A paper on the The International Law Standard for Corporate Aiding and Abetting Liability, prepared by ERI in collaboration with the University of Virginia International Human Rights Law Clinic was recently submitted to the United Nations Special Representative to the Secretary General (SRSG) on Human Rights and Transnational Corporations and other Business Enterprises.
This paper grew out of EarthRights International’s support for the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (the Norms). The Norms were adopted by the U.N. Sub-Commission on the Protection and Promotion of Human Rights in August 2003, and are the result of consultations of members of an Expert Working Group with other U.N. agencies, business associations, corporations, and NGOs, as well as U.N. Member States.
The Norms represent an important step forward, providing the first comprehensive, international statement of the human rights responsibilities of companies. While recognizing the primary role of States in guaranteeing human rights, the Norms identify the key human rights responsibilities of companies (Article 1). In doing so, the Norms should be used as a benchmark for corporate conduct, helping corporations to improve their human rights performance. The Norms can also assist government efforts in establishing compatible and socially beneficial regulatory regimes across national boundaries.
At its 60th session, in 2004, the Commission on Human Rights requested that the Office of the High Commissioner on Human Rights compile a report setting out the scope and legal status of existing initiatives and standards relating to the responsibility of transnational corporations and related business enterprises with regard to human rights, inter alia, the draft norms [on the responsibilities of transnational corporations and other business enterprises with regard to human rights] and identifying outstanding issues.
In February 2005, after consultations with a wide range of actors, including business, inter-governmental organizations, civil society and others, the High Commissioner submitted its report on the responsibilities of transnational corporations and related business enterprises with regard to human rights.
The Commission then requested that the Secretary-General appoint a Special Representative on the issue of human rights and transnational corporations and other business enterprises (SRSG).
The SRSG’s mandate calls on him, inter alia,
To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights;
To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation;
To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”;
To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises;
To compile a compendium of best practices of States and transnational corporations and other business enterprises.
In July 2005, Harvard Professor John Ruggie was appointed the SRSG.
Since this appointment, EarthRights International has engaged Professor Ruggie. As a member of the ESCR-Net Corporate Accountability Working Group, ERI contributed to a Joint NGO Report on Human Rights and the Extractive Industry, including a series of case studies highlighting patterns of violations and gaps in the protection of human rights, which was submitted to Professor Ruggie at a consultation in November 2005. At a consultation in Bangkok in June 2006, ERI presented Ruggie with an Asian Civil Society Statement signed on to by 21 Asian NGOs. ERI also submitted a separate report to Professor Ruggie on earth rights abuses by corporations in Burma.
The current paper was prepared for and submitted to Professor Ruggie on July 11, 2006.
This report has also been submitted to the International Commission of Jurists’ (ICJ) Expert Legal Panel, which was convened to develop the legal and public policy meaning of corporate complicity in the worst violations of international human rights and humanitarian law that amount to international crimes. The Panel will develop legal principles to explain when companies should be held liable in law for complicity in international crimes and, where the acts are not sufficient to attract legal liability, whether companies should nevertheless be considered responsible as a matter of international public policy. The Panel will establish clear legal guidelines for businesses, NGOs, governments and the United Nations, thereby enabling them to identify when businesses have crossed the line and have become participants in international crimes.
ERI has published this paper so that other constituencies may benefit from the research presented here.
The International Law Standard for Corporate Aiding and Abetting Liability, July 2006