C ALE Discussion Paper No.9
October, 2012

Corporate Responsibility to Respect
Human Rights
Challenges and Opportunities for Europe and Japan

Prof. Jörg Polakiewicz

Nagoya University
C e n t e r for Asian Legal Exchange

Center for Asian Legal Exchange (CALE)
Nagoya University, Japan

Corporate Responsibility to Respect Human Rights
Challenges and Opportunities for Europe and Japan

Prof. Jörg Polakiewicz
Directorate General of Human Rights and Rule of Law,
Council of Europe

Corporate Responsibility to Respect Human Rights –Challenges and Opportunities for Europe and Japan
Jörg Polakiewicz1

Contents
Preface................................................................................................................................. 3
Abstract ............................................................................................................................... 4
Introduction ......................................................................................................................... 5
The existing standards for the accountability of business enterprises for human rights
abuses .................................................................................................................................. 7
International human rights treaties.................................................................................. 7
Introduction ................................................................................................................. 7
Case-law under the European Convention on Human Rights .................................... 8
European Social Charter ............................................................................................... 19
Bioethics ....................................................................................................................... 20
Data Protection.............................................................................................................. 20
Criminal responsibility of business enterprises ............................................................ 21
Civil suits against business enterprises ......................................................................... 23
United States of America .......................................................................................... 23
Europe ....................................................................................................................... 29
Conclusions on existing standards ................................................................................ 31
Action by international organisations and institutions...................................................... 33
United Nations .............................................................................................................. 33
UN Global Compact ................................................................................................. 34
Guiding Principles on Business and Human Rights (Guiding Principles) ............... 35
International Labour Organisation (ILO).................................................................. 37
Children’s Rights and Business Principles ............................................................... 38
1

Professor at the Europainstitut of the University of Saarbrücken and Head of the Human Rights
Policy and Development Department, Directorate General of Human Rights and Rule of Law,
Council of Europe. This report was written in a strictly personal capacity and does not necessarilyreflect the official position of the Council of Europe.

2International Organization for Standardization (ISO) .................................................. 38
Organisation of Economic Co-operation and Development (OECD) .......................... 39
Council of Europe ......................................................................................................... 41
European Union ............................................................................................................ 43
Corporate social responsibility and human rights in Japan .............................................. 44
Origins........................................................................................................................... 44
Modern CSR and human rights..................................................................................... 45
Government initiatives .................................................................................................. 49
Human rights under national law .................................................................................. 50
Conclusion .................................................................................................................... 53
Challenges and opportunities for further action at regional and national level ................ 55
The UN framework as a common baseline for future work ......................................... 55
Complementary action by OECD and ISO ................................................................... 57
The implementation gap ............................................................................................... 60
Human rights due diligence ...................................................................................... 62
Transparency ............................................................................................................. 64
Responsibility of parent companies regarding subsidiaries and contractors ............ 66
Supply chain issues ................................................................................................... 68
Contract law .............................................................................................................. 68
Responsibilities of financial actors and institutions.................................................. 70
Civil and criminal liability of corporations ............................................................... 72
Conclusions and recommendations................................................................................... 75
Conclusions ................................................................................................................... 75
Recommendations ......................................................................................................... 78
Annex - Bibliography ....................................................................................................... 78
Articles and books......................................................................................................... 78
Reports by the SRSG .................................................................................................... 82

3

Preface
The present paper was prepared during a two-months stay at Nagoya University (JulyAugust 2012). During that time, I carried out the following interviews--

23 July: Mr Toru Shimizu, Director and Ms Emi Mashiko, OECD Division, Ministryof Foreign Affairs; Ms Namiko Yamashita, Human Rights and Humanitarian Affairs
Division, Ministry of Foreign Affairs; Ms Miyuki Hayashi, Economic and Industrial
Policy Bureau, Corporate Accounting, Disclosure and CSR Policy Office, Ministry of
Economy, Trade and Industry;
3 August: Ms Tomoko Sasaki, Group Manager, CSR Planning Group, CSR
Implementation Office, Toshiba Corporation, Tokyo;
20 August: Mr Yoshitsugu Asai, Managing Executive Officer, Mr Hidemi Asai,
General Manager, Mr Shun Kanishima, Manager, both Legal & General Affairs
Department, Brother Industries Ltd., Nagoya.

I am grateful to all interviewees for their openness and the information provided. At theinvitation of Prof Katsuhiko Kokubu, I participated in a seminar organised by Kobe
University on 22 August 2012, which was a highly appreciated opportunity to discuss
some of the findings of my report with Japanese scholars.
The paper was presented at Nagoya University on 31 August 2012, later developments
are not taken into account. All indicated websites have been consulted during the monthof August 2012.
I am indebted to Prof Katsuya Ichihashi and Prof Masanori Aikyo, who invited me to
Nagoya and were helpful in many ways. I would also like to thank Prof Akiko Ejima andProf Kaoru Obata who commented parts of my report, as well as Prof Sheldon Leader(Essex University) for valuable material and Ms Sana Hussein for assistance in the
research. The responsibility for any errors, omissions or inconsistencies remains fullymine.
Jörg Polakiewicz
Nagoya, 31 August 2012

4

Abstract
The paper provides an analysis and overview over the existing human rights standards
relating to business, focusing on the European Convention on Human Rights and selected
other international treaties. It also analyses existing law and practice regarding civil andcriminal liability of corporations, in particular in Europe and the United States ofAmerica, where the US Supreme Court is about to give a what could become a landmark
judgment on the accountability of corporations for human rights abuses in the case of
Kiobel v. Royal Dutch Petroleum.
The paper then presents and critically reviews the initiatives taken so far by the United
Nations, the ISO, the OECD, the European Union and the Council of Europe in the fieldof corporate social responsibility for human rights abuses. In this context, the paper also
analyses Japan’s law and business practices in this field. With its deep-rooted experienceof socially responsible business and worldwide operating corporations, Japan has a lot tocontribute to bringing the CSR agenda forward.
The UN Framework and Guiding Principles on business and human rights brought abouta paradigm shift. They present for the first time globally agreed standards, which havebeen taken up by other intergovernmental organisations, governments and business. Their
sometimes abstract character was the price for worldwide acceptance. Despite valuableaction already taken, in particular by the OECD and the ISO, the Guiding Principles need
to be further developed to increase their value to individual States and businesses. This
will require concerted multistakeholder action at international, regional and national level.
The paper highlights the importance of human rights due diligence as a key concept
whose effective implementation presents advantages for businesses, individuals andcommunities at large. The introduction of human rights impact assessment in the project
management process coupled with regular reporting would be a major step towards
establishing human rights protection as a core business concern. For both impact
assessment and reporting, however, more guidance is needed, in particular on therequirements of corporate due diligence, the responsibility of parent companies regarding
their subsidiaries and supply chain, contract law and the role of financial actors andinstitutions.
The issue of effective remedies capable of providing redress for victims of corporate
human rights abuses requires further action by governments. The OECD’s national
contact point mechanism is an important tool to raise cases of corporate human rights
abuses. It is, however, not an effective remedy for victims. There are good reasons to
introduce some form of civil and/or criminal law liability of corporations for humanrights abuses, though regulation at national and/or international level raises a number ofdifficult questions.

5

Introduction
Human rights and business is a highly topical issue. The debate concerning the
responsibilities of business enterprises in relation to human rights became prominent in
the 1990s, as oil, gas, and mining companies expanded into zones of armed conflict or
weak governance, and as the practice of offshore production in clothing and footwear
drew attention to poor working conditions in global supply chains. In today’s globalised
world, the State is no longer the main source of power. Multinational enterprises (MNEs)
with revenues exceeding the GDP of many States have more influence over the life ofordinary people than many States do.2
Though different organisations have different definitions of ‘corporate social
responsibility’ (CSR), there is much common ground. The focus is on strategies andmechanisms whereby a business monitors and ensures compliance with ethical standards,
including human rights norms in order to produce a positive sustainable impact for bothsociety and for the business. The concept of ‘corporate responsibility to respect humanrights’ acknowledges the fact that the conduct of business enterprises has significant
impacts on human rights. The question of their accountability for human rights abuseshas been the subject of intense debate at both international and national level. Several
major corporations have been accused of human rights abuses, frequently in the sphere of
economic and social rights, either directly or in complicity, participating or benefittingfrom human rights violations by corrupt or weak governments, in particular in developing
countries.3 MNEs often benefit from the operations of their third‐country subsidiaries andcontractors, while third‐country victims encounter significant obstacles in obtaining
effective redress. According to a study prepared by the University of Edinburgh in 2010
on the situation in Europe, 4 the vast majority of alleged corporate human rights andenvironmental abuses had been committed by subsidiaries or contractors of European
corporations that are domiciled or resident in the countries where the violations occurred.
It would, however, be wrong to assume corporate human rights abuses are limited to
MNE’s or ‘extraterritorial conduct’. They also involve small and medium-sizedenterprises and purely ‘domestic’ cases such as discrimination or interferences with theright to respect for private and family life. Recent cases involved acts which, if
committed by State authorities, would have amounted to flagrant violations of the ECHR.
Examples are the illicit hacking by journalists on a UK-based tabloid newspaper into thevoicemails of an estimated several thousand people, among them celebrities as well as

See J. Wouters & L. Chanet ‘Corporate Human Rights Responsibility: A European Perspective’
Northwestern Journal of International Human Rights 6 (2008), 262.
2

The ‘Business and Human Rights Resource Centre’ provides continuously updated informationof alleged abuses, rebuttals, court cases and other developments, see <http://www.businesshumanrights.org/>.
3

University of Edinburgh ‘Legal framework for human rights and the environment applicable to
EU enterprises when they operate outside the EU’ (2010) (report prepared for the European
Commission,
availableat<http://ec.europa.eu/enterprise/policies/sustainablebusiness/files/business-human-rights/101025_ec_study_final_report_en.pdf>.
4

6
relatives of crime victims and dead soldiers,5 or allegations that a European-based MNE
infiltrated an informer from a security company into the Swiss branch of the international
non-profit organisation ‘ATTAC’ which at the time was working on a critical book aboutthat company.6
With the adoption of the ‘Guiding Principles on Business and Human Rights’ 7 by the
UN Human Rights Council on 16 June 2011, there now exists a standard at the global
level. The social responsibility standard ISO 26000:20108 and the ‘OECD Guidelines forMultinational Enterprises’9 have already been aligned to the UN framework. Hailed as anunprecedented achievement by many, the UN framework has also been criticised forhaving fallen short of its potential, as it would merely mirror the status quo, instead of
addressing the problem that “states are so weak or unwilling to protect human rights andcorporations are so comparatively strong or conveniently transnational to evade humanrights responsibilities.”10 Similarly, it has been observed that “the major weakness of theOECD Guidelines is their unenforceability. The 2010 Update fails to address thisissue.”11
This paper provides a critical analysis of what has been achieved so far. It also examines
what options exist to complement the existing frameworks with initiatives at regional andnational level, focusing on Europe and Japan. In Europe, we are at a defining moment for
CSR policy, with both the European Union (EU) and the Council of Europe poised topropose further initiatives. The European Commission is to publish a report on EU
priorities for implementation of the UN Guiding Principles by the end of 2012. Following
the Parliamentary Assembly’s report on ‘Human rights and business’,12 the Council ofEurope is also considering various options for further action. With the European

See the special section on the BBC website on the ‘News of the World phone hacking scandal’at <http://www.bbc.co.uk/news/uk-11195407>.
5‘Spitzel-Affäre um Nestlé’ (‘Spy case involving Nestlé’), Spiegel online 30 January 2012, at<http://www.spiegel.de/wirtschaft/unternehmen/spitzel-affaere-um-nestle-das-war-klassischesprofiling-a-811608.html>.
6

7

A/HRC/17/31 of 21 March 2011.

8

ISO 26000: 2010 Guidance on social responsibility, International Organization forStandardization.
9OECD Guidelines for Multinational<http://dx.doi.org/10.1787/9789264115415-en>.

Enterprises(OECD

Publishing2011),

10

Professor David Kinley quoted in Joint Committee on Human Rights ‘Any of our Business?
Human Rights and the UK Private Sector’ (House of Commons London 2009), para. 94.
Jernej Letnar Černič ‘The 2011 Update of the OECD Guidelines for Multinational Enterprises’
ASIL Insights 16/4 (February 10, 2012), at <http://www.asil.org/insights120210.cfm>.
11

12

Doc.
12361
(27
September2010),
at<http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc10/EDOC12361.htm#P38
8_53806>.

7
Convention on Human Rights (ECHR), Europe possesses the most advanced regional
system for the protection of human rights. But can the ECHR standards be used as asource for corporate human rights due diligence?
It is particularly interesting to compare the situation in Europe with that of Japan, aleading industrial nation, major investor overseas, member of the G8 and OECD, as well
as observer with the Council of Europe. With a tradition of socially responsible trading
dating back to the Edo era in the 18th century and a relationship between business andsociety specific to the Japanese context, this country is uniquely placed to contribute to
the worldwide CSR debate.

The existing standards for the accountability of businessenterprises for human rights abuses
International human rights treaties
Introduction
The idea of human rights protection, which has found its expression since the 18th century
in bills of rights, constitutions and international human rights treaties, has primarily beendeveloped and conceived for the relationship between citizens and State authorities. In aworld where States were the only actors and subjects of international law, “the publicdomain, the interstate sphere, and the realm of governance were largely coterminous.”13
Under the existing international treaties, human rights are enforced against States throughinternational mechanisms. Although already the preamble to the 1948 Universal
Declaration of Human Rights imposed obligations to promote human rights “on every
individual and every organ of society”, private, nonstate actors did not appear as direct
addressees of human rights obligations.14
Over the years, there has been mutual influence between the national and international
sphere. Fundamental rights and freedoms guaranteed in national constitutions have beentaken up in international human rights treaties. Conversely, international treaties havecommitted States to adopting domestic legislation securing the enjoyment of humanrights without discrimination, including from nonstate actors, or providing for thecriminalisation of certain private behaviour which is an affront to human dignity or
undermines basic values of a democratic society (e.g. terrorist acts, trafficking in humanbeings, rape or violence against children and women).
On the basis of extensive analyses, Philip Alston summarised in 2005 the received
wisdom on human rights and nonstate actors in the following terms: “(i) the international
legal framework is and will remain essentially state-centric; (ii) there is a very limited
formal role for other international actors, although their participation in international
J. Ruggie ‘Reconstituting the Global Public Domain – Issues, Actors, and Practices’ European
Journal of International Relations 10 (2004), at 505.
13

14

Article 30 of the Universal Declaration of Human Rights and Article 17 ECHR contain a ruleof interpretation which refers to the duty of individuals and groups not to engage in activities
aimed at the destruction of any of the rights set forth in these treaties.

8
decision-making processes is often desirable; (iii) transnational corporations should
perhaps accept some moral obligations; but (iv) they have no clear legal obligations torespect human rights apart from compliance with the law of the particular country inwhich they are operating.”15 In 2003, Christian Tomuschat came to similar conclusion:“It is true that in particular in developing countries transnational corporations
bear a heavy moral responsibility because of their economic power, which may
occasionally exceed that of the home State. But on the level of positive law, little,
if anything has materialized.”16
In 2006, Andrew Clapham pleaded in favour of applying human rights in the private
sphere. In the introduction to his comprehensive analysis on human rights obligations of
nonstate actors, he declared that “[t]he legal argument developed throughout this book isthat customary international law, international treaties, and certain non-binding
international instruments already create human rights responsibilities for non-state
actors.”17 Clapham called for a radical rethink of the traditional approach to the subjectsof international law and suggested that international law can bind any entity that has thecapacity to bear the relevant obligations. However, a closer reading of his book revealed
only rather limited evidence for the existence of binding obligations of nonstate actors,
mainly as regards international crimes. For the most part, Clapham argued de lege
ferenda.
What is the current state of European human rights law? The following chapter will
examine the existing case-law under the European Convention on Human Rights (ECHR),
which is the most developed international human rights protection mechanism, as well as
selected other human rights treaties. The analysis will not only present case-law
regarding directly human rights obligations of business enterprises, but also case-law
regarding state obligations which may be of use for the development of standards in thefield of human rights and business.

Case-law under the European Convention on Human Rights
Convention rights have no direct third-party effect, but entail positive (State)obligations
Under the Convention, both individual and inter-State applications can only be brought
against States. Any applications against individuals or companies are systematicallyrejected ratione personae. Responsibility under the Convention can only arise from State
behaviour, action or omission. Application against business enterprises would beinadmissible as being incompatible ratione personae with the Convention provisions(Article 35 § 3 (a) ECHR). The Court has not recognised the principle of direct third-

15

P. Alston in P. Alston (ed.) Non-State Actors and Human Rights (Oxford University Press
2005), at 35-36.
16
17

Human Rights: Between Idealism and Realism (Oxford University Press 2003), at 90-91.

A. Clapham Human Rights Obligations of Non-State Actors (Oxford University Press 2006), at21.

9party effect (unmittelbare Drittwirkung), according to which human rights may beconsidered as not only enforceable against the State, but also directly against othernatural or legal persons.18
However, the Court has for a long time recognised that the Convention entails positive
obligations on the part of the State to protect human rights and to provide remedies forhuman rights abuses by private individuals. The Convention creates obligations for States
which may involve the adoption of measures “even in the sphere of the relations ofindividuals between themselves.” 19 Such positive obligations extend to protective,
preventive, and affirmative action which may entail the adoption of measures (legislative,
policy, deployment of resources) to ensure that rights can be freely exercised without
interference from private individuals. It may also require changes in domestic policy andlegislation. In the Case of Moldovan and Others v. Romania,20 the Court summarised theexisting case-law regarding articles 3 and 8 ECHR as follows:“93. The Court has consistently held that, although the object of Article 8 isessentially that of protecting the individual against arbitrary interference by
public authorities, it does not merely compel the State to abstain from suchinterference. There may, in addition to this primary negative undertaking, bepositive obligations inherent in an effective respect for private or family life andthe home. These obligations may involve the adoption of measures designed tosecure respect for these rights even in the sphere of relations between individuals(see X and Y. v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p.
11, § 23).
94. In addition, the acquiescence or connivance of the authorities of aContracting State in the acts of private individuals which violate the Convention
rights of other individuals within its jurisdiction may engage the State’s
responsibility under the Convention (see Cyprus v. Turkey [GC], no. 25781/94,
ECHR 2001-IV, § 81). A State may also be held responsible even where its agentsare acting ultra vires or contrary to instructions (see Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25, p. 64, § 159).
95. A State’s responsibility may be engaged because of acts which havesufficiently direct repercussions on the rights guaranteed by the Convention. In
determining whether this responsibility is effectively engaged, regard must be hadto the subsequent behaviour of that State (see Ilaşcu and Others v. Moldova andRussia [GC], no. 48787/99, §§ 317, 382, 384-85 and 393, ECHR 2004-...).
96. Further, the Court has not excluded the possibility that the State’s positive
obligation under Article 8 to safeguard the individual’s physical integrity may
extend to questions relating to the effectiveness of a criminal investigation (see18

So already A. Clapham Human Rights in the Private Sphere (Oxford University Press 1993), at
180.
19

X and Y v. the Netherlands, European Court of Human Rights, Series A no. 91, § 23 (1985)

20

Judgment No. 2 of 12 July 2005 (nos. 41138/98 and 64320/01).

10
Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII,
p. 3164, § 128).
97. Whatever analytical approach is adopted – positive duty or interference – theapplicable principles regarding justification under Article 8 § 2 are broadly
similar (see Powell and Rayner v. the United Kingdom, judgment of 21 February
1990, Series A no. 172). In both contexts, regard must be had to the fair balancethat has to be struck between the competing interests of the individual and of thecommunity as a whole. In both contexts the State enjoys a certain margin of
appreciation in determining the steps to be taken to ensure compliance with theConvention (see Hatton and Others v. the United Kingdom [GC], no. 36022/97,§ 98, ECHR 2003-VIII; Rees v. the United Kingdom, judgment of
17 October 1986, Series A no. 106, p. 15, § 37, and Leander v. Sweden, judgmentof 26 March 1987, Series A no. 116, p. 25, § 59). Furthermore, even in relation to
the positive obligations flowing from Article 8 § 1, in striking the requiredbalance, the aims mentioned in Article 8 § 2 may be of relevance (see Rees, cited
above, loc. cit.; see also Lopez Ostra v. Spain, judgment of 9 December 1994,
Series A no. 303-C, p. 54, § 51).
98. The obligation of the High Contracting Parties under Article 1 of theConvention to secure to everyone within their jurisdiction the rights and freedoms
defined in the Convention, taken together with Article 3, requires States to takemeasures designed to ensure that individuals within their jurisdiction are notsubjected to ill-treatment, including ill-treatment administered by private
individuals (see M.C. v. Bulgaria, no. 39272/98, §§ 149-50, ECHR 2004-...; A. v.
the United Kingdom, judgment of 23 September 1998, Reports 1998-VI, p. 2699, §22; Z. and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR
2001-V, and E. and Others v. the United Kingdom, no. 33218/96, 26 November
2002).
99. Article 3 of the Convention enshrines one of the most fundamental values of ademocratic society. It prohibits in absolute terms torture or inhuman ordegrading treatment or punishment, irrespective of the circumstances and thevictim’s behaviour (see, for example, Labita v. Italy [GC], no. 26772/95, § 119,
ECHR 2000-IV).”
While private actors may not breach the Convention in a way which would lead to thefinding of a violation by the Court, the latter seems to accept that nonstate actors may
interfere with the rights and freedoms guaranteed by the Convention.
In Storck v. Germany [2005], the applicant complained under Articles 5, 6 § 1 and 8
ECHR concerning her placement and medical treatment in private clinics and about thefairness of the ensuing proceedings. Following its traditional approach, the Court foundthat, as regards detention in a private clinic, only the failure by the State authorities to act
in order to prevent violations of the right to liberty was relevant under the Convention. It
did, however, not rule out that nonstate actors may interfere with the right to liberty:“The Court recalls that the question whether the applicant’s detention was inaccordance with law and with a procedure prescribed by law only needs to beanswered insofar as public authorities, notably the courts, have been directly

11
involved in the interference with the applicant’s right to liberty as such ... In so
far as the interference has been solely the result of acts by private persons …, it
falls outside the scope of the second sentence of Article 5 § 1 of the Convention.
In this case, the mere fact that the State has failed in its general duty under the
first sentence of Article 5 § 1 to protect the applicant’s right to liberty entails aviolation of Article 5.”21
In Siliadin v. France [2005], the applicant submitted that French criminal law did notafford her sufficient and effective protection against the “servitude” in which she had
been held by a family in France. The Court considered that Ms Siliadin, a minor at therelevant time, had been held in servitude within the meaning of Article 4 of the ECHR.22
The responsibility of the French State was engaged because the criminal-law legislation
in force at the material time had not afforded the applicant specific and effective
protection against the actions of which she had been a victim. It emphasised that theincreasingly high standard being required in the area of the protection of human rights
and fundamental liberties correspondingly and inevitably required greater firmness inassessing breaches of the fundamental values of democratic societies. In Cyprus v. Turkey[2001], the Court noted that “that the acquiescence or connivance of the authorities of aContracting State in the acts of private individuals which violate the Convention rights ofother individuals within its jurisdiction may engage that State’s responsibility under theConvention” (emphasis added).23 This appears to be the only case, however, where the
Court has used the terms “violate” or “violation” in respect of a nonstate actor.
In cases involving private actors, social and economic rights often apply traditionallyalongside Convention rights. A direct and full application of Convention rights,
traditionally conceived for relationships between State authorities and individuals has
sometimes been considered problematic. In the Botta case, the applicant complained of
an impairment of his private life and the development of his personality resulting fromthe Italian State’s failure to take appropriate measures to remedy the omissions imputable
to the private bathing establishments allowing full access of disabled people to beachfacilities. According to the Commission, the rights asserted by the applicant were social
in character, concerning the participation of disabled people in recreational and leisureactivities associated with beaches, the scope of which went beyond the concept of legal
obligation inherent in the idea of ‘respect for private life’ contained in Article 8 § 1 of the
ECHR. The Commission added, “in any event, the social nature of the right concerned
21

Judgment of 16 June 2005, § 110.

Judgment of 26 July 2005, see in particular § 89 “Dans ces conditions, la Cour estime que
limiter le respect de l’article 4 de la Convention aux seuls agissements directs des autorités del’Etat irait à l’encontre des instruments internationaux spécifiquement consacrés à ce problèmeet reviendrait à vider celui-ci de sa substance. Dès lors, il découle nécessairement de cettedisposition des obligations positives pour les Gouvernements, au même titre que pour l’article 3
par exemple, d’adopter des dispositions en matière pénale qui sanctionnent les pratiques visées
par l’article 4 et de les appliquer en pratique (M.C. c. Bulgarie, précité, § 153)”) and § 145 “La
Cour constate qu’en l’espèce, la requérante, soumise à des traitements contraires à l’article 4 etmaintenue en servitude, n’a pas vu les auteurs des actes condamnés au plan pénal.”
22

23

GC judgment of 10 May 2001, § 81.

