Synopsis prepared for the Business and Human Rights Resource Centre
The Human Rights Obligations of Non-State Actors, 600pp + index and
tables, (Oxford University Press, 2006) by Andrew Clapham,*
This new book examines the legal protection of human rights in
situations where the threats to the enjoyment of human rights
come from non-state actors. The book seeks to develop an
understanding of the importance of human rights accountability
for corporations, international organizations, multilateral
development banks, multinational peace-keeping operations,
rebel groups and even for individuals.
The Human Rights Obligations of Corporations
One chapter entitled ‘Corporations and Human Rights’
specifically considers the various regimes which have been
implemented to address the human rights obligations of
corporations. Starting with the Guidelines adopted by the
Organization for Economic Cooperation and Development (OECD), the Tripartite
Declaration of the International Labour Organization ILO, and the UN Global Compact,
the book examines the existing procedures that have been established to examine
human rights abuses committed by corporations. The case-law of the US courts with
regard to cases brought against corporations for violations of international human rights
law under the Alien Tort Claims Act is considered with particular attention given to the
case-law dealing with the notion of accountability for corporate complicity in violations of
international law (including war crimes and human rights law). The Chapter includes a
detailed analysis of the development of the US case-law concerning corporate complicity
under international law and draws the following conclusions on the current state of the
law.
Corporate Complicity in Human Right Violations: A Summary

*
Where a corporation assists another entity, whether it be a state, a rebel group,
another company, or an individual, to commit an international crime, the rules for
determining responsibility under international law will be the rules developed in
international criminal law. The corporation will be responsible as an accomplice,
whether or not it intended a crime to be committed, if it can be shown that (a) the
corporation carries out acts specifically directed to assist, encourage or lend
moral support to the perpetration of a certain specific international crime and this
Professor of Public International Law, Graduate Institute of International Studies,
Geneva
support has a substantial effect upon the perpetration of the crime; and (b) the
corporation had the knowledge that its acts would assist the commission of a
specific crime by the principal.

Where a corporation is alleged to have assisted a government in violating
customary international law rights in circumstances which do not amount to
international crimes, but rather to international delicts or torts, the analogous rules
for state responsibility suggest that the corporations must be (a) aware of the
circumstances making the activity of the assisted state a violation of international
human rights law; (b) the assistance must be given with a view to facilitating the
commission of such a violation and actually contribute significantly to the
violation; and (c) the company itself should have an obligation not to violate the
right in question.
New ways of looking at human rights
The book suggests new ways of looking at human rights violations. These involve the
removal of the filter that only allows international lawyers to see the world through the
rules of state responsibility and courts with limited international jurisdiction. It is
suggested that we allow ourselves a wider field of vision that permits us to look at a
larger range of actors and a multiplicity of jurisdictions and accountability mechanisms.
The book calls for a rethink of the traditional approach to the subjects of international law
and suggests that international law can bind any entity that has the capacity to bear the
relevant obligations. Starting with the United Nations and the European Community,
one can see that the customary international law of human rights is considered binding
on such non-state actors. Customary international law will also bind other non-state
actors in fields such as the prohibition on slavery or genocide. This is not startling with
regard to individuals, but it is suggested that such international obligations already
attach to corporations as well.
Armed Conflict Situations
A further Chapter is dedicated to certain non-state actors in times of armed conflict and
addresses the obligations of belligerents, national liberation movements and insurgents
as entities with international obligations. One section considers the role of private
military companies in situations such as Iraq. This Chapter also considers some of the
dilemmas facing humanitarian non-governmental organizations and the putative regime
emerging to ensure their own actions conform to human rights principles.
The role of the United Nations, the World Bank, the World Trade Organization and
the European Union
Various chapters examine the ways in which human rights compliance has arisen for
different types of non-state actors. There is an examination of quasi-universal intergovernmental organizations such as the United Nations and the World Bank as well as
2
the other non-universal organizations such as the World Trade Organization and the
European Union. The different functions of these organizations raise very different
human rights concerns. The Chapters focus on the interlocking legal orders to discover
which human rights obligations might be binding on these non-state actors as well as the
ways in which the legal orders of the WTO and the European Union may be seen to
incorporate obligations to respect human rights on non-state actors.
Monitoring Human Rights Treaty Law at the UN and Regional Levels
Two Chapters look specifically at human rights treaty law. The first covers refugee law
as well as international human rights treaty law as monitored by the UN treaty bodies. A
key issue is the protection from expulsion to a country where the threat emanates from
non-state actors as opposed to the state itself. Other issues concern the views of the
UN treaty bodies with regard to the responsibility of states parties in the context of
complaints concerning racial discrimination by a bank and ill-treatment by employees of
a private prison company.
