National Surveys:
Category I: Crimes Against Humanity
Category II: Forced Labor/Enslavement
Category III: War Crimes Part I
Category III: War Crimes Part II
The contents and documents of this web site are
intended for research purposes and do not constitute legal advice. Fafo
and IPA are not responsible for the content of linked web sites
Business and International Crimes
Secondary sources
A. Scholarly interpretations
Michael J. Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkley J. Int’l L. 11 (2002).
Terry Collingsworth, The Key Human Rights Challenge: Developing Enforcement
Mechanisms, 15 Harvard Human Rights Journal (Spring 2002) http://www.law.harvard.edu/studorgs/hrj/current/collingsworth.shtml#fn51
William S. Dodge, Which Torts in Violation of the Law of Nations, 24 Hastings
Int’l & Comp. L. Rev. 351 (2001)
Edoardo Greppi, The Evolution of Individual Criminal Responsibility Under
International Law, 835 International Review of the Red Cross 531 (1999).
http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList174/911763EAA63170C0C1256B66005D85D0
Matthew Lippman, War Crimes Trials of German Industrialists: The "Other
Schindlers", 9 Temp. Int'l & Comp. L.J. 173 (1995).
Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon An Examination
of Forced Labor Cases and Their Impact on the Liability of Multinational
Corporations, 20 Berkeley J. Int'l L. 91 (2002).
Michael D. Ramsey, Multinational Corporate Liability Under the Alien Tort
Claims Act: Some Structure Concerns, 24 Hastings Int’l & Comp.
L. Rev. 361 (2001).
Stephen R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility,
111 Yale L.J. 443 (Dec. 2001).
William A. Schabas, Enforcing International Humanitarian Law: Catching
the Accomplices, 42 International Review of the Red Cross 439 (2001).
http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/60D3B0F3E1FB7647C1256B66005FF1FE
Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic
Legislation, 24 Hastings Int’l & Comp. L. Rev. 401 (2001).
Forced Labor/Enslavement
Michael J. Bazyler, The Holocaust Restitution Movement in Comparative
Perspective, 20 Berkley J. Int’l L. 11 (2002).
William S. Dodge, Which Torts in Violation of the Law of Nations, 24 Hastings
Int’l & Comp. L. Rev. 351 (2001).
Edoardo Greppi, The Evolution of Individual Criminal Responsibility Under
International Law, 835 International Review of the Red Cross 531 (1999).
http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList174/911763EAA63170C0C1256B66005D85D0
Matthew Lippman, War Crimes Trials of German Industrialists: The "Other
Schindlers", 9 Temp. Int'l & Comp. L.J. 173 (1995).
Anita Ramasastry, Corporate Complicity: From Nuremberg to Rangoon An Examination
of Forced Labor Cases and Their Impact on the Liability of Multinational
Corporations, 20 Berkeley J. Int'l L. 91 (2002).
Michael D. Ramsey, Multinational Corporate Liability Under the Alien Tort
Claims Act: Some Structure Concerns, 24 Hastings Int’l & Comp.
L. Rev. 361 (2001).
Stephen R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility,
111 Yale L.J. 443 (Dec. 2001).
William A. Schabas, Enforcing International Humanitarian Law: Catching
the Accomplices, 42 International Review of the Red Cross 439 (2001).
http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/60D3B0F3E1FB7647C1256B66005FF1FE
Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic
Legislation, 24 Hastings Int’l & Comp. L. Rev. 401 (2001).
Stephen Whinston, Can Lawyers and Judges Be Good Historians? A Critical
Examination of the Siemens Slave-Labor Cases, 20 Berkley J. Int’l
L. 160 (2002).
Stephen R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility,
111 Yale L.J. 443 (Dec. 2001).
William A. Schabas, Enforcing International Humanitarian Law: Catching
the Accomplices, 42 International Review of the Red Cross 439 (2001).
http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList74/60D3B0F3E1FB7647C1256B66005FF1FE
B. Applied Research
1) Beyond Good Deeds: Case Studies and a New Policy Agenda for Corporate Accountability, California Global Corporate Accountability Project (2002).
Available at:
http://www.nautilus.org/cap/BeyondGoodDeedsCSRReportNautilusInstitute.pdf
http://www.nautilus.org/cap/EXECUTIVESUMMARYBeyondGoodDeedsNautilus.pdf
SUMMARY: This report is an analysis of American public policy regarding corporate accountability. It uses a variety of case studies in the oil and tech industries to pinpoint policy deficiencies. It then makes a series of recommendations on how to remedy these problems with regard to the existing framework of regulations. The report is policy-oriented rather than legal in its approach. It does, however, provide very good analysis of the issues facing MNCs in the oil and tech industries by way of the case studies.
