Need for Accountability of Predatory Corporations

Abstract

The increased power of non-state actors in developing countries has given multinational corporations considerable influence over the human rights of citizens. Corporations now have power within political economies and the ability to undermine democratic systems.[1] Governments within developing countries rely on corporate investment to support their economy. Due to the expansion of human rights violators, there has been an evolution in the way that transitional justice is implemented. Historically, international human rights laws have focused on the state when dealing with human rights violations. In response to this, international human rights laws or a legally-binding instrument need to be developed in order to hold corporations accountable.

This paper will look into the actions currently in motion and the limitations victims may face. The existing tools that transitional politics use to deal with business enterprises that exploit breakdowns of humanity are traditionally international human rights laws. At this time, the framework used against corporations is not legally binding. This is due to the lack of current mechanisms to bring criminal charges against large transnational corporations. The Alien Tort Claims Act has been used in rare occasions and has resulted in settlements outside of court.[2] In an attempt to create voluntary guidelines, the US and European governments created the non-binding UN Guiding Principles on Business and Human Rights in 2011. In 2014, the UN Human Rights Council passed resolution 26/09 that established the need for “an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”.2

This paper will look at the current evolution within corporate accountability in transitional politics and the weaknesses that were shown when corporations were found to violate human rights. This study will also analyze the effectiveness of various attempts made by international organizations and civil society groups towards implementing human rights accountability on corporations.

Introduction

Due to globalization, multinational corporations now have the ability to influence human rights practices in developing countries. This has been an issue of major concern due to the significant role corporations play in the national economies of these countries. In these instances, corporations can apply pressure to developing countries to lower national human rights standards.3 According to the democratic social justice organization, Global Justice Now, of the 100 largest economic entities in the world, 69 are corporations and only 31 are countries.[3] The issue of accountability of corporations for the protection of human rights has been largely overlooked and presents new challenges due to the new far-reaching impact corporations have gained over citizens.[4] However, the increased power of other non-state actors like NGO’s has resulted in an evolution and increased liability of corporations for human rights violations during breakdowns of humanity.

First, we will look at what predatory business behavior is. There are many cases in which the corporation is not the physical perpetrator in human rights violations. In the past, corporations have done this by economically supporting repressive governments, supplying governments or terrorist groups with weapons or materials, contaminating agricultural fields and drinking and bathing water, discriminating against workers, and water privatization.4

During breakdowns of humanity, transitional justice is implemented in order to obtain accountability for victims of human rights’ violations. Since transitional justice’s development in the 1980s, their goals have included holding perpetrators accountable, compensating for wrong doing, and preventing future abuses.[5] However, transitional justice’s goal for holding perpetrators accountable has been predominately focused on criminal prosecutions of individuals.[6]  The rule of law framework that actors use when implemented transitional politics is based upon international law, treaty bodies, and principles and guidelines. However, International human rights law (IHRL) has historically focused on powers only states can exercise and functions only government can fulfill.

The gap between host state law, international law, and transnational corporate accountability has led to numerous unaddressed corporate human rights violations.  This study will look at the current framework used by state and non-state actors during transitions and the limitations, challenges, and gaps that exist. Due to increased economic power of transnational corporations, we will look at different levels of obligation focusing on the state and international level.  Finally, this paper will explore the effectiveness of present day efforts by the UN Human Rights Council and other non-governmental organizations and the increased potential for the Alien Tort Claims Act to hold corporations accountable for human rights violations specifically during times of transitional justice.[7]

Research Question:

  1. How can or should businesses be held to account for predatory behavior around breakdowns of humanity?

Thesis Statement/Hypothesis

There has been a positive evolution in corporate accountability, however, current legal instruments are not sufficient in holding corporations that violate human rights during breakdowns of humanity accountable.

Methodology of the Study

The focus of the study will be corporate human rights violations in Africa from 2000-2016. Africa has seen an increased documentation and focus on the relationship between host governments, corporations, and human rights violations. We will focus on this time frame because there has been a noticeable evolution of corporate accountability within transitional justice since 2000. We will do a macro analysis and look at different cases within Africa, identify their patterns, compare key steps that they took, and analyze the outcome.

This study will use large datasets and will undertake quantitative data analysis. We will study social trends and the measurable effects of particular policies. This study will explore the steps taken during the transitional justice process and why some instances were successful in obtaining a level of accountability and some were not. We will look at what laws and statues were used and the success of national law and international law.

