As partial fulfillment of the requirement for the degree LLB at the University of Pretoria, Alexander Van Der Laan wrote his dissertation on the enforcement of human rights obligations on corporations by analysing the limitations of international law with regard to human rights enforcement against corporations, summarised as follows:
Full Dissertation
Full Dissertation
The protection of human rights remains one of the principal aims of international
law. Additionally, there exists multiple sources of international law, such as the
UN charter and Universal Declaration of Human Rights, which specifically refer
to the protection of such rights. Despite this, there are still entities, such
as corporations, which face no liability for human rights abuses.
For that
reason the research problem that forms the basis of this essay is that the
limitations of international law currently in place regarding corporations and
other non-state entities have allowed for gross human rights violations to
occur devoid of accountability.
The Assumptions
This essay is based on the following assumptions:
Firstly, that international law remains an important
and vital source of human rights enforcement globally, and yet it is found to
be inefficient when regulating the actions of non-state parties.
Secondly, there are domestic law solutions in place
that can be considered in the absence of international law jurisdiction.
However, these domestic law solutions are often also found to be lacking in
effectiveness.
Thirdly, corporations such as those found in case law,
have continued to avoid accountability through both domestic and international
law, due to this lack of jurisdiction.
Fourthly, the most favoured approach with regard to
human rights obligations being imposed on corporations remains an indirect
approach whereby states are held liable for the actions of MNCs within their
jurisdiction.
Finally, there exist few other resources available to
victims of human rights abuses to utilise and therefore it would be valuable to
analyse which international mechanism could best be adapted to address these
infringements.
The Research Aims
The aim of this dissertation is to
show the uncertainity regarding the regulation of multinational corporations.
It will also address how human rights violations are implied to be regulated
domestically, when in truth this is often not the case. It will then go on to
show how this lack of legal certainity has created an environment where victims
of corporate human rights abuses go without justice.
The practical aim of this dissertation is to highlight
the need for more discussion regarding the actions of corporations in an
international law context regarding the violation of human rights, and to
contribute to the pursuit of effective global human rights protection.
The Chapter Overview
Chapter two will look at the
multiple cases in which corporations have violated human rights laws. I will go
into detail with regard to the different ways in which corporations can
implicate themselves in human rights violations. Secondly I will specifically
discuss the Kiobel and Apartheid reparations cases, which provide
a better understanding of the current international law position regarding
corporations. Finally, in order to establish a basis for the rest of the dissertation I will
discuss other cases which have also dealt with corporate human rights abuses.
In chapter three I will
then discuss the current position of international law with regard to
corporations as well as human rights in general. This will help to identify to
what extent international law is intended to protect human rights. I will
discuss multiple sources of human rights within international law and how and
to whom they are enforced.
In chapter four I will go
into depth regarding the obligations that international law has imposed on
corporations so far, both directly and indirectly. I will also discuss whether
corporations are ‘subjects’ under international law and what impact this has on
the enforcement of such laws. I will then discuss the possible enforcement
mechanisms that could be utilised to aid in the protection of human rights.
Finally I will also address the issue of ‘corporate complicity’.
Chapter five will explore
possible alternatives which could also be used to promote the enforcement of
human rights against corporations. I will go into detail regarding the Alien
Tort Statute, discussing both its advantages and short comings. Finally I will
look at other possible institutions that could aid in international human
rights enforcement.
Finally, in the concluding chapter I will provide a
conclusion to the dissertation and provide possible suggestions as to how one
would proceed with the discussion on corporate liability. I will also highlight
which aspects need to be considered when one looks to broaden the jurisdiction
of international law to include corporations.
The Conclusion
The purpose of this dissertation is to prove that even
though international law aims to enact and protect human rights, the current
position remains inadequate in providing relief for victims of human rights
infringements where the perpetrators are corporations. Furthermore, this dissertation will provide
insight into the possibility of corporate liability and the possible
enforcement mechanisms that could be utilised to enforce these corporate
obligations.
24 October 2016
Prepared by Alexander Van Der Laan under the supervision of Professor Dire Tladi at the University of Pretoria.
24 October 2016
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