I. INTRODUCTION
The transnational operations of business actors often give rise to adverse human rights impacts. In light of international phenomena such as economic globalization, the privatization of warfare and other traditionally governmental functions, non-State actors now exert significant influence on public affairs. By contrast, State power has dramatically declined over the course of the last century, leading to a position of relative corporate impunity. Many developing States are incapable of effectively safeguarding the human rights of their populations due to weak governmental and judicial infrastructures or corruption. Such States may also demonstrate an unwillingness to ensure adherence to human rights at the domestic level due to fears that such activity might stem the flow of foreign direct investment (FDI). Western States, which may be capable of providing procedurally fairer avenues to domestic redress for victims of corporate negligence, have proven reluctant to hear cases concerning extraterritorial conduct, and the complex corporate structures established by many business actors often hinder the success of domestic litigation.
Nonetheless, States remain the primary addressees of international human rights obligations. The dominant method of advancing the business and human rights agenda at the international level has been via non-judicially enforceable soft-law initiatives such as the UN Guiding Principles on Business and Human Rights 2011 (UNGPs), the efficacy of which have been called into doubt.Footnote 1 Given the failings of regulatory regimes at both the international and domestic levels, the question has arisen as to whether non-State actors ought to be directly subject to international human rights standards.Footnote 2 This matter has been subject to significant debate among scholarsFootnote 3 and States alike, stimulated in part by the submissions of Ecuador at the 24th session of the Human Rights Council in 2013, when a directly binding business and human rights treaty was first tabled.Footnote 4 This was followed in June 2014 by the adoption of a resolution establishing the need for further elaboration of a legally binding treaty directly addressing business actors,Footnote 5 and the establishment of a dedicated Open-Ended Intergovernmental Working Group that met for the first time in July 2015.Footnote 6
It was the experiences of the State of Ecuador in its turbulent litigation against Chevron that prompted this shift back towards hard law standards.Footnote 7 In addition to the investment arbitration mounted against Ecuador by Chevron, several Ecuadorian villagers have initiated domestic legal challenges against the corporation. These civil actions accused Texaco (later acquired by Chevron) of contaminating an oil field between 1964 and 1992, giving rise to widespread environmental damage affecting the health and livelihoods of the local population. In November 2013 the Ecuadorian Supreme Court ordered the corporation to pay $9.5 billion USD in compensation.Footnote 8 Having initially argued on the basis of the doctrine of forum non conveniens that the Ecuadorian courts were better suited to hear the action, Chevron subsequently claimed that the case should be heard in the US. Consequently, since 2011, there has been additional protracted litigation in US courts,Footnote 9 and a 2015 ruling by the Supreme Court of Canada permitting the claimants to pursue enforcement of the Ecuadorian award of damages under Canadian jurisdiction.Footnote 10 The legal challenges surrounding this complex case continue, and the final outcome remains uncertain.Footnote 11
This context notwithstanding, the aim of this article is not to argue the merits or demerits of a business and human rights treaty. Rather, it will respond in detail to four key factors that call into question the project's feasibility. In particular, it will address: (i) the theoretical basis for the extension of direct international obligations to non-State actors; (ii) the determination of relevant duty-bearers and the allocation of responsibility; (iii) the scope and limits of the obligations; and (iv) remedies and enforcement mechanisms. Over the course of this discussion, the potential utility of analogies drawn from existing domestic and international law in surmounting these significant doctrinal impediments will be demonstrated.Footnote 12 In providing a thorough examination of these challenges, it is hoped that the study will advance the burgeoning dialogue on the topic of direct non-State actor regulation, and contribute positively to the debate surrounding the future normative development of international human rights law.
II. LAYING THE THEORETICAL FOUNDATIONS FOR THE TREATY
The first hurdle to the establishment of a business and human rights treaty is conceptual. It demands a robust explanation of the theoretical validity of a treaty that is concluded between States but whose addressees include non-State actors. Classically, international law has been perceived as a system governing inter-State relations. Dominant positivist scholarship exhibits a general reluctance to include non-State entities as subjects (as opposed to objects) of regulation,Footnote 13 despite the increasing public influence of these entities,Footnote 14 and the substantial decline in State power.Footnote 15 One of the core reasons for this hesitance stems from received theoretical bases of international law.Footnote 16 In line with recent scholarship, this section argues that a formalist reading of international legal personality may liberate international law from its classical constraints,Footnote 17 providing a more logical basis for the development of a system of law that is open to the direct regulation of non-State actors. In doing so, it lays the groundwork for the formulation of a human rights treaty that directly addresses transnational corporations and other business actors.
Sensitivities on the part of States and legal scholars underscore the reticence to extend international legal personality to non-State actors. Their concerns stem from the political and legal effects perceived to result from the recognition of non-State actors as subjects of international law. The situation is exacerbated by the unhelpful binary divide maintained between ‘State’ and ‘non-State’ entities,Footnote 18 which prompts the concern that if one non-State actor is ‘imbued’ with legal personality, the same will necessarily follow for other entities.Footnote 19 These anxieties regarding the political legitimization of non-State actors are directly related to questions of legal legitimacy,Footnote 20 and in particular, theoretical justifications relating to the validity or binding quality of international law. Each is rooted in the underlying contractarian rationale in which dominant positivist scholarship remains entrenched.Footnote 21 The origins of this view are readily apparent in the post-Vattellian scholarshipFootnote 22 of late-nineteenth and early-twentieth century GermanFootnote 23 and Italian scholars,Footnote 24 who came to view the State as factually, socially and historically constituted, possessing pseudo-psychological traits such as a sovereign ‘will’.Footnote 25 The State was treated as an a priori concept; it preceded the existence of international law, contributed to its formulation, and validated it via its consensual will.Footnote 26
Thus, the primacy of States in the international legal system was codified, despite the notable absence of a workable definition of their constituent empirical features.Footnote 27 The terms ‘subject’, ‘creator’, ‘validator’ and ‘enforcer’ became effectively synonymous. As a result, dominant scholarship conflates the creators of international legal rules with the subjects or addressees of those rules. These roles were perceived as the natural competences of States, stemming from their uncontested social and historical prestige. The nexus between the explanations of legal validity implicit within classical international legal doctrine and the political sensitivities surrounding the international legal personality of non-State actors may be traced to this doctrinal position. It has led to the view that if non-State actors are the direct addressees of international rules, whatever their content, this will place them on par with States politically. As a corollary, it has given rise to the claim that in order for non-State actors to be legitimately bound by international rules, they must consent to those rules, and thus, participate in their formulation.Footnote 28 While it is has been suggested that such objections are unsustainable because they confuse ‘personality with legitimacy’,Footnote 29 it is argued that this conflation is a direct consequence of the dominant theoretical conception of international law. As such, traditional scholarship erroneously produces politically contentious, practically unworkable results that have stayed progress in the field of non-State actor regulation.
