Abstract
During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful.
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Notes
As it has been pointed out, “lawyers should not defend a national monopoly of lawmaking which is out of date and exists only in theory but not in the day-to-day practice of decision-making”(Mertens 1997, at 40).
H.-J. Mertens above note 1, at 40.
“MNEs can affect the economic welfare of the communities in which they operate and, given the indivisibility of human rights, this means that they have a direct impact on the extent that economic and social rights, especially labour rights in the workplace can be enjoyed”; “Moreover, where companies have no direct means of influence they should avoid, at the very least, making statements or engaging in actions that appear to condone human rights violations”.
Kamminga 558. A picture of the different views regarding international legal personality of TNCs has been worked out in J.L. Charney (1983). According to Charney’s survey, the different perspectives are distinguishable into four options: (1) “to deny TNCs any rights or duties in the international legal system, thus affording TNCs no international legal role”; (2) “to provide effective formal and informal avenues for TNC participation in the development and enforcement of laws relevant to their interest, thus giving TNCs limited procedural rights”; (3) “to recognize the role of TNCs in specific substantive areas of public international law by providing them with certain acknowledged rights and duties within the system, thus giving TNCs limited substantive rights and duties”; (4) to accord TNCs full participation rights in the international legal system and subject them to equivalent obligations as states, thus giving them what may amount to full international legal personality (774). The first and the fourth options are regarded by Charney as unrealistic, respectively, for neglecting or overestimating the TNCs current importance in the international community and in international law transformation.
The thesis that globalisation, due to the “denationalizing effect”, may indeed constitute a new change of paradigm of international law is defended in Hobe (2002), namely pp. 385 and 388. On the theoretical changes that led to take private actors into consideration, see also Wood and Scharffs (2001).
Ratner (2001): The author maintains that international law approaches to individual responsibility have not beneficed from the examination provided by the International Law Commission with respect to state responsibility (ibid, p. 461). See, on this topic, also Chirwa (2004); Kinley and Tadaki (2003–2004); Fleur (1993–1994); Frey (1997); Frynas and Pegg (2003); Jägers (2002); Jochnick (1999); Joseph (1999); Kamminga (1999); Weissbrodt and Kruger (2003).
Sullivan and Hogan 2002, 70: “One of the most significant changes in the human rights debate in recent years has been the increased recognition of the link between business and human rights”; “Human rights have become a part of the debate on corporate responsibility” (ivi, 69).
I agree with the thesis that “the very idea of a purely descriptive value-free, or value-neutral stakeholder theory is a contradiction in terms” (Freeman 1994b, p. 132).
See, on this point, also Lozano (2005, p. 63).
A discussion on the difference among “to refrain from violating rights”, “to uphold rights” (which includes to protect and to provide rights) can be also found in Nickel (2003), 82 ff.
Emphasis added.
On the challenges to TNCs in promoting freedom of association where independent unions are illegal, though upholding such liberty is included in many corporate codes of conducts, see Vogel (2005, pp. 100–101, 107–108).
As pointed out with regard to the Global Compact, “[g]iven the current structure of the Compact, it is quite possible for a company with a poor record in labour or the environment to highlight another area of corporate citizenship in its annual report where its record is superlative”. Likewise, there could be a problem with an “adverse selection” effect, since the companies most willing to join the compact are driven by the need of recovering their public image (Williams 2004, p. 762). The reason for that is not only the lack of an independent oversight monitoring function but also the lack of distinction between minimal and maximal obligations and the muddled formulation of such obligations. For further criticisms of the vagueness of Global Compact, see Sahlin-Andersson (2004, p. 147).
Of course, the Global Compact principles may be interpreted as including also welfare rights, since the first principle talks about the “support and respect the protection of internationally proclaimed human rights”. This is a very vague clause, which – to my mind – does not properly help protecting either civil or welfare rights.
See, on these criticisms, Nolan (2005).
Committee on Economic, Social and Cultural Rights, The Right to the Highest Attainable Standard of Health, 11/08/2000, General Comments E/C.12/2000/4, Part II, §§ 43–44; Part IV, §§ 46–53; Part I, §§ 33–37; Part II. The Comment, while talking about the importance of individuals, families, local communities, non-government organizations and economic actors, nevertheless confirms that the responsibility is up to states to achieve the right to health.
Hertz (2002, p. 220): “While politicians shirk their social and environmental responsibilities, pleading the pressures or limitations of globalization and economic interests, corporations are…increasingly taking over this mandate in directly taking the world’s global issues” (ivi, 232). See also Rondinelli (2002, p. 399): “TNCs also influence international policy dialogues before national governments and international organizations enact laws and regulations or attempt to influence the pace and direction of government and international organization decisions” (Mellahi and Wood 2003, p. 193).
Contra: Gauri 2005, p. 72, where it is maintained that responsibilities for TNCs simply follow from being in position to help promote rights. See also Hertz (2002, pp. 157–158) and more widely the Chapter 6, where the increasing capacity of corporations to take over politics in promoting social aims is enlighten (see at 180, 181); Hsieh 2004, p. 651: “In some situations…TNCs might be able to alleviate the conditions associated with burdened societies at a cost that is lower than that faced by governments and international cooperative organizations. In such situations, a question arises as to whether the amount that TNCs are required to contribute ought to be less than what governments are required to provide. Another question that arises in such situations is whether TNCs are permitted, or perhaps even obligated, to fulfil the duty of assistance in lieu of governments, even when they do not benefit directly from the burdensome conditions in a society”.
This is the overall assessment given by Vogel (2005, pp. 168–173) and this is one of the points made since the 2002 World Summit on Sustainable Development in Johannesburg with the appeal by UN Secretary-General to business for it non-waiting for governments to make decisions. See also Gardiner et al. (2003).
The reason why I refer here to interests and claims is that I would make room for both “claimant” and “influencer” definitions of stakeholder, though – as it has been clarified at the beginning of this paper – I basically embrace the normative version of stakeholder theories. Influencer definitions could be useful at the heuristic level, for better understanding corporate motivations to address social issues. On the distinction between claimant and influencer definitions, see Kaler (2002).
This is what is clearly expressed by the notion of “open corporation” (Parker 2002, p. 31 and more widely the second and third chapters), for whose accomplishment requires, for corporate management, “the commitment to respond; the acquisition of specialized skills and knowledge; and the institutionalization of purpose” (ivi, 31). What I am emphasizing here is the need for the institutionalization stage.
“Legal pluralism represents the ‘openness’ of the law toward society” (ibid, p. 1459). “If private law’s reliance on social autonomy and structural coupling is applied not only to the economic system but also to the multiplicity of social discourses, it may become a model for new ways in which law, instead of relying solely on its political legitimation and its economic efficiency, opens up to the dynamics of civil society” (ivi, p. 1462).
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Acknowledgements
A draft of this paper was presented in a seminar at the “International Institute for International Law and the Humanities” (IILAH), Melbourne Law School, on August 2007. I would like to thank the participants and namely Dianne Otto, Jürgen Kurtz and Christine Parker for their helpful comments.
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Pariotti, E. International Soft Law, Human Rights and Non-state Actors: Towards the Accountability of Transnational Corporations?. Hum Rights Rev 10, 139–155 (2009). https://doi.org/10.1007/s12142-008-0104-0
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DOI: https://doi.org/10.1007/s12142-008-0104-0