Corporate Accountability in International Law: a “State Shaming” Exercise

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Cited in

Author	Adeline Michoud

Corporate Accountability in International

Law: a “state shaming” Exercise

Adeline Michoud1*

When the United Nations system was

founded, States were the dominant power

and the main actors at the international

stage. They were thus the only bearers of

obligations in international law as they

were perceived as the only ones capable of

infringing international norms.

Globalization has seen the emergence of new

actors and corporations have gradually

exercised some functions similar to that of

states.

This change leads us to reconsider the

allocation of responsibilities in international

law. The growing recognition of the

potential impact of corporations upon

human rights has spurred the development

1* Adeline Michoud defended her PhD in Law in 2019 at the

University of Geneva with the magna cum laude distinction. She

has followed her studies in different European universities and

has obtained a LL.B in English law (King’s College London), a

Masters in French Law (Paris I Panthéon Sorbonne), a Bachelor

and Master’s degree in Swiss law (University of Geneva) and a

LL.M in International Law (Graduate Institute, Geneva).

Corporate accountability in international law: a “state shaming”

exercise 191

of a number of regulatory initiatives in the

last decades. The initiatives adopted have

mostly taken the shape of soft law initiatives

that do not impose direct binding

obligations on corporations, as these

initiatives rather focus on States’

obligations. Even at the regional level,

States tend to be the only duty-bearers, even

in cases involving corporations’ activities.

In this Article, the author discusses about

the allocation of responsibilities in

international law and criticizes the

reluctance of international instruments to

address the issue of corporate

accountability, by only targeting States as

the main wrongdoers and duty-bearers. The

author also undertakes a comparative

analysis of regional human rights systems

and their rulings relating to corporate

responsibility.

Introduction

In the last decades, a series of tragic events have revealed to

the public abusive business practices used by several

192 SLJ 7 (1)

transnational corporations (TNCs) having delocalized their

production abroad.2 Recent examples of irresponsible

corporate conduct in their supply chains include hazardous

working conditions in the textile industry in Bangladesh

(November 2012),3 the widespread use of forced labour in the

fishing industry in Thailand (June 2014)4 and the

environmental pollution and devastation of livelihoods

caused by a dam collapse in Brazil (November 2015).5 Human

2 We can notably quote the Bougainville conflict in Papua New

Guinea. For a more detailed analysis of the events surrounding

the mining and the civil war, see Kristian Lasslett, ‘State Crime

by Proxy: Australia and the Bougainville Conflict’ (2012) 52

BRIT J CRIMINOL 705; Anthony J. Regan, ‘Causes and Course

of the Bougainville Conflict’ (1998) 33 J PAC HIST 269; Herb

Thompson, ‘The economic causes and consequences of the

Bougainville crisis’ (1991) 17 RESOUR POLICY 69; and Ronald

James May, ‘Papua New Guinea’s Bougainville Crisis’(1999) 3

The Pacific Review 174.

3 See notably: Jason Burke and Saad Hammadi, ‘Bangladesh

textile factory fire leaves more than 100 dead’, The Guardian

(2012) at

textile-factory-fire>.

4 See for example: Kate Hodal, Chris Kelly and Felicity Lawrence

‘Revealed: Asian slave labour producing prawns for

supermarkets in US, UK’, The Guardian (2014) at

development/2014/jun/10/supermarket-prawns-thailand-

produced-slave-labour >.

5 See notably: Zoe Sullivan, ‘Brazil's Doce River still foul eight

months after dam collapse’, DW (2016) at

months-after-dam-collapse/a-19375872>; and Dom Phillips

Corporate accountability in international law: a “state shaming”

exercise 193

rights violations committed by TNCs are in fact

commonplace in developing countries.6

With globalization, TNCs have become important players in

the international arena,7 which benefits from transfers of

‘Samarco dam collapse: one year on from Brazil's worst

environmental disaster’, The Guardian (2016) at

samarco-dam-collapse-brazil-worst-environmental-disaster-bhp-

billiton-vale- mining> . See more generally Grégory Jackson and

Julia Bartosch, ‘Corporate Responsibility in Different Varieties of

Capitalism: Exploring the Role of National Institutions’, Freie

UniversitätBerlin,2016availableat:

stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikatione

n/Studie_BS_Corporate-Responsibility-in-Different-Varieties-of-

Capitalism-Exploring-the-Role-of-National-

Institutions_2016.pdf>.

6 Human Rights Council, Corporations and human rights: a

survey of the scope and patterns of alleged corporate-related

human rights abuse, A/HRC/8/5/Add.2 4, 23 May 2008.

7 Joel Paul, ‘Holding Multinational Corporations Responsible

Under International Law’(2001) 24 Hastings Int'l & Comp. L.

Rev. 285, 286; Alison Shinsato, ‘Increasing the Accountability of

Transnational Corporations for Environmental Harms: The

Petroleum Industry in Nigeria’ (2005), 4 Northwestern Journal of

International Human Rights 186, 188; Scott Pegg, ‘An Emerging

Market for the New Millennium: Transnational Corporations

and Human Rights’, in Jedrzeg Frynas and Scott Pegg (eds),

Transnational Corporations and Human Rights (Palgrave

Macmillan, 2003).

194 SLJ 7 (1)

capitals between countries through the removal of trade

barriers and the lowering of transactional costs. The

economic wealth is sometimes equal or even superior to

some countries.8 Indeed, it was estimated by an NGO in 2015

that among the 100 biggest economic entities of the world, 69

were corporations.9 Thus, corporations are increasing in

power, leading to a new public order. This new public order

justifies a shift in the repartition of rights and obligations.10

For the last decades, the growth of transnational corporations

has been paralleled by concerns to find ways to regulate

business activities, as their cross-national structures represent

new challenges for the traditional territorial regulation of

States.

Under international human rights law, the State is supposed

to be the sole duty-bearer to ensure the respect of human

rights. Yet, instruments such as the Universal Declaration on

8 Philip Blumberg, ‘Accountability of multinational corporations:

the barriers presented by concepts of the corporate juridical

entity’ (2001) 24 Hastings Int'l & Comp. L. Rev. 297.

9 See: ‘10 biggest corporations make more money than most

countries in the world combined’ Global Justice (2016) at

corporations-make-more-money-most-countries-world-

combined>.

10 Mirela Hristova, ‘The Alien Tort Statute: A Vehicle for

Implementing the United Nations Guiding Principles for

Business and Human Rights and Promoting Corporate Social

Responsibility’ (2012-2013) 47 U.S.F.L. Rev. 89; Heike Fabig,

‘The Body Shop and the Ogoni’, in Michael Addo (ed), Human

Rights Standards And The Responsibility Of Transnational

Corporations (Kluwer Law International, 1999) 309.

Corporate accountability in international law: a “state shaming”

exercise 195

Human Rights (UDHR) (which mentions the responsibility of

‘every organ of society’11) or the UN Covenant on Civil and

Political Rights (ICCPR) (which provides that no ‘group or

person’ shall be able to ‘engage in any activity (…) aimed at

the destruction of any of the rights and freedoms recognized

herein’12) tend to indicate a certain propensity to the

regulation of private actors as well.

When the United Nations system was founded, States were

the dominant power. They were deemed to be the only

bearers of obligations in international law as they were

perceived as the only ones capable of infringing international

norms.13 Globalization has seen the emergence of new

actors14 and corporations have gradually exercised some

functions similar to that of states.15 Indeed, corporations

exercise substantial influence over individuals, as they can

for example determine their working conditions or have an

11 Universal Declaration of Human Rights, U.N. Doc A/810

(1948).

12 International Covenant on Civil and Political Rights, U.N. Doc.

A/6316 (1966).

13 Chris Jochnick, ‘Confronting the Impunity of Non-State

Actors: New Fields for the Promotion of Human Rights’ (1999),

21 HUM RIGHTS Q. 56, 59.

14 Steven Ratner, ‘Corporations and Human Rights: A Theory

of Legal Responsibility’ (2001-2002) 111 YALE L.J. 442, 468.

15 See Louise Amoore, ‘Making the Modern Multinational’ in

Christopher May (ed), Global Corporate Power, (Lynne Rienner

Publisher, 2006), 62.

196 SLJ 7 (1)

impact on the pollution of the environment they live in.16

This new power leads to a necessity to better allocate

responsibilities and hold corporations accountable. Given the

serious detrimental impacts that TNCs’ operations can create,

some multilateral treaties already impose direct obligations

on companies, such as the Paris Convention on the Third

Party Liability in the Field of Nuclear Energy,17 the

International Convention on Civil Liability for Oil Pollution

Damage,18 and the European Council Convention on Civil

Liability for Damage Resulting from Activities Dangerous to

the Environment.19 These treaties all place responsibilities on

businesses.20 The growing recognition of the potential impact

of corporations on human rights has spurred the

development of a number of regulatory initiatives in the last

decades. The initiatives adopted have mostly taken the shape

of soft law initiatives that do not impose directly binding

obligations on corporations, but rather focus on states. Even

16 Steven Ratner, ‘Corporations and Human Rights: A Theory of

Legal Responsibility’ (2001-2002) 111 YALE L.J. 442, 462.

17 See Art. 6 of the Convention Third Party Liability in the Field

of Nuclear Energy of 29th July 1960, as amended by the

Additional Protocol of 28th January 1964 and by the Protocol of

16th November 1982.

18 See Arts. 3-4 of the International Convention on Civil Liability

for Oil Pollution Damage, 1992.

19 See Art. 6 of the Convention on Civil Liability for Damage

Resulting from Activities Dangerous for the Environment, 1993.

20 Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal, the

International Convention on Civil Liability for Oil Pollution

Damage (CLC) and the International Convention for the

Prevention of Pollution from Ships (MARPOL).

Corporate accountability in international law: a “state shaming”

exercise 197

at the regional level, States tend to be the only duty-bearers,

even in cases involving corporations’ activities. However, the

imposition of hard law obligations on corporations is

progressively discussed on the international stage. Indeed,

following a proposal made by Ecuador and South Africa

before the Human Rights Council in September 2013, the

Human Rights Council adopted a resolution on the

establishment of an Intergovernmental Working Group ‘to

elaborate an international legally binding instrument’, aiming

notably to ensure access to justice and redress to victims of

corporate abuse.21 Discussions are currently held at the

United Nations to find an agreement on the elaboration of

this treaty. This new instrument represents the hope for a

new era that would finally establish and recognise corporate

accountability in international law. Throughout this Article,

we shall hence discuss the allocation of responsibilities in

international law and criticise this evident reluctance to

address the issue of corporate direct accountability, as

international instruments mostly target States as the main

wrongdoers and duty-bearers. As we shall argue, soft law

instruments should pave the way to build consensus to set

the ground for the effective regulation of corporate actors.

