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PROMOTING, IMPLEMENTING & NAVIGATING GLOBAL ANTI-CORRUPTION &
HUMAN RIGHTS RULES: A NEW GLOBAL PARADIGM FOR KEY
STAKEHOLDERS
A ProfessorUNCAC Tool
American University’s Washington College of Law
Professor Keith Henderson; ProfessorUNCAC@icloud.com
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Justice: What is the Right Thing to Do Through a Multi-stakeholder’s
Human Rights, Anti-Corruption, Good Corporate Citizen Rule of Law
Lens*
Hypothetical for class discussion: Country: “Anystan”
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Country and sector context: You are conducting legal/risk research for a U.S. multi-national
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Basic facts: (i) you are given docs evidencing a bribe by the company your client is merging with that
related to an upcoming oil merger in an oil rich central non rule of law asian corrupt country.
was funneled through a company lawyer and a US citizen/advisor to President of Anystan; (ii) the docs
evidenced a secret $80M swiss bank account and (iii) the docs also evidenced a sham Swiss foundation
was established by a law firm under the effective control of President of Anystan. Q: What are some of
the key legal, human rights, corruption and ethical issues? What are the potential risks and costs to various
stakeholders? Were the law firms complicit in some of the corruption that occurred?
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Variables to ponder/balance: (i) compliance with existing treaties/laws; (ii) emerging laws & best
practices soft law?; (iii) compliance with ethics/moral codes?; (iv) enforcement of the law and ethics in
practice; (v) what is the country, sectoral, socioeconomic and cultural context?; (vi) impact on and risk to
multiple stakeholders, reputation, USG and to the rule of law (including employees, consultants,
partners, suppliers, officials, human rights & corruption impact; actual financial short/long term impact)?
Others?
Q: What is the right thing for you to do as a lawyer? What is the right thing for the company to do?
Anti-Corruption Movement the new Human Rights Movement?
* Download syllabus here.
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Is the
The International Bill of Human Rights
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UDHR + ICCPR + ICESCR = IBHR
(1948, 1966, 1966)
Universal Values + international binding law (ratified in over 150 countries)
The IBHR includes dozens of universal rights, including the right to: (i) a
fair trial; (ii) freedom of expression; (iii) freedom of association; (iv)
equality and equal protection; (v) to work; (vi) join trade unions; (vii) to
education; (viii) fair wages; (ix) privacy & (x) freedom of arbitrary
arrest/detention.
Other binding agreements include: (i) Convention on Eliminating All Forms of Racial Discrimination (1965);
(ii) Convention on Eliminating all Forms of Discrimination Against Women (1979); (iii) Convention Against
Torture and Other Cruel , Inhuman and Degrading Treatment or Punishment (1984); (iv) Convention on the
Rights of the Child (1989); (v) Convention on the Rights of Persons with Disabilities (2006) and (vi) the
International Labor Organization’s Conventions, including those related to the right to work, collective
bargaining, non-forced labor, non-child labor & employment discrimination.
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United Nations Convention Against Corruption
(UNCAC)
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140 parties have ratified the UNCAC so far (since 2003). It is the only truly global anti-corruption
treaty and is seen by some to be the best practices global framework for globalizing the rule of
law.
The UNCAC requires countries to pass a wide range of criminal and civil laws related to public
and private sector corruption, human rights, business good governance and the rule of law. It
also recommends a wide range of laws, policies and practices that may be called minimal best
practices.
Examples of mandated criminal laws include: (i) public sector bribery; (ii)
embezzlement/misappropriation; (iii) money laundering and (iv) obstruction of justice. These
criminal acts are now universally deemed to constitute corruption in over 160 countries.
• Examples of recommended criminal laws include: (i) whistleblowing; (ii) abuse of functions (iii)
private sector bribery/embezzlement; (iv) obstruction of justice; (v) illicit enrichment.
