Understanding the Protect, Respect and Remedy
Framework and Guiding Principles
Exploring the opportunities and limitations for operationalization of
the PRR Framework and GP’s in the context of Myanmar’s
extractive industry
Master Thesis International Public Law 2013/2014
Tilburg University
Jacob Cornelis Bastiaan de Lange
S854909
Supervisor: Dr. Mr. N.M.C.P. Jägers
August 2014
“Nothing in the world can take the place of
persistence. Talent will not; nothing is more common
than unsuccessful men with talent. Genius will not;
unrewarded genius is almost a proverb. Education
will not; the world is full of educated derelicts.
Persistence and determination alone are omnipotent.
The slogan Press On! has solved and always will
solve the problems of the human race.”
― Calvin Coolidge
Preface
Writing this thesis has been a true soul-searching exercise. The trajectory has most certainly not been a
smoothly ascending curve, but has been marked by seeming dead-ends, plateaus, dark nights of the soul
and intervals of boredom, not to mention bouts of despair and self-doubt. But I am proud and happy to
say that the task has finally been accomplished. Despite the many missed deadlines, I continued to receive
the support of family, friends and supervisors. For this I am eternally grateful. Thanks go to, Dr. Mr.
Nicola Jägers, whose flexible and stimulating attitude, has pushed me to demand more of myself. Thanks
go also to my parents and friends, who not only have shown interest in how I dealt with the ups and
downs of writing a thesis, but have also often not asked about it, which may have been more important for
my peace of mind. Last but not least, my deepest gratitude is owed to my lovely girlfriend Yalda, whose
unconditional support, patience and encouraging words where always there, when I needed them most.
Thanks everybody,
Bas
Table of contents
Preface
Table of contents
List of abbreviations
1 Introduction
2 Background of the PRR Framework and GP’s: consensus at the expense of legal clarity?
3 The responsibility to respect pillar
3.1 Understanding human rights due diligence
3.2 The limitations of human rights due diligence in the context of Myanmar’s extractive industry
3.3 Opportunities for operationalizing the responsibility to respect: transparency, participation and
independent monitoring
3.4 Conclusion
4 The duty to protect pillar
4.1 A duty to monitor, regulate and adjudicate
4.2 The limitations of the duty to protect: limited guidance on extraterritoriality
4.3 Opportunities for operationalizing the duty to protect: extraterritorial reporting regulations in
Myanmar
4.4 Conclusion
5 The remedy pillar
5.1 Understanding the remedy pillar
5.2 Opportunities for operationalizing the remedy pillar: pro’s and con’s of US Alien Tort Statute
litigation
6 Conclusion
Bibliography
List of abbreviations
API
ATS
CDA
CEDAW
CNPC
CRC
CSO
CSR
ECOSOC
ERI
EITI
ESTT
FPIC
GP’s
HRC
IACHR
ICCPR
ICESCR
ILO
MOGE
NCP
NGO
NHRI
OECD
OEMS
PRR Framework
PTTEP
SA 8000
SEC
SGM
SRSG
UDHR
UN Draft Norms
VPSHR
American Petroleum Institute
Alien Tort Statute
Collaborative Learning Projects Inc
Convention on the Elimination of All Forms of Discrimination against Women
China National Petroleum Corporation
Convention on the Rights of the Child
Civil Society Organization
Corporate Social Responsibility
Economic and Social Council
Earth Rights International
Extractive Industries Transparency Initiative
Energy Security Through Transparency provision
Principle of Free, Prior and Informed Consent
Guiding Principles
Human Rights Council
Inter-American Court of Human Rights
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights
International Labour Organization
Myanmar Oil and Gas Enterprise
National Contact Points
Non Governmental Organization
National Human Rights Institutions
Organization for Economic Co-operation and Development
Chevron’s Operational Excellence Management System
Protect, Respect and Remedy Framework
Petroleum Authority of Thailand
Social Accountability 8000
Securities and Exchange Commission
Shwe Gas Movement
Special Representative to the Secretary-General
Universal Declaration of Human Rights
United Nations Draft Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights
Voluntary Principles on Security and Human Rights
1
Introduction
In 2011, Myanmar’s newly installed government introduced an extensive reform agenda, aiming to
facilitate the country’s top-down transition from decades of authoritarian rule. 1 The reforms included
amongst others measures leading to political reconciliation, the signing of peace agreements, as well as
legislative amendments easing the authoritarian controls on the fundamental freedoms of Myanmar’s
people. In response to these encouraging signs of change, the international community lifted economic
sanctions imposed on Myanmar.2 Although reasons exist to be optimistic about Myanmar’s future as a
growing market, the country still faces many serious human rights challenges.3 Similar to other countries
recovering from authoritarian rule, Myanmar is struggling with corruption, lack of rule of law and
extensive conflict over the control of natural resources between the central government and local minority
groups. This is problematic for corporations investing in Myanmar, as they may risk contributing to, or
being directly linked through their operations or relationships to these human rights concerns.
Myanmar’s extractive industry drew a lot of the human rights attention, as it has been the largest
source of income for the country’s military regime over the past two decades. The unequal distribution of
natural resources has been one of the main causes of social unrest, leading to community-wide protests
and sabotage of corporate properties.4 To deal with these security risks, corporations hired Myanmar’s
military to provide project security in the pipeline areas. Ironically however, the increased militarization
in the pipeline corridors had opposite effects, resulting in more community protests, followed by
repressive actions by the military, and eventually allegations of corporate complicity in violations
committed by soldiers on “pipeline duty”.5 Additionally, corporations in Myanmar’s extractive industry
have been castigated for their roles in aiding and abetting illegal land grabs, environmental degradation
and interference with communities’ traditional way of life.6
In fragile states, such as Myanmar, corporate accountability easily becomes part of a broader
political deal, as rogue regimes often are in need of foreign funds to stay in power. In that case, both host
regime and corporate actors are benefiting from a lack of oversight, and thus norms of corporate
accountability are not adopted nor enforced at the national level. This so called governance gap in the
regulation of multinational corporations, has caused a secretive environment in which corporations may
commit or be complicit in wrongful acts, while local communities and civil society partners lack the
necessary information, tools and funds to effectively combat corporate injustices. It is clear that those
who seek accountability for adverse corporate impacts in fragile states would be much helped with clear
norms of corporate accountability under international law. Since the 1970s several attempts have been
undertaken to address the accountability gap at the international level. 7 However, many of these
endeavours were unsuccessful, either in being strictly voluntary and thus limited in scope, or in being
overly ambitious in terms of legal obligations, and therefore lacking the support of corporations and
governments. To rectify this situation, the UN Human Rights Commission appointed Special
Representative to the Secretary-General (“SRSG”) John Ruggie to find a pragmatic solution to bridge the
1
2
International Crisis Group, ‘Reform in Myanmar: One Year On’, 2012, p. 2-7
EU Council, Decision 2012/225/cfsp, Renewing restrictive measures against Burma/Myanmar, 26 April 2012, available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:115:0025:0026:EN:PDF
3
Challenges vary amongst others from concerns over forced labour practices, illegal land grabs, environmental and cultural degradation as well as serious human rights violations
amounting to war crimes and crimes against humanity.
4
P. Collier, ‘Economic causes for civil wars and their consequences for Policy’, World Bank Washington DC, 2005, p. 6
5 Earth Rights International, ‘Energy Insecurity: How Total, Chevron, and PTTEP contribute to human rights violations, financial secrecy, and nuclear proliferation in Burma’,
2010
6
Earth Rights International, ‘The human cost of energy: Chevron’s continuing role in financing oppression and profiting from human rights abuses in military-ruled Burma’,
2008.
7
See UN Draft Norms on transnational corporations: UN ECOSOC, Sub-Commission on Promotion & Protection of Human Rights (26 August 2003), Norms on the
Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2. See also the 10 principles
of the UN Global Compact at http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html
1
corporate accountability gap.8 In 2008, Ruggie presented the Protect, Respect and Remedy Framework
(“PRR Framework”), 9 followed in 2011 by a set of Guiding Principles (“GP’s”) 10 intended to
operationalize the PRR Framework. The unanimous endorsement of the PRR Framework and GP’s by the
Human Rights Council (“HRC”) is considered a breakthrough in the business and human rights debate. It
has been the first time UN member states adopted a common position laying down a global standard of
practice that is now expected of all governments and corporations in relation to corporate accountability.11
The PRR Framework consists of three pillars. The first pillar affirms states’ leading role to
protect against corporate human rights abuses through appropriate legislation, policies and adjudication.
The second pillar constitutes corporations’ own responsibility to respect human rights, which means that
corporations must have due diligence processes in place to demonstrate that they do not infringe on the
rights of others. The third pillar supports the first and second pillar by outlining a number of remedial
mechanisms in case states and corporations fail to adequately respond to human rights concerns. The PRR
Framework and GP’s are part of a larger trend that explores new models of international regulation. More
specifically, this trend recognizes the shift from command-and-control regulation to more flexible and
responsive “new governance” models of regulation, in which a broad range of stakeholders have different
monitoring and enforcement roles to play.12 In other words, Ruggie looked beyond the traditional statecentered, or treaty-based approach and adopted a polycentric view to international norm setting. However,
even taking the PRR Framework and GP’s progressive nature into consideration, it is clear that no
international governance regime can ensure that the realization of human right norms will be completely
perfect or perfectly complete. Ruggie acknowledged this by stating that he has no illusions that the
endorsement of the PRR Framework and GP’s will solve all business and human rights challenges. In his
words, ‘they will only mark the end of the beginning’. 13 The true value of Ruggie’s standard-setting
efforts, clarifications and guidance will only be discernible when implemented in a specific operational
context.
Due to the comprehensiveness of Ruggie’s work it would be impossible to discuss all business
and human rights related themes exhaustively within the scope of this thesis. Instead this research will
provide a detailed but selective examination of the early experiences with operationalizing the PRR
Framework and GP’s in the context of Myanmar’s extractive industry. By examining the limitations and
opportunities for effective operationalization of the three-pillar strategy in Myanmar, this thesis aims to
identify lessons learned on how to further evolve the business and human rights debate and ensure
corporate accountability in fragile states.
The present research has been conducted by analyzing the content and scope of the three pillars of
the PRR Framework and GP’s. Moreover, relevant critiques of the PRR Framework and GP’s, from both
legal scholars as well as political scientists, have been reviewed. For contextualizing the business and
human rights challenges in Myanmar’s extractive industry, NGO sources were consulted. The case study
on Myanmar’s extractive industry is particularly relevant as the country’s recent political reforms
coincided with the finalization of Ruggie’s mandate. Moreover, the country’s availability of cheap labour,
central position in Asia, as well as the large oil and gas reserves construe an excellent starting position for
Myanmar to become the major energy hub in South East Asia. For these reasons, foreign direct
8
9
Resolution 2005/69, UN Human Rights Commission (20 April 2005), Human rights and transnational corporations and other business enterprises, E/CN.4/RES/2005/69
Special Representative to the Secretary General on Business and Human Rights, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’, 2008 U.N. Doc
A/HRC/8/5 (hereinafter “Ruggie Framework Report 2008”)
10
Special Representative to the Secretary General on Business and Human Rights, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations Protect,
Respect and Remedy Framework’, 2011, UN Doc. A/HRC/17/31 (hereinafter “Ruggie Guiding Principles Report 2011”)
11
R. Mares, ‘Ruggie’s diplomatic project and its missing regulatory infrastructure’, in The UN Guiding Principles on Business and Human Rights. Foundations and
Implementation, R. Mares ed., 2012 Leiden: Martinus Nijhoff Publishers, p. 1-50, at p. 1.
12
For a discussion on the relevance of new governance studies see amongst others: D. Hess, ‘Social Reporting and New Governance Regulation: the Prospects of Achieving
Corporate Accountability through Transparency’, Business Ethics Quarterly 2007, Vol. 17/3, p. 453-476. See also: T.J. Melish & E. Meidinger, ‘Protect, Respect, Remedy and
Participate: New Governance Lessons for the Ruggie Framework’, in The UN Guiding Principles on Business and Human Rights – Foundations and Implementation, Martinus
Nijhoff Publishers Leiden, Boston 2012, p. 303-336
13
Ruggie Guiding Principles Report 2011, ¶ 13
2
investment in Myanmar’s extractive industry and infrastructure is likely to expand in the near future,
which will likely result in an increase of the adverse impacts caused by corporate activities. Researching
the opportunities and limitations for effective operationalization of the PRR Framework and GP’s in the
context of Myanmar’s extractive industry thus will not only provide an opportunity to examine the
strengths and weaknesses of Ruggie’s guidance, but may also play an important role in ensuring that
foreign direct investment in Myanmar will take place in a responsible manner.
The starting point of the analysis is Ruggie’s relative success in connecting human rights law terminology
to the more practice-oriented discourse of corporate social responsibility (“CSR”). Ruggie successfully
marketed the PRR Framework and GP’s as the global reference point for all action on business and
human rights. However, even while embraced widely,14 the success of the PRR Framework and GP’s
comes at a price. In chapter 2 it is argued that the widespread support for Ruggie’s work could only be
achieved by avoiding the hard moral language of legal obligations. As a result, Ruggie’s guidance on
what is needed to effectively operationalize the PRR Framework and GP’s appears to be rather minimal,
and thus is likely only to have limited impact on corporate performance on the ground.
Ruggie introduced the concept of human rights due diligence as the biggest responsibility placed
on corporations with regard to their human rights performance. According to Ruggie, human rights due
diligence essentially entails ‘all the steps a corporation must take to become aware of, prevent and
manage their adverse impacts’.15 In effect, this means that corporations should conduct timely impact
assessments, integrate the findings of these assessments in their operational policies, and report on the
successes and failures in mitigating their adverse impacts. However, the current state of the art of human
rights due diligence in Myanmar gives rise to concerns about corporations engaging in creative or
symbolic compliance processes. Experience suggests that corporations are likely to avoid reporting
information that will harm their short-term interests. For example, corporations in Myanmar failed to
disclose sensitive information on payments to the military regime, and thus maintained a culture of
secrecy by avoiding proper oversight of their relationship with Myanmar’s authorities. To overcome the
limitations of Ruggie’s approach to corporate responsibilities, this research will review a number of
alternative operationalization strategies of the PRR Framework and GP’s. It is argued that additional
guidance is needed to open up the due diligence process, including standards of enhanced transparency,
participatory rights for stakeholders, and independent monitoring and review at the international level.16
Next, the focus will be on the extraterritorial responsibilities of “home states” or “states of
origin”, as these states often have most political and economic leverage over corporations operating in
fragile environments. Chapter 4 examines the opportunities and limitations of using extraterritorial
reporting regulations as a tool to operationalize the PRR Framework and GP’s. The argument is raised
that Ruggie’s guidance on extraterritoriality underestimates the radical nature of what is needed for home
states ‘to take steps’ to regulate respect for human rights.17 More specifically, Ruggie underestimates the
home state’s role in establishing a transparent foreign trade environment. Mandatory social reporting
legislation provides an opportunity to demand more openness from corporations. Indeed, several countries
have voluntarily begun experimenting with transparency regulations that require corporations to disclose
information about their activities in fragile environments. For example, in 2013 the US adopted a set of
mandatory ‘Reporting Requirements’ regarding corporations that intent to invest in Myanmar.18 It will be
14
The 2013 progress report by the UN Working Group on Business and Human Rights notes ‘a growing interest of all stakeholder groups, in all regions and industries, in the
issue of business and human rights and in the Guiding Principles. Some 1,000 participants from more than 80 countries registered for the first Forum on Business and Human
Rights, far exceeding expectations’. See Working Group on the issue of human rights and transnational corporations and other business enterprises, Report to the General
Assembly, 14 March 2013, A/HRC/23/32, at ¶ 2.
15
Ruggie Framework Report 2008, ¶ 56
16
C. Parker & J. Howe, ‘Ruggie’s Diplomatic Project And Its Missing Regulatory Infrastructure’, in The UN Guiding Principles on Business and Human Rights - Foundations
and Implementation, R. Mares ed., 2012 Leiden: Martinus Nijhoff Publishers, p. 273-303.
17
Parker & Howe 2012 (n 16), p. 275.
18
US Treasury and State Department July 2012, Draft Reporting Requirements on Responsible Investment in Burma. Available at
http://www.humanrights.gov/2013/02/22/reporting-requirements-on-responsible-investment-in-burma/
3
interesting to see whether these extraterritorial transparency regulations can lead to more robust human
rights due diligence practice in Myanmar.
Subsequently, chapter 5 considers the challenge of establishing a legitimate remedy mechanism
to which victims can turn to after an adverse impact has occurred. It is argued that the way in which
Ruggie has captured the shared responsibility to provide access to justice leaves ample room for states
and corporations to interpret this responsibility in a restricted way. Despite Ruggie’s good intentions to
ensure access to remedies, evidence suggests that home states continue to maintain legal barriers that
prevent legitimate cases from being heard by independent courts. The case law of US courts under the
Alien Tort Statute (“ATS”) will be discussed to demonstrate the main bottlenecks in victims’ access to
extraterritorial litigation.
Finally, in conclusion the lessons learned from operationalizing the PRR Framework and GP’s in
Myanmar will be summarized and recommendations will be provided that aim to ensure the successful
operationalization of the PRR Framework and GP’s in the years to come.
2
Background of the PRR Framework and GP’s: consensus at the expense of legal clarity
The PRR Framework and GP’s have come as the result of many years of stakeholder pressure for
effective international action to tackle corporate human rights abuses. Ruggie’s mandate, as UN Special
Representative on the issue of business and human rights, came on the heels of an ill-fated standardsetting effort at the UN level, “the UN Draft Norms”.19 At the beginning of the new millennium, lines of
battle had formed between the business community and human rights advocacy groups over the need for
voluntary versus mandatory approaches to corporate accountability. 20 The business community argued
that corporate respect for human rights was best served through self-regulation and soft law initiatives,
thereby keeping matters of social accountability in their own hands. On the contrary, human rights
advocates had sought direct corporate obligations through an international treaty and subsequently
national laws, with monitoring opportunities by UN institutions. However, facing strong opposition from
the corporate sector, the UN Draft Norms initiative ended in a standstill and the Human Rights
Commission eventually rejected the document in 2004.21 Not willing to let the corporate accountability
debate slip entirely from the international agenda, UN decision makers believed a diplomatic venture was
needed to resolve the divide between voluntary and mandatory approaches to corporate accountability.
Ruggie was tasked to do exactly this, finding a diplomatic solution.22
In 2006, at the beginning of his mandate, Ruggie firmly rejected the UN Draft Norms. 23 After
extensive examination of the Universal Declaration of Human Rights and the ten core human rights
treaties, Ruggie concluded that the operational paragraphs of human rights treaties are not explicitly
directed to private actors.24 Nor did the treaty bodies find evidence of a general custom directly applying
the entire range of obligations under human rights law to private actors. By itself, this restatement of
international law could not end the controversy over business and human rights. Instead Ruggie sought to
undo the negative dynamics of globalization, by providing governments and corporate management with
guidance on how to align their global operations with human rights objectives. Although the PRR
Framework contains in essence mere recommendations, and thus lacks binding force, it elaborates upon
19
20
Mares 2012 (n 11), p. 1
R. Mares, ‘Global Corporate Social Responsibility, Human Rights, and the Law: An Interactive Regulatory Perspective on the Voluntary-Mandatory Dichotomy’,
Transnational Legal Theory 2010, Vol. 1:2, p. 221–285.
