2. RESPONSIBILIZING GLOBAL ACTORS
The role of law is not only to resist but also to responsibilize the global actors (Delmas-Marty, Supiot 2015). What does this formula mean? This means making prohibitions enforceable against the holders of global power on the one hand and, on the other, in case of violations, bringing the perpetrators before a national or international court. While this double objective is clear, the approach to reaching it is less so.
A first obstacle relates to the range of actors who exercise global power in the absence of a global State. We are dealing not only with States and international organizations but also with the variety of actors of the civil society: scientific actors, that is, experts whose knowledge is already global; civil-society actors, such as non-governmental organizations that advocate major reforms and have often represented their starting point too, as in the case of the establishment of the ICC. Last and most importantly, private economic actors, meaning transnational corporations: suffice it to think that two-thirds of the main hundred economic subjects are corporations. Despite this, the ascertainment of their juridical responsibility is essentially still limited to the national level. Therefore, primarily it is necessary to extend the list of legally liable persons on a global scale.
Another obstacle, which also derives from globalization, pertains to the fragility of humanity and its interdependency with non-human living beings. Under the joint impact of scientific discoveries and technological innovations, and urged by the environmental issue, the law is by now at the forefront of safeguarding not only the current generations but also the future generations, as well as the non-human living beings (animals and nature). Thus, it is necessary to increase our responsibility towards what we might call the “duty to protect” the new centers of interest, neither objects nor subjects, but the living non-human world and the future generations. The point is, therefore, to develop an ambitious program to responsibilize the global actors in order to avoid dehumanization and denaturation.
The extension of the legally liable persons
States and Heads of State
The great revolution (Zarka 2018) – the term is not excessive – of the second half of the 20th century is the introduction of State responsibility before international justice in case of human rights violations. While this is only true for some geographical areas because a global Court of human rights does not exist, such jurisdiction represents a true revolution for the regions where it does exist. Another fundamental facet of this revolution is the possibility to invoke the criminal responsibility of Heads of State – not only former Heads of State but also those in charge – in case of commission of crimes against humanity under the jurisdiction of the ICC. Therefore, although we do already have at our disposal new legal instruments, these are still applied only partly, either little or incorrectly, because the political will remains hesitant if not downright resistant. As far as Heads of State are concerned, primarily we should recall the case of Pinochet: in the end, the general was tried in his own country. Milošević, on the other hand, was arrested and brought to international trial, but he died before being sentenced. Saddam Hussein was arrested and sentenced, yet under circumstances that are difficult to define as “fair justice”. As for Gaddafi, he was killed extra-judicially, as Osama Bin Laden was. No matter how imperfect, however, the responsibility of States is taking shape on a global scale.
Climate responsibility
This is one of the most recent aspects of the ongoing revolution. By focusing on court cases dealing with the effects of climate change ascribed to States or transnational corporations, the Grantham Institute report estimated their number at over 1.000, of which 654 are in the United States and 230 are distributed over more than 24 countries. Cited in a 2018 publication (Cournil, Varison 2018), the report provides a concrete picture of the new obligations, the breach of which entails State responsibility. These obligations arise first and foremost from the new interpretation of constitutional rights stemming from a series of litigations that have become “emblematic”, such as the 2015 Urgenda case in the Netherlands – the first to be initiated –, the Juliana case in the United States and the Klimaatzaak case in Belgium, as well as the legal actions promoted in Switzerland by the Association of Swiss Senior Women for Climate Protection. Independently from the constitutional rights, the human rights field has been involved in this revolution too, for example by the Commission on Human Rights of the Philippines and the Inter-American System for the Protection of Human Rights through indigenous peoples’ safeguards. Lastly, the Grantham Institute Report examines the prospects for the evolution of various emerging instruments, such as the Nationally Determined Contributions (NDCs or INDCs standing for “Intended Nationally Determined Contributions”), which were invoked before an international judge or on the occasion of domestic disputes (in France but also in the United States). These contributions can now directly bind States.
