HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FOR
HUMAN RIGHTS VIOLATIONS
By
Dr. Melba K. Wasunna, BA LAW LLB SJD
Abstract
This article shall attempt to build a new jurisprudential and practical approach to understanding
the notion of human dignity in relation to corporate human rights violations. My aim is to show
that human dignity represents a coherent and progressive approach to dealing with the threats to
human rights posed by multinational corporations (MNCs) in modern times. The article begins
by briefly discussing preliminary issues of whether MNCs are capable of bearing international
human rights obligations and if so, whether such obligations actually exist in current
international law. Concluding that any such claims are tenuous at best, the article then proceeds
to conduct an in-depth examination of the meaning and value of the notion of human dignity in
modern philosophy. It then goes on to illustrate how the concept might facilitate the
establishment of a binding relationship in international law between MNCs and human rights
norms. This article ultimately concludes that human dignity is the best, if not the only, available
ground for the development of international legal accountability for MNC human rights abuses.
Key Words: Multinational corporations, Human dignity, Ruggie, Human rights, International
human rights law, Corporate accountability
1
1. INTRODUCTION
The international human rights framework was conceived on the assumption that States can and
do control all the activities of all individuals and entities operating within their respective
jurisdictions.1 Accordingly, some have contended that the protection of human rights is the sole
responsibility of the State such that any infringement of rights from non-State entities falls within
domestic jurisdictions to be pursued under national laws.2 This view is succinctly stated by
McCorquodale as follows:
International human rights law, for all its diversity and size, places direct legal
obligations only on states. The international human rights law system is a state-based
system, a system in which the law operates in only one area: state action. It ignores
actions by nonstate actors, such as ... transnational corporations .... Nonstate actors are
treated as if their actions could not violate human rights, or it is pretended that states can
and do control all their activities.3
However, the advent of globalization in the last few decades has spurred the growth of
multinational corporations (“MNCs”), which are business entities with the ability to operate on
the global arena and transcend the regulatory capacity of a single State.4 Although the term
“MNC” has been used extensively in academic literature; there is currently no universally
agreeable definition.5 In this paper, the term MNC will be used to refer to an economic enterprise
Adam McBeth, ‘Human Rights in Economic Globalisation’ in Sarah Joseph and Adam McBeth (eds), Research
Handbook on International Human Rights Law (Edward Elgar, 2010) 139. See also, Robert McCorquodale ‘Human
Rights and Global Business’ in Stephen Bottomley and David Kinley (eds) Commercial Law and Human Rights
(Dartmouth Publishing, 2002) 92.
1
Robert McCorquodale and Penelope Simons ‘Responsibility Beyond Borders: State Responsibility for
Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 The Modern Law Review
598, 605.
2
Robert McCorquodale ‘Overlegalizing Silences: Human Rights and Nonstate Actors’ (2002) 96 American Society
International Law Proceedings 381, 384.
3
4
For a general discussion on the origin and development of MNCs over the last few decades, see Peter T.
Muchlinski Multinational Enterprises and the Law (Oxford University Press, 2nd Ed, 2007) 8-44. See also, Emeka
Duruigo ‘Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and
Recurring Challenges’ (2008) 6 Northwestern Journal of International Human Rights 222, 229-231.
5
It should be noted that literature on this subject describes MNCs in a variety of interchangeable terms such as
transnational corporations (TNCs), multinational enterprises (MNEs), global businesses or international
corporations. According to Jenks, the lack of an agreed authoritative definition of an MNC attests to the fact that “it
has no coherent existence as a legal entity; it is a political and economic fact which expresses itself in a bewildering
variety of legal forms and devices”. C.W. Jenks ‘Multinational Entities in the Law of Nations’ in W. Friedman, L.
Henkin and O. Lissitzyn (eds) Essays in Honor of Phillip C. Jessup ( Columbia University Press, 1972), 80.
2
that owns, controls or manages operations or productions in two or more countries, whether its
actions are directed by a head office in a single State or by various control systems across the
globe.6 This definition is predicated on the modern corporate enterprise theory, which allows all
constituent corporations that are part of an integral business group to be treated as a single
economic unit for the purposes of attaching liability.7 The theory relies on the concept of
‘control’ between a parent company and its subsidiaries, which may take the form of holding a
majority of the shares or the power of one entity to control or direct the management and policies
of another entity.8
While MNCs can and do facilitate the enjoyment of human rights for a wide range of people, the
negative impact that their operations have on human rights is also well documented. MNCs,
particularly those with operations in developing countries, have been associated with violations
of human rights such as labour rights (providing poor working conditions, including poor
wages), the right to health (polluting the environment, which affects access to clean water), and
the rights to life, land, housing and adequate living standards, among others.9 Vulnerable
individuals, whose human rights have been adversely affected by the MNC’s activities, have
little or no legal redress against the corporation under their country’s domestic laws.10 The result
6
International Labour Organisation (ILO) Tripartite Declaration on Multinational Enterprises and Social Policy
(ILO, 4th ed, 2006) para 6; Organisation for Economic Co-operation and Development (OECD) Guidelines for
Multinational Enterprises (OECD Publishing, 2011) ‘Concepts and Principles’ Part 1, para 4. See also, Christine
Baez ‘Multinational Enterprises and Human Rights’ (1999-2000) 8 University of Miami International &
Comparative Law Review 183, who analyses the definition of an MNC from various perspectives such as ownership,
location of production or operation, location of headquarter, size, and percentage of sales made in foreign countries.
Phillip I. Bloomberg ‘The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary
Corporation Liabilities’ (1996) 28 Connecticut Law Review 295, 296-297. Bloomberg contrasts the doctrine against
the traditional ‘corporate entity theory’, which treats each corporation as a separate legal entity with its own rights
and duties.
7
8
Bloomberg Note 7, 298.
9
David Kinley Civilizing Globalisation: Human Rights and the Global Economy (Cambridge University Press,
2009) 148-149. See also, Report of the Special Representative of the Secretary-General on the Issue of Human
Rights and Transnational Corporations and other Business Enterprises Interim Report E/CN4/2006/97 (22 February
2006).
Amnesty International ‘Oil in Sudan: Deteriorating Human Rights’ AFR 54/01/00ERR (2000) 2-4. Available at
http://www.amnesty.org/en/library/asset/AFR54/001/2000/en/82ee4ed1-dfc5-11dd-8e1769926d493233/afr540012000en.pdf (Last visited on 11 June 2012); Jenness Duke ‘Enforcement of Human Rights
on Multinational Corporations: Global Climate, Strategies and Trends for Compliance’ (2000) 28 Denver Journal of
International Law and Policy 339, 340-341.
10
3
has been what Justice Ian Binnie accurately describes as “an unfair imbalance ... between the
price paid by the first world and the real costs incurred in the third world”.11
The issue was most recently propelled to the forefront of the global debate in 2008 when the
United Nations (“UN”) Human Rights Council unanimously welcomed a conceptual framework
known as the Protect, Respect and Remedy: a Framework for Business and Human Rights
proposed by John Ruggie, the Special Representative of the UN Secretary-General on the issue
human rights, transnational corporations and other business enterprises.12 This was followed, in
2011, by Ruggie’s Guiding Principles on Business and Human Rights, which the UN Human
Rights Council also unanimously endorsed as practical steps for implementing the 2008
framework.13
Ruggie’s framework has been instrumental in clarifying the wider debate on corporate social
responsibility.14 For example, the thorny question as to whether corporations should respect
internationally recognized human rights, irrespective of whether domestic systems provide for
effective enforcement of such responsibility, can now be answered with an unequivocal ‘yes’.15
However, what remains deeply contested in the legal fraternity is the assertion by some human
rights commentators that such corporate responsibility can, and should, be legally enforceable
under international human rights law. In other words, a lacuna currently exists as to how
Justice Ian Binnie ‘Confronting Corporate Complicity in International Human Rights Abuses’ (International
Commission of Jurists, Conference on Legal Remedies for Human Rights Abuse Involving Corporations, 2010).