21
UN Commission on Human Rights, Report to the Economic and Social Council on the Sixtieth Session of the Commission 2004, UN Doc E/CN.4/2004/L.11/Add.7
22
Report of the United Nations High Commissioner on Human Rights on the responsibilities of transnational corporations and related business enterprises with regard to human
rights, E/CN.4/2005/91, 2005.
23
Special Representative to the Secretary General on Business and Human Rights, ‘Interim Report on the Issue of Human Rights and Transnational Corporations and Other
Business Enterprises, 2006, UN Doc. E/CN.4/2006/97, at ¶ 59-60 (hereinafter “Ruggie Interim Report 2006”)
24
Special Representative to the Secretary General on Business and Human Rights, ‘Business and Human Rights: Mapping International Standards of Responsibility and
Accountability for Corporate Acts’, Feb 2007, A/HRC/4/035, at ¶ 44 (hereinafter “Ruggie Mapping Report 2007”)
4
the implications of existing human rights norms and adds elements of soft law to mediate between the
concerns of the UN, the business sector and human rights activists.25
In effect, Ruggie made an overview of existing corporate social responsibility (“CSR”)
arrangements in order to distil corporate attitudes towards accountability for human rights. Ruggie
acknowledged that, with more than 77.000 transnational corporations spanning the globe and millions of
local subsidiaries and suppliers, it would be impossible to map the ‘entire universe of business
corporations’.26 Still, certain categories of soft law arrangements could be identified:
1) Company-level codes of conduct or CSR policies: These are voluntary codes and practices that corporations
themselves adopt unilaterally and may relate to a corporation’s own operations, subsidiaries and suppliers.
2) Collective or sectorial initiatives: These are instruments adopted by groups of corporations operating in a
particular industry or organized around a particular theme. Corporations that sign up to these initiatives are
expected to live up to certain specified human rights standards and in some cases may lose membership if they do
not. Examples are the Extractive Industries Transparency Initiative (“EITI”), the Equator Principles, Social
Accountability 8000 (“SA 8000”) and the Fair Labour Association (“FLA”).
3) Multi-stakeholder initiatives with intergovernmental components: These instruments are negotiated at the
international level and are agreed upon by national governments. Examples are the ILO Tripartite Declaration of
Principles Concerning Multinational Enterprises and Social Policy and the OECD Guidelines for Multinational
Enterprises.
The underlying principle of these soft law instruments is the belief that socially responsible business
conduct will eventually advance the economic interests of corporations.27 This so-called business case
thinking emphasizes that human rights morality and economics are mutually reinforcing ideals. Supported
by the growing importance of intangible assets, such as brand names and corporate image, self-regulation
has become economically interesting for corporations, as it is seen to serve the function of risk
management. Adhering to soft law standards, such is the belief, may minimize reputational losses and
may make corporations more attractive for investors, customers and employees. Similarly, the business
case logic plays a central role in Ruggie’s justification for the PRR Framework. Ruggie underlined, it is
clearly in corporations’ interest to minimize human rights risks, as these risks may trigger other business
contingencies, such as labour disputes, conflicts with local communities, reputational damage and legal
liabilities.28 As will be discussed in more detail below, the corporate responsibility to respect essentially
relies on the voluntary uptake of due diligence and risk assessment processes that may over time benefit
corporations. The argument is that respecting human rights is good for profit and corporations who fail to
adequately implement due diligence processes will bear the reputational and financial consequences.
Ruggie thus strongly believes in an international acculturation process in which powerful corporations
voluntarily conform to the behavioural expectations of the wider culture.29 In this voluntary acculturation
process, not just legal regulation and judicial oversight, but rather shareholder, customer and society’s
preferences and expectations form the key incentives for corporations to discharge their responsibility to
respect human rights.
By steering away from the concept of legal obligations for corporations and instead placing emphasis
on the economic rationale and societal expectations, Ruggie generated a shift in the dynamic of the
business and human rights debate; from deep polarization among the stakeholder group after the rejection
of the UN Draft Norms, to a greater and shared understanding of the links between corporate governance
and human rights law. Notwithstanding Ruggie’s success in ensuring corporate and political support for
the new business-friendly standards, substantial criticism has arisen concerning the use of vague and
ambiguous language in the PRR Framework and GP’s. Weissbrodt, the main author of the UN Draft
Norms, wrote in this regard: ‘Ruggie was supposed to develop standards, but has instead attempted to
derail the standard-setting process and bow to the corporate refusal to accept any standards except
25
26
27
28
29
Parker & Howe 2012 (n 16), p. 277.
Ruggie Mapping Report 2007, ¶ 64
F. Wettstein, ‘Human rights as a critique of instrumental CSR: Corporate responsibility beyond the business case’, in Notizie di Politeia 2012, XXVIII (106), p. 18-33.
J. G. Ruggie, ‘Reconstituting the Global Public Domain – Issues, Actors, and Practices’, European Journal of International Relations 2004, Vol. 10:4, p. 518.
R. Goodman & D. Jinks, ‘How to Influence States: Socialization and International Human Rights Law‘, Duke Law Journal 2004, Vol. 54, p. 726.
5
voluntary ones’.30 Indeed, the replacement of the strong and binding language of moral obligations with
that of economic incentives has allowed for addressing human rights concerns without necessarily giving
up on the corporation’s discretion to deal with human rights as they wish. 31 Critique has arisen that
Ruggie is ‘overly optimistic about the self-explanatory character of international human rights law’ and
the way it is supposed to be translated into analytical tools that can guide corporate performance. 32 The
downside of Ruggie’s approach of referring to 'all international human rights' for the substance and
creating for the rest due diligence processes, is that corporations are given a lot of freedom in determining
what constitutes a breach of human rights law and how to respond to it. As a result of the open character
of the responsibility to respect norm, some of the due diligence practices in Myanmar are highly
unsatisfactory and therefore, by association, detrimental to the credibility of the PRR Framework and
GP’s as a whole. Interesting to research then is; where exactly does Ruggie’s guidance fall short in
specifying the minimum requirements that are prerequisites for effective operationalization of the due
diligence requirement?
3
The responsibility to respect pillar
3.1 Understanding human rights due diligence
GP 11 defines the corporate responsibility to respect as the responsibility ‘to avoid infringing on the
rights of others’. 33 The baseline assumption is that corporations can continue their normal course of
business action, so long as they do not cause harm to human rights in the process. The responsibility to
respect is seen as a standard of care. Meaning that corporations are required to undertake active measures
to their maximum available resources to avoid causing or contributing to adverse human rights impacts.34
In order to actively discharge their responsibility to respect corporations should as a minimum have in
place: 35
- A statement of human rights policy commitment that is publicly available and approved at the most senior level
of the corporation;
- A human rights due diligence process to identify, prevent, mitigate and account for how they address their
impacts on human rights;
- Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute
The public statement of human rights commitment is a tool for senior management to show the
corporation’s willingness to comply with international human rights standards. Many corporations choose
to integrate human rights policies under the heading of CSR.36 The human rights policy then together with
corporate governance standards, health and safety regulations as well as environmental policies form the
cornerstones of a corporation’s social engagement strategy on which further operational compliance
systems can be build. Nevertheless, it is through the notion of due diligence that corporations become
actively involved in managing their impacts on human rights.37 Human rights due diligence is the central
element of the corporate responsibility to respect pillar. Two basic steps can be recognized. A corporation
30
D. Weissbrodt, ‘Keynote Address: International Standard-Setting on the Human Rights Responsibilities of Businesses’, Berkeley Journal of International Law 2008, Vol.26, p.
390.
31
Parker & Howe 2012 (n 16), p. 278.
32
R. Sullivan and N. Hachez, ‘The missing piece of the Ruggie jigsaw: the case of institutional investors’, in The UN Guiding Principles on Business and Human Rights –
Foundations and Implementation, Martinus Nijhoff Publishers Leiden, Boston 2012, p. 217-244.
33
Ruggie Guiding Principles Report 2011, GP 11.
34
Id., GP 13.
35
Id., GP 17 – 21.
36
See for example Chevron’s social accountability strategy called the “Chevron Way”. Chevron’s social accountability strategy is built around corporate core values such as;
respect for the law, support for universal human rights, and protection of the environment. Available at http://www.chevron.com/about/chevronway/
37
Black’s US Law Dictionary defines due diligence as: ‘the diligence, that is such a measure of prudence, activity, or assiduity, as is reasonably expected from, and ordinarily
exercised by, a person who seeks to satisfy a legal requirement or discharge an obligation.
6
needs to be able to ‘know and show’ its respect for human rights in practice.38 The knowledge component
requires an inward looking process of human rights impact assessments and integration of the findings in
corporate decision-making. Typically a human rights impact assessment takes place prior to major
operational changes and must take into account the country context where the business activities take
place, the scale and irremediability of the corporate impacts, as well the relationships necessary to
conduct the activities. In this way, human rights impact assessments provide corporations with empirical
information concerning risks to right-holders as well as risks to the corporation’s profitability. The
showing component on the other hand involves an outward looking process of communicating and
reporting on how these risks are addressed.39 As will be discussed below, information disclosure and
reporting is a crucial, yet underrated, element in the due diligence process, as it enables external
stakeholders to engage with corporations and compare corporate performance.
3.2 The limitations of human rights due diligence in the context of Myanmar’s extractive industry
Myanmar’s extractive industry is largely based around 3 pipeline projects, the Yadana, Yetagun and Shwe
pipelines, which transport gas from fields in the Andaman Sea, through politically unstable areas, to
Thailand and China. The military-controlled Myanmar Oil and Gas Enterprise (“MOGE”) has always
been a partner in each of the joined extraction projects, which further included foreign partners such as
Unocal (now Chevron), Total S.A., Premier Oil Ltd., the Petroleum Authority of Thailand, Daewoo
International and the China National Petroleum Corporation (“CNPC”).40
Because western corporations, such as Chevron and Total, have taken the lead in formalizing
their social engagement strategies in Myanmar the focus of the case study will be on their implementation
practices with respect to the PRR Framework.41 Both Chevron and Total were already involved in the
Yadana pipeline project before economic sanctions were imposed on Myanmar. Rather than leaving
Myanmar, these corporations claim to ‘constructively engage’ with Myanmar’s authorities in order to
advance social progress in the country.42 Chevron’s policy commitment to human rights is embodied in
the ‘Chevron Way’, which contains its mission statement and lists a number of core corporate values.43 It
is further expressed through several policy codes, including an Operational Excellence Management
System (“OEMS”),44 a Business Code of Conduct and Ethics,45 an annual Corporate Social Responsibility
38
39
Ruggie Guiding Principles Report 2011, GP 15
Id., GP 21. External communication can take a variety of forms, including formal public reporting and disclosure, as well as in-person meetings, online dialogues and
consultations with affected stakeholders.
40
MOGE first discovered natural gas fields in the Andaman Sea in 1982. The commercial development of the Yadana fields began in 1992 when the French company Total S.A.
(31.24%) joined the project. In 1993, Unocal (now Chevron) (28.26%) joined Total. Total and Unocal were allowed to do business in Myanmar because these contracts were
officially signed before US and European governments issued economic sanctions against Myanmar. In 1995 the state-owned Petroleum Authority of Thailand (“PTTEP”) (25.5%)
also joined the business consortium, both as a partner in the project as well as the main purchaser of the gas. A 60-KM onshore pipeline through the politically unstable Tenasserim
region was built to transport the gas to Thailand, where the gas has been mainly used to produce electricity for the Bangkok metropolitan area. The Yadana deal is the main
operational project in Myanmar. Currently a new major project is waiting in the pipeline. The new Shwe project includes two gas blocks off the northern coast of Arakan State. It
is governed by two production sharing contracts, which give the South Korean Daewoo International (51%), Korea Gas Corporation (“KOGAS”) (8.5%), India’s ONGC Videsh
Ltd. (17%), the Gas Authority of India Ltd (8.5%), and MOGE (15%) the rights to exploit these blocks. In June 2008 China got involved as the main purchaser of the gas from the
Shwe fields. Subsequently, in March 2009 the China National Petroleum Corporation (“CNPC”) and Myanmar’s government agreed upon the construction of two onshore
pipelines over 1.900 km, one that transports the gas from the Shwe fields to the Chinese Yunnan province and another that transports oil from the Middle-East to China. The Shwe
pipelines go through vast areas of tropical jungles and cross Arakan and Kachin provinces where ethnic strife and sectarian violence remain ongoing.
41
N.M. Black, Blood Money, A Grounded Theory of Corporate Citizenship: Myanmar (Burma) as a Case in Point (Dissertation University of Waikato), 2009, at p. 336- 357.
Empirical research by Nicola Black suggests that corporations from western countries are more likely to engage in a constructive manner, meaning to adopt strategies to advance
social progress in Myanmar, whereas engagement by Asian corporations has been characterized by a ‘business as usual’ mentality or unrestricted engagement.
42
Total SA, (September 2007). In response to criticism of Total’s actions during the revolutionary protests by monks in 2007, Total stated: “To those who ask us to leave the
country, we reply that far from solving Myanmar's problems, a forced withdrawal would only lead to our replacement by other operators probably less committed to the ethical
principles guiding all our initiatives. Our departure could cause the population even greater hardship and is thus an unacceptable risk”. Retrieved from
http://birmanie.total.com/en/news/p_5_4.htm
43
Chevron’s Way policy statement is available at http://www.chevron.com/about/chevronway/
44
The OEMS is available at http://www.chevron.com/documents/pdf/OEMS_Overview.pdf
7
Report,46 and a standalone Human Rights Policy.47 Chevron’s social accountability systems have been
validated in 2012 by an external consultancy firm. Lloyds’s Register Quality Assurance found that
Chevron’s policy commitments were consistent with the PRR Framework and other sector-based
principles on voluntary human rights reporting.48 Total has similar policy documents in place including a
Code of Conduct,49 Ethical Business Guidelines,50 and an annual CSR report. In addition, both Chevron
and Total established a socio-economic program for 25 villages in the Yadana pipeline area, which aims
to promote human rights through micro-finance projects, education and healthcare services.51 The human
rights policy commitments made by Chevron and Total show that the corporate attitude towards human
rights is changing; from initial apathy, to a clear corporate willingness to abide by international human
rights standards, at least on paper. Nevertheless, the problem remains that the legitimacy of these
commitments is difficult to pinpoint in actual practice. There exists a vast discrepancy between what
affected communities have documented about human rights violations in the Yadana pipeline corridor and
how Chevron and Total have presented their roles in social reports.
Since as early as 1996, various nongovernmental organizations (“NGO’s”), including Earth
Rights International (“ERI”), have written numerous critical reports about Myanmar’s extractive industry
sector.52 These reports provide excellent documentation regarding the impacts of the pipeline projects on
the environment, as well as the socio-economic development and human rights protection of the
communities living in the pipeline areas. Among the most serious crimes reported in the pipeline area, are
allegations of forced labour and targeted killings. Villagers were forced to carry construction materials
through mine-prone areas.53 Obviously, reports from NGO’s never provide a completely accurate picture
of the situation on the ground as these reports only focus on the flaws of corporations. It is considered to
be in NGO’s interest to sensationalize, oversimplify and leave out certain developments in order to
increase awareness among the general public and secure their funding. Despite their clear bias on their
stands, the abundance of reports by various NGO’s documenting similar human rights violations over a
time span of more than a decade, serve to show that there must be some truth to their observations. At the
very least, the sheer amount of NGO reports suggests that corporations in Myanmar’s extractive industry
are not fully operating in line with society’s expectations.
In response to the increased scrutiny from civil society actors and affected communities, Chevron
and Total increased their PR efforts by placing their human rights responsibilities entirely under the rubric
of ‘good citizenship’ or philanthropy. They hired an external consultancy agency to assess the impacts of
their voluntary social engagement programs, and thus performed human rights due diligence. Between
2002 and 2011, a series of six impact assessments were conducted by CDA Collaborative Learning
Projects Inc. (“CDA”). CDA found that there was general support for the continued presence of Chevron
and Total in Myanmar.54 On multiple occasions, CDA referred to the community member’s appreciation
for Yadana’s socio-economic program. Overall, CDA presented a favourable picture of the corporations’
impacts in the Yadana pipeline area. However, NGO’s argued that the impact assessment reports have
been misused to paint a false picture of the Yadana pipeline project, and provide unrealistic prospects for
45
46
47
Chevron’s Business Code of Conduct and Ethics is available at http://www.chevron.com/documents/pdf/chevronbusinessconductethicscode.pdf
Chevron’s most recent CSR Report is available at http://www.chevron.com/documents/pdf/corporateresponsibility/Chevron_CR_Report_2011.pdf
Chevron’s Human Rights Policy 2009 is available at http://www.chevron.com/documents/pdf/AboutOurHumanRightsPolicy.pdf In its human rights policy documents Chevron
expressed support to a number of other self-regulatory initiatives, including the Voluntary Principles on Security and Human Rights and the Extractives Industries Transparency
Initiative.
48
See LRQA’s assurance statement 5 April 2012 available at http://www.chevron.com/Documents/Pdf/ChevronAssuranceStatement.pdf
49
Total’s Code of Conduct is available at http://www.total.com/MEDIAS/MEDIAS_INFOS/5197/EN/Total-2011-code-of-conduct-EN.pdf
50
Total’s Ethical Business Guidelines are available at http://www.total.com/MEDIAS/MEDIAS_INFOS/1943/FR/Charte-ethique-TEP-Myanmar.pdf
51
Total’s socio-economic program is available at http://burma.total.com/myanmar-en/the-socio-economic-program-200151.html
52
Earth Rights International (“ERI”) at http://www.earthrights.org/publications; The Shwe Gas Movement (“SGM”) at http://www.shwe.org/category/sgm-report/; Arakan Rivers
Network (“ARN”) at http://www.arakanrivers.net/?page_id=32
53
ALTSEAN Burma, ‘Forced Labor in Burma: Time For Action’, 2006 available at http://www.altsean.org/Reports/ForcedLabor.php.
54
Collaborative Learning Projects CDA, ‘Report of Sixth CEP Visit to the Yadana Pipeline’, field visit 28 March - 8 April 2011, available at
http://www.cdacollaborative.org/media/52703/Total-Myanmar-Yadana-Gas-Transportation-Project-Visit-VI.pdf
8
responsible investment in Myanmar’s extractive industry. 55 Indeed, the ambiguous nature of the
methodologies used in these impact assessments allow for some critical comments regarding the current
state of play in human rights due diligence. During its six visits to Myanmar CDA held interviews with
people living in the pipeline corridor. It is argued that the sole reliance on open interviews in a closed
society not only undermined the credibility of CDA’s assessments but also compromised the security of
the local people.56 CDA did not adequately take into account the fact that in countries with repressive
state authorities, local communities often are reluctant to discuss their real concerns, as they might fear
reprisals by the regime. Moreover, interviews were not conducted in the local language. By relying on
Total’s personnel for transportation and translation the necessary trust between the fact-finder and the
community could not be established. Other methodological flaws concerned the relatively brief length of
the visits to the pipeline area and CDA’s failure to measure the project’s impact outside the narrowly
defined pipeline area.57 There thus exists a clear need for better quality control of the methodologies used
in human rights due diligence assessments. The assistance of credible NGO’s, who understand the local
community’s needs and interests, may help to enhance the integrity of the information gathering on which
reliable assessments can be based.
