HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS

HUMAN DIGNITY AND CORPORATE ACCOUNTABILITY FOR HUMAN RIGHTS VIOLATIONS By Dr Melba K Wasunna, BA LAW LLB SJD Abstract This article shall attempt to build a new jurisprudential and practical approach to understanding the notion of human dignity in relation to corporate human rights violations My aim is to show that human dignity represents a coherent and progressive approach to dealing with the threats to human rights posed by multinational corporations (MNCs) in modern times The article begins by briefly discussing preliminary issues of whether MNCs are capable of bearing international human rights obligations and if so, whether such obligations actually exist in current international law Concluding that any such claims are tenuous at best, the article then proceeds to conduct an in-depth examination of the meaning and value of the notion of human dignity in modern philosophy It then goes on to illustrate how the concept might facilitate the establishment of a binding relationship in international law between MNCs and human rights norms This article ultimately concludes that human dignity is the best, if not the only, available ground for the development of international legal accountability for MNC human rights abuses Key Words: Multinational corporations, Human dignity, Ruggie, Human rights, International human rights law, Corporate accountability 1 INTRODUCTION The international human rights framework was conceived on the assumption that States can and control all the activities of all individuals and entities operating within their respective jurisdictions.1 Accordingly, some have contended that the protection of human rights is the sole responsibility of the State such that any infringement of rights from non-State entities falls within domestic jurisdictions to be pursued under national laws This view is succinctly stated by McCorquodale as follows: International human rights law, for all its diversity and size, places direct legal obligations only on states The international human rights law system is a state-based system, a system in which the law operates in only one area: state action It ignores actions by nonstate actors, such as transnational corporations Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and control all their activities.3 However, the advent of globalization in the last few decades has spurred the growth of multinational corporations (“MNCs”), which are business entities with the ability to operate on the global arena and transcend the regulatory capacity of a single State Although the term “MNC” has been used extensively in academic literature; there is currently no universally agreeable definition.5 In this paper, the term MNC will be used to refer to an economic enterprise that owns, controls or manages operations or productions in two or more countries, whether its Adam McBeth, ‘Human Rights in Economic Globalisation’ in Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human Rights Law (Edward Elgar, 2010) 139 See also, Robert McCorquodale ‘Human Rights and Global Business’ in Stephen Bottomley and David Kinley (eds) Commercial Law and Human Rights (Dartmouth Publishing, 2002) 92 Robert McCorquodale and Penelope Simons ‘Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 The Modern Law Review 598, 605 Robert McCorquodale ‘Overlegalizing Silences: Human Rights and Nonstate Actors’ (2002) 96 American Society International Law Proceedings 381, 384 For a general discussion on the origin and development of MNCs over the last few decades, see Peter T Muchlinski Multinational Enterprises and the Law (Oxford University Press, 2nd Ed, 2007) 8-44 See also, Emeka Duruigo ‘Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring Challenges’ (2008) Northwestern Journal of International Human Rights 222, 229-231 It should be noted that literature on this subject describes MNCs in a variety of interchangeable terms such as transnational corporations (TNCs), multinational enterprises (MNEs), global businesses or international corporations According to Jenks, the lack of an agreed authoritative definition of an MNC attests to the fact that “it has no coherent existence as a legal entity; it is a political and economic fact which expresses itself in a bewildering variety of legal forms and devices” C.W Jenks ‘Multinational Entities in the Law of Nations’ in W Friedman, L Henkin and O Lissitzyn (eds) Essays in Honor of Phillip C Jessup ( Columbia University Press, 1972), 80 actions are directed by a head office in a single State or by various control systems across the globe.6 This definition is predicated on the modern corporate enterprise theory, which allows all constituent corporations that are part of an integral business group to be treated as a single economic unit for the purposes of attaching liability The theory relies on the concept of ‘control’ between a parent company and its subsidiaries, which may take the form of holding a majority of the shares or the power of one entity to control or direct the management and policies of another entity.8 While MNCs can and facilitate the enjoyment of human rights for a wide range of people, the negative impact that their operations have on human rights is also well documented MNCs, particularly those with operations in developing countries, have been associated with violations of human rights such as labour rights (providing poor working conditions, including poor wages), the right to health (polluting the environment, which affects access to clean water), and the rights to life, land, housing and adequate living standards, among others Vulnerable individuals, whose human rights have been adversely affected by the MNC’s activities, have little or no legal redress against the corporation under their country’s domestic laws 10 The result International Labour Organisation (ILO) Tripartite Declaration on Multinational Enterprises and Social Policy (ILO, 4th ed, 2006) para 6; Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises (OECD Publishing, 2011) ‘Concepts and Principles’ Part 1, para See also, Christine Baez ‘Multinational Enterprises and Human Rights’ (1999-2000) University of Miami International & Comparative Law Review 183, who analyses the definition of an MNC from various perspectives such as ownership, location of production or operation, location of headquarter, size, and percentage of sales made in foreign countries Phillip I Bloomberg ‘The Increasing Recognition of Enterprise Principles in Determining Parent and Subsidiary Corporation Liabilities’ (1996) 28 Connecticut Law Review 295, 296-297 Bloomberg contrasts the doctrine against the traditional ‘corporate entity theory’, which treats each corporation as a separate legal entity with its own rights and duties Bloomberg Note 7, 298 David Kinley Civilizing Globalisation: Human Rights and the Global Economy (Cambridge University Press, 2009) 148-149 See also, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises Interim Report E/CN4/2006/97 (22 February 2006) 10 Amnesty International ‘Oil in Sudan: Deteriorating Human Rights’ AFR 54/01/00ERR (2000) 2-4 Available at