Recent scholarship has begun to recognize that a formalist approach to international legal personality has the potential to establish the theoretical foundations for the direct regulation of non-State actors, free from undesirable presumptions relating to political status and law-making capacity.Footnote 30 The positive effects of such an approach is apparent in the formalist conception of the international legal order advanced by Kelsen's Pure Theory of Law. The theory is premised on a strict methodological separation between ‘is’ and ‘ought’.Footnote 31 It defines legal orders as hierarchal systems of ‘norms’.Footnote 32 A norm describes a behaviour that ought to occur, as entirely distinct from the actual existence or fulfilment of the act prescribed.Footnote 33 Thus, while a legal rule might provide that ‘all murderers are to be punished’, this rule says nothing about whether all murderers are actually caught, convicted, and sanctioned. Legal norms are simply prescriptive statements; their validity is not contingent upon facts.Footnote 34 As is already apparent, this method distinguishes itself from the contractarian explanations of validity advanced in dominant positivist scholarship. Such an approach would violate the is/ought dichotomy by utilizing an is (the factually conceived State) to explain the validity of an ought (legal norms). Instead, the State is viewed entirely in juristic terms. A State is not an area of territory, a government, a permanent population, or an amalgam of these physical properties. It is the rule defining a State's territory that is relevant to the study of law rather than the actual territory.Footnote 35 According to this view, States are like all legal persons; they are personified bundles of rights and duties ultimately addressing individuals.Footnote 36
This conception proves enlightening with respect to the definition of international legal personality provided by the International Court of Justice's (ICJ) Reparation Advisory Opinion.Footnote 37 That an entity is perceived as an international legal person to the extent that it is so-defined by positive lawFootnote 38 is not problematic under formalist logic.Footnote 39 That different entities might be the addressees of varying rights and obligationsFootnote 40 need not be expressed in terms such as ‘full’ or ‘limited’ personality. Legal persons are merely devices employed to describe legal phenomena, in particular, the referral or imputation of norms regulating human behaviour to an ‘order’ or ‘corporation’.Footnote 41 This includes, but is not necessarily limited to, States.Footnote 42 The consequences of this view in the context of non-State actors are clear; international personality is an entirely open and neutral concept.Footnote 43 It entails no presumptions as to the political status of the entity, or as to which rights and capacities a ‘subject’ of international law naturally ‘possesses’.Footnote 44 Rather, the law-making capacity of States is prescribed by a higher norm, or more specifically, such a competence is assigned by the law to an individual, in their capacity as an agent, and then imputed to the State legal order. Thus, the conflation between addressee and lawmaker is completely dissolved on this formalist view. Law-creating competence may be imputed to any entity, but it is not necessary to establish the validity of an obligation.
Kelsen's model assuages traditional contractarian anxieties in international law concerning the attribution of responsibility to third parties in relation to primary obligations to which they have not themselves expressly consented.Footnote 45 Binding quality is not derived from the consent or natural status of the addressee but from the legal order itself, which ultimately finds its basis in the Grundnorm or basic norm.Footnote 46 While the controversy surrounding this concept cannot be denied, it is suggested that this stems from its mischaracterization as a form of validation akin to that espoused by naturalist jurisprudence.Footnote 47 Kelsen's explanation of legal validity ultimately rests on a basic norm that cannot be positively determined. As such, the Grundnorm may be taken to be equivalent to a command emanating from the divine. In Kelsen's words:
[T]he theory of the basic norm may be considered a natural law doctrine in keeping with Kant's transcendental logic. There still remains the enormous difference which separates, and forever must separate, the transcendental conditions of all empirical knowledge and consequently the laws prevailing in nature on the one side from the transcendent metaphysics beyond all experience on the other.Footnote 48
Thus, while the basic norm may serve the same validating function, and while its existence also lies beyond positivist determination, its purpose is entirely different and its content is entirely empty.Footnote 49 The content of all legal norms is always positively determined.Footnote 50 The basic norm simply makes the cognition of legal norms possible: it is a prism through which norms are discernible. The basis of Pure Theory is a value-free presumption of legal validity necessary for the cognition of a positively-defined legal order as a system of norms, and not a theological ideal with substantive moral content.Footnote 51 Just as the notion of cause and effect in natural science (is) must be prevented from infinite regress via the presumption of a ‘first cause’, the Grundnorm serves the same function in the realm of norms (ought).Footnote 52 The Grundnorm is the Pure Theory's ‘big bang’.
While the strength of this justification in the context of neo-Kantian philosophy has also been subject to cogent criticism,Footnote 53 undermining the necessity of a strictly normative view of law, this is not fatal to the theory.Footnote 54 Rather, its claim to uniqueness in solving the antinomy between natural and positive law is undermined, and the theory simply ‘takes its place alongside other normativist legal theories … perhaps best understood as offering a legal point of view.’Footnote 55 In the context of non-State actor regulation, it is clear that the strictly normative view advanced has utility both as a critical methodology which exposes the weakness of traditional doctrine, and in the construction of a potential theoretical foundation that is receptive to the direct regulation of business actors. This basis having been established, the precise form and content of a binding business and human rights treaty raises three other important questions, which are addressed in the remaining subsections below.
III. IDENTIFYING DUTY-BEARERS, ALLOCATING RESPONSIBILITY
Hart famously distinguished between primary and secondary rules.Footnote 56 The former define the behaviours which addressees ought to engage in or refrain from, and the latter are ‘in a sense parasitic upon or secondary to the first’,Footnote 57 determining the manner in which primary rules may be created/modified, or controlling the manner in which primary rules operate in adjudication. A long-standing issue concerning the establishment of liability for the adverse effects produced by the cumulative acts of State and non-State actors is the lack of primary rules governing the conduct of non-State actors. After all, ‘if there are no primary obligations to begin with, a regime of responsibility simply cannot apply’.Footnote 58 However, as primary rules such as those posited by the proposed treaty emerge, and multiple actors with human rights obligations are implicated in the same harmful outcomes, questions surrounding the secondary rules governing the apportionment of responsibility naturally arise.Footnote 59 Even in relation to States, ‘international law has not developed sophisticated rules and procedures for adjudicating and apportioning responsibility between States in the position of multiple tortfeasors’.Footnote 60 Naturally, the situation regarding non-State actors is even less developed. Presently, the only manner of holding private actors to account in international law is via attribution of the offending conduct to a State.Footnote 61 It has been demonstrated above that the theoretical impediments to the establishment of obligations addressing non-State actors have perhaps been overstated. The clear scope provided by alternative theoretical approaches and the political will evident in the Ecuadorian initiative notwithstanding, the exact shape of the rules governing the allocation of responsibility for wrongs perpetrated by multiple actors remains uncertain. The exploration of these questions has gained significant traction in recent years in the pioneering work of Nollkaemper and Jacobs,Footnote 62 among others,Footnote 63 into the notion of shared responsibility in international law. Drawing on this literature, this section unpacks some of the methods posited to date, and assesses their utility in relation to the proposed treaty.
The identification of duty-bearers and the allocation of responsibility constitute pressing issues in the practical realization of the proposed treaty. Should delegates proceed to identify States as the sole duty-bearers in the proposed treaty, the instrument may prove to be redundant before it is drafted. If this were the case, the instrument may simply restate the principles of State responsibility for private actors already articulated in widely ratified human rights treaties.Footnote 64 The factors that inhibit the efficacy of these existing obligations rest on the unwillingness or incapacity of many host States to give effect to their international obligations, in light of widespread corruption,Footnote 65 fragile governmental infrastructuresFootnote 66 and the quest for capital via FDI.Footnote 67 This article argues that a regime addressing both States and non-State actors is required to ensure effective engagement with fundamental human rights standards. This section identifies four interrelated methods by which shared responsibility might be allocated between these actors in the context of a business and human rights treaty. The approach adopted is holistic, recognizing and incorporating existing responsibility regimes that are external to the proposed treaty, and drawing analogies from existing international law in framing the particular rules within the instrument itself. Each tier responds to a different level of culpability, demonstrating how a rule structure might be utilized to provide a nuanced division of responsibility that is responsive to common scenarios and weaknesses within the existing legal framework.
A. Attribution to the State
The first method of allocating responsibility can be derived from the International Law Commission's (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ASRIWA). To date, these provisions have had limited practical utility in establishing State responsibility for the conduct of business actors. Nevertheless, they provide a workable model for the attribution of responsibility where a State has played an instrumental role in the adverse human rights impacts of a private actor, and thus will likely play some role in the application of a business and human rights treaty.