Yet, as we shall illustrate with the analysis of regional human

rights systems, States remain the main duty-bearers before

21 Resolution A/HRC/26/9, United Nations, General Assembly,

Human Rights Council, 26th session, July 14 2014, Elaboration of

an International Legally Binding Instrument on Transnational

Corporations and other Business Enterprises with respect to

Human Rights.

198 SLJ 7 (1)

international jurisdiction, which allows evading the question

of corporations’ liability.

II. The repetitive adoption of international soft law

instruments relating to corporate accountability

International organisations have started to realise the

importance of the problem relating to corporate

accountability quite early on. In fact, a first effort to regulate

international business practice had been started in 1948 with

the inclusion of investment and social responsibility

provisions in the Havana Charter for an International Trade

Organization. However, the Charter was never adopted.22

A second attempt was then made in 1974 by the United

Nations Centre on Transnational Corporations (UNCTC)23

with the negotiation of a Code of Conduct on Transnational

Corporations. Indeed, in the 1970s, several scholars had

started warning that transnational corporations (TNCs) were

acquiring a certain importance on national economies.24 The

main concern was that TNCs operated beyond the reach of

22 The Charter was adopted in the final act of the United Nations

Conference on Trade and Employment held at Havana, Cuba,

from 21 November 1947 to 24 March 1948.

23 The Centre was established in 1974 and abolished in 1992.

24 See generally on the topic: Jean-Jacques Servan-Schreiber, Le

Défi Américain (Denoël, 1967); Kari Levitt, Silent Surrender: The

Multinational Corporation in Canada, (Canada Macmillan,

1970).

Corporate accountability in international law: a “state shaming”

exercise 199

states’ national sovereignty. Therefore, in November 1974,

the UN General Assembly mandated the UNCTC to

elaborate a normative framework for TNCs. The long-term

objective was the adoption of an international treaty to

monitor TNCs, which would require extended discussion.25

For 20 years, the United Nations Commission on

Transnational Corporations negotiated for the adoption of a

United Nations (UN) Draft Code of Conduct of Transnational

Corporations26 but no agreement could be found between

developing and developed countries to decide whether the

rules of conduct should be ‘detailed and mandatory’ or

more ‘general and voluntary’.27 The UN Draft Code raised so

much controversy that it was finally abandoned since the

idea of imposing direct obligations on companies met strong

opposition.28 As a result, only soft law instruments have been

25 United Nations, The Impact of Multinational Corporations on

Development and on International Relations, (United Nations

Press, 1974) 54.

26 Commission on Transnational Corporations, Proposed Text of

the Draft Code of Conduct on Transnational Corporations,

United Nations Centre on Transnational Corporations,

Transnational Corporations, Services and the Uruguay Round

Current Studies, Annex IV, UN Doc ST/CTC/103 (1990).

27 Sean Murphy, 'Taking Multinational Corporate Codes of

Conduct to the Next Level' (2005) 43:22 Columbia Journal of

Transnational Law 389, 404.

28 David Kinley, Justine Nolan and Nathalie Zerial, 'The p

olitics of c orporate s ocial r esponsibility: Reflections on

the United Nations Human Rights Norms for Corporations'

(2007) 25 Companies and Securities Law Journal 30, 35.

200 SLJ 7 (1)

adopted to this day at the international level to regulate

corporate activities in the field of human rights. In this first

section, we shall study the different ‘soft law’ instruments

that have been adopted at the international level relating to

business and human rights.

II A) The ILO Tripartite Declaration of Principles concerning

Multinational Enterprises and Social Policy

The International Labour Organisation (ILO) is a specialized

United Nations agency in charge of the drafting of

international labour standards as well as of their enforcement

by Member States. The ILO is one of the first international

organizations that has started measuring the importance of

the question of corporate social responsibility. Indeed, in the

1960s, it started drafting the Tripartite Declaration of

Principles concerning multinational enterprises and social

policy. The declaration was drawn up to define and regulate

the conduct of multinationals with their host countries.29 The

declaration was intended as a set of guidelines to help TNCs,

governments, and workers’ organizations in their activities

and their interactions.30 These guidelines are based on

principles contained in international labour conventions and

29 International Labour Organization, “Tripartite Declaration of

Principles concerning Multinational Enterprises and Social

Policy (MNE Declaration) - 5th Edition (2017)”

en/index.htm>.

30 Christine Kaufmann, Globalisation and Labour Rights: The

Conflict between Core Labour Rights and International

Economic Law, (Hart Publishing, 2007) 166

Corporate accountability in international law: a “state shaming”

exercise 201

recommendations and cover a broad range of areas such as

conditions of work and life. The original declaration was

amended three times and last revised in 2017 to better adapt

it to the role of TNCs in today’s globalization.31

The declaration is meant to ‘guide governments, employers’

and workers’ organisations of home and host countries and

multinational enterprises in taking measures and actions and

adopting social measures (…) to further social progress and

decent work’.32 The declaration also allows governments and

unions to conduct surveys to gather information from TNCs

in order to draw conclusions on policies and suggest possible

changes.33 In 2016, the Declaration has notably led to the

conclusion of an agreement with the construction sector in

the Arab states (in the context of the preparation of the 2020

World Expo in Dubai and the 2022 Football World Cup in

Qatar in which many migrant workers from Asia and Africa

31 International Labour Organisation, The Labour Principles of

the United Nations Global Compact A Guide for Business,

labour_principles_a_guide_for_business.pdf>.

32 Updated version of the Tripartite Declaration of Principles

concerning Multinational Enterprises and Social Policy (March

2017), para. 4.

33 Aishwarya Padmanabhan, 'Human Rights and Corporations:

An Evaluation of the Accountability and Responsibility of

MNCs under the ILO framework' (2011) 42 Journal of Corporate

Citizenship 8, 10.

202 SLJ 7 (1)

are involved).34 However, the declaration has only moral

authority.35 In case of breach, a complaint cannot be filed

against a State for not complying with the objectives of the

declaration.36 Therefore, one of the main triggers for change

and compliance under the Tripartite Declaration lies with the

public pressure.37

II B) The OECD Guidelines

The Organisation for Economic Co-operation and

Development (OECD) is an intergovernmental economic

organisation founded in 1960 to foster economic progress and

34 See International Labour Organisation, Engagement with the

construction sector in the Arab States,

--en/index.htm>.

35 See ILO Report, The ILO MNE Declaration : What’s in it for

Workers?, ---

ed_dialogue/--actrav/documents/publication/wcms_627351.pdf >

36 The complaint procedure under the ILO Constitution is

restricted to non-compliance with a ratified ILO Convention by

a Member State. See articles 26 to 34 of the ILO Constitution:

LIST_ENTRIE_ID:2453907:NO#A26>.

37 For more information, see : Ian Marshall Sander, Qatar,

Migrants Laborers and the ILO, Michigan Journal of

International Law, Vol. 39, available at :

ilo/> ; Beryl Ph. Ter Haar, The FIFA 2022 World Cup and Labour

Rights – Seizing the Moment for Labour Law Reforms in Qatar,

Kutafin University Law Review, Vol.4 (1), 2017, available at :

018_04_Kutafin_University_Law_Review.pdf?sequence=1>.

Corporate accountability in international law: a “state shaming”

exercise 203

compare policy experiences among its 35 member countries.

The OECD started considering the question of business and

human rights in the 1970s by issuing guidelines (known as

the OECD Guidelines), a set-up of recommendations

addressed by governments to transnational corporations.

These Guidelines contain recommendations on human rights,

employment, industrial relations and environment among

others. They apply to all corporations which have a parent

company or operate in any of the signatory states, even if the

enterprises also operate in non-signatory states. National

Contact Points (NCPs) were created with the adoption of the

Guidelines. They are responsible for promoting observance

of the Guidelines in the national context and for ensuring that

the Guidelines are known and understood by enterprises.38

Governments that have adhered to the Guidelines are obliged

to set up National Contact Points which can be either a

government department or independent structures

comprising government officials, trade unions, employers’

unions, and sometimes non-governmental organizations.

NCPs can report regularly to the OECD Investment

Committee, which can then issue clarifications on how the

Guidelines should apply and be interpreted.39

38 OECD, General Policies I.1, OECD Guidelines for

Multinational Enterprises.

39 Pia Acconci, 'The Promotion of Responsible Business Conduct

and the New Text of the OECD Guidelines for Multinational

Enterprises' (2001) 2 Journal of World Investment 123, 140 –141.

204 SLJ 7 (1)

The NCPs include a ‘specific instance’ procedure in charge of

handling complaints against companies operating within

their national jurisdiction and suspected of having failed to

comply with the Guidelines’ standards.40 This instance

oversees the resolution of disputes, through mediation and

conciliation. The dispute resolution procedure can be used by

anyone who can prove an interest in the alleged violation.41

However, the effectiveness of this mechanism has been

debated and some civil society actors have criticized NCP

procedures as uneven and often ineffective.42 Indeed, if no

conciliation is reached, the NCP does not offer any other

recourse to the victims.43

Although this ‘specific instance’ claim review mechanism

does not have the power to impose sanctions, the NCP can

publish information on non-compliance. This provides

some force to the Guidelines, as this information can notably

40 The Implementation Procedure of the OECD Guidelines for

Multinational Enterprises is included in Part II of the OECD

Guidelines, Section II.

41 Canosa Abogados, Argentina: The OECD Guidelines for

Multinational Companies and the Specific Instance, 5 August

2019, available at :

Law/833310/The-OECD-Guidelines-For-Multinational-

Companies-And-The-Specific-Instance>.

42 OECD Watch, Calling for Corporate Accountability

43 Barnali Choudhury, 'Beyond the Alien Tort Claims Act:

Alternative Approaches to Attributing Liability to Corporations

for Extraterritorial Abuses' (2005) 26 Northwestern Journal of

International Law and Business 43, 54.

Corporate accountability in international law: a “state shaming”

exercise 205

be used in civil or criminal litigation.44 Thus, this can put

pressure on TNCs since they might fear the related negative

impact on their reputation towards the public. Nevertheless,

the efficiency of such a system is still criticized. The non-

binding nature of the Guidelines has been criticized as a

‘gentlemen’s agreement’45 without a real bite. Indeed,

according to the Guidelines, TNCs do not assume legal

liability for non-compliance.