The aforementioned practical shortcomings in the methodologies of human rights due diligence
prove to be evidence of a more fundamental flaw in the design of Ruggie’s responsibility to respect pillar.
Particularly, the critique concerns Ruggie’s focus on self-reporting processes. It is argued that a focus on
voluntary reporting processes allows corporate executives to avoid external accountability over their
human rights performance, by avoiding disclosure or falsifying the outcomes of the due diligence
process.58 The danger exists that human rights due diligence will become a ‘tick-box’ exercise, which is
unlikely to be sufficient in uncovering and remedying corporations’ (potential) human rights abuses. 59
While Ruggie elaborated upon the need to report to external stakeholders, he did so in weak and
ambiguous language. GP 21 states:
‘In order to account for how they address their human rights impacts, business enterprises should be prepared to
communicate this externally, particularly when concerns are raised by or on behalf of affected stakeholders.
Business enterprises whose operations or operating contexts pose risks of severe human rights impacts should
formally report on how they address them.
In all instances communications should:
(a) Be of a form and frequency that reflects an enterprise’s human rights impacts and that are accessible to its
intended audiences;
(b) Provide information that is sufficient to evaluate the adequacy of an enterprise’s response to the particular
human rights impact involved;
(c) In turn not pose risks to affected stakeholders, personnel or to legitimate requirements of commercial
60
confidentiality’.
Unclear then is what exactly constitutes a ‘severe human rights impact’ and at what point becomes
reporting mandatory?61 By leaving these questions up to corporate management to decide Ruggie allows
corporations to let self-interest prevail over social values. Ruggie is on thin ice when expecting that
corporations will voluntarily report on business operations or operating contexts that ‘pose risks of severe
human rights impacts’, as non-disclosure often provides competitive advantages. Rather an opposite trend
is visible. Extensive research on self-reporting systems, amongst others by Hess, shows that a focus on
process-oriented regulations tends to lead to corporations engaging in ‘symbolic compliance’ or ‘strategic
55
56
57
58
Earth Rights International, ‘Getting it Wrong’, 2009, p. 12-37.
Id., p. 12-37.
Id., p. 15.
C. Parker, ‘Meta-Regulation: Legal Accountability for Corporate Social Responsibility?’ in The New Corporate Accountability: Corporate Social Responsibility and the Law,
Doreen McBarnet ed., Cambridge University Press, 2007, chapter 8.
59
J. Harrison, ‘Establishing a meaningful human rights due diligence process for corporations: learning from experience of human rights impact assessment, Impact Assessment
and Project Appraisal, University of Warwick Research Archive Portal 2013, Volume 31/2, p. 107-117, at p. 115
60
Ruggie Guiding Principles Report 2011, GP 21.
61
N. Jägers, ‘The Missing Right To Know. A Critique of the UN Protect-Respect-Remedy Framework and the Guiding Principles’, in Notizie di Politeia 2012, XXVIII (106), p.
104.
9
disclosure’.62 There exists a growing consensus that corporations are most likely to disclose information
on social and environmental impacts when they encounter a crisis that threatens their legitimacy. 63 The
information reported voluntarily then often is designed to neutralize critique or dissent, by focusing
almost exclusively on the positive aspects of a corporation’s performance. 64 In that way the due diligence
process is misused as a form of impression management to repair lost legitimacy. Another tactic used by
corporations is to pretend compliance with human rights norms by providing an overload of incoherent
social impact reports. Too much information hampers stakeholders’ ability to verify the accuracy and
completeness of the information provided, and thus undermines the effectiveness of the due diligence
process.
A second weakness of the responsibility to respect pillar, closely related to the first, is Ruggie’s
overemphasis on risk management processes. This allows corporations to ‘managerialize’ legal liabilities.
By maintaining formal internal compliance systems, exemplified for instance by Chevron’s Operational
Excellence Management System (“OEMS”), 65 corporate actors can create an evidence-trail to avert
executive management responsibility and instead shift blame for human rights abuses onto individual
employees or local joint venture partners. 66 Moreover, Ruggie rewards corporations for managing
conflicts internally. For example, GP 21 under (c) provides several grounds, including requirements of
business confidentiality, that corporations can invoke as a reason not to disclose information. This
occurred in Myanmar’s extractive industry, where Chevron and Total invoked contractual obligations that
prohibited transparency, as a reason not to disclose information on revenues generated by the Yadana
Pipeline project.67 In that way, the process-oriented due diligence principle provides corporations with the
perfect ‘legal’ cover for keeping sensitive information out of the public eye and out of the courts.68
In sum, the main shortcomings of the responsibility to respect pillar revolve around Ruggie’s
underestimation of what is needed to push corporations beyond voluntary due diligence processes to
disclose information on substantive human rights performance. While due diligence processes hold the
promise of better positioning corporations to respond to human rights risks, Ruggie remains unclear about
how due diligence processes can create the necessary transparency and participation structures to coerce
corporations to act in line with society’s expectations. Therefore, the unfortunate conclusion has to be
made that, as currently standing, the human rights due diligence principle with its focus on voluntary
impact assessments and reporting schemes, will at best lead to highly divergent practice on the ground
and at worst to a series of counterproductive implementation strategies, merely designed for public
relations purposes.
3.3 Opportunities for operationalizing the responsibility to respect: transparency, participation and
independent monitoring
Despite the voluntary nature of the responsibility to respect pillar, failing to perform human rights due
diligence is not entirely without consequences. According to Ruggie, a failure to carry out due diligence
can subject corporations to ‘the courts of public opinion', comprising of employees, communities,
consumers, civil society as well as investors.69 The effective operationalization of the responsibility to
62
T.J. Melish & E. Meidinger, ‘Protect, Respect, Remedy and Participate: New Governance Lessons for the Ruggie Framework’, in The UN Guiding Principles on Business and
Human Rights – Foundations and Implementation, Martinus Nijhoff Publishers Leiden, Boston 2012, p. 311.
63
D. Hess, ‘Social Reporting and New Governance Regulation: the Prospects of Achieving Corporate Accountability through Transparency’, Business Ethics Quarterly 2007,
Vol. 17/3, p. 455
64
Hess 2007 (n 63), p. 456.
65
The OEMS is available at http://www.chevron.com/documents/pdf/OEMS_Overview.pdf
66
Parker & Howe 2012 (n 16), p. 295.
67
See Chevron and Total’s responses to a call by the international community to practice revenue transparency Myanmar. For example Total stated that it ‘would accept to
disclose individually, and not only collectively, amounts paid to Myanmar’s government, provided that such disclosure: is permitted by the relevant government; and would not
compromise the Group’s commercial position. Available at: http://www.earthrights.org/campaigns/call-total-chevron-and-pttep-practice-revenue-transparency-burma-myanmar.
68
Parker 2007 (n 58), p. 33.
69
Ruggie Framework Report 2008, ¶ 54
10
respect pillar thus largely relies on the social pressure that external stakeholders can put on corporations
to comply with voluntary responsibilities.70 Through diverse tactics, such as fact-finding, naming and
shaming, certification and grading systems, as well as participation in dispute settlement procedures,
stakeholders have been able to affect a corporation’s social license to operate. Nevertheless, for these
stakeholders to effectively monitor and review human rights performance, access to information about
corporate activity is essential. As the abovementioned case study on due diligence practices in Myanmar
demonstrated, voluntary assessment and reporting systems often only result in the symbolic uptake of
procedures, and thus fall short in ensuring that stakeholders will obtain the information necessary to press
for compliance with international human rights standards. What is needed, are additional standards that
can ensure that the methodologies and outcomes of the due diligence process are properly scrutinized and
reviewed.71 Therefore, this section will review different operationalization strategies that seek to open up
the due diligence process, with a particular focus on standards that improve the information position of
external stakeholders within the PRR Framework and GP’s.
Sullivan and Hachez identified the absence of clarity around the human rights expectations of
corporations as the main obstacle for effective operationalization of the PRR Framework and GP’s.72
These authors raised the argument that corporations are more likely to take human rights concerns into
account in corporate decision-making, where the expectations of corporations are clearly set out in a
normative checklist of substantive obligations. Such description of corporate human rights obligations in
substantive terms also provides the basis for improved stakeholder engagement, as it allows human rights
performance to be assessed and compared in a more structured and objective manner. However, the
appropriateness of this operationalization strategy can be called into question. The qualitative nature of
human rights performance assessments as well as the many differences between corporations in terms of
size, sector and operating context, make it challenging to reach consensus on any authoritative list of
objective performance indicators. Previous standard-setting efforts at the UN-level, including the
experience of the UN Draft Norms process, make clear that a list of substantive obligations for
corporations was the main polarizing factor in the corporate accountability debate. 73 Moreover, an
emphasis on compliance with standardized performance checklists does not settle the problem of
symbolic compliance. On the contrary, such top-down systems tend to overlook the ways in which global
norms are influenced by local values and conditions.74 Any regulatory system that imposes norms from
the top-down is likely to result in decontextualized or symbolic responses, unless complementary tools
are provided through which transparent, participatory and localized feedback can be ensured.
In other words, the international corporate accountability system must gradually change from a
regulatory approach relying on legal compliance with an authoritative set of rules generated and enforced
from the top-down, to a bottom-up system in which different types of actors have increasingly important
authoritative roles to play.75 The PRR Framework and GP’s are a first step in recognizing and promoting
this change. However, more comprehensive institutional changes are required, including additional
requirements that set out minimum standards for: 1) transparency and disclosure processes; 2)
participation of external stakeholders in corporate decision-making; 3) the creation of independent
monitoring and review mechanisms. Diehl and Ku referred in this regard to ‘extra-systematic adaptations
of the global operating system’, whereas Melish and Meidinger spoke of ‘new governance tools’ that can
function as a form of checks and balances on corporations’ economic and social interests.76
70
71
72
73
74
75
76
Jägers 2012 (n 61), p. 101.
Harrison 2013 (n 59), p. 112.
Sullivan & Hachez 2012 (n 32), p. 217-244
Mares 2012 (n 11), p. 29
Melish & Meidinger 2012 (n 62), p. 313
Id., p. 316.
C. Ku & P. F. Diehl, ‘Filling the Gaps: Extra-systemic Mechanisms for Addressing Imbalances Between the International Legal Operating System and the Normative System’,
Global Governance 2006, Vol. 12, p. 161-183. See also T.J. Melish & E. Meidinger, ‘Protect, Respect, Remedy and Participate: New Governance. Lessons for the Ruggie
Framework’, in The UN Guiding Principles on Business and Human Rights – Foundations and Implementation, Martinus Nijhoff Publishers Leiden, Boston 2012, p. 303-336
11
1. Transparency and disclosure processes
As a minimum, effective guidance on human rights due diligence should include transparency provisions.
Disclosure of information is necessary in order to be able to validate the legitimacy of corporate claims of
compliance with human rights standards. Or as Harrison puts it, ‘transparency of the due diligence
process is a sine qua non of its effectiveness’.77 Although Ruggie recognized a principle that deals with
the issue of ‘external communication’,78 it can be argued that his guidance does not go far enough in
enshrining the desired levels of transparency needed to ensure a trustworthy due diligence process. It is
clear that enhanced transparency and disclosure standards are needed to improve the information position
of external stakeholders.
First, it is important to re-phrase the responsibility to report more narrowly, as to include a
requirement for corporations to routinely disclose the full methodology and outcomes of their impact
assessment processes, regardless of what human rights risks they unveil. Moreover, any decision not to
disclose information must be properly motivated and as narrowly framed as possible.79 For human rights
due diligence to work, a series of events must occur, which has been referred to as the ‘action cycle’.80
The cycle begins with corporations undertaking a human rights impact assessment and disclosing
information on the outcomes of the process. Next, consumers, communities, governments, civil society
and other stakeholders must take in the information and then alter their engagement strategies with the
corporation based on the new information. For example, if human rights concerns were identified,
governments might want to suspend export licenses or subsidies and stakeholders in general might want
to urge the corporation to alter its operational policies. Once stakeholders have expressed their concerns,
the corporation must recognize these concerns and respond appropriately. A new round of disclosure
follows, in which the corporation demonstrates its behavioural changes, and then the process starts all
over again. It is clear that only through full disclosure of the methodologies and outcomes of the impact
assessment processes corporations will be able to benefit as top-performers under the PRR Framework.
Without comparable data it would be impossible for external stakeholders to distinguish top-performers
from the weaker ones, and to punish and reward the appropriate corporations. In that case, top-performers
will have low benefit-to-cost ratios of disclosing human rights information and it is unlikely that they will
push for improvement of the standards or will increase pressure on corporate laggards to follow their
lead. 81 The problem is, if top-performers have relatively low benefit-to-cost ratios of associating
themselves with a self-regulatory program, for example because other corporations undertaking
superficial impact assessments will receive equal reputational enhancement, then the success of that
program will be limited. Conversely, if a free rider effect can be prevented there will be a group of
corporations that will benefit from the disclosure, and due diligence processes will likely improve over
time.
Nevertheless, strengthening the responsibility to report is only one part of the equation. It is
equally important to empower affected communities and stakeholders through a right to independently
obtain information.82 As Jägers aptly noted, ‘Ruggie’s approach currently fails to understand that ensuring
better compliance with international human rights standards is not necessarily achieved by the assurance
of having due diligence processes in place, but rather by providing stakeholders with actual power
through information’.83 Formal recognition of a right to obtain information in the PRR Framework and
GP’s is important, as it enhances a community’s social leveraging tools to interact with powerful
corporations. More specifically, it would validate civil society requests to access information about
impact assessments and internal performance tracking systems, and thus would open doors that otherwise
77
78
79
80
81
82
83
Harrison 2013 (n 59), p. 112.
Ruggie Guiding Principles Report 2011, GP 21
Harrison 2013 (n 59), p. 112.
Hess 2007 (n 63), p. 460.
Id., p. 466.
Jägers 2012 (n 61), p. 107
Id., p. 107
12
would remain closed. Community members must no longer be perceived as mere ‘objects’ of potential
abuse, but must be empowered with a right to actively demand engagement with corporations, and thus
become the ‘subjects’ of impact assessments.84 The right to access to information has a clear foundational
basis in international human rights law. It is derived from the fundamental freedom ‘to seek, receive and
impart on ideas of all kinds’, as established in article 19 UDHR and article 19 ICCPR. Although this right
in principle only guarantees access to state-held information, developments can be detected that broaden
the scope of access to information legislation, as to include access to privately held information. 85 For
example, the General Comment on Article 19 ICCPR recognizes that the right to information may be
extended to private entities carrying out public services.86 In other words, in some occasions the nature of
the services rendered appears more important than the nature of the entity providing the service.87 Given
its significance for effective performance monitoring and it’s strong foundational basis in international
human rights law, it is all the more disappointing that Ruggie did not more expressly recognized the right
to independently obtain information in the PRR Framework and GP’s.
2. Participation of external stakeholders
Although Ruggie spend a considerable amount of time consulting with NGO’s and industry think-tanks,
and observed their rising role in the global public domain, it could be argued that Ruggie could have done
more to institutionalize the crucial role of civil society actors, as catalysts of social change. According to
GP 18, the due diligence process should involve ‘meaningful consultation with affected groups and other
relevant stakeholders’. These actors often are in the best position to inform corporate management about a
corporation’s real impacts on society. While Ruggie thus recognized the benefits of stakeholder
engagement and consultation, commenters have argued that ‘such participation is neither required nor can
it be asserted by civil society groups as a right conferred under the PRR Framework’. 88 Ruggie failed to
further specify what constitutes ‘meaningful consultation’. As currently worded, the PRR Framework and
GP’s leave a lot of leeway for corporations to decide how, when and with whom they want to engage.
Similar to the right to information discussed above, the right of affected communities and civil
society actors to participate in decision-making processes has a clear basis in international human rights
law. The right to participate is laid down in article 21 of Universal Declaration of Human Rights and has
been primarily developed in the context of large infrastructural projects. Participatory rights are known
under the principle of Free, Prior and Informed Consent (“FPIC”). The FPIC principle ensures that
‘communities have a right to give or withhold their consent to proposed projects that may affect the lands
they customarily own, occupy or otherwise use’.89 In several landmark cases, treaty bodies and regional
human rights courts recognized that states are not allowed to move forward with granting concessions and
operating licenses, unless an independent body is set up that can conduct social impact assessments and
can guarantee meaningful participation for the affected people.90
The importance of the inclusion of participatory rights in the PRR Framework and GP’s is clear.
Such formal recognition is needed because it will provide civil society stakeholders leverage to demand
real change from corporations and allows them to seek mutually agreeable solutions. Due diligence
processes that garner a lot of civil society feedback are more likely to deliver fitting and effective
solutions, whereas at the same time these processes will be perceived as more democratic and legitimate
by local end users.91 In other words, civil society actors have an important role to play in the verification
of due diligence processes. They can act as third party intermediaries by interpreting the information
84
85
86
87
88
89
90
Melish & Meidinger 2012 (n 62), p. 332.
Jägers 2012 (n 61), p. 108-111.
Human Rights Committee (12 September 2011), General Comment 34 on Article 19: Freedoms of opinion and expression, UN Doc. CCPR/C/GC/34, at ¶ 7.
Jägers 2012 (n 61), p. 109.
Melish & Meidinger 2012 (n 62), p. 331,
Forest Peoples Program, available at http://www.forestpeoples.org/guiding-principles/free-prior-and-informed-consent-fpic
Inter-American Court of Human Rights 28 November 2007, Series C No. 172, (Saramaka People v. Suriname). See also, African Commission on Human and Peoples’ Rights
25 November 2009, 276/03, (Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya).
91
Melish & Meidinger 2012 (n 62), p. 318. See also T. Tyler, Why People Obey the Law, Yale University Press, New Haven 1990.
13
provided by corporations and pass it on to local end users in an easily understandable format that can
direct further action.92 While Ruggie recognized the value of an independent verification process, noting
that ‘it can strengthen the content and credibility of the due diligence process’,93 no obligation was created
for corporations to engage with civil society. At present, the existing patchwork of civil society-based
monitoring initiatives has not yet grown into an independent and effective system for the verification of
human rights impact assessments. In this light, it is unfortunate that Ruggie failed to expressly recognize
the participatory rights of civil society stakeholders in the PRR Framework and GP’s, as such official
recognition could have generated momentum for the harmonization of civil society efforts. By focusing
solely on the duties of corporations and states, Ruggie missed an important opportunity to institutionalize
the role of civil society actors and provide them with additional resources necessary to effectively
organize and legitimize themselves as a monitoring entity.
