with the contract: that of imposing monetary penalties. Standard Clause 21.5 provides that in the case of any violation of contractual terms the nature of which is not of such gravity as to justify the suspension or termination of the contract, or in lieu of suspension or termination, the Council may impose upon the contractor monetary penalties proportionate to the seriousness of the violation. However, such decision may not be executed until the contractor has had reasonable opportunity to exhaust the available judicial remedies before the competent dispute settlement body under the LOSC. The imposition of monetary penalties by international organizations constitutes a rare occurrence, albeit not an exceptional one.242 Such penalties may be imposed upon Member States of the organization or individuals and corporations as a response to wrongful acts.243 The ICJ has held that ‘it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’.244 The ILC in codifying the rules on state responsibility has limited the scope of

242 See Art 171 (3) (b) Treaty Establishing a Common Market for Eastern and Southern Africa (signed 5 November 1993, entered into force 8 December 1994), reproduced in (1994) 33 ILM 1067 (hereinafter COMESA); Art IX Protocol to the Central American Agreement on the Equalization of Import Duties and Charges (adopted 31 July 1962) 773 UNTS 196. 243 Cf F Orrego Vicuña, ‘Contemporary International Law in the Economic Integration of Latin America’ in J Rideau (ed), Legal Aspects of Economic Integration (1971) 170. 244 Factory at Chorzow (Jursdiction) [1927] PCIJ Rep Series A No 9, 21.

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reparation to remedial measures, thus excluding penalties of a punitive character.245 The LOSC goes beyond such an approach to international responsibility and envisages the imposition of punitive measures as a legal consequence flowing from the violation of contractual obligations. The analysis set out above with respect to termination or suspension of the contract applies here mutatis mutandis. It is true that the levying of monetary fines constitutes a measure of penal character.246 Whereas the monetary penalty cannot be characterized as a countermeasure proper, it does essentially amount to a countermeasure both procedurally and with respect to its function. Procedurally, the Standard Clauses do not require a warning for the imposition of the penalty, even though such would be the case if the penalty was imposed in lieu of suspension. In any case, since the penalty may not be executed pending challenge in dispute settlement, the whole process serves to satisfy at once both the requirement of prior notice, namely, the imposition of the penalty which is not final, and that of suspension of a measure during a dispute settlement proceeding. Turning to the function of the monetary penalties, its nominal function is indeed punitive. Yet, there can be doubt as to whether the functions of punishment can be expected to meaningfully be applied against fictional legal entities, such as corporations or States. Every penalty imposed against a fictional legal entity has the residual function of inducing compliance with the obligation and this is to be considered the case with the seabed mining regime. Otherwise, compliance with obligations under the LOSC could be jeopardized through the exercise of economic power. Whereas the focus of discussions on international responsibility has naturally rested on the responsibility of States, it has long been observed that ‘there is quite rapidly growing up alongside the orthodox law of State responsibility, a law of the responsibility of international persons other than States’.247 Partial international law subjects can incur international responsibility.248 The contractual arrangements analyzed envisage the responsibility of the corporations under international law. First, the conduct of the contracting corporations in both instances amounts to an internationally wrongful act. Secondly, the suspension or termination of the contract by the Authority and the IBRD, as well as the imposition of monetary penalties by the former could be parallelized to countermeasures under international law. The measures resorted to by the Authority and the IBRD constitute responses to prior internationally wrongful acts and operate within the ambit of the law of international responsibility.

245 ILC, ‘Fourth Report on State Responsibility by Mr. Gaetano Arangio Ruiz’ (1992) II (1) ILC Ybook 7; D Shelton, ‘Righting Wrongs: Reparations in Articles on State Responsibility’ (2002) 96 AJIL 838. 246 See Schermers and Blokker (n4) 979. On the punitive nature of monetary penalties provided for in the COMESA, see K Magliveras, Exclusion from Participation in International Organizations (1999) 90. 247 RY Jennings, ‘General Course on Principles of International Law’ (1967) 121 RdC 498. 248 Cf Commentary (n219) 52; see also S Talmon, Kollektive Nichtanerkennung illegaler Staaten (2006) 835; H Atlam, ‘National Liberation Movements and International Responsibility’ in M Spinedi and B Simma (eds), United Nations Codification of State Responsibility (1987) 46 et seq.

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3. The Standing of Corporations before International Dispute Settlement Bodies The nature of a legal dispute is logically correlated with the nature of the rights and obligations from which it stems. Still, these rights and obligations exist and may be the object of a legal claim only on the basis of the general rules, which ground them in law.249 The characterization of the dispute as international may serve as final evidence for the affirmation of the international nature of the contractual obligations binding upon mining corporations. Whilst there exists no fixed array of criteria to discern the international character of a dispute, it is submitted that one can rely on a combination of a personal criterion, focusing on the entities granted direct access to international tribunals and the conditions under which such access is granted, and a material criterion which concerns the law to be applied to the dispute.250 If the character of the dispute is international, then such dispute must logically arise from the violation of an international law provision.251

a. Dispute settlement under the contract for exploration (1) Right of access The LOSC expressly grants corporations a right of access to an international tribunal in order to enforce their rights deriving from the Exploration Contract. According to Art 187 (c)  LOSC, the jurisdiction of the Deep Seabed Disputes Chamber extends to disputes between parties to a contract in respect of the interpretation or application thereof.252 This provision should be read in conjunction with Art 188 (2) (a) LOSC which provides that such disputes ‘shall be submitted, at the request of any party to the dispute, to binding commercial arbitration, unless the parties otherwise agree’. Normally, in both cases, the term ‘party’ includes corporations on the basis of their right to engage in activities in the Area, according to Art 153 LOSC. The extended jurisdiction ratione personae of the Chamber is exceptional, taking into consideration the global reach of the instrument.253 Still, it is not an isolated case. Corporations have enjoyed a right under international treaty law to directly access international tribunals in the fields of human rights. Indeed, the ECHR extends its protection to corporations. The ECtHR has interpreted Art 34 ECHR

249 G Abi-Saab, ‘Les sources du Droit international: un essai de déconstruction’ in M Rama-Montaldo (ed), 1 Liber Amicorum Eduardo Jiménez de Aréchaga (1994) 39–40. 250 See CF Amerasinghe, Jurisdiction of International Tribunals (2003) 4–9; C Santulli, Droit du contentieux international (2005) 5–9. 251 Amerasinghe (n250) 8. 252 Cf Art 291 (2) LOSC, ‘The dispute settlement procedures specified in this Part shall be open to entities other than States Parties only as specifically provided for in this Convention.’ 253 Cf L Sohn, ‘Settlement of Law of the Sea Disputes’ (10) 1995 IJMCL 211.

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so as to recognize the right of corporations to petition the ECtHR in their capacity as the victim of a violation by a State Party to the ECHR of their rights set forth therein.254 The essence of such a provision is to overcome the espousal of corporations’ claims by their national governments, thus reaffirming the growing significance of the corporate entity in international law.255 What sets the LOSC regime aside though is that corporations can act both as plaintiffs and defendants, in contrast to the ECtHR, where the defendant can only be a State Party, which has allegedly violated its international obligations under the ECHR. Art 188 (2) (a) LOSC expressis verbis stipulates that ‘any party to the dispute’ may seek recourse before an international tribunal where a dispute arises. It is thus probable that the ISA may institute proceedings against a corporation that has violated its contractual undertakings. The participation of corporations in the proceedings is sometimes used as a counter-argument to considering such disputes as international. Amerasinghe contends that they only may be described as transnational, but not international proper. Still he concedes that the internationalization of the dispute is possible when ‘the dispute is covered structurally by an international arrangement between States’.256 Indeed, States Parties to the LOSC have agreed to confer by virtue of the Convention an array of procedural rights to mining corporations that have concluded a contract with the ISA, in order for them to enforce their rights thereunder.

(2) Choice of forum Art 188 (2) (a) LOSC provides parties with a choice of forum. The dispute may be unilaterally submitted to binding commercial arbitration by any of the parties. The LOSC seems to establish a presumption that contractual disputes be submitted to commercial arbitration.257 If the parties agree otherwise, the dispute may be submitted to the Seabed Disputes Chamber. Arguably, a party to the dispute may unilaterally institute proceedings before the Chamber, as long as the respondent accepts the Chamber’s jurisdiction following the application.258 It has been further suggested that parties to a contractual dispute may agree to submit such dispute to a means of dispute settlement not provided for in Art 188 (2) (a) LOSC.259 Whilst granting parties to the dispute the freedom to agree on a means of dispute settlement, Art 188 (2)  (a) LOSC establishes a limitation to such choice of forum insofar as any dispute involving the interpretation of LOSC provisions regarding activities in the Area has to be referred to the Chamber for a ruling. This ruling is of an interlocutory character, as it constitutes a step in the proceedings before an arbitral tribunal. According to Art 188 (2) (b) LOSC, the arbitral 254 See ECtHR, The Sunday Times v United Kingdom App no 6538/74 (1979) [38]; C Tomuschat, Human Rights (2008) 205–206. 255 See E Lauterpacht, Aspects of the Administration of International Justice (1991) 71–72. 256 257 258 Amerasinghe (n250) 5. Brown (n19) 370. Brown (n19) 370. 259 Brown infers such a possibility from the wording of the LOSC. Indeed, the phrase ‘unless the parties agree otherwise’ is not necessarily restricted to the Chamber by virtue of Part XI. See Brown (n19) 370. Churchill reaches the same conclusion on the basis of Art 285 LOSC, which requires that

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tribunal has to render its award in conformity with the ruling of the Chamber. This compromise formula combines the benefits of commercial arbitration as the most expeditious means of dispute settlement with regard to contractual disputes260 and the unity of interpretation of the Convention. The procedure echoes to a certain extent the ‘preliminary ruling’ handed down by the CJEU by virtue of Art 267 of the Treaty on the Functioning of the European Union.261 Both rulings serve the need for uniform interpretation,262 are binding on the referring tribunal,263 and provide the right of intervention of third parties in the proceedings in the form of written submissions.264 Turning to the scope of the ‘ruling’ exception, it is probable that the dispute will in principle involve the interpretation of the LOSC and its Annexes. The rights and obligations of the contractors have first been set forth in the LOSC and then incorporated in the derivative law produced by the ISA. In any case, the Regulations and the Standard Clauses have to be read as a single instrument with the LOSC. Any dispute as to the contractual obligations of a corporation is necessarily related to the interpretation of the relevant LOSC provision, as is a dispute with regard to the corporation’s rights, its performance of the contract and the responsibility arising from wrongful acts of the parties.

(3) Applicable law The question of applicable law is significant as it determines, inter alia, the rules that apply to the interpretation of the agreement and the consequences of its breach.265 Art 293 LOSC states in clear terms that ‘a court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law incompatible with this Convention’. In addition to the law specified above, Art 38 Annex VI LOSC posits that the Chamber shall further apply the rules, regulations, and procedures of the ISA adopted in accordance with the LOSC and the terms of the contract for exploration in matters relating to those contracts. There is a differentiation here between the applicable law to be applied by the commercial arbitral the general provisions on dispute settlement included in Section I, Part XV LOSC apply to disputes concerning activities in the Area. Art 280 LOSC notes that ‘State Parties [may] agree at any time to settle a dispute between them . . . by any peaceful means of their own choice’. He goes on to argue that such a choice should be recognized to all contractors mutatis mutandis. See R Churchill, ‘Dispute Settlement in the Law of the Sea’ in M Evans (ed), Remedies in International Law (1998) 99. 260 Such a need was stressed during the LOSC negotiations. See Report by the Chairman of the Group of Legal Experts on the Settlement of Disputes Relating to Part XI, A/CONF.62/L.43, Appendix B, XII Off Rec 91. 261 Cf J Collier and V Lowe, The Settlement of Disputes in International Law (1999) 89, fn. 32. 262 Cf ECJ, C-166/73, Rheinmühlen-Düsseldorf [1974] ECR 33[2-3]. 263 Cf ECJ, C-52/76, Benedetti v Munari [1977] ECR 163 [26]. 264 Art 32 (1) Statute of the ITLOS; Arts 99-104 Rules of the ITLOS. With respect to EU law, see Art 23 of the Statute of the CJEU. 265 Collier and Lowe (n261) 239. The applicable law to the merits of the dispute should be distinguished from the law governing the process, which constitutes another matter altogether. In relation to disputes arising from the Exploration Contract, the law governing the process depends on the forum chosen by the parties. If the dispute is submitted to commercial arbitration, then according to

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tribunal and the Chamber, which seems problematic. There is no good reason why only the Chamber may apply the Regulations and the terms of the contract. The tribunal should also apply the terms of the contract and the Regulations of the Authority, in addition to the rules of the LOSC. The formulation of Art 293 LOSC precludes the application of any national rules to the dispute. Such a strict reading may be inferred from the negotiating history of the provision. It was argued during the LOSC that along with international law rules, ‘any other applicable law’ should be included in the text of the article.266 In the discussion of the provision objections were raised as regards the applicability of any rules of law other than international law. The proposal to extend the scope of the applicable law to the dispute was accordingly dropped.267

b. Dispute settlement under the Private Loan Agreement The nature of the loan agreement necessarily affects the nature of the disputes arising from the performance thereof and the dispute settlement procedure. Interestingly, all disputes relevant to IBRD loan agreements, either made to States or corporations, have been resolved through negotiations. Whereas a clause on dispute settlement has always been incorporated into loan agreements, no use has been made of it. The fact that loans are treated on behalf of the IBRD as ‘a “going concern” . . . tempers attempts that may otherwise be made to prolong the dispute or to resolve it through adversarial methods’.268

(1) Choice of forum The General Conditions opt for arbitration as the preferred dispute resolution procedure. Such choice should be seen as exclusive. Section 8.04 (j) GenCon expressly states that the provisions for arbitration are in lieu of any other procedure for the settlement of controversies between the parties to the agreement. This provision effectively bars any action to municipal courts regarding the merits of the dispute. Whereas Art VII Section 3 AA allows, inter alia, actions to be brought against the Bank in a court of competent jurisdiction in the territories of a member in which the Bank has an office, the arbitration provision neutralizes this restriction of the Bank’s immunity.269 Any party to the dispute is entitled to institute proceedings before an arbitral tribunal upon notice to the other party, according to Section 8.04 (d) GenCon. Art 188 (2) (c) LOSC the arbitration shall be conducted in accordance with the UNCITRAL rules. As regards procedure before the Chamber, the procedural provisions of the ITLOS apply equally to the Chamber, to the extent to which they are not incompatible with special provisions. Such special provisions relating to the procedure before the Chamber were included in Arts 107-109 of the Rules of the International Tribunal for the Law of the Sea. See Doc ITLOS/8, available at . 266 See A/CONF.62/Background Paper 1, Article 16, reproduced in R Platzöder, 12 Third United Nations Conference on the Law of the Sea: Documents (1987) 194, 201. 267 268 269 Nordquist (n204) 73. Shihata (n100) 237. Seyersted (n2) 514.

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Thus, the corporation is granted a right to directly petition the arbitral tribunal. More significantly, the latter provision should be read in combination with Section 8.04 (b) GenCon, which establishes that the parties to a dispute arising from a private loan agreement are the Bank on the one hand and the State and the corporation on the other as joint parties. Arbitration in respect of private loan agreements is necessarily a multiparty one. The reason behind such a choice lies in the perceived interdependence of the nature of the relationships arising under the agreements at hand. Returning to the argument of Amerasinghe regarding the nature of the disputes in which corporations act as parties, in the case of the loan agreement, not only do we have a dispute ‘structurally covered’ by an international agreement, but also the State itself is a party to the dispute jointly with the corporation. Thus, one should a fortiori affirm the international nature of the dispute at hand.

(2) Applicable law The international character of the dispute should also be examined against the law applicable to the dispute. While the General Conditions include elaborate provisions on the procedural aspects of the arbitration, they do not include a provision on the applicable law. The refusal of the Bank to insert such a clause into the General Conditions may be justified on the basis of Section 8.01 GenCon. Arguably, the formulation of the provision on the governing law of the contract can serve as an indication, albeit implied, of the law applicable to the dispute. Section 8.01 does not accord municipal law any role at any time during the existence of the contractual arrangement. Since municipal law does not in any way impact upon the rights and obligations of the contracting parties, it would seem paradoxical to argue that this law should govern the dispute. The dispute to be arbitrated involves both the borrowing corporation and the guaranteeing State as joint parties and may touch upon the legal differences concerning both the loan and the guarantee agreement. To employ municipal law in order to interpret an international agreement of guarantee, the operation of which is expressly insulated from the effect of municipal law, is more problematic than the application of international law to a dispute involving a private corporation, as justified under the circumstances. It should thus be accepted that international law governs all aspects of the dispute.270 Furthermore, the application of international law to the dispute serves the IBRD’s interest to have ‘its relations with the borrower and the guarantor determined within the context of the same legal framework’.271 It is desirable that the same legal rules apply to all disputes arising from a guaranteed loan agreement irrespective of the nature of the parties to the dispute. Thus, one avoids the danger of inconsistent findings due to the application of different legal rules, which is an essential problem in multiparty arbitration.