12
required more flexible protection machinery, such as that set up under the European
Social Charter.”24 In this field, fulfilment by States of their domestic or international
legislative or administrative obligations depend on a number of factors, in particularfinancial ones allowing for a wide margin of appreciation regarding the choice of themeans to be employed to discharge the obligations set forth in the relevant legislation.
The Court basically endorsed the Commission’s view, arguing that the right asserted by
Mr Botta concerned “interpersonal relations of such broad and indeterminate scope that
there can be no conceivable direct link between the measures the State was urged to takein order to make good the omissions of the private bathing establishments and theapplicant’s private life.”25
The differences between the rights guaranteed respectively by the ECHR and the ESC
should, however, not be exaggerated. Positive obligations of protection and effective
guarantee are also inherent in many civil and political rights and some of the standards
developed under the ESC may also be enforced under the Convention. In the case of
Wilson, the National Union of Journalists and Others v. the United Kingdom [2002],26
the Court relied on the relevant case-law of the European Committee of Social Rights andthe ILO’s Committee on Freedom of Association. The employer, the Daily Mail, hadoffered substantial pay rises for those employees who acquiesced in the termination ofcollective bargaining and were prepared to deal in future directly with the employers overtheir terms and conditions of employment. In the view of the House of Lords, the mere
withholding of benefits, which, according to a majority of Law Lords, had not been
motivated by the purpose of preventing, deterring or penalising union membership, was
not prohibited under the relevant UK legislation.27 The Strasbourg Court examined thiscase under Article 11 ECHR. Emphasising the importance of collective bargaining,which constituted “an essential feature of union membership”28, it found:“Under United Kingdom law at the relevant time it was, therefore, possible for an
employer effectively to undermine or frustrate a trade union’s ability to strive forthe protection of its members’ interests. The Court notes that this aspect ofdomestic law has been the subject of criticism by the Social Charter’s Committee
of Independent Experts and the ILO’s Committee on Freedom of Association … It
considers that, by permitting employers to use financial incentives to induce
employees to surrender important union rights, the respondent State failed in its
positive obligation to secure the enjoyment of the rights under Article 11 of theEuropean Commission of Human Rights, Report of 15 October 1996 (21439/93), § 36 “En effet,
pour autant que ces droits revêtent en premier lieu un caractère social, ils appellent desmécanismes de protection plus souples, notamment du genre de celui mis en place par la Chartesociale européenne.”24

25

Botta v. Italy (application no. 21439/93), judgment of 24 February 1998, § 35.

26

Judgment of 2 July 2002 (applications nos. 30668/96, 30671/96 and 30678/96).

27

Judgment of 16 March 1995, [1995] 2 A.C. 454.

28

Wilson and Others judgment, judgment of 2 July 2002, § 47.

13
Convention. This failure amounted to a violation of article 11, as regards both theapplicant unions and the individual applicants.”29
In other cases, the Court adopted a more restrictive approach, accepting that Convention
rights do not automatically trigger State responsibility for all interferences occurring in
the private sphere. In the case of Appleby and Others v. United Kingdom [2003], local
residents sought to exercise their right to freedom of expression by collecting signatures
on a petition in a private shopping centre. The issue in question was of considerable
importance to the residents of the town, but did not directly concern the owners of the
shopping centre. The latter insisted that the centre is private property and that permitting
citizens to gather signatures would violate their stance of strict neutrality on all politicaland religious issues. They were supported by the respondent government which rejected
the claim that such gathering places for the citizenry could be considered to be ‘quasipublic’ land. The Court upheld the right of the private owners and dismissed the freespeech claim brought by the citizens’ group, stating inter alia that other means of
exercising those rights were widely available on genuinely public land and in the media.30
This judgment contrasts with the approach taken by the German Federal Constitutional
Court in the Fraport case [2011]. 31 The Constitutional Court found that the area ofprotection of the freedom of assembly included Frankfurt Airport. The Court
distinguished places of general traffic for communication purposes, which are open andaccessible to the general public, from places the access to which is controlled individuallyand is only permitted for individual, restricted purposes. The airport area, though serving
primarily specific functions related to air traffic, was deemed to be a public forum ofcommunication where a variety of different activities and concerns can be pursued.
The territorial scope of the Convention
Further limits on the use of the Convention in cases relating to corporate human rights
abuses result from its territorial scope of application.32 If such abuses occur outside theterritory of the High Contracting Parties, the ECHR will only exceptionally apply.
While the concept of ‘jurisdiction’ in Article 1 ECHR is not necessarily restricted to thenational territory of the High Contracting Parties, it is only in exceptional circumstancesthat the Court has accepted that acts or omissions performed or producing effects outside
their territories can come within the within the Court’s jurisdiction. 33 States areaccountable under the Convention when they enact legislation of business activities that29

Ibid., § 48.

30

Appleby and Others v. UK, judgment of 6 May 2003, § 38.

31

Judgment of 22 February 2011, 1 BvR 699/06.–

Compare O. De Schutter ‘The Accountability of Multinationals for Human Rights Violations in
European Law’ Center for Human Rights and Global Justice Working Paper 01/04 (2004), 16-21.
32

33

See, among others, Al-Skeini and Others v. the United Kingdom [GC], §§ 131 et seq.; Issa andOthers v. Turkey, judgment of 16 November 2004, §§ 68 and 71; Isaak v. Turkey, decision ofadmissibility of 28 September 2006; Ilaşcu and Others v. Moldova and Russia [GC], §§ 314 and
318.

14
directly violates Convention rights outside their territory. In Kovacic, Croatian applicants
complained that they were prevented by a Slovenian law from withdrawing funds fromtheir accounts in the Croatian branch of a Slovenian bank. The Court found “that the actsof the Slovenian authorities continue to produce effects, albeit outside Slovenian territory,
such that Slovenia’s responsibility under the Convention could be engaged.”34
The ECHR also applies where Contracting Parties exercise effective overall control over
a foreign territory, or authority and control over individuals outside their own territory.
However, this case-law applies only to acts or omissions by state organs. As explained
above, the conduct of private business enterprises as such does not give rise toresponsibility under the Convention. It is only the State that can be held accountable if its
organs failed to act (e.g. for failure to prosecute or to grant compensation for humanrights abuses). It must therefore be concluded that the Convention does not generally
require High Contracting Parties to exercise control on the conduct abroad of businessenterprises incorporated under the High Contracting Parties’ laws or having their
headquarters in their territories, even when such conduct leads to human rights abuses.35
State accountability for failure to protect individuals from adverse human rights
impacts resulting from the activities of companies
In numerous judgments, the Court found that States had failed to meet their positive
obligations to protect individuals from the effects of certain activities by private actors.36
A good example are environmental pollution cases, where the Court examines whether afair balance between the applicant’s right to respect for private and family life and theeconomic well-being of the country has been struck.37 In Lόpez Ostra v. Spain [1994],38
the Court found that the nuisance and health problems caused by a neighbouring private
waste-treatment plant (built on State property and funded with State subsidies) had
disproportionately interfered with the applicants’ rights under Article 8 ECHR. In Taşkin
and Others v. Turkey [2004],39 the Court found that a private gold mining company hadpolluted the local environment to an extent that the State’s failure to protect theapplicants, residents in the neighbouring area, amounted to a Convention violation. In
Fadeyeva v. the Russian Federation [2005],40 the Court found that the State had violated
34

Kovacic and Others v Slovenia (admissibility decision of 1 April 2004), at 34; the case wasstruck out at the merits stage due to new facts that had come to the Court’s attention.
35

De Schutter above note 32, at 17.

36

See generally E. Fura-Sandstrom ‘Business and human rights – who cares?’ in L. Caflisch (ed.),Human Rights: Strasbourg Views (N.P. Engel Verlag Kehl 2007), 159-176.
For a comprehensive presentation of the Court’s case-law see the ‘Manual on human rights andthe environment’ (Council of Europe publishing, second edition 2012), available at<http://www.coe.int/t/dghl/standardsetting/hrpolicy/Other_Committees/GT-DEVENV_docs/Manual_Env_2012_nocover_Eng.pdf>.
37

38

Lόpez Ostra v. Spain (no. 16798/90), judgment of 9 December 1994.

39

Taşkin and Others v. Turkey (no. 46117/99), judgment of 10 December 2004.

40

Fadeyeva v. the Russian Federation (no. 55273/00), judgment of 9 June 2005.

15
its positive obligations to take reasonable and appropriate measures to secure theapplicant’s right under Article 8 ECHR in view of heavy pollution from a neighbouring
steel plant owned and operated by a private corporation. Pollution levels from the plant
had for many years exceeded permitted levels and had caused the applicant severe healthproblems.
“The Court notes that, at the material time, the Severstal steel plant was not
owned, controlled, or operated by the State. Consequently, the Court considers
that the Russian Federation cannot be said to have directly interfered with theapplicant’s private life or home. At the same time, the Court points out that theState’s responsibility in environmental cases may arise from a failure to regulate
private industry. Accordingly, the applicant’s complaints fall to be analysed interms of a positive duty on the State to take reasonable and appropriate measures
to secure the applicant’s rights under Article 8 § 1 of the Convention. …
The Court concludes that the authorities in the present case were certainly in aposition to evaluate the pollution hazards and to take adequate measures toprevent or reduce them. The combination of these factors shows a sufficient nexus
between the pollutant emissions and the State to raise an issue of the State’s
positive obligation under Article 8 of the Convention.”41
Other judgments concerned the right to join or not to join a trade union (Article 11
ECHR), e.g. Young, James and Webster v. UK, Wilson & the National Union of
Journalists and Others v. the United Kingdom [2002] or Sørensen v. Denmark and
Rasmussen v. Denmark [2006]. In the latter judgment, the Court found that a person mustnot be dismissed for refusing to become a member of a trade union. Both applicants had
been compelled to join a trade union, “which struck at the very substance of the freedomof association guaranteed by Article 11.”42
Further examples are corporal punishment in private schools (Costello-Roberts v. theUnited Kingdom [1993]43), nuisance from private airplanes in respect of an airport whose
authority had been privatised (Powell and Rayner v. the United Kingdom [1990]) or illtreatment in private psychiatric institutions. Such institutions, where persons are held
without a court order, need not only a licence, but competent supervision on a regularbasis of the justification of the confinement and medical treatment.44 In such cases, therelevant context for the Court remains the role of the State. Applicants need to show thatthe abuse would definitely have been prevented if the competent State authorities hadtaken the measures which could have been reasonably expected of them at the time.45

41

Fadeyeva, ibid., §§ 89, 92.

42

Sørensen & Rasmussen v Denmark, GC judgment of 11 January 2006.

43

Costello-Roberts, judgment of 25 March 1993, Series A no. 247-C.

44

Storck v. Germany, judgment of 16 June 2005, § 103.

45

See e.g. E. and Others v. UK, judgment of 26 November 2002, §§99-100 and Clapham above
note 17, 373.

16Companies that are State-controlled or performing public functions
Companies that are owned or controlled by the State and/or exercise State functions
constitute a special category, where the State itself can be held directly responsible under
the ECHR.46 The Court emphasised on several occasions that the State cannot absolve
itself entirely from its responsibility by delegating its obligations to secure the rights
guaranteed by the Convention to private bodies or individuals. 47 The Court uses a
combination of criteria to determine on a case‐by‐case basis whether a corporation acted
as an agent of the state, including-

the corporation’s legal status (under public law/separate legal entity under
private law);-

the rights conferred upon the corporation by virtue of its legal status (e.g.
conferral of rights normally reserved to public authorities);-

institutional independence (including state ownership);-operational independence (including de jure or de facto state supervision andcontrol);-

the nature of the corporate activity (‘public function’ or ‘ordinary business’,
including delegation of core state functions to private entities);-

the context in which the corporate activity is carried out (e.g. relevance of theactivity for the public sector, monopoly position in the market).48

Review of domestic court decisions intervening in judicial proceedings involving
business enterprises
Judgments where the Court reviews national court decisions in private law disputes
between individuals and companies can be an important source of human rights due
diligence principles. Such cases often concern competing rights, such as freedom of
expression and the right to respect for private life. When deciding whether the domestic
courts violated the Convention by not giving sufficient weight or consideration to one of
the rights at stake, the Court must address the question how competing rights ofindividuals and companies should be reconciled. Though its judgments will formallyalways focus on a Convention breach by state authorities, in such cases usually the courts
but also state-owned enterprises, the principles developed therein can be used as a sourceof corporate human rights standards.
46

Edinburgh report above note 4, para. 53 gives an overview over the criteria used in different
EU member States to determine whether corporations can be considered state agents, usually byvirtue of state ownership and control, by virtue of exercising public functions, or by virtue of a
combination of both.
47

Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, pp. 14-15, §§28-30; Costello-Roberts v. UK, 1993, Series A no. 247-C, § 27; Storck v. Germany, judgment of
16 June 2005, § 103.
48

Edinburgh report above note 4, para 54; see e.g. Yershova v Russia, judgement of 8 April 2010,§§ 55‐58.

17
Examples are Markt Intern Verlag GmbH and Klaus Beermann v. Germany [1989]
concerning restrictions to make certain statements under Germany’s unfair competition
legislation or Steel and Morris v. UK [2005]49 concerning the non-availability of legal aid
in defamation proceedings brought by a multinational corporation (McDonald’s) against
NGO campaigners in the UK. In the latter case, the Court found that the absence of legal
aid amounted to a disproportionate interference with the applicants’ freedom of
expression rights, pointing to the importance to a democratic society of even small andinformal campaign groups disseminating information and fostering public debate,
including in relation to the activities of powerful commercial concerns. According to the
Court, “the disparity between the respective levels of legal assistance enjoyed by theapplicant and McDonald’s was of such a degree that it could not have failed, in thisexceptionally demanding case, to have given rise to unfairness.”50
Good illustrations for the potential of the Court’s case-law as a source for corporate
human rights standards are the already mentioned cases relating to the protection of theenvironment and the conflict between privacy and freedom of expression. In pollution
cases, the main rights at stake are the right to life, respect for private and family life aswell as well as the home, protection of property, rights to information as well as
participation in the decision-making processes in environmental matters. The recently
updated ‘Manual on human rights and the environment’ (2012) contains a comprehensive
presentation of the Court’s case-law.51
The Court’s case-law on privacy and media freedom is particularly developed andnuanced. In two Grand Chamber judgments of 7 February 2012, Axel Springer AG
v. Germany and Von Hannover v. Germany (no. 2, the Court set out the criteria relevant
for the balancing act between Articles 8 and 10 ECHR, thereby delineating the extent towhich media companies may interfere with privacy rights. In Axel Springer AG v.
Germany [GC], the applicant company complained about the injunction imposed on it
against reporting on the arrest and conviction of X for the possession of drugs. In Von
Hannover v. Germany (no. 2) [GC], the individual applicants complained of the refusal
by the German courts to grant an injunction against any further publication of the photothat had appeared on 20 February 2002 in the magazines Frau im Spiegel. In the first casethe complaint was brought by a publishing company and in the second by a well-known
public figure. In both cases, the Court considered that the outcome of the application
should not vary according to whether it had been lodged under Article 10 ECHR by the
publisher who has published the offending article or under Article 8 of the Convention by
the person who was the subject of that article. Indeed, as a matter of principle both rights
deserved equal respect and the margin of appreciation allowed to domestic courts should
in principle be the same in both cases. The Court explained in some detail with reference
to the relevant case-law the following criteria which should be applied in the balancing
test:-

Contribution to a debate of general interest;

49

Judgment of 15 February 2005 (6841601).

50

Ibid., § 69.

51

Above note 37.

18-

How well known is the person concerned and what is the subject of the report?;
Prior conduct of the person concerned;
Content, form and consequences of the publication;
Circumstances in which the photos were taken;
Severity of the sanction imposed.

Other examples include cases concerning the rights to freedom of religion and freedom
from discrimination at work.52 Finally, the Court may also address the issue of corporate
human rights abuses in judgments dealing with an alleged lack of effective remedies
against human rights abuses by private companies. Applicants may rely on Article 13
ECHR (right to an effective remedy) to complain that there is no avenue to effectively
review the governmental policy which has led to the interference with human rights by
nonstate actors. Here again cases concerning environmental pollution provide numerous
examples (e.g. with regard to aircraft noise Hatton and Others v. UK [2003]).53
Criminal responsibility of private actors
The most serious forms of abuses committed by nonstate actors may give rise to criminal
responsibility. The Court recognised that States may have a duty to protect individuals
from other individuals’ actions where such actions threaten rights under the Convention.
In the case of serious abuses, such as rape, sexual assault or murder, effective deterrence
may require the establishment of criminal offences.54 States are under an obligation tosecure the right to life by putting in place effective criminal-law provisions to deter thecommission of offences against the person and that these provisions must be backed up
by law-enforcement machinery for the prevention, suppression and sanctioning ofbreaches of such provisions 55 . However, the Court also acknowledged that Article 2
ECHR does not entail the right for an applicant to have third parties prosecuted orsentenced for a criminal offence or an absolute obligation for all prosecutions to result in
conviction, or indeed in a particular sentence.56

52

On 4 September 2012, the Court will be holding a hearing on four cases concerning practising
Christians’ complaints that UK law did not sufficiently protect their rights to freedom of religion
and freedom from discrimination at work: Chaplin v. the United Kingdom (application no.
59842/10); Eweida v. the United Kingdom (no. 48420/10), Ladele v. the United Kingdom (no.
51671/10) and McFarlane v. the United Kingdom (no. 36516/10).
53

Clapham above note 17, 420.

54

See e.g. X and Y v. the Netherlands, judgement of 26 March 1986 or M.C. v. Bulgaria,
judgment of 4 December 2003, §150, where the Court observed that “grave acts such as rape,where fundamental values and essential aspects of private life are at stake, requires efficientcriminal-law provisions. Children and other vulnerable individuals, in particular, are entitled toeffective protection.”
55

Osman v. UK, judgment of 28 October 1998.

Öneryildiz v. Turkey, judgment of 30 November 2004; see also Tanlı v. Turkey judgment of 10
April 2001; Perez v. France, judgment of 12 February 2004.
56

19

European Social Charter
The European Social Charter (ETS 35, 1961) and the Revised European Social Charter(ETS 163, 1996) contain several provisions which have an impact on the relation between
individuals and companies, for example:--

the right to safe and healthy conditions of work (Articles 2 and 3);
the right to a fair remuneration sufficient for a decent standard of living(Article 4);
the right to bargain collectively (Article 6);
the right to social security (Article 12);the right to social and medical assistance (Article 13);right to equal opportunities and equal treatment in matters of employment andoccupation without discrimination on the grounds of sex (Article 20);
the right of migrant workers who are nationals of a Party and their families to protection and assistance in the territory of any other Party (Article 19);
the right of workers to be informed and to be consulted within the undertaking(Article 21);
the right to take part in the determination and improvement of the working
conditions and working environment in the undertaking (Article 22);
the right to protection in cases of termination of employment (Article 24);
the right to protection of workers’ claims in the event of the insolvency of theiremployer (Article 25);
the right to dignity at work (Article 26);
the right of workers’ representatives in undertakings to protection against acts
prejudicial to them and should be afforded appropriate facilities to carry out theirfunctions (Article 28);
the right to be informed and consulted in collective redundancy procedures(Article 29).

Case-law by the European Committee of Social Rights (ECSR) relating directly toobligations of business enterprises is sparse, since the provisions of the Charter are
addressed to States, and not to private entities. Moreover, the ESC applies only to the“metropolitan territory of each Party.”57
Similarly to the ECHR, the existing ESC case-law focuses on positive obligations of Stateauthorities to protect citizens from the effects of activities of business enterprises. An
example is Marangopoulos Foundation v. Greece, concerning lignite mining in Greece.58
The ESCR found several violations regarding the right to protection of health as well as therights to safe, healthy and just working conditions.

57
58

Revised European Social Charter (CETS 163 1996), Part VI, Article L.

ECSR, Marangopoulos Foundation for Human Rights (MFHR) v. Greece, Collective
Complaint No. 30/2005, Case Document No. 1, 26 April 2005.

20

Bioethics
The Convention on Human Rights and Biomedicine (ETS No. 164, 1997) seeks to protect
human beings with regard to the application of biology and medicine. Together with its
Additional Protocol concerning Biomedical Research (CETS 195, 2005), which covers
the full range of research activities in the health field involving interventions on humanbeings, as well as the Additional Protocol concerning Genetic Testing for HealthPurposes (CETS 203, 2008), these treaties are of particular relevance for pharmaceuticalcompanies as well as, to a lesser extent, for insurance companies.
Article 29 of the Additional Protocol concerning Biomedical Research deals specificallywith research in third States and is of interest as regards extraterritorial human rights
issues:“Sponsors or researchers within the jurisdiction of a Party to this Protocol thatplan to undertake or direct a research project in a State not party to this Protocol
shall ensure that, without prejudice to the provisions applicable in that State, theresearch project complies with the principles on which the provisions of thisProtocol are based. Where necessary, the Party shall take appropriate measures
to that end.”
The Protocol’s explanatory report explains the rationale behind the provision:“At present, considerable numbers of research projects are conducted on amultinational basis. Teams of researchers based in different States may
participate in a single project. Further, internationally-based organisations may
be able to choose the country in which a particular research project that they are
conducting or funding is carried out. This has led to concerns being expressed
about the possibility of fundamentally different standards of protection forparticipants being applied in different countries. In particular, concern has been
expressed about the possibility of research that might be widely viewed as
ethically unacceptable being carried out in another State where systems for theprotection of research participants are less well established.”59

Data Protection
The Convention for the Protection of Individuals with regard to Automatic Processing of
Personal Data (ETS 108, 1981) aims to secure in the territory of each Party for everybody
respect for human rights (in particular the right to privacy) with regard to automatic
processing of personal data. The Convention has a cross-cutting scope of application.
Article 3 defines the scope of the Convention as follows:“The Parties undertake to apply this convention to automated personal data files
and automatic processing of personal data in the public and private sectors.”
Back in 1981, it was truly visionary to prepare a single set of principles to be applied tothe public as well as the private sector. The explanatory report justifies this approach as
follows:

59

Explanatory report § 137.

21
“According to paragraph 1 the convention applies to the public as well as theprivate sector. Although most international data traffic occurs in the private
sector, the convention is nevertheless of great importance for the public sector
and this for two reasons. First, Article 3 imposes obligations on the member
States to apply data protection principles even when they process public files – asis usually the case – entirely within their national borders. Secondly, theconvention offers assistance to data subjects who wish to exercise their right to be
informed about their record kept by a public authority in a foreign country.”60
The EU’s 1995 data protection directive61 is based on the Convention and followed thesame logic, applying its standards to both the public and private sector.
During the last thirty years, this reality has not changed, only the technical capacities tocollect and analyse data have increased exponentially. Today it is possible for a company
like Google to collect in real time almost all traffic data on the internet for commercial
purposes, while a similar collection by public authorities for law enforcement purposes
would be prohibited under the laws of many countries.

Criminal responsibility of business enterprises
Neither past nor present international criminal tribunals have recognised the criminal
liability of legal persons such as companies. 62 Article 25 § 1 of the Statute of theInternational Criminal Court (ICC) limits the latter’s jurisdiction to natural persons. The
ICC preparatory committee and the Rome conference debated a proposal that would havegiven the Court jurisdiction over legal persons (other than States), but differences innational approaches prevented its adoption. 63 Various civil society groups remain in
favour of the establishment of an international tribunal with jurisdiction overcompanies. 64 In the case of Truth Commissions, the involvement of companies inwidespread human rights violations was addressed for example in the case of the South
African Truth and Reconciliation Commission.
Several Council of Europe conventions require Parties to enact legislation to holdcompanies liable for criminal offences established under those treaties, such as Article 12

60

Explanatory report, § 33.