3. Independent monitoring and review mechanisms
A third element essential for an effective due diligence process is an overall monitoring and review
mechanism at the international level. In this regard, Ruggie proposed that an international Working Group
on Business and Human Rights should follow-up his mandate at the UN level. Ruggie recommended that
the follow-up activity at the very least should include the following functions:
- Embedding the PRR Framework and GP’s, through capacity-building efforts, funding of additional
research, and an annual stock-taking or review cycle in which challenges in the implementation of the GP’s
will be reflected upon.
- Clarification of certain legal standards, including uncertainties regarding the applicability of international
criminal law standards to corporations.94
However, the Human Rights Council settled for a follow-up mandate that is rather minimal, focusing
merely on the promotion and dissemination of the GP’s, rather than on the clarification and hands-on
guidance for further operationalization of the due diligence principle. Civil society organizations argued
that the UN Working Group’s mandate in its current form would endorse the status quo. That is a
regulatory system that encourages corporations to respect human rights, but does not oblige them to do
so.95 NGO’s expressed disappointment about the absence of an independent body that can scrutinize and
review how corporations perform in undertaking human rights due diligence.96
One of the key strengths of the PRR Framework and GP’s is that they are for anyone to claim and
for everyone to apply. Any civil society organization may give it a shot to formulate or interpret an
operationalization strategy, which if adopted by others will make its own authority. The crux of such truly
bottom-up creation of accountability standards is that the civil society stakeholders are required to take
ownership of the GP’s, free from any guidance infrastructure or managerial apparatus.97 That is where the
Working Group in its current form could be of added value, not by forming views and providing
authoritative interpretations, but by providing a platform where civil society can meet, exchange good
practices and reflect upon strategies to integrate the three-pillar strategy in the global public domain. Put
differently, the Working Group mechanism is meant to allow the experimental learning system to run
smoothly and to ensure that standards of performance will improve over time. However, this is exactly
where the Working Group currently falls short. Over the past three years progress in implementing the
GP’s has been slow. As a result, there is a growing frustration among activists, who argue that despite the
unanimous consensus reached about the GP’s, little has been done to develop effective implementation
92
93
94
95
96
Hess 2007 (n 63), p. 462.
Ruggie Guiding Principles Report 2011, GP 21
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect, ‘Recommendations On Follow-Up to the Mandate’, February 2011.
Human Rights Watch, ‘UN Human Rights Council: Weak Stance on Business Standards’, 2011.
International Federation for Human Rights (FIDH), ‘UN Human Rights Council adopts Guiding Principles on business conduct, yet victims still waiting for effective remedies’,
2011.
97
L. Catá Backer, ‘On the U.N. Working Group Report to the U.N. General Assembly on the Issue of Business and Human Rights A/67/285’, 10 October 2012, available at
http://lcbackerblog.blogspot.nl/2012/10/on-un-working-group-report-to-un.html
14
strategies and integrate the GP’s into national legal orders and corporate practice. 98 Part of the lack of
progress can be attributed to lack of awareness, due to the absence of an adequate machinery within the
Working Group and Human Rights Council to demand updates on corporate and state efforts in
implementing the GP’s. For example, states are currently not obliged to report on any activities with
respect to developing business and human rights-related laws and national action plans. A more stringent
approach to monitoring and review is needed to give a signal to states and corporations that mere
endorsement of the PRR Framework and GP’s is not enough. To truly move the business and human
rights debate to the next level and make an impact on the lives of those people affected by corporate
activities, action is needed at the domestic and corporate levels.
In sum, without high standards of transparency, participation and independent monitoring, it will
be difficult to develop a shared normative understanding of what the human rights due diligence process
should entail, and the danger exists that the PRR Framework and GP’s will lose their status as
authoritative reference points for all action on business and human rights.
3.4 Conclusion
Returning to Myanmar’s extractive industry the following observations can be made. The case study
suggests that although Chevron and Total achieved a high level of policy convergence, for instance
through formal CSR reporting, they have generally done so with minimal feedback from key affected
communities and limited oversight by civil society actors. Through the assessment of their socioeconomic programs, a first step was made to become aware of their impacts in Myanmar.
Notwithstanding these positive developments, the overall impact of corporate human rights due diligence
processes in Myanmar is rather limited. Chevron and Total are allowed to claim that they are undertaking
human rights due diligence even though there are limited documents available about the methodologies
and outcomes of the process. At present, none of the corporations active in Myanmar routinely makes
available reports on human rights performance as a stand-alone matter, nor are stakeholders provided with
additional resources to genuinely review and validate corporate human rights performance. In the absence
of any additional guidance to make the human rights due diligence process more open, corporations active
in Myanmar are likely to continue implementing the due diligence principle in a half-heartened way and
will be able to get away with misleading claims of compliance with the PRR Framework and GP’s. To
address these concerns this chapter considered a number of alterations to the PRR Framework and GP’s,
including minimum standards for transparency, participation and independent monitoring.
Human rights due diligence practices in Myanmar would gain legitimacy if the corporations
involved would transparently report about the human rights dilemmas and challenges they encounter and
would conscientiously describe the methodologies used in their impact assessments, internal tracking
systems, hotline reports, field visits and other stakeholder engagement mechanisms. In the end the
ultimate test is not whether a corporation can prove the legitimacy of its due diligence processes through
formal, internal oversight procedures, but whether the intended beneficiaries of the process trust the
information provided by corporations. Corporations need to be able to demonstrate that they are
meaningfully thinking ‘critically, creatively, and continually’ about their human rights performance and
how to improve it.99 Understanding what engenders trust, and building that trust, through meaningful
dialogue with affected communities and civil society actors, is important for the perceived legitimacy of a
corporation’s due diligence process. A right to participate in corporate decision-making processes allows
external stakeholders to hold corporations to their voluntary commitments, judge on whether their
responsibilities have been fulfilled, and impose ‘social sanctions’ if the responsibilities have not been met.
Put differently, active engagement and meaningful consultation with affected communities and civil
98
M. Taylor, ‘A Business and Human Rights Treaty? Why Activists Should be Worried’, 14 June 2014, available at http://www.ihrb.org/commentary/board/business-and-human-
rights-treaty-why-activists-should-be-worried.html
99
Hess 2007 (n 63), at p. 470.
15
society actors further validates corporations’ due diligence processes, and thus legitimizes claims of
constructive corporate engagement in Myanmar.
By reviewing the standards needed to effectively operationalize the due diligence principle, this
chapter mainly focused on improving the effectiveness of the corporate responsibility to respect pillar.
However, one of the major strengths of the PRR Framework and GP’s is that each pillar does not operate
in a vacuum. This means that where corporations failed, either unwilling or unable to establish and
implement an effective due diligence process, state-based regulations should play a complementary role.
As will be discussed in the next chapter, several rationales exist for why both host and home states should
have roles to play in establishing a responsible and transparent foreign trade environment.
4
The duty to protect pillar
4.1 A duty to monitor, regulate and adjudicate
Over the past few decades the concept of the state’s duty to protect has evolved from a theoretical idea to
a more pragmatic one. The concept has been elaborated upon in ICJ case law, UN treaty body
commentaries,100 and the case law of regional human rights courts.101 The duty to protect is an obligation
of means. Meaning that states are not directly responsible for human rights violations committed by third
subjects, but merely are required to demonstrate that each and every effort was taken to prevent and
punish third party abuse. Case law suggests that the duty to protect imposes certain minimum
requirements to the level of affirmative behaviour expected of states. These include: a duty to monitor
third party compliance with international human rights norms;102 a duty to adopt national legislation that
regulates third party behaviour; 103 a duty to introduce timely administrative or policy measures that
reduce the impacts of harmful activities,104 and the duty to setup an effective system of adjudication that
provides remedies to victims of these adverse impacts. In order to determine whether the duty to protect
has been fulfilled, international courts have often applied a classic proportionality test, evaluating the
necessity and reasonableness of the measures taken by the state.105 However, the fact that the duty to
protect has been mostly evolved by way of court judgments and treaty body interpretations had the effect
that the development of the minimum requirements has always been a bit unsystematic and dependent
upon the circumstances in the cases at hand. Against this backdrop, it was Ruggie’s task to outline and
100
Human Rights Committee (29 March 2004), General Comment No. 31 on the nature of the General Legal Obligation on States Parties to the Covenant, UN Doc.
CCPR/C/21/Rev.1/Add.13, at ¶ 8. Human Rights Committee’s (“HRCtee”) recognizes the duty to protect. It states that, ‘the positive obligations on state parties to ensure the
covenant’s rights will only be fully discharged if individuals are protected by the state, not just against violations of rights by its agents, but also against harms caused by private
100
persons or entities’.
101
The Inter-American Court of Human Rights ("IACHR") summarized the nature of the positive duties that states have under the American Convention on Human Rights in its
famous Velasquez Rodriguez case. There, the Court stated: ‘An illegal act which violates human rights and which is initially not directly imputable to a state (for example, because
it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the state, not because of the act itself, but
because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention. Velasquez-Rodriguez v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C)
No. 4 (1988), at ¶ 172.
102
For example in the context of extractive industries it has been recommended that independent monitoring bodies are set up to conduct environmental and social impact
assessments before any operating licenses are issued. See CERD Committee concluding observations, Suriname, UN Doc. CERD/C/64/CO/9, 28 April 2004, at ¶ 15.
103
Generally discretion is afforded to states as to the content and form of the legislation. The minimum legislative requirements often become clearer when perceived through the
looking glass of a single human right. For example, the duty to protect the right to life implies that states must ensure that acts amounting to serious human rights violations, such
as arbitrary killings, forced disappearances and torture are effectively incorporated in national criminal codes. This duty may be violated where national laws allow security forces
presumptions of self-defence where they kill on duty. See Human Rights Committee (31 March 1982), Pedro Pablo Camargo v. Colombia, Communication No. 45/1979 1985.
104
Administrative measures may be necessary to protect individuals and local communities against potential adverse impacts in the course of large infrastructure or extractive
industry projects. CERD Committee underlined that, ‘development objectives are no justification for encroachments on human rights, and that along with the right to exploit
natural resources there are specific, concomitant obligations towards the local population’. Administrative measures in this regard may include social and environmental impact
assessments and providing a mechanism through which affected communities can participate in the decision-making process related to these projects. CERD Committee
concluding observations, Suriname, UN Doc. CERD/C/64/CO/9, 28 April 2004, at ¶ 15.
105
V.P. Tzevelekos, ‘In Search of Alternative Solutions: Can the State of Origin be Held Internationally Responsible for Investors’ Human Rights Abuses that are Not
Attributable to it?’, Brooklyn Journal of International Law 2010, Vol. 35, p. 202-203.
16
explain in more detail how the duty to protect principle finds an application in the particular field of
business and human rights.
The foundation of the state’s duty to protect against corporate abuses is laid down in GP 1, which
re-affirms that states are required to take steps to prevent, investigate, punish and redress corporate human
rights abuses, through effective policies, legislation, regulations and adjudication.106 However, it can be
argued that the PRR Framework and GP’s were supposed to go beyond the requirements already
formulated by treaty bodies. In this regard, the PRR Framework and GP’s are disappointing because
Ruggie framed the additional policy requirements mainly as ‘soft duties’. The GP’s 3-10 suggest rather
than oblige, that states should focus on a number of priority domains when carrying out their duty to
protect. 107 Moreover, Ruggie’s frequent use of the word ‘encourage’, and phrases such as ‘where
appropriate’ and ‘have roles to play’, undermines the bedrock role of states in international law.108 More
specifically, Ruggie underestimates the critical role that states can and should play in opening up the
human rights due diligence process by mandating specific disclosures about corporate activities in fragile
states. As will be discussed next, these limitations come particularly to the fore with respect to Ruggie’s
considerations about extraterritorial responsibilities of home states.
4.2 The limitations of the duty to protect: limited guidance on extraterritoriality
In 2013, the UN Special Rapporteur on the human rights situation in Myanmar highlighted that ‘now is
the time to put in place a human rights based approach to development to ensure that the flow of
investment and the opening of businesses is directed towards the realization of human rights for the
people of Myanmar’.109 A human rights based approach to development requires conformity with the duty
to protect principle, both by Myanmar and the group of industrialized nations that are home to the
corporations investing in Myanmar.
As a fragile state, it is clear that Myanmar never had a good record with regard to human rights
treaty ratification and implementation. The country has only ratified a handful of human rights treaties.110
The legal document that formally underpins fundamental rights in Myanmar is the 2008 constitution.
However, the framing of the substantive rights and freedoms under Myanmar’s constitution clearly
contravenes the protection objective of international human rights norms, as it leaves ample space for
state authorities to impose wide limitations on the recognized rights. 111 Albeit very minimalist,
Myanmar’s laws provide an avenue for corporate liability. Any corporation operating in Myanmar,
including foreign corporations approved under the Foreign Investment Law 2012, may be subject to civil
liability or administrative penalties for infringements of the Companies Act 1913, the Commercial Tax
Law 1990 and the Myanmar Citizens investment Law 1994. Nevertheless, the lack of an effective
institutional framework, which operates in accordance with democratic standards, makes the protection
provided by these laws count for naught. When commenting on the possibility of applying Myanmar’s
106
107
Ruggie Guiding Principles Report 2011, GP 1.
States should safeguard their own ability to meet their human rights obligations, amongst others by adopting and enforcing laws aimed at fostering a corporate human rights
culture (GP 3). Secondly, in situations where there exists a substantial state-business nexus, meaning where a corporation is owned, controlled or substantially supported by a state,
or where the state is conducting commercial transactions with a corporation, the GP’s suggest that states take additional precautionary measures, and where appropriate require
human rights due diligence by state agencies themselves (GP 4-6). Thirdly, in the context of corporations operating in conflict-affected areas, the GP’s note that home states have
roles to play in assisting both corporations and host states to ensure that corporations are not involved with human rights abuses abroad (GP 7). Lastly, the GP’s suggests that states
must strive to achieve policy coherence between different government departments and agencies, both when drafting trade policies and agreements, and when acting as members of
multilateral institutions that deal with business-related issues (GP 8-10).
108
N. Jägers, ‘UN Guiding Principles on Business and Human Rights: Making Headway towards Real Corporate Accountability?’, Netherlands Quarterly of Human Rights 2011,
Vol. 29/2, p. 159–163.
109
UN Special Rapporteur on the Human Rights Situation in Myanmar, Report to the Human Rights Council, 6 March 2013, A/HRC/22/58, at ¶ 34.
110
Myanmar ratified the following core human rights treaties: UDHR, CEDAW, CRC and the International Labor Organization’s Forced Labor Convention. However, the rights
of Myanmar’s citizens are not (yet) protected under important human rights treaties such as the ICCPR, ICESCR, CAT, ICERD, the Rome Statute or even the 1926 Slavery
Convention.
111
International Bar Association’s Human Rights Institute (IBAHRI), ‘The Rule Of Law in Myanmar: Challenges and Prospects’, December 2012
17
laws in the Doe v. Unocal case, US State Superior Court Judge Victoria Gerard Chaney, noted that since
1988 ‘there has not been effective rule of law’ in Myanmar and it is 'questionable whether Myanmar has a
functioning judiciary actively interpreting statutes and establishing decisional law’. 112 The question
whether Myanmar has started to begin to adhere to the globally prevalent understandings of the duty
protect must be answered sceptically. Myanmar’s legal framework remains underdeveloped and does not
provide for a just and reliable business climate that allows for large international investments in the
country.113
Given the limited capacity and/or willingness of Myanmar’s authorities to protect its citizens
against the negative influences of globalization, the country represents an important opportunity to
examine the strengths and weaknesses of Ruggie’s guidance on extraterritoriality. While there are obvious
reasons for why host states should exercise control over corporations investing in their territory, there
exist equally valid reasons for why other states should assert jurisdiction when their interest in the matter
is less straightforward.114 Homes states often have greater capacity to realize changes in the protection of
human rights than host states. Furthermore, it is clear that home states are by no means neutral actors in
international investments, as they may benefit from the investments of their corporations, for example
through increased tax revenues.115 It would create a double standard if home states would regulate certain
corporate activities if taken place on their own territory, but would close their eyes in the face of abuses
linked to corporate activities abroad. This is contradictory to the erga omnes nature of human rights, as
objective values that the whole international community is committed to safeguarding.
The concept of extraterritoriality was first introduced in international criminal law, where it was
used to validate states’ adjudicative powers to seek liability for the most egregious international crimes
committed outside their territory and crimes with transnational effects. 116 More recently, home states’
prescriptive powers also gained recognition as a tool to re-balance the ethics of globalization. Albeit
rather reserved, Ruggie recognized the emerging possibilities for the expansion of extraterritorial
regulations. At the foundational level of the duty to protect pillar, Ruggie distinguished between different
levels of responsibility for host and home states. While GP 1 places a strong obligation upon host states to
prevent and adjudicate corporate abuses, the language with respect to the role of home states in GP 2 is
much weaker. GP 2 merely speaks of a soft duty for home states ‘to set out clearly the expectation that
corporations respect human rights abroad’. Ruggie carefully studied the international case law on
extraterritoriality and found that at present, the duty to protect principle does not uniformly incorporate an
obligation upon home states to exercise extraterritorial control over corporate activities abroad.117 Rather
than a legal obligation, the commentary to GP 2 recognizes ‘strong policy reasons’ to regulate
extraterritorially. 118 Operational principles 3-10 identify some situations in which Ruggie deems it
appropriate for home states to take action. For example, this is the case when state agencies provide
support and services to corporations, such as export credits, investment insurances or development
112
113
Superior Court of California, Doe v. Unocal, 30 July 2003, No. BC 237980, slip op. at 8.
See speech of Aung San Suu Kyi held at the Annual Meeting 2012 of the World Economic Forum, available at http://www.weforum.org/videos/aung-san-suu-kyi-annual-
meeting-2012
114
Tzevelekos 2010 (n 103), p. 167. The concept of extraterritoriality is considered to describe situations in which states lack a territorial link, but may nonetheless undertake
action, for example on the basis of the universality or active personality principles.
115
Id., p. 207.
116
C. Bassiouni, ‘Crimes against Humanity : The need for a specialized Convention’, Columbia Journal of Transnational Law 1994, p. 480-481. In theory any state has the
possibility to exercise universal jurisdiction in situations where corporations are involved in particularly heinous crimes that have gained the status of jus cogens norms. Particular
acts, that may constitute war crimes, crimes against humanity or genocide, can affect the interests of the international community as a whole. The jus cogens character of these
prohibitions is generally considered to imply an obligation to contribute to their universal repression, which at a minimum requires that a state should not be allowed to lend refuge
on its territory to a person who cannot be extradited or for whom no extradition request has been made.
117
Special Representative to the Secretary General on Business and Human Rights, ‘Business and Human Rights: Further steps toward the operationalization of the Protect,
Respect and Remedy Framework’, 2010 U.N. Doc A/HRC/14/27 at ¶ 46-50 (hereinafter “2010 Ruggie Operationalization Report”).
118
Ruggie Guiding Principles Report 2011, GP 2.
