A Critical Examination of International Law

Introduction

International law lacks measures and mechanisms for holding corporations accountable for the violation of human rights. This essay discusses how nonstate actors like corporations can be held accountable for human rights abuse and the role of international law and human rights law in this area. In addition, the essay addresses the role of states in enforcing international law and human rights law against corporations in its jurisdiction.

Discuss the role of international law and human rights law in holding actors (businesses) accountable for corporate human rights abuse.

International law is the body of legal principles and rules that primarily regulate relationships between states and in a limited sense between organizations and individuals (Lee, 2016; Grant, 2010). Human rights law is an area of international law which sets out the responsibilities of the states to ensure, protect and develop human rights and human freedoms for everyone (Marshall, 2008; Nolan, 2013). The international law relating to human rights is contained in a number of treaties under the aegis of the United Nations. Human rights law does not impose any direct legal obligations on corporations as it only applies to states and most codes are voluntary (Zaharia et al., 2011; Espinoza, 2014; Muchlinski, 2014).

Corporations have a separate legal personality which means that the corporation is separate from its members. The corporation is a separate entity therefore, it has legal rights and duties (Portmann, 2010; Solaiman, 2017). The law recognises corporation as a separate legal person, but corporations do not have an international legal personality. International law does not apply to non-state actors as its primary rules are addressed and apply to states (Vázquez, 2005; Muchlinski, 2014). However, corporations enjoy certain international legal rights (Alvarez, 2011; Muchlinski, 2014).

International legal personality is used to identify non state actors that are directly subject to international legal rights and duties. For an entity to enjoy an international legal personality it must have the capacity to have and maintain legal rights and duties (Green, 2008; Muchlinski, 2014). International law does not recognise any direct criminal or civil liability for corporations unless it has been accepted in customary international law (Kohl, 2014).

Extraterritoriality is the application of domestic law of nations in an international context to hold defendants accountable for their actions abroad (Kanne, 2016; Farbiarz, 2016). The “Effects Doctrine” allows the application of domestic law on foreign companies when they impose harm within the territory (Jain, 2012). The United Nations International Law Commission explains that the state can take action within its territory. International law principles prevent state organs from performing their functions in the territory of other states without consent of the state which contrast with extraterritorial jurisdiction (Bernaz, 2013; Karp, 2009). Therefore, extraterritorial jurisdiction does not apply to corporation.

Corporations can use law to escape responsibility of human rights violation under international law, but they can be held accountable under Alien Tort Claims Act (Shamir, 2004). The Alien Tort Claims Act allows non-United States citizens to sue corporations for the violation of human rights by filing lawsuits in United States courts (Holzmeyer, 2009). Under the Alien Tort Claims Act, claims that are filed by an alien, being a tort and a crime committed by violating laws of nations or violating a treaty of the United States is actionable (Mulligan, 2018; Kanne, 2016). Corporations could be held accountable under Alien tort Claims Act for the violation of human rights such as genocide, slavery and torture (Kanne, 2016). The Act was used against Unocal corporation for forced labor, rape, murder, torture and forced relocation as a result of “Yadana project”. The trial ended after eight years by Unocal agreeing to pay the plaintiffs as well as paying for health, education and other social programs (Holzmeyer, 2009).

International law cannot hold corporations liable for human rights violation. However, under the Alien Tort Claims Act corporations can be held accountable in the United States. Corporations could also be held accountable under extraterritorial jurisdiction if states agree to the adoption of extraterritorial measures; however, states generally do not agree on adopting such measures. Since corporations operate on international level, international law should be extended to apply to corporations so they can be held accountable for the violations of the law and international law should play an active role in regulating its activities, which is not the case at present.

What is the role of states in enforcing international law and human rights law against external actor (businesses) in its jurisdiction?

As international law applies to states, states have rights and duties under the law, including the duty to take legal action to prevent violations of international law, investigate such violations, act against the violators, and provide victims with effective and equal justice. Therefore, states can use their law making powers to enforce accountability of corporations for human rights violations (Bassiouni, 2012). It is the states’ obligation under international human rights law to protect, respect and fulfil human rights of individuals within their territory and jurisdiction including the obligation to protect individuals from human rights violations by non state actors such as corporations (Vega, Mehra and Wong, 2011). This duty requires taking steps to prevent, investigate, punish and rectify corporate abuse of human rights (Vega, Mehra and Wong, 2011; Rubio and Yiannibas, 2017). If the state is not protecting human rights obligations it can result in legal consequences for the state in international law (Vega, Mehra and Wong, 2011; Rubio and Yiannibas, 2017). One of the consequences can be inviting the use of force by the United Nations under the Responsibility to Protect principle, which is recognized by the Outcome Document by the World Summit in 2005 (Cohen, 2012).

Corporations may not respect national law where the legal system is weak and the government is connected to the corporation; due to the lack of governance and effective juridical system at domestic level, corporations can escape local jurisdiction by playing one legal system against the other and they can also move production sites to other countries where the national laws are suitable for them (Shamir, 2004; Karp, 2009).

Some countries find it hard to apply or introduce legal measures to corporations and hold them accountable for human rights violation as they want foreign investment (Shamir, 2004). Corporations have economic and social power, influence and global presence. In addition, they also have an impact on people’s lives therefore, states may find it hard or may not be able to afford to apply regulations on corporations (Joseph, 1999; Agrawal, 2015).

As corporations are recognised as separate legal person, the national law can be applied to them and consequently, they can be held accountable if they violate the law through criminal proceedings and civil lawsuits. While it is the state’s duty to protect human rights, corporations also have the responsibility to respect human rights (Solaiman, 2017; Kaleck and Saage-Maass, 2010).

An example of weak juridical system of a state and not holding corporations accountable is Nigeria. When Nigerian people protested against Shell’s oil spillage in the villages imposing harm on their lives and leaving farmland unfit for use. The oil spillages led to the burning of villages and many deaths. Shell did not want any attention on its human rights violations and therefore it “repeatedly encouraged” the Nigerian government to deal with the protests and it even supplied the military with materials and transport clearly knowing the consequences of this action which led to the murder, rape and torture of people in Nigeria. Eventually, Shell agreed to a $84 million settlement with the village residents (BBC News, 2017; Holzer, 2007).

An example of strong juridical system is the American government when there was oil spillage from BP corporation. There was an explosion and fire in the Gulf of Mexico resulted from the BP drilling Deepwater Horizon which resulted in 11 people missing and many injured. The US National response team began search operations to rescue the missing workers. Soon after the US government started an investigation into the explosion and fire. BP started working to fix the broken pipes and stop the oil leaks. Due to the strength of the US juridical system, BP was forced to act and compensate quickly to the tune of $65 billion (the Guardian, 2010; Vaughan, 2018).

States can hold corporations accountable for the violation of human rights, but corporations usually escape the law by using loopholes in the domestic law due to the lack of good governance. The state should hold corporations liable as it is one of its duties under international law. States should create crime units that focus on crimes or law violations committed by corporations.

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