1. INTRODUCTION
The universalism at the heart of International Human Rights Law (IHRL) is, in aspiration at least, well known and much vaunted. However, the concept of universalism (quite apart from critiques of its insufficient inclusivity in both theory and practice1) suffers from a key and problematic imbalance: the concept recognizes individual and group claims to the universal enjoyment of human rights (albeit in limited fashion), but scarcely at all the imposition of meaningful corresponding obligations to honour human rights and be held accountable for their violation. This imbalance is especially troubling in the contemporary neo-liberal world order in which powerful ‘private actors’—transnational corporations (TNCs)2 —violate individual and group rights, often extensively, but with relative impunity because the state, especially the industrialized state, now often tends to diminish its historically assumed role as human rights duty-bearer par excellence to favour realpolitik corporate agendas that typically are beyond the capacity of the vast majority of human rights claimants to influence, let alone countermand.3
Human rights observance and accountability is, in any case, extremely precarious. As Douzinas puts it, the ‘age of human rights’ has been marked by ‘more violations of [human rights] principles than any of the previous and less “enlightened” epochs’.4 Thus, while human rights principles are celebrated as a globally triumphant meta-ethic5—the ‘world-wide secular religion’ (Wiesel6); ‘the essential … touchstone, the creed of humanity that surely sums up all other creeds directing human behavior’ (Gordimer7)—the last almost 75 years reveal unprecedented levels of human brutality and precarity8 and unevenly imposed risk and vulnerability9—painfully marked, it must be emphasized, by massacres, genocides and ethnic cleansings, unprecedented levels of excoriating poverty and stark inequalities between the Global North and Global South (due in no small measure to the historically rapacious colonial empires of the North). Meanwhile, messianic terrorism and climate-related instabilities (actual and projected) intensify pressures upon even the most widely recognized human rights,10 as the state increasingly imposes security measures on its own populations in response,11 while systematic and systemically produced inequalities in the foundations of world order generate food insecurity and mass privation.12
The state, it is clear, is often complicit in one or more of these radical and uneven impositions of suffering. But it is also clear that the international human rights system’s design is itself a contributory factor, providing the state with easily manipulated levels of obligation turning on the nature of the rights at stake, the identities of the alleged violator and claimed victim (including, but not limited to, their nationalities), the place of violation and other such variables. Typically, these considerations are said to be neutral as between plaintiffs and defendants. In reality, however, they tend to serve more the interests of the rich and powerful than they do the ‘ordinary’ person—often, indeed, to the harsh detriment of vast numbers of people.
That these manipulable levels of state obligation can be, and often are, used to block human rights accountability for extraterritorial violations of human rights comes, therefore, as no surprise—a matter of pivotal importance in a globalized world order dominated by state/market interests. It is incontrovertible that the state, with diverse bases of power at its disposal, can not only impact significantly the rights of individuals and groups far beyond its territorial borders but also, via agile doctrinal manoeuvring, can escape legal responsibility beyond those limits, both for itself and for favoured others who, but for that manoeuvring, should be held accountable for human rights violations abroad. Unsurprisingly, in academic circles, in a growing number of national and international decision-making bodies and elsewhere in the worldwide struggle for global justice, the conviction is mounting that the logics limiting responsibility for extraterritorial human rights abuses are no longer apt—that they are, indeed, subversive of the quintessential claim that human rights are universal in character and to be treated as such whenever and wherever they are threatened or denied. Increasingly, it is being asked why national citizenship should have anything to do with limiting the enjoyment of universalhuman rights.13 The question is acute: since when and by whom has it been determined that citizen’srights are the equivalent of, or substitute for, human rights?
Of course, the mounting conviction that human rights require more meaningful forms of accountability if they are to deliver on their promise of universalism faces complex forces of resistance, reflecting in part the rights-violating realities of contemporary globalization. In the contemporary international legal order there is a strong case for—indeed, an urgent necessity for—a fundamental reassessment of the conjunctions and dynamics of power among and between individuals, states, intergovernmental institutions and—crucially for present purposes—transnational corporate actors of large scale. It is a task, both theoretical and practical, that domestic courts and the international community must not be allowed to evade, particularly in this challenging age of globalized and globalizing power. The ongoing influence of TNCs and their interests in the operation of the world economy and the international legal order should now be of deep concern to anyone concerned about the poorer, disadvantaged inhabitants of our planet.
In this short space, we cannot hope to capture all the conditions and permutations that bear upon the implementation of universal human rights in domestic and international decision-making settings. We can and do challenge, however, the use and implications of deploying ‘procedural’ issues to exempt powerful corporate actors from accountability for human rights abuses committed beyond a state’s recognized jurisdiction—a use made especially prominent by the 2013 US Supreme Court holding in Kiobel v Royal Dutch Petroleum Co14 pursuant to which, by most interpretations, foreign corporations were largely if not completely accorded immunity from US pursuit of human rights violations against foreign nationals in foreign countries. In so ruling, it seems to many, the Court closed down, prima facie at least, a much favoured strategy of international human rights litigation aimed at establishing extraterritorial human rights accountability.15
Thus we ask, what is the relationship between human rights betrayal and human rights accountability in the post-Kiobel ‘lawscape’? Has the time now arrived for the imposition of mandatory, universal human rights accountability for TNCs? We argue that it has, and not least because human rights themselves are being narrowly reinterpreted in national fora as values dependent for their meaning and realization upon a corporate global order.16 At the same time, however, given the nature of TNC juridical dominance and the ideological hegemony of neo-liberal capitalism, we remain deeply aware of the contingent nature of such a project. We hope, and argue below, that such a project might at least begin to challenge the systemic impunity enjoyed by TNCs relative to human rights abuses. Yet, in light of the inherent contingency of even mandatory universal human rights accountability (explored below), we also urge continuous critical vigilance of those forces that would seek to subvert its realization.
We begin by locating TNCs and extraterritoriality in the contemporary global context. We then consider the doctrine of universal jurisdiction, the background of Alien Tort Claims Act (ATCA) liability, and the salience of Kiobel for the global lawscape of future TNC human rights responsibility. Together with a brief survey of different jurisdictional approaches to extraterritorial TNC human rights accountability, this stocktaking, we believe, points unerringly to the need for direct, effective TNC liability under IHRL. We realize, as just implied, that such liability is not—and cannot be—a foolproof deterrent to TNC human rights violations given the rights-evading mutations of corporate power that have significantly shaped—and continue to shape—international law itself,17 IHRL included.18 However, the establishment of direct corporate accountability for human rights abuses under IHRL would at least mark, we suggest, an important and urgently needed juridical staging post in the advancement of human rights in the contemporary world order.
2. TRANSNATIONAL CORPORATIONS AND EXTRATERRITORIALITY
TNCs—despite, or perhaps even because of, their identification as private sector actors19—possess immense and increasing levels of state-like power in the national and international political economies of the present world order. Propelled by the ideological ascendency of neo-liberalism, TNCs dominate virtually the entire international legal order, influencing key international institutions and gaining inordinate structural control.20 It is well known that the power of some TNCs has, for some time, exceeded the power of many states, and that such power includes a complex interaction with the neo-liberal state, particularly in the Global North, and which in any case is profoundly implicated in the genesis of such extensive degrees of TNC control. Indeed, as Woods rightly points out, state power is indispensible to the conditions of accumulation for capital and that it is the state itself that has provided the ‘conditions enabling global capital to survive and navigate the world’.21
TNCs, then, exercise immense (state-assisted) influence over the material, economic and political lives of millions of human beings, and over the life chances of other species and ecosystems generally—a reality sharply etched in the haunting tragedy of the 1984 Bhopal disaster in India where the negligence of a US company, Union Carbide, resulted in the deaths of thousands of people, the injury of hundreds of thousands of people and animals, and extensive environmental damage—injury exacerbated by state betrayal of the ‘Bhopal-violated’.22 In light of this haunting tragedy and of widespread human and environmental abuse at the hands of TNCs and other corporate actors, the need of individuals, groups and states to be able to assert extraterritorial jurisdiction to hold globally powerful corporate human rights violators to account is now incontrovertible. It is also urgent. As Baxi has observed, there is a pressing need for the tragedy of Bhopal (and of other rights-violating disasters resulting from corporate malfeasance or negligence) to provoke law into responding directly23 and for law to follow a deeply ethical impulse by offering a supportive response to the increasingly vocal social movements emerging from the ashes of such violations. Baxi puts the challenge succinctly and with great poignancy: ‘[T]he continuing movement of the Bhopal-violated beckons a new jurisprudence of human solidarity in a runaway globalizing world.’24 Whether, in domestic courts or elsewhere, IHRL will now develop as Baxi urges—and thereby help to redress the imbalances generated by ‘predatory globalization’ (to borrow from Falk25)—is precisely the question haunting this present reflection.
