Abstract
A State may exercise its ‘Permanent Sovereignty over Natural Resources’ by granting concessions to transnational corporations for the purpose of exploitation of natural resources. It may also provide security services to those transnational corporations. The activities of both the transnational corporations and their host States’ police or armed forces may end in serious human rights violations. The victims of such human rights violations may try to bring claims against the host State or against the transnational corporations’ home State or against the transnational corporation itself. They may choose to file such civil lawsuits with foreign courts, i.e., with courts of a third State. Such damage claims before foreign courts will be hardly ever successful, though. In particular, with regard to the Alien Tort Statute (ATS), the U.S. Supreme Court’s decision in the Kiobel case delivered in April 2013 largely ruled out ATS damage claims with regard to human rights violations committed abroad.
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Notes
- 1.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010).
- 2.
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 14 (S.Ct. 2013), 569 U.S.__ (2013) = 133 S.Ct. 1659 (2013), p. 1669. For an in-depth analysis of the Supreme Court’s Kiobel decision and its implications see Agora: Reflections on Kiobel. Excerpts from the American Journal of International Law and AJIL Unbound (http://www.asil.org/sites/default/files/AGORA/201401/AJIL%20Agora-%20Reflections%20on%20Kiobel.pdf); see also Frosch (2013), Reynolds and Zimmer (2013), Sandrock (2013), and Stürner (2014).
- 3.
See Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457 (S.D.N.Y. 2006).
- 4.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010), p. 123.
- 5.
28 U.S.C. § 1350.
- 6.
See Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 3 (S.Ct. 2013), 569 U.S.__ (2013) = 133 S.Ct. 1659 (2013), p. 1663.
- 7.
Beginning with Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).
- 8.
Concerning the scope ratione personae of ‘Permanent Sovereignty over Natural Resources’ see, in particular, General Assembly Resolution 3201 (S-VI) Declaration on the Establishment of a New International Economic Order, 1st May 1974, para. 4(e) (‘every State’); see also Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment of 1972 and Principle 2 of the Rio Declaration on Environment and Development of 1992.
- 9.
See supra at footnote 4.
- 10.
In fact, Nigeria is a party to the African Charter of Human and Peoples’ Rights of 1981 as well as to several international human rights treaties. See Amao (2008), p. 106.
- 11.
Concerning the term ‘transnational corporation’ see footnote 77.
- 12.
International Covenant on Civil and Political Rights (UNTS 999, 171); International Covenant on Economic, Social and Cultural Rights (UNTS 993, 3).
- 13.
We do admit that the principle of ‘Permanent Sovereignty over Natural Resources’ has not been laid down explicitly in common Art. 1 of the two International Covenants on Human Rights. The provisions in question rather refer expressly to all peoples’ ‘right to freely dispose of their natural … resources’ only (Art. 1 para. 2 of the two International Covenants on Human Rights). But we would like to stipulate that the right of peoples to freely dispose of their natural resources signifies the very essence of ‘Permanent Sovereignty over natural Resources’. See Schrijver (2008 ff), para. 2.
- 14.
The right to self-determination of peoples has also the legal status of customary international law (Nowak 2005, Art. 1 CCPR, para. 3). Consequently, the UN Special Rapporteur Erica-Irene A. Daes correctly held that also ‘Permanent Sovereignty over Natural Resources’ ‘became a general principle of international law when it was included in common article 1 of both International Covenants on Human Rights’, see Daes (2004), para. 10. By the same token, the ICJ acknowledged that the principle of ‘Permanent Sovereignty over Natural Resources’ has become a principle of customary international law (ICJ, Armed Activities on the Territory of the Congo [Democratic Republic of the Congo v. Uganda], Judgment, ICJ Reports 2005, p. 168, para. 244).
- 15.
Art. 3 of the United Nations Declaration on the Rights of Indigenous Peoples (adopted by General Assembly Resolution 61/295, 13th September 2007); see also, e.g., Wiessner (2012), pp. 44 et seq.
- 16.
See Daes (2001), para. 55.
- 17.
This special relationship to their lands may be fundamental to indigenous peoples’ cultures and, thus, to their very identity (see Daes 2001, paras. 12 et seq.). Expelling indigenous peoples from their traditional lands may, therefore, even threaten their existence as a people and, in extreme cases, might thus come close to what may be qualified as a genocidal act.
- 18.
Daes (2004), para. 42.
- 19.
