[View PDF version]

By Benjamin B. Ferencz^*

The U.S. Representative at the International Military Tribunal (IMT), created by the four victorious Allies after World War II, was Robert H. Jackson, our most distinguished jurist on leave from the Supreme Court. I always admired his resolution in using the law as a powerful tool against injustice. On June 6, 1945, Jackson reported to President Harry Truman that the legal position in prosecuting German war criminals would be “based on the common sense of justice.” He noted, particularly, that it should not be “obscured by sterile legalisms developed in the age of imperialism to make war acceptable.”^[1] This underlying principle has stayed with me as a major source of inspiration as I progressed through my legal career and later on in my life. The quadripartite trial against German Field Marshal Goering and cohorts had not yet started when I was transferred out of a gun battalion and ordered to report to the headquarters of General George Patton in preparation for military commission trials to be conducted by the U.S. Army. In that capacity, I disinterred the battered bodies of downed Allied flyers beaten to death by enraged German mobs, and I joined liberating forces as the American army uncovered Nazi concentration camps. I peered into Hell. The traumatic effects of digging up bodies with my bare hands, and walking into concentration camps to witness human skeletons lying on the ground, not being able to tell whether people were dead or alive, remain with me nowadays.^[2] My reports served as a basis for trials by now forgotten U.S. Military Commissions that tried camp commanders and guards for violations of the laws of war. As the IMT was drawing to a close, a decision was reached in Washington to conduct twelve subsequent trials in Nuremberg. It was hoped that by expanding the net of justice one might better understand how the German public came to embrace the murderous Nazi racial doctrines. Deterring the repetition of such crimes in the future remained indeed the basic objective. General Telford Taylor, a fellow Harvard Law graduate and assistant to Jackson was appointed Chief of Counsel. On the day after Christmas 1945, I returned home to New York, was discharged from the U.S. Army as a sergeant, and awarded five battle stars for not having been killed or wounded in any of the five major battles of the war. Shortly thereafter, I was recruited by Telford Taylor to join his staff in Nuremberg.

As I began preparing as the Chief Prosecutor for the Einsatzgruppen Trial,^[3] Justice Jacksons’ words continued to resonate with me. Particularly, what became the I Nuremberg Principle,^[4] that crimes are committed by individuals, continues to move me in my 97th year of life, as I write for this special issue of the Harvard International Law Journal on Responsibility for Corporate Atrocity Crimes. Unless individual liability of corporate executives for atrocity crimes can coexist with and is not superseded by corporate liability for such crimes, to speak of “Corporate Atrocities” can be dangerous, as the term might evoke the idea that crimes can be committed by independent non-human actors. Corporate accountability has evolved much since its conception at the subsequent Nuremberg trials.^[5] Such creative conceptions, however, should not become a diversion from holding accountable the real, live persons primarily responsible for the harm. In my first year at Harvard, in 1940, I learned in torts that he who does the harm should be held accountable for the injury. The victim is entitled to fair compensation and efforts to remedy the wounds. The same principles of law and equity should apply to corporations and other non-state actors. This was the idea behind some of the subsequent Nuremberg Trials. It was well known that as part of the German war effort thousands of German companies employed concentration camp inmates. The conditions of work included kidnapping, torture, starvation, beatings, and outright murder. Nazi organizers aptly described the forced labor program as “Vernichtung durch Arbeit”—extermination through work. Both the IMT and the subsequent proceedings indicted several corporate executives of I.G. Farben, Krupp, Siemens and other leading firms and accused them of personal responsibility for war crimes and crimes against humanity.

It was common sense that the Nuremberg trials could not be carried out against hundreds of thousands of Germans who participated in the commission of war crimes and crimes against humanity. In order to broaden the scope and sweep of justice, a general charge was added to many of the indictments. If it could be shown that the accused was aware that the Gestapo, the SS or similar Nazi organizations (previously declared ‘criminal organizations’ by the International Military Tribunal) had, as a primary purpose, the elimination of opposition by legal or illegal means, the offender could be charged with a separate crime called “membership in a criminal organization.”^[6] Seventy years after those trials, “mere membership in a given criminal organization would not be sufficient to establish individual criminal responsibility.”^[7] Yet, members of criminal gangs or non-state actors engaged in terroristic activities may still today be brought to justice on several modes of liability. It is conceivable then that corporations or other legal entities engaged in such activities as international drug smuggling, counterfeiting, prostitution or similar crimes may have their leaders stand personal trial on charges of conspiracy, complicity, command responsibility, indirect perpetration, and co-perpetration under the Rome Statute,^[8] as well as being part of a joint criminal enterprise in other tribunals.^[9] This is because, as noted by Jackson and many others, the law cannot remain static. It must be interpreted broadly when necessary to meet the changing needs of the society it is designed to protect. Yet, this might not always be easy to do. Even at Nuremberg, the results of three trials specifically against industrialists were disappointing to the Prosecutors. It was difficult to prove that the accused had personal knowledge of atrocities or the intended murderous use of products such as poison gas. Furthermore, the American judges were unaccustomed to seeing prominent and wealthy defendants being charged with complicity in mass murder. Many of the accused were acquitted or given light sentences. A few years later, all convicted war criminals were released. It was purportedly based solely on humanitarian considerations, but surely there was also an element of political pressure.

Whereas the strict requirements of criminal law might impose a heavy burden on the system of justice trying to provide remedy for corporate crimes, history teaches us that other ways have been attempted to bring corporations to account. Human rights violations can indeed be deterred by criminal punishment of perpetrators as well as civil liability of the companies responsible. I dealt with the issue of corporate financial responsibility for atrocities long after the Nuremberg trials were over. The Directors of some of Germany’s most respected corporations, including some who had gotten off easily at Nuremberg, were asked to have the company compensate concentration camp survivors for their unpaid, grueling services. At the behest of leading Jewish charities, I headed a team of highly competent German refugee lawyers and tried to reach amicable settlements. The corporate responses were uniformly unreceptive. They argued that they did not employ such laborers. When presented with the contrary evidence, they said they were forced to do so. They maintained that working conditions were fine, and even German workers had to suffer in time of war. Some even noted that giving the inmates employment saved them from going directly to the gas chambers, thereby implying that survivors should be grateful to their saviors.^[10] Unfortunately, ethics and morality seem too often to be sacrificed on the altar of chicanery and greed. If a high official of a corporation is accused of such crimes as fraud, misfeasance, malfeasance, or nonfeasance, it is the responsible officer who should be held to personal account. Instead, the current practice allows criminal actions against a large company to be settled by a cash payment penalty coupled with a commitment that there will be no criminal prosecutions. Those who caused or benefitted from the crimes go scot-free and it is the innocent shareholders who have to foot the bill. Those who suffered harm are not precluded from suing the company for money damages based on the theory that the company was negligent in hiring such corrupt or incompetent agents.

Corporations reflect the mores of the society in which they function. A lawless society does not deter crime. It is doubtful whether those who oppose accountability will be receptive to new legal interpretations or institutions that might bring unlawful corporate officers before the bar of justice. It will require patience and determination to bring about the necessary change of hearts and minds. The rewards of relying on law rather than other unbalanced forms of power are immediate and incalculable. It will be some time before new institutions to end corporate misdeeds will become operational, but with patience and determination it can be done. In the meanwhile, we should attempt to use every tool in our legal toolbox to send the strong and unequivocal message that corporate impunity will not be tolerated. My guiding advice to all who seek a more humane world is to Never Give Up: It is up to YOU!

* Benamin B. Ferencz is the former Nuremberg Chief Prosecutor of the Einsatzgruppen trial, in which 22 high-ranking Nazis were convicted of slaughtering over a million innocent men, women and children. In his opening statement to the Court, he declared: “The case we present is a plea of humanity to law.” Original video footage is available online at: http://www.ushmm.org/wlc/en/media_fi.php?ModuleId=10007080& MediaId=184. The author has been an active advocate for the rule of law throughout his life and career. A comprehensive selection of his writings, essays and lectures may be accessed online at www.benferencz.org. With this comment, the author wishes to provoke ideas and stimulate the development of future scholarship. The author wishes to thank Federica D’Alessandra, for her invaluable assistance in the preparation of this essay. For any questions, readers are encouraged to reach her federica_dalessandra@hks.harvard.edu. Special thanks also to Juan Calderon Meza, for his editorial assistance. This Article reflects the views of the author only.

[1] Robert H. Jackson, Report of Robert H. Jackson, U.S. Representative to the Int’l Conf. on Mil. Trials (1945), http://avalon.law.yale.edu/subject_menus/jackson.asp.

[2] You can hear Prosecutor Ferencz’s accounts of his war crimes investigations in his interview by Federica D’Alessandra as part of the International Bar Association’s interview series, Human Rights in the 21^st Century (2014) (from minute 0:30’ to 06:07’), http://www.ibanet.org/PPID/Constituent/Human_Rights_Law/ Film.aspx#ferencz.

[3] Officially: Military Tribunal of Nuremberg II, The United States of America vs. Otto Ohlendorf, et al., Control Council Law No. 10, Case No. 9, 1946.

[4] 5 U.N. G.A.O.R. Supp. (No. 12) at 11, U.N. Doc. A/1316 (1950); 1950 ILC Yb 374, vol. II; 44 AJIL 126 (1950).

1. For the purpose of this Statute, the Court shall have jurisdiction over legal persons, with the exception of States.
2. Corporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.
3. A policy may be attributed to a corporation where it provides the most reasonable explanation of the conduct of that corporation.
4. Corporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.
5. Knowledge may be possessed within a corporation even though the relevant information is divided between corporate personnel.
6. The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes.”

[6] It had been established common international law for centuries that all those who set sail on a pirate ship could be left hanging from the yardarm wherever they were apprehended. The same principle of universal jurisdiction was applied at Nuremberg to convict members of organizations like the SS and Gestapo whose primary purpose was to murder their presumed adversaries. Protocol on Amendments to the Protocol on the Statute of the Africa Court of Justice and Human Rights, art. 22 (June 27, 2014) (inserting art. 46), http://lawyersofafrica.org/wp-content/uploads/2014/10/PROTOCOL-ON-AMENDMENTS-TO-THE-PROTOCOL-ON-THE-STATUTE-OF-THE-AFRICAN-COURT-OF-JUSTICE-AND-HUMAN-RIGHTS-EN.pdf.

[7] Prosecutor v. Milutinović, Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, ¶ 25 (Int’l Crim. Trib. for the Former Yugoslavia, Appeals Chamber, May 21, 2003). The International Criminal Tribunal for the Former Yugoslavia (“ICTY”) further found that “[c]riminal liability pursuant to joint criminal enterprise is not a liability for mere membership or for conspiring to commit crimes, but a form of liability concerned with the participation in the commission of a crime as part of a joint criminal enterprise, a different matter.” Id., ¶ 26. A few years after this decision of the ICTY, the International Criminal Court (“ICC”) departed from the joint criminal enterprise mode of liability on the basis of a different wording contained in the Rome Statute. See, e.g., Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, ¶ 335 (Pre-Trial Chamber I, Jan. 29, 2007) (“The Chamber considers that this latter concept – which is closely akin to the concept of joint criminal enterprise or the common purpose doctrine adopted by the jurisprudence of the ICTY – would have been the basis of the concept of co-perpetration within the meaning of article 25(3)(a), had the drafters of the Rome Statute opted for subjected approach for distinguishing between principals and accessories.” (emphasis added)). See Antonio Cassese, International Criminal Law 212 (2001) (arguing that the wording “committing jointly” of art. 25(3)(a) of the Rome Statute covers joint criminal enterprise).

[8] Rome Statute of the International Criminal Court, art, 25(3), U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90 (July 17, 1998) (entered into force July 1, 2002).

[9] See, e.g., Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, ¶¶ 185-234 (ICTY, Appeals Chamber, July 15, 1999); Case 002, Case No. 002/19-09-2007-ECCC-OCIJ (PTC37), Decision on the Appeals Against the Co-Investigative Judges Order on Joint Criminal Enterprise (JCE), D97/17/6, ¶ 100 (Extraordinary Chambers in the courts of Cambodia, Pre-Trial Chamber, May 20, 2010) (restricting its applicability to international crimes); Prosecutor v. Sesay et al., Case No. SCSL-04-15-A, Judgment, ¶ 485 (Special Court for Sierra Leone, Appeals Chamber, Oct. 26 2009).

[10] Details of the efforts to obtain compensation can be found in: Benjamin B. Ferencz, Less Than Slaves (1979); see also Martin Gilbert, Working For Farben: A Review of Less Than Slaves, New York Times, Dec. 1979, http://www.benferencz.org/assets/reviewslaves_gilbert.pdf.

[View PDF Version]

The Harvard International Law Journal Online presents its Online Symposium, “An International Jurisdiction for Corporate Atrocity Crimes.” This special feature series, which gathers short contributions from distinguished academics and practitioners in relevant fields, explore the topic of an international jurisdiction for corporate atrocity crimes. Are international forums to pursue such cases even appropriate or feasible? And if so, what form or forms might such tribunals take?

The first section compiles features that address the problem of having—or currently not having—binding norms for corporate actors and explores the creation and enforcement of such obligations. Ambassador Luis Gallegos and Daniel Uribe recount the lessons from previous attempts to establish international tribunals for human rights abuses by private actors and encourage efforts to establish a legally binding international agreement on business and human rights. Sara McBrearty offers a private sector perspective in describing the primary challenges facing the business and human rights treaty proposed by Ecuador in the U.N. Human Rights Council. Benjamin Ferencz and Federica D’Alessandra write on the need to hold private enterprises accountable through criminal punishment and civil liability as deterrent factors. Finally, Caroline Kaeb explores the feasibility and role of monitorships within a comprehensive regime of criminal penalties.

The second section offers a critique by questioning the feasibility and appropriateness of resorting to international forums for corporate atrocities. Angel Gabriel Cabrera Silva explores the effectiveness of creating new international bodies and laws to address corporate atrocities. Gabriela Quijano recommends focusing at the moment on the domestic criminal systems of the home and host states of corporations.

The third section then presents a contrasting viewpoint that analyzes how the International Criminal Court (ICC) might serve in addressing corporate atrocities. Ambassador David Scheffer finds that corporate atrocities can be investigated and prosecuted before the ICC, albeit with complex amendments to the Rome Statute. Jelena Aparac believes that the amendment of the Rome Statute to include corporations, rather than international arbitration, would be the most opportune solution for international justice. Finally, in an interview with Luis Moreno-Ocampo, the first prosecutor of the ICC describes his views on the limits of the ICC’s role in addressing corporate atrocities.

The fourth group of features explores the possibility of providing international jurisdiction for corporate crimes in regional forums. ICC Judge Chang-ho Chung surveys the existing approaches of regional courts toward corporate human rights violations, and discusses the need to establish an Asian Pacific Court of Human Rights. Commissioner Jésus Orozco-Henríquez finds it likely that the Inter-American System will be increasingly open to address the liability of corporations. In light of the promise of the Inter-American System, Ana María Mondragón argues for the Inter-American System of Human Rights to take steps toward enshrining standards of protections against corporate human rights abuses.

The fifth group of features explores the creation of an entirely new international forum to adjudicate corporate atrocities, with Juan Pablo Calderón-Meza proposing alternatives to an international court via arbitration rules driven by civil society. Likewise, Claes Cronstedt and Robert Thompson propose broadening the reach of existing international arbitration framework into an International Arbitration Tribunal on Business and Human Rights that would include human rights disputes involving multinational businesses and victims. In contrast, Maya Steinitz argues that given democratic legitimacy reasons, public adjudication of mass torts is preferable to private sector arbitrations.

We thank our contributors for participating in this issue and hope that the articles contained in this volume will offer another step forward in the pursuit of international justice. We also thank our contributors who were able to attend the launching event at Harvard Law School on April 7, 2016 to present their writings and ideas in person. Videos of the event’s speakers are available with their respective articles.

Introductory remarks to the Online Symposium’s launching event 

[View PDF version]

By Caroline Kaeb^*

The tide is turning towards holding corporations accountable for atrocities. This is true with regard to domestic criminal codes, international treaties, and the jurisprudence of international criminal tribunals.^[1]

This might not have been expected back in 2010, when the Second Circuit rejected corporate liability under the U.S. Alien Tort Statute on the ground that “customary international law has steadfastly rejected the notion of corporate liability for international crimes, and no international [criminal] tribunal has ever held a corporation liable for a violation of the law of nations.”^[2] However, this view has not been subsequently endorsed by other circuits and the Supreme Court declined to review corporate liability as such in its Kiobel judgment.^[3] In 2014, the Special Tribunal for Lebanon (STL)—for the first time in the history of international and hybrid criminal tribunals—dealt with a case involving a corporate accused.^[4] The legal landscape of corporate accountability standards for atrocity crimes is increasing dynamically both at the domestic and international level. What, however, should be the plausible, appropriate, and effective criminal penalties to be imposed on corporations as legal persons?

The issue is not merely academic, but also of timely practical interest considering the recent STL holding in favor of corporate liability; the case involved charges of contempt and interference with the administration of justice against a broadcasting company that aired the identities of confidential witnesses and failed to remove this information from its website and another third-party web platform, thus violating a STL pre-trial order.^[5] On March 8, 2016, the STL Appeals Panel issued its decision on the Contempt Judge’s effort to extract any guidance from international law for corporate criminal liability. While the Appeals Judges reaffirmed the existence of corporate criminal liability under international law, they held that the corporate officer in charge could not be found guilty on the evidence, which avoided the result of finding any corporate liability. Despite this internal power struggle at the STL, the general trend towards corporate liability for international crimes has been clearly signaled by the Appeals Panel and is expected to continue informing that tribunal’s jurisprudence.

In cases of corporate wrongdoing, there is always the option to hold the individual officer responsible within the existing jurisdictional reach of criminal tribunals, including most prominently, the ICC. We have seen this in the Media Case where the International Criminal Tribunal for Rwanda found media executives guilty of direct and public incitement to commit genocide.^[6] David Scheffer’s essay in this symposium describes the prospects of holding individual corporate officers liable for corporate misconduct among other options.^[7] While this is an important starting point, attributing liability merely to the individual managers would not be an accurate reflection of blameworthiness when dealing with crimes committed through collective corporate action.^[8] Moreover, mere individual criminal prosecution would not lead to the organizational change necessary at the firm level to reform corporate policies and structures that have facilitated the commitment of the crimes in the first place.^[9] The literature on organizational behavior has established that optimal deterrence and retribution can be achieved by targeting both the responsible individual and the firm for criminal liability.^[10] Imposing criminal penalties on the corporate entity itself achieves retribution for the collective action and provides incentives for structural change at the firm level.

Lord Chancellor of England Lord Edward First Baron Thurlow (1731-1806) famously stated that corporations as legal fictions under the law have “no body to be kicked.”^[11] This limits the spectrum of available forms of criminal penalties as not all will be equally applicable to legal persons, such as imprisonment, or some might require adjustments because they were originally designed to punish natural persons.

In that vein, a significant number of legal systems in Europe have taken a hybrid civil/criminal approach to remedies that allows victims to attach civil tort claims for monetary damages to the underlying criminal proceedings.^[12] This so-called ‘partie civile’ procedure could offer a valid remedy option when dealing with corporate perpetrators.^[13] However, the underlying core issue of penalties to be imposed on a legal person would remain unresolved since, despite being consolidated with a civil action, the criminal proceedings remain the principal vehicle upon which the civil action merely piggy-backs.^[14] Moreover, as stipulated by their founding documents, international tribunals and the ICC are criminal courts for atrocity crimes. Letting these bodies decide on the merits of a civil action for damages, which remains an independent action adhering to substantive tort law, would thus overextend these bodies’ mandate. This approach would require an amendment or protocol to the Rome Statute or even the establishment of a new tribunal, any of which would be politically difficult. We have to fundamentally rethink and restructure the penalties catalogue at the domestic as well as international level to accommodate corporations as legal persons in the realm of international and hybrid criminal tribunals.

At first glance, criminal fines seem to be the most feasible penalty to impose on convicted legal persons since corporations, as creatures of business, are profit-driven and thus would be expected to respond to monetary incentives through fines. However, fines are not substantially different from compensatory/monetary damages, which can be considered a ‘mis-fit’ to right international crimes of vast carnage and magnitude.^[15] From a behavioral perspective, monetary incentives (such as fines) run the risk of commoditizing moral values and social norms and thus transforming the underlying relationship of law and morality into a mere market exchange.^[16] Justice for victims as well as deterrence of future corporate misconduct seems to be best achieved if criminal fines are paired with other non-monetary remedies as primary penalties, recognizing that imprisonment is not applicable to legal persons. But it would be short-sighted to conceive criminal fines as a legitimate stand-alone penalty in cases involving atrocity crimes.

It will require creative thinking that should be informed by lessons from organizational behavior to ensure that justice is rendered for the victims while corporate behavior is stirred towards compliance with human rights principles. France’s experience and experimentation with criminal sanctions for corporations as legal entities provides important insights in that regard. France was the first civil law jurisdiction in Europe to adopt corporate criminal liability, in 1994,^[17] and to elaborate a comprehensive catalogue of sanctions tailored specifically to when a legal person is the criminal perpetrator.^[18] French law considers nine different deprivations of corporate rights as suitable penalties: dissolution of the corporation, ‘judicial surveillance,’ public display and distribution of the sentence, general or special confiscation of assets, exclusion from public procurement, and (permanent or temporary) closure of one or more of the firm’s establishments that were used to commit the crimes.^[19] Considering the magnitude and severity of atrocity crimes, the closure of involved company establishments, general confiscation of all assets of the company (as opposed to a mere special confiscation of assets that were the object or result of the criminal offense)^[20] and, in the most severe cases, the dissolution of the company seem to be most appropriate as primary penalties in these cases.

Lawmakers must specify the precise requirements for some of these penalties, especially with regard to the dissolution of the corporation, also commonly referred to as the “corporate death penalty,”^[21] as it is the most severe criminal punishment imposed on a legal entity. France^[22] and Belgium^[23] allow for a winding-up of the legal person if it was established in order to commit the crimes or if the corporation was deliberately diverted from its original purpose to pursue the criminal conduct.

When prosecuting legal persons, it is important to design penalty structures that induce compliant behavior in a broader range of corporate operations. A non-monetary sanction that has proven particularly promising in the enforcement of the Foreign Corrupt Practices Act (FCPA) is the imposition of an independent compliance monitor on the company.^[24] A monitorship is a powerful remedy that has yet not been utilized in international criminal law, but can be very effective as it is extremely punitive from a corporate perspective and can set the stage for organic change within the company. Unlike the criminal penalty of “judicial surveillance,” which is available against legal persons under French law, monitorships offer distinct advantages since they can also be imposed on public corporations (unlike judicial surveillance). Also, while independent monitors take on the role of auditors and advisors (possibly also investigators) to serve as stewards for a culture and system of compliance, they would not take control of all corporate activities related to the criminal offense as is the case with judicial surveillance. Under this design, monitorships would be particularly suited to facilitate change from within the corporation whereas judicial surveillance seems to serve a primarily punitive function.

While individual prosecutions are vital to achieve deterrence—there has been a significant increase in the number of individual corporate officers prosecuted for violating the FCPA’s anti-bribery and accounting provisions in recent years^[25]—it is equally important to address systemic problems in the company that have led to a culture of non-compliance. To this end, federal prosecutors have increasingly imposed independent monitors on corporations as a condition for ending investigations under the FCPA. In fact, more than forty percent of all companies that entered into a settlement or plea bargain on FCPA charges from 2004 to 2010 had a monitor appointed.^[26]

Monitorships serve a dual purpose: first, they aim to put in place effective compliance structures and second, they aim to promote a corporate culture of integrity. In FCPA enforcement, the appointment of monitors by the prosecution has proven to be a viable vehicle to change corporate cultures of non-compliance and address shortcomings in compliance procedures and systems at the firm level. Leading legal practitioners on compliance monitorships have found that “[fe]w penalties imposed on a corporate criminal offender cause as much consternation as do compliance monitors.”^[27] Examples of companies that retained an independent monitor as a condition for settling the charges under the FCPA, include major brand names such as Siemens,^[28] Daimler,^[29] and Eni.^[30] The U.S. Department of Justice (DOJ) has utilized monitorships not merely for FCPA enforcement. In its case against BP,^[31] the DOJ imposed two independent monitors—a process safety monitor and an ethics monitor—on the company as part of the settlement on the criminal charges resulting from the Deepwater Horizon oil spill.

While the experiences with FCPA monitorship provide important lessons for the punishment of atrocity crimes against corporate perpetrators, it would be necessary to adjust some of the terms, scope, and structuring of monitorships to apply them to the international criminal justice system. Thus, while FCPA monitorships are strictly a creation of the settlement agreement between the company and the prosecution, ^[32] it would be hard to imagine such a contracts-based approach for human rights compliance monitorships as part of prosecution proceedings for atrocity crimes. Rather, a statutory approach would be preferable in the realm of atrocities prosecution in order to standardize the requirements and codify the latter in the relevant sentencing guidelines of the court. Allowing corporations charged with committing the most egregious violations of international law subject to a plea bargain would fly in the face of the universal condemnation of these crimes by the international community.

The appointment of monitors can offer an innovative option for non-monetary sanctions in the broader context of corporate crime, including corporate involvement in atrocity crimes, that can be combined with other forms of sanctions as deemed appropriate. Monitors are selected in different ways. Sometimes, the specific monitor is designated by the prosecution. In other cases, the selection of the monitor is made in cooperation with the respective government, usually giving the relevant agencies veto power on the selection of the monitor, and at times even requiring court approval.^[33] Their primary role is to build a robust compliance system and issue recommendations to ensure compliance in the future.

However, monitors can also take on an investigative function into specific allegations on behalf of the agencies.^[34] The monitor exercises significant control over the company as he/she reports to the government, usually on an annual basis for the appointed terms, which can vary, but has often been three years in the context of FCPA enforcement.^[35] The investigative powers of the monitor can be rather extensive and are not confined by its mandate as defined by the prosecution. The company is not shielded by an attorney-client privilege with the monitor in these cases.^[36] Monitorships can provide an effective and incentive-compatible remedy that extends the reach of international justice far into the corporate organization and ascertain what facilitated the involvement in egregious violations of international law and human rights in the first place.

Monitorships can be extremely costly for the company in terms of time and resources for fees, staffing, compliance measures, etc.^[37] The economic costs and the expansive scope of the monitor’s powers makes this remedy highly punitive and thus effective to stir corporate behavior towards better compliance. The value of an independent human rights compliance monitor as a criminal remedy would include follow-through on the admonition, “Never again.” Modern-day companies are complex creatures, so one must appreciate that it takes the right systems and corporate culture in place to prevent similar violations from happening again in the future. Court-installed monitors could help achieve that goal. A possible drawback to the use of monitorships as a criminal penalty is that it lacks some of the punitive stigma that is associated with other more visible punitive measures, such as massive fines, the ban from public procurement, or the closure of company units. Monitorships are therefore best understood not as a stand-alone penalty, but as an additional measure to facilitate organic change from within the company.

* Caroline Kaeb, PhD, is an Assistant Professor of Business Law and Human Rights at the University of Connecticut School of Business with a joint appointment with the UConn Human Rights Institute. She is also a founding member and co-chair of the Working Group on Business and Human Rights with the U.N. Global Compact’s Principles for Responsible Management Education (PRME). She has held visiting faculty positions at Northwestern University and the University of Chicago.

[1] See Thompson, Ramasastry, and Taylor, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes, 40 Geo. Wash. Int’l L. Rev. 841, 856 (2009); see also Bert Swart, International Trends Towards Establishing Some Form of Punishment for Corporations, 6 J of Int’l Crim. Just. 949 (2008).

[2] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

[3] Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1663 (2013).

[4] In the Case Against New TV S.A.L. and Karma Mohamed Tahsin al Khayat, STL-14-05/PT/AP/ARI26.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, F0012, 2 October 2014; In the Case Against Al-Jadeed [Co.] S.A.L./New T.V. S.A.L. (NT. V.) and Karma Mohamed Tahsin Al Khayat (“Al-Jadeed Case”), STL-14-05/T/CJ, Judgment, F0176, 18 September 2015.

[5] Id.

[6] Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze v. The Prosecutor, Case No. ICTR-99-52-A, Judgment (Int’l Crim. Trib. For Rwanda, 2007).

[7] David Scheffer, Corporate Liability under the Rome Statute, 57 Harv. Int’l L. J. (Online Symposium) 35 (2016).

[8] Sara Sun Beale, A Response to the Critics of Corporate Criminal Liability, 46 Am. Crim. L. Rev. 1484 (2009).

[9] Ronald Slye, Corporations, Veils, and International Criminal Liability, 33 Brook. J. of Int’l L. 963 (2008).

[10] John Coffee, Jr., “No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Mich. L. Rev. 387 (1981).

[11] John Poynder, Literary Extracts, Vol. 1, at 268 (1844).

[12] See Supplemental Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party at 18, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491).

[13] Glossary, Cornell University, Comparing French and US Legal Systems, http://legal1.cit.cornell.edu/ court_trials/glossary.htm.

[14] See Jean Larguier, Civil Action for Damages in French Criminal Procedure, 39 Tul. L. Rev. 698 (1965).

     [15] See Stephens, Beth, Conceptualizing Violence under International Law: Do Tort Remedies Fit the Crime, 60 Alb. L. Rev. 579 (1997).