Another critique relates to the fact that complaints are

considered by the NCPs are usually established within

governmental institutions which promote international trade

and investment46 rather than human rights47. This might

44 Antony Crockett, HUMAN RIGHTS COMPLAINTS

AGAINST MULTINATIONALS INCREASING (29 October

2015)

thinking/human-rights-complaints-against-multinationals-

increasing>.

45 Corporate Watch, OECD’s Crocodile Tears, (2000), at

46 For example, the German NCP is part of the Federal Ministry

of Economics and Technology entrusted with the promotion of

foreign trade and investment. The Italian NCP is within the

Ministry of Economic Development, and the Korean NCP is

located in the Ministry of Commerce, Industry and Energy.

47 According to a report produced by Rights and Accountability

in Development (RAID) and the Centre for Research on

Multinational Corporations (SOMO), NCPs generally favour

business and even seem to be “designed to discourage

complaints” by responding too slowly and interpreting the

Guidelines in a restrictive manner. See OECD Watch, Review

206 SLJ 7 (1)

indicate a sign of bias or ineptitude of these authorities.

Therefore, the OECD Guidelines show some limitations in

being able to foster a real compliance with human rights

standards by corporations.

II C) The UN Global Compact

The UN Global Compact,48 which was launched in 2000,

consists of a ‘practical framework for the development,

implementation, and disclosure of sustainability policies and

practices’.49 It is a policy initiative addressed to public sector

bodies, corporations, NGOs, and labour organisations in

order for them to sign up to a set of ten universally accepted

principles in the areas of human rights, labour, environment

and anti-corruption, derived from various international legal

instruments. The ten principles of the Global Compact are

issued from four of the most widely ratified international

legal instruments, namely: The Universal Declaration of

Human Rights; the International Labour Organisation’s

Declaration on Fundamental Principles and Rights at Work;

the Rio Declaration on Environment and Development; and

the United Nations Convention Against Corruption.

of National Contact Points for the OECD Guidelines for the

Period of June 2003 – June 2004,

content/uploads/sites/8/2004/06/2004.pdf>.

48United Nations, Global Compact,

49 The United Nations Global Compact, Global Compact Cities

Programme,

responsibility/un-global-compact >.

Corporate accountability in international law: a “state shaming”

exercise 207

Thus, the UN Global Compact breaks with the traditional

modes of standard-setting generally used by the UN.50 It is

the largest voluntary corporate social responsibility initiative

in the world, as it groups 12 000 signatories, among which 9

000 corporations and more than 4 000 non-business.51

Therefore, this initiative was described as a fundamental shift

by the previous UN Secretary-General Kofi Annan: ‘The

United Nations once dealt only with governments. By now

we know that peace and prosperity cannot be achieved

without partnerships involving governments, international

organizations, the business community and civil society’.52

Once an enterprise has signed onto the Global Compact, it

commits to apply the Global Compact principles by including

them in its business practice53 in a complete and long-term

50 For contrasting views on the merits of the Global Compact, see

David Coleman, 'The United Nations and transnational

corporations: From an inter-nation to a “beyond state” model of

engagement' (2003) 17 Global Society 339, 339; Betty King, 'The

UN Global Compact: Responsibility for Human Rights, Labor

Relations, and the Environment in Developing Nations' (2001)

34:3 Cornell International Law Journal 481, 482.

51 UN Global Compact, Our Participants,

is-gc/participants>.

52 United Nations, United Power of Markets with authority of

Universal Values, Secretary-General Urges at World Economic

Forum, Press Release, SG/SM/6448, January 30 1998.

53 UN Global Compact, 'After the Signature- A Guide to

Engagement in the Global Compact' (UN Nations Press, 2008)

11, <

http://www.unglobalcompact.org/docs/news_events/8.1/after_th

e_signature.pdf> Verlag, 2010) 164.

208 SLJ 7 (1)

manner.54 The company is also required to conduct risk-

assessments of its activities and to issue strategies to tackle

these risks.55 Therefore, under the Global Compact system,

businesses are expected to ‘support and respect the

protection of internationally proclaimed human rights’.56

On the other hand, we shall note that the terms used to

describe the responsibilities of corporations are quite elusive.

In fact, it is not completely clear what behaviour is expected

from participating businesses. The Global Compact is

criticised for its lack of enforcement mechanisms.57 A too-

54 UN Global Compact, ‘After the Signature- A Guide to

Engagement in the Global Compact’ (UN Nations Press, 2008)

11, <

http://www.unglobalcompact.org/docs/news_events/8.1/after_th

e_signature.pdf>.

55 Deloitte, UN Global Compact – Management Model,

Framework for Implementation, Human Rights, Labour

Environment, Anti-Corruption 12,

_archives/2010_06_17/UN_Global_Compact_Management_Mod

el.pdf>

56 UN Global Compact, Principles 1 and 2.

57 Justine Nolan, 'The United Nations’ Compact With Business:

Hindering or Helping the Protection of Human Rights?' (2005)

24:2 University of Queensland Law Journal 445, 460; Surya

Deva, 'Global Compact: A Critique of the U.N.’s Public-Private

Partnership For Promoting Corporate Citizenship', (2006) 34:1

Syracuse Journal of International Law and Commerce 107,150;

Evaristus Oshionebo, 'The UN Global Compact and

Accountability Transnational Corporations: Separating Myth

from Realities' (2007) 19 Florida Journal of International Law 1,

23–25.

Corporate accountability in international law: a “state shaming”

exercise 209

wide margin of appreciation is left to businesses regarding

the interpretation and application of the Compact’s

principles.58 Thus, it is even affirmed that the Global

Compact hinder development ‘by disguising profit-making

aspirations under a veil of social conscience’.59 Others invoke

the fact that the Global Compact represents a perfect

opportunity for corporations to green wash their image,

using the image of a UN flag to indicate to the public that

they are respectful of UN principles, while breaching at the

same time human rights that they are supposed to comply

with. This results in allowing them to benefit from a good

reputation despite their non-compliance with the initiative.60

One of the weaknesses of the Global Compact is the fact that

it does not provide any compliance or control mechanism

through which victims of adverse impacts caused by TNC’s

activities can obtain redress. In fact, corporations can decide

by themselves how to implement the Global Compact

Agenda. The Global Compact mostly relies on the idea that

good practices should be rewarded by being publicised on

58 Justine Nolan, 'The United Nations’ Compact with Business:

Hindering or Helping the Protection of Human Rights?' (2005)

24:2 University of Queensland Law Journal 445, 460

59 Jean-Philippe Thérien and Vincent Pouliot, 'The Global

Compact: Shifting the Politics of International Development?'

(2006) 12:1 Global Governance: A Review of Multilateralism and

International Organizations 55, 67.

60 David Bigge, 'Bring on the Bluewash: a social constructivist

argument against using Nike v. Kasky to attack the UN Global

Compact' (2004) 14(1) International Legal Perspectives 6, 12.

210 SLJ 7 (1)

the official website of the initiative. Therefore, just like the

OECD Guidelines or the ILO Tripartite Declaration, the

Global Compact fails to create binding obligations for

corporations. It has even been underlined that many

corporate members of the Global Compact have been

criticized for violations of the compact’s principles.61

Under the Global Compact system, a written complaint can

be submitted by any individual, organisation or state to the

Global Compact Office, which will require the relevant

company to provide written comments and keep it informed

of action undertaken to address the situation brought to its

attention. The Office will not assess the situation but simply

provide guidance and assistance to the company to remedy

the situation. The Office can also refer the matter to the

relevant UN specialized entity for advice, assistance or

action, but it cannot take enforcing measures against the

corporation to make it comply with the protected principles.

To tackle this criticism of inefficiency, a Communication on

Progress (COP) mechanism was introduced in 2005 to create

a public reporting requirement. A communication must thus

be sent annually by signatories to communicate on their

application of the Global Compact’s principles. The COP

61 Andrew Clapham, Human Rights Obligations of Non-State

Actors (Oxford University Press, 2006) 225; Surya Deva,

'Treating Human Rights Lightly: A Critique of the Consensus

Rhetoric and the Language Employed by the Guiding Principles’

in Surya Deva and David Bilchitz (eds), Human Rights

Obligations of Businesses: Beyond the Corporate Responsibility

to Respect? (Cambridge University Press, 2013) 92.

Corporate accountability in international law: a “state shaming”

exercise 211

must be published on the UN Global Compact website and

shared with the company’s stakeholders. Failure to submit an

annual COP results in a change in the participant’s status

from ‘Active’ to ‘Non-Communicating’. Participants who do

not communicate progress for two years in a row are then

delisted. In November 2015, 2,063 companies were ranked

under the ‘Delisted’ status on the Global Compact website62,

which shows that a substantial number of companies do not

take proper care to communicate on their efforts to comply

with the Global Compact’s principles.

Another measure taken in 2005 introduced strict rules on the

use of UN and Global Compact logos. Moreover, a new

complaint mechanism was set up: Section 4 of the 2005 Public

Sector Integrity Measures63 introduced a dialogue process to

settle ‘credible allegations of (…) abuse of the Global

Compact’s (…) principles by a participating organization’.

The purpose of the dialogue is to ‘assist participants in

aligning their actions with the commitments they have

undertaken with regards to the Global Compact principles’.

Yet, these initiatives are insufficient to cure the initial failure

of the UN Guiding Principles relating to the lack of efficient

62 Alice De Jonge and Roman Tomasic, Research Handbook on

Transnational Corporations (Elgar, 2017) 25.

63 See OECD, Public Sector Integrity: A Framework for

Assessment,

http://www.oecd.org/gov/ethics/publicsectorintegrityaframewor

kforassessment.htm>.

212 SLJ 7 (1)

sanctions.64 Fostering dialogue does not constitute a strong

enough measure to answer the critiques raised by several

relevant actors, who perceive the instrument as a

greenwashing tool for companies.65 Surely aware of the

shortcomings of the UN Global Compact, the UN tried to

conduct other initiatives in order to impact business practices

more deeply.

II D) The UN Guiding Principles

The 2011 UN Guiding Principles on Business and Human

Rights (UNGPs, also referred to as the Ruggie’s Principles, by

the name of the Harvard Professor in charge of their drafting)

represent one of the most recent soft law attempts at

regulating corporations in international public law. The

UNGPs have gathered an unprecedented consensus among

states, corporations and human rights defenders.66 The UN

64 Mari a Alej andra Gonzal ez-Pe rez an d Liam Leona rd, The

UN G lobal Compac t in A lice d e Jong e, Re search Handb ook

on T ransna tional Compa nies, (Edwar d Eld gars, 2017) 117-

138.

