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9. The United Nations Global Compact and Human Rights
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184 9 | The United Nations Global Compact and Human Rights A Modest but Useful Niche Douglass Cassel My remarks concern the human rights principles of the united nations Global compact. Principles 1 and 2 are as follows: Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses.1 Principles 3 through 6 concern labor rights, which are also human rights. however, they raise different issues than do Principles 1 and 2. For example, the labor rights principles interact with the monitoring procedures of the International Labor organization.2 I do not address them here, and confine my remarks to Principles 1 and 2. cRITIQuInG The GLoBAL coMPAcT It would be easy for critics to attack the Global compact human rights principles.3 They are open to the following charges: The united nations Global compact and human Rights 185 Vague: What conduct must companies engage in if they are to “support and respect” human rights? Which human rights are “internationally proclaimed”? Nonbinding: The principles state that businesses “should” support and respect human rights, not that they “must” do so. Nonenforceable: The Global compact has no mechanism, beyond self-reporting, to monitor or enforce compliance with its principles. companies are asked to file annual “communications on Progress,” or “coP’s.” But no minimum progress is required or even monitored. The only sanctions are for a company to be designated “noncommunicating” if it fails to file a proper report, and to be expelled if it fails to do so two years running.4 Not Taken Seriously: even this minimal reporting obligation is ignored by many companies. of the over 11,000 companies who have signed on to the Global compact as of 2013, over 4,000—about 35 percent—have been expelled for failing to file reports or proper reports.5 Relatively Few Members: While the Global compact’s 7,000 companies make it one of the largest global organizations of corporations claiming to make human rights commitments, its membership barely penetrates the universe of some 80,000 multinational corporations, ten times as many subsidiaries, and many more national companies.6 In short, critics may say, the Global compact human rights principles are at best meaningless, feel-good exercises in self-congratulation, and, at worst, misleading public relations gimmicks. DeFenDInG The GLoBAL coMPAcT I do not share that critical view, mainly for three reasons. First, the Global compact is not the only corporate human rights game in town. There are other norms, instruments, and regimes with greater specificity and more teeth. For example: Criminal Prosecution: corporate executives, such as those who supplied Zyklon B to the nazi gas chambers, were prosecuted at nuremberg.7 Although international law does not generally expose corporations to criminal prosecution,8 corporations may be criminally prosecuted under national laws in many countries. For example, [44.200.210.43] Project MUSE (2024-03-28 22:18 GMT) 186 Douglass Cassel Trafigura was fined one million euros by a Dutch court for toxic dumping in cote D’Ivoire.9 Suits for money damages: corporate executives may be sued in u.S. courts under the Alien Tort claims Act (ATcA)10 for complicity in human rights violations. Whether they must have a purpose to aid and abet human rights violations, or merely knowledge that they are doing so, is currently in dispute among appellate courts.11 Whether corporations (and not merely their executives) may be similarly sued under ATcA is also a question on which appellate courts currently disagree.12 In 2013, after hearing argument on whether corporations may be sued, the Supreme court in Kiobel v. Royal Dutch Petroleum Company nonetheless did not decide the issue, ruling instead that u.S. courts generally have no jurisdiction under ATcA over human rights violations committed in a foreign country.13 Kiobel arguably leaves open several questions, including whether u.S. courts may hear ATcA cases against u.S. corporations (as opposed to the foreign companies sued in Kiobel) for violations overseas. however, even if the court were to rule entirely against allowing cases against corporations under ATcA, suits against corporations for money damages can still be brought under state tort laws14 and before courts of foreign nations.15 Human Rights Conditions on Project Finance: under the “equator Principles,” more than seventy major private and public international banks require borrowers in project finance transactions, for projects whose total capital costs exceed $10 million, to conduct...