The contemporary globalized world challenges multiple, settled assumptions of the existing Westphalian international legal order—among them, to significant degree, an almost sacred commitment to the core Westphalian principle of state-territorial sovereignty which, among other things, assumes that any particular state is capable of controlling the activities of entities operating from within its jurisdictional boundaries. The problem is, however, that the contemporary realities of globalization directly refute this assumption. Multiple powerful corporate entities are quite simply capable of operating across borders in ways that transcend the regulatory control of any one state. The fundamental discrepancy between the transnational nature of these powerful entities and the territorially limited assumptions of the traditional state-centric international human rights system has therefore provoked a growing number of scholars and others to argue that the discrepancy presents a profound impediment to effective human rights accountability in the corporate sector. Indeed, as Dine points out, multiple studies now suggest that TNCs should be subject to direct human rights and environmental duties—that is, ‘they should have responsibilities towards the planet and to stakeholders other than shareholders’.26 We share this conviction.
Despite the cogency of such arguments, however, and despite the egregious nature of some of the corporate human rights violations inspiring them, TNCs are at present under no direct, formally binding human rights obligations under international law except insofar as a TNC act might constitute an international crime. Nor does international law explicitly impose obligations on home states to regulate the extraterritorial conduct of TNCs headquartered within their territory. Under IHRL, the obligation of the state is to respect, protect and fulfil the human rights of individuals within its territorial jurisdiction; and though the obligation to protect includes the obligation to exercise due diligence to prevent or mitigate the acts of private actors (including corporations) from violating the human rights of individuals, this obligation, too, is limited by territorial jurisdictional limits. In short, but for some essentially voluntarist and self-monitoring standards for TNCs and other business enterprises which sometimes are held out as solutions,27 there is in IHRL an almost complete absence of any effective way of holding corporations directly accountable for human rights abuses, or of preventing such abuses or even of ensuring redress for the victims of such abuses.
This lack of a clear, direct international law obligation to regulate the overseas activities of TNCs and other business enterprises is at least partially responsible for a collection of alternative legal strategies and standards intent upon corporate good behaviour: the due diligence requirements of export credit agencies, corporate and securities disclosure regulations, whistle-blowing laws, contractual duties, tort and criminal laws, sanctions legislation, and the like. However, none of these options are directed specifically at the problem of transnational corporate accountability for human rights abuse; and in any case, as we shall see, the extraterritorial dimension of state responsibility to protect human rights, even deploying such alternative strategies, remains abundantly contested—and unsatisfying.
Straightforwardly put, the current situation is this: the regulation of TNCs (as well as other business enterprises) operating abroad is left largely to the legal systems of the states in which they operate, not the law of their ‘home’ state or siège social. Highly problematic, however, is the plain fact that the states in which TNCs operate are frequently developing states which, for lack of effective administrative, judicial and policing institutions and mechanisms or because of a widespread culture of corruption (frequently encouraged by TNC management), are commonly unable to regulate TNC conduct effectively or are unwilling to do so. Also problematic are complex ‘conditionality’ packages issued by international financial institutions such as the International Monetary Fund (IMF) and World Bank and favouring a trading partner from the Global North in a way that effectively lowers human rights and environmental protection standards. Indeed, the few countries in the Global South that have attempted to reject neo-liberal strictures have been effectively forced by Western funding bodies to relent.28 Further, the IMF and World Bank have most pressured precisely those marginalized societies where poverty is most rife—insisting upon such ‘structural adjustments’ as deregulation, privatization and the removal of protective policies difficult if not impossible for the affected populations to endure.29 Structural patterns and practices such as these raise troubling questions about the degree to which the IMF, World Bank and also the World Trade Organisation (WTO) and other international trade organizations have become ‘midwives’ to the neo-liberal order of power30 (the WTO rules having been extensively influenced by corporations and thus described by some as a formalization of global corporate power31).
In short, there exists at present a severe accountability gap when it comes to holding corporate entities legally responsible for human rights abuses they commit or facilitate. Leaving TNC regulation to the legal systems of states in which TNCs operate is no guarantee of human rights protection whatsoever or even of respect for basic human rights standards. Mainstream strategies remain overwhelmingly voluntaristic and over-friendly to corporate interests;32 and globally, no adequate accountability structure yet exists.
What is more, the accountability gap is compounded by the sheer complexity and elusiveness of the transnational corporate form itself. It is well known that corporations are fictions invented by national law, ‘legal persons’ granted a juridical existence separate from their executives and shareholders who, as a result, enjoy ‘limited liability’ shielded by a ‘corporate veil’. In the case of the TNC, however, new levels of complexity emerge. TNCs are complicated interlocking layers of corporate entities that present a structural density that makes accountability extremely difficult to construct, granting TNCs a juridical elusiveness jealously guarded by those who gain from TNC privileging in the global order. TNCs gain their immense power not only from the law’s failure to take into account the material distinctions between kinds of persons—a quintessentially disembodied conceptual excision typical of law’s constitution of juridical subjectivity33—but also from the law’s failure to ‘account [for] the reality of the accumulation of power represented by a large number of companies related by interlocking shareholdings’.34
When such corporate complexity combines with the international law doctrine of sovereign state equality and overblown assumptions about the power of the state to hold corporations to account, the problem of extraterritorial accountability emerges with a particular rigueur. The juridical complexity of the TNC and its protean ability to evade jurisdictional accountability in a complex and densely interwoven global order especially clearly limits the state’s ability to hold TNCs accountable and profoundly reduces the possibilities of redress for corporate human rights violations. In the post-Kiobellawscape, what hope, then, can still be found in the doctrine of universal jurisdiction and under the US Alien Tort Claims Act?
3. THE DOCTRINE OF UNIVERSAL JURISDICTION AND THE US ALIEN TORT CLAIMS ACT
Despite the sanctity of state sovereignty under international law and consequent limitations on extraterritorial liability, it has long been recognized that certain international crimes can give rise to ‘universal jurisdiction’, that is, a grant to every state of legal authority to apply international law to certain violations of the ‘law of nations’ even if the state in question has no connection to the violation when it occurred—important for present purposes. The original—and archetypal—universal jurisdiction offence is piracy, the prime example of a violation of the law of nations.35 All states can enforce the prohibition against piracy as a matter of universal jurisdiction. In the words of eighteenth century common law scholar William Blackstone, piracy is incontestably ‘an offence against the universal law of society’.36 It is via this relatively narrow aperture of legal doctrine that human rights advocates have sought to deploy creative arguments for extraterritorial accountability.
Fundamentally, universal jurisdiction operates today as it did at its origin: as an authoritative mandate to enforce existing international law against an act deemed offensive to the law of nations—an offence so profound that the offender is rendered hostis humani generis: ‘an enemy of all mankind’.37 The exercise of universal jurisdiction, it should be understood, is not the same as a state applying its own law to another state, but the limitations hindering the extraterritorial application of IHRL have led to creative approaches using national law, not IHRL, to establish liability for human rights harms extraterritorially inflicted. There exists, however, one notable albeit indirect and unique exception: when national legislation authorizes resort to ‘the law of nations’ as a source of law for decision, then human rights norms accepted as customary international law, part of the law of nations (as well as core components of IHRL), may be invoked for the rule of decision. The paradigmatic example of this exception is of course the well-known statute unique to the USA known as the Alien Tort Claims Act (ATCA),38 also called the Alien Tort Statute (ATS). Originally enacted during the first session of the First United States Congress as section 9 of the Judiciary Act of 1789 (establishing the Federal Judiciary) primarily to protect against piracy, it has for more than three decades been deployed by litigants to overcome the limitations burdening the extraterritorial application of universal human rights doctrines, principles and rules, beginning in 1980 when, in Filártiga v Peña-Irala,39 the US Second Circuit Court of Appeals decided—for the first time in modern times—in favour of foreign human rights claimants based on the ACTA.