65 See Gustavo Capdevila, UN: Global Compact with Business

‘Lacks Teeth’ – NGOs, 2007, available at :

lacks-teeth-ngos>.

66 See for example European Commission, Commission Staff

Working Document on Implementing the UN Guiding

Principles on Business and Human Rights – State of Play, SWD,

44 final, (July 14 2015) ; Robert Blitt, 'Beyond Ruggie’s Guiding

Principles on Business and Human Rights: Charting an

Embracive Approach to Corporate Human Rights Compliance'

(2012) 48 Texas International Law Journal 33, 52; Jan Wouters

Corporate accountability in international law: a “state shaming”

exercise 213

Guiding Principles aim to clarify the implications of relevant

international human rights provisions for both states and

businesses.67 Similarly to the UN Global Compact, the

Principles do not create new obligations but explain how

existing human rights principles should be enforced by states

and corporate actors. The UNGPs rest on a three pillars

framework, often summarised as the ‘Protect, Respect and

Remedy’ formula:

i) States have a duty to protect against human rights abuses

through their legislation and their policies to ensure an

effective enforcement (Principles 1 to 10);

ii) Enterprises have a responsibility to respect human rights:

they must avoid breaching human rights and must address

harms that they have caused (Principles 11 to 24);

iii) When individuals are victims of human rights breaches

caused by business activities, they should be able to seek

redress. States and corporations both share a responsibility to

and Anna-Louise Chané, 'Multinational Corporations in

International Law, in Non-State Actors in International Law' in

Math Noortmann, August Reinisch and Cedric Ryngaert (eds),

Non-State Actors in International Law (Bloomsbury, 2015) 241 –

242.

67 OHCHR, Frequently Asked Questions About the Guiding

Principles on Business and Human Rights, (United Nations

Publication, 2014).

214 SLJ 7 (1)

provide such an access to effective remedy.68 This pillar

encompasses both judicial and non-judicial mechanisms69

(Principles 25 to 31).

The first pillar corresponds to the traditional understanding

of human rights obligations of states. The first pillar confirms

that States are still the primary actors in securing compliance

with human rights. The UN Guiding Principles emphasise

that States have a critical role to play and can use a ‘smart

mix of measures – national and international, mandatory and

voluntary- to foster business respect by for human rights.’70

68 Surya Deva claims that the right to a remedy is encompassed

in human rights themselves. Therefore, he claims that

businesses’ responsibility to respect human rights comprises the

right for victims to obtain redress, as the three pillars of the

UNGPs should be seen as a whole. See Surya Deva, Access to

Effective Remedy: Taking Human Rights and Rights Holders

Seriously, Cambridge Core Blog, (November 2017)

to-

effective-remedy-taking-human-rights-and-rights-holders-

seriously> .

69 UN Human Rights Council, Report of the Special

Representative of the Secretary-General on the issue of human

rights and transnational corporations and other business

enterprises, John Ruggie: Guiding Principles on Business and

Human Rights: Implementing the UN “Protect Respect and

Remedy” Framework, 21 March 2011, Principle II A 11,

ges/reports.aspx>.

70 Guiding Principles on Business and Human Rights:

Implementing the United Nations « Protect, Respect and

Remedy » Framework, UN Doc. A/HRC/17/31, 21 March 2011,

Principle 3.

Corporate accountability in international law: a “state shaming”

exercise 215

The key role of States rather than corporations is confirmed

by the terminology used for the second pillar, which refers to

the ‘responsibility’ of corporations. The use of the term

‘responsibility’ rather than ‘duty’ implies that respecting

human rights is not an obligation which is imposed on

companies.

Nevertheless, companies do have a role to play in the

implementation of Pillar 3, as they can establish ‘non-state-

based grievance mechanisms’ (Principles 28, 29 and 30).

According to the Commentary on the UN Guiding Principles,

remedies can be:

apologies, restitution, rehabilitation, financial or non-

financial compensation and punitive sanctions (whether

criminal or administrative, such as fines), as well as the

prevention of harm through, for example, injunctions or

guarantees of non-repetition.71

The Ruggie principles insist much more on the issue of

remedies in comparison to the UN Global Compact. States

have a responsibility to provide both judicial and non-judicial

remedies, while businesses have a responsibility to provide

non-judicial remedies for violations in which they are

involved.72 For the remedies to be effective, the UNGPs insist

71 ibid, Principle 25.

72 Report of the Special Representative of the Secretary-General

on the issue of human rights and transnational corporations and

other business enterprises, UN Doc. A/HRC/8/5, 7 April 2008, 22.

216 SLJ 7 (1)

on the fact that the ‘remedy should be impartial, protected

from corruption and free from political or other attempts to

influence the outcome.’73

On the other hand, the UNGPs are also the object of many

critiques.74 The lack of a monitoring and enforcement

mechanism to provide efficient compliance creates problems

which the recurring theme with the previous initiatives

mentioned above. The NGO Amnesty International notably

explained: ‘The draft guiding principles enjoy broad support

from business, precisely because they require little

meaningful business. The fundamental challenge was how to

address these problems. His draft guiding principles fail to

meet this challenge’.75 Moreover, social expectations

formulated in soft law instruments do not have a clear

73 ibid, 22.

74 See Robert Blitt, 'Beyond Ruggie’s Guiding Principles on

Business and Human Rights: Charting an Embracive Approach

to Corporate Human Rights Compliance' (2013) 48:1 Texas

International Law Journal 33, 52–54; Carlos López, 'The 'Ruggie

Process': From Legal Obligations to Corporate Social

Responsibility?', in Surya Deva and David Bilchitz (eds), Human

Rights Obligations of Business: Beyond the Corporate

Responsibility to Respect? (Cambridge University Press, 2013)

58–59; See also International Federation For Human Rights

(FIDH), Joint Civil Society Statement on the Draft Guiding

Principles on Business and Human Rights, (31 January 2011),

pdf >.

75 See Widney Brown, Stronger UN draft on human rights a

buses needed, Financial Times (19 January 2011)

Corporate accountability in international law: a “state shaming”

exercise 217

normative basis76, as soft law approaches are ineffective

when it comes to protecting human rights.77 According to the

critiques, the UNGPs were not ambitious enough as they

have only established negative responsibilities towards

corporations (not to infringe human rights)78 and have

ignored important questions such as extraterritorial

jurisdiction of tribunals to ensure access to justice.79

76 David Bilchitz, ‘A Chasm Between “Is” and “Ought”? A

Critique of the Normative Foundations of the SRSG's

Framework and the Guiding Principles’ in Surya Deva (ed),

Human Rights Obligations of Business: Beyond the Corporate

Responsibility to Respect? (Cambridge University Press, 2013)

65-67.

77 See U.N. Economic and Social Council, Interim Report on the

Issue of Human Rights and Transnational Corporations and

Other Business Enterprises, para. 81, available at:

ages/Reports.aspx>.

78 See David Bilchitz and Surya Deva, The Human Rights

Obligations of Business: A Critical Framework for the Future, in

Human Rights Obligations of Business: Beyond the Corporate

Responsibility to Respect? (Cambridge University Press, 2013) 1,

15.

79 See Tebello Thabane, 'Weak Extraterritorial Remedies: The

Achilles Heel of Ruggie’s’ “Protect, Respect and Remedy”

Framework and Guiding Principles' (2014) 14 African Human

Rights Law Journal 43, 60. For further discussion on this issue,

see, from the same author: Adeline Michoud, ‘The exercise by

U.S. courts of their extraterritorial jurisdiction over corporate

wrongs claims: overview and perspectives’ (2018-2019) 20

Yearbook of Private International Law, 217.

218 SLJ 7 (1)

Despite the effort made in the UNGPs to underline the

importance of access to remedies, commentators have raised

the fact that the UNGPs failed to provide adequate remedies

to victims. A representative from Amnesty International

observed that not enough was being done for victims and

that business enterprises continued to evade accountability

for their human rights violations.80 In fact, the succession of

international instruments has failed to foster proper remedies

that victims of corporate abuses can rely on, but has also

failed to lead to the overall recognition of corporations as

duty bearers in international law. In the next section of the

Article, we shall analyse how regional human rights

instruments regulate corporations and see if more obligations

are expected from corporations at this level.

III. Regional regulations

At the regional level, the question of corporate accountability

has also been raised. In this second part, we shall discuss

regional human rights systems with a focus on the European,

American. and African systems.

a) In Europe

i) Instruments adopted by the European Union

80 United Nations Forum on Business and Human Rights,

Closing Conversation: Strategic Paths Forward and Next Steps

for the Global Business and Human Rights Regime (3 December

2014).

Corporate accountability in international law: a “state shaming”

exercise 219

The European Union (EU) has taken significant initiatives in

the field of business and human rights, including access to

remedy. The EU has repeatedly underlined its commitment

to the implementation of the UNGPs.81 In 2016, the European

Parliament discussed a report drafted on its own initiative on

‘corporate liability for serious human rights abuses in third

countries’. The ensuing resolution, adopted on 25 October

2016, ‘calls on the Commission and Member States to

guarantee policy coherence on business and human rights at

all levels: within different EU institutions, between the

institutions, and between the EU and its Member States’.82

ii) Instruments adopted by the Council of Europe

The European Convention on the Protection of Human

Rights and Fundamental Freedoms (ECHR), which entered

into force in 1953, established the first international

complaints procedure and international court where claims

could be presented against States for the violation of human

rights enshrined in the Convention.

81 These commitments have notably been asserted in the 2011-

2014 Action Plan, the 2015 Staff Working Document on the

implementation of UNGPs and in the 2015-2019 EU Action Plan

on Human Rights and Democracy. Communication from the

commission to the European Parliament, The Council, The

European Economic and Social Committee and The Committee

Of The Regions, A Renewed EU Strategy 2011-2014

82 European Parliament, Resolution on corporate liability for

serious human rights abuses in third countries, 2015/2315 (INI),

25 October 2016.

220 SLJ 7 (1)

However, in 2012, a report of the Steering Committee for

Human Rights (CDDH) indicated that there were no

remedies at the level of the Council of Europe to address civil

claims against corporations for human rights violations.

Following this report, the Committee of Ministers of the

Council of Europe issued a declaration reaffirming its

commitment to the UNGPs and establishing that

corporations had a responsibility to respect human rights.83

Yet, this declaration was not the occasion to propose

solutions, nor an attempt to lay out operative remedies.

Therefore, the Council of Europe calls for States to adopt

national measures to implement business and human rights

principles. The Council of Europe also disposes of a judicial

mechanism to enforce business and human rights principles.