270 Shihata (n100) 237–238; Lavalle (n71) 234; Jenks (n5) 243; J Käser, ‘Darlehen der EIB— Darlehen der Weltbank’ (1967) 2 Europarecht 317. 271 Delaume (n103) 197.

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c. The international character of the disputes in question If a corporation is granted the right to petition unilaterally an international or arbitral tribunal, which is called upon to decide the dispute applying international law, then the international character of the dispute should be affirmed. In the framework of the LOSC, States have provided for procedural rights to be granted to corporations, thus allowing them to become parties to an international dispute in their own name, i.e. without the necessary espousal of their claims by States. In the case of private loan agreements, not only do corporations have the right to institute arbitral proceedings against the Bank, but also the guarantor States act as joint parties to the dispute with the corporations. In both cases, irrespective of the forum chosen by the parties to the dispute, international law is exclusively the law governing the merits of the dispute. The above establish that disputes arising from both contracts for exploration and private loan agreements are international disputes relevant to the performance or breach of international obligations.

4. Preliminary Conclusion The contract for exploration and the private loan agreement constitute exceptional cases in international institutional law. As opposed to the majority of contracts concluded between international organizations and corporations, they are subject to international law and the obligations these contracts produce for contracting parties are of an international law nature. This finding is substantiated on the basis of the following considerations. First, the contracts incorporate, by reference, standard clauses enacted by the international organization. Second, international law is expressly or impliedly chosen as the governing law of the contracts. Such a choice of law is actually validated by the relevant provisions of an international treaty, the LOSC, and the Guarantee Agreement respectively. The latter bestows upon the corporation the necessary legal capacity to act on the international plane for the purposes of the performance of the contract. Moreover, if the corporation acts in contravention of the contract, such conduct amounts to an internationally wrongful act, in reaction to which the international organization may resort to action similar to a countermeasure. Finally, corporations are granted the right to initiate proceedings against the organization before tribunals, which are called upon to settle the dispute on the basis of international law. One could argue that all stages of the contractual relationship, i.e. conclusion, performance, breach of the contract, and dispute settlement, are subject to international law. Such internationalization is founded on the consent of States, as expressed in the international agreements structurally covering the contract between the international organization and the corporation. In order to safeguard the performance of the organizations’ core functions, States Parties have agreed to internationalize the contracts under examination, thus submitting the bundles of bilateral contractual relationships to international law.

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Such internationalization has been consented to without States voicing normative concerns as to how corporations are to fit within the system of international law of the sea and international economic law. The explanation for this lack of normative objections may stem from the fact that both contracts are framed and formulated in a manner which relies heavily on municipal law analogies. Indeed both the contract for exploration and the loan agreement employ legal concepts that could be found in domestic contractor or loan agreements respectively, which in principle are entered into by corporations. The fact that the function of the corporation on the international level essentially mirrors that on the municipal level, and the corresponding analogies between international and municipal law, when called upon to regulate that corporate function, constitutes a significant factor in allaying States’ normative concerns.

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V The Structural Framework for Corporate Obligations in the Context of Human Rights The foregoing analysis of the sources of corporate obligations under international law highlights the emergence of the corporation as an entity whose conduct is increasingly regulated by international legal rules. Whereas the existence of international law obligations binding directly on corporations has been affirmed in the context of contractual relationships entered into by corporations and international organizations, namely the ISA and the IBRD, it has been negated in the context of international human rights and criminal law. Yet, even in these fields, where corporate obligations have not emerged as a matter of positive law, one cannot exclude the possibility that States may eventually choose to establish such obligations. In any case, the above inquiry into the sources of corporate obligations lays to rest the suggestion that corporations are clearly excluded from the ambit of international law.1 Corporations are not the normal or principal subjects of international law. To the extent that international law imposes obligations on corporations, it does so exceptionally.2 The affirmation of corporate obligations under international law does not necessarily mean that corporations become a State or that these obligations are identical or even similar to those of a State.3 The ICJ has held that ‘the subjects of law in any legal system are not necessarily identical in their nature . . . their nature depends upon the needs of the community’.4 The Court, in dissociating international personality from sovereignty, impliedly admitted that international legal obligations may bind entities, which, unlike States, do not have a general competence to act on the international plane,5 but whose legal competence to

1 For a narrow conception, see F Rigaux, ‘Transnational Corporations’ in M Bedjaoui (ed), International Law: Achievement and Prospects (1991) 129. 2 P Daillier and others, Droit international public (8th edn, 2009)  716; see RY Jennings and A Watts (eds), 1 Oppenheim’s International Law (9th edn, 1992) 16. 3 W Friedmann, The Changing Structure of International Law (1964) 375. 4 Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 179. 5 In the words of Bosanquet, ‘[the State] has no determined function in a larger community, but it is itself the supreme community’, cited in H Lauterpacht, Private Law Sources and Analogies of International Law (1927) 47.

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act is circumscribed by the function they are called upon to fulfil.6 The scope and structure of corporate obligations find their root and limits in the function of the corporation and its significance for meeting the needs of the international legal order.7 The question of corporate obligations has most prominently featured in the context of international human rights law. Numerous authors have dealt with the question from an ontological perspective, i.e. focusing on whether such obligations exist or not.8 The assumption that lies at the heart of an exclusively ontological debate is that human rights obligations of corporations, once found to exist, would have a scope equivalent to States’ human rights obligations. Yet, such an ontological debate does not address the implications of the recognition of corporate obligations on the scope and structure of performance of international human rights law. The above analysis has refuted the existence of corporate human rights obligations under positive international human rights law. What is more the UN Human Rights Council has endorsed the Guiding Principles, thus signaling a move away from efforts to submit corporations to international human rights law. Yet, it is unlikely that the proposition that international human rights law may serve as the only credible deterrent to corporate misconduct will disappear any time soon. It is therefore imperative that one scrutinize the effects of transposing international human rights into the corporate context on those rights’ scope and structure.

1. Corporate Human Rights Obligations Prior to the dissociation of personality from sovereignty, obligations under international law, irrespective of their source, addressed in principle the conduct of sovereign States.9 Lack of sovereignty meant lack of capacity to bear obligations. Conversely, all international legal rules had a ‘nexus to the concept of the state’ and the emergence of new rules involved an ‘abstraction of the particular characteristics of the States in question’.10 In the words of Allott, ‘subjects of international law are states . . . in the sense that the present conceptual structure of international law

6 RY Jennings, ‘General Course on Principles of International Law’ (1967) 121 RdC 348; cf P-M Dupuy, ‘L’unité de l’ordre juridique international’ (2002) 297 RdC 95; H Mosler, ‘Réflexions sur la personnalité juridique en droit international public’ in Mélanges offerts à Henri Rolin (1964) 241. 7 Cf C Schreuer, ‘The Waning of the Sovereign State’ (1993) 4 EJIL 461. 8 For views affirming the existence of corporate obligations under international human rights law, see A Clapham, Human Rights Obligations of Non-State Actors (2006) 266–270; D Weissbrodt and M Kruger, ‘Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights’ (2003) 97 AJIL 913; J Paust, ‘Human Rights Responsibilities of Private Corporations’ (2002) 35 VJTL 810–815; the contrary view is held by CM Vázquez ‘Direct vs Indirect Obligations of Corporations under International Law’ (2004-2005) 43 CJTL 932–947. 9 Of course even at the height of State-centrism, international law exceptionally accepted differences in the status of its subjects. See the analysis on the legal capacity of neutralized States by A McNair, ‘Equality in International Law’ (1927-8) 26 MichLR 136–138. 10 A Bleckmann, ‘Article 2 (1)’ in B Simma (ed), The Charter of the United Nations (1994) 87.

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attaches rights and duties to the category “state” ’.11 The equality of States as subjects of international law resulted in an equality of application of international rules. In the aftermath of the Reparation Opinion this view is no longer tenable. The hue of the concept of personality exhibits gradations: the rules of international law ‘may select different entities and endow them with different legal functions’.12 To the extent that corporate conduct is regulated directly by international law, the corporation adopts the forms and methods of international law in its dealings with States as a juridically equal person.13 Yet, this leaves open the question whether corporations ultimately assume international obligations the scope of which is coterminous to that of the respective obligations of States. International human rights law has been conceived and formulated as targeting State action. The regulation of State conduct was the initial ratio of the law, and in this sense, States constitute its initial subjects. Nevertheless, they increasingly delegate or relinquish their functions to private corporations. Insofar as corporations assume functions comparable to those of States, they may eventually become addressees of human rights rules. This potential expansion of the circle of human rights obligors results from an analogical reasoning based on the function of the corporation. The question then becomes whether such analogical reasoning leads to the imposition of obligations on corporations of an equivalent scope to those of States. The assessment of the equivalence vel non of potential corporate human rights obligations proceeds on the basis of a three-pronged inquiry into the content, the scope, and the circle of beneficiaries of the respective obligations.

a. Content The first logical question is a question of substance, namely which human rights obligations are we actually talking about. The first international instrument to address the issue was the 1999 Global Compact. Principle 1 of the Global Compact (hereinafter GC) requests corporations to ‘support and respect the protection of internationally proclaimed human rights’ without any clarification as to which human rights it actually refers to, thus implying that all human rights may be of relevance to corporate conduct.14 The 2004 UN Norms on the Human Rights Responsibilities of Transnational Corporations (hereinafter UN Norms) espoused an approach similar to that of the GC. Art 1 of the UN Norms stated that ‘[w]ithin their respective spheres of activity and influence, [corporations] have the obligation to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights recognized in international as well as national law’.15 This 11

P Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 HarvILJ 14. DP O’Connell, International Law (2nd edn, 1970) 80. 13 Cf V Lowe, International Law (2007) 18. 14 For the text of the Global Compact Principles, see . 15 For the text of the UN Norms, see . Special Representative Ruggie adopted a similar wide-reaching approach in the 2011  ‘Guiding Principles on Business and Human Rights’. According to General Principle 12: ‘The responsibility of business enterprises to respect human rights refers to internationally 12

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provision read in tandem with the UN Norms Preamble, which reaffirmed the ‘responsibility’ of corporations to promote and secure the human rights set forth in the UDHR as well as those human rights ‘contained in United Nations treaties and other international instruments’, suggested that corporations already are or should at least be bound by the totality of human rights obligations, which amounts to stipulating that corporations in human rights terms have been fully assimilated to the State. Such a sweeping ‘all or nothing’ approach to corporate human rights obligations oversimplifies the matter. There exist obligations which, due to their content, cannot in a meaningful way produce a binding effect on corporations. Suffice here to mention the prohibition of the retroactivity of criminal legislation16 or the right of every child to acquire nationality.17 Such human rights provisions are intimately linked to the core functions exercised by the State. On the other hand, as a matter of positive law, there exist human rights which can be interfered with as a result of corporate activity.18 Of course, in these instances human rights law speaks to positive obligations of States to prevent such interference from taking place. Corporate interference with the enjoyment of a human right does not equal a corporate violation of that right under international law, as corporations are not obligors under international human rights law. Corporate interference triggers the responsibility of the State for breaches of its positive obligations. Yet, if we were to theoretically accept corporations as human rights law addressees, cases of corporate interference would be the first to translate into human rights obligations since these cases highlight that corporate conduct may result in harming certain human rights. A descriptive recital of all human rights standards relevant to corporate activities goes beyond the scope of the present analysis. The substantive reach of corporate human rights obligations cannot but be dealt with on an ad hoc basis, all the more so since the exercise by a corporation of a public function as a result of the transferral of state-run services to private corporate operations constitutes the exception rather than the rule. Indeed, when corporations assume public functions, they challenge the functional monopoly of the State.19 The criterion espoused to

recognized human rights—understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.’ According to the Commentary to this Principle: ‘Because business enterprises can have an impact on virtually the entire spectrum of internationally recognized human rights, their responsibility to respect applies to all such rights. In practice, some human rights may be at greater risk than others in particular industries or contexts, and therefore will be the focus of heightened attention. However, situations may change, so all human rights should be the subject of periodic review.’ See ‘Guiding Principles on Business and Human Rights’ (21 March 2011) UN Doc A/HRC/17/31, 13, available at http://www. business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf. 16 17 Art 15 (1) ICCPR. Art 24 (3) ICCPR. 18 See the analysis of international human rights case law at 35–45. 19 Cf ECtHR, Costello-Roberts v United Kingdom App no 13134/87 (1993) [27]; Storck v Germany App no 61603/00 (2005) [103].

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delimit the substance of corporate human rights obligations has to be a functional one: human rights ultimately operate as guarantees vis-à-vis factual control with certain functional content,20 therefore the nature of corporate function highlights which human rights obligations the corporation may harm. A corporation is not a plenary human rights obligor. Yet, to the extent that its function justifies the imposition of human rights obligations, then it should also serve to delimit the substance thereof.

b. Scope An obligation incumbent upon the corporation means that the corporation is required to either act or refrain from acting. Under the traditional conceptualization of human rights as inherently negative or positive, a corporation would correspondingly be required (a)  to omit any act potentially detrimental to the enjoyment of a negative right or (b) to act with a view to guaranteeing the enjoyment of a positive right. Still, as argued in the context of human rights treaty law, the negative/positive dichotomy does not offer an accurate picture of the array of measures necessary to enable an individual to be secure against threats to his rights. Societal realities on the ground are growing ever more complex. It is nowadays accepted that each human right may necessitate a variety of measures ranging from non-interference to actively ensuring the satisfaction of individual needs.21 For the sake of terminological clarity, the present analysis will proceed on the basis of Eide’s tripartite typology of obligations to respect, protect, and fulfil.22 Yet, one needs to keep in mind that ‘[t]ypologies are not the point . . . typologies are ladders to be climbed and left behind, not monuments to be caressed or polished’.23 What lies at the heart of the matter is not to transpose human rights doctrine in toto into the corporate context but to utilize human rights typologies in order to establish the scope of potential corporate obligations under international human rights law.

(1) Respect The first step in delimiting the scope of potential corporate human rights obligation is the ‘baseline’ obligation to respect human rights.24 This obligation presupposes an existing right enjoyed by an individual that produces a correlative duty

20

See the analysis of the concept of jurisdiction, at 84–85. See M Craven, The International Covenant on Economic, Social and Cultural Rights (1995) 110. 22 The tripartite typology was first introduced by A Eide in ‘The Right to Food as a Human Right’ (7 July 1987) UN Doc E/CN.4/Sub.2/1987/23. 23 H Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (2nd edn, 1996) 160. 24 ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5 16; see also ‘Mandate of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other Business Entities’ (18 June 2008) UN Doc A/HRC/RES/8/7. 21

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on the bearer of the obligation to refrain from actions that would infringe such enjoyment—‘put simply, to do no harm’.25 Conceptually, this obligation evokes a duty of omission and therefore overlaps with what has traditionally been perceived as a ‘negative’ right. One can envisage this corporate obligation to refrain from action by drawing parallels to ECtHR case law on corporate interference. Thus, in the context of the right to liberty, a private clinic would be under an obligation to refrain from arbitrarily detaining an individual patient.26 Negative obligations, namely obligations to refrain from acting, do not operate exclusively with respect to civil and political rights but also in the context of economic, social, and cultural rights, despite their traditional classification as ‘positive rights’. The obligation to respect in this regard amounts to a duty to refrain from conduct depriving the right holder of his freedom to use material or other resources available to him in a way he finds most appropriate to satisfy his individual needs.27 Thus, a corporation would be under an obligation to refrain from conduct detrimental to the land and cultural rights of indigenous communities.28 The obligation of a corporation to respect a specific human right amounts to a duty to refrain from conduct detrimental to the enjoyment of the right in question. A thornier issue is whether a corporation may be under an obligation to take positive measures within the context of its obligation to respect. The EComHR Hughes v United Kingdom decision involved the omission by a private school to immediately call an ambulance when one of its employees suffered coronary occlusion on the grounds of the school. The Commission refused to read a positive obligation to summon emergency medical assistance into the right to life, impliedly finding that the actions of the school did not interfere with the right to life of the victim.29 Reaching a conclusion similar to that of Hughes, Clapham has argued that ‘[p]rivate bodies are not obliged to provide the sort of . . . preventive measures which the State can be called on to implement’.30 An analogous, but less strict, approach has been advocated by Ratner, who argues that ‘the company will usually have only negative duties or those positive measures clearly necessary to effect them’.31 For Ratner, the obligation to respect does not produce freestanding obligations to act. On the contrary, they can only be contingent upon obligations to refrain from acting. This reluctance towards corporate obligations to act in the context of human rights may reflect a rigid adherence to the negative/positive dichotomy. Obligations

25

‘Protect, Respect and Remedy’ (n24) 9. See Storck (n19) [75-76], where the ECtHR established the arbitrariness of detention by a private psychiatric clinic. 27 S Leckie, ‘The Human Right to Adequate Housing’ in A Eide and others (eds), Economic, Social and Cultural Rights (2nd edn, 2001) 155–156. 28 Cf ‘Concluding Observations of the Committee on Economic, Social and Cultural Rights: Ecuador’ (7 June 2004) UN Doc E/C.12/1.Add.100 [12]. 29 EComHR, Hughes v United Kingdom App no 11590/85 (1986) [The Law 1]. 30 A Clapham, Human Rights in the Private Sphere (1993) 205. 31 S Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001–02) 111 Yale LJ 517. 26