The ASRIWA detail specific instances in which the conduct of private entities may be directly attributed to a State.Footnote 68 This approach to non-State actor accountability is wholly dependent on the factual connection between the non-State entity and the responsible State.Footnote 69 Any claim in this regard is actionable solely as a result of the attribution of the wrongful act to the State. There is no secondary or joint responsibility assigned to the non-State actor, and given that this form of responsibility is already articulated by the ASRIWA, it would likely not need to feature in the proposed treaty. States may be held accountable for violations of their international obligations committed vicariously through private actors.Footnote 70 The fact that States will be responsible for the abusive acts of their organs and agents,Footnote 71 even when acting beyond their official capacity,Footnote 72 is fairly non-contentious.Footnote 73 There are four key circumstances in which private behaviour will be considered attributable to the State, each of which hinges on the actor's relationship with the State government.Footnote 74 First, while the conduct of private entities is not prima facie attributable to the State,Footnote 75 even when the corporation is wholly owned by the State, or the State possesses a controlling interest in it,Footnote 76 the conduct of entities exercising elements of governmental authority may be imputed to the State.Footnote 77 The relevant conduct must relate to governmental activity and not to other private or commercial operations, though the ILC has not provided precise definitions in this regard.Footnote 78 This provision is particularly pertinent given the international trend toward the privatization of governmental functions.Footnote 79
The three remaining scenarios are articulated in Articles 8–11. Pursuant to these provisions, certain conduct that does not result directly from the actions of the State, its organs or agents is nonetheless imputed to the State. The least contentious is Article 11, which provides that conduct will be attributable where a ‘State acknowledges and adopts the conduct in question as its own’.Footnote 80 More problematically, conduct is attributable to the State where an entity operates under its direction or control.Footnote 81 Such conduct will rise to this level ‘only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation’.Footnote 82 In its Nicaragua Decision, the ICJ considered whether the conduct of a group of insurgent forces termed the ‘Contras’ was attributable to the US on the basis of the financial support provided by the State. It held that ‘despite the heavy subsidiaries and other support provided to them by the United States, there is no clear evidence of the United States having exercised such a degree of control in all fields as to justify the Contras as acting on its behalf’.Footnote 83
The approach in Nicaragua has been criticized in subsequent international jurisprudence,Footnote 84 and it is generally accepted that the threshold will be determined on a case-by-case basis.Footnote 85 However, it has been suggested that such a relationship will only be established in a small category of cases.Footnote 86 Thus, while this constitutes an accepted method of achieving redress for non-State actor activity under the proposed treaty regime, it is unlikely to aid the majority of victims.Footnote 87 Furthermore, Ratner suggests that there may be instances in which ‘the company is effectively the superior and the State is the agent’.Footnote 88 While such instances are possible in light of the economic power wielded by many business actors, the ASRIWA do not cater for this inverse scenario. States alone bear the obligations, and are treated as ‘commander’ in their relations with private actors, irrespective of the facts.
Whereas the conduct contemplated by the ASRIWA is contingent on the close proximity between private entity and State, and accusations of complicity and impunity are leveraged at weak governance States with some regularity,Footnote 89 violations are also likely to result from the basic incapacity or unwillingness of the State to effectively regulate its domestic affairs.Footnote 90 In this context, purely State-based approaches to non-State actor regulation truly fall apart. The conception of State regulation through municipal law is justified ‘on the basis that the State has, at least in theory, the constitutional authority to legislate and regulate such actions to ensure their compliance with its international obligations’.Footnote 91 Yet in many States, such regulation is entirely unrealistic. The traditional treatment of non-State actors is staunchly Western and fails to account for the realities of life in weak governance States.Footnote 92 The existence, will and capacity of the State as a regulator is simply assumed.Footnote 93 Thus, the attribution regime will need to be supplemented with other categories of responsibility in order to ensure the regulatory gap is adequately filled.
B. Complicity
Given that a treaty could impose direct international human rights obligations on both State and non-State actors, a scenario could arise in which the non-State entity served as the principal actor in the perpetuation of human rights abuses. The role of the State would therefore be secondary. Similarly, a non-State actor could facilitate human rights abuses propagated by a State without its actions rising to the level of attribution described above. The question arises as to whether a complicity rule which derives responsibility from the principal actor's wrongful conduct, rather than attributing the wrongful conduct to a secondary actor, may hold utility. The key to complicity of this kind lies in the distinction between primary and secondary rules introduced above. An analogy may be drawn with the ASRIWA, Article 16 of which has proven difficult to categorize:
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.Footnote 94
Although the ILC's mandate was to produce guidance on the operation of secondary rules of responsibility,Footnote 95 it has been convincingly argued that this provision constitutes a separate, albeit atypical,Footnote 96 primary rule of obligation.Footnote 97 Indeed, the Special Rapporteur for State Responsibility, Roberto Ago, stated that ‘the Commission should not hesitate to leap that barrier [between primary and secondary rules] whenever necessary’.Footnote 98 Categorizing the rule in this way lends itself to the discussion of shared responsibility between two duty-bearers in a binding business and human rights treaty. This is because where a non-State actor, serving as the principal wrongdoer, engages in a direct breach of an obligation, a State's conduct which assists the non-State actor's substantive breach via positive act or omission could be said to breach a second primary obligation to refrain from complicit conduct. On this view, it may be possible to circumvent the problematic issue of attributing concurrent responsibility to multiple actors for the breach of a single primary rule,Footnote 99 giving rise to a single wrongful act.Footnote 100 There may be, in fact, two separate obligations; two separate breaches, giving rise to separate responsibilities, the derivative nature of the complicity rule notwithstanding.
Whether or not one agrees with this categorization of the general complicity rule provided in Article 16 ASRIWA, examples of specific complicity provisions framed as primary rules are observable in international practice.Footnote 101 An existing rule of this kind was identified during the ICJ's Bosnian Genocide Decision.Footnote 102 Article 1 of the Genocide Convention provides: ‘Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.’Footnote 103 The ICJ recognized that the obligation to prevent genocide implies a primary rule that States ought not to engage in activity constituting complicity in the crime of genocide.Footnote 104 While this teleological readingFootnote 105 of the treaty by the ICJ has been subject to criticism,Footnote 106 the express articulation of a rule analogous to Article 16 ASRIWA in the proposed business and human rights treaty would likely mitigate concerns stemming from this method of treaty interpretation.Footnote 107
Some questions that will require greater consideration concern the scope of such a complicity obligation; what knowledge or intent is required on the part of the complicit party to engage the provision? Is the rule limited to positive action, or might it be extended to omission, influence, toleration and wilful blindness? This is perhaps where the analogy to ASRIWA might depart; classically, there has been concern surrounding the allocation of responsibility for ‘influence’ in instances of internationally wrongful acts involving two States, due to sensitivities regarding the doctrines of sovereignty and non-intervention.Footnote 108 Jackson highlights the existing recognition of the capacity of States to influence non-State actors, and to foment or incite armed activities, and suggests that international law is not concerned with the influence of States on the conduct of non-State actors.
As international law develops to recognise increased possibilities of principal wrongdoing by non-State actors, so the ways in which States might participate in that wrongdoing should be adequately sanctioned. This would include not simply the provision of assistance … but also complicit influence.Footnote 109
However, sovereignty concerns are likely to reappear in relation to the inverse scenario, where the economic influence of a non-State actor induces a State to engage in wrongful conduct, or to simply turn a blind eye to the wrongful acts of the corporation. As such, it is not clear whether a single primary rule precluding complicit conduct could be applied uniformly.
