THE ACCOUNTABILITY OF NON-STATE ACTORS FOR HUMAN RIGHTS VIOLATIONS: THE SPECIAL CASE OF TRANSNATIONAL CORPORATIONS
Traditionally, human rights have been thought of as providing protection to individuals from abuses committed by states. However, more recently, non-state actors have rose as a new class of human rights offenders, and the need to regulate their conduct has become imperative. This paper suggests that enforcement and respect of human rights law would be more effective if transnational corporations would be held accountable under international law for human rights breaches.
The paper starts by briefly presenting the increasing role of transnational corporations and their impact on human rights. It then analyzes the place of non-state actors in the international society. The paper further shows that in certain situations, states can be held accountable for human rights violations committed by non-state actors. It also addresses the existing approaches towards direct corporate responsibility. The paper concludes that the corporate entities’ potential impact on human rights renders corporate responsibility necessary.
During the past fifty years, corporate human rights abuses have raised. Egregious examples include “the involvement of the United Fruit Company and ITT in overthrowing elected governments in Guatemala and Chile. Corporations have also participated on a massive scale in the exploitation of natural resources and corruption of national governments.” In the pursuit of profit, and sometimes with the support of governments, corporations violate rights such as: the right to life, to health, labor rights and environmental norms.
To date, transnational corporations have had no obligations under international law. The lack of accountability is often considered a consequence of the traditional state-centred approach of international law, said to be no longer capable of effectively protecting human rights in view of the changing international system, as evidenced by several phenomena: globalization, privatization of public sectors and the fragmentation of states. One of the most tangible effects of the globalization is the weakening of the barriers traditionally faced by transnational corporation in broadening their field of activity in foreign states. A second phenomenon is the privatization of the public sector and of public activity, which results in a fading of the current individual/state or private/public conception in human rights law. The loosening private/public partition is particularly pronounced in the privatization of certain areas of the public sector, which has led to the involvement of non-state entities in functions usually exercised by state organs. The most commented example of a situation in which traditional state functions have been delegated to private companies is peacekeeping, security and the running of detention facilities in post-conflict situations. Privatization would not be problematic in se were it not that it often goes hand in hand with decreased accountability.
In respect of human rights law obligations in particular, these factual changes in the international system have created a gap which needs to be filled through the imposition of international obligations directly on non-state actors. Transnational corporations as non-state actors, should be held accountable for violations of human rights alongside states.
A highly debated issue is whether the division between state and non-state actors is an outdated vision of international law, and whether the subject/object division in current international law needs to be maintained, in particular in terms of the capacity to be the addressee of international legal obligations. The ICJ’s Reparation for Injuries Advisory Opinion leaves open the possibility of reconsidering the categories of subjects in international law. Moreover, international law does not pose any significant impediment to recognition of duties beyond those of states.
However, despite the growing importance of non-state actors, their role in international law remains limited. Non-state actors’ participation in international law is very restricted, especially in view of the absence of international duties addressed to them.
Traditionally, human rights have been intending to provide protection to individuals from abuses committed by states. The state not only bears a duty to respect the human rights of the individuals on its territory, but also has a duty to ensure that private actors do not violate those rights. This has been explicitly included in the International Covenant on Civil and Political Rights (ICCPR), which gives states the obligation “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant.” Human rights thus have, strictly speaking, no direct horizontal effect, in the sense of being applicable, as a matter of international law, in relations between individuals (and/or corporations).
Non-state actors cannot therefore be said to be the direct holders of human rights obligations under international law. The obligations individuals and corporations have are essentially a matter of domestic civil or criminal law, backed by the international legal obligation of the state to ensure effective protection of the human rights of the individuals under its jurisdiction. 
The only generally accepted exceptions to these principles are several obligations of individuals, mainly in the area of international criminal law. Under these rules of international law individuals have, for example, the direct obligation not to commit genocide, war crimes and crimes against humanity. The other human rights obligations of individuals towards other individuals remain essentially a matter of domestic rather than international law.
The impunity from which transnational corporations benefit in foreign countries can either be traced back to local governments’ unwillingness to protect human rights or to their inability to ensure that protection effectively. In light of the factual developments discussed above, certain corporations have dwarfed many states in terms of economic power. Under those circumstances, states in which such corporations are willing to invest often lack the economic incentives to respect the human rights of their citizens, especially in the areas of labor rights, environmental law and other rights protecting the physical and mental health of individuals. However, such incapacity or unwillingness does not imply the non-existence of the legal obligations of states to ensure respect for human rights within their territories.
a) Host State Responsibility
In the national sphere, the host state has both an obligation to respect the human rights of the individuals residing within its territory, and a duty to ensure that human rights are respected. This set of obligations and the essentially vertical application of international human rights has been confirmed in case law, for instance, in the Velasquez Rodriquez v. Honduras case where it was held that: “An illegal act which violates human rights and which is initially not directly imputable to a State 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.”
The International Law Commission’s work of the law of State responsibility affirms that the conduct of private individuals will not be considered as an act of the State; however the State is responsible if it fails to carry out an international obligation to act. The consequence is that failure to control private violations of human rights or acquiescence in human rights violations committed by non-State actors renders the State as guilty.
b) Home State Responsibility
International law is relatively clear on home state responsibility for the actions of its nationals abroad, individuals and corporations. To date, no such obligation exists under international law, both in the sense of attribution of the conduct in question to the state and in terms of an obligation for home states to control the activity of their corporations abroad. According to the ARSIWA, state responsibility can only be established when one of the state’s organs acting in its capacity breaches a rule of international law. In accordance with the same Articles, one can argue that when a corporation is directed or controlled by a state in carrying out its conduct, the state can be held responsible.