http://www.amnesty.org/en/library/asset/AFR54/001/2000/en/82ee4ed1-dfc5-11dd-8e1769926d493233/afr540012000en.pdf (Last visited on 11 June 2012); Jenness Duke ‘Enforcement of Human Rights on Multinational Corporations: Global Climate, Strategies and Trends for Compliance’ (2000) 28 Denver Journal of International Law and Policy 339, 340-341 has been what Justice Ian Binnie accurately describes as “an unfair imbalance between the price paid by the first world and the real costs incurred in the third world”.11 The issue was most recently propelled to the forefront of the global debate in 2008 when the United Nations (“UN”) Human Rights Council unanimously welcomed a conceptual framework known as the Protect, Respect and Remedy: a Framework for Business and Human Rights proposed by John Ruggie, the Special Representative of the UN Secretary-General on the issue human rights, transnational corporations and other business enterprises 12 This was followed, in 2011, by Ruggie’s Guiding Principles on Business and Human Rights, which the UN Human Rights Council also unanimously endorsed as practical steps for implementing the 2008 framework.13 Ruggie’s framework has been instrumental in clarifying the wider debate on corporate social responsibility.14 For example, the thorny question as to whether corporations should respect internationally recognized human rights, irrespective of whether domestic systems provide for effective enforcement of such responsibility, can now be answered with an unequivocal ‘yes’ 15 However, what remains deeply contested in the legal fraternity is the assertion by some human rights commentators that such corporate responsibility can, and should, be legally enforceable under international human rights law In other words, a lacuna currently exists as to how transnational violations of human rights by MNCs can be legally addressed at the international level particularly in situations where a State is unable or unwilling to address such abuses 11 Justice Ian Binnie ‘Confronting Corporate Complicity in International Human Rights Abuses’ (International Commission of Jurists, Conference on Legal Remedies for Human Rights Abuse Involving Corporations, 2010) Available at http://www.icj.org/dwn/img_prd/FINAL-BinnieJ-ICJSpeakingNotes_092310.pdf (Last visited on 11 November 2013) 12 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises Protect, Respect and Remedy: A Framework for Business and Human Rights UN Doc A/HRC/8/5 (7 April 2008) 13 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework UN Doc A/HRC/17/31 (16 June 2011) According to Ruggie, while the 2008 framework and the Guiding Principles are basically two sides of the same coin, they in fact fulfil different objectives as follows: the 2008 framework provides the conceptual underpinnings whereas the Guiding Principles, as the name suggests, provide practical guidance on steps to be taken in order to foster business respect for human rights (Ruggie 2011, 129) 14 Ibid 15 2008 Framework Note 12, para 24 This paper posits that the concept of human dignity constitutes the best, if not the only, available ground for the development of international obligations for MNCs with respect to human rights.16 In fact, the principle of respect for human dignity has played an important legal role in several social and political movements of the 20th century including the civil rights movements in the United States, the advancement of women’s rights in the workplace, discussions on the ethics of biomedical research, the issue of euthanasia and the issues of genetic manipulation and human cloning, among others.17 It is the concept’s success, amongst other things, in these human rights movements that informs my argument that it is the appropriate legal (and philosophical) bedrock to rely upon in order to create binding obligations in international human rights law for corporations My argument will proceed in the following three separate, but related, queries: (i) can an intimate relationship be established between MNCs and international human rights? In other words, are MNCs capable of bearing human rights obligations under international law (the “Possibility” Issue)?; (ii) if so, MNCs have real and existing obligations in international human rights law to respect and promote human rights (the “Reality” Issue)?; (iii) or is there another basis in international human rights law to create and impose legal obligations on MNCs (the “Source” Issue)? The first two issues have been explored at length by many commentators, and it is not my intention to give a detailed analysis of them here Instead, I shall briefly show that while MNCs can be said to be subjects of international law, and are therefore capable of bearing human rights obligations, claims for the actual existence of such obligations are tenuous at best I will then conduct an in-depth examination of the Source Issue in order to determine possible rules in international law that might facilitate the establishment of a binding relationship between MNCs and human rights values I will argue that international human rights law is open to such obligations coming into existence on the basis of the foundational principle of human dignity THE POSSIBILITY ISSUE: CAN MNCS BE SUBJECTS OF INTERNATIONAL HUMAN RIGHTS LAW? 16 Roberto Andorno ‘Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ (2009) Journal of Medicine and Philosophy 1, 17 Christopher McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 The European Journal of International Law 665, 662-663 This section will briefly address the question of whether MNCs are capable of bearing human rights obligations Traditionally, the system of international human rights law has predominantly focused on States as the primary violators of human rights and thus the holders of binding human rights obligations.18 However, non-State organs have also long been recognized as being subject to international law For example, the preamble of the Universal Declaration of Human Rights (“UDHR”) requires not only States but also “every individual and organ of society” to participate in the promotion and protection of basic human rights 19 Thus it can be said that MNCs, as ‘organs of society’, have, at the very least, the ability to hold as well as enforce rights and obligations.20 In addition, there have been certain developments in international law in the last few decades that have led non-State actors to being increasingly recognized as subject to international law To begin with, jurisprudence emerging from international criminal tribunals for Nuremberg, Tokyo, Rwanda and Yugoslavia has confirmed that individuals who commit acts considered to be crimes in international law will be held responsible for their actions and will be liable for punishment 21 Also, international organizations such as the United Nations and the World Health Organization have been recognized by the International Court of Justice as endowed with international legal personality and are therefore subject to international law independent of the member States comprising the organizations.22 This jurisprudence from the international courts confirms that individuals, whether natural or legal, can be held directly responsible for violating international human rights law rules in certain circumstances.23 18 McCorquodale Note 3, 384 19 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948), preamble 20 Surya Deva ‘Human Rights Violations by Multinational Corporations and International Law: Where From Here?’ (2003-4) 19 Connecticut Journal of International Law 1, 53 21 Olefumi Amao, ‘Corporate Social Responsibility, Social Contract, Corporate Personhood and Human Rights Law: Understanding the Emerging Responsibilities of Modern Corporations’ (2008) 33 Australian Journal of Legal Philosophy 100, 132 See for example, United States v Goering, F.R.D 69 (1946) cited in Duruigbo Note 4, 237 22 See, respectively, Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 178-179 and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health organization) (Advisory Opinion) [1996] ICJ 66 23 Amao Note 21, 133 MNCs, admittedly, entered the international scene at a much later stage and like private citizens, were assumed to be accountable only under domestic law 24 However, in recent years, MNCs have been treated as distinct legal personalities with the ability to enjoy certain rights under the international law regime For instance, they have the capacity to bring international claims in areas concerning economic law under bilateral or regional investment treaties and free trade agreements.25 The First Protocol to the European Convention on Human Rights also recognizes the rights of corporations to property,26 free speech,27 fair trial28 and privacy.29 This modern trend, which allows and enables MNCs to utilize international law mechanisms to protect their interests and facilitate their activities, leads me to the conclusion that MNCs must also possess the legal capacity to bear direct duties under the same regime 30 As noted by Ratner, “If states and international organizations can accept rights and duties of corporations in some [international law] areas, there is no theoretical bar to recognizing duties more broadly, including duties in the human rights area”.31 Indeed, some international treaties, especially in the field of international environmental law, have already placed direct legal obligations on MNCs, albeit in a limited fashion.32 Moreover, new economic realities in modern times, which have been exacerbated by the process of globalisation, render the traditional argument that MNCs, as non-State actors, cannot be 24 David Kinley and Junko Tadaki ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’ (2003-04) 44 Virginia Journal of International Law 931, 937 25 Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds), Liability of Multinational Corporations under International Law (Kluwer International, 2000) 7- 26 First Protocol to the European Convention on Human Rights signed November 1950 (hereinafter “European Convention”), article 27 European Convention Note 26, article 10 28 European Convention Note 26, article 29 European Convention Note 26, article 30 Muchlinski Note 4, 509; McBeth Note 1, 71-72 31 Steven R Ratner ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 The Yale Law Journal 443, 488 32 For example, the International Covenant on Civil Liability for Oil Pollution Damage, opened for signature 20 November 1969 UNTS (entered into force 19 June 1976); Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature 27 November 1992 UNTS (entered into force 30 May 1996) subjects of international law as antiquated and impractical Triggs argues that “through their network of subsidiaries and their capacity to invest and conduct business in other States, transnational corporations appear to have gained … international legal personality and defined rights and responsibilities”.33 Hence, the view that MNCs are capable of bearing human rights obligations should not be viewed as an extraordinary and unprecedented development but rather as an extension of the position prevailing at international law and practices under which MNCs already enjoy rights, and bear limited obligations Critics may argue that imposing direct human rights obligations on MNCs would take away the responsibility of a State to protect and promote human rights 34 MNCs, so the argument goes, are non-State actors whose only duty is to obey the law, whereas States should regulate on matters of social responsibility.35 It is conceded that States continue to be the primary subjects of international human rights law.36 However, international law does not preclude the existence of concurrent obligations to be borne by non-State actors, including MNCs 37 In my view, given their capacity to transcend a single State’s jurisdiction and the effect of their activities on people’s lives across the globe, conferring legal status to MNCs in international human rights law should be viewed as merely complementary to the existing State-centric regime.38 In all, States should not be absolved of their primary obligations to protect and promote human rights within their jurisdictions.39 However, MNCs are entities also capable of being the bearers of direct human rights obligations and thus should be held responsible for human rights abuses, 33 Gillian Triggs International Law: Contemporary Principles and Practices (LexisNexis Butterworth, 2nd Ed, 2011), 183 34 Peter T Muchlinski, ‘Human Rights and Multinationals: Is There a Problem?’ (2001) 77 International Affairs 31, 35-36 35 Ibid 36 Duruigbo Note 4, 241 37 Ibid 38 Menno Kamminga and Saman Zia-Zafiri ‘Introduction’ in Menno Kamminga and Saman Zia-Zafiri ‘(eds), Liability of Multinational Corporations under International Law (Kluwer International, 2000), 39 Adam McBeth International Economic Actors and Human Rights (Routledge, 2010) 251 at the very least within the scope of their operations.40 Simply put, “MNCs to an extent have, or at least have the potential to possess, international legal personality”.41 THE REALITY ISSUE: DO CORPORATIONS HAVE HUMAN RIGHTS OBLIGATIONS UNDER INTERNATIONAL LAW? Having concluded that MNCs are capable of bearing human rights obligations, the key question then becomes whether existing international human rights law already imposes obligations on corporations, or whether substantive legal change would be necessary to impose such obligations Proponents point out that the preamble of the UDHR asserts that “every organ of society … [shall] secure [the] universal and effective recognition and observance [of human rights]” Also, articles 29 and 30 of the UDHR stipulate that “everyone” owes human rights duties to the community to which they are a part Likewise both the International Covenant on Civil and Political Rights (“ICCPR”) and International Covenant on Economic, Social and Cultural Rights (“ICESCR”) contemplate the existence of obligations for non-State entities by asserting: “the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present covenant”.42 It has therefore been argued that every ‘individual’ and every ‘organ of society’, as the case may be, excludes no one, not even corporations in the promotion and the protection of human rights.43 Also offered in support of this viewpoint are some commentaries by human rights treaty bodies