The level of contribution required to engage such a provision poses substantial questions.Footnote 110 For Aust, ‘[i]t is theoretically conceivable that “aid or assistance” comprises every act (or omission) which facilitates the commission of an internationally wrongful act’.Footnote 111 The commentary to Article 16 ASRIWA is itself silent on the nexus between principal and accomplice, providing: ‘[t]here is no requirement that the aid or assistance should have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly’.Footnote 112 While this provision seems to demand that the conduct materially facilitates the commission of the wrongful act,Footnote 113 the commentary acknowledges that conduct may constitute assistance where it is ‘only an incidental factor in the commission of the primary act’.Footnote 114 Lowe provides a useful illustration, contemplating the situation in which a State provides financial backing for overseas investments by a company incorporated within its territory. He concludes ‘[t]here is no reason why State responsibility should not be engaged by the provision of the investment guarantee’.Footnote 115 Thus, a complicity provision in a binding business and human rights treaty might produce consequences for home States, as well as host States.Footnote 116 Yet, the precise standard is not clear. In the case of specific complicity rules contained in other multilateral treaties, it appears that a material contribution test is favoured by most States.Footnote 117 Indeed, Jackson suggests that the material contribution standard should be preferred since ‘it serves the interests of international cooperation to require a nexus beyond incidental contribution … [and] exclud[es] the incidental relationships that arise from virtually every State interaction’.Footnote 118 The same is likely to apply to relationships between State and non-State actors. However, it is interesting to note the inconsistent approaches adopted by States in this regard. For instance, the United Kingdom endorsed a very liberal interpretation of an analogous complicity provision in the 1997 Ottawa Convention,Footnote 119 only to later adopt a restrictive stance in relation to the 2005 Cluster Munitions Convention, Footnote 120 advocating the deletion of an ‘aid or assistance’ clause.Footnote 121
The fine lines between governmental incapacity, wilful blindness and complicit omission are likely to cause significant practical issues in the categorization of State conduct, and demand careful consideration in light of the forgoing context regarding the transnational operations of business actors. The ICJ in Bosnian Genocide expressly stated that ‘complicity always requires some positive action … while complicity results from commission, violation of the obligation to prevent results from omission’.Footnote 122 Similarly, Ago's Seventh Report on State Responsibility provides:
[A] case of ‘participation’ in the internationally wrongful act of another cannot be found in the [sole fact] that a State failed to take preventative or repressive measures required of it … This does not mean that in specific cases there may not also be participation … But there is an additional element, a separate breach besides the mere failure to prevent and punish.Footnote 123
Jackson suggests that complicity via omission is doctrinally and normatively supported in municipal and international criminal law, though he recognizes that ‘[m]any more omissions will violate the obligation to prevent genocide than constitute complicity … But in some circumstances, a particularly culpable proximate omission, where both mens rea and nexus requirements are met, should be seen to constitute complicity.’Footnote 124 Clearly then, not all omissions will give rise to the complicit responsibility of a secondary actor, unless the omission substantially contributed to the principal wrong and the actor possessed sufficient knowledge. Indeed, the conduct of States falling outside of these instances of complicity may be captured under the due diligence obligations held by States under extant human rights treaties.Footnote 125
It is clear that ‘aid or assistance’ is a ‘normative and case-specific concept, meaning that its content will always have to be determined in the specific situation, with a view to the relation between the supportive conduct to the neighbouring normative environment and the enabling function it played to the case at hand’.Footnote 126 This exercise will also need to take into account a second factor that will determine the engagement of a complicity rule: the subjective element. The manner in which causal act and mens rea interact will require careful articulation should a complicity provision be adopted in the proposed treaty, and will need to weigh considerations relating to global economic cooperation with the need to safeguard fundamental human rights.
With regard to the mens rea standard, while some form of knowledge on behalf of the complicit party is necessary,Footnote 127 there is presently no agreement among scholars as to the level required to engage Article 16 ASRIWA.Footnote 128 Suggested standards include constructive knowledge (expected in the exercise of reasonable care);Footnote 129 direct knowledge (based on the particular circumstances);Footnote 130 wrongful intent (stemming from a reading of the ILC's Commentary);Footnote 131 and wilful blindness.Footnote 132 In the case of wrongful intent, most host States engage in bilateral agreements with business actors under the auspices of economic development,Footnote 133 making it difficult to establish intent to facilitate any human rights violations resulting from the arrangement.Footnote 134 Crawford has acknowledged that ‘different primary rules of international law impose different standards ranging from ‘due diligence’ to strict liability’.Footnote 135 Thus, while analogy may take us part way, a complicity provision in a binding business and human rights treaty need not necessarily duplicate the level of contribution nor the subjective element adopted in the application of Article 16.Footnote 136
[D]ue to its generality, it covers aid or assistance furnished to violations of the most diverse kind of rules. It therefore cannot be expected that a clear-cut general rule on ‘the’ intent standard with respect to complicity in international law will be deducible.Footnote 137
As such, there is no reason as to why a more specific standard may be adopted in the treaty as lex specialis.
Aust even suggests that ‘a modification of the intent standard may be called for due to differing standards in human rights law’.Footnote 138 Such was the approach of the Inter-American Court on Human Rights (IACtHR) when adopting a due diligence standard in Velásquez Rodríguez Footnote 139 mandating the State to organize the government in such a way as to guarantee rights recognized in the ConventionFootnote 140 and thus to safeguard its population against the abusive acts of non-State entities conducted with the acquiescence of the host State.Footnote 141 This obliges the State to take positive measures to prevent, investigate and punish human rights violations that are not attributable to the State. Yet, the manner in which the IACtHR has implemented a lex specialis test in case law where a State has supported a non-State actor in violating human rights has proven problematic. In Riofrío Massacre Footnote 142 and Mapiripán Massacre,Footnote 143 the Inter-American Court and Commission both expressly asserted that support or toleration by State officials of human rights abuses by private actors is sufficient to attribute those acts to the State. Yet, attribution is arguably superfluous, and characteristic of agency rather than complicity. Complicity is a form of secondary responsibility, derivative from a principal wrong; it does not entail imputing the principal wrong to the secondary actor.
[R]esponsibility under the Convention may be engaged by the State's failure to ensure the full and free exercise of rights where those rights are violated by private parties. There is no need to find that the acts of the private party are attributable to the State – the relevant State's failure to act is the attributable act.Footnote 144
A better solution would be to recognize the existing due diligence obligations incumbent upon States to secure the relevant rights for all within their jurisdiction, rather than to loosen the test for attribution.Footnote 145
It is beyond the scope of this article to provide a detailed enumeration of the approaches to mens rea in specific and general complicity provisions.Footnote 146 However, it is suggested that setting too low a standard might have overly detrimental effects on weak governance States which are incapable of giving effect to their international obligations, and may deter FDI and development – factors which are of significant concern to many host States in the Global South. While Gibney criticizes the ICJ's interpretation of complicity in Bosnian Genocide Footnote 147 as setting ‘(nearly) impossible standards’,Footnote 148 it is arguably unnecessary to incorporate the lower due diligence standard he endorses into human rights complicity, given that there are myriad due diligence obligations relating to the activities of private actors already incumbent upon States. The nature of these duties will be explored below. What is clear is that in addition to attributional rules enshrined in ASRIWA, some form of primary complicity rule may have a place in the rule structure of the proposed business and human rights treaty.