However, one might argue that, depending on the individual case, an indigenous people may not claim ‘permanent sovereignty’ over, e.g., fossil, mineral and metallic resources if the people’s traditional culture, day-to-day life, etc. never have been specifically related to the extraction and use of such resources.
- 20.
See supra at footnote 4.
- 21.
- 22.
See, e.g., Tomuschat (2008), p. 321 et seq. and 355 et seq.
- 23.
See, e.g., Burkard (2013), p. 217 (footnote 923), who mentions by way of example Australia, Belgium, Canada, France, India, Japan, the Netherlands, Norway, South Africa and the United Kingdom; see also Beisinghoff (2009), p. 78; Ruggie (2007), para. 22 et seq. What is more, John Ruggie states in his 2007 report, that ‘simple laws of probability alone suggest that corporations will be subject to increased liability for international crimes in the future. They may face … criminal … liability depending on whether international standards are incorporated into a State’s criminal code’ (ibid., para. 27).
- 24.
See, in particular, the following ATS cases: Doe v. Unocal, 395 F.3d 932 (9th Cir. 2002); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2nd Cir. 2009); Bowoto v. Chevron Corp., 625 F.3d 1116 (9th Cir. 2010); Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011).
- 25.
See also Bradley (2012), p. 516.
- 26.
Concerning the question of which State is the home State and the host State, we have to take into account that corporations usually form part of larger transnational corporate groups. In the Kiobel case, e.g., the three defendants, i.e., (1) Royal Dutch Petroleum, (2) Shell Transport and Trading Company and (3) Shell Petroleum Development Company of Nigeria, all belong to the Shell group with Royal Dutch Petroleum and Shell Transport and Trading Company being holding companies of Shell Petroleum Development Company of Nigeria. The two holding companies, Royal Dutch Petroleum and Shell Transport and Trading Company, are incorporated in the Netherlands and the United Kingdom respectively whereas Shell Petroleum Development Company of Nigeria is a subsidiary incorporated in Nigeria. Thus, in the Kiobel case, Nigeria is the home State of Shell Petroleum Development Company of Nigeria and, at the same time, host State to Royal Dutch Petroleum and Shell Transport and Trading Company. Concerning the latter two corporations, the home State of Royal Dutch Petroleum are the Netherlands and the home State of Shell Transport and Trading Company is the United Kingdom (see Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, [2nd Cir. 2010], p. 124). Concerning the typical structure of a transnational corporate group operating in Nigeria’s oil and gas sector see Amao (2008), p. 94.
- 27.
According to the German law on government liability, individuals can recover damages from the government only, if the public official who acted unlawfully exercised governmental authority. In such a case, the public official himself cannot be held liable (cf. Art. 34 cl. 1 of the Basic Law; see, e.g., Ossenbühl and Cornils 2013, p. 119).
- 28.
In contrast, customary international law does not provide for a cause of action as far as it ‘does not entitle victims of violations of international law to a remedy against the individual who committed the violation’ (Vázquez 2012, pp. 532, 542, and 546).
- 29.
See supra in footnote 26.
- 30.
In this regard, the PCIJ’s judgment in the Lotus Case is somewhat outdated as far as the Court states that ‘[f]ar from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, [international law] leaves them in this respect a wide measure of discretion’ (PCIJ, The Case of the S.S. Lotus [France v. Turkey], 1927 PCIJ [ser. A] No. 10 [Sept. 7], p. 5, at 19).
- 31.
First, we do not attend to the enforcement of human rights within or by the host State in which the human rights violations occurred. Rather, and in accordance with this article’s title, we focus on extraterritorial enforcement, i.e., enforcement of human rights abroad or from abroad. Secondly, concerning civil lawsuits, we concentrate on transnational corporations, i.e., on legal persons, as potential defendants only. Thirdly, our analysis shall be restricted to State-based judicial mechanisms, i.e., enforcement of human rights through proceedings before national criminal or civil courts. This implies, on the other hand, that we do not use the term ‘enforcement’ in a narrow sense restricted to, e.g., enforcement of judicial judgments, but, rather, in a broader sense encapsulating, in particular, the making of judicial judgments.
- 32.
- 33.
See ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99, para. 61.
- 34.
See supra in and at footnote 24; Bradley (2012), p. 516.
- 35.
See ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99, para. 61.
- 36.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, ICJ Reports 2012, p. 99, para. 61. However, with regard to the facts of the case, the ICJ’s holding may be considered to be confined ‘to the context of litigation arising from armed activities on the territory of the forum state, based on a concern about the finality of post-war reparation agreements and the disruptive potential of unlimited claims against belligerent states’ (Keitner 2013, p 800).