Data Collection

Due to recent developments and existing research on this topic, this study will rely heavily on current articles and journals applicable to the study. Secondary analysis will be used to explore areas of interest without having to collect data ourselves in the field. This study will also analyze the existing legal international human rights system for corporate liability and accountability. Research will be collected from various journals, including: Business and Human Rights Journal, International Journal of Human Rights, Journal of International Criminal Justice, and American Journal of International Law. In addition, due to the currently evolving resolution, data will also be collected from the International Center for Transitional Justice, Business & Human Rights Resource Centre, Human Rights Watch, United States Institute for Peace, UN Human Rights Council and UN Guiding Principles.

Operationalization/Conceptualization

Human Rights

Within the Universal Declaration of Human Rights (UDHR), human rights are defined as inherent to human beings and can neither be granted nor taken away by any authority.[8] This issue of human rights violations is viewed as matter of domestic law that historically attracts attention internationally. The UDHR states that human rights consist of basic fundamental rights and freedoms.7 In brief, human rights violations have received international legal recognition through various forums. Throughout this study, the term ‘human rights’ and the violations against them will be referring to the legal concept of the civil, political, economic, social, cultural, and collective rights laid down in international human right instruments.[9]

Corporate Accountability

Corporate accountability is the obligation for companies to be answerable for harming the community they reside in and liable for their human rights violations.9 The corporate accountability approach puts corporations in the role of “duty-bearers” within the framework of human rights.[10]

Theoretical Framework

The lack of corporate accountability during breakdowns of humanity has led to an abundance of literature seeking to explain the occurrence based on various theories. The Non-Aggressive Principle can be used to reinforce the significance of holding predatory corporations accountable for violations. Economist and political theorist Murray Rothbard’s formula for the Non-Aggressive Principle states that, “No one may threaten or commit violence (‘aggress’) against another man’s person or property.”[11] This principle is a code of conduct for peaceful living and holds that aggression against the person or property of others is always wrong.9 The Non-Aggressive Principle reinforces the requirement for accountability of aggressive corporate human rights’ violations during breakdowns of humanity.

Literature Review

Literature on corporate accountability during breakdowns of humanity has advanced greatly since the 1970s and is reflected by the creation of the OECD Guidelines for Multinational Enterprises and the UN Draft Code of Conduct on Transitional Corporations.8  However, until the 1990s, the majority of advocacy was focused on the impact that corporations had on the physical environment rather than the human rights of citizens and communities in the areas of operations. The intensification of globalization and the amplified number of human rights abuses has resulted in increased research on the impact corporations have on citizens during breakdowns of humanity. This has resulted in the rise of large NGOs like Human Rights Watch and Amnesty International in reporting human rights violations by corporations and exposing the effects they have on citizens. In the early 2000s organizations and institutes like the International Center for Transitional Justice (2001), Impunity Watch (2004) and Transitional Justice Institute (2003) were formed to further pursue accountability for human rights violations during breakdowns of humanity.

This study looks at publications by Stephen Bottomley and David Kinley. Their book, Commercial Law and Human Rights, delves into the relationship between non-state actors like corporations and human rights violations.10 This literature argues that corporations are prone to violating human rights. Their work assesses the relationship well, however, it touches on human rights norms in a general sense and it does not address the repercussions of violations or who is responsible for holding corporations accountable.[12] Additionally, the author does not analyze violations specifically during breakdowns of humanity. This study will also look at, Human Rights Obligations of Non-State Actors, by Andrew Clapham. Clapham details the evolution of corporate accountability and the legal subjectivity of transnational corporations.[13] However, it also does not look at specific violations during breakdowns of humanity. This study will use these two sources to further analyze how international and state law can hold corporations accountable during transitional justice.

In 2002, the International Council on Human Rights Policy released a report on the obligations of states when business activity has an impact on the human rights of their citizens. This report looks into the current regulations by international and local government laws as well as lobbying by advocacy campaigns. They argue that corporate accountability currently depends on voluntary approaches. The authors conclude that international norms and laws are developing, but states should be primarily responsible for protecting human rights from corporations.[14] The report does not effectively evaluate how the mechanisms detailed within the project are used as a means of improving corporate accountability during breakdowns of humanity. It also does not take into account recent regulations and mechanisms available due to its creation in 2002.

Nicola MCP Jagers published a book that focused on corporate accountability for human rights violations. The author argues that there needs to be internally legally binding regulations of corporations and focuses directly on the state.[15] The author analyzes the obligations under International Human Rights Law and international law. However, it does not take into consideration the recently created UN Guiding Principles or the UN Human Rights Council resolution 26/09.[16]

This study will also look at Steven R. Ratner’s article on corporations and human rights. In this literature, the author argues that there are limits to holding states accountable for human rights violations.[17] The author looks at corporations as global actors and analyzes the problem of state action during breakdowns of humanity. However, it does not specify what mechanisms would be most effective to hold businesses accountable for predatory behavior.