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to act are predominantly associated with economic, social, and cultural rights, typically associated with claims for State action.32 It appears conceptually difficult to transpose these obligations into the corporate context. Yet, once we depart from the negative/positive dichotomy, the question of corporate obligations to act is cast under a different light. A corporation may be required to take those measures necessary in order to avoid interference with a human right.33 In other words, an obligation to respect a right may necessitate positive action on behalf of the corporation. Privately operated prisons would thus bear an obligation to guarantee minimum standards regarding conditions of detention.34 Equally, a chemical factory may be required to improve its installations so as to avoid interfering with the rights to privacy of the residents of the factory’s surrounding area as a result of toxic emissions.35

(2) Protection Whether the corporation has any additional obligations beyond the baseline obligation to respect remains controversial.36 The UN Norms took a broad-sweeping approach to the question by positing that corporations may be called upon to ‘promote, secure the fulfillment of, respect, ensure respect of and protect human rights’.37 These various obligations appear as a spectrum building on the obligation to respect or as sort of ‘respect-plus’ obligations. Yet, if one scrutinizes the scope of these additional obligations, it becomes apparent that their content differs markedly from that of the obligation to respect.38 The obligation to protect requires States to enact the ‘measures necessary to prevent other individuals or groups from violating the integrity, freedom of action or other human rights of the individual’.39 It speaks to the protection offered by the State to an individual, whose human rights are jeopardized by the acts of a third individual or group of individuals. An essential difference between the obligation to respect and to protect is that, in the case of the latter, interference with the enjoyment of human rights is not a direct result of the obligor’s conduct. Put 32 See EW Vierdag, ‘The Legal Nature of the Rights Guaranteed by the International Covenant on Economic, Social and Cultural Rights’ (1978) 9 NYIL 80; P Alston and G Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights (1987) 9 HRQ 159. 33 See ‘Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy” Framework’ (9 April 2010) UN Doc A/HRC/14/27, 12–13. 34 Cf ‘Concluding Observations of the Human Rights Committee:  New Zealand’ UN Doc CCPR/C/NZL/CO/5 (7 April 2010) 3. 35 See ECtHR, Guerra and others v Italy App no 14967/89 (1998) [59]. 36 N Jägers, Corporate Human Rights Obligations: In Search of Accountability (2002) 79. 37 Art 1 UN Norms; cf Principle 1 GC. 38 The conflation of the various obligations amounts to a ‘terminological mixture of apples and oranges’, as correctly noted by IE Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 HRLR 94. 39 A Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’, (1989) 10 HRLJ 37; cf HRC, ‘General Comment No 31: Nature of the Legal Obligation Imposed on States Parties to the Covenant’ (26 May 2004)  UN Doc CCPR/C/21/Rev.1/Add.13 [8]; ComESCR:  ‘General Comment No 13:  The Right to Education’ (8 December 1999)  UN Doc E/C.12/1999/10 [47].

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differently, the responsibility of the obligor is not triggered by his actions, but by the lack of due diligence on his behalf to prevent a violation from taking place. A further difference relates to the nature of the measures necessary in order for the obligation in question to be complied with. In the case of the obligation to respect, the measures are tailored to the facts of the case at hand and the nature of the right in question. On the contrary, the obligation to protect is of a structural nature and requires States to organize the governmental apparatus and the exercise of public power in such a manner as to juridically ensure the full enjoyment of human rights. Thus, the measures envisaged encompass the passing of legislation, the establishment of an effective regulatory regime, and the provision of effective remedies.40 In the words of the AfrComHPR, ‘[p]rotection generally entails the creation and maintenance of an atmosphere or framework by an effective interplay of laws and regulations so that individuals will be able to freely realize their rights and freedoms’.41 It has been maintained that the obligation to protect can be transposed into the corporate context when corporations’ activities render them capable of implementing preventative measures, and where such action might be reasonably expected.42 McBeth has argued that such obligations may emerge due to the privatization of services provided by the State: the privatization of prisons should bring about the obligation of corporations to prevent prison inmates from interfering with each other’s rights.43 It is undeniable that in the case of a prison run by a private corporation, the latter may incur an obligation to act with a view to upholding the enjoyment of human rights of inmates. Yet, this would not conceptually fall within the ambit of the obligation to protect, but of the obligation to respect. The obligation to respect may encompass a duty to act: in the case of private prisons, a duty to guarantee the minimum standards regarding conditions of detention through the proper training of the prison staff. This obligation is conceptually different, independent from, and concurrent with the obligation of the State to protect the rights of inmates by establishing an effective regulatory system regarding the privatization of prisons and guaranteeing judicial remedies for human rights violations. The fact that a corporation may be tasked to provide services traditionally provided by the State, such as prisons and health care, does not assimilate it to the State for the purposes of human rights protection.44

40 See F Van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’ in P Alston and K Tomasevski (eds), The Right to Food (1984) 106, who speaks of obligations on States to ‘take steps—through legislation or otherwise—which prevent or prohibit others (third persons) from violating recognized rights’. 41 AfrComHPR, Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria Comm no 155/96 (2001) [46]. 42 Jägers (n36) 83–84. 43 A McBeth, ‘Privatising Human Rights’ (2004) 5 MelbJIL 147. 44 B Frey, ‘Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights’ (1997) 6 Minnesota J Global Trade 163, arguing that the ‘responsibility [to protect] is assigned to governments who may, in turn, regulate corporations as private actors’.

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(3) Fulfilment On a tertiary level, the obligation to fulfil traditionally requires States to take those measures necessary to ensure for each person within its jurisdiction ‘opportunities to obtain satisfaction of those needs, recognized in the human rights instruments, which cannot be secured by personal efforts’.45 The aim of the obligation to fulfil is to enable individuals themselves to provide for the realization of their needs through their own efforts and by use of their own resources.46 The point of departure is no longer that the right is actually fully enjoyed but rather that the right is not enjoyed, though not necessarily because an obligation to respect or protect has been violated.47 The obligation to fulfil has traditionally been associated with economic, social, and cultural rights. These rights are seen as involving resource-intensive obligations of progressive realization.48 Yet, distinguishing between economic, social, and cultural and civil and political rights on the basis of cost is somewhat simplistic. All human rights require States to set up institutional machinery in order to secure compliance with their respective obligations. Assuming that all human rights involve cost, any difference between the rights would be quantitative, rather than flowing from a difference in the quality of the obligations.49 Equally, it is questionable whether economic, social, and cultural rights exclusively produce obligations of progressive realization, whereas civil and political rights, on the contrary, are of immediate application. Some dimensions of economic, social, and cultural rights may involve progressive realization to a greater extent than some civil and political rights. Still, it is difficult to dispute that ‘the full realization of all human rights requires States to develop progressive policies’.50 Thus, all human rights may logically entail an obligation to fulfil the right in question. The application of this obligation to corporations may yield counterintuitive results. First, there is a conceptual difficulty with requiring the corporation to allocate its resources towards the realization of human rights, taking into consideration that the scope of a private corporation is predominantly to maximize profit. Such an extension of corporate obligations towards including an obligation to fulfil human rights does not square with the reality of corporate enterprise.51 Second, the essence of the obligation to fulfil is to mobilize the State towards doing its best to realize the rights in question. The imposition of an obligation to fulfil on the corporation could be utilized by States as an excuse for not complying fully with their own obligations. Finally, the obligation to fulfil requires States to allocate 45

Eide (n39) 37 [emphasis added]. A Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Eide and others (n27) 23. 47 IE Koch, ‘The Justiciability of Indivisible Rights’ (2003) 72 Nordic JIL 15. 48 Alston and Quinn (n32) 159. 49 M Sepúlveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (2003) 127. 50 Sepúlveda (n49) 129; see also D McGoldrick, The Human Rights Committee (2nd edn, 1994) 273; M Nowak, UN Covenant on Civil and Political Rights (2nd edn, 2005) 62. 51 Ratner (n31) 518. 46

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resources toward the realization of human rights. It does not require a State to devote all its resources, let alone resources that it does not have. On the contrary, it allows States a margin of discretion in determining how to allocate these resources in order to progressively realize the enjoyment of human rights.52 Imposing the obligation to fulfil on corporations would logically result in reducing this margin of discretion left to States.53

c. Beneficiaries The last task while dealing with corporate human rights obligations is the delimitation of the circle of beneficiaries. When it comes to the State, it is presumed to exercise plenary jurisdiction over its territory and thus owes its human rights obligation to everyone within its jurisdiction.54 The position of the corporation is strikingly different: it may be accepted as a human rights addressee to the extent that it exercises functions akin to those of the State, which as of logical necessity are always somewhat less than those of the State. Thus, the question becomes how to translate the concept of ‘jurisdiction’ into the corporate context with a view to ascertaining the circle of the respective rights holder vis-à-vis the corporation. One solution to the problem is to seek recourse to the concept of ‘sphere of activity’ or ‘sphere of influence’, which gained traction as an analytical tool following the creation of the Global Compact and the adoption of the UN Norms. In the case of the UN Norms, the ‘sphere of influence’ was utilized as a basis of corporations’ legal obligations, as though it were functionally equivalent to the ‘jurisdiction of States’.55 The ‘sphere’ has been conceptualized as a set of concentric circles, mapping stakeholders in a company’s value chain: with employees in the innermost circle, then moving outward to suppliers, the marketplace, the community, and governments. The model made the implicit assumption that the ‘influence’, and thus presumably the responsibility, of a company declines as one moves outward from the centre.56

While schematically useful, it is questionable whether this concept may help elucidate the scope of corporate obligations under international human rights law. The concept has no legal pedigree, and thus no fixed meaning in law, let  alone international human rights law.57

52

53 Craven (n21) 115. Vázquez (n8) 950–954. One needs to note in this respect that certain rights are reserved exclusively to nationals. See, for example, Art 25 ICCPR, limiting the right to participate in public affairs to nationals, and Art 2 (3) ICESCR, allowing developing States Parties to limit economic rights to nationals. 55 ‘Protect, Respect and Remedy’ (n24) 19. 56 ‘Clarifying the Concepts of “Sphere of Influence” and “Complicity” ’ UN Doc A/HRC/8/16 (15 May 2008) 4. For an initial exposition of the idea, see D Cassel, ‘Corporate Initiatives: A Second Human Rights Revolution?’ (1995-6) 19 Fordham ILJ 1981–1984. 57 J Ruggie, ‘Business and Human Rights:  The Evolving International Agenda’ (2007) 101 AJIL 825. 54

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Setting terminological concerns aside, one has to scrutinize the actual scope of human rights obligations envisaged by the ‘sphere of influence’. At the heart of the concept lies the assumption that, to the extent that a corporation exercises influence over a given situation, it has to assume corresponding human rights obligations. The imposition of human rights obligations on corporations on the ground of its influence appears problematic. On the one hand, deriving obligations from influence requires ‘assuming, in moral philosophy terms, that “can implies ought” ’.58 On the other hand, it is paradoxical to define the obligations of States, as the primary human rights obligors, in terms of control over a given situation, and at the same time impose obligations on corporations on a looser standard, namely that of ‘influence’, despite the fact that corporations incur human rights obligations only incidentally. What matters in terms of human rights is the capacity of the corporation to actually harm, as opposed to the capacity to negatively influence, the enjoyment of human rights. There is a final methodological objection to the concept of the ‘sphere of influence’. The UN Norms proceeded from the assumption that corporations have obligations equivalent to those of States, and then utilized the ‘sphere of influence’ in order to curtail these initial obligations. This amounts to putting the cart before the horse: one has to begin from the postulate that because corporations are not democratic public interest institutions, their responsibility regarding human rights is of a limited nature, and then proceed to analyse which specific obligations the corporation bears under human rights law and to whom these obligations are owed. Yet, refuting the usefulness of the concept of ‘sphere of influence’ leaves the key question unanswered, namely how to delimit the circle of rights holders vis-à-vis the corporation. The manner in which the ‘sphere of influence’ was utilized during the drafting process of the UN Norms is illuminating. In this instrument, ‘sphere of influence’ was used as a synonym to jurisdiction. Reluctance to use the latter term reflects the fact that corporations cannot be said to have a jurisdiction comparable to that of States. Yet, the fact of the matter is that the imposition of human rights obligations on an entity is justified on account of the nature of its relationship to individuals. Irrespective of whether we term it ‘jurisdiction’ or ‘sphere of influence’, the root of human rights obligations is the existence of a factual situation, namely control. As argued above, control has a territorial and a functional facet.59 Corporations, unlike States, do not in principle exercise control over territory, and therefore the geographical or spatial aspect of control is not relevant in this respect. Still, corporations may exercise functional control over persons. We may distinguish between two categories of control over persons. First, control in a narrow sense that results from physical custody. This would be the case of patients of private clinics and inmates of privately run prisons. Second, a conceptually broader category of control would result from a ‘cause and effect’

58 59

‘Clarifying the Concepts’ (n56) 5. See the analysis of the concept of jurisdiction, at 84–85.

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factual relationship between the corporation and the individual. Insofar as the control exercised by corporations results in interfering with the enjoyment of human rights of individuals and there exists causation between the interference and the acts or omissions of a corporation, the corporation may owe human rights obligations to the affected individuals. Of course, the requisite causal link between corporate conduct and human rights interference has to be interpreted strictly. The mere presence of a corporate investor in a country where human rights abuses are taking place would not constitute a link sufficient to trigger the potential human rights obligations of corporations. Equally, where a State perpetrates human rights violations with a view to luring corporate investment, one may argue that corporate investors retain some sort of ‘indirect’ control over the aggrieved individuals. Yet, in these cases, one has to draw a bright line between influence and control. If the causal link were to be interpreted loosely, this would result in corporations assuming obligations on account of their influence over a given situation, which as shown above leads to a paradoxical situation with respect to human rights law.

d. Equivalence of obligations The imposition of human rights obligations on corporations has to proceed on the basis of the nature of corporate activities and the context in which they are carried out. First, corporations may assume obligations in respect of a limited set of human rights, since there exist human rights which corporations cannot logically infringe. Second, the human rights obligations of a corporation amount to obligations to respect those human rights susceptible to infringement, but do not extend to include obligations to protect and fulfil, which exclusively bind the State. Thus, to suggest that corporations are human rights addressees does not mean that corporations assume human rights obligations of a scope equivalent to those of States. States may delegate an array of functions to corporations, yet this does not result in assimilation between the State and the corporation in functional terms. This functional differentiation results in the corporation assuming human rights obligations of non-equivalent scope. Correspondingly, corporations do not assume human rights obligations vis-à-vis all individuals residing within the State in which the corporation is doing business. The human rights obligations of a corporation are solely owed to those persons under the corporation’s factual control. The non-equivalence of obligations does not mean that corporate obligations cannot theoretically be conceived of. Yet, it means that an automatic transposition of the totality of human rights obligations within the corporate context cannot simply proceed on the basis of drawing an abstract analogy to the obligations of States under international human rights law. One should note here that the fact that corporate obligations under international human rights law are of non-equivalent scope compared to those of States should not be taken to mean that this is always the case in general, especially when one considers other fields of international law. Indeed, an examination of the scope of obligations arising under contracts for exploration entered into between

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corporations and the ISA would point towards the opposite direction. Art 153 LOSC sets out the international legal regime governing exploration for polymetallic nodules in the Area. According to Art 153 (2) LOSC such exploration activities may be undertaken, in association with the ISA, by a plurality of operators, namely ‘States Parties, or State enterprises or natural or juridical persons’. The formulation of the provision suggests that the LOSC drafters considered the role of corporations with respect to exploration activities and their direct submission to the international regime.60 Indeed, it transpires from the LOSC text that the intention of its drafters was not solely to regulate the conduct of States Parties, but also that of corporations participating in exploration activities in the Area. Therefore, one may argue that corporations serve as initial subjects of the international law obligations regarding exploration of polymetallic nodules. The function of the corporation and the regulation of its conduct operates, inter alia, as the ratio of Art 153 (2) LOSC. At the same time, Art 153 LOSC, read in conjunction with Annex III LOSC, establishes a regime which seeks to regulate the conduct of all operators uniformly.61 No distinction is to be drawn between States and corporations in their respective capacity as operators. To the extent that corporations assume the function covered by Art 153 LOSC, they become addressees of the respective provisions of the law of the sea on a par with States Parties and other operators. In other words, in their capacity as operators engaging in exploration for polymetallic nodules they assume obligations equivalent to those of all other operators. This equivalence of obligations mirrors the equivalence of function: irrespective of their nature as a State, a State enterprise, or a private corporation, all operators are granted the right, in accordance with the obligations set out in LOSC, to perform a limited array of activities within the Area.