- 37.
Within the EU, the doctrine of forum non conveniens is inapplicable. See ECJ, Case C-281/02, Owusu, 2005, ECR I-1383, para. 46, according to which a national court of an EU Member State is ‘preclude[d] … from declining the jurisdiction conferred on it by Article 2 of [the Brussels-Regulation] on the ground that a court of a non-[Member] State would be a more appropriate forum for the trial of the action even if the jurisdiction of no other [Member] State is in issue or the proceedings have no connecting factors to any other [Member] State’. In a very sweeping manner, the Dutch District Court of the Hague even held that ‘the forum non conveniens restriction no longer plays a role in today’s international private law’ (Judgment of January 30, 2013, case no./docket no. C/09/337050/HA ZA 09-1580, para. 4.6).
- 38.
- 39.
See, e.g., Sec. 32 of the German Code of Civil Procedure.
- 40.
See, e.g., Art. 34 cl. 1 of the German Basic Law in connection with Sec. 839 para. 1 cl. 1 of the German Civil Code.
- 41.
In Germany, e.g., international human rights treaties have the legal status of federal statutes (see BVerfGE 111, 307 [315, 317] = BVerfG, 2 BvR 1481/04, 14 October 2004, paras. 30–31, available at: http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104en.html).
- 42.
Concerning the typology of States’ human rights obligations see, e.g., De Schutter (2010), pp. 242 et seq.
- 43.
With regard to the ECHR see, e.g., ECtHR, Case of Catan and others v. Moldova and Russia, Appl. No. 43370/04, 8252/05, 18454/06, 19 October 2012, para. 106; Case of Hirsi Jamaa and others v. Italy, Appl. No. 27765/09, 23 February 2012, para. 74; with regard to the ICCPR and the ICESCR see, e.g., ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports, 2004, p. 136, paras. 111–112; with regard to the ICCPR see also Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 10 (CCPR/C/21/Rev.1/Add. 13, 26 May 2004).
- 44.
With regard to the ECHR see, e.g., ECtHR, Case of S.H.H. v. The United Kingdom, Appl. No. 60367/10, 29 January 2013, para. 69, concerning expulsion cases in which the person concerned may be treated in violation of the prohibition of torture abroad.
- 45.
Of course, the case may be different if the transnational corporation’s conduct is attributable to its home State because, e.g., the corporation was acting under the ‘effective control’ of that State (Art. 8 of the ILC Draft Articles on State Responsibility for Internationally Wrongful Acts; annex to General Assembly Resolution 56/83, Responsibility of States for internationally wrongful acts, 28 January 2001 [hereinafter: ILC Draft Articles on State Responsibility] in connection with ICJ, Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. United States of America], Merits, Judgment, ICJ Reports 1986, p. 14, para. 115; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro], Judgment, ICJ Reports 2007, p. 43, para. 400). Concerning the problem of attribution of human rights violations committed by transnational corporations to their home States see, e.g., McCorquodale and Simons (2007), pp. 606 et. seq.
- 46.
The case may be also different if the home State has aided or assisted its corporate nationals or the host State in committing human rights violations within the host State’s territory. See, e.g., McCorquodale and Simons (2007), pp. 611 et. seq.
- 47.
See, e.g., Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties under Article 9 of the Convention, UN Doc. CERD/C/CAN/CO/18, para. 17: ‘[T]he Committee encourages [Canada] to take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in Canada which negatively impact on the enjoyment of rights of indigenous peoples in territories outside Canada. In particular, the Committee recommends that the State party explore ways to hold transnational corporations registered in Canada accountable.’
- 48.
- 49.
According to Alston and Goodman (2012), p. 1495, this question is ‘[o]ne of the most controversial issues’.
- 50.
Human Rights Council, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, 13 February 2007 (A/HRC/4/35/Ad.1), para. 92.
- 51.
Human Rights Council, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, 13 February 2007 (A/HRC/4/35/Ad.1), para. 92.
- 52.
Human Rights Council, State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries, 13 February 2007 (A/HRC/4/35/Ad.1), paras. 84 et seq.
- 53.
ECtHR, Case of Al-Skeini and others v. The United Kingdom, Appl. No. 55721/07, 7 July 2011, para. 141.
- 54.
ECtHR, Case of Al-Skeini and others v. The United Kingdom, Appl. No. 55721/07, 7 July 2011, para. 133.
- 55.