For instance, the UN Committee on Economic Social and Cultural Rights (“ESCR Committee”), in its General Comment 12, asserted that “all members of society [including] private business 40 Ibid 41 Duruigbo Note 4, 241 42 International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), preamble; and International Convention on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS (entered into force January 1976), preamble 43 Michael K Addo ‘Introduction’ in Michael K Addo (ed) Human Rights Standards and the Responsibility of Transnational Corporations (Kluwer Law International, 1999) 31; Louise Henkin ‘The Universal Declaration at 50 and the College of the Global Markets’ (1999) 25 Brooklyn Journal of International Law 17, 25 sector have responsibilities in the realization of the right to adequate food” 44 On the basis of these provisions, proponents assert that international human rights law is not limited to reach States only but also clearly imposes duties on corporations to respect and promote human rights.45 Some argue that from the perspectives of the victims, it is irrelevant for them whether the violator is a State, an individual or a corporation; therefore whoever the perpetrator is shall be liable under international human rights law.46 With respect, even though some authors may claim that the UDHR represents customary international law47 in its entirety, this article takes a cautious approach and recognizes that while some aspects of the instrument are indeed customary law, it is doubtful that the provisions invoked above, in as far as MNC obligations are concerned, qualify 48 That is, the status of the UDHR as customary international law, especially with respect to corporate duties, by no means enjoys universal acceptance.49 This is illustrated by the lack of consistent State practice in so far as directly imposing international human rights duties on corporations is concerned and the ambiguity in the “duties” provisions themselves 50 With respect to the latter, even if a reference is 44 Committee on Economic, Social and Cultural Rights, General Comment 12: Right to Adequate Food, UN Doc E/C12/1999/5 (1999) para 20 45 McBeth Note 39, 8; Henkin Note 43, 24-25; Jordan J Paust ‘The Reality of Private Rights, Duties and Participation in the International Legal Process’ (2004) 25 Michigan Journal of International Law 1229, 1242-1243; David Kinley ‘Human Rights as Legally Binding or Merely Relevant?’ in Bottomley and Kinley Note 1, 38 46 Andrew Clapham Human Rights Obligations of Non-State Actors (Oxford University Press, 2006) 546; Addo Note 43, 266-269 47 Customary international law generally emerges when two essential criteria are met: first, unambiguous and consistent practice by States in a particular field (State practice) and second, a sense of legal obligation by States to follow the practice (opinion juris) Clapham Note 46, 86 48 For more discussion on the status of the UDHR as customary international law, see Sigrun I Skogly and Mark Gibney ‘Transnational Human Rights Obligations’ (2002) 24 Human Rights Quarterly 781 and H Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995/6) 25 Georgia Journal of International and Comparative Law 287 49 Certain provisions under the UDHR are generally accepted to have acquired the status of customary international law, and are therefore legally binding These include rules prohibiting slavery, torture, arbitrary killing and systematic racial discrimination The customary law status of other rights, especially economic, social and cultural rights, remains deeply contested Clapham Note 46, 86-87 See also, Philip Alston ‘A Human Rights Perspective on the Millennium Development Goals’ (Paper Presented as a Contribution to the Work of the Millennium Project Task Force on Poverty and Economic Development, 2004), para 35 Available at www2.ohchr.org/english/issues/millenium-development/ /alston.doc (Last visited on 14 June 2012) 50 Jan Arno Hessbruegge ‘Human Rights Violations Arising from the Conduct of Non-State Actors’ (2005) 11 Buffalo Human Rights Law Review 21, 35 10 According to Kant, this means that a human being should be regarded as a person who possesses a dignity (an absolute inner worth) by which he demands respect for himself from all other rational beings in the world.78 One can see that Kant explicitly links the notion of dignity to respect as he stipulates that our humanity demands that others respect us while at the same time we respect them.79 He further asserts, “do not let others tread with impunity on your rights” thereby also linking dignity to human rights 80 It can therefore be surmised that for Kant, human dignity is universal and inherent; possessed by every human being and expressed in the form of human rights As we shall see below, the Kantian doctrine became one of the inspirations for the inclusion of the notion of human dignity in the UDHR and other international human rights instruments Also of note is the work of Ronald Dworkin, who is today considered to be one of the most influential modern legal philosophers on the concept of human dignity Similar to Kant, Dworkin provides a conception of human dignity in his latest work cryptically called Justice for Hedgehogs, which, amongst others, embodies the notion of self-respect 81 Dworkin sees selfrespect as an underlying principle of human dignity that requires individuals to recognize not just their inherent worth but also imposes a moral duty to respect the lives of others who are similarly endowed with inherent worth.82 It is worth mentioning that in his earlier work, Taking Rights Seriously, Dworkin asserted that legal principles (including international human rights standards) flow from certain underlying moral principles such as justice, fairness and human dignity.83 For my purposes, it is not necessary to break down Dworkin’s overall teleological account of the concept of human dignity Instead, it is simply enough to note that according to Dworkin, human dignity is a moral principle that demands that people’s human rights be taken into account by other individuals 78 Eckert Note 70, 46-47 79 Donnelly Note 74, 21 80 Ibid 81 Ronald Dworkin Justice for Hedgehogs (Harvard University Press, 2011) 82 Dworkin Note 176, 256-268 83 Ronald Dworkin Taking Rights Seriously (Harvard University Press, 1977) 22 16 Overall, although there are interesting differences among philosophers on the meaning of human dignity, what is clear from these different strands, and is pivotal to this paper, is that central to the concept is the idea that all human beings are worthy of respect - an inherent value that exists simply by virtue of our humanity Whether this understanding of the concept is the basis upon which human rights exist today shall be elucidated in the section below 4.2 Human Dignity in International Law After the atrocities of World War II, human dignity was formally protected in international human rights law and has since come to be considered as the “foundational concept of the global human rights regime”.84 The UDHR identifies human dignity as the basis of human rights by stating that the “recognition of inherent dignity … is the foundation of freedom, justice