Available at http://www.icj.org/dwn/img_prd/FINAL-BinnieJ-ICJSpeakingNotes_092310.pdf (Last visited on 11
November 2013).
11
12
Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises Protect, Respect and Remedy: A Framework for Business and Human
Rights UN Doc A/HRC/8/5 (7 April 2008).
13
Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises Guiding Principles on Business and Human Rights: Implementing the
United Nations ‘Protect, Respect and Remedy’ Framework UN Doc A/HRC/17/31 (16 June 2011). According to
Ruggie, while the 2008 framework and the Guiding Principles are basically two sides of the same coin, they in fact
fulfil different objectives as follows: the 2008 framework provides the conceptual underpinnings whereas the
Guiding Principles, as the name suggests, provide practical guidance on steps to be taken in order to foster business
respect for human rights (Ruggie 2011, 129).
14
Ibid.
15
2008 Framework Note 12, para 24.
4
transnational violations of human rights by MNCs can be legally addressed at the international
level particularly in situations where a State is unable or unwilling to address such abuses.
This paper posits that the concept of human dignity constitutes the best, if not the only, available
ground for the development of international obligations for MNCs with respect to human
rights.16 In fact, the principle of respect for human dignity has played an important legal role in
several social and political movements of the 20th century including the civil rights movements
in the United States, the advancement of women’s rights in the workplace, discussions on the
ethics of biomedical research, the issue of euthanasia and the issues of genetic manipulation and
human cloning, among others.17 It is the concept’s success, amongst other things, in these human
rights movements that informs my argument that it is the appropriate legal (and philosophical)
bedrock to rely upon in order to create binding obligations in international human rights law for
corporations.
My argument will proceed in the following three separate, but related, queries: (i) can an
intimate relationship be established between MNCs and international human rights? In other
words, are MNCs capable of bearing human rights obligations under international law (the
“Possibility” Issue)?; (ii) if so, do MNCs have real and existing obligations in international
human rights law to respect and promote human rights (the “Reality” Issue)?; (iii) or is there
another basis in international human rights law to create and impose legal obligations on MNCs
(the “Source” Issue)? The first two issues have been explored at length by many commentators,
and it is not my intention to give a detailed analysis of them here. Instead, I shall briefly show
that while MNCs can be said to be subjects of international law, and are therefore capable of
bearing human rights obligations, claims for the actual existence of such obligations are tenuous
at best. I will then conduct an in-depth examination of the Source Issue in order to determine
possible rules in international law that might facilitate the establishment of a binding relationship
between MNCs and human rights values. I will argue that international human rights law is open
Roberto Andorno ‘Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ (2009)
Journal of Medicine and Philosophy 1, 5.
16
Christopher McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 The European
Journal of International Law 665, 662-663.
17
5
to such obligations coming into existence on the basis of the foundational principle of human
dignity.
2. THE POSSIBILITY ISSUE: CAN MNCS BE SUBJECTS OF INTERNATIONAL
HUMAN RIGHTS LAW?
This section will briefly address the question of whether MNCs are capable of bearing human
rights obligations.
Traditionally, the system of international human rights law has predominantly focused on States
as the primary violators of human rights and thus the holders of binding human rights
obligations.18 However, non-State organs have also long been recognized as being subject to
international law. For example, the preamble of the Universal Declaration of Human Rights
(“UDHR”) requires not only States but also “every individual and organ of society” to participate
in the promotion and protection of basic human rights.19 Thus it can be said that MNCs, as
‘organs of society’, have, at the very least, the ability to hold as well as enforce rights and
obligations.20
In addition, there have been certain developments in international law in the last few decades that
have led non-State actors to being increasingly recognized as subject to international law. To
begin with, jurisprudence emerging from international criminal tribunals for Nuremberg, Tokyo,
Rwanda and Yugoslavia has confirmed that individuals who commit acts considered to be crimes
in international law will be held responsible for their actions and will be liable for punishment.21
Also, international organizations such as the United Nations and the World Health Organization
have been recognized by the International Court of Justice as endowed with international legal
personality and are therefore subject to international law independent of the member States
18
McCorquodale Note 3, 384.
19
Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948), preamble.
Surya Deva ‘Human Rights Violations by Multinational Corporations and International Law: Where From Here?’
(2003-4) 19 Connecticut Journal of International Law 1, 53.
20
Olefumi Amao, ‘Corporate Social Responsibility, Social Contract, Corporate Personhood and Human Rights Law:
Understanding the Emerging Responsibilities of Modern Corporations’ (2008) 33 Australian Journal of Legal
Philosophy 100, 132. See for example, United States v. Goering, 6 F.R.D. 69 (1946) cited in Duruigbo Note 4, 237.
21
6
comprising the organizations.22 This jurisprudence from the international courts confirms that
individuals, whether natural or legal, can be held directly responsible for violating international
human rights law rules in certain circumstances.23
MNCs, admittedly, entered the international scene at a much later stage and like private citizens,
were assumed to be accountable only under domestic law.24 However, in recent years, MNCs
have been treated as distinct legal personalities with the ability to enjoy certain rights under the
international law regime. For instance, they have the capacity to bring international claims in
areas concerning economic law under bilateral or regional investment treaties and free trade
agreements.25 The First Protocol to the European Convention on Human Rights also recognizes
the rights of corporations to property,26 free speech,27 fair trial28 and privacy.29 This modern
trend, which allows and enables MNCs to utilize international law mechanisms to protect their
interests and facilitate their activities, leads me to the conclusion that MNCs must also possess
the legal capacity to bear direct duties under the same regime. 30 As noted by Ratner, “If states
and international organizations can accept rights and duties of corporations in some
[international law] areas, there is no theoretical bar to recognizing duties more broadly, including
duties in the human rights area”.31 Indeed, some international treaties, especially in the field of
22
See, respectively, Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion)
[1949] ICJ Rep 174, 178-179 and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World
Health organization) (Advisory Opinion) [1996] ICJ 66.
23
Amao Note 21, 133.
David Kinley and Junko Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for
Corporations at International Law’ (2003-04) 44 Virginia Journal of International Law 931, 937.
24
Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds),
Liability of Multinational Corporations under International Law (Kluwer International, 2000) 7- 8.
25
First Protocol to the European Convention on Human Rights signed 4 November 1950 (hereinafter “European
Convention”), article 1.
26
27
European Convention Note 26, article 10.
28
European Convention Note 26, article 6.
29
European Convention Note 26, article 8.
30
Muchlinski Note 4, 509; McBeth Note 1, 71-72.
Steven R. Ratner ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 The Yale Law
Journal 443, 488.