2. Structural Gradations of International Human Rights Obligations Relations produced by human rights rules have often been depicted in human rights doctrine as vertical.62 Human rights, as the historical product of the struggle of individuals against the legal and socio-economic power of the sovereign State, apply in the public sphere, where the State’s capacity to resort to coercion is most prevalent, and they aim at constraining this capacity.63 Human rights ultimately speak to the subjection of the individual to the sovereign’s legal sanction, in other

60

Cf B Oxman, ‘The Third United Nations Conference on the Law of the Sea’ (1977) 71 AJIL 253. See G Jaenicke, ‘Legal Aspects Concerning the Rules and Regulations of the International Sea-bed Authority to be Drafted by the Preparatory Commission’ in A Koers and others (eds), The 1982 Convention on the Law of the Sea (1984) 207. 62 See J Habermas, The Future of Human Nature (2003) 76; JH Knox, ‘Horizontal Human Rights Law’ (2008) 102 AJIL 1. 63 W Osiatynski, Human Rights and their Limits (2009) 193. 61

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words they speak to vertical relations. Verticality in this sense reflects the asymmetry in the power held by the individual and the State, an asymmetry which results in relations of authority and subordination. Since only States may wield sovereign power, human rights have traditionally been erected on the edifice of the exclusivity of the State as the addressee of human rights. Human rights presuppose the duality of State and individual, as well as a duel between the two.64 This traditional approach has come under fire by those who argue that it is unreasonable to confine the application of human rights to the public sphere. Clapham has called for the redefinition of the parameters of the public and private spheres on account of the emergence of new fragmented centres of power . . . [which means that] the individual now perceives authority, repression and alienation in a variety of new bodies, whereas it was only the apparatus of the States which was perceived in the doctrine to exhibit those characteristics.65

The sphere of private autonomy is no longer a sphere of contractual equilibrium in which individuals pursue their interests. Private entities have the potential to interfere with human rights as extensively as the State. In this vein, it is suggested that human rights should not solely operate vertically, but also horizontally. Horizontality of human rights, at its most abstract, refers to the impact of human rights rules on the legal relations between private persons.66 Calls for the creation of corporate obligations under human rights law are rooted in the same considerations. They form an integral part of the general debate on the application of human rights in the private sphere.

a. The ‘vertical’ structure of human rights obligations Human rights obligations are owed directly to the individual.67 Therefore, a human rights obligation gives rise to a relationship between the latter and the obligor. If the individual has a right-claim that the obligor act or refrain from acting, the latter is under a correlative obligation to perform that act or refrain from it. Equally, where the obligor breaches a given human rights obligation owed to an individual, then its responsibility is incurred vis-à-vis that individual.68 Therefore, the legal relationship between the human rights obligor and an individual under international law is bilateral in nature. The establishment of one or more human 64 R Cassin, ‘La déclaration universelle et la mise en oeuvre des droits de l’homme’ (1951) 79 RdC 279–280. 65 Clapham (n30) 137. 66 Cf G Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62 MLR 824. 67 Cf the Commentary to the ILC, ‘Draft Articles on the Responsibility of States for Internationally Wrongful Acts’, as included in the ‘Report of the International Law Commission on the Work of its Fifty-Third Session’ UN Doc A/56/10 (2001) II (2) ILC Ybook 129; ECtHR, Ireland v United Kingdom App no 5310/71 (1978) [239]; HRC, ‘General Comment No 31’ (n39) [2]; see R Higgins, Problems and Process (1994) 95; A Orakhelashvili, Peremptory Norms in International Law (2006) 86. 68 IACtHR, Velásquez-Rodríguez v Honduras C 4 (1988) [164].

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rights obligations binding upon the corporation results in the elevation of the corporation to the status of an obligor under international human rights law. Thus, a corporate obligation under international human rights law would give rise to a relationship between the individual as the human rights beneficiary and the corporation as the bearer of the corresponding obligation. As of logical necessity then, the obligation would run between the individual and the corporation inter se. Corporate obligations would not diminish the primary obligation of States to uphold human rights within their jurisdiction. This primary obligation is not to be confused with any putative corporate obligation. If we assume for the sake of argument that a corporation is bound by the obligation to respect the right to life, then in a case of corporate conduct in violation of its obligation, the corporation would be eo nomine responsible under international law vis-à-vis the individual for this violation should the wrongful act be attributed to the corporation. Any other solution would be illogical on two grounds. First, to negate corporate responsibility would do away with the duty of corporations to behave in accordance with their prospective international law obligations.69 Second, the rationale behind corporate obligations under international law is exactly that international responsibility may act as a deterrent against corporate misconduct detrimental to the enjoyment of human rights. This, of course, does not preclude that the State may incur responsibility under international law arising from the commitment of the same wrongful act. The State may be under a positive obligation to prevent the human rights violation by the corporation, or investigate and punish such violation.70 Yet, this positive obligation does not overlap with that of the corporation. It creates a distinct bilateral relationship between the State and the individual. Thus, corporate obligations and State obligations under international human rights law would run parallel, but they would not overlap. The obligations imposed under human rights law are not matched by reciprocal correlative obligations assumed by individual rights holders. Human rights law does not impose obligations on individuals as a condition of validity or as a condition for the execution of human rights obligations.71 Indeed, human rights law is premised on the duality between the individual and power:72 the State, as the traditional bearer of obligations, has no claim to human rights protection. Inversely, individuals, as the exclusive rights holders, have no human rights obligations. Therefore, the relationship established between the State and the individual under international human rights is non-reciprocal in character.73 Corporate human rights obligations stem from the same normative assumptions as human rights obligations of States. Individuals do not assume any obligations under human rights law vis-à-vis the State, and there is no reason why they should vis-à-vis the 69

Cf A Verdross, Völkerrecht (5th edn, 1964) 373. See ECtHR, Öneryildiz v Turkey App no 48939/99 (2004) [91]. 71 R Provost, International Human Rights and Humanitarian Law (2002) 133. 72 Cassin (n64) 280; cf J Isensee and P Kirchhof (eds), 5 Handbuch des Staatreschts (1992) 564. 73 See Commentary (n67) 129; ILC, ‘Fragmentation of International Law’ (13 April 2006) UN Doc A/CN.4/L.682 198; L-A Sicilianos, ‘The Classification of Obligations and the Multilateral Dimension of the Relations of International Responsibility’ (2002) 13 EJIL 1135. 70

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corporation. Corporate human rights obligations would give rise to non-reciprocal relations between corporate human rights addressees deprived of human rights and individual human rights holders free from human rights obligations. To this extent, it transpires that corporate obligations mirror the structure of performance of States’ human rights obligations and, therefore, they do not fundamentally challenge the structure of international human rights law. Interestingly, the description of human rights relationships as vertical in human rights doctrine corresponds to the geometric metaphor espoused in international law theory to describe the structure of performance of human rights obligations. It has become commonplace to associate the emergence of human rights with a transformation in the structure of international obligations.74 As Simma has argued, the ‘bilateral-minded’ operation of traditional international law, which comprises international legal obligations existing at the level of States individually, has come under pressure from the emergence of ‘community interests’, which necessitate that certain fundamental values are not to be left to the free disposition of States inter se.75 The origin of the ‘community interest’-minded operation of international law can be traced back to the Reservations to the Convention on Genocide Advisory Opinion, wherein the ICJ held that ‘[in the Genocide Convention] the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention’.76 Community elements are said to be ‘overlapping, superseding and sometimes even abolishing the old-fashioned bilateralist structures’.77 Changes affecting the structure of a given legal order logically impact on the structure of the obligations that legal order produces. It is argued that obligations under international law are not structurally uniform.78 This can be gleaned from the ‘essential distinction’ drawn by the ICJ ‘between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection’.79 The rationale behind this distinction lay in the fact that ‘[b]y their very nature the former are the concern of all States’ and therefore ‘all States can be held to have a legal interest in their protection’.80 Crawford has alluded to this variety in the structure of international law obligations by suggesting that ‘into the horizontal system of international law . . . there have been introduced what one might call vertical elements, elements of a hierarchy of norms and values’.81

74

See A Bianchi, ‘Human Rights and the Magic of Jus Cogens’ (2008) 19 EJIL 494–495. B Simma, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 RdC 229–235. 76 Reservations to the Convention on Genocide (Advisory Opinion) [1951] ICJ Rep 23. 77 Simma (n75) 235. 78 Simma speaks of obligations with ‘different “structures” or patterns . . . of performance’. Simma (n75) 336. Cf K Sachariew, ‘State Responsibility for Multilateral Treaty Violations’ (1988) 35 NILR 276. 79 Barcelona Traction, Light and Power Company, Limited (Judgment) [1970] ICJ Rep 32. 80 Barcelona Traction (n79). 81 J Crawford, ‘Multilateral Rights and Obligations in International Law’ (2006) 319 RDC 420. 75

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Horizontal obligations, premised on the twin pillars of bilateralism and reciprocity, reflect a contractual understanding of international law that is rooted in the freedom of contract and consent. In the words of Reuter, horizontal obligations are arranged around ‘the world of contract, conceived in terms of antagonistic wills coming to rest at a point of equilibrium . . . and founded upon equivalence, reciprocity and item-by-item performance’.82 It becomes apparent that the structural performance of human rights does not fit within this horizontal understanding of international law. Thus, the relationships produced by human rights obligations between States as obligors and individual rights holders may be described as structurally vertical, corresponding to their designation as vertical in human rights doctrine. To the extent that corporate human rights obligations mirror the structure of performance of State human rights obligations, they too are structurally vertical.

b. Structural mutations The insistence on the concept of horizontality in human rights doctrine when discussing corporate obligations suggests that there might be a different side to the question of these obligations’ structure. Indeed, there exists a factor that has been largely overlooked in literature regarding corporate human rights obligations despite the fact that it has the potential to alter the structure of performance of human rights: the recognition of international human rights protection to corporations. The coincidence of the qualities of right holder and obligation bearer in one and the same entity—in this case, the corporation—admittedly constitutes a curiosum under international human rights law. Drawing a parallel to German constitutional law doctrine serves to highlight the exceptional character of this situation. According to established case law of the German Federal Constitutional Court (BVerfG), legal persons of public law nature may be entitled to human rights protection when ‘the right holder is directly linked to the sphere of activity protected by the human right in question’.83 On the basis of this criterion, it has been accepted that public law broadcasting institutions, universities, and churches enjoy human rights protection.84 The situation differs from that of corporations in that human rights protection is extended to public law entities, as opposed to human rights obligations being imposed on private law entities. Yet, the result remains admittedly the same:  there emerges a circle of entities whose conduct is at the same time both protected and restricted by human rights law. This paradox is reflected in the sui generis nature attached under German constitutional law to these entities, which form an Ausnahmetrias, i.e. an exception triad.85 82 P Reuter, ‘Principes de droit international public’ (1961) 103 RdC 562–563, as quoted in P-M Dupuy, ‘A General Stocktaking of the Connections between the Multilateral Dimension of Obligations and Codification of the Law of Responsibility’ (2002) 13 EJIL 1071. 83 BVerfG 21, 362, 373 [translation by the author]. 84 See W Krebs, ‘Artikel 19’ in I von Munch, 1 Grundgesetz-Kommentar (5th edn, 2000) 1066; M Sachs, Grundgesetz (5th edn, 2009) 754–756. 85 BVerfG 61, 82.

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The potential creation of human rights obligations binding on a corporation, which at the same time enjoys human rights protection, would grant the corporation a Janus-like position, which contrasts with the fundamental duality between human rights holder and obligor undergirding the whole of international human rights law. Lowe has noted that ‘corporations are persons sui generis within the international legal system, neither the same as States nor the same as human beings’.86 The question then is whether this exceptional position leads to structural mutations in the performance of international human rights obligations. At the outset, one has to assess the extent to which corporations enjoy human rights protection under international law. The acknowledgment of such protection under positive international law ushers in the question of the simultaneous application of corporate human rights and obligations. The final dilemma is whether such simultaneous application in any manner mutates the vertical structure of performance of human rights law.

(1) Corporations as holders of human rights The recognition of corporations as rights holders under international human rights law may at first appear paradoxical since human rights presumptively seek to protect individual human beings against State power. Such an individual-oriented understanding of human rights permeates Art 2 (1) ICCPR, which enjoins States Parties to ‘ensure to all individuals’ within their territory those rights recognized in the Covenant. Correspondingly, Art 1 of the First Optional Protocol to the ICCPR precludes legal persons from lodging a communication with the HRC, since such right is exclusively reserved for individuals.87 The situation under the ACHR is similar. The IAComHR, in interpreting Art 1 (2) ACHR, has observed that ‘the protection afforded by the inter-American human rights system is limited to natural persons, and excludes legal entities. Therefore, [the applicant] as a legal entity, cannot be a “victim” of a human rights violation’.88 It becomes apparent that both the ICCPR and the ACHR conform to the traditional take on human rights as protection offered to natural persons against excesses by the State. The position under the ECHR is radically different. Art 1 of the First Optional Protocol to the ECHR explicitly confers the right to protection of property on ‘every natural or legal person’. Art 10 ECHR posits that freedom of expression does not prevent States from requiring the licensing of broadcasting, television, or media enterprises. One can infer from its wording that Art 10 ECHR in the first place guarantees the freedom of expression of those enterprises. Considering the 86 V Lowe, ‘Corporations as International Actors and International Law Makers’ (2004) 14 Italian YIL 32. 87 This restrictive interpretation was upheld by the HRC in A Newspaper Publishing Company, where it held that ‘only individuals may submit a communication to the Human Rights Committee. A company . . . as such, has no standing under Article 1, regardless of whether its allegations appear to raise issues under the UN Covenant’. See HRC, A Newspaper Publishing Company v Trinidad and Tobago Comm No 360/1989 (1989) [3.2]. 88 IAComHR, Tabacalera Boquerón SA v Paraguay Report No 47/97 (1998) [25].

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wording of these two provisions it is only logical that Art 34 ECHR allows private corporations to petition the ECtHR in cases of violation of their human rights.89 The ECtHR has taken a dynamic approach to corporate human rights by recognizing that corporations may be victims of human rights violations even in respect of ECHR provisions, which do not, textually at least, include corporations in their respective ambits. Thus, in Colas Est, the Court held that a legal regime allowing raids of corporate premises without a court warrant violated the corporation’s right to respect for its registered office, branches, or other business premises under Art 8 ECHR.90 Similarly, in Comingersoll the ECtHR confirmed that corporations may be entitled to receive monetary compensation for non-pecuniary losses under Art 41 ECHR. The case revolved around a complaint as to the protracted handling of a civil dispute by Portuguese authorities. The ECtHR held that ‘the fact that the proceedings in issue continued beyond a reasonable time must have caused Comingersoll S.A., its directors and shareholders considerable inconvenience and prolonged uncertainty, if only in the conduct of the company’s everyday affairs’.91 Of course, this anthropomorphic approach to corporate rights finds its inherent limits in the nature of the protected rights themselves. Rights, such as the parents’ right to educate their children in conformity with their religious and philosophical convictions, the right to free elections, as well as the right not to be subjected to degrading treatment or punishment, are ‘by their very nature not susceptible of being exercised by a legal person’.92 The recognition of corporate human rights under the ECHR is neither unique nor uncontroversial. A number of national constitutions recognize the applicability of human rights to legal persons.93 Yet, the idea has stirred up considerable controversy. The granting of human rights to corporations faces resistance lest it results in supplanting the traditional human rights paradigm with a paradigm of ‘trade-related market-friendly human rights’.94 The protection offered to corporations under the ECHR is closely associated with a European liberal system, which facilitates private enterprise. Facilitation does not of course mean unfettered corporate rein, since corporate reliance upon Convention provisions may be trumped by certain public interests.95 The protection of private enterprise in the form of guaranteeing the human rights of corporations is linked to the protection of democracy, which is ‘without a doubt a

89 According to Art 34 ECHR, the ECtHR may receive applications from any person, non-governmental organization or group of individuals complaining about a human rights violation. The ECtHR has consistently maintained that applications from corporations are ratione personae admissible. See The Sunday Times v United Kingdom App no 6538/74 (1979) [38]. 90 ECtHR, Société Colas Est and others v France App no 3797/97 (2002) [40-41]. 91 ECtHR, Comingersoll SA v Portugal App no 35382 (2000) [36]. 92 EComHR, Verein ‘Kontakt-Information-Therapie’ (KIT) and Hagen v Austria App no 11921/86 (1988) [The Law 1 (4)]; Scientology Kirche Deutschland v Germany App no 34614/97 (1997) [The Law 1 (7)]. 93 See Art 19 (III) German Basic Law; Art 2 Italian Constitution 1948; Art 12 (II) Portuguese Constitution 1976. 94 U Baxi, The Future of Human Rights (2002) 132. 95 See M Emberland, The Human Rights of Companies (2006) 25.