61

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on theprotection of individuals with regard to the processing of personal data and on the free movementof such data, Official Journal L 281 , 23/11/1995, 31.
See generally M. Kremnitzer ‘A possible case for imposing liability on corporations ininternational criminal law’ Journal of International Criminal Justice 8 (2010), 909.
62

See the report of the International Federation of Human Rights (FIDH) ‘Corporate
accountability for human rights abuses – A guide for victims and NGOs on recourse mechanisms’(2012), at 273.
63

Ibid; see also A. Clapham ‘The question of jurisdiction under international criminal law overlegal persons’ in T. Kamminga & S. Zia-Zarifi (eds.) Liability of Multinational Corporations
Under International Law (The Hague Kluwer 2000), at 173.
64

22of the Convention on Cybercrime65 or Article 18 of the Criminal Law Convention on
Corruption.66 In 1988, the Committee of Ministers recommended that member States giveconsideration to “applying criminal liability and sanctions to enterprises, where thenature of the offence, the degree of fault on the part of the enterprise, the consequences
for society and the need to prevent further offences so require.”67
While there is certainly a trend to extend criminal liability to corporations and other legal
persons, national law approaches still vary considerably. Even within the European
Union, there is no common regime. According to the study prepared by the University of
Edinburgh in 2010, corporate criminal liability has been established in 17 Member States(Austria, Belgium, Denmark, Estonia, Finland, France, Hungary, Ireland, the Netherlands,
Portugal, Slovenia, United Kingdom, Romania, Lithuania, Latvia, Malta and Cyprus).
Sanctions vary from confiscation of proceeds to financial penalties. Non‐criminal(administrative or civil) liability of legal persons, either as an alternative or in addition tocriminal liability, is provided for in Austria, Czech Republic, Estonia, Finland, Germany,
Greece, Italy, Slovenia and Spain. The most common sanctions include the prohibition ofcontracts with public authorities, the revocation of the authorisation to act in a specificarea, or the obligation to pay damages.68
Legal issues in this area are further complicated by the fact that a multinational company
as such does not necessarily have legal personality, and that a parent company in Europe
is a different legal person from its subsidiary operating elsewhere, even though inpractice the former might give binding instructions to the latter. Therefore, the possibilityof imposing criminal sanctions to parent companies which may de facto be responsible
for human rights abuses (‘piercing the corporate veil’) vary considerably throughout
European States.69
The criminal responsibility of companies must be distinguished from the individual
criminal responsibility of persons employed by them. For example, German industrialists
have been convicted for human rights violations by British and US courts as well the
Nuremberg Tribunal after the Second World War for slave labour or the production of
Zyklon B gas used in concentration camps. 70 The International Criminal Tribunal for
Rwanda has convicted a company owner for the logistical involvement of his company in

65

CETS 185, 2001.

66

CETS 173, 1999.

67

Recommendation No. R (88) 18 of 20 October 1988 concerning liability for enterprises having
legal personality for offences exercised in the exercise of their activities, para. I.3 (a) of theAnnex to the Recommendation.
68

Edinburgh report above note 4, para. 178; see also the FIDH report, above note 63, at 275 etseq.
69

Edinburgh report above note 4, paras. 188 et seq.

See D. Cassel ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the
Courts’ Northwestern Journal of International Human Rights 6 (2008), at 308-309.
70

23
the Rwandan genocide.71 Dutch courts convicted a businessman for supplying Saddam
Hussein’s regime in Iraq in the 1980s with chemicals, a conviction which was recently
upheld by the European Court of Human Rights.72

Civil suits against business enterprises
In several countries lawsuits have been introduced with a view to holding private
corporations accountable for human rights violations in developing countries (e.g.
Nigeria, Myanmar). 73 In many such litigations, victims and human rights groups haverelied on the concept of corporate complicity in human rights violations to cover not only
situations where corporations knowingly assist in illegal acts, but also where they benefit
from the abuses committed by State authorities.74

United States of America
The United States have a particularly rich experience of litigation relating to humanrights abuses by multinational corporations in other countries. The legal basis for suchclaims is the Alien Tort Statute (ATS), a provision in the 1789 Judiciary Act, which
provides jurisdiction over “any civil action by an alien for a tort only, committed inviolation of the law of nations or a treaty of the United States.”75 The ATS became an
instrument for human rights litigation in 1980 when the Court of Appeals for the Second
Circuit applied it in a case brought by a two Paraguayan citizens against the police
inspector who had tortured their son to death in Asunción (Paraguay). It awarded $10.4
million in damages.76
Since then, the ATS has been frequently applied, at first against individuals, but
eventually also against corporations for a variety of injuries, ranging from torture topollution and environmental damage to non-consensual medical experimentation, forexample against the US company Unocal and the French company Total S.A. for humanrights violations by the Burmese military regime, against the British Barclay’s Bank fordoing business with the apartheid regime in South Africa or against the Swiss company
Nestlé for purchasing cocoa from farmers allegedly using child labour. 77 So far no71

The Prosecutor v Ferdinand Nahimana Nahimana Jean-Bosco Barayagwiza Hassan Ngeze,
Case No. ICTR-99-52-T, judgment of 3 December 2003.
72

Van Anraat v. the Netherlands (no. 65389/09), decision of 6 July 2010.

73

The Business & Human Rights Resource Centre publishes regular updates on lawsuits
worldwide, available at <http://www.business-humanrights.org/media/documents/corporatelegal-accountability-annual-briefing-final-20-jun-2012.pdf>.
See Clapham above note 17, 252 et seq. and 563-564; R. Steinhardt ‘Corporate Responsibility
and the International Law of Human Rights’ in P. Alston (ed.) Non-State Actors and Human
Rights (Oxford University Press 2005), at 198-202.
74

75

28 U.S.C. § 1350 (2010).

76

Filartiga v. Pena-Irala, 630 F.2d 876 (1980).

See J. Slawotsky ‘Corporate Liability in Alien Tort Litigation’ Virginia J. Int’l L. Online 1(2011), 27 et seq.
77

24
corporation has ever been condemned in court to pay damages. However, several cases
proceeded on the assumption that corporations can be held liable under the ATS,
regardless of where plaintiffs or defendants are based. Some cases were eventually settled
out of court, others resulted in verdicts for the corporate defendants.78 In March 2005,
Unocal Corporation settled claims that had been brought against it and two of its senior
executives. The company accepted to pay compensation and to enhance their educational
human rights programmes. 79 More recently, Royal Dutch/Shell settled ATS claims
brought against it by a group of plaintiffs led by the son of the Nigerian author andenvironmentalist Ken Saro-Wiwa.80
The application of the ATS to corporations and the precise limits of the exercise of
extraterritorial jurisdiction in their respect are currently subject of litigation before the US
Supreme Court. The case of Kiobel and others v. Royal Dutch Petroleum and others81 has
attracted unprecedented interest. NGOs, scholars and even foreign governments havesubmitted amicus curiae briefs. The outcome of the case may have ramifications forcorporate responsibility well beyond the United States. The plaintiffs, Nigerian citizens,
brought claims in 2002 for extrajudicial killing, torture, crimes against humanity, andprolonged arbitrary arrest and detention. They are suing Dutch, British and Nigerian
corporations, accusing them of aiding and abetting the Nigerian government in violently
suppressing protests against oil exploration and development activities in the Ogoni
78

Bowoto v. Chevron, No. 3:99-cv-02506 (N.D. Cal.) (jury verdict reached on Dec. 1, 2008);
Estate of Rodriguez v. Drummond, No. CV-03-BE-0575 (N.D. Ala.) (jury verdict reached on July26, 2007).
E.g. Unocal’s tentative settlement agreement. According to the press release issued following
the statement of the parties regarding the settlement, “Unocal reaffirms its principle that thecompany respects human rights in all of its activities and commits to enhance its educational
programs to further this principle”, AJIL 99 (2005), 498.
79

See Ingrid Wuerth ‘Wiwa v. Shell: The $15.5 Million Settlement’ ASIL Insights (September 9,2009), at <http://www.asil.org/files/insight090909pdf.pdf>.
8081

Esther Kiobel, Individually and on Behalf of Her Late Husband, Dr. Barinem Kiobel, et al.,Petitioners v. Royal Dutch Petroleum Co., et al. The case has given rise to countless articles, see
only Slawotsky above note 77; O. Murray, D Kinley & C Pitts ‘Exaggerated Rumours of the
Death of an Alien Tort?: Corporations, Human Rights and the Remarkable Case of 'Kiobel'’
Melbourne Journal of International Law 12 (2011), 57-94; G Tyler & S. Farbstein ‘How Kiobel
Undermines the Nuremberg Legacy and Modern Human Rights’ Harvard Int’l Law J. Online 52(2010); D. Shapiro ‘Kiobel and Corporate Immunity Under the Alien Tort Statute: The Struggle
for Clarity Post-Sosa’ Harvard Int’l Law J. 52 (2011); M. Danforth ‘Corporate Civil Liability
Under the Alien Tort Statute: Exploring Its Possibility and Jurisdictional Limitations’ Cornell
Int’l Law Journal 44 (2011), 659; A. Walker ‘The Hidden Flaw in Kiobel Under the Alien Tort
Statute the mens rea standard for corporate aiding and abetting is knowledge’ Northwestern
University Journal of International Human Rights 10 (2011), 119; C. Keitner ‘Kiobel v. RoyalDutch Petroleum: Another Round in the Fight Over Corporate Liability Under the Alien Tort
Statute’ ASIL Insights 14 (Sept. 30, 2010), Issue 30; C. Vázquez ‘Alien Tort Claims and the
Status of Customary International Law’ American Journal of International Law 106 (2012), 531546; C. Bradley ‘Attorney General Bradford’s Opinion and the Alien Tort Statute’
American Journal of International Law 106 (2012), 509-530.

25
region of the Niger Delta. The plaintiffs allege that the companies provided transport tothe troops, allowed company property to be used as staging areas for attacks and provided
food to the soldiers and paid them.
On 28 February 2012, the US Supreme Court held a hearing in the case, in which boththe extraterritorial application of the ATS as well as the corporate liability underinternational law was debated. The Supreme Court specifically raised the question of“[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350,
allows courts to recognize a cause of action for violations of the law of nations occurring
within the territory of a sovereign other than the United States.”82 The Court will rehear
the case during its next term (October 2012-June 2013).
When discussing the various arguments presented in this case and their relevance forinternational human rights law in general, it must be kept in mind that the ATS operates
at the intersection of international and domestic US law. There appears to be some
controversy over the question which body of law applies to the various aspects of an ATS
case.83
The argument whether or not international law recognises corporate liability has become
relevant for Kiobel because of the Supreme Court’s previous judgment in Sosa v.
Alvarez-Machain 84 concerning the abduction of a Mexican national by US drug
enforcement agents in Mexico. In that case, totally unrelated to corporate liability, theCourt examined inter alia which international law norms qualify to be used under theATS. The Court required a norm of “content and acceptance among civilized nations” atleast as definite as “the historical paradigms familiar when § 1350 was adopted,”85 suchas piracy or attacks on diplomats. A footnote added: “A related consideration is whether
international law extends the scope of liability for a violation of a given norm to theperpetrator being sued, if the defendant is a private actor such as a corporation orindividual.”86
Using this precedent, the respondents argue that since, in their view, international law has
never recognised corporate liability even for the most serious human rights abuses, any

82

Kiobel v. Royal Dutch Petroleum Co., et al., 621 F.3d 11, order for reargument (U.S. Mar. 5,2012), available at <http://www.supremecourt.gov/orders/courtorders/030512zr.pdf>.
83

See the articles by Vázquez and Keitner above note 81.

84

542 U.S. 692 (2004).

85

Ibid., at 38.

The full text of footnote 20 is as follows: “A related consideration is whether international law
extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the
defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan
Arab Republic, 726 F. 2d 774, 791.795 (CADC 1984) (Edwards, J., concurring) (insufficientconsensus in 1984 that torture by private actors violates international law), with Kadic v.
Karadzic, 70 F. 3d 232, 239.241 (CA2 1995) (sufficient consensus in 1995 that genocide by
private actors violates international law).”86

26
action against corporations under the ATS would be precluded.87 The plaintiffs reject thisinterpretation of Sosa, arguing that nothing in the text, history or purpose of the ATSsuggests that the drafters had meant to exclude corporate entities from the tort liability
recognised in the statute. They refer to case-law by the D.C., Seventh, Ninth andEleventh Circuits who all held that corporations may be sued under the ATS.88
In its judgment of 17 September 2010, the Court of Appeals for the Second Circuit
followed the defendants and rejected outright the idea that corporations can be held liable
under the ATS.89 According to the Second Circuit, no source of international law has everestablished that corporate liability is a customary international norm. In the majority’sview, “the fact that corporations are liable as juridical persons under domestic law does
not mean that they are liable under international law (and, therefore, under the ATS).”90
In order for a violation to give rise to jurisdiction under the ATS, following Filártiga,“the nations of the world [must] have demonstrated that the wrong is of mutual, and not
merely several, concern.” 91 The majority therefore asked whether, under internationallaw, it is wrong for a corporation to commit, or to aid and abet, violations such as “warcrimes, crimes against humanity (such as genocide), and torture.” 92 Because nointernational tribunal has ever held a corporation liable for violating customaryinternational law, the majority concluded that international law violations bycorporations do not give rise to subject matter jurisdiction under the ATS. The Second
Circuit therefore dismissed all complaints for lack of subject matter jurisdiction, noting
however that “nothing in this opinion limits or forecloses suits under the ATS against theindividual perpetrators of violations of customary international law - including theemployees, managers, officer, and directors of a corporation - as well as anyone who
purposefully aids and abets a violation of customary international law.” 93
87

Supplemental brief for respondents (1 August 2012), at <http://www.businesshumanrights.org/media/documents/shell-rehearing-brief-1-august-2012.pdf>.
88

Brief
for
the
petitioners(14
December2011),
at<http://harvardhumanrights.files.wordpress.com/2011/12/latestpetitionersbrief-ashx.pdf>. On thehistorical background and first cases under the ATS see in particular Bradley above note 81;
Slawotsky above note 77, at 34-35.
89

Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). A few days before theSecond Circuit issued its opinion in Kiobel, a California district court reached the sameconclusion. See Doe I v. Nestle, No. 2:05-cv-05133, at 121-60 (C.D. Cal. Sept. 8, 2010). The
question of corporate liability was also discussed briefly during oral argument before the Ninth
Circuit en banc in Sarei v. Rio Tinto, No. 02-56256 (argued Sept. 21, 2010), but other issues havethus far predominated in that case.
90

Ibid. at 6 (majority opinion).

91

Ibid. (quoting Filártiga, 630 F.2d at 888).

92

Ibid. at 8.

93

Ibid. at 11. On December 4, 2009, a three-judge panel consisting of Judges Cabranes, Hall, andLivingston spontaneously requested supplemental briefing on this issue in the pending appeal in
Balintulo v. Daimler AG, No. 09-2778 (2d Cir.), framing the question as “whether customaryinternational law recognizes corporate criminal liability.”

27
The numerous briefs supporting the petitioners point to ample evidence for the existenceof corporate liability for serious human rights violations of the kind alleged in Kiobel.
The precedents most often cited, for example in International Law Scholars brief, areinternational conventions and agreement which require States Parties to establish criminal
liability for legal persons for certain conduct.94 Criminal liability under domestic law is,
however, not necessarily evidence for the existence of responsibility for human rights
violations under international law. Even as regards individuals, international law does not
require States to impose civil liability for acts of torture or other violations ofinternational law.
On this point, it may be more convincing to question the premise of the Second Circuit’s
majority opinion. Is it really compelling to interpret the phrase ‘scope of liability’ infootnote 20 to include the question of whether or not a named defendant can be a
corporation or only a natural person? It has been argued that under the ATS internationallaw merely governs the substance of the violation, while the attribution of liability
remains entirely governed by domestic law. In that case, it would become irrelevant
whether there is any treaty or case-law defining the actions of corporate entities as giving
rise to liability under international law. As a matter of federal common law, courts would
not be prevented from recognising “that violations of international law committed byindividual corporate employees render the corporation itself liable in damages to theinjured party.”95
The absence of international case-law on corporate liability can easily be explained by
the fact that all existing international human rights treaties formulate obligations only for
the States that are Parties to them. None of the existing monitoring mechanisms foresees
applications or petitions against corporations. However, this does not mean that businessenterprises are under no obligation to respect human rights. The various human rights andbusiness standards adopted by the UN and other international organisations as well as
voluntary commitments by business itself provide ample evidence of a worldwide
consensus on this matter.96

94

Brief of Amici Curiae International Law Scholars No 10-1491 (21 December 2011), at 11-13,
at <http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/101491_petitioner_amcu_law_scholars.authcheckdam.pdf>.
95

Vázquez above note 81, at 534. This appears also to be the view taken by the concurrence
which referred to the early ATS case of Hilao v. Estate of Marcos (103 F.3d 767, 776-77 [9th Cir.
1996]) which involved the actions of an individual, but the legal consequences were borne by his
estate, a juridical entity. The concurrence characterised corporate liability as a matter of “theappropriate remedies to enforce the norms of the law of nations”, ibid. at 44 (Leval, J.,
concurring).
See below Chapter 2 ‘Action by International Organisations and Institutions’. See also Brieffor the United States as Amicus Curiae Supporting Petitioners, Kiobel v. Royal Dutch Petroleum
Co., No. 10-1491 (2012): “At the present time, the United States is not aware of any
international-law norm, accepted by civilized nations and defined with the degree of specificity
required by Sosa, that requires, or necessarily contemplates, a distinction between natural andjuridical
actors”,
at96

28
The main argument in Kiobel is, however, about the limits for the exercise of
extraterritorial jurisdiction. The Supreme Court may eventually dismiss the case on
jurisdictional grounds, without having to embark on a detailed analysis of corporate
liability under international law.
Various governments have intervened on this point. Their briefs are particularlyinteresting because they shed some light on the opinio iuris of intervening States. The
country directly concerned, Nigeria, after having expressed some concern a decade ago,
has apparently not objected since.97 Argentina submitted a brief strongly in support of theKiobel plaintiffs, arguing that tribunals using ATS to hear human rights cases “wereimportant sources of international assistance for victims during the darkest days ofArgentina’s dictatorship and during its transition to democracy.”98 The brief underlinesthat concerns regarding ATS litigation “are unfounded given the universal nature of thelimited set of norms” which can legitimately be invoked and “the fact that virtually all
nations have legislated them domestically.” The European Commission also submitted anamicus brief 99 confirming that ATS jurisdiction over foreign violations is “likely to
encounter relatively little resistance in the international community” so long as it isexercised consistent with universal jurisdiction. The Netherlands and the United
Kingdom100 as well as Germany101 on the other hand intervened to dismiss the petition,
objecting to the “overly broad assertions of extraterritorial jurisdiction.” The
respondents moreover refer to a note filed by Indonesia objecting to the exercise of ATS
jurisdiction in another case. 102 Finally, the United States initially supported thepetitioners,103 but eventually joined the respondents on the point of jurisdiction.104 The<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/101491_petitioner_amcu_unitedstates.authcheckdam.pdf>.
97

See
the
supplementary
brief
by
the
US
government,
at17-18<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/Kiobel-US-supp-brief-6-1312.pdf>.
98<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/101491_petitioneramcugovtofargentinerepublic.authcheckdam.pdf>
99

Availableat<http://www.sdshhlaw.com/pdfs/European%20Commission%20on%20Behalf%20of%20the%20
European%20Union%20%28Revised%29.pdf>.
100

Available at <http://sblog.s3.amazonaws.com/wp-content/uploads/2012/02/4587212_1_UKNetherlands-amicus-brief-ISO-respondents-filed-2-3-12-2.pdf>
101

Availableat<http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/101491_respondentamcufederalrepublicofgermany.authcheckdam.pdf>.
102

Diplomatic Note No. 145/VI/05/05/DN from the Embassy of the Republic of Indonesia to the
U.S. Department of State (June 15, 2005) (filed in Doe VIII v. Exxon Mobil Corp., No. 01 Civ.
1357 (D.D.C. July 18, 2005).
103
104

Above note 96.

Supplemental Brief for the US (June 2012), at
content/uploads/4809838_1_10-1491-bssac-United-States.pdf>.

<http://opiniojuris.org/wp-

29
United States argues that, in certain circumstances in which a federal common law causeof action is created under the ATS for extraterritorial violations of the law of nations,doctrines like exhaustion, forum non conveniens, international comity, act of state, andrelated doctrines could be applied if the parties and conduct have little connection to theUnited States.
In Kiobel, the Nigerian plaintiffs are suing Dutch and British corporations for allegedly
assisting the Nigerian military and police forces in committing violations of internationallaw in Nigeria. International law tolerates for both the exercise of criminal and civil
jurisdiction “a wide measure of discretion” by a State to “adopt the principles which it
regards as best and most suitable”, of course within prescribed limitations.105 While theSecond Circuit’s ‘across-the-board approach’ barring all corporate ATS cases appears
unjustified, it may be necessary to provide for some conditions for the exercise of
extraterritorial jurisdiction in cases which present no substantial link to the forum State.
ATS jurisdiction is already restricted to a number of universally accepted and specificallydefined norms, precisely to avoid negative implications for the foreign relations of theUnited States. In purely ‘foreign cases’, where neither the facts, the plaintiffs nor the
alleged perpetrators have substantial links to the US, it may be reasonable to require
furthermore that foreign plaintiffs demonstrate that they have no possibility to pursue thematter in another jurisdiction with greater nexus. Such a condition would not unduly
restrict access to US courts in human rights cases, while at the same time respecting theprecedence of other jurisdictions with a closer nexus to the case, provided that thesejurisdictions are capable of providing effective redress for the alleged violations.

EuropeAt the European level, civil proceedings by individuals against business enterprises areusually governed by the provisions of the general statutes, the civil code or specificstatutes regarding employees’ rights, women’s and children’s rights, consumer protection
or data protection, health and safety matters.
Much fewer lawsuits have been brought against companies for human rights abuses
committed abroad than in the United States. 106 In 2006, a group of about 30,000
claimants from Ivory Coast brought a case against the United Kingdom-based oilcompany Trafigura for injuries and deaths following the alleged dumping of toxic waste.

105

S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10, at 19 (Sept. 7). See Vázquez
above note 81, at 542-543; C. Ryngaert Jurisdiction in International Law (Oxford University
Press 2008) at 9; Dan E. Stigall ‘International Law and Limitations on the Exercise ofExtraterritorial Jurisdiction in U.S. Domestic Law’ Hastings Int’l and Comp. L. Rev 35 (2012), at
331: “The International Court of Justice has reaffirmed the enduring force of this rule as recently
as 2010, noting that the rule articulated in Lotus remains a cornerstone of the international lawof jurisdiction.”
See generally J. Wouters and C. Ryngaert ‘Litigation for overseas corporate human rights
abuses in the European Union: the challenge of jurisdiction’ The George Washington
International Law Review 40 (2009), 939.
106

30
The case was eventually settled out of court.107 It was the largest class action in UK legal
history, made possible under existing ‘no win no fee’ provisions which are currently
under review. Another example are suits brought against Shell and its Nigerian
subsidiaries in the United Kingdom108 and the Netherlands109 over devastating oil spills
affecting Nigerian villages in 2008 and 2009.
The main barriers appear to be not only jurisdictional, but also resulting from costs andrestricted access to legal aid, complex corporate structures, the lack of support for public
interest litigation or mass tort claims, time limitations, and provisions on evidence. 110
Universal civil jurisdiction is usually foreseen only in exceptional circumstances, forexample on a ‘necessity basis’ (forum necessitatis) where the claimant has no otherforum available and the forum State has a sufficient nexus to the dispute in order toprotect against a denial of justice. 111 In several European countries, universal civil
jurisdiction can also be exercised through actions civiles which can be brought within
criminal proceedings. Most reported cases concern law suits against natural persons
allegedly involved in human rights violations, such as extrajudicial killings within
genocide context112 or torture and inhumane treatment,113 rather than against corporations.
It should be noted, however, that all EU member States as well as Switzerland, Norway,
and Iceland must recognise and enforce judgments for civil damages entered in any of the

Details of the cases against Trafigura and the company’s reponses (the world’s third largest
independent oil trader) in the Ivory Case, the UK and the Netherlands, are available at<http://www.businesshumanrights.org/Categories/Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases/Trafig
uralawsuitsreCtedIvoire>.
107

108

‘Shell in the dock over major oil spills in Nigeria’ (20 June 2012), at<http://royaldutchshellplc.com/2012/06/20/shell-in-the-dock-over-major-oil-spills-in-nigeria/>.
109

Edinburgh report above note 4, para. 21 referring to a judgment by the Court of the Hague
Civil Law Section 330891/HA ZA 09‐579 (30 December 2009).
110

Edinburgh report above note 4, para. 167 referring to two studies on the Dutch and Polish legal
systems, A.G. Castermans & J.A. van der Weide ‘The legal liability of Dutch parent companies
for subsidiaries’ involvement in violations of fundamental, internationally recognised rights’ (15December 2009); International Commission of Jurists ‘Access to Justice: Human Rights Abuses
Involving Corporations ‐ Poland’ (Geneva, 2010); for the UK see House of Commons. Joint
Committee on Human. Rights ‘Any of our business? Human Rights and the UK private sector’(HL Paper 5-I, HC 64-I, 16 December 2009), 86-88.
See Arnaud Nuyts ‘Study on Residual Jurisdiction (Review of the Member States’ Rules
concerning the “Residual Jurisdiction” of their courts in Civil and Commercial Matters pursuant
to the Brussels I and II Regulations)’ General Report (final version dated 3 September 2007)
chapter
16,
21,
availableat<http://ec.europa.eu/civiljustice/news/docs/study_residual_jurisdiction_en.pdf>.
111

112

Cour d’Assises [Court of Assizes] Brussels, 5 July 2007, The case of the Major (Belgium).