31
7
international environmental law, have already placed direct legal obligations on MNCs, albeit in
a limited fashion.32
Moreover, new economic realities in modern times, which have been exacerbated by the process
of globalisation, render the traditional argument that MNCs, as non-State actors, cannot be
subjects of international law as antiquated and impractical. Triggs argues that “through their
network of subsidiaries and their capacity to invest and conduct business in other States, transnational corporations appear to have gained … international legal personality and defined rights
and responsibilities”.33 Hence, the view that MNCs are capable of bearing human rights
obligations should not be viewed as an extraordinary and unprecedented development but rather
as an extension of the position prevailing at international law and practices under which MNCs
already enjoy rights, and bear limited obligations.
Critics may argue that imposing direct human rights obligations on MNCs would take away the
responsibility of a State to protect and promote human rights. 34 MNCs, so the argument goes, are
non-State actors whose only duty is to obey the law, whereas States should regulate on matters of
social responsibility.35 It is conceded that States continue to be the primary subjects of
international human rights law.36 However, international law does not preclude the existence of
concurrent obligations to be borne by non-State actors, including MNCs.37 In my view, given
their capacity to transcend a single State’s jurisdiction and the effect of their activities on
32
For example, the International Covenant on Civil Liability for Oil Pollution Damage, opened for signature 20
November 1969 UNTS (entered into force 19 June 1976); Protocol to the International Convention on the
Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature 27
November 1992 UNTS (entered into force 30 May 1996).
33
Gillian Triggs International Law: Contemporary Principles and Practices (LexisNexis Butterworth, 2nd Ed,
2011), 183.
Peter T. Muchlinski, ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77 International Affairs 31,
35-36.
34
35
Ibid.
36
Duruigbo Note 4, 241.
37
Ibid.
8
people’s lives across the globe, conferring legal status to MNCs in international human rights
law should be viewed as merely complementary to the existing State-centric regime.38
In all, States should not be absolved of their primary obligations to protect and promote human
rights within their jurisdictions.39 However, MNCs are entities also capable of being the bearers
of direct human rights obligations and thus should be held responsible for human rights abuses,
at the very least within the scope of their operations.40 Simply put, “MNCs to an extent have, or
at least have the potential to possess, international legal personality”.41
3.
THE
REALITY ISSUE: DO CORPORATIONS
HAVE
HUMAN
RIGHTS
OBLIGATIONS UNDER INTERNATIONAL LAW?
Having concluded that MNCs are capable of bearing human rights obligations, the key question
then becomes whether existing international human rights law already imposes obligations on
corporations, or whether substantive legal change would be necessary to impose such
obligations.
Proponents point out that the preamble of the UDHR asserts that “every organ of society …
[shall] secure [the] universal and effective recognition and observance [of human rights]”. Also,
articles 29 and 30 of the UDHR stipulate that “everyone” owes human rights duties to the
community to which they are a part. Likewise both the International Covenant on Civil and
Political Rights (“ICCPR”) and International Covenant on Economic, Social and Cultural Rights
(“ICESCR”) contemplate the existence of obligations for non-State entities by asserting: “the
individual, having duties to other individuals and to the community to which he belongs, is under
a responsibility to strive for the promotion and observance of the rights recognized in the present
Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds),
Liability of Multinational Corporations under International Law (Kluwer International, 2000), 6.
38
39
Adam McBeth International Economic Actors and Human Rights (Routledge, 2010) 251.
40
Ibid.
41
Duruigbo Note 4, 241.
9
covenant”.42 It has therefore been argued that every ‘individual’ and every ‘organ of society’, as
the case may be, excludes no one, not even corporations in the promotion and the protection of
human rights.43
Also offered in support of this viewpoint are some commentaries by human rights treaty bodies.
For instance, the UN Committee on Economic Social and Cultural Rights (“ESCR Committee”),
in its General Comment 12, asserted that “all members of society [including] private business
sector have responsibilities in the realization of the right to adequate food”.44 On the basis of
these provisions, proponents assert that international human rights law is not limited to reach
States only but also clearly imposes duties on corporations to respect and promote human
rights.45 Some argue that from the perspectives of the victims, it is irrelevant for them whether
the violator is a State, an individual or a corporation; therefore whoever the perpetrator is shall
be liable under international human rights law.46
With respect, even though some authors may claim that the UDHR represents customary
international law47 in its entirety, this article takes a cautious approach and recognizes that while
some aspects of the instrument are indeed customary law, it is doubtful that the provisions
invoked above, in as far as MNC obligations are concerned, qualify.48 That is, the status of the
42
International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976), preamble; and International Convention on Economic, Social and Cultural
Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), preamble.
Michael K. Addo ‘Introduction’ in Michael K. Addo (ed) Human Rights Standards and the Responsibility of
Transnational Corporations (Kluwer Law International, 1999) 31; Louise Henkin ‘The Universal Declaration at 50
and the College of the Global Markets’ (1999) 25 Brooklyn Journal of International Law 17, 25.
43
44
Committee on Economic, Social and Cultural Rights, General Comment 12: Right to Adequate Food, UN Doc
E/C12/1999/5 (1999) para 20.
McBeth Note 39, 8; Henkin Note 43, 24-25; Jordan J. Paust ‘The Reality of Private Rights, Duties and
Participation in the International Legal Process’ (2004) 25 Michigan Journal of International Law 1229, 1242-1243;
David Kinley ‘Human Rights as Legally Binding or Merely Relevant?’ in Bottomley and Kinley Note 1, 38.
45
46
Andrew Clapham Human Rights Obligations of Non-State Actors (Oxford University Press, 2006) 546; Addo
Note 43, 266-269.
47
Customary international law generally emerges when two essential criteria are met: first, unambiguous and
consistent practice by States in a particular field (State practice) and second, a sense of legal obligation by States to
follow the practice (opinion juris). Clapham Note 46, 86.
48
For more discussion on the status of the UDHR as customary international law, see Sigrun I. Skogly and Mark
Gibney ‘Transnational Human Rights Obligations’ (2002) 24 Human Rights Quarterly 781 and H. Hannum, ‘The
10
UDHR as customary international law, especially with respect to corporate duties, by no means
enjoys universal acceptance.49 This is illustrated by the lack of consistent State practice in so far
as directly imposing international human rights duties on corporations is concerned and the
ambiguity in the “duties” provisions themselves.50 With respect to the latter, even if a reference
is made to individual “duties” in the UDHR, which arguably could include those of corporations,
there is no clarification of exactly what these duties entail.51 It is also instructive to note that
other international human rights treaties do not include a provision on correlative private duties
similar to articles 29 and 30 of the UDHR; only their preambular paragraphs make reference to
duties that individuals have towards other individuals.52 In my view, these provisions at best may
serve as a springboard towards a new conception of human rights in which commitments of
corporations are more clearly articulated.53 This avenue shall be explored in greater detail in the
section directly below. For now, it suffices to say that the above arguments fail to offer sufficient
proof that the UDHR provides binding corporate human rights obligations.54
Furthermore, the reliance on the commentary from human rights treaty bodies for the existence
of corporate human rights obligations seems to be misplaced. While these treaty bodies do
indeed acknowledge that corporations have human rights duties, they seem to endorse their
existence only through domestic State action. For instance, in its General Comment 15, the
ESCR Committee stated that “steps should be taken by States parties to prevent their own
Status of the Universal Declaration of Human Rights in National and International Law’ (1995/6) 25 Georgia
Journal of International and Comparative Law 287.