ECtHR, Case of Al-Skeini and others v. The United Kingdom, Appl. No. 55721/07, 7 July 2011, para. 138.
- 56.
Cf. ECtHR, Case of Al-Skeini and others v. The United Kingdom, Appl. No. 55721/07, 7 July 2011, para. 141.
- 57.
- 58.
According to the 2005 World Summit Outcome, the ‘responsibility to protect’ refers to the most egregious human rights violations only, namely to ‘genocide, war crimes, ethnic cleansing and crimes against humanity’ (GA/Res. 60/1 [2005], paras. 138–139). However, the original concept ‘responsibility to protect’ seems to have a much broader scope ratione materiae. The starting point of the original concept is to think of ‘sovereignty as responsibility’ which ‘implies that the state authorities are responsible for the functions of protecting the safety and lives of citizens and promotion of their welfare’ (International Commission on Intervention and State Sovereignty 2001, para. 2.15). Thus, the sovereignty of States has a specific function (or purpose), viz. the ‘effective observance of human rights’ (International Commission on Intervention and State Sovereignty 2001, para. 2.20), without limiting this function to a finite set of only the most fundamental human rights guarantees. Actually, by way of an excursus, this modern functional understanding of State sovereignty correlates with the 18th century foundations of modern constitutional law and theory: see, e.g., the Declaration of Independence of 1776 (‘to secure these rights Governments are instituted among Men’) and Art. 2 of the Déclaration des droits de l’homme et du citoyen of 1789 (‘Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme.’).
- 59.
Admittedly, the proper concept of ‘responsibility to protect’ seems to focus more (albeit not only) on the question of under which preconditions the international community may adopt enforcement measures, in particular military measures, against States within which human rights violations occur (see, in particular: A more secure world: our shared responsibility. Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565, p. 8, paras. 199 et seq., p. 78, para. 55). In fact, also the considerations leading to the innovative ‘responsibility to protect’ approach start with the ‘intervention dilemma’ (see International Commission on Intervention and State Sovereignty 2001, para. 1.1). On the other hand, exercising prescriptive jurisdiction over extraterritorial conduct poses an ‘intervention’ problem as well.
- 60.
McCorquodale and Simons (2007), p. 624.
- 61.
ICJ, Corfu Channel Case, ICJ Reports 1949, p. 22.
- 62.
Concerning the obligation to prevent significant transboundary harm see, e.g., Art. 3 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities; Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10) (2001) (hereinafter: ILC Draft Articles on Prevention).
- 63.
See, e.g., Art. 2(d) ILC Draft Articles on Prevention; ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226, para. 29; Principle 2 of the Rio Declaration on Environment and Development of 1992; Principle 3 para. 1 of the UNEP Draft principles of conduct in the field of the environment for the guidance of States in the conservation and harmonious utilization of natural resources shared by two or more States of 1978; Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment of 1972.
- 64.
International Law Commission (2001), Art. 1, para. 9.
- 65.
- 66.
See supra at footnotes 50–57.
- 67.
See supra in and at footnotes 43–44, 54–55.
- 68.
See infra in footnote 112.
- 69.
- 70.
McCorquodale and Simons (2007), p. 620.
- 71.
McCorquodale and Simons (2007), pp. 621–622.
- 72.
See, e.g., McCorquodale and Simons (2007), pp. 621–623; Sornarajah (2010), pp. 149–152; see, however, also Alvarez (2011), pp. 371–372; for an extensive analysis of cases which pertain to the conflict between investment protection and human rights protection see Burkard (2013), pp. 122–173; Kneer (2013), pp. 166–193.
- 73.
- 74.
- 75.
The host State’s sovereignty would not be infringed, e.g., if the home State required its (corporate) nationals to abide by human rights norms belonging to the corpus of ius cogens (see Weschka 2006, pp. 630–631; see also McCorquodale and Simons 2007, p. 616 [footnote 122]). According to Papp (2013), pp. 246–273, the host State’s sovereignty is not impaired if both the host State and the home State are bound by the same international human rights treaties because both States are subject to the same obligations (e.g., the duty to protect); if, however, the home State acts in conformity with its extraterritorial duty to protect arising from an international human rights treaty which the host State is not a party to it depends on a balancing of the States’ interests whether the home State interferes unlawfully with the host State’ sovereignty.
- 76.
Concerning State immunity see supra at footnotes 33–36; concerning the doctrine of forum non conveniens see supra at footnotes 37–38.
- 77.