[16] See Lynn Stout, Cultivating Conscience: How Good Laws Make Good People (2010); see also Gneezy, Uri & Rustichini, Aldo, A Fine is a Price, 29 The J. of Legal Stud. 1 (2000).

[17] Code Pénal [C. Pén.] [Penal Code] art. 121-2 (Fr.), http://www.legislationline.org/documents/ section/criminal-codes/country/30.

[18] Id. at arts. 131-37 to 131-49.

[19] Andrew Kirsch, Criminal Liability for Corporate Bodies in French Law, Eur. Bus. L. Rev. 41 (1998).

[20] The general confiscation of all assets of the company is usually only prescribed in severe cases, such as for crimes against humanity that were committed by a legal person. See Article 213-3 of the French Criminal Code.

[21] See Diane Amann, Capital Punishment: Corporate Criminal Liability for Gross Violations of Human Rights, 24 Hastings Int’l. L. Rev. 327 (2000).

[22] Code Pénal [C. Pén.] [Penal Code] art. 131 to 139 (Fr.).

[23] Code Pénal [C. Pén.] art. 35 (Belg.).

[24] 15 U.S.C. §§ 78dd-1 (1977).

[25] See Jon Jordan, Recent Developments in the Foreign Corrupt Practices Act and the New UK Bribery Act: A Global Trend Towards Greater Accountability in the Prevention of Foreign Bribery, 7 NYU J. of L. and Bus. 845, 853-54 (2011).

[26] Joseph Warin et al., Somebody’s Watching Me: FPCPA Monitorships and How They can Work Better, 13 U. of Pa. J. of Bus. L., 321, 322, 326 (2011).

[27] Id. at 321.

[28] SEC v. Siemens Aktiengesellschaft, No. 08-CV-02167, at 5 (D.D.C. Dec. 12, 2008).

[29] United States v. Daimler AG, No. 10-CR-00063, at 12 (D.D.C. Mar. 24, 2010) (sentencing memorandum).

[30] United States v. Snamprogetti Netherlands B.V., No. 10-CR-00460, at 12 (D.D.C. Jul. 7, 2010) (deferred prosecution agreement).

[31] BP Statement on Deepwater Horizon Settlement With U.S., The Wall St J.: L. Blog (Nov. 15, 2012), http://blogs.wsj.com/law/2012/11/15/bp-statement-on-deepwater-horizon-settlement-with-u-s/.

[32] Joseph Warin et al., supra note 26, at 345-46.

[33] Cristie Ford & David Hess, Can Corporate Monitorships Improve Corporate Compliance?, 34 J. CORP. L. 679, 711 (2009).

[34] See Rachel Louise Ensign, How Daimler Got a Very Good Report Card, The Wall St. J. (May 29, 2013), http://blogs.wsj.com/riskandcompliance/2013/05/29/how-daimler-got-a-very-good-report-card/.

[35] Joseph Warin et al., supra note 26, at 347.

[36] See id.

[37] See id. at 321, 369.

[View PDF version]

By Gabriela Quijano^*

Where Can Victims of Corporate Human Rights Atrocities Turn for Justice?

On the night of 2 December 1984, toxic gas leaked from a pesticide plant in the Indian city of Bhopal, killing between seven and ten thousand people within three days of the leak. It was the biggest industrial disaster in modern history. The plant was owned by U.S.-based chemical giant Union Carbide Corporation (UCC). On paper, the Bhopal victims had at least two options to pursue justice: the Indian courts (the courts of the state in which the atrocities were committed, commonly referred to as the “host state”), and the U.S. courts (the courts of the state in which UCC is incorporated, commonly referred to as the “home state”). The Bhopal victims pursued both. However, decades of litigation in both countries only led to further frustration and anger with very little in effective corporate accountability and reparations. UCC, though charged with “culpable homicide” in India immediately after the disaster, has for almost three decades failed to appear before the Indian criminal court to face charges. It remains today a proclaimed “absconder from justice” in the country.^[1]

The case of Bhopal is representative of hundreds of cases across the globe where neither the host nor home state is able to provide victims of corporate human rights atrocities an adequate avenue to obtain legal redress. There often is an abyss between what the law says on paper and what is possible in reality. When multinational companies are involved in serious abuses of human rights, for a number of reasons, they often get away scot-free. In practice, it is as though they operate above the law.

Ideally, justice and reparation should be achieved in the host state. Local courts and judicial systems should be able to hold corporate perpetrators accountable and provide effective remedy to the victims. However, this is often not the case. While efforts must continue to improve host state response to corporate abuses, options for seeking justice must be found in the next most obvious place: the home state of the multinational corporation involved.

Over the last few years, Amnesty International has increased its advocacy efforts to prompt home states to do much more to ensure corporate accountability for human rights abuses.^[2] The prospect of effective sanctions and an adverse legal finding in the home state can provide companies at the headquarter level with the incentive to put measures in place to ensure that no human rights abuses occur in the context of their global operations.

Justice in Home States

Home states need to reform their laws and policies to ensure that corporate perpetrators of human rights abuses domiciled or headquartered within their territory are held criminally and/or civilly accountable, regardless of where the abuses took place.

Under international human rights law, the home states of multinational companies are obliged to act to prevent abuses by corporate actors, including abuses that occur outside their territory, when they have the legal and practical capacity to do so.^[3]

Amnesty International believes that two sets of legal reforms are both needed and possible. First, home states should place parent or controlling companies of multinational corporations domiciled or headquartered in their countries under an express legal duty of care towards individuals and communities whose human rights are affected by their global operations.^[4]

In France, efforts are underway to pass legislation that would impose on certain large companies a “duty of vigilance.” In 2010 the UK imposed on companies incorporated or carrying out business in the country a “duty to prevent” foreign bribery.^[5] Whether a “duty of care,” a “duty of vigilance,” a “duty to prevent,” or a similar construction is the most fitting response will depend on the particular national legal system. What matters is that the notion that companies in control of subsidiaries or other entities with whom they do business are legally responsible for the harm these entities cause if they knew or should have known of the likelihood of this harm is firmly entrenched in law. The routes to get there may vary.

These laws could provide the legal basis for home states to take action (for example, to investigate) in cases of alleged breaches; and lead to sanctions if breaches are found. Crucially, they could provide foreign victims with a direct cause of action against parent or controlling companies in their home states, before their home state courts, leading to an obligation to provide reparations if liability is established. However, to be effective, these reforms would have to be accompanied by other measures to facilitate access to justice such as financial assistance to resource-trapped claimants.^[6]

Second, home states should scale up their response to criminal activity, including when this occurs abroad, by enforcing existing criminal laws or creating new ones to hold companies under their jurisdiction liable for criminal acts that either are, or lead to, human rights abuses. This should be done in a way that is proportionate to the severity of the crime committed and the human rights impact.

Adequate responses to criminal activity might require home states to investigate and prosecute cases through the effective enforcement of existing laws. Where these laws do not exist, home states may need to adopt new laws or reform existing laws to criminalize certain unacceptable corporate conduct, to ensure criminal laws apply to crimes committed abroad or to provide for corporate criminal liability, whatever the legal gap may be.

As radical as these reforms may sound, home states already have many of these measures in place in areas such as human trafficking, sexual abuse of children, corruption and transnational organized crime. For example, national and international efforts to tackle corruption and to expose its negative impacts on society have increased over recent years. Today, there is greater acknowledgement by governments of the scale and trans-national nature of the problem. Bribing a foreign official to obtain a business advantage is now a crime in a large number of states.^[7]

Corporate impunity for serious abuses to human rights is an issue of increasing international concern, particularly in cross-border cases. There is no reason why the international momentum and commitment to take action to tackle corruption cannot be emulated to combat corporate involvement in human rights atrocities.

Justice in host states

A focus on home states is in addition, and not as a replacement to, host state justice. Efforts to strengthen the functioning and effectiveness of host state courts and other accountability mechanisms should not be abandoned. On the contrary, efforts to improve justice both in host and home states should go hand in hand so that victims of corporate human rights abuses have more options for obtaining justice.

In recent years, there have been a number of powerful and promising developments. For example, on 14 February 2011, an Ecuadorian judge found multinational oil company Chevron guilty of severe environmental contamination of the land where it operated in Ecuador for over thirty years. The company was ordered to pay $8.6 billion in damages and cleanup costs, with the damages increasing to $18 billion if Chevron did not issue a public apology. Ecuador’s Supreme Court later halved damages to $9.51 billion. This decision followed over two decades of litigation against the company, including a class action lawsuit in the U.S. which was dismissed on forum non conveniens grounds.^[8]

The claimants are now trying to have the judgment enforced in various national jurisdictions where Chevron has assets, and this is bringing a whole new array of legal and political hurdles. Ideally, it should not take over a decade of litigation to reach a court decision. However, the fact that the claimants managed to obtain a final court judgment in a case of this nature, establishing Chevron’s liability and ordering payment of substantial damages is a victory in itself.

In another development, on 25 November 2015, Argentina passed a law creating a Truth Commission^[9] to investigate, identify and report on the economic actors who contributed to and/or benefited from the country’s military dictatorship of 1976-1983. The creation of this Commission follows years of concern, allegations, investigations and some judicial decisions over the way in which several business actors, both national and foreign, collaborated with and benefited from the human rights violations of the military regime.

The Commission is not meant to replace the courts but to supplement and contribute to judicial efforts. It will have ample powers to receive complaints and request information and evidence, including from all parts and levels of government, companies and other private actors. Its mandate includes a number of innovative features, which should help fulfill critical aspects of the right to remedy, such as the ability to order reparations and seek full knowledge of the truth and guarantees of non-repetition. It is an unprecedented initiative that could serve as a model for efforts in other parts of the world to unmask and combat corporate complicity with abusive governments. The next big battle now that the law has been approved will be forged on the ground and determined by the Commission’s ability to fulfill its mandate and deliver on its stated goals in practice.

Both these examples demonstrate that local responses are possible, even against foreign corporate giants. This type of effort must be encouraged, respected and supported, including by the home states of the foreign corporations involved. Despite some encouraging developments, many obstacles still prevent effective justice and accountability in a large number of cases of human rights abuses involving multinational companies in the developing world. While efforts to improve local judicial and other mechanisms to hold corporate perpetrators of human rights abuses to account must continue, the spotlight must also be placed on home state responses.

Should forums of international justice be made available?

Forums of international justice should be available and a number of options have been put forward by some experts, including the idea of an international court of civil justice. A crucial question in relation to such a court would be about its ability to respond adequately to a potentially large and increasing number of claims. If, to address this challenge, the remit of the court was narrowly defined and provisions were made for only a few types of case to qualify, adequate solutions would still need to be offered to the other cases that did not meet the criteria.

Whatever the nature and scope of a supranational body, its creation seems a long way away. In the meantime, efforts must be intensified to move home states to take action to prevent corporate atrocities, to hold corporate perpetrators of these atrocities to account and to provide adequate reparations to the victims.

* Gabriela Quijano is the legal adviser on business and human rights at the International Secretariat of Amnesty International. Since 2009, she has led the organization’s work on access to remedies for business-related human rights abuses. She has also done research, legal analysis and advocacy on corporate legal accountability and access to effective remedy for corporate human rights abuses. Gabriela is the lead author of Amnesty International’s book Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, published in March 2014. She also holds a Masters degree on the Theory and Practice of Human Rights from the Human Rights Centre of Essex University. Gabriela practiced civil, commercial and corporate law in Buenos Aires prior to moving to the UK.

[1] For a detailed description of this case, see Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, 33-64, POL 30/001/2014 (Mar. 7, 2014), https://www.amnesty.org /en/documents/pol30/001/2014/en; see also Amnesty Internationall, India: “30 Years is Too Long to Get Justice,” ASA 20/035/2014 (Nov. 30, 2014), https://www.amnesty.org/ en/documents/asa20/ 035/2014/en/.

[2] See, e.g., Amnesty Int’l, Too Toxic to Touch? The UK’s Response to Amnesty International’s Call for a Criminal Investigation into Trafigura Ltd, EUR 45/2101/2015 (July 23, 2015), https://www.amnesty.org/ en/documents/eur45/2101/ 2015/en/; Amnesty Int’l, Côte d’Ivoire: The Toxic Truth: About a Company Called Trafigura, a Ship Called the Probo Koala, and the Dumping of Toxic Waste in Côte d’Ivoire, AFR 31/002/2012 ( 25, 2012), https://www.amnesty.org/en/ documents/afr31/002/2012/en/; Amnesty Int’l, United Kingdom: Briefing to the UN Committee on the Elimination of Racial Discrimination, EUR 45/008/2011 (Aug. 2011), http://www2.ohchr.org/english/bodies/cerd/docs/ngos/AI_UK_ CERD79.pdf.

[3] For an explanation of the legal basis for this, see Amnesty Int’l, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, supra note 2, at 21-26.

[4] This recommendation is explained in more detail in Amnesty Int’l, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy, supra note 2, at 143.

[5] 2010 UK Bribery Act, Bribery Act, 2010, c. 23 (U.K.).

[6] This and many other measures to alleviate barriers to justice in home state courts are addressed in the recently adopted Council of Europe Recommendation of the Committee of Ministers to member States on human rights and business, Council of Europe, Recommendation of the Committee of Ministers to member States on human rights and business, at 31-43, CM/Rec(2016)3 (Mar. 2016), https://wcd.coe.int/ViewDoc.jsp?p= &Ref=CM/Rec%282016%293&Language=lanEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntranet=FDC864&BackColorLogged=FDC864&direct=true.

[7] For example, forty-one states have passed anti-bribery legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. See Organization for Economic Co-operation and Development, OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions: Ratification Status as of 21 May 2014, http://www.oecd.org/daf/anti-bribery/ WGBRatificationStatus.pdf (last visited February 2016).

[8] See Business & Human Rights Resource Centre, Texaco/Chevron lawsuits (re Ecuador), http://business-humanrights.org/en/texacochevron-lawsuits-re-ecuador.

[9] The “Bicameral Commission for the Truth, Memory, Justice, Reparation and Strengthening of Democratic Institutions.”

[View PDF version]

By David Scheffer^*

Can corporate perpetration of genocide, crimes against humanity, and war crimes (atrocity crimes) be investigated and prosecuted before the International Criminal Court (ICC)? The answer is conditionally affirmative with respect to corporate officers responsible for their company’s criminal conduct. However, investigation and prosecution of corporations themselves as juridical persons would require complex amendments to the Rome Statute of the ICC.

Corporate officers are already subject to investigation and prosecution by the ICC because the Rome Statute confers personal jurisdiction only over natural persons, particularly if he or she is a national of a “State Party” to the Rome Statute. One corporate executive, Joshua Arap Sang,^[1]—former head of operations and well-known radio personality of Kass FM in Nairobi, Kenya—recently faced prosecution at the ICC as an indirect co-perpetrator of three counts of crimes against humanity. He was charged with using coded messages in his radio broadcasts to commit murder, forcible transfer, and persecution. His prosecution was in connection with the larger situation being investigated in Kenya for the period between June 1, 2005 and November 26, 2009 and, in particular, the post-election violence of 2007-2008. However, the Trial Chamber vacated the charges against Sang on April 5, 2016.^[2] Two judges, with a third dissenting, found that the Prosecutor had presented insufficient evidence, with one judge explaining that witness interference and political meddling were reasonably likely to intimidate witnesses.^[3]

The ICC will entertain individual criminal responsibility^[4] or superior responsibility^[5] for corporate officers when their actions are part of an overall situation of atrocity crimes that either has been referred^[6] to the Prosecutor by a State Party or the Security Council, or the Prosecutor has initiated an investigation,^[7] approved by the Pre-Trial Chamber, of essentially a situation of atrocity crimes. This means that the isolated commission of, or complicity by, a corporation in genocide, crimes against humanity, war crimes, or even aggression^[8] (once amendments relating to the crime of aggression are procedurally ratified and activated by a sufficient number of States Parties) will only subject corporate officers to ICC scrutiny if the alleged illegal conduct is part of a situation of atrocity crimes that has fallen under the jurisdiction of the Court by virtue of a proper referral or investigation. As of early 2016, this would entail corporate activity in one or more of the situations^[9] currently under either official investigation by the Court (Democratic Republic of the Congo, Uganda, Central African Republic (two situations), Darfur (Sudan), Kenya, Libya, Côte d’Ivoire, Mali, and Georgia) or, for purposes of determining whether an investigation can be launched under the Prosecutor’s proprio motu powers, preliminary examinations^[10] by the Prosecutor of Afghanistan, Burundi, Colombia, Nigeria, Guinea, Iraq, Ukraine, and Palestine. Therefore, corporate officers need not fear ICC jurisdiction while conducting most global corporate activities unless such actions fall within the narrow parameters of a relatively small number of situations of atrocity crimes being officially investigated by the ICC at the time.

However, atrocity crimes arising as a consequence of corporate operations or complicity in government commission of atrocity crimes to facilitate corporate investments might trigger the jurisdiction of the ICC. Tough requirements of personal, territorial, temporal, and subject-matter jurisdiction requirements must still be met, particularly in the context of individual corporate officers who could be investigated and prosecuted, and the situation must also meet the gravity^[11] threshold required to qualify for the ICC’s attention.

It is certainly possible that in the future, a single atrocity crime of relatively limited magnitude, perhaps caused by corporate criminal conduct, may be a situation that merits ICC investigation. The Pre-Trial Chamber’s decision of 16 July 2015^[12] found factors militating in favor of sufficient gravity in the Israeli Defense Forces’ singular attack on the Mavi Marmara (a Comoros-registered vessel) bound for the Gaza Strip on 31 May 2010, and thus requested the ICC Prosecutor to reconsider her Decision Not to Investigate.^[13]

The Article 98(2)^[14] non-surrender agreements negotiated and concluded by the United States with over 100 governments prior to 2009,^[15] exclusively by the George W. Bush Administration, seek to protect any U.S. national from surrender to the ICC for the purposes of standing trial; facially, these agreements would seem to include corporate officers of U.S. citizenship.^[16] As the chief U.S. negotiator of the Rome Statute, I was deeply involved in the negotiation and drafting of Article 98(2), a provision that was originally intended to preserve the rights accorded under status of forces agreements.^[17] In their current formulation, the agreements negotiated by the George W. Bush Administration overreach the original intent^[18] of Article 98(2), which is that these bilateral agreements would protect only government personnel such as military, diplomatic, and government-employed humanitarian employees, of the “sending State.”^[19] The term “sending State” is well understood in treaty law to exclude private actors. In negotiating that provision of the Rome Statute, neither U.S. nor other negotiators had any intent to insulate private corporate officials.

If a government argues that it cannot surrender a corporate executive of U.S. citizenship who is in its custody and has been charged by the ICC because such government must comply with its Article 98(2) obligations with the United States, the ICC judges could sever the wording of the Article 98(2) agreements that purports to exclude a “national” of strictly private character from the government’s obligation to surrender such individual under the Rome Statute. Alternatively, the judges could nullify the entire agreement for the purpose of Article 98(2) protection before the ICC. The obligation to surrender would arise where the government detaining a corporate officer subject to an ICC arrest warrant is either a state party with treaty obligations to cooperate or a non-party state directed to cooperate pursuant to a Security Council referral of a situation to the Prosecutor.

If it were better understood as a risk in corporate circles, the potential exposure of corporate officers to ICC jurisdiction could significantly influence the conduct of multinational corporations in situations of atrocity crimes under investigation by the Prosecutor. But that exercise needs to begin in university instruction and graduate business schools where the future leaders of multinational corporations are educated and trained.

The larger question, though, looms: why not authorize the ICC to pursue criminal charges directly against corporations as juridical persons? This option was considered and rejected during the U.N. talks leading to the Rome Statute in July 1998.^[20] I have written extensively in other publications^[21] and amicus curiae briefs^[22] about the reasons for the exclusion of criminal liability for juridical persons from the Rome Statute.^[23] In brief, as the court was originally designed to hold natural persons accountable for atrocity crimes, there was too little time to fully consider the proposal. Also, at that time, there were an insufficient number of national jurisdictions that held corporations liable under criminal law, as opposed to civil tort liability, which has long been universal. The principle of complementarity under the Rome Statute,^[24] a principle dependent on compatible criminal law in state party jurisdictions, would have been crippled as a consequence. Finally, the proposal would have imperiled the ratification of the treaty by many governments given the novelty of corporate exposure to criminal liability before the ICC.

Today, the global landscape regarding corporate criminal liability in national jurisdictions has changed,[25] including in many of the States Parties to the Rome Statute. Theoretically, the exercise of complementarity, while still problematic in some jurisdictions, will become more plausible in the event the Rome Statute is amended to embrace corporate liability and a significant number of States Parties transform their own national criminal codes to cover juridical persons in the commission of, or complicity in, atrocity crimes.

Obtaining approval for amendments to the Rome Statute that would extend the ICC’s jurisdiction over juridical persons would be extremely difficult to achieve diplomatically. Nations with economies that are fueled by multinational corporations, either as home states or host states, would likely oppose efforts to expose these companies to criminal liability before the ICC. The potential economic cost of a finding of corporate criminal liability, or even the possibility of an ICC investigation in the future, could have devastating impacts on a nation’s economy.

Nonetheless, there is value in contemplating the possible phrasing of an amendment to the Rome Statute intended to extend the Court’s personal jurisdiction over juridical persons. Article 25(1)^[26] could be amended to read: “The Court shall have jurisdiction over natural and juridical persons pursuant to this Statute” (new wording in italics). For good measure, the second sentence of Article 1^[27] could be amended to read: “It shall be a permanent institution and shall have the power to exercise its jurisdiction over natural and juridical persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. Any use of ‘person’ or ‘persons’ or the ‘accused’ in this Statute shall mean a natural or juridical person unless the text connotes an exclusive usage.” (new wording in italics)

Beyond those two amendments, careful consideration would have to be made to distinguish, if necessary, between natural and juridical persons for purposes of production of evidence, the exercise of due process rights, proper physical presence of the defendant (which natural person would appear on behalf of the corporation) in relevant proceedings, state cooperation requirements unique to corporations, and discerning which penalties are available and enforceable against corporations in the event of a guilty judgment. Any group of amendments covering juridical persons in the Rome Statute would require approval by two-thirds of the States Parties pursuant to Article 121(3)^[28] and, if that hurdle is passed, then such amendments would have to be ratified or accepted by seven-eighths of the States Parties in order to come into force pursuant to Article 121(4).^[29]

It might be possible to avoid these stringent amendment requirements by negotiating a protocol to the Rome Statute that would permit States Parties that ratify or accept it to “opt in” to coverage of juridical persons. However, such a protocol may be very difficult to negotiate as it would still have to transform the Rome Statute radically to cover juridical persons only for those States Parties ratifying or accepting the protocol. The protocol itself would have to largely mirror the complex amendments required for a comprehensive overhaul of the Rome Statute described above, and may still need to be initially adopted by two-thirds of the States Parties pursuant to Article 121(3).

Corporate accountability for atrocity crimes may be more pragmatically accomplished through 1) the investigation of corporate officers under existing Rome Statute powers where the ICC is exercising jurisdiction over a relevant situation, and 2) the further development of national criminal codes covering corporate commission of, or complicity in, atrocity crimes. Governments that have modernized their criminal codes to include corporate accountability for atrocity crimes may one day find it useful to create a treaty-based multilateral tribunal on atrocity crimes with clear jurisdiction to adjudicate criminal complaints, and perhaps also civil claims, against juridical persons. If they choose to rebuild the ICC as the international forum in which to adjudicate such corporate crimes, then the tribunal carpentry required to indict corporations may prove quite daunting to master.

* David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law at Northwestern Prizker School of Law. He was the U.S. Ambassador at Large for War Crimes Issues (1997-2001) and led the U.S. delegation in the United Nations talks creating the International Criminal Court.

[1] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012), https://www.icc-cpi.int/iccdocs/doc/doc1314535.pdf.

[2] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Public redacted version of Decision on Defence Applications for Judgments of Acquittal (Apr. 5, 2016), https://www.icc-cpi.int/en_menus/icc/situations and cases/situations/situation icc 0109/related cases/icc01090111/court records/chambers/tcVa/Pages/2027.aspx.

[3] Prosecutor v. William Samoei Ruto and Joshua Arap Sang, ICC-01/09-01/11, Dissenting Opinion of Judge Herrera Carbuccia (Apr. 5, 2016), https://www.icc-cpi.int/en_menus/icc/situations and cases/situations/situation icc 0109/related cases/icc01090111/court records/chambers/tcVa/Pages/2027.aspx.

[4] Rome Statute of the International Criminal Court, art. 25, July 17, 1998, 2187 U.N.T.S. 90.

[5] Id. at art. 28.

[6] Id. at art. 13.

[7] Id. at art. 15.

[8] Amendments to the Rome Statute of the International Criminal Court, art. 8 bis ¶ 1, June 11, 2010, A-38544 U.N.T.S.

[9] All Situations, International Criminal Court, https://www.icc-cpi.int/en_menus/icc/situations% 20and%20cases/situations/Pages/situations%20index.aspx

[10] Id.

[11] International Criminal Court, Policy Paper on Case Selection and Prioritisation, (Feb. 29, 2016), https://www.icc-cpi.int/iccdocs/otp/29.02.16_Draft_Policy-Paper-on-Case-Selection-and-Prioritisation_ENG.pdf#search=gravity requirements.

[12] Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, ICC-01/13, Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation (Jul. 16, 2015), https://www.icc-cpi.int/iccdocs/doc/doc2015869.pdf.

[13] Situation on the Registered Vessels of the Union of the Comoros, The Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-6-AnxA, Article 53(1) Report (Nov. 6, 2014), http://www.legal-tools.org/uploads/ tx_ltpdb/doc1913979_05.pdf.

[14] Rome Statute of the International Criminal Court, supra note 4, at art. 98(1).

[15] Bilateral Immunity Agreement Campaign, American Non-Governmental Organizations Coalition for the International Criminal Court, http://www.amicc.org/usicc/biacampaign.

[16] The 2002 non-surrender agreement between the United States and Afghanistan has typical language reading, “For purposes of this agreement, ‘persons’ are current or former Government officials, employees (including contractors), or military personnel or nationals of one Party.” See Beth Van Schaack & Ronald C. Slye, International Criminal Law and Its Enforcement: Cases and Materials, 171 (3^rd ed. 2015).

[17] International Security Advisory Board, Final Report of the International Security Advisory Board (ISAB) on Status of Force Agreements (2015).

[18] David Scheffer, Article 98(2) of the Rome Statute: America’s Original Intent 344-50 (2005).

[19] Id. at 333.

[20] Per Saland, International Criminal Law Principles, in The International Criminal Court: The Making of the Rome Statute 189, 100 (Roy Lee ed., 1999).

[21] David Scheffer & Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency of Corporate Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory, 29 Berkley J. of Int’l L. 334 (2011).

[22] Supplemental Brief of Ambassador David J. Scheffer, Northwestern University School of Law, as Amicus Curiae in Support of the Petitioners, Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491).

[23] David Scheffer, All the Missing Souls: A Personal History of the War Crimes Tribunals 203 (2012).

[24] William Schabas, International Criminal Court 190-199 (4^th ed. 2011).

[25] Supplemental Brief of Ambassador David J. Scheffer, supra note 22, at 13-26.

[26] Rome Statute of the International Criminal Court, supra note 4, at art. 25(1).

[27] Id. at art. 1.

[28] Id. at art. 121(3).

[29] Id. at art. 121(4).

[View PDF version]

By Jelena Aparac^*

     The commission of gross violations of human rights and international humanitarian law (“IHL”) requires the participation of many actors, including businesses, since economic life does not cease with the start of an armed conflict. Various types of businesses play a role in armed conflict: for example, the extractive industry, private military companies, and private banks do so by allowing the flow of money and financial transfers. In cases of gross violations of international law involving corporations, it can sometimes be difficult to identify who is responsible for a particular crime. This is notably due to the complex structure of corporations and, according to a majority of scholars today, the lack of corporate legal personality in international law.

     IHL applies in the context of armed conflict, during which it is considered as lex specialis.^[1] Grave breaches of IHL are sanctioned by international criminal law (“ICL”), which gives rise to international crimes.^[2] The idea of international crime is not new, but there is no universal definition of what exactly can amount to it^[3]. Today, it is accepted that the Rome Statute, which created the International Criminal Court (“ICC”), provides definitions for crimes such as war crimes, crimes against humanity, genocide and aggression,^[4] albeit limited to cases that fall within the Court’s jurisdiction.

     International tribunals prosecute individuals for IHL violations, regardless of the lack of their legal personality in international law. This is founded on the belief that some crimes should be governed by international law, rather than domestic law, because of the gravity of the crime. Some argue that core crimes^[5] hurt universal values respected by all actors of international community. Consequently, international justice can eliminate obstacles that are usually present in domestic courts, including prescription and immunities.^[6]

     In the course of contemporary international legal development, the remit of international crimes naturally extends to corporations alleged to be responsible for core crimes. Crime in itself is not limited to individuals as authors of crime. By prosecuting corporate executives for their involvement in international crimes, the Nuremberg trials^[7] opened a new era, progressively erasing the traditional legal theory of societas delinquere non potest, which stated that enterprises cannot be held criminally responsible. It also opened new opportunities for international criminal justice to prosecute not only corporate executives, but also corporations, as legal entities.

