Full Description
This book analyses the accountability of European home States for their failure to secure the human rights of victims from host States against transnational enterprises. It argues for a reconfiguration of the relationship between multinational enterprises and individuals, both of which have been profoundly changed by globalisation. Enterprises are now supranational entities with numerous affiliates all over the world. Likewise, individuals are increasingly part of a global community. Despite this, the relationship between the two is deregulated. Addressing this gap, this study proposes an innovative business and human rights litigation strategy. Human rights advocates could file a test case against a European home State, at the European Court of Human Rights, for its failure to secure the rights of victims vis-à-vis European multinational enterprises. The book illustrates why such a strategy is needed, and points to the lack of effective legal remedies against European multinationals. The goal is to empower victims from developing countries against European States which are failing to hold multinational enterprises accountable for human rights abuses.
Contents
1. The Case for Legal Reform
I. From States to Non-State Actors
II. The Legal Framework for Multinational Enterprises
A. Primary and Secondary Rules
B. The Standards of Conduct and Review
C. The Third Agency Problem
III. The Avenues for Legal Change
A. Soft Law: Blaming and Shaming
B. Litigation Against Companies in Domestic Courts
C. Litigation Against States
IV. The Perspective of Victims
A. Case Studies
B. Normative Argument
2. The Obligations of Multinational Companies
I. Remedies in the Host State
A. Undercapitalisation
B. Investment Law
C. Complicity
II. Remedies in the Home State
A. Soft Laws
B. European Union Law
C. Domestic Law
3. The International Legal Obligations of States
I. The Nature of State Obligations
A. Negative Obligations
B. Positive Obligations
C. Overcoming the Dichotomy
D. The Duties to Respect, Protect and Fulfil
II. The Positive Obligation to Secure that Enterprises Respect Human Rights in the European Convention on Human Rights
A. The Obligation to Secure
B. The Procedural Duty to Protect and the Right to an Effective Remedy
C. The Duty to Fulfil
III. The Application to the Case Studies
IV. Conclusion
4. Extraterritoriality
I. Lex Lata: Extraterritoriality in the European Convention on Human Rights
A. Extraterritorial Control
B. The Duty to Protect: Territorial Control with Extraterritorial Effects
C. The Duty to Fulfil: The Ability to Influence
II. Lex Ferenda: The State's Duties and Multinational Enterprises
A. Extraterritoriality
B. Positive Obligations and Private Enterprises
C. The Duty to Protect and Multinational Enterprises
D. The Duty to Fulfil and Multinational Enterprises
III. The Extraterritorial Application to the Case Studies
A. Duty to Protect
B. Duty to Fulfil
IV. Conclusion
5. An Agenda for Legal Reform
I. Duty to Protect
A. New Binding Obligations
B. Existing Domestic Laws
II. Duty to Fulfil
A. Bilateral Investment Treaties and Free Trade Agreements
B. Ethical Investment Policies
III. Conclusion
