Corporate complicity of multinational corporations in serious human rights abuses: The intersection of international and domestic law

Abstract

Multinational corporations (MNCs) are often complicit together with their subsidiaries in serious human rights abuses. However, international law does not impose positive duties on corporations. Instead, soft law initiatives require MNCs to comply with human rights standards, though without them being legally enforceable, they may not prove effective. As MNCs are not subjects which can be pursued for serious human rights abuses, such as forced labour or slavery, at the International Criminal Court, victims must try and seek redress from parent companies in the home states where they are based. Yet subsidiaries in host states are often underfunded and the legal framework in the host state may not support their claims and/or the host state may have been complicit in perpetrating serious human rights abuse. Victims can, therefore, only bring transnational tort law proceedings in domestic courts, such as the UK, US and Canada, in respect of their serious human rights abuse cases. This is arguably an inappropriate remedy for what can sometimes be international crimes. Moreover, victims must overcome numerous legal hurdles, which range from overcoming the doctrine of separate personality, which shields MNCs from the liabilities of their subsidiaries and must establish that there exists a duty of care, but which can prove challenging. When claims are brought under the United States (US) Alien Tort Statute 1789 (ATS), the serious restrictions which recent case law has imposed must be overcome. Additionally, transnational tort litigations may be frustrated because it can prove difficult to establish jurisdiction, including because of the forum non conveniens concept, customary international law not recognising corporate liability, and extraterritoriality and jurisdictional immunities further thwarting any attempts to successfully establish claims. It is argued that steps need to be taken to close the governance gap of MNCs and to put an end to corporate impunity.