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fundamental feature of the European public order’.96 This link between democracy and private enterprise can be intimated in several ways. The ECtHR has held that the freedom of association as guaranteed under Art 11 ECHR includes the establishment of ‘a legal entity in order to act collectively in a field of mutual interest’ and that the ‘practical application of [this right] by the authorities reveals the state of democracy in the country concerned’.97 Arguably, the ratio behind Art 11 ECHR could extend to all kinds of legal entities, including corporations.98 More significantly, the ECtHR has highlighted the link between private enterprise and democracy in the context of guaranteeing the freedom of expression to privately owned media corporations, seeking to uphold pluralism.99 Criticism does not exclusively proceed from political, but also from ethical, quarters. It has been argued that ‘allowing companies to enter the [human rights] picture is to seriously distort what is meant by . . . human welfare’.100 The rationale of human rights protection—the ethical argument goes—is human embodiment as the source of human vulnerability.101 Human rights counterbalance this vulnerability by protecting the basic interests and needs of individuals, such as ‘life, absence of pain, food, shelter and so on’.102 The key parameter in identifying such interests and needs remains ‘human nature’. This argument builds on the nature of the human rights holder: the individual as a natural person is the yardstick against which human rights protection is measured. Yet, it is questionable whether this argument wholly squares with contemporary human rights law, which in its turn reflects the transformation of societal processes. The protection of the freedom of association is a pertinent example. Art 11 ECHR guarantees the ‘freedom of association with others’, including the right to form trade unions. It would be paradoxical to accept a right to form a trade union under human rights law, but at the same time deny the trade union itself any human rights protection on the basis that it is not a human being. It is trade unions, and not their members individually, which seek to ensure the continued protection of those members’ interests through negotiation or industrial action. In certain spheres of societal activity, the exercise of human rights presupposes certain organizational structures which merit protection in their own name. For this reason the ECtHR has affirmed that Art 11 ECHR may be regarded as safeguarding the freedom of trade unions themselves to protect the occupational interests of their members.103 One should question whether the above ethical argument amounts to anything but an instinctive and pre-conditioned aversion to collective aspects of human rights. What lurks behind the ‘human nature’ argument is an embedded belief 96 97 98 99 100 101 102 103

ECtHR, United Communist Party of Turkey and others v Turkey App no 19392/92 (1998) [45]. ECtHR, Sidiropoulos and others v Greece App no 26695/95 (1998) [40]. Emberland (n95) 42. ECtHR, Informationsverein Lentia and others v Austria App no 13914/88 (1993) [38-42]. C Harding and others, Human Rights in the Market Place (2008) 45. A Grear, ‘Challenging Corporate Humanity’ (2007) 7 HRLR 539. Harding and others (n100) 45. ECtHR, Unison v United Kingdom App no 53574/99 (2002) [The Law 2].

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that human rights by definition operate in a non-collective, non-profit sphere and, thus, that economic or other collective activities do not sit well with civil and political rights as guaranteed by the ECHR.104 Human rights, their nature and function are not static. A  jurisprudential approach to corporate human rights should take into consideration, apart from the nature of the right holder, the nature of human rights themselves. It is now accepted that there exists no watertight distinction between civil and political and socio-economic rights.105 Civil and political rights, traditionally thought of as individualized rights, may have collective aspects. The ECtHR has accepted that the freedom of expression constitutes a right both for the individual speaker and the general public.106 Free speech, according to the European Court, is in the ‘public interest’107 and, therefore, to the extent that media corporations contribute and facilitate public discourse, they should be entitled to human rights protection.108 The corporation is both the result of and a medium for the exercise of human rights, and as such merits human rights protection itself. Corporations do not detract from the primacy of the individual as the primary rights holder. The individual still exercises plenitudo libertatis in human rights terms.109 The recognition of the human rights of corporations offers an additional level of protection: apart from the freedom and autonomy of the individual, human rights law guarantees the freedom of societal processes and thus pluralism in society. Refuting the human rights protections of collectivities would render society a no-man’s land between individual freedom and sovereign power.110

(2) Reconciling corporate rights and obligations The corporation as of logical necessity cannot enjoy the full gamut of human rights, as opposed to the individual. Conversely, it cannot become an addressee of all human rights, as opposed to the State. Human rights and obligations of corporations are context-specific and coterminous with corporate function. To the extent that this function facilitates or promotes the interests of individuals, the corporation is anthropomorphized and assimilated to the individual as a right holder. Correspondingly, to the extent that the same function has the potential to negatively impact the enjoyment of human rights, the corporation may be created an addressee of human rights in the image of the State. In practical terms, the exercise by corporations of their human rights to property, association, and privacy may result in hampering the enjoyment of human rights of individuals. It becomes apparent that the simultaneous qualities of the corporation as right holder and obligor do not simply co-exist but they are antagonistic to each other.

104 106 107 109

105 Emberland (n95) 55. ECtHR, Airey v Ireland App no 6289/73 (1979) [26]. ECtHR, Thorgeir Thorgeirson v Iceland App no 13778/88 (1992) [63]. 108 Sunday Times (n89) [42]. Emberland (n95) 146. 110 Isensee and Kirchhof (n72) 566. Isensee and Kirchhof (n72) 568.

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International law in acknowledging corporate human rights establishes a sphere of corporate autonomy, immune from interference by State authorities, within which shareholders may act in furtherance of their pecuniary considerations.111 Yet, the establishment of corporate human rights obligations would mean that human rights law is employed—in a counterintuitive manner—with a view to limiting that same sphere of autonomy. As ECtHR Judge Garlicki has argued ‘every prohibition of private action . . . while protecting the rights of some persons, unavoidably restricts the rights of other persons’.112 This results in a ‘fundamental liberal dilemma’113 regarding the delimitation between rights and obligations. The present analysis aims at identifying the international legal tools available to analyse and overcome such dilemma. (a) Conflicts of rights under human rights law The antagonistic nature of corporate human rights and corresponding obligations conjures up the image of a conflict between the two. The question then becomes whether human rights law provides a normative account of that conflict. One may argue that since States do not enjoy human rights, which would potentially clash with their respective obligations, international human rights law is not cognizant of this specific type of conflict. This does not mean that human rights do not recognize the possibility of conflicts tout court. A cursory glance at Art 29 (2) UDHR points towards the contrary direction. According to this provision, ‘in the exercise of his rights and freedoms, everyone shall be subject to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others’. This provision speaks to a basic tenet of human rights doctrine, namely that individuals may not hinder the exercise of the rights of others. Such a duty is a logical corollary of the fact that individuals live within societies, and in their social relations their rights may overlap or even contradict one another. Nonetheless, human rights doctrine does not perceive potential contradictions between human rights as a legal conflict between individual rights and individual obligations or duties. International human rights operate in an exclusively rights-based setting:  the international legal order has espoused a ‘rights’ vocabulary to describe the relationship between the individual and power.114 This attachment to the ‘legal formalization of rights’115 has resulted in crowding out alternative methods of conceptualizing this relationship, such as that of ‘duties’.116 111

Cf ECtHR, Niemietz v Germany App no 13710/88 (1992) [30-31]. ECtHR, Dissenting Opinion of Judge Garlicki, Pla and Puncernau v Andorra App no 69498/01 (2004). 113 S Joseph, ‘Taming the Leviathans’ (1999) NILR 199–201. 114 See L Henkin, ‘International Human Rights as Rights’ (1979) 1 Cardozo LR 438; cf M Koskenniemi, ‘The Effect of Rights on Political Culture’ in P Alston (ed), The EU and Human Rights (1999) 99. 115 D Kennedy, ‘The International Human Rights Movement:  Part of the Problem?’ (2002) 15 Harvard HRJ 110. 116 J Bomhoff, ‘ “The Rights and Freedoms of Others”: The ECHR and its Peculiar Category of Conflicts between Fundamental Rights’ in E Brems (ed), Conflicts Between Fundamental Rights (2008) 632–634. 112

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Contradicting social interests, which are legally protected as human rights, are described by the law as conflicting claims for rights.117 Turning to the operation of corporate human rights obligations, it is argued that it can be analysed as a conflict between corporate rights and corresponding individual rights. An invocation by an individual of human rights protection vis-àvis corporate action may conflict with the invocation on behalf of the corporation of its own fundamental rights. Thus, delimiting the human rights obligations of corporations ultimately requires striking ‘a careful balance between [corporate] human rights . . . and the rights of others’.118 Prior to dealing with the resolution of the conflict, one has to dwell on what a conflict between rights entails. A situation of conflicting rights presupposes the existence of a human right, the lawful exercise of which necessarily would lead to the restriction of another human right. When it is not possible to cumulatively fully protect both rights, a conflict emerges.119 Obviously, a conflict between rights may not amount to a situation of incompossibility between two rights, in which corporate compliance with its obligations would as of logical necessity result in it being fully deprived of its fundamental rights.120 If this were the case, no dilemma would emerge in the first place and any obligation imposed on the corporation would trump corporate rights. (b) A framework for the resolution of conflicts of human rights Writing in 1990, ECtHR Judge Gölcüklü suggested that the ECtHR had not yet come across any conflicts between human rights enshrined in the ECHR,121 thus implying that the phenomenon was, if anything, of recent vintage. One of the key factors contributing to the proliferation of conflicting rights has been the ever-expanding recognition of positive State obligations to protect human rights in the relationships between private individuals.122 One’s right to be protected from interference arising from the acts of other private parties will have to be pitted against the exercise, by the latter, of their own rights. The State, then, would be called upon to restrict the exercise of a given human right in order to reconcile the interests of the various individuals.123 Whereas the judicial treatment of conflicting rights may be recent, the idea that rights may conflict, and therefore restrictions upon rights may be justified, has been built into the international system of human rights protection. International human rights treaties contain ‘limitation’ clauses, providing that State authorities’ 117

ECtHR, Öllinger v Austria App no 76900/01 (2006) [34]; see Koskenniemi (n114) 107. Joseph (n113) 199; cf Ratner (n31) 513; D Kinley and J Tadaki, ‘From Talk to Walk:  The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2004) 44 Virginia JIL 967. 119 E Brems, ‘Conflicting Human Rights’ (2005) 27 HRQ 303. 120 On this strict notion of conflict, see Fragmentation (n73) 19. 121 F Gölcüklü, ‘La hiérarchie des normes constitutionnelles et sa fonction dans la protection des droits fondamentaux’ (1990) 2 RUDH 298. 122 O De Schutter and F Tulkens, ‘Rights in Conflict: the European Court of Human Rights as a Pragmatic Institution’ in Brems (n116) 171. 123 See ECtHR, Kokkinakis v Greece App no 14307/88 (1993) [33]. 118

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conduct amounting to an interference with or a restriction of certain human rights may nevertheless be lawful under the condition that such conduct is ‘prescribed by law’ and is ‘necessary’ for the protection of certain public interest goals.124 One of the goals enumerated in ‘limitation’ clauses is the ‘protection of the rights and freedoms of others’. The inclusion of the ‘rights of others’ in ‘limitation’ clauses suggests that the resolution of conflicts between individual rights may justify restrictions of one of the competing rights by the State. In Öllinger v Austria,125 the ECtHR was faced with the applicant’s complaint that domestic authorities had prohibited his counter-demonstration against the holding of a meeting by an association commemorating the deaths of SS officers during World War II, thus violating his freedom of peaceful assembly under Art 11 ECHR. The Court expressly affirmed that the case was concerned ‘with competing fundamental rights’.126 Yet, it then went on to describe the case as a conflict between the obligation of the respondent State to ‘abstain from interfering’ with the right in question and the obligation ‘to take lawful measures in order to protect it’.127 This raises the question as to which conflict international human rights law is called upon to resolve. A situation of conflicting rights presupposes two right holders each trying to make their own right prevail over the other. In Öllinger, the applicant’s freedom of peaceful assembly clashed with the association’s right to protection against disruption of its own assembly. Thus, on the face of it, the case arose from the simultaneous exercise of two rights. Still, an international human rights body would not be called upon to resolve a conflict of rights between individual right holders as such since the latter lack the capacity to act as respondents in international human rights litigation. The institutional setting of international human rights protection, erected on the edifice of the State as the exclusive human rights addressee, does not allow for complaints to be brought against private individuals, or for that matter corporations. De Schutter is correct in arguing that the specificities of international human rights procedure alter the manner in which the question of conflicting rights is posed.128 Only the applicant, as the right holder, appears before the international judge. The State as the respondent is called upon to justify restrictions on human rights on account of protecting ‘the rights of others’. Yet, the State does not espouse the ‘rights of others’ as such, since it does not enjoy human rights protection. On the contrary, those rights mutate into a collective interest, which the State is called upon to embody.129

124 See Arts 18 (3), 19 (3), 22 (2) ICCPR; Arts 8 (2), 9 (2), 10 (2), 11 (2) ECHR. One should mention here that the lack of an explicit ‘limitation’ clause does not prejudge the ‘limitability’—as it were—of a right. Thus, the fact that no such clause is included in Art 2 ECHR does not mean that deprivation of life by State agents is never justified under the ECHR. 125 126 Öllinger (n117). Öllinger (n117) [34]. 127 Öllinger (n117) [36-37]. 128 O De Schutter, Fonction de juger et droits fondamentaux (1999) 349; see also Brems (n119) 304–305. 129 De Schutter and Tulkens (n122) 196.

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International human rights law does not in principle purport to resolve conflicts between individual rights as such. On the contrary, it protects individuals’ interests from being overridden by considerations of collective utility.130 Once one of two conflicting rights is restricted by the State, international human rights bodies are called upon to assess the legality of State conduct. Thus, the resolution of conflicts of rights proceeds on the same legal basis as the assessment of the legality of restrictions of human rights by the State.131 Human rights bodies espouse a three-pronged test mirroring the formulation of the ‘limitation clauses’, which requires that restrictions of rights in conflict (a) have to be in furtherance of one of the goals listed in the ‘limitation’ clauses, (b) ‘prescribed by law’ and (c) ‘necessary in a democratic society’.132 Of course, this test is not rigid in its application, and especially as regards rights, it has been argued that, due to the relative novelty of the phenomenon, no fixed conflict resolution method exists.133 Nonetheless, ECtHR Judge Jambrek has argued that the legality of private conduct amounting to a restriction of conflicting rights may be subject to the exact same three-pronged test espoused in assessing the legality of State conduct.134 This statement ushers in the question whether and to what extent the three-pronged test described above could serve as a normative framework within which conflicts between corporate and individual rights can be resolved. (i) The nature of conflicting interests States logically seek to justify any restriction of rights resulting from a situation of conflict on account of the protection of the ‘rights and freedoms of others’.135 Since this aim is expressly provided for in human rights treaties limitation clauses, it becomes apparent that this first test will in principle be met. Indeed, it has been observed that only rarely have human rights bodies found a violation of rights exclusively based on the ‘rights and freedoms of others’ criterion.136 Yet, when potentially faced with conflicting corporate and individual rights, the situation differs significantly due to the nature of interests put on the scale: the traditional ‘right vs. collective interest’ test mutates into a ‘right vs. right’ test, which is logical considering that the corporation and the individual invoke their conflicting rights simultaneously in their respective capacity as rights holders. Yet, it also means that the restriction of one of the conflicting rights will not as of logical necessity pursue a public goal or collective interest. This might be the case. Thus, in Wretlund v 130

A McHarg, ‘Reconciling Human Rights and the Public Interest’ (1999) 62 MLR 671–672. E Brems, Human Rights: Universality and Diversity (2001) 384. 132 For the application of the three-pronged test in the context of conflicting rights, Öllinger (n117) [32-51]. 133 Brems (n119) 302; Koskenniemi (n114) 108. 134 ECtHR, Partly Dissenting Opinion of Judge Jambrek, Gustafsson v Sweden App no 15573/89 (1996) [2]. 135 See ECtHR, Odièvre v France App no 42326/98 (2003) [36]; Pla and Puncernau v Andorra (n112) [38]. 136 P Van Dijk and others, Theory and Practice of the European Convention on Human Rights (4th edn, 2006) 340; Y Arai-Takahashi, The Margin of Appreciation Doctrine (2002) 11. 131

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Sweden, the ECtHR held that the enactment by a privately run nuclear power plant of a drug control programme did not amount to an interference with the employees’ right to privacy because such programme aimed at protecting ‘public safety’.137 Following this line of thought, it is possible that corporate conduct amounting to an interference with individual rights may pursue a public order goal. Nonetheless, a private corporate entity would not in principle be obliged or even expected to always operate towards the fulfilment of public interest. On the contrary, it appears logical that in most cases a corporation acts primarily in furtherance of its own human rights and economic interests. In Kara v United Kingdom, the EComHR refused to uphold the complaint of a transsexual employee, who argued that the dress code policy imposed by the employer effectively preventing him from wearing a dress at work constituted an arbitrary interference with his private life. The Commission noted that employers may require ‘employees, who come into contact with the public or other organisations to conform to a dress code which may reasonably be regarded as enhancing the employer’s public image and facilitating its external contacts’.138 Indeed, the managerial directive of the corporate employer may be seen as a manifestation of its right to property, including a right to impose a dress code on its employees. This may lead to a restriction of the right to privacy of the employees, yet such restriction may be upheld, even though it does not pursue a goal associated with public order. Equally, in Appleby and others v United Kingdom, the ECtHR held that the applicants’ freedom of speech did not lead to the ‘automatic creation of rights of entry to private property’.139 The Court effectively implied that the exercise of the right to property by the owners of a private mall could ultimately result in trumping individuals’ freedom of expression within that mall. The shift in the nature of conflicting interests should not prejudge the question of legality vel non of corporate conduct amounting to an interference with individual rights. The fact that corporations do not always act in furtherance of a collective interest should not mean that conduct in furtherance of their own rights always amounts to a violation of individual rights. If one were to accept this, it would go against the grain of granting corporations human rights protection. Since corporations enjoy a limited array of rights, one should accept that exercise of such rights by the corporation amounts to a ‘legitimate aim’, which could potentially justify restrictions of individual rights. Of course, this is but one of the three prongs of the test, and any final determination of legality of corporate conduct presupposes that such conduct passes the muster of all three prongs. (ii) Corporate interference as restriction ‘prescribed by law’ Restrictions of human rights have to be ‘prescribed by law’140 or ‘in accordance with the law’.141 This criterion constitutes a manifestation of the principle of 137 138 139 140 141

ECtHR, Wretlund v Sweden App no 46210/99 (2004) [The Law 1]. EComHR, Kara v United Kingdom App no 36528/97 (1998) [The Law 1]. ECtHR, Appleby v United Kingdom App no 44306/98 (2003) [47]. Arts 18 (2); 22 (2) ICCPR; Arts 9 (2); 10 (2) ECHR. Art 8 (2) ECHR.