The International Center for Transitional Justice is a non-profit organization that specializes in helping transitioning states address legacies of major human rights violations.[18] In recent years they have helped train local activists in documentation of corporate human rights abuses. We will specifically look at various publications and the ICTJ’s role in countries that have faced human rights violations during breakdowns of humanity. The ICTJ’s current work will help show the evolution that has occurred within transitional justice and will provide current data on corporate violations. This will further support the literature on corporate accountability by providing current data during breakdowns of humanity.

Morton Winston argues the importance of human rights nongovernmental organizations (NGOs) in their attempt to influence the behavior of corporations. Winston states that there are eight strategies that NGO’s can use when dealing with corporations.19 This article concludes that national government needs to enact enforceable international legal standards in order to fully pursue corporate accountability, however, the literature does not detail who specifically will hold corporations accountable.[19] This study will incorporate the effectiveness of this strategy into our research.

This study will also analyze the effectiveness of using the Alien Tort Statute (ATS) to hold corporations accountable. Michael Garvey argues the increased effectiveness of the ATS as a means to redress human rights abuses.[20] This study will look at the current issues with corporate liability and the advantages and shortcomings of the Alien Tort Statute.

This paper will examine how businesses should be held to account for predatory behavior during breakdowns of humanity. I will focus on corporate human rights violations in Africa from 2000-2016. Africa is home to many multinational corporations and contains numerous conflict-affected areas with failed governments. There has been a noticeable evolution of corporate accountability throughout periods of transitional justice during this time. The literature suggests that international law is currently an inadequate method to obtain corporate accountability. This study will contribute by giving more focus to the recent evolution that has occurred within corporate accountability during transitional justice. It also seeks to assess and examine the avenues available under international law and recent international instruments to obtain accountability for corporations that violate human rights.

Work Cited

Carranza, Ruben, and International Center for Transitional Justice. “Transitional Justice, Corporate Responsibility and Learning from the Global South.” N.p., 28 Apr. 2015. Web. 1 Mar. 2017.

Clapham, Andrew. Human Rights Obligations of Non-State Actors. OUP Oxford, 2006. Print

“Corporate Impunity: A Startling Ethical Anomaly?” International Center for Transitional Justice. International Center for Transitional Justice, Mar. 08. 2015. Web. 20 Feb. 2017.

Dodwell, A. (2016, September 12). Corporations running the world used to be science fiction – now it’s a reality. Retrieved from Global Justice Now: http://www.globaljustice.org.uk/blog/2016/sep/12/corporations-running-world-used-be-science-fiction-now-its-reality

Forsythe, David P. “The UN Security Council and Human Rights: Promising Developments, Persistent Problems.” Journal of Human Rights 13.2 (2014): 121-145. Taylor and Francis+NEJM. Web.

Garvey, Michael. “Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Legislative Prerogative” Boston College Third World Law Journal (Spring 2009) n.pag.

“Human Rights History » Corporate Accountability.” N.p., n.d. Web. http://humanrightshistory.umich.edu/accountability/corporations/ 14 Feb. 2017.

International Council on Human Rights Policy (2000) ‘Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies’ availableat <http://www.ichrp.org>.(Accessed on 23/02/2017).

Jagers, N.M.C.P., Corporate Human Rights Obligations: In Search for Accountability. Brooklyn Journal of International Law, 33.3(2002).

Koskenniemi, Martti, Alfred De Zayas, and Steven Wheatley. “Book Reviews.” International Journal On Minority & Group Rights 12.4 (2005): 421-430. Academic Search Complete. Web. 15 Feb. 2017.

McPhail, Ken. “Corporate Responsibility to Respect Human Rights and Business Schools’ Responsibility to Teach It: Incorporating Human Rights into the Sustainability Agenda.” Accounting Education 22.4 (2013): 391-412. Taylor and Francis+NEJM. Web.

Pagnattaro, Marisa Anne. “Enforcing International Labor Standards: The Potential of The Alien Tort Claims Act.” Vanderbilt Journal Of Transnational Law 37.1 (2004): 203-263. Academic Search Complete. Web. 13 Feb 2017.

Ramasastry, Anita. “Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability.” Journal of Human Rights 14.2 (2015): 237-259. Taylor and Francis+NEJM. Web.

Ratner, Steven R. “Corporations and Human Rights: A Theory of Legal Responsibility.” The Yale Law Journal, vol. 111, no. 3, 2001, pp. 443-545., www.jstor.org/stable/797542.

Rothbard, Murray N.. “War, Peace, and the State (April 1963)”. Retrieved 2017-02-28.

Santoro, Michael A. “Business and Human Rights in Historical Perspective.” Journal of Human Rights 14.2 (2015): 155-161. tandfonline.com.library3.webster.edu (Atypon). Web.

