ECCHR! DOCUMENTATION EUROPEAN CENTER FOR CONSTITUTIONAL AND HUMAN RIGHTSon Transnational Corporations and Human Rights9 10 October 2008 in Berlin, Organized by ECCHR in cooperation with Brot fr die Welt and MISEREOR, along with kind support from Stiftung Menschenwrde und Arbeitswelt

International Conference

CONTENTIntroduction CONFERENCE REPORT I. Opening Remarks II. Transnational Corporations and Human Rights in a Globalized World III. State Responsibility and Extraterritorial State Obligations Regarding Transnational Corporations and Human Rights IV. Litigating Human Rights V. Panel Discussion on New Approaches of the Human Rights Movement VI. Agribusiness and the Right to Food VII. Working Groups VIII. Scope of Accountability of Transnational Companies for Human Rights Violations IX. Panel Discussion on Chances and Disadvantages of Litigation, Soft-law Mechanisms and Code of Conducts X. Interviews with Experts 1. Interview with Peter Weiss (USA) 2. Interview with Jean Claude Katende (DRC) and Jacqueline Moudena (Chad) 3. Interview with Colin Gonsalves (India) and Patrick Sindane (South Africa) 4. Interview with Badi Hima (Niger) 5. Interview with Yann Queinnec (France) XI. Presentation of Speakers

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INTRODUCTIONAs globalisation progresses, human rights obligations are developing into internationally binding system of norms which stretches beyond states and civil society to the activities of private enterprises. As early as the 1970s, the UN, ILO and OECD began devising international directives for corporations acting at a transnational level, and a large number of codes of conduct emerged out of public and private initiatives. However, these developments have proven ineffective in preventing human rights abuses committed or aided by private enterprises, and many transnational corporations business practices remain subject to severe criticism.

been initiated against these enterprises for human and environmental rights violations across several jurisdictions aim for - an acknowledgement that enterprises are bound by defined minimum human rights standards, the violation of which can be legally sanctioned.

The primary focus of this criticism is the violation of basic standards of protection for consumers, employees and wider population, and the direct and indirect involvement of enterprises in war crimes and crimes against humanity. Particularly concerning is the extractive industries, where oil groups and mining enterprises are frequently criticised for violating human rights and fuelling armed conflicts. There are regular reports of inhumane working conditions in the clothing and other industries, and transnational enterprises involved in agribusiness or the construction of large infrastructure projects have a substantial influence over many local populations rights to food and water.

Identifying transnational enterprises legal obligations to respect human rights in a broad sense is difficult, both in relation to standard setting and the enforcement of existing norms. This ambiguity in turn sheds doubt on transnational enterprises duty to adhere to international law and human rights. Further, there are no means by which these corporations can be held accountable in international human rights courts, and the enforcement of private claims and the initiation of criminal proceedings against transnational enterprises in national courts are hindered by complicated supply chains and enterprises comprised of several subsidiaries. This necessitates a coordinated strategy stretching across several jurisdictions and utilising different remedies.

However, there is still no consensus as to the scope and content of transnational corporations human rights obligations. Debate is centred on whether enterprises can, as good corporate citizens, voluntarily accept human rights responsibilities, or are legally bound by defined obligations and standards. On the one hand, the private sector advocates voluntary standards for single industries or enterprises and vigorously rejects any legal responsibility. However binding legal standards and accountability are precisely what the large number of court proceedings that have

Also of particular concern is the question of state responsibility for human rights violations committed by private enterprises. Focusing on state responsibility provides an alterative starting point for human rights protection. Such a perspective has the potential to see state responsibility for violations of international law committed by enterprises develop into a duty to control enterprises activities and provide legally enforceable remedies for extraterritorial human rights abuses. State responsibility for private actions (particularly the duty to control extraterritorial violations) remains contested, and concern for state sovereignty has seen some scholars and international legal practitioners maintain certain reservations. However, there are nonetheless perspectives which do confirm state responsibility for private actions under certain conditions.

The aim of the conference was to provide a forum in which legal and social science scholars,

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together with practitioners in development cooperation, human rights and litigation could assess the possibilities and limits of holding enterprises legally accountable for human rights violations on a firm theoretical and analytical basis, and weigh these strategies against other models based on voluntary standards.

satisfactory protection, thus the logical consequence and way forward reached was demanding improvement and reform of the existing substantive law and available remedies.