Since Filártiga, the USA has proved magnetically attractive to foreign litigants, although not least because of important procedural advantages in using US courts—for example, the possibility of contingency fees. Providing that ‘[t]he district courts [of the United States] shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’, this statute, for many years after Filártiga, has been judicially interpreted to allow foreign citizens to seek civil (tort) remedies in US courts for human rights violations committed outside the US, thus enabling non-US litigants to present ‘unique substantive causes of action against [TNCs] that … breached their human rights’.40 Particularly noteworthy is the language used in the Second Circuit judgment, echoing the early development of the doctrine of universal jurisdiction in the context of piracy. The court famously stated: ‘[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.’41
Filártiga concerned, as is well known, not a corporation but a former Paraguayan police inspector general who had tortured and killed a member of the Filártiga family. But the authority that issued from Filártigawas widely celebrated among human rights activists—heralded as a ‘beacon of hope’42 by those who welcomed the ATCA’s ‘revival’ as a powerful way of challenging corporate human rights abuses. Indeed, the vast majority of TNC human rights litigation has arisen in US courts pursuant to this domestic legislation. Over time, particularly in the 1990s, numerous cases involving corporate human rights abuses began to come before the US courts, gradually evolving into an application of the universal jurisdiction doctrine enabling US courts to hold corporate actors accountable in tort for human rights abuses committed far beyond US jurisdictional borders.
Perhaps predictably, however, this was a trajectory that, at the hands of more conservative ideology and politics (and therefore the appointment of more conservative jurists) was ultimately to be significantly challenged—as indeed it was in Kiobel 2010 by the US Second Circuit Court of Appeals (the same though differently composed court that decided Filártiga)—and later in Kiobel 2013 by the US Supreme Court in what many commentators have regarded as a particularly retrogressive ruling. It is to these two decisions in Kiobel v Royal Dutch Petroleum Co43 that we now turn.
A. Kiobel in 2010: A Dead End for Human Rights Activists?
The facts of Kiobel fully reflect the fundamental concerns of the litigation trend that took off under the ATCA in the 1990s against claimed TNC human rights abuses. The case exemplifies the widespread visceral sense of injustice that instances of corporate human rights violation evoke the world over.
The relevant events took place in Ogoniland, Nigeria, an oil-rich region of the Niger Delta intensively exploited for its oil reserves by Shell Oil (a subsidiary of Royal Dutch Shell) beginning in 1956, now a location synonymous with corporate human rights violations epitomizing the ‘justice problem which arises when a repressive regime, extractable natural resources, transnational corporate interests, and a vulnerable population collide’.44 Between 1990 and 1993, in light of extensive environmental damage, including the negative health effects of gas flaring and damage wreaked by repeated oil spills (reportedly 2,976, or 2.1 million barrels from 1976 to 1991), Ogoniland residents rose up in non-violent protest. The Nigerian government, however, reacted violently. Several Ogoni leaders were murdered—nine in particular—known as the ‘Ogoni 9’ (including the now world-famous Ken Saro-Wiwa). All were arrested on trumped-up charges, brought to trial, sentenced to death, and, in 1995, executed. The trial, widely considered a travesty of justice, exposed not only the repressive nature of the Nigerian regime at the time, but the extensive and rights-violating complicity of the TNCs operating in Ogoniland—particularly Shell. Ken Saro-Wiwa’s death, deemed by many to be a judicial murder, also attracted rapid and widespread international condemnation.
Several lawsuits were initiated in the USA against individuals and entities related to Royal Dutch Shell. Kiobel, brought under the ATCA, was one of them. The complaint alleged that the Royal Dutch Petroleum Company (incorporated in the Netherlands), Shell Transport and Trading Company (incorporated in England), and Shell Petroleum Development Company of Nigeria (incorporated in Nigeria) aided and abetted extra-judicial killings, torture and the commission of crimes against humanity and other human rights violations by the Nigerian military. The corporate defendants, it was alleged,
provided logistical support, transportation and weapons to Nigerian authorities to attack Ogoni villages and stifle opposition to Shell’s oil-excavation activities. Ogoni residents were beaten, raped, shot and/or killed during these raids. In 1995, Ken Saro-Wiwa and John Kpuinen were notoriously hanged after being convicted of murder by a special tribunal in the course of which Royal Dutch Shell allegedly bribed witnesses, conspired with Nigerian authorities to orchestrate the trial, and offered to free Ken Saro-Wiwa in return for an end to [his organization’s] international protests against Shell. During the trial, members of Ken Saro-Wiwa’s family, including his elderly mother, were beaten.45
Esther Kiobel was one of the plaintiffs—her husband, Dr Barinem Kiobel, having been executed in 1995 for his non-violent protest alongside Ken Saro-Wiwa.
In 2010, a majority of the US Second Circuit Court of Appeals ruled that because the scope of liability in an ATCA suit is determined by customary international law and because ‘no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights’, corporate liability ‘is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to [ATCA]’.46 The plaintiffs’ claims were accordingly dismissed for lack of subject-matter jurisdiction. The grounds for optimism about an ATCA revival vis-à-vis TNC accountability had reached, it seemed, something of a dead end.
Dine, however, argues that much of the hubris surrounding the ATCA ‘revival’ was misplaced in the first place, despite its value in revealing ‘how complex extraterritorial claims are, how difficult it is to sue TNCs and the fact that no matter how ‘common sense’ the solution appears to outraged human rights and environmental activists, legal solutions remain elusive’.47 She observes that some of the claims advanced by non-governmental organisations (NGOs) concerning the ATCA at its high point were of doubtful reliability and unduly optimistic. Most of the cases were in any event settled out of court—and the settlements thus obtained under the ATCA were, for Dine, simply a way for TNCs to avoid any formal admission of liability. She writes: ‘I would argue that it is wrong to call such settlements victoriesbecause the law has not been thereby developed to cover the instances of abuse forming the substance of the claim: there is no precedent for the future.’48
In addition to being critical of the hype surrounding the ATCA as a cause célèbre for human rights progress, Dine is critical of the legislation itself. For her, the ATCA invited an excessively restrictive standard for the substantive ground of a complaint raised under it. In Kiobel, the Second Circuit Court found that only very restrictive grounds could be allowed—relying on the US Supreme Court ruling in Sosa v Alvarez-Machain,49 a precedent in which the Supreme Court held that claims must be founded on ‘a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th Century paradigms we have recognized’.50 Thus, though the ATCA revival did achieve an intensification of TNC reputational risk (as well as some compensation for victims of corporate abuse), Kiobel 2010, without overruling Filártiga, but by adhering to a restrictive reading of the basis for universal jurisdiction, did appear—to some at least—to narrow the potential cause of action to eighteenth-century standards and thereby to produce something of a full stop for twenty-first century human rights activists long before the Supreme Court ruling of 2013.