Rechtbank’s Gravenhage, 21 March 2012, No. 400882/HA ZA 11-2252, El-Hojouj/Derbal etal. (the Netherlands).
113

31
other thirty States under the common rules114 established by the ‘Brussels I Regulation’and the 2007 Lugano Convention.115 They are expressly prohibited from challenging thejurisdiction of the issuing State, even on grounds of public policy.116 As a result, eventhose States that do not recognise universal civil jurisdiction can be required to enforce a
judgment rendered on such basis by courts of other States bound by the common regime.
In Owusu v. N.B. Jackson [2005],117 the European Court of Justice held that a court ofContracting State State is precluded from declining the jurisdiction conferred on it on the
ground that a court of a non-Contracting State would be a more appropriate forum for thetrial of the action even if the jurisdiction of no other Contracting State is in issue or theproceedings have no nexus to any other Contracting State (forum non conveniens).

Conclusions on existing standards
The preceding analysis confirmed that existing human rights standards and their control
mechanisms cannot be applied directly to the activities of business enterprises. In its
General Comment 31, the UN Human Rights Committee concluded that obligations
under the International Covenant on Civil and Political Rights (ICCPR) “do not…have
direct horizontal effect as a matter of international law.”118
As the example of the ECHR shows, international treaties in this field are State-centred
and their mechanisms cannot be used directly to hold business enterprises accountable.
The Convention does not apply directly to private entities, nor is there any case-law so far
requiring High Contracting Parties to control the activities of their MNEs operating
abroad, even if they participate in or otherwise contribute to human rights abuses. Only
where companies are owned or controlled by the State and/or exercise State functions,
can the State itself be held responsible under the ECHR. 119 States have a duty toadequately regulate the behaviour of nonstate actors to whom they have transferred Statetasks. The State cannot absolve itself of its responsibility by delegating its obligations to114

Fully harmonised rules cover cases where the defendant is domiciled in one of the governed
States. National laws on jurisdiction currently still apply when the defendant is not domiciled
within one of the governed States.
115

See Council Regulation 44/01 on Jurisdiction and the Recognition and Enforcement of
Judgments in Civil and Commercial Matters, 2001 O.J. (L 12) 1-17 (EC); Lugano Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Oct. 30, 2007,
2007 O.J. (L 339) 3.
116

Council Regulation 44/01, arts. 33 § 1, 35 § 3; Lugano Convention, arts. 33 § 1, 35 § 3.

117

European Court of Justice, Andrew Owusu v. N.B. Jackson, judgment of 1 March 2005, C281/02.
118

Human Rights Committee, General Comment 31, Nature of the General Legal Obligation
ImposedonStatesPartiestotheCovenant,
CCPR/C/21/Rev.1/Add.13
26 May 2004, at para. 8.
119

Edinburgh report above note 4, para. 53 gives an overview over the criteria used in different
EU member States to determine whether corporations can be considered state agents, usually byvirtue of state ownership and control, by virtue of exercising public functions, or by virtue of a
combination of both.

32
secure the rights guaranteed by the Convention to private bodies or individuals. 120 It
would indeed be unacceptable if, as a result of a State’s shifting, for example, prison
administration or schooling to the private sector, cases of inhuman or degrading treatment
or punishment would go unpunished.121
International human rights treaties oblige States Parties to provide effective remedies,including compensatory relief, to victims of human rights violations whoever the actual
perpetrator is. 122 The ECHR in particular requires States to put into place effective
criminal and civil remedy mechanisms for human rights abuses by private actors.
International law permits a State to exercise extraterritorial jurisdiction over abuses
committed abroad by corporations domiciled in its territory provided there is aninternationally recognised basis, such as the actor or victim being a national, the actshaving substantial adverse effects on the State, or where specific international crimes are
involved.123 However, no precise legal standards for either civil or criminal liability ofcorporations for human rights abuses have been established in either international or
national law.124 In the absence of enforceable norms, the unaccountability of businessenterprises for adverse human rights impacts remains essentially unchallenged. Victimsof corporate human rights abuses seeking redress through the courts face a series of legal
and practical barriers, such as costs and legal aid, the lack of support for public interest
litigation or mass tort claims, time limitations, and provisions on evidence.125 In the case120

Van der Mussele v. Belgium, judgment of 23 November 1983, Series A no. 70, pp. 14-15, §§28-30; Costello-Roberts v. UK, 1993, Series A no. 247-C, § 27; Storck v. Germany, judgment of
16 June 2005, § 103.
121

The same idea was expressed by the SRSG in in his 2010 Report A/HRC/14/27 (2010), para.
27 (“where companies are owned by and/or act as mere state agents, the State itself may be held
legally responsible for such entities’ wrongful acts”) and the UN Human Rights Committee. After
displaying its concern about “the practice of a State party in contracting out to the privatecommercial sector core State activities which involve the use of force and detention of persons
weakens the protection of rights under the Covenant”, the Committee emphasised that a “State
party remains responsible in all circumstances for the adherence to all articles of the Covenant”,
comments of the HR Committee, CCPR/C/79/Add. 55 (1995).
See e.g. Article 14 of the Convention Against Torture (“Each State Party shall ensure in its
legal system that the victim of an act of torture obtains redress and has an enforceable right tofair and adequate compensation including the means for as full rehabilitation as possible”);
Article 6 of the International Convention on the Elimination of All Forms of Racial
Discrimination, 660 U.N.T.S. 195 (requiring that State Parties assure, as part of “effective
protection and remedies”, “the right to seek from such tribunals just and adequate reparation orsatisfaction for any damage suffered as a result of such discrimination” in violation of humanrights and fundamental freedoms under the Convention).
122

J. Ruggie ‘Business and Human Rights – The Evolving International Agenda’ American
Journal of International Law 101 (2007), at 829-830.
123

124

Reinisch in P. Alston (ed.) Non-State Actors and Human Rights (Oxford University Press
2005), 66; Clapham above note 17, Chapter 6 ‘Corporations and Human Rights”, 195 et seq.
125

Edinburgh report, above note 4, para. 167 referring to two studies on the Dutch and Polishlegal systems, A.G. Castermans & J.A. van der Weide The legal liability of Dutch parent
companies for subsidiaries’ involvement in violations of fundamental, internationally recognised

33
of abuses involving third‐country subsidiaries or contractors, difficulties are exacerbatedby jurisdictional barriers, complex corporate structures and command chains as well as
the absence of agreed standards under which corporations can be held responsible for the
extraterritorial effects of their activities harmful to human rights.126
The rather restrictive scope of existing human rights treaties contrasts with developments
in domestic law, where jurisdictions increasingly apply international human rights law as
the law of the land, with the result that human rights norms have become relevant forcorporations as well. As Andrew Clapham observed already in 2006, “we may bewitnessing a shift in emphasis,” 127 with human rights being privatised. Likewise, theVenice Commission has argued that “[t]he substance of the rule of law as a guiding
principle for the future has to be extended not only to the area of cooperation between
state and private actors but also to activities of private actors whose power to infringe
individual rights has a weight comparable to state power.”128 It is therefore not surprisingthat the issue of corporate human rights responsibility has prompted a series of initiatives
by various international organisations.

Action by international organisations and institutions
United Nations
In the United Nations several attempts have been made to hold such corporations
accountable. In the past, such attempts had focused almost exclusively on the activities oftransnational corporations (TNCs) and had been overshadowed by differences between
developed and developing nations over sovereignty and natural resources. Someconsidered the idea of imposing direct human rights obligations on TNCs as a neocolonial extension of power in conflict with the host country.129
The UN Sub-Commission for the Protection and Promotion of Human Rights approved inAugust 2003 “Draft Norms on the Responsibilities of Transnational Corporations andOther Business Enterprises with regard to Human Rights”.130 The Draft Norms sought toprovide a succinct, but comprehensive restatement of the international legal principles
applicable to businesses. 131 The Draft Norms enumerated rights that appeared to beparticularly relevant to business, including non-discrimination, the security of the person,

rights (15 December 2009); International Commission of Jurists, ‘Access to Justice: Human
Rights Abuses Involving Corporations ‐ Poland’ (Geneva, 2010).
126

Edinburgh report, above note 4, paras. 167 et seq.

127

Clapham above note 17, at 58.

128‘Report on the Rule of Law’ CDL-AD(2011)003rev, para. 66.

S. Kobrin ‘Private Political Authority and Public Responsibility: Transnational Politics,
Transnational Firms, and Human Rights’ Business Ethics Quarterly 19 (2009), at 352.
129

130
131

UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).

See D. Weissbrodt and M. Kruger in P. Alston (ed.) Non-State Actors and Human Rights(Oxford University Press 2005), 315-350.

34
labour standards, and indigenous peoples’ rights. While it allowed that not allinternationally recognised rights apply to business, the Draft Norms provided noprincipled approach for making that determination referring merely to rather abstract
notions of “primary versus secondary obligations” and “spheres of influence.” 132 The
Commission on Human Rights declined to adopt the Draft Norms and requested the UN
Secretary-General to appoint a Special Representative with the goal of moving beyond
the stalemate and clarifying the roles and responsibilities of States, companies and othersocial actors in the business and human rights sphere. This more pragmatic approach
eventually led to universally acceptable standards.

UN Global Compact
At the World Economic Forum in Davos in January 1999, the then UN Secretary-General
Kofi Anan asked world business leaders to make more efforts to solve world issues in thefields of labour, environment, and human rights. In 2000, the UN set up the Global
Compact Initiative and asked business organisations to participate on a voluntary basis.
The Global Compact is based on ten “universally accepted principles” two of which deal
with human rights (businesses “should support and respect the protection ofinternationally proclaimed human rights” and “make sure that they are not complicit inhuman rights abuses”).133 The UN Global Compact Board (composed of representativesof business, civil society as well as labour, and chaired by the United Nations SecretaryGeneral) provides on-going strategic and policy advice for the initiative as a whole andmakes recommendations.
There are currently more than 10,000 signatories participating in the Global Compact,which remains however a purely voluntary initiative. The participants do not have any
specific obligations other than to report on their CSR commitments in their annual reports.
According to the Annual Review 2011,134 Global Compact participants submitted a totalof 4150 reports in 2011. Among the four issue areas covered by the Global Compact
principles, companies are taking action on the environment and on labour standards at thehighest rates. While anti-corruption efforts have increased steadily for two consecutive
years, human rights action continues to lag behind. Less than a quarter of all companies
on average report conducting risk assessments on human rights, labour issues or on anticorruption. When evaluating these figures, it must be taken into account that the Annual
Review is based on a voluntary and anonymous online survey by the companies
themselves and their employees.

See J. G. Ruggie ‘Business and Human Rights – The Evolving International Agenda’
American Journal of International Law 101 (2007), at 822.
132

The
GlobalCompact’s
Ten
Principles
are<http://www.unglobalcompact.org/aboutthegc/thetenprinciples/index.html>.
133

134

available

Available at <http://www.unglobalcompact.org/AboutTheGC/annual_review.html>.

at

35

Guiding Principles on Business and Human Rights (Guiding Principles)
In 2005, then UN Secretary-General Kofi Annan appointed Harvard Professor John
Ruggie as Special Representative on the issue of human rights and transnational
corporations and other business enterprises (SRSG).
In June 2008, after three years of extensive research and consultations with governments,
business and civil society, the Special Representative concluded that one reason
cumulative progress in the business and human rights area had been difficult to achieve
was the lack of an authoritative focal point around which actors’ expectations could
converge - a framework that clarified the relevant actors’ responsibilities, and provided
the foundation on which thinking and action could build.
In June 2008, the SRSG presented a framework to the Human Rights Council. The‘Protect, Respect and Remedy’ framework rests on three independent but complementary
pillars: the State duty to protect against human rights abuses by third parties, including
business, through appropriate policies, regulation, and adjudication; the corporate
responsibility to respect human rights, which means to act with due diligence to avoid
infringing on the rights of others and to address adverse impacts that occur; and greater
access by victims to effective remedy, both judicial and non-judicial. The framework is
intended to work dynamically: The state duty to protect and the corporate responsibility
to respect exist independently of one another, and preventative measures differ fromremedial ones. Yet, all are intended to be mutually reinforcing parts of a dynamic,
interactive system to advance the enjoyment of human rights.
The Human Rights Council unanimously welcomed what is now referred to as the ‘UNframework’, marking the first time that a UN intergovernmental body had taken asubstantive policy position on the issue of business and human rights. The Council also
extended the Special Representative’s mandate until 2011 with the task of“operationalizing” and “promoting” the framework. Norway was the main sponsor of
the resolution authorising the Special Representative’s mandate, together with Argentina,
India, Nigeria and Russia as co-sponsors, representing one country from each UN
regional group.
In 2011, the Special Representative submitted a set of Guiding Principles for the
implementation of the Framework, which the United Nations Human Rights Council
unanimously adopted on 16 June 2011.135 The policy framework rests on three pillars:
1. the State duty to protect human rights, notably through policy, regulation andadjudication;
2. the corporate responsibility to respect human rights, in particular to act with due
diligence to prevent and mitigate adverse human rights impact and to provide
remediation where such impact was caused; and3. access to remedy, both judicial and non-judicial.

135

A/HRC/17/31 of 21 March 2011.

36
While the first and third pillars largely remain within the traditional language of State
responsibility, the second pillar seeks to translate the responsibility of businessenterprises to respect human rights into operational principles. Terms such as “humanrights violations”, which are typically used when speaking about States, are avoided.
Instead the Guiding Principles speak of “adverse human rights impacts” or“infringements”, the premise being that “business enterprises can have an impact on
virtually the entire spectrum of internationally recognised human rights.”136
The Universal Declaration of Human Rights, the two UN Covenants as well as theprinciples concerning fundamental rights in the eight ILO core conventions as set out in
the Declaration on Fundamental Principles and Rights at Work are cited as“benchmarks”.137 The underlying idea is that, compared to States, business enterprises
have distinct, but complementary obligations, which exist “over and above compliancewith national laws and regulations protecting human rights.”138 “While corporations may
be considered ‘organs of society’, they are specialized economic organs, not democratic
public interest institutions. As such, their responsibilities cannot and should not simply
mirror the duties of States.”139
The Guiding Principles recognise a “corporate responsibility to respect human rights”140
which business enterprises should express through a policy statement in whatever form
they see most appropriate. Their main operational duty is to carry out “human rights duediligence” in order to identify, prevent, mitigate and account for how they address theiradverse human rights impacts.141 To this end, the business enterprises should draw oninternal and/or external expertise, engage in consultations with potentially affectedgroups, carry out impact assessments, take appropriate action and communicate on all
this. This is a key principle for the SRSG who emphasised that a company will only beable to know and show that it respects human rights if it has processes in place to assess
and address the human rights risks of its operations.142
While recognising that size, sector and operational context are factors to be taken into
account in the due diligence exercise,143 the Guiding Principles stress that in principle
every company can abuse any right. The standard of respect applies to all businesses
regardless of “size, sector, operational context, ownership and structure”. Heightened
136

Commentary to principle 12.

137

Ibid.

138

Commentary to principle 11.

139

Protect, Respect and Remedy: a Framework for Business and Human Rights, A/HRC/8/5(2008), para. 53
140

Introduction to the Guiding Principles, A/HRC/17/31 (2011), para. 6.

141

Principles 17-21.

J. Ruggie ‘Remarks at OECD Investment Committee’ in Annual Report on the OECD
Guidelines for Multinational Enterprises 2011: A New Agenda for the Future (OECD Publishing2011), at 179, available at <http://dx.doi.org/10.1787/mne-2011-en>.
142

143

This is explicitly acknowledged in Principle 14.

37
due diligence is required in weak governance zones, areas of armed conflict and where
the human rights of vulnerable groups may be at particular risk.
Finally, where human rights have been adversely affected, businesses should provide foror cooperate in “remediation”. The SRSG distinguishes three types of grievancemechanisms: judicial and non-judicial State-based mechanisms and company-levelmechanisms.144 The latter should be available both for employees and also as a method
for outside stakeholders who interact with the company.145 The Guiding Principles do not,however, acknowledge that access to remedy is in itself a human right recognised in all
major international human rights instruments.146
There is no mechanism to consider questions over the meaning of the Guiding Principles
or to handle complaints. In July 20011, the UN Human Rights Council merely
established a ‘Working Group on the issue of human rights and transnational corporations
and other business enterprises’, consisting of five independent experts of balanced
geographical representation.147 The UN Human Rights Council also established a Forumon Business and Human Rights under the guidance of the Working Group to discuss
trends and challenges in the implementation of the Guiding Principles. The first two
sessions of the Working Group took place in Geneva in January and May 2012 andinvolved consultations with the relevant stakeholders, in particular with regard to theforthcoming first annual meeting of the Forum on Business and Human Rights in
December 2012. The Working Group formulated preliminary strategic considerations forengaging with their mandate, focusing on dissemination, integration and global
governance institutions.148

International Labour Organisation (ILO)The ILO’s main instruments on human rights and business are the ‘Tripartite Declarationof Principles concerning Multinational Enterprises and Social Policy’ adopted in 1977
(and updated in 2000) and the ‘Declaration on Fundamental Principles and Rights at
Work,, which the 86th International Labour Conference adopted in 1998. This declaration
identified four “principles” as “core” or “fundamental”, asserting that all ILO member
States on the basis of existing obligations as members in the Organisation have an
obligation to work towards fully respecting the principles embodied in the relevant ILO
Conventions. The fundamental rights cover freedom of association and collective
bargaining, discrimination, forced labour, and child labour. The ILO Conventions which
embody the fundamental principles have now been ratified by most member States.
Business and Human Rights: Further steps toward the operationalization of the “protect,respect and remedy” framework, A/HRC/14/27 (2010), para. 89.
144

145

Ibid., para. 92.

S. Deva ‘Principles on Business and Human Rights: Implications for Companies’ European
Company Law 9 (2012), at 104.
146

147

Resolution 17/4 on human rights and transnational corporations and other business enterprisesof 6 July 2011.
148

Report of the Working Group on the issue of human rights and transnational corporations andother business enterprises”, United Nations Human Rights Council, 10 April 2012, A/HRC/20/29.

38Children’s Rights and Business Principles
On 12 March 2012, UNICEF, the UN Global Compact and Save the Children introduced
the “Children’s Rights and Business Principles” which are the first comprehensive set ofprinciples to guide companies on the full range of actions they can take in the workplace,marketplace and community to respect and support children’s rights. The principles covera wide range of key issues, ranging from child labour to marketing and advertising
practices to the role of business in aiding children affected by emergencies. Businesses
are called upon to uphold children’s rights through their policy commitments, due
diligence and remediation measures, and to take action to advance children’s rights. The
Principles built on existing standards, initiatives and best practices related to business andchildren, and seek to fill gaps to present a coherent vision for business to maximize
positive impacts and minimize negative impacts on children.

International Organization for Standardization (ISO)In 2010, the International Organization for Standardization released its social
responsibility standard, ISO 26000:2010149 which is particularly important because of its
reach into the business community. ISO 26000:2010 was launched following five yearsof negotiations between many different stakeholders across the world, including
representatives from governments, NGOs, industry, consumer groups and labour
organisations. It provides internationally agreed CSR guidance for all types oforganisations regardless of their activity, size or location. Unlike other well-known ISO
standards, it cannot be certified to. Its declared purpose is merely to clarify what social
responsibility is and to help businesses to translate principles into effective actions.
The human rights chapter is aligned with the UN framework. It distinguishes eight humanrights issues (due diligence; human rights risk situations; avoidance of complicity;
resolving grievances; discrimination and vulnerable groups; civil and political rights;
economic, social and cultural rights; fundamental principles and rights at work),
describing briefly the issue and presenting some related actions and expectations for eachof them.
The Japanese government was particularly active during the negotiations. In January
2005, it presented a draft ‘Social Responsibility (SR) Guideline’. The Japanese draft was
based on six SR principles:150
1. Respecting autonomy and flexibility: An organisation should identify those SR
subjects and issues that are significant to achieving its sustainable development
and continuity and address them voluntarily and flexibly.

149

ISO 26000: 2010 Guidance on social responsibility, International Organization forStandardization,
available,
togetherwithothermaterials,
at<http://www.iso.org/iso/home/standards/iso26000.htm>.
150

H. Suzuki in Management Forum: Corporate Social Responsibility Report of the APO TopManagement Forum on Corporate Social Responsibility (Asian Productivity Organization Tokyo
2006), at 21-22.

39
2. Maintaining continuity: To make SR activities effective, the organisation shouldmake continuous efforts for better performance.
3. Maintaining transparency: The organisation should disclose information on its
structure and activities and thereby enhance transparency.
4. Respect for human dignity and diversity: The organisation should respectdifferences in race, sex, age, ideology, culture, region, physical ability, and othercategories of human diversity, and should refrain from and discourage
discrimination on such grounds.
5. Special attention to communication with stakeholders: The organisation should
promote two-way communication with stakeholders who are affected by its
activities and take their interests into consideration.
6. Contributing to building a better society: In implementing SR activities, theorganisation should collaborate with diverse parties to have a positive impact onsolving social problems and building a better society.

Organisation of Economic Co-operation and Development (OECD)
As a response to the increasing activity of companies in developing countries, the OECD
adopted already in 1976 ‘Guidelines for Multinational Enterprises’ as a set of voluntary
recommendations to MNEs in all the major areas of business ethics. On 25 May 2011, thethirty-four OECD member States, as well as Argentina, Brazil, Colombia, Egypt, Latvia,
Lithuania, Morocco, Peru, and Romania agreed to an updated version of the
Guidelines.151
Unlike the original version, the revised guidelines have a specific focus on human rights(chapter IV). After reaffirming that States have primary obligations to protect humanrights, including in the horizontal relationship between private actors, the Guidelines
declare that enterprises “should” respect human rights “within the framework ofinternationally recognised human rights, the international human rights obligations of
the countries in which they operate”, including domestic human rights obligations. 152
Whereas the text of the Guidelines employs the verb should, the Commentary of the
Guidelines suggests that enterprises have an obligation to respect human rights because“respect for human rights is the global standard of expected conduct for enterprises.”
The content and scope of the principles are almost identical to the UN Guiding Principles,
testimony of the close coordination between UN and OECD during their drafting.
Enterprises are required to “avoid causing or contributing to adverse human rights
impacts and address such impacts when they occur.” Even where they have not
151

OECD (2011), OECD Guidelines for Multinational Enterprises, OECD Publishing,<http://dx.doi.org/10.1787/9789264115415-en>. They are divided into eleven chapters: Concepts
and Principles; General Policies; Disclosure; Human Rights; Employment and Industrial
Relations; Environment; Combating Bribery, Bribe Solicitation and Extortion; Consumer
Interests; Science and Technology; Competition; and Taxation.
This and the following citations in this paragraph are from the Guidelines’ chapter IV –Human Rights and its Commentary, ibid., 31-34.
152

40
contributed to an adverse impact, but that impact is nevertheless directly linked to theiroperations, they should “seek ways to prevent or mitigate adverse human rights impacts.”
They should also conduct due diligence “as appropriate to their size, the nature andcontext of operations and the severity of the risks of adverse human rights impacts.”153
The Guidelines also provide for a policy commitment to respect human rights. As regards
effective remedies for human rights infringements, the Guidelines use rather cautious
language requiring enterprises to “provide for or co-operate through legitimate processes”
in order to ensure effective measures to address “human rights impacts where they
identify that they have caused or contributed to these impacts.”
The chapter on general policies emphasises the importance of “risk-based due diligence”
to “identify, prevent and mitigate actual and potential adverse impacts.”154 Enterprises
should comply with “good corporate principles . . . throughout enterprise groups.” Morespecifically, they are asked to “engage in or support” different proposals on “responsible
supply chain management.”
Evidence of the emerging corporate obligation to protect human rights derives fromparagraph 13 providing that enterprises “should encourage . . . business partners . . . toapply principles of responsible business conduct.” Enterprises should also “avoid causing
or contributing to adverse impact . . . through their own activities and address suchimpacts when they occur.” The scope and nature of due diligence varies from enterprise
to enterprise, depending on the size and nature of each company. Enterprises are also
encouraged “to promote Internet Freedom through respect of freedom of expression,assembly and association online” and to “engage with relevant stakeholders in order toprovide meaningful opportunities . . . for projects or other activities that may
significantly impact local communities.” This provision, however, lacks a reference on
how to obtain consent of the community in which the company operates.
Under the Guidelines, adhering governments establish National Contact Points (NCPs)
which are tasked to promote the Guidelines and to deal with complaints (‘specificinstances’). The NCPs also assist enterprises and their stakeholders in taking appropriate
measures on human rights-related issues and provide a mediation and conciliation
platform.
Under the new provisions on Procedural Guidance, 155 the NCPs are “composed andorganised such that they provide an effective basis for dealing with the broad range ofissues covered by the Guidelines” and must “enable the NCP to operate in an impartial
manner while maintaining an adequate level of accountability to the adhering

153

When addressing the OECD on 4 October 2010, the SRSG suggested that his view of due
diligence was “somewhat less discretionary”, J. Ruggie in Annual Report on the OECD
Guidelines for Multinational Enterprises 2011: A New Agenda for the Future (OECD Publishing2011), at 179, but the final versions of the respective Guidelines and their commentaries do notreally differ substantially.
This and the following citations in this paragraph are from the Guidelines’ chapter II – General
Policies and its Commentary, ibid., 19-26.
154

155

Ibid., 71-75.