The analysis of the conflict between business and human rights began with an assessment of the impact of globalised economic structures on the position of transnational enterprises and the importance of human rights, considering the role of states on one hand and the human rights movement on the other. The second half of the conference was structured according to subjects including extractive industries, inhumane working conditions, and the influence of enterprises on the rights to food and water. Relevant cases were presented by speakers, either those which they themselves were working on and in which national or international legal proceedings had already taken place, or cases which had formed the basis of scientific or theoretical classification and research.

At the conclusion of the event a large proportion of presenters and participants agreed that human rights violations committed by transnational enterprises are not only socially and morally repulsive, they breach internationally recognised legal norms. Violations should be legally recognised and investigated by authorities, and private sector initiatives introducing voluntary standards cannot be allowed to replace the enforcement of legal obligations. In order to ensure transnational enterprises are aware of their obligations and prevent further impunity and uncertainty regarding their violations, litigation should be initiated strategically, aggressively and efficiently. More so than any other strategy, litigation ensures comprehensive investigation into human rights violations, and has the necessary long-term effect and sufficient power to enhance corporate awareness of human rights issues. Neither international law nor the European national legal systems provide

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CONFERENCE REPORTOn 9 and 10 October 2008, international experts gathered at the International Conference on Transnational Corporations and Human Rights in Berlin to debate the concrete effects of globalization on human rights and the current situation of human rights violations committed by transnational corporations. Representatives of human rights and development organizations, lawyers, social activists, and sociologists also focused on the transnational struggle to hold corporations accountable for human rights violations. The conference was organized by the European Center for Constitutional and Human Rights (ECCHR) in cooperation with the church aid organizations Brot fr die Welt and Misereor, along with kind support from Stiftung Menschenwrde und Arbeitswelt [Human Dignity and Working World Foundation]. Almost two hundred participants from more than thirty countries attended.

of the German Parliaments Committee on Human Rights and Humanitarian Aid, pointed out that, with regard to private corporations in the global South, the credibility of the Western worlds human rights policy is at risk. In her eyes, the traditional focus on the function of human rights as a means of limiting state power is one-sided. Moreover, she criticized the lack of understanding of Western consumers for human rights standards as soon as it concerns the prices they have to pay for imported products.

I. Opening RemarksThe conference started with an opening statement from Wolfgang Kaleck, General Secretary of the European Center for Constitutional and Human Rights (ECCHR). Mr. Kaleck highlighted the vision of the conference organizers in hopes of stimulating a discussion on the role of legal mechanisms in the fight against human rights violations committed by transnational corporations. He emphasized the need for long-term cooperation between various actors all over the world and that the conference must be viewed as part of a long-term project that reflects the urgent need for a transnational and strategic approach to these issues. Although the law could only be considered part of the solution to a complex problem, it nevertheless marks a red line. Where international crimes are committed, one can no longer speak of voluntary approaches. At that point, the offices of the prosecutor and the investigating judge have to react, he added. Prof. Dr. Herta Dubler-Gmelin, The former German Minister of Justice and current Chairwoman

Herta Dubler-Gmelin, Chairwoman of the Committee for Human Rights and Humanitarian Aid of the German Parliament (Bundestag)

Michael Ratner, President of the US-based Center for Constitutional Rights (CCR), illustrated the long struggle since the late 1970s fought by lawyers in the USA to use the law in a creative way to first hold individuals (e.g. Filrtiga Case), and later corporations (e.g. Chevron and Shell), accountable for human rights violations. He emphasized the importance of networking across borders and pointed out that it should not make a difference whether an individual or a corporation has endorsed torture, slave labor, or similar violations. He called litigation a difficult, but promising, avenue in holding transnational corporations accountable. He stressed the need to move

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from a typical Western-centric perspective focused on civil and political rights, to a more collective social and economic understanding of human rights. The first session of the conference contextualized human rights abuses committed by transnational corporations against the broader backdrop of globalization from a sociological perspective, with particular analyses of the role of nation states. Corporations act globally and utilize forums in numerous nations to pursue their interests. How will civil society react to the challenges that transnational corporations pose to human rights? The discussion revolved around the challenge of defining the role of civil society in holding corporations accountable for human rights abuses in a globalized world.

