human rights & business (and a few other things)

Corporate Criminal Liability – Workshop on the Business and Human Rights Treaty at the Universidad Autónoma de Madrid

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From left to right: Nadia Bernaz, Adriana Espinosa and Tara Van Ho

Last week I had the privilege to participate to a workshop on the proposed business and human rights treaty held at the Universidad Autónoma de Madrid in Spain and co-organised by that university and the Graduate School of Government and European Studies (Kranj, Slovenia).

The workshop brought together both supporters and opponents to the treaty from around the world, and perhaps more importantly given that the drafting process is clearly under way at this point, led to interesting discussions with regard to the contents of the future treaty. In my presentation, I chose to talk about the issues related to the possible inclusion of corporate criminal liability for international crimes in the future business and human rights treaty.

I aimed to answer three questions:

(1) Why including corporate criminal liability for international crimes in the future business and human rights treaty?

(2) How to do it?

(3) What are the main remaining questions that would have to be solved before proceeding?

(1) The main reason for including corporate criminal liability for international crimes in the treaty is that arguably it is a less controversial area than that of the existence of corporate obligations for “simple” human rights violations. Therefore it could be a relatively easier way to move the discussions forward and to avoid a possible dead end.

(2) I see three main ways of doing it: (a) Following the model of the UN Convention against Torture, the treaty could provide for a state obligation to prosecute, at the domestic level, corporations suspected of international crimes; (b) Following the model of the 1948 Genocide Convention, the business and human rights treaty could set up a system to refer cases to the ICC (c) A third option is that no business and human rights treaty is created, but the statute of the ICC is amended anyway.

(3) The pressing questions that would have to be solved have to do with the required mental element with regard to complicity liability under international criminal law, an area which has given rise to great uncertainty in recent years in the context of Alien Tort Statute litigation in the United States. Another pressing question would be related to the links between the treaty and the International Criminal Court Statute.

 


Corporate Criminal Liability under International Law – new article in the Journal of International Criminal Justice

 

My article on corporate criminal liability was just published in the latest issue of the Journal of International Criminal Justice. It is based on the New TV S.A.L. and Akhbar Beirut S.A.L. contempt cases at the Special Tribunal for Lebanon. I have discussed the cases on this blog here, here and here.

Here is the abstract:

Relying on the Tribunal’s inherent powers, the Appeals Panel of the Special Tribunal for Lebanon decided in two cases, New TV S.A.L. and Akhbar Beirut S.A.L., that the Tribunal has jurisdiction over corporations for the offence of contempt. They decided so despite the absence of a clear provision explicitly granting such jurisdiction. This is the first time an international criminal tribunal asserts jurisdiction over legal persons. The article critically presents the Appeals Panel’s findings and places them in their historical and international context. Although limited in scope, the decisions are of great significance as business and human rights developments at the international level have emphasized the need for enhanced corporate accountability.


Repealing the Human Rights Act – what practical significance for the field of business and human rights?

In its 2015 manifesto the UK Conservative Party pledged to “scrap the Human Rights Act” (p. 60). Having won a clear majority in the recent election, David Cameron and his new conservative government are now in a position to do just that. Repealing the Human Rights Act would mean less government accountability and would negatively affect the daily lives of millions of British people. Some have also warned against the risks of contagion to other countries, including Putin’s Russia, putting millions of others in an even more vulnerable position .

The Human Rights Act is the landmark piece of legislation, adopted by Parliament, that has incorporated the European Convention on Human Rights into UK law. Section 6(1) of the Human Rights Act provides that “it is unlawful for a public authority to act in a way which is incompatible with a [European] Convention [on Human Rights] right”. It is a guarantee against arbitrary decisions as it ensures that the government respects the rule of law and  human rights at all times, in everything they do. At first glance, therefore, repealing the Human Rights Act would not have any direct impact on the field of business and human rights. After all, the Act requires public authorities, and not companies, to respect human rights.

However, I see four main ways in which the repeal of the Human Rights Act would impact the field of business and human rights.