From the Executive Summary:
“This report makes the case that now is the time for a new American public policy agenda to strengthen corporate accountability. In light of recent high profile accounting scandals, from Enron to WorldCom, many voices are calling for corporate reform.
Respect for human rights and protection of the environment, both at home and abroad, should be part and parcel of these reforms.
Drawing from case studies spanning nine countries, the report examines human rights and environmental challenges faced by U.S. multinational corporations in two industry sectors—oil and information technology.
The report develops a policy agenda based primarily on strengthening the government’s role in mandating and managing information about corporate performance in relation to environment, labor rights, and human rights.”
ISSUE:
“The global environmental and human rights dilemmas faced by multinational corporations (MNCs) stem fundamentally from regulatory failures. While markets and investment opportunities span borders, there are no binding global industry standards. The environmental and social regulation of industry remains national.”
ANALYSIS:
It considers, for example, the separate cases of oil and tech industries.
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In the oil sector it uses case studies of Nigeria, Ecuador, Azerbaijan, and Kazakhstan, as well as operations in California. They focus primarily on the record of Chevron Texaco, Occidental Petroleum, and Unocal. These studies identified the key physical environmental and social problems as widespread pollution, a pattern of social neglect, including insensitivity to human rights abuses, a gap between company promises and performance, and a low level of company transparency.
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The high tech sector case studies span Taiwan, Thailand, Malaysia, and India, with a field report on Costa Rica and an overview of California and the regulatory environment in the U.S. These studies identified the key environmental and social problems as the use of highly toxic materials in production and in consumer products; a high intensity of energy and water use; inadequate labor standards, including protection of worker health and safety; and poor oversight of global supply chains.
RECOMMENDATIONS:
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U.S. Right-to-Know Reforms: The U.S. was an early leader in the area of information disclosure and, in terms of government information, remains far more transparent than many European countries. But the laws requiring corporate disclosure to regulators or the public are piecemeal and under-enforced. Both federal and state governments can more widely embrace measures for company reporting. One possible template is the Global Reporting Initiative (GRI).
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Securities Reform: Another means of improving disclosure is to expand the use and enforcement of existing laws governing disclosure by publicly traded corporations. All corporations that issue stock in the U.S. are subject to certain requirements under both federal and state securities laws.
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Creating Data Management Systems: Government agencies themselves may not be the only, or even the best, processors of data. Government can support independent research organizations to process the raw data in various ways and help the government to independently analyze and distribute the information to local public sources.
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Providing Regulatory Incentives for Disclosure
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Protecting Consumers from False Advertising
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Designing Verification and Accreditation Standards
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Finally, it also notes there is a role for state actions because, “Corporations are creatures of state law. They exist as legal entities under corporate charters granted in accordance with state law. Another way to enhance corporate accountability is to change state laws on corporate governance.”
2) Beyond Voluntarism: Human Rights and the Developing International Legal
Obligations of Companies, International Council on Human Rights Policy
(2002).
Available at: http://www.cleanclothes.org/legal/02-02-15.htm
SUMMARY: The report raises two questions: Do private companies have a responsibility to respect human rights? and, Can international human rights law be applied not only to states but also to private actors? It begins its analysis by discussing how companies have been both subjected to external regulation through lobbying, as well as by subjecting themselves to voluntary approaches in response to coordinated campaigns. These approaches have had varying degrees of limited success and as a result this report argues that international rules and the imposition of legal duties on MNCs regarding human rights are now necessary.
ANALYSIS: The report addresses in turn the status of international human rights law, indirect obligations for MNCs – i.e., duties on states, direct obligations on MNCs, available international procedures for enforcing obligations, the special circumstance of complicity, and the move to new international standards. It specifically delineates a framework for corporate complicity in international human rights violations.
Among the issues considered are: the diamond conflict, security issues and the extractive industry, illicit trade in small arms, proposed Framework Convention on Tobacco Control, anti-corruption treaties, and the UN Sub-Commission Draft Principles.
RECOMMENDATIONS:
· Advocates should make use of UN and regional human rights procedures
to ensure that states fulfill their duty to protect human rights from
abuses by companies.
· Special Rapporteurs and Working Groups of the UN Commission on
Human Rights should be encouraged to scrutinize the failings of states
to prevent abuses by companies.
· Trade union federations need to activate the ILO’s contentious
procedure under which it is possible to investigate the serious violations
of ILO standards by member states.
