By Roberta M. Gubbins
Legal News
The answer to the question "Whether transnational corporations are, or should be, subject to international human rights law?" was the debate topic presented by the Talsky Center and the Federalist Society at Michigan State University Law School on November 7th.
The speakers, Jernej Letnar C´ernic, professor of human rights law from the Faculty of Law at the European University Institute in Slovenia, and James P. Kelly, III, President, Solidarity Center for Law and Justice, although coming from different viewpoints agreed that the answer is not yet clear.
Companies, C´ernic said, can be "direct violators, complicit in the inflicted harm or silent observers of the human rights violations."
He offered the following real world examples:
* In India almost 500,000 people were affected by a gas leak. Human rights violations were brought against the gas company responsible, a direct violator.
* A subsidiary of Corporation A uses child labor to make footballs for Corporation B. Here Corporation A is complicit in the human rights violation.
* Company X sells arms and toxic gas to the authoritarian regime of country Y. The regime then uses the gas to kill the citizens of county Z. Company X, aware of the situation, remains silent.
The obligations of companies, he noted, can be found in international treaties, national laws, and voluntary commitments by the corporations, however, "human rights are best protected by the domestic systems such as the US tort laws."
International legal orders such as the United Nations Global Compact or International Labor Organization Tripartite declaration of principles concerning multinational enterprises and social policy are of limited effectiveness. These are "soft commitments that give principles but are not binding."
"Voluntary obligations of companies found in their human rights policy statements," he said, " are of limited legal significance but give the impression of respecting human rights."
The questions of individual, governmental and corporate responsibility, C´ernic indicated, are being heard in the United States Supreme Court in the case of Kiobel v. Royal Dutch Petroleum, involving twelve Nigerian nationals who filed a lawsuit against three European oil companies for aiding the Nigerian military in killing and torturing civilians who protested oil exploration in Nigeria. A decision in the case is expected sometime next year.
What is needed, C´ernic concluded is a "binding international enforcement mechanism."
"Since 1970," said James Kelly, coming to the podium to present his views, "the range of laws and ethical customs of corporations have evolved from (a general) corporate social responsibility to the efforts of companies in the 1980's to minimize any potential environmental or social harm to the latest phase--the business and human rights ("BHR") agenda being pursued by the United Nations and its partner NGOs (non-governmental organizations)."
In 2011, Kelly explained, the UN Human Rights Council adopted the UN Guiding Principles on Business and Human Rights ("UNGP"). In that document it is stated that governments are to protect human rights, corporations are to respect human rights and both are to remedy human rights abuses.
As a result of democratic evolution, laws in most developed nations require businesses to respect the human rights of their workers and the broader public.
"But," he asked, "how can the international community hold transnational corporations accountable for human rights abuses they commit in developing countries?"
"Ultimately," he concluded, "courts will determine the propriety or limits of each new humanist value system, establishing a legal framework for further social evolution."
Asked "are corporations more or less susceptible to human rights laws than a country?" C´ernic said "Companies provide services so they have the same obligations as a country. Private prisons are an example--they must integrate human rights to their policies."
"Corporations," added Kelly, "are private actors in principle and must abide by treaties and contracts while the member states are the vehicle used for enforcement."
The mission of the Talsky Center is to educate MSU College of Law students, as well as the broader community, about international human rights law and international humanitarian law. The purpose of The Federalist Society is to foster critical thought and debate about the application of conservative and libertarian principles to the law.
Published: Mon, Nov 19, 2012
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