Stephen Bottomley and David Kinley, Book Review: Commercial law and Human Rights, Osgoode Hall Law Journal 42.1 (2002).

UN General Assembly. “Universal Declaration of Human Rights.” United Nations, 217 (III) A, 1948, Paris,  art.1, http://www.un.org/en/universal-declaration-human-rights/. Accessed 13 Feb. 2017.

“What Is Transitional Justice?” International Center for Transitional Justice. International Center for Transitional Justice, Dec. 08. Web. 11 Feb. 2017.

Winston, M. (2002), NGO Strategies for Promoting Corporate Social Responsibility. Ethics & International Affairs, 16: 70-87. doi:10.1111/j.1747-7093.2017.x


[1] Santoro, Michael A. “Business and Human Rights in Historical Perspective.” Journal of Human Rights 14.2 (2015): 155-161. tandfonline.com.library3.webster.edu (Atypon). Web.

[2] Ramasastry, Anita. “Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between

Responsibility and Accountability.” Journal of Human Rights 14.2 (2015): 237-259. Taylor and Francis+NEJM. Web.

3 Dodwell, A. (2016, September 12). Corporations running the world used to be science fiction – now it’s a reality. Retrieved from Global Justice Now: http://www.globaljustice.org.uk/blog/2016/sep/12/corporations-running-world-used-be-science-fiction-now-its-reality

[4] McPhail, Ken. “Corporate Responsibility to Respect Human Rights and Business Schools’ Responsibility to Teach It: Incorporating Human Rights into the Sustainability Agenda.” Accounting Education 22.4 (2013): 391-412. Taylor and Francis+NEJM. Web.

[5] “What Is Transitional Justice?” International Center for Transitional Justice. International Center for Transitional Justice, Dec. 08. Web. 11 Feb. 2017.

[6] Carranza, Ruben, and International Center for Transitional Justice. “Transitional Justice, Corporate Responsibility and Learning from the Global South.” N.p., 28 Apr. 2015. Web. 1 Mar. 2017.

[7] Pagnattaro, Marisa Anne. “Enforcing International Labor Standards: The Potential of The Alien Tort Claims Act.” Vanderbilt Journal Of Transnational Law 37.1 (2004): 203-263. Academic Search Complete. Web. 13 Feb 2017.

[8] UN General Assembly. “Universal Declaration of Human Rights.” United Nations, 217 (III) A, 1948, Paris, art.1, http://www.un.org/en/universal-declaration-human-rights/. Accessed 13 Feb. 2017.

[9] Koskenniemi, Martti, Alfred De Zayas, and Steven Wheatley. “Book Reviews.” International Journal On Minority & Group Rights 12.4 (2005): 421-430. Academic Search Complete. Web. 15 Feb. 2017.

[10] “Human Rights History » Corporate Accountability.” N.p., n.d. Web. 16 Feb. 2017.

[11] Rothbard, Murray N.. “War, Peace, and the State (April 1963)”. Retrieved 2017-02-28.

[12] Stephen Bottomley and David Kinley, Commercial Law and Human Rights, (2002).

[13] Clapham, Andrew. Human Rights Obligations of Non-State Actors. OUP Oxford, 2006. Print

[14] International Council on Human Rights Policy (2000) ‘Beyond Voluntarism: Human Rights and the

Developing International Legal Obligations of Companies’ available at <http://www.ichrp.org>.(Accessed on 23/02/2017).

[15] Jagers, N.M.C.P., Corporate Human Rights Obligations: In Search for Accountability. Brooklyn Journal of International Law, 33.3(2002).

[16] Forsythe, David P. “The UN Security Council and Human Rights: Promising Developments, Persistent Problems.” Journal of Human Rights 13.2 (2014): 121-145. Taylor and Francis+NEJM. Web.

[17] Ratner, Steven R. “Corporations and Human Rights: A Theory of Legal Responsibility.” The Yale Law Journal, vol. 111, no. 3, 2001, pp. 443-545., www.jstor.org/stable/797542.

[18] “Corporate Impunity: A Startling Ethical Anomaly?” International Center for Transitional Justice. International Center for Transitional Justice, Mar. 08. 2015. Web. 20 Feb. 2017.

[19] Winston, M. (2002), NGO Strategies for Promoting Corporate Social Responsibility. Ethics & International Affairs, 16: 71-87. doi:10.1111/j.1747-7093.2002.tb00376.x

[20] Garvey, Michael. “Corporate Aiding and Abetting Liability under the Alien Tort Statute: A Legislative Prerogative” Boston College Third World Law Journal (Spring 2009) n.pag.