International Criminal Court (ICC) and Corporate Criminal Liability as Appropriate Jurisdiction

     From the very start of the negotiations to create the ICC, the issue of whether to provide for jurisdiction over legal persons was controversial because of the diverse ways that national legal systems addressed corporate criminal responsibility.^[8]

     In its final version, the Rome Statute excludes legal persons from its jurisdiction.^[9] The inclusion of legal persons would, seemingly, be constrained primarily by the principle of complementarity. The ICC is the “last resort” jurisdiction; it can prosecute only if states were unwilling or unable to do so. But many of them do not recognize legal persons in their internal orders, which would challenge the effective implementation of the principle of complementarity.^[10]

     The decision to exclude legal persons was, however, far from unanimous. As underscored by Professor Andrew Clapham, though the negotiations failed to include legal persons in the Rome Statute, the discussions during negotiations reinforced the idea that there was a need for further development of corporate liability.^[11] The first opportunity to do so arose when Prosecutor Luis Ocampo announced the investigation of corporations for crimes committed in the Democratic Republic of Congo.^[12] But as he had no legal basis, the corporations do not appear in the indictments. It is regrettable to note, that while the Prosecution has considerable discretion over the choice of affairs to investigate, the procedures motu proprio were limited^[13] and no executive directors were indicted either. Although the option to prosecute corporate executives exists within article 25 of the Rome Statute, the modification of the Statute to include corporations would provide the most opportune solution for both victims and international justice. Not only would the ICC qualify the crimes and pronounce sanctions for them, but victims already have rights that no other international criminal tribunal accorded them previously (such as participation in the procedure and obtaining reparation through the Trust Fund for Victims). Thus, any potential financial sanction of legal persons would assist in allocating potentially significant reparation amounts.

Is International Arbitration a Substitute for a Civil or Commercial Proceeding and an Appropriate Arena for International Crimes?

     Many commercial contracts signed between states and corporations have an arbitration clause in which the parties agree to settle any contractual disputes in an arbitration proceeding rather than in a court of law. But when it comes to corporate core crimes, who would sign the arbitration agreement in the name of victims? Their legal representatives? The state? The same state that often proves too weak to process civil or commercial disputes?

     Arbitration is a process where the parties may have unequal power and the corporation can easily impose conditions through the arbitration agreement. Many arbitration agreements signed between states and companies contain clauses of immunity from criminal prosecution. Indeed, arbitration agreements allow parties broad flexibility in designing arbitral procedures, including choice of applicable law and which acts will be prosecutable, which is why corporations favor this type of dispute settlement.

     Arbitration procedures are most often private and the final awards are confidential, permitting the corporation to continue its (criminal) business with full discretion. Furthermore, it discards one of the basic criminal procedure principles as there can be no appeal of the arbitration award.

     Therefore, it appears that arbitration stands in full contradiction to the ideology behind international crime and its prosecution. It is not an appropriate institution to process international crimes, and it is highly unlikely that it would provide victims with satisfaction or justice.

New tribunal: International Court for Human Rights and Humanitarian Law?

     There are several regional courts with jurisdiction over human rights violations.^[14] Nevertheless, not all regions have a court on human rights. Furthermore, some regions that do have them have technical, political or financial difficulties that constrain the courts in their pursuit of human rights violators. Amending their statutes and allowing the court’s jurisdiction over corporations would inevitably require more experts, research, and logistics in international business, criminal and humanitarian law.

     However, one alternative might be to create a new international court with jurisdiction over human rights and international humanitarian law violations. Such a court could act as universal human rights court—which is lacking today—with both human rights (with its derogation systems) and IHL as lex specialis and its basic principles can govern ratione materiae jurisdiction (jurisdiction over core crimes). Various UN bodies already report on violations of both HR and IHL by natural persons, including non-state actors and corporations. In this new ad hoc jurisdiction, judges could identify human rights and IHL violations, and pronounce an appropriate judgment accordingly, taking a step further from the report phase. It could also provide the possibility for victims to claim compensation, while international justice could be attained. However, not many states would be willing to finance the new international tribunal.

     To this day, the doctrine has not fully seized the opportunity opened by the Nuremberg trials; the main focus remains on individuals, business leaders, or states, leaving aside legal persons like corporations. Their role and implication in international crimes is significant and it should not be left in impunity. International criminal law remains the best option for the prosecution of legal persons for international crimes.

* Jelena Aparac, PhD candidate in public international law, Lecturer in international humanitarian law at University Paris Ouest Nanterre La Defense, invited lecturer at CERAH in Geneva, former Legal Advisor in international humanitarian law for Médecins Sans Frontières.

[1] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Rep. 1996, ¶ 22-428 (July 8); Juan-Carlos Abella v. Argentina, Report No. 55/97, Inter-Am. Ct. H.R. (ser. C) No. 137 ¶ 157-165  (Nov. 18, 1997); Las Palmeras v. Colombia, Judgment on Preliminary Objections, Inter-Am. Ct. H.R. (ser. C) No. 67 ¶ 32-34 (Feb. 4, 2000); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Rep. 2004, ¶ 105-109 (July 9).

[2] Ole Kristian Fauchald & Jo Stigen, Corporate Responsibility Before International Institutions, 40 Geo. Wash. Int’l L. Rev. 1040, 1044 (2009).

[3] It was the post-WWII courts at Nuremberg and Tokyo that established a list of international crimes for the first time, although limited to their jurisdiction. It is important to underline, that the international crimes established in these courts were different from domestic crimes known up until that time. Professor Antonio Cassese proposed several common cumulative factors to identify international crimes. See Antonio Cassese, International criminal law 11-12 (3rd ed. 2013).

[4] Rome Statute of the International Criminal Court, art. 5, July 17, 1998, 2187 U.N.T.S. 90.

[5] Core crimes are considered to be war crimes, crimes against humanity and genocide.

[6] Droit international pénal 67 (Robert Kolb et al. Eds., 2008), according to Robert Kolb, it is widely recognized today that there is not a prescription for an international crime. See also Rome Statute of the International Criminal Court, supra note 4, at arts. 27, 29.

[7] Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. VI (1950) (regarding the Flick Case); Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. VII (1950) (regarding the I.G. Farben Case); Nuremburg Military Tribunals, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 Vol. IX (1950) (regarding the Krupp Case).

[8] The United Nations Committee on International criminal court has issued a report on the proposal for the future status of court 5 September 1951. Regarding the article 25 of the proposal, the Committee asked: “Should the court be competent to try individuals only, or should it also be competent to try legal entities?” United Nations Committee on International Criminal Jurisdiction, Draft Statute for an International Criminal Court, U.N. Doc. A/AC/48/4 (Sept. 5 1951); Subsequently, the Committee rejected the Australian proposal to include legal persons in the statute stating that the courts of Nuremberg and Tokyo were not ready to recognize a new principle of corporate criminal liability, U.N. G.A.O.R., 9th Sess., Suppl. No. 12, U.N. Doc. A/2645 (1954) (proposition of revised article 25). Notwithstanding the various attempts to provide the basis for the ICC, the project actually began in earnest in 1992 with the request by the General Assembly of the Commission to develop the proposal for the future status of court; G.A. Res. 47/33 (Nov. 24, 1992); G.A. Res. 48/31 (Dec. 9, 1993). See also Andrew Clapham, The Questions of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in Liability of Multinational Corporations Under International Law 171 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000).

[9] For detailed comment of this article, see Kai Ambos, Article 25, Individual criminal responsibility, in Commentary on the Rome Statute of the International Criminal Court 743-770 (Otto Triffterer, ed., 2008). For the historical process of Rome statute negotiations regarding the legal persons, see William Schabas, International criminal law and the business world, in La Responsabilité des Entreprises Multinationales en Matière de Droit de l’Homme (Emmanuel Decaux, ed., 2010). See also Report of the Preparatory Committee on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2 (Feb. 4, 1998); Draft Statute for the International Criminal Court, U.N. Doc. A/CONF.183/2/Add.1 (Apr. 14, 1998), U.N. Doc. A/CONF.183/2/Add.1/Corr.1 (May 26, 1998); Draft Rules of Procedure Revision for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, U.N. Doc. A/CONF.183/2/Add.2/Rev.1, at art. 23 (Apr. 15, 1998).

[10] Albin Eser, Individual Criminal Responsibility in The Rome Statute of the International Criminal Court: A Commentary 767, 778-79 (Antonio Cassese et al. eds., 2002); Harmen van der Wilt, Corporate Responsibility for International Crimes: Exploring the Possibilities, 12 Chinese J. of Int’l L. 43, 45 (2013).

[11] Clapham, supra note 8 at 140.

[12] Press release, Office of the ICC Prosecutor, Communications Received by the Office of the Prosecutor of the ICC, 009-2003 (Jul. 16 2003).

[13] See Situation in the Republic of Kenya, ICC-01/09-19-Corr, Pre-Trial Chamber II Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Mar. 31, 2010).

[14] European Court for Human Rights, Inter-American Court for Human Rights, African Court for Human Rights, The Arab Human Rights Committee’s experts.

[View PDF version]

By Chang-ho Chung^*

Prior to embracing the international community, most Asian-Pacific states have experienced hardships in the early 20th century. The Asia-Pacific region witnessed, survived, and was reborn from the ashes left by the Russo-Japanese war and the invasion of Manchuria, World War II, the Korean division and subsequent war, the Vietnam War, and Pol Pot’s regime in Cambodia, to say the least. Consequently, millions of lives were lost, and a great deal of rich cultural, philosophical, and religious achievements that were developed up until the 19th century were completely destroyed. In the 21st century, with the rapid development of international justice, the question arising is whether the atrocities of the previous centuries can be prevented through more meaningful engagement in international justice such as the creation of a regional judicial body. If such a body were to exist in the Asia-Pacific region following the examples of our brothers and sisters in Africa, Europe, and the Americas—a so-called Asian-Pacific Court of Human Rights (“APCHR”)—one may consider whether it could serve as a forum of regional justice not only for violations by states, but also non-state actors.

Since the late 20th century, many Asian-Pacific states have experienced accelerated economic development, having joined the international community. In the 21st century, greater numbers of developing Asian-Pacific states have joined in the effort to achieve such economic development. There is no doubt that Asian-Pacific states will play a great role in the economic development of the international community throughout the 21st century.

Yet the economic development of Asian-Pacific states would become truly meaningful only if it were accompanied by the development of the rule of law and a system of national human rights protection. The disease of corruption and human rights abuses emerging in the wake of economic development can only be cured through the proper application and implementation of the rule of law. Apart from these domestic efforts, Asian-Pacific states also need to actively participate in and contribute to the international effort to enhance the rule of law and human rights protection.

The International Criminal Court functions as the center of such an effort. International crimes, the most atrocious forms of all human rights violations, often demand that the international community work together to tackle the issue given the lack of capacity in any one country to address the problem on its own. As stated in Article 1 of the Rome Statute, State Parties are allowed to try crimes of such extent if it is in their capacity to do so.^[1] Thus, states becoming members of the International Criminal Court not only indicate confidence in their respective judicial systems, but also demonstrate support to those developing nations who have yet to reach such a stage.

Many cases of human rights violations that do not reach the seriousness of that of an international crime, by principle, should be managed by each nation’s domestic system. In support of such efforts, however, countries have attempted to protect the human rights of their citizens through joint conventions. As a result, various European, American, and African nations were able to establish their respective human rights courts. The only region that has yet to establish such a human rights court is the Asia-Pacific. Considering its population, economic power, and dynamic political situation, there is an even greater need to institute the APCHR than ever before.

The concerns of Asian-Pacific states over possible infringements of their sovereignty vis-à-vis international justice are important, and a regional approach may be a solution that would not compromise but rather promote respect for mutual co-existence. For instance, to bring a case before the African, Inter-American or European human rights systems, all domestic remedies must have been exhausted.^[2] Moreover, before adjudicating a case in the African and American systems, the case must be reviewed by a commission whose members are respectively appointed by the Organization of American States (OAS) and the African Union (AU) to decide, inter alia, whether or not cases are admissible and have sufficient merit to be taken to trial.^[3] Besides ensuring that every applicable and available domestic remedy has been duly exhausted, the Inter-American and African Commissioners respectively may dismiss any case that does not concern an OAS or AU state’s breach of their obligations under the corresponding American or African human rights instruments, which must have been consented to and ratified by the state.^[4] The same facts should not have been brought before any other international body of adjudication,^[5] and the case must have been filed within a reasonable time after the final domestic decision.^[6] The commissioners appointed by the OAS and AU members are, at the end of the day, the gatekeepers of each state’s sovereignty, which is a system that ASEAN, ASEAN Plus Three, and even the East Asia Summit could consider for a regional judicial system.

The future APCHR would, at its early stages, focus mainly on state liability, but may also consider the question of corporate accountability at the behest of its members. To this extent it is important to take note of the emerging trend of corporate accountability. As recently held by the Special Tribunal for Lebanon, “in a majority of the legal systems in the world, corporations are not immune from accountability merely because they are a legal— and not a natural—person.”^[7] For the sake of academic discussion, let us briefly review the regional human rights systems’ take on corporate accountability in order to provide some ideas that the APCHR could take into account once it is settled.

When it comes to this topic, there is no doubt that the African human rights system has a progressive body of jurisprudence and statutes. In SERAC et al v. Nigeria, the African Commission on Human and Peoples’ Rights found that “[g]overnments have a duty to protect their citizens, not only through appropriate legislation and effective enforcement but also by protecting them from damaging acts that may be perpetrated by private parties.”^[8] In fact, the Commission held that such an obligation was breached in the case at hand as “the Nigerian Government [gave] the green light to private actors, and the oil companies in particular, to devastatingly affect the well-being of the Ogonis.”^[9]

Further, the AU has recently issued a Protocol merging the African Court on Human and Peoples’ Rights along with the Court of Justice of the AU.^[10] This Court “shall have jurisdiction over legal persons”^[11] for genocide, crimes against humanity, war crimes, unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, trafficking in drugs, trafficking in hazardous wastes, illicit exploitation of natural resources, and aggression.^[12] The amendment further explains that “[c]orporate intention to commit an offence may be established by proof that it was the policy of the corporation to do the act which constituted the offence.”^[13] Similarly, “[c]orporate knowledge of the commission of an offence may be established by proof that the actual or constructive knowledge of the relevant information was possessed within the corporation.”^[14]

While it is not yet possible to bring cases entailing corporate liability at the Inter-American and European human rights systems, the Inter-American Commission on Human Rights has issued precautionary measures in cases where state liability is sought for human rights abuses allegedly caused by state and corporate actors in infrastructure projects.^[15]

Given this state of affairs, there is no doubt that the APCHR would allow Asian jurists to contribute to the national, regional, and international pursuit of justice. For instance, the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) has shown vast potential for development in the areas of the rule of law and human rights throughout the Asia-Pacific region. Through the participation of the Cambodian judiciary in the ECCC proceedings, the ECCC has enhanced the sense of involvement of the Cambodian people in the court cases. By collecting and exchanging information on capacity-needs, the ECCC has positioned itself to strengthen the Cambodian national justice system and its functioning. Furthermore, the ECCC has demonstrated a number of jurisprudential and structural innovations, being the first international court to allow victims to participate as full parties in the proceedings, and has demonstrated that victims’ full participation can be successfully balanced with the rights of other parties. The legacy of the ECCC may enable the integrated and well-balanced development of the rule of law and human rights in this region, and could be extended throughout Asia by establishing the APCHR.

In the 21st century, I hope that every Asian-Pacific country will be able to develop its own judicial system for the protection human rights, while taking an equally active role in the International Criminal Court. Those participating nations would certainly receive international recognition and acknowledgement that would boost confidence for further contribution to the international community. And finally, I hope to see greater attention devoted towards the establishment of the APCHR through the options elaborated above.

* Chang-ho Chung is a Judge of the International Criminal Court serving in the Pre-Trial Division. Prior to his appointment to the ICC, he served as a United Nations International Judge in the Pre-Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh, Cambodia for three and half years. At the ECCC, he was a member of both the Rules and Procedure Committee and the Judicial Administration Committee. Prior to this, Judge Chung served six years as a high court judge, eight years as a district court judge and three years as a military judge in the Republic of Korea from 1993. From 2008 to 2009 he served as a Legal Advisor and Korean Delegate to the United Nations Commission on International Trade Law (UNCITRAL) at the Embassy of the Republic of Korea and Permanent Mission in Vienna, Austria. Judge Chung holds a B.A. in Law and an LL.M. in International Law from Seoul National University. He has also been a Research Scholar at the London School of Economics and Political Science (2001), as well as at the University of Hong Kong (2005). The views expressed herein are those of the author alone and do not reflect the views of the International Criminal Court.

[1] Rome Statute of the International Criminal Court, art. 1, U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90 (July 17, 1998) (entered into force July 1, 2002).

[2] See Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), Arts. 50, 56(5), (entered into force Oct. 21, 1986) [hereinafter African Charter]; Organization of American States (OAS), Convention on Human Rights, art. 46(1)(a), Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1978) (reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc. 6 rev. 1 at 25 (1992)) [hereinafter American Convention]; European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 35(1), Nov. 4, 1950, 213 U.N.T.S. 222, (entered into force Sept. 3, 1953, as amended by Protocols Nos. 3, 5, 8, and 11, which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively) [hereinafter European Convention].

[3] See African Charter, supra note 3, arts. 30, 55(2), 56; American Convention, supra note 3, arts. 35, 46.

[4] Id.

[5] See African Charter, supra note 3, art. 56(7); American Convention, supra note 3, art. 46(c).

[6] See African Charter, supra note 3, art. 56(6); American Convention, supra note 3, art. 46(b).

[7] Prosecutor v. New TV S.A.L. & Karma Mohamed Tahsin al Khayat, Case No. STL-14-05/PT/AP/AR126.1, Decision on Interlocutory Appeal Concerning Personal Jurisdiction in Contempt Proceedings, ¶ 58 (Special Tribunal for Lebanon, Appeals Panel, Oct. 2, 2014) (holding a corporation can be held liable for contempt), https://www.stl-tsl.org/en/decision-on-interlocutory-appeal-concerning-personal-jurisdiction-in-contempt-proceedings.

[8] SERAC et al v. Nigeria, African Comm’n on Human and Peoples’ Rights, Comm. No. 155/96, ¶ 57 (Oct. 27, 2001), http://www.achpr.org/communications/decision/155.96/.

[9] Id., ¶ 58.

[10] African Union (AU), Protocol on the Statute of the African Court of Justice and Human Rights, art. 2 (July 1, 2008), http://www.au.int/en/sites/default/files/treaties/7792-file-protocol_statute_ african_court _justice_and_human_rights.pdf.

[11] African Union (AU), Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, art. 22, (27 June, 2014) (inserting art. 46C(1)), http://lawyersofafrica.org/wp-content/uploads/2014/10/PROTOCOL-ON-AMENDMENTS-TO-THE-PROTOCOL-ON-THE-STATUTE-OF-THE-AFRICAN-COURT-OF-JUSTICE-AND-HUMAN-RIGHTS-EN.pdf .

[12] Id. art. 14 (inserting art. 28A).

[13] Id. art. 22 (inserting art. 46C(2)).

[14] Id. art. 22 (inserting art. 46C(4)).

[15] Indigenous Communities of the Xingu River Basin, Pará v. Brazil, Inter-Am. Ct. H.R., Precautionary Measure 382/10 (July 29, 2011), http://www.oas.org/en/iachr/indigenous/protection/precautionary.asp.

[View PDF version]

By Jesús Orozco-Henríquez^*

Irresponsible activities by corporate actors have severely affected human rights of persons worldwide. The peoples of the Americas have not been the exception. In our region, the Inter-American System has received information revealing this pressing problem mostly through the negative effects of extractive activities^[1] performed by transnational corporations and the contribution of corporate actors to criminal activities.^[2] This problem has been present for several years and its persistence today is notable and acknowledged by governments, corporations, and civil society alike. Seeking to reaffirm its historically relevant role in the promotion of the human rights movement, the Inter-American System has also started to address this issue through its various mechanisms.

The American region has a longstanding commitment to justice and human rights. This entrenched humanitarian identity is evident through the full institutionalization of human rights norms. The states of the Americas have contracted explicit obligations enshrined in the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man and the various treaties conforming the Inter-American corpus iuris.^[3] Furthermore, they also created international institutions with the authority to interpret these instruments and act whenever a state had failed to meet its obligations: the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights. Due to this delegation, the content of these treaties now includes an extensive catalog of human rights expectations, classified according to a duty to either respect or ensure human rights.^[4]

Currently, the fragmentation of international law and globalization has contributed to deconstruct many of the assumptions sustaining the institutional framework crafted in the last century.^[5] Consequent to this change in international law, the Inter-American System has also evolved and adapted to stand up to the new challenges of our times.^[6] The Inter-American System is aware of the need to discuss and address corporate responsibility in human rights violations. Therefore, it has sought to open forums of discussion and frame situations in such a way as to contribute to forging a solution. One of the most recent efforts in this sense was the Inter-American Commission’s call for a public hearing dealing with the extraterritorial jurisdiction of Canada over the effect of Canadian mining companies conducting extraction in Latin America.^[7] Under this notable panorama of institutional willingness, the question then arises as to whether the Inter-American legal and political framework would be a useful forum to seek accountability of corporate executives.

Regarding this particular matter, it is evident that the Inter-American System would have to look at the issue mostly through the lenses of the state duty to “ensure” human rights— except when the corporation is a parastatal company or public enterprise in which case the duty to “respect” also arises—and would have to exert its authority under this approach. Following this perspective, the Inter-American Court has sought to demonstrate its awareness of the emerging problems of corporate responsibility and has addressed the problem of the extent of its jurisdiction by looking into the public or private nature of the corporate actor. According to its precedents, the Court has made clear that it has authority to adjudicate over human rights violations committed by executives of public corporations^[8] or corporations assuming the provision of public services.^[9] In cases where private corporations commit atrocities, the Court has reaffirmed a state’s responsibility to investigate and prosecute those responsible for criminal activities.^[10]

The Inter-American Commission has maintained this approach. For instance, by granting precautionary measures to Honduran Campesino Leaders of the Bajo Aguán region, after the information provided by the petitioners suggested that the beneficiaries needed protection from a “death squadron” of private security forces hired by corporate actors acting in conjunction with public officials. In that case, the Commission reaffirmed the state obligation to ensure the life and personal integrity of the affected groups.^[11] Similarly, through its thematic reports, the Commission received information suggesting that executives of Colombian public corporations played a role in designing the “Dragon Operation” aiming to eliminate syndical leaders.^[12] Moreover, the Commission is also looking into two cases of human rights violations deriving from environmental impact caused by corporations in the Peruvian communities of Oroya and San Mateo de Huanchor.^[13] Similarly, the Commission has recently issued an admissibility report in a case that alleges violation of indigenous people’s rights by corporate actors.^[14]

Following this overall tendency, it seems highly likely that the Inter-American System will be ever more open and disposed to address claims exposing criminal responsibility of corporate executives, or liability of corporations themselves. The interpretation of the American Convention on Human Rights as a living instrument^[15], along with the Inter-American openness to import universal standards^[16] may present ways for victims and their representatives to formulate claims under the more recent documents codifying the responsibility of corporate actors under international law.

While the Inter-American System will not be able to establish the direct responsibility of an individual for the commission of international crimes, it could interpret the American Convention and the international obligations of states in such a way as to prevent impunity for mass atrocities or other type of human rights violations committed by corporations and its executives. By monitoring states’ compliance with their international obligations, the System could ultimately contribute to the objectives of justice. It is likely that the Inter-American System could promote both crime prevention and criminal prosecution for corporate liability.

Concerning the promotion of prosecution, both the Inter-American Commission and the Court emphasize the duty of states to investigate violations of human rights by private parties. Therefore, they could require a state to exercise its jurisdiction over particular criminal acts falling under its jurisdiction according to international law standards. Moreover, these bodies could also require domestic courts to prosecute and conduct diligent investigations against particular corporate executives suspected of being responsible for mass atrocities. In the case of transnational activities, the Inter-American System could also push states to assert their criminal jurisdiction over executives even if they reside elsewhere. The result of these recommendations or resolutions would be shifting the avenues pressing for bringing cross-border justice.^[17]

Similarly, regarding crime prevention, the bodies of the Inter-American System could lead states to tighten domestic controls of corporate activities. While pushing for this preventive effect, the Inter-American system could request the respective states to regulate the activities of their companies abroad, and the domestic activities of foreign companies.^[18] This characteristic becomes especially relevant in cases where both the matrix and the subsidiary offices of a transnational corporation are situated in the American region. The deterrent effect brought by more stringent regulation could also increase by promoting mechanisms in the Inter-American System itself. The press releases, public hearings and thematic reports of the Commission could assist advocating strategies seeking to produce an indirect shaming effect pressing jointly upon a particular company and a state.

Furthermore, the system would also be in a position to provide victims with considerable relief, as its integral approach to reparations includes not only compensation, but also measures of satisfaction and guarantees of no repetition.^[19] Although these mechanisms would expect the state to produce the compensation, national authorities could then design domestic mechanisms to revert the costs upon corporations or its executives. Beyond this set of potential benefits, as of today the largest challenge to the Inter-American System is to develop concrete standards on the issue of corporate responsibility for human rights violations. The Inter-American jurisprudence has not had the chance to construct how states’ obligations to ensure human rights are influenced by the Guiding Principles on Business and Human Rights. This relatively recent body of principles endorsed in 2011 by the Human Rights Council could serve to advance interpretations of the American Convention that would require states to establish a legal and institutional framework assuring that corporations and corporate executives will be appropriately regulated and supervised. The Guiding Principles could, for instance, develop the responsibility of states under the American Convention and/or Declaration. This would ensure that domestic legislation require transnational companies acting within the states’ jurisdiction to meet domestically established requirements that aim to prevent executives from committing criminal activities.

In conclusion, the urgency to address this issue in the Americas is clear and evident. The Inter-American System, while remaining respectful to its mandate, is in a position to contribute to the solution in the different ways presented above. While the debate over corporate criminal responsibility evolves and further elaborates the adequacy of creating new international institutions or processes,^[20] already existing institutions like the Inter-American System may still provide relief by supervising the state’s obligations. Human rights mechanisms can play an important role in triggering the international legal processes aimed at prosecuting these kinds of atrocities and in providing remedies for victims. To meet its full potential and to develop more specific standards, it is expected that civil society will continue to rely on the Inter-American System’s various mechanisms in order to address this pressing issue.

* Jesús Orozco-Henríquez is a Commissioner and former President of the Inter-American Commission on Human Rights and Titular Researcher at the Institute of Legal Research at the National Autonomous University of Mexico.

[1] See Due Process of Law Foundation, The impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report submitted to the Inter-American Commission on Human Rights (2014), http://www.dplf.org/sites/default/files/report_canadian_ mining_executive_summary.pdf.

[2] See Press Release, Chiquita Brands, Chiquita statement on agreement with U.S. Department of Justice, (Mar. 14, 2007), http://phx.corporate-ir.net/phoenix.zhtml?c=119836&p=irol-newsArticle&ID=974081& highlight.

[3] This concept includes the Inter-American Convention to Prevent and Punish Torture; the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “San Salvador Protocol” the Protocol to the American Convention on Human Rights to Abolish the Death Penalty; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará”; the Inter-American Convention on Forced Disappearance of Persons; the Inter-American Convention on the Elimination of all Forms of Discrimination Against Persons with Disabilities; the Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance, and the Inter-American Convention Against All Forms of Discrimination and Intolerance.

[4] According to this classification, expectations deriving from the duty to respect place the state in a direct position to act or refrain from acting in order to meet international obligation. On the other hand, expectations emanating from a duty to “ensure” place the state in the indirect position to create the general conditions that would enable persons to assert their rights before third parties. See Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988); see also Eduardo Ferrer MacGregor & Carlos M. Pelayo, La Obligación de “Respetar” y “Garantizar” los Derechos Humanos a la Luz de la Jurisprudencia de la Corte Interamericana, 10 Estudios Constitucionales, 141 (2012).

[5] See Martii Koskenniemi (Chairman of the Study Group of the Int’l Law Comm’n), Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (Apr. 13, 2006).

[6] The System performs this task through its various contentious, protection and promotion mechanisms. The contentious system is compose of the Case and Petitions system in charge of both the Commission and the Court. The protection mechanism is composed of the precautionary and provisional measures decreed by the Commission and the Court respectively. The promotion mechanisms under the charge of the Commission consist of the thematic and country reports, press releases and public hearings.

[7] See Hearing on the Impact of Canadian Mining Activities on Human Rights in Latin America, Inter-Am. Comm’n H.R., Rec. of the 153^rd Period of Sessions (Oct. 28, 2014).

[8] As the Inter-American Court has established that a Peruvian publicly owned enterprise (SEDAPAL) incurred in violations of the rights to property of its workers through a modification of the social security regime to which they are enrolled. See Abrill Alosilla and others v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 223 (Mar 4, 2011).

[9] For instance, by establishing the responsibility of the Minchala Private Health Clinic in violating the right to personal integrity of Ms. Suarez Peralta. See Suárez Peralta v. Ecuador, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 261, ¶ 154 (May 21, 2013).

[10] “The Court notes that it has insufficient evidence to allow it to conclude that private companies could have been implicated in the facts of this case, and that there had been negligence in investigating this supposed participation. In any case, it is for the competent domestic authorities to continue investigating whether this hypothesis is relevant to the facts of the case and, if so, to take the corresponding decisions”. Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 270, ¶ 378 (Nov. 20, 2013).

[11] See Campesino Leaders of Bajo Aguán, Honduras, Inter-Am. Comm’n H.R., Precautionary Measure No. 50/14 (2014).