Transnational corporations
As far as transnational corporations are concerned, the revolution is yet to be completed. Throughout the course, we analyzed several reports demonstrating the involvement of some corporations in the commission of the most serious international crimes, that is, crimes under the jurisprudence of the ICC. Such involvement can be indirect, when a company furnishes goods and services which contribute to the commission of the crime, or direct, for instance when the company illegally exploits natural resources for its supply chains, causing violent conflicts. For a long time, on the other hand, the recommendations of the World Bank have regarded the respect of human rights as an obstacle to trade – not as a real political will – since the States aim above all to safeguard potential investors, who are the creators of new jobs. However, we can note some early signs of transformation: suffice it to recall the recent appearance of concepts such as “corporate social responsibility” and “shared social responsibility”. Still, these terms are ambiguous. “Social responsibility” could be understood as the participation of the greatest possible number of actors in collective decisions: the States, but also the actors of civil society. In this sense, corporate social responsibility enjoys broad consensus, but it also risks appearing as a catalogue of good intentions that serve as an excuse to disengage or avert responsibility from the States. This notion of social responsibility should actually lead to accepting the idea of a full juridical responsibility of corporations, which would in turn entail their opposability and justiciability, exactly as it occurs for States. To effectively fight against the risks of dehumanization, it is necessary to ensure that rights are truly enforceable against transnational corporations. In addition to this, several practices must be improved in terms of transparency, the identification of those who are responsible within a specific group or the responsibility of juridical entities; opposability is indeed directly linked to the matter of justiciability because, to be able to refer to a judge, it is necessary to be able to identify the responsible person and attribute responsibility, even if it is a legal person.
Corporate Duty of Vigilance
Following the 2013 collapse of Rana Plaza, France was the first country to adopt a law on the duty of vigilance for parent and instructing companies, with the objective to reinforce prevention against violations of fundamental rights and the environment related to the activity of multinational corporations. Applicable to all companies with more than 5.000 employees in France and more than 10.000 employees abroad, the law of 27 March 2017 imposes the legal obligation to identify and prevent human rights violations and environmental damages that could derive not only from the business of the parent company but also from its controlled subsidiaries, subcontractors and the suppliers with whom these multinational corporations maintain an established commercial relationship, in France and abroad.
Two years later, on 21 February 2019, a group of NGOs (Les Amis de la Terre, Sherpa and their partners) published a disquieting evaluation of the concrete outcomes of this binding measure, still insufficiently and poorly applied. The first vigilance plans to be presented by companies in 2018 were often incomplete; sometimes they were not published at all. The report, therefore, requested companies to comply more adequately with this legal obligation. Out of the 80 vigilance plans analyzed, the majority only partly responded to the requirements of the law, in particular as regards the identification of risks of violation, their mapping and the implementation of measures designed to prevent them. Even more serious is the fact that some companies had not published a vigilance plan, despite the existing legal obligation. Some sectors appear to be particularly at risk from the point of view of human rights violations and environmental damages: these are the extractive industries, arms sector, garment sector, and the agri-food and banking services sectors. Despite all this, however, a project for a UN treaty on business and human rights (2014-2019) shows that steps have been taken towards an effective responsibility.
Much remains also to be done in terms of justiciability. At the international level, the possibility of extending the jurisdiction of the ICC to corporations is under discussion. This topic was actually not dealt with during the Review Conference of the Rome Statute in Kampala; it was discussed by some university professors, gathered by Emmanuel Decaux at the University of Paris II, on the basis of the proposal – advanced by a group of American researchers – to introduce the responsibility of legal persons before the ICC. This could pave the way to justiciability, although the latter would clearly be limited to extreme cases. The less severe cases should be dealt with at the national level. In this case, however, a question arises: should priority be given to carrying out the trial in the country of destination or in the country of establishment of the corporation? Generally, the country of destination does not have the means to conduct investigations, while the country of establishment, despite having them, often does not have the will to proceed. Therefore, many obstacles remain, both political and legal.
In order to overcome them, the currently most widely used solution – which, however, I do not consider to be the most appropriate one – consists in recurring to the universal jurisdiction of some major State, in particular the US. The universal jurisdiction of the US judges, based on a 1789 text revived in the 1980s, that is, the Alien Tort Statute (ATS), enables providing civil compensation – we are not within the criminal field – to the victims of international law violations – i.e., an extremely large category – even when these were committed abroad by foreign citizens against other foreign citizens. With a change of the approach of the US jurisprudence, the Supreme Court of the United States seems to exclude universal jurisdiction for legal persons and limit it to natural persons. I’m not sure we should regret this, since I believe that recourse to universal jurisdiction is not a good solution: if monopolized by some countries, it would risk leading to a series of severe and generalized inequalities. Let us imagine the political-legal chaos we would plunge into if a court from any country could rule according to its domestic legislation on the violations under international law, committed in any part of the world.
Instead, an international treaty could be adopted to confer jurisdiction on the country of establishment and to provide for a series of criteria to limit the referral to the country of destination, and to allow the latter to carry out investigations. Yet, we are still far from this. A strong push to move in this direction undoubtedly comes from the pressures of NGOs, citizens and civil society. We can probably make the same considerations regarding the other form that illustrates the process of responsibilization, that is, the extension of the content of liability.
Continue to p. 2 – The extension of the content of liability