49
Certain provisions under the UDHR are generally accepted to have acquired the status of customary international
law, and are therefore legally binding. These include rules prohibiting slavery, torture, arbitrary killing and
systematic racial discrimination. The customary law status of other rights, especially economic, social and cultural
rights, remains deeply contested. Clapham Note 46, 86-87. See also, Philip Alston ‘A Human Rights Perspective on
the Millennium Development Goals’ (Paper Presented as a Contribution to the Work of the Millennium Project Task
Force on Poverty and Economic Development, 2004), para 35. Available at
www2.ohchr.org/english/issues/millenium-development/.../alston.doc (Last visited on 14 June 2012).
Jan Arno Hessbruegge ‘Human Rights Violations Arising from the Conduct of Non-State Actors’ (2005) 11
Buffalo Human Rights Law Review 21, 35.
50
51
Ibid.
52
See for example, ICCPR Note 42, preamble and ICESCR Note 42, preamble.
Larissa van den Herik and Jernej Letnar Cernic, ‘Regulating Corporations under International Law: From Human
Rights to International Criminal Law and Back Again’ (2010) 8 Journal of International Criminal Justice 725, 734.
53
54
McCorquodale Note 1, 94.
11
citizens and companies from violating the right to water of individuals and communities in other
countries”.55 Similarly, the ESCR Committee stated that “the violations of the obligation to
protect follow from the failure of a State to take all necessary measures to safeguard persons
within their jurisdiction from infringements of the right to health by third parties … [including]
failure to regulate the activities … corporations so as to prevent them from violating the right to
health of others”.56
Therefore, under the current paradigm of international law, the obligation to ensure specific
rights is addressed to the State, and corporations are only restricted indirectly through State
action at the domestic level. This contemporary position has been set out as follows by the
Human Rights Committee in its General Comment 31: “The article 2, paragraph 1, obligations
are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of
international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil
law”.57
The prevailing position appears to be that for victims of corporate human rights violations to
obtain effective remedy, they must seek justice within a domestic legal system. This explains
why MNCs have been able to largely operate in a legal vacuum - because international human
rights law does not impose direct obligations on their transnational activities. At this juncture, it
would be prudent to briefly discuss, and clarify, recent developments involving international
criminal responsibility of corporations, a subject currently under intense debate by the
international community.58 Whereas the assertion that international human rights law imposes
55
Committee on Economic, Social and Cultural Rights, General Comment 15: The Right to Water (UN Doc
E/C12/2002/11 (2002), para 33.
56
Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable
Standard of Health UN Doc E/C12/2000/4 (2000) para 51.
57
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States
Parties to the Covenant CCPR/C/21/Rev.1/Add.13 (2004) para 8.
58
See, for example, Kiobel v Royal Dutch Petroleum, US Supreme Court Docket No 10-1491 (12 June 2012), a
matter involving Nigerian plaintiffs seeking to bring civil claims against a US corporation for extrajudicial killing,
torture, crimes against humanity, and prolonged arbitrary arrest and detention, among others. The United States
Supreme Court rejected the proposition that any international corporation with a link to the US may be held directly
liable for torts in violation of international law under the antiquated Alien Torts Claims Act 1789 (US). For further
information on developments surrounding the case, see generally,
http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/alien-tort-statute/kiobel-v-royal-dutchpetroleum-co/ (Last visited on 3 January 2014).
12
clear duties on corporations has been rejected in this paper, recent scholarship suggests that the
position may be different in the international criminal law context.59 Indeed, there is growing
evidence that a marked shift towards direct liability under international criminal law has
occurred in the last few decades with respect to individuals, including corporate entities, which
commit international crimes such as genocide or crimes against humanity. 60 A detailed
consideration of these circumstances, however, lies beyond the scope of the paper and is more
appropriately discussed under international humanitarian law.61 For now, it suffices to note that
despite the strong insistence by some quarters that these changes in the international criminal law
context extend beyond international crimes to include violations of international human rights
law, it is contended that corporations have only gradually incurred responsibilities towards
human rights, not actual human rights obligations.62 This distinction is important as a
misdirected reliance on direct legal obligations under international criminal law may constitute a
formidable obstacle in making meaningful progress in devising effective ways through which
MNCs can be held accountable for their negative human rights impacts.
The question then becomes whether there is additional room under international law for
harnessing the emerging human rights responsibilities of corporations towards accountability.63
How to move towards such a new conception will be explored in the section below.
Duruigbo Note 4, 226-227; Andrew Clapham ‘The Question of Jurisdiction under International Criminal Law
over Legal Persons: Lessons from the Rome Conference on an International Criminal Court’ in Kamminga and ZiaZafiri Note 38, 139.
59
60
See, for example, Report of the International Commission of Jurists Expert Legal Panel on Corporate Complicity
in International Crimes Facing the Facts and Charting a Legal Path (Corporate Complicity and Legal
Accountability, Vol 1, 2008). Available at http://icj.org/IMG/Volume_1.pdf (Last visited on 28 August 2013). It
agrees with the position that corporations are now considered direct duty bearers under international criminal law.
See also, Brief Amici Curiae of the Former UN Special Representative for Business and Human Rights, Professor
John Ruggie, Professor Philip Alston and the Global Justice Clinic at NYU School of Law in Support of Neither
Party’ submitted to the US Supreme Court in Kiobel v Royal Dutch Petroleum, US Supreme Court Docket No 101491 (12 June 2012).
61
Ibid.
62
Report of the Special Representative Note 13, paras 23 and 54.
63
Van den Herik and Cernic Note 53, 731.
13
4. THE SOURCE ISSUE: IS THERE A BASIS IN INTERNATIONAL LAW TO IMPOSE
CORPORATE HUMAN RIGHTS ACCOUNTABILITY?
Having accepted that international economic (and even political) power has shifted from
individual States to MNCs, this paper posits that a re-examination of the international human
rights framework is necessary in order to determine a basis upon which MNCs can and should be
held accountable for their transnational violations of human rights.64 In this section, I shall seek
to fill this jurisprudential gap by using the concept of human dignity as the foundational principle
of corporate accountability. My aim is to show that human dignity represents both a modern
philosophical concept and a key legal principle for dealing with threats to human rights posed by
MNCs. To this end, I shall explore the meaning of the concept of human dignity and the ways in
which human rights rest on, give voice to, or seek to realize this concept. Ultimately, it shall be
argued that the notion of human dignity constitutes the best, if not the only, available ground for
the development of international accountability for MNC human rights abuses.
4.1 A Brief Reflection on the Philosophical Discourse on Human Dignity
The concept of human dignity is not confined to modern legal discourse but has deep roots in the
theology of religion, moral and political philosophy. This section will provide a brief overview
of the historical development of human dignity. While a detailed account would not be possible
or, indeed, desirable here, I hope to draw upon historical philosophical conceptions to shed light
on the meaning of the term in modern times.
The philosophical underpinnings of the principle of human dignity can be traced all the way back
to classical Roman law, which used the concept to convey an individual’s rank and status in
society.65 This viewpoint was later displaced by early Christian religious teachings, which
asserted that human dignity was completely based upon one distinguishing feature bestowed
upon humans by God: that man was created in His own likeness and has dominion over all other
Surya Deva ‘Human Rights Violations by Multinational Corporations and International Law: Where From Here?’
(2003-4) 19 Connecticut Journal of International Law 1, 51.