As mentioned, the European Court of Human Rights

(ECtHR) can hear individuals’ complaints against States

alleging a breach of one of the human rights protected by the

European Convention on Human Rights. One limitation to

the ECtHR is that it does not allow claims against private

actors according to Article 35 para. 3a ECHR. In fact, claims

of ECHR violations can only be made against States as stated

in Article 34 ECHR.84

83 Declaration by the Committee of Ministers of the Council of

Europe on the UN Guiding Principles on Human Rights and

Business of 16 April 2014.

84 EU Steering Committee for Human Rights, Draft preliminary

study on corporate social responsibility in the field of human

rights, R76, Addendum VII, p. 10; Olufemi Amao, Corporate

Corporate accountability in international law: a “state shaming”

exercise 221

The ECHR only provides an indirect means by holding the

State responsible for the human rights violations that took

place in their territory and jurisdiction to sanction abuses

committed by corporations in the course of their activities. As

the Court stated in Hatton and Others v. United Kingdom:

‘Article 8 may apply in environmental cases whether the

pollution is directly caused by the State or whether the State

responsibility arises from the failure to regulate private

industry properly.’85 Therefore, a State can be held

responsible under the ECHR when it fails to appropriately

regulate the conduct of private actors within its jurisdiction,

but human rights obligations are not imposed on private

actors.

The ECtHR has also held that the State is responsible for the

protection of individuals from the adverse impact on

human rights by businesses. In Cyprus v. Turkey, the Court

explained that a State’s responsibility may be engaged for

violations of the Convention rights committed by private

social responsibility, human rights and the law: multinational

corporations in developing countries (Routledge, 2011) 27. See

notably the case of the European Court of Human Rights : Lopez

Ostra v Spain, no. 16798/90, (1994), where the Spanish

government was held accountable for failing to prevent the

inconvenience caused by the pollution emanating from a waste

treatment plant, which was held to be against Article 8 of the

European Convention on Human Rights.

85 Hatton and Others v. The United Kingdom, no. 36022/97,

(2003), p.22.

222 SLJ 7 (1)

individuals in its jurisdiction.86 Moreover, in Soering v. United

Kingdom, the ECtHR held that a State could be held

responsible for extraterritorial effects of its domestic acts.87 In

addition, the ECtHR has ruled that States are also responsible

for the breaches of human rights protected under the

European Convention on Human Rights committed by their

agents.88

Furthermore, the European Committee of Social Rights has

adopted a very similar approach to the one of the ECtHR.

The European Committee of Social Rights examines reports

submitted by individuals and judges if contracting states to

the European Social Charter have failed to comply with their

obligations from the Charter. A key difference between the

European Court of Human Rights and the collective

complaints before the European Committee of Social Rights

is that all the State parties to the Council of Europe are

committed to the ECHR whereas the Additional Protocol to

the Social Charter relating to Collective Complaints has been

ratified by only less than half of the Council of Europe’s

Member States. Moreover, the European Committee of Social

Rights has dealt with some complaints involving

corporations. In the case Marangopoulos Foundation for Human

Rights v. Greece89, the European Social Committee stated the

following: the State is responsible for enforcing the rights

86 Cyprus v. Turkey, no. 25781/94, (2001), para 81.

87 Soering v. United Kingdom, no. 14038/88, (1989), para 88.

88 Al Skeidi v. United Kingdom, no. 55721/07, (2011), para 137.

89 FIDH v. Greece, European Committee of Social Rights, no.

72/2011, (2013).

Corporate accountability in international law: a “state shaming”

exercise 223

embodied in the Charter within its jurisdiction. The

Committee is therefore competent to consider the claimant’s

allegations of violations, even if the State has not acted as an

operator but has simply failed to put an end to the alleged

violations in its capacity as regulator.90

As a result, if an enterprise is registered in a State’s territory

or has business in its territory, the State has the competence

and duty to regulate its behaviour. However, the answer to

the question of knowing if a State is responsible for

extraterritorial wrongs committed by private persons

domiciled on their territory is uncertain under the European

Committee of Social Rights’ case law.91 In any case, both

mechanisms by the ECHR and the European Committee on

Social Rights only focus on States’ responsibilities, leaving

corporate accountability aside. Public international law tools,

including at the European regional level, thus mostly focus

on the obligations of States, without tackling the issue of

corporate stakeholders’ accountability.

III b) The Inter-American Court of Human Rights

90 Marangopoulos Foundation for Human Rights (MFHR) v.

Greece, European Committee of Social Rights (Complaint no.

30/2005, 2006c), para 14.

91 See: Ashfaq Khalfan, ‘Division of Responsibility amongst

States’, in Malcolm Langford et al (eds), Global Justice, State

Duties: The Extraterritorial Scope of Economic, Social and

Cultural Rights in International law, (Cambridge University

Press, 2013) 321.

224 SLJ 7 (1)

The first regional human rights declaration was the American

Declaration of the Rights and Duties of Man adopted under

the auspices of the Organisation of American States (OAS) in

1948. Article 26 of the Convention particularly insists on

economic and social rights. Article 25 of the American

Convention on Human Rights underlines the importance for

State Parties to provide access to judicial remedies for victims

of human rights violations. The Commission on Human

Rights hears complaints of human rights violations against

State parties.92 Both individuals and NGOs are recognized the

capacity to submit complaints.

Since the adoption of the American Convention on Human

Rights, the Commission was confronted with questions

relating to business and human rights. In the case of Mayas

indigenous peoples v. Belize, the Commission recommended

that the State should ‘abstain from all acts that could

encourage public agents or third parties that could act with

its acquiescence or tolerance that affects the existence, value,

use and enjoyment of the property of the Maya indigenous

peoples’.93 Decisions adopted from 1985 to 2004 mainly

focused on the State duty to protect or States’ due diligence

regarding business activities that threatened or violated

indigenous peoples’ right to land.94

92 Article 44 of the American Convention on Human Rights.

93 Maya indigenous peoples v. Belize, IACHR, no. 12.053, (2004),

para. 6.

94 Cecilia Anicama, ‘State Responsibilities to Regulate and

Adjudicate Corporate Activities under the Inter-American

Corporate accountability in international law: a “state shaming”

exercise 225

In 1979, the Organization of American States established the

Inter-American Court of Human Rights to enforce and

interpret the provisions contained in the American

Convention on Human Rights. Following Article 1 of the

Statute of the Inter-American Court of Human Rights, the

Court can only hear claims directed against Member States.

The Inter-American Court provides the widest range of

reparations among regional courts’ systems, including

restitution (when feasible) and money damages for material

and moral injuries.95 The aim of the Court is to follow the

principle of restitution in integrum, according to which the

Court will do everything it can restore the victims back to

their previous position in which they were before the

violation occurred.96

Conversely, the Inter-American Court is more limited than

the Commission. Indeed, it can only decide on cases brought

by OAS Member States against other Member States that

Human Rights System, Report on the American Convention on

Human Rights’, (2008) 14, available at : -

humanrights.org/sites/default/files/reports-and-materials/State-

Responsibilities-under-Inter-American-System-Apr-2008.pdf>.

95 See generally Douglas Cassel, ‘The Expanding Scope and

Impact of Reparations Awarded by the Inter-American Court of

Human Rights’, in Koen De Feyter, Stephan Parmentier, Marc

Bossuyt, Paul Lemmens (eds), Out of the Ashes : Reparations for

Gross Violations of Human Rights, (Intersentia, 2005).

96 Almonacid Arellano et al. v. Chile, IACHR, no. 154, (2006),

para. 136.

226 SLJ 7 (1)

have accepted the Court’s jurisdiction97 or cases brought by

the Commission on Human Rights against OAS Member

States.98 The Inter-American Court was confronted with the

question of oil99, logging100, mining101, and other

exploitation102 of territories by non-state actors. Notably, case

law on indigenous and tribal peoples’ rights contains express

references to corporate actions endangering human rights.103

On these occasions, the Court has emphasized on States’

obligations and seemed to indicate that corporations could

not be held accountable. In the case of Awas Tigni,104 a

concession had been granted to a Korean company by

97 Article 61(1) of the American Convention on Human Rights.

98 Article 51 of the American Convention on Human Rights.

99 Kichwa Indigenous People of Sarayaku v Ecuador, IACHR,

no. 245, (2012).

100 Mayagna (Sumo) Awas Tingi Community v Nicaragua,

IACHR, no. 79, (2001), para. 104.

101 Kaliña and Lokono Peoples v. Suriname, IACHR, no. 198/07,

(2007).

102 Yakye Axa Indigenous Community v Paraguay, IACHR, no.

125, (2005); Sawhoyamaxa Indigenous Community v. Paraguay,

IACHR, no. 146, (2006); Xákmok Kásek Indigenous Community

v Paraguay, IACHR, no. 214, (2010).

103 Mayagna (Sumo) Awas Tingi Community v Nicaragua,

IACHR, no. 79, (2001); Saramaka People v Suriname; Kichwa

Indigenous People of Sarayaku v. Ecuador, IACHR, no. 245,

(2012); Kaliña and Lokono Peoples v. Suriname, IACHR, no.

198/07, (2007). For further analysis of this case law, see Thomas

M. Antkowiak, Rights, Resources, and Rhetoric: Indigenous

Peoples and the Inter-American Court (2013) 35 University of

Pennsylvania Journal of International Law 113.

104 Mayagna (Sumo) Awas Tingi Community v. Nicaragua,

IACHR, no. 79/01, (2001).

Corporate accountability in international law: a “state shaming”

exercise 227

Nicaragua to exploit timber in the zone where the Mayagna

indigenous community lived. The Court held that Nicaragua:

‘must abstain from any acts that might lead the agents of

the State itself, or third parties acting with its acquiescence

or its tolerance, to affect the existence, value, use or

enjoyment of the property located in the geographic area

where the Members of the Mayagna (…) community

live.’105

The Court did not refer to any obligation of the corporation

to abide to the principles enshrined in the American

Convention.

Several other cases have been instructed on the issue of the

adverse impacts on indigenous people caused by extraction

companies’ activities.106 Nevertheless, in these cases, the

accountability retained was always that of the State and not

that of corporations.107 In fact, corporations are not held to

have any obligation to pay reparations to affected

105 ibid para 173.

106 Comunidad Yanamami v. Brazil, IACHR, IACHR, no. 7615,

(1985); Enxet-Lamenxay and Kayleyphapopyet (Riachito) v.

