Should transnational corporations be required to compensate those whose human rights have been negatively affected by their activities?

By Jesús Francisco Ramírez Bañuelos*

Bizrigths

Postmodern society has questioned the traditional foundational concepts of the nation-state, primarily that of sovereignty on which the political model that predominated in post-Westphalian Europe and from which the international community was formed.[1] The liberal State was based on the premise that the formal equality established by law was sufficient to ensure that all people enjoyed their fundamental rights, considering that they acted on a plane of symmetry and the State, in its minimal conception, should therefore limit itself to not intervening in the relations between individuals. Thus, the State assumed that its negative obligation —of omission— fulfilled its function. However, this concept has now been superseded; formal equality is indeed necessary, but in no way sufficient to ensure the effectiveness of human rights on a multidirectional scale.[2]

In our days, the emergence of private powers —such as transnational corporations— and the relations of asymmetry that break the dogma of private autonomy stand out. The law cannot avoid the presence of private power, and must therefore adopt a measure that guarantees respect for human rights at all levels, and such a solution can no longer be left to the autonomy of the will. Another aspect that has resulted in the dissolution of State power is the increasingly indistinguishable division of public space from private space. Services that were previously the exclusive responsibility of the State, such as the prison, health, education and telecommunications systems, among others, are increasingly being transferred to the private sphere, leading to an evaporation of controls to monitor respect for human rights.[3]

For economic, social and political reasons, the world system is interconnected in a globalizing model at different regional and international levels, which requires a change in the areas orthodoxly considered as sovereign authority.

Since the end of the Second World War, human rights have been one of the issues of greatest interest in international fora, notably within the United Nations and its various agencies. Obviously, the historical milestone in this process is the Universal Declaration of Human Rights, but this would only be the beginning of a continuous search for the improvement of the living conditions of human beings throughout the world to allow them to develop their life project in absolute respect for their dignity.[4]

This international dimension has had, to a greater or lesser extent, an impact on regional schemes with the institutionalization of human rights protection systems. It should be noted that particularly the American and European systems of human rights protection recognize the possibility of human rights violations by the actions of non-state actors.

Despite the fact that each country is sovereign with respect to its structure and the way in which it fulfills its commitments to defend and protect human rights, a number of factors have been internationally accepted as essential parameters for giving effect to these rights, namely the establishment of guarantees for fundamental rights; the existence of jurisdictional institutions to which recourse can be had in the event of violations; and the existence of national institutions for the protection of fundamental rights. In the case of guarantees, they are expected to have at least the scope and effectiveness provided for in international human rights law, with the exception that jus cogens norms are superior to the constitutional guarantees of the given State.[5]

With regard to the legislative dimension, while international law allows each State to establish the appropriate legal mechanisms it deems relevant to give effect to human rights, it is also true that these means must correspond to those provided for in the treaties to which it is a party. Accordingly, legislative bodies must monitor compliance with these parameters.[6]

Moreover, International law allows domestic orders the choice of directly or indirectly applying the treaties they have signed to their legal system, but the peremptory norms must be directly applicable.

In another sense, the international standard set out in the Paris Principles establishes as good practice the existence of national human rights commissions or ombudspersons that assist in the protection of human rights in the given State. The responsibility of States to protect and prevent provides for the necessary existence of a permanent monitoring scheme to detect situations before they become human rights violations.[7]

Although these types of procedures are effectively protective of human rights, I consider them insufficient to fully guarantee fundamental rights. Indeed, the scope of vertical means of protection is limited to those situations in which the acts or omissions of State organs could or do affect human rights. It does not cover acts that violate human rights as a result of activities between individuals.

I believe that the rules of law should be used as guidelines to determine the relations between private actors, in relation to human rights. Therefore, the norms and concepts of private law such as good faith, morals and good customs would respond to the principles of human rights, within a framework of international public order. Otherwise, human rights would lose their nature as truly subjective public rights and would be reduced as mere reflections of the protected concepts, which would occasionally be protected, in accordance with the activity of the State in ordinary legislation.

In this sense, it is essential to determine the prevalence of the various rights in order to guarantee their protection. Thus, human rights take precedence over the will of public or private persons to regulate their relations inter se. Otherwise, unrestricted respect for human rights cannot be ensured.

Developments in international law express the need for States that have signed human rights treaties not only to refrain from violating human rights, but also to take all appropriate measures, including preventive ones, to guarantee the effectiveness of the rights contained in the treaties, including private activities.

Therefore, in my opinion, transnational corporations must be held responsible for the human rights violations they commit in the course of their activities and, consequently, repair the damage caused, according to the international standards applicable to each case.