The second chapter looks in detail at some of the cases that have arisen under
the regional human rights treaties. The judgments regarding states’ obligations under
the treaties to prevent, control, and punish private abuses of human rights often contain
explanations as to the scope of the duty of the private actors themselves to respect the
human rights in the treaty. In particular we encounter situations where the direct threats
come from landlords, employers, trade unions, television companies, shopping centres,
and private individuals. If the state fails to prevent individuals from ill-treating others, this
sometimes implies that the individuals and other non-state actors have an obligation to
respect human rights. The international ruling will have to address the extent of the
obligation on the private actor in order to see if the state has prohibited the behaviour by
the relevant non-state actor, and in addition, whether the state has taken effective
measures to ensure protection from such violations, by these non-state actors. Where
the issue involves the right to a remedy for human rights violations, the international
decision may imply that the state has to provide a remedy for abuses of international
human rights committed by private bodies. In these situations such pronouncements by
international bodies can have a critical effect in determining the scope of non-state actor
human rights obligations at the national level.
Holding non-state actors accountable at the national level
The book contains a detailed analysis of the legal situation in various national law
jurisdictions. The Chapter illustrates how the lack of international jurisdiction over nonstate actors has not prevented national courts from developing human rights obligations
for non-state actors in jurisdictions such as the United States, Canada, South Africa,
England, Germany and Ireland. Sometimes these obligations are international law
obligations simply enforced at the national level (such as in the US Alien Tort Claims
Act). In several situations, national courts will enforce constitutional (or human) rights
against non-state actors where there the non-state actor is considered to be performing
a public or state function. National courts may also simply incorporate human rights
values and obligations into their reasoning to determine the outcome of a case, even
where both parties to the case are disconnected from the state and recognized by the
3
court as purely ‘private’ entities. The national case law highlights how the values of
dignity and democracy are at the heart of judicial reasoning in human rights cases, and
yet a simple appeal to these values rarely resolves the competing claims before the
court. The need to protect human dignity can be demanded by both sides to the dispute
between private actors. Similarly demands for democracy may demand that property
rights take a back seat to rights to freedom of expression, yet democracy simultaneously
demands that judges remain deferential to the laws protecting property enacted by the
elected legislature. The cases suggest that the judicial application of human rights
obligations to non-state actors depends, in part, on the appreciation of the threats to
dignity involved, and, in part, on the extent to which the legislature has already
discussed the need to balance interests in the particular situation under discussion.
Complicity, Complexity and Complementarity
In sum, it is suggested we should look at the human rights obligations of non-state
actors under three broad headings: first, the international obligations on non-state actors
themselves; the suggestion that non-state actors have such obligations is an important
step in the development of a coherent concept of complicity under international law.
Non-state actors, such as corporations or multilateral development banks, are typically
accused of facilitating violations of human rights law by governments. They emerge as
accomplices with international obligations and are accused of complicity.
Second, the international obligations on states to protect everyone from human
rights abuses committed by non-state actors; these obligations include duties to create
remedies at the national level and to ensure that individuals and organizations can claim
their human rights against the relevant non-state actor. The obligation on the state is
often to ensure that individuals are protected through national law from infringements on
their human rights by non-state actors. There are then two sets of obligations that have
to be respected: first, the obligation of the state to ensure protection through national
law; and second the obligation of the non-state actor itself. Sometimes these obligations
can both be generated from the international norm in question and the obligation in
international law will automatically take effect in the national legal order; at other times
the national law may offer insufficient protection and the state will be obliged to change
the law in order to ensure human rights protection from non-state actors. These multiple
obligations, which apply to a multiplicity of actors, create a situation of complexity.
Third, are the obligations on non-state actors which take effect in national
jurisdictions depending on the constitutional and other arrangements in national law. In
some cases, these obligations may go beyond what is demanded by international law,
and in other cases, such national arrangements may fail to meet the obligations imposed
on the state through its international obligations. The dialectic between the international
and national law of human rights gives rise to complementary legal orders. The human
rights obligations we observe will depend on the jurisdictional filter we are looking
through. The obligations apply simultaneously but we can only focus on one legal order
at a time. The aim is to demonstrate that it may make more sense to see these
variegated simultaneous obligations through the concept of complementarity.
4
Link to the Oxford University Press Website
5