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legality: ‘before something may be regarded as law, it must meet certain fundamental requirements which distinguish government on the basis of law from administrations resting on distinction and arbitrariness.’142 In this sense, it constitutes a guarantee of equality and a safeguard against discrimination.143 At a first reading, the criterion requires that a restriction is in conformity with domestic law, or—in the words of the ECtHR—has ‘some basis in domestic law’.144 Yet, the criterion has been interpreted by the ECtHR to also speak to the ‘quality of law’.145 Thus, national legal provisions have to be ‘accessible’, in the sense that ‘citizens must be able to have an indication that is adequate, in the circumstances of the legal rules applicable to a given case’.146 Furthermore, they have to be formulated in such a manner as to allow individuals to ‘foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.147 Finally, national legal provisions have to demarcate the ‘scope of [the authorities’] discretion and the manner of its exercise . . . with sufficient clarity, having regard to the legitimate aim of the measure in question’.148 The recognition of human rights protection under international law to corporations necessitates that States, by virtue of domestic law, give full effect to those rights.149 Logically then, the exercise by corporations of their rights is regulated by domestic law. Consequently, restrictions of individual rights resulting from the lawful exercise by corporations of their rights should be presumed to be ‘prescribed by law’, in the sense that such restrictions have a basis in their domestic law. Thus, in Appleby it was accepted that the private company, which owned a mall, prevented the applicants from setting up a stand and distributing leaflets within the premises of that mall in lawful exercise of the company’s right to property.150 Domestic law may go one step further and vest corporations with the power to unilaterally impose restrictions on the rights of individuals in the course of exercising their rights. In this case, restrictions are not prescribed as such in a law passed by Parliament. The latter serves to trace the contours within which corporations may lawfully interfere with individual rights. The ECtHR has held that regulations, issued on the basis of an employer’s right to manage and control work, as confirmed by numerous collective agreements, as well as in case law from the Danish Courts of Arbitration and Labour Court, were ultimately ‘prescribed by law’.151

142 JG Merrills, The Development of International Law by the European Court of Human Rights (2nd edn, 1993) 130. 143 WJ Ganshof van der Mersch, ‘La Convention européenne des droits de l’homme et les limites que leur assignent l’intérêt et les droits d’autrui’, cited in R Ergec, ‘Les libertés et le maintien de l’ordre dans une société démocratique’ in R Ergec (ed), Maintien de l’ordre et droits de l’homme (1987) 26. 144 Cf ECtHR, Slivenko v Latvia App no 48321/99 (2003) [100]. 145 See ECtHR, Malone v United Kingdom App no 8691/79 (1984) [66-68], Liu v Russia App no 42086/05 (2007) [56]. 146 147 Sunday Times (n89) [49]. Sunday Times (n89) [49]. 148 ECtHR, Olsson v Sweden App no 10465/83 (1988) [61]. 149 Cf C Ovey and R White, The European Convention on Human Rights (4th edn, 2006) 18. 150 Appleby (n139) [48]. 151 ECtHR, Madsen v Denmark App no 58341/00 (2002) [The Law 3].

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Still, one should not lose sight of the fact that corporate rights conflict with the rights of individuals in the private sphere, where not only law, but also contract, governs. Indeed, one can easily envisage situations where restrictions on human rights are addressed in contractual relationships. An individual, for example, may wish to dispose of his labour and, at the same time, admit a restriction to a particular human right he holds, so as to have access to employment. Such a right to waiver may be considered a manifestation of the individual’s freedom of private life. ‘[R]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’152 Of course, the autonomy of the individual is not unfettered. There exist rights excluding the possibility of waiver due to their significance.153 The State in respect of those rights enjoys a prerogative to deter individuals from acts in violation of their own rights on moral grounds.154 At the outset, one may argue that restrictions provided for in contracts fulfil the requirements of ‘accessibility’ and ‘foreseeability’, as provided for in the ECtHR case law. The contract serves to demarcate the power of a corporation to restrict the rights of an individual contractant. Equally, one may add that private contracts do not operate in a legal vacuum. On the contrary, they are anchored in and regulated by domestic law. Thus, restrictions of human rights provided for in contractual arrangements are not unequivocally unlawful. The legality of the restriction would hinge on the content of the contract and the scope of the restriction. The EComHR, in assessing the legality of the refusal by an employer to allow a Muslim applicant forty-five minutes time off every Friday to attend a mosque for congressional prayer, took into consideration the fact that the applicant had at no point disclosed the fact that he might require time off during work hours for attending prayer at a mosque.155 The Commission also noted that in the exercise of his freedom of religion, an individual has to take into account his contractual position and that he had ‘of his own free will’ accepted the given post.156 It was always open to him to resign when he found that religious duties and contractual obligations conflicted. The assumption behind this reasoning is that the employee essentially consents to a restriction of his freedom of religion in exchange for an employment position. In order for the individual to exercise his freedom of religion in the present case, he may be under an obligation to disclose to the employer information as to his religious beliefs, and make them part of his contractual arrangement with the latter. Arguably in such a case, an employer would be estopped from dismissing the individual on account of his religious beliefs.

152 153 154 155 156

Niemietz (n111) [29]. ECtHR, De Wilde, Ooms and Versyp v Belgium Apps no 2832/66 and others (1971) [65]. ECtHR, Laskey, Jaggard and Brown v United Kingdom Apps no 21627/93 and others (1997) [51]. EComHR, X v United Kingdom App no 8160/78 (1981) [The Law 14]. X (n155) [The Law 9]; Stedman v United Kingdom App no 29107/95 (1997) [The Law 1].

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(iii) Balancing corporate and individual rights A survey of human rights case law reveals that the most demanding and crucial test in assessing the legality of the restriction of human rights is the nature of the latter as ‘necessary in a democratic society’.157 The ECtHR has consistently held that the adjective ‘necessary’ is not synonymous with ‘indispensable’, ‘ordinary’, or ‘useful’ but that it essentially dictates that the restriction correspond to a ‘pressing social need’ and be ‘proportionate to the legitimate aim pursued’.158 The latter typically involves an investigation into whether the measure is likely to be effective in achieving the purpose, whether there are less restrictive means of achieving the purpose,159 and whether the cost to the right is justified by the public interest benefits.160 In other words, the evaluation of the proportionality of the restriction of a given human right necessitates a ‘balancing’ exercise between that right and the ground for its restriction. Striking a fair balance ‘necessarily requires an approach based, inter alia, on considerations of proportionality’.161 Balancing may be seen as endemic in international human rights protection. Indeed, the application of human rights has been described as the result of a balancing process between conflicting interests, which are in principle clothed with human rights protection.162 Balancing comprises ‘weighing the rights in conflict against another and affording a priority to the right which is considered to be of greater “value” ’.163 Thus, it presupposes that a certain weight can be attached to a given right and that the two rights in question are comparable or commensurate. A first question is whether all rights can be balanced. The majority of human rights do not operate in isolation from the rights and interests of others or from community interests and goals. Human rights operate ‘against the backdrop of simultaneously co-existing circumstances in any given situation’.164 Thus, the implementation and interpretation of ‘qualified’ rights hinge on factual or empirical circumstances, which exist independent of the rights per se.165 One of the circumstances to be taken into consideration is respect for the rights of others. Thus, corporate rights conflicting with human rights will be naturally taken into consideration. Yet, international human rights law recognizes a category of human rights as absolute. The absolute character of a human right is inferred from the absence of

157 V Dijk and others (n136) 335; S Gardbaum, ‘Limiting Constitutional Rights’ (2007) 54 UCLALR 834; G Letsas ‘Two Concepts of the Margin of Appreciation’ (2006) 26 OJLS 711. 158 ECtHR, Handyside v United Kingdom App no 5493/72 (1976) [48-49]. 159 ECtHR, Van Mechelen and others v the Netherlands Apps no 21363/93 and others (1997) [58]. 160 See ECtHR, Hutten-Czapska v Poland App no 35014/97 (2006) [167]; see S Greer ‘ “Balancing” and the European Court of Human Rights’ (2004) 63 CLJ 415–416; D Meyerson, ‘Why the Courts Should Not Balance Rights against the Public Interest’ (2007) 31 MelbULR 877. 161 DJ Harris and others, Law of the European Convention on Human Rights (2nd edn, 2009) 10. 162 See Öllinger (n117) [42]; for a theoretical perspective, M Tushnet, ‘An Essay on Rights’ (1984) 62 TexLR 1371. One needs to note here that not all interests balanced in the process of human rights application are protected as human rights under international law. See ECtHR, Chassagnou and others v France Apps no 25088/94 and others (1999) [113]. 163 De Schutter and Tulkens (n122) 191. 164 165 B Çali, ‘Balancing Human Rights?’ (2007) 29 HRQ 252. Çali (n164) 256.

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permissible limitations, exceptions or derogations,166 as is the case with the prohibition of torture, inhuman and degrading treatment,167 and the prohibition of slavery and servitude.168 The holder of such rights has an entitlement to human rights protection, which cannot be overridden in practice by any consideration or circumstance. Normatively one has to accept that the protection of absolute rights in the case of their infringement by the State is as necessary as in that of their infringement by the corporation. There is no reason to relativize the absolute nature of protection offered by a right, depending on the bearer of the obligation. If absolute rights were to be granted a priori priority over any other non-absolute right in cases of conflict, then there wouldn’t exist any scope for balancing. Absolute rights would trump non-absolute rights. Yet, from a purely legal point of view, one has to distinguish between limitations on rights purportedly justified on the basis of a collective interest and granting priority to a right over another during the stage of balancing. The fact that a given right is non-derogable does not mean that it will prevail over any other right at any time.169 Thus, the ECtHR has in a series of expulsion cases accepted the absolute nature of the protection offered by Art 3 ECHR.170 Yet, in N v United Kingdom, which revolved around the allegation that expulsion of an HIV positive woman to Uganda would expose her to ill treatment as a result of the lack of sufficient medical treatment in her home country, the Court noted that Article 3 ECHR does not place ‘an obligation on the Contracting State to alleviate [disparities in available medical treatment] through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction’.171 Whereas the absolute nature of a right neither precludes the exercise of any sort of balancing nor prejudges the result of the balancing process in cases of conflicting rights, it nonetheless holds significance in this respect. The formal characteristics of absolute human rights are an indication of the weight of those rights.172 Yet, despite being a useful tool, balancing may not provide a solution to all conflicts of rights, such as a conflict between two symmetrical claims of absolute rights. True as this may be, it is of no concern as regards the balancing between corporate and individual rights: corporations do not enjoy the protection offered by absolute human rights. On the contrary, to the extent that they have been recognized as subjects of human rights law, they are granted ‘qualified’ rights. The underlying rationale of absolute rights is associated with the context of human

166 Cf the reasoning of the ECtHR in Chahal v United Kingdom App no 22414/93 (1996) [79] where it opined that ‘the [ECHR] prohibits in absolute terms torture or inhuman or degrading treatment or punishment . . . Unlike most of the substantive clauses of the [ECHR] . . . Art 3 makes no provision for exceptions and no derogation from it is permissible’. 167 See ECtHR, Al-Adsani v United Kingdom App no 35763/97 (2001) [59]; Saadi v Italy App no 37201/06 (2008) [127]; cf ICTY, Prosecutor v Furundžija IT-95-17/1-T (1998) [144]. 168 ECtHR, Siliadin v France App no 73316/01 (2005) [112]. 169 De Schutter and Tulkens (n122) 181; P Ducoulombier, ‘Conflicts Between Fundamental Rights and the European Court of Human Rights’ in Brems (n116) 238. 170 Chahal (n166) [79]; Saadi (n167) [127]. 171 ECtHR, N v United Kingdom App no 26565/05 (2008) [44]. 172 S Greer, ‘Constitutionalizing Adjudication under the European Convention on Human Rights’ (2003) 23 OJLS 414.

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dignity. On the contrary, the sphere of corporate autonomy aims, as noted above, at furthering the pecuniary interests of shareholders. Therefore, the application of corporate human rights obligations will in principle proceed on the basis of a balancing exercise. A perusal of the human rights treaty bodies case law regarding conflicts of rights points to the conclusion that they are ‘highly contingent upon factual circumstance, the scope and focus of rights guaranteed’.173 However, Brems has argued that it may be possible to determine certain criteria with a view to deciding which of the conflicting rights should be given priority. The first criterion builds on the idea that each right has a core and a periphery or penumbra.174 The core of a right reflects the key significance that this right holds for the promotion of vital interests.175 When two rights conflict one has to examine which aspects of the rights comes into conflict, and assess the significance of each of these aspects for the protection of human rights.176 When the core of a given right conflicts with a peripheral aspect of another, one may be justified in giving priority to the first over the latter. The second criterion, which is conceptually linked to the first, refers to the severity of the interference caused by the exercise of one right over the exercise of the other and vice versa: if the exercise of one of the rights is rendered illusory or impossible, this will carry more weight than if it was made more difficult.177 To argue otherwise would go against the grain of the concept of balancing. As ECHR Judge Loucaides has argued, the whole point of balancing is that ‘neither of the two rights should be allowed to prevail absolutely over the other’.178 The key to the exercise of balancing is to accommodate conflicting rights with a view to maximizing human rights protection. Still, balancing corporate and individual rights differs from the existing modes of balancing under international law, in the sense that in the first situation international law will be employed with a view to striking a balance between two human rights invoked simultaneously by their respective rights holders. Proportionality in international human rights law rests on a basic assumption: ‘the more severe the consequences for the right, the more compelling the communal interest should be’.179 The presence of a collective interest is inherent in the search for proportionate restrictions.180 Proportionality measures whether the cost to the right is justified

173 The ECtHR in a series of cases has impliedly affirmed an ad hoc mode of balancing, see Holy Monasteries v Greece Apps no 13092/87 and 13984/88 (1994) [55]; Thorgeir Thorgeirson (n106) [48]; see A Mowbray, ‘A Study of the Principles of Fair Balance in the Jurisprudence of the European Court of Human Rights’ (2010) 10 HRLR 312; Koskenniemi (n114) 108. 174 In the context of limitations to rights, the ECtHR has repeatedly stressed that such limitations may not impair the essence of the right. See ECtHR, Broniowski v Poland App no 31443/96 (2004) [185]. 175 176 Brems (n131) 370; Letsas (n157) 718. Brems (n119) 303. 177 Brems (n119) 303. 178 ECtHR, Dissenting Opinion of Judge Loucaides, A v United Kingdom App no 35373/97 (2002). 179 Çali (n164) 265. 180 See the analysis of the various conceptions of proportionality in J Rivers, ‘Proportionality and Variable Intensity of Review’ (2006) 65 CLJ 179–182.

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by the public interest. It is thus questionable whether it can provide clear guidance when a communal interest is lacking, as is the case with restrictions arising from corporate conduct. Furthermore, human rights are thought to be indivisible, and thus incompatible with conceptions of a hierarchy between them.181 In the light of this, it appears difficult to enter a discussion on a cost-efficient restriction of one right vis-à-vis another right with which the former conflicts. Considerations of cost-efficiency with regard to conflicting human rights impliedly admit that certain rights carry more weight. It is for this reason that Brems has argued that, although one may discern certain criteria on the basis of which balancing is to take place, one has to also take into consideration the cumulative effect of the restrictions on the values underlying the human right in question. This criterion takes into account the general interest underlying many individual rights.182

In a sense, this brings us back to square one, namely that the test of proportionality measures restrictions of rights against collective or general interests. Called upon to balance corporate and individual rights, international law has to provide answers to questions concerning—in the term used by Clapham—‘private ordering’.183 Yet, as the same author argues, such ‘answers . . . are not really found in the international conventions and covenants’.184 The reason for this may be traced back to the nature and purpose of international human rights norms, which are drafted as public law norms applying to public authorities: ‘a blanket transfer of public norms to the private sphere may fail to recognise that while public law norms may need to be translated to the private sphere, they cannot simply be transplanted without adjustment’.185 It is true that the roots of international human rights lie in their domestic constitutional counterparts. Whereas it is not wholly accurate to argue that domestic public law norms are by definition deprived of any effect in private relations, it is equally inaccurate to suggest that the effect of constitutional rights in private relations is in all cases direct. On the contrary, as Oliver and Fedtke have argued, domestic legal systems recognizing the horizontal effect of constitutional rights appear to be converging towards forms of indirect effect,186 in the sense that constitutional rights influence, but do not directly govern or control, private law disputes between individuals.187 The imposition of human rights obligations on corporations under international law amounts to taking a step forward in recognizing a novel form of direct

181 See T Koji, ‘Emerging Hierarchy in International Human Rights and Beyond’ (2001) 12 EJIL 918. 182 183 Brems (n119) 304. Clapham (n30) 135. 184 Clapham (n30) 135. 185 A Nollkaemper, ‘Responsibility of Transnational Corporations in International Environmental Law’ in G Winter (ed), Multilevel Governance of Global Environmental Change (2006) 196. 186 D Oliver and J Fedtke (eds), Human Rights and the Private Sphere (2007) 517. 187 For a comparative law analysis, see S Gardbaum, ‘The “Horizontal Effect” of Constitutional Rights’ (2003-4) 102 MichLR 398–411.