41
government.” The Commentary on the procedural guidance156 includes provisions on theimpartiality and independence of NCPs. It also encourages cooperation among the NCPsof the home and host country of a multinational enterprise. Moreover, it promotes“appropriate assistance” in “a timely manner.” Any individual or NGO may file acomplaint. Depending on whether mediation between the parties is successful, the NCP
will either issue a report or make a recommendation to the parties involved. In any case,
NCPs are expected to make their conclusions public.157 As a general rule, NCPs should
conclude a procedure within 12 months.158 The updated Commentary also includes a newprovision on the role of the international network of non-governmental organisations OECD Watch.159 In the event of a NCP not complying with procedural obligations under
the Guidelines, an adhering country, an advisory body, or OECD Watch can send “asubstantiated submission” that will be considered by the OECD Investment
Committee,160 which is overseeing the functioning of the Guidelines.
Simultaneously with the Guidelines, the OECD also adopted a ‘Recommendation of theCouncil on Due Diligence Guidance for Responsible Supply Chains of Minerals from
Conflict-Affected and High-Risk Areas’.161 The Recommendation contains a framework
for risk-based due diligence and a model supply chain.

Council of Europe
The Council of Europe has until recently been conspicuously absent from theinternational debate on human rights and business. It was the Parliamentary Assemblythat brought this subject on the Organisation’s agenda. On the basis of a report preparedby Holger Haibach, the Assembly adopted on 27 September 2010 Resolution 1757
(2010) and Recommendation 1936 (2010) on ‘Human rights and business’. The
Assembly recommended inter alia that Council of Europe member States should promote
ethical investment, refuse to work with corporations associated with human rights abuses,
and insist that firms fully respect human rights standards when they carry out government
contracts, especially if the work involves classic State functions which have been“privatised”. The Parliamentary Assembly’s report mentions in particular theprivatisation of prisons, immigration detention centers, private escort services for theremoval and deportation of immigrants as well as the use of private military and security
156

Ibid., 77-89.

157

Ibid., 80.

158

Commentary on the Implementation Procedures, ibid., para. 41.

See OECD Watch, at <http://oecdwatch.org/> where it is stated that “OECD Watch is aninternational network of civil society organisations promoting corporate accountability. The
purpose of OECD Watch is to inform the wider NGO community about policies and activities of
the OECD’s Investment Committee and to test the effectiveness of the OECD Guidelines forMultinational Enterprises.”
159

160
161

Commentary, ibid., at 88 para. 47.

Adopted by the Council at Ministerial level on 25 May 2011, available at<http://www.oecd.org/officialdocuments/displaydocumentpdf/?cote=c/min(2011)12/final&doclan
guage=en>.

42companies in Afghanistan and Iraq.162 More generally, member States should introduce
laws to protect individuals from corporate abuses of human rights enshrined in the ECHR.
The Assembly proposed that the Committee of Ministers examines the feasibility ofelaborating a complementary legal instrument, such as a convention or an additional
protocol to the ECHR. It also suggested preparing studies – and eventually arecommendation to Europe’s governments – on corporate responsibility in the area of
human rights as well as a labelling system for assessing the social responsibility ofbusinesses. Earlier, in its Recommendation 1858 (2009) on private military and security
firms and erosion of state monopoly on the use of force, the Parliamentary Assembly had
already called for the drafting of convention.
Referring to the UN framework ‘Protect, Respect and Remedy’, the Parliamentary
Assembly’s report on ‘Human Rights and business’ suggested that a new legal instrument
could also consider the following points:-

link public procurement to human rights performance of companies;-

make investments by public pension or other insurance schemes dependent on
corporate social responsibility;-

link export credit guarantees to good human rights records of companies;-

strengthen the role of national human rights institutions;-address the issue of judicial and non-judicial mechanisms;-

take measures for training and awareness-raising.

In its reply to Parliamentary Assembly Recommendation 1936 (2010), 163 the Committeeof Ministers underlined its interest to explore ways and means of enhancing the role ofbusiness in respecting and promoting human rights, but rejected the idea of a newconvention or protocol to the ECHR. The Committee of Ministers subsequently
instructed the Steering Committee for Human Rights (CDDH) to carry out a feasibility
study on further work on this subject before the end of 2013.164
In June 2011, the Steering Committee for Human Rights (CDDH) held a first discussion
on the subject, on the basis of an exchange with Ms Lene Wendland (OHCHR) and a
preliminary study prepared by the Secretariat. 165 The CDDH asked the Secretariat to
explore the feasibility and added value of various options for Council of Europe
involvement such as reaffirming the UN Guiding Principles; providing sectorial
guidance; providing thematic guidance; focusing on vulnerable groups; elaborating on theimplications of the principle of access to effective remedy; addressing legal/governance

162

Paras. 24 and 27.

163

Adopted on 6 July 2011.

164

Terms of Reference of Intergovernmental Structures 2012-2013, CM(2011)131 final 23
November 2011, <https://wcd.coe.int/ViewDoc.jsp?id=1875269&Site=CM>.
165

Document CDDH(2012)012, <http://www.coe.int/t/dghl/standardsetting/cddh/CDDHDOCUMENTS/CDDH_2012_012_en.pdf>.

43
gaps not covered by the UN Guiding Principles. The Secretariat was also asked to
explore other avenues for action, such as the identification and recognition of goodbusiness practices and awareness-raising initiatives involving the private sector. Amongst
the issues deserving particular attention in the study, delegations mentioned the effective
implementation of the UN Guiding Principles, the prevention of human rights violations,
possible gaps in access to effective remedies, extraterritorial issues and social rights. 166

European Union
The European Union has been active in the area of corporate social responsibility formore than a decade. 167 On 25 October 2011, the European Commission published arenewed strategy for corporate social responsibility for the period 2011-2014.168 The UN
Guiding Principles are the main reference point for EU policy. The European
Commission invited member states to develop by the end of 2012 national plans for the
implementation of Guiding Principles and expects all European enterprises to meet thecorporate responsibility to respect human rights as defined therein.
The European Commission intends to-Work with enterprises and stakeholders in 2012 to develop human rights guidance
for a limited number of relevant industrial sectors (oil and gas, information andcommunications technology, and employment and recruitment), as well as
guidance for small and medium-sized enterprises, based on the UN Guiding
Principles.

-

Publish by the end of 2012 a report on EU priorities in the implementation of the
UN Guiding Principles, and thereafter to issue periodic progress reports.

On 7-8 May 2012, the Danish EU Presidency hosted an expert conference ‘From
Principles to Practice: The European Union operationalizing the United Nations Guiding
Principles on Business and Human Rights’.169 Focusing on Guiding Principles 1-10 (state
duty to protect), the conference formulated a number of proposals for action by theEuropean Commission and member States, in particular relating to human rights due
diligence and access to effective remedies.
Already in 2010, the University of Edinburgh prepared for the European Commission a‘Study of the Legal Framework on Human Rights and the Environment Applicable to

166

CDDH
meetingreport,75th
meeting,<http://www.coe.int/t/dghl/standardsetting/cddh/CDDHDOCUMENTS/CDDH_2012_R75_E_final.pdf>.

para.

22,

availableat

For a summary of previous activities, see the PACE report ‘Human Rights and Business’,paras. 68-72.
167

168

Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, COM(2011) 681 final.
169

The
conference
reportisavailable<http://www.csreurope.org/data/files/Publications/EUPresidencyConferenceReport.pdf>.

at44European Enterprises Operating Outside the European Union’.170 It formulated a numberof recommendations for further action by the EU and its member States, in particular
-

-

-

-

promoting human rights and environmental protection through trade law, investment
rules and related regulatory regimes, for example enforcing trade restrictions thatprevent corporations from exporting or importing goods harmful to human rights andthe environment or include human rights and environmental protection conditionality
in free trade agreements or preferential trade regimes;
adopting measures to promote human rights and environmental protection throughinvestment rules applying to European corporations operating outside the EU, such as
promotion services, financial and fiscal incentives, or insurance mechanisms;171
introducing labelling schemes, such as the EU voluntary ecolabel award scheme, toencourage European corporations to control and prevent negative human rights andenvironmental impacts of their third‐country subsidiaries and suppliers;
introducing the consideration of corporate human rights and environmental impacts inthe context of directors’ duties and reporting requirements under corporate law;encouraging or requiring corporations to report on their human rights andenvironmental policies;
reforming the Brussels I Regulation with a view to extending its scope to corporations
not domiciled in the EU and creating additional grounds of jurisdiction, including
forum necessitates.

The EU also addressed specific human rights problems with regard to businesses, such as
the problem of ‘blood minerals’ in its raw materials initiative172 or the ban of export ofdrugs used for execution by lethal injection in the United States.173

Corporate social responsibility and human rights in Japan
Origins
Japan has a long tradition to associate economic development with moral values. Traces
can be found already in Edo era in the 18th century, with teachings about morality andharmony among merchants, customers and the society at large. The origins of the sanpō
yoshi (三方良し) philosophy can be traced to this time, to the ideas and practices of the
Ohmi merchants (近江商人, ōmi-shōnin) who lived in what is now Shiga Prefecture andtravelled across the nation and abroad. This ancient strategy for corporate sustainability is
170

Above note 4.

171

The SRSG also highlighted the need to consider strengthening the role of export credit
guarantee agencies in promoting and protecting human rights, see Report of the SRSG, ‘Businessand human rights: Further steps toward the operationalisation of the ‘protect,respect, remedy’
framework’, UN Doc A/HRC/14/27 (2010), at para. 29.
See the article published on 5 July 2011 on Euractiv.com ‘MEPs want risk radar for raw
materials’, at <http://www.euractiv.com/sustainability/meps-want-risk-radar-raw-materials-news506123>.
172

See‘Europebans
exportofdeathpenaltydrugs’,<http://www.transcend.org/tms/2012/03/europe-bans-export-of-death-penalty-drugs/>.
173

at

45
still referred to by companies today. It is based on the idea of triple satisfaction, “good forthe seller, the buyer, and society at large”. In 1754, in a message to his grandchild, Jihei
Nakamura Sōgan (1684-1757) gave the following advice:“Think and act customers first;
Never aim for a high short term profit;
Be humble that you are dependent on God’s blessing;
Do business with a caring mind for the people in the region;
Never lose faith in God in order not to have a malicious mind.
By so doing, you are in line with reason and will be able to keep a healthy bodyand mind.”174
In the 19th century, the founder of modern Japanese capitalism, Eiichi Shibusawa (18401931), developed a theory of harmony between morality and the economy arguing, that“as long as it is called business, it must profit oneself as well as society and thenation.” 175 His ideas and concepts were probably derived from Confucianism, but
Shibusawa was also influenced by Christianity.176

Modern CSR and human rights
The Nippon Keidanren (Japan Business Federation) adopted a ‘Charter of Corporate
Behaviour’ in 1991, which has been updated several times (most recently in 2004).177
Affirming that “[m]embers are expected to respect human rights and to conduct
themselves in a socially responsible manner toward the creation of a sustainable society”
and such improvement should “enhance the social value”, the Charter contains ten
principles, some of which are directly related to human rights. Although this Charter is avoluntary initiative, it has had significant results in terms of influencing company
behaviour.178 Under the Charter, top management should be responsible for implementing
its provisions. In the event of incidents contrary to the principles of this Charter, top
management must investigate the causes of the incidents, develop reforms to prevent
recurrence, and make information publicly available regarding their intended actions forreform. In 2003, the influential Keizai Doyukai (Japan Association of Corporate
The original text in Japanese can be found in Kunitoshi Suenaga ‘A Written Will andAdmonition by an Ohmi Merchant Nakamura Jihei in Edo Period: A Historical Study on Sampo
Yoshi’
Doshisha
Shogaku
15(1999),
25
at
47-48,
availableat<http://doors.doshisha.ac.jp/webopac/bdyview.do?bodyid=TB00007700&elmid=Body&lfname=017050050617.pdf>.
174

175

Cited by Suzuki above note 150, at 16.

176

Ibid.

177

Available at <http://www.keidanren.or.jp/english/policy/csr/charter2004.html>.

Cotty Vivant Marchisio & Lauzeral ‘Corporate Law Tools Project – Japan’ (September 2009),§ 22.1. The Charter does not mention any international human rights instruments, referring only
to the “spirit as well as the letter of all laws and regulations applying to their activities both inJapan and abroad.”178

46
Executives) also published a Corporate White Paper on the ‘Evolution of Market andSocially Responsible Management.’
A relationship between business and society specific to the Japanese context appears tohave been the driving factor for the development of CSR practices. From the beginning,
the focus was on compliance, consumer trust, disclosure and environmental concerns and,to a lesser extent only, on human rights. Corporate scandals, such as highly publicised
cases of corruption and pollution, shattered confidence in the society’s perception of thebusiness community. Corporations felt a need to renew their commitment to ‘cohabitation’ (kyo-sei) with society. Corporate responsibility is strongly associated withcustomer relationships, as individuals make judgements about companies in relation totheir experience as customers and in their behaviour as investors.179
A 2006 study,180 for which interviews were conducted with 22 CSR managers from 13
multinational companies, confirmed the predominance of compliance and environmental
issues. The study also revealed that Japanese managers associate the term ‘CSR’ (企業の社 会 的責任) with corporate values and principles which already exist within theirorganisations. The Ministry of Trade and Industry (METI) conducted research in 2005
showing that while 60% of top managers believe that CSR is a form of cost, about 50%
consider it very important and a vehicle to enhance the value and the sustainability ofcompanies.181 The percentage of corporate executives who view CSR as a being central
to management has risen from 51% in 2003 to 71% in 2010.182
The Japanese Global Compact Local Network (GC-JN) was officially launched on
21 December 2003. In April 2008 GC-JN changed its structure into an independent
business-led network sharing corporate responsibility practices. 183 Their website

179

A. Zaman in Management Forum: Corporate Social Responsibility Report of the APO TopManagement Forum on Corporate Social Responsibility (Asian Productivity Organization Tokyo
2006), at 70.
Kyoko Fukukawa & Yoshiya Teramoto ‘Understanding Japanese CSR: The Reflections ofManagers in the Field of Global Operations’ Journal of Business Ethics (2009), 133-146.
180

181

Suzuki above note 151, 23. The report of the METI Study Group on CSR can be consulted at<http://www.meti.go.jp/policy/intellectual_assets/pdf/InterimReport-eng.pdf>.
‘Survey of Management Awareness of Corporate Social Responsibility’ by the Japan
Association of Corporate Executives, cited in ‘Japan’s Policy for CSR’ (17 April 2012)
presentation by the METI.
182

183

For a views on the UN Global Compact in Japan, see the interviews with Toshio Arima,
Executive Corporate Advisor, Fuji Xerox company: ‘Significance of the UN Global Compact and
the
Role
of
Companies’,at<http://www.fujixerox.com/eng/company/sr/2008/highlight/arima.html>; ‘We Need a Stronger
GlobalCompact
Japan
Network
written’,at<http://globalsecuritynews.com/showArticle3.cfm?article_id=16959>.

47
currently indicates 380 corporate participants. 184 Corporations have established special
units to deal with CSR-related activities, including compliance, reporting, andcorrespondence for the socially responsible investment index survey. 185 Fukukawa andMoon analysed CSR reporting of 50 top corporations in 2002. Their study showedsignificant growth in the interests and engagements among Japanese MNEs.
Under Japanese law, there is no obligation to disclose information related to the impact of
the company’s activity on non-shareholders (especially human rights impacts) as long as
such impact is not ‘significant’ for the company (should this be the case, for instance incase of environmental litigation with important amounts of money at stake, disclosure
would become mandatory for the public interest or the protection of investors). 186 In
practice, Japanese companies report on CSR, increasingly conforming to the guidelinesof the Global Reporting Initiative (GRI).187 Cotty Vivant Marchisio & Lauzeral reported
that “with 43 Japanese corporations (which are – based on our information – all large
corporations), releasing GRI compliant reports in February 2009 (out of 828 in theworld), Japan ranks fourth after the United States, Spain and Brazil.”188 In 2011, 99% ofJapanese companies reported on their corporate responsibility, the UK being the only
European country with comparable figures (100%).189
In the past, it has sometimes been suggested that human rights would matter less inJapanese CSR policy. One explanation given referred to the more hermetic nature ofJapanese culture and demography, where human rights concerns over race, class and faithwould be less pronounced than in culturally diverse societies.190 Fukukawa and Teramotoexplained the fact that Japanese managers sometimes appear naïve when speaking abouthuman rights issues by a lack of documentation, uncertainty about concepts and theirapplicability. They argued that certain issues, such as sweatshop labour, would go
unreported because they are an all too obvious prohibition. Moreover, human rights

184

See

<http://www.unglobalcompact.org/NetworksAroundTheWorld/local_network_sheet/JP.html>(last visited on 15 August 2012).
185

A good overview over business practice is given by T. Ebashi, W.J. Lee & B. Yang (eds.)
Being Responsible in East Asia - CSR Practices of Global Compact Members in China, Japan,
Korea (Hosei University Press 2011).
186

Report on Japan submitted by Cotty Vivant Marchisio & Lauzeral to the SRSG as part of his
corporate law tools project (September 2009), at 17, available at <http://www.reports-andmaterials.org/Corp-law-tools-Japan-Cotty-Vivant-for-Ruggie-28-Sep-2009.pdf >.
187

Ibid.; the GRI, created in 1997, has established a common framework for harmonised andbroadly user-friendly CSR Reports.
188

Cotty Vivant Marchisio & Lauzeral above note 186, at 17.

‘KPMG International Survey of Corporate Responsibility Reporting’ (2011), cited in ‘Japan’s
Policy for CSR’ above note 182.
189

K. Fukukawa ‘Corporate Social Responsibility in Japan: A Local-Global Perspective’
Bradford University School of Management Working Paper No 10/03 (May 2010), 7.
190

48
would be seen primarily as a problem for other parts of the world, in particulardeveloping countries. As one manager explained:“When I think about the Japanese environment, I don’t easily recognize issues ofhuman rights (jinken). I imagine it as something protected by our constitution. In
other countries, it is a very difficult issue to identify what it is meant by humanrights. … We have been researching what is meant by human rights. It appears tomean to secure one’s well-being outside of working life – i.e., to establish work
life balance.… We operate all over the world. What do we do about human rightsof children in Bangladesh that suppliers may use further down the supply chain?
It is a very difficult issue.”191
However, during my research I found ample evidence for human rights awareness among
Japanese companies. Major corporations such as Brother, Hitachi, Mazda, Mitsubishi or
Toshiba affirm their commitment to respect human rights in CSR policy statements andhave taken concrete measures to translate this commitment into practice, such as setting
up human rights committees and counselling desks as well as human rights promotion
and training activities. 192 Respect for diversity appears a key human rights issue193 tosuch an extent that it may eclipse other issues. Initially, the main concern appears to havebeen discrimination based on social origin,194 whereas now also factors such as disability
and sexual orientation figure explicitly in corporate standards of conduct. 195 Women,
disabled and elderly people are the three main categories of employees regularly
mentioned under human rights in CSR reports.196
Corporations recognise the importance of implementing human rights policies not only
within their group, but also throughout their supply chain, not only domestically but alsoabroad. Respect for human rights is mentioned explicitly in supplier codes of conduct,
191

Cited in Fukukawa & Teramoto above note 180, 143.

See the information given at their respective websites: Brother Group’s Global Charter<http://www.brother.com/en/corporate/principle/index.htm>
and192

PrinciplesofSocialResponsibility<http://www.brother.com/en/csr/brothergroup/psr/index.htm>;
Hitachi<http://www.hitachi.com/csr/society/respect/index.html>;
Mazda<http://www.mazda.com/csr/csr_vision/employee/human_respect.html>;
Mitsubishi<http://www.mitsubishicorp.com/jp/en/csr/policy/human-right.html>;
Toshiba<http://www.toshiba.co.jp/csr/en/human_rights/index.htm> as well as Toshiba’s comprehensive
CSR report 2012, at <http://www.toshiba.co.jp/csr/en/engagement/report/pdf/report12_all.pdf>.
193

See numerous examples in Ebashi, Lee & Yang above note 185, at 91-98.

Ebashi, Lee & Yang above note 185, 64. In particular based on the family’s origin which canbe traced to one of the old social classes, or the burakumin, ‘hamlet or village people’ (部落民).
The burakumin are descendants of outcast communities of the Japanese feudal era, comprisingthose with occupations considered ‘tainted’ with death or ritual impurity, who remained
discriminated in modern Japan, see <http://en.wikipedia.org/wiki/Burakumin>.
194

195

See e.g. ‘Toshiba Group Standards of Conduct’, section 15 (on file with the author).

196

Ebashi, Lee & Yang above note 185, 64.

49compliance of which is verified through CSR surveys. 197 Other strategies for supply
chain management include communication, guidebooks, self-assessment and on-the-spot
visits. 198 Corporations strive to overcome differences through dialogue rather thanpunishing suppliers or terminating contracts.199
As regards specific instances under the OECD Guidelines, four requests have been raisedwith the Japanese NCP since the June 2000 review, three of which are still ongoing. The
host countries concerned are Indonesia, Malaysia, the Philippines and Japan itself, withan almost exclusive focus on labour relations.200 Moreover, one case was jointly handled
by the US NCP and the Japanese NCP (which took a supportive role).201 This case wasconcluded in July 2012, but based on the US NCP procedure, results have not been
published.

Government initiatives
As in many other fields of economic policy, corporate strategy and government policy areclosely interwoven.202 The Japanese government has from the beginning been an active
supporter of human rights and business initiatives in the various international fora.
Domestically, various initiatives have been taken:203--

the Cabinet Office compiled in May 2008 the ‘Report by the Study Group on Social
Responsibility for a Safe and Comfortable, Sustainable Future’;
the METI disclosed the ‘Social Business Study Meeting’ report in April 2008;
the Ministry of the Environment, the Ministry of Health, Labour and Welfare, and the
METI established their own guidelines on optional disclosure;numerous round-table conferences on social responsibility were organised, withrepresentatives of business groups, consumer groups, trade unions, NGOs;
Japan’s NCP presented information about the 2011 Update of the OECD Guidelines
at more than 10 seminars, study groups, and symposia organised by various
businesses, trade unions and NGOs.204
the METI promotes diversity centred on women’s success.

See
e.g.
Toshiba’s
humanrightspolicystatement,
at<http://www.toshiba.co.jp/csr/en/human_rights/index.htm>; Xerox’s guideline for procurement
referred to by Ebashi, Lee & Yang above note 185, 77.
197

198

Ebashi, Lee & Yang above note 185, 80-83.

199

Ibid., 105.

200

For details see Annual Report on the OECD Guidelines for Multinational Enterprises 2011: A
New Agenda for the Future (OECD Publishing 2011), 321 et seq., available at<http://dx.doi.org/10.1787/mne-2011-en>.
201

Ibid., 336.

K. Fukukawa & J. Moon ‘A Japanese Model of Corporate Social Responsibility? A study of
online reporting’ Bradford University School of Management Working Paper No 03/10 (May2003), 47-48.
202

203

For details see ‘Japan’s Policy for CSR’ above note 182.

204

Annual Report 2011 above note 200, 27.