Dine’s view has considerable resonance when the facts are as clearly pernicious as they were in Kiobel.Unmistakably, Kiobel 2010 implicated the public–private divide that traditionally has sheltered corporate violations of human rights; a company can be held liable under the ATCA, it appears, if its activity amounts to ‘state action’ in breach of international law. But as Dine argues, Kiobel 2010 also reveals ‘the extent to which the ATCA was a thin thread on which to hang legal accountability for [TNC] violations’.51Despite the benefit of ATCA cases bringing gross corporate violations of human rights to public attention, she observes, ultimately the litigation strategy centring upon the ATCA diverted attention from the kind of fundamental reforms necessary to change legal regimes comprehensively. Diverting attention from such reforms has, moreover, proved beneficial to the violating TNCs, as human rights activists have spent energy fighting on a difficult and somewhat flimsy platform rather than concentrating on changing the rules of IHRL to establish that companies can be human rights violators and to provide mechanisms for holding them to account.52
At any rate, despite the apparent disappointment presented by Kiobel 2010, the possibility of extraterritorial liability under the ATCA has continued to inspire an industry of argument and commentary. As Wuerth recently noted,
[a]fter more than thirty years of extensive high-profile litigation along with sustained academic commentary, a large and seemingly ever-growing number of basic questions about [the ATCA] remained unanswered … . As lower courts and litigants hacked their way through a thickening jungle of unresolved [ATCA] issues, clarification from Congress or the Supreme Court felt long overdue.53
That clarification was attempted in 2013 when the US Supreme Court delivered the final Kiobeljudgment.54
B. Kiobel in 2013: Confirming Disappointment?
In 2013, in Kiobel v Royal Dutch Petroleum Co, the US Supreme Court, in a splintered decision and invoking a canon of statutory interpretation known as the ‘presumption against extraterritorial application’ (when legislation gives no clear contrary mandate), held that ‘the presumption against extraterritoriality applies to claims under the [ATCA], and that nothing in the statute rebuts that presumption’55—a conclusion reached apparently without heed to the ACTA’s express directive to apply ‘the law of nations’ (including such IHRL norms as are accepted as customary international law). At the same time, the Court suggested that claims arising from conduct outside the USA could be actionable under the ATCA ‘where the claims touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application’.56
According to Weston, ‘informed observers responding to Kiobel [2013] appear generally to have agreed upon at least four implications of the Court’s reasoning’:57
(1) that foreign corporations would … be largely, if not completely, insulated from [US] ‘prosecution’ under the [ATCA] for human rights violations committed against foreign nationals in foreign countries, (2) that [US] corporations would not be so insulated, (3) that the development of litigation in Europe and elsewhere outside the United States would be affected by [Kiobel] only slightly, if at all; and (4) that the applicability of [Kiobel] to foreign natural persons, never addressed by the court, was uncertain. 58
The Supreme Court’s decision was, at least, definitive in one centrally important respect: that the presumption against extraterritoriality applies to the ATCA. On the facts presented to it, the Supreme Court held that the presumption was not overcome because the relevant conduct took place within the territory of a foreign sovereign and because the claims did not sufficiently ‘touch and concern’ US territory—the foreign defendants (Dutch Shell Petroleum) had no more than a ‘corporate presence’ in the USA. For Curran and Sloss, the decision
apparently [sounded] the death knell for ‘foreign-cubed’ human rights claims under the [ATCA]—that is, cases in which foreign defendants committed human rights abuses against foreign plaintiffs in foreign countries [and that] [t]he Court’s decision overrules, sub silentio, a line of cases that originated with Filártiga v Peña-Irala.59
In the words of Ku, ‘[a]ll nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that [the ATCA] excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.’60 For Ku, this amounted to nothing short of the unanimous rejection in Kiobel of universal jurisdiction, a conclusion which, while possibly overstated, drives at the importance of the decision for the hopes (misplaced hopes, Dine would argue) of human rights activists and litigants seeking to use the ATCA as a strategic route towards extraterritorial corporate human rights accountability and, ultimately, universal jurisdiction over at least gross human rights violations committed by corporations abroad.
Not surprisingly, given the enormity of the stakes at hand, the issue of corporate liability attracted a range of submissions from multiple amici. The Court received statements from governments (Argentina, Germany, the Netherlands, the UK and the USA), the European Commission, NGOs, scholars and—of course—corporations. Since the Court’s central holding was that alleged corporate malfeasance must ‘touch and concern the territory of the United States’ with ‘sufficient force’ to displace the presumption against extraterritoriality, logically the Court had to address that issue directly if it was to do justice to the question of corporate liability at all. Protective of corporate functioning among other interests, one may assume, the Court reasoned that since corporations are often ‘present’ in many countries, ‘corporate presence’ alone is insufficient to displace the presumption.
Perhaps from a corporate perspective, the implications of Kiobel concerning extraterritorial corporate liability may seem clear. But this would be misleading. First, the Court did not address the question of corporate liability under the ATCA directly notwithstanding that it was because of this concern that it granted certiorari in the first place. Secondly, the Court’s stated rationales for its decision—the minimization of ‘international friction’ and related separation-of-powers concerns—have been judged unpersuasive by informed legal scholars or, in any event, as insufficient to justify eliding more than three decades of established ATCA precedent. Thirdly, as Wuerth argues, the ‘opinions arguably assume the viability of [the ATCA] suits against corporations’,61 thus leaving the door open to such actions albeit in an ambivalent manner. ‘Not surprisingly’, Wuerth observes, ‘[the] ambiguities in the majority opinion have already generated spirited commentary on what Kiobel will mean for future ATS cases. The blogospheric spin is well under way.’62
There are many other aspects to the Kiobel 2013 holding. Prominently exposed and debated from a range of perspectives under the auspices of the American Journal of International Law published in 2014,63 they reflect among other things the inevitable complexities implicated by the position of the ATCA at the nexus of profoundly competitive political concerns—a fractious space between impulses of outrage concerning extraterritorial corporate human rights violations and political anxieties concerning the foreign policy costs accruing to an overly ‘interventionist’ USA in a world of ostensibly juridically equal sovereign states. In any case, Kiobel 2013 appears to have generated as much intense debate as that which preceded it. It seems, therefore, that it would be overly simplistic and premature to claim that Kiobel has definitively settled matters.
Does Kiobel signal (and entrench) a disappointing death knell for such transnational human rights litigation strategies? And if it does, does it matter as much as some human rights activists and scholars appear to think?
4. ASSESSING KIOBEL AND ATCA IN GLOBAL CONTEXT
First, it is not at all clear that Kiobel signals the death knell for ATCA litigation for corporate human rights abuses outside the territorial jurisdiction of the USA. Indeed, it has been argued that, despite appearances to the contrary, the 2013 judgment ‘adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model’.64 Furthermore, it is likely that the case will invite more ATCA litigation precisely because so many issues remain unresolved and because ‘what is law in Kiobel isn’t clear and what is clear in Kiobel isn’t law’.65 In short, Kiobel 2013 fails to offer solid precedent, and—additionally—breaks with precedent by forging (on dubious doctrinal grounds) a ‘new presumption’ of uncertain application. Thus, the answer to our first question—whether Kiobel signals a disappointing death knell for transnational ATCA litigation strategies—surely must be ‘not necessarily’. The door is left ajar. But as noted above, the ATCA route may be, in any case, a distraction from more direct and productive modes of corporate human rights accountability. Although we can see the symbolic, rhetorical and juridical potency of the ATCA despite its falling short of delivering meaningful corporate accountability, we share the increasingly widespread conviction that direct corporate liability for human rights violations is now overdue, especially in the light of the pervasive structural dominance of TNCs and the present-day ideological hegemony of neo-liberalism.
Secondly, to assess Kiobel accurately, in particular its ambiguity relative to remedies for extraterritorial corporate human rights abuse, it is important that it and the ATCA be viewed in comparative law perspective—particularly since, as McCorquodale points out, ‘the case law in the rest of the world is unlikely to be greatly affected by the ruling’.66 McCorquodale reaches this conclusion based on his analysis of European Union (EU) regulations and civil law cases and on the fact that the vast majority of non-US TNCs are based in Europe—a fact which alone suggests that US legislation and jurisprudence are unlikely to be the last word for Europeans, least of all on so important an issue. Indeed, a range of approaches has been taken across the EU, enabling litigants to bring corporations before national courts for extraterritorial human rights violations. Like the ATCA litigation, however, these cases do not put such violations directly in human rights terms. Instead, again like the ATCA, they tend to deploy other causes of action (including tort) to drive at the harms caused.
