The Betrayal of Human Rights and the Urgency of Universal Corporate Accountability: Reflections on a

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