50

Human rights under national law
The Constitution of Japan shares the ideal of universality of human rights, which foundits expression in the Constitution’s preamble. 205 The Constitution guarantees civil andpolitical rights and refers explicitly to social rights (Article 25). Article 97 of theConstitution states:“The fundamental human rights by this Constitution guaranteed to the people ofJapan are fruits of the age-old struggle of man to be free; they have survived themany exacting tests for durability and are conferred upon this and future
generations in trust, to be held for all time inviolate.”
Some provisions of the Constitution such as Article 18 (prohibition of bondage andservitude) and Article 28 (the right of workers to organise and to bargain collectively) canbe directly applied in relations between private persons. As a rule, however, there is no
direct third-party effect of fundamental rights guaranteed under the Constitution, which
may only exceptionally deploy effects in private-law relationships through the generalclauses of the applicable statutes. In the Mitsubishi Jushi case [1973], the Supreme Court
underlined that fundamental rights are by nature and historical origin guaranteedprimarily in relation with the governmental actions of the State and public entities andcannot be applied directly to disputes between private parties. “[I]n the framework of amodern and free society, the regulation of such conflicts is entrusted as a general rule toprivate self-government and the law will intervene to regulate only when the mode andextent of the infringement go beyond the socially acceptable limit.”206 The Supreme Court
recalled that in private-law relationships victims of alleged abuses could use the generalclauses of the Civil Code, such as Articles 1 and 90 which provide general limitation on
private autonomy, to obtain compensation or injunctions.
Japan has ratified most major human rights conventions such as International Covenant
on Civil and Political Rights (ICCPR), the International Covenant on Social, Economic
and Cultural Rights (ICSECR), the International Convention on Elimination of all formsof Racial Discrimination (CERD); the Convention on the Elimination of all forms ofDiscrimination against Women (CEDAW); the Convention on the Rights of the Child(CRC) and Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict; the Optional Protocol to the Convention on
the Rights of the Child on the Sale of children, Child Prostitution and Child Pornography,
and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment. However, it is not a party to any of the optional protocols which enable
individuals to communicate human rights violations to the UN bodies.
There are no statutes specifically dealing with human rights. Respect for human rights isensured through the provisions of general statutes, covering matters such as employees’“We believe that no nation is responsible to itself alone, but the laws of political morality are
universal; and that obedience to such laws is incumbent upon all nations who would sustain theirown sovereignty and justify their sovereign relationship with other nations.”
205

206

Judgment of 12 December 1973, 1968(O) No. 932; The English translation is taken from<http://www.courts.go.jp/english/judgments/text/1973.12.12-1968-O-No.932.html>.

51rights, women’s and children’s rights, consumer protection and environment as well as
data protection, health and safety matters. One of the major domestic laws in the field, the‘Equal Employment Opportunity Act’ of 1985 requires the adoption of specific policies
relating to women’s working conditions and prohibits discrimination against women,
including discrimination in promotion, education, or retirement age. The Equal‘Employment Opportunity Law’ was revised (effective as of April 2007) to prohibit
discrimination based on gender at any stage of employment, including indirectdiscrimination or detrimental treatment due to facts such as pregnancy and childbirth.
The level of compliance and enforcement of the relevant provisions appears to begenerally high. However, in the absence of specific procedures, a victim of human rights
abuses can seek redress only when such abuses constitute a criminal offences or a breachof a specific statutory provision.207
The Ministry of Foreign Affairs is primarily in charge of international human rights
protection, while domestic human rights protection is principally within the remit of the
Ministry of Justice (‘Human Rights Bureau’ and related agencies). 208 It also appoints
private citizens as human rights volunteers (about 14,000 people), who carry out various
activities to promote human rights protection, such as presenting lectures or conducting
counselling on human rights issues.
Japan has not yet established an independent national human rights institution in line with
the Paris Principles. 209 In 2002, the government made a first attempt to introduce a‘Human Rights Protection Bill’ to cope with human rights complaints. However, having
been severely criticised by the media and academics, the Bill was withdrawn in 2003.
The Ministry of Justice continues to review the contents of the Bill, which is expected toprovide for the establishment of a human rights committee as an independentadministrative committee of the State and also for the creation of a remedial system for
infringements of human rights which is to be operated by the Committee.210
As to the status of human rights treaties under national law, they are superior to statutes
but inferior to the Constitution.211 The Japanese government informed the UN Human
Rights Committee that treaties have legal effect as part of its internal law in accordancewith Article 98 § 2 of the Constitution. Whether or not to apply directly provisions oftreaties is determined in each specific situation, taking into consideration the purpose,

Taro Tsunoda, Anderson Mori & Tomotsune ‘Global Business and Human Rights – Japan’ (18March 2011), at <http://www.europeanlawyer.co.uk/referencebooks_26_496.html>
207

208

See <http://www.moj.go.jp/ENGLISH/issues/issues07.html>.

‘Principles relating to the Status of National Institutions’, adopted by General Assembly
resolution 48/134 of 20 December 1993.
209

210
211

See <http://www.moj.go.jp/JINKEN/jinken03_00062.html>.

See Y. Iwasawa, International Law, Human Rights, and Japanese Law. The Impact ofInternational Law on Japanese Law (Clarendon Press Oxford 1998), 28 et seq.; A. Ejima‘Simultaneous Codification of the Constitution of Japan and the International Human Rights
Treaty’ Journal of Law and Politics (Tokyo University) forthcoming.

52
meaning and wording of the provisions concerned. 212 Self-executing treaties can beapplied without the necessity of first enacting implementing legislation. Despite a general
willingness to apply international treaties domestically, 213 courts have occasionallyrefused to consider provisions of human rights treaties to be self-executing. For example,
the Osaka High Court held in 1984 that the ICSECR could not be applied domestically inthe absence of implementing legislation.214
In general, the practice of national courts using or referring to international human rights
treaties appears to be rather limited. The case-law of UN Human Rights Committee(views and general comments) is sometimes invoked by parties, but not systematicallyused by courts.215 In a judgment of 2 March 1993, the Supreme Court refused to take into
account the interpretation of the Committee regarding the right to strike of public
officials under Article 3 of the ICSECR.216
Akiko Ejima gives several reasons to explain the reluctance of national courts to refer tointernational human rights law.217 Firstly, whenever the Constitution protects the same
human rights, a reference to international treaties will be unnecessary in the eyes of many
judges. Secondly, domestic judges are less familiar with international human rights
standards, also due to the rather limited case-law by UN bodies. Thirdly, judges may
expose themselves to criticism of usurping the role of legislators by finding statutes
incompatible with international treaties. Finally, a violation of a treaty is not considered avalid reason to appeal to the Supreme Court.218
The Supreme Court has rather consistently denied the existence of violations of humanrights treaties.219 A good example is a case about the right of access to court (Article 32of the Constitution). The plaintiff, a prisoner, sued a prison warden because of illtreatment by the prison officers, claiming that his right of access to court was denied
because the head of the prison restricted the meeting time with his lawyer, and all the212

Fourth periodic report submitted by Japan, CCPR/C/115/Add.3 (1 October 1997), para. 9;
Annex II contains information about court decisions.
K. Port ‘The Japanese International Law “Revolution”: International Human Rights Law and
Its Impact in Japan’ Stanford Journal of Int’l L. 28 (1991), at 136; Y. Iwasawa ‘Legal Treatment
of Koreans in Japan: The Impact of International Human Rights Law on Japanese Law’ Human
Rights Quarterly 8 (1986), at 136.
213

214

Judgment of 19 December 1984, Osaka Kōsai [High Court], 1145 Hanrei Jihou 3.

215

Tsunoda, Anderson Mori & Tomotsune above note 207. Other examples for the reluctance ofthe courts to find violations of international human rights law are given by Iwasawa above note
211, at 299-303.
Judgment of 2 March 1993, Roudou-hanrei no. 629; see H. Tateishi ‘L’impact du droit
international sur la Constitution japonaise : du point de vue de la protection des droits del’homme’ Hogaku-Shirin Review of Law and Political Sciences 109 (2012) No 762, 22.
216

217

Ejima above note 211; see also Iwasawa above note 211, at 303-306, who explains thisreluctance as a reflection of the judicial restraint generally exercised by Japanese courts.
218

See also Tateishi above note 216, at 18.

219

Tateishi above note 216, at 18 et seq.

53
meetings were supervised by prison officers. While the local district court and the highcourt awarded compensation, referring to the ICCPR and ECHR case-law (particularly
the Golder and Silver cases), the Supreme Court found no violation of the ICCPR without
explanation.220
There are few exceptions to this general trend. In 2008, the Supreme Court referred to the
ICCPR and Convention on the Rights of the Child (CRC) as well as legislative trends inother countries in a case where the constitutionality of certain provisions of the
Nationality Act was questioned because Japanese nationality was denied to a child bornby Japanese father and a non-Japanese mother, who were not legally married:“In addition, it seems that other states are moving towards scrapping
discriminatory treatment by law against children born out of wedlock, and in fact,
the International Covenant on Civil and Political Rights and the Convention on
the Rights of the Child, which Japan has ratified, also contain such provisions to
the effect that children shall not be subject to discrimination of any kind becauseof birth. Furthermore, after the provision of Article 3, para.1 of the Nationality
Act was established, many states that had previously required legitimation for
granting nationality to children born out of wedlock to fathers who are theircitizens have revised their laws in order to grant nationality if, and without anyother requirement, it is found that the father-child relationship with their citizens
is established as a result of acknowledgement.”221
This was the first time that the Supreme Court interpreted the Constitution in the light ofinternational human rights standards and only the eighth time since 1947 that it found alegislative provision to be unconstitutional.222
In light of the existing case-law, it appears rather unlikely that national courts will be
prepared to use either constitutional fundamental rights or international human rights
directly in cases brought by individuals against business enterprises. As a rule, they will
limit themselves to apply the ordinary legislation applicable to corporations. Thislegislation does not provide specifically for the civil or criminal liability of corporationsor their directors for human rights abuses other than through the general provisions ofcivil and criminal law.223

Conclusion
In Japan, the situation is in a number of respects different from that in Europe. The
Fujitsu Research Institute underlined that CSR in Japan is “industry-driven”, as opposed
220

Supreme Court, first bench, 7 September 2000, 199 Shumin 283; see also Supreme Court,
Grand Bench 24 March 1999, 53 Minshu 514 on communication of a suspect with lawyer during
pre-trial detention. See generally on the impact of international human rights law on detention in
Japan Iwasawa above note 211, at 249-287.
221

Supreme Court, grand bench, 4 June 2008, 62 Minshu 1367. Emphasises are added by theauthor.
222

Tateishi above note 216, at 22.

223

See Cotty Vivant Marchisio & Lauzeral above note 186, at 14-15.

54
to EU countries where it is “policy-driven” or to the United States where CSR is more
“market-driven” (pressure of investors and shareholders). 224 Certain characteristics ofJapanese management style such as carefully codified work standards and emphasis on
harmonious relations among employees and workers have been conducive to theintroduction of CSR policies. CSR policy and practice are highly developed, in particularin major corporations, whereas small and medium-sized enterprises have so far been lessinvolved. As more attention focuses on CSR activities, there will be increasing
opportunities to share these experiences with companies worldwide, in particular in Asia.
The link between corporate governance and CSR will have to be developed further, a link
which is being emphasised in particular in Japan.225
At the same time, one must be aware that the contents of CSR reports may not always
accurately reflect the reality. 226 Existing corporate practices are being questioned.
Kiyoshi Kurokawa, chairman of ‘The Fukushima Nuclear Accident Independent
Investigation Commission’ declared in July 2012:“What must be admitted – very painfully – is that this was a disaster ‘Made inJapan.’ Its fundamental causes are to be found in the ingrained conventions ofJapanese culture: our reflexive obedience; our reluctance to question authority;
our devotion to ‘sticking with the program’; our groupism; and our insularity.”227
Taking the CSR agenda forward and making it a reality on the shop floor may ultimately
bring existing power structures into question. Protecting and respecting human rights is,after all, closely linked to democracy. It ultimately means that individuals will have agreater role in shaping their lives and destinies and gain the dignity that comes fromhaving that power.228 This is a challenge not only for Japan.

224

Cited by Cotty Vivant Marchisio & Lauzeral above note 186, at 22.

A. Zaman ‘Made in Japan—Converging Trends in Corporate Responsibility and Corporate
Governance’Royal Institute of International Affairs, London, 2003. Available at<http://www.riia.org/pdf/research/sdp/MadeInJapan.pdf>.
225

226

Ebashi, Lee & Yang above note 185, at 107.

Message from the Chairman in The National Diet of Japan ‘The official report of the The
Fukushima Nuclear Accident Independent Investigation Commission. Executive summary’,available at <http://naiic.go.jp/wp-content/uploads/2012/07/NAIIC_report_lo_res2.pdf >.
227

J.
Baker
‘The
UN
Guiding
Principles–
Opportunities,
Challenges
One
Year
Later’(19June2012),
at<http://www.ihrb.org/commentary/guest/un-guiding-principles-one-year-later.html>.
228

55

Challenges and opportunities for further action at regional andnational level
The UN framework as a common baseline for future work
The UN framework has been well received by key stakeholder groups, governments,
private sector and NGOs alike. Some see them already as an equivalent of the Universal
Declaration of Human Rights for business.229
From a normative point of view, it may come as a surprise that the Guiding Principles do
not offer any precise legal basis for the responsibility to respect human rights. They
merely affirm that this is a “basic expectation society has of business.”230 The idea seems
to be that human rights are part of the “social licence” within which corporations
operate. 231 This approach has been criticised because it would provide neither anormative basis nor clarity about nature and extent of corporate responsibilities.232 It isargued that the resulting lack of clarity would be exacerbated by the somewhat circularapproach to refer companies to the state-centred human rights standards contained in the
Universal Declaration of Human Rights and other UN instruments, without explaining
what these standards mean in a business environment. In short, the intentional flexibilityof the Guiding Principles has resulted in them not offering concrete guidance tocompanies how to ascertain and fulfil their human rights responsibilities.233
Though there is no shortage of tools and materials, many of which having beendeveloped by the Global Compact and its partners,234 that seek to provide guidance tobusiness on how to implement international human rights standards, it is true that the
Guiding Principles themselves do not tell business enterprises in much detail what they
are expected to do. They do not give concrete examples of “adverse human rights
impacts”, nor do they differentiate between the different spheres of influence of anenterprise (such as the company and its employees, relations with suppliers and
J. Kallman & M. Mohan ‘Reality Check: Just Tell It Like It Is’ Forbes Indonesia (August2011), 37.
229

230

Protect, Respect and Remedy: a Framework for Business and Human Rights, A/HRC/8/5(2008), para. 9; Guiding Principles, A/HRC/17/31 (2011), para. 6.
L. Catá Backer ‘The United Nations’ “Protect-Respect-Remedy” Project: Operationalizing a
Global Human Rights Based Framework for the Regulation of Transnational Corporations’,
Conference Paper, Symposium: Corporations and International Law, Santa Clara University, 12–
13 March 2010, at 45, available at <http://law.scu.edu/corplaw/file/Santa-Clara-SymposiumLarry-Cata-Backer-Paper-Draft.pdf>.
231

232

Deva above note 146, at 104.

233

Deva above note 146, at 105.

234

There are, however, numerous publications that attempt to do exactly that, see for example
UNGC/OHCHR/IBLF/Castan Centre for Human Rights Law Human Rights Translated – A
Business Reference Guide (2008); UNGC/BLIHR/OHCHR A Guide for Integrating Human
Rights into Business Management (2nd Edition 2009); These and other materials are available at<http://www.unglobalcompact.org/AboutTheGC/tools_resources/humanrights.html>.

56
consumers, the wider community). The SRSG addressed the concept of ‘spheres ofinfluence’ in a separate report. 235 While acknowledging that it remains “a useful
metaphor for companies in thinking about their human rights impacts beyond theworkplace”, the SRSG preferred to concentrate on “the potential and actual human rights
impacts resulting from a company’s business activities and the relationships connected tothose activities” which cannot be adequately determined by reference to the vague andsometimes misleading concept of influence.236 ‘Spheres of influence’ may indeed not be
in itself a sufficiently precise notion. Yet, the idea to distinguish human rights impacts
according to spheres can be helpful when establishing more precise due diligencestandards in respect of individual rights. Information rights for company employees forexample will differ from those for the public at large.
More importantly, however, criticism of the sometimes abstract and vague character of
the Guiding Principles misses a main point. The Guiding Principles are not intended to be
a comprehensive and definitive statement of all relevant human rights standards thatbusiness enterprises should observe in their operations. They remain necessarily basic
and universal, a “common foundation from which thinking and action of all stakeholders
would generate cumulative progress over time.” 237 The Guiding Principles havedeliberately adopted an approach entirely different from the Draft Norms on the
Responsibilities of Transnational Corporations. Instead of extending to companies
essentially the entire range of State obligations, with some adaptations through the use ofconcepts such as “primary” versus “secondary” obligations and “corporate sphere of
influence”, the Guiding Principles seek to define the specific responsibilities ofcompanies with regard to all rights. 238 The SRSG did not intend to create newinternational law obligations, but rather to elaborate “the implications of existing
standards and practices for States and businesses, integrating them within a single,
logically coherent and comprehensive template; and identifying where the current regime
falls short and how it should be improved.”239 Seeking global acceptance for such an
approach necessarily presupposed a certain measure of pragmatism and abstractness.
The Guiding Principles have achieved a result which seemed impossible only a few years
ago: a worldwide consensus among all stakeholders on a series of key principles relating
to corporate responsibility to respect human rights. Their importance must be measured
by their impact on other organisations and institutions, by their influence on public andcorporate policy.
Several major international organisations and institutions, such as the OECD, ISO, IFC,
FAO and the EU, have already recognised them as a basis for the development of their
Clarifying the Concepts of “Sphere of influence” and “Complicity”, Companion report,
A/HRC/8/16 (2008).
235

236

Protect, Respect and Remedy: a Framework for Business and Human Rights, A/HRC/8/5(2008), paras. 65-72.
237

Ruggie above note 153, at 178.

238

A/HRC/8/5 (2008), para. 51.

239

Ibid, para. 14.

57
own business and human rights policies and standards. A number of individual
governments use them in conducting their own policy assessments, major global
corporations are realigning their due diligence processes based on them and civil society
actors employ them in their analytical and advocacy work. The Guiding Principles are thecommon reference point for further action at regional and national level. They offer asound basis for new initiatives to give flesh to the often rather vague principles contained
therein.

Complementary action by OECD and ISO
ISO and OECD have already aligned with the UN framework. As regards scope andsubstance, their standards have so far added little flesh to the rather abstract Guiding
Principles. On due diligence, human rights risk situations, avoidance of complicity andresolving grievances, the “actions and expectations” contained in ISO 26000:2010 are
almost identical to the language used in the Guiding Principles. On the remaining parts(discrimination and vulnerable groups; civil and political rights; economic, social andcultural rights; fundamental principles and rights at work), ISO 26000:2010 recalls theexisting international standards without adding further specifications.
An assessment of the impact of the ISO standard is extremely difficult, if not impossible,
because the ISO 26000:2010 includes no tools for such an assessment.240 There are someorganisations offering to assess the implementation level of the ISO 26000 for privatecompanies. 241 Internet webpages such as ‘26k-estimation.com’ offer self-assessment
tools.242 None of these tools or services seems, however, to include publication of suchassessments.
The OECD presented its own updated Guidelines as a blueprint for “a new, tougher
process for complaints and mediation.” 243 According to the Guidelines’ preface, “thecountries adhering to the Guidelines make a binding commitment to implement them inaccordance with the ‘Decision of the OECD Council on the Guidelines for Multinational
Enterprises’.244 This statement appears to overstate the binding nature of the Guidelines.
They are recommendations addressed by governments to MNEs, providing, as the official
OECD publication indicates itself, only “non-binding principles and standards for
240

See
assmt>.

<http://www.26k-estimation.com/html/iso_26000_self-assessment.html#e-i6-

241

See
e.g.
the
RINA
Group,
at<http://www.rina.it/en/categorie_servizi/verifiche_isp_audit/servizi/assessment_iso26000.aspx>; Ecocert <http://www.ecocert.com/en/iso-26000>; GoodCorporation, at<http://www.goodcorporation.com/products-iso-26000-assessment.php >.
242

Available at <http://www.26k-estimation.com/html/iso_26000_self-assessment.html>.

243

See OECD Press Release ‘New OECD Guidelines to Protect Human Rights and Social

Development’,at<http://www.oecd.org/document/19/0,3746,en_21571361_44315115_48029523_1_1_1_1,00.htm
l>.
244

OECD Guidelines, above note 151, at 13 para. 1.

58
responsible business conduct.” 245 Ultimately compliance with the Guidelines remains
voluntary. They are encouragement for business enterprises, no legally binding
requirements. There is still no enforcement procedure even for those companies thatchoose to abide by the Guidelines and are found to have violated them.
Compared to the UN’s framework, the OECD Guidelines’ human rights provisions do
not provide much additional guidance as to what exactly is expected from businessenterprises. They are neither more concrete nor more substantial, repeating in almost
identical language the SRSG’s ‘Protect, Respect and Remedy’ framework. The major
improvement of the 2011 revision is the more substantial guidance given to NCP
procedures and the reinforced role of NGOs in them. The updated OECD Guidelines holdpromises for the future, but the real test of their efficiency will lie in the practical use of
the Guidelines’ implementation mechanism.
In May 2012, 42 out of the 43 adhering States and the European Commission had
designated NCPs.246 Their status varies. While most are government departments (28),some have mixed structures including representatives of business and trade unions andtwo (the Netherlands or Norway) include independent experts.247 The NCP mechanism
has witnessed an increase in specific instances. The Chair’s report of the 11th Annual
Meeting of the NCPs summarised the information about their number and issues raised asfollows:“The third major development is the sharp rise in the number of specific instances
raised. 396 new specific instances were raised, more than double the number of
specific instances raised in the 2009-2010 implementation period. A total of ten
Final Statements, in addition to one revised Final Statement, were issued. With 39
new specific instances raised, the total number of instances raised since the 2000
Review exceeds the 250 mark. Of these, 178 have been accepted for considerationand 156 have been concluded or closed. A majority of new specific instances forwhich location information was available were raised in non-adhering countries.
Additionally, half of concluded specific instances for this reporting period
concerned specific instances in non-adhering countries. Furthermore, a majorityof the new specific instances continue to relate to employment and industrial
relations under Chapter V of the Guidelines. A growing number involves humanrights, as well as environmental issues covered by Chapter VI and bribery issues
covered by Chapter VII.”248
Current procedures do not require NCPs to deliver final statements concerning every
complaint made.249 The new provisions on the Guidelines’ Implementation Procedures
remain recommendations. NCPs are not obliged to make a decision of whether or not the245

Ibid., 3.

246

Full list dated July 2012 available at <http://www.oecd.org/dataoecd/17/44/1900962.pdf>.

247

Annual Report 2011, above note 200, at 20; see also Copenhagen conference report, above
note 169, at 17.
248

Annual Report 2011, above note 200, at 14.

249

Commentary, paras. 25-37. See also OECD Watch Statement, above note 159, at 4.

59
Guidelines have actually been violated. OECD Watch noted the “update’s failure toclarify the NCP’s role in making determinations on the observance of the Guidelines
when mediation has failed.”250 Other commentators have deplored the high number of
unenforced decisions.251 At the same time, it should be noted that nothing prevents NCPs
from issuing assessments of business behaviour (‘determinations’) even if business isunwilling to enter into mediation and some actually do so.252
Adhering governments to the OECD Guidelines appear to have differing views about theappropriateness of making determinations of whether the Guidelines have been observed
or not in NCP final statements. While the United States remains opposed, arguing thatsuch “practice was difficult to reconcile with a procedure based upon ‘good offices’”,Germany and the United Kingdom expressed the view that making assessments on acompany’s compliance with the Guidelines was necessary in order to make meaningfulrecommendations.253
A major advantage of the NCP mechanism is its flexibility. NCPs are not constrained by
the applicable domestic law when it comes to issues of jurisdiction or corporate
responsibility.254 In a case of bauxite mining in India, the Supreme Court had approved
the contested activities under domestic Indian law. The UK NCP nevertheless found thatthe corporation had failed to respect the rights of the indigenous community “consistent
with India’s commitments under various international instruments, including the UN
International Covenant on Civil and Political Rights, the UN Convention on the
Elimination of All Forms of Racial Discrimination, the Convention on Biological
Diversity and the UN Declaration on the Rights of Indigenous Peoples.” The UK NCP
concluded that the corporation had neither conducted a satisfactory human rights impact
assessment nor properly consulted the indigenous community.255 In another case, it wasalleged that a European corporation had paid taxes to rebel forces in the Democratic
Republic of Congo and practiced insufficient due diligence on the supply chain, sourcing
minerals from mines that used child and forced labour under unacceptable health andsafety conditions. Although the European corporation did not actively operate itself inCongo, the UK NCP found it in violation of the OECD Guidelines because it had not

250

OECD Watch Statement, above note 159, at 4.