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horizontality under international human rights law, which is to a large extent alien to domestic legal systems. Yet, even if the direct legal effect of constitutional rights was widely recognized in national legal systems, one cannot but agree with the proposition that the theories, on which such effect were to be based, would be of little help to international law, since each constitutional order has created its own ‘finely balanced mixture of [constitutional] rights’, which allows national courts to ‘determine the balance of power in any State’.188

c. Towards horizontality in international human rights law The prospective imposition of human rights obligations on corporations, as argued above, does not necessarily alter the structure of performance of human rights, which produce bilateral and non-reciprocal relations between rights holders and obligors. Yet, the fact that corporations may enjoy human rights protection could distort the legal picture. Whereas it does not detract from the bilateral nature of the relationships produced by human rights, it could nevertheless impact on their non-reciprocal nature. Reciprocity admittedly is an elusive concept. It speaks to the actual rights and obligations established by a legal rule. Nonetheless, reciprocity should not be assimilated to the legal relationship per se. Reciprocity is the status of this relationship,189 a measure of its proportion.190 Fitzmaurice, in his capacity as the ILC Special Rapporteur on the Law of Treaties, suggested that reciprocal treaties ‘[provide] for a mutual interchange of benefits between the parties, with rights and obligations for each involving specific treatment at the hands of and towards each of the others individually’.191 If we apply this definition of reciprocity to the context of corporate human rights obligations, the relations produced by the latter appear non-reciprocal. Whereas individuals and corporations enjoy a mutual interchange of benefits, since they both enjoy human rights protection, they do not both become obligors under international human rights law. Thus, the imposition of human rights obligations on corporations correlative to individuals’ human rights does not result in individuals assuming reciprocal obligations correlative to corporate rights. Elevating the corporation to the status of a human rights obligor does not necessarily elevate the individual to such a status as well. Simma, on the other hand, has proposed a somewhat looser and more abstract definition of reciprocity. He argues that it exists when certain conduct by one party is legally dependent upon that of the other party, irrespective of whether this conduct amounts to identical or equivalent treatment.192 On the basis of this definition, it is hard to escape the conclusion that some element of reciprocity may come

188

Clapham (n30) 220. B Simma, ‘Reciprocity’ in Max Planck Encyclopedia of Public International Law [2], available at . 190 E Decaux, La réciprocité en droit international (1980) 10. 191 ILC, ‘Third Report on the Law of Treaties by GG Fitzmaurice’ (1958) II ILC Ybook 27. 192 B Simma, Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge (1972) 48–49. 189

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into play in the operation of corporate human rights obligations vis-à-vis individual right holders. Coming back to the line of reasoning behind the EComHR X v United Kingdom ruling, a corporation will be under an obligation to respect the freedom of religion of one of its employees. Yet, the exercise of this freedom may conflict with the corporation’s right to property. In order for the employee to exercise his freedom, he may bear a duty to disclose information relevant to his religious beliefs to the employer. This duty does not amount to a human rights obligation as such, nonetheless, it cannot be disregarded. This duty appears to be of a reciprocal nature, at least under Simma’s definition, in the sense that the conduct of the corporation is legally dependent on the conduct of the employee. Thus, the existence of corporate human rights does not result in individual human rights obligations but it does make inroads into the protection of individuals’ human rights, in the sense that human rights law may require of individuals certain conduct in order for their rights to be fully upheld. Naturally, the idea that reciprocity has entered the domain of the relations produced by human rights may constitute anathema to those decrying the commodification of human rights. Still, the extension of the scope of human rights to the relationships between individuals and private corporations may result in the logic of human rights being permeated by the logic of contract. Its vertical structure would be imbued with synallagmatic elements associated with horizontality. In this case, horizontality of human rights ceases serving as a mere geometric metaphor and speaks to the actual structure of human rights.

3. Preliminary Conclusion The purpose of the above analysis has been to discuss the implications that would arise from the affirmation of a corporate obligation under international human rights law. At first, one would have to concede that corporations assume human rights obligations whose scope is non-equivalent to those of States. This is logical in the light of the fundamental differences between States and corporations from the standpoint of nature and function. Whereas corporations would arguably bear a baseline obligation to respect the human rights of individual right holders, their obligation would not extend to comprise duties of protection and fulfilment. The latter are too closely linked to the concept of the State and therefore do not lend themselves to an application in the corporate context. Apart from mutations in the scope of the obligations, corporate obligations may also challenge the structure of performance of human rights rules. Human rights are presumed to operate between the State, as the exclusive obligor, and the individual, as the exclusive right holder, in a bilateral non-reciprocal manner. To the extent that corporations are deprived of human rights protection under international law, the performance of their respective obligations would essentially mirror that of States. Thus, a corporation would owe an obligation to respect the right of an individual beneficiary, and this obligation would also operate in a bilateral non-reciprocal manner.

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Yet, corporations have exceptionally been recognized as rights holders under the European Convention on Human Rights. In this case, the imposition of a human rights obligation on a corporation would lead to a conceptual curiosum under human rights since the qualities of obligor and right holder would coincide in the same entity, thus transcending the fundamental duality between obligor and right holder on which human rights are predicated. The invocation by an individual of his human rights vis-à-vis a corporation could conflict with the human rights of the corporation. The operation of corporate human rights obligations would then essentially proceed on the basis of a balancing between corporate and individual rights. Whereas international law provides a test to resolve conflicts between rights and considerations of collective utility, this test would not indiscriminately apply in the case of conflicting corporate and individual rights. On the contrary, the test would have to be adapted to the basic necessity of pitting a private interest against another. The existence of two conflicting private interests, clothed with human rights protection, may ultimately result in introducing elements of reciprocity into the operation of human rights law. Therefore, to the extent that corporations act both as obligors and right holders, the structure of performance of human rights law could be fundamentally altered.

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Conclusion Baty’s aphorism, namely that ‘in spite of the modern theories . . . [international law] nevertheless has something to do with States’,1 still rings true today and ultimately captures the workings of the predominantly state-centered international legal order. Whilst conceding that the emergence of corporations has not resulted in seismic shifts in the foundations of international law, one has to agree that corporations have, albeit exceptionally, emerged as direct addressees of international law obligations. Thus, corporations may be systemically included in international law. After all, ‘[t]he function of international law is to provide a legal basis for the orderly management of international relations’.2 To the extent that the function of corporations corresponds to the needs of the international community of States, then their submission to international law may not only be justified, but also necessary. This point was eloquently made by Jenks, who in 1972 argued that [i]n none of the main areas in which we are seeking a new world of law, the preservation of peace with justice, the protection of human dignity, the promotion of economic stability and growth, and the social discipline of scientific and technological development can the rule of law be made effective if the law limits its horizon to the obligations of states and the rights of individuals and fails to control the innumerable multinational entities which play so increasingly important a part in the life of our growing world community.3

Nonetheless, the submission of corporations to international law obligations cannot but proceed on the basis of the logic and methods of international law. It is for this reason that, amidst calls for the direct regulation of corporate conduct via international law, one has to revisit the concept of corporate obligations. Relying on the reasoning of the PCIJ’s Jurisdiction of the Courts of Danzig Advisory Opinion, one may infer that there is nothing in international law that prevents States from creating international law obligations directly binding on private corporations. Nonetheless, not every international law obligation, which may ultimately affect the operation of corporations, amounts to an obligation binding thereon. The obligation must be provided for in an international law rule regulating corporate conduct directly, i.e. without prior recourse to municipal legislation. If a corporation is found in breach of such an obligation, then its responsibility under international law will necessarily be engaged, and finally enforced upon the corporation via the application of international law. Turning to the sources of potential corporate obligations, the examination of international human rights and criminal law agreements reveals that States have shied away from employing treaty law as a means of establishing corporate 1

T Baty, The Canons of International Law (1930) 1. PC Jessup, A Modern Law of Nations (1948) 16. 3 CW Jenks, ‘Multinational Entities in the Law of Nations’ in W Friedmann and others (eds), Transnational Law in a Changing Society (1972) 71. 2

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obligations. Still, this does not mean that treaty law is turning a blind eye to corporate conduct altogether. Human rights bodies have sought to counteract the nefarious effects of corporate conduct via the concept of horizontality, namely by recognizing the international law obligation of States to ensure by means of domestic law the enjoyment of human rights in the relationships between individuals and corporations. What horizontality suggests is that international law has the capacity to induce corporate compliance with fundamental human rights guarantees without necessarily elevating the corporation to the status of direct addressee of international human rights norms. Respectively, in their effort to counteract transnational financial criminal activities, States have concluded a series of treaties which, inter alia, provide for the criminalization of the proscribed corporate conduct under domestic law. Again, as with human rights law, the obligations binding on corporations operate under domestic law. The rise of financial criminal treaty law serves as a further indication of the central role played by the State in responding to novel threats to human security, and particularly to the challenges posed by corporations involved in financial criminal activities. International customary law points in the same direction as treaty law, namely towards the absence of corporate obligations. As regards human rights, State practice has not deviated from the basic postulate that States remain the exclusive addressees of human rights norms. Equally, customary international criminal law still rests on the fundamental pillar of individual responsibility, as fleshed out in the Nuremberg judgment. Still, the examination of practice and opinio juris with a view to affirming or negating the emergence of customary rules serves a further purpose. It sheds light on the normative concerns underlying States’ reluctance to create corporate obligations. Human rights target State action because they are predicated on the concept of ‘jurisdiction’, namely the exercise of functional control over given territory or persons. A refusal to recognize corporate human rights obligations suggests that corporations lack the capacity to exercise the requisite level of control. On the other hand, international criminal law builds on an irreducible minimum core relevant to moral considerations: the key concept of personal individual culpability presupposes the dual capacity of cognition and will, which admittedly a legal person lacks. Most of the recent commentary on the international legal status of corporations has focused on international human rights and criminal law as giving rise to potential corporate obligations. Yet, there exist other fields of international law, in which corporate obligations may emerge, such as international law of the sea and international economic law. In these cases, corporate obligations do not derive directly from treaty or custom but from contracts concluded between corporations and international organizations. Not all contracts between organizations and corporations give rise to obligations under international law. At first, the contracts have to be made by an international organization in direct implementation of its functions. Second, the contracts have to incorporate by reference standard clauses enacted by the international organization, which form part of that organization’s

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secondary law. Third, international law has to govern the contract either expressly or impliedly. In order for international law to govern the contract between the international organization and the corporation, the choice of law rule itself has to be incorporated in international law, thus anchoring the contract in the international legal order. Should a corporation act in violation of its contractual undertakings, then such conduct will engage the responsibility of the corporation under international law, which is to be enforced on the corporation by virtue of international law. These conditions are met in two exceptional cases, namely the contract for exploration entered into with the International Seabed Authority and the Private Loan Agreement entered into with the International Bank for Reconstruction and Development. In both of these cases, the contracts are insulated from municipal law and give rise to corporate obligations under international law. It becomes apparent that corporations are addressees of international law in some but not all of its fields. International law imposes obligations on corporations on account of the function they are called upon to fulfill. Thus, corporate function serves both as the root and yardstick against which obligations are to be measured. Since this function is not necessarily identical with that of the sovereign State, it follows that the scope and structure of a corporate obligation does not always mirror the respective State obligation. This might of course be the case. Thus, under the contract for exploration, States and corporations in their capacity as contractors assume obligations of equivalent scope. If one turns to human rights law though, the situation differs. If we were to accept for the sake of argument that a corporate human rights obligation had emerged, then this obligation would necessarily have a limited scope compared to that of the respective obligation binding on a State. Whereas a corporation would admittedly be under an obligation to respect the human right in question, it would not be under an obligation of protection or fulfillment. The final question one needs to tackle is whether the emergence of a corporate human rights obligation would challenge the structure of performance of human rights rules. In principle, a human rights obligation binding on a corporation would mirror the structure of an obligation binding on the State, in the sense that it would operate between the corporation as the obligor and the individual as the right holder in a bilateral, non-reciprocal fashion. Thus, a human right would give rise to a correlative obligation of the corporation. Yet, corporations themselves may exceptionally enjoy human rights protection. Specifically, the European Convention on Human Rights has been interpreted as guaranteeing, inter alia, the corporations’ right to property and privacy. This gives rise to a curiosum under international human rights law, as the corporation may operate both as a right holder and human rights obligor at the same time. In this case, the invocation by an individual of a human right vis-à-vis a corporation potentially under the correlative human rights obligation could conflict with the corporation’s own rights. International human rights law does not provide a means of resolving a conflict of rights invoked simultaneously by two respective right holders. What it does provide is a test to assess the legality of restricting individual rights when they conflict with the ‘rights of others’ understood as

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a collective interest embodied by the State. The application of this latter test to conflicting individual and corporate rights reveals a mutation in the structure of performance of human rights rules. Applying human rights to the relationship between two right holders, namely the corporation and the individual, may imbue the operation of human rights with elements of reciprocity. The application of a corporate human rights obligation cannot proceed without due regard for the rights of the corporation. Ultimately, the imposition of human rights obligations on corporations, which are at the same time enjoying human rights protection, has the potential to distort the traditional non-reciprocal structure of performance of human rights.

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Index NB: for page references to cases, please consult the relevant tables at the beginning of this volume. accomplice liability see international criminal law, aiding and abetting African Charter on Human and Peoples’ Rights 23, 24, 25, 32, 49, 50, 51 Art 1 49 Art 4 49, 51 Art 5 49 Art 6 49 Art 7 49 Art 21 50 Art 27 23, 24, 25 Art 28 23, 24 Art 29 23, 24 Art 55 50 Art 56 50 n 228 African Commission on Human and Peoples’ Rights 25, 32, 49–52, 170 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea 120, 121, 122, 123, 124, 125 Alien Tort Claims Act 106–111 aiding and abetting 107 see also corporate complicity; international criminal law, aiding and abetting corporate liability 107, 109–110 nature 107 extrajurisdictionality 109 extraterritoriality 108–109 Allott P. 164 Alston P. 47 American Convention on Human Rights 22–24, 32, 38, 43, 52–57, 180 Art 1 23, 38 Art 5 52 Art 8 52 Art 25 29 Art 28 28 Art 32 22, 23 Anzilotti D. 8 Area 119, 120, 121, 123, 124, 125, 126, 138, 144, 145, 146, 156, 157, 175 Ausnahmetrias 179 Australian Criminal Code 102 Barberis J. 12 Baty T. 199 Bothe M. 14

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Brems E. 193, 194 Bretton Woods Conference 126–127 Broches A. 130, 132, 139, 140 business activity see corporations, conduct Canadian Crimes Against Humanity and War Crimes Act 102 Cançado Trindade A. 52, 53, 54, 57 Castberg F. 25, 26, 30 Cheng B. 12 Clapham A. 95, 96, 97, 168, 176, 194 Cold War 1, 2, 18, 30, 58, 61, 98 Committee on Economic, Social and Cultural Rights 45, 46, 47, 48 contract for exploration for polymetallic nodules 117, 119, 124, 126, 133, 137, 138, 140–148, 150, 152, 153, 156, 158, 161, 162, 201 activity in the Area 119, 120, 121, 123, 124, 138, 145, 146, 156, 157, 158, 175 applicable law to the contract 137, 138 applicable law to the dispute 158, 159 commercial arbitration 157, 158 contractors 121, 123, 124, 144, 145, 146, 158 Deep Seabed Disputes Chamber 156–157 deep seabed mining 119–120, 125, 146, 155 exclusive right to explore 124, 149 labour regulations 125 monetary penalties 148, 149, 154, 155 obligations under 125, 126 preliminary ruling 157, 158 responsibility of the contractor 144, 145, 146, 147 responsibility of the sponsoring state 145–146 right of access to an international tribunal 156–157 security of tenure 124, 125 suspension or termination of 148–155 wrongful act 144, 146, 147, 148 contracts between international organizations and private persons 116, 117 ordinary contracts 117 employment contracts 117 functional contracts 117 Control Council Law No 10 91, 95 see also United States Military Tribunal