At this point, we consider it necessary to comment on the term ‘transnational corporation’. It is common knowledge that there is no uniform definition of what constitutes a ‘transnational corporation’ (see, e.g., Sub-Commission on the Promotion and Protection of Human Rights, Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, 26 August 2003 [UN Doc. E/CN.4/Sub.2/2003/12/Rev.2] [hereinafter: UN Norms], para. 20; OECD Guidelines on Multinational Enterprises 2011 Edition, p. 17; International Labour Office 2006, p. 1, para. 6). Nevertheless, the common denominator of the diverse efforts to define the term ‘transnational corporation’ seems to be that a transnational corporation forms a conglomerate of multiple interrelated companies operating in different States. Typically, these distinct companies constitute entities with separate legal personalities. Defining the term ‘transnational corporation’ as a plurality of different, albeit somehow interconnected, legal persons is of no use at all in a legal context, though. This holds particularly true with regard to the question of civil liability of transnational corporations for human rights violations committed abroad. Damage claims can be brought against one or more (natural or) legal persons only but not against a defendant without legal personality of its own. Hence, our understanding of a transnational corporation is that a transnational corporation is a legal person which operates outside its home State in one or more host States either itself or through subsidiaries which are incorporated in the host State(s) and, thus, form discrete legal persons. In the latter case, only the subsidiaries’ parent corporation constitutes the ‘transnational corporation’. In the Kiobel case, e.g., Shell Petroleum Development Company of Nigeria is the Nigerian subsidiary whereas both Royal Dutch Petroleum and Shell Transport and Trading Company being the holding companies of Shell Petroleum Development Company of Nigeria form the parent corporations and, thus, according to our definition, ‘transnational corporations’ (see also supra footnote 26).
- 78.
See, e.g., Art. 2, 60 of the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 12, 16.1.2001, p. 1; so called ‘Brussels I-Regulation’). See also, e.g., Grabosch (2013), pp. 78–79; Massoud (2013), p. 45.
- 79.
See, e.g., Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, p. 40; so called ‘Rome II-Regulation’). According to the general rule of Art. 4 para. 1 of the Rome II-Regulation, a German court would have to apply the tort law ‘of the country in which the damage occurs’, i.e., usually, the host State’s law of torts. See, e.g., Massoud (2013), pp. 46–47. However, even when applying the host State’s tort law in accordance with Art. 4 para. 1 of the Rome II-Regulation, German courts may have to apply German norms ‘in a situation where they are mandatory irrespective of the law otherwise applicable’ (Art. 16 of the Rome II-Regulation). See Grabosch (2013), pp. 85–87. By way of example see the District Court of the Hague’s judgment of January 30, 2013, case no. / docket no. C/09/337050 / HA ZA 09-1580, para. 4.5, according to which Nigerian tort law had to be applied in the case Akpan et al. v. Royal Dutch Shell Plc. et al. concerning damages caused by oil spills from oil facilities operated by Shell Petroleum Development Company of Nigeria Ltd. near Ikot Ada Udo in Nigeria.
- 80.
‘tort …, committed in violation of the law of nations’.
- 81.
See, e.g., Tomuschat (2008), pp. 107 et seq.; see also, with regard to norms of International Humanitarian Law, AFPS and PLO v. Alstom and Veolia (Versailles Ct. App.), March 22, 2013, 52 ILM 1161 (2013), pp. 1178–1181. It is revealing that both the Commission on Human Rights and the ECOSOC did not back the Sub-Commission on the Promotion and Protection of Human Rights’ ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’ (UN Doc. E/CN.4/Sub.2/2003/12/Rev.2) but rather denounced this document as a ‘draft proposal’ which ‘has no legal standing’ (Commission on Human Rights Decision 2004/116: Responsibilities of transnational corporations and related business enterprises with regard to human rights, in: Commission on Human Rights, Report to the Economic and Social Council on the Sixtieth Session of the Commission, 22 April 2004 [UN Doc. E/CN.4/2004/L.11/Add.7], p. 82; ECOSOC Decision 2004/279 Responsibilities of transnational corporations and related business enterprises with regard to human rights, in: Economic and Social Council, Resolutions and Decisions adopted by the Economic and Social Council at its substantive session of 2004, 6 August 2004 [UN Doc. E/2004/INF/2/Add.2], p. 195). In fact, the UN Norms seemed to imply that transnational corporations are duty bearers of international human rights obligations on a more or less equal footing with States. See, e.g., the harsh criticism by Ruggie (2006), paras. 56 et seq. By way of exception, the prohibitions of slavery and forced labor may be directly binding on private actors, Köster (2010), pp. 140–141.