See e.g. L. Catá Backer ‘Rights and Accountability in Development (Raid) V Das Air (July 21,2008) And Global Witness V Afrimex (August 28, 2008); Small Steps Toward an Autonomous
Transnational Legal System for the Regulation of Multinational Corporations’ Melbourne
University Law Review 10 (2009), 258.
251

252

Statements by representatives of Germany and the UK reported in Annual Report 2011, above
note 201, 42; see also Copenhagen conference report, at 17.
253

Annual Report 2011, above note 200, at 42.

254

Edinburgh report, above note 4, para. 150.

255

UK NCP Final Statement - Complaint from Survival International against Vedenta Resources
plc [2009], available at <http://www.bis.gov.uk/nationalcontactpoint/cases>.

60
taken steps to influence its supply chain and to explore options how minerals could besourced from mines that do not use child or forced labour.256
The major weakness of the OECD Guidelines remains their unenforceability. The NCP
mechanism does not provide an effective remedy for victims of human rights abuses. The
outcome of procedures depends on the voluntary cooperation of the company that isalleged to have harmed rights in the first place.257 In the abovementioned example of the
Indian bauxite mining case, the NCP’s follow-up statement contains little indication thatthe corporation will actually implement the NCP’s recommendations.258
Jernej Letnar Černič has made three proposals to improve the system:259 transforming thecurrent NCPs mechanism into a quasi-legal employment tribunal; 260 creating an
independent and impartial supervisory mechanism and/or establishing the role of an
ombudsperson who would represent the public interest by investigating and addressing
complaints against the work of respective NCPs.

The implementation gap
When it comes to the implementation of the now universally agreed principles ofcorporate responsibility to respect human rights, we are facing a ‘compliance gap’ as well
as a ‘governance gap’. 261 The SRSG rightly stressed that the adoption of the Guiding
Principles was only “the end of the beginning.”262 In the final analysis, the UN Guiding
Principles will be worth as much as their implementation which will have to involve all
stakeholders, governments, businesses, and civil society.
“The Guiding Principles are not intended as a tool kit, simply to be taken off the
shelf and plugged in. While the Principles themselves are universally applicable,
the means by which they are realized will reflect the fact that we live in a world of
192 United Nations Member States, 80,000 transnational enterprises, 10 times as
many subsidiaries and countless millions of national firms, most of which are

256

UK NCP Final Statement - Complaint from Global Witness against Afrimex (UK) Ltd [2008].

257

See comments by Amnesty International in Edinburgh report, above note 4, at 78.

See UK NCP ‘Vedanta Follow-Up Statement’, above note 256; see also the Amnesty
International report ‘Don’t mine us out of existence: Bauxite mine and refinery devastate lives inIndia’ (20 January 2010).
258

259

Černič above note 11.

See the proposal submitted by Tim Steinweg & Joris Oldenziel ‘By Invitation: The OECD
Guidelines for Multinational Enterprises: A Modest Proposal’ (7 August 2007),<http://www.ethicalcorp.com/content.asp?ContentID=5299>.
260

261

Copenhagen conference report, above note 169, at 22.

Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework, A/HRC/17/31, 2011, para. 13.
262

61
small and medium sized enterprises. When it comes to means for implementation,
therefore, one size does not fit all.”263
The UN framework does not prescribe any particular method of implementation whichneeds to be embedded in specific international, regional and national contexts. It calls fora differentiated approach, the risk pictures for example of extractive companies being
quite different from pharmaceutical corporations. While the Guiding Principles as such
do not create new standards, their implementation may lead to the adoption of new
standards, corporate, legal or otherwise.
Despite action already taken by the OECD and ISO, a lot remains to be done to use thefull potential of the UN framework. The 2011 Update of the OECD Guidelines is an
important step in the right direction, but its NCP mechanism is still a far cry from an
independent forum to effectively respond to corporate human rights abuses. It is not a
remedy for victims, but merely a means to raise alleged breaches of the Guidelines. The
relationship between the NCP mechanism and judicial proceedings calls for further
clarifications.264 The issue of effective remedies capable of providing redress for humanrights abuses remains crucial. In too many countries, the obstacles for victims to taketheir complaints to court remain high.265
While many enterprises have already adopted voluntarily human rights policy statements,
and codes of conduct,266 a lot remains to be done to ensure that human rights become areality in the business world. It may sometimes be difficult “to distinguish the lip service
paid to ethical corporate conduct from more genuine, deeply embedded institutional
commitments. But it is clear that consumers’ and investors’ expectations of ethicalbusiness conduct are rising.”267 Unilateral commitments by business should be matchedby the introduction of systematic human rights impact assessment in the project
management process. Coupled with regular reporting, not only for zones of conflict or
weak governance, but as a matter of principle, this would be a major step towards
establishing human rights protection as a core business concern. For both impact
assessment and reporting however, more guidance is needed, in particular on therequirements of corporate due diligence as well as on other areas left so far largely
undetermined by the existing frameworks, such as the responsibility of parent companies
regarding their subsidiaries and supply chain, contract law, the role of financial actors
263

Report of the Special Representative of the Secretary-General on the issue of human rights andtransnational corporations and other business enterprises, A/HRC/17/31 (2011), para. 15, at<http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21mar-2011.pdf>.
264

Discussions among NCPs are already underway, see Annual Report 2011, above note 200, 41.

M Taylor ‘A Glass Filling Up - Reflections on the first year anniversary of the UN Guiding
Principles
on
Businessand
Human
Rights’(18June2012),
at<http://www.ihrb.org/commentary/guest/a-glass-filling-up.html>.
265

266

See Business and Human Rights Resource Centre, Company Policy Statements on Human
Rights, <http://www.business-humanrights.org/Documents/Policies>.
F. Stevelman ‘Globalization and Corporate Social Responsibility: Challenges for the Academy,
Future Lawyers, and Corporate Law’ New York Law School Law Review 53 (2008/2009), at 829.
267

62
and institutions. Apart from business practices, the issue of access to justice for victims
requires more attention, in particular as far as the civil and criminal liability ofcorporations is concerned.

Human rights due diligence
According to the SRSG, human rights due diligence comprises four components:“a statement of policy articulating the company’s commitment to respect humanrights; periodic assessment of actual and potential human rights impacts ofcompany activities and relationships; integrating these commitments andassessments into internal control and oversight systems; and tracking andreporting performance. Company-level grievance mechanisms perform twofunctions: under the tracking and reporting component of due diligence, they
provide the company with feedback that helps identify risks and avoid escalationof disputes; they can also provide remedy … Each of these components isessential. Without them, a company cannot know and show that it is meeting its
responsibility to respect rights.”268
Operationalising this concept faces a certain dilemma in that companies may well bewilling to gather critical information to anticipate problems and avoid liability, but notnecessarily for the benefit of third parties who could use this information in actions
against the company.269 Compliance with due diligence requirements should not be seen
as an exercise in ‘good PR’. Taken seriously, it has the potential to benefit more than abusiness’s public image with advantages for all stakeholders that outweigh the risks of
exposure to litigation.270
How many companies are actually practicing human rights due diligence? According to
the Global Compact’s Annual Review 2011, less than 20% of the participating companies
carry out human rights impact assessments.271 Companies that face significant scrutiny
from civil society organisations are more likely to take on due diligence procedures toprotect their reputation and business. 272 Where they exist, business practices varyconsiderably, in part because ‘due diligence’ is a new, not yet fully developed, concept
which has only been around since 2008,273 and also because one size does not fit all.

268

A/HRC/14/27, para. 83.

See John F. Sherman III & Amy K. Lehr ‘Human Rights Due Diligence: Is It Too Risky?’ The
CSR Journal 6 (January 2010) (a publication of the ABA Section of International Law).
269

270

Catá Backer above note 231, 53

271

UN Global Compact Annual Review 2011, above note #, at 14 (‘Human Rights Actions’).

272

N. Janz ‘Human Rights Obligations of Multinational Corporations in Developing Countries:
What drives CSR?’ The 14th Annual European Business Ethics Network Conference (April 2010),
101, at <http://www.eben-uk.org/downloads/eben-uk-2010-proceedings.pdf#page=88>.
‘Business Ethics’, Business and Human Rights Interview with John Ruggie, at<http://business-ethics.com/2011/10/30/8127-un-principles-on-business-and-human-rightsinterview-with-john-ruggie/>.
273

63
Due diligence calls for a differentiating, sector and context specific approach. What isrelevant for extractive industries may be of less importance for companies in the financial
services, media or transport. Companies operating in countries with weak governance
where corruption is rampant may be expected to implement ‘enhanced due diligence’measures as a cost of doing business in such countries.274 These could include supporting
efforts to strengthen local government, seeking to ensure that resources are allocatedfairly within the company’s area of operations and being transparent about tax androyalty payments. 275 Alternatively, for companies operating in countries where labour
standards are low, it is important to advocate and support improvements in the businessenvironment and to use affirmative action in recruitment.276 Generally, due diligence is
described as an on-going process, 277 entailing both an investigative and evaluative
component278 and including measures such as reporting (internal and/or external), impact
assessments, stakeholder consultations and transparency, among many others.279
The European Commission has already started to develop sector-specific guidance
relating to oil and gas, employment and recruitment agencies as well as information andcommunication industries (ICT). A draft guide for small and medium-sized enterprises(SMEs) on human rights has already been made available for public consultation until 26
September 2012.280 Since this guidance is being developed with European business in
mind, ECHR standards should be taken into account. In particular when the ECtHR
reviews domestic court decisions in private law disputes between individuals andcompanies, it has developed principles that are directly relevant for business enterprises,
for example regarding the conciliation of certain competing human rights (e.g. privacy
and media freedom).281

Institute for Human Rights and Business ‘From Red to Green Flags: The corporate
responsibility to respect human rights in high-risk countries’ (2011), 5, at<http://www.ihrb.org/pdf/from_red_to_green_flags/complete_report.pdf>.
274

275

Ibid, at 9.

276

Ibid, at 10.

277

Ibid.

M. Taylor, L. Zandvliet & M. Forouhar ‘Due Diligence for Human Rights: A Risk-BasedApproach’ Corporate Social Responsibility Initiative Working Paper No. 53 (October 2009), 3, at<http://www.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_53_taylor_etal.pdf>.
278

Ibid., at 13-16. See also the project ‘Human Rights Due Diligence: Developing a Global
Standard and Building Domestic and Regional Accountability Frameworks’ initiated by theInternational Corporate Accountability Roundtable (ICAR), the European Coalition for Corporate
Justice (ECCJ) and the Canadian Network on Corporate Accountability (CNCA), information
available at <http://accountabilityroundtable.org/campaigns/human-rights-due-diligence/>.
279

280

Availableat
csr.com/fileadmin/Our_Approach/120823_Full_Guide_SMEs_Draft.pdf>.
281

See text accompanying notes 52 et seq.

<http://www.global-

64
The SRSG closely associates due diligence with internal grievance mechanisms.
Interestingly, he imports traditional rule of law (Rechtsstaat) notions to ensure processlegitimacy:282“legitimacy, accessibility, predictability, equitability, rights-compatibility andtransparency. A seventh principle specifically for company-level mechanisms isthat they should operate through dialogue and engagement rather than thecompany itself acting as adjudicator.”283
As on many other questions, the devil is in the detail. Translating these principles into thereality of individual company-based grievance mechanisms will require further
elaboration.

Transparency
The SRSG underlined repeatedly the importance of reporting. “Encouraging or requiring
corporations to report on their human rights policies and impacts enables shareholders
and other stakeholders to better engage with business, assess risk and compare
performance within and across industries. It also helps corporations to integrate humanrights and environmental protection as core business concerns.” 284 Nevertheless, the
SRSG’s corporate law project has shown that while financial reporting is generally
tightly regulated, human rights‐related risks are generally not considered ‘material’ forthe purposes of such reporting. 285 Writing about the situation in the United States ofAmerica, Faith Stevelman observed in 2009, “[t]o this day, the SEC’s scheme ofmandatory reporting allows companies to omit most of the information about its politicaland charitable expenditures and its compliance history regarding workers’ safety,
consumer safety, and adherence to environmental standards. In most instances, only ifgross problems develop in these areas, or if the problems yield large-scale litigation or
penalties, is disclosure required.”286
Despite initiatives in several jurisdictions, 287 no consistent patterns for human rights
impact reporting have emerged. Governmental policies on CSR reporting, including

L. Catá Backer ‘On the Evolution of the United Nations’ “Protect-Respect-Remedy” Project:
The State, the Corporation and Human Rights in a Global Governance Context’ Santa Clara
Journal of International Law 9 (2010), at 138.
282

283

A/HRC/14/27 (2010), para. 94; see also A/HRC/8/5 (2008), para. 99.

Business and Human Rights: Further steps toward the operationalisation of the “protect,respect and remedy” framework, A/HRC/14/27 (2010), para. 36.
284

Ibid, at para 38; see further the SRSG’s Corporate Law Tools Project, at<http://www.businesshumanrights.org/SpecialRepPortal/Home/CorporateLawTools>.
285

286

287

Stevelman, above note 267, at 850-851.

See the examples given by R. Mares ‘Business and Human Rights After Ruggie: Foundations,
the Art of Simplification and the Imperative of Cumulative Progress’ in R Mares (ed.) The UN
Guiding Principles on Business and Human Rights – Foundations and Implementation (Martinus
Nijhoff Publishers Leiden, Boston 2012), at 11-12.

65
human rights, vary widely. 288 Legislation, unilaterally enacted in particularly powerfuljurisdictions, may be imposed on businesses worldwide. Compliance with such standards
generates important costs for those companies. As long as they have regular contractual
relationships with clients in the jurisdiction that has enacted the transparency legislationin question, they will be under pressure to comply, possibly having to seek advice fromlawyers and consultants from exactly this jurisdiction. It is therefore crucial that any such
legislation be agreed in a transparent and truly inclusive stakeholder process, referring, as
far as possible, to internationally agreed standards.
A pertinent example is the United States’ ‘Dodd–Frank Act’ (2010),289 which includes aprovision - section 1502 – aimed at stopping the national army and rebel groups in the
Democratic Republic of Congo (DRC) from illegally using profits from the minerals
trade to fund their fight. The legislation has been described as one of the first examples
where a country developed binding legislation pertaining to human rights due
diligence. 290 Adoption of an overdue 291 rule of implementation by the Securities andExchange Commission (SEC) on 22 August 2012292 was closely followed by businessenterprises all over the world. Companies are required to disclose whether their products
are ‘DRC conflict free’ or not, and to apply due diligence mechanisms in the supply chain
using stringent audit and certification requirements. Under the rule adopted on 22 August
2012, the “due diligence measures must conform to a nationally or internationallyrecognized due diligence framework, such as the due diligence guidance approved by theOrganisation for Economic Co-operation and Development (OECD).”293 Already before
the adoption of the implementing rule, the law affected both the region concerned andbusinesses worldwide, in particular in the electronics and IT sector, which rely on
imported minerals from the region covered by the Act (tin, tantalum, tungsten and gold).
The legislation’s impact is contested and hard to evaluate given the volatile situation in

288

A/HRC/14/27 (2010), at para. 37.

289

Dodd–Frank Wall Street Reform and Consumer Protection Act (2010).

M. Taylor ‘Defining Compliance: Developments in Law and Policy to the Corporate
Accountability Movement, International Corporate Accountability Roundtable’, at<http://accountabilityroundtable.org/analysis-and-updates/defining-compliance-why-recentdevelopments-in-law-and-policy-should-matter-to-the-corporate-accountability-movement/>, at 2.
290

291

Rules on how companies are to report and audit their activities should have been ready byApril 2011, but were only released on 22 August 2012.
‘SEC Adopts Rule for Disclosing Use of Conflict Minerals’ (22 August 2012), at<http://www.sec.gov/news/press/2012/2012-163.htm>. See also the debate before the SEC issued
its detailed rules with diverging submissions asking the SEC to require detailed data, as NGOs
and some institutional investors prefer, or more aggregated data, as the industry argues. All
submissions are available on the SEC website, ‘Specialized Disclosures: Title XV Provisions of
the Dodd-Frank Wall Street Reform and Consumer Protection Act’, at<www.sec.gov/comments/df-title-xv/specialized-disclosures/specialized-disclosures.shtml>.
292

Fact
sheet
‘Disclosing
the
Use
of
Conflict
Minerals’,
at<http://www.sec.gov/news/press/2012/2012-163.htm >. The relevant OECD Recommendation isreferred to in note 161.
293

66
the region. While some welcomed its potential to make a significant impact on the
ground,294 others claim that it has put anywhere between tens of thousands up to 2 million
Congolese miners out of work in the eastern Congo while doing little to improve thesecurity situation. 295 What is certain however, is that its implementation will generate
substantial costs for companies worldwide, which will have to implement traceability
reforms throughout the supply chain, from the mine to final product manufacturing. The
SEC estimated implementation costs to be $71.2 million, while an independent Tulane
University economic impact assessment came up with the figure of $7.93 billion dollars,
almost half of the total cost – $3.4 billion – would be met with in-house company
personnel time, and the rest – $4.5 billion – comprising outflows to third parties for
consulting, IT systems and audits.296

Responsibility of parent companies regarding subsidiaries and contractors
The SRSG recognised that “[t]he worst alleged corporate-related human rights abuses
typically have involved third parties connected to a company’s operations, such as
security forces or suppliers, with the company being accused of complicity in whateveract was committed by that third party. In a number of cases the allegations have included
war crimes and crimes against humanity.”297 However, on the questions of complicity
and business operations in conflict-affected zones or in oppressive States, the UN
Guiding Principles do not provide a principled approach to establish responsibility of thecore company or to avoid complicity.298 The SRSG reports cover existing case-law andlegislation extensively, though in a purely descriptive manner, noting the complexity of
the issues involved and the differences of approach. In 2010, the SRSG noted:

Global Witness ‘The Dodd Frank Act’s Section 1502 on conflict minerals’ (10 August 2011),
at <http://www.globalwitness.org/library/dodd-frank-acts-section-1502-conflict-minerals>.
294

L. Seay ‘What’s Wrong with Dodd-Frank 1502? Conflict Minerals, Civilian Livelihoods, andthe Unintended Consequences of Western Advocacy’ Center for Global Development Working
Paper 284 (January 2012), at <http://www.cgdev.org/content/publications/detail/1425843/>; for amore positive assessment see Global Witness ‘The Dodd Frank Act's Section 1502 on conflictminerals’ (10 August 2011), at <http://www.globalwitness.org/library/dodd-frank-acts-section1502-conflict-minerals>.
295

296

Chris Bayer & Elke de Buhr (Tulane University Law School Payson Center for International
Development) ‘A Critical Analysis of the SEC and NAM Economic Impact Models and the
Proposal of a 3rd Model in View of the Implementation of Section 1502 of the 2010 Dodd-Frank
Wall
StreetReform andConsumerProtection
Act’(October2011), at<http://inec.usip.org/resource/critical-analysis-sec-and-nam-economic-impact-models-andproposal-3rd-model-view-implementa>.
J. Ruggie ‘Engaging Business: Addressing Respect for Human Rights’ Keynote Address to the
U.S. Council for International Business, U.S. Chamber of Commerce, International Organizationof Employers (Atlanta, 25 February 2010) at <www.reports-and-materials.org/Ruggie-keynoteaddress-in-Atlanta-25-Feb-2010.pdf>.
297

298

Mares above note 287, at 35; Deva above note 146, at 108; see also Catá Backer, above note
281, at 149-153.

67“One legal challenge is the attribution of responsibility among members of acorporate group. Many corporate-related human rights violations also violate
existing national civil or criminal law, but applying those provisions to corporategroups can prove extremely complex, even in purely domestic cases. A range oflegal arguments has been advanced in cases involving the responsibility of parent
companies for harm caused by subsidiaries. Some rely on the parent company’s
alleged ‘negligence’ with respect to its subsidiary (primary liability), focusing, forexample, on whether the parent has established key systems or processes, such as
those dealing with hazardous activities. Other arguments invoke ‘complicity’(secondary liability) or the concept of ‘agency’ (vicarious or third party liability),
which are found in both common and civil law jurisdictions. The responsibility ofpartners in joint ventures and other contract-based relationships raises even more
complex questions, though the theory of multi-agency liability has gained traction
in some jurisdictions. In short, far greater clarity is needed regarding the
responsibility of corporate parents and groups for the purposes of remedy.299
This clarity is still missing. To be fair with the SRSG, it must be emphasised that not only
are there no internationally recognised standards, but even within EU member Statescommon rules addressing the issue of corporate criminal liability for subsidiaries
operating as independent legal entities are lacking.300 Certain guidance may, however, bedrawn from international anti-corruption treaties where the UN, OECD and the Councilof Europe Conventions commit Parties to criminalise the participation of parent
corporations in offences committed by their subsidiaries.301
Radu Mares deplores the absence of guidance by the SRSG, arguing that “when policy
pronouncements endorsing Ruggie’s RtR [responsibility to respect] reach the ground, theRtR becomes atomised in the RtR of separated companies with no imperative on the corecompany to oversee and influence affiliates.”302 At the same time, he notes that the issue
may be brought back to the forefront on a voluntary basis through multi-stakeholder,public-private governance arrangements, for example in the case of supply chains.

Business and Human Rights: Further steps toward the operationalization of the “protect,respect and remedy” framework, A/HRC/14/27 (2010), paras. 105–106.
299

300

Edinburgh report, above note 4, para. 180.

301

Pursuant to Article 27 § 1 UN Convention, “[e]ach State Party shall adopt such legislative andother measures as may be necessary to establish as a criminal offence, in accordance with its
domestic law, participation in any capacity such as an accomplice, assistant or investigator in an
offence established in accordance with this Convention.” Pursuant to Article 1 § 2 OECD
Convention, “[e]ach State Party shall take any measures necessary to establish that complicity in,including incitement, aiding and abetting, or authorisation of an act of bribery of a foreign public
official shall be a criminal offence.” Pursuant to Article 15 of the Council of Europe Convention,“[e]ach Party shall adopt such legislative and other measures as may be necessary to establish as
criminal offences under its domestic law aiding or abetting the commission of any of the criminal
offences established in accordance with this Convention.”
302

Mares above note 287, at 36.

68

Supply chain issues
A major concern is the responsibility for workers’ rights throughout the supply chain.
Some progress has been made, but stories continue303 about resort to sweatshop practices
in factories producing for famous global brands. A seminar convened by the SRSG
identified some elements of a more comprehensive strategy including empowering
workers, building the capacity of suppliers, changing policies and practices of buyers,and building the capacity of labour inspectorates.304
Regarding rights violations in the value chain, some pressure can be brought by boycotts,
such as the ‘Kimberley Process’, a joint governments, industry and civil society initiative
to prevent conflict diamonds from reaching international markets.305 The impact of such
schemes should, however, not be overestimated. It seems that the ‘Kimberly Process’
influenced only marginally the outcome of conflicts in Angola, Sierra Leone or
Liberia.306 More importantly, traceability schemes work well in relatively strong Stateswith functioning institutions, while their implementation faces serious difficulties inzones of conflict and weak governance. Concerted approaches involving all stakeholders
in the countries concerned are likely to have more chances of success. One example citedin this context is Indonesia, where labour unions, major supplier factories and key
sportswear brands have agreed to guarantee freedom to form unions and bargain
collectively.307
Business itself can make a major contribution by translating the responsibility to respect
into concrete due diligence and reporting duties of suppliers and distributers which are
made binding through their contractual relations, contract law being another importantarea for the development of further guidance.

Contract law308
Contract law has a great potential as a vehicle to promote and implement human rights
standards in the private sphere. The SRSG himself emphasised the importance of303

See Mares, ibid., at 37 with further references. Recent examples include Zara (‘Fashion chain
Zara acts on Brazil sweatshop conditions’, BBC 18 August 2011, <www.bbc.co.uk/news/worldlatin-america-14570564>) and Samsung being accused to use child labour in China (Le Monde
10 August 2012, <http://mobile.lemonde.fr/asie-pacifique/article/2012/08/10/samsung-accuse-defaire-travailler-des-enfants-en-chine_1744710_3216.html>.
304

See <http://www.kimberleyprocess.com/>.

305

Summary of five multi-stakeholder consultations, Addendum 1 to the Report,
A/HRC/8/5/Add.1 (2008), at para. 246.
306

Seay above note 295, at 22-23.

O.Tudor ‘Adidas, Nike and Puma sign up with unions on Indonesian textile worker rights’,Blog, 7 June 2011. The text of the signed Freedom of Association Protocol is available at <playfair.org/media/wp-content/uploads/FOA-Protocol_English-translation_May-20112.pdf>.
307

308

See Mares above note 287, 17-19.