Q: Is there a universal definition of “corruption?” How does the UNCAC define it? What is the best
global
gain” (TI).
definition of corruption? Corruption is best defined as the “abuse of power for private
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UNCAC: Non-Criminal Measures/Minimal Best
Practices and the
Emerging 21st Century Legal, Good
Governance, Doing Business Landscape
Some of the non-criminal laws/policies/regulations/institutions required or supported in the UNCAC
that impact the public and private sector include:
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protection of reporting persons & witness protection
freezing, seizure and confiscation of proceeds of crime and asset recovery
national and international law enforcement cooperation
extradition
independent, impartial justice systems anti-corruption authorities with integrity
bank secrecy & FIUs
open government laws such as income and asset disclosure and access to information
Q: Are the IBHR & UNCAC together creating much of the emerging global legal and good
governance, doing
business landscape for the 21st Century. What about the Ruggie
Principles?
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Prevention: Anti-Corruption Legal UNCAC Mandates that Relate
Directly to the Private Sector
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Justice systems with integrity, independence and impartiality
Global accounting and auditing standards and financial disclosure
Codes of conduct and conflict of interest policies
Transparency corporate legal entities
Corporate legal liability
Participating in law enforcement cooperation
Disclosing “suspicious transactions”
Q: What are the increased risks of these laws and policies and which relate most directly
to the
human rights of affected stakeholders?
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The UN Guiding Principles for Business and
Human Rights (The Ruggie Principles/2011)
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Authoritative global standard for addressing adverse impacts on human rights linked to business
activity: ‘Protect, Respect & Remedy’ framework
Historical development: UN Global Norms on the Responsibilities of Transnational Corporations
and Other Business Enterprises (2003) + ATS lawsuits + UNCAC + Globalization + Awareness
= Ruggie Principles
State duty to protect human rights
corporate responsibility to respect human rights
access to remedy for victims of human rights
Interpretive Guide: Steps — (i) Policy; (ii) Assessing; (iii) Integrating; (iv) Tracking/Monitoring; (v)
Communicating & (vi) Remediating
Q: What are the operational principles? (i) policy commitment; (ii) due diligence; (iii) impact
assessments; (iv)
remediation & (v) reporting
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The UN Global Compact (2004)
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Strategic policy initiative for businesses committed to aligning their operations and strategies
with ten universally accepted principles in the areas of human rights, labor, environment and
anti-corruption
Over 12,000 businesses from over 145 countries
Largest voluntary corporate responsibility initiative in the world
Requires annual Communication on Progress (COP)
Q: It the GC global and local; public and private; voluntary but accountable?
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Global Compact's Universal Principles: Human
Rights & Anti-Corruption
Human Rights
Principle 1. Businesses should support and respect protection of internationally proclaimed
human
rights.
Principle 2. Businesses should make sure they are not complicit in human
rights.
Anti-Corruption
Principle 10. Businesses should work against corruption in all of its forms, including extortion
and
bribery.
Q: What do the terms ‘support, respect, internationally proclaimed human rights & not complicit’ &
‘corruption in all
of its forms’ mean operationally?
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Some of the Top Business and Human Rights Issues for Businesses
2014 (IHRB List — no particular order)
1.
Privacy issues and mass Internet and telephone surveillance by countries, companies and hackers
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Navigating the new UNCAC mandated foreign corrupt practices acts just being passed and
implemented in many countries
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Promoting the rule of law, including an independent, impartial justice system with integrity
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Strengthening efforts to reduce human trafficking and forced labor in global supply chains and
protecting against charges of complicity with criminal/corrupt networks
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Enhancing human rights and corruption due diligence efforts in emerging economies/supply chains
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Encouraging, protecting and rewarding whistleblowers
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Promoting property, contract, equal rights, worker safety, environment, culture
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Promoting transparency, access to information and reducing corruption in public procurement
Q: Do you agree with this list? What are some of the human rights and corruption issues raised in this
list and what resources would you use to develop a list and prioritize them for a company? An NGO? A donor?
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Linking Human Rights to Anti-Corruption: Is the AntiCorruption Movement the New Human Rights Movement or
Vice Versa?
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Historical roots: UDHR drafters could not agree on how to define human rights and the
primary cause of hardship. Age old tensions and Q’s: Inequitable distribution of resources or
religious and political persecution? Personal/national security vs due process? Education vs
subsistence? Rights vs cultural differences? Economic rights vs development?
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Corruption is often the handmaiden of human rights abuses; justice sector corruption is key to
protecting human rights abusers and perpetuating broader corruption and human rights
abuses
Rights, Integrity and the Rule of Law are preconditions to long-term sustainable development
Empirical research over many years reveals many of the countries with the worst human rights
records also are the same countries with the worst corruption and rule of law records
From Tunisia to Russia to India to China to Azerbaijan, mass anti-corruption movements are
the primary motivating factor for dozens of political movements and protests around the world.