EU approaches to corporate accountability for human rights violations in the EU, McCorquodale explains, are affected by two European regulations binding on all EU Member States: first, the Brussels I Regulation which provides that ‘national courts within the EU have jurisdiction over all who are domiciled in their national jurisdiction’ (which for corporations is defined as ‘the location of a corporation’s “statutory seat”, “central administration” or “principal place of business” ’67); secondly, the Rome II Regulation that imposes a uniform rule dictating that the applicable law of a claim shall be the law of the state where the damage occurred, irrespective of where the claim is brought. The implication is that, subject to limited exceptions (which include cases where the law of the state of harm does not effectively protect human rights), the courts in the EU must apply the law of the state where the harm was caused. This means that the court hearing the case imposes neither its own law nor international law on claims that have arisen in the territory of another state—which in turn means that EU states simply do not face the anxieties implied in Kiobel relative to the principle of state sovereignty.68
Also noteworthy, as McCorquodale points out, is the UK case of Chandler v Cape,69 which, in a country with long experience in extraterritorial liability questions, establishes the principle that the law can impose upon a parent corporation
a duty of care in relation to the health and safety of its subsidiary’s employees … [a ruling that suggests] an increased likelihood that UK courts will consider, in contrast to the Kiobel [2013] decision, that a parent corporation domiciled in that state has assumed a duty of care towards third parties affected by the operations of subsidiaries located elsewhere, at least where the parent corporation has developed and implemented group-wide policies and practices.70
McCorquodale emphasizes, additionally, that the UK development of a legal basis for bringing and deciding claims by victims of extraterritorial corporate human rights violations have not relied on cases under the ATCA, a fact rendering Kiobel of unlikely relevance for cases brought in the UK.
On final analysis, however, and in keeping with our own, McCorquodale determines that, though the ATCA cases are largely irrelevant for the development of case law elsewhere in the world, their human rights aspect retains a submerged relevance.71 Importantly, he observes, ‘none of the violations has been cast directly in human rights terms’, but instead ‘as … a claim in tort for negligence or a breach of contract. Even a case involving the alleged torture and mistreatment of indigenous people was brought as a claim in tort for negligent management and as instigating trespass to the persons’.72 This position, like the ATCA case law itself, simply re-emphasizes the problematic nature of the gap in IHRL concerning direct corporate liability for human rights abuses. Transnational litigation strategies, whether in the USA or beyond, leave certain kinds of human rights abuses unaccounted for.
Perhaps, therefore, in light of this failure, Kiobel 2013 reveals its greatest impact in a paradoxically positive way: the ATCA cases signalled that a national court was prepared at least to consider claims against corporations for violations of IHRL. By placing an apparent but ambiguous limit on ATCA-based litigation, Kiobel 2013 strengthens the rationales for paying attention to non-ATCA strategies—including non-ATCA litigation strategies. However, despite the fact that, as McCorquodale argues, ‘the strength and breadth’ of the EU cases will continue to develop and in so doing might inspire claims against US corporations outside the USA and also non-ATCA based actions in the USA, even the most promising EU litigation strategies do not address corporate human rights abuses in directly human rights terms. The problematic accountability gap in IHRL thus remains. Perhaps, then, Kiobel usefully draws attention to the limitations of litigation strategies in toto, and invites fresh engagement with a wide range of non-litigation strategies—a possibility related to Dine’s critique, noted above, of the ATCA as a distraction from more productive, system-critical modes of engagement with the central problem.
A novel and imaginative litigation-related strategy that addresses directly a systemic gap highlighted for a post-Kiobel lawscape is offered by Steinitz, who proposes the establishment of an International Court of Civil Justice (ICCJ) with jurisdiction over cross-border torts.73 This solution, Steinitz suggests, would directly address what she calls the ‘problem of the missing forum’.74 Steinitz’s central argument is that an ICCJ would substantially reduce the ‘direct and hidden’ costs of transnational litigation—and thus appeal to corporations—while also producing other attractive effects such as providing a legal stabilization of expectations and the chance for corporations (in addition to being held accountable for wrongs committed by them) to pursue the enforcement of standards in their own interests (anti-corruption standards, for example). Such advantages, in Steinitz’s view, render an ICCJ more likely to prove acceptable to corporate actors and thus attract their support and cooperation. However, this proposal—welcome and imaginative as it is—still formulates human rights violations through the lens of ‘mass torts’ rather than directly in human rights terms. The strategy thus directly responds to the perceived post-Kiobel ‘loss of forum’ but leaves unanswered the fundamental gap in IHRL accountability structures that Kiobel 2013 so usefully, in our view, re-emphasizes.
Various non-litigation strategies have been proposed as well. Curran and Sloss propose, for example, a legislative response drawing in part upon pending French legislation and existing German and Belgian law.75 Their proposed legislative model, they contend, balances the fractious political concerns reflected in the debate surrounding Kiobel because the statutes in Germany and Belgium and the pending legislation in France not only establishes the right of victims of genocide, war crimes and crimes against humanity to initiate judicial proceedings against perpetrators who commit such crimes extraterritorially, but also allow public prosecutors to block such proceedings if they consider that the case would impair the state’s foreign policy objectives. In a sense, the Curran and Sloss proposal revives the Filártigaapproach but—like that case—does not address human rights violations falling short of the level of action required to trigger universal jurisdiction. Accordingly, their approach cannot directly embrace a wide range of contemporary and important modes of corporate human rights abuse.
Similarly, Nolan, Posner and Labowitz argue that courts are only one among a growing number of routes to remedy corporate human rights abuses,76 rightly arguing that ‘the role of the US and other courts is only part of an expanding set of remedies and accountability measures that are helping to shape the rules of the road for global companies with respect to human rights’.77 The authors make the case for greater enforcement of stronger labour and workplace health and safety laws and other forms of robust accountability structure in countries where TNCs operate—although also acknowledging, importantly, that this particular strategy is directly affected by ‘chronic failures in developing a governmental order based on the rule of law’.78 Other strategies listed by the authors include standard-setting by intergovernmental organizations; provisioning of resources by the World Bank; home country reporting requirements and sanctions; and voluntary multi-stakeholder initiatives. From a critical perspective, however, all such approaches would likely share fundamental systemic weaknesses. For example, standard setting, while desirable, relies upon adequate enforcement to become meaningful. Provisioning of international financial resources risks burdensome conditionality measures. Home country approaches (reporting requirements and sanctions) rely entirely for their effectiveness upon adequate degrees of commitment to human rights-based law and practice and upon relevant legal machinery to guarantee meaningful accountability. And voluntary multi-stakeholder initiatives can do much to raise awareness, but run a serious risk, as a wide range of scholarship reveals, of amounting to little more than ‘corporate blue washing’ exercises: when it comes to corporate human rights accountability, voluntarism is, we submit, an insufficiently compelling route towards corporate human rights respect.79
Favouring a national legislative solution based on her own experience of drafting Albanian company law, Dine draws upon an extended conception of enterprise liability explicitly sensitive to a wider set of legal expectations placed upon corporate entities:
The maximisation of the company’s own assets, and the question of compliance with legal expectations … is conceptualised within [such] legislation as being not only in the interest of all the investors (shareholders), but also in the interest of creditors, employees and the economic system as a whole. In short, the [term] ‘interest of the company’ explicitly recognises the social embeddedness of the company and its broader social parameters.80
Dine’s legislative proposal extends traditional enterprise liability as exemplified by her drafting of the Albanian company law (especially Article 20781). The change presented by Article 207 seeks to approximate the realities that enterprise liability theory needs to address: once a TNC is recognized as an enterprise, the whole of the corporate group—not just the parent company as is currently the case—could be sued, an approach meaning that ‘some of the intractable obstacles and difficulties that dogged the ATCA could be removed’.82 One crucial advantage of Dine’s proposal is that a defeasible presumption of liability would be constructed and placed upon each and every entity composing the group making up the TNC. However, a central challenge facing Dine’s proposal is the fact that the vast majority of the most powerful states, committed as they are to neo-liberal agendas, seem unlikely to sign up to such an approach any time soon; and, until they do, the challenge of mandatory corporate accountability for human rights violations remains, therefore, unanswered.