64
Yehoshua Arieli ‘The Emergence of the Doctrine of the Dignity of Man’ in David Kretzmer and Eckart Klein
(eds) The Concept of Human Dignity in Human Rights Discourse (Kluwer Law International, 2002) 12-15.
65
14
creatures.66 St. Thomas Aquinas (1225-1274), in particular, considered that the likeness of man
to God constituted human dignity.67 This idea was subsequently developed in the period of
Renaissance, where human dignity was seen as a universal quality enjoyed by all human
beings.68 This period served to fortify the idea that dignity is not merely inherent and inalienable
but also universal to all people.69
The notion of human dignity was eventually received in the secular context where prominent
philosophical writers in the 17th century such as Samuel von Pufendorf (1632-1694) incorporated
the concept of human dignity into his doctrine of natural law.70 According to Pufendorf, an
individual possessed human dignity because of his or her immortal soul and because he or she
was endowed with understanding or the ability to reason; hence because all humans were so
endowed, they were equal by nature.71 Increasingly, other philosophers dropped the religious
concepts previously associated with the concept and expounded on this modern development of
dignity, which drew substantially on the importance of human beings as having the capacity of
reason.72
Arguably, the most influential person on this concept, who has even been called the “god-father”
of the modern doctrine of human dignity, is Immanuel Kant (1724-1804).73 Similar to Pufendorf,
66
Ibid.
67
For an in-depth teleological account of the concept of human dignity and its emergence in early Christian
religious teachings, see Yair Lorberbaum ‘Blood and the Image of God: On the Sanctity of Life in Biblical and
Early Rabbinic Law, Myth and Ritual’ in Kretzmer and Klein Note 65, 55-85.
Matthias Mahlmann ‘The Basic Law at 60 - Human Dignity and the Culture of Republicanism’ (2010) 11 German
Law Journal 9, 14.
68
Don Chalmers and Ryuichi Ida ‘On the International Legal Aspects of Human Dignity’ in Jeff Malpas and Norelle
Lickiss (eds) Perspectives on Human Dignity: A Conversation (Springer, 2007) 158.
69
70
Joern Eckert ‘Legal Roots of Human Dignity in German Law’ in Kretzmer and Klein Note 65, 44.
71
Ibid.
Christopher McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 The European
Journal of International Law 665, 659.
72
73
Chalmers and Ida Note 69, 159.
15
Kant argued that the basis of human dignity is the ability of man to reason or to think.74
However, contrary to Pufendorf who believed that only human relations could provide human
dignity, Kant believed there was a deeper value in human dignity - one that extended beyond its
relativity to mankind.75 Kant asserted that “man does not exist as a mere means for any use or
will, but as an end in himself. Thus, he always has to be regarded, in all actions both towards
himself and to other reasonable beings, as the end, too”.76 This formulation is what is commonly
referred to as the categorical imperative of the Kant doctrine. Later, in order to shed more light
on his doctrine, Kant developed it into the practical imperative as follows: “Act in such a way as
to treat humanity, whether in your own person or that of another, always as the end, never merely
as the means”.77
According to Kant, this means that a human being should be regarded as a person who possesses
a dignity (an absolute inner worth) by which he demands respect for himself from all other
rational beings in the world.78 One can see that Kant explicitly links the notion of dignity to
respect as he stipulates that our humanity demands that others respect us while at the same time
we respect them.79 He further asserts, “do not let others tread with impunity on your rights”
thereby also linking dignity to human rights.80 It can therefore be surmised that for Kant, human
dignity is universal and inherent; possessed by every human being and expressed in the form of
human rights. As we shall see below, the Kantian doctrine became one of the inspirations for the
inclusion of the notion of human dignity in the UDHR and other international human rights
instruments.
Jack Donnelly ‘Human Dignity and Human Rights’ (Geneva Academy of International Humanitarian Law and
Human Rights, Research Project on Human Dignity, 2009), 20. Available at http://www.udhr60.ch/report/donnellyHumanDignity_0609.pdf (Last visited 22 February 2014).
74
75
Eckert Note 70, 46.
Immanuel Kant ‘The Metaphysics of Morals’ (1797) in Mary Gregor Cambridge Texts in the History of
Philosophy (Cambridge University Press, 1996) 186.
76
77
Kant Note 76, 209.
78
Eckert Note 70, 46-47.
79
Donnelly Note 74, 21.
80
Ibid.
16
Also of note is the work of Ronald Dworkin, who is today considered to be one of the most
influential modern legal philosophers on the concept of human dignity. Similar to Kant, Dworkin
provides a conception of human dignity in his latest work cryptically called Justice for
Hedgehogs, which, amongst others, embodies the notion of self-respect.81 Dworkin sees selfrespect as an underlying principle of human dignity that requires individuals to recognize not just
their inherent worth but also imposes a moral duty to respect the lives of others who are similarly
endowed with inherent worth.82 It is worth mentioning that in his earlier work, Taking Rights
Seriously, Dworkin asserted that legal principles (including international human rights standards)
flow from certain underlying moral principles such as justice, fairness and human dignity.83 For
my purposes, it is not necessary to break down Dworkin’s overall teleological account of the
concept of human dignity. Instead, it is simply enough to note that according to Dworkin, human
dignity is a moral principle that demands that people’s human rights be taken into account by
other individuals.
Overall, although there are interesting differences among philosophers on the meaning of human
dignity, what is clear from these different strands, and is pivotal to this paper, is that central to
the concept is the idea that all human beings are worthy of respect - an inherent value that exists
simply by virtue of our humanity. Whether this understanding of the concept is the basis upon
which human rights exist today shall be elucidated in the section below.
4.2 Human Dignity in International Law
After the atrocities of World War II, human dignity was formally protected in international
human rights law and has since come to be considered as the “foundational concept of the global
human rights regime”.84 The UDHR identifies human dignity as the basis of human rights by
stating that the “recognition of inherent dignity … is the foundation of freedom, justice and
81
Ronald Dworkin Justice for Hedgehogs (Harvard University Press, 2011).
82
Dworkin Note 176, 256-268.
83
Ronald Dworkin Taking Rights Seriously (Harvard University Press, 1977) 22.
84
Donnelly Note 74, 3.
17
peace in the world”.85 Article 1 then goes on to reaffirm the Kantian doctrine by asserting that
“[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood”.86 Furthermore,
Article 22 states that a person’s economic, social and cultural rights are indispensable for his or
her dignity.
Most human rights treaties also expressly endorse human dignity as the source of human rights.
The UN Charter preamble states:
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person … and have
determined to promote social progress and better standards of life in larger freedom….87
Article 1 of the UN Charter takes up this theme and provides: “[a]ll human beings are born free
and equal in dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood”.88 There are also several more specific uses of
dignity in the remainder of the UN Charter. For instance, Article 22, on the right to social
security, provides:
Everyone, as a member of society, has the right to social security and is entitled to
realization, through national effort and international co-operation and in accordance with
the organization and resources of each State, of the economic, social and cultural rights
indispensable for his dignity and the free development of his personality.
In addition, Article 23(3), which articulates an individual’s fundamental right to work, provides
that “everyone who works has the right to just and favourable remuneration ensuring for himself
and his family an existence worthy of human dignity, and supplemented, if necessary, by other
means of social protection”.
Similarly, the ICCPR, the ICESCR and the International Covenant on the Elimination of Racial
Discrimination all affirmed in their preambles that human dignity is the underlying foundation of
85
UDHR Note 19, preamble.
86
Ibid.