But it is also true that egregious human rights violations are often an important partner in this
toxic equation.
The anti-corruption movement is still relatively new and can be a valuable partner to the
human rights movement, which is derided by many as a Western movement.
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Human Rights Due Diligence: Is is All Just About Legal Compliance and
Mitigating Risks or is there also a Self-Interest and a Duty as a Corporate
Citizen to Support Globalizing the Rule of Law?
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In Human Rights and a Corporation’s Duty to Combat Corruption, Bashara and Hess argue
that companies must see combatting corruption and promoting human rights as connected and
complementary moral duties and that they should know that corruption greatly impacts their
ability to respect and promote human rights.
Being aware of how corruption impacts human rights throughout the supply chains and their
own contractual and property interests and reputation is essential. This should be part of
“human rights due diligence.”
Working towards reducing the enabling environment that allows corruption to flourish, replicate
and perpetuate itself is in any businesses long-term interest and it promotes sustainable
development and human rights
Q: What is the right thing to do?
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Class Questions and Key Resource Websites & Tools
1. What are the key global frameworks and related resource websites and tools for identifying the links between
human rights, corruption and doing business?
2. What are some of the key consensus issues where there is common interest among these three communities
through a country, sector and issue-oriented lens?
3. What are some of the upsides and downsides to these three communities working together on a set of
common priority issues?
4. On a scale of 1 to 10 how would you rank corruption as a major human rights problem?
Some Key Resources/Tools
Guiding Principles on Business and Human Rights/Resource Centre & Dilemmas Forum — www.businesshumanrights.org/
The UN Guiding Principles on Business and Human Rights: A guide for the legal profession, a4aid.org/sites/
The UN Global Compact — A Practical Guide to the UN Global Compact, www.unprme.org/
ACRN Network, Reporting Guidance on the 10th Principle Against Corruption, www.archive.transparency.org/
Anti-Corruption Resource Centre, Maximizing the potential of UNCAC implementation, www.U4.no/
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Class II. Corruption Within the Justice Sector & Legal Profession & the Right
to a Fair Trial, Due Process, Equality and the Rule of Law
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Corruption in the Judiciary. Article 11 of the UNCAC is the first treaty to explicitly identify
corruption in the justice system as a high priority crosscutting global problem and to mandate that it
be addressed.
The UDHR does not reference the problem of justice sector integrity or corruption, although it was
clearly a problem then and now. Thus, it is important to link-up the UNCAC and the UDHR (IBHR &
the Ruggie Principles). The big picture is that the overall multi-stakeholder objective should be to
promote all elements of the rule of law through both a prevention and accountability human rights
lens.
Independence/Impartiality. An independent, impartial justice system with integrity underpins the
fair and effective implementation of the UNCAC, the IBHR and many other treaties, laws, regulations
and policies.
Rights Enforcement Public & Private. Corruption in the justice system also undermines the work
and effectiveness of other key institutions, in both the private and public sectors. Law enforcement
efforts may be stymied by prosecutors who decline to investigate cases, contracts and property rights
may be unenforceable or arbitrarily enforced, prosecutors and judges may abuse their prosecutorial
and judicial discretion or decision making. For example, violations of environmental, health and
safety, human trafficking, gender discrimination or environmental laws may go unenforced. Due
process rights or anti-corruption laws, including the right to a fair trial, may also be abused or used to
selectively punish the innocent or guilty.
Q: Does the IBHR + UNCAC = ROL?
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Half-Way Over the Great Wall: What is China’s Biggest Challenge?
Russia’s? Columbia’s? Brazil’s? Indonesia’s? Palestine’s?
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The 2007 GCR, by TI, provides comparative country global research on the scope of judicial
corruption, what the key causes of it are and how it works across countries and continents. It was
the first global publication of its kind on what had been taboo. There is no independent legal
profession, no independent judiciary, no independent media and censored freedom of expression.
The Wuhan Affair illustrates the scope of the problem: Over 150 judges, court officials & lawyers
investigated (2004). Main causes and forms of judicial corruption: (i) bribery; (ii) kickbacks; (iii)
political demands; (iv) blackmailing litigants; (v) assigning, dismissing or delaying cases; (vi) local
court financing.