18
finance subsidies.119 Also where there exist a heightened risk of human rights abuses by corporations
operating in conflict-affected areas, the duty to protect seems to shift to home states. The commentary to
GP 7 weakly notes that:
‘In conflict-affected areas, the host state may be unable to protect human rights adequately due to a lack of
effective control. Where transnational corporations are involved, their home states therefore have roles to play in
assisting both those corporations and host States to ensure that businesses are not involved with human rights
abuse’.
While Ruggie thus seems to suggest that the role of home states becomes more authoritative when the
nature of the operating contexts poses a significant risk to human rights, or when states have a close
relationship to a corporation, the GP’s fail to stipulate what exactly is expected from home states in those
situations. For instance, no minimum requirements are set that specify the scope of home states’
affirmative action with respect to mandatory reporting regulations. GP 3 merely notes that ‘states should
encourage, and where appropriate require corporations to communicate how they address their human
rights impacts’. In effect, Ruggie’s guidance leaves a lot of leeway to states to regulate corporations as
they see fit. This rather limited role of the home state is unfortunate, as it sends the wrong message to
affected communities that hardly anything can be expected from home states when it comes to demanding
more openness from corporations.120 Instead Ruggie recognized several arguments against the expansion
of extraterritorial control by home states. Corporations would likely resent it, as extended extraterritorial
regulation might deprive them from competitive advantages. Moreover, it is not unlikely that extended
extraterritorial control by home states will be considered an infringement of the sovereign rights of
developing countries, especially if such control would result in stricter environmental and social
standards, thus raising the cost of production and making host states less attractive for foreign
investors. 121 Against this background of likely state and corporate opposition, and in view of the
limitations of his mandate, Ruggie eventually chose to merely clarify that home states currently have an
option to regulate corporations extraterritorially, not a duty, and he recommended that home states should
exercise this possibility more often.122
4.3 Opportunities for operationalizing the duty to protect: extraterritorial reporting regulations in
Myanmar
Although Ruggie’s position on extraterritoriality is defensible, it must be noted that the international case
law on this point is not very consistent, nor yet fully crystallized. It could even be argued that Ruggie’s
guidance on extraterritoriality, to a certain extent, is a step backwards as it may actually weaken some
other promising standard setting exercises that broaden the extraterritorial scope of the duty to protect.123
The academic literature has mainly focused on the different wording of article 2 of the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”), as compared to the
International Covenant on Civil and Political Rights (“ICCPR”). Article 2 (1) ICESCR does not include a
territorial limitation and refers explicitly to international cooperation and assistance. Although the
preparatory history of the ICESCR does not show a clear intention of the drafters to impose specified
obligations upon home states, the commentaries by the ESCR Committee move in the direction of an
119
Id., at GP 4. Ruggie notes. ‘Where these agencies do not explicitly consider the actual and potential adverse impacts on human rights of beneficiary enterprises, they put
themselves at risks – in reputational, financial political and potentially legal terms – for supporting any such harm, and they may add to the human rights challenges faced by the
recipient state’.
120
Jägers 2012 (n 61), p. 105.
121
O. de Schutter, ‘Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations’ background paper OHCHR seminar,
2006, at p. 21.
122
Ruggie Guiding Principles Report 2011, GP 2. The commentary to GP 2 notes: ‘At present States are not generally required under international human rights law to regulate
the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized
jurisdictional basis’.
123
Jägers 2011 (n 106), p. 161.
19
extraterritorial interpretation of economic, social and cultural rights.124 The ESCR Committee held in a
number of General Comments related to the rights to health, food, water and social security that state
parties should protect these rights by taking steps to influence those within their jurisdiction to respect
human rights in other countries. 125 Apart from these comments by the ESCR Committee the
extraterritorial application of the ICESCR has been emphasized in declaratory governance frameworks.126
For example, the Maastricht Principles 2011, a document that draws extensively on the commentaries by
the ESCR Committee, holds that home states must assert regulatory jurisdiction when there exists a
reasonable link between the state and the corporation. The Maastricht Principles 2011 go beyond
Ruggie’s Guiding Principles in explaining when and how corporations can be linked to home states under
the active personality principle. Also in the legal literature there exists a strong tendency to insist on
extended extraterritorial control by home states, thereby aligning the scope of home states’
responsibilities to the degree of their effective power to control.127 De Schutter wrote in this regard that
‘there exists a growing recognition of the interdependency of states, which should lead to an extended
understanding of states’ extraterritorial duties’.128 Similarly, Sornarajah argued that ‘developed states owe
a duty of control to the international community, and do in fact have the means of legal control over the
conduct abroad of multinational corporations’.129 Problematic with all these declaratory frameworks and
doctrinal statements however is, that they seem to refer to the law as it ought to be (lex ferenda), not to
existing law as has been accepted in current state practice (lex lata). Instead of taking the bold step of
endorsing a broad interpretation of home state’s extraterritorial obligations, Ruggie merely interpreted the
developments in the legal doctrine as an encouragement to home states to use their leverage more often.
In effect, this means that changes with respect to the extraterritorial scope of human rights obligations
will have to come from changes in the practices of states, rather than from authoritative guidance of
Ruggie’s framework.130
One important domain in which states recently began experimenting with extraterritorial regulation
concerns mandatory transparency and reporting regulations. Knowing what governments receive from
extractive corporations is a first important step for communities to hold local government officials
responsible for the use of natural resources revenues and to advocate for a fair share of the benefits. To
understand if mandatory reporting regulations have the potential to open up due diligence processes, it
will be interesting to look at recent developments in US and EU transparency legislation.
The movement on mandatory reporting legislation gained momentum when the US Congress
passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in July 2010. Section 1504, also
known as the Energy Security Through Transparency provision (“ESTT”), requires oil, gas and mining
corporations listed with the Securities and Exchange Commission (“SEC”) to annually disclose
information on payments they make to any government.131 These payments include amongst others taxes,
124
See ESCR Committee, Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights, UN Doc. E/C.12/2011/1, 20
May 2011, at ¶ 5. The Committee notes ‘States Parties should also take steps to prevent human rights contraventions abroad by corporations which have their main seat under their
jurisdiction, without infringing the sovereignty or diminishing the obligations of the host States under the Covenant’.
125
See ESCR Committee General Comment No. 14, ¶ 39; General Comment No. 15, ¶ 33; General Comment No. 19, ¶ 54. For example with regards to the right to the highest
attainable standard of health the ESCR Committee commented that ‘states parties have to respect the enjoyment of the right to health in other countries, and prevent third parties
from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations
and applicable international law’.
126
See Maastricht Principles on Extra-Territorial Obligations in the Area of Economic, Social and Cultural Rights. The Maastricht Principles were adopted at an expert meeting
on 28 September 2011.
127
M. Langford and W. Vandenhole ed., Global justice, state duties: The extraterritorial scope of economic, social and cultural rights in international law, New York Cambridge
University Press 2013.
128
De Schutter 2006 (n 119), p. 20.
129
M. Sornarajah, The International Law on Foreign Investment, Cambridge University Press, 2nd ed. 2004, p. 169.
130
J.H. Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’, in The UN Guiding Principles on Business and Human Rights. Foundations and
Implementation, R. Mares ed., 2012 Leiden: Martinus Nijhoff Publishers, p. 51-84, at p. 83.
131
Dodd-Frank Wall Street Reform and Consumer Protection Act 2010. Available at http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf
20
royalties, license fees, production entitlements and bonuses. Even though the adoption of the Dodd-Frank
Act sparked the ‘publish what you pay’ debate, the implementation of the Act faced several obstacles.
The US oil lobby, through the American Petroleum Institute (“API”), successfully delayed the
implementation process by suing the SEC, claiming that errors were made in the formulation of the
operational rules.132 In July 2013, a D.C. District Court partially agreed with the concerns raised by the
API and sent the rule back to the SEC for revision. 133 While the SEC is not obliged to change its
operational rules, it must provide a fuller justification on two aspects of the rule: 1) the requirement that
all company payment reports be made public, and 2) the decision not to grant any exemptions for foreign
law prohibitions. It is clear that without a strong operational rule on the public disclosure of payment data
the purpose of the ESTT provision will be undermined, as in that case stakeholders will not be able to
benefit from the released information and accountability will be limited to oversight by the SEC. At this
point in time, almost four years after the US Congress passed the Dodd-Frank Act, the ESTT provision is
still under revision by the SEC. It thus remains to be seen whether the Dodd-Frank Act can live up to its
initial promise; to expose the beneficiaries of natural resource extraction.
Meanwhile, other jurisdictions have pushed the transparency movement forward by introducing
new mandatory reporting regulations. In June 2013, the EU adopted Directive 2013/34/EU amending the
EU Accounting and Transparency Directive and extending revenue disclosure rules to Europe.134 The EU
directive goes beyond the Dodd-Frank rules in some important ways. Chapter 10 of the Directive extends
public disclosure of payments to governments, or so-called country-by-country reporting, to non-listed
corporations; and unlike the US regulations also includes requirements for timber and forestry
corporations. Secondly, the directive requires corporations to disclose payments for each project, rather
than combining all payments to a country together. European countries are currently converting these
transparency requirements into national legislation. For example, it is expected that the UK will meet its
transposing obligation by the end of 2014, and the first reports thus should be prepared in respect of
financial years commencing on or after January 1th 2015.135 Another example of a country stepping up its
mandatory disclosure regulations is Canada. Following the recommendations made by Canada’s Resource
Revenue Transparency Working Group comprised of Mining Associations of Canada and Revenue Watch
NGO’s, the Canadian Prime Minister committed to developing mandatory payment reporting standards
for Canadian extractive companies quickly. 136 Canada is home to over 60% of the world’s mining
corporations and a third of the world’s oil and gas corporations, add this to the list of corporations that
will have to report under the EU transparency regime and the non-implementation of the US Dodd-Frank
Act will hardly be a game-changer. Hence, it will be difficult for the SEC to find good reasons to develop
a US transparency regime that demands less transparency than the European and Canadian systems.
At the same time, with respect to Myanmar-specific transparency regulations the US has been
able to maintain its leadership position. After amending its engagement strategy with Myanmar, from
sanctioned engagement to more open forms of engagement, the US Treasury and State Department
drafted a proposal outlining specific reporting requirements on investment in Myanmar.137 After a year of
consultations with various stakeholders the US Responsible Investment Reporting Requirements
(“Reporting Requirements”) went into effect in May 2013. The Reporting Requirements include
132
Earth Rights International, ‘American Petroleum Institute v. SEC: Revenue Transparency Litigation’, available at http://www.earthrights.org/legal/american-petroleum-
institute-v-sec-revenue-transparency-litigation; last visited on 12 June 2014,
133
US District Court for the District of Columbia, API v. SEC, 2 July 2013, Civil Action No. 12-1668 (JDB).
134
Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports
of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC,
Official Journal of the European Union 2013, L182/19.
135
UK Department for Business Innovation and Skills, ‘UK implementation of the EU Accounting Directive – Chapter 10: Extractive Industries reporting - Consultation’, March
2010, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/299454/bis-14-622-uk-implementation-of-the-eu-accounting-directive-chapter-10extractive-industries-reporting-consultation.pdf
136
Mining Weekly, ‘Harper announces transparency enhancements mining sector, 12 June 2013, available at http://www.miningweekly.com/article/harper-governmentannounces-transparency-enhancements-for-mining-sector-2013-06-12
137
US Department of State, ‘Burma Responsible Investment Reporting Requirements’, available at http://www.humanrights.gov/2012/07/11/burmaresponsibleinvestment/
21
unprecedented disclosure requirements for: 1) US corporations undertaking new investments pursuant to
an agreement that is entered into with MOGE; and 2) US corporations whose aggregate investment in
Myanmar exceeds $500.000. Corporations are required to report on human rights due diligence
procedures; environmental policies; anti-corruption; worker rights; arrangements with security providers;
property acquisitions; transparency in payments to the government and communications with Myanmar’s
military. 138 A failure to comply with the annual reporting requirements may result in the denial or
withdrawal of the export license or diplomatic support.
In general the US Reporting Requirements are highly welcomed by civil society actors and may
serve as a model for other governments to consider similar disclosure duties in their engagement
strategies with Myanmar. Nevertheless, several caveats can be identified. The main argument raised by
opponents of extensive reporting requirements is that the mandatory disclosures might put US
corporations at a competitive disadvantage. For that reason, the Reporting Requirements include a
provision that allows corporations to unilaterally declare information confidential and to withhold it from
public disclosure. This major loophole is only partially mitigated by a ‘comply or explain’ provision that
requires corporations to provide reasons for why certain information is withheld.139 In effect, this means
that under the US Reporting Requirements corporations will still be able to conceal information they
consider damaging. Furthermore, even though corporations failing to submit reports can be subjected to
civil and criminal penalties, the mechanisms set up to monitor and track compliance with the Reporting
Requirements remain underdeveloped. Currently, it is unclear whether the US Administration has
received all the reports it expected and what has been done to punish non-compliers.
Notwithstanding these challenges, the first round of company reporting took place in July 2013,
in which a number of oil and gas service providers released public reports about their operations in
Myanmar. 140 In some ways these reports are functioning exactly as intended, as they provide an
opportunity for US administrators and civil society groups to assess what policies corporations have in
place to prevent and mitigate harmful impacts in Myanmar. In other ways, the first round of reporting
demonstrates some of the inherent weaknesses of the US Reporting Requirements and the limitations of
public disclosures as a platform for human rights protection. Most disappointing has been the excuse used
by a number of US investment firms not to undertake due diligence with respect to their capital
investments in Myanmar, on the ground that they are mere ‘passive investors’.141 This reasoning clearly
contradicts international law, which makes no distinction between passive capital investors and more
hands-on business operations. Both the GP’s and the OECD Guidelines for Multinational Enterprises
clearly state that the responsibility to conduct due diligence is a global standard of expected conduct for
all corporations, wherever they operate, whatever their expertise is. Meanwhile Hercules Offshore, an oil
and gas drilling company, set a more promising example, and must be commended for the detailed report
about the due diligence measures it undertook before entering into a contract with a local Myanmar
business partner. 142 Nevertheless, some critical questions can be asked about whether searching
international newspapers to raise red flags about a potential business partner will construe an adequate
assessment methodology. Also the fact that the name of the local business partner was not disclosed limits
the value of the information provided by Hercules Offshore. Avoiding disclosure of the names of local
partners is particularly unacceptable, as public naming is an effective tool to prevent corruption. In this
respect, a lot can be learned from the more recent report submitted by the Coca Cola Company.143 The
Coke report is unique in the level of transparency it provides, both in terms of the successes and failures
138
139
Id., section 5 – 11.
Earth Rights International, ‘First Myanmar Investment Disclosures Present Opportunities and Challenges’, 10 July 2013, available at
http://www.earthrights.org/campaigns/first-myanmar-investment-disclosures-present-opportunities-and-challenges
140
Reports are available at http://burma.usembassy.gov/reporting-requirements.html
141
Human Rights Watch, ‘Burma: Joint Letter to President Obama on Reporting Requirements’, 12 August 2013, available at http://www.hrw.org/news/2013/08/12/burma-jointletter-president-obama-reporting-requirements
142
Hercules Offshore, ‘Report on Responsible Investment in Burma, 1 July 2013, available at http://burma.usembassy.gov/reporting-requirements.html
143
The Coca-Cola Company, ‘Responsible Investment in Myanmar’, 12 December 2013, available at http://burma.usembassy.gov/reporting-requirements.html
22
in responsible business conduct in Myanmar. Coke disclosed the name of its local partner and mentioned
all the steps it undertook to ensure that local partners comply with Coke’s anti-bribery and workplace
rights policies. To prevent corruption Coke established a local management-training program; set up a
Senior Management Committee to ensure action on Code of Business Conduct challenges; and appointed
a Local Ethics Officer to promote compliance with all regulations. Furthermore, Coke acknowledged that
some local practices fail to comply with the company’s polices on discrimination on the work floor.
Rather than concealing these negative impacts, the Coke report clearly outlined an action plan to mitigate
discrimination.
All in all, the prospects for improving due diligence practices in Myanmar through mandatory
transparency regulations are rather hopeful. The US Reporting Requirements are definitely a step in the
right direction to engender positive investment in Myanmar and provoke responsible behaviour by US
corporations, as well as Myanmar’s government-controlled agents. The advantage of a mandatory system
of disclosure over a system of voluntary reporting is that the costs of disclosure will likely decrease.144 It
will be easier for stakeholders to compare a corporation’s performance to the industry average, and thus
corporations will be able to benefit from performing above average. However, one important condition
must be fulfilled in order for a mandatory reporting to function properly. That is, the administrative body
responsible for overseeing the reports must ensure that all covered corporations are disclosing fully and in
a timely matter to prevent a free rider effect. For that reason, the US Administration is urged to step up its
efforts to monitor and enforce its extraterritorial transparency legislation.
4.4 Conclusion
This chapter started off with the question what roles home states should play in protecting human rights
against the negative forces of globalization. The analysis has been twofold. First, the focus was on
identifying the limitations of Ruggie’s guidance on operationalizing the duty to protect. Although the
PRR Framework and GP’s point out that states should realize that corporations do not always benefit
from state inaction, they do in no way force home states to exercise extraterritorial control over
corporations. It is clear that in balancing the interests of corporations and society, the PRR Framework
and GP’s grant a wide discretion to home states, as to deciding on the form, content and appropriateness
of the protective measures. While Ruggie’s reticence in applying extraterritorial duties to home states is in
line with the recognition that the boundaries of appropriate affirmative state behaviour may vary
according to the nature of the substantive norm at stake and the level of capacity of the state, it is at the
same time disappointing that Ruggie’s mandate was not used more vigorously to push the relatively
undefined state of law in this field in the direction of stronger obligations for home states.
Despite Ruggie’s lack of sensitivity to grapple the progressive developments in the law, state
practice nonetheless moved forward, showing a renewed willingness by home states to mandate
extraterritorial reporting regulations. The second part of this chapter focused on whether these new
transparency regulations have the potential to lead to more robust human rights due diligence practices in
Myanmar. Taking stock of the most recent developments in EU and US transparency regimes a number of
successes and shortcomings could be identified. One of the potential strengths of mandatory transparency
regimes is that reporting can be structured according to a fixed format, resulting in comparable data sets
that allow external stakeholders to engage with the worst performers and highlight the lessons-learned of
the top-performers. At the same time, it became clear that as currently standing, mandatory reporting
initiatives remain a rather weak compromise. The potential for mandatory transparency legislation to
work is limited by broad confidentially clauses and a lack of operational guidance and performance
tracking. Without additional operational standards of transparency, participation and independent
monitoring, it is not likely that mandatory transparency regimes will perform much better than their
voluntary counterparts. Therefore, when developing and implementing new mandatory transparency
regimes, governments are urged to take into account the standards set out in chapter 3, which represent a
144
Hess 2007 (n 63), p. 462.
23
minimum core that must be followed in order for reporting regulations to be an effective tool for the
operationalization of the PRR Framework and GP’s.