5. TOWARDS DIRECT ACCOUNTABILITY? A CLOSER LOOK AT MANDATORY STRATEGIES AND THE NATURE OF GLOBAL CORPORATE POWER
Our analysis thus far has suggested that in the post-Kiobel 2013 lawscape—just as before it—human rights are inadequately protected in the face of TNC complexity, power and global influence. The various legal strategies deployed to protect human rights by recruiting alternative legal avenues and forms of accountability are ultimately unsatisfying—even Dine’s imaginative and carefully constructed globalization-responsive national law strategy. We share, however, Dine’s fundamental conviction—the growing international conviction—that the time has now come for direct corporate answerability for human rights abuses. Indeed, pressure is now building for a meaningful intervention under the auspices of the United Nations. On 26 June 2014, at the 26th session of the UN Human Rights Council, a resolution supporting the ‘elaboration of an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to Human Rights’ was formally adopted.83 The resolution was co-sponsored by Ecuador and South Africa with support from Bolivia, Cuba and Venezuela. In the final vote, 20 members of the HRC endorsed the resolution, 13 abstained and 14 voted against it. The voting pattern was entirely predictable, fully reflecting global fault-lines congruent with the Global North/Global South dynamic long witnessed within a highly uneven global economic and international legal order84—and pointing to the depth, in particular, of Global North state commitment to neo-liberal imperatives.
This voting pattern, and the realities it underscores, further supports our conviction that there is a need for profound caution, already noted, concerning the nature of global corporate power and the neo-liberal ideological hegemony of the global juridical order. Even if achieved, it is by no means certain that mandatory accountability will deliver all that human rights activists and violated communities and individuals might hope for. In our view, the juridical order is simply too ideologically skewed to guarantee the kind and level of human rights justice that is so viscerally hoped for across the planet. At the same time, however, we strongly believe that direct human rights accountability would provide an important juridical advance towards fraying corporate human rights impunity. For this reason, we recommend that the struggle for mandatory forms of corporate accountability to IHRL standards remains steadfast and centrally important to global justice—the need to avoid naivety concerning their likely future in the face of inevitable, highly adaptive counter-strategies notwithstanding.
How might mandatory standards fare in the face of such pressures?
To answer this question, we turn to the fate of the draft UN Norms on the Responsibility of TNCs and other Business Enterprises with Regard to Human Rights ‘the Norms'.85 The completed, but essentially voluntarist, mandate of the former UN Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (SRSG), John Ruggie, emerged directly ‘out of the ashes of the controversy created by [the draft UN Norms]’.86 The draft Norms were originally adopted (unanimously) by the former Sub-Commission on the Promotion and Protection of Human Rights, but their submission to the Human Rights Commission (now the Human Rights Council) ignited intense controversy—precisely because the Norms attempted to impose direct human rights obligations on corporate actors.87
This resistance must be understood in its wider juridical context. TNCs have, since the 1970s at least, successfully resisted all UN-based efforts to hold them accountable to human rights standards. For example, the earlier UN attempt to produce a universal Code of Conduct for transnationals was a notable and much lamented failure.88 Corporations are also exempted from the jurisdiction of the International Criminal Court.89 The UN Norms—like the prospective legally binding standards that the HRC has formally undertaken to have elaborated—promised a distinctive break with the ideology of voluntarism that has persistently defeated attempts to apply human rights standards directly to global corporations,90 announcing a zero-tolerance approach to the most blatant human rights abuses and, for the first time, attempting to impose the disciplinary regimes of IHRL upon business enterprises. That they were vigorously contested—especially by business leaders and corporate representatives91—and ultimately abandoned is regrettable indeed.
State complicity in the process of TNC resistance is, moreover, clearly discernible in this history: Kinley and Chambers, for example, record that when the Norms came before the UN Commission on Human Rights, at its 60th Session in 2004, ‘they encountered a frosty reception from member states already primed with the concerns of the corporate sector’.92 The Norms were put on hold at that stage by the Commission, which later (in 2005) recommended that the UN Secretary-General appoint a Special Representative to review the whole question of corporations and human rights. Eventually, Ruggie (the SRSG) concluded in his Interim Report of February 2006 that the norms should be abandoned93—a discouraging outcome for those who had fervently hoped that the Norms would prove a positive step in the development of international corporate human rights accountability.
It is entirely possible—even predictable—that a similar fate will greet any new mandatory approach. It is, thus, important—crucial even—to understand that corporate contestation of future initiatives will take place within the inescapable overarching global economic context in which TNCs enjoy overwhelming ideological and systemic privilege and thus exert increasingly inordinate levels of influence. It is, therefore, likely that even if another non-voluntarist regime for the human rights accountability of corporations were to be fully established, such a regime would struggle to reverse the impacts of the existing ideological hegemony (well documented by a range of scholarship pointing to the influence of neo-liberalism and corporate power in international human rights settings94) such that interpretive distortions of human rights meanings could produce a related (and possibly parasitic) mutation in the meaning even of human rights accountability.
Finally, the effectiveness of the UN Norms was further diminished by what Baxi termed their ‘dense intertexuality’.95 Their text referred to at least 56 pre-existing instruments producing a profound complexity and an extensive indeterminacy—a fact raising the spectre of future difficulties concerning the intelligibility, authoritativeness and future enforceability of mandatory standards inserted into a complex, multilayered international human rights edifice.
Here we return again to a central problem that haunts this analysis: the traditionally state-centred nature of the Westphalian international legal order which limits TNC human rights accountability by virtue of the traditional state-centric orientation of IHRL—and this would remain true for any set of mandatory international human rights standards even if they were to survive with enough normative vigour to be genuinely meaningful. The state-centric nature of IHRL tends to suggest that it is ill equipped in structural and ideological terms to hold TNCs accountable for human rights abuses; and, as De Sousa Santos has argued, ‘the continuation of a state-centric logic in the field of human rights will represent a growing impediment to an efficient and morally decent human rights policy’.96 This challenge becomes even more acute in a situation where states are reconstituted as complexly complicit agents of global neo-liberal capitalism. Evans and Ayers argue that the state is now effectively an administrative unit for managing the global economy,97 whereas Panitch suggests that states should be understood as ‘the authors of a regime that defines and guarantees, through international treaties and constitutional effect, the global and domestic rights of capital’.98 There is a genuine risk that TNCs will continue to engineer international human rights norms in their own favour while still largely evading attempts to hold them liable within an IHRL framework, which is, in any case, structurally and ideologically ill suited to the task, and thus unlikely to deliver—even with the important development of a directly applicable duty—sufficiently rigorous forms of corporate human rights accountability. What such a mechanism could achieve, however, is an important contribution to the dissolution of corporate human rights impunity by introducing a direct mandatory standard that they have long resisted being imposed upon them. This, in turn, holds out a hope—albeit a contingent one—of addressing at least some of the structural disadvantages placed upon vulnerable human beings and communities by the public–private divide—a key juridical mechanism of corporate responsibility evasion that would be punctured, at last, by the direct imposition of corporate human rights accountability under IHRL—no matter how imperfectly.
6. CONCLUSION
Globalization presents a pressing context in which to address the challenges of extraterritoriality and the related complexities of holding TNCs accountable for human rights abuses. Given the fact that a wide range of responses to this urgent challenge is visible beyond the USA, and given that a range of non-court options is available in both national and international law, it is arguable that the fundamental predicament in the post-Kiobel order is, in some ways, no more negative than it was beforehand. There existed, pre-Kiobel, a deeply problematic lack of direct, effective corporate accountability for extraterritorial human rights violations. And there remains, post-Kiobel, a deeply problematic lack of direct, effective corporate accountability for extraterritorial human rights violations.
So, if it is right to conclude that ATCA litigation was always an over-hyped distraction standing in the way of the search for more useful alternatives, perhaps the greatest virtue of the post-Kiobelinternational order is that this, at least, is now conspicuously apparent. Hopefully the highly contingent and ambiguous ‘dead end’ presented by Kiobel offers a vital impetus for continued engagement with the various doctrinal and other issues implicated by the case. Continued engagement in what may be, thanks to Kiobel, a fresh opportunity to step beyond the current limitations of national and international legal imagination to challenge the state and corporate sensibilities of a globalized neo-liberal world order must be taken very seriously, placed high on the global agenda with all ‘the urgency of now’. Perhaps then human rights advocates and others can move towards the achievement of universal jurisdiction for human rights protection directly.