- 82.
Concerning the ATS, see infra at footnote 117.
- 83.
Another exception might apply if the transnational corporation (only) participates in human rights violations amounting to international crimes committed by the host State. In such cases of corporate complicity, the human rights violations committed by State organs could be also attributable to the transnational corporation. Of course, as John Ruggie, the Special Representative of the UN Secretary-General, has already stated in his 2007 report, ‘[m]ere presence in a country and paying taxes are unlikely to create liability’ (Ruggie 2007, para. 30). However, providing assistance to State organs which commit grave human rights violations might trigger civil liability of the transnational corporation.
- 84.
See, e.g., Ruggie (2007), para. 19.
- 85.
Cf. Ruggie (2006), para. 61.
- 86.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, at 120 (2nd Cir. 2010); of the same opinion, e.g., Bradley (2012), p. 513.
- 87.
The latest changes to the OECD Guidelines on Multinational Enterprises have been substantially influenced by John Ruggie’s Guiding Principles of 2011 (UN Doc. A/HRC/17/31 [2011]); see OECD Guidelines on Multinational Enterprises 2011 Edition, p. 3.
- 88.
Ruggie (2011), p. 13.
- 89.
Ruggie (2008), para. 54.
- 90.
Ruggie (2008), para. 56.
- 91.
See Ruggie (2008), para. 73.
- 92.
In addition, depending on the applicable national law of torts, transnational corporations could be held liable for human rights violations committed by their subsidiaries within the host State if the national tort law provides for rules according to which the conduct resulting in human rights violations is attributable to the transnational corporation as the subsidiary’s parent corporation. In addition, the parent corporation could be held liable for aiding and abetting the human rights violations committed by its subsidiary. See, e.g., Buszewski (2012), p. 205; see also Weschka (2006), p. 634. In particular, the District Court of the Hague held that ‘there has been an international trend to hold parent companies of multinationals liable in their own country for the harmful practices of foreign (sub-)subsidiaries’ (Judgment of January 30, 2013, case no. / docket no. C/09/337050 / HA ZA 09-1580, para. 4.5).
- 93.
See supra at footnote 70.
- 94.
See, in particular, Ruggie (2011), pp. 15 et seq.
- 95.
See Grabosch (2013), pp. 89–90, and 98; see, however, also Buszewski (2012), p. 205; see additionally AFPS and PLO v. Alstom and Veolia (Versailles Ct. App.), March 22, 2013, 52 ILM 1161 (2013), p. 1182: ‘The Global Compact, as well as the codes of ethics, express values that the corporations wish their staff to apply … without creating obligations or commitments for the benefit of third parties who may seek compliance [with such documents]’. For a comprehensive account and analysis of so called ‘corporate social responsibility’ standards see, e.g., Kaltenborn and Norpoth (2014).
- 96.
Human Rights Council, Human rights and transnational corporations and other business enterprises, UN Doc. A/HRC/Res/17/4 (2011).
- 97.
United Nations (2012).
- 98.
See supra footnote 87.
- 99.
In particular, according to Tomuschat (2008), p. 374, the universality principle may be inapplicable. In contrast, Vázquez (2012), pp. 542 et seq., opines that the principle of universal jurisdiction is not restricted to the field of criminal law. Even if a national court relied on the principle of universal jurisdiction for the purposes of establishing subject-matter jurisdiction, the court would have to affirm personal jurisdiction as well (Tomuschat 2008, pp. 376).
- 100.
According to Sec. 23 cl. 1 of the German Code of Civil Procedure, German courts are also competent with regard to claims against defendants who are not domiciled in Germany but whose assets are located within the court’s circuit. However, the Federal Court of Justice (Bundesgerichtshof) held that the German courts’ jurisdiction on the basis of Sec. 23 cl. 1 of the German Code of Civil Procedure depends implicitly on whether the case has a “sufficient relationship” to Germany (see BGHZ 115, 90, at 94: ‘[D]er Vermögensgerichtsstand [kann] nur gegeben sein …, wenn der Rechtsstreit einen hinreichenden Bezug zum Inland hat’).
- 101.
See supra at footnotes 37–38.
- 102.
Another legal basis for damage claims arising from human rights violations committed abroad is the Torture Victim Protection Act (TVPA) of 1991 (106 Stat. 73, note after 28 U.S.C., § 1350); see Alston and Goodman (2012), pp. 1144–1145, and 1175. However, under the TVPA, only individuals may be sued (Mohamad v. Palestinian Authority, 132 S.Ct. 1702 [2012], pp. 1708 and 1710).