1. It would set a bad example for companies

The UK prides itself on having been the first country to come up with an Action Plan implementing the 2011 UN Guiding Principles on Business and Human Rights (discussed in this blog here). On paper it is determined to ensure that British companies do no harm when operating abroad. It has also adopted legislation to force large companies to report on their human rights performance. Both initiatives, though limited in scope, are nevertheless of important symbolic significance. The problem with the UK repealing the Human Rights Act, therefore, is that the government’s authority in the human rights area would be greatly diminished. To put it bluntly: who would want to listen to human rights recommendations emanating from a government who disregards human rights?  It looks to me like a clear case of “do as I say, not as I do”.

The consequences of this should not be overlooked, especially because it is clear that leadership plays a great role in the business and human rights area. It is about creating the right circumstances for a virtuous corporate culture to develop.  But why should businesses bother when those in power don’t?

2. It would deny victims of corporate abuse the possibility to get remedies in the UK

Although there has not been any clear business and human rights cases before the European Court of Human Rights, the Court has held before that states are under an obligation to prevent human rights violations committed by non-state entities, such as corporations. In the landmark 1994 Lopez Ostra case, the Court held that Spain had violated the right of the applicant under Article 8 (right to private life) by failing to prevent a company from polluting the environment, which had negatively affected the applicant’s quality of life.

If the Human Rights Act was to be repealed, victims of similar abuses in the UK would not be able to use Article 8 against the UK authorities before domestic courts should the authorities fail to protect the victims’ rights against corporate abuse. The only way to pursue a human rights claim on the basis of the Convention would be for victims to go before the European Court of Human Rights directly, assuming of course that the new government won’t pull out of the Convention altogether.

3. It would create specific accountability gaps for victims of abuses by companies carrying out public functions such as running prisons or care homes

A number of private companies in the UK run detention centres and care homes, functions that were traditionally carried out by the state. There has been uncertainty over whether the Human Rights Act applies to these situations, or whether it is actually acceptable for the government to ‘contract out its human rights obligations’ (UK Parliament, Report of the Joint Committee, 2009, para. 134). Repealing the Human Rights Act would settle the issue in a highly dangerous way: potential victims, such as vulnerable elderly people, would be placed in a position where their rights would not be adequately protected.

4. It would deny companies, and not only individuals, the protection of the Convention

Finally, I think it’s worth mentioning that business and human rights is also about the ‘human rights’ of businesses. Companies may suffer from violations of their rights, as exemplified by some key cases of the European Court of Human Rights brought by news companies in relation to the right to freedom of expression (Observer and Guardian v UK, 1991). As for individuals, repealing the Human Rights Act would mean going back to the pre-Human Rights Act situation in which human rights cases had to be brought directly to Strasbourg, which is much more complicated, long and uncertain. Surely, this is not in the interests of any business.


Landmark ‘Business and Human Rights’ Decision of the Caribbean Court of Justice: Indigenous Peoples’ Land Rights and Oil Exploration in Belize

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It is a pleasure to welcome back Dr Jérémie Gilbert as a guest poster on ‘Rights as Usual’. Jérémie is a reader at the University of East London. He is the author of  Indigenous Peoples’ Land Rights under International Law – From Victims to Actors  (Transnational Publishers, 2006) and Nomadic Peoples and Human Rights (Routledge, 2014). This post is his.

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On 22 April 2015, in a much-awaited decision against the government of Belize, the Caribbean Court of Justice (CCJ) affirmed the rights of the Mayan indigenous communities over their traditional lands (The Maya Leaders Alliance & others v. The Attorney General of Belize, CCJ, April 2015). The case concerned the rights to land of the Mayan communities of Southern Belize who have been fighting for decades to have their rights over traditional lands recognised. The battle of the communities of the Toledo District for the recognition of their land rights must be put in its wider context, that of their opposition to the activities of the Texas-based oil company USCapital Energy, Inc. This blog covered previous CCJ decisions on labour rights and on the unenforceability of an arbitral award on grounds of public policy.

Background to the case: oil exploration in the Toledo District

As reported by Minority Rights Group International,

In 1994, without consulting [the concerned communities], the government converted almost 42,000 acres of their ancestral territory into a national park. The government then opened the park to oil exploration by USCapital Energy Belize, Ltd, a wholly owned Belizean subsidiary of American company USCapital Energy, Inc.