and peace in the world”.85 Article then goes on to reaffirm the Kantian doctrine by asserting that “[a]ll human beings are born free and equal in dignity and rights They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” 86 Furthermore, Article 22 states that a person’s economic, social and cultural rights are indispensable for his or her dignity Most human rights treaties also expressly endorse human dignity as the source of human rights The UN Charter preamble states: Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person … and have determined to promote social progress and better standards of life in larger freedom….87 Article of the UN Charter takes up this theme and provides: “[a]ll human beings are born free and equal in dignity and rights They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” 88 There are also several more specific uses of 84 Donnelly Note 74, 85 UDHR Note 19, preamble 86 Ibid 87 Charter of the United Nations 1031, TS 993 (entered into force 24 October 1945) 88 Ibid 17 dignity in the remainder of the UN Charter For instance, Article 22, on the right to social security, provides: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality In addition, Article 23(3), which articulates an individual’s fundamental right to work, provides that “everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection” Similarly, the ICCPR, the ICESCR and the International Covenant on the Elimination of Racial Discrimination all affirmed in their preambles that human dignity is the underlying foundation of international human rights law.89 More recently, emerging from the comprehensive reconsideration of international human rights law at the World Conference on Human Rights in 1993, the Vienna Declaration asserts dignity as being the proper source of international human rights law.90 The preamble of the Declaration affirms that: all human rights derive from the dignity and worth inherent in the human person, and that the person is the central subject of human rights and fundamental freedoms, and consequently should be the principal beneficiary and should participate actively in the realization of these rights and freedoms The Vienna Declaration not only adopted dignity as a foundational principle to human rights in general, but also explicitly recognized the concept in provisions dealing with particular areas of human rights, such as the treatment of indigenous peoples, 91 the prohibition of torture,92 the prohibition of gender-based violence and harassment, 93 the abolition of poverty,94 and the issue of 89 ICCPR Note 42, preamble; ICESCR Note 42, preamble and International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, UN Treaty Series vol 660 (entered into force January 1969), preamble 90 Vienna Declaration and Programme of Action, UN Doc A/CONF 157/24 (12 July 1993), preamble 91 Vienna Declaration Note 90, article 20 92 Vienna Declaration Note 90, article 55 93 Vienna Declaration Note 90, article 18 94 Vienna Declaration Note 90, article 25 18 biomedical ethics.95 It should also be noted that the notion of dignity is not restricted to international human rights instruments It has also become embedded in the texts of regional human rights treaties, most notably in the preambles to the Inter-American, 96 Arab,97 African,98 and (some) European99 human rights instruments.100 In sum, the inclusion of human dignity in the above international and regional instruments demonstrates the idea that human dignity is the underlying foundation of international human rights law.101 As it will be argued later on, any violation of dignity, whether by States or private actors, should be included within the legal architecture that protects human rights 102 4.3 The Meaning of Human Dignity Having considered the philosophical underpinnings of the notion of human dignity and its embodiment in international human rights instruments, the question then becomes: how we understand the concept of dignity in modern times? It is worth noting that despite its apparent centrality to human rights law, the term is never explicitly defined in the text of the international 95 Vienna Declaration Note 90, article 11 96 American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) 97 League of Arab States, Revised Arab Charter on Human Rights (2005) 12 International Human Rights Law Journal 893 98 African [Banjul] Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58 (entered into force 21 October 1986) 99 Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe (CETS No 184), Rome 4.XI.1950, as amended by Protocol 13 See also, the European Social Charter (revised) opened for signature 18 October 1961, CETS 035 (entered into force 26 February 1965) 100 There are many other international instruments that proclaim human dignity as part to their ethos See, for example, Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135 (entered into force 12 August 1949); Rome Statute of the International Criminal Court, 2187 UNTS (entered into force July 2002); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 UNTS (entered into force September 1956); Convention on the Rights of the Child, 1577 UNTS (entered into force September 1990); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 2220 UNTS (entered into force18 December 1990) 101 Paolo G Carozza ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 American Journal of International Law 38, 46 102 Rex D Glensy ‘The Right to Dignity’ (2011) 43 Columbia Human Rights Law Review 65, 80 19 instruments This raises the following questions: what does dignity actually mean in these instruments? Is it a basis for human rights, a right in itself, or is it simply a synonym for human rights? This section shall tackle these queries with a view to articulating what it actually means to have human dignity and what implications this has for developing a coherent legal and philosophical justification for corporate accountability of human rights violations Contemporary literature on the meaning of the term reveals that there are two broad philosophical views that attempt to explain whether and how the notion of human dignity provides a foundation for human rights: reductionism and essentialism 103 According to the first viewpoint, reductionism, the lack of a substantive definition in international instruments implies that the term human dignity is a mere rhetorical slogan, a catch-all phrase that lacks any real or substantial expression in law.104 Proponents of this viewpoint have even gone so far as to describe the term as “useless”,105 “vague”,106 “a fuzzy concept”,107 and “elusive as to be virtually meaningless”,108 amongst others Reductionists further believe the term human dignity amounts to no more than the existing philosophical principle of autonomy.109 Dignity, they argue, merely aims to protect an individual’s right to control his or her life or destiny, that is, self-rule 110 Therefore, the concept simply requires every person to respect every other person’s right to make choices and to take action based on that person’s own values and belief system 111 On this account, dignity involves not only refraining from interfering with others’ choices, but