- 103.
Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).
- 104.
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
- 105.
See Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. (S.Ct. 2013), 569 U.S.__ (2013) = 133 S.Ct. 1659 (2013).
- 106.
- 107.
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), p. 732.
- 108.
According to Richardson (2012), the Founders’ understanding of the law of nations should not be restricted to Emer de Vattel’s teachings as presented in his famous treatise ‘Le droit des gens’ of 1758.
- 109.
See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), p. 732 by reference to In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467 (1994), p. 1475 (9th Cir. 1994).
- 110.
See supra at footnote 4.
- 111.
Cf. Human Rights Committee, General Comment No. 24, para. 8: States must not ‘arbitrarily deprive persons of their lives, … presume a person guilty unless he proves his innocence’ or deny ‘the right to a fair trial’.
- 112.
For a comprehensive, though not all-embracing, list of human rights norms having acquired the status of customary international law see, e.g., American Law Institute (1987), § 702.
- 113.
See American Law Institute (1987), § 702(e).
- 114.
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), p. 738.
- 115.
American Law Institute (1987), § 702(c).
- 116.
Human Rights Committee, General Comment No. 24, para. 8.
- 117.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010), p. 145.
- 118.
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 13 (S.Ct.2013), 569 U.S. __ (2013) = 133 S.Ct. 1659 (2013), p. 1669.
- 119.
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 14 (S.Ct. 2013), 569 U.S.__ (2013) = 133 S.Ct. 1659 (2013), p. 1669.
- 120.
Whether such a genuine connection exists depends on a mixture of parameters pointing to U.S. territory such as the place where the alleged conduct resulting in human rights violations occurred, the claimants’ place of residence, the corporate defendants’ siège social, the fact that the defendant’s (e.g., economic) activities within U.S. territory benefitted from the exploration and exploitation of natural resources in the course of which the human rights violations were committed, etc. Based upon the Court’s reasoning, it seems especially decisive that the ‘relevant conduct’, albeit not altogether but in part, ‘took place’ within the U.S. (see Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 14 [2013], 569 U.S.__ [2013] = 133 S.Ct. 1659 [2013], p. 1669). In this regard, mere ‘corporate presence’ in the territory of the U.S. as such does not suffice, though (Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 14 [S.Ct. 2013], 569 U.S.__ [2013] = 133 S.Ct. 1659 [2013], p. 1669). With regard to Morrison v. National Bank of Australia Ltd., No. 08-1191, slip op. p. 17 (S.Ct. 2010) ‘some domestic activity … involved in the case’ is not enough. In the light of Justice Alito’s concurring opinion, the ‘domestic conduct’ must be such that it is in itself ‘sufficient’ to violate international law (Alito, J., concurring, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 2 [S.Ct. 2013]). Interestingly enough, the U.S. Supreme Court granted the petition to a writ of certiorari in the ATS (and TVPA) case of Daimler AG v. Bauman et al., No. 11-965, on April 22, 2013 (http://www.supremecourt.gov/orders/courtorders/042213zor_k5fl.pdf). According to the petition, the question presented to the Supreme Court is ‘whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State’. On January 14, 2014, the US Supreme Court held that US courts are barred from exercising personal jurisdiction over Daimler AG because ‘Daimler is not ‘at home’ in California, and cannot be sued there for injuries plaintiffs attribute to [Mercedes-Benz] Argentina’s conduct in Argentina’ (Daimler AG v. Bauman et al., No. 11-965, slip op. p. 3 (S.Ct. 2014), 571 U.S.__ (2014) = 134 S.Ct. 746 (2014), p. 751). For an analysis of this decision and its ramifications see, e.g., Zekoll and Schulz (2014), pp. 326–328.
- 121.
The aim and purpose of the ‘presumption against extraterritoriality’ is to ‘protect against unintended clashes between our laws and those of other nations which could result in international discord’ (Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 4 [S.Ct. 2013], 569 U.S.__ [2013] = 133 S.Ct. 1659 [2013], p. 1664, by reference to EEOC v. Arabian American Oil Co., 499 U.S. 244 [1991], p. 248). Thus, the ‘presumption against extraterritoriality’ serves to curtail “the danger of unwarranted judicial interference in the conduct of foreign policy” (Kiobel v. Royal Dutch Petroleum Co., No. 10-1491, slip op. p. 5 [S.Ct. 2013], 569 U.S.__ [2013] = 133 S.Ct. 1659 [2013], p. 1664). Hence, the ‘presumption against extraterritoriality’ might be rebutted if the genuine connection between the claims and US territory is so strong that ‘international discord’ and ‘judicial interference in the conduct of foreign policy’ cannot be reasonably expected as a result of the exercise of extraterritorial jurisdiction by U.S. courts because the exercise of extraterritorial adjudicative jurisdiction is plainly plausible.