Danuta Sacher (Brot fr die Welt) and Prof. Dr. Saskia Sassen (Columbia University)

lisierung solchen Verhaltens auch Kontroll- und Regulierungsmechanismen enthalten msse.Key note speaker Saskia Sassen, Professor of Sociology at Columbia University and the London School of Economics, considered the classic confrontation between nation

II. Transnational Corporations and Human Rights in a Globalized WorldDanuta Sacher from Brot fr die Welt emphasized the importance of bringing together development organizations, lawyers from Economic North countries, and activists and lawyers from the South, to jointly discuss strategies to fight the profit-maximizing behaviors of transnational corporations that lead to gross human rights violations. Sacher emphasized the fact that development organizations are faced with such violations in their daily work. She argued that beyond denouncing this behavior, a more systematic approach to control and regulation of corporate activity is needed. Danuta Sacher von Brot fr die Welt betonte die Wichtigkeit, Entwicklungsorganisationen, Juristinnen und Juristen aus Staaten des Nordwestens und Aktivistinnen und Aktivisten sowie Juristinnen und Juristen des Sdens zusammenzubringen. Diese mssten gemeinsam Strategien gegen rein gewinnorientiertes Handeln von transnationalen Unternehmen, welches zu schwerwiegenden Menschenrechtsverletzungen fhrt, erarbeiten. Sie wies darauf hin, dass Entwicklungsorganisationen in ihrer tglichen Arbeit mit solchen Versten konfrontiert seien, und sprach sich fr einen systematischen Ansatz aus, der neben der ffentlichen Skanda-

states and globalization as obsolete. She articulated the power relations within states and the growing power of the executive branch of government as new areas worthy of examination. She pointed specifically to the nation states laws, administration, and court systems, concluding that they in fact have more power in a globalizing world than typically assumed. Within the state sphere, she has detected a growing distance of the executive branch from the legislative as well as from the voters. The executive not legislative or judiciary branch acts within international organizations such as the WTO or the IMF and thereby participates in global politics. More generally, she found the executive powers to be more open to global knowledge than the legislative. As an example, Professor Sassen mentioned the case of the Dubai Port Authority seeking to manage US-owned ports. In contrast to US legislation, the Bush administration supported the plan to put an institution from a Muslim state in charge of US security issues. According to Sassen, national platforms could and should be used for global politics because the average citizen is given a significant share of power. Sassen emphasized that one should be aware that even the power of the most globally active participants in the economic sector and financial markets are limited. As a matter of fact, there are no such legal personae as the global firm or, on the level of the European Union, the European corporation, but only fragments of such a legal unit. This fact could be utilized by the human rights movement to show that inter-

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nationalism could be more than just economically valuable. The national level, including their judicial systems, is the most suitable sphere for global politics since it provides the highest complexity of operations, even when compared to the largest transnational corporations. Therefore, the national level is, according to Sassen, the most appropriate forum for challenging corporations misconduct. To make her case, Sassen referenced lawsuits that the Center for Constitutional Rights has brought against corporations to demonstrate how local actors using local fora can influence global politics. This capacity should not be given up.

Neither global nor national: novel assemblages of territory, authority and rights by Saskia Sassen http://journals.sfu.ca/coaction/index.php/egp/ article/viewArticle/1814/1794 Saskia Sassen also addressed aspects of the current financial crisis. For more information please see an interview with her on 22 September 2008 in the German newspaper taz: www.taz.de/1/debatte/theorie/artikel/1/ es-ist-ein-horrorProf. Dr. Olivier De Schutter, UN Special Rapporteur on the Right to Food

to protect human rights threatened by their transnational corporations operating abroad?