[12] See Second Report on the Situation of Human Rights Defenders in the Americas, Inter-Am. Comm’n H.R., OEA/Ser.L/V/II. doc. 66 ¶ 273 (Dec. 31 2011).

[13] See La Oroya Community v. Peru, Petition 07/270, Inter-Am. Ct. H.R., Report No. 76/09 (2009); see also Community of San Mateo de Huanchor and its Members v. Peru, Petition 03.504, Inter-Am. Ct. H.R., Report No. 69/04,(2004).

[14] See Communities of the Sipakepense and Mam Mayan People of the Municipalities of Sipacapa and San Miguel Ixtahuacán v. Guatemala, Petition 07/1566, Inter-Am. Ct. H.R., Report No. 20/14 (2014).

[15] The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am. Ct of H. R., (ser. A) No. 16, ¶ 114-15 (1999)

[16] See Gerald L. Neuman, Import, Export and Regional Consent in the Inter-American Court of Human Rights, 19 Eur. J. of Int’l L., 1, 101, 109-11 (2008).

[17] For instance, while supervising compliance with its judgment in the Case of Myrna Mack Chang, the Inter-American Court has insisted that the State has the duty to end impunity and capture the responsible of the execution of Ms. Mack. By pushing for this process, the State of Guatemala has had to issue request of coordination with the office of INTERPOL in order to seek for the culprit internationally. See Myrna Mack Chang v. Guatemala, Monitoring Compliance with Judgment, Order of the President of the Court, “Resolves,” (Inter-Am. Ct. H.R. Nov. 16, 2009), http://www.corteidh.or.cr/docs/supervisiones/mack_ 16_11_09_ing.pdf

[18] For instance, the Inter-American Court has established the State duty to regulate the provision of health services by private parties, specifically referring to blood banks. See Gonzales Lluy and others v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 298, ¶ 178 (Sept. 1, 2005).

[19] On the reparations issued by the Inter-American System, see Inter-Am. Ct. H.R., Principal Guidelines for a Comprehensive Reparations Policy, OEA/Ser/L/V/II.131 Doc. 1 (Feb. 19, 2008).

[20] Such examples include the mechanisms proposed by other contributors to this Online Symposium. See Douglass Cassel & Anita Ramasastry, White Paper: Options for a Treaty on Business and Human Rights 29 (May 2015), http://businesshumanrights.org/sites/default/files/documents/whitepaperfinal%20ABA%20LS% 206%2022%2015.pdf; Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75 (Dec. 2, 2014); Claes Cronstedt, An International Arbitration Tribunal on Business and Human Rights (version 5), Business & Human Rights Resource Center (Apr. 13, 2015), http://www.l4bb.org/news/ TribunalV5B.pdf.

[View PDF version]

Ana María Mondragón^*

The forces of globalization have changed the world and the human rights challenges it faces. States are no longer the exclusive or, in some cases, even the most powerful entities capable of affecting the human rights of individuals. Today, corporations have become prominent actors with the potential to transform the realities faced by communities within their spheres of influence.^[1]

Several NGOs have documented corporate-related human rights abuses on the American continent, ranging from the absence of prior consultation processes with indigenous peoples and forced labor practices to the forced displacement of entire communities with grave effects on the right to a healthy environment.^[2] Nevertheless, affected communities, human rights litigants, and advocates face enormous legal, economic, and political obstacles in their attempts to prevent the emergence of these problems and in their efforts to end the impunity often associated with them.

On the one hand, the legal systems and institutions of countries in the Americas have proven to be weak in preventing corporate human rights abuses and providing effective remedies to the victims. On the other hand, there are large legal vacuums in the existing international systems of responsibility that impede imposing liability in these cases.^[3] Despite the long-standing efforts of civil society^[4] to establish a binding international legal framework for corporate human rights abuses,^[5] a plethora of disparate interests on the part of states, corporations and civil society have rendered the likelihood of consensus slim.^[6]

In the meantime, thousands of individuals continue to be the subjects of egregious corporate-related human rights abuses, deprived of access to justice.^[7] Hence, efforts aimed at establishing an international tribunal for corporate atrocities need to be accompanied by novel strategies to pressure existing international mechanisms, such as regional human rights bodies, to combat impunity for corporate human rights violations by using the bodies’ competencies in new and creative ways.^[8] Such strategies can expand the available forums for victims to seek justice and contribute to building measures among states to prevent and address corporate human rights abuses within and outside their territories.^[9] Additionally, they have the potential to put pressure on states to support the creation of a specific binding international framework capable of addressing corporate human rights violations.^[10]

The Inter-American System: Untapped Potential

In the American continent, the ability of the Inter-American System of Human Rights to bring justice for victims of corporate-related human rights abuses offers a powerful opportunity. It is critical that civil society organizations, the Inter-American Commission on Human Rights (IACHR), and the Inter-American Court of Human Rights (I/A Court) explore their potential more systematically.^[11]

In the past decade, the IACHR and I/A Court have been increasingly compelled to address human rights violations in which corporations have been involved to some degree. The IACHR in particular has held numerous thematic hearings on the threat of corporate activities on human rights,^[12] issued thematic reports to address the issue,^[13] and granted precautionary measures.^[14] However, a review of the Commission’s decisions and the Court’s jurisprudence demonstrates that although these bodies have addressed cases involving human rights violations by businesses, they have rarely analyzed the role played by either the businesses or their complex interactions with the conduct of states.^[15] Most importantly, they have not used these opportunities to develop specific state duties with regard to corporations acting in their jurisdiction.^[16]

The recent judgment of the I/A Court in the case of the Kaliña and Lokono Peoples v. Suriname illustrates this lack of analysis. The case involved human rights violations against indigenous peoples resulting from the activities of the mining corporation, BHP Billiton-Suralco. This is the first case in which the Court “takes note” of the Guiding Principles on Business and Human Rights.^[17] However, it is disconcerting that there is no evidence in the judgment of any argument brought by the parties asking the Court to further develop business and human rights principles in this case. Accordingly, the recognition on the part of the court shows the need for civil society to more forcefully advocate for a stronger commitment of the regional human rights bodies so that they might engage in the search of comprehensive approaches to cases related to corporate human rights abuses.

There are some indications that the developing political climate in the Americas will make progress in this area an achievable goal. In 2014, the General Assembly of the Organization of American States (OAS) issued a resolution on the “Promotion and Protection of Human Rights in Business.” In the resolution, the Assembly called on member states to continue promoting the application of the United Nations Guiding Principles on Business and Human Rights, urged them to “disseminate these principles as broadly as possible,” and requested “the IACHR […] to continue supporting states in the promotion and application of state and business commitments in the area of human rights and business.”^[18] On January 29, 2015, the Committee on Juridical and Political Affairs of the Permanent Council of the OAS held its first special session on business and human rights.^[19] For its part, the IACHR has taken concrete institutional steps to include the business and human rights issue in its agenda^[20] and held the first thematic hearing explicitly on the issue of “Corporations, Human Rights and Prior Consultation in the Americas.”^[21] Finally, in addition to its first recognition of the Principles mentioned above,^[22] this year the I/A Court will issue an advisory opinion to clarify whether legal entities, such as businesses, are protected under the American Convention and can exhaust domestic remedies.^[23]

A Way Forward 

The civil society of the Americas should take advantage of this important political juncture to propose concrete alternatives to extend the protection offered to victims of corporate-related human rights abuses. There are at least two avenues worth exploring to develop specific standards around states’ obligations of respect and the guarantee of human rights.

First, the Commission and the Court should move to interpret the states’ general obligations enshrined in articles 1 and 2 of the American Convention in the light of specialized soft law standards on business and human rights.^[24] There is still work to be done in defining the specific measures states should take to guarantee the full exercise of human rights in the context of corporate activities^[25] and to prevent arbitrary interferences on the part of businesses in the territories and the rights of communities.^[26] These measures should be defined according to specific corporate activities and the rights of each subject of protection.^[27] As such, the fulfillment of state obligations must include specific duties such as i) encouraging business to respect human rights when they operate in conflict areas^[28]; ii) denying assistance or access to public services to companies implicated in grave human rights violations; iii) encouraging, and if reasonable, demanding that businesses explain how they will consider the effect of their activities on human rights^[29]; and iv) requiring businesses with whom the state is entering into commercial transactions with to follow strict human rights standards.^[30] Once these specific obligations are developed in the Inter-American System, the attribution of international responsibility would come to depend on determining the due diligence of the state in fulfilling these standards.^[31] Moreover, the Commission and the Court have the ability to pressure states to guarantee the right to provide access to justice for victims of corporate human rights abuses at the domestic level by reforming their domestic legislation, creating specific remedies for these victims, or other means.^[32]

Second, it is crucial to determine the scope of the extraterritorial obligations (ETOs) of the home states of corporations. There has been progress in the international legal arena in this regard,^[33] which may be used to establish the circumstances under which states could be held internationally responsible for acts of national companies committed outside their jurisdiction.^[34] On a continent in which Canadian and Brazilian extractive companies have become major perpetrators of human rights abuses,^[35] this is particularly important.

Finally, for these strategies to be feasible, the Inter-American System bodies have to take an active position in the ongoing debate over the ability of regional human rights protection bodies to react to matters allegedly related to states’ economic development policies. The answer to this question remains uncertain in the wake of the major political crisis within the System caused by the issuing of precautionary measures in Belo Monte Dam.^[36] In this case, Brazil insisted on furthering its development agenda and refused to protect the rights of indigenous communities of the Xingu River Basin by suspending the construction of what would be the third largest dam in the world.^[37] Retaliating against the precautionary measures issued by the Commission, Brazil withdrew its candidate for Commissioner to the IACHR, removed its ambassador to the OAS,^[38] and threatened to withhold its annual dues to the OAS, which amount to 6 million U.S. dollars.^[39] Moreover, Brazil refused to attend a working meeting at the IACHR on the case.^[40]

In conclusion, the role of the Inter-American System of Human Rights in strengthening the principle that corporate activities must necessarily be accompanied by a strong commitment to the fulfillment of human rights has never been more important. Enshrining strong standards of protection against corporate human rights abuses in the Americas and establishing an international tribunal for corporate atrocities might be derided as an elusive panacea. However, these goals need not be idealistic if concrete steps are taken in the interim. To this end, it is essential that civil society continues combining innovative strategies and summoning allies, both to bring justice to the victims of corporate human rights abuses and to strengthen domestic institutions and regulations that will prevent such abuses from occurring.

* Ana María Mondragón holds an LL.M. from Harvard Law School and a law degree from the Javeriana University of Bogotá. She has worked at the Inter-American Association for Environmental Defense (AIDA), the Center for Justice and International Law (CEJIL) and the Inter-American Court of Human Rights. Ana María was a Fulbright Scholar and recipient of the Gary Bellow Public Service Award and the Henigson Human Rights Fellowship at Harvard Law School.

[1] See John Ruggie (Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises), Clarifying the concepts of “sphere of influence” and “complicity”, U.N. Doc. A/HRC/8/16, (May 15, 2008).

[2] The NGO Business and Human Rights Resource Centre has the broadest database of cases of human rights effects from corporate activities: http://business-humanrights.org/en/search-topics; see also Interamerican Association of Environmental Defense (AIDA) (human rights and the environment issues), http://www.aida-americas.org/.

[3] Corporations are not recognized as subjects of international law and cannot be held accountable for human rights violations under any of the available international legal frameworks.

[4] The concept civil society used in this article includes primarily non-governmental organizations (NGOs), communities, social movements, and academic institutions.

[5] See Movement for a Binding Treaty, http://www.treatymovement.com/.

[6] The difficulties in achieving consensus date back to the intent of approval of the Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises proposed by the UN Sub-Commission for the Promotion and Protection of Human Rights in 2003. That proposal failed “due to the resistance of the business community and of capital-exporting countries, and to a certain naïveté in transposing to corporations norms designed to be addressed to states.” Olivier De Shutter, Towards a New Treaty on Business and Human Rights, 1 Bus. and Hum. Rts. J. 41(2016), http://journals.cambridge.org/abstract_S205701981500005X; see also U. N. Subcomm. on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003). In June 2014, the United Nations Human Rights Council decided to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” See Human Rights Council, U.N. Doc. A/HRC Res. 26/9 (26 June 2014) (entitled “Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights”). For a summary of the main discussions hold in the first meeting, see Carlos Lopez & Ben Shea, Negotiating a Treaty on Business and Human Rights: A Review of the First Intergovernmental Session, 1 Bus. and Hum. Rts. 111 (2016), http://journals.cambridge.org/abstract_S2057019815000152.

[7] There is no unified data about these effects in Latin America. The amount of information brought to the IACHR is an indicator of the magnitude of the problem. However, the Observatory on Mining Conflicts in Latin America (Observatorio de Conflictos Mineros de América Latina) database provides some important information in this regard. To date, it reports 210 conflicts, 220 extractive projects implicated in these conflicts and 315 communities affected. See Map of mining conflict, projects and mining companies in Latin America, http://mapa.conflictosmineros.net/ocmal_db/.

^[8] The African and European regional human rights systems have made important progress in this area. Noteworthy is the recent approval of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights to the African Court of Justice and Human and Peoples’ Rights, which allows international criminal prosecution, not only of individuals, but also of corporations. See Anita Ramasastry, & Douglass Cassel, White Paper: Options for a Treaty on Business and Human Rights, 6 Notre Dame J. of Int’l & Comp. L. 1, 35 (2015), http://scholarship.law.nd.edu/ndjicl/vol6/iss1/1.

[9] The issue of extraterritorial obligations of home states of corporations has been highly discussed in recent years. This avenue would allow holding states accountable for their failure to regulate corporate activity overseas and to guarantee effective access to justice to the victims. See Int’l Network for Econ., Social and Cultural Rts. (ESCR-Net), Global Economy, Global Rights, A practitioners’ guide for interpreting human rights obligations in the global economy (2014).

[10] If States realize that these international bodies are holding them accountable for their lack of control, supervision and regulation of corporations operating in and outside their territories, and/or for failing in assuring adequate remedies and compensation to victims of corporate abuses, they might find incentives to create a specific jurisdiction in which corporation are held directly accountable.

[11] Under the framework set up by the Inter-American System, the regional human rights bodies are not competent to declare non-state actors liable for human rights violations. However, they still have a role to play in overcoming impunity in these cases and in developing appropriate standards that are consistent with the reality faced by affected communities.

[12] In the past ten years the IACHR has held at least 40 thematic hearings on related topics. See, e.g, Forced Displacement and Development in Colombia, 153 Period of Sessions, (Oct. 27, 2014); Extractive Industries and Human Rights of the Mapuche People in Chile, 154 Period of Sessions; Corporations, Human Rights, and Prior Consultation in the Americas, 154 Period of Sessions; Reports of Destruction of the Biocultural Heritage Due to the Construction of Mega Projects of Development in Mexico, 153 Period of Sessions; Impact of Canadian Mining Activities on Human Rights In Latin America, 153 Period of Sessions; Human Rights Situation of Persons Affected by the Extractive Industries in the Americas, 144 Period of Sessions.

[13] See, e.g., Inter-Am. Comm’n H.R., Indigenous and Tribal Peoples’ Rights over their Lands and Natural Resources, OEA/Ser.L/V/II. Doc. 56/09. (Dec. 30, 2009); Inter-Am. Comm’n H.R., Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco, OEA/Ser.L/V/II. Doc. 58. (Dec. 24, 2009).

[14] For example, when corporate activities affect the right to health of communities, indigenous sacred zones, or the right to prior consultation of indigenous peoples while implementing large-scale projects. See, e.g., San Mateo de Huanchor community and members, Peru, Precautionary Measures, Case 504/03, Inter-Am. Ct. H.R., Report No. 69/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1 (Aug. 17, 2004); La Oroya Community, Peru, Precautionary Measures, Petition 07/270, Inter-Am. Ct. H.R., Report No. 76/09, OEA/Ser.L/V/II.130, doc. 22, rev. 1 (Aug. 31, 2007); Maya Community – El Rosario – Naranjo, Guatemala, Precautionary Measures, Inter-Am. Ct. H.R. (July 14, 2006); Maya Community Sipakepense y Mam, Guatemala, Precautionary Measures, Petition 1566/07, Inter-Am. Ct. H.R., Report No. 20/14, OEA/Ser.L/V/II.150 Doc. 24 (May 20, 2010); Xingu River Indigenous Communities, Pará, Brasil, Precautionary Measures, Inter-Am. Ct. H.R., PM 382/10 (Apr. 1, 2011).

[15] A paradigmatic example of this approach can be found in the case of the Santo Domingo Massacre in which neither the IACHR nor the Court addressed the role of Occidental Petroleum Corporation (OXY) in Colombian Air Force bombing of the hamlet of Santo Domingo in the department of Arauca, Colombia. See Santo Domingo Massacre v. Colombia, Preliminary Objections, Merits and Reparations, Inter-Am. Ct. H.R.,(ser. C) No. 259 (Nov. 30, 2012).

[16] See, e.g., Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Inter-Am. Ct. H.R., (ser. C) No. 245 ( June 27, 2012); Santo Domingo Massacre v. Colombia, Preliminary Objections, Merits and Reparations, Inter-Am. Ct. H.R.,(ser. C) No. 259 (Nov. 30, 2012); Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 309 (Nov. 25, 2015).

[17] “[T]he Court takes note of the ‘Guiding Principles on Business and Human Rights,’ endorsed by the Human Rights Council of the United Nations, which establish that businesses must respect and protect human rights, as well as prevent, mitigate, and accept responsibility for the adverse human rights effects directly linked to their activities. Hence, as reiterated by these principles, ‘States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.’” Kaliña and Lokono Peoples v. Suriname, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 309, ¶ 224 (Nov. 25, 2015).

[18] See Organization of American States (OAS), General Assembly Res. AG/RES. 2840 (XLIV-O/14), OAS Doc. AG/doc.5452/14 rev. 1(June 4, 2014) (entitled “Promotion and Protection of Human Rights in Business”).

[19] See Organization of American States (OAS) Permanent Council, Rep. on the Inter-American Program for the Dev. of Int’l L., OAS Doc. AG/RES. 2852 (XLIV-O/14), at 40 (2014), http://www.oas.org/en/sla/dil/docs/annual_report_2014_DIL.pdf.

[20] See Inter-Am. Comm’n H.R., Memorandum of understanding between the General Secretariat of the OAS through the Inter-Am. Comm’n H. R. and the Danish Inst. for Hum. Rts. (Mar. 16, 2015), http://www.oas.org/es/cidh/mandato/docs/IACHR-DIHR-2015.pdf.

[21] See Inter-Am. Comm’n H.R., Rep. on the 154th Session of the Inter-Am. Comm’n H.R. (2015), http://www.oas.org/en/iachr/media_center/PReleases/2015/037A.asp.

[22] See Kaliña and Lokono Peoples v. Suriname, supra note 17.

[23] See Press Release, Inter-Am Ct. H.R., Inter-American Court Celebrates 109^th Ordinary Period of Sessions (June 15, 2015), http://www.corteidh.or.cr/docs/comunicados/cp_16_15.pdf.

[24] See Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011); OECD, OECD Guidelines for Multinational Enterprises (2011), and the Voluntary Principles on Security and Human Rights (2000).

[25] For example, one of the most pressing needs is the building of applicable standards for the implementation of development projects. In these cases, the application of principles of business and human rights and international environmental law can be helpful in crafting comprehensive standards. See, e.g., the Precautionary Principle, the Prevention Principle and the Environmental Assessment Principle, Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79; Rio Declaration on Environment and Development U.N. Doc. A/CONF. 151/5 (1992); Ramsar Convention on Wetlands of International Importance, Feb. 2, 1971, 996 U.N.T.S. 245.

[26] Compare Pueblo Bello Massacre v. Colombia, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 113 (Jan. 31, 2006) with Mapiripán Massacre v. Colombia, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 111 (Sept. 15 2005); see also Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Principle 1, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).).

[27] Perozo et al. v. Venezuela, Preliminary Objections, Merits, Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 195, ¶ 298 (Jan. 28, 2009); see also Vargas-Areco v. Paraguay, Inter-Am. Ct. H.R. (ser. C) No. 155, ¶ 73 (Sept.26, 2006)..

[28] Special Representative of the Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Principle 7, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011). (including, inter alia, collaboration in the determination, prevention and mitigation of risks, alongside the assurance of the efficiency of all valid policies, legal regulations and coercive measures to prevent the implication of businesses in grave human rights violations).

[29] Id., Principle 3.

[30] Id., Principle 6.

[31] Compare Mapiripán Massacre v. Colombia, Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 123 (Sept. 15, 2005). with González and others (“Campo Algodonero”) v. Mexico, Inter-Am. Ct. H.R. (ser. C) No. 205, ¶ 280 (Nov. 16, 2009).

[32] Given the strong resistance at the international level to recognize human rights obligations for corporations, this is an indirect avenue that is worth exploring; see also Principle 25 of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework: “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.” Special Representative of the Secretary-General, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011).

[33] ETOs related to corporate activities have been applied under the International Covenant on Economic, Social, and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR); the Convention on the Elimination of All Forms of Discrimination Against Women; the International Convention on the Elimination of Racial Discrimination; and the Convention on the Rights of the Child. See Extraterritorial Obligations (ETOs) for Hum. Rts. Beyond Borders, Maastricht Principles on Extraterritorial Obligations in the area of Economic, Social and Cultural Rights (2013); see also Int’l Network for Econ., Social and Cultural Rts. (ESCR-Net), Global Economy, Global Rights, A practitioners’ guide for interpreting human rights obligations in the global economy (2014); Gwynne Skinner, Robert McCorquodale & Olivier De Schutter, The Third Pillar, Access to Judicial Remedies for Human Rights Violations by Transnational Businesses (Dec., 2013); Ilaşcu and Others v. Moldova and Russia, 2004-VII Eur. Ct. H.R. 1030 (July 8, 2004); Soering v. the United Kingdom, 161 Eur. Ct. H.R. (ser. A) (July 7, 1989).

[34] DPLF and the Human Rights Institute and Education Centre of the Ottawa University have done an interesting work raising this issue in the Americas and particularly, within the Inter-American System. See Due Process of Law Foundation (DPLF), Business and Human Rights, 20 Aportes DPLF (Aug. 2015), http://www.dplf.org/sites/default/files/aportes_20_english_web_nov_10b_1.pdf; Human Rights Institute and Education Centre of Ottawa University, Presentation on Extraterritoriality and Responsibility of Home States in the Protection of Human Rights for the Activities of Extractive Industries in Latin America before the Inter-American Commission, https://cdp-hrc.uottawa.ca/sites/cdp-hrc.uottawa.ca/files/hrrec-_oral_presentation_iachr-_march_17_2015.pdf.

[35] See, e.g., Due Process of Law Foundation (DPLF), The impact of Canadian Mining in Latin America and Canada’s Responsibility: Executive Summary of the Report submitted to the Inter-American Commission on Human Rights (May 2014); Above Ground, Transnational Lawsuits in Canada against extractive companies: Developments in civil litigation, 1997-2016, http://www.aboveground.ngo/wp-content/uploads/2016/02/Cases_Feb2016_LO.pdf.

[36] See Inter-Am. Ct. H.R., Indigenous Communities of the Xingu River Basin, Pará, Brasil, PM-382/10, (Apr. 1 2011).

[37] For more information on this case, see the work of the Interamerican Association for Environmental Defense (AIDA), http://www.aida-americas.org/our-work/human-rights/belo-monte-hydroelectric-dam.

[38] See Folha de São Paulo, Dilma retalia OEA por Belo Monte e suspende recursos, April 30, 2011, available at http://www1.folha.uol.com.br/fsp/mercado/me3004201117.htm.

[39] See O Estado de São Paulo, Brasil não paga OEA por causa de Belo Monte. (Oct. 20, 2011), http://www.estadao.com.br/noticias/impresso,brasil-nao-paga-oea-por-causa-de-belo-monte- ,787892,0.htm

[40] Brazil argued that the Inter-American Commission was interfering with its internal affairs. The Ministry of Foreign Relations on April 5, 2011 publically rejected the resolution as being “unjustifiable” and “rash.” Press Release No. 142, Ministry of Foreign Relations, Brasil considera medidas da OEA sobre Belo Monte “precipitadas e injustificáveis” (Apr. 5, 2011), http://blog.planalto.gov.br/brasil-considera-medidas-da-oea-sobre-belo-monte-precipitadas-einjustificaveis/. For more information, see Report of civil society for the Universal Periodic Review (UPR) Brazil, 2nd Cycle, 13th Session – Human Rights Violations caused by Large Hydropower., http://www.aida-americas.org/sites/default/files/refDocuments/LargeDams_UPR JointSub_Brazil_2nd_Cycle.pdf.

[View PDF version]

By Juan Pablo Calderón-Meza^*

There must be a place where victims can actually pursue justice for atrocities indirectly perpetrated by corporate actors.^[1] Executives, agents, and contractors often play an important role in human rights abuses that can be characterized as atrocity crimes.^[2] Examples of such atrocities include companies relying on the military to summarily execute indigenous leaders opposing extractive projects in their ancestral territories in Nigeria,^[3] oil and security companies working closely with local air forces to raid towns, summarily executing and forcibly displacing civilians in Colombia,^[4] and companies from the automotive industry promoting torture, summary executions, and forced disappearances perpetrated by the dictatorship in Argentina.^[5] The corporations responsible for these atrocities have not yet faced justice. Courts in the “Global South” are generally inadequate for conducting these cases,^[6] while courts in the “Global North,” despite being adequate or convenient, are frequently unwilling to do so.^[7] It is difficult to adjudicate these cases in domestic fora, and international justice must therefore be made available. Given the absence of domestic accountability, this article aims to find a legal basis for creating a new arbitral tribunal to adjudicate cases seeking civil redress for atrocity crimes.

An international tribunal might result from the current State negotiations on a treaty regulating the operation of transnational corporations.^[8] Scholars have proposed an International Court of Civil Justice (“ICCJ”) where victims could seek civil redress unless “the home jurisdiction of the multinational corporation being sued is willing to hear the case and offer the plaintiffs their day in court.”^[9] This would require state consent, however, and Professor Maya Steinitz, the pioneer of this idea, anticipates the realist argument that the United States, home to many powerful corporations, “will not join an ICCJ.”^[10] The same could be said about China and countries of the Global North where transnational corporations are domiciled.^[11] While the ICCJ could obtain jurisdiction from states of the Global South where subsidiaries operate, “[w]hether they could confer jurisdiction on the parent companies of such subsidiaries, however, is a separate question.”^[12]

There are those who think that “there is room for another view: that it is not particularly helpful, either intellectually or operationally, to rely on the subject-object dichotomy that runs through so much of the writings.”^[13] I propose that areas of domestic law in which corporations could theoretically be liable can be enforced through an international forum under arbitral agreements entered by corporations and victims.

In the absence of state consent, a tribunal where victims have access to civil redress for corporate atrocities could find basis in arbitration agreements separately entered into by corporations of the Global North and their victims in the Global South. As a matter of fact, international tribunals have previously justified their competence by invoking arbitral principles giving them the power to decide whether they have jurisdiction to adjudicate.^[14] Indeed, the learned practitioners Claes Cronstedt and Robert Thompson have proposed arbitration as the basis for “an international tribunal on business and human rights,” which “would apply the substantive laws of the jurisdiction(s) selected by agreement of the parties.”^[15] This tribunal “would apply tort/delict principles to cases concerning business involvement in human rights abuses throughout the world, irrespective of the locus of the abuses, the nationalities of those involved or whether the perpetrators are legal or natural persons.”^[16] Scholars have agreed with this model, but contend that “[m]any issues remain.”^[17] This Article will try to address some of these questions.

An initial issue is whether civil redress for atrocity crimes is a “subject matter capable of settlement by arbitration.”^[18] Although criminal liability for atrocities may not be capable of settlement as a matter of public policy,^[19] different jurisdictions concede that settlement is acceptable for torts and civil redress for crimes.^[20]

A second issue is that even if consent from states is irrelevant for arbitration between non-state parties, consent to arbitrate must be expressed by both victims and corporate defendants. Arbitration is “a process that derives its authority directly from the consent of the parties such that any arbitration that occurs outside without such consent is illegitimate and invalid.”^[21] To express consent, corporations could separately execute open-ended offers to the public in order to arbitrate tort claims arising from corporate atrocities. Victims willing to enter into these arbitral agreements would simply attach a copy of that offer to their arbitral complaint, expressing their consent by commencing proceedings. Moreover, in the absence of an arbitral agreement, consent could also be inferred, under some domestic laws, when a defendant does not object to the arbitral jurisdiction in its response to an arbitral application.^[22] If at least one corporate entity has expressed its consent to arbitrate, before or during the arbitration, its parent companies and subsidiaries could also be joined into the arbitration.^[23]

It is worth analyzing, however, why corporations would ever consent to arbitration with victims of atrocity crimes. First, since the goodwill of a company is an important corporate asset,^[24] some corporations may want to defend themselves from naming and shaming campaigns against them. They may want to rebut victims’ accusations before a court of law, and arbitration would enable them to furnish evidence and implead direct perpetrators. Second, some corporations may want to bring different suppliers, subcontractors, or other liable parties into the arbitration commenced by the victims.^[25] Third, corporations might want to avoid the risk of having to pay punitive damages awarded by U.S. Courts^[26] and might prefer to enter into arbitral agreements limiting their liability to the maximum amount of damages awarded under the laws of the country where the atrocities took place. Fourth, by entering into the proposed open-ended arbitral offers, corporations would be providing “grievance mechanisms” as required by the Guiding Principles on Business and Human Rights,^[27] as long as the arbitration proceedings can be characterized as “legitimate,” “accessible,” “predictable,” “equitable,” “transparent,” “rights-compatible,” “a source of continuous learning,” and “based on engagement and dialogue.”^[28] The arbitral tribunal could accomplish this by holding hearings in places reachable to the victims and through arbitral rules jointly drafted by representatives of civil society and corporations. Last but not least, the confidentiality of arbitral proceedings may be another incentive for companies to consent to arbitration seeking civil redress for atrocity crimes.