5 The remedy pillar
5.1 Understanding the remedy pillar
Access to effective remedy, the PRR Framework’s third pillar, is an important component of both the
state duty to protect and the corporate responsibility to respect. Whereas pillar 1 and 2 focus on
preventative measures, the third pillar outlines various remedies necessary for when states and
corporations fail in their attempts to prevent adverse human rights impacts. In other words, remedies
become relevant after a human rights abuse occurred. The importance of the remedy pillar is clear.
Without access to legal remedies, accountability for corporate abuses would be primarily left to
corporations’ goodwill, which as noted before has had limited impact to date.
Interestingly, the word remedy has a double meaning in international law.145 On the one hand
remedies have a substantive meaning, referring to the outcome of the remedy process. According to the
ILC’s Draft Articles on State Responsibility, the purpose of remediation in international law is to put
victims back in, or as close to, the position they would have been in had the wrongful act not occurred.146
The same principle applies in a business and human rights context. GP 25 affirms that there must exist a
link between the harms occurred and the duty to counteract or make good the wrongful conduct. This may
entail different forms of reparation, including apologies, restitution, financial compensation, and
guarantees of non-repetition, or a combination of these forms. At the same time, it is clear that the
outcome of the remediation process is strongly influenced by the type of remedy mechanism and level at
which remediation is sought. This refers to the procedural element of remedies, and concerns issues of
access to remedy mechanisms. The PRR Framework and GP’s recognize different types of remedy
mechanisms and make a distinction between “state-based” and “non-state-based” mechanisms, whereas a
further division is made into “judicial” and “non- judicial” mechanisms.147
Due to the presumed neutrality of courts, judicial mechanisms are often considered the most
appropriate avenue for assessing fault on the side of the corporation. However, Ruggie acknowledged that
‘judicial mechanisms are not always required, nor are they always the favoured approach of all
claimants’.148 The strength of non-judicial mechanisms lies in the creation of a platform for dialogue
between the corporation and the aggrieved parties, establishing mutual trust and potentially providing
compensation or satisfaction for the harm that has been caused.
1. Corporate-level grievance mechanisms
As part of the responsibility to respect, Ruggie encouraged corporations to include corporate-level
grievance mechanisms in their overall social engagement strategies. GP 22 notes: ‘where corporations
through due diligence processes identify that they have caused or contributed to adverse impacts, they
should provide for, or cooperate in their remediation through legitimate processes’.149 A corporate-level
grievance mechanism is a formalized means through which corporations can directly engage with
individuals or communities affected by their business activities. Examples include workplace complaints
mechanisms, anonymous hotline services, a community education program, or cooperation with
traditional (tribal) access points run by local communities. These mechanisms may be administered by
corporations alone, or in collaboration with other relevant stakeholders.150 In this way, corporate-level
145
146
147
148
149
150
A.C. Buyse, Post-conflict housing restitution: the European human rights perspective with a case study on Bosnia and Herzegovina, Antwerpen: Intersentia 2008, at p. 113.
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10) at Article 31.
Ruggie Guiding Principles Report 2011, GP 26-30.
Id., GP 27.
Id., GP 22.
Id., GP 29.
24
grievance mechanisms can function as early warning systems that may facilitate the identification of
adverse impacts, thereby preventing harms from compounding and grievances from escalating. More
importantly, however, is that corporate-level grievance mechanisms should enable corporations to make
amends for their adverse impacts. A first step in the remediation process is the official recognition of the
harm caused by the corporation and the guarantee of non-repetition. Secondly, depending on the
circumstances at hand further action is needed to amend corporate policies or to make good harmful
impacts through the introduction of compensation schemes for affected communities.
One of the main advantages of corporate-level grievance mechanisms, as proposed by Ruggie, is
that these mechanisms often operate in the proximity of those whose grievances they are designed to
address. 151 It is typically easier for corporations to make affected communities aware of these
mechanisms, than to refer victims to remote mechanisms run by state agencies or international
organizations. On the downside however, corporate-level grievance mechanisms may face particular
challenges given that corporations themselves are closely involved in their design and administration. 152
This makes corporate-level grievance mechanisms vulnerable to critiques of being biased or illegitimate
sources of remedy in similar ways that voluntary due diligence reports are criticized for being mere
impression management tools. While Ruggie aimed to counterbalance the inherent shortcomings of
voluntary grievance mechanisms by providing a list of eight effectiveness criteria, 153 his guidance has
limited impact, as corporations themselves are allowed to assess whether these criteria have been met. As
Parker & Howe aptly pointed out, the remedy pillar underestimates the need for corporate engagement
processes to be designed and implemented in such a way that corporations open themselves up to the
critique of outsiders.154 Ruggie’s language used to describe corporate-level grievance mechanisms, as a
means for corporations to avoid costly ‘litigation processes’ and ‘public campaigns’,155 undermines the
legitimacy of these mechanisms, and thus directly contravenes one of Ruggie’s own effectiveness criteria.
Moreover, the risk exists that corporations will use corporate-level grievance mechanisms to individualize
and decontextualize critiques, which is understandable from the perspective of reducing the costs of
implementing corporate-level grievance mechanism, but will hamper the corporation’s ability to deal with
systematic adverse impacts in a holistic way.
While it is outside the scope of this research to investigate in detail the corporate-level grievance
mechanism adopted by corporations operating in Myanmar’s extractive industry, a quick glance at the
efforts of Chevron and Total indeed makes clear that, to the limited extent that these corporations have
adopted grievance mechanisms,156 the focus has been completely on controlling or containing internal
151
C. Rees, ‘Access to Remedies for corporate human rights impacts: Improving non-judicial mechanisms’, Report of a multi-stakeholder workshop, John F. Kennedy School of
Governance 2008, Harvard University
152
C. Rees et al., ‘Piloting principles for Effective Company-Stakeholder Grievance Mechanisms: A Report of Lessons Learned’, Harvard Kennedy School, 2011, (published as
an addendum to the report of the Special Representative of the United Nations Secretary-General for Business and Human Rights: A/HRC/17/31/Add.1), p. 7
153
Ruggie Guiding Principles Report 2011, GP 31. Taken together, the eight effectiveness criteria specify that corporate-level grievance mechanisms should be:
(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes.
(b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access.
(c) Predictable: providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of
monitoring implementation.
(d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair,
informed and respectful terms.
(e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its
effectiveness and meet any public interest at stake.
(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights.
(g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms.
(h) Based on engagement and dialogue: consulting the stakeholders groups for whose use they are intended on their design and performance, and focusing on dialogue as the
means to address and resolve grievances.
154
Parker & Howe 2012 (n 16), p. 298.
155
Ruggie Framework Report 2008, ¶ 93. Ruggie notes: ‘Currently, the primary means through which grievances against companies play out are litigation and public campaigns.
For a company to take a bet on winning lawsuits or successfully countering hostile campaigns is at best optimistic risk management’.
156
See Chevron’s Operational Excellence Management System (“OEMS”), available at http://www.chevron.com/documents/pdf/OEMS_Overview.pdf
25
workforce complaints, rather than on mechanisms that allow external stakeholders to penetrate from the
outside in. Once again, it is clear that Ruggie’s shift from mandatory obligations to a discretionary
business-case based approach to corporate responsibilities leads to opportunistic uptake of corporate
controlled processes. At best moral persuasion and public pressure can be used to persuade corporations
to abide by their voluntary commitments. As such corporate-level grievance mechanisms can best be
perceived as being part of Ruggie’s soft acculturation strategy, complementary to, but also highly
dependent upon more stringent public enforcement mechanisms.
2. State-based remedy mechanisms
The state’s duty to provide access to an effective remedy is a fairly well established concept under
international human rights law. Several human rights treaties, such as the ICCPR, ICERD and CAT, make
explicit references to this duty.157 For example, article 2(3) of the ICCPR holds that states are required to
ensure that ‘any person’ whose rights or freedoms are violated ‘shall have an effective remedy’. It is clear
that the overall operating system for effective remedies still largely rests upon the bedrock role of states.
As part of the duty to protect states must take the necessary steps to give effect to international human
rights norms in their domestic order.158 Nevertheless, whether individuals can invoke international human
rights norms at the national level will depend on the state’s constitutional infrastructure. As a general
principle of law it is recognized that, ‘the enjoyment of internationally recognized rights can be
effectively assured by the national judiciary through direct applicability of international human rights
norms in national cases; through the application of comparable constitutional or other national provisions
of law; or through the interpretive effect of the international norms in the application of national law’.159
While state bodies thus have wide discretion in determining and interpreting what constitutes an effective
remedy, guidance on how to fulfill this obligation has been increasingly influenced by the decisions of
international treaty bodies and regional courts.
Following the subsidiary nature of the treaty body complaints mechanism, treaty bodies may
provide recommendations on both the procedural and substantive aspects of the remedy process, but only
after states failed to provide adequate relief at the national level. 160 Trends in treaty body
recommendations show that the expectations of states are expanding. Amongst others, treaty bodies
clarified that remedies must be provided within a reasonable time limit and must be affordable. 161
Additionally, the PRR Framework and GP’s provide an overview of the most relevant elements of the
state’s duty to provide access to remedy. GP 25 recognizes that, as a minimum, states are required to
conduct prompt, thorough and fair investigations into cases of alleged corporate human abuses within
their territory. Secondly, states must have in place an institutional framework that enables victims to bring
their cases to the attention of a fair and independent remedy body. Remediation must not necessarily be
provided by a judicial authority, but can also be operationalized through a range of administrative,
legislative or other state-based accountability mechanisms including: labour tribunals, National Human
Rights Institutions, National Contact Points (“NCP’s”), ombudsman offices or government-run truth and
reconciliation bodies.162 This short overview of the state’s duty to remedy has produced at least two
insights. First, the state’s duty to remedy is a broad and rather undetermined concept that leaves states
ample freedom to determine the specifics of the remedies provided. Secondly, the protection provided to
individuals under the concept of access to remedy operates on at least two levels. Primarily on the
national level where wrongs should be put right, and only in the second place at the international level,
157
158
See amongst others ICCPR article 2(3), ICERD article 6 and CAT Article 2(1).
See for example Human Rights Committee (29 March 2004), General Comment no. 31 on the nature of the General Legal Obligation on States Parties to the Covenant, UN
Doc. CCPR/C/21/Rev.1/Add.13, at ¶ 13.
159
Id., at ¶ 15.
160
Buyse 2008 (n 143), p. 119.
161
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect, ‘Addendum: State obligations to provide access to remedy for human
rights abuses by third parties, including business: an overview of international and regional provisions, commentary and decisions’, 2009, A/HRC/11/13/Add.1 2009, at p.3.
162
Ruggie Guiding Principles Report 2011, GP 25.
26
which is open to individual applicants only after exhaustion of local remedies. As a result, the failure by a
state to investigate, prosecute, adjudicate and punish allegations of serious human rights abuses could in
and of itself constitute a separate breach of international law, which requires reparation.163
5.2 Opportunities for operationalizing the remedy pillar: pro’s and con’s of US Alien Tort Statute
litigation
Despite what many states claim, the mere existence of a judicial system does not fulfill the state’s duty to
provide access to an effective remedy. It is clear that in many instances, repressive authorities have been
the main beneficiaries of the violations committed in the context of extractive industry projects, and thus
blocked victims’ access to justice in order to shield their own interests. In the Doe v. Unocal case, the Doe
plaintiffs argued that ‘in view of the pervasive atmosphere of terror and repression under Myanmar’s
authoritarian rule there has not been a functioning judiciary and any suit against corporate partners would
have been futile and would have resulted in serious reprisals’. 164 Now, as a country recovering from
authoritarian rule, Myanmar has to cope with rebuilding an independent judiciary system. Even though
the international community provided technical assistance to Myanmar, particularly in the field of training
and capacity building of judges, engagement so far has mainly focused on trade and economic
opportunities, rather than on accountability-oriented initiatives. It is expected that Myanmar’s judicial
infrastructure will remain underdeveloped and under the control of military executives for at least another
decade.165 While Myanmar thus clearly breaches its international duty to provide access to an independent
and impartial judicial process, it is clear that this acknowledgement alone will not reconcile all victims’
grievances.
Unfortunately, for many victims of corporate human rights abuses living in fragile states the
current reality is that they will have to find access to a legal remedy outside the state where the abuse
occurred. The ability of the courts of the home state to consider such claims is often the only available
avenue for victims to obtain a remedy.166 However, on many occasions the path towards extraterritorial
redress is fraught with legal and practical obstacles. Indeed, Ruggie acknowledged the existence of some
key barriers that may prevent legitimate cases from being addressed, including challenges arising from
piercing the corporate veil and ‘cases where claimants face a denial of justice in the host state and cannot
access home state courts regardless of the merits of the claim’.167 While Ruggie recognized that forum
non conveniens grounds and act of state doctrines, along with more practical issues of costs, witness
protection and legal representation constitute formidable obstacles to effective extraterritorial
adjudication, he did not conceptually clarify these challenges. By covering these challenges merely in a
descriptive and diplomatic manner, Ruggie chose a strategy of avoidance and postponement, rather than
dealing with the problem of access to justice in a legalistic way.168 Albeit understandable in the light of
the politics to gain acceptance for his proposals, Ruggie’s framing tactic also is highly unsatisfactory, as it
leaves wiggle room for courts and legal professionals within the national legal order to maintain doctrines
of judicial constraint.
The difficulties that victims may face when seeking extraterritorial justice at the courts of home states are
probably best exemplified by the case law of US courts under the Alien Tort Statute (“ATS)”.
Furthermore, a discussion of the ATS is particularly relevant, as victims of corporate-related human rights
163
Human Rights Committee (29 March 2004), General Comment no. 31 on the nature of the General Legal Obligation on States Parties to the Covenant, UN Doc.
CCPR/C/21/Rev.1/Add.13, at ¶ 15.
164
These facts can be found in US District Court for the Central District of California, Doe v. Unocal, 25 March 1997, 963 F. Supp. 880; 1997 U.S. Dist. LEXIS 5094 (“The
jurisdiction decision”).
165
International Bar Association’s Human Rights Institute (IBAHRI), ‘The Rule Of Law in Myanmar: Challenges and Prospects’, December 2012.
166
G. Skinner et al., ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business’, December 2013, at p. 18.
167
Ruggie Guiding Principles Report 2011, GP 26.
168
Mares 2012 (n 11), p. 43-44.
27
abuses in Myanmar’s extractive industry have successfully used this mechanism to seek remedy in the
Doe v. Unocal case.169 The Alien Tort Statute is a US law enacted in 1789. It reads: ‘The district courts
shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the US’. While only used sparingly until the 1980s, the ATS was brought to
life by a US court of appeals in the famous Filártiga v. Peña-Irala lawsuit.170 Ever since the US court
awarded the Paraguayan plaintiffs $10.4 million in damages for the torture and killing of Mr. Filártiga, an
event that occurred on Paraguayan soil, ATS cases have been used to promote and protect the human
rights of the most vulnerable people throughout the world. The ATS is unique, in the sense that it is the
only piece of domestic legislation that aims to prevent safe heavens for the most serious human rights
abusers. As such, the ATS has inspired intensive debate about the scope of states’ extraterritorial duty to
adjudicate, and helped deter future human rights abuses.
While at first sight, the criteria for an ATS lawsuit seem simple – the plaintiff must be a foreign
national alleging a tort in violation of the law of nations – extensive admissibility, evidence and
procedural barriers have to be overcome before corporations can be held liable for human rights abuses.171
First, US courts had to make clear what exactly is meant by ‘a violation of the law of nations?’ The most
concise answer to this question is found in the Supreme Court’s decision in the Sosa v. Alvarez-Machain
case.172 In the Sosa case the Supreme Court confirmed the use of the ATS only for a narrow class of the
most egregious international human rights violations.173 In order to qualify as a violation of the law of
nations, the international norm must be specific, universal, and obligatory, referring to contemporary jus
cogens norms, such as the prohibition of torture and forced labour. Given this narrow interpretation of
‘violations of the law of nations’, it will be highly unlikely that a corporation will end up in court merely
on the ground that it failed in its responsibility to perform due diligence.
Next the issue of corporate liability under the ATS had to be addressed. The early cases under the
ATS focused exclusively on the liability of natural persons. However, since the 1990s the ATS has been
increasingly used to hold corporations accountable for their roles in serious human rights violations. One
of the key landmark cases for corporate liability is the Doe v. Unocal case.174 In March 1997, the US
district court in Los Angeles made the unique decision to agree to hear the case of fourteen Myanmar
villagers who alleged Unocal’s connection to torture and forced labour related abuses committed by
Myanmar’s military in the context of the Yadana pipeline project.175 The LA district court later dismissed
the case, but the Doe plaintiffs appealed this decision. In 2002, the Ninth Circuit Court of Appeals found
that the LA district court had erred by denying attributing the military’s violations to Unocal. The
Appeals Court examined sources of international law, amongst others the case law of the International
Criminal Tribunal for the former Yugoslavia. It found that under international law it is not necessary for
an accomplice to share the mens rea of the perpetrator,176 in the sense of positive intention to commit the
crime. Rather it is sufficient that the accomplice knew or reasonably could have known that it provided
practical assistance, encouragement or moral support, which had a substantial effect on the perpetration of
the crime.177 The Appeals Court concluded that in Doe v. Unocal the evidence suggested that Unocal
knowingly, gave practical assistance to Myanmar’s military in subjecting the plaintiffs to forced labour
and other abuses. However, eventually only one day before the Ninth Circuit Court was due to hear the
169
170
171
US Court of Appeals for the Ninth Circuit, Doe v. Unocal, 3 December 2001, 395 F.3d 932 (9 Cir. 2002) (“Appeals Court decision”)
US Court of Appeals for the Second Circuit, Filartiga v. Pena-Irala, 30 June 1980, 630 F.2d 876 (2d Cir. 1980)
Earth Rights International, ‘Out of Bounds: Accountability for Corporate Human Rights Abuse after Kiobel’, September 2013, available at
http://www.earthrights.org/publication/out-bounds
172
US Supreme Court, Sosa v. Alvarez-Machain, 29 June 2004, 542 U.S. 692 (2004)
173
Id., at ¶ 724-25; ‘At the time of enactment of the ATS, US Congress probably only had in mind those torts corresponding to Blackstone’s three primary offences against the
law of nations; violation of safe conducts, infringement of the rights of ambassadors, and piracy’. However, the Supreme Court went on and concluded that ‘no development since
1789 has precluded present-day US courts from exercising their power and discretion to recognize liability for modern-day violations of the law of nations, or jus cogens norms’.
174
US Court of Appeals for the Ninth Circuit, Doe v. Unocal, 3 December 2001, 395 F.3d 932 (9 Cir. 2002) (“Appeals Court decision”)
175
US District Court for the Central District of California, Doe v. Unocal, 25 March 1997, 963 F. Supp. 880; 1997 U.S. Dist. LEXIS 5094 (“Jurisdiction decision”)
176
International Criminal Tribunal for the Former Yugoslavia, Furundzija (IT-95-17/1) (“Lašva Valley”), 21 July 2000.
