ABSTRACT
As the Introduction to this book noted, the meeting of the UN Human Rights Council A/HRC/26/L.22/Rev.1 in Geneva in 2013 was a highly important one. This meeting put the demand for an international legally binding instrument on the human rights responsibilities of corporations back on the agenda. The primary aim of this resolution was very clearly to seek a means of
imposing obligations on states to ensure that corporations exercise due diligence in ensuring compliance with human rights standards. First, the Resolution ‘asserted that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the state, and that states must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations’. Second, it emphasised ‘that transnational corporations and other business enterprises have a responsibility to respect human rights’. And, third, it called for ‘an international legally-binding instrument to regulate, in international human rights law, the activities of Transnational Corporations and Other Business Enterprises’. The Resolution therefore took the Ruggie Agenda on corporate human
rights compliance that had been preoccupied with a (soft law) voluntary approach and moved it into a (hard law) sphere of legally enforceable standards. The Resolution was also very clear about its approach to human rights principles and very clearly reasserted its commitment to the principle that the primary obligation for promoting and protecting human rights law lies with states. The dissatisfaction of many groups with the outcome of the Ruggie process, largely because of the lack of any binding mechanisms, points to the alienation of the movements from the frontlines – those who are directly impacted by and struggling against the violations by corporations – from the political negotiations taking place at the UN institutions in Geneva and New York. This chapter has two primary objectives. The first is to consider the role
and responsibility of states for promoting and protecting human rights law, whilst also considering the extension of human rights obligations to corporations. The second and equally important objective is to examine how struggles for
corporate accountability in human rights law are absorbed and expressed at an international level. In this context, it is remarkable that throughout the different periods thus far analysed in this book – from the 1970s and 1980s to the long debates over the UN Draft Norms in the 1990s and 2000s, and through the entire Ruggie mandate – the jurisprudence of the regional human rights courts is virtually ignored in policy documents. That is to say that in this debate about human rights the two places where interpretations of human rights law are directly made – the Inter-American and the European Courts of Human Rights1 – are virtually absent from the discussion. Indeed, this curious absence remains in the discussion about what a new treaty might look like, what legal principles it might draw on and so forth. This chapter therefore explores the relevant jurisprudence of the Inter-American and European Courts of Human Rights in order to understand how the question of states’ obligations in relation to corporate human rights violations may have some relevance for the UNHCR reform process. In particular, it analyses how positive obligations doctrines might have been
applied to corporations. It does so by looking at how different variations on the doctrine of positive obligations have played out in the regional human rights courts’ treatment of cases involving corporate human rights violations. In particular, it is concerned with how the indirect or vicarious responsibility of the state for violations of human rights by corporations has been developed through the application of new forms of ‘positive obligations’, and concludes with some reflection on how similar outcomes might be struggled for outside the courts.