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Convention on Combating Bribery of Foreign Public Officials 63–66 Art 2 63 Art 3 64 Convention on the Elimination of All Forms of Discrimination Against Women 41, 42 corporate complicity 103, 105, 106, 110, 111 corporate human rights obligations 21, 30, 59, 74, 79, 84, 87, 164–167, 172, 177–180, 184, 185, 193, 195, 196, 197, 200, 201, 202 beneficiaries 172–174 bilateral relations 176, 177, 178, 179, 195, 196 community interest 178 content 165–167 functional criterion 167 horizontal obligations 179 interference with human rights see corporations, interference with human rights non-reciprocal relations 177, 178, 195, 196 obligation to fulfill 171–172 obligation to protect 169–170 obligation to respect 167–169 reciprocity 195, 196, 197 sphere of influence 172–173 structure of performance 178, 179, 180, 195, 196, 197 tripartite typology 167 vertical relations 176 corporate obligations under international law 4, 6–16, 25, 58, 66, 68, 94, 111, 114, 163, 167, 172, 177, 201 concept 4–7 conditions 10–15 direct 14, 21, 45, 53 equivalence of obligations 165, 174, 175 indirect 12, 13 ontological perspective 164 positive international law 4, 11, 19, 23, 59, 89, 114, 164 corporate responsibility to respect human rights 81–83 and international law obligations 83 human rights due diligence 82 normative character 83 scope 82 corporations addressees of human rights 21, 44, 49, 52, 73, 78, 165, 200 addressees of international criminal law 60, 97, 102, 111, 114 bearers of obligations under international law 6, 7, 177, 179 capacity to enter into contracts governed by international law 141, 143 conduct 2, 4, 11–13, 16, 18, 21, 31, 36–40, 44, 47, 48, 51, 52, 58, 59, 60, 65–67, 84, 88, 91, 94, 106, 109, 111, 113, 114, 164–166, 174, 177, 188, 194, 199, 200

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delegation of public functions by States 30, 66 direct regulation by international law 2, 6, 14, 199 economic power 2, 3, 21, 77, 87, 88 holders of human rights 180–183 implementation of international responsibility 15, 153, 154 interference with human rights 36, 54, 166, 169, 174, 188 international legal personality 1, 7, 68 involvement in the commission of crimes against international law 95, 99, 102, 106 customary international law 60, 68–76, 78, 81, 83, 89, 90, 94, 97, 100–103, 108, 110, 114, 150–153, 200 formation 69–73 methodology 72–73 opinio juris 71, 72, 73, 75, 78, 100, 200 practice 69–71, 79, 80, 83, 100, 102, 106, 110, 115 enactment of municipal law as a form of 102 uniformity 70, 102 presumption against change in the law 73, 83, 108, 109 Donnedieu de Vabres H. 93 duty clauses 22–28, 79–81 conceptual correlativity 26, 27 converse duties 25, 26 correlative duties 25, 27, 28 formulation 23, 24, 25, 80, 81 scope 24, 25, 79, 80 Eide A. 48, 167 Eissen M.-A. 29, 30 European Commission on Human Rights 31, 168, 188, 190, 196 European Convention on Human Rights 10, 27, 28, 29, 30, 31, 32, 33, 34, 35–38, 41, 42, 85, 156, 157, 180, 181, 182, 183, 184–195 Art 1 42, 84 Art 2 37 Art 5 37 Art 6 33, 41 Art 8 35, 36, 37, 181, 188 Art 10 27, 180 Art 13 29, 30 Art 17 28 Art 34 10, 156, 181 European Court of Human Rights 10, 32, 33, 34, 35, 36, 37, 38, 42, 44, 49, 50, 52, 85, 86, 156, 157, 168, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192 Evrigenis D. 44 Farben 95, 96, 97 Fawcett J. 30

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Index General Conditions for private loan agreements 132, 133, 134, 135, 138, 139, 147, 149, 150, 154, 159, 160 see also private loan agreements and ‘special forms of conventions’ 132 applicable law 138–140 as a regulative enactment 132, 133 events 147, 150, 153 legal effect 132, 133 incorporation 132, 133, 134, 136, 138, 139, 140, 143 nature 133 Section 1.01 132, 133 Section 2.01 131, 134 Section 3.02 134 Section 3.03 134 Section 3.01 134 Section 3.02 134 Section 5.01 135 Section 5.02 134 Section 5.03 135 Section 5.06 135 Section 5.07 135 Section 5.08 135 Section 5.10 135 Section 7.02 147, 149, 150 Section 7.03 149, 150 Section 8.01 139, 140, 147, 159, 160 Section 8.04 159, 160 German Federal Constitutional Court 179 Global Compact 103, 106, 165, 172 legal nature 103 corporate complicity 103 see also corporate complicity globalization 2, 61, 62 gold standard 126 Gros Espiell H. 43 Hague Regulations on the Protection of Private Property during Belligerent Occupation 95, 96 Henkin L. 19, 72, 88, 89 Hohfeld W. 27 human rights absolute rights 192 abuse of rights clauses 28–29 application in the relationship between individuals 21, 31, 38, 82, 196, 200 balancing of rights 191–195, 197 civil and political rights 41, 44, 45, 48, 49, 58, 168, 171, 183 conflicts of rights 184, 185, 186, 187, 192, 193, 194, 197 Drittwirkung 20, 22 duty clauses see duty clauses economic, social and cultural rights 45, 46, 47, 48, 49, 58 effective remedy clauses 29–30

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erga omnes obligations 53–57 freedom of association 47, 182 freedom of expression 26, 27, 180, 182, 183 horizontal effect 31, 35, 38, 39, 43, 194 horizontality 21, 31, 34, 35, 36, 40, 41, 44, 45, 48, 49, 50, 52, 55, 57, 58, 59, 67, 176, 179, 195, 196, 200 internationalization 19, 57, 75 interpretation see interpretation jus cogens obligations 31, 52, 53, 54, 55, 56, 57 limitation clauses 185, 186, 187, 192 nature 32, 81, 183 non-state actors 20, 28, 31, 53, 54, 57, 58, 77 obligation to fulfill 47 obligation to protect 31, 47–50 obligation to respect 46, 84 positive obligations 31, 35–45, 48, 49, 52, 67, 166 positive/negative dichotomy 45, 46, 58, 167, 168, 169 prohibition of discrimination 39, 40, 41, 42, 54, 56 prohibition of torture, inhuman and degrading treatment 55, 192 proportionality 191, 193, 194 public/private divide 19, 20, 58 public law norms 19, 88, 143, 179, 194 qualified rights 191, 192 right to a fair trial 33, 41 right to food 46, 47 right to form and join trade unions 13, 46, 183 right to liberty 37, 168 right to life 37, 38, 51, 168, 177 right to organize and bargain collectively 13 right to private property 10, 188 right to respect for family and private life 35, 36, 37, 181 right to the highest attainable standard of health 47 rights and freedoms of others 184, 186, 187 rights of indigenous peoples 38, 39, 40, 47, 168 simultaneous exercise of 187, 193, 201 tripartite typology 31, 45, 46, 47, 48, 49, 167 human rights jurisdiction 35, 37, 42, 43, 44, 54, 57, 84–88, 171, 172, 173, 177, 192 and jurisdiction under international law 85 as a normative threshold 84–88 concept 84–85 effective control 86 functional aspect 87 spatial aspect 84 Human Rights Committee 33, 39, 40, 43, 180 indigenous peoples see human rights, rights of indigenous peoples

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Inter-American Court of Human Rights 32, 34, 38, 43, 49, 50, 52–59 International Bank for Reconstruction and Development 117, 126–136, 138, 139, 140, 141, 143, 147, 149, 150, 151, 154, 155, 159, 160, 163 immunity 159 Inspection Panel 135, 136 international legal personality 127–130 legal personality under domestic law 127 specialized agency of the United Nations 127 International Bank for Reconstruction and Development Articles of Agreement 127, 129, 130, 132, 133, 140, 141, 154 Art I 129 Art II 129 Art III 129, 130, 150, 151 Art V 132 Art VII 127, 159 Art IX 129, 130 International Convention on the Elimination of All Forms of Racial Discrimination 41, 42 International Covenant on Civil and Political Rights 24, 26, 27, 33, 39, 40, 43, 85, 180 Preamble 22, 23, 24 Art 2 39, 43, 84, 180 Art 19 26, 27 Art 26 40 Art 27 40 International Covenant on Economic, Social and Cultural Rights 45, 46, 47, 48 Preamble 22, 23, 24 Art 8 46 International Criminal Court 3, 59, 99, 100, 101, 102, 103, 104 jurisdiction ratione personae 3, 99–101, 103 International Criminal Court Statute 99–101, 105 incorporation into municipal law 101 international criminal law aiding and abetting 104–108, 111 actus reus 104–105 mens rea 105 collective entities 90 Control Council Law No 10 91, 95 corporate criminality 90, 95, 97, 99 see also corporations, addressees of international criminal law crimes under international law 60, 66, 90, 92, 94, 95, 99, 102, 106 criminal organizations 92, 93, 94 status as a customary rule 94 declaration of criminality 92, 93 definition 93 de-moralization 114 Draft Code of Offences against the Peace and Security of Mankind 97, 98 function 89, 91 individual criminal responsibility 59, 66, 90, 91, 95

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individualism 89 international crimes 60, 66, 81, 90, 91, 101, 102, 103 international criminal responsibility 90, 91, 100 Nuremberg Principles 94 organizational criminality 92, 93, 94, 99 personal guilt 93 private conduct 90–91 system criminality 90 International Criminal Tribunal for the former Yugoslavia 55, 59, 104, 106 International Criminal Tribunal for Rwanda 59 international economic development 126, 127 international environmental law 14, 15 international financial criminal law 61, 62, 65, 66, 67 corruption 61, 62, 64, 65 liability of legal persons for financial crimes 62–66 money laundering 61, 62, 64 terrorism financing 61, 62, 63 transnational organized crime 61, 62, 65 international human rights law see human rights international labour conventions 13 international law applicability to corporations see corporations, direct regulation by international law positive international law see corporate obligations under international law, positive International Law Commission 33, 71, 94, 98, 99, 101, 104, 150, 151, 152, 154, 195 International Military Tribunal 59, 90, 91, 92, 93, 94, 97 International Military Tribunal Charter 92, 93, 94, 98, 99 international organizations 2, 4, 70, 71, 78, 80, 116, 117, 118, 122, 127, 128, 138, 139, 140, 141, 142, 143, 150, 151, 154, 161, 163, 200 function 116, 117, 143 international legal personality 128, 129 legal personality under municipal law 128 primary law 122 resolutions 71, 78 secondary law 118, 121, 122, 124, 133, 139, 143, 146, 201 international responsibility 14, 15, 38, 52, 53, 57, 68, 144, 155, 177 countermeasures 150, 151, 152, 153, 154, 155 see also contract for exploration for polymetallic nodules, suspension or termination of; private loan agreements, suspension or termination of conditions 151

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Index procedural requirements 152 proportionality 152 lex specialis 152 wrongful act 14, 136, 143, 144, 148, 150, 153, 154, 161, 177 International Seabed Authority 117, 119, 120, 121, 122, 123, 124, 125, 126, 138, 141, 143, 146, 148, 149, 150, 151, 152, 153, 154, 157, 158, 163, 175, 201 international legal personality 121 legislative mandate 121 personnel 125 Preparatory Committee 126 international treaties see human rights; international criminal law internationalized functionalized contracts 117, 118 see also contract for exploration for polymetallic nodules; private loan agreements concept 118 institutional internationalization 140, 141, 142 interpretation 21–23, 29, 30–35, 40, 41, 42, 43, 48, 49, 67, 123, 124, 129, 137, 145, 157, 158 context of the treaty 13, 23, 57 dynamic 30, 34, 48, 67 effective 32, 33, 35, 37, 38, 42 evolutive 34, 35, 42 object and purpose 32, 33, 34, 37, 48 teleological 32, 33, 34, 48 textual 22, 23 Jägers N. 14, 65 Jenks C.W. 142, 199 Jennings R.Y. 141 Kelsen H. 12 Knox J. 25 Lauterpacht H. 8, 9, 18 Leadership Corps of the Nazi Party 97 liberalism 30 liberalization 61 Lowe V. 115, 180 Mann F. 139 Multinational Enterprises (MNEs) 3, 47, 51, 199 municipal courts 15, 159 municipal law 8, 11, 12, 60, 91, 101, 117, 134, 136, 145, 147, 148, 160, 162 Nazi Industrialists 91, 95, 102, 105, 106 see also international criminal law, Control Council Law No 10; international criminal law, organizational criminality; United States Military Tribunal Nazism 29, 90, 92, 94, 95, 97

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Nigeria 49, 50, 51, 52, 108 Nollkaemper A. 88, 90 Permanent Court of International Justice 7–9 prisons 2, 86, 169, 170, 173 private loan agreements 117, 126, 127, 130– 141, 143, 147–150, 154, 159–162, 201 applicable law 138, 139, 140 arbitration 159, 160 obligations of the borrower 135 project-specific 130, 134, 149 responsibility for wrongful acts in violation of 147, 148 rights of the borrower 134, 135 suspension or termination of 149, 150 tripartite relations 132, 140, 154 private loan guarantee agreements 130, 131, 132, 133, 139, 140, 141, 143, 147, 150, 154, 160, 161 domestic law analogy 131 guarantor as a joint co-debtor 132, 139 legal nature 131 privatization 2, 30, 44, 58, 170 Ratner S. 13, 15, 66, 168 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area 121, 122, 123, 124, 125, 133, 137, 144, 145, 147, 148, 149, 158, 159 binding character 123, 124 nature 122 Salmon J. 139 Scelle G. 98 Second Protocol on the Protection of European Communities’ Financial Interests 63, 64 Shue H. 46 sovereignty 9, 17, 33, 48, 58, 87, 163, 164 Spiropoulos J. 94, 98 Standard Clauses of the contract for exploration for polymetallic nodules 124, 125, 137, 143, 144, 145, 148, 149, 154 see also contract for exploration for polymetallic nodules interpretation 124 Standard Clause 1.2 144 Standard Clause 1.3 124 Standard Clause 2.1 124 Standard Clause 2.2 125 Standard Clause 8 125 Standard Clause 11.1 125 Standard Clause 15.2 125 Standard Clause 16.1 144, 145 Standard Clause 21 148, 149, 154 Standard Clause 27.1 137 state contracts 141, 142 subjects of international law 2, 7, 8, 9, 68, 127, 131, 163, 164, 165

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Thiam D. 98 Third Conference on the Law of the Sea 119 Tomuschat C. 56 United Nations 3, 127, 128, 129, 130, 166 international legal personality 128–129 United Nations Code of Conduct on Transnational Corporations 18 United Nations Convention against Transnational Organized Crime 65 United Nations Convention on the Law of the Sea 119, 120, 121, 122, 123, 124, 125, 137, 138, 141, 143, 144, 145, 146, 147, 148, 149, 151, 152, 153, 154, 155, 156, 157, 158, 159, 161, 175 Art 153 120, 123, 124, 141, 146, 156, 175 Art 160 121 Art 162 121 Art 176 121 Art 187 156 Art 188 156, 157, 159 Art 293 158, 159 Art 304 153 Annex III, Art 16 124, 125 Annex III, Art 17 123 Annex III, Art 18 148, 149 Annex III, Art 21 137, 141 Annex III, Art 22 144, 145 travaux préparatoires 137 United Nations Commission on Human Rights 3, 78, 81 United Nations General Assembly 59, 74, 98 United Nations Human Rights Council 83, 64 United Nations Norms on the Responsibilities of Transnational Corporations 3, 77, 78, 79, 81, 165, 166, 169, 172, 173 and customary law 77, 78 Art 1 165, 169 legal nature 78 organs of society 77, 78, 79 Preamble 77, 78, 166 United Nations Office of the High Commissioner for Human Rights 78, 79, 81 United Nations Security Council 94

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United Nations Special Representative on the issue of human rights and transnational corporations 4, 79, 81, 82, 83, 87 see also United Nations Norms on the Responsibilities of Transnational Corporations corporate responsibility to respect human rights 81, 82, 83 ‘Guiding Principles on Business and Human Rights’ 82, 83, 164, 165 Interim Report 81 ‘Protect, Respect, Remedy’ framework 82, 83 United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities 80 United States Military Tribunal 95, 96, 97, 106 see also international criminal law, Control Council Law No 10 United States Supreme Court 107, 108, 109 see also Alien Tort Claims Act Universal Declaration of Human Rights 23, 24, 27, 29, 74, 75, 76, 77, 79, 80, 81, 88, 89, 166, 184 see also duty clauses Art 29 23, 27, 74, 75, 79, 80, 81, 88, 184 Art 30 29 as evolving customary law 75 educational purpose 76, 77 legal nature 74 ‘organs of society’ 74, 75, 76, 77, 78, 79, 88 Preamble 74, 75, 76, 77, 79, 88 travaux préparatoires 29, 76 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 62 Vienna Convention on the Law of Treaties 22, 23, 31, 34, 52, 153 see also interpretation Article 31 22, 23, 31, 34 Article 32 23, 31 Article 60 153 Virally M. 133 World War II 17, 18, 19, 57, 97, 116, 126, 186

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