Paraguay, IACHR, no. 11.713, (1998); Maya indigenous peoples

v. Belize, IACHR, no. 12.053, (2004); Kichwa Indigenous People

of Sarayaku v. Ecuador, IACHR, no. 245, (2012), para. 299.

107 For example, IACHR, Report on the Situation of Human

Rights in Ecuador, Doc. OEA/Ser.L/V/II.96, Doc.10 rev.1, April

24, 1997, Chapter IX.

228 SLJ 7 (1)

communities.108 For example, in the case of Kichwa Indigenous

People of Sarayaku v. Ecuador, the Court held that ‘there is no

environmental liability’109 for corporations. However, in the

case Kaliña and Lokono Peoples v. Suriname, a step was made as

for the first time, the Court placed an obligation on the state

‘in conjunction with the company’.110 Despite this statement,

the Court required the State of Suriname to establish ‘the

necessary mechanisms to monitor and supervise the

execution of the rehabilitation of the company’.111 Therefore,

even though the Court recognized that the corporation had

played a role in the infringement and had a responsibility for

it, the duty to repair and make amends was imposed solely

on the government of Suriname. This state-centric

conception of the Inter-American system on Human Rights

was recently confirmed in a recent report of the Inter-

American Commission on Human Rights relating to human

rights protection in the context of extraction, exploitation,

and development activities.112 Indeed, this report solely

focuses on the responsibility of States and does not mention

108 Mayagna (Sumo) Awas Tingi Community v Nicaragua,

IACHR, no.79, (2001), paras 104ff.

109 Kichwa Indigenous People of Sarayaku v. Ecuador, IACHR,

no. 245, (2012), para 123.

110 Case of the Kalina and Lokono Peoples v. Suriname, IACHR,

no. 309, (2015), para 224.

111 Kichwa Indigenous People of Sarayaku v. Ecuador, IACHR,

no. 245, (2012), para 290.

112 Inter-American Commission on Human Rights, Indigenous

Peoples, Afro-Descendant Communities, and Natural Resources:

Human Rights Protection in the Context of Extraction,

Exploitation, and Development Activities, OEA/Ser.L/V/II, 2015.

Corporate accountability in international law: a “state shaming”

exercise 229

the responsibility of corporations or private actors.113

Therefore, just as the European human rights regime, the

Inter-American system applies a state-centric conception to

designate responsible entities of human rights breaches.

III c) The African Commission on Human Rights and People’s

Rights

Africa has also adopted a regional human rights instrument

intended to promote fundamental human rights in the

continent. The African Charter on Human and People’s

Rights came into effect on October 21st 1985 under the

auspices of the Organization of African Unity. The Preamble

to the African Charter underlines the importance of the right

to development: it is henceforth essential to pay a particular

attention to the right to development and that civil and

political rights cannot be dissociated from economic, social

and cultural rights in their conception as well as universality

and that the satisfaction of economic, social and cultural

rights is a guarantee for the enjoyment of civil and political

rights.

The Charter established at the same time of its adoption a

quasi-judicial body, the African Commission on Human and

113 ibid., pp.25-75.

230 SLJ 7 (1)

People’s Rights in charge of interpreting and enforcing the

rights enshrined in the Charter.114 According to Article 45 of

the Charter, the Commission is ‘in charge of the promotion of

human and peoples’ rights and ensures the protection of

these rights.’ Article 46 states that the Commission can

benefit from ‘any appropriate method of investigation’.

Individuals and NGOs’ complaints are admissible before the

Commission, despite the ambiguity of the wording of the

African Charter in this regard.115

Since its creation, the Commission has had to deal with cases

relating to business and human rights. In the case of Socio-

Economic Rights Action Centre v. Nigeria116, a complaint

concerning the environmental damage caused by the

wrongful practices of oil companies in the Ogoni region in

Nigeria, which caused serious damage to the health of the

local population. The Commission ruled that the Ogoni

people had suffered violations of their rights to health117 and

to a satisfactory environment favourable to development118,

due to the government’s failure to prevent pollution and

114 See Article 30 of the African Charter.

115 Christof Heyns and Magnus Killander, ‘The African regional

human rights system’, in Isa Gomez and al (eds), International

Protection of Human Rights: Achievements and Challenges

(Humanitarian Net-University of Deusto, 2006) 525.

116 Communication 155/96, African Commission on Human and

Peoples’ Rights, African Human Rights Law Reports, 2001, p.60.

117 See Article 16 of the African Charter on Human and Peoples

Rights.

118 See Article 24 of the African Charter on Human and Peoples

Rights.

Corporate accountability in international law: a “state shaming”

exercise 231

ecological degradation. It held that the State’s failure to

monitor oil activities and to involve local communities in

decisions violated the right of the Ogoni people to dispose

freely of their wealth and natural resources.119 The

Commission thus found that the Nigerian State had a duty to

protect its citizens against violations of their rights by private

parties.120 Nevertheless, the Commission did not recognize

that corporations were themselves bound by the human

rights contained in the African Charter. In fact, the

Commission chose to omit the question of their

responsibility, even though the complainants explicitly

accused the oil exploiting companies.

This case highlights once again the problem of holding

corporations accountable. As long as corporations are not

bound by international human rights instruments, it will be

impossible for victims to obtain redress from them directly

before supranational bodies. Access to a remedy is a

fundamental right in international law121 but without any

prior legal obligations or recognition of private actors as

bearers of these obligations, corporations shall keep

benefiting from this impunity. To deal with this situation, an

119 See Article 21 of the African Charter on Human and Peoples

Rights.

120 Communication 155/96, African Commission on Human and

Peoples’ Rights, African Human Rights Law Reports, 2001, para.

58.

121 Article 2 of the International Covenant on Civil and Political

Rights.

232 SLJ 7 (1)

African Court on Human and People’s Rights has been

created.122 The introduction of the African Court on Human

and People’s Rights was due to the lack of enforcement

powers of the African Commission, whose decisions were not

binding on States. The African Human Rights Court was

granted the mission to ‘complement the protective mandate’

of the African Commission.123 The Court has both contentious

and advisory jurisdiction.124

However, the Court is only competent to hear complaints

against Member States of the African Union, not against

individuals that have breached human rights provided in the

African Charter. Therefore, the African Court’s functioning,

similarly to its European and American counterparts,

illustrates one more time, the lack of mechanisms to hold

corporate actors liable under international law. In a recent

publication, the African Commission has confirmed its

position, stating that African States are ‘the primary duty

122 See Article 1 of the Protocol to the African Charter on Human

and People’s Rights on the Establishment of an African Court on

Human and People’s Rights.

123 Article 2 of the Protocol to the African Charter on Human

Rights and Peoples’ Rights on the Establishment of the African

Court on Human and Peoples’ Rights.

124 Under Article 28 of the Protocol on the Statute of the African

Court of Justice and Human Rights, the African Court has

jurisdiction over a wide range of treaties of a general nature,

including all treaties of the African Union. Article 17(2) of this

same Protocol provides that the Human Rights Section of the

Court “shall be competent to hear all cases relating to human

and/or people’s rights”.

Corporate accountability in international law: a “state shaming”

exercise 233

bearers’125 that have to comply with human rights, while

making reference to the ‘responsibility of the private

sector’126, without evoking corporations’ liability in case of

non-compliance. All regional human rights systems thus

seem to leave aside the question of direct corporate

accountability.

IV Conclusion

The various attempts to hold corporations accountable for

their human rights breaches in international law have been

insufficient so far. Until recently, the prevailing view of

international organizations such as the UN127, the ILO128, the

OECD129 and the EU130 was that corporate social

125 Report of the African Commission’s Working Group on

Indigenous Populations/Communities, Extractive Industries,

Land Rights and Indigenous Populations’ / Communities Rights,

Eks-Skolens Trykkeri, 2017, p.132, available at : <

https://www.iwgia.org/images/documents/extractive-industries-

africa-report.pdf>.

126 ibid 134.

127 UN Global Compact, 2000.

128 ILO Tripartite Declaration of Principles Concerning

Multinational Enterprises and Social Policy, 1977.

129 OECD Declaration on International Investment and

Multinational Enterprises, 1976.

130 Promoting a European Framework for Corporate Social

Responsibility, European Commission Green Paper, 2001. See on

this topic : Kathia Martin-Chenut, ‘Devoir de vigilance :

internormativités et durcissement de la RSE’ (2017) Droit Social,

Dalloz, 798.

234 SLJ 7 (1)

responsibility is a matter that can best be left to self-

regulation by the industry. In setting up soft law mechanisms

which are not legally binding and therefore incapable of

enforcement, public international law has failed so far to

provide a satisfactory remedy for victims of wrongful

business activities. Regional human rights instruments have

also failed to address the question of corporate accountability

correctly, by choosing to focus solely on the responsibility of

States, as the question of application of human rights to

private actors is still unresolved.

Yet, the numerous soft law instruments consecutively

adopted do have a relevance and could contribute to the

establishment of binding human rights obligations on

corporations. The fact that soft law rules lack enforcement

mechanisms does not mean that they do not have any

normative character.131 In fact, these rules do have a

normative significance as they can provide evidence of opinio

juris of the international community over certain principles

and participate in the elaboration of future norms. As George

Abi-Saab described, soft law allows the international

community to reflect on the need to adopt new legal rules to

tackle emerging issues. Therefore, it allows us to articulate

common values and defines guidelines that States are

131 Patrizio Merciai, Les entreprises multinationales en droit

international (Bruylant, 1993) 241.

Corporate accountability in international law: a “state shaming”

exercise 235

encouraged to develop through binding normative

standards.132

As a consequence, soft law should be acknowledged as a way

to create consensus among States and other parties to

progressively amount to legal reforms and changes. In fact,

soft law consolidates political opinion around the need for

action on a new issue and can provide guidance or a model

for hard law provisions. This might actually be the main

function of soft law instruments in the context of corporate

responsibility: foster discussion among the different

stakeholders to progressively amount to a mutual agreement.

As Günther Handl rightly explained: ‘soft law will capture

emerging notions of international public order and thus help

extend the realm of legitimate international concern to

matters to previously exclusive national jurisdiction’.

Therefore, soft law represents an opportunity for States to

reflect upon solutions to current challenges.

132 See George Abi-Saab, Cours général de droit international

public, 207 Collected Courses of the Hague Academy of

International Law, (Brill, 1987) 210. See also Dinah Shelton,

‘Comments on the normative challenge of environmental “soft

law’, in Société française pour le droit international, Le droit

international face aux enjeux environnementaux, (Pedone, 2010),

111 ; Christian Huglo, L’influence du droit international sur le

développement de la responsabilité civile des personnes privées

pour les dommages environnementaux in Société Française pour

le Droit International, Le droit international face aux enjeux

environnementaux, (Pedone, 2010), 165.