However, if our analysis is correct, this alone will not be sufficient. Ongoing critical vigilance will be required. When all is said and done—and despite the importance and urgency of achieving direct corporate human rights accountability, there still is reason to doubt that the global community—even when such accountability is established—will ultimately make good on its promise to address human rights violations with true compassion and justice. Although the post-Kiobel lawscape presents an ideal space in which to make fresh efforts at achieving mandatory corporate accountability under IHRL to help counter contemporary corporate impunity, little real progress is guaranteed until the ideological hegemony currently dominating the international order is overcome. Not until then, we suspect, will the voices of the Bhopal violated for a ‘new jurisprudence of human solidarity in a runaway globalizing world’99 be truly heard.
ACKNOWLEDGEMENT
The authors gratefully acknowledge Damian F Bakula, research assistant to Professor Weston, for invaluable help at the outset of this initiative.
1 See, for example, Grear, ‘“Framing the Project” of International Human Rights Law: Reflections on the Dysfunctional “Family” of the Universal Declaration’ in Gearty and Douzinas (eds), The Cambridge Companion to Human Rights Law (2012) at 17–35; Beveridge and Mullally, ‘International Human Rights Law and Body Politics’ in Bridgeman and Millns (eds), Law and Body Politics: Regulating the Female Body (1995) 240.
2 Also called ‘multinational corporations’ (MNCs).
3 See, for example, the long list of abuses and the arguments provided in Jochnick, ‘Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights’ (1999) 21 Human Rights Quarterly 56. See also Baxi, ‘Market Fundamentalisms: Business Ethics at the Altar of Human Rights’ (2005) 5 Human Rights Law Review 1; Kinley and Joseph, ‘Multinational Corporations and Human Rights: Questions about Their Relationship’ (2002) 27 Alternative Law Journal 7. Additionally, for a detailed account of a contemporary example, see Kamphuis, ‘Foreign Mining, Law and the Privatization of Property: A Case Study from Peru’ (2012) 3 Journal of Human Rights and the Environment 217; and for a classic exposition of the most symbolic example of all, see Baxi, ‘Writing About Impunity and Environment: The “Silver Jubilee” of the Bhopal Catastrophe’ (2010) 1 Journal of Human Rights and the Environment 23.
4 Douzinas, The End of Human Rights (2000) at 2.
5 See Ignatieff, Human Rights as Politics and Idolatry (2001) at 53.
6 Wiesel, ‘A Tribute to Human Rights’ in Danieli, Stamatopolou and Dias (eds), The Universal Declaration of Human Rights: Fifty Years and Beyond (1999), cited by Ignatieff, supra n 5 at 53.
7 Gordimer, ‘Reflections by Nobel Laureates’ in Danieli et al., supra n 6 at vii, cited by Ignatieff, supra n 5 at 53.
8 Kaldor, New and Old Wars: Organized Violence in a Global Era (2001).
9 Kirby, Vulnerability and Violence: The Impact of Globalisation (2006).
10 See Humphreys, Human Rights and Climate Change (2010); Grear and Gearty (eds), Choosing a Future: Social and Legal Aspects of Climate Change (2014).
11 US Department of Defense, Quadrennial Defense Review Report, February 2010, at iv, available
at: www.defense.gov/QDR/QDR%20as%20of%2029JAN10%201600.pdf [last accessed 20 September 2014].
12 De Schutter, ‘The Specter of Productivism and Food Democracy’ (2014) 2 Wisconsin Law Review 199.
13 For pertinent discussion, see, for example, Evans, ‘Citizenship and Human Rights in the Age of Globalization’ (2000) 25 Alternatives: Global, Local, Political 415.
14 Kiobel v Royal Dutch Petroleum Co 133 S Ct 1659 (2013).
15 See, for example, ‘Agora: Reflections on Kiobel. Excerpts from the American Journal of International Law and AJIL Unbound' (2013) 107 American Journal of International Law 601.
16 See, for example, Evans, supra n 13.
17 Anghie, Imperialism, Sovereignty and the Making of International Law (2005); Marks, ‘Empire’s Law’ (2003) 10 Indiana Journal of Global Legal Studies 449; McLean, ‘The Transnational Corporation in History: Lessons for Today?’ (2004) 79 Indiana Law Journal 363; and Gill, ‘Constitutionalizing Inequality and the Clash of Globalizations’ (2002) 4 International Studies Review 47.
18 Such is the decisive influence of TNCs on human rights discourse that Baxi has argued that the entire paradigm of the Universal Declaration of Human Rights (UDHR) is imperilled by the development of a new paradigm of ‘trade-related, market-friendly human rights (TRMFHR)’. In fact, Baxi argues that the UDHR paradigm is ‘being steadily, but surely, supplanted’ by the new paradigm and that it ‘seeks to demote, even reverse, the notion that universal human rights are designed for the attainment of dignity and well-being of human beings and for enhancing the security and well-being of socially, economically and civilizationally vulnerable peoples and communities. The emergent paradigm insists upon the promotion and the protection of the collective human rights of global capital, in ways which “justify” corporate well-being and dignity even when it entails continuing gross and flagrant violation of human rights of actually existing human beings and communities’: see Baxi, The Future of Human Rights (2006) at 234 (emphasis added). Baxi insists that a comparative sociology of human rights reveals an appropriation by ‘global capital’ of international human rights—a situation signalling the possible semiotic displacement of the UHDR paradigm in a centrally powerful sense.
19 De Sousa Santos rightly points out that it is precisely ‘[b]ecause of their private character [that] these economic actors can commit massive violations of human rights with total impunity in different parts of the world … [and b]ecause such actors are at the core of the loss in economic national sovereignty, their actions, no matter how offensive to human rights, are unlikely to collide with consideration of national interest or security that might otherwise prompt the corrective or punitive intervention of the state’: see De Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation (2002) at 268.
20 That corporations dominate the entire global order is widely accepted by theorists of globalization as the defining phenomenon of the global age: see, for example, Shamir, ‘Corporate Social Responsibility: A Case of Hegemony and Counter-Hegemony’ in De Sousa Santos and Rodrigues-Garavito (eds), Law and Globalization from Below: Towards a Cosmopolitan Legality (2005) 92
.
21 Woods, Empire of Capital (2005) at 139.
22 Baxi, ‘Writing about Impunity and Environment: The “Silver Jubilee” of the Bhopal Catastrophe’ (2010) 1 Journal of Human Rights and the Environment 23.
23 Ibid. at 44.
24 Ibid.
25 Falk, Predatory Globalization: A Critique (1999).
26 Dine, ‘Jurisdictional Arbitrage by Multinational Companies: A National Law Solution?’ (2012) 3 Journal of Human Rights and the Environment 44 at 45.
27 See UNHRC, Report of the Special Representative of the Secretary-General [SRSG] on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Towards Operationalizing the ‘Protect, Respect and Remedy’ Framework, 22 April 2009, A/HRC/11/13; UN Global Compact, available at: unglobalcompact.org [last accessed 20 September 2014]; OECD Declaration on International Investment and Multinational Enteprises OECD, 25 May 2011, available at: www.oecd.org/investment-policy/oecddeclarationoninternationalinvestmentandmultinationalenterprises.htm [last accessed 22 January 2015]; OECD, OECD Guidelines for Multinational Enterprises (Edition 2011); and Voluntary Principles on Security and Human Rights, available at: voluntaryprinciples.org [last accessed 20 September 2014].
28 See Beck, Power in the Global Age (2005–06) at 123.
29 See Richardson, ‘Contending Liberalisms: Past and Present’ (1997) 3 European Journal of International Relations5 at 21.
30 Beck, supra n 28 at 120.
31 Nader, ‘Introduction’ in Wallach and Sforza, The WTO: Five Years of Reasons to Resist Corporate Globalization(1999) 7.