C. Due Diligence State Responsibility
Separate to the attribution of a non-State actor's conduct to a State, and to the substantive complicity rules detailed above, are the due diligence obligations mandating States to protect their populations from the adverse effects produced by private actors. For instance, Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) requires State parties to ‘respect and ensure to all individuals within [their] territory and subject to [their] jurisdiction the rights recognised in the present Covenant without distinction of any kind’.Footnote 149 The Human Rights Committee (HRC) has expressly stated that States will only discharge their positive obligations if due diligenceFootnote 150 is exercised in the protection of individuals, ‘not just against violations of the Covenant rights by its agents, but also against acts committed by private persons or entities’.Footnote 151
Similarly, with regard to individual complaints under the Optional Protocol to the ICCPR, the HRC has attributed breaches to State parties that have failed to protect their population from private actors.Footnote 152 In Lubicon Lake Band v Canada,Footnote 153 the complainants alleged that their land had been expropriated for commercial development including oil and gas extraction. The HRC found a breach of Article 27 ICCPR by the State of Canada. SERAC v Nigeria Footnote 154 concerned a communication to the African Commission for Human and Peoples’ Rights regarding environmental degradation resulting from the conduct of a State oil company, which serves as majority shareholder in a joint venture with Shell Petroleum, among others. While recognizing the ‘widespread violations perpetrated by the Government of Nigeria and by private actors (be it following its clear blessing or not)’,Footnote 155 the Commission ultimately affirmed the sole responsibility of the Nigerian State.Footnote 156 Similarly, the responsibility of States to protect their citizens from the activities of non-State armed groups are said to arise only ‘upon the State's own failure to act’.Footnote 157 Thus, these treaty obligations address non-State actors only indirectly, as a consequence of the express consent of the State in which they are domiciled. Yet, to call these obligations ‘indirect’ at all is problematic. ‘The phrase “indirect obligation” actually refers to typical obligations binding on States according to the traditional doctrine of international law.’Footnote 158
In the context of a business and human rights treaty, a regime of shared responsibility is conceivable in which non-State actors bear direct obligations, for instance, not to engage in activity which violates the right to life, in addition to a separate general obligation on States to act with diligence in protecting their populations from the abusive conduct of private parties. It is arguable whether the instrument need even provide a restatement of the State obligation, given that it is already widely represented in other treaties. This may provide another means of drawing a conceptual distinction between wrongful acts, thereby circumventing the doctrinal complexities of allocating responsibility between multiple actors for the breach of a single primary obligation. Instead, a State's responsibility might be drawn from the ICCPR, while the non-State actor's responsibility is drawn from the breach of a primary obligation contained within a business and human rights treaty. Such a division of responsibility would potentially fill the void between complicit State conduct, and the wilful blindness of a State to the conduct of non-State actors operating within their territory.
D. Joint and Several Liability
This final approach is supplementary to the holistic responsibility framework outlined above. In the vein of Lauterpacht,Footnote 159 it draws an analogy from the private law notion of joint and several liability, where a State might incur full legal responsibility for human rights abuses perpetuated by a non-State actor on its territory, and would then bear the onus to seek remediation from the private actor in question.Footnote 160 For Vandenhole, the private law analogy in human rights is a surprisingly good fit, since ‘the notion of injury to individuals is key to human rights responsibility and accountability … [and] the objective of human rights law is to offer reparation to the victim’.Footnote 161 This enumeration arguably oversimplifies the human rights project, which is not premised purely on ex post facto redress, but also entails ex ante obligations. Emphasizing the public law character of international law, Brownlie reminds us that ‘[t]he duty to pay compensation is a normal consequence of responsibility, but is not conterminous with it’.Footnote 162 That said, the manner in which human rights redress has been managed at the domestic level, particularly in relation to business actors, demonstrates the significant utility of private law, and thus it should not be written off. Vandenhole's assertion as to the mixed nature of the international law of responsibility finds support in the work of CrawfordFootnote 163 and Nollkaemper.Footnote 164 Further, Noyes and Smith, in their prescient 1988 article, provided that ‘an examination of the limited body of decisions, State practice, municipal analogies and accepted principles of the international legal system leads to the conclusion that significant support exists for the principle of joint and several liability in international law’.Footnote 165 Alford has also echoed the view of Bruno Simma in the ICJ's Oil Platforms decisionFootnote 166 that a joint and several liability rule can be derived from domestic legal systemsFootnote 167 as a general principle of law within the meaning of Article 38(1)(c) of the ICJ Statute.Footnote 168
The notion of joint and several liability is visible at the international level in the 1972 Convention on International Liability for Damage Caused by Space Objects.Footnote 169 States jointly participating in the launch of a space object are to be held ‘jointly and severally liable for the damage caused’.Footnote 170 Interestingly, a similar provision contemplates wrongdoers acting independently.Footnote 171 Thus, a party injured as a result of the collision of two space objects may claim compensation from all or any of the launching States involved. There is no requirement that they act in concert. In determining how responsibility for damages will be allocated, Article 4(2) provides that the burden ‘shall be apportioned between the first two States in accordance to the extent they were at fault; if the extent of the fault … cannot be established … compensation shall be apportioned equally between them’.Footnote 172 This approach is advocated by Noyes and Smith in advancing a general notion of joint and several liability in international law.Footnote 173 Indeed, international practice has indicated that the liability of States may be adjusted to reflect the intervening conduct of non-State actors.Footnote 174
While the Space Liability Convention provides an example of the principle in operation in international law, this regime only operates between States. A more compelling analogy may be drawn from the Convention on the Law of the Sea (UNCLOS), where supervisory obligations are split between sponsoring States, and the International Seabed Authority (ISA),Footnote 175 and private sponsored entities are bound by the provisions of internationalized contracts concluded with the ISA.Footnote 176 Particularly interesting is Article 139, which provides that ‘States Parties or international organizations acting together shall bear joint and several liability’ for damage resulting from their failure to carry out their responsibilities.Footnote 177 The International Tribunal for the Law of the Sea (ITLOS) Seabed Disputes Chamber has confirmed the application of this principle, stating that it ‘arises where different entities have contributed to the same damage so that full reparation can be claimed from all or any of them’.Footnote 178 It is interesting to note the ‘same damage’ criterion adopted in Article 139 UNCLOS, which departs from the ‘common wrongful act’ stipulation in Article 47 ASRIWA.Footnote 179 Indeed, the Seabed Chamber has confirmed that sponsoring States and international organizations need not act in concert;Footnote 180 they need only contribute to the same outcome, a rarity in international law.Footnote 181
Still, the apportionment of responsibility remains problematic.Footnote 182 Under UNCLOS, States and the ISA are burdened with supervisory obligations, while private contractors will often carry out the harmful act in question.Footnote 183 The Seabed Chamber has recently concluded that the obligations giving rise to joint and several liability between States and the ISA, and the contractual obligations of a private actor with the ISA, exist in parallel.Footnote 184 Thus, under UNCLOS, ‘no regime of joint and several liability of a sponsoring State and a private contractor was said to exist’Footnote 185 where a State had taken all measures necessary to ensure effective compliance.Footnote 186 Instead, the liability of the contractor will need to be pursued at the domestic level, or brought to the Seabed Chamber by the ISA for breach of contract. Yet, Nollkaemper has suggested that there may be interpretive room to read in a form of joint and several liability between States and non-State actors.Footnote 187 Though the types of obligations incumbent on each entity are arguably distinct, Article 22 of annex 3 provides that contractors can be liable for ‘any damage arising out of wrongful acts in the conduct of its operations’,Footnote 188 appearing to refer to liability in international law.Footnote 189
This possibility notwithstanding, Nollkaemper is keen to caution that the decentralized nature of the international legal system will pose procedural issues, as will the paucity of courts of compulsory jurisdiction.Footnote 190 In the absence of an expansive reading of Article 139, the lack of the joint and several liability of the private contractor might also lead to procedural fragmentation, with claims against States and the ISA being dealt with at international tribunals, and breach of contract claims against private actors being dealt with either at the domestic level, or referred to the Seabed Chamber by the ISA.Footnote 191 Given that sponsoring States and the ISA bear the supervisory obligations within UNCLOS, and private actors may be held responsible only in relation to claims of breach of contract, it is possible that a contractor will be absent from proceedings against a State and/or the ISA, despite being vital in determining a causal link between a breach of UNCLOS and the ensuing damage.Footnote 192 Furthermore, exactly how a party which has paid reparations to the victim will bring actions against other responsible parties is not clear,Footnote 193 and as such, the possibility of such an action ‘remains merely theoretical, casting doubt on the principle's relevance in international law.’Footnote 194 Thus, while this regime provides a glimpse at how a system of joint and several liability might operate at the international level, questions remain as to its precise operation.