87
Charter of the United Nations 1031, TS 993 (entered into force 24 October 1945).
88
Ibid.
18
international human rights law.89 More recently, emerging from the comprehensive
reconsideration of international human rights law at the World Conference on Human Rights in
1993, the Vienna Declaration asserts dignity as being the proper source of international human
rights law.90 The preamble of the Declaration affirms that:
... all human rights derive from the dignity and worth inherent in the human person, and
that the person is the central subject of human rights and fundamental freedoms, and
consequently should be the principal beneficiary and should participate actively in the
realization of these rights and freedoms.
The Vienna Declaration not only adopted dignity as a foundational principle to human rights in
general, but also explicitly recognized the concept in provisions dealing with particular areas of
human rights, such as the treatment of indigenous peoples,91 the prohibition of torture,92 the
prohibition of gender-based violence and harassment,93 the abolition of poverty,94 and the issue
of biomedical ethics.95 It should also be noted that the notion of dignity is not restricted to
international human rights instruments. It has also become embedded in the texts of regional
human rights treaties, most notably in the preambles to the Inter-American,96 Arab,97 African,98
and (some) European99 human rights instruments.100
89
ICCPR Note 42, preamble; ICESCR Note 42, preamble and International Convention on the Elimination of All
Forms of Racial Discrimination, opened for signature 21 December 1965, UN Treaty Series vol. 660 (entered into
force 4 January 1969), preamble.
90
Vienna Declaration and Programme of Action, UN Doc A/CONF 157/24 (12 July 1993), preamble.
91
Vienna Declaration Note 90, article 20.
92
Vienna Declaration Note 90, article 55.
93
Vienna Declaration Note 90, article 18.
94
Vienna Declaration Note 90, article 25.
95
Vienna Declaration Note 90, article 11.
96
American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into
force 18 July 1978).
97
League of Arab States, Revised Arab Charter on Human Rights (2005) 12 International Human Rights Law
Journal 893.
African [Banjul] Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58 (entered
into force 21 October 1986).
98
99
Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe (CETS No. 184),
Rome 4.XI.1950, as amended by Protocol 13. See also, the European Social Charter (revised) opened for signature
18 October 1961, CETS 035 (entered into force 26 February 1965).
19
In sum, the inclusion of human dignity in the above international and regional instruments
demonstrates the idea that human dignity is the underlying foundation of international human
rights law.101 As it will be argued later on, any violation of dignity, whether by States or private
actors, should be included within the legal architecture that protects human rights.102
4.3 The Meaning of Human Dignity
Having considered the philosophical underpinnings of the notion of human dignity and its
embodiment in international human rights instruments, the question then becomes: how do we
understand the concept of dignity in modern times? It is worth noting that despite its apparent
centrality to human rights law, the term is never explicitly defined in the text of the international
instruments. This raises the following questions: what does dignity actually mean in these
instruments? Is it a basis for human rights, a right in itself, or is it simply a synonym for human
rights? This section shall tackle these queries with a view to articulating what it actually means
to have human dignity and what implications this has for developing a coherent legal and
philosophical justification for corporate accountability of human rights violations.
Contemporary literature on the meaning of the term reveals that there are two broad
philosophical views that attempt to explain whether and how the notion of human dignity
provides a foundation for human rights: reductionism and essentialism.103 According to the first
viewpoint, reductionism, the lack of a substantive definition in international instruments implies
100
There are many other international instruments that proclaim human dignity as part to their ethos. See, for
example, Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (entered into force 12
August 1949); Rome Statute of the International Criminal Court, 2187 UNTS 7 (entered into force 1 July 2002);
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to
Slavery, 226 UNTS 3 (entered into force 7 September 1956); Convention on the Rights of the Child, 1577 UNTS 3
(entered into force 2 September 1990); International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, 2220 UNTS (entered into force18 December 1990).
Paolo G. Carozza ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 American
Journal of International Law 38, 46.
101
102
Rex D. Glensy ‘The Right to Dignity’ (2011) 43 Columbia Human Rights Law Review 65, 80.
Leslie Meltzer Henry ‘The Jurisprudence of Dignity’. Available at http://ssrn.com/abstract=1928768 (Last
visited on 1 November 2013), 12.
103
20
that the term human dignity is a mere rhetorical slogan, a catch-all phrase that lacks any real or
substantial expression in law.104 Proponents of this viewpoint have even gone so far as to
describe the term as “useless”,105 “vague”,106 “a fuzzy concept”,107 and “elusive as to be virtually
meaningless”,108 amongst others.
Reductionists further believe the term human dignity amounts to no more than the existing
philosophical principle of autonomy.109 Dignity, they argue, merely aims to protect an
individual’s right to control his or her life or destiny, that is, self-rule.110 Therefore, the concept
simply requires every person to respect every other person’s right to make choices and to take
action based on that person’s own values and belief system. 111 On this account, dignity involves
not only refraining from interfering with others’ choices, but sometimes actually providing them
with the necessary conditions and opportunities for exercising their autonomy. 112 Proponents of
this viewpoint contend that human dignity adds nothing more than that which has already been
articulated by the principle of autonomy because it merely amounts to “treating people in the
way that they wish to be treated”.113
In contrast, essentialists believe that human dignity contains certain features that differentiate it
from other philosophical concepts such as autonomy.114 Their approach is to “distill dignity’s
104
Henry Note 103, 11-12.
105
Ruth Macklin, ‘Dignity is a Useless Concept’ (2003) 327 British Medical Journal 1419, 1420.
106
Dworkin Note 81, 198-199.
107
Donnelly Note 74, 81.
108
Ibid.
109
Henry Note 103, 12.
110
Glensy Note 102, 68.
111
Henry Note 103, 12.
112
Glensy Note 102, 68.
Henry Note 103, 12. See also, Yehoshua Arieli ‘On the Necessary and Sufficient Conditions for the Emergence
of the Doctrine of Dignity of Man and His Rights,’ in Kretzmer and Klein Note 65, 12, who argues that dignity is a
central claim of man’s autonomy and involves his or her “capacity to be lord of his fate and the shaper of his future”.
113
Guy E. Carmi ‘Dignity-The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as
a Free Speech Justification’ (2007) 9 University of Pennsylvania Journal of Constitutional Law 957, 966.
114
21
meaning down to its fundamental core by searching for the root or basic meaning of dignity”. 115
Essentialists tend to view the concept as possessing a minimum core, which recognizes that
every human being possesses an intrinsic worth that should be recognized and respected by
others.116 Following the Kantian doctrine, essentialists believe that autonomy and reason serve as
the foundation of human dignity.117
This paper aligns itself with the second viewpoint for the following reasons. In my view, it
would be a mistake to conclude from the lack of a definition in international human rights
instruments that human dignity is simply a slogan, which is too ambiguous to be meaningful in
international law or that it is reducible to the principle of autonomy. Admittedly, the concept
does indeed lack a clear definition in human rights texts; however, as it will be shown, this in no
way detracts from its essence and usefulness in human rights jurisprudence. Reductionists seem
to confuse the notion of inherent dignity of the human person with that of moral dignity.118 The
former, which forms the subject of analysis in this paper, plays a central role in legal instruments
and is inseparable from the human condition while the latter is a synonym for ‘honour’ and
relates to the behaviour of human beings in choosing good over bad.119 In addition, reductionists
are reminded of other fundamental concepts such as “equality”, “justice” “discrimination” and
“freedom”, which have also not been defined by international law instruments but are
nonetheless considered to be meaningful.120 This, as Andorno points out, is not only because of
the impossibility of finding a precise definition of such terms that satisfies everyone in a multicultural world, but also because rigid definitions often lead to unsolvable difficulties in the
115
Henry Note 103, 13.