III. State Responsibility and Extraterritorial State Obligations Regarding Transnational Corporations and Human RightsProf. Dr. Olivier De Schutter, UN Special Rapporteur on the Right to Food, discussed the role of states in controlling private corporations abroad. The underlying problem with the primary obligation to protect human rights is generally attributed to the territorially competent state. However, as host states are sometimes unwilling or unable to protect human rights properly, the question arises whether the home state of the transnational corporation is obliged to control its transnational corporation operating abroad. Here, De Schutter identified two main difficulties: Are states bound to comply with their human rights obligations even beyond their national jurisdiction? And if so, are they compelled

As to the first aspect, the question of extraterritoriality, De Schutter addressed the principal problems resulting from the conventional approach of effective control. According to this approach, states have an extraterritorial obligation to protect human rights only when they exercise effective control over a situation or a non-state actor abroad. De Schutter questioned these limitations of state obligations to protect human rights abroad. He depicted a tendency within legal doctrine to extend the obligation to situations where the state in fact is able to exercise its influence. The scope of extraterritorial responsibility is then linked to the degree of the states effective power to control. Such reasoning can be found in the U.N. Committee on Economic, Social and Cultural Rights General Comment No. 14 on the right to the highest attainable standard of health as well as in the revised OECD Gui-

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delines on Multinational Enterprises and the final report of the UN Special Representative of the Secretary-General on Human Rights and Transnational Corporations and Other Business Enterprises - John Ruggie. De Schutter presented five arguments in favor of such an extension of human rights obligations: The human rights obligations imposed under Articles 55 and 56 of the UN Charter; the respective obligations as customary law or as general principles of law; the prohibition imposed on states from allowing the use of their territory in order to commit acts contrary to international law; Art. 16 of the ILCs Articles on the Responsibility of States for Internationally Wrongful Acts (ILCs Articles) which can be used to describe a home states failure to control its corporations as a complicity in the commission of an internationally wrongful act by the host state; and in severe cases the possibility to categorize a home states behavior as coercion of the host state to commit such an act, based on Art. 18 ILCs Articles. Extraterritorial Jurisdiction as a tool for improving the Human Rights Accountability of Transnational Corporations http://198.170.85.29/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdictionDec-2006.pdf

Articles, the same applies to acting on the instructions of, or under the control of, that state. But since private corporations usually act independent of their home state, the attribution according to the above-mentioned principles will not be possible in most cases. Therefore, De Schutter demonstrated a more promising way of imposing state control over private corporations: The obligation of due diligence. Accordingly, the home state has an obligation to adopt all reasonable measures which could prevent human rights from being violated. These measures include both incentive measures as well as prescriptive and adjudicative jurisdiction. Again, De Schutter pointed out that jurisdiction can be a problem in terms of sovereignty of the host state. Establishing civil liability is difficult when the law of the forum state is applied to extraterritorial situations instead of foreign law (lex loci delicti). With regard to criminal liability, extraterritorial jurisdiction is problematic without protection against double jeopardy. De Schutter then discussed under which conditions upheld by international law that extraterritorial civil or criminal liability may be imposed under application of the law of the forum state.

Having addressed the first question, De Schutter discussed possible means to impose an obligation on states to control private corporations. The first method is to attribute the conduct of the transnational corporation to the home state. Such an attribution is recognized if the private corporation is completely interdependent with the state. Moreover, Art. 5 of the ILCs Articles on Responsibility of States for Internationally Wrongful Acts (ILCs Articles) stipulates that the conduct of a private actor can be attributed to the state wherein the private actor is legally empowered to exercise elements of governmental authority. According to Art. 8 of ILCs

De Schutter referred to competition law and its implications where overseas activities have a substantial, direct and foreseeable effect upon, or in, a states territory. Another nexus established in international law is the active or passive personality. The problem that arises here is how to determine the nationality of a corporation. With regard to due diligence obligations for home states, De Schutter suggested as criteria the question of whether or not the respective state has the best means of controlling the corporation, considering such aspects as the place of incorporation, the principal place of business, or the place of the central administration. Finally, in international criminal law the principle of universality is established for certain grave crimes.