IV. DELIMITING THE SCOPE AND CONTENT OF NON-STATE ACTOR HUMAN RIGHTS OBLIGATIONS
The potential framing of the proposed treaty's obligations having been examined above, questions remain as to their precise content and scope. In this regard, John Ruggie's response to the Ecuadorian initiative has been mixed, having pragmatically highlighted the diverse legal issues related to the sphere of business and human rights.
[T]he category of business and human rights is not so discrete an issue-area as to lend itself to a single set of detailed treaty obligations. It includes complex clusters of different bodies of national and international law … any attempt to aggregate them into a general business and human rights treaty would have to be pitched at such a high level of abstraction that it is hard to imagine it providing a basis for meaningful legal action.Footnote 195
Ruggie has also previously expressed concern that a treaty might set too low a ceiling.Footnote 196 Scholars such as Ramasatry, largely echoing Ruggie's apprehensions, have drawn analogy from the anti-corruption/bribery movement and instead advocated a number of narrower treaties establishing corporate liability for specific conduct, particularly in the fields of mineral extraction and illegal logging.Footnote 197 While this middle ground may go some way toward addressing Ruggie's concerns, the present Anti-Corruption Convention, while emphasizing the liability of legal persons,Footnote 198 is still framed entirely in terms of State responsibility.Footnote 199
It is unlikely that the form and content of international human rights obligations directly addressing business actors could simply mirror those presently addressed to States.Footnote 200 Whereas broadly negative obligations to respect human rights may easily lend themselves to application in the corporate context,Footnote 201 obligations demanding positive action to protect or fulfil the realization of human rights may prove more problematic. While scholars have cautioned that baseline obligations to respect human rights by refraining from various types of activity do not imply as a corollary obligations to advance human rights standards,Footnote 202 the binary separation between positive and negative obligations is not particularly helpful in light of the privatization of governmental functions.Footnote 203
The obligation to respect may encompass a duty to act: in the case of private prisons, a duty to guarantee the minimum standards regarding conditions of detention … This obligation is conceptually different, independent from, and concurrent with the obligation of the State to protect the rights of inmates by establishing an effective regulatory system regarding the privatization of prisons and guaranteeing judicial remedies for human rights violations.Footnote 204
The same may be said with regard to economic social and cultural rights such as the rights to health, food and water, which are often impacted by the disastrous environmental effects of corporate operations.Footnote 205 While these rights have classically been framed as positive duties on States demanding their progressive realization via the allocation of appropriate funding and infrastructure, the dichotomy between positive and negative rights has been exposed as excessively reductive.Footnote 206 These same rights could be represented within a business and human rights treaty in a manner that respects the differential scope of the duties of States and non-State actors. For instance, an obligation to refrain from the use of land and resources in a manner that is detrimental to the health, environmental, land and cultural rights of populations would tailor the content of these rights to the corporate context. While such an obligation may imply a positive duty to carry out appropriate risk assessments, such demands are hardly unduly restrictive, and are already codified within existing soft-law regimes.Footnote 207
A second factor that must be contended with is that of scope. The responsibility of a State to respect, protect and fulfil existing human rights standards is delineated by a spatial dimension, that of its jurisdiction.Footnote 208 The notion of jurisdiction in international human rights law has classically been conceived as primarily territorial in nature.Footnote 209 Since business actors do not possess permanent sovereignty or territorial control in the same manner as a State, or even a non-State armed group,Footnote 210 some other factor will be required in order to determine the limits of corporate responsibility.
At one end is the approach that tends towards an abstract test, independent of the particular act or omission in question, like the overall or effective control tests … or sphere of influence or proximity tests. At the other end is a contextual and inductive approach that … [focuses] on actual or potential use of power or activity, and its effects or impact on rights-holders.Footnote 211
The first matter that must be considered is the nature of the obligation. This is linked to the forgoing discussion of primary and secondary rules, which identified that there is scope to establish two sets of primary obligations within the proposed treaty: one which deems a principal violation wrongful, and a second which deems complicity in that principal wrong to engage an actor's responsibility. Ratner has suggested that where a corporation breaches a complicity obligation ‘the factor of the nexus to the affected populations drops out’.Footnote 212 In effect, the delimitation of the obligation is derived from the breach of the principal wrong by a State actor. While this enumeration does not account for a scenario in which a corporation is deemed to be the principal wrongdoer with the aid or assistance of a State, it could be argued that in most scenarios the State's responsibility would be captured under its general due diligence obligations. Ratner continues:
Second is a set of duties on the corporation not to infringe directly on the human rights of those with whom it enjoys certain ties, with the possibility of greater duties depending upon the scope of those links … These connections may, for example, emanate from legal ties (as with employees), physical proximity, or possession of de facto control over a piece of territory.Footnote 213
While such an approach seems reasonable, the precise shape of these tests remains unclear. Proximity may imply political or economic ties, or may be circumscribed by geography, a notion which Ruggie describes as ‘misleading … [companies] can equally affect the rights of people far away from the source’.Footnote 214 While ‘legal ties’ with employees seems to be the simplest measure, given the sprawling corporate structures exhibited by many multinational enterprises,Footnote 215 the question is how far ‘legal ties’ will go. Will they stretch down the entire supply chain to reach contractors and subcontractors of subsidiary corporations? It would seem unlikely in light of domestic tort litigation, a Dutch Court having recently held that
proximity between [a] parent company and the employees of its subsidiary that operates in the same country cannot be unreservedly equated with the proximity between the parent of an international group of oil companies and the [population] in the vicinity … of its [foreign] subsidiaries.Footnote 216
It was on this basis that the Dutch Court distinguished the case before it from the landmark Chandler v Cape judgment, which recognized that, in limited circumstances, parents may be held responsible for the overseas operations of their subsidiaries.Footnote 217 While an appeal is pending before the Dutch Courts following a ruling that company documents previously denied to the plaintiffs should be disclosed, the final outcome of the case remains uncertain.Footnote 218 ‘Procedural defences’ of this kind are often invoked by business actors in domestic litigation in order to avoid liability, and might also factor into the enforcement of international obligations.Footnote 219 Whether parent companies alone, where the majority of a business's assets lies, ought to be targeted primarily for their lack of oversight, or other entities further down the supply chain should be indicted, is another question feeding into the debate as to the scope of the treaty. Should the instrument target only companies operating transnationally, or should it be broader in scope?Footnote 220
The principle of ‘due diligence’ is another delimiting standard that is key to operationalizing the UNGPs.Footnote 221 Principle 17(a) advises that the concept covers ‘adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships’.Footnote 222 The commentary to this principle provides that ‘[w]here business enterprises have large numbers of entities in their value chains it may be unreasonably difficult to conduct due diligence for adverse human rights impacts across them all’.Footnote 223 If adopted by the proposed treaty, such a loose delimitation of the scope of the obligations would arguably give rise to procedural issues in establishing a breach in situations involving multinational conglomerates. Others have emphasized the responsibility of actors for human rights to the extent that they fall within their ‘sphere of influence’, a notion that gained traction during the drafting of the ultimately abandoned 2003 Draft Norms on Transnational Corporations. The concept has been described as a ‘set of concentric circles, mapping stakeholders in a company's value chain’.Footnote 224 Ruggie has been critical of the treatment of this term as ‘functionally equivalent to a State’s jurisdiction’, warning against the ambiguity of the term, which might invite manipulation from States seeking to avoid their own human rights responsibility.Footnote 225
Karavias has also cautioned against the adoption of this standard in determining the scope of human rights obligations.