· International and domestic legal reform regarding lifting the
corporate veil and modifying the principle of forum non conveniens.
3) Corporate Liability for Violations of International Human Rights Law, 114 Harv. L. Rev. 2025 (2001).
SUMMARY: This piece analyzes and critiques the limited extent of corporate liability under the ATCA and proposes a supplemental multilateral approach to filling the gaps in domestic and international legal regimes that address corporate human rights violations. Section A categorizes and discusses the many human rights that corporations are capable of violating. Section B describes the current gap in the international legal system that leaves corporate human rights violators immune from liability. Section C describes the extent of corporate civil liability under the ATCA by analyzing the requirements of subject matter and [*2027] personal jurisdiction - the two most formidable obstacles to bringing a successful ATCA claim - and concludes that the ATCA is likely to provide relief in only a limited set of cases, leaving many victims of corporate violations without effective remedies. Section D argues that despite the ATCA's shortcomings, courts should not unilaterally expand the scope of the ATCA's subject matter jurisdiction to cover a broader range of human rights violations, because doing so would likely violate international law and raise serious policy concerns. Finally, Section E proposes a means to address the corporate liability gap in international law regarding human rights violations: an international treaty that specifies the human rights obligations of corporations and requires states to provide criminal, civil, or administrative remedies to victims of corporate human rights violations.
4) Draft Norms of Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights, United Nations, E/CN.4/Sub.2/2002/13
http://www.business-humanrights.org/Draft-UN-Human-Rights-Responsibilities-of-Business-Aug-2002.htm
SUMMARY: States have the primary responsibility to respect, ensure
respect for, prevent abuses of, and promote human rights recognized in
international as well as national law, including assuring that transnational
corporations and other business enterprises respect human rights. Within
their respective spheres of activity and influence, transnational corporations
and other business enterprises have the obligation to respect, ensure
respect for, prevent abuses of, and promote human rights recognized in
international as well as national law.
The Draft Norms addresses the following rights and obligations:
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Right to Equal Opportunity and Non-Discriminatory Treatment
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Right to Security of Persons
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Rights of Workers
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Respect for National Sovereignty and Human Rights
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Obligations with regard to Consumer Protection
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Obligations with regard to Environmental Protection
5) Internationally Binding Legislation and Litigation for the Enforcement
of Labor Rights: Report of the Seminar Organized by the Clean Clothes
Campaign (CCC) International Legal Working Group and International Restructuring
Education Network Europe (IRENE) Evangelic Academy, Mülheim an der
Ruhr, Germany 26 – 28 June 2002
Report written by Julie Smith
http://www.cleanclothes.org/legal/02-06-irene.htm
SUMMARY: This seminar explored the legal possibilities for holding multinational corporations (MNCs) responsible for labor rights in their operations outside their home countries. It followed up from discussions held at two previous seminars organized by IRENE that brought NGOs, trade unions, academics and lawyers together to discuss these issues.
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The first seminar was held in Warwick, UK 20 - 21 March 2000 - Controlling corporate wrongs: the liability of transnational corporations (see News from IRENE no.31 or contact IRENE for the report).
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The second seminar took place in Bad Boll, Germany 3 - 4 December 2001 - Global governance: international law on human rights and the liability of transnational corporations (see News from IRENE no. 32 or contact IRENE for the report). This second seminar looked at specific legal cases and discussed what is needed to effect corporate liability of MNCs under national and international law.
ISSUE:
1. Which groups are interested in exploring possibilities for starting
a lawsuit and how do we exchange information and strategic issues ?
2. What role can we play together, and more specifically, what is the
role of the CCC International Legal Working Group?
ANALYSIS: The seminar was held as a roundtable using short presentations and discussions, which focused on:
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Tools that can be used to achieve compliance on basic labor standards;
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The usefulness of litigation;
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The value of lobbying in relation to the development and enforcement of binding; legislation that guarantees workers' rights;
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The role of campaigning to support above strategies.
The Report presents the conclusions reached. One final conclusion from this discussion was that there are two ways to hold MNCs accountable, either through establishment of new legislation or through enforcement of existing legislation via court cases. Finally, the analysis establishes a strategic framework for bring suit against MNCs.
