9.3.2 Legal opinions on the application of human rights treaties to companies

According to Clapham, the network of international treaties concerned with the criminalisation of the acts of legal persons lead to conceive that legal persons, such as companies, can commit international crimes, and that they may be put on trial, in some circumstances, outside the jurisdiction in which the crime took place.1 Importantly for him, the lack of the International Criminal Court's jurisdiction over legal persons for war crimes should not be misleading to consider that the human rights law does not apply to companies; the international legal order has already been adapted to define corporate crimes in international law and to oblige States to criminalise this behaviour. It clearly appears that "lack of international jurisdiction to try a corporation does not mean that a corporation is under no international legal obligation".2 Treaties on corruption, environmental crimes, financing of terrorism groups, and trafficking by organised criminal groups illustrate that international law treaties are in fact used to address the behaviour of companies.3 States are bound under international law to ensure that companies respect the particular obligations as defined by these international instruments.4 Therefore, these treaties require that State Parties implement the said obligations into national law, including the adoption of related sanctions. For instance, article 26 of the UN Convention against Corruption on the liability of legal persons indicates that "Each State Party shall adopt such measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for participation in the offences established in accordance with this Convention".5

Moreover, Clapham upheld that protection should exist for all violations of human rights, thus not exclusively when the violator is an agent of the State. For instance, in the case of the ECHR, this could be legally justified by a dynamic interpretation considering the general evolution of international law and in particular the international law of human rights.6

Nevertheless, there is an existing limitation on imposing direct obligations on companies via treaties:

For Muchlinsky, common arguments against the extension of human rights responsibilities to multinational companies can be refuted. He explained that companies "have been expected to observe socially responsible standards of behaviour for a long time" in national and international law (as well as in Codes of Conduct) set by inter-governmental organisations; their social responsibility is then not limited to making profits for the shareholders.8 This implies that multinational companies should be subject to human rights obligations because human dignity must be protected in every circumstance.9 Despite this justification, Muchlinsky concluded that the content of legal obligations of multinational companies in regard to human rights violations remains uncertain and the actual related claims are still to be adequately developed. States remain the ultimate responsible actors for human rights protection and, therefore, multinational companies "should not become scapegoats for failures of governance on the part of host country governments".10

Interestingly, Jägers pointed out that human rights instruments might entail obligations for companies via the doctrine of horizontal effect or Drittwirkung or 'third-party effect'.11 Following this doctrine, certain rights do not only apply to the vertical relationship between governments and individuals but also apply to the horizontal relationship, for instance between an individual and a company.12 She explained that the horizontal effect of human rights emanate from the very nature of human rights and from general provisions contained in human rights treaties, notably the UDHR, the ICCPR, ICESCR and the ECHR. This doctrine is gaining recognition based on "the increased attention to infringements on human dignity by non-State entities".13

Jägers concluded that general provisions do not independently provide enough strong evidence that norms of international human rights law can be applied horizontally. An examination of each right is necessary to establish whether it is indeed applicable to non-State actors, i.e. has horizontal effect.14 Her analysis of the provisions of the above mentioned human rights instruments reveals that a significant number of norms are, in her opinion, applicable to companies "in practice and on the grounds of principles". Equality and prohibition of discrimination, right to life, prohibition of slavery and forced labour and prohibition of torture should be guaranteed by companies. Her analysis is based on the fact that these provisions "aim to protect interests of a fundamental nature"; they belong to the category of ius cogens. In her view, other norms are applicable to companies "in practice". For instance, the right to property based on article 17 of the UDHR15 can be violated by companies, in certain circumstances, in the light of a subsistence right to property.16

According to Jägers, the activities of oil companies in the Niger Delta resulting in the destruction of local livelihood, such as fishing grounds, can constitute a violation of the corporate duty to respect the right to food of the inhabitants. Articles 25 of the UDHR and 11 of the ICESCR, for example, contain the right to an adequate standard of living including the right to food. As stressed by Jägers, this right to food can be interpreted as including the duty of a company to not interfere with the ability of people to satisfy their food needs. In addition, it could be argued that the right to life (articles 3 of the UDHR and 6 of the ICCPR) implies that a company shall take measures to ensure that its business partners do not violate this right. Jägers refers to the security arrangements of oil companies operating in Nigeria with private security forces to protect their property. Especially, a violation would occur by providing arms to such security forces that are notorious for violating the right to life. In addition, this concerns an additional type of corporate obligations: the duty not to cooperate.17

Hence, there is on the one hand, a common agreement among these authors that multinational companies should be held responsible for infringements ofhuman rights. Several arguments have been explored to support this principle, for instance, by referring to human dignity or to the horizontal effects of human rights. On the other hand, it remains uncertain to which extent human rights law applies to companies under international public law and even more uncertain whether it is an extent commensurate with their effective role and influence in the present global society.18 As underlined, human rights treaties do not impose direct obligations on non-state actors such as companies. This results in a lack of clear guidance for businesses. Furthermore, none of the international bodies dealing with human rights have jurisdiction over companies directly. In the case of enforcing human rights obligations on multinational companies operating in Nigeria, additional challenges should also be considered.

As highlighted in section 9.2, companies have been accused of violating human rights in collusion with the Nigerian Government. Considering the profits received directly from the oil industries owned by foreign companies, the host-state government may lack the political will to prevent or mitigate the negative economic, environmental and social impacts of natural resource extraction.19 This indifference can also be motivated by fear that greater accountability can provoke companies to withdraw their much-needed foreign investments.20 Consequently, human rights treaties have little impact in such a situation where a government lacks the willingness or sometimes the means to enforce them. On the one hand, it is doubtful whether the adoption of an international treaty related to human rights abuses by companies would improve the situation, for instance, in the Niger Delta. It is uncertain whether

governments would take subsequent national measures - including penal sanctions - to implement and enforce the said treaty within their territory. On the other hand, such a treaty could contain provisions on its extraterritorial application, which would allow foreign governments to control the behaviour of their multinational companies operating abroad. Nevertheless, the efficiency of such a regime can be discussed considering, among others, the principle of State sovereignty, the related costs of conducting an investigation abroad, and the feasibility at the technical level.

The lack of certainty on the application of human rights to companies led the UN Human Rights Council to call for further analysis in this field. The result is an important development on the application of human rights responsibility on companies: the Ruggie Report.