116
Mahlmann Note 68, 30.
117
Donnelly Note 74, 81.
Joseph Azize ‘Human dignity and Euthanasia Law’ (2007) 9 University of Notre Dame Australia Law Review 47,
59.
118
119
Ibid.
For example, article 7 of the UDHR provides “All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in
violation of this Declaration and against any incitement to such discrimination”. Neither “equal” nor
“discrimination” is defined within the instrument.
120
22
implementation of legal norms.121 McCrudden agrees that while “there is no common substantive
conception of dignity ... there [nonetheless] appears to be an acceptance of the concept of
dignity”.122
It is contended that by international instruments asserting that dignity is “inherent … to all
members of the human family”,123 that all human beings are “free and equal in dignity and
rights”,124 and that “these rights derive from the inherent dignity of the human person”,125 these
instruments offer invaluable guidance for clarifying the meaning of human dignity as used in
international law. First, dignity is a permanent and intrinsic attribute that is inseparable from our
humanity; thus it is not a value that can be derived from some specific personal features such as
age, nationality, race or gender.126 Secondly, dignity implies that basic rights are equal for all;
therefore if human dignity is the same for all, then all human beings possess equal basic rights.127
Thirdly, rights derive from human dignity, a pre-existing value that therefore cannot be taken
away arbitrarily.128 These three elements lead me to conclude that, at the very least, the
‘minimum core’ of human dignity entails the following: every human being has his or her own
intrinsic worth simply by virtue of being human, which should be recognised and respected by
others; and thus human rights, which flow from human dignity, are inherent in every human
individual and should be respected.129
It would be prudent, at this stage, to make a distinction between human dignity and human rights
as these maybe confused as being one and the same concept. The Vienna Declaration clearly
121
Andorno Note 16, 6.
122
McCrudden Note 72, 712. See also, Azize Note 118, 60, who argues along similar lines.
123
UDHR Note 19, preamble.
124
UDHR Note 19, article 1.
125
See ICCPR Note 42, preamble and ICESCR Note 42, preamble.
126
Azize Note 118, 60.
127
Andorno Note 16, 6.
Ibid. See also, Oscar Schachter ‘Human Dignity as a Normative Concept’ (1983) 77 American Journal of
International Law 848, 849-850.
128
Adam McBeth ‘Every Organ of Society: The Responsibility of Non-State Actors for the Realization of Human
Rights’ (2008-9) 30 Hamline Journal of Public Law & Policy 37, 46.
129
23
asserts that “all human rights derive from the dignity and worth inherent in the human person”.130
In my view, this suggests that these are two separate, but nonetheless intimately linked concepts.
Donnelly points out that “the practice of human rights provides a powerful mechanism to realize
in the social world the underlying dignity of the person”.131 Therefore the link between human
rights and human dignity is that human rights are a practical social instrument, which reflect and
aim to realize the underlying encompassing value of human dignity.132
To conclude, if we accept the notion that human beings have intrinsic worth, it follows then that
not only is each individual entitled to fundamental rights and freedoms but also that human
beings deserve to be protected from serious threats to their dignity. One can see that unlike the
reductionist approach, which asserts that dignity overlaps with philosophical concepts like
autonomy, essentialists correctly take into account other aspects of our human experience that
provide a richer conception of dignity.133 The impact that this understanding of human dignity
will have on corporate human rights violations will be explored next.
4.4 Human Dignity as the Overarching Principle to Corporate Human Rights
Accountability
Having accepted that the international human rights framework is a mechanism for the
realisation of the foundational value of human dignity, the question then becomes: how do we
use human dignity to construct the foundations of corporate human rights accountability at the
international level? In addressing this issue, I shall combine, on the one hand, the appeal to
human dignity as an overarching principle with, on the other hand, the recourse to human rights
norms as embedded in international law so as to provide an effective and practical way forward
for dealing with MNC human rights abuses.
I should begin by pointing out that the primary reason for my emphasis on human dignity as the
basis for achieving MNC accountability for their human rights violations is that corporate
130
Vienna Declaration Note 90, preamble. Emphasis added.
131
Donnelly Note 74, 11.
132
Ibid.
133
Henry Note 103, 15.
24
activities are closely connected to the most basic human rights, namely the rights to work, to
adequate standard of living, health and access to a clean environment, among others. 134 In my
view, if human dignity is the foundation upon which these and other human rights are based,
then it is not too farfetched to invoke the concept as the ultimate rationale for the enforcement of
human rights responsibilities of MNCs at the international level.135
It follows from my earlier discussion that human dignity is the underlying foundation of the
international human rights regime, that human dignity constitutes a fundamental source from
which new human rights may be derived or existing rights extended to apply to new situations.136
This means that human dignity provides us with a key point of leverage to effect the transition
from what ‘ought’ to what ‘is’ and thus provides a fuller and richer content of international
human rights norms. In relation to MNC abuses of human rights, Ratner points out that “if
human rights are aimed at the protection of human dignity, the law needs to respond to abuses
that do not implicate the state directly”.137 Kinley and Tadaki agree that the concept of human
dignity possesses “a norm-making capacity that can both effect corporate behaviour and form a
basis for future ... regulation”.138 Therefore it is submitted that human dignity, as a legal and
philosophical concept, is uniquely positioned to provide a key vehicle for re-analysing and
renaming what businesses currently perceive as ‘corporate risks’ into ‘corporate violations’ and
as such demands accountability for any negative impacts on human rights.139
Keeping the above in mind, this paper identifies a distinctively useful institutional function
which dignity can play with respect to corporate human rights violations: enhancing a victim’s
134
Andorno Note 16, 5.
135
Ibid. As previously noted, the position that corporations have international human rights responsibilities (rather
than international obligations) has gained more ground following the endorsement of the UN Framework by the
Human Rights Council in June 2011.
136
Schachter Note 128, 853.
137
Ratner Note 31, 472.
138
Kinley and Tadaki Note 119, 958.
139
Kinley and Tadaki Note 119, 1022.
25
right to effective remedy under international human rights law.140 In this regard, it is contended
that human dignity can play a dual role: one involving a legal dimension that relates to the ability
by victims to bring claims of wrongdoing and seek reparation; the second involving a moral
dimension relating to the substantive reparation itself, whereby an individual whose rights have
been violated is able to obtain relief from the wrongdoer.141
The distinction between these two different, but related, spheres is based on the practical
consequences that each has under international law. Here, sensitivity to context is essential
requiring a recapitulation of the business and human rights predicament, as follows: despite the
negative impacts that MNCs can and do have on human rights and the failure by (some) Host
States to effectively regulate MNCs’ adverse impacts on human rights, international law
currently does not provide for specific corporate human rights obligations thus leaving many
victims of corporate human rights abuses without effective remedy. Therefore, the first role of
human dignity in enhancing MNC accountability as proposed herein envisions a direct legal
function for the concept and is consistent with the clear duty imposed on States by international
law to protect human rights.142 In other words, this dimension utilizes dignity, as an underlying
principle of the international human rights framework, to compel all States to comply with their
international duty to protect human rights including by providing access to judicial systems to
enable persons whose rights have been violated by MNCs to obtain effective remedy.143
The second leans on the emerging social responsibility of corporations to respect international
human rights, as accepted by businesses themselves (albeit under pressure from stakeholders).144
In this context, the concept of human dignity is used as an apparatus to propel MNCs to
voluntarily reassess their business activities in light of international human rights norms and
140
McCrudden Note 72, 721-722; Schachter Note 128, 853.
