Addressing Transnational Corporate Human Rights Abuses through Soft-Law and Transnational Human Rights Litigation
| Autor | Andrés Felipe López Latorre |
| Cargo del Autor | International law profesor at la Universidad de La Sabana |
| Páginas | 35-66 |
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Addressing Transnational Corporate Human
Rights Abuses through Soft-Law and
Transnational Human Rights Litigation
Andrés Felipe López Latorre*
Introduction
During the twentieth century, the state was the main and most important
structure of power,1 but now some private actors are more powerful and
inuential in economic terms than some States. e concern of corporate
dominance over the economy became an issue in the international state
since the 1960’s.2 For example, in 2009, Wal-Mart’s exceeded many
industrialized and oil-rich nations including Sweden, Saudi Arabia, and
Venezuela. As an employer, Wal-Mart ’s population of more than two million
employees is greater than that of Qatar. If it were a country, it would be the
twenty-second largest in the world. Moreover, business entities comprise
around 59% of the 150 largest economic actors globally.3
* International law profesor at la Universidad de La Sabana. andreslopla@unisabana.edu.co
1 Bilbao Ubillos, Juan María, La ecacia de los derechos fundamentales frente a particulares.
Madrid, Centro de Estudios Políticos y Constitucionales, 1997, pp. 240-248.
2 “at the world’s largest multinational corporations… are more powerful and inuential
than many states has been a cliché since the 1960s”. Kamminga, Menno, “Holding Multinational
Corporations Accountable for Human Rights Abuses: A Challenge for the ”. In Alston, Philip
(ed.), e eu and human rights, Great Britain, Oxford University Press, 1999, pp. 553-570.
3 Stoklund, Christel K.; Keys, Tracey S. and Malnight, omas W., Globaltrends. Corporate
Clout 2013: Time for Responsible Capitalism, htt p://www.globaltrends.com/2013/06/04/corporate-
clout-2013-time-for-responsible-capitalism (accessed, Jul 25, 2017).
Derechos Humanos y empresas y Sistema Interamericano de Derechos Humanos
36
Traditionally, business entities as creatures of national law were re-
gulated by States that are internationally responsible for protecting every
person within their territories or jurisdiction from third persons, including
business entities, who could violate their human rights.4 Nevertheless, the
globalization phenomenon, the increase of the power of business entities,
in particular of transnational corporations, and the problem of states with
low governance (especially when due to armed conicts) have rendered
traditional approaches to corporate responsibility ineective and inadequate.
is paper critically analyzes the use of transnational human rights
litigation and soft-law as two non-traditional legal avenues employed to
address the problems of negative human rights impacts caused by transna-
tional business corporations. Accordingly, the second section compares the
approach of the main legal forums to sue businesses corporations for human
rights abuses: the United States, the United Kingdom, the Netherlands,
Canada, and France, and analyzes its strengths and obstacles to yield eec-
tive redress to victims of human rights abuses. e third section analyzes
three soft law initiatives targeted towards corporations: the United Nations
Guiding Principles, the Guidelines, the Global Compact, and
the development of Multistakeholders initiatives (). Fur thermore, the
section explores the role of soft-law in the development of a new sub-area
of international human rights law named “business and human rights”,
and in a more general perspective to understand the capacity of soft-law
to promote the creation of new international norms.
Transnational Human Rights Litigation
Transnational human rights litigation () is not unique to the
eld. It is a common path followed by victims and their representatives
in order to obtain redress for human rights abuses committed by foreign
states, foreign ocials, and non-state actors in the absence of international
4 Inter national Covenant on Civil and Political Rights, adopted Dec. 19, 1966, S. . Doc.
E, 95-2, at 23 (1978), 999 . 171 [hereinafter ] art. 2; See also, Human Rights Com-
mittee (),General comment n.o 31, e Nature of e General L egal Obligation Imposed on
States Parties to e Covenant, §10ss . Doc.//21/Rev.1/Add.1, May 26 2004.
Addressing Transnational Corporate Human Rights Abuses through Soft-Law and Transnational Human Rights Litigation
37
forums.5 is the horizontal enforcement of international human rights
norms by national courts, rather than by international bodies or tribunals.6
e legal basis for domestic courts to resolve transnational cases can
be adjudicatory jurisdiction when the court is asked to apply international
law directly, or prescriptive jurisdiction when the court is asked to apply its
own domestic law that incorporates international law or is informed by it.7
e exercise of prescriptive jurisdiction over extraterritorial conduct usually
produces much more conict among states and international actors than
the exercise of adjudicatory jurisdiction since the exercise of prescriptive
jurisdiction under the current model of international law is limited by the
sovereign territory of each state.8 Nevertheless, there are several exceptions
to such limitations that are generally accepted in practice and doctrine
such as the active personality principle that enables the state to prosecute
its own nationals for extraterritorial conducts.9
can take two forms: criminal prosecution or civil litigation.10
If the violations amount to criminal oences, business executives may
be prosecuted, and in some countries even the legal person can face crimi-
nal prosecution.11 e other option is to seek monetary compensation as
a civil remedy. In these cases the cause of action might come from torts,12
5 See generally, Keitner,Chimène, “Transnational Litigation: Jurisdiction and Immunities”.
In Shelton, Dinah (ed.), e Oxford Handbook of International Human Rights Law,Great Britain,
Oxford University Press, 2013, pp. 794-814.
6 Ibid., at 794.
7 Ibid., at 796.
8 Ibid., at 796-797.
9 See Cassel, Doug, “S uing Americans for Human Rights Torts Overseas: e Supreme Court
Leaves the Door Open”, 89 Notre Dame L. Rev. 1773, 1778-80 (2014).
10 For the purpose of this review I will only focus on civil litigation because it is the most
common form of against corporations.
11 See e. g., New York Central & Hudson River Rail Road Co. v. .., 212 .. 481 (1909);
State v. Ford Motor Co., 47 2514, 2515 (Ind. Sup. Ct. 1979). For a general comparison of
dierent models of criminal corporate liability in the United States, England, Germany, France
and others, see Beck, Susanne, “Corporate Criminal Liability”. In e Oxford Handbook of Criminal
Law (ed.), Dubber, Markus, D. and Hörnle, Tatjana, Great Britain, Oxford University Press, 2014,
pp. 560-582.
12 See Alford, Roger P., “e Future of Human Rights Litigation after Kiobel”, 89 Notre Dame
L. Rev. 1749-1772 (2013).
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