The panel was convened at 1:00 p.m., Thursday, March 30, by its moderator, Andrew Clapham of the Graduate Institute of International Studies, who introduced the panelists: Kenneth Anderson of Washington College of Law; James Gathii of Albany Law School; Emanuela-Chiara Gillard of the International Committee of the Red Cross; and David Weissbrodt of the University of Minnesota Law School. *
REMARKS BY ANDREW CLAPHAM ([dagger])
I think this panel addresses some important theoretical and practical questions facing international lawyers today. The theoretical issues revolve around what we understand to be the "subjects" of international law. At one level, law professors decide the appropriate subjects for study in a course on public international law: in our own context, the ASIL Annual Meeting Committee has deemed business entities a suitable topic for this meeting. But when does a business or corporation become a subject of the international legal order capable of bearing rights and obligations under international law?
The practical issues are related, but sometimes very separate. If we admit that some of the time some nonstate actors have some international obligations under international law, where are the appropriate for a for the adjudication of claims involving such actors, and who should decide the scope of these obligations? Even in areas where certain human rights and humanitarian law obligations are not necessarily directly applicable or enforceable, multiple initiatives now herald self-imposed commitments. Ethical investment bonds are offered when one makes pension choices, and social labeling and fair-trade products confront you whenever you go shopping. Some of these practical developments operate divorced from the strict legal regime--but the normative framework often determines the scope of the promises. Dozens of companies now refer to the Universal Declaration of Human Rights in the context of their human rights policy. (1)
How, then, does international law decide what are its proper subjects? We may be operating under a number of assumptions in this area. When the American Society of International Law first met in 1906 it would probably have been uncontroversial to claim that states were the only subjects of international law. Later meetings would have readily admitted the League of Nations, the United Nations, and individuals. Today we feel comfortable with the idea that certain intergovernmental organizations possess international legal personality and the capacity to bear international rights and obligations (including human rights obligations (2)). The possibility of individual claims under human rights law at the international level and the development of international criminal tribunals that can try individuals for international crimes mean that few today question that the individual possesses rights and obligations in international law. Nevertheless, it seems that we often assume that a forum must exist for adjudicating rights before we can accept that the obligation exists. But the logic of the Nuremberg judgment must be that individual international obligations existed before the International Military Tribunal was established. Similarly, at a certain point, international humanitarian lawyers agreed that humanitarian law also bound the rebels, not just the state. When pressed, we were told this happens by a "sort of magic," even in the absence of a forum to hold the rebel group accountable as such. Have we reached a "magic moment" in the context of corporate accountability?
Questions for the panel include: what human rights and humanitarian law obligations exist for businesses? Should such obligations be enforced through U.S. federal courts in the context of the Alien Tort Statute? Will future meetings of the Society come to see human rights violations as a question of breach of contract as businesses increasingly promise to respect human rights as part of their deal with other companies, shareholders, and customers?
* Professors Anderson and Gathii did not contribute remarks.
([dagger]) Of the Graduate Institute of International Studies, Geneva.
(1) A useful Web site posting such company policies is
(2) I have elaborated on this issue, as well as on some related questions concerning the obligations of corporations and rebel groups, in my book. Human Rights Obligations of Non-State Actors, published by Oxford University Press in 2006.
THE POSITION WITH REGARD TO INTERNATIONAL HUMANITARIAN LAW
The position under international...