Human rights responsibilities of private corporations.

AuthorPaust, Jordan J.

ABSTRACT

This Article discusses the human rights responsibilities of private corporations. Part I addresses how decisions and activities of multinational corporations impact human rights. Part II examines corporate liability under human rights laws by examining trends in judicial decisions in the United States and foreign states and human rights instruments. Part III explores the types of human rights deprivations that multinational corporations might cause. The Article concludes by predicting that there will be increasing scrutiny of corporate deprivations of human rights at the domestic, regional, and international levels.

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  1. DECISIONS AND ACTIVITIES OF MULTINATIONAL CORPORATIONS CAN SIGNIFICANTLY IMPACT HUMAN RIGHTS

    Many private economic institutions, such as large multinational corporations, often wield significant power and affect numerous human beings both directly and indirectly in various sectors of public and private life. In fact, many multinational corporations wield more effective power and wealth than many nation-states. In terms of potential impact, decisions and activities of many large multinational corporations are capable of doing more harm to persons and resources in ways that thwart human rights than decisions and activities of some nation-states. (1) Additionally, large economic institutions are often capable of doing more harm in violation of international law than private individuals because they often wield more power and wealth than individuals, often engage in activities that transcend state boundaries and effective control, and are often capable of causing more extensive injuries to persons or harm to property, other resources, and the environment, both domestically and transnationally. It is appropriate, therefore, to address human rights responsibilities of private corporations, including relevant trends in judicial decisions, the reach of human rights instruments, and types of potential violations.

  2. MULTINATIONAL CORPORATIONS CAN BE LIABLE UNDER HUMAN RIGHTS LAW

    1. Cases Recognize Private and Corporate Responsibility for Human Rights Violations

      1. Trends in Decisions in the United States

        Does human rights law reach private multinational corporations? Despite the lack of widespread early attention to private corporate liability for human rights deprivations, preferences of a few textwriters, and remarkable confusion, (2) human rights law can reach private corporations. More generally, a private corporation as such is simply a juridic person and has no immunity under U.S. domestic or international law. In each nation-state, private corporations, like private individuals, are bound by domestic laws. (3) Similarly, private corporations and entities are bound by international laws applicable to individuals. For example, in the United States and elsewhere, companies and other non-state associations and organizations have been found to have civil and criminal responsibility for various violations of international law, including human rights and related international proscriptions. (4) In the United States, private companies have rights to sue under the Alien Tort Claims Act (ATCA) (5) and it is only logical and policy-serving that they can also be defendants under the ATCA. In fact, there have been express recognitions to that effect in U.S. cases. (6) For example, in 1997, in Doe v. Unocal Corp., (7) the Central District of California recognized that several human rights and other international law claims made by farmers from Burma against a private corporation and others were viable under the ATCA. (8) These claims included claims of slave or "forced" labor, torture, violence against women, and other human rights violations and crimes against humanity that also occurred in complicity with Burmese military, intelligence groups, and police. (9) Addressing universal jurisdiction through the ATCA and nonimmunity of corporate actors for cruel, inhumane treatment and slave or forced labor, the district court in Iwanowa v. Ford Motor Co. (10) added: "No logical reason exists for allowing private individuals and corporations to escape liability for universally condemned violations of international law merely because they were not acting under color of law." (11) In 1907, an Opinion of the U.S. Attorney General recognized that a private U.S. company violated a treaty by diverting the Rio Grande through dredging activities. (12) The Attorney General noted that an International Water Boundary Commission "found ... It]hat the ... Company ... violated the stipulations of that treaty," and recognized that injuries included "damage to property," including injury to "riparian rights," and "[a]s to indemnity for injuries which may have been caused to citizens of Mexico, I am of the opinion that existing statutes provide a right of action and a forum ... the statutes [including the ATCA] thus provide a forum and a right of action." (13)

        In Burger-Fischer v. DeGussa AG. & DeGussa Corp., claims were made concerning the seizure of property and slave labor. (14) In Bodner v. Banque Paribas, the court found that claims against banks for looting, conversion, and withholding of assets of victims of the Nazi Holocaust in violation of human rights and other international law were actionable under the ATCA. (15) Alleged corporate involvement with prison labor also led to suits in Ge v. Peng (16) and Doe v. The Gap, Inc. (17) Ge was later dismissed, however, because, "[u]nlike Kadic and its progeny, ... [the] case involves the use of forced prison labor in the production of soccer balls ... [and] forced prison labor [according to the court] is not ... proscribed by international law." (18) In Jama v. U.S. I.N.S, (19) the court found that violations of human rights prohibitions of cruel, inhuman, or degrading treatment by a private correctional corporation and its officers and employees acting under contract with the Immigration and Naturalization Services--which made the corporate officers "state actors" (20)--were actionable under the ATCA. (21) In Eastman Kodak Co. v. Kavlin, the district court found that claims of arbitrary detention involving a Brazilian company and an individual owner thereof who allegedly conspired with local Brazilian officials were actionable under the ATCA. (22)

        In addition to cases involving claims under the ATCA, lawsuits brought against companies under other U.S. statutes or domestic legal provisions have led to recognition of the applicability of relevant human rights precepts in varied contexts. (23) Additionally, a growing number of lawsuits have been brought against companies or corporations under state "human rights" laws that appear to be relevant not merely because of titles of the various state laws and state entities created to enforce such laws, (24) but also because claims typically involve employment discrimination. (25) Employment discrimination claims could constitute claims under international human rights law, but such claims are expressly based on state human rights laws and decisions of state human rights commissions or boards. (26)

      2. Trends in Decisions Outside the United States

        Judicial decisions outside the United States have recognized human rights responsibilities of private persons, companies, and corporations. As noted elsewhere in this essay, Japanese (27) and German (28) cases have recognized such forms of private responsibility, and there has been similar recognition by the European Court of Human Rights. (29) More recently, the British House of Lords recognized that a private corporation's responsibilities under domestic employment law are "[s]ubject to observance of fundamental human rights...." (30) In 1998, the Supreme Court of Canada recognized that it is possible "for a non-state actor to perpetuate human rights violations on a scale amounting to persecution" within the reach of the Refugee Convention (31) and, more generally, that private actors can engage in human rights violations. (32) Previously, the Supreme Court of Canada recognized that sexual harassment in the workplace can involve a corporate violation of human rights precepts concerning sex-based discrimination actionable under Canadian human rights legislation. (33) An Israeli Supreme Court Justice recognized that "basic human rights are not directed only against the authority of the state, they spread also to the mutual relations between individuals themselves." (34)

    2. Human Rights Instruments Often Reach Private Perpetrators

      Most human rights instruments speak generally of particular rights of each person or everyone without any mention of or limitation concerning which persons or entities owe a corresponding duty. Thus, most duties are generally not limited to state actors and do reach private persons or entities. (35) Moreover, violations of human rights recognized in particular treaties and customary international law often reach private perpetrators expressly or by implication. (36)

      For example, the preamble to the Universal Declaration of Human Rights recognizes that the human rights proclaimed therein are "a common standard of achievement for all peoples ... [including] every individual and every organ of society." (37) Article 29, paragraph 1, affirms that "Everyone has duties to the community...."; (38) Article 30 recognizes that no right of "any ... group or person ... [exists] to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth" in the Universal Declaration. (39) Thus, there are correlative duties of groups and persons not to engage in acts aimed at the destruction of human rights set forth in the Declaration. (40) Indeed, Article 30--like provisions in most major human rights instruments--contains an interpretive command that "[n]othing ... be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any...

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