Irrespective of whether we term it ‘jurisdiction’ or ‘sphere of influence’, the root of human rights obligations is the existence of a factual situation, namely control … Corporations, unlike States, do not in principle exercise control over territory … Still, corporations may exercise functional control over persons.Footnote 226
It has been suggested that the control standard is essentially ‘a short hand for something that looks surprisingly like sovereignty’.Footnote 227 The approach has been elaborated by the jurisprudence of the European Court of Human Rights dealing with the exercise of extraterritorial jurisdiction in cases arising from the 2003 Iraq conflict.Footnote 228 The Court has recognized that jurisdiction may be established by States exercising control over persons, premises, territory or vessels.Footnote 229 Interestingly, it has not limited the notion of personal jurisdiction to individuals detained in physical custody, and has recognized that the use of force may, in some circumstances, amount to an assertion of jurisdiction.Footnote 230 That said, the Court has been notoriously inconsistent in its justifications for the establishment of extraterritorial jurisdiction,Footnote 231 and as such may not be the best indicator of accepted doctrine.Footnote 232 Precisely what constitutes ‘control’ or ‘force’, and whether such principles would cover conduct giving rise to widespread environmental devastation is perhaps open to question. The exact scope of the causal link required will demand further analysis. While mere corporate presence in a State in which human rights abuses take place is probably not sufficient to establish a link, ‘where a State perpetrates human rights violations with a view to luring corporate investment, one may argue that corporate investors retain some sort of “indirect” control over the aggrieved individuals’.Footnote 233 Given that this form of jurisdictional link has not yet crystallized in relation to the conduct of States and their agents, no firm conclusions can be drawn on this matter. Yet, in the context of the alternatives explored above, the control criterion advocated by scholars such as Ratner and Karavias is perhaps the most pragmatic.
V. REMEDIES AND ENFORCEMENT MECHANISMS
The nature of the adjudication and enforcement of the proposed treaty regime presents a complex set of questions, the answers to which are conditional upon the type of remedy pursued. Ex ante measures embedded within human rights treaty regimes are ‘forward-looking’, in that they seek the prevention and management of harm arising from adverse human rights impacts.Footnote 234 This type of mechanism is pre-emptive, seeking to deter non-compliance through periodic monitoring and engagement with relevant duty-bearers. The question arises as to whether a treaty-monitoring body tasked with ex ante duties in monitoring periodic reports from relevant duty-holders might play a part in the proposed regime. Ruggie has suggested that difficulties would be faced were such a mechanism to be established, given that many vulnerable weak governance States may be incapable of meaningfully engaging with reporting requirements. On the other hand, ‘if reporting was to be done by companies directly, then presumably States would have to enforce the obligation upon them … How a treaty body would cope with the incalculably large universe of businesses … is unclear’.Footnote 235 Some treaty-monitoring bodies also perform quasi-judicial roles in the consideration of individual complaints brought against signatory States, permitting further interpretation of human rights standards and the rendering of recommendations to State parties regarding ex post facto remedies. The benefits of these types of decision in the further codification of human rights standards notwithstanding, their non-binding status and the poor record of State implementation and enforcement of these decisions does not lend confidence to their efficacy in compensating the harms suffered by victims.Footnote 236 Other treaty regimes demand regular visits to relevant sites by independent bodies in order to monitor the implementation of human rights standards.Footnote 237 Clearly, ex ante enforcement mechanisms and ex post facto remedies are complementary in the field of human rights, and the proposed regime would ideally need to tailor both to the business and human rights context. Whether this could be achieved solely by the establishment of a treaty-monitoring body is doubtful, though it may be the most pragmatic, in that it might permit individual complaints against States and non-State actors, leading to recommendations that States pursue binding domestic litigation against business actors to ensure remediation for victims.
The weakness of international enforcement mechanisms more generally remains an oft-cited criticism of the international legal system, and the dialogue surrounding the establishment of a business and human rights treaty exacerbates such concerns. At present, international courts do not possess jurisdiction over business actors, the involvement of non-State actors in adjudicative procedures having been largely constrained to the submission of amicus curiae briefs.Footnote 238 It is clear in the statement submitted by Ecuador that avenues for redress ought to be provided under the binding regulatory framework proposed. Ruggie has also stressed the need for elaboration as to whether such enforcement would take place at the domestic level, where it would be vulnerable to many procedural flaws experienced in weak governance States, or whether an ‘international court for corporations’ should be established.Footnote 239 It is worth briefly considering how such a court might function.
Scholars advocating the international criminal responsibility of non-State entitiesFootnote 240 have highlighted the recourse made to juridical persons during the drafting of the Statute of Rome 1998.Footnote 241 While one draft expressly provided the International Criminal Court (ICC) with the competence to render a judgment over legal persons ‘when the crimes committed were committed on behalf of such legal persons or by their agencies’, the provision was ultimately omitted.Footnote 242 Nonetheless, Clapham has emphasized that this resulted from a lack of time during the late stages of the drafting process, rather than objections from representatives.Footnote 243 While commentators have suggested that jurisdiction over legal persons could be affirmed in the future,Footnote 244 the ICC has not pursued such measures. Indeed, the expansion of the ICC's mandate in this manner could create even more political opposition to the Court's very existence.Footnote 245 Other objections have emphasized the need for complementarity between national and international spheres,Footnote 246 and the inherent difficulties in establishing the actus reusFootnote 247 and mens rea of corporate entities.Footnote 248
While the first ICC prosecutor was likely correct when he remarked, ‘[f]ollow the trail of the money and you will find the criminals’,Footnote 249 given the complex corporate structures boasted by many business actors, the difficulty in pinpointing specific individuals to bear criminal responsibility will be significant. It has been suggested that ‘command responsibility’, which applies to crimes committed by subordinates operating under the effective control of a superior,Footnote 250 offers an avenue to expose company directors to international criminal liability.Footnote 251 While most often utilized to establish responsibility in military command chains, the jurisprudence of the ICTR reflects the conviction of company directors for the crimes of genocide and crimes against humanity on this basis.Footnote 252 Yet, such avenues are not appropriate to fill the accountability gap with regard to business actors, in that ex post facto redress is not the only purpose of the human rights regime. Moreover, only a limited range of offences fall within the jurisdiction of the ICC. Any suggestion that its competences could be expanded in the futureFootnote 253 is countered by the limitation of its jurisdiction to ‘the most serious crimes of concern to the international community’.Footnote 254 As Chiomenti suggests, ‘[i]t is difficult to imagine that, except in extreme circumstances … a corporation ordinarily operating in the industrial, commercial, or services sector, will act as the principal author to commit any of the crimes falling under the jurisdiction of the ICC’.Footnote 255
A draft statute for a World Court of Human Rights possessing jurisdiction over non-State actors has been developed by Nowak and Kozma.Footnote 256 Practitioners such as Cronstedt have also discussed the potential structure of an International Tribunal on Business and Human Rights.Footnote 257 Such an institution would not issue legally binding decisions, but would rely entirely on the concern of business actors regarding their corporate image.Footnote 258 Unfortunately, these drafts make the standing of non-State actors before the proposed arbitral bodies contingent upon a declaration of their consent,Footnote 259 a factor which is rendered entirely unnecessary from the formalist theoretical perspective advanced above. Indeed, an analogy might be drawn from the Seabed Disputes Chamber that has jurisdiction over States, the ISA, as well as natural and juridical persons, ‘a significant departure from the general regime that confines jurisdiction ratione personae to States and international organizations’.Footnote 260 However, scholars such as Boyle and Harrison have been reticent concerning the idea of a specialized international environmental court, on the basis of the sheer variety of laws relevant to environmental disputes. The judges of such a court would require a wide-ranging grasp of international law, rendering them no different, in effect, to those at the ICJ.Footnote 261 Given the strong parallels between environmental degradation and the operations of multinational enterprises, similar practical concerns could be expressed in relation to a World Court on Business and Human Rights.