Access to Justice: Human Rights Abuses Involving Corporations, by the ICJ, provides a number of
excellent case studies that identify gaps and issues related to how human rights are or are not
enforced in China’s justice system.
A recent media article in the Sino Daily, “China puts anti-corruption activists on trial: lawyers, “
illustrates some of the risks human rights, anti-corruption and corporate lawyers face in countries
where freedom of expression is limited, the justice system is corrupt and there is no rule of law.
China’s economic transition from pure socialism to capitalism with a Chinese twist in just 20 years
has been one of the most successful economic reform efforts in modern history. However, China is
a long way off from a successful political transition and to protecting universal human rights and
addressing endemic corruption, including protecting a number of universal rights, including
freedom of expression, a fair and impartial trial, a government with integrity and the rule of law.
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Accountability, Prevention & the Human Rights/Anti-Corruption/Rule of Law
Global Syndrome: Do We Need More “Magnitsky-Like”
Lawyers/Whistleblowers and More Sergei Magnitsky Rule of Law
Accountability Acts?
Russia/Magnitsky case (2007)
Rights violated: Fair Trial; Freedom of Expression; PTD; Torture/Humane Treatment; Life; Access to Justice;
Discriminatory treatment/Due Process; Independent Judiciary.
Corruption mandates/best practices violated: Impartial Judiciary with Integrity; Protection of Reporting Persons,
Whistleblowing and Witness Protection; Freezing/Confiscation of Assets; Transparent Corporate Legal Entities;
Misappropriation; Obstruction of Justice; Abuse of Functions; Money Laundering
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Basic facts: (i) Russian lawyer/accountant offering advice to corporate client (British); (ii) Magnitsky blew
the whistle on Russian govt agency committing fraud against client’s subsidiaries in Russia; (iii) Russian
tax authorities/Min. of Interior seized effective control of subsidiaries after charging the company with tax
evasion; (iv) Russian authorities used legally reconstituted subsidiaries to pocket/steal/embezzle $230M
in tax refunds; (v) Magnitsky was arrested; CEO expelled and other lawyers representing the British
company were summoned to testify (they left Russia); (vi) Magnitsky died in illegal pretrial detention of
questionable causes (health and physical abuse) & (vii) US Congress passed Magnitsky Act — bars
Russian officials involved in the Magnitsky case from entering the US or using its banking system. ICIJ
investigation: discovered offshore companies and secret Swiss bank acts & OSCE Parl. Assembly
passed ROL Magnitsky Resolution.
Q: How many potential human rights abuses and corrupt acts committed can you identify?
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Russia: The Kodorkovsky Case and Government & Oil and Gas Sector
Russia/Kodorkovsky/Yukos case (2004)
Rights violated: Fair Trial; Freedom of Expression; Effective Remedy; Property Protection & an
Independent/Impartial Justice System.
Corruption mandates violated: Embezzlement; Justice System with Integrity; Asset
Seizure/Forfeiture/Abuse of Functions/Money Laundering
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Basic facts: (i) one of largest and most successful oil and gas private companies in
Russia; (ii) Yukos bankrupted after $27B claimed in unpaid taxes; (iii) all assets frozen/sold
below market for tax debt; (iv) Kodorkovsky convicted & jailed for 10 years/left Russia; (v)
most Yukos senior managers left Russia under fear of arrest; (vi) Yukos management filed
human rights complaint against Russia with ECHR — the right to a fair trial; the right to
protection of property & the right to effective remedy.
Court ruling: ECHR ruled (7yrs later) violation of the Right to a Fair Trial (due process related
to the tax claim) and the Right to Protection of Property (Corporation)
Q: How many potential human rights abuses and corrupt acts can you identify in this
case?
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The Magnitsky & Kodorkovsky Cases: Could the Ruggie
Principles and the Global Compact, Separately or Together, Make a
Difference?
Ruggie Principles:
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State duty to protect human rights
corporate responsibility to respect human rights
access to remedy for victims for violations of human rights
Global Compact Principles:
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support and respect protection of international human rights
no corporate complicity in human rights violations
work against corruption in all of its forms
Q: Does IBHR + UNCAC + Ruggie + GC = ROL?