6) Halina Ward, Legal Issues in Corporate Citizenship, Swedish Partnership
for Global Responsibility (2003).
http://www.iied.org/cred/pubs.html
SUMMARY: This paper is aimed at public policy makers and businesses in the high income countries of the North. It aims to show how law shapes corporate social responsibility (CSR). In doing so, the paper addresses one of the basic dividing lines of the CSR agenda in Europe, North America and Australia – a line between people who argue that CSR should be limited to consideration of ‘voluntary’ business activities ‘beyond compliance’ with legal baselines, and those who argue for a broader starting point, based on an understanding of the total impacts of business in society. As the definitional debate rages, the legal baseline for CSR is itself changing.
ANALYSIS: On the public policy side, the legal dimensions of CSR point to a need to revisit the institutional settings of CSR. Litigation has raised important public policy questions that have not been adequately addressed elsewhere. A global public policy dialogue could deliver integrated solutions – beyond the false ‘legal versus voluntary’ divide – to some of the most difficult outstanding CSR issues. A key challenge is to ensure better integration between national and international policy agendas on good public governance, corporate social responsibility and corporate accountability.
Some tough policy discussions almost certainly lie ahead. For example, the frontier CSR litigation raises substantial question marks over the social and environmental efficiency of limited liability as a mechanism for allocating risk. And the agenda on environmental and social reporting leads naturally to the potential for a future debate on the role of a right of public access to information held by companies.
However challenging the implications, it is increasingly clear that law and litigation are an important part of the CSR toolkit around the world. It is high time to get beyond the tired dogma of ‘voluntary versus mandatory’ to look at the real challenges of ensuring that t economic globalization is coupled with good environmental and social performance on the part of businesses around the world.
7) Multinational Enterprises in Situations of Violent Conflict and Widespread
Human Rights Abuses, OECD Directorate For Financial, Fiscal And Enterprise
Affairs Working Papers On International Investment, Number 2002/1.
http:// www.oecd.org/pdf/M00030000/M00030496.pdf
SUMMARY: In response to enquiries about foreign investment in Myanmar, the Committee for International Investment and Multinational Enterprises (CIME) asked the Secretariat to prepare a paper, under the responsibility of the latter, that would provide background information to interested parties. This paper was not only to shed light on business activity in Myanmar, but also to consider the broader challenges of conducting business responsibly in countries characterized by civil strife and extensive human rights violations. The present paper responds to this request and focuses on issues that are of particular relevance to extractive industries. This sector’s share of global investment is quite small, but its significance for particular host societies is large and the underlying issues for corporate responsibility affect the welfare of millions of people. While not ignoring the problems that have arisen in connection with multinational enterprise activity in troubled host countries, this paper also seeks to promote and highlight the positive roles that some companies have played in the search for solutions to these countries’ very complex problems.
ISSUES:
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Security management and safeguarding local populations: These management issues are clearly among the core functions of any business, especially managing the physical security of company assets and employees.
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Multinational enterprises in the broader logic of civil strife: Multinational enterprises, through the payments they make to troubled countries, can play an inadvertent role in their problems by providing funding and stakes for conflict. This is a particularly challenging issue for corporate responsibility because most of the problems arise from lack of “government responsibility” in these host countries and, in particular, from poor public governance (budget systems, government transparency and accountability, protections of civil and political rights). As a result, the question of appropriate “roles” in this area is a difficult one.
ANALYSIS:
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The paper draws on three sources of information: the economics and business literature; a Secretariat survey of public statements by a group of multinational enterprises; and studies and information produced by governments and international organizations. Based on these sources, it explores two issues that pose particular challenges for multinational enterprises operating in severely troubled societies.
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The first issue concerns violence and human rights abuses in the immediate vicinity of company operations. Serious problems in this area have been documented, especially in extractive industries (in managing security and relations with local communities). The paper also notes that, working individually and through industry associations, some companies are trying to improve their practices in this area. A growing body of management practice and of conceptual guidelines is slowly emerging, though not all companies are involved in these efforts.
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The second issue concerns the factors underpinning the dynamics of civil strife and human rights violations. A growing empirical literature supports the view that civil strife tends to be correlated with the level and structure of income and with the degree of development of political institutions. In particular, these findings identify strong primary resource orientation for the economy as being a significant factor contributing to the probability that a country will experience civil strife.
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In economies heavily dependent on extractive industries, multinational enterprises operating in this sector typically provide large revenues to governments in the form of taxes, royalties and other payments. In countries with severe public governance and fiscal control problems, these payments can contribute to both the means for violence -- by providing funding for the organizational and material requirements of conflict -- and the motive -- by providing financial stakes for conflict. In addition, OECD based companies have occasionally agreed to refrain from disclosing the amounts of money they pay to governments in these countries. The paper also discusses the positive role of some leading companies, working with international organizations, in trying to improve transparency and accountability in the budget processes in some countries.