Assuming it is possible to establish a judicial body capable of hearing claims against States and non-State actors, its task in apportioning responsibility for fulfilment of the remedial damages among multiple perpetrators would doubtless prove highly complex. Consider the event that separate primary obligations for both direct and complicit breaches were drafted, in line with the approach considered above in Section III. Drawing an analogy from the scheme underpinning reparations in ASRIWA, it must first be established that the wrongful acts in question each have a direct causal connection to the victim's injury.Footnote 262 Once satisfied, at least two distinct situations are possible. The conduct of multiple actors either gives rise to: i) separate wrongful acts contributing to a single injury; or ii) separate wrongful acts contributing to multiple separate injuries. In the first situation, a business actor might breach an international obligation by engaging in torture, and a State may breach a second obligation by engaging in complicit conduct. Thus, two distinct but nonetheless complementary breaches are inseparably linked to the victim's injury. D'Argent suggests that there are two ways to deal with reparations in such a situation; either one wrongful act is identified and isolated as the decisive cause, and a single party is held liable for the entire sum of damages, or all parties are held to be jointly and severally liable for full reparation.Footnote 263 This analysis demonstrates the interrelationship between the tiers of the rule structure proposed above. While the approach of joint and several liability seems preferable from the victim's perspective, it raises the question of how responsible actors might seek redress for contributions to the harmful outcome by their co-perpetrators. Whether claims could play out between States and non-State actors domestically is questionable, given the unwillingness or incapacity of many States to give domestic effect to their international human rights obligations in the first place.
The position is arguably more straightforward in the second situation, where separate breaches give rise to separate (though potentially related) injuries. Consider the scenario in which a State and a business actor separately engage in torture. D'Argent suggests that in this situation, ‘the responsibility of each wrongdoer can be separately invoked to the extent of the causal importance of its own wrongful act in relation to the [overall] injury’.Footnote 264 The simplification arising from the distinct nature of the injuries notwithstanding, ‘the apportionment of the obligation to make reparation in situations of complementary causal wrongful acts is far from being so… such a solution can only be implemented on a case by case basis’.Footnote 265 In addition, there are necessarily shades of grey that arise between these two extremes, further exacerbating hurdles to the achievement of an adequate remedy for victims.
A final procedural matter relates to the enforcement of the remedy once a ruling has been issued. While it may be argued that there is some value in the rendering of a judgment by a court or quasi-judicial body even in the absence of power to enforce the implementation of decisions, the assurance of actual compliance is also desirable. Given that the decisions rendered by a ‘World Court’ are likely to refer to corporate activity occurring within the territory of ‘host’ States, the adoption of appropriate domestic responses will likely fall to the very weak governance States that are unwilling or unable to provide initial safeguards. Poor compliance may also arise in light of the desires of more economically powerful States to protect their corporate nationals.Footnote 266 Significant cooperation would be required on the part of developing ‘host’ States and Western ‘home’ States in order to curtail corporate abuses,Footnote 267 a position that is undeniably optimistic.Footnote 268 Thus, while the formalist theoretical approach advanced above permits States to realize a binding treaty and accord ‘supranational competences to an overarching body … the growth of international cooperation is a slow process because States would generally be hesitant to reduce the legal freedoms they enjoy’.Footnote 269 These are important realist factors that hamper the implementation of the proposed treaty regime. While there is nothing theoretically preventing the extension of rights and duties to non-State actors in theory, the willingness of States, who remain the primary legislators and are substantially economically dependent on multinationals for employment and capital, is not guaranteed. Yet, it is useful to bear in mind Paine's optimistic retort:
True, we need to be cognizant that the powerful will retain the ability to act contrary to existing law, but … legal validity … can offer a useful medium for critiquing the actions of the powerful and should not be given up too quickly, even when confronted with the ability of the powerful to displace existing law.Footnote 270
It is submitted that the manner in which the issue of non-State actor regulation is framed theoretically may have profound consequences on its practical operation. This much is evident in the subsisting State-centric operation of public international law. As such, it is argued that there is significant utility in establishing more robust theoretical foundations, even in the absence of an effective enforcement mechanism, since this may provide the groundwork for future normative development.
VI. CONCLUSIONS
The forgoing analysis demonstrates the doctrinal complexities that must be contended with in order to advance public international law in the direction of direct non-State actor regulation. While there are no simple answers in assessing the feasibility of a business and human rights treaty, some preliminary conclusions may be drawn in at least two of the four substantive areas addressed. It has been demonstrated that some shift is required in the manner in which international obligations are theoretically conceptualized in order to build a convincing case that business actors serve as direct addressees. Classical State-centric scholarship has relied on a contractarian underpinning that has proven to be methodologically flawed, incapable of responding to shifting power dynamics, and has sustained specious sensitivities in political and legal doctrine. This article has argued that the adoption of a formalist understanding of international legal personality can circumvent many of these anxieties, and instead advance a more logical foundation that is receptive to direct non-State actor regulation.
A second observation that can be drawn concerns the identification of duty-bearers, and the allocation of responsibility. Given the traditionally bilateral scope of international responsibility, its apportionment between multiple parties for their contributions to the same harmful outcome has given rise to significant debate over the last decade. If the proposed treaty is to move beyond the imposition of State-centric obligations, then the attribution model of State responsibility falls short of establishing a robust system of allocation. The model advanced above suggests that the attribution of offending conduct to States would need to be supplemented by complicity and due diligence provisions in order that responsibility might be assigned to multiple actors, in appropriate proportions. By viewing complicity provisions as a form of primary rule, it is possible to circumvent the hurdles that would be encountered in attempting to allocate responsibility for a single wrongful act. State conduct that does not meet the complicity threshold could also be captured by due diligence obligations within existing treaties. In adopting a holistic approach of this kind that incorporates extant international responsibility regimes, it is possible to draw a conceptual distinction between the distinct wrongful acts of multiple perpetrators. This in turn might aid assessments of the causal contributions of multiple actors in the implementation of a system of remediation framed in terms of joint and several liability. These virtues notwithstanding, whether this model would prove too complex to secure practical implementation remains a concern.
The path becomes more obscure in relation to the final two sections of the article, which addressed the delimitation of international obligations addressing business actors, and modes of enforcement. While an analogy may be drawn with principles such as ‘due diligence’, the corporate ‘sphere of influence’ in established soft-law initiatives, or the notion of ‘control’ that has gained traction in jurisprudence relating to the extraterritorial obligations of States, the precise way forward is unclear. While the latter approach appears to be the most pragmatic, practice has not settled in relation to States, let alone non-State entities. This is clearly a matter of fundamental importance to the success of a treaty addressing business actors, and must be subjected to further scrutiny. It has been suggested that the determination of the scope of obligations is as much to do with policy as legal doctrine, and as such, arguments relating to the ideology of the free market are likely to curtail efforts to formulate duties owed by corporations to all individuals their activities touch and concern.
With regard to the grant of remedies and their enforcement, it is unlikely that the domestic courts of weak governance States could provide the procedural guarantees required to administer decisions, and short of an amendment to their constituent documents, existing international courts are presently incapable of accommodating claims relating to corporate non-State actors. While a court or tribunal with compulsory jurisdiction and the competence to hear joint and several liability claims concerning contributions to the ‘same damage’ is perhaps the preferred option, the complex nature of the multi-party disputes, which are likely to engage numerous treaties, will doubtless prove to be a major impediment. Thus, while there is little that cannot be overcome in terms of legal theory and doctrine given the requisite political will, it is the practical realization of a binding business and human rights regime that will likely prove to be the complicating factor. History dictates that the establishment of treaty regimes can crystallize over time into highly advanced institutionalized systems, evidenced by the extant State-centric human rights framework. It is submitted that there is inherent value in attempting to solve doctrinal dilemmas surrounding the proposed treaty in the short term, in that this process will fortify legal scholarship as a vehicle for the immanent critique of the abusive acts of both State and non-State actors. As we stand at the foothills of a legally binding framework addressing business actors, the task is to keep asking the difficult questions, and to resist dejection by the terrain which impedes the summit.