At any rate, even in the absence of an arbitral agreement with the victims, victims can consider alternative approaches. Arbitral agreements included in contracts among corporations can serve as basis for the victims to join into “second-tier” arbitration.^[29] If such contracts have obligations for any of the corporations to comply generally with local laws or other general provisions recognizing rights to the victims, victims could act as third-party beneficiaries.^[30]

It is also worth analyzing the reasons why victims would want to enter into arbitral agreements or commence arbitrations under open-ended offers executed by corporations. Victims lacking any forum to pursue justice against state or non-state actors have an obvious incentive. Moreover, the possibility of enforcing an arbitral award in nearly every country in the world is also a compelling reason to prefer an arbitral award over a domestic judgment.^[31] Another incentive is the fact that by having consent from just one company, the arbitral agreement is also binding on parent companies and other corporations under a doctrine that allows the extension of arbitral agreements to non-signatories.^[32]

We must not overlook, however, some disincentives that victims may find in arbitration. First, arbitration may be perceived with distrust since it is used by corporations for commercial and investment matters. A preliminary solution could be that a commission of companies and victims’ representatives from the civil society draft rules tailored for this type of dispute.^[33] Another shortcoming of arbitration is that the party who loses the case has to reimburse the arbitration fees and expenses paid by the opposing party. However, third-party funding may be available for impecunious parties, such as victims of atrocity crimes, and this tribunal could secure funds to cover any expenses of the victims as well as the arbitration fees.^[34] Third, the lack of appellate review of the arbitrators’ interlocutory decisions and of the award itself may create a clear disincentive. Then again, this can be changed by agreement, since new arbitration rules have included the possibility for appellate review at the behest of the parties.^[35] Finally, while confidentiality of arbitration may be an incentive for corporations, it might be a disincentive for the victims and civil society in general. As a solution, the parties may agree to public arbitral proceedings, thereby contributing to truth and reconciliation in places where atrocity crimes were perpetrated.

The discussion about this novel idea is just beginning. Whether to start obtaining consent from companies or working on rules for this tribunal is a chicken-and-egg problem. There is no doubt that a new forum will be another “important step in the fulfillment of the ageless dream to free all people from brutal violence.”^[36] The next step in bringing corporations to justice needs to be taken, whether at the state level in a country like Colombia^[37] or in a larger region such as Latin America or Southeast Asia.

* Juan Pablo Calderón-Meza is the Eleanor Roosevelt Visiting Fellow of the Human Rights Program of Harvard Law School. He is a Colombian human rights attorney whose practice specializes in international human rights advocacy and litigation with a particular focus on corporate accountability. He clerked for the Hon. Judges Rowan Downing and Chang-Ho Chung at the United Nations Assistance to the Khmer Rouge Trials in Cambodia. He has also worked with EarthRights International as a fellow and currently assists them in Alien Tort Statute litigation and different submissions at both the Inter-American Court and Commission on Human Rights. He has also counseled the Colombian branch of the International Campaign to Ban Landmines and was a lecturer of civil and international law in Bogota and Phnom Penh. Juan holds an International Human Rights LL.M. (Honors) from the Northwestern University Pritzker School of Law and continues to assist the Bluhm Legal Clinic of this School with different submissions at the UN Human Rights Committee, the Inter-American Commission on Human Rights, and the Inter-American Court of Human Rights. The author wishes to thank the memomory of his mother, Doris Meza, who was the inspiration for this research and recently passed away.

[1] This Article is part of a wider research about the possibility of creating a new international tribunal on business and human rights as well as the possibility of expanding the personal and subject-matter jurisdiction of the existing international tribunals to conduct cases on business and human rights.

[2] See, e.g., Press Release, U.N. Office of the High Comm’r on Hum. Rts., Argentina dictatorship: UN experts back creation of commission on role business people played (Nov. 10, 2015), http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16733&LangID=E (last visited Apr. 18, 2016) (citing human rights expert statement that “[e]conomic factors often play a key role in situations where massive and systemic human rights violations are committed, both as incentives and as enabling conditions. However the role of economic players who contributed, benefitted or directly took part in systematic international crimes is often overlooked.”). See also David Scheffer, Genocide and Atrocity Crimes, 1 Genocide Studies and Prevention: An International Journal 229, 230 (2006), http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1228&context=gsp (last visited Feb. 6, 2016) (“[W]e need to go even further and describe as ‘‘atrocity crimes’’ a grouping of crimes that includes genocide but is not confined to that particular crime.”)

[3] See Kiobel v. Royal Dutch Petro. Co., 133 S. Ct. 1659, 1662−63 (2013).

[4] See Mujica v. AirScan Inc., 771 F.3d 580 (9th Cir. 2014). The plaintiffs in Mujica alleged that in 1999, Occidental Petroleum Company and its security contractor, AirScan Inc., liaised with the military to raid the Colombian hamlet Santo Domingo. As a result, 17 civilians died, including six children, 25 others were seriously injured, and all survivors left their hometown in Santo Domingo. Id. at 584−85.

[5] See DaimlerChrysler AG v. Bauman, 134 S. Ct. 746 (2014). Plaintiffs alleged that the defendant’s subsidiary, Mercedes Benz Argentina, supported the Argentinean Dictatorship during the Dirty War, from 1976 through 1983. Id. Plaintiffs were kidnaped, detained, tortured, and some of them killed in Mercedes Benz Argentina’s plant, located in Gonzalez Catan, Argentina. Id. at 751−52. They brought their claims under the Alien Tort Statute and the Torture Victim Protection Act seeking to hold Daimler liable under a theory of vicarious liability. Id.

[6] See, e.g., Columbia Law School Human Rights Clinic and Harvard Law School International Human Rights Clinic, Righting Wrongs? Barrick Gold’s Remedy Mechanism for Sexual Violence in Papua New Guinea: Key Concerns and Lessons Learned 2 (2015) , (“Significant barriers to remedy and justice in Porgera result from PNG’s weak judicial system, limited local governance, the involvement of local police themselves in a range of abuses, the remote location of the mine, and myriad structural disadvantages (including poverty and illiteracy) faced by local communities and individual rights-holders.”). See also Decl. of Federico Andrés Paulo Andreu Guzman, submitted as Ex. 9 to the Decl. of Marco Simons, In Re Chiquita Brands International, Inc., Plaintiffs’ Memorandum of Law in Opposition to Defendant Chiquita’s Motion to Dismiss Under Federal Rule of Civil Procedure 12(B)(6) and for Forum Non Conveniens, (June 26, 2015) [“Plaintiffs Memorandum on Chiquita’s FNC Motion”]; and Decl. of Senator Claudia López, submitted as Exhibit 4 to the Decl. of Marco Simons, In Re Chiquita Brands International, Inc., Plaintiffs Memorandum on Chiquita’s FNC Motion (on file with author).

[7] See, e.g., Daimler v. Bauman, 134 S. Ct. 746 (2014); Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Cardona et al. v. Chiquita, 760 F.3d 1185 (11th Cir. 2014). See also Business & Human Rights Resource Centre, Corporate Legal Accountability Annual Briefing 1 (Jan. 2015), http://business-humanrights.org/sites/default/files/documents/BHRRC-Corp-Legal-Acc-Annual-Briefing-Jan-2015-FINAL%20REV.pdf (last visited: Feb. 6, 2016). (“Existing venues for extraterritorial claims are closing, and governments of countries where multinationals are headquartered do not provide sufficient access to judicial remedy for their companies’ abuses.”).

[8] See U.N. General Assembly, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, A/HRC/26/L.22/Rev.1 (June 24, 2014), https://documents-dds-ny.un.org/doc/UNDOC/LTD/G14/064/48/PDF/G1406448.pdf? OpenElement; U.N. General Assembly, Human rights and transnational corporations and other business enterprises, A/HRC/26/L.1 (June 23, 2014), https://documents-dds-ny.un.org/doc/UNDOC/LTD/ G14/062/40/PDF/ G1406240.pdf?OpenElement.

[9] Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75, 82 (Dec. 2, 2014), http://www.stanfordlawreview.org/sites/default/files/online/articles/67_Stan_L_Rev_ Online_75_Steinitz.pdf.

[10] Id. at 80.

[11] The general rule under private international law is that jurisdiction is vested to courts where (i) the defendants are domiciled, (ii) the assets in controversy are located, forum rei, or (iii) the wrongdoings took place, forum delicti. See Joseph Story, Jurisdiction and Remedies, in Commentaries on the Conflict of Laws, Foreign and Domestic 909, ¶ 537 (1834).

[12] Douglass Cassel & Anita Ramasastry, Options for a Treaty on Business and Human Rights, 6 Notre Dame J. Int’l & Comp. L. i, 32 (2015), http://scholarship.law.nd.edu/ndjicl/vol6/iss1/1/ (last visited: Feb. 6, 2016).

[13] Rosalyn Higgins, Problems and Process: Int’l Law and How We Use It 50 (Oxford Scholarly Authorities on Int’l Law, 1994).

[14] See, e.g., Prosecutor v. Tadić, Case No. IT-94-1, Decision on the Defence Motion For Interlocutory Appeal on Jurisdiction ¶ 18 (Int’l Crim. Trib for the Former Yugoslavia, Oct. 2, 1995) (ruling on its own jurisdiction on the basis of the Kompetenz-Kompetenz principle). See also Nottebohm, Lichtenstein v. Guatemala, Judgment, 1953 I.C.J. 111, 118−19 (Nov. 18) (applying the Kompetenz-Kompetenz principle to dismiss a preliminary objection raised by Guatemala against the court’s jurisdiction).

[15] Claes Cronstedt, et al., An International Arbitration Tribunal on Business and Human Rights, Bus. & Hum. Rts. Resource Ctr. 7 (June 23, 2014), http://business-humanrights.org/en/pdf-an-international-arbitration-tribunal-on-business-human-rights-reshaping-the-judiciary-version-three (last visited: Feb. 6, 2016).

[16] Id. at 3−4.

[17] Cassel & Ramasastry, supra note 12, at 34. (“For example: How would the tribunal be funded? How would victims’ litigation costs be funded? In view of the controversial track record of investor-state arbitration in matters affecting human rights, would victims and their advocates be willing to use even a tribunal where they would have standing? How would arbitrators be found with the necessary expertise, credibility and objectivity in matters of business and human rights, particularly with respect to the specific concerns of communities and populations affected by corporate conduct? How public would be the arbitral proceedings and awards?”).

[18] Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. 2, June 10, 1958, 330 U.N.T.S. 38 [“New York Convention”], http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf.

[19] See id. art. V(2)(b) (“Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: . . . The recognition or enforcement of the award would be contrary to the public policy of that country.”).

[20] See, e.g., Francis McGovern, Settlement of Mass Torts in a Federal System, 36 Wake Forest L. Rev. 871, 887−88 (2001) (concluding that settlement of mass torts can be problematic but possible), http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1365&context=faculty_scholarship (last visited: Feb. 6, 2016); Civil Code (1873), art. 2472 (Colom.), http://www.secretariasenado.gov.co/senado/ basedoc/codigo_civil_pr077.html#2472 (“settlements may address a civil action arising from a crime with no prejudice to the [related] criminal action.”). See also Eduardo Zuleta, El arbitraje en razón de la materia: El arbitraje y la responsabilidad civil extractontractual, El Contrato de Arbitraje 221 (2005).

[21] Jaime Dodge Byrnes & Elizabeth Pollman, Arbitration, Consent and Contractual Theory: The Implications of EEOC v. Waffle House, 8 Harv. Negot. L. Rev. 289, 297−98 (2003).

[22] See, e.g., Law 1563 of 2012, July 12, 2012, D.O. 48489 (Colom.), art. 3, http://www.alcaldiabogota.gov.co/sisjur/normas/Norma1.jsp?i=48366 (“If during the period to respond [i] the complaint, [ii] its reply or [iii] any preliminary objections, a party claims existence of an arbitration agreement and the other [party] does not expressly disclaim it, be it before judges or and arbitral tribunal, the existence of the arbitration agreement is validly proven.”).

[23] See, e.g., Thompson-CSF v. American Arbitration Association & Sutherland Computer Corporation, 64 F.3d 773, 776 (2d. Cir. 1994) (describing “five theories for binding nonsignatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.”). See also Fisser v. International Bank, 282 F. 231, 233 (2d Cir. 1960) (on the possibility of extending the arbitral agreement to non-signatories).

[24] Claes Cronstedt, supra note 15, at n. 22 (“When Warren Buffet took over as an interim chairman of Salomon Brothers after the Treasury auction scandal in New York in 1991 he told the assembled personnel: ‘Lose money for the firm, I will be very understanding; lose a shred of reputation for the firm, I will be ruthless.’”).

[25] See Roger P. Alford, Arbitrating Human Rights, 83 Notre Dame L. Rev. 505, 527 (2008).

[26] See, e.g., Grimshaw v. Ford Motor Co., 119 Cal. App. 3d. 757.

[27] U.N. Human Rights Council, Guiding Principles on Business and Human Rights, HR/PUB/11/04, Principle 29 (2011), http://www.ohchr.org/Documents/Publications/ GuidingPrinciplesBusinessHR_EN.pdf (last visited: Feb. 6, 2016) (“To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”).

[28] Id., Principle 31.

[29] See Alford, supra note 25, at 527.

[30] See, e.g., Robinson Brog Leinwand Greene Genovese & Gluck P.C. v. John M. O’Quinn & Assocs., L.L.P., 523 Fed. App’x 761, 763 (2nd Cir. 2013), citing Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2nd Cir. 1999) (“[W]hen a non-signatory plaintiff seeks the benefits of a contract that contains an arbitration provision, it is estopped from ‘denying its obligation to arbitrate.’”).

[31] 153 countries are parties to the New York Convention. See New York Arbitration Convention, Contracting States, http://www.newyorkconvention.org/contracting-states/list-of-contracting-states (last visited: Feb. 6, 2016).

[32] See, e.g., Thomson-CSF, supra note 23, at 776. See also Fisser v. International Bank, 282 F.2d 231, 234 (2d Cir. 1960) (on the possibility of extending the arbitral agreement to non-signatories).

[33] Some domestic laws, for instance, allow arbitration centers to design their own procedural rules. See, e.g., Decree 1829 of 2013, Aug. 27, 2013, D.O. 48895, arts. 7, 8 (Colom.), http://www.minjusticia.gov.co /Portals/0/Normatividad/Funcional/Decretos/DECRETO%201829%2027-08-2013.pdf.

[34] See William Kirtley and Koralie Wietrzykowski, Should an Arbitral Tribunal Order Security for Costs When an Impecunious Claimant Is Relying upon Third-Party Funding?, 30 J. of Int’l Arb. 18 (2013), citing Third-Party Funding: Snapshots from around the Globe, 7 Global Arb. Rev. 5 (2012), http://globalarbitrationreview.com/journal/ article/30371/third-party-funding-snapshots-around-globe. (“IMF (Australia) Ltd is prepared to fund international commercial arbitration and investment treaty claims including those administered on an ad hoc basis and by the principal arbitral institutions (ICC, AAA/ICDR, LCIA, HKIAC, SIAC, ACICA and ICSID) with a claim value in excess of AUD$10 million. IMF offers . . . payment of any adverse costs and provision of security for costs.”). See also Commercial Dispute Resolution, Q4, Issue 2, 16 (2010) (“Harbour is a leading UK funder of commercial litigation. Harbour provides non-recourse, risk-free funding, paid on an on-going basis, throughout the life of the case, for all, or any, of the following: . . . security for costs, including payments into court . . . Harbour will consider funding for any case with a claim value above £3 million.”).

[35] See, e.g., American Arbitration Association, Optional Appellate Arbitration Rules.

[36] Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

[37] See, e.g., Permanent Peoples’ Tribunal, Sentencia, ¶ 5.3.2 (July 21−23, 2008), http://www.colectivodeabogados.org/?DICTAMEN-FINAL-AUDIENCIA-TRIBUNAL (finding these corporations liable for human rights abuses in Colombia: “Coca Cola, Nestlé, Chiquita Brands, Drummond, Cemex, Holcim, Muriel mining corporation, Glencore-Xtrata, Anglo American, Bhp Billington, Anglo Gold Ashanti, Kedhada, Smurfit Kapa – Cartón de Colombia, Pizano S.A. y su filial Maderas del Darién, Urapalma S.A., Monsanto, Dyncorp, Multifruit S.A. filial de la transnaciona Del Monte, Occidental Petroleum Corporation, British Petroleum, Repsol YPF, Unión Fenosa, Endesa, Aguas de Barcelona, Telefónica, Canal Isabel II, Canal de Suez, Ecopetrol, Petrominerales, Gran Tierra Energy, Brisa S.A., Empresas Públicas de Medellín, B2 Gold—cobre y oro de Colombia S.A”). See also Permanent Peoples’ Tribunal, The European Union and Transnational Corporations in Latin America (2010), http://www.enlazandoalternativas.org/IMG/pdf/TPP-verdict.pdf.

[View PDF version]

By Maya Steinitz^*

The editors of this online symposium invited me to contribute to the subject of an argument I have recently advanced. This argument is that the world needs a permanent International Court of Civil Justice (ICCJ) to adjudicate cross-border mass torts.^[1] A common reaction to this proposal has been to suggest that the function of such an international court be assumed by one of the existing arbitration institutions or filled by a new one.^[2] I’d like to take this opportunity to argue against that idea.

Corporate atrocities, which are the symposium’s focus, may be crimes, but they also have a tort dimension. If corporations, for example, aid and abet the Argentine state torture apparatus or the Nigerian paramilitary campaign against protesters, they are also engaged in the torts of, respectively, battery and wrongful death.^[3] The crime-tort connection in this context in particular provides an opportunity to reflect on why the resolution of corporate international mass torts should be the province of public rather than private adjudication.^[4]

The basic argument in favor of the public adjudication of mass torts is a simple one, anchored in basic notions of democratic legitimacy.^[5] The adjudication of corporate atrocity torts involves not only the resolution of liability between two private parties but also the public interest in punishing and deterring such torts. The adjudicators of such disputes determine not only extremely high-stakes disputes between classes of victims and corporations, but they also provide persuasive interpretations of the law and, to the extent their decisions are regarded as having any precedential effect (even if only within the arbitral institution), they make the law as well. The fora in which such law-making and interpretation occur, therefore, fulfill the public function of law development as well as the enforcement of public law.

It is difficult to think of a persuasive theory of democratic legitimacy that can support the notion that these functions should be entrusted in the hands of the invisible college of international arbitrators^[6] (also referred to sometimes as the international arbitration “mafia”),^[7] which is comprised predominantly of litigators in prominent corporate law firms^[8] and which is largely devoid of popular participation, public accountability, and electoral supervision. In other words, the call to privatize the public function of adjudicating corporate atrocity torts is a call to entrust it to the private hands of attorneys who compete for work provided by the pool of potential defendants in international corporate atrocity tort cases and who are (properly) immersed in the ethics of private practice and private gain rather than the ethos of public service. The suggested system will also ensure that adjudicators will be drawn exclusively from within the ranks of the richest members of world society.

An example of the democratic legitimacy problems of private arbitration of corporate atrocity torts is the notoriously unrepresentative nature of the invisible college of international arbitrators:

“In 249 known investment treaty cases until May 2010… just 6.5% of all appointments [were of women]. Worse, of the 247 individuals appointed as arbitrators across all cases, only 10 were women. Women thus comprised 4% of those serving as arbitrators. . . The story is also almost entirely that of two women. . . who together captured 75% of appointments of women… [In contrast], women made up 32% of European Court of Human Rights appointees. . . and 19% of Appellate Body members. . . in WTO history. Incidentally, on a perusal of the data, the system’s record on racial and regional representation also appears poor.”^[9]

In contrast to the opaque and unaccountable process for appointing arbitrators, basic notions of democracy, legitimacy, and justice demand that private attorneys exercising the public function of judges submit to a basic set of checks and balances. For example, their selection to any given panel should be conducted via a public deliberative process, not unlike the appointment of federal judges. Candidates should be required to allow the public, including journalists and NGOs, to scrutinize their list of current and past clients and matters to ferret out conflicts and generally to carry out the functions of the Fourth Estate vis-à-vis courts of law. Such arbitrators should also be required to disclose their assets and their financial and other ties. Their communications with respect to their public function should be discoverable via FOIA-like^[10] procedure. They should be required to make their public arbitration proceedings a top priority so as not to delay justice; private engagement should take a back seat. They should also be required to attend relevant trainings and engage in public outreach to the same extent as does the judiciary. It is hard to see how adjudication of public disputes can comply with basic notions of fairness, justice, and legitimacy without such measures. Private parties can, in their contracts, opt out of such protections ex ante. But victims of crimes and torts should not be forced to forgo them ex post. It is, of course, difficult to envision private practitioners submitting themselves and their firms to such measures of transparency and accountability. Simply stated, the private sector is not set up (nor should it be) to fulfill the public function of adjudicating public law disputes.^[11]

The forgoing arguments in favor of adjudication, rather than arbitration, of corporate atrocity torts can be further bolstered by pointing out the public policies behind the core features of the American tort system, which provides a constitutionally enshrined right to a jury trial, extensive truth-finding via discovery, and punitive damages both as a deterrent to would-be tortfeasors and as an incentive for private enforcement of the law.^[12] All these would be forgone if corporate atrocity torts were channeled into arbitration.^[13]

The inescapable conclusion is that, despite the well-documented problems characteristic of international courts,^[14] such courts, just like our flawed domestic court system, remain the most defensible way forward for international mass tort litigation arising from corporate atrocity crimes.

* Maya Steinitz is a Professor of Law at the University of Iowa College of Law, an international arbitrator, and a Member of the Court of the Israeli-Palestinian Jerusalem Arbitration Center. I thank Mark Osiel, Nathan Miller, Paul Gowder, Christopher Drahozal and Juan Calderon-Meza for their comments and to Becky Elliot and Nick Schnell for their research assistance. I also thank Gary Born and Garth Schofield for stimulating conversations on this topic.

[1] See generally Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75 (Dec. 2014) which previews a book by the same name (forthcoming, Cambridge University Press) (presenting both justice-based, and economics-based arguments in favor of an ICCJ as well as a procedural and institutional blueprint for a fair, legitimate, and efficient process for both victims and corporations).

[2] This idea is also reflected in the introductory essay to this symposium, Juan Pablo Calderón-Meza et al., An International Jurisdiction for Corporate Atrocity Crimes, 57 Harv. Int’l L.J. (Online Symposium) 1 (2016). An example of this arbitration-expansionist view can be found in Sebastian Perry, Kiev: BITs, BATs and Buts, 8 Global Arb. Rev. (Jan. 28, 2013) (recounting a speech by Gary Born).

[3] See generally Roger P. Alford, The Future of Human Rights Litigation After Kiobel, 89 Notre Dame L. Rev. 1749, 1751–52 (2014); Nathan J. Miller, Human Rights Abuses as Tort Harms: Losses in Translation, 46 Seton Hall L. Rev. 505 (2016).,itigatioion.orated and deterrin(chicago nocity torts,on)Framework of Analysis,n consumer contracts thusincororated and deterrin

[4] For a comprehensive analysis of mass atrocity accountability mechanisms see Mark J. Osiel, After Atrocity: New Approaches to the Restraint and Redress of Mass Killing (forthcoming).

[5] See, e.g., M. Kumm, The Legitimacy of International Law: A Constitutionalist Framework of Analysis, 15 EJIL 907 (2004). See also, generally, Thomas M. Franck, Fairness in International Law and Institutions, (1998). Similar arguments—which apply a fortiori to mass torts that accompanying atrocity crimes—are part of the growing discourse of discontent ,hould also be required toOrder (chicago nocity torts,on)Framework of Analysis,n consumer contracts thusincororated and deterrinsurrounding the privatization of the adjudication of other public disputes: investment disputes. See e.g, EU Calls for Global Investment Court, Financial Times (May 5, 2015); Elizabeth Warren, The Trans-Pacific Partnership Clause Everyone Should Oppose, Wash. Post (February 25, 2015); Gus Van Harten, Investment Treaty Arbitration and Public Law 5 (Vaughan Lowe ed., 2007).

[6] I am alluding to Oscar Schachter’s famous identification of an ‘invisible college of international lawyers.’ See Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. Rev. 217 (1977). See also, Santiago Villalpando, The ‘Invisible College of International Lawyers’ Forty Years Later, (ESIL 2013 5th Research Forum: International Law as a Profession Conference Paper No 5/2013), http://ssrn.com/abstract=2363640.

[7] Garth & Dezelay, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (1996).

[8] Id. at 34–41 (discussing how “Grand Old Men” of arbitration—European men based in academia—were increasingly supplanted by “young technocrats”—mostly-male, mostly-white American mega-firm partners).

[9] See, e.g., Gus van Harten, The (Lack of) Women Arbitrators in Investment Treaty Arbitration, 59 Columbia FDI Perspectives (Feb. 6, 2012). See also Julianne Hughes-Jennett & Rashida Abdulai, Barriers to Entry—the Lack of Diversity in International Arbitration, Lexis PSL Arbitration (2015) (“There is similarly a lack of ethnic diversity in international arbitration: despite 32.3% of the parties to the International Chamber of Commerce (ICC) arbitration in 2013 being from Africa, Asia and the Pacific, less than 15% of the arbitrators appointed in 2013 were from these geographical regions.”). While China and India comprise 33% of the world’s population and 30.4% of global GDP, they represent less than 3% of arbitrators. Id. Africa represents only 0.4%. Id. Meanwhile, Europe (representing 10.37% of the world’s population but 48.2% of the arbitrators) and the United States and Canada (representing 4.93% of the world’s population but 27.9% of the ICCA arbitrators) are overrepresented. Id. There is also a lack of socioeconomic diversity. Id. at 462 (“none of the ICCA subjects were arbitrators or counsel from Low Income states.”). The public sector, by comparison, has done better. Several European countries have more than 50% female judiciaries. Id. Women represent 40% of judicial positions in Germany and 33% in Canada. Id. 39% of United States federal judgeships are occupied by women. See Philip Rucker, Obama Pushing to Diversify Federal Judiciary Amid GOP Delays, Wash. Post (Mar. 3, 2013).

[10] Freedom of Information Act, 5 U.S.C. § 552.

[11] Whether tort law is private, as traditionally viewed, or public, as many contemporary jurists hold, is a matter of some debate. See, e.g., Benhamin C. Zipursky, Palsgraf, Punitive Damages, and Preemption, 125 Harv. L. Rev. 1757, 1771 (2012) (“state tort law today ha[s] actually taken on a compound nature, often blending private law and public law features).

[12] For a review of the evolution of the American mass tort system and the policy considerations underlying its various features see John Coffee, Entrepreneurial Litigation: Its Rise, Fall and Future 95–118 (2016).

[13] Indeed, arbitration has increasingly—and in the face of great political resistance—been used precisely in this way by a U.S. Supreme Court intent on sending entire categories of cases away from courts, judges, and juries into domestic arbitration. However, even the U.S. Supreme Court has not forced the kind of tort cases contemplated herein into arbitration. See the recent New York Times series of articles on the the rise and misuse of domestic arbitration. See Adam Liptak, Supreme Court Allows Contracts That Prohibit Class-Action Arbitration, NY Times (April 27, 2011); Jessica Silver-Greenberg & Robert Gebeloff, Arbitration Everywhere, Stacking the Deck of Justice, NY Times (Oct. 31, 2015); Michael Corkery & Jessica Silver-Greenberg, In Religious Arbitration, Scripture is the Rule of Law, N.Y. Times, (Nov. 2, 2015).

[14] See generally S. Gozie Ogbodo, An Overview of the Challenges Facing the International Court of Justice in the 21st Century, 18 Ann. Surv. of Int’l and Comp. L. 93 (2012) (arguing the court is ill-equipped to handle international disputes in the 21st century); Michelle Kwon, The Inefficiency of International Justice, Geo. J. Int’l Aff. Blog (Apr. 18, 2012), http:// journal.georgetown.edu/2012/04/18/the-inefficiency-of-international-justice-by-michelle-kwon/ (discussing the failures of post-war, international tribunals); Stuart Ford, Complexity and Efficiency at International Criminal Courts, 29 Emory Int’l L. Rev. 1 (2014) (asserting that international criminal tribunals are not cost or time-efficient).

[View PDF version]

By Claes Cronstedt^*  and Robert C. Thompson^**

The world has suffered in the last half-century an endless avalanche of repetitious and overlapping rules, cascading from UN conferences and commissions and conventions. It is time to enforce a few of them, with the help of international tribunals sufficiently learned and independent to be accredited with judicial wisdom.
Geoffrey Robertson QC^[1]

In the latter part of the twentieth century, globalization gathered momentum and increasingly states became unable to efficiently regulate the growing cross border trade and flow of capital and investment and the accompanying behavior of multinational business enterprises (MNEs) and their supply chains. This created a governance gap that left victims of business-related human rights abuses without access to effective remedies.^[2] The present system of legal remedies is patchy, unpredictable, and ineffective. The national courts are often politically influenced or swayed by corruption. Hence, the system is failing victims who are unable to access effective remedies for the abuses they have suffered. And it is failing many MNEs as well, which often are operating in environments of great legal uncertainty and where participants are not competing on anything even close to a level playing field.