- 122.
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), p. 733.
- 123.
Hwang Geum Joo v. Japan, 413 F.3rd 45 (2005), p. 53.
- 124.
In addition, the doctrine of personal immunity may bar plaintiffs from suing individuals such as sitting heads-of-State (see, e.g., Habyarimana v. Kagame, 696 F.3d 1029 (10th Cir. 2012), pp. 1032–1033). See also ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports 2002, p. 3, paras. 53–54, and Keitner (2013), p. 802, who rightly states that ‘[a]lthough the ICJ’s decision [in the Arrest Warrant case] related to criminal proceedings, its rationale would also apply to civil proceedings and other measures of constraint’. In contrast, the scope of functional immunity from civil actions is quite contested. See Keitner (2013), pp. 806 et seq.
- 125.
Stephens (2002), p. 452.
- 126.
See supra at footnote 23.
- 127.
Nevertheless, Germany, e.g., might keep aloof from such legal developments with regard to the fundamental criminal law principle of personal individual guilt. See, e.g., Buszewski (2012), p. 204.
- 128.
Cf., e.g., Ruggie (2007), paras. 20–21. See also Köster (2010), pp. 182–187 according to whom ‘primary’ prohibitions of a certain conduct have to be distinguished from ‘secondary’ rules which give rise to criminal liability if ‘primary’ prohibitions are disregarded. Thus, even though corporate criminal liability may not exist so far as a ‘secondary’ rule on the international level, ‘primary’ prohibitions may, nevertheless, apply to (transnational) corporations.
- 129.
Art. 6 of the Statute of the International Criminal Tribunal for the former Yugoslavia; Art. 5 of the Statute of the International Tribunal for Rwanda; Art. 25(1) of the Rome Statute of the International Criminal Court. See also, e.g., Bradley (2012), p. 513.
- 130.
Kamminga (2008 ff), para. 9.
- 131.
The German Criminal Code (CC), e.g., explicitly provides that ‘German criminal law shall apply to … offences committed abroad … if the offender … was German at the time of the offence’ (Sec. 7(2)(1) CC). In addition, it also lays down that ‘German criminal law shall apply to offences committed abroad against a German’ (Sec. 7(1) CC).
- 132.
- 133.
Kamminga (2008 ff), para. 14.
- 134.
Art. 5(a)–(c), 6–8 of the Rome Statute of the International Criminal Court.
- 135.
Art. 7(1)(a), (e) and (g) of the Rome Statute of the International Criminal Court.
- 136.
See Art. 12(1), (2)(a) of the Rome Statute of the International Criminal Court.
- 137.
See Art. 17 of the Rome Statute of the International Criminal Court.
- 138.
Art. 17(1)(a) of the Rome Statute of the International Criminal Court.
- 139.
Art. 14(1) of the Rome Statute of the International Criminal Court.
- 140.
Art. 27(2) of the Rome Statute of the International Criminal Court.
- 141.
- 142.
- 143.
If heads of State or government were involved in human rights violations amounting to international crimes, a foreign court would have to adhere to the principle of personal immunity. On the other hand, heads of State or government (as well as ministers for foreign affairs and, perhaps, even other ministers, e.g., the minister for defense) enjoy personal immunity only whilst holding office. Thus, former heads of State or government (and former ministers) may face criminal prosecution after their term of office. In its Yerodia judgment, however, the ICJ limited this exception to personal immunity to ‘crimes committed during [his or her] period of office in a private capacity’ (ICJ, Arrest Warrant of 11 April 2000 [Democratic Republic of the Congo v. Belgium], Judgment, ICJ Reports 2002, p. 3, para. 61). The ICJ was criticized for omitting another exception according to which personal immunity was also inapplicable in cases of (serious) international crimes. See Cryer et al. (2010), p. 547.
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Dederer, HG. (2015). Extraterritorial Possibilities of Enforcement in Cases of Human Rights Violations. In: Bungenberg, M., Hobe, S. (eds) Permanent Sovereignty over Natural Resources. Springer, Cham. https://doi.org/10.1007/978-3-319-15738-2_11
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