I agree with the OECD guidelines (2011) that transnational corporations have a duty to respect, protect and, where appropriate, remedy human rights that they violate as a direct or indirect consequence of their activities, irrespective of the will of the governments where these companies are based.[8]

These duties include not only the damage actually caused but also the damage that is likely to be caused, that is, transnational corporations have a duty to prevent human rights violations. This implies implementing monitoring mechanisms and acting in a timely manner when possible human rights violations arising from their activities are detected, either directly or indirectly.

In general, transnational corporations, according to the parameters of the UN and the OECD, have an obligation to:

1. Respect human rights, that is, not to violate the rights of others and to address negative human rights impacts involving them.

 2. Avoid causing or contributing to negative human rights impacts and to resolve such impacts if they occur.

 3. Prevent and mitigate negative human rights impacts directly linked to their activities, even if the companies do not contribute to those impacts.

4. Develop a policy that formulates its commitment to respect human rights.

5. Exercise due diligence with regard to human rights in accordance with their size, the nature and context of their activities and the seriousness of the risks of negative impacts on human rights.

 6. Establish legitimate mechanisms, or cooperate through these mechanisms, to remedy negative human rights impacts when they are found to have caused or contributed to negative human rights impacts.

According to the UN guidelines, transnational corporations that violate human rights must either repair the damage themselves or cooperate with other state or non-state actors to ensure that due reparation is made to the victims. States must implement jurisdictional and non-jurisdictional mechanisms so that victims have access to effective remedy. In cases where a violation is committed that results in the commission of a crime, reparation should be made through a jurisdictional process.[9]

Within non-jurisdictional schemes, consideration should be given to mechanisms arising from non-state actors to remedy human rights violations of transnational corporations, such as those arising from the corporations themselves, their associations, or groups from the same sector of industry. This can reduce time and costs, as well as resolve conflicts more effectively. In any case, these non-jurisdictional procedures must at least meet the requirements of being legitimate, accessible, predictable, equitable, transparent, rights-based, progressive and dialogical.[10]

Clearly, for human rights violations caused by transnational corporations to be consistently remedied, national legal systems must be harmonized with regional and international human rights protection schemes. In many cases, this implies a political will and the public awareness of non-state actors to admit that, as superior values, human rights must be protected regardless of the public or private nature of the tortfeasor.


[1] ÁLVAREZ CIBRIÁN, Felipe de Jesús, BECERRA RAMÍREZ, José de Jesús y BENÍTEZ PIMIENTA, Jorge Humberto, El constitucionalismo ante el control de convencionalidad. Su debate actual, México, D.F., Ed. Porrúa, 2015, pp.13-19.

[2] SLAUGHTER, Anne-Marie, “Disaggregated Sovereignity. Towards the public accountability of global government networks” in International Law. Critical Concepts in Law. Vol. III Fundamentals of International Law II. Ed. by Joseph Weiler & Alan T. Nissel. Routledge Taylor & Francis Group, 2011, Abingdon, Oxon, Great Britain, pp.799-823.

[3] CLAPHAM, Andrew, Human Rights Obligations of Non-State Actors, Great Britain, Ed. Oxford, 2006, pp.8-10.

[4] GLENDON, Mary Ann, Un mundo nuevo. Eleanor Roosevelt y la Declaración Universal de Derechos Humanos, Trad. Pedro de Jesús Pallares Yabur, México, D.F., FCE, 2011.

[5] RAMCHARAN, Bertie G. “National Protection Systems” in GUDMNUNDUR, Alfredsson, GRIMHEDEN, Jonas, RAMCHARAN, Bertrand G. and ZAYAS, Alfred (Ed.), International Human Rights. Monitoring Mechanisms. Essays in Honour of Jakob Th. Möller, 2nd Revised Edition. Leiden, The Netherlands, Ed. Martinus Nijhoff Publishers, 2009, pp.707-712.

[6] Ibid, p.710.

[7] Idem.

[8] OECD. Guidelines for multinational enterprises, 2011, http://mneguidelines.oecd.org/guidelines/

[9] United Nations, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, 2003, https://digitallibrary.un.org/record/501576

[10] OECD. Guidelines for multinational enterprises, 2011, http://mneguidelines.oecd.org/guidelines/


* Lawyer and Master in Public Services Management in Virtual Environments from the University of Guadalajara, Mexico. Master in International Criminal Law from the University of Granada, Spain. M2 in History of Contemporary Legal Thought from the University Paris 1 Panthéon-Sorbonne.
Affiliation: ITESO, Mexico.

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