There is a historical parallel to which we can turn. Let’s go back to the medieval city-states in Europe, where the merchants traded across borders. The merchants were organized into guilds, often with considerable power. Their trade practices developed out of the needs of the market and created norms through custom. These norms were Lex Mercatoria, the “Law Merchant.” The merchants had their own courts of arbitration and elected their own judges. Using high moral standards, these courts swiftly settled disputes. A merchant who violated these norms or refused to obey an arbitral decision could find that other merchants would not do business with him. Ultimately these practices crystallized into different national laws during the 19th century, and Lex Mercatoria faded away.

To be successful, businesses today must have good relations with other stakeholders in society. In order to address the widespread governance gap that we have witnessed since globalisation has gained traction and created global markets, we see the emergence of a set of private transnational norms and rules outside national laws. This has come to be called “New Lex Mercatoria.”^[3] It is comprised of initiatives, such as the ones covering the entire scope of corporate social responsibility (CSR)—for example, the UN Global Compact, the ISO 26000 guidance standard on social responsibility and the Global Reporting Initiative (G4), and certain specific sector initiatives such as the Kimberly Process Initiative (conflict diamonds), the Extractive Industries Transparency Initiative, and the Equator Principles (environmental and social risk management for project finance).

These initiatives represent examples of collective self-regulation, norms, or soft laws that have been established after pressure from society at large and are now growing worldwide with minimal intervention by national politics. This development is very encouraging. However, when corporate human rights abuses occur, there is still no effective access to justice for the victims.

We are therefore proposing that the reach of existing international arbitration rules and institutions be broadened to include human rights disputes involving MNEs, their business partners, and victims of abuses.^[4] This is an area heretofore largely untouched by arbitration. The first step would be for a team of experts in international and human rights law that represents diverse stakeholders to evaluate existing international arbitration and mediation rules, such as UNCITRAL’s recently adopted rules that make arbitration transparent to the public.^[5] They would be asked to determine whether any changes need to be made to ensure that the particular needs of parties in business and human rights matters can be accommodated by them—and if not, to draft appropriate changes. The resulting rules would be administered by one of the most highly regarded arbitral institutions, which would maintain rosters of arbitrators and mediators with recognized expertise in human rights matters. We refer to this new arrangement as “the International Arbitration Tribunal on Business and Human Rights” or “the Tribunal.”

International arbitration under the auspices of the Tribunal would offer these features:

• Instead of proceedings in overloaded courts which often take five to ten years to reach a decision, the Tribunal could significantly shorten the time (and cost) for resolving a dispute.
• Instead of having to submit to judges chosen by “the luck of the draw” in national courts, the parties could choose arbitrators who are independent, impartial, and have high levels of expertise related to human rights disputes.
• The Tribunal would make available skilled mediators specialized in assisting in the resolution of human rights conflicts at an early stage, which would avoid escalation in legal disputes and reduce legal costs.
• Hearings could take place virtually anywhere in the world and even online.
• Legal development on business and human rights would be enhanced over time through the publication of a body of reasoned arbitration decisions.
• Instead of being dependent on existing complex and frail mechanisms for enforcing court judgements, international arbitral awards could benefit from existing mechanisms for enforcement, including the 1958 UN Convention on Recognition and Enforcement of Foreign Arbitral Awards, to which 156 states have acceded.

Arbitration requires the consent of all parties to a dispute. Consent can be obtained in various ways: In the absence of an arbitration agreement signed in advance of the occurrence of a dispute, the parties could choose arbitration rather than a court, owing to the advantages that arbitration offers. If a dispute arises where the victims have no access to a court, an MNE might feel that even in spite of its legal immunity it should voluntarily submit to binding arbitration, motivated, positively, by its sense of corporate social responsibility or, more defensively, by a fear that its refusal to cooperate in a solution could boost negative reactions from the society at large. Moreover, companies that do not agree to refer human rights disputes to the Tribunal may find it difficult to compete in public procurement or to be included in World Bank finance programs. Sooner or later, such outsiders will not be welcome as business partners.

Additionally, MNEs that have an interest in seeing their business partners and supply chains free from human rights abuses could insert human rights clauses into their supply and other contracts along with a so-called “escalation clause” whereby the parties agree to a process for resolving disputes. This process begins with direct negotiations, to be followed by mediation and then, if that does not work, by arbitration. The Tribunal could be named as the provider of both mediation and arbitration services. This arrangement would be a strong incentive for business partners and suppliers to live up to their commitments.

Furthermore, lending to or investing in an MNE that becomes linked to human rights abuses involves the risk that the loan or investment could suffer from any resulting economic impacts on the enterprise. Thus, lenders and investors could add to their lending criteria a requirement that their supply chain and other contracts include human rights and arbitration clauses. Such contracts could even allow potential victims, as third party beneficiaries, to initiate or join the proceedings. Or public agencies that have human rights responsibilities could insist that MNEs utilize such an approach, either as a condition of doing business within the agencies’ jurisdictions or in return for any governmental authorization or assistance.

Arbitration under the auspices of the Tribunal would complement the work of other stakeholders in the effort to improve access to justice. For example, the Tribunal could be an avenue for MNEs to implement their responsibilities under the UN Guiding Principles on Business and Human Rights to “prevent,” “mitigate” and “remediate” their adverse human rights impacts and also help to fulfill the need for remedy expressed in the Principles. Also, the OECD National Contact Points, whose role is to urge parties to settle their disputes informally, could recommend that the parties submit cases that do not settle to the Tribunal for arbitration. Additionally, the Tribunal could be referenced in future versions of the Equator Principles.

The Tribunal proposal has attracted international interest and positive responses. NGOs argue that the Tribunal should be tailored to the specific needs of victims of business-related human rights abuses. The business responses indicate a favorable view of arbitration as a potential fast lane for dispute resolution and a way to level the corporate playing field by reducing the use of human rights abuses as a form of unfair competition.

In the growing movement for access to justice, the Tribunal would operate on a parallel or complementary track with the court systems. It would become one of the most effective avenues to rid the world of abuses.

* Claes Cronstedt is a member of the Swedish bar and a former international partner of Baker & McKenzie.

** Robert C. Thompson (Harvard AB 1962, LLB 1967) is a member of the California bar, a former Associate General Counsel of the U.S. Environmental Protection Agency and a former partner of LeBoeuf, Lamb, Greene & MacRae LLP.

[1] Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice xviii (2000).

[2] John Gerard Ruggie: “…how to close the gaps between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. Among other effects, these governance gaps, as I call them, provide the permissive environment for wrongful acts by companies without adequate sanctioning or reparation. How to narrow and ultimately bridge such governance gaps in relation to human rights is the focus of my work.” (Testimony at UN General Assembly, 27 October 2008)

[3] John Gerard Ruggie & John F. Sherman III, Adding Human Rights Punch to the New Lex Mercatoria: The Impact of the UN Guiding Principles on Business and Human Rights on Commercial Legal Practice (September 8, 2015), http://ssrn.com/abstract=2657885.

[4] Claes Cronstedt & Robert C. Thompson, An International Arbitration Tribunal on Business and Human Rights – Version 5 (Apr. 14, 2015), http://www.l4bb.org/news/TribunalV5B.pdf.

[5] UNCITRAL Arbitration Rules, United Nations Commission on International Trade Law, http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2010Arbitration_rules.html (last visited Apr. 28, 2016)

[View PDF version]

By Angel Gabriel Cabrera Silva^*

The pursuit of morally driven concepts of justice may find a constant struggle to navigate through the maze of institutional arrangements, procedures, political objectives, and techniques of international law. In order to exert an effective influence over social problems, the role of international legal innovators has sometimes relied upon an eclectic approach that reconciles multiple competing interests by encompassing them completely.^[1] Thus, the background process of legal innovation necessarily requires some degree of principle bargaining. This particular characteristic is probably the reason why a paradoxical nature underlies several of international law’s sectoral divisions.

For example, a close analysis of international criminal law unveils how the pursuit of historical truth and justice can sometimes lead to the contradictory effect of creating a show trial or turning criminals into martyrs.^[2] Similarly, critiques of human rights law demonstrate how the state’s function as the main guarantor of rights consistently collides with the state’s unavoidable role as main violator of human rights.^[3] In both examples, the cognitive narrative that is created to set in motion a legalized process or techno-strategic language,^[4] turns out to be counter-productive or ineffective to the original intended outcome. Assessing the necessity—or in this case, desirability—of proposing legal innovations to bring justice for corporate actors requires us to consider this possibility.

Through this Article, I will explore the adequacy of creating new law or institutions to hold corporations accountable for human rights violations. I must clarify though, that I do not advocate for impunity or take a critical position against justice. On the contrary, I intend only to assert that any authentic concern for justice demands careful assessment to ensure that the design of any new process or institution takes into account the possible externalities and unintended outcomes it may provoke.

On this matter, I will start by addressing Maya Steinitz’s proposal to create an International Court on Civil Justice. This idea would appeal to international lawyers’ desire for centralizing decision-making and ensuring the completeness and coherence of the legal system. Abstractly proposed, it is also attractive to individuals seeking redress and perhaps even to corporations looking for more legal certainty regarding the consequences of their activities. As Steinitz affirms, it is not far-fetched that corporations may “gain from the vastly more efficient system of dispute”^[5] by avoiding indirect costs related to fragmented litigation. Indeed, creating such a court could tilt the balance of power relations between transnational corporations, states, and individuals. However, it might do so in a way that, instead of having a deterrent effect against inappropriate behavior, would merely grant corporations a clear sense of the price they must pay for any particular conduct. In that sense, the uncertainty of the decentralized transnational legal processes may actually allow individuals on the receiving end of power relations to design innovative strategies that would become unavailable if the accountability mechanisms were narrowed to a sole international court conducting its procedures according to a unified set of rules.

Furthermore, the eventual establishment of such a court would forcefully follow—or at the most, it would form part of—a codification initiative. Such a process is, in fact, currently taking place within the Human Rights Council. It is thus timely that we discuss the potential drawbacks of that type of initiative and consider the critiques against the proponents of legalization and their doctrinal positions in particular. In this regard, it is important to note John Ruggie’s warning about the risk of attempting to codify an inherently complex and dynamic subject through an inevitably generalizing and static framework.^[6] It is unclear how a body of hard law could respond to the evolving nature of the corporate world and how it could remain compatible with the shifting nature of the global economy while simultaneously offering effective protection to changing humanitarian interests. Proponents of a rigid set of rules may overestimate the reach of legalization and underestimate the unavoidable fragmentation of international law and the costs derived from the future uncertainty of the problems.

This naiveté, as Ruggie suggests, may result from a belief that creating more law translates into bringing more justice, while experience demonstrates that resources could be better allocated in other types of initiatives. According to this perspective, it could be that, while diplomats and NGOs were expending great effort in negotiating such a treaty, they lost sight of how to pursue the desired outcomes through other means, such as on a national or case-by-case basis. The idealization of law as an inherently effective tool for social change may be blinding humanitarians once more. Similarly, extending this critique could also lead us to consider the unfortunate possibility that, even if such a treaty were to be adopted in the future, it would risk becoming outdated in a relatively short period. This has happened before with human rights treaties and institutions that currently struggle to adapt to a globalization process in which nation-states are no longer the only or the main threat to humanitarian interests.

The question remains as to how—and if—international law may increase the accountability of corporations. To address this matter, it is important to look back and draw lessons from previous experiences. On this matter, one analogical analysis can be made about the international codification processes regarding mercenaries (who, like corporations, are private actors capable of committing severe human rights abuses).

The international law on mercenaries presents us with an archetypal case of how the strengthening of norms can sometimes be effective through weak law and how institutionalization can actually damage the content of a norm.^[7] The first international anti-mercenary law was adopted as part of the negotiations of the Protocol Additional to the Geneva Convention of 1949.^[8] Since then, it became evident that the results of this legalization process, instead of boosting the effectiveness of a widely accepted anti-mercenary social norm, created a law so flawed that “any mercenary who cannot exclude himself from [its] definition deserves to be shot—and his lawyer with him!”^[9]

When the legalization of a somewhat solid norm—such as the norm claiming to hold corporations accountable for human rights violations—provokes the collision of harshly opposing interests, the legal precision sought by institutionalization processes requires bargaining. This bargaining process may solidify a compromise that undermines the effectiveness of a social norm that would otherwise have empowered strategic projects and deterred misconduct. As Sarah Percy states, while codification may spread the precise content of a sufficiently developed norm, it also risks curtailing the effectiveness of contested normative propositions by narrowing the scope of their influence, by delegitimizing them if the adopted law goes unenforced, or by creating loopholes that can be exploited.

Defining the type and extent of corporate liability under hard international law, as well as the remedies and processes for their enforcement would require a negotiation process, possibly leading to an overtly ambiguous or overgeneralizing norm that may end up curtailing the possibility of attaining justice.

In spite of these concerns, one final remark is possible in favor of the current projects seeking to increase corporate accountability. By invigorating the discussion, the ongoing deliberative process may spread the normative content of a claim for justice against corporate abuses. This effect should serve to proliferate the internalization of such a norm, thus creating a favorable environment for pursuing projects aimed at holding corporations accountable. As the norm develops, legalization may provoke a normative cascade leading to compliance. However, before proposing such a measure, we should recall Cicero’s advice and remember that sometimes more laws means less justice.

* Angel Gabriel Cabrera Silva is an LLM Candidate at Harvard University. He is currently a Fulbright, CONACYT-Funed and FMH Scholar. He also holds a law degree from the University of Guadalajara, Mexico. The author thanks all these institutions, as well as Harvard University and the University of Guadalajara, for their support allowing him to take part of this initiative.

[1] See, e.g., an interesting assessment of this eclecticism during the creation of modern international institutions. Nathaniel Berman, Modernism, Nationalism and the Rhetoric of Reconstruction, 4 Yale J. of L. and Hum. 351 (1992).

[2] See Marti Koskenniemi, Between Impunity and Show Trials, 6 Max Planck Yearbook for United Nations Law, 1−35 (2002).

[3] See Makau Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L. J. 201 (2001).

[4] A techno-strategic language refers to a specialized argot used by professionals within a specific field of knowledge. This concept attempts to describe the way in which technical words used to frame discussions within a professional field, are also influencing the strategic thinking of the professionals actively engaged in the practice. For example, the military jargon will be influencing the way that military officers perceive and engage within a specific circumstance, in a way that deviates from the how a person not using that language would engage. See, e.g., C. Cohn, Sex and Death in the Rational World of Defense Intellectuals, 12 Signs 4, 687−718 (1987).

[5] Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75 (2014).

[6] See John G. Ruggie, The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty, Institute for Human Rights and Business (July 08, 2014), http://www.ihrb.org/commentary/board/ past-as-prologue.html.

[7] See Sarah V. Percy, Mercenaries: Strong Norm, Weak Law, 61 International Organization 2 (2007).

[8] Through Article 47 of Protocol I Additional to the Geneva Conventions & the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries.

[9] Geoffrey Best, Humanity in Warfare: The Modern History of the International Law of Armed Conflicts (1980), cited in Sarah V. Percy, Mercenaries: Strong Norm, Weak Law, 61 International Organization 2 (2007)

By Daniel Litwin & Elsa Savourey

This contribution is in response to the Harvard International Law Journal‘s 2016 Online Symposium, International Jurisdiction for Corporate Atrocities. 

Engaging in a discussion about international jurisdiction for corporate misconduct, with a focus on business’s adverse impact on human rights, requires that we understand the frames that influence the way lawyers view today’s increasingly diverse landscape of international adjudication. In this landscape, international courts and arbitral tribunals, the mechanisms we identify with international adjudication as binding third-party dispute settlement, are enmeshed in a variety of specializations (such as trade law, human rights law, or environmental law). As a result, these mechanisms are neither objectively defined nor do they constitute fixed categories with a general meaning. Their meaning is framed in terms of, inter alia, lawyers’ expertise in a specialized regime and more broadly their background in domestic legal systems.

Understanding how lawyers represent “international courts” or “arbitral tribunals” is a precondition to any discussion about an international jurisdiction for corporate misconduct, either as a jurisdiction using existing mechanisms or through the creation of new mechanisms. The frames lawyers use in their assessment of these mechanisms condition how international courts and arbitral tribunals are structured and what criteria are used to determine whether these mechanisms are, for example, legitimate, valid, working for the public interest, and effective. Recognizing and identifying these frames builds sensitivity to the subjective assumptions about international courts and arbitral tribunals that underlie the various proposals for an international jurisdiction for corporate misconduct.

In this brief contribution, we review a number of the proposals for an international jurisdiction that have been put forward in this symposium and draw attention to the possible frames that may shape their analysis. We begin by looking at one of the most widely shared frames, the background of international lawyers as domestic lawyers. Subsequently, we look at the frames that stem from specialized international legal regimes, and take the example of investment arbitration and its influence on shaping proposals for international arbitration of corporate misconduct. Further, we review the place of non-juridical mechanisms. Finally, we discuss the importance of moving beyond these frames in the hope of opening space for self-reflection and new thinking on how international jurisdiction for corporate misconduct should be represented.

International Lawyers as Domestic Lawyers: Thinking in Terms of the Domestic Context

Proposals for an international court to address corporate atrocities may be framed with presumptions and perceptions from the domestic legal training that forms the basic legal education of most international lawyers. This background serves the longstanding assumption that the international legal system should contain the judicial branch that is characteristic of domestic systems. Thus, according to this view, international courts form an integral or “natural” part of the international legal system and the domestic judiciary is a benchmark to its international counterpart.

The rise of specialized international legal regimes, self-contained and fragmented, has challenged the idea of a hierarchical system of international courts with the ICJ analogous to a domestic supreme court. Conversely, there have been few inquiries into the internal structure and practices of international courts as conceived in terms of analogy to the domestic context. Debating the relevance of this sort of analogy could contribute to creatively thinking about the various challenges and practices specific to the implementation of an international jurisdiction for corporate misconduct.

Recognizing the differences between international courts and domestic courts also opens room for a discussion on the increased significance of domestic jurisdictions in constraining transnational corporate misconduct. If international courts have distinct structures and practices from their domestic counterparts, each with their specific rationalities, then it is easier to see domestic and international mechanisms as complementary rather than in perpetual struggle for authority and hegemony. Thinking in terms of complementarity is all the more important as, for example, domestic and European legal instruments increasingly require companies to respect human rights in the course of their activities and their supply chains. As a result, corporate misconduct can increasingly be brought before domestic civil and criminal courts.

Thus, in an increasingly globalized world, are international courts not simply another key piece in the creation of a new era of global corporate accountability? From this perspective, international and domestic mechanisms each have a reasonable claim to authority. This dismissal of hegemony and recognition of complementarity lead to a complex series of possible judicial configurations. Action may be taken by domestic courts at the host state or home state level, and at the international level by existing or new mechanisms. To address the complexity of these configurations, we need to move away from ready-made solutions that are imported from existing frames.

International Lawyers as Specialists: Thinking in Terms of Specialization

Discussions about international jurisdiction are also framed by specialized international legal regimes. These specializations, such as trade law or human rights law, lead to an understanding of international courts and arbitral tribunals as they are implemented in a specialized regime. As a result, the term “court” appears to retain a general and objective meaning while in fact being assimilated to, for instance, the International Criminal Court or the International Tribunal for the Law of the Sea depending on the concerns that are prioritized.

Take the example of international arbitration and investment arbitration. The perceived success of investment arbitration, at least in terms of caseload and effectiveness, has seen it advanced more frequently as a model or tool for arbitrating corporate misconduct. Yet, this approach by analogy risks putting forward or giving precedence to the specialization of investment arbitration as a “best practice” even when arbitration in this specialization is structured to pursue objectives different from arbitrating corporate misconduct.

Thinking along specialized frames aligns the design of an eventual arbitral tribunal for corporate misconduct to that of a system designed for the significantly different purpose of investment protection. This framing risks inhibiting the thinking of international arbitration for corporate misconduct in new terms. For example, considerations of statist consent are important in investment arbitration, but they may obfuscate a rethink of alternative means of conceiving consent in a post-Westphalian international arbitration system responding to victims of corporate misconduct.

Along similar lines, criticisms of arbitration that refer nearly exclusively to the inadequacies and shortcomings of investment arbitration on the grounds that it lacks of legitimacy and public accountability run the risk of framing the possible structure and practices of international arbitration in terms exclusively developed by the investment context. By equating investment arbitration with international arbitration more generally, these criticisms, paradoxically, serve to frame international arbitration in terms of the very investment regime they criticize. This confusion limits the possibilities of international arbitration to those developed in the investment context.

Thinking Beyond Adjudication?

The same caution with analogy-based thinking to the domestic legal system can be extended more broadly to the perceived need for international jurisdiction in the first place, the topic of this symposium. If analogies to the domestic context require that we envision some form of international jurisdiction, then existing non-judicial means to address corporate misconduct are necessarily perceived as insufficient and incomplete. As a result, the achievements of non-judicial mechanisms lose their luster in the process.

The United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises have created impetus for the development of non-judicial mechanisms. These mechanisms are being developed by private and public entities, at the domestic or international level. They are opening new avenues of redress for victims whose human rights were adversely impacted by corporate misconduct.

For instance, a number of companies have developed grievance mechanisms to identify potential and actual adverse impacts on human rights and to seek redress for victims. Similarly, the OECD National Contact Points offer stakeholders and members of civil society a means to resolve human rights disputes between affected communities and companies. Admittedly, these mechanisms are still in development, but the perceived requirement for international jurisdiction could take attention away from their continued development and articulation with existing international and domestic judicial mechanisms.

Besides, a focus on a singular international jurisdiction mechanism may overshadow the complex sanctions-regime that already exists for corporate misconduct. These sanctions can be reputational, when misconduct affects a companies’ reputation; they can be operational when the continuation of a project is put in jeopardy because some fundamental rights of local communities have not be respected; and they can be financial when the multilateral development banks and private banks withdraw funding for a project found to be non-compliant with human rights obligations. This sanctions regime deserves more scrutiny. It could be more amenable and adaptable to the complexities of corporate misconduct than international jurisdiction, and it could be further accompanied by the development of more accessible remedies for victims of corporate misconduct than judicial proceedings.

Afterword

We have queried how decisions about the internal structure and practices of international mechanisms for corporate misconduct could be framed by lawyers according to the terms of domestic legal systems or specialized legal regimes. Emphasizing frames raises a new set of questions and places a different focus on the question formulated in this symposium: from the possibility of international jurisdiction to its possibility but according to which frame?

Our observations and questions are not meant to close the door to international courts or arbitral tribunals as jurisdictions for corporate misconduct. However, if we consider action against corporate misconduct to be a legitimate pursuit, then we need to move beyond discussions confined to the creation of these mechanisms in order to critically engage with the process of description and re-description inherent in any evaluation of international adjudication.

In particular, focus should be placed on the subjectivities of “international court” and “international arbitration.” What should these terms mean in the context of corporate misconduct and what do these meanings entail? Thus, it is essential to avoid limiting our analysis to narratives that portray the act of creating an international court or arbitral tribunal for corporate misconduct as the means to normalize complicated tensions between competing interests. The multiple frames that can be used to describe international courts and tribunals provide a map of consensus and dissensus that should form part of the debate on the development of international jurisdiction for corporate misconduct.

Daniel is a graduate from McGill University (B.C.L./LL.B) and the University of Cambridge (LL.M.). He is a Research Associate at the L.Yves Fortier Chair in International Arbitration and International Commercial Law, McGill University. Elsa is an attorney-at-law and a graduate from Harvard Law School (LL.M) and from Sciences Po Law School and Pantheon-Sorbonne (Masters). She is part of the Business and Human Rights practice group of Herbert Smith Freehills.

By Jisan Kim

This year, the Asian Infrastructure Investment Bank (AIIB) will officially initiate its operations with $100 billion of capital. The AIIB aims to fund much-needed basic infrastructure projects in Asia, and it seeks to differentiate itself from existing multilateral development banks (MDBs) like the World Bank by not requiring privatization or deregulation as conditions for funding.

Some experts project that the AIIB will merely be a “symbolic institution with no real significance for the global financial system.” However, China has brought on board major U.S. allies, including France and the United Kingdom, as founding members of the new Bank. On the other hand, the United States and Japan, the largest shareholders of the World Bank and the Asian Development Bank respectively, declined to join the AIIB. The two countries likely view the new China-led Bank as “a lending rival that will reduce [their] leverage,” and they do not want to grant more power and credibility to the AIIB by joining it.

Even without the United States and Japan as members, the AIIB will have a significant impact on Asia and the world. However, whether that impact will be positive or negative is under debate. Although the AIIB will help fill the “massive infrastructure funding gap” in Asia, it may fund projects that do not meet the high international standards enforced by existing MDBs. If the AIIB does not operate under adequate standards, its projects may have negative consequences in many areas, including environment protection, human rights, and labor rights. China claims that the AIIB “will be rigorous in adopting the best practices of institutions such as the World Bank.” But critics are wary of this claim, given China’s track record with international standards.

No one can be certain until the new Bank decides which projects it will fund, but an assessment of the AIIB’s Operational Policies may shed some light on the direction toward which the AIIB is headed. Because the structure and function of the AIIB is similar to that of the International Finance Corporation (IFC), the private sector arm of the World Bank, the IFC Performance Standards on Environmental and Social Sustainability (IFC Standards) are the appropriate benchmark to evaluate the adequacy of the AIIB Environmental and Social Standards (AIIB Standards). Many parts of the AIIB Operational Policies mirror the text of the IFC Standards. But notable differences exist, and they may lead to distinct outcomes in practice. This feature will discuss some of the provisions pertaining to environmental and labor issues.

I.  Environmental Standards

Many environmental provisions of the AIIB Standards are on par with that of the IFC Standards. For instance, in its pollution prevention section, the AIIB cites the World Bank Group’s Environmental, Health and Safety Guidelines (EHSGs) and ensures that its projects will follow the EHSGs. The AIIB in some areas (e.g. commercial logging operations) adopted “more progressive positions” than some of the other multilateral development banks. However, in other areas, AIIB Standards lack detail or are different in ways that may lead to arbitrary outcomes. The following are a few examples.

The IFC provides a detailed explanation on how adverse effects on the environment should be mitigated. Concepts such as “no net loss of biodiversity” and “set-asides” make the guidelines more specific and clear. On the other hand, the AIIB leaves out such details and simply requires “measures acceptable to the Bank.” Under this standard, if the AIIB is not rigorous in its evaluation of mitigation measures, recipients of funding may be able to get away with implementing measures that are superficial, cheap, and ineffective.

For projects in natural habitats, the AIIB requires a cost-benefit analysis whereas the IFC has no such requirement. Because the IFC does not have this requirement, the IFC may allow projects even if the overall benefit does not “substantially outweigh” environmental costs. However, cost-benefit analysis will not always lead to wise decisions. For example, the AIIB may allow projects that significantly destroy natural habitats by concluding that the overall benefit is higher than the cost. Also, because it is unclear how the AIIB will conduct cost-benefit analyses, the ultimate decision could be arbitrary. The cost-benefit analysis might be used to justify or defend AIIB’s decisions to value economic gain over environmental protection.

When critical habitats are involved, the IFC considers a project’s impact on “biodiversity values for which the critical habitat was designated” and the “ecological processes” supporting those values, whereas the AIIB focuses on the habitat’s “ability to function.” The IFC would not allow a project that would destroy biodiversity values, even if the habitat were able to function. On the other hand, the AIIB may allow a project by determining that a habitat may be able to function even if many of its biodiversity values are lost.

II.  Labor Standards

The Core Labor Standards (CLS), which refer to a group of eight fundamental labor conventions, are regarded as the “international consensus on minimum best practices.” The CLS covers four general rights and principles of labor: child labor, forced labor, freedom of association and collective bargaining, and discrimination in employment and occupation. This feature will proceed to look at how the AIIB and IFC treat the four general issues of labor.

A. Child Labor

The Minimum Age Convention and the Worst Forms of Child Labour Convention (Worst Forms Convention) are the two “basic child labour Conventions” of the International Labor Organization (ILO). And complementing the two Conventions, the United Nations Convention on the Rights of the Child (UNCRC) “lays down a full range of children’s rights.”

The IFC Standards cover issues raised in all three of the instruments mentioned above. The opening sentence of the child labor section closely mirrors the language of Article 32 of the UNCRC:

“The client will not employ children in any manner that is economically exploitative, or is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development.” (para. 21, IFC Standards)

The following two IFC clauses on hazardous work incorporate language from the Worst Forms Convention and its supplemental Recommendation No. 190:

“Children under the age of 18 will not be employed in hazardous work.” (para. 21, IFC Standards)

“Examples of hazardous work activities include work (i) with exposure to physical, psychological, or sexual abuse; (ii) underground, underwater, working at heights, or in confined spaces; (iii) with dangerous machinery, equipment, or tools, or involving handling of heavy loads; (iv) in unhealthy environments exposing the worker to hazardous substances, agents, processes, temperatures, noise, or vibration damaging to health; or (v) under difficult conditions such as long hours, late night, or confinement by employer.” (n. 12, IFC Standards)

Unlike the IFC Standards described above, the AIIB Standards seem to be focused on only the Minimum Age Convention:

“[I]n conformity with the International Labour Organization’s Minimum Age Convention, 1973, [] children at least 16 years of age may be employed for such work on condition that their health, safety and morals are fully protected” (sec. D, AIIB Standards).