sometimes actually providing them 103 Leslie Meltzer Henry ‘The Jurisprudence of Dignity’ Available at http://ssrn.com/abstract=1928768 (Last visited on November 2013), 12 104 Henry Note 103, 11-12 105 Ruth Macklin, ‘Dignity is a Useless Concept’ (2003) 327 British Medical Journal 1419, 1420 106 Dworkin Note 81, 198-199 107 Donnelly Note 74, 81 108 Ibid 109 Henry Note 103, 12 110 Glensy Note 102, 68 111 Henry Note 103, 12 20 with the necessary conditions and opportunities for exercising their autonomy 112 Proponents of this viewpoint contend that human dignity adds nothing more than that which has already been articulated by the principle of autonomy because it merely amounts to “treating people in the way that they wish to be treated”.113 In contrast, essentialists believe that human dignity contains certain features that differentiate it from other philosophical concepts such as autonomy.114 Their approach is to “distill dignity’s meaning down to its fundamental core by searching for the root or basic meaning of dignity” 115 Essentialists tend to view the concept as possessing a minimum core, which recognizes that every human being possesses an intrinsic worth that should be recognized and respected by others.116 Following the Kantian doctrine, essentialists believe that autonomy and reason serve as the foundation of human dignity.117 This paper aligns itself with the second viewpoint for the following reasons In my view, it would be a mistake to conclude from the lack of a definition in international human rights instruments that human dignity is simply a slogan, which is too ambiguous to be meaningful in international law or that it is reducible to the principle of autonomy Admittedly, the concept does indeed lack a clear definition in human rights texts; however, as it will be shown, this in no way detracts from its essence and usefulness in human rights jurisprudence Reductionists seem to confuse the notion of inherent dignity of the human person with that of moral dignity.118 The former, which forms the subject of analysis in this paper, plays a central role in legal instruments and is inseparable from the human condition while the latter is a synonym for ‘honour’ and relates to 112 Glensy Note 102, 68 113 Henry Note 103, 12 See also, Yehoshua Arieli ‘On the Necessary and Sufficient Conditions for the Emergence of the Doctrine of Dignity of Man and His Rights,’ in Kretzmer and Klein Note 65, 12, who argues that dignity is a central claim of man’s autonomy and involves his or her “capacity to be lord of his fate and the shaper of his future” 114 Guy E Carmi ‘Dignity-The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification’ (2007) University of Pennsylvania Journal of Constitutional Law 957, 966 115 Henry Note 103, 13 116 Mahlmann Note 68, 30 117 Donnelly Note 74, 81 118 Joseph Azize ‘Human dignity and Euthanasia Law’ (2007) University of Notre Dame Australia Law Review 47, 59 21 the behaviour of human beings in choosing good over bad 119 In addition, reductionists are reminded of other fundamental concepts such as “equality”, “justice” “discrimination” and “freedom”, which have also not been defined by international law instruments but are nonetheless considered to be meaningful 120 This, as Andorno points out, is not only because of the impossibility of finding a precise definition of such terms that satisfies everyone in a multicultural world, but also because rigid definitions often lead to unsolvable difficulties in the implementation of legal norms.121 McCrudden agrees that while “there is no common substantive conception of dignity there [nonetheless] appears to be an acceptance of the concept of dignity”.122 It is contended that by international instruments asserting that dignity is “inherent … to all members of the human family”,123 that all human beings are “free and equal in dignity and rights”,124 and that “these rights derive from the inherent dignity of the human person”, 125 these instruments offer invaluable guidance for clarifying the meaning of human dignity as used in international law First, dignity is a permanent and intrinsic attribute that is inseparable from our humanity; thus it is not a value that can be derived from some specific personal features such as age, nationality, race or gender.126 Secondly, dignity implies that basic rights are equal for all; therefore if human dignity is the same for all, then all human beings possess equal basic rights 127 Thirdly, rights derive from human dignity, a pre-existing value that therefore cannot be taken 119 Ibid 120 For example, article of the UDHR provides “All are equal before the law and are entitled without any discrimination to equal protection of the law All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” Neither “equal” nor “discrimination” is defined within the instrument 121 Andorno Note 16, 122 McCrudden Note 72, 712 See also, Azize Note 118, 60, who argues along similar lines 123 UDHR Note 19, preamble 124 UDHR Note 19, article 125 See ICCPR Note 42, preamble and ICESCR Note 42, preamble 126 Azize Note 118, 60 127 Andorno Note 16, 22 away arbitrarily.128 These three elements lead me to conclude that, at the very least, the ‘minimum core’ of human dignity entails the following: every human being has his or her own intrinsic worth simply by virtue of being human, which should be recognised and respected by others; and thus human rights, which flow from human dignity, are inherent in every human individual and should be respected.129 It would be prudent, at this stage, to make a distinction between human dignity and human rights as these maybe confused as being one and the same concept The Vienna Declaration clearly asserts that “all human rights derive from the dignity and worth inherent in the human person” 130 In my view, this suggests that these are two separate, but nonetheless intimately linked concepts Donnelly points out that “the practice of human rights provides a powerful mechanism to realize in the social world the underlying dignity of the person” 131 Therefore the link between human rights and human dignity is that human rights are a practical social instrument, which reflect and aim to realize the underlying encompassing value of human dignity 132 To conclude, if we accept the notion that human beings have intrinsic worth, it follows then that not only is each individual entitled to fundamental rights and freedoms but also that human beings deserve to be protected from serious threats to their dignity One can see that unlike the reductionist approach, which asserts that dignity overlaps with philosophical concepts like autonomy, essentialists correctly take into account other aspects of our human experience that provide a richer conception of dignity 133 The impact that this understanding of human dignity will have on corporate human rights violations will be explored next 4.4 Human Dignity as the Overarching Principle to Corporate Human Rights Accountability 128 Ibid See also, Oscar Schachter ‘Human Dignity as a Normative Concept’ (1983) 77 American Journal of International Law 848, 849-850 129 Adam McBeth ‘Every Organ of Society: The Responsibility of Non-State