And in 2001, as reported by Cultural Survival, USCapital Energy received a concession from the government to extract oil in Southern Belize. Since then they cut over 200 miles of seismic trails through the national park and community lands. It has also been reported that USCapital Energy began drilling inside the National Park in 2014.

The final decision in a long series of national and international decisions

The decision from the Caribbean Court of Justice hopefully marks the end of a long legal battle, which started more than twenty years ago. In 2004, the Inter-American Commission on Human Rights issued a report recognizing Maya people’s collective rights to land traditionally used and occupied in Toledo. It also highlighted that by failing to consult and seek their informed consent before granting logging rights and oil concessions on their ancestral land, the government had violated their right to equality enshrined in the American Declaration on the Rights and Duties of Man.

At the national level, the Supreme Court of Belize quashed the USCapital Energy’s seismic testing permit in 2006, and in 2007 ruled that the Mayan communities of Conejo and Santa Cruz held customary title to their lands and ordered the government to respect and demarcate their territory.

In 2010, in another ruling, the Supreme Court found that all Mayan communities in the Toledo District held customary collective rights over the land and resources. Finally, in April 2014, the Supreme Court ruled that the permits granted to the oil company for oil drilling and road construction were unreasonable and unlawful, and in breach of the UN Declaration on the Rights of Indigenous Peoples. All these decisions made clear that the government had an obligation to recognise the collective land ownership of the concerned communities and also to obtain their free, prior and informed consent before awarding concessions on their territories.

Despite decisions at both national and regional levels, the government continued to allow USCapital Energy activities within the region without obtaining the free, prior, and informed consent of the local Mayan communities.

Moving forward: consultations before exploitation of resources

The CCJ decision upholds all the previous rulings, and recognises the Maya’s rights to their ancestral lands. It is worth noting that the Court adopted a consent order, meaning that the parties have agreed to settle virtually all the points of contention. An important aspect of this consent order relates to the agreement by the government to establish a process of consultation with the concerned indigenous communities before any outside persons or entities gets permission to exploit resources inside their customary lands.

This decision is of the utmost importance. Not only does it recognise that indigenous peoples land rights should be protected and guaranteed at the national level, but it also means that no concession for exploitation of natural resources can be granted without the consent of the concerned indigenous peoples.

The Court has also declared that it will retain  jurisdiction to supervise that the Government commitments are carried out. It has set 30 April 2016 as the day when the litigants will report back to the court on progress made towards the implementation of the agreement. This will give a chance to see whether and how the government has put in place a meaningful system to ensure that the free, prior and informed consent of the communities is respected.

For more information see:

-       Chelsea Purvis: ‘Suddenly we have no more power’: Oil drilling on Maya and Garifuna land in Belize (Minority Rights Group International, September 2013):

-       Indigenous Peoples Law & Policy Program: Maya Communities of Southern Belize:

-       Audio of the CCJ hearings are available on the CCJ’s website.


New Developments in Corporate Criminal Liability: Lecture at the ICC Summer School 2015 – Galway

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Every year it is my pleasure to speak at the International Criminal Court Summer School in Galway, where I used to work. This coming June, once again, I will be presenting on corporate liability in international criminal law. Since last year, exciting developments have occurred in the field: the Special Tribunal for Lebanon became the first international tribunal to consider holding a private corporation criminally liable (for contempt of court), a case was brought at the ICC against the top management of Chevron, and discussions on the proposed business and human rights treaty have included corporate accountability for international crimes. I will be covering these aspects, and much more at the Summer School.

Here is more information on the Summer School:

The ICC Summer School at the Irish Centre for Human Rights is the premier summer school on the International Criminal Court, the world’s permanent institution for the trial of international crimes. This year’s ICC Summer School will take place from 15-19 June 2015 at NUI Galway, Ireland. The Summer School comprises a series of intensive and interactive lectures over five days given by leading academics and legal professionals working at the International Criminal Court. Participants are provided with a detailed working knowledge of the establishment of the Court, its structures, operations, and applicable law. Specific topics covered include international crimes (genocide, war crimes, crimes against humanity & aggression), jurisdiction, modes of liability, the role of victims and prosecutorial discretion. This year’s Summer School will include a special session on Palestine and the International Criminal Court, which will involve the participation of the Palestinian Ambassador to Ireland, Ambassador Ahmad Abdelrazek. The Summer School is suited to postgraduate students, legal professionals, journalists and staff of civil society or intergovernmental organisations.