Amnesty International ‘Comments in Response to the UN Special Representative of the Secretary General on
Transnational Corporations and other Business Enterprises: Guiding Principles - Proposed Outline’ Doc IOR 50/001
(2010), 18. Available at http://www.amnesty.org/en/library/asset/IOR50/001/2010/en/71401e1e-7e9c-44a4-88a7de3618b2983b/ior500012010en.pdf (Last visited on 13 June 2012).
141
142
Report of the Special Representative Note 13, para 18.
143
Schachter Note 128, 851.
144
Report of the Special Representative Note 13, paras 24 and 54.
26
address their negative impacts, whether or not the State judicial and administrative machinery is
effective, thus preserving the fundamental idea that each individual human being is deserving of
respect and concern.145 The common theme in both these conceptual paths is that a denial of
either is implicitly incompatible with the basic idea of the inherent dignity and worth of a human
being that currently exists under philosophical, social and legal discourse.146
The major advantage to this dual approach is that it paves the way for critical political consensus
concerning the role of international human rights law in ensuring that MNCs respect human
rights principles during the course of their business operations.147 In other words, dignity can
play a significant role politically in smoothing over the different philosophical outlooks and
values of States, businesses and human rights organizations and promote the possibility of a
concrete global agreement among these differing outlooks to ensure MNC accountability for
their transnational human rights violations.148 As noted by Schachter, the notion of human
dignity “has acquired a resonance that leads it to be invoked widely as a legal and moral ground
for protest against degrading and abusive treatment. No other ideal seems so clearly accepted as
a universal social good”.149 Indeed, the business world seems to be open to this suggestion as
affirmed by the Business Leaders Initiative on Human Rights, when it set out to find practical
ways of implementing the UDHR within its various business organizations around the world.150
Critics may argue that international human rights law only charges States with being responsible
for protecting the rights of those within their jurisdictions.151 By implication, so the argument
goes, non-State actors, including MNCs, are exempt from human rights accountability at the
Erin Daly ‘The Constitutional Right to Dignity’ (2009), 5. Available at
http://www.ialsnet.org/meetings/constit/papers/DalyErin%28USA%29.pdf (Last visited on 17 February 2014).
145
146
Amnesty International Note 237, 18.
147
Schachter Note 128, 848-9.
148
Ibid.
149
Ibid.
Business Leaders Initiative on Human Rights ‘Building Understanding’ (Report No. 1, 2003). Available at
http://www04.abb.com/global/seitp/seitp202.nsf/c71c66c1f02e6575c125711f004660e6/fd8d7d261d06a2adc1256df9
003b68f0/$FILE/BLIHR1report.pdf (Last visited on 4 March 2014).
150
151
McCorquodale Note 3, 384-385.
27
international level because human rights are currently expressed as belonging to the
jurisprudence of States.152 However, as McBeth points out:
... the strong focus on the State in … efforts to secure the rights declared in the UDHR
should be viewed as a practical matter for the implementation of the UDHR rights; it
should not distract one from the character of the UDHR as an explicit acknowledgement
of the existence … of pre-existing human rights that accrue to every human being and
derive from human dignity.153
In other words, the protection of human dignity - the need to ensure that the inherent worth of
every human being is respected - is not necessarily bonded to the exercise of State power.
Human dignity, inextricably linked to human rights, may be violated by any person or entity,
including MNCs and as such demands accountability. Moreover, as Clapham asserts, “the
strength of the human rights system has always been its ability to adapt to new demands and new
non-state actors”.154 Thus, it is submitted that human dignity provides us with a sound
jurisprudential and legal foundation through which the existing human rights machinery may be
reoriented to cope with the new demands for protection from harmful MNC activities.155
Ultimately, however, it should be noted that recourse to the fundamental value of human dignity
for MNC human rights accountability is a necessary, but not in itself a sufficient mechanism for
providing an effective response to the complex challenges posed by transnational corporate
human rights violations. Some further mechanisms will be required for dignity to actually
become functional. This is a vital concept to grasp. While we need to recur to human dignity as
the ultimate justification of imposing accountability on corporations, this paper contends that
more concrete or practical notions are needed to flesh out the principle in real life. Therefore, the
international community ought to reflect on concrete mechanisms through which the
fundamental value of human dignity may be harnessed, legally and socially, to provide for MNC
accountability.
152
Ibid.
153
McBeth Note 39, 43.
154
Clapham Note 46, 32.
155
Ibid.
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In sum, if, as Clapham avers, the overriding objective of human rights is to protect the victim’s
inherent dignity, then the victim has to be protected from everyone, including non-State actors
such as corporations.156 However, the transnational character of MNCs poses significant barriers
to the protection of human rights mainly because their operations are usually conducted beyond
the exclusive jurisdictional control of a single State.157 This paper has sought to take an existing
philosophical and legal concept - human dignity - and place it at the centre of the quest towards
ensuring MNC accountability for human rights violations. Such accountability is premised on the
idea that human rights protect the dignity or inherent worth of human beings and consequently,
upon their violation, human beings lose their ‘human character’.158 Thus, the appeal in human
dignity as a foundational basis for future MNC accountability lies not just in the fact that it is an
overarching principle in international human rights law but that it also reconciles the profitdriven demands of doing business with the social expectations on businesses to respect human
rights and provides a foundational platform whereby both voluntary and legal mechanisms may
have relevant and reinforcing roles to play in regulating the relationship between business and
human rights.159
5. CONCLUSION
The premise that international human rights law only governs State relations is clearly antiquated
and requires modification. Given the massive scale of modern commercial projects in today’s
globalised economy, MNCs are now, more than ever, capable of infringing fundamental human
rights in the pursuit of greater profits, investment or economic development.160 This paper has
shown that MNCs are indeed also capable of bearing obligations in international human rights
law. However, neither treaty law nor international jurisprudence has - as of yet - articulated the
actual existence of such standards. Nevertheless, there are no legal obstacles in international law
to the formation of such obligations. Therefore it has been contended that the concept of human
156
Clapham Note 46, 546.
157
McBeth Note 39, 11.
Surya Deva ‘Corporate Code of Conduct Bill 2000:Overcoming Hurdles in Enforcing Human Rights Obligations
Against Overseas Corporate Hands of Local Corporations ‘(2004) 8 New Castle Law Review 87, 107.
158
159
Clapham Note 46, 267-268.
160
McBeth Note 39, 7.
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dignity provides the international community with a natural philosophical and legal foundation
upon which MNCs can (and should) be held accountable for their human rights violations. My
analysis of the concept has shown that the basic minimum content, which can be discerned from
international human rights instruments, is that each human being possesses an intrinsic worth
that should be respected and that some forms of conduct, including by corporations, are
inconsistent with the respect for this intrinsic worth. In my view, corporate infringement of
human dignity, regardless of circumstances, is never acceptable and should not be tolerated. It is
hoped that the above analysis offers a framework for the global community to begin to derive a
set of principles that will guarantee corporate accountability of human rights violations.
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