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Lessons Learned: Defining the Relationship Between Human Rights
and Corruption — A Kenyan Paradox (Gathii, JT)
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Gathii: Remember always frame issues within country and/or sector socio-economic, political,
cultural & rule of law context.
Gathii: Remember effective strategies for combatting corruption depend on the ability to
expose corruption in the first place.
Gathii: Remember exposure leads to the causes and consequences of corruption and a
political culture that encourages, nurtures and reinforces exposure and punishment.
Gathii: Remember from colonial times to present the Kenyan governments have imposed
heavy-handed measures against access to information, printing & publication rights, including
jail.
Gathii: Remember, corrupt enforcement of criminal defamation laws, have often led to human
rights violations against a range of players, including journalists, human rights & anti-corruption
advocates.
Gathii: Remember human rights laws related to due process and separation of powers
provisions in the Constitution, have often been used to thwart prosecutions against corrupt
individuals.
Gathii: Remember to pursue rights and anti-corruption thru a multi-stakeholder lens, including
increased access to public goods, services, jobs and justice to the poor.
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“Risks and threats of corruption and the legal profession” - Is the
New Legal Anti-Corruption and Human Rights Landscape
Undermining the Integrity of the Legal Profession?
4 Core Principles for Lawyers: Integrity, Independence, Confidentiality and Avoiding
Conflicts of Interest
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The IBA/ OECD/UNODC project in 2010 to launch an anti-corruption strategy was a first. It included a global
survey of lawyers in every region of the world.
Some key survey findings (2010): (i) nearly 50% said corruption was an issue within the legal profession.
It was even higher in the CIS, African, Latin American, Baltic and East European regions; (ii) Nearly 40% had
never heard of any international A/C treaty; (iii) nearly 33% said they had lost business to corrupt law firms;
(iv) more than 20% said they had been approached to act as an agent or middleman in a reasonably suspect
international corruption offense; less than 40% said anti-corruption was a priority for their law firm.
More than 60% (2013 client survey) expressed concern over relationship between judiciary and lawyers; 80%
were concerned about relationship with public officials; 65% felt legal counsel did not have enough anticorruption expertise.
Times are changing: Business ethics, anti-corruption regulation and human rights compliance are at the
forefront of issues facing businesses and lawyers today. An ethical failure could result in civil or criminal
sanctions
Q: What should the ethical obligations of lawyers be to withdraw as counsel or report or disclose corruption
to their boss, their client or to the law enforcement authorities? Should there be global ethics codes?
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Class III
Corruption Within Government Institutions and Sectors and the Impact
on the Right to Freedom of Expression, Access to Information,
Whistleblowing, Privacy and the Rule of Law
Key Questions:
1. What are some of the key human rights and corruption issues raised in the Required
Readings and videos? To businesses? To whistleblowers? To human rights and anticorruption bloggers? Whish issues are of mutual interest to the business, human rights and
anti-corruption communities?
2. What are some of the sectors that harbor the most potential for human rights and corruption
abuses and what is a good reference resource for sector specific insights and best
practices?
3. What are some of the potential short and long-term costs and impacts of corruption and
human rights abuses in these cases (financial, legal, social, cultural and economic)?
4. How do you balance the right to freedom of expression, access to information and
whistleblowing against the right of privacy and the right to protect one’s reputation?
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Global Corruption Syndrome: Causes and Solutions?
What are the root causes of corruption in China and elsewhere?
Klitgaard: C = M + D - A
[Corruption = Monopoly + Discretion - Accountability]
What can be done about it?
Henderson: A/C = T + I + G + E + R + S
[Anti-Corruption = Transparency + Integrity/IT + Good Governance (govt/bus/civil soc) + Economic Growth +
Rule of Law/Rights + Security (personal/national)]
Q: Are there other root causes of and solutions to corruption in your country and what are
the priority
causes and solutions? Might the causes and solutions vary by sector, process
or institution?
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Balancing Rights and Risks — the UNCAC & UDHR: Income and Asset
Disclosure Laws Through an Anti-Corruption, Human Rights Doing Business
Lens
Transparency & Accountability & Access Information, Privacy, Presumption of
Innocence & Due Process Rights
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Banisar: Access to information and protection of privacy are both universal rights intended to make the
government more accountable (see Banisar Readings).