The 2015 ICC Summer School faculty includes:

Professor William Schabas – Middlesex University & Irish Centre for Human Rights

Professor Kevin Jon Heller – School of Oriental and African Studies, London

Dr. Fabricio Guariglia – Office of the Prosecutor at the International Criminal Court

Dr. Mohamed M. El Zeidy – Pre-Trial Chamber II at the International Criminal Court

Dr. Rod Rastan – Office of the Prosecutor at the International Criminal Court

Professor Ray Murphy – Irish Centre for Human Rights, NUI Galway

Professor Don Ferencz, Visiting Professor, School of Law, Middlesex University; Research Associate, Oxford University Faculty of Law Centre for Criminology

Dr. Kwadwo Appiagyei Atua – University of Ghana and University of Lincoln

Dr. Michael Kearney – School of Law, Sussex University

Dr. Noelle Higgins – Senior Lecturer, Law Department Maynooth University

Ms. Salma Karmi-Ayyoub – Barrister, London

Dr. Nadia Bernaz – School of Law, Middlesex University

Mr. John McManus – Canadian Department of Justice

Professor Megan A. Fairlie – Florida International University

Dr. Mohamed Badar – Northumbria University, United Kingdom

Dr. Shane Darcy – Irish Centre for Human Rights, NUI Galway

The deadline for availing of the early bird registration fee of €400 has been extended until 20 April 2015, with the fee for registrations after that date being €450. The closing date for registrations is 30 May 2015. The registration fee includes all course materials, all lunches and refreshments, a social activity and a closing dinner. The registration fee also includes a complimentary copy of: William A. Schabas, Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2011, 4th ed.).

To register and for more information, please visit the Summer School’s website .

Should you have any queries, please email: iccsummerschool@gmail.com.


Special Tribunal for Lebanon: Appeals Panel Confirms Jurisdiction over Corporations in Akhbar Beirut S.A.L. Contempt Case

© Image from Wikipedia

 

On 23 January 2015 the Appeals Panel of the Special Tribunal for Lebanon decided that the Tribunal has jurisdiction in the contempt case against the media company Akhbar Beirut S.A.L. This is the second decision in which this body concludes that the Tribunal has jurisdiction over a legal person (the first one was in the New TV S.A.L. case).

This decision is what appears to be the final development with regard to jurisdiction in the twin contempt cases against New TV S.A.L. and Akhbar Beirut S.A.L. The two media companies are charged with contempt for having revealed names of witnesses of the Tribunal which should have remained confidential.

The Appeals Panel had already ruled the Tribunal had jurisdiction over corporations in contempt cases in New TV S.A.L. in October 2014 (I wrote about this here). This was the first time an international tribunal ever asserted jurisdiction over a corporation. However, in an unexpected turn of events, the contempt judge refused to follow their findings and dropped the case against Akhbar Beirut S.A.L. in November 2014 (see blog post here).

In this final decision in Akhbar Beirut S.A.L., the Appeals Panel confirmed the findings of New TV S.A.L. and criticized the decision of the Contempt Judge to ignore these findings. For the Panel, “it would have been preferable and important for judicial certainty as well as to avoid the fragmentation of the law, for the Contempt Judge to have followed the conclusions of the New TV Jurisdiction Appeal Decision.” [para. 71]

In a strong dissent, Judge Nosworthy argued that the Contempt Judge was bound by the previous decision and that the Panel was wrong in considering that it was simply “preferable” for him to apply it.

While not adding anything new to the discussion over corporate criminal liability under international law, the Akhbar Beirut S.A.L. Appeal Decision is important in that it confirms the findings of New TV S.A.L., which is therefore no longer an isolated decision. Slowly, the notion of corporate criminal liability under international law is gaining ground.


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