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It is recognized that the influence of multinational enterprises in troubled societies, while often significant, does have limits. The search for solutions will not be an easy one and it will be prudent for companies to act in partnership with one another, with host and home governments and with international organizations.
8) Courtney Shaw, Note: Uncertain Justice: Liability of Multinationals
under the Alien Tort Claims Act, 54 Stan. L. Rev. 1358 (2002).
ISSUE: When an energy company undertakes ventures abroad, is it liable in United States federal court for human rights violations committed in connection with its operations in those foreign countries?
SUMMARY: This issue is important to multinational companies, and to energy companies in particular. Multinational energy companies are among the largest companies in the world. Their ventures around the globe tend to expose them to a wide variety of societal conditions, including many human rights and environmental problems.10 Additionally; energy companies face a unique set of circumstances in performing their work. First, the resources they are seeking are often found in less-developed countries. For the governments of such countries, these resources are often a primary supply of income. Second, resource extraction work usually involves constructing complicated infrastructure at the site and utilizes a good deal of hard labor.12 As a result; energy companies often confront particularly grave human rights conditions. Finally, many energy companies engage in a practice that has been termed ‘militarized commerce’, meaning that they rely on the military forces of their host country to provide security for their projects.13 Certainly when companies engage foreign military or paramilitary forces in this fashion, they run the risk of fending off lawsuits for any human rights abuses committed by those forces in conjunction with the projects.
This Note examines the most important of those doctrines: a responsibility
standard articulated by Judge Lew in the Unocal V decision. This standard,
which essentially attempts to define when a company may be held responsible
for the bad acts of foreign governments, determines whether subject matter
jurisdiction will lie under the ATCA. In this regard, Part I of this Note
explores the legal foundations of the Unocal case and the history of the
ATCA and issues encountered in its early use in human rights litigation.
Specifically, these issues are the problems of establishing the ATCA as
a substantive right of action, determining that private actors are liable
under the ATCA in some circumstances, and defining the boundaries of the
class of violations that the
ATCA covers. In Part II, this Note reviews the circumstances of the Unocal
case itself and details the actual standard for responsibility laid out
in the Unocal V case, a standard that is premised on imputing color of
state law on private actors through a joint action test developed in American
civil rights jurisprudence. In Part III, this Note describes several possible
alternatives to the responsibility standard articulated in Unocal V, some
of which could be more problematic for multinational energy companies.
First, it explores other possible interpretations of the joint action
test. Second, it explores other tests in civil rights jurisprudence for
imputing color of law on private actors. After finding that applying any
of the civil rights doctrine may not be appropriate, it finally explores
several alternative standards of liability: state responsibility, joint
liability for a tort, and accomplice liability. This Note concludes that
the last two alternatives may be more appropriate than the Unocal standard,
but that substantial uncertainty for multinational oil companies remains,
since the standard has yet to be addressed on appellate review or by a
statute.
ANALYSIS: The Note considers relevant crimes such as, war crimes, including genocide, rape, forced prostitution, arbitrary detention, summary execution, and wrongful death.
9) Voluntary Principles on Security and Human Rights Fact Sheet, Released
by the Bureau of Democracy, Human Rights, and Labor U.S. Department of
State, December 20, 2000.
http://www.state.gov/www/global/human_rights/001220_fsdrl_principles.html
INTRODUCTION: The Governments of the United States and the United Kingdom, companies in the extractive and energy sectors ("Companies"), and non-governmental organizations, all with an interest in human rights and corporate social responsibility, have engaged in a dialogue on security and human rights.
The participants recognize the importance of the promotion and protection of human rights throughout the world and the constructive role business and civil society -- including non-governmental organizations, labor/trade unions, and local communities -- can play in advancing these goals. Through this dialogue, the participants have developed the following set of voluntary principles to guide Companies in maintaining the safety and security of their operations within an operating framework that ensures respect for human rights and fundamental freedoms. Mindful of these goals, the participants agree to the importance of continuing this dialogue and keeping under review these principles to ensure their continuing relevance and efficacy.
SUMMARY:
The Fact Sheet determines that effective risk assessments by MNCs should
consider the following factors:
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Identification of security risks
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Potential for violence
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Human rights records
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Rule of law
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Conflict analysis
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Equipment transfers
It then identifies voluntary principles in the listed areas to guide relationships between Companies and public security regarding security provided to Companies:
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Security Arrangements
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Deployment and Conduct
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Consultation and Advice
- Responses to Human Rights Abuses