State responsibility in these cases is, however, only the consequence of the attribution of the conduct of a corporation to the state, because of the control exercised by that state. In those circumstances, the corporation is viewed as a de facto organ of the state, rather than as a purely private entity. These circumstances cannot therefore be extended to any situation in which a corporation breaches human rights in a foreign state.
2. Trends in Favor of Corporate Obligations
Unlike international organizations, it is generally admitted that corporations do not have international legal personality. Corporations therefore cannot be seen as having rights and duties under international law, nor can obligations be imposed on corporations without granting them a status under international law. The absence of international legal personality poses a problem in ensuring that corporations have direct human rights obligations under international law. It is clear today that transnational corporations cannot be held directly accountable for violations of human rights law. However, in the last decades there have been several approaches towards direct corporate responsibility and a trend in favor of corporate obligations.
Directly imposing human rights and obligations on corporations is often seen as the remedy for countering the lack of capacity or willingness of the state to ensure effectively respect for human rights in its territory. As already mentioned, there is to date no international legally binding instrument that imposes direct obligations on corporations. There is, however, a great number of non-binding instruments, or so-called “soft law”, such as the Global Compact, the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, the OECD Guidelines for Multinational Enterprises, etc.
Such conventions can be an effective tool for ensuring the regulation of certain activities throughout the world, but they do not impose any obligations directly on corporations. “Soft law” can of course be guidelines for future changes in the law, but as it stands today, it is not binding under international law, and cannot therefore be interpreted as an acceptance of corporate human rights obligations.However, these non-binding standards, codes of conduct and other such norms are often relied upon to show an evolution in acceptance of the international responsibility of transnational corporations for human rights obligations violations.
It is worth noting that a regime of non-state duties is emerging on the basis of international criminal law. In the aftermath of World War II, the Nuremberg Military Tribunal in the I.G. Farben Trial treated the corporate defendant, Farben, as a legal entity, capable of violating the laws of war. In the international arena there are some treaties, such as the Basel Convention on Hazardous Wastes, which defines illegal traffic of waste as ”criminal” (Article 4(3)), and more importantly, expressly addresses corporate entities by defining the person violating the provisions of the Convention as ”any natural or legal person” (Article 2(14)). The same pattern is followed by the UN Convention against Transnational Organized Crime. This development recognizes that corporations can commit crimes.
Such criminalization of corporate behavior could bear the conclusion that there are no theoretical barriers to applying laws of war, humanitarian law, and international human rights law to corporations.
The existence of municipal laws granting a forum for claims against foreign corporations, such as the US Alien Tort Claims Act, (ATCA) has been claimed as evidence of the fact that corporations can be held responsible for human rights violations as matter of international law. Under the ATCA corporations are liable for violations of norms such as the prohibition of genocide, slavery and war crimes. Moreover corporations can be held liable for human rights violations when they act in complicity with state agents. The concept of corporate liability under the ATCA has been upheld in decisions such as: Doe I vs. Unocal Corp. or Beanal vs. Freeport where the courts found that a corporation can be held liable for slavery, forced labor or genocide. These cases are evidence of the trend toward corporate responsibility. However, the ATCA principles cannot simply be transferred to the international arena and they do not directly impose obligations under international law on corporations.
This paper aimed at showing that the conduct of non-state actors can give rise to human rights violations to a greater extent than expected. Despite different approaches towards direct corporate responsibility, transnational corporations, under the current conception of international law, cannot be seen as having international rights and duties. In order to effectively protect human rights, the impunity of transnational corporations should be countered. The most important task is to ensure that the desire for profit does not permit corporate human rights abuses and to find effective mechanisms to enforce norms imposing duties upon transnational corporation. In this sense, the cooperation of both host and home states is crucial. Another step that could be considered is the creation of a World Human Rights Court.
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 Clapham, supra note 2, at 12.
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 Ibid., at 72.
 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ Rep. at 174.
 J. H. Knox, Horizontal Human Rights Law, 102 American Journal of International Law (2008), at 2.
 ICCPR, art. 2.
 Brabandere, supra n. 5, at 74.
 Brabandere, supra n. 5, at 74.
 Ibid., at 75.
 P. Alston, Non-state Actors and Human Rights, New York: Oxford University Press, (2005), at 170.
 Stephens, supra n. 1 at 54.
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 Velásquez Rodríguez case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), para. 172.
 ILC Articles on the Responsibility of States for Internationally Wrongful acts, art. 11, (hereinafter ARSIWA).
 S. Danailov, The Accountability of Non-State Actors for Human Rights Violations: The Special Case of Transnational Corporations, available at: http://www.humanrights.ch/upload/pdf/000303_danailov_studie.pdf, (Danailov).
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 ARSIWA, art. 4.
 Ibid., art. 8.
 De Brabandere, at 78.
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 A. Adeyeye, Corporate Responsibility in International Law: Which Way to Go?, 11 Singapore Year Book of International Law (2007) at 141.
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 De Brabandere, at 82.
 V. Engstrom, Who is Responsible for Corporate Human Rights Violations?, available at: http://web.abo.fi/instut/imr/norfa/ville.pdf , at 28, (hereinafter Engstrom).
 Engstrom, supra n. 31, at 29.
 Brabandere, supra n. 5, at 83.
 Doe I vs. Unocal Corp., 963 F.Supp. at 891.
 Beanal vs. Freeport-McMoran Inc., 969 F. Supp., at 372.
 Ratner, supra n. 31, at 450.
 M. Nowak, The Need for a World Court for Human Rights, 7 Human Rights Law Review, (2007), at 251.