177
US Court of Appeals for the Ninth Circuit, Doe v. Unocal, 3 December 2001, 395 F.3d 932 (9 Cir. 2002) (“Appeals Court decision”)
28
appeal en banc, the case was settled.178 From the perspective of legal clarity it was unfortunate that the
Doe v. Unocal case never reached a final verdict. Nonetheless, the settlement deal is generally considered
a great victory for human rights and the fact that the Appeals Court found aider and abettor liability in its
preliminary decision provided satisfaction to the victims of the Yadana pipeline project.
After the Doe v. Unocal case, US courts continued to recognize that corporations could be held
liable for aiding and abetting human rights abuses.179 That is, until the Second Circuit Court of Appeals in
a surprise decision in the Kiobel v. Royal Dutch Petroleum case, split from earlier case law by ruling for
the first time in the history of ATS litigation that corporations could not be held liable under the ATS.180
The majority of the court in Kiobel proceeded on the premise that the source of law through which
corporate liability had to be established is international law. The Appeals Court in Kiobel concluded that,
while individual and state responsibility have been firmly established since World War II, international
customary law to date has steadfastly rejected the notion of corporate liability. 181 As such, the Kiobel case
created the first precedent for corporate immunity in ATS case law. As a result of the split among
appellate courts and the highly contested nature of the Kiobel decision, the Supreme Court agreed to hear
the Kiobel case and consider the question whether corporations can be sued for their involvement in gross
human rights violations under the ATS. In February 2012, the Supreme Court heard oral arguments on the
issue, but in yet another surprise move, the parties were ordered to re-brief and re-argue the case. Rather
than addressing the issue of corporate liability, the Supreme Court decided to deal with a question that
goes back to the absolute core of ATS litigation, namely whether and under what circumstances the ATS
can be used to sue for (corporate) abuses that occurred in foreign countries.
Unfortunately, the final decision of the Supreme Court in the Kiobel case was a huge
disappointment for the Nigerian plaintiffs and human rights advocates in general. The Supreme Court
dismissed the case against Shell, arguing that Shell could not be held liable in US courts under the ATS
for acts committed outside the US.182 Ultimately, the Supreme Court’s decision in Kiobel did not adopt
the Second Circuit’s Court position that corporations are immune, but instead limited the scope of future
ATS litigation by issuing restrictive criteria to establish personal jurisdiction over the defendant. The
majority of the justices focused on ‘the presumption against extraterritoriality’, a doctrine that assumes
that federal US law, including the ATS, does not apply to cases outside the US.183 At the same time, the
Supreme Court was careful to leave the door to future extraterritorial claims slightly open by suggesting
that claims that ‘touch and concern the territory’ of the US with ‘sufficient force’ could rebut the
presumption against extraterritorial application of the ATS. 184 Nevertheless, in the Kiobel case the
presumption against extraterritoriality was not overcome, as this case concerned the wrongful conduct of
a foreign defendant, committed abroad, while the only connection to the US was that the defendant
conducted business in the US.
In addition to the already existing barriers of forum non conveniens grounds, exhaustion of local
remedies and the costly nature of transnational litigation, the ruling in the Kiobel case, through the ‘touch
and concern’ requirement, has placed yet another significant obstacle in the path of those seeking
extraterritorial justice.185 Extraterritorial cases under the ATS were never easy, and the Kiobel decision
certainly has not made it any easier. However, there is still hope for victims of serious corporate human
rights abuses to seek redress through ATS litigation, as the Supreme Court did not entirely reject the
ability of US Courts to enforce universally recognized human rights norms. The Supreme Court left it to
178
R. Chambers, ‘The Unocal Settlement: Implications for the Developing Law on Corporate Complicity in Human Rights Abuses’, Castan Centre for Human Rights Law at
Monash University, 2005
179
The DC Circuit, Eleventh Circuit, and Ninth Circuit Courts have concluded that the ‘knowledge’ standard is the appropriate measure of aiding and abetting liability. See for
example: US DC Circuit Court, Doe v. Exxon Mobile Corp., 26 July 2013, 654 F.3d 11, 39; 9th Circuit Court, Sarei v. Rio Tinto, 26 October 2010, 671 F.3d 736.
180
US Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum, 17 September 2010, 642 F.3d 268 (“Appeals Court Decision”)
181
US Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum, 17 September 2010, 642 F.3d 268 (“Appeals Court Decision”), Majority Opinion 9.
182
US Supreme Court, Kiobel v. Royal Dutch Petroleum, 17 April 2013, 569 U.S. (2013)
183
Id., 569 U.S., 133 S.Ct. 1659, 1669 (2013).
184
Id., 569 U.S., 133 S.Ct. 1659, 1669 (2013).
185
G. Skinner et al. 2013 (n 164), p. 66.
29
the lower federal and US state courts to apply and interpret the Kiobel decision and to determine the
future scope of ATS litigation. The first wave of decisions interpreting the Kiobel case has been referred
to as a ‘mixed bag’.186 So far, the majority of the decisions in the lower federal courts have adopted a
narrow interpretation of Kiobel; categorically dismissing cases when illegal acts took place abroad.187
Because ATS litigation against corporations almost always involves conduct that took place outside the
US, ‘the presumption against extraterritoriality’ will likely foreclose the majority of cases against
corporate defendants. Nevertheless, some cases have survived the ‘touch and concern’ requirement,
particularly in cases against individual defendants residing in the US.188 So far, lower courts have not yet
established a consistent approach to the question how substantial the nexus between the claim and the US
must be to rebut the presumption against extraterritoriality. This unpredictability is probably best
exemplified by two recent contradictory decisions of the Fourth Circuit Court of Appeals and the
Eleventh Circuit Court of Appeals. The first case, Al Shimari v. CACI et al., concerned a case against a
US private contractor company accused of torturing Iraqi detainees in the Abu Ghraib prison. While at
first instance, the District Court dismissed the Al Shimari case following Kiobel,189 the Fourth Circuit
Court of Appeals expressly rejected the District Court’s interpretation of Kiobel, holding that cases where
illegal acts are committed abroad are not “categorically” barred, but must be determined on a fact-basis
analysis. The Fourth Circuit Court in its majority opinion argued that “claims”, rather than the alleged
torturous conduct, must ‘touch and concern’ US territory.190 According to the Fourth Circuit Court, the
‘touch and concern’ test was satisfied in the Al Shimari case, based on the following key factors. First,
unlike Kiobel, the defendant in the Al Shimari case was a US corporation, which counters any of the
problems associated with bringing foreign nationals into US courts. Second, the acts of torture where
committed by CACI’s employees, while fulfilling the terms of a contract that CACI executed with the US
Department of Interior. Third, CACI’s managers in the US gave tacit approval of the torturous acts
committed by its employees in the Abu Ghraib prison, and attempted to cover up the ‘misconduct’. These
ties to the territory of the US are far greater than those considered in the Kiobel case, and thus the claims
in Al Shimari ‘touch and concern’ the territory of the US with sufficient force to rebut the presumption
against extraterritoriality.
However, in the second case, Doe v. Chiquita International, the Eleventh Circuit Court of
Appeals took a different approach to interpreting Kiobel.191 The Eleventh Circuit Court ignored the fact
that Chiquita is a US-based corporation, whose executives in a boardroom in the US made the decision to
sponsor a terrorist organization in Colombia, and applied Kiobel in a narrow way, by deciding that
Chiquita could not be sued for illegal acts that took place abroad.
The abovementioned contradictory approaches to interpreting Kiobel make clear that state
practice has not yet developed in such a way that it imposes a uniformly known obligation upon home
states to assume extraterritorial jurisdiction. Instead in the majority of cases US courts have categorically
denied extraterritorial jurisdiction. Only in exceptional cases did US courts apply a fact-based analysis
that could rebut the presumption against extraterritoriality. If the trend of interpreting Kiobel in a narrow
way continues the ATS has lost much of its significance and as a result victims now have fewer options to
seek legal accountability for the misconduct of corporations operating in fragile environments than at the
start of Ruggie’s mandate.
To conclude this chapter, it is interesting to point out the highly paradoxical nature of the US
approach to business and human rights. By simultaneously promoting transparency and reporting
186
M. Simons, ‘Post-Kiobel roundup: Apartheid case is not dismissed, but may soon be; some positive decisions from other courts’, 10 September 2013, available at
http://www.earthrights.org/blog/post-kiobel-roundup-apartheid-case-not-dismissed-may-soon-be-some-positive-decisions-other
187
R.P. Alford, ‘The Future of Human Rights Litigation After Kiobel’, Notre Dame Law School Scholarly Works 2014, Vol.89/4, at p. 1754
188
Cases which have been found, at the time of this study, to have survived the Kiobel “touch and concern” standard are Mwani v. Laden, 2013 WL 2325166 (D.D.C. May 29,
2013); Sexual Minorities Uganda v. Lively, 2013 WL 4130756 (D.Mass. Aug. 14, 2013); and Ahmed v. Magan, 2013 WL 4479077 (S.D.Ohio Aug. 20, 2013). Notably, none of
these cases were against a corporation.
189
US District Court for the Eastern District of Virginia Alexandria Division, Al Shimari v. CACI, 26 June 2013, Case No. 1:08-cv-827 (GBL/JFA)
190
US Court of Appeals for the Fourth Circuit, Al Shimari v. CACI, 30 June 2014, No. 13-1937
191
US Court of Appeals for the Eleventh Circuit, Doe v. Chiquita International, 24 July 2014, No. 12-14898
30
initiatives (see chapter 5), while denying those who could use these tools as a means to turn them in to an
effective remedy, the US Administration and Judiciary are missing the point.192 At the same time the
restrictive steps taken by the US Supreme Court in the Kiobel case are not entirely surprising, given the
absence of stringent international rules on extraterritoriality and Ruggie’s reserved approach towards the
responsibilities of home states.
6 Conclusion
This research started off with discussing the major achievements of SRSG Ruggie in his search for
improved corporate accountability for human rights. The endorsement of the PRR Framework and GP’s
by the Human Rights Council mark an important step in the corporate accountability debate, as for the
first time in history consensus has been reached about a set of international standards that aim to prevent
and remedy corporate-related human rights abuses. Ruggie’s research showed many of the complexities
and tensions within the business and human rights debate. While different commenters may disagree on
some of Ruggie’s policy choices, there is little doubt that the business and human rights discourse is now
at different level than it was in 2005. The main diplomatic genius of the PRR Framework and GP’s has
been in introducing the human rights due diligence principle; a standard that, when operationalized
appropriately, provides a platform for continuous debate and dialogue among human rights experts and
corporate management about corporate human rights performance and the scope of corporate
responsibilities. For that reason, the critique of Ruggie’s work as presented in this thesis has not so much
focused on the value of the voluntary due diligence standard, but rather has been concerned with the lack
of appropriate incentives and guidance within the PRR Framework and GP’s to ensure that the due
diligence standard is effectively operationalized.
The case study of Myanmar’s extractive industry clearly illustrated that key corporate actors have
implemented the due diligence process in a half-hearted way. Rather than using the outcomes of impact
assessments as a discussion-starter, corporations have used due diligence reports as a means to
misrepresent facts and repair lost legitimacy after being under extensive scrutiny by civil society actors.
Even the recent introduction of mandatory reporting regimes, such as the Reporting Requirements for US
corporations investing in Myanmar, does not guarantee that due diligence reports will not be misused as a
form of impression management. Similar concerns were raised with respect to operational-level grievance
mechanisms, which allow corporations to individualize and de-radicalize complaints in such a way that
no external debate will take place about the corporation’s adverse impacts. In other words, the PRR
Framework and GP’s lack the operational standards needed to push corporate management beyond
voluntary due diligence processes and to disclose information on substantive human rights performance.
This thesis has argued that three important operational elements of human rights due diligence are
underestimated: transparency, stakeholder participation and independent monitoring.
Despite its rather minimal mandate, the UN Working Group on the Issue of Human Rights and
Transnational Corporations seems to be the obvious body to coordinate action on these issues. The
Working Group has powers to provide non-binding advise on the implementation of the GP’s. The
existing gap in access to information should be bridged by a more narrowly defined duty to disclose the
outcomes and methodologies of due diligence processes. Also confidentiality clauses should be
discouraged and only permitted for a narrow class of non-disclosure grounds. The Working Group is
urged to empower affected communities and stakeholders through a right to independently obtain
information, which would ensure a more equal level playing field between corporate management and
stakeholder groups. On participation and verification, it is recommended that the Working Group should
draw up minimum standards for the verification of due diligence processes, as currently there exists
considerable fragmentation and conflict among different civil society monitoring regimes. With respect to
independent monitoring and review, the Working Group itself should step up its efforts to identify,
exchange and promote good practices and lessons learned from the implementation of the GP’s. In the
192
Earth Rights International, ‘Out of Bounds: Accountability for Corporate Human Rights Abuse after Kiobel’, September 2013, at p. 19.
31
end, the recommendations flowing from the monitoring and review process of the Working Group should
form the basis upon which civil society actors and affected communities could distinguish between highperforming corporations and corporate laggards. Action on the aforementioned operational standards is
absolutely essential to ensure that human rights due diligence will become a credible and trustworthy
instrument, that allows outsiders to freely access information and compare corporations’ actual human
rights performance. Without enhanced standards of transparency, participation and independent
monitoring it will not be clear whether corporate activities will exacerbate violent conflict and human
rights violations as has occurred in the past, or whether Myanmar has truly entered a new era in which
corporations are becoming part of the solution by bringing Myanmar into the global economy in a way
that respects human rights and leads to improved economic development.
A second major shortcoming of the PRR Framework and GP’s discussed in this thesis is Ruggie’s
underestimation of the critical role that home states should play in opening up due diligence processes. In
the light of the mere voluntary responsibilities of corporations to adopt due diligence processes, it is of the
utmost importance that the obligations on the part of the state are strongly worded. Unfortunately, this is
not the case in the PRR Framework and GP’s. Ruggie’s considerations with respect to extraterritoriality
avoid any legalistic discussion on the scope of home states’ obligations and instead leave it up to states
themselves to determine when extraterritorial regulation and adjudication is appropriate. Following
Ruggie’s minimal guidance on extraterritorial obligations, state practice has developed in a rather
paradoxical manner. On the one hand, recent developments in transparency and reporting regulations
show a willingness by home states to demand more openness from corporations. While mandatory
reporting regimes, such as the US Reporting Requirements for corporations investing in Myanmar, may
not yet be functioning optimally due to extensive confidentiality clauses, their presence is a sign of
increasing awareness among home states of the possibilities to regulate multinational corporations. On the
other hand, state practice with respect to the extraterritorial adjudication of corporate abuses has moved in
another direction. Recent developments in the case law of US courts in ATS litigation show that home
states continue to maintain legal barriers that prevent legitimate cases from being heard by independent
courts. For example, the recent decision of the US Supreme Court in the Kiobel case has made it
significantly tougher for foreign plaintiffs to link serious human rights abuses committed abroad to
corporations that have operations on US territory. The restrictive interpretation of the ATS is unfortunate,
as ATS litigation has been one of the only successful mechanisms to hold corporations to account for
foreign abuses, and has as such played a model function for other states to think about their extraterritorial
duties. Although the members of the UN Working Group on the Issue of Human Rights and Transnational
Corporations are limited in the way they can conceptually clarify the scope of home states extraterritorial
obligations, they are nonetheless urged to promote consistency across all states and encourage home
states to adopt policy measures that give preference to the human rights protection of vulnerable groups,
rather than measures that establish safe havens for corporate interests.
Now that clarity has been given on the main limitations and opportunities for operationalization
of the PRR Framework and GP’s, the foundation has been laid for further research and action upon
closing the governance gaps in corporate accountability regulation. This study has shown that despite
Ruggie’s ambiguous language, the PRR Framework and GP’s set out adequate parameters within which
the corporate accountability debate should take place. The current problem is not so much a lack of
normative standards at the international level, as it is a lack of genuine implementation efforts by
corporations and states. In this regard, the recent adoption of a Human Rights Council resolution, 193
which signals the start of another drafting procedure for a binding treaty on business and human rights,
should be met with necessary caution. The renewed call for an all encompassing international treaty on
business and human rights once again places emphasis on the voluntary/mandatory dichotomy. The
outcome of the treaty drafting process is not too hard to predict. Developing states will support the treaty,
whereas the developed countries where the majority of the multinational corporations are based, will
193
UN Human Rights Council, Resolution 26/…, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with
respect to human rights, 25 June 2014, A/HRC/26/L.22/Rev.1
32
boycott the treaty negotiations. In the mean time, the risk exists that Ruggie’s carefully build consensus
will be undone by the prospect of another time and resource-draining treaty building exercise. Although a
further discussion on corporate human rights obligations should not be avoided, it remains to be seen
whether the present broad call by developing states for an ‘internationally binding instrument’ is the best
way to push the business and human rights agenda forward. An alternative approach, by narrowing down
the scope of the international treaty to corporate involvement in the most serious human rights abuses,
might be more achievable in the short run and would be more complementary to Ruggie’s work. Rather
than putting limited resources in a time consuming overarching treaty building project, which if history is
any indication will likely result in a stalemate, it might be more fruitful to narrow down the business and
human rights agenda and focus on those aspects of international law that can increase pressure on
corporations and states through domestic stakeholder advocacy.
33
Bibliography
Articles and book chapters
Alford 2014
R.P. Alford, ‘The Future of Human Rights Litigation After Kiobel’, Notre Dame Law School Scholarly
Works 2014, Vol.89/4, at p. 1754
Bassiouni 1994
C. Bassiouni, ‘Crimes against Humanity : The need for a specialized Convention’, Columbia Journal of
Transnational Law 1994, p. 457-494.
Bilchitz 2009
D. Bilchitz, ‘The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?’,
South African Institute for Advanced Constitutional, Public, Human Rights and International Law,
University of Johannesburg, 2009.
Chambers 2005
R. Chambers, ‘The Unocal Settlement: Implications for the Developing Law on Corporate Complicity in
Human Rights Abuses’, Castan Centre for Human Rights Law at Monash University, 2005.
Catá Backer 2012
L. Catá Backer, ‘On the U.N. Working Group Report to the U.N. General Assembly on the Issue of
Business and Human Rights A/67/285’, 10 October 2012, available at
http://lcbackerblog.blogspot.nl/2012/10/on-un-working-group-report-to-un.html
Collier 2005
P. Collier, ‘Economic causes for civil wars and their consequences for Policy’, World Bank Washington
DC, 2005.
Goodman & Jinks 2004
R. Goodman & D. Jinks, ‘How to Influence States: Socialization and International Human Rights Law‘,
Duke Law Journal 2004, Vol. 54.
Harrison 2013
J. Harrison, ‘Establishing a meaningful human rights due diligence process for corporations: learning
from experience of human rights impact assessment, Impact Assessment and Project Appraisal,
University of Warwick Research Archive Portal 2013, Volume 31/2, p. 107-117.
Hess 2007
D. Hess, ‘Social Reporting and New Governance Regulation: the Prospects of Achieving Corporate
Accountability through Transparency’, Business Ethics Quarterly 2007, Vol. 17/3, p. 453-476.