The Worst Forms Convention and the UNCRC do not appear in the AIIB Standards. The two Conventions may seem superfluous, but they each play an important role.

Several scholars have voiced concern that the Minimum Age Convention, standing alone, may fail to achieve its objective. The Minimum Age Convention requires that specific industries, such as mining and electricity, should be regulated as a minimum. If only some industries are regulated, the supply of child labor could move into other unregulated sectors. The Worst Forms Convention does not have this loophole because it lists the types of hazardous work that should be prohibited, regardless of industry.

Although the two Conventions together seem to grant full protection, another loophole still exists. Children between the age of 16 to 18 will be allowed to work as long as their “health, safety and morals . . . are fully protected” (Minimum Age Convention) and the work is not categorized as “worst forms of child labor” (Worst Forms Convention). Without the protection offered by the UNCRC, these children are simply treated as “regular workers” under the two ILO Conventions. But because the IFC Standards incorporate language from the UNCRC, the IFC additionally protects the “education” and “health or physical, mental, spiritual, moral, or social development” (UNCRC) of these child workers. The AIIB Standards, on the other hand, offers no such protection.

The IFC, by embracing all three Conventions, provides a stronger protection for children than does the AIIB.

B. Forced Labor

The AIIB provides the same level of protection as the IFC when it comes to forced labor. The AIIB explicitly prohibits forced labor, which it defines as “work or service not voluntarily performed that is exacted from an individual under threat of force or penalty.” This language is similar to the IFC Standards on the subject. Additional details are substantially the same as well.

C. Freedom of Association and Collective Bargaining

As for collective bargaining, the AIIB requires that clients adhere only to national laws in the countries where they operate, while the IFC attempts to offer further protection. When “national law substantially restricts workers’ organizations,” the IFC prohibits employers from “[restricting] workers from developing alternative mechanisms to . . . protect their rights” and “[influencing] or [controlling] these mechanisms.” IFC also protects participants in workers’ organizations from discrimination, retaliation, or discouragement by employers.

The AIIB, however, urges clients only to “[comply] with national law relating to workers’ organizations and collective bargaining” and does not attempt to provide any further protection on this matter.

D. Discrimination

The AIIB’s provision against discrimination is limited: employers should ensure, “consistent with relevant national law, employment on the basis of the principle of equal opportunity, fair treatment and non-discrimination.” The AIIB does not provide any additional detail or explanation.

The IFC Standards, on the other hand, includes important details in addition to enumerating the basic principles of equal opportunity, fair treatment, and non-discrimination. The IFC prohibits “employment decisions on the basis of personal characteristics (Such as gender, race, nationality, ethnic, social and indigenous origin, religion or belief, disability, age, or sexual orientation)” and “harassment, intimidation, and/or exploitation.” The IFC Standards also emphasizes that women and migrant workers should be well-protected.

E. Additional Considerations

While the IFC’s labor standards cover both the public and private sector, the AIIB Standards do not offer protection of many important rights—including prompt payment, access to grievance mechanisms, equal opportunity, fair treatment, and non-discrimination—to public sector workers. In the third paragraph of Section D, the AIIB Standards requires employers to protect those rights only for “private sector Projects.”

The IFC, unlike the AIIB, provides additional protection regarding retrenchment and compensation. IFC demands “retrenchment [] based on the principle of non-discrimination and will reflect the client’s consultation with workers” and insists the payment of any outstanding back pay or benefits. The AIIB, mostly silent on this matter, mandates only a “timely” notice of termination.

The AIIB follows many of the high standards set by the IFC and other international organizations. However, in several important areas, AIIB Standards do not offer sufficient environmental and social protection. These shortcomings could become more problematic if coupled with ineffective implementation.

III.  Implementation and Oversight

The recently elected President of the AIIB promised that the new Bank would be “lean, green, and clean.” Although a lean bank will reduce costs, it may have trouble operating effectively. Without “a resident staff involved in the day-to-day project oversight,” some critics doubt that the new Bank would be able to successfully enforce high standards.

In order to implement its labor standards, the IFC went through an intensive implementation process: hiring labor experts, establishing a Labor Advisory Group, providing specific training for thousands of staff, and conducting comprehensive labor audits and internal reviews. In fact, IFC is considered to have “one of the most comprehensive procedural frameworks” for implementing labor standards. But even with such effort, the IFC was not aware of violations in some on-going projects until other organizations reported them.

The ILO emphasizes that “legal prohibition, essential though it is, will not by itself suffice.” Especially in regulating child labor, inadequate implementation and oversight may lead to disastrous consequences. Prohibiting child labor may “[foster] illegal and hidden forms of [child] employment.” And without proper oversight, child labor will proliferate in the shadows. The AIIB must ensure that its operations are not only “lean” but also effective in protecting fundamental values.

IV.  Going Forward

While basic environmental and social values should not be sacrificed for economic growth, rules and procedures have a tendency to become cumbersome. A former World Bank Director commented that many standards and procedures of existing MDBs are “frustratingly bureaucratic, costly and ill-suited to dealing with the real needs of client borrowers.” Improving rules and procedures to be more efficient does not necessarily lead to lower standards. The key is to find the right balance between efficiency and comprehensiveness.

The AIIB expressed its commitment to adopt the “highest possible standards.” Although the AIIB has much room for improvement, its efforts show that the new Bank has the potential to become an institution that sets, rather than follows, international standards.

Jisan Kim is a 2017 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.

By Kelsey Jost-Creegan*

This article is the first of a series of articles to be published on the Colombian Peace Process over the course of the next weeks. We hope to offer in-depth and substantive analysis to an English-speaking and international audience, reflective of the many rich debates that are currently taking place in Colombia.  

This Sunday, Colombian citizens will decide whether to approve the Peace Agreement reached on August 24^th between the Colombian government and the Revolutionary Armed Forces of Colombia – People’s Army (FARC). The Agreement was signed on Monday, September 26^th in Cartagena, Colombia, but a favorable vote is essential for the Peace Process to move forward.

Background: The Colombian Conflict

The Colombian Conflict is the longest-running armed conflict in the Western Hemisphere, and the only one that continues to be active. The conflict has left over 260,000 people dead, 45,000 people disappeared, and 6.6 million people displaced. The conflict is highly complex and involves a number of actors that have evolved over time, including leftist guerrillas, right-wing paramilitaries, and national armed forces.

Atrocious crimes—murder, disappearance, displacement, sexual violence, torture, and massacres—have been committed at different points in the conflict by all parties involved. The Latin America Working Group explains, “[r]ural, impoverished, and marginalized communities—including Afro-Colombians, indigenous, and women—were disproportionately affected by the violence.”

The current conflict has its roots in the formation of armed leftist guerilla movements that spread across Latin America in the 1960s, opposing political elites and extreme socioeconomic and regional inequality. While these movements were in some ways novel, political violence revolving around issues of land rights and rural inequality had been a reoccurring problem since Colombia’s founding. Conflicts in the 1920s between landowners and small-scale farmers in Colombia’s coffee region, the 1948 assassination of presidential candidate Jorge Eliécer Gaitán, and the subsequent ten years of conflict known as “La Violencia” are just a few examples of this unrest.

Revolutionary Armed Forces of Colombia – People’s Army (FARC)

The FARC, formed in 1964, was one of these guerilla groups. It follows a Marxist-Leninist ideology, and has its roots in campesino (peasant farmer) advocacy for land rights. It began as one of a number of campesino groups fostered by the Communist Party (PCC) that declared “independent republics” in the countryside, where the government’s institutional presence had always been weak. The FARC’s campesino forebears declared an independent “Republic of Marquetalia” in 1964. When the government responded with heavy military force—sending nearly 2,000 soldiers to counter a settlement with less than 100 members—the campesinos retreated into the jungle. Two months later, the 48 remaining campesinos signed the Agrarian Program of the Guerrillas, effectively establishing the FARC.

Beginning in the 1970s, and increasing significantly in the 1980s, the FARC became involved in drug trafficking and kidnapping to finance their movement. Their involvement with drugs began by imposing taxes on farms growing drugs, but with time escalated to include direct production and export. Right-wing paramilitary groups also consolidated and expanded during this period, prompting a severe escalation in violence.

Over time, the FARC transformed significantly. In 1982 the organization “transformed . . . from a defensive group to an offensive national entity.” In the 1990s it broke off from the PCC, although it continued to preach Marxist-Leninism. It was around this time that the FARC developed the highly hierarchical structure under which it has operated to this day.

It is estimated that, at its peak, the FARC had nearly 20,000 members, though that number has diminished to between 6,300 and 7,000 active members today. The FARC is also believed to have an affiliated militia; estimates for the number of militia members vary anywhere from 5,800 to 13,000 and there is little consensus as to their role and whether they are armed.

The New Peace Agreement: 4 Years of Negotiations, 6 Parts, and 300 Pages

The current Peace Agreement is the result of nearly four years of negotiations held in Havana, Cuba. Formal negotiations, which began on November 19, 2012, followed two years of preliminary negotiations to determine negotiation process.

This is not the first time that the Colombian government has tried to negotiate with the FARC. Presidents Belisario Betancur (1982–1986) and Andrés Pastrana (1998–2001) both oversaw negotiations. However, both attempts failed and the violence continued. This is the first time the groups have reached a full agreement and, accordingly, the first time such an agreement will be put to a vote.

The Final Agreement for the End of the Conflict and the Construction of a Stable and Lasting Peace is lengthy and complex—composed of Six Parts and totaling nearly 300 pages, it covers topics ranging from land reform to drug policy to transitional justice. Later articles in this series will provide a detailed breakdown of each Part.

Given the Agreement’s length and complexity, there have been concerns about the extent to which the voting population will be able to make an informed decision, particularly given the quick turnaround between its release and vote (just over a month). To this end, the Colombian High Commissioner for Peace established a website summarizing the Agreement’s main points in both Spanish and a variety of indigenous languages. Civil society organizations have also made audio recordings, online videos, and Whatsapp groups to cover main takeaways and answer questions.

The Approval Process: Where are we now?

A multistep approval process began to unfold once the Agreement was announced.

Developments to Date

• August 24: The Colombian government and the FARC announce they have reached agreement.
• September 24: The FARC announces that its members have unanimously approved the deal through a Congress of Block Leaders, each block being a regional unit of the rebel army. The FARC has used similar Congresses to make important decisions since its inception, though most were held earlier in the FARC’s history. This Congress of Block Leaders was held in Llanos de Yarí, and was the first open to civilians and the press.
• September 26: President Santos and FARC leader Rodrigo Lodoño—alias Timochenko—sign the Agreements in Cartagena, the first formal part of the Peace Process to take place on Colombian soil. Note that President Santos signed the Agreement before the Plebiscite, likely a political decision made in the hopes of building momentum going into Sunday’s vote.

The Plebiscite

The Plebiscite will ask: Do you support the agreement to end the conflict and construct a stable and lasting peace? A simple majority of at least 13% of registered voters is needed to pass the agreement (approximately 4.4 million votes).

The Plebiscite’s legal standing is complex. In Colombia, a plebiscite is a form of political participation similar but not identical to a referendum; while a referendum generates a binding decision about a piece of legislation, a plebiscite aims to gauge whether there is support for presidential action. According to the Colombian Constitutional Court, the Plebiscite has three goals: (1) obtain democratic legitimacy; (2) make the Agreement more lasting (on the theory that future politicians would be more likely to uphold it); and (3) accordingly, offer the parties guarantees in moving forward with the Agreement’s terms. Officially, it is only binding on the President, meaning that, in theory, Congress could independently move forward with the deal even if voters turn it down, and may even be able to restore the President’s power to implement the Agreement. Conversely, a majority vote in favor of the agreement would also not be legally binding—the government will still need to pass its ‘Legislative Act for Peace,’ which includes amendments to five Constitutional articles. However, it seems unlikely that other government organs will move forward if the Agreement is not approved by the Plebiscite, as it would lack a public mandate. Theoretically the President could also negotiate another agreement, but the parties have said that they would not return to negotiations if this one doesn’t pass, potentially pushing the possibility for peace further into the future.

The Political Landscape: Support and Opposition

The weeks leading up to the Plebiscite have been rife with political tensions as political leaders on both sides of the issue press their case to the public.

Public polling on the agreement have been mixed, but several recent surveys suggest that the agreement will pass. When asking how citizens would vote if the Plebiscite were tomorrow, Cifras & Conceptos found that 54% would vote yes and 34% no, Opinómetro found that 55.3% would vote yes and 38.3% would vote no, and Ipsos found that 72% would vote yes and 28% no. However, even these three most recent polls indicate that the gap has narrowed since July.

The government has been campaigning in favor of the agreement, claiming that the deal represents a critical opportunity for peace and the best deal possible in light of four years of intensive negotiation. Americas Society/Council of the Americas argues that, “the burden of proof is on the Yes campaign, which some say has the burden of convincing us to choose peace—a hypothetical concept for many of the country’s 48 million who’ve lived their own lives under the 52-year conflict.” The government has also emphasized that the Agreement prohibits amnesty for crimes against humanity and war crimes and provides a process for victim rights.

Opposition to the Agreement continues to be voiced by important political leaders, including Presidents Álvaro Uribe (2002–2010) and Andrés Pastrana (1998–2002) and former Inspector General Alejandro Ordóñez. The opposition has focused on crimes committed by the FARC and argues that the FARC would effectively be granted impunity for those crimes. They also argue against provisions that would allow FARC members to participate in the political process.

International Involvement

The international community has been heavily involved in the lead-up to the Plebiscite.

On Tuesday, September 13^th the United Nations Security Council approved the creation of a political mission, composed of “450 observers and a number of civilian,” to monitor and verify a future ceasefire. That mission is already on the ground, ahead of schedule. The U.N. Mission also supported a seven-day training session on monitoring the ceasefire in early September.

A number of international organizations, including UNICEF and the International Organization for Migration, are also participating in coordinated action agreed upon in Havana to oversee the demobilization of minors recruited by the FARC.

Looking forward

While most media coverage has framed this Agreement as the end of Colombia’s internal armed conflict, in reality it is only an essential first step towards achieving an end to the war and constructing a lasting peace. The demobilization of the FARC and the implementation of other measures outlined by the Peace Agreement would be an enormous achievement in deescalating the conflict. However if the Agreement passes it will be necessary to stay alert to the power vacuum that dismantling the FARC would create and the different actors that could be waiting to fill that vacuum. Ultimately, achieving peace with the remaining leftist guerrilla group—the National Liberation Army (ELN)—and dismantling successor paramilitary groups and other criminal organizations will be essential to building peace. Later articles in this series will explore these dynamics.

* Kelsey Jost-Creegan is a 3L at Harvard Law School and a former Article Editor with the Harvard International Law Journal. During law school she completed a semester exchange at the Universidad de Los Andes in Bogotá and interned at the Centro de Estudios de Derecho, Justicia y Sociedad – Dejusticia and the Centro de Estudios para la Justicia Social – Tierra Digna.

By Daniel Litwin & Elsa Savourey*

Engaging in a discussion about international jurisdiction for corporate misconduct, with a focus on business’s adverse impact on human rights, requires that we understand the frames that influence the way lawyers view today’s increasingly diverse landscape of international adjudication.[1] In this landscape, international courts and arbitral tribunals, the mechanisms we identify with international adjudication as binding third-party dispute settlement, are enmeshed in a variety of specializations (such as trade law, human rights law, or environmental law). As a result, these mechanisms are neither objectively defined nor do they constitute fixed categories with a general meaning. Their meaning is framed in terms of, inter alia, lawyers’ expertise in a specialized regime and, more broadly, their background in domestic legal systems.

Understanding how lawyers represent “international courts” or “arbitral tribunals” is a precondition to any discussion about an international jurisdiction for corporate misconduct, either as a jurisdiction using existing mechanisms or through the creation of new mechanisms. The frames lawyers use in their assessment of these mechanisms condition how international courts and arbitral tribunals are structured and what criteria are used to determine whether these mechanisms are, for example, legitimate, valid, working for the public interest, and effective. Recognizing and identifying these frames builds sensitivity to the subjective assumptions about international courts and arbitral tribunals that underlie the various proposals for an international jurisdiction for corporate misconduct.[2]

In this brief contribution, we review a number of the proposals for an international jurisdiction that have been put forward in a recent Harvard International Law Journal online symposium (“ILJ online symposium”) and draw attention to the possible frames that may shape their analysis. We begin by looking at one of the most widely shared frames: the background of international lawyers as domestic lawyers. Subsequently, we look at the frames that stem from specialized international legal regimes and take the example of investment arbitration and its influence on shaping proposals for international arbitration of corporate misconduct. Further, we review the place of non-juridical mechanisms. Finally, we discuss the importance of moving beyond these frames in the hope of opening space for self-reflection and new thinking on how international jurisdiction for corporate misconduct should be represented.[3]

1. International Lawyers as Domestic Lawyers: Thinking in Terms of the Domestic Context

Proposals for an international court to address corporate atrocities may be framed with presumptions and perceptions from the domestic legal training that forms the basic legal education of most international lawyers.[4] This background serves the longstanding assumption that the international legal system should contain the judicial branch that is characteristic of domestic systems.[5] Thus, according to this view, international courts form an integral or “natural” part of the international legal system, and the domestic judiciary is a benchmark for its international counterpart.

The rise of specialized international legal regimes, self-contained and fragmented,[6] has challenged the idea of a hierarchical system of international courts with the International Court of Justice (“ICJ”) analogous to a domestic supreme court. Yet at the same time, there have been few inquiries into the internal structure and practices of international courts[7] as conceived in terms of analogy to the domestic context. Debating the relevance of this sort of analogy could contribute to creative thinking about the various challenges and practices specific to the implementation of an international jurisdiction for corporate misconduct and the ways it differs from the challenges faced by domestic courts.

Recognizing the differences between international courts and domestic courts also opens room for a discussion on the increased significance of domestic jurisdictions in constraining transnational corporate misconduct. If international courts are distinct as to structure and practices from their domestic counterparts, each with their specific rationalities, then it is easier to see domestic and international mechanisms as complementary rather than in perpetual struggle for authority and hegemony. Thinking in terms of complementarity is all the more important as, for example, domestic and European legal instruments increasingly require companies to respect human rights in the course of their activities and their supply chains. As a result, corporate misconduct can increasingly be brought before domestic civil and criminal courts.[8]

Thus, in an increasingly globalized world, are international courts not simply another key piece in the creation of a new era of global corporate accountability? From this perspective, international and domestic mechanisms each have a reasonable claim to authority. This dismissal of hegemony and recognition of complementarity, leads to a complex series of possible judicial configurations. Action may be taken by domestic courts at the host state or home state level,[9] and at the international level by existing or new mechanisms. To address the complexity of these configurations, we need to move away from ready-made solutions that are imported from existing frames.

2. International Lawyers as Specialists: Thinking in Terms of Specialization

Discussions about international jurisdiction are also framed by specialized international legal regimes. These specializations, such as trade law or human rights law, lead to an understanding of international courts and arbitral tribunals as they are implemented in a specialized regime. As a result, the term “court” appears to retain a general and objective meaning while in fact being assimilated to, for instance, the International Criminal Court or the International Tribunal for the Law of the Sea depending on the concerns that are prioritized.

Take the example of international arbitration and investment arbitration. The perceived success of investment arbitration, at least in terms of case-load and effectiveness, has seen it advanced more frequently as a model or tool for arbitrating corporate misconduct. Yet this approach by analogy risks putting forward or giving precedence to the specialization of investment arbitration as a “best practice” even when arbitration in this specialization is structured to pursue objectives different from corporate misconduct.

Thinking along specialized frames aligns the design of an eventual arbitral tribunal for corporate misconduct with that of a system designed for the significantly different purpose of investment protection. This framing risks inhibiting the conception of international arbitration for corporate misconduct in new terms or at least terms aligned with concerns raised by corporate misconduct. For example, considerations of statist consent are important in investment arbitration, but these considerations may obfuscate a rethink of alternative means of conceiving consent in a post-Westphalian international arbitration turned to victims of corporate misconduct.[10]

Along similar lines, criticisms of arbitration that refer nearly exclusively to the inadequacies and shortcomings of investment arbitration on the grounds that it lacks of legitimacy and public accountability[11] run the risk of framing the possible structure and practices of international arbitration in terms exclusively developed by the investment context. By equating investment arbitration with international arbitration more generally, these criticisms, paradoxically, serve to frame international arbitration in terms of the very investment regime they criticize. This confusion limits the possibilities of international arbitration to those developed in the investment context.

3. Thinking Beyond Adjudication?

The same caution with analogic thinking to the domestic legal system can be extended more broadly to the perceived need for international jurisdiction in the first place—the topic of the ILJ online symposium. If analogies to the domestic context require that we envision some form of international jurisdiction, then existing non-judicial means to address corporate misconduct are necessarily perceived as insufficient and incomplete. As a result, the achievements of non-judicial mechanisms can lose their luster in the process.

The United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises have created impetus for the development of non-judicial mechanisms. These mechanisms are being developed by private and public entities, at the domestic or international level. They are opening new avenues of redress for victims whose human rights were adversely impacted by corporate misconduct.

For instance, a number of companies have developed grievance mechanisms as a means to identify potential and actual adverse impacts on human rights and means of redress for victims. Similarly, the OECD National Contact Points offer stakeholders and members of civil society a means to resolve human rights based conflicts between affected communities and companies. Admittedly, these mechanisms are still in development; the perceived requirement for international jurisdiction, however, could take attention away from their continued development and articulation with existing international and domestic judicial mechanisms.

Besides, a focus on a single international jurisdiction mechanism may overshadow the complex sanctions-regime that already exists for corporate misconduct. These sanctions can be reputational (when misconduct affects a company’s reputation), they can be operational (when the continuation of a project is put in jeopardy because some fundamental rights of local communities have not be respected), and they can be financial (when the multilateral development banks and private banks withdraw funding for a project found to be non-compliant with human rights). This sanctions-regime deserves more scrutiny. It could be more amenable and adaptable to the complexities of corporate misconduct than international jurisdiction, and it could be further accompanied by the development of more accessible remedies for victims of corporate misconduct than judicial proceedings.

Afterword

We have queried how decisions about the internal structure and practices of international mechanisms for corporate misconduct could be framed by lawyers according to the terms of domestic legal systems or specialized legal regimes. Emphasizing frames raises a new set of questions and places a different focus on the question formulated in the ILJ online symposium: from the possibility of international jurisdiction to its possibility but according to which frame?

Our observations and questions are not meant to close the door to international courts or arbitral tribunals as jurisdictions for corporate misconduct. However, if we consider action against corporate misconduct to be a legitimate pursuit, then we need to move beyond discussions confined to the creation of these mechanisms in order to critically engage with the process of description and re-description inherent in any evaluation of international adjudication.[12]

In particular, focus should be placed on the subjectivities and changes in meaning of “international court” and “international arbitration”:[13] What should these terms mean in the context of corporate misconduct, and what do these meanings entail? Thus, it is essential to avoid limiting our analysis to narratives that portray the act of creating an international court or arbitral tribunal for corporate misconduct as the means to normalize complicated tensions among competing interests. The multiple frames that can be used to describe international courts and tribunals provide a map of consensus and dissensus that should form part of the debate on the development of international jurisdiction for corporate misconduct.

* Daniel is a graduate from McGill University (B.C.L./LL.B) and the University of Cambridge (LL.M.). He is a Legal Adviser at the Iran-US Claims Tribunal. Elsa is an attorney-at-law and a graduate from Harvard Law School (LL.M) and from Sciences Po Law School and Pantheon-Sorbonne (Masters). She is part of the Business and Human Rights practice group of Herbert Smith Freehills.

[1] We understand frames as the predispositions (or principles of organization) that delimit our perception of the real. See generally Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (1974).

[2] We speak only in terms of “frames” due to the limited scope of this contribution and thus have not engaged with similar ideas such as “interpretive communities,” “structural bias,” or “unreliable narration.” For a recent general overview, see Matthew Windsor, Narrative Kill or Capture: Unreliable Narration in International Law, 28 Leiden J. Int’l L. 743 (2015).

[3] The need for innovation and new thinking has been noted by several contributors to the ILJ online symposium. See, e.g., Ana Maria Mondragón, Corporate Impunity for Human Rights Violations in the Americas: The Inter-American System of Human Rights as an Opportunity for Victims to Achieve Justice, Harvard Int’l L. J. Online (July 7, 2016) and Angel Gabriel Cabrera Silva, Legal Innovations for Corporate Accountability under International Law: A Critique, Harvard Int’l L. J. Online (July 7, 2016).

[4] See, e.g., James Crawford, Chance, Order, Change: The Course of International, General Course on Public International Law 152−53 (2014).

[5] See Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern L. Rev. 1, 1−2 (2007).

[6] See UN International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, A/CN.4/L.682 (Apr. 13, 2006).

[7] Along these lines, see Mikael Rask Madsen, Sociological Approaches to International Courts, in Cesare P. R. Romano, Karen J. Alter & Chrisanthi Avgerou, eds., Oxford Handbook on International Adjudication (2014).

[8] See, e.g., U.K. Modern Slavery Act 2015 (c. 30), art. 54; Directive 2014/95/EU of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information (L330/1); Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (L119/1)

[9] In the ILJ online symposium, see, e.g., Gabriela Quijano, Where Can Victims of Corporate Human Rights Atrocities Turn for Justice?, Harvard Int’l L. J. Online (July 7, 2016).

[10] See the various approaches to obtaining consent suggested in the ILJ online symposium by Juan Pablo Calderón-Meza, Arbitration for Human Rights: Seeking Civil Redress for Corporate Atrocity Crimes, Harvard Int’l L. J. Online (July 7, 2016).

[11] In the ILJ online symposium, see Amb. David Scheffer, Corporate Liability under the Rome Statute, Harvard Int’l L. J. Online (July 7, 2016).

[12] On this process in international law, see, e.g., Koskenniemi, supra note 5, at 7.

[13] On how the paraphernalia of international arbitration became later associated with international courts, see Daniel Litwin, Portraits of International Adjudication, in Objects of International Law, Jessie Hohmann & Daniel Joyce, eds. (forthcoming 2016).

A review of Interpretation in International Law. Edited by Andrea Bianchi, Daniel Peat and Matthew Windsor. Oxford: Oxford University Press. 2015. Pp. 432. $120.00.

By Odile Ammann

The interpretation of international law poses a myriad of challenges: interpretative authority is dispersed, the sources of international law are non-hierarchical, and its norms are often highly indeterminate—be it because they are designed to apply to many different legal orders, result from compromises, or are unwritten, like customary international legal norms and general principles. Moreover, States are often simultaneously the creators, subjects, primary interpreters, and enforcers of international legal norms, which may cast doubt on their interpretative objectivity.

This book is one of the latest scholarly works tackling the issue of interpretation in international law. Its primary theme is the claim that interpretation in international law is analogous to a game with rules, players, and a goal that can be achieved through different strategies. The contributors illuminate the topic from a range of different theoretical perspectives, such as rhetoric (Iain Scobbie), literary theory (Michael Waibel, René Provost), comparative law (Anne-Marie Carstens), textualism (Fuad Zarbiyev), Nietzschean philosophy (Jens Olesen), the theory of speech acts (Jens Olesen, Ingo Venzke), legal sociology (Martin Wählisch), and linguistics (Ingo Venzke). Three chapters, written by Daniel Peat and Matthew Windsor, Andrea Bianchi, and Ingo Venzke, closely scrutinize the similarities and differences between international legal interpretation and games.

Daniel Peat and Matthew Windsor start with the observation that the current “state of play” of international legal scholarship and interpretive practice suffers from several shortcomings: it is often confined to treaty law and to the “rules” of the Vienna Convention on the Law of Treaties (“VCLT”); it myopically focuses on the international legal realm instead of looking to other legal and extra-legal interpretative practices; and it fails to address and theorize the broader purpose and “mechanics” of interpretation on the international plane. The editors’ aim is to offer “a set of tools for deeper reflection on interpretation in international law.” In this project, the game serves as a “heuristic framework,” illuminating the fact that international law is a social practice and that the constraints within which its interpretation operates open up a space of interpretative freedom.

Andrea Bianchi unpacks the shared characteristics of games and interpretation in international law. The object of the game is to convince others of the correctness of one’s interpretation. While some of the players, including international courts and especially the ICJ, are “more equal than others,” as Orwell would put it, a wide range of participants are involved in the game of interpretation, including NGOs, professional associations and even the research assistants of academics. The game also involves cards, mostly contained in the VCLT, which are often “twisted and bent.” Bianchi then turns to the players’ strategies, that is, the plans designed to help them achieve their aims. In international law, interpreters often use rhetorical tools to increase the persuasiveness of their reasoning, especially when their solution departs from the general rule or from previous cases. Another facet of the game is the question of why players play “the game of game playing.” It pertains, in other words, to the “meta-discourse” about the game. Bianchi espouses a view close to Duncan Kennedy’s description of adjudication as “a work with purpose“: interpreters, Bianchi argues, approach their task with a specific goal in mind and try to make their interpretations conform with it. “Why is the game worth the candle?” Bianchi finally asks. Like the lottery, playing is the only way of winning. Yet unlike what happens in a game of chance, the interpreter of international legal norms can try to influence the game itself. Playing the game through accepted moves gives the players a sense of belonging and strengthens the game’s “coherence and stability,” undermining criticisms of the game’s legitimacy.