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Mr. De Schutter then contrasted the pros and cons of home state extraterritorial jurisdiction.The risks Host State authorities May see home State extraterritorial jurisdiction as a threat to their sovereignty May resent the imposition of foreign values Further regulatory burdens; the risk of conflicting obligations May fear to impose too far-reaching obligations on their companies The advantages May find it easier to control foreign corporations with the assistance of the home State May benefit from an improved protection of their rights Fewer risks to their reputation; ensures a better levelling of the playing field than do voluntariy initiatives May improve trust in their companies and improve their licence to operate

Population in host country Corporation

Home State

De Schutter pointed out that host states may see this as a threat to their sovereignty. On the other hand, some of them might find it easier to control foreign corporations with the assistance of the home state. The population in the host country might resent the imposition of foreign values, but they might as well welcome the improved protection of their rights. The corporations themselves might fear further regulatory burdens and conflicting obligations, but an improved reputation and a more even playing field might also be seen as an advantage. Finally, the home states might be reluctant to impose far-reaching obligations on their companies; at the same time, they might as well appreciate the improved trust in these companies. In De Schutters view, home state extraterritorial jurisdiction is more acceptable the more it is based on universal instead of unilateral standards and the more it is bound to recognize host state regulation, which might even be coordinated with the home state. All in all, according to De Schutter, a multilateral framework agreed upon by all states or by the industrialized countries would be desirable.

In his conclusion, De Schutter pointed out that there is no obstacle under international law to states seeking to regulate and adjudicate the conduct of their corporations operating abroad, provided that the nationality of the corporation is defined on the basis of generally received criteria such as the place of incorporation or the central place of business. Moreover, to overcome the problem of the corporate veil in multinational groups, parent company liability combined with an obligation to control subsidiaries is preferred to direct foreign liability. De Schutter argued that the exercise of extraterritorial jurisdiction might even be obligatory where human rights violations would otherwise remain unaddressed. In order to avoid the dangers of unilateralism, the risk of negative conflicts of jurisdiction (e.g. impunity), and the positive conflicts of jurisdiction (e.g. conflicting requirements), he argued for a clarification of the respective responsibilities of the host state and the home state by adopting a new international instrument.

IV. Litigating Human RightsColin Gonsalves, an Indian lawyer and Director of the Human Rights Law Network, then highlighted the importance of prosecuting corporations. The greatest challenge of prosecuting corporations in his home country, India, is to overcome the companies strangle hold on Parliament. In sharing his broad, practical experience with cases of human rights violations committed by transnational corporations in India, Gonsalves graphically demonstrated to the audience the great variety of these violations: from grain import cases concerning the right to food, to mining cases in areas where indigenous people live, and the pollution of groundwater by Coca-Cola.

Colin Gonsalves zu Coca-Cola und Novartis (Inkl. Videoclip) http://www.ecchr.eu/conference-tnc-reports/ articles/tnc-reports3.html

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Gonsalves also mentioned the vast negative consequences for the environment connected with the mining of aluminum. For example, the Norway Council of Ethics presented a positive case of extraterritorial jurisdiction when they prompted the Norwegian government to withdraw from a mining project in India. In addressing the 1984 tragedy of Bhopal (a chemical calamity with thousands of victims), he focused on the problem of state complicity with the actions of transnational corporations. Even the Indian ex-Prime Minister Rajiv Gandhi is said to have been involved in the settlement with Union Carbide. Therefore, the government and the Supreme Court are joint tortfeasors with the American company that had sizeable control of the Indian subsidiary, Gonsalves added.

For more information about the Voluntary Principles on Security and Human Rights please visit: www.voluntaryprinciples.org

The Voluntary Principles on Security and Human Rights provide a guideline for extractive companies to protect the rights of people affected by their practices. Yet, several problems have been identified in their implementation. The criteria for membership tend to be too exclusive while no effective method for either monitoring or punishing a company exists. Moreover, it is unclear who should be in charge of such sanctioning, especially regarding whether states should be involved. These problems with the Voluntary Principles have led to a falling out of love with such initiatives. It

Interview with Colin Gonsalves

V. Panel Discussion on New Approaches of the Human Rights MovementIn the following panel discussion, Benedetta Lacey of the International Secretariat of Amnesty International in the UK, Sif Thorgeirsson of the British Business & Human Rights Resource Centre, and Michael Windfuhr of Brot fr die Welt shared their experiences on the new approaches for the human rights movement. Benedetta Lacey presented Amnesty Internationals approach to campaigns on specific sectors with particular attention paid to extractive industries. Amnesty International seeks engagement with multinationals to develop self-imposed standards for each individual company. In doing so, the corporations become aware of these issues and are able to learn the language, said Lacey. In 2000, the Voluntary Principles on Security and Human Rights were established by four Western countries (the US, the UK, the Netherlands and Norway), seventeen multinational corporations from the extractive industries and seven NGOs.