Actors for the Realization of Human Rights’ (2008-9) 30 Hamline Journal of Public Law & Policy 37, 46 130 Vienna Declaration Note 90, preamble Emphasis added 131 Donnelly Note 74, 11 132 Ibid 133 Henry Note 103, 15 23 Having accepted that the international human rights framework is a mechanism for the realisation of the foundational value of human dignity, the question then becomes: how we use human dignity to construct the foundations of corporate human rights accountability at the international level? In addressing this issue, I shall combine, on the one hand, the appeal to human dignity as an overarching principle with, on the other hand, the recourse to human rights norms as embedded in international law so as to provide an effective and practical way forward for dealing with MNC human rights abuses I should begin by pointing out that the primary reason for my emphasis on human dignity as the basis for achieving MNC accountability for their human rights violations is that corporate activities are closely connected to the most basic human rights, namely the rights to work, to adequate standard of living, health and access to a clean environment, among others 134 In my view, if human dignity is the foundation upon which these and other human rights are based, then it is not too farfetched to invoke the concept as the ultimate rationale for the enforcement of human rights responsibilities of MNCs at the international level.135 It follows from my earlier discussion that human dignity is the underlying foundation of the international human rights regime, that human dignity constitutes a fundamental source from which new human rights may be derived or existing rights extended to apply to new situations 136 This means that human dignity provides us with a key point of leverage to effect the transition from what ‘ought’ to what ‘is’ and thus provides a fuller and richer content of international human rights norms In relation to MNC abuses of human rights, Ratner points out that “if human rights are aimed at the protection of human dignity, the law needs to respond to abuses that not implicate the state directly” 137 Kinley and Tadaki agree that the concept of human dignity possesses “a norm-making capacity that can both effect corporate behaviour and form a 134 Andorno Note 16, 135 Ibid As previously noted, the position that corporations have international human rights responsibilities (rather than international obligations) has gained more ground following the endorsement of the UN Framework by the Human Rights Council in June 2011 136 Schachter Note 128, 853 137 Ratner Note 31, 472 24 basis for future regulation”.138 Therefore it is submitted that human dignity, as a legal and philosophical concept, is uniquely positioned to provide a key vehicle for re-analysing and renaming what businesses currently perceive as ‘corporate risks’ into ‘corporate violations’ and as such demands accountability for any negative impacts on human rights 139 Keeping the above in mind, this paper identifies a distinctively useful institutional function which dignity can play with respect to corporate human rights violations: enhancing a victim’s right to effective remedy under international human rights law 140 In this regard, it is contended that human dignity can play a dual role: one involving a legal dimension that relates to the ability by victims to bring claims of wrongdoing and seek reparation; the second involving a moral dimension relating to the substantive reparation itself, whereby an individual whose rights have been violated is able to obtain relief from the wrongdoer.141 The distinction between these two different, but related, spheres is based on the practical consequences that each has under international law Here, sensitivity to context is essential requiring a recapitulation of the business and human rights predicament, as follows: despite the negative impacts that MNCs can and have on human rights and the failure by (some) Host States to effectively regulate MNCs’ adverse impacts on human rights, international law currently does not provide for specific corporate human rights obligations thus leaving many victims of corporate human rights abuses without effective remedy Therefore, the first role of human dignity in enhancing MNC accountability as proposed herein envisions a direct legal function for the concept and is consistent with the clear duty imposed on States by international law to protect human rights.142 In other words, this dimension utilizes dignity, as an underlying principle of the international human rights framework, to compel all States to comply with their 138 Kinley and Tadaki Note 119, 958 139 Kinley and Tadaki Note 119, 1022 140 McCrudden Note 72, 721-722; Schachter Note 128, 853 141 Amnesty International ‘Comments in Response to the UN Special Representative of the Secretary General on Transnational Corporations and other Business Enterprises: Guiding Principles - Proposed Outline’ Doc IOR 50/001 (2010), 18 Available at http://www.amnesty.org/en/library/asset/IOR50/001/2010/en/71401e1e-7e9c-44a4-88a7de3618b2983b/ior500012010en.pdf (Last visited on 13 June 2012) 142 Report of the Special Representative Note 13, para 18 25 international duty to protect human rights including by providing access to judicial systems to enable persons whose rights have been violated by MNCs to obtain effective remedy.143 The second leans on the emerging social responsibility of corporations to respect international human rights, as accepted by businesses themselves (albeit under pressure from stakeholders) 144 In this context, the concept of human dignity is used as an apparatus to propel MNCs to voluntarily reassess their business activities in light of international human rights norms and address their negative impacts, whether or not the State judicial and administrative machinery is effective, thus preserving the fundamental idea that each individual human being is deserving of respect and concern.145 The common theme in both these conceptual paths is that a denial of either is implicitly incompatible with the basic idea of the inherent dignity and worth of a human being that currently exists under philosophical, social and legal discourse.146 The major advantage to this dual approach is that it paves the way for critical political consensus concerning the role of international human rights law in ensuring that MNCs respect human rights principles during the course of their business operations 147 In other words, dignity can play a significant role politically in smoothing over the different philosophical outlooks and values of States, businesses and human rights organizations and promote the possibility of a concrete global agreement among these differing outlooks to ensure MNC accountability for their transnational human rights violations 148 As noted by Schachter, the notion of human dignity “has acquired a resonance that leads it to be invoked widely as a legal and moral ground for protest against degrading and abusive treatment No other ideal seems so clearly accepted as a universal social good”.149 Indeed, the business world seems to be open to this suggestion as 143 