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Most of the time these two rights complement each other; sometimes they conflict.
These issues must sometimes be balanced, as in the case of income and asset disclosure, and one of the
best ways to do this is to clearly define laws, guidelines, techniques and oversight systems, including
appropriate oversight and adjudication institutions that can balance these rights and render fair and impartial
judgments through due process.
Income and Asset Disclosure Laws, like access to information laws, can be very effective in countries where
there is actual unfiltered access to the Internet, an independent media and a fair and impartial justice system.
Where there is not caution is the watchword. Potential human rights violations including selective political
prosecutions loom large. The same is true for whistleblower laws (also see Vaughn & Henderson
resource references in readings).
NYTs (6/18/14): Kin Shed Assets as China’s Leader Fights Graft - - “The Xi clan”
Q: How would you balance these issues within your country and in China?
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Risks and Costs Related to “Googling” and
Yahooing” in China & the Right of Individuals and
Businesses to Information & Privacy
Lessons learned from the Yahoo’s China adventure (see Business-Human Rights site and Class
Readings)
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Yahoo! China Basic Facts: (i) Yahoo one of first foreign Internet companies in China (1999);
(ii) bowed under pressure to cooperate on censorship; (iii) also provided electronic details about
“cyber-dissidents”, some of whom were later jailed; (iv) Yahoo merged with Alibaba in 2005, which
now operates Yahoo! China; (v) Yahoo settled a ATCA lawsuit in 2007 (dissident advocating
democracy & journalist’s e-mail to Internet forum) and agreed to create a human rights fund for
victims; (vi) US Congressional hearings ensued; (vii) China! Yahoo web portal closed 2013 &
Yahoo’s compliance.
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Regional and Global Trends? China’s old Web-tapping practices and new
Internet/Privacy & Data Regulations (see The KGB Enters the Digital Age - Henderson/2000 &
Covington’s E-Alert/Privacy and Security/China,6/25/13, in Readings). Did Yahoo know there were serious
human rights and business risks to itself and its customers in 1999?
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Yahoo/France Basic Facts: (i) French penal law prohibits sale or display of items that incite racial
hatred; (ii) Yahoo allowed sales off of US site; (iii) French court ruled against Yahoo in 2000; (iv) US district
ruled in 2006 against the free speech claim of Yahoo; (v) Yahoo amended its policies in 2001 to disallow sales.
Ebay did as well.
Q: What are the long-term costs of Internet surveillance to businesses? What human rights principles are at issue in
these cases? How do the issues differ, if at all, from the issues in the Snowden affair? Does the purpose of the surveillance or
existence of ROL matter?
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Human Rights Issues and the Internet: Yahoo! China Take Two!
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Human Rights Violated: Plaintiff’s lawsuit alleged a number of human rights violations
under the Alien Torts Claims Act, the Torture Victim Protection Act and California state law,
including: (i) willfully aiding & abetting torture, mental and physical pain and suffering; (ii)
forced labor; (iii) freedom of speech; (iv) freedom of association & (v) freedom of assembly.
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See Access to Justice, ICJ, and, Business & Human Rights site in Readings, and do some of your own
independent research on Yahoo and Google in China.
Questions for class discussion and debate:
What other international and national human rights are in potential play in these kinds of cases?
What is the impact of corruption within the justice, law enforcement and intelligence community in these kinds of
cases?
What are some of the legal remedies for Corporate Human Rights Abuses in China and in your country? Civil?
Criminal? What are some of the non-legal remedies?
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Legal Risks & the Alien Tort Statute (ATS) — Past or Future Human
Rights Remedy in the US or Under Other Countries Laws?
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ATS: The US Supreme Court ruled in Kiobel v. Royal Dutch Petroleum Co, (2013) that the
extraterritorial reach of the ATS was limited. The fight to continue the scope of the ruling will
be fought out in the lower courts in the US while other countries will debate whether to pass
similar laws.
Kiobel. Involved a law suit brought by 12 Nigerians in US federal court who alleged that
Dutch, British & Nigerian oil companies aided and abetted the Nigerian government in
committing human rights abuses in its efforts to stop protests against oil drilling. The Supreme
Court held that courts should apply the “presumption against extraterritorial application” of
federal law to the ATS. It further held that the petitioners had failed to overcome the
presumption where “all relevant conduct took place outside the US” and the plaintiffs and
defendants were not US persons. It left open the possibility of jurisdiction if the claims “touch
and concern” the territory of the US.
