Sara L. Seck, home state responsibility and local communities: the case of global mining.

• Author: Bernhard, Adrienne
• Position: Reply to article in this issue, p. 177

1. INTRODUCTION

   Efforts to deter corporate crime have been thwarted by difficulties in identifying and apprehending perpetrators, and in determining appropriate terms for liability. Sara Seck's article, "Home State Responsibility and Local Communities: The Case of Global Mining," offers an important commentary on the question of corporate social responsibility in a global era, and the corporation's relationship to state sovereignty, international relations, and extraterritorial jurisdiction. Drawing on Canada as a case study, Seck attempts to establish clear legal norms and processes that would hold Canadian corporations accountable for human rightsviolation (1) She argues that the implementation of home state regulation in Canada (and elsewhere) will provide strong incentives for Canadian mining companies to conduct their overseas business ventures in socially and environmentally responsible ways. (2)

   In Part II, I will summarize Seck's argument, focusing on her proposal to pursue corporate violations abroad through home state jurisdiction. In Part III, I will evaluate Seck's proposal, considering the benefits and drawbacks to this approach toward promoting accountability for corporate crimes. In Part IV, I offer my own alternative to home state regulation: the establishment of an international court that has jurisdiction over corporate crimes. I conclude by proposing a realistic assessment of promoting accountability for corporate crimes committed overseas. Because Seck's argument is expansive, I will limit my focus of this response to the question of jurisdiction over corporate crimes and what forum would most effectively address them.

2. THE NEED TO ADDRESS CORPORATE CRIME

   Seck provides a brief overview of the Canadian Government's Standing Committee on Foreign Affairs and International Trade (SCFAIT), which examined allegations that Canadian mining companies had committed human rights violations in developing countries. (3) She begins with a discussion of nationality and territoriality as preliminary justifications for the exercise of home-state regulation, and acknowledges the difficulties posed by extraterritorial application of its justiciability. (4)

   Seck's call for increased home state accountability is compelling for its identification of the need to curb corporate abuses through law. Her illustration of situations in which states can legitimately exercise extraterritorial jurisdiction over crimes committed by their nationals would be made even stronger if further developed to include the economics of home state regulation. Despite a conscientious agenda, Seck's ideal of "full implementation of the three pillars of participation rights" (5) does not thoroughly address the financial stakes of home state regulation. In an era of globalization with growing corporate interest in emerging markets and foreign investment, (6) the question of jurisdiction is crucial not only to the protection of human rights but also to the overseas operation of businesses. Whether Canada should implement legislation to ensure that corporate wrongdoers are held legally accountable in Canadian courts is not the only question we should pose. Rather, I suggest that it would be an effective and efficient endeavor to explore whether governments could and should defer to an international court with the power and the authority to hold corporate wrongdoers accountable.

   My response to Seck's article attempts to treat the problem of jurisdiction she articulates as a complicated global initiative, and posits the institutionalization of internationally agreed-upon procedures to deal with corporate crimes through the advent of an International Corporate Criminal Court (ICCC). (7) I emphasize that this alternative is not a rebuttal to Seck's proposal but rather a supplemental proposal that should be considered alongside it. Domestic courts are certainly one possible mechanism to confront corporate crimes committed abroad. However, an ICCC--if such a court could be created and endowed with adequate resources and enforcement powers--would be a more successful forum, or at least a helpful backstop in cases where domestic courts are unwilling or unable to address corporate crimes. (8)

3. EVALUATION OF SECK'S ARGUMENT

   Explanations and exculpations for corporate crimes demand a serious examination of the occupational and organizational structures that may have enabled criminal conduct. Seck should be credited with identifying a critical problem of corporate accountability and proposing a means for addressing it; however, while she identifies the urgency of a home state regulation program, Seck bases her argument on the idea that the individuals or cases subject to host state jurisdiction have been clearly identified and/or that home state governments would be willing and able to enforce their claimed jurisdiction. (9) In doing so, she does not make explicit the groups or individuals that can be prosecuted, in what circumstances, and for what sorts of crimes; furthermore, readers are left to wonder whether Seck's chief concern is civil liability, criminal liability, or both. Finally, Seck fails to provide convincing evidence for the effectiveness of home state jurisdiction.

   Initially, Seck asserts the validity of a home state's jurisdiction based on that state's overwhelming number of connections to the host state: as examples of these "territorial points of control," she mentions "stock exchanges, financial institutions and enabling corporate laws, as well as specific support mechanisms associated with services provided by export credit agencies and trade commissioners." (10) Even if they are compelling default judicial forums, do home states truly have the ability to advance a global...