Jägers 2011
N. Jägers, ‘UN Guiding Principles on Business and Human Rights: Making Headway towards Real
Corporate Accountability?’, Netherlands Quarterly of Human Rights 2011, Vol. 29/2, p. 159–163.
Jägers 2012
N. Jägers, ‘The Missing Right To Know. A Critique of the UN Protect-Respect-Remedy Framework and
the Guiding Principles’, in Notizie di Politeia 2012, XXVIII (106), p. 100-124.
34
Knox 2012
J.H. Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’, in The UN Guiding
Principles on Business and Human Rights. Foundations and Implementation, R. Mares ed., 2012 Leiden:
Martinus Nijhoff Publishers, p. 51-84.
Ku & Diehl 2006
C. Ku & P. F. Diehl, ‘Filling the Gaps: Extra-systemic Mechanisms for Addressing Imbalances Between
the International Legal Operating System and the Normative System’, Global Governance 2006, Vol. 12,
p. 161-183.
Mares 2010
R. Mares, ‘Global Corporate Social Responsibility, Human Rights, and the Law: An Interactive
Regulatory Perspective on the Voluntary-Mandatory Dichotomy’, 1:2 Transnational Legal Theory 2010,
p. 221–285.
Mares 2012
R. Mares, ‘Ruggie’s diplomatic project and its missing regulatory infrastructure’, in The UN Guiding
Principles on Business and Human Rights. Foundations and Implementation, R. Mares ed., 2012 Leiden:
Martinus Nijhoff Publishers, p. 1-50.
Melish & Meidinger 2012
T.J. Melish & E. Meidinger, ‘Protect, Respect, Remedy and Participate: New Governance Lessons for the
Ruggie Framework’, in The UN Guiding Principles on Business and Human Rights – Foundations and
Implementation, Martinus Nijhoff Publishers Leiden, Boston 2012, p. 303-336
Parker 2007
C. Parker, ‘Meta-Regulation: Legal Accountability for Corporate Social Responsibility?’ in The New
Corporate Accountability: Corporate Social Responsibility and the Law, Doreen McBarnet ed.,
Cambridge University Press, 2007, chapter 8.
Parker & Howe 2012
C. Parker & J. Howe, ‘Ruggie’s Diplomatic Project And Its Missing Regulatory Infrastructure’, in The
UN Guiding Principles on Business and Human Rights - Foundations and Implementation, R. Mares ed.,
2012 Leiden: Martinus Nijhoff Publishers, p. 273-303.
Rees 2008
C. Rees, ‘Access to Remedies for corporate human rights impacts: Improving non-judicial mechanisms’,
Report of a multi-stakeholder workshop, John F. Kennedy School of Governance 2008, Harvard
University.
Ruggie 2004
J. G. Ruggie, ‘Reconstituting the Global Public Domain – Issues, Actors, and Practices’, European
Journal of International Relations 2004, Vol. 10:4.
De Schutter 2006
O. de Schutter, ‘Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of
Transnational Corporations’ background paper OHCHR seminar, 2006, available at
http://198.170.85.29/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf
Simons 2013
35
M. Simons, ‘Post-Kiobel roundup: Apartheid case is not dismissed, but may soon be; some positive
decisions from other courts’, 10 September 2013, available at http://www.earthrights.org/blog/postkiobel-roundup-apartheid-case-not-dismissed-may-soon-be-some-positive-decisions-other
Skinner et al. 2013
G. Skinner et al., ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by
Transnational Business’, December 2013.
Sullivan & Hachez 2012
R. Sullivan and N. Hachez, ‘The missing piece of the Ruggie jigsaw: the case of institutional investors’,
in The UN Guiding Principles on Business and Human Rights – Foundations and Implementation,
Martinus Nijhoff Publishers Leiden, Boston 2012, p. 217-244.
Taylor 2011
M.B Taylor, ‘The Ruggie Framework: Polycentric regulation and the implications for corporate social
responsibility’, Nordic Journal of Applied Ethics 2011, Vol. 5(1), p. 9-30.
Taylor 2014
M. Taylor, ‘A Business and Human Rights Treaty? Why Activists Should be Worried’, 14 June 2014,
available at http://www.ihrb.org/commentary/board/business-and-human-rights-treaty-why-activistsshould-be-worried.html
Tzevelekos 2010
V.P. Tzevelekos, ‘In Search of Alternative Solutions: Can the State of Origin be Held Internationally
Responsible for Investors’ Human Rights Abuses that are Not Attributable to it?’, Brooklyn Journal of
International Law 2010, Vol. 35, p. 155-231.
Weissbrodt 2008
D. Weissbrodt, ‘Keynote Address: International Standard-Setting on the Human Rights Responsibilities
of Businesses’, Berkeley Journal of International Law 2008, Vol.26, p. 373-391
Wettstein 2012
F. Wettstein, ‘Human rights as a critique of instrumental CSR: Corporate responsibility beyond the
business case’, in Notizie di Politeia 2012, XXVIII (106), p. 18-33.
Books and dissertations
Black 2009
N.M. Black, Blood Money: A Grounded Theory of Corporate Citizenship: Myanmar (Burma) as a Case
in Point, Dissertation at University of Waikato, 2009.
Buyse 2008
A.C. Buyse, Post-conflict housing restitution: the European human rights perspective with a case study
on Bosnia and Herzegovina, Antwerpen: Intersentia 2008.
Langford & Vandenhole 2013
M. Langford and W. Vandenhole ed., Global justice, state duties: The extraterritorial scope of economic,
social and cultural rights in international law, New York Cambridge University Press 2013.
Sornarajah 2004
M. Sornarajah, The International Law on Foreign Investment, Cambridge University Press, 2nd ed. 2004.
36
Tyler 1990
T. Tyler, Why People Obey the Law, Yale University Press, New Haven 1990.
UN/EU policy documents and resolutions
EU Council 2012
EU Council, Decision 2012/225/cfsp, Renewing restrictive measures against Burma/Myanmar, 26 April
2012, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:115:0025:0026:EN:PDF
EU Council 2013
European Parliament and EU Council, Directive 2013/34/EU on the annual financial statements,
consolidated financial statements and related reports of certain types of undertakings, 26 June 2013,
L182/19.
Human Rights Commission 2004
UN Human Rights Commission, Report to the Economic and Social Council on the Sixtieth Session of
the Commission, Resolution, 2004, UN Doc E/CN.4/2004/L.11/Add.7
Human Rights Commission 2005
UN Human Rights Commission, Resolution 2005/69, Human rights and transnational corporations and
other business enterprises, 2005.
Human Rights Council 2011
UN Human Rights Council, Resolution 17/4, Human rights and transnational corporations and other
business enterprises, 6 July 2011, UN Doc. A/HRC/RES/17/4.
Human Rights Council 2014
UN Human Rights Council, Resolution 26/…, Elaboration of an international legally binding instrument
on transnational corporations and other business enterprises with respect to human rights, 25 June 2014,
A/HRC/26/L.22/Rev.1
OHCHR 2011
UN Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect
Human Rights: An Interpretive guide, 2011.
Rees et al. 2011
C. Rees et al., ‘Piloting principles for Effective Company-Stakeholder Grievance Mechanisms: A Report
of Lessons Learned’, Harvard Kennedy School, 2011, published as an addendum to the report of the
Special Representative of the United Nations Secretary-General for Business and Human Rights,
A/HRC/17/31/Add.1.
Ruggie 2006
J.G. Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human
Rights and Transnational Corporations and Other Business Enterprises, 2006 UN Doc. E/CN.4/2006/97
Ruggie 2007
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights, Business
and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate
Acts, 2007
37
Ruggie 2008
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect,
Respect and Remedy: A Framework for Business and Human Rights, 2008, U.N. Doc. A/HRC/8/5
Ruggie 2009
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect,
‘Addendum: State obligations to provide access to remedy for human rights abuses by third parties,
including business: an overview of international and regional provisions, commentary and decisions’,
2009, A/HRC/11/13/Add.1.
Ruggie 2010
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect,
Business and Human Rights: Further steps toward the operationalization of the Protect, Respect and
Remedy Framework, 2010, UN Doc. A/HRC/14/27.
Ruggie 2011(A)
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect,
Business and Human Rights: Guiding Principles on Business and Human Rights: Implementing the
United Nations “Protect, Respect and Remedy” Framework, 2011, UN Doc. A/HRC/17/31
Ruggie 2011 (B)
J.G. Ruggie, Special Representative to the Secretary General on Business and Human Rights Protect,
‘Recommendations On Follow-Up to the Mandate’, February 2011, www.businesshumanrights.org/media/documents/ruggie/ruggie-special-mandate-follow-up-11-feb-2011.pdf
SR Myanmar 2013
UN Special Rapporteur on the Human Rights Situation in Myanmar, Report to the Human Rights
Council, 6 March 2013, A/HRC/22/58.
WG on human rights and transnational corporations 2013
Working Group on the issue of human rights and transnational corporations and other business
enterprises, Report to the General Assembly, 14 March 2013, A/HRC/23/32.
Civil society reports
ALTSEAN 2006
ALTSEAN Burma, ‘Forced Labor in Burma: Time For Action’, 2006 available at
http://www.altsean.org/Reports/ForcedLabor.php.
ERI 2008
Earth Rights International, ‘The human cost of energy: Chevron’s continuing role in financing oppression
and profiting from human rights abuses in military-ruled Burma’, 2008
ERI 2009
Earth Rights International, ‘Getting it wrong: Flawed Corporate Social Responsibility and
misrepresentations surrounding Total and Chevron’s Yadana gas pipeline in military-ruled Burma’, 2009
ERI 2010
Earth Rights International, ‘Energy Insecurity: How Total, Chevron, and PTTEP contribute to human
rights violations, financial secrecy, and nuclear proliferation in Burma’, 2010
38
ERI 2013 (A)
Earth Rights International, ‘American Petroleum Institute v. SEC: Revenue Transparency Litigation’,
available at http://www.earthrights.org/legal/american-petroleum-institute-v-sec-revenue-transparencylitigation; last visited on 12 June 2014.
ERI 2013 (B)
Earth Rights International, ‘First Myanmar Investment Disclosures Present Opportunities and
Challenges’, 10 July 2013, available at http://www.earthrights.org/campaigns/first-myanmar-investmentdisclosures-present-opportunities-and-challenges
ERI 2013 (C)
Earth Rights International, ‘Out of Bounds: Accountability for Corporate Human Rights Abuse after
Kiobel’, September 2013, available at http://www.earthrights.org/publication/out-bounds
FIDH 2011
International Federation for Human Rights (FIDH), ‘UN Human Rights Council adopts Guiding
Principles on business conduct, yet victims still waiting for effective remedies’, 2011, available at
http://www.fidh.org/UN-Human-Rights-Council-adopts
HRW 2011
Human Rights Watch, ‘UN Human Rights Council: Weak Stance on Business Standards’, 2011 available
at http://www.hrw.org/news/2011/06/16/un-human-rights-council-weak-stance-business-standards
HRW 2013
Human Rights Watch, ‘Burma: Joint Letter to President Obama on Reporting Requirements’, 12 August
2013, available at http://www.hrw.org/news/2013/08/12/burma-joint-letter-president-obama-reportingrequirements
ICG 2012
International Crisis Group, ‘Reform in Myanmar: One Year On’, April 2012, available at
http://www.crisisgroup.org/en/publication-type/media-releases/2012/asia/myanmar-reform-in-myanmarone-year-on.aspx
IBAHRI 2012
International Bar Association’s Human Rights Institute (IBAHRI), ‘The Rule Of Law in Myanmar:
Challenges and Prospects’, December 2012
SGM 2011
Shwe Gas Movement, ‘Sold Out: Launch of China pipeline project unleashes abuse across Burma’, 2011,
p. 1-28
Corporate reports
CDA Collaborative Learning Project 2011
D. Bardouille-Crema & L. Zandvliet, ‘Report of Sixth CEP Visit to the Yadana Pipeline’, field visit 28
March - 8 April 2011, available at http://www.cdacollaborative.org/media/52703/Total-MyanmarYadana-Gas-Transportation-Project-Visit-VI.pdf
Chevron
39
Chevron, ‘Chevron’s Way’, available at http://www.chevron.com/about/chevronway/
Chevron
Chevron, Operational Excellence Management System, available at
http://www.chevron.com/documents/pdf/OEMS_Overview.pdf
Chevron
Chevron, Business Code of Conduct and Ethics, available at
http://www.chevron.com/documents/pdf/chevronbusinessconductethicscode.pdf
Chevron 2009
Chevron, Human Rights Policy 2009, available at
http://www.chevron.com/documents/pdf/AboutOurHumanRightsPolicy.pdf
Coca Cola Company 2013
The Coca-Cola Company, ‘Responsible Investment in Myanmar’, 12 December 2013, available at
http://burma.usembassy.gov/reporting-requirements.html
Hercules Offshore 2013
Hercules Offshore, ‘Report on Responsible Investment in Burma, 1 July 2013, available at
http://burma.usembassy.gov/reporting-requirements.html
Lloyds’s Register Quality Assurance 2012
Lloyds’s Register Quality Assurance, ‘Assurance statement on Chevron’, 5 April 2012, available at
http://www.chevron.com/Documents/Pdf/ChevronAssuranceStatement.pdf
Total SA
Total SA, Ethical Business Guidelines, available at
http://www.total.com/MEDIAS/MEDIAS_INFOS/1943/FR/Charte-ethique-TEP-Myanmar.pdf
Total SA
Total SA, Socio-economic program, available at http://burma.total.com/myanmar-en/the-socio-economicprogram-200151.html
Total SA 2007
Total SA, Response Total SA on actions during the revolutionary protests by monks in 2007, September
2007, available at http://birmanie.total.com/en/news/p_5_4.htm
Total SA 2011
Total Sa, Code of Conduct, available at
http://www.total.com/MEDIAS/MEDIAS_INFOS/5197/EN/Total-2011-code-of-conduct-EN.pdf
News reports
Aung San Suu Kyi 2012
Aung San Suu Kyi, Speech held at the Annual Meeting 2012 of the World Economic Forum, available at
http://www.weforum.org/videos/aung-san-suu-kyi-annual-meeting-2012
Mining Weekly 2013
40
Mining Weekly, ‘Harper announces transparency enhancements mining sector, 12 June 2013, available at
http://www.miningweekly.com/article/harper-government-announces-transparency-enhancements-formining-sector-2013-06-12
Regulatory instruments
Dodd Frank Act 2010
Dodd-Frank Wall Street Reform and Consumer Protection Act 2010, available at
http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf
Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful
Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1.
Maastricht Principles 2011
Maastricht Principles on Extra-Territorial Obligations in the Area of Economic, Social and Cultural
Rights. The Maastricht Principles were adopted at an expert meeting on 28 September 2011.
OECD Guidelines for Multinational Enterprises 2011
OECD Secretary-General, OECD Guidelines for Multinational Enterprises 2011 Edition, 2011
UN Draft Norms 2003
UN Sub-Commission on the Promotion and Protection of Human Rights, Draft Norms on the
Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights, 2003, E/CN.4/Sub.2/2003/12
UN Global Compact 2000
10 principles of the UN Global Compact available at
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html
US Reporting Requirements on Responsible Investment in Burma 2012
US Department of State, ‘Burma Responsible Investment Reporting Requirements’, available at
http://www.humanrights.gov/2012/07/11/burmaresponsibleinvestment/
Case Law
Treaty body recommendations
ESCR Committee 2011
ESCR Committee (20 May 2011), Statement on the obligations of States Parties regarding the corporate
sector and economic, social and cultural rights, UN Doc. E/C.12/2011/1.
CERD Committee 2004
CERD Committee (28 April 2004), Concluding observations Suriname, UN Doc. CERD/C/64/CO/9.
Human Rights Committee 1985
Human Rights Committee (31 March 1982), Pedro Pablo Camargo v. Colombia, Communication No.
45/1979 1985.
Human Rights Committee 2004
41
Human Rights Committee (29 March 2004), General Comment no. 31 on the nature of the General Legal
Obligation on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13.
Human Rights Committee 2011
Human Rights Committee (12 September 2011), General Comment no. 34 on Article 19: Freedoms of
opinion and expression, UN Doc. CCPR/C/GC/34.
Regional human rights courts
Saramaka People v. Suriname 2007
Inter-American Court of Human Rights, 28 November 2007, Series C No. 172, (Saramaka People v.
Suriname).
Velasquez-Rodriguez v. Honduras 1988
Inter-American Court of Human Rights, 29 July1988, H.R. No. 4, (Velasquez-Rodriguez v. Honduras).
Centre for Minority Rights Development and Minority Rights Group v. Kenya 2009
African Commission on Human and Peoples’ Rights, 25 November 2009, 276/03, (Centre for Minority
Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya).
ICTY
YCTY 2000
International Criminal Tribunal for the Former Yugoslavia, Furundzija (IT-95-17/1) (“Lašva Valley”), 21
July 2000.
US Courts
Al Shimari v. CACI 2013
US District Court for the Eastern District of Virginia Alexandria Division, Al Shimari v. CACI, 26 June
2013, Case No. 1:08-cv-827 (GBL/JFA)
Al Shimari v. CACI 2014
US Court of Appeals for the Fourth Circuit, Al Shimari v. CACI, 30 June 2014, No. 13-1937
API v. SEC 2013
US District Court for the District of Columbia, API v. SEC, 2 July 2013, Civil Action No. 12-1668 (JDB).
Doe v. Chiquita International 2014
US Court of Appeals for the Eleventh Circuit, Doe v. Chiquita International, 24 July 2014, No. 12-14898
Doe v. Exxon Mobile Corp 2013
US DC Circuit Court, Doe v. Exxon Mobile Corp., 26 July 2013, 654 F.3d 11, 39
Doe v. Unocal 1997
US District Court for the Central District of California, Doe v. Unocal, 25 March 1997, 963 F. Supp. 880;
1997 U.S. Dist. LEXIS 5094 (“Jurisdiction decision”)
Doe v. Unocal 2001
US Court of Appeals for the Ninth Circuit, Doe v. Unocal, 3 December 2001, 395 F.3d 932 (9 Cir. 2002)
(“Appeals Court decision”)
42
Doe v. Unocal 2003
Superior Court of California, Doe v. Unocal, 30 July 2003, No. BC 237980, slip op. at 8.
Filártiga v. Peña-Irala 1980
US Court of Appeals for the Second Circuit, Filartiga v. Pena-Irala, 30 June 1980, 630 F.2d 876 (2d Cir.
1980)
Kiobel v. Royal Dutch Petroleum 2010
US Court of Appeals for the Second Circuit, Kiobel v. Royal Dutch Petroleum, 17 September 2010, 642
F.3d 268 (“Appeals Court Decision”).
Kiobel v. Royal Dutch Petroleum 2013
US Supreme Court, Kiobel v. Royal Dutch Petroleum, 17 April 2013, 569 U.S. (2013)
Sarei v. Rio Tinto 2010
9th Circuit Court, Sarei v. Rio Tinto, 26 October 2010, 671 F.3d 736.
Sosa v. Alvarez-Machain 2004
US Supreme Court, Sosa v. Alvarez-Machain, 29 June 2004, 542 U.S. 692, 2004
43