Ingo Venzke takes the metaphor of “the language of international law” seriously and analyzes it jointly with the “game analogy.” Applied to international legal interpretation, the language metaphor has at least three dimensions: the language of interpretation is a way to resist the powerful, a standard against which their actions can be appraised; it facilitates communication, especially in situations of disagreement and conflict; and it offers a tool by which interpreters can influence the interpretative result. Venzke notes that international legal interpretation is a performative, law-creating act, and that the success of an interpretation is determined not by the rules, but by the practice of international law. Thus, Venzke is not ready to concede that international legal interpretation is comparable to a game, at least not a game of chess where the players’ moves leave the rules of the game intact. In legal interpretation, “as in language, we make up the rules ‘as we go along.’”

The game analogy on which the contributors rely raises four questions on which it is worth pondering. First, how to deal with the wide range of different games the comparison may elicit? Second, what are the stakes involved in international legal interpretation, and is interpretation necessarily adversarial? Third, can players shape the “rules” of the game? Lastly, what work is the game analogy really doing when applied to international legal interpretation?

What kind of game?

While the book cover displays a game of chess, the editors refrain from choosing a particular game. Their aim is to explore both the potential and the limits of the game analogy. The multifaceted nature of games opens up many interesting parallels, but also creates difficulties. Is international legal interpretation comparable to some games only? Can games as a category provide more than a very thin conceptual tool? If Venzke is right that the “rules” of the game of interpretation change with time, do some games drop out of the analogy? Another difficulty pertains to the normative value of playing the game. Are some games (or certain aims of the players) bad, and according to which criteria? When does an activity stop being a game? Likewise, are some interpretations legally or morally wrong? And what is a legally or morally compelling (as opposed to a merely rhetorically convincing) interpretation?

What are the stakes?

The language of games can also trivialize international legal interpretation—most games do not affect our legal rights and obligations. An unhappy ending to the game of Russian roulette can trigger (if one dare say so) criminal and civil responsibility; yet one may wonder if such an activity has not ceased to be a game. The editors caution against overestimating the “recreational” aspect of games. Yet few games involve stakes as high as those commonly associated with international legal interpretation. The game analogy could also disparage the importance of the legal constraints interpreters must observe and, thereby, encourage unilateralism and self-serving interpretations violating international law. As Venzke writes, in international law, “we make up the rules ‘as we go along’”. Yet if the referee of a soccer game informs the players that they can use their hands to pass the ball around and eventually score, are they still playing soccer? Moreover, on this alleged flexibility of the rules governing the game, it is worth noting, as Hart does in The Concept of Law, that even a sports game is not equivalent to playing “scorer’s discretion,” where the scorer is not bound by any rules.

Another related issue is that games connote an adversarial activity. Even if they often involve teams and can be cooperative, as the editors explain, there is at least one (real or virtual) opponent against whom the player wins or loses. Thus, whether a common interest truly exists in games is open to doubt. While the question also arises in international law, which is governed by the principle of auto-interpretation by states, at least some international legal instruments deal with global common goods or with the relationship between the state and its citizens and, arguably, do not fit this adversarial logic.

How to shape and identify the rules of the game?

A third set of questions pertains to the rules of the games and to their stability. International legal norms often display a high degree of vagueness and need to be made more precise in order to be applied to particular cases. Yet the contributors do not analyze in great depth the process by which the “rules of the game” are changed. The distinction between rules establishing rights and obligations (Hart’s primary rules) and rules stating how primary rules are to be identified, changed and adjudicated (secondary rules) would deserve further analysis, especially given the unequal contribution the different “players” make to the primary and secondary norms of international law and the difficulty for a player to change secondary norms unilaterally. The domestic courts in one state, for example, must be able to “team up” with other international and domestic institutions if their interpretations are to create or change international law—via customary international law or other means.

One may also wonder whether the term “rule” is appropriate in international law. In international human rights law, it might be more accurate to speak of primary and secondary principles instead of rules, given the margin of appreciation states usually enjoy to implement these norms domestically. Since the contributors deplore the “rule-based” approach in international legal practice, it would be worth inquiring whether games can be governed by principles requiring further interpretation.

Lastly, while treaty interpretation is undoubtedly of high practical importance, few contributors think outside the VCLT box to clarify how unwritten norms of international law—for instance, customary international legal norms and general principles of international law—ought to be ascertained. The appropriate methods of identification of customary international law, in particular, are currently at the heart of scholarly debates due to the current work of the International Law Commission (“ILC”) on the matter. Whether customary norms also exist in the world of games, and how the players can identify them and make them evolve, would be questions worth asking in order to contribute to the ILC’s efforts.

What are the analogy’s normative implications?

A last question raised by the game analogy is what work this analogy does, and especially what its normative implications are. The editors argue that the game metaphor has “more than an ornamental value,” yet what purpose the metaphor is intended to serve remains unclear. “[I]f metaphor is the dreamwork of language, then analogy is the brainstorm of jurists’-diction,” Scott Brewer writes. Analogical reasoning is compelling if the analogy-warranting rule and the analogy-warranting rationale, as Brewer calls them, are convincing. While the former clarifies the logical relationship between the characteristics shared by the two items that are being compared and an additional characteristic both items are inferred to possess, the latter justifies why this logical relationship should have legal consequences. It would be useful for the reader to know what to infer from the shared characteristics between games and international legal interpretation, and to learn more about the legal consequences—if any—of the game analogy and its normative justification.

Lastly, given the gap that still exists in legal theory and legal philosophy with regard to the interpretation of international legal norms, the game analogy would perhaps benefit from an explanation as to why the interpretation of international law specifically is relevantly similar to a game. This would contribute to filling a jurisprudential vacuum, as many legal scholars and philosophers have referred to games in their work without mentioning international law.

Interpretation in International Law is an original and thought-provoking edited volume dealing with a challenging issue of international legal theory, an issue that has a bearing on the way international legal interpretation is understood and ultimately conducted. Although the volume leaves open several questions as well as its specific implications for legal practice, the contributors further stimulate the international legal debate through the game analogy – and this move is, without doubt, very well worth the candle.

[PDF]

By Daniel Litwin & Elsa Savourey

International courts and arbitral tribunals, the mechanisms we identify with international adjudication as binding third-party dispute settlement, do not have a universal and fixed meaning. In today’s increasingly diverse landscape of international adjudication, these mechanisms are described and classified according to different and often competing frames that stem from lawyers’ assumptions and views about international courts and arbitral tribunals.[1] The meaning of these mechanisms is framed in terms of, inter alia, lawyers’ expertise in a specialized regime (such as trade law, human rights law, or environmental law) and, more broadly, their background in domestic legal systems.

A discussion about international jurisdiction for corporate misconduct, either as a jurisdiction using existing mechanisms or through the creation of new mechanisms, requires that we understand these frames. The frames lawyers use to understand international courts and arbitral tribunals condition how they are structured and institutionalized, and what criteria are used to determine whether these mechanisms are, for example, legitimate, working for the public interest, and effective. Thus, recognizing and identifying these frames should precede any discussion about an international jurisdiction for corporate misconduct.

In this brief contribution, we review a number of the proposals for an international jurisdiction for corporate misconduct that have been put forward in a recent Harvard International Law Journal online symposium (“ILJ online symposium”) and draw attention to the possible frames that may shape their analysis.[2] We begin by looking at one of the most widely shared frames: the background of international lawyers as domestic lawyers. Subsequently, we consider the frames that stem from specialized international legal regimes and take the example of investment arbitration and its influence on proposals for arbitral tribunals for corporate misconduct. Further, we review the effect of these frames on non-juridical mechanisms including the complex sanctions-regime that already exists for corporate misconduct. We conclude with a call for moving beyond these existing frames in order to open space for self-reflection and new thinking.[3]

1. Thinking in Terms of the Domestic Context

Proposals for an international court to address corporate misconduct may be framed with presumptions and perceptions from the domestic legal training that forms the basic legal education of most international lawyers.[4] This background serves the longstanding assumption that the international legal system should contain the judicial branch that is characteristic of domestic systems.[5] Thus, according to this view, international courts form an innate part of the international legal system, and the domestic judiciary is a benchmark for its international counterpart.

The rise of specialized international legal regimes, self-contained and fragmented,[6] has challenged the idea of a hierarchical system of international courts with the International Court of Justice (“ICJ”) analogous to a domestic supreme court. Yet this has not been followed by inquiries into the internal structure and practices of international courts as traditionally conceived in terms of analogy to the domestic context.[7] Debating the relevance of this sort of analogy could contribute to creative thinking. In that sense, it opens the possibility of considering the various challenges and practices specific to the implementation of an international jurisdiction for corporate misconduct on its own terms.

Recognizing the differences between international courts and domestic courts also opens room for a discussion on the increased significance of domestic jurisdictions in constraining transnational corporate misconduct. If international courts are distinct as to structure and practices from their domestic counterparts, each with their specific rationalities, then it is easier to see domestic and international mechanisms as complementary rather than in perpetual struggle for authority and hegemony. Thinking in terms of complementarity is all the more important as, for example, domestic and European legal instruments increasingly require companies to respect human rights in the course of their activities and their supply chains. As a result, corporate misconduct can increasingly be brought before domestic civil and criminal courts.[8]

Thus, in an increasingly globalized world, are international courts not simply one key piece amongst others in the creation of a new era of global corporate accountability? From this perspective, international and domestic mechanisms each have a reasonable claim to authority. This dismissal of hegemony and recognition of complementarity, leads to a complex series of possible judicial configurations. Action may be taken by domestic courts at the host state or home state level,[9] and at the international level by existing or new mechanisms. To address the complexity of these possible configurations, we need to move away from ready-made solutions that are imported from existing frames.

2. Thinking in Terms of Specialization

Discussions about international jurisdiction are also framed by specialized international legal regimes. These specializations, such as trade law or human rights law, lead to an understanding of international courts and arbitral tribunals as they are implemented in a specialized regime. As a result, although the term “court” appears to retain a general and objective meaning, it means very different things when it is assimilated to, for instance, the International Criminal Court or the International Tribunal for the Law of the Sea, as they prioritize distinct concerns.

Take the example of international arbitration and investment arbitration. The perceived success of investment arbitration, at least in terms of case-load and effectiveness, has seen it advanced frequently in this Symposium as a model or tool for arbitrating corporate misconduct. Yet this approach by analogy risks putting forward or giving precedence to the specialization of investment arbitration as a “best practice” although arbitration in this specialization is structured to pursue objectives different from corporate misconduct.

Thinking along specialized frames aligns the design of an eventual arbitral tribunal for corporate misconduct with that of a system designed for the significantly different purpose of investment protection. This framing risks inhibiting the conception of international arbitration for corporate misconduct in new terms or at least terms aligned with concerns raised by corporate misconduct. For instance, considerations of statist consent are important in investment arbitration, but these considerations may obfuscate a rethink of alternative means of conceiving consent in a post-Westphalian international arbitration turned to victims of corporate misconduct.[10]

Along similar lines, criticisms of arbitration that refer nearly exclusively to the inadequacies and shortcomings of investment arbitration on the grounds that it lacks of legitimacy and public accountability[11] run the risk of framing the possible structure and practices of international arbitration in terms exclusively developed by the investment context. By equating investment arbitration with international arbitration more generally, these criticisms, paradoxically, serve to frame international arbitration in terms of the very investment regime they criticize. This confusion limits the possibilities of international arbitration to those developed in the investment context.

3. Thinking Beyond Adjudication?

The same caution with analogic thinking to the domestic legal system can be extended more broadly to the perceived need for international jurisdiction in the first place—the topic of the ILJ online symposium. If analogies to the domestic context require that we envision some form of international jurisdiction, then existing non-judicial means to address corporate misconduct are necessarily perceived as insufficient and incomplete. As a result, the achievements of non-judicial mechanisms can lose their luster in the process.

The United Nations Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises have created impetus for the development of non-judicial mechanisms. These mechanisms are being developed by private and public entities, at the domestic or international level. They are opening new avenues of redress for victims whose human rights were adversely impacted by corporate misconduct.

For example, a number of companies have developed grievance mechanisms as a means to identify potential and actual adverse impacts on human rights and means of redress for victims. Similarly, the OECD National Contact Points offer stakeholders and members of civil society a means to resolve human rights based conflicts between affected communities and companies. Admittedly, these mechanisms are still in development; the perceived requirement for international jurisdiction, however, could take attention away from their continued development and articulation with existing international and domestic judicial mechanisms.

Besides, a focus on a single international jurisdiction mechanism may overshadow the complex sanctions-regime that already exists for corporate misconduct. These sanctions can be reputational (when misconduct affects a company’s reputation), they can be operational (when the continuation of a project is put in jeopardy because some fundamental rights of local communities have not been respected), and they can be financial (when the multilateral development banks and private banks withdraw funding for a project found to be non-compliant with human rights). This sanctions-regime deserves more scrutiny. It could be more amenable and adaptable to the complexities of corporate misconduct than international jurisdiction, and it could be further accompanied by the development of more accessible remedies for victims of corporate misconduct than judicial proceedings.

Afterword

This contribution has sought to query how decisions about the internal structure and practices of international mechanisms for corporate misconduct could be framed by lawyers according to the terms of domestic legal systems or specialized legal regimes. Emphasizing frames raises a new set of questions and places a different focus on the question formulated in the ILJ online symposium. Instead of speaking in terms of the possibility of international adjudication for corporate misconduct, we suggest speaking in terms of its possibility but according to which frame.

Our observations and questions are not meant to close the door to international courts or arbitral tribunals as jurisdictions for corporate misconduct. However, if we consider action against corporate misconduct to be a legitimate pursuit, then we need to move beyond discussions confined solely to the creation of these mechanisms in order to critically engage with how international adjudication is described and re-described.[12]

In particular, focus should be placed on the assumptions and background beliefs behind the terms “international court” and “international arbitration”:[13] What should these terms mean in the context of corporate misconduct, and what do these meanings entail? Discussions should not be limited to narratives that portray the mere act of creation, in this case an international court or arbitral tribunal for corporate misconduct, as the means to normalize complicated tensions among competing frames. Identifying the multiple frames that can be used to describe international courts and tribunals provides a map of consensus and dissensus. This map allows us to reveal current assumptions and existing boundaries so that we may knowingly account for them or move beyond them when debating the development of international jurisdiction for corporate misconduct.

* Daniel is a graduate from McGill University (B.C.L./LL.B.) and the University of Cambridge (LL.M.). He is a Legal Adviser at the Iran-United States Claims Tribunal. Elsa is an attorney-at-law and a graduate from Harvard Law School (LL.M.) and from Sciences Po Law School and Pantheon-Sorbonne (Masters). She is part of the Business and Human Rights practice group of Herbert Smith Freehills.

[1] We understand frames as the predispositions (or principles of organization) that delimit our perception of the real. See generally Erving Goffman, Frame Analysis: An Essay on the Organization of Experience (1974).

[2] We speak only in terms of “frames” due to the limited scope of this contribution. We have not engaged with similar ideas such as “interpretive communities,” “structural bias,” “expertise”, or “unreliable narration.” For a recent overview, see Matthew Windsor, Narrative Kill or Capture: Unreliable Narration in International Law, 28 Leiden J. Int’l L. 743 (2015).

[3] The need for innovation and new thinking has been noted by several contributors to the ILJ online symposium. See, e.g., Ana Maria Mondragón, Corporate Impunity for Human Rights Violations in the Americas: The Inter-American System of Human Rights as an Opportunity for Victims to Achieve Justice, Harvard Int’l L. J. Online (July 7, 2016) and Angel Gabriel Cabrera Silva, Legal Innovations for Corporate Accountability under International Law: A Critique, Harvard Int’l L. J. Online (July 7, 2016).

[4] See, e.g., James Crawford, Chance, Order, Change: The Course of International, General Course on Public International Law 152−53 (2014).

[5] See Martti Koskenniemi, The Fate of Public International Law: Between Technique and Politics, 70 Modern L. Rev. 1, 1−2 (2007).

[6] See UN International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, A/CN.4/L.682 (Apr. 13, 2006).

[7] For a discussion on this method of inquiry, see Mikael Rask Madsen, Sociological Approaches to International Courts, in Cesare P. R. Romano, Karen J. Alter & Chrisanthi Avgerou, eds., Oxford Handbook on International Adjudication (2014).

[8] See, e.g., U.K. Modern Slavery Act 2015 (c. 30), art. 54; Directive 2014/95/EU of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information (L330/1); Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (L119/1)

[9] In the ILJ online symposium, see, e.g., Gabriela Quijano, Where Can Victims of Corporate Human Rights Atrocities Turn for Justice?, Harvard Int’l L. J. Online (July 7, 2016).

[10] See the various approaches to obtaining consent suggested in the ILJ online symposium by Juan Pablo Calderón-Meza, Arbitration for Human Rights: Seeking Civil Redress for Corporate Atrocity Crimes, Harvard Int’l L. J. Online (July 7, 2016).

[11] In the ILJ online symposium, see Amb. David Scheffer, Corporate Liability under the Rome Statute, Harvard Int’l L. J. Online (July 7, 2016).

[12] On this process in international law, see, e.g., Koskenniemi, supra note 5, at 7.

[13] On changes in the meaning of international adjudication from the perspective of its paraphernalia, see Daniel Litwin, Stained Glass Windows in the Peace Palace: Constructing International Adjudication’s Identity, in Objects of International Law, Jessie Hohmann & Daniel Joyce, eds. (forthcoming 2016).

[PDF]

By Adam S. Chilton & Robert Golan-Vilella*

Abstract

In 1946, the United Nations (UN) created a body comprised of member states known as the Commission on Human Rights (CHR) to promote international human rights. The CHR was consistently plagued with accusations that it was a bad “jury” because its members frequently had abhorrent human rights records. To remedy this problem, in 2006 a reform eliminated the CHR and replaced it with a new body with modified membership rules known as the Human Rights Council (HRC). It is not clear, however, whether the 2006 reform was effective. Using data on the human rights practices of all members of the UN and the relevant bodies from 1998 to 2013, we evaluate whether the 2006 reform helped fix the CHR’s membership problem. We find that the human rights records of the members of the HRC are better on average than the records of the CHR’s members were, but that the human rights records of the members of the HRC still are worse than the average UN member not on the HRC.

Introduction

One of the primary goals of the United Nations (UN) is advancing human rights around the world. To accomplish this goal, the UN has created two successive bodies, comprised of member states, charged with promoting and protecting human rights.

The first of these bodies, the Commission on Human Rights (CHR), was established in 1946 as a subsidiary body of the Economic and Social Council (ECOSOC). Initially created with eighteen member states, the CHR expanded to fifty-three members over the course of its existence.[1] Those members were chosen according to regional groupings, with a certain number of seats assigned to each region.

Many states elected to the CHR, however, were notorious human rights violators. This, critics argued, made the CHR an ineffective vehicle for promoting human rights. For instance, Human Rights Watch Executive Director Kenneth Roth vividly compared the CHR to “a jury that includes murderers and rapists, or a police force run in large part by suspected murderers and rapists who are determined to stymie investigation of their crimes.”[2] Similarly, UN Secretary-General Kofi Annan wrote, “States have sought membership of the [CHR] not to strengthen human rights but to protect themselves against criticism or to criticize others.”[3]

In large part to address the problem that the CHR’s members were among the worst human rights violators, the UN undertook a major reform in 2006 (the “2006 reform”) that eliminated the CHR and replaced it with a new UN body called the Human Rights Council (HRC).[4] The HRC had several new rules regarding how its members would be selected. These included: First, the HRC’s members are chosen by all of the UN’s 193 member states, rather than by the fifty-four countries that make up the ECOSOC. Second, there was a reduction in the body’s number of members, from fifty-three to forty-seven. Third, unlike in the CHR, members of the HRC are not eligible for immediate reelection after serving two consecutive terms. Fourth, states must be elected individually to the HRC. By contrast, in the CHR, regional groups often followed the practice of putting forward “clean slates” of potential candidates that the ECOSOC would practically have to rubber-stamp.[5] One thing that did not change, however, is that the HRC still has a fixed number of seats allocated to each regional group.

Although this was a major change to the UN human rights system, it is still unclear whether the 2006 reform actually produced a better jury. To empirically assess this question, we built a dataset that combines information on all members of the UN, the CHR and the HRC from 1998 to 2013 with a recently developed measure of human rights practices. Using this data, we found that the human rights records of the HRC’s members are better on average than they were previously under the CHR, but that the average HRC member still has a worse human rights record than the average UN member not on the council.

I.  Background

The few commentators to discuss the effect of the reforms on the HRC’s membership have largely based their assessments on qualitative observations. For example, Katherine Short, looking at “the first election for membership of the council,” contended that it “showed significant improvements in comparison to the Commission.”[6] Five years later, Conall Mallory argued that the new membership provisions have “thus far yielded only moderate success.”[7] Meanwhile, some of the HRC’s critics, such as U.S. Representative Ileana Ros-Lehtinen, argue that because “some of the world’s worst human rights violators” are on the HRC, it remains fundamentally flawed and needs to be reformed or dissolved.[8]

To our knowledge, the only attempt to empirically examine the effect of the 2006 reform on human rights records of the members was made by Eric Cox in 2010.[9] Cox used data from Freedom House’s rankings for “Political Rights and Civil Liberties” to count the number of “free,” “partially free,” and “not free” states in each body in the three years before and four years after the 2006 reform. Cox found that there was a very modest level of overall improvement in the records of members of the HRC as compared to those of the CHR.

However, Cox’s work had several limitations. Because it was written in 2010, there were only four years of data on HRC membership available. Additionally, Cox did not compare the countries that made up the CHR or the HRC to other UN members. Finally, Cox did not look at the ratings for the losing candidates in any of the HRC elections.

Here, we provide a more complete picture of the effects of the transition from the CHR to the HRC. To do so, we have compiled data on the members of the UN and these two human rights bodies from 1998 to 2013—eight years under the CHR and eight years under the HRC. We have also compiled information on the UN regional groups[10] that each country belongs to and the candidates that have stood for election to the HRC since the 2006 reform.

The data on human rights records that we use for this analysis are the “Human Rights Scores” created by Christopher Fariss.[11] The Human Rights Scores are a latent measure of repression that combines information from thirteen other data sources on human rights. The Human Rights Scores range from roughly -3 to 3; a score of 0 represents an average human rights record based on all of the years contained in the dataset, and a score of 1 represents a Human Rights Score that is one standard deviation better than average.[12] This measure has the advantage of correcting for changes in reporting standards that potentially bias other sources of human rights data. Given this advantage, this measure has already been widely used in the human rights literature.[13]

II.  Results

Figure 1 presents our primary results. It plots the average Human Rights Score of UN Members that were not on the relevant human rights body (“Other UN Members”) as well as the average Human Rights Score of UN members that were on the CHR before 2006 or the HRC after 2006 (“HR Members”). Consistent with other research using the Fariss 2014 data,[14] Figure 1 shows that the Human Rights Scores of both groups improved between 1998 and 2013.

There are two noteworthy results in Figure 1. First, HR Members consistently have worse Human Rights Scores than Other UN Members. This is true both before and after the 2006 reform. Over the entire 16 years of data, the average Human Rights Score for HR Members is 0.45 and the average for Other UN Members is 0.92—a difference of 0.47. To put this in perspective, this is roughly the same as the difference between Moldova (0.46) and Greece (0.97) in 2010.

Second, the 2006 reform has helped to close the gap between HR Members and Other UN Members. From 1998 to 2005, the average difference between these two groups was 0.57. After the 2006 reform, however, this difference closed to 0.37. In other words, the 2006 reform does appear to have made some progress towards the goal of creating a “jury” with better human rights records.

Figure 1: Members’ Human Rights Records Before & After 2006 Reform

But, as previously noted, despite the progress since 2006, the Human Rights Scores of HR Members are still worse than the records of Other UN Members. Since both bodies’ members are chosen by region, Figure 2 explores why this gap persists by disaggregating the results by region (the top left panel recreates Figure 1 and the other 5 panels show the data for each of the regional groups).

Figure 2: Members’ Human Rights Records Before & After 2006 Reform By Region

As Figure 2 shows, since the 2006 reform there has been considerable regional variation in the differences between the human rights records of HR Members and Other UN Members. Within the Africa region, for example, the HR Members have actually had better Human Rights Scores than Other UN Members on average since 2006 (0.24 compared to 0.11). For both the Asia-Pacific and Western Europe and Others region, however, the Human Rights Scores of the HR Members still lag behind those of the Other UN Members from those same regions. Since 2006, in the Asia-Pacific region the Human Rights Scores for HR Members have been 0.93 lower than Other UN Members from the region, and in the Western Europe and Others region the Human Rights Scores for HR Members have been 0.48 lower than Other UN Members from the region.

Figure 3: Human Rights Records of Candidates in Human Rights Council Elections

The large discrepancies in these two regions raise the question of whether the states chosen for the HRC are the best available candidates in any given year or region. To further explore this issue, Figure 3 plots the average Human Rights Scores for the winning and losing candidates for the Asia-Pacific and Western Europe and Others seats in HRC elections between 2006 and 2012. The gray bars represent contested elections. As the figure illustrates, in many years elections to the HRC simply are not contested. When they were contested, the candidates that won the elections typically had higher average Human Rights Scores than candidates that lost the elections. In short, the gap in Human Rights Scores between HR Members and Other UN Members cannot be closed further unless members with better records contest the elections.

Table 1: Open Seats & Candidates for HRC Elections by Regions

Other regions frequently had uncontested elections as well. Indeed, HRC elections for all regions frequently go uncontested. Table 1 illustrates this by presenting information on the number of open seats and candidates by region for HRC elections from 2006 to 2012. As the results show, in twenty-one of thirty-five regional elections—a full sixty percent of regional elections—the number of candidates was identical to the number of open seats. Given the available candidates, in many cases countries simply do not have the option of electing countries with better human rights records. Of course, countries with better human rights records might not win if they stood for election. These countries may be opting not to run because they have reason to believe they will lose. But the results do demonstrate that there is a significant connection between the remaining gap in human rights records between HR Members and Other UN Members and the lack of competitive regional elections for the HRC in many years.

III.  Conclusion

Our research suggests that the 2006 reform that eliminated the CHR and replaced it with the HRC did result in members with better human rights records. Nonetheless, the gap in human rights records between HR Members and Other UN Members was not eliminated by the reform; on average, Other UN Members still have better records than the members of the HRC. This gap varies across regions and is in part driven by the fact that uncontested elections are still quite common.

It is important to note, however, that human rights records are not the only measure of a country’s fitness to be on the HRC. For example, some small countries with excellent human rights records may lack the diplomatic capacity to serve effectively as council members, and some large countries with poor human rights records may be valuable members because of the perspectives they bring. Considerations such as these suggest that completely eliminating the gap in human rights records between the HR Members and Other UN Members may not be possible or even desirable.

* Adam S. Chilton is an Assistant Professor of Law at the University of Chicago Law School. Robert Golan-Vilella is a 2018 J.D. Candidate at the University of Chicago Law School.

[1] Paul Gordon Lauren, “To Preserve and Build on its Achievements and to Redress its Shortcomings”: The Journey from the Commission on Human Rights to the Human Rights Council, 29 Hum. Rts. Q. 307, 326 (2007).

[2] Kenneth Roth, Despots Pretending to Spot and Shame Despots, Int’l Herald Trib. (Apr. 17, 2001), http://www.nytimes.com/2001/04/17/opinion/despots-pretending-to-spot-and-shame-despots.html.

[3] U.N. Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, ¶ 182, U.N. Doc. A/59/2005 (Mar. 21, 2005).

[4] See Steven Seligman, Politics and Principle at the UN Human Rights Commission and Council (1992­–2008), 17 Isr. Aff. 520, 520–21 (2011).

[5] Conall Mallory, Membership and the UN Human Rights Council, 2 Can. J. Hum. Rts. 1, 30 (2013); see also Lauren, supra note 1, at 326.

[6] Katherine Short, From Commission to Council: Has the United Nations Succeeded in Creating a Credible Human Rights Body?, 9 Sur – Int’l J. on Hum. Rts. 147, 156 (2008).

[7] Mallory, supra note 5, at 1.

[8] Ileana Ros-Lehtinen, A Human Rights Council Worthy of the Name, Wash. Times (Dec. 9, 2015), http://www.washingtontimes.com/news/2015/dec/9/ileana-ros-lehtinen-un-human-rights-council-must-b/.

[9] See Eric Cox, State Interests and the Creation and Functioning of the United Nations Human Rights Council, 6 J. Int’l L. & Int’l Rel. 87 (2010).

[10] The data on UN regional groupings is available at: United Nations Regional Groups of Member States, United Nations, http://www.un.org/depts/DGACM/RegionalGroups.shtml (last visited Aug. 5, 2016).

[11] The Human Rights Scores are presented and explained in Christopher J. Fariss, Respect for Human Rights Has Improved over Time: Modeling the Changing Standard of Accountability, 108 Am. Pol. Sci. Rev. 297 (2014).

[12] For an extended discussion of Fariss’s Human Rights Scores, see Adam S. Chilton & Mila Versteeg, The Failure of Constitutional Torture Prohibitions, 44 J. Legal Stud. 417 (2015).

[13] See, e.g., id.; Christopher J. Fariss, The Changing Standard of Accountability and the Positive Relationship between Human Rights Treaty Ratification and Compliance, Brit. J. Pol. Sci. (forthcoming), http://ssrn.com/abstract=2517457.

[14] See, e.g., Fariss, supra note 13.