Benedetta Lacey (Amnesty International)

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seems that there is little actual change on the ground and, even worse, companies are now validated in their human rights abuses. This gap is highlighted by the report of John Ruggie, the UN Special Representative of the Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises. Three elements, said Lacey, must be considered: the states duty to protect, international standards, and the access to remedy. Each of these elements needs to be made concrete, but the means to accomplishing that are undetermined. In the long-term, laws should be in place that enforce corporate responsibility and allow for intervention upon transgression. In the short-term, voluntary guidelines at least provide a point of reference for these companies and can be used to address problems occurring right now. It is important to consider creative solutions and to promote cooperation between lawyers and activists. Lawyers can advise activists on which legal solutions are available and action can be taken in tandem against companies that violate human rights norms.

Sif Thorgeirsson, Manager of the Corporate Legal Accountability Project, described the maintenance of the Business & Human Rights Resource Centre. The database monitors news stories and reports about business practices and human rights. Regional researchers track news stories from over 4,000 companies in 180 countries in various languages. You may find the Business & Human Rights Database under: www.business-humanrights.org/Categories/ Lawlawsuits/Lawsuitsregulatoryaction/LawsuitsSelectedcases

Michael Windfuhr (Brot fr die Welt)

Additionally, the project often delivers stories directly to the relevant companies and requests a response. The Corporate Legal Accountability Project is a hub of information about lawsuits against corporations, a network in which advocates can learn from each others cases. In the United States, there is a focus on Alien Tort Claims Act cases and Thorgeirsson hopes that lawyers working on such cases will gain

Sif Thorgeirsson (Business & Human Rights Resource Centre)

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a wider perspective on these cases from consulting their database. She also hopes that the network will encourage lawyers to develop creative legal strategies, also stressing the potential of litigation in home countries. Finally, Michael Windfuhr pointed towards the growing gaps in bringing corporations to trial for violations. He stressed that political will is needed to close these accountability gaps. He considers soft law and voluntary guidelines to be useful and believes that that the naming and shaming campaigns have led to real progress. However, he stressed, these campaigns cannot stand alone. Lawyers, as well as NGOs, should continue to address these holes and push boundaries. Like Thorgeirsson, Windfuhr believes that documenting cases is an important way to do this. In filling the legal gaps, he stressed the role of extraterritorial jurisdiction. Rule-setting, as promoted by the World Trade Organisation (WTO), sets certain standards for global industries. For example, waste dumping standards have been effectively promoted worldwide. Soon, Brot fr die Welt will gather expert lawyers on extraterritorial state obligations in a conference to address case-based solutions. Mr. Windfuhr closed by urging a push towards assessments at the beginning of investments. If companies are regulated before they establish themselves,

perhaps abuses will not happen in the first place. He suggested that all of these methods of regulation and prevention can work together as various tools in a toolbox. Any specific tool need not be perfect, but a variety of options should be available. As Saskia Sassen has contested the common assumption that the nation state is losing its regulative powers in a globalizing world, Olivier De Schutter has emphasized the extraterritorial obligations of states to regulate transnational corporations in order to prevent or sanction corporate human rights abuses. Saskia Sassen also highlighted the role of national legal fora as a viable medium for addressing global policies and challenges to transnational corporate misconduct. The panel discussion then identified lawsuits against corporations as a recommended way to hold corporations accountable. In a nutshell, the panel discussed three different approaches of the human rights movement: (1) the dialogue approach: starting a dialogue with corporations on their human rights and social obligations, encouraging self-regulatory initiatives, possibly leading to a voluntary code of conduct; (2) the monitoring approach: researching and documenting corporations human rights violations and

Florencia Arietto (Arde la Ciudad, Conoc Tus Derechos)

Carlos Lopez (International Commission of Jurists)