236 SLJ 7 (1)

Soft law should thus be considered as a preliminary step, an

initial phase of consolidation for the necessary consensus to

establish binding norms. In fact, the current developments

intervening, notably the discussions at the UN regarding the

adoption of a binding instrument relating to transnational

corporations, or the enactment in several countries of

corporate due diligence duties, can be seen as the result of the

progressive reflection that was fostered through the adoption

of the soft law instruments described above.133 The outcome

of the current negotiations for the adoption of this treaty will

be key to finally establish the direct accountability of

corporations in international law.

133 For more discussion on the role of soft law, see René -Jean

Dupuy, L’humanité dans l’imaginaire des nations, (Julliard,

1991) 243; Adefolake O. Adeyeye, Corpora te Social

Responsibility of Multinational C orporations in Developing

Countries, (Cambridge University Press, 2012), 20.

Corporate accountability in international law: a “state shaming”

exercise 237

Bibliography

Books

Abi-Saab G, Cours général de droit international public, 207

Collected Courses of the Hague Academy of International

Law (Brill, 1987)

Amoore L, ‘Making the Modern Multinational’ in

Christopher May (ed), Global Corporate Power, (Lynne

Rienner Publisher, 2006)

Adeyeye A O, Corporate Social Responsibility of

Multinational Corporations in Developing Countries,

(Cambridge University Press, 2012)

Bilchitz D and Deva S, The Human Rights Obligations of

Business: A Critical Framework for the Future, in Human

Rights Obligations of Business: Beyond the Corporate

Responsibility to Respect? (Cambridge University Press,

2013)

Bilchitz D, ‘A Chasm Between “Is” and “Ought”? A Critique

of the Normative Foundations of the SRSG's Framework and

the Guiding Principles’ in Surya Deva (ed), Human Rights

Obligations of Business: Beyond the Corporate Responsibility

to Respect? (Cambridge University Press, 2013)

Cassel D, ‘The Expanding Scope and Impact of Reparations

Awarded by the Inter-American Court of Human Rights’, in

Koen De Feyter, Stephan Parmentier, Marc Bossuyt, Paul

238 SLJ 7 (1)

Lemmens (eds), Out of the Ashes: Reparations for Gross

Violations of Human Rights, (Intersentia, 2005)

Clapham A, Human Rights Obligations of Non-State Actors

(Oxford University Press, 2006)

Deva S, 'Treating Human Rights Lightly: A Critique of the

Consensus Rhetoric and the Language Employed by the

Guiding Principles’ in Surya Deva and David Bilchitz (eds),

Human Rights Obligations of Businesses: Beyond the

Corporate Responsibility to Respect? (Cambridge University

Press, 2013)

Dupuy R, L’humanité dans l’imaginaire des nations, (Julliard,

1991)

Fabig H, ‘The Body Shop and the Ogoni’, in Michael Addo

(ed.), Human Rights Standards And The Responsibility Of

Transnational Corporations (Kluwer Law International, 1999)

Gonzalez-Perez M A and Leonard L, The UN Global

Compact in Alice de Jonge, Research Handbook on

Transnational Companies (Edward Eldgars, 2017)

Heyns C and Killander M, ‘The African regional human

rights system’, in Isa Gomez and al. (eds), International

Protection of Human Rights: Achievements and Challenges

(Humanitarian Net-University of Deusto, 2006)

Huglo C, L’influence du droit international sur le

développement de la responsabilité civile des personnes

privées pour les dommages environnementaux in Société

Corporate accountability in international law: a “state shaming”

exercise 239

Française pour le Droit International, Le droit international

face aux enjeux environnementaux, (Pedone, 2010).

Jonge A D and Tomasic R, Research Handbook on

Transnational Corporations (Elgar, 2017)

Khalfan A, ‘Division of Responsibility amongst States’, in

Malcolm Langford et al. (eds), Global Justice, State Duties:

The Extraterritorial Scope of Economic, Social and Cultural

Rights in International Law, (Cambridge University Press,

2013)

López C, 'The 'Ruggie Process': From Legal Obligations to

Corporate Social Responsibility?', in Surya Deva and David

Bilchitz (eds), Human Rights Obligations of Business: Beyond

the Corporate Responsibility to Respect? (Cambridge

University Press, 2013)

Levitt K, Silent Surrender: The Multinational Corporation in

Canada (Canada Macmillan, 1970).

Merciai P, Les entreprises multinationales en droit

international (Bruylant, 1993).

Pegg S, ‘An Emerging Market for the New Millennium:

Transnational Corporations and Human Rights’, in Jedrzeg

Frynas and Scott Pegg (eds), Transnational Corporations and

Human Rights (Palgrave Macmillan, 2003)

Servan-Schreiber J, Le Défi Américain (Denoël, 1967)

240 SLJ 7 (1)

Shelton D, Comments on the normative challenge of

environmental “soft law’, in Société française pour le droit

international, Le droit international face aux enjeux

environnementaux, (Pedone, 2010).

Wouters J and Chané A, 'Multinational Corporations in

International Law, in Non-State Actors in International Law'

in Math Noortmann, August Reinisch and Cedric Ryngaert

(eds), Non-State Actors in International Law (Bloomsbury,

2015)

Cases

Almonacid Arellano et al v Chile, IACHR, no. 154, (2006)

Al Skeidi v United Kingdom, no 55721/07, (2011)

Comunidad Yanamami v Brazil, IACHR, IACHR, no 7615,

(1985)

Cyprus v Turkey, no 25781/94, (2001)

Enxet-Lamenxay and Kayleyphapopyet (Riachito) v

Paraguay, IACHR, no. 11.713, (1998)

FIDH v Greece, European Committee of Social Rights, no

72/2011, (2013)

Hatton and Others v The United Kingdom, no 36022/97,

(2003)

Kaliña and Lokono Peoples v Suriname, IACHR, no 198/07,

(2007)

Corporate accountability in international law: a “state shaming”

exercise 241

Kalina and Lokono Peoples v Suriname, IACHR, no 309,

(2015)

Kichwa Indigenous People of Sarayaku v Ecuador, IACHR,

no 245, (2012)

Lopez Ostra v Spain, no 16798/90, (1994)

Marangopoulos Foundation for Human Rights (MFHR) v

Greece, European Committee of Social Rights (Complaint no

30/2005, 2006c)

Maya indigenous peoples v Belize, IACHR, no 12.053, (2004)

Mayagna (Sumo) Awas Tingi Community v Nicaragua,

IACHR, no 79, (2001)

Sawhoyamaxa Indigenous Community v Paraguay, IACHR,

no 146, (2006)

Soering v United Kingdom, no 14038/88, (1989)

Xákmok Kásek Indigenous Community v Paraguay, IACHR,

no 214, (2010)

Yakye Axa Indigenous Community v Paraguay, IACHR, no

125, (2005)

Legislation

African Charter on Human and Peoples Rights

242 SLJ 7 (1)

Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal, the

International Convention on Civil Liability for Oil Pollution

Damage (CLC)

Commission on Transnational Corporations, Proposed Text

of the Draft Code of Conduct on Transnational Corporations,

United Nations Centre on Transnational Corporations,

Transnational Corporations, Services and the Uruguay

Round Current Studies, Annex IV, UN Doc ST/CTC/103

(1990)

Convention on Civil Liability for Damage Resulting from

Activities Dangerous for the Environment, 1993

Convention Third Party Liability in the Field of Nuclear

Energy of 29th July 1960

Council of Europe, Committee of Ministers,

Recommendation CM/Rec (2016)3 on human rights and

business 2 March 2016

Declaration by the Committee of Ministers of the Council of

Europe on the UN Guiding Principles on Human Rights and

Business of 16 April 2014

European Parliament, Resolution on corporate liability for

serious human rights abuses in third countries, 2015/2315

(INI), 25 October 2016

Guiding Principles on Business and Human Rights:

Implementing the United Nations « Protect, Respect and

Corporate accountability in international law: a “state shaming”

exercise 243

Remedy » Framework, UN Doc. A/HRC/17/31, 21 March

2011, Principle 3

ILO Tripartite Declaration of Principles Concerning

Multinational Enterprises and Social Policy, 1977

International Convention for the Prevention of Pollution from

Ships (MARPOL)

International Convention on Civil Liability for Oil Pollution

Damage, 1992

International Covenant on Civil and Political Rights, UN Doc

A/6316 (1966)

OECD Declaration on International Investment and

Multinational Enterprises, 1976

Protocol to the African Charter on Human and People’s

Rights on the Establishment of an African Court on Human

and People’s Rights

Resolution A/HRC/26/9, United Nations, General Assembly,

Human Rights Council, 26th session, July 14 2014,

Elaboration of an International Legally Binding Instrument

on Transnational Corporations and other Business

Enterprises with respect to Human Rights

UN Global Compact, 2000

Universal Declaration of Human Rights, UN Doc A/810

(1948)

244 SLJ 7 (1)

Journal Articles

Acconci P, 'The Promotion of Responsible Business Conduct

and the New Text of the OECD Guidelines for Multinational

Enterprises' (2001) 2 Journal of World Investment 123

Antkowiak T M, ‘Rights, Resources, and Rhetoric: Indigenous

Peoples and the Inter-American Court’ (2013) 35 University

of Pennsylvania Journal of International Law 113

Bigge D, 'Bring on the Bluewash: a social constructivist

argument against using Nike v. Kasky to attack the UN

Global Compact' (2004) 14(1) International Legal Perspectives

Blitt R, 'Beyond Ruggie’s Guiding Principles on Business and

Human Rights: Charting an Embracive Approach to

Corporate Human Rights Compliance' (2012) 48 Texas

International Law Journal 33

Blumberg P, ‘Accountability of multinational corporations:

the barriers presented by concepts of the corporate juridical

entity’ (2001) 24 Hastings Int'l & Comp. L. Rev. 297

Cerqueira D, ‘The Attribution of Extraterritorial Liability for

the Acts of Private Parties in the InterAmerican System:

Contributions to the Debate on Corporations and Human

Rights’ (2015) 20 Aportes DPLF Magazine, 20

Choudhury B, 'Beyond the Alien Tort Claims Act: Alternative

Approaches to Attributing Liability to Corporations for

Corporate accountability in international law: a “state shaming”

exercise 245

Extraterritorial Abuses' (2005) 26 Northwestern Journal of

International Law and Business 43

Coleman D, 'The United Nations and transnational

corporations: From an inter-nation to a “beyond state” model

of engagement' (2003) 17 Global Society 339

Deva S, 'Global Compact: A Critique of the U.N.’s Public-

Private Partnership For Promoting Corporate Citizenship',

(2006) 34(1) Syracuse Journal of International Law and

Commerce 107

Jochnick C, ‘Confronting the Impunity of Non-State Actors:

New Fields for the Promotion of Human Rights’ (1999) 21

Human Rights Quarterly 56

Hristova M, ‘The Alien Tort Statute: A Vehicle for

Implementing the United Nations Guiding Principles for

Business and Human Rights and Promoting Corporate Social

Responsibility’ (2012-2013) 47 U S F L Rev 89

King B, 'The UN Global Compact: Responsibility for Human

Rights, Labor Relations, and the Environment in Developing

Nations' (2001) 34(3) Cornell International Law Journal 481

Kinley D, Justine Nolan and Nathalie Zerial, 'The politics of

corporate social responsibility: Reflections on the United

Nations Human Rights Norms for Corporations' (2007) 25

Companies and Securities Law Journal 30

246 SLJ 7 (1)

Lasslett K, ‘State Crime by Proxy: Australia and the

Bougainville Conflict’ (2012) 52 British Journal of

Criminology 705

Martin-Chenut K, ‘Devoir de vigilance: internormativités et

durcissement de la RSE’(2017) Droit Social, Dalloz 798

May R J, ‘Papua New Guinea’s Bougainville Crisis’ (1999) 3

The Pacific Review 174

Michoud A, ‘The exercise by U.S. courts of their

extraterritorial jurisdiction over corporate wrongs claims:

overview and perspectives’ (2018-2019) 20 Yearbook of

Private International Law 217

Murphy S, 'Taking Multinational Corporate Codes of

Conduct to the Next Level' (2005) 43(22) Columbia Journal of

Transnational Law 389

Nolan J, 'The United Nations’ Compact With Business:

Hindering or Helping the Protection of Human Rights?'

(2005) 24(2) University of Queensland Law Journal 445

Oshionebo E, 'The UN Global Compact and Accountability

Transnational Corporations: Separating Myth from Realities'

(2007) 19 Florida Journal of International Law 1

Paul J, ‘Holding Multinational Corporations Responsible

Under International Law’ (2001) 24 Hastings International &

Comparative Law Review 285

Ratner S, ‘Corporations and Human Rights: A Theory of

Legal Responsibility’ (2001-2002) 111 Yale Law Journal 442

Corporate accountability in international law: a “state shaming”

exercise 247

Regan A J, ‘Causes and Course of the Bougainville Conflict’

(1998) 33 Journal of Pacific History 269

Shinsato A, ‘Increasing the Accountability of Transactional

Corporations for Environmental Harms: The Petroleum

Industry in Nigeria’ (2005), 4 Northwestern Journal of

International Human Rights 186

Ter Haar B P, The FIFA 2022 World Cup and Labour Rights –

Seizing the Moment for Labour Law Reforms in Qatar’ (2017)

4(1) Kutafin University Law Review

Thabane T, 'Weak Extraterritorial Remedies: The Achilles

Heel of Ruggie’s’ “Protect, Respect and Remedy” Framework

and Guiding Principles' (2014) 14 African Human Rights Law

Journal 43

Thérien J and Pouliot V, 'The Global Compact: Shifting the

Politics of International Development?' (2006) 12(1) Global

Governance: A Review of Multilateralism and International

Organizations 55

Thompson H, ‘The economic causes and consequences of the

Bougainville crisis’ (1991) 17 Resources Policy 69

Websites and other sources

Abogados C, ‘Argentina: The OECD Guidelines for

Multinational Companies and the Specific Instance’ (5

August 2019)

ommercial

248 SLJ 7 (1)

-Law/833310/The-OECD-Guidelines-For-Multinational-

Companies-And-The-Specific-Instance>

African Commission’s Working Group on Indigenous

Populations/Communities, Extractive Industries, Land Rights

and Indigenous Populations’ / Communities Rights, (Eks-

Skolens Trykkeri, 2017)

https://www.iwgia.org/images/documents/extractive-

industries-africa-report.pdf>

Anicama C, ‘State Responsibilities to Regulate and

Adjudicate Corporate Activities under the Inter-American

Human Rights System, Report on the American Convention

on Human Rights’ (2008) -

humanrights.org/sites/default/files/reports-and-

materials/State-Responsibilities-under-Inter-American-

System-Apr-2008.pdf>

Burke J and Hammadi S, ‘Bangladesh textile factory fire

leaves more than 100 dead’, (The Guardian, 2012) at

banglade

sh-textile-factory-fire>

Capdevila G, ‘UN : Global Compact with Business ‘Lacks

Teeth’ – NGOs’ (2007) e/un-

global-compact-business-lacks-teeth-ngos>

Corporate Watch, ‘OECD’s Crocodile Tears’ (2000) at

rs.htm>

Crockett A, ‘Human rights complaints against multinationals

increasing’ (29 October 2015)

Corporate accountability in international law: a “state shaming”

exercise 249

thinking/human-rights-complaints-against-multinationals-

increasing>

Deloitte, ‘UN Global Compact – Management Model,

Framework for Implementation, Human Rights, Labour

Environment, Anti-Corruption 12’

vents/9.1_ne

ws_archives/2010_06_17/UN_Global_Compact_Management

_Model.pdf>

Deva S, ‘Access to Effective Remedy: Taking Human Rights

and Rights Holders Seriously’ (Cambridge Core Blog,

November 2017)

ess-to-

effective-remedy-taking-human-rights-and-rights-holders-

seriously>

European Commission, Commission Staff Working

Document on Implementing the UN Guiding Principles on

Business and Human Rights – State of Play, SWD, 44 final,

(July 14 2015)

tegrityaframe

workforassessment.htm>

Hodal K, Kelly C and Lawrence F, ‘Revealed: Asian slave

labour producing prawns for supermarkets in US, UK’, The

Guardian (2014) at m/global-

development/2014/jun/10/supermarket-prawns-thailand-

produced-slave-labour >

250 SLJ 7 (1)

Human Rights Council, ‘Corporations and human rights: a

survey of the scope and patterns of alleged corporate-related

human rights abuse, A/HRC/8/5/Add.2 4, 23 (May 2008)

IACHR, Report on the Situation of Human Rights in Ecuador,

Doc OEA/Ser.L/V/II.96, Doc 10 rev 1, April 24, 1997, Chapter

ILO Report, The ILO MNE Declaration : What’s in it for

Workers?, : ublic/---

ed_dialogue/---

actrav/documents/publication/wcms_627351.pdf>

Inter-American Commission on Human Rights, ‘Indigenous

Peoples, Afro-Descendant Communities, and Natural

Resources: Human Rights Protection in the Context of

Extraction, Exploitation, and Development Activities,

OEA/Ser.L/V/II, 2015’

International Federation For Human Rights (FIDH), ‘Joint

Civil Society Statement on the Draft Guiding Principles on

Business and Human Rights’ (31 January 2011),

ment_on_G

Ps.pdf>.

International Labour Organisation, ‘Engagement with the

construction sector in the Arab States’

_552302/l

ang--en/index.htm>.

International Labour Organisation, ‘The Labour Principles of

the United Nations Global Compact A Guide for Business’

Corporate accountability in international law: a “state shaming”

exercise 251

_doc/labour/t

he_labour_principles_a_guide_for_business.pdf>

International Labour Organization, ‘Tripartite Declaration of

Principles concerning Multinational Enterprises and Social

Policy (MNE Declaration) - 5th Edition (2017)’

/lang--

en/index.htm>

Jackson G and Bartosch J, ‘Corporate Responsibility in

Different Varieties of Capitalism: Exploring the Role of

National Institutions’ (Freie Universität Berlin, 2016)

stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikati

onen/Studie_BS_Corporate-Responsibility-in-Different-

Varieties-of-Capitalism-Exploring-the-Role-of-National-

Institutions_2016.pdf.>

OECD Watch, ‘Review of National Contact Points for the

OECD Guidelines for the Period of June 2003 – June 2004’

content/uploads/sites/8/2004/06/2004.pdf>

OHCHR, ‘Frequently Asked Questions About the Guiding

Principles on Business and Human Rights’ (United Nations

Publication, 2014)

Phillips D ‘Samarco dam collapse: one year on from Brazil's

worst environmental disaster’, The Guardian (2016) at

252 SLJ 7 (1)

business/2016/oct/15/samarco-dam-collapse-brazil-worst-

environmental-disaster-bhp-billiton-vale- mining>

Report of the Special Representative of the Secretary-General

on the issue of human rights and transnational corporations

and other business enterprises, UN Doc A/HRC/8/5, 7 April

2008, 22

Sander I M, ‘Qatar, Migrants Laborers and the ILO’ 39

Michigan Journal of International Law

ar-migrants-laborers-and-the-

ilo/>

Sullivan Z, ‘Brazil's Doce River still foul eight months after

dam collapse’, DW (2016) brazils-

doce-river-still-foul-eight-months-after-dam-collapse/a-

19375872>

U.N. Economic and Social Council, ‘Interim Report on the

Issue of Human Rights and Transnational Corporations and

Other Business Enterprises’

rporation

s/Pages/Reports.aspx>

UN Global Compact, 'After the Signature- A Guide to

Engagement in the Global Compact' (UN Nations Press,

2008)

vents/8.1/afte

r_the_signature.pdf>

UN Human Rights Council, ‘Report of the Special

Representative of the Secretary-General on the issue of

Corporate accountability in international law: a “state shaming”

exercise 253

human rights and transnational corporations and other

business enterprises, John Ruggie: Guiding Principles on

Business and Human Rights: Implementing the UN “Protect

Respect and Remedy” Framework21 March 2011, Principle II

A 11’

rporations/

pages/reports.aspx>

United Nations Forum on Business and Human Rights,

‘Closing Conversation: Strategic Paths Forward and Next

Steps for the Global Business and Human Rights Regime’ (3

December 2014)

United Nations, ‘The Impact of Multinational Corporations

on Development and on International Relations’ (United

Nations Press, 1974)

United Nations, ‘United Power of Markets with authority of

Universal Values, Secretary-General Urges at World

Economic Forum, Press Release, SG/SM/6448, January 30

1998’

Widney Brown, ‘Stronger UN draft on human rights abuses

needed’ (Financial Times 19 January 2011)

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
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Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

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Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the revised versions of legislation with amendments.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Corporate Accountability in International Law: a “State Shaming” Exercise

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You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users