Liability? There is still a split among the circuits as to whether corporations may be held liable
under the ATS at all. Many ATS cases have since been dismissed. [But see Bin Laden
(terrorism) & Nestle (slave labor) cases.]
Q: What do you see the future of the ATS to be and do you see other countries passing similar laws
but with different jurisdictional boundaries? How would you weigh an ATS-like risk with businesses Are
there other remedies?
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Class IV.
Corruption Within the Regulatory System and the Right to Government
Services, Worker Safety, Life, Cultural Preservation, Clean Environment,
Water & the Rule of Law
Questions for class discussion and debate:
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As a Walmart employee what would you do if you discovered or were asked to bribe a local
officia to avoid zoning, environmental or land use permits?
As Walmart’s Chief Compliance Officer, what are some of the key issues that would need to
be included in a model human rights/anti-corruption policy and compliance/training program?
Who is responsible for the Walmart/Mexico scandal and who was the whistleblower? What
are some of the ways to prevent human rights and anti-corruption abuses in the future?
Identify the corruption and human rights issues raised in the Rana Plaza case.
What is the ‘Right Thing to Do’ when you are trying to address, prevent or mitigate human
rights and corruption abuses? (Wear multiple hats when answering this Q).
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Walmart: A Culture of Corruption, Complicity, Coercion or Cash?
Mexico/Walmart & Beyond
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Background/Walmart’s Global Human Rights Record: 80% of Walmart’s factories are in China.
Walmart has also been involved in other cases/scandals related to human rights abuses, such as a
2001 US class action case involving gender discrimination; a 2012 “Shrimp” case raised poor work
conditions/human trafficking/labor/wage violations involving suppliers/contractors in
Cambodia/Thailand; anti-union protests in the US; child labor scandals in Bangladesh and
Honduras; worker safety issues in the 2013 Rana Plaza case where 1100 workers were killed when
a factory collapsed; public protests against Walmart occur around the world frequently - - see
Business and Human Rights Resource Centre; Human Rights Watch 208 page global report
(Discounting Rights/2007) and numerous website reports.
UNCAC related laws/mandates Walmart/M: (i) active and passive bribery; (ii) regulatory
transparency; (iii) national and international law enforcement cooperation; (iv) whistleblowing; (v)
open government; (vi) independent media; (vii) independent justice system with integrity; (viii) civil
service reform; (ix) codes of conduct; (xii) transparency in public administration; (xiii) obstruction of
justice; (xiv) protection of reporting persons; (xv) preventing misuse of procedures regulating private
entities, including licenses.
IBHR related rights Walmart/M: (i) environment; (ii) worker safety; (iii) cultural rights; (iv)
government services; (v) unionizing rights; (vi) life; (vii) water; (viii) access to justice; (ix) freedom of
expression/whistleblowing.
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Walmart: Can Countries and Companies Really Implement the Ruggie &
Global Compact Principles? Will They Make a Difference and is Zero
Tolerance on Global Supply Chain Abuses the Right Policy?
Course review, class discussion & take-home exam (attached)
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Ruggie: (i) state duty to protect human rights of its citizens (enforceable within
Mexico/Bangladesh/US/Thailand context?); (ii) corporate responsibility to respect human
rights (realistic to undertake human rights due diligence/impact assessments and
implement?) & (iii) obligations to have state or independent compensation mechanisms in
place (possible in non-rule of law contexts?).
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Global Compact: (i) businesses should support and respect the protection of international
human rights principles; (ii) businesses should make sure they are not complicit in human
rights abuses; (iii) businesses should work against corruption in all of its forms.
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Morals/Ethics/Costs: Corruption is inherently wrong, has a disproportionate impact on the
poor & disadvantaged, is an extra tax on all citizens and companies, promotes monopolistic
discretionary unaccountable behavior, fuels organized crime, money laundering, capital flight
& terrorism, diverts public and private monies away from being invested in public services
and good causes & it corrodes trust in government, companies, capitalism & the rule of law.
Q: Does the IBHR + UNCAC + Ruggie Principles + Global Compact = ROL/Rights?
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