Schachter Note 128, 851 144 Report of the Special Representative Note 13, paras 24 and 54 145 Erin Daly ‘The Constitutional Right to Dignity’ (2009), Available at http://www.ialsnet.org/meetings/constit/papers/DalyErin%28USA%29.pdf (Last visited on 17 February 2014) 146 Amnesty International Note 237, 18 147 Schachter Note 128, 848-9 148 Ibid 149 Ibid 26 affirmed by the Business Leaders Initiative on Human Rights, when it set out to find practical ways of implementing the UDHR within its various business organizations around the world.150 Critics may argue that international human rights law only charges States with being responsible for protecting the rights of those within their jurisdictions 151 By implication, so the argument goes, non-State actors, including MNCs, are exempt from human rights accountability at the international level because human rights are currently expressed as belonging to the jurisprudence of States.152 However, as McBeth points out: the strong focus on the State in … efforts to secure the rights declared in the UDHR should be viewed as a practical matter for the implementation of the UDHR rights; it should not distract one from the character of the UDHR as an explicit acknowledgement of the existence … of pre-existing human rights that accrue to every human being and derive from human dignity.153 In other words, the protection of human dignity - the need to ensure that the inherent worth of every human being is respected - is not necessarily bonded to the exercise of State power Human dignity, inextricably linked to human rights, may be violated by any person or entity, including MNCs and as such demands accountability Moreover, as Clapham asserts, “the strength of the human rights system has always been its ability to adapt to new demands and new non-state actors”.154 Thus, it is submitted that human dignity provides us with a sound jurisprudential and legal foundation through which the existing human rights machinery may be reoriented to cope with the new demands for protection from harmful MNC activities.155 Ultimately, however, it should be noted that recourse to the fundamental value of human dignity for MNC human rights accountability is a necessary, but not in itself a sufficient mechanism for providing an effective response to the complex challenges posed by transnational corporate 150 Business Leaders Initiative on Human Rights ‘Building Understanding’ (Report No 1, 2003) Available at http://www04.abb.com/global/seitp/seitp202.nsf/c71c66c1f02e6575c125711f004660e6/fd8d7d261d06a2adc1256df9 003b68f0/$FILE/BLIHR1report.pdf (Last visited on March 2014) 151 McCorquodale Note 3, 384-385 152 Ibid 153 McBeth Note 39, 43 154 Clapham Note 46, 32 155 Ibid 27 human rights violations Some further mechanisms will be required for dignity to actually become functional This is a vital concept to grasp While we need to recur to human dignity as the ultimate justification of imposing accountability on corporations, this paper contends that more concrete or practical notions are needed to flesh out the principle in real life Therefore, the international community ought to reflect on concrete mechanisms through which the fundamental value of human dignity may be harnessed, legally and socially, to provide for MNC accountability In sum, if, as Clapham avers, the overriding objective of human rights is to protect the victim’s inherent dignity, then the victim has to be protected from everyone, including non-State actors such as corporations.156 However, the transnational character of MNCs poses significant barriers to the protection of human rights mainly because their operations are usually conducted beyond the exclusive jurisdictional control of a single State 157 This paper has sought to take an existing philosophical and legal concept - human dignity - and place it at the centre of the quest towards ensuring MNC accountability for human rights violations Such accountability is premised on the idea that human rights protect the dignity or inherent worth of human beings and consequently, upon their violation, human beings lose their ‘human character’ 158 Thus, the appeal in human dignity as a foundational basis for future MNC accountability lies not just in the fact that it is an overarching principle in international human rights law but that it also reconciles the profitdriven demands of doing business with the social expectations on businesses to respect human rights and provides a foundational platform whereby both voluntary and legal mechanisms may have relevant and reinforcing roles to play in regulating the relationship between business and human rights.159 CONCLUSION The premise that international human rights law only governs State relations is clearly antiquated and requires modification Given the massive scale of modern commercial projects in today’s 156 Clapham Note 46, 546 157 McBeth Note 39, 11 158 Surya Deva ‘Corporate Code of Conduct Bill 2000:Overcoming Hurdles in Enforcing Human Rights Obligations Against Overseas Corporate Hands of Local Corporations ‘(2004) New Castle Law Review 87, 107 159 Clapham Note 46, 267-268 28 globalised economy, MNCs are now, more than ever, capable of infringing fundamental human rights in the pursuit of greater profits, investment or economic development 160 This paper has shown that MNCs are indeed also capable of bearing obligations in international human rights law However, neither treaty law nor international jurisprudence has - as of yet - articulated the actual existence of such standards Nevertheless, there are no legal obstacles in international law to the formation of such obligations Therefore it has been contended that the concept of human dignity provides the international community with a natural philosophical and legal foundation upon which MNCs can (and should) be held accountable for their human rights violations My analysis of the concept has shown that the basic minimum content, which can be discerned from international human rights instruments, is that each human being possesses an intrinsic worth that should be respected and that some forms of conduct, including by corporations, are inconsistent with the respect for this intrinsic worth In my view, corporate infringement of human dignity, regardless of circumstances, is never acceptable and should not be tolerated It is hoped that the above analysis offers a framework for the global community to begin to derive a set of principles that will guarantee corporate accountability of human rights violations 160 McBeth Note 39, 29 ... INTERNATIONAL HUMAN RIGHTS LAW? 16 Roberto Andorno ? ?Human Dignity and Human Rights as a Common Ground for a Global Bioethics’ (2009) Journal of Medicine and Philosophy 1, 17 Christopher McCrudden ? ?Human Dignity. .. Secondly, dignity implies that basic rights are equal for all; therefore if human dignity is the same for all, then all human beings possess equal basic rights 127 Thirdly, rights derive from human dignity, ... reason for my emphasis on human dignity as the basis for achieving MNC accountability for their human rights violations is that corporate activities are closely connected to the most basic human rights,