69
contracts incorporating CSR provisions. 309 Several different types of contract can be
distinguished, some of which are already the subject of initiatives with a view tointegrating human rights standards. A group of European universities has created a
project called the ‘Global Law Academy’ to carry out further research in this field.310
If States themselves make use of civil law, they will remain bound by human rights
obligations. In areas such as public procurement, export credit guarantee schemes, stateowned enterprises or joint ventures, where state authorities act as commercial partners ofbusiness, they can directly influence corporate behaviour. Respect for human rights
should inform the negotiation process and, where appropriate, appear in specificcontractual clauses. 311 Though we are still far from a comprehensive approach, someinteresting developments can be observed. In particular, public procurement can set
standards that apply throughout the whole production chain, including also third country
subsidiaries and suppliers. 312 Governments have immense power as purchasers andshould take responsibility for human rights impacts. In the United States, all contractors
doing significant business with the federal government must certify that they havecompliance programmes rooted in ethical and legally compliant cultures, based on thoserequired in the Sentencing Guidelines.313 Public federal procurement shall include special
provisions in contracts to the effect that the contractor has to certify that a good faitheffort was made to determine whether forced or indentured child labour was used, and tocooperate in providing access to the contractor’s records, documents, persons or
premises. 314 In the European Union, public procurement accounts for around 15% of
GDP in most member States.315 The European Union has already adopted standards fortimber (Forest Law Enforcement, Governance and Trade Scheme - FLEGT)316 and wider
measures are being considered.

309

See Principles for responsible contracts: integrating the management of human rights risks into
State-investor contract negotiations: guidance for negotiators, Addendum 3 to the Report,
A/HRC/17/31/Add.3 (2011).
Its first meeting ‘Promoting human rights through contract’ will take place from 20 to 26 July
2013 in cooperation with the International University College of Turin (www.iuctorino.it).
310

311

Copenhagen conference report above note 169, at 10.

312

Edinburgh report, above note 4, para. 146.

313

United States Federal Register, Vol. 73, No. 219, 12 November 2008.

314

Executive Order 13126 Prohibition of Acquisition of Products Produced by Forced or
Indentured Child Labor (12 June 1999). For the effects of this regulation, see R. Woodard,
Sourcing: US labour ‘blacklisting’ a wake-up call to India?, 20 July 2010, <www.juststyle.com/analysis/us-labour-blacklisting-a-wake-up-call-to-india_id108351.aspx>; ‘US Sees Big
Drop in Child Labour Use by Indian Carpet-Makers’, Sify News, 20 July 2010,<sify.com/news/us-sees-big-drop-in-child-labour-use-by-indian-carpet-makers-newsinternational-khunacfgihg.html>.
315

Copenhagen conference report above note 169, at 9.

316

Edinburgh report, above note 4, para. 119

70
CSR provisions are also increasingly incorporated in export credit guarantees.317 The IFC
performance standards were updated in 2012, making now direct reference to the SRSG’s
due diligence recommendations.318 EU member States agreed that they will submit yearlyreports explaining how effectively their national export credit agencies (ECAs) assess theenvironmental and human rights risks of the commercial ventures they back.319
Human rights are also directly relevant for contracts between private companies
themselves. Human rights due diligence and reporting duties of suppliers and distributersneed to be formalised through contractual arrangements. CSR provisions have alreadyfound their way into contracts through which one party communicates its codes ofconduct and expectations, outlines due diligence measures and provides that noncompliance can be a ground for termination of contract. 320 There has been a certain
inflation of codes of conduct which are used by suppliers, buyers and distributors alike.
The question which standard will prevail in any given contractual relationship appears to
depend more on the respective economic power of the partners than the intrinsic value ofthe code as such.
Finally, codes of conduct that business enterprises adopt internally to set standards for
employee behaviour also raise human rights issues. Even codes that are intended to
implement ethical behaviour may be too intrusive of employee rights. The corporate codeof ethics of the Wal-Mart Corporation banned “romantic involvement” between
employees of the company with co-workers who could have an influence on theirprofessional development. In the United States, such provisions may be intended toprotect against claims of sexual harassment. In Germany, they were held to violate
constitutional rights to human dignity and personality because they disproportionallyinterfere with the private life of Wal-Mart’s employees.321

Responsibilities of financial actors and institutions322
The financial crisis which started in 2008 has shown the immense influence of thefinancial markets’ operations on national economies and their welfare systems, withimmediate adverse impacts on social and economic rights in particular. The World Bank
estimates that 71 million additional people will remain in extreme poverty until 2020 andBusiness and Human Rights: Further steps toward the operationalization of the “protect,respect and remedy” framework, A/HRC/14/27 (2010), at para. 29.
317

IFC ‘Assessment and Management of Environmental and Social Risks and Impacts,
PerformanceStandard
1’(January1,2012),
availableat<http://www1.ifc.org/wps/wcm/connect/3be1a68049a78dc8b7e4f7a8c6a8312a/PS1_English_201
2.pdf?MOD=AJPERES >.
318

319

Amnesty International, ECA-Watch and Eurodad ‘Giving human rights credit: EU countries
agree to toughen export loan scrutiny’ Press release, 29 June 2011.
320

Mares, above note 287, at 18-19 with further references.

321

Higher Labour Court (Landesarbeitsgericht) Düsseldorf, decision of 14 November 2005, 10
TaBV 46/05.
322

Mares, above note 287, at 32-34.

71
predicts an additional 1.4 to 2.8 million infant deaths by 2015. The United Nations
reports a further 100 million more people were left hungry and malnourished because of
the crisis. 323 No other than Graydon Carter, editor of Vanity Fair, who cannot besuspected of anti-business bias, exposed the logic of a business model that rewards
transactions but rejects responsibility for their consequences:“It can fairly be said that the chain of catastrophic bets made over the past
decade by a few hundred bankers may well turn out to be the greatest nonviolent
crime against humanity in history. They’ve brought the world’s economy to its
knees, lost tens of millions of people their jobs and their homes, and trashed theretirement plans of a generation, and they could drive an estimated 200 million
people worldwide into dire poverty. In other words, never before have so few
done so much to so many. And has there been even one major, voluntary
resignation by an … financial executive? One sincere apology? One jailsentence?”324
There have been some CSR initiatives regarding financial institutions, such as the UNbacked ‘Principles for Responsible Investment Initiative for Institutional Investors’(2006) 325 and the ‘Ecuator Principles’ (2003). 326 The latter is a risk framework for
identifying, assessing, and managing environmental and social risks in project financetransactions. They are currently being revised with a view to giving greater emphasis on
human rights and due diligence, in line with the UN framework.327
The SRSG reports cover issues such as export credit agencies, stock exchanges, financial
products such as socially responsible investment (SRI) indices, financial regulations
requiring transparency, company law and securities law aspects. However, existing
analysis and standards remain largely descriptive and tentative, except maybe for the caseof project finance, where the direct relationship between the financier and the specificproject can be apprehended with the traditional notions of complicity.328
The idea of ‘shared responsibility’ has been suggested as a useful concept for the wider
framework of financial services. For example, Keenan and Ochoa argue in favour of a‘shared duty to protect’, meaning that “states, private actors, and international
institutions should share the duty to protect those rights that are violated in connection

Quoted by L King ‘Business, human rights and the economic crisis’ (27 January 2012),
available at <http://www.amnesty.org.au/poverty/comments/27734/>.
323

Editor’s
letterJune
2009,<http://www.vanityfair.com/magazine/2009/06/graydon200906>
324

325

See <http://www.unpri.org>.

326

See <http://www.equator-principles.com>.

327

availableat‘Draft of updated Ecuator Principles (EP III) released for stakeholder consultation and publiccomment’ (13 August 2012), at <http://www.equator-principles.com/index.php/all-newsmedia/ep-association-news/289>.
328

Mares, above note 287, at 32-33.

72
with business and financial activity.” 329 But we are still far away from a matrix for
corporate responsibility which would adequately grasp the complexities characterisingfinancial markets’ operations and their impacts on human rights. And yet, there appears
to be both an urgent need and the capacities for serious human rights risk assessment in
the financial sector. Reality in the banking world has been characterised as “structuralirresponsibility“, where one actor accuses the other of having been responsible for thecrisis with the end result that nobody is held accountable.330As Catá Backer pertinently
observed“There is something of a disjunction between the SRSG’s discussion of supply
chain obligations of corporations, and the discussion of the obligations financial
institutions involved in the financing of corporate activity ... It seems odd tosuggest that an industry with such a sophisticated approach to the monitoring andcontrol of borrowers would be incapable of adding another layer of monitoring
and review – that centered on human rights – to an already well-established listof risk assessment protocols. Indeed, it would seem that banks are in a better
position to monitor compliance from their borrowers than companies might beable to monitor the conduct of their down chain supply chain partners.”331
Is it really exaggerated to think that human rights impact assessments of even the mostrudimentary form would have exposed the unsustainability of many of the businesspractices that led to the financial crisis?

Civil and criminal liability of corporations
As a matter of principle, the case for some form of corporate liability for human rights
abuses is compelling. Corporations enjoy rights under international law, including humanrights. 332 They should also be held accountable for abuses. With power comes
responsibility. 333 Moreover, human rights treaties oblige States to provide effective
remedies, including compensatory relief, to victims of human rights violations whoever
the actual perpetrator is. 334 The ECHR in particular requires States to put into place
effective criminal and civil remedy mechanisms for human rights abuses by private actors.
Regarding the right to life, the ECtHR held:“The positive obligation to take all appropriate steps to safeguard life for the
purposes of Article 2 entails a duty for the State to ensure, by all means at its
disposal, an adequate response – judicial or otherwise – so that the legislative
P. J. Keenan & C. Ochoa ‘The Human Rights Potential of Sovereign Wealth Funds’,
Georgetown Journal of International Law 40 (2009), at 1158
329

330

Claudia Honegger, Sighard Neckel & Chantal Magnin (eds.) Strukturierte
Verantwortungslosigkeit: Berichte aus der Bankenwelt (Frankfurt edition suhrkamp 2011).
331

Catá Backer above note 231, at 80-81.

332

E.g. under Article 1 (Protection of property) of the (first) Protocol to the ECHR.

D. Kinley & J. Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities
for Corporations at International Law’ Virginia Journal of Int’l Law 44 (2004), at 1021.
333

334

See the examples cited in note 122.

73
and administrative framework set up to protect the right to life is properly
implemented and any breaches of that right are repressed and punished.”335
The legal status of the perpetrator should be irrelevant for the purposes of providing
redress. A whole variety of judicial procedures and mechanisms have been put in place
both at national and international level to hold States accountable for human rights
violations. Why should corporate responsibility go unpunished? In particular when it
comes to the most egregious crimes, why “should corporations have more leeway to killthan people do?” 336 In certain areas, such as discrimination or data protection, it isalready widely accepted that victims can directly sue private actors. Following theuniversally welcomed adoption of the UN framework, the time may be ripe to consider
the introduction of civil and/or criminal liability of corporations for human rights abusesin a more general way. These would certainly be effective means to address the generally
perceived implementation gap.337
However, when it comes to the details of regulation at either national or international
level, both civil and criminal liability of corporations raise a number of difficult questions
which can only be enumerated here. In the particularly important cases of human rights
abuses occurring in third countries, these difficulties are compounded by issues ofjurisdiction, liability for subsidiaries or suppliers and applicable law. In his speech at the
EU Presidency Conference in November 2010 in Stockholm, the SRSG emphasised that“the subject of extraterritorial jurisdiction is enormously complex and needs to behandled with great care.”338
For the purposes of establishing civil liability, it will be necessary to define in particular:-

The grounds for corporate liability (by reference to human rights or tort law or a
combination of both?);-the applicable law;-

the liability of parent corporations for acts or omissions committed by subsidiaries,
suppliers and/or subcontractors;339-

the relationship between the liability of the corporation and the liability of theindividuals within that corporation who are directly responsible for injury or
damages suffered;335Öneryildiz v Turkey, judgement of 30 November 2004, § 91. See also, Osman, cited above,
p. 3159, § 115; Paul and Audrey Edwards, cited above, § 5; İlhan v. Turkey [GC], no. 22277/93,§ 91, ECHR 2000-VII; Kılıç v. Turkey, no. 22492/93, § 62, ECHR 2000-III; and Mahmut Kaya v.
Turkey, no. 22535/93, § 85, ECHR 2000-III.
336

Peter Weiss, NY Times 24 February 2012 commenting on the Kiobel case currently pending
before the US Supreme Court, see above at notes 81 et seq.
337

See above text accompanying notes 261 et seq.

J. Ruggie ‘Keynote Presentation at EU Presidency Conference on the “Protect, Respect andRemedy” Framework’ (Stockholm, 10–11 November 2009).
338

339

See Edinburgh report, above note 4, paras. 188 et seq.

74-

the conditions under which jurisdiction would extend to cover foreign subsidiaries
or contractors.340

Against the introduction of new grounds of corporate liability it will probably be argued
that respect for human rights is already sufficiently ensured through the provisions ofgeneral statutes, such as labour, equal opportunities or consumer protection legislation.
Such statutes do, however, not always provide effective remedies for all rights and all
kinds of abuses. Even for countries with a highly developed legal system, it may still be
useful to have general provisions on corporate liability for human rights abuses which
would apply subsidiarily, in the absence of specific legislation.
As regards criminal liability, it will be necessary to consider in particular:-

the norms, the violation of which should lead to criminal sanctions (which should
be narrowly defined by reference to internationally recognised crimes such as
torture and inhuman and degrading treatment, extrajudicial killings, enforced
disappearances, genocide, war crimes and crimes against humanity);-

the liability of parent corporations for criminal offences committed bysubsidiaries and subcontractors;-

the relationship between the liability of the corporation and the liability of theindividuals within that corporation who are directly responsible for the violations
which have been committed;-

the conditions under which jurisdiction over extra-territorial human rights abusesshould be exercised.

As regards extraterritoriality, it has already been recalled that international law affords
States some discretion regarding the scope of criminal jurisdiction.341 The international
criminal regime governing corruption offences, notably the OECD, Council of Europe
and UN conventions, provides some useful precedents in this respect. 342 As thediscussion and the briefs by different governments in the Kiobel case show, it may bereasonable to limit criminal jurisdiction to a number of universally accepted norms and torequire that foreign plaintiffs demonstrate that they have no possibility to pursue theircase in another jurisdiction capable of providing effective redress for the alleged
violations.343

340

See Edinburgh report, above note 4, paras. 209 et seq.

341

Above note 105.

342

Convention on Combating Bribery of Foreign Public Officials in International BusinessTransactions (21 November 1997); Criminal Law Convention on Corruption (CETS 173, 27
January 1999); UN Convention against Corruption (9 December 2003). See also Edinburgh report,
above note 4, paras. 170 et seq.
343

See above text accompanying notes 98 et seq.

75

Conclusions and recommendations
Conclusions
The adoption of the UN framework constitutes a watershed in the development of humanrights protection. Whereas in the past, attempts to introduce some form of corporate
responsibility to respect human rights have been flawed by ideology and differences
between developing and developed countries, we now have a worldwide consensus
among major stakeholders on a series of key principles. The three pillar framework
acknowledges the roles of both States and economic actors. It constitutes an authoritativereference point, providing benchmarks for State and business practice. Far from being
comprehensive or perfect, the UN Guiding Principles remain deliberately basic, universal
and fundamental. As the SRSG himself emphasised repeatedly, they are only “the end of
the beginning”, 344 a “common foundation from which thinking and action of all
stakeholders would generate cumulative progress over time.”345
In a certain sense, the UN framework brought about a paradigm shift. The international
discussion on human rights and business focuses no longer on the question of whether
corporations have human rights obligations, but on practical steps towards implementing
the corporate responsibility to respect human rights.
Critics may object that the existing international human rights regime has done little toprevent sometimes egregious human rights abuses by corporations, often acting incomplicity with undemocratic governments, in particular in zones of conflict and weak
governance. What has happened in Nigeria or Myanmar constituted flagrant violations by
the governments in question of their human rights obligations under the applicable UN
and ILO conventions. Are there any guarantees that the new approach will be more
effective, considering in particular that it relies almost exclusively on soft law
instruments without meaningful implementation mechanisms? Probably not; and yet, thevarious initiatives taken by the UN, ILO, ISO and OECD bear witness to the international
community’s determination to have human rights standards against which corporate
conduct can be measured.346
What is needed is more guidance to increase the UN framework’s value to individualStates and businesses, be it sector or context specific.347 The challenge will be to come up
with principles that are precise without being over-prescriptive. Too much complexity
may overwhelm the system. But there is no need to start from scratch. Many of theprocedural and substantive standards of protection developed under the existing humanrights protection mechanisms, such as the ECHR, can be used to develop normative
standards on business and human rights. Such standards could be used to clarify in moredetail not only the obligations of States (1st pillar of the UN framework), but also what is
Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework, A/HRC/17/31, 2011, para. 13.
344

345

Ruggie above note 153, at 178.

346

See also Kinley & Tadaki above note 333, at 951-952.

347

See above text accompanying notes 268 et seq.

76
expected from business enterprises as regards their responsibility to respect human rights(2nd pillar of the UN framework).348 Whatever initiatives are taken, it will be important
to ensure coherence between the three pillars of the UN framework and measures adopted
to implement them further. Otherwise, there is a real risk that a business enterprise will
be unable to comply with competing obligations from the host country (through domesticlaw), home State (through the extraterritorial application of home State law) andinternational human rights norms.349
Moving “from vague notions of corporate social responsibility applied in an ad hoc basis
by individual corporate and state actors to the elaboration of a multi-level system ofpolycentric governance”350 will require considerable efforts by all concerned. It will haveto involve both States and business. “The coordination of these two sources of authority,and their development of systems of behavior control will be the great challenge for the
emerging system of economic globalization in the coming decades.” 351 Beyond
governments and business, it will be essential to associate all stakeholders, including also
NGOs and national human rights institutions (NHRIs). The UN Guiding Principles
recognise NHRIs functions as providers of independent expertise in highlighting, under
the corporate responsibility to respect human rights, that companies may turn to NHRIs
for advice regarding “issues of context.”352 Some NHRIs have indeed built considerable
expertise in the field and will be most valuable partners.353
What is most encouraging for future activities is the active participation of the business
community in both the formulation and implementation of corporate human rights
standards. Various major companies throughout the world are prepared to work in
partnership with a wide range of stakeholders, including at the local level in developing
countries. Business itself has a lot to gain, not only in terms of reputation and consumer
confidence, but also in terms of employee satisfaction. While little data is available on theactual impact of human rights impact assessment on companies business performance,
several studies have been made on the impact of environmental, social and sustainability
efforts. Their results concord in finding that such initiatives result in improved employee
morale, more efficient business processes, stronger public image, increased employee
loyalty, and increased brand recognition.354

348

See Edinburgh report above note 4, para. 92 , mentioning however only the second aspect.

349

Catá Backer, above note 282, 145.

350

Catá Backer, above note 282,126.

351

Ibid.

352

A/HRC/17/31 (2011), Commentary to principle 23.

353

See e.g. the Danish Institute for Human Rights with its Human Rights and Business
Department, see <http://www.humanrightsbusiness.org/>.
354

See
studiesbyHewitt&Associates
(22
April
2010)
at
<https://ceplb03.hewitt.com/bestemployers/canada/pdfs/HewittTheGreen30_eng.pdf>;
Societyfor
Human
Resource
Management(4
October2011),
at<http://www.shrm.org/Research/SurveyFindings/Articles/Pages/AdvancingSustainabilityHR%E2

77
The high levels of commitment by some leadership companies as well as the capacity forinnovation shown by a range of international CSR initiatives are strengths of the CSR
agenda.355 Japan is a particularly interesting example in that respect. With its deep-rooted
experience of socially responsible business and worldwide operating corporations, Japan
has a lot to contribute to bring the CSR agenda forward. This agenda is becoming moreglobal and will have to incorporate ideas from Japan and other Asian countries.
A challenge for the CSR agenda lies in a certain over-proliferation of initiatives and lackof clarity about how these initiatives relate to each other.356 Laura Seay gives the exampleof traceability of ‘conflict minerals’ in Africa’s Great Lakes Region.357 At this moment,
not only are the SEC, 358 the OECD, the International Conference of the Great Lakes
Region and the International Tin Research Institute359 all actively pursuing traceability
regulations and schemes, there are also initiatives such as the creation of trading centresby MONUSCO, 360 an Extractive Industries Transparency Initiative scheme, and theGerman Federal Institute for Geosciences & Natural Resources programme. The problem
is compounded in that traceability is relatively easy with some commodities (e.g.
diamonds), but extremely difficult with others (e.g. gold). Despite all these initiatives,
which sometimes work in consultation with one another and sometimes not, credible
monitoring and verification mechanisms are still lacking, be it at international, regional or,with a few possible exceptions, at national level.
The role of States will remain crucial. They will have to show greater involvement andinvestment in international CSR initiatives. In the short-term, we need more capacitybuilding and training, especially in developing countries. However, events on CSR andcorporate governance whether in Europe or Asia where experts parachute in with set
piece presentations are no substitute for result-oriented activities with those directly
involved, especially policymakers, companies, and investors from developing
countries.361 Through meaningful dialogue and tangible results in poverty reduction in theSouth, we must counter a perception that CSR is simply an extension of western
standards or operating as a non-tariff barrier to trade. This is an especially sensitive issue
for export-oriented nations in Asia. As the Department for International Development(DFID, UK) noted already in 2003, “inappropriate codes of conduct become a form ofprotectionism that prevents goods from the South being sold in the North. Exporters indeveloping countries can find the proliferation of regulations and standards hard to%80%99sRole.aspx>; as well as surveys<http://www.reputationinstitute.com/index>.

by

the

Reputation

Institute,

at

355

Zaman in Corporate Social Responsibility Report above note 179, at 74-75.

356

Zaman, ibid., at 71-74.

357

Seay above note 295, at 20-21.

358

See above text accompanying notes 290 et seq.

359

A tin industry organisation.

360

United Nations Organization Stabilization Mission in the Democratic Republic of the Congo.

361

Zaman in Corporate Social Responsibility Report above note 179, at 74.

78
comply with. They often fear that ‘process standards’ on the way products are made(such as the standards on labour, the working environment, or animal welfare) will locktheir products out of developing country markets.”362
In the long term, the effectiveness of voluntary CSR commitments and self-regulation bybusiness may well lie in the public recognition of their limits, leading them to becomplemented by more effective national and international public regulations. 363 One
crucial issue, the lack of effective redress mechanisms for victims and communities
adversely affected by human rights abuses, can in any case only be addressed effectively
by regulatory State action.

Recommendations-

Future activities relating to human rights and business should build on the work of the
SRSG taking the ‘protect, respect, remedy’ framework as a common baseline;-

Any new guidance or standards should be developed in an open multistakeholder
process, associating business, governments, national human rights institutions andcivil society;-

Further guidance should be developed setting out clearly what is expected frombusiness to implement the UN framework effectively, in particular on therequirements of corporate due diligence, the responsibility of parent companies
regarding their subsidiaries and supply chains, the role of financial actors andinstitutions;-Due diligence requirements should be formulated as sector and context specific,
taking existing human rights standards into account, while avoiding being overprescriptive;-

The issue of access to justice for victims of corporate human rights abuses should betaken up as a matter of priority, which may require the establishment of civil and/or
criminal liability of corporations.

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362

DFID and Corporate Social Responsibility (2003).

D. Vogel ‘Private Global Business Regulation’ Annual Review of Political Science 11 (2008),
at 274-275.
363

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Principles for responsible contracts: integrating the management of human rights risks
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Jörg Polakiewicz
Jörg Polakiewicz, PhD, Professor of Law.
Was born in Berlin in 1961. He is head of the human rights policy
and development department in the Council of Europe, overseeing theCouncil’s intergovernmental and cooperation work related to human rights.
He is also a professor at the Europa-Institut of the University of the Saarland
in Saarbrücken. In addition to numerous articles on international, Europeanand constitutional law, he is co-editor of Fundamental Rights in Europe(Oxford University Press 2001), author of Treaty-making in the Council ofEurope (Council of Europe Publishing 1999) and The Obligations of Statesarising from the Judgments of the European Court of Human Rights(Springer) which was his doctoral thesis.
He joined the Council of Europe in 1993. During his career in theorganisation, he worked on constitutional reform in Eastern and Central
Europe (with the European Commission for Democracy through Law Venice Commission), judicial co-operation, cybercrime and data protection
as well as in the Council’s legal service.
From July to August 2012, he was invited to the Center for Asian
Legal Exchange (CALE) at Nagoya University, Japan as a Visiting Professor
and conducted the research project “Corporate Responsibility to Respect
Human Rights – Challenges and Opportunities for Europe and Japan”.

C ALE Discuss i on P ap er No. 9
Corporate Responsibility to Respect Human Rights– Challenges and Opportunities for Europe and Japan
AuthorProf. Jörg Polakiewicz

Published byCenter for Asian Legal Exchange (CALE)
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http://cale.law.nagoya-u.ac.jp/

Issue date

31 October, 2012

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C A L E Discussion Paper N o.9 ( October, 2012)
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