32 Simons, ‘Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-Regulation Regimes’ (2004) 59 Relations Industrielles/Industrial Relations 101; Simons, ‘International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights’ (2012) 3 Journal of Human Rights and the Environment 5.
33 For an extended discussion of the implications of juridical disembodiment and its implications for the relationship between corporate legal subjects and human rights, see Grear, Re-directing Human Rights: Facing the Challenge of Corporate Legal Humanity (2010); Grear, ‘Law’s Entities: Complexity, Plasticity and Justice’ (2013) 4 Jurisprudence 76.
34 Dine, supra n 26 at 46.
35 See, for example, The Paquete Habana, The Lola 175 U.S. 677 (1900).
36 Blackstone, Commentaries on the Laws of England (1765–1769) Book 4 Chapter 5, III/71, available at: lonang.com/exlibris/blackstone/bla-405.htm [last accessed 20 September 2014].
37 A legal term of art that originated in admiralty law, such that maritime pirates and slave traders were held to be beyond legal protection, subject to arrest, prosecution, conviction and punishment by any state even if that state had not been directly attacked. Under contemporary public international law, the doctrine of universal jurisdiction now applies also to torturers and perpetrators of other crimes against humanity.
38 Section 1350 28 USC.
39 603 F 2d 876 (2d Cir 1980).
40 Joseph, Corporations and Transnational Human Rights Litigation (2004).
41 Filártiga, supra n 39 at 890.
42 Dine, supra n 26 at 52.
43 The Second Circuit ruling of 17 September 2010 is available at 621 F3d 111, 123–24 (2d Cir 2010). The Supreme Court decision 17 April 2013 is available at 133 S Ct 1659 (2013).
44 Osofsky, ‘Climate Change and Environmental Justice: Reflections on Litigation Over Oil Extraction and Rights Violations in Nigeria’ (2010) 2 Journal of Human Rights and the Environment 189 at 192.
45 Dine, supra n 26 at 54.
46 Judgment of 17 September 2010, supra n 43 at headnote.
47 Dine, supra n 26 at 53.
48 Ibid.
49 542 U.S. 692 (2004).
50 Ibid. at 725.
51 Dine, supra n 26 at 55.
52 Ibid.
53 Wuerth, ‘Kiobel v Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute’ (2014) 107 American Journal of International Law 601 at 602.
54 Supra n 43.
55 Ibid. at 1669.
56 Ibid.
57 Weston, ‘Human Rights’ (‘International human rights in domestic courts’) in Encylopaedia Britannica Online (last updated 19 March 2014), available at: britannica.com/EBchecked/topic/275840/human-rights [last accessed 22 January 2015].
58 Ibid.
59 Curran and Sloss, ‘Reviving Human Rights Litigation After Kiobel’ (2014) 107 American Journal of International Law 858 at 858.
60 Ku, ‘Kiobel and the Surprising Death of Universal Jurisdiction under the Alien Tort Statute’ (2014) 107 American Journal of International Law 835 at 835.
61 Wuerth, supra n 53 at 609.
62 Ibid.
63 Supra n 15.
64 Steinhardt, ‘Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink’ (2014) 107 American Journal of International Law 841 at 841.
65 Ibid.
66 McCorquodale, ‘Waving Not Drowning: Kiobel Outside the United States’ (2014) 107 American Journal of International Law 846 at 846. See also Weston, supra n 57.
67 Ibid.
68 Of course, the EU approach is not without its own anxieties. From the standpoint of ensuring genuine human rights protection, relying upon the law of the state of harm can be risky. Success depends upon the sufficiency of that state’s commitment to human rights law and practice and upon the adequacy of its legal mechanisms to ensure meaningful accountability. It is possible that the EU courts would end up applying a low standard of protection.
69 [2012] EWCA (Civ) 525 (Eng).
70 McCorquodale, supra n 66 at 848.
71 Ibid. at 850 (emphasis added).
72 Ibid. See Guerrero v Monterrico Metals PLC [2009] EWHC 2475 (QB) (Eng).
73 Steinitz, ‘The Case for an International Court of Civil Justice’ (2014) 67 Stanford Law Review Online 75.
74 Ibid. at 77.
75 Curran and Sloss, supra n 59 at 859.
76 Nolan, Posner and Labowitz, ‘Beyond Kiobel: Alternative Remedies for Sustained Human Rights Protection’ (2014) American Journal of International Law Unbound e-48 at e-50.
77 Ibid.
78 Ibid.
79 See, for example, Simons (2004), supra n 32.
80 Dine, supra n 26 at 65.
81 Ibid. at 62 and 66.
82 Ibid. at 67.
83 UNHRC, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, A/HRC/26/L.22/Rev.1, 25 June 2014.
84 Countries that supported the resolution included Algeria, Benin, Burkina Faso, China, Congo, Côte D’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, the Philippines, the Russian Federation, South Africa, Venezuela and Vietnam. Countries that abstained included Argentina, Botswana, Brazil, Chile, Costa Rica, the Gabon, Kuwait, the Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone and the United Arab Emirates. Countries that voted against the resolution included Austria, the Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, the UK and the USA.
85 UNESCOR, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights (2003), E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003.
86 Simons (2012), supra n 32.
87 See Kinley, Nolan and 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 at 35.
88 For an account, see Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 443 at 457–9.
89 Under its founding document, the International Criminal Court has jurisdiction only over natural persons: see Article 25 of the Rome Statute of the International Criminal Court, A/CONF.183/9, 7 July 1998, 37 ILM 999 (1998), Title I International Law and World Order: Weston’s and Carlson’s Basic Documents I.H.18 (1994–), available at: referenceworks.brillonline.com/browse/international-law-and-world-order [last accessed 22 January 2015].
90 See Egede and Wells, ‘An Annotated Bibliography of the Accountability of Multinational Corporations: A Review of International Human Rights Law’, Working Paper Series No 12, The Centre for Business Relationships, Accountability, Sustainability and Society (2004). See also, Monshipouri et al., ‘Multinational Corporations and the Ethics of Global Responsibility: Problems and Possibilities’ (2003) 25 Human Rights Quarterly 965; and Simons (2004), supra n 32.
91 Kinley and Chambers, ‘The UN Human Rights Norms for Corporations: The Private Implications of Public International Law’ (2006)
6 Human Rights Law Review 447 at 448–9. The authors point out, at 449, that ‘in response to the promulgation of the Norms, business leaders were quick to reiterate and highlight both the benefits that corporate enterprise bring to all societies, and their voluntary efforts to regulate the few instances where corporations are responsible for bad business practices and human rights abuses. It was on these bases that business leaders mounted critiques, not only of the Norms document itself, but also of any expansion of the concept of corporate liability for human rights responsibilities that went beyond the current model of self-regulation through codes of conduct, social responsibility policies, and the like.’
92 Ibid.
93 Interim Report of the Secretary-General’s Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, E/CN 4/2006/97, 22 February 2006 (‘Interim Report’).
94 See, for example, Baxi, supra n 18; Baxi, ‘Market Fundamentalisms: Business Ethics at the Altar of Human Rights’ (2005) 5 Human Rights Law Review 1; Dine and Fagan, Human Rights and Capitalism: A Multidisciplinary Perspective on Globalisation (2006); Gill, ‘Globalisation, Market Civilisation and Disciplinary Neoliberalism’ (1995) 24 Millennium Journal of International Studies 399; Gill, ‘Constitutionalizing Inequality and the Clash of Globalizations’ (2002) 4 International Studies Review 47; Grear, supra n 33; and De Sousa Santos, supra n 19.
95 See Baxi, supra n 18 at 278–81.
96 De Sousa Santos, supra n 19 at 267.
97 Evans and Ayers, ‘In the Service of Power: The Global Political Economy of Citizenship and Human Rights’ (2006) (Special Issue: Citizenship and Human Rights) 10 Citizenship Studies 289 at 294.
98 Panitch, ‘Rethinking the Role of the State’ in Mittelman (ed.), Globalization: Critical Reflections (1995) at 95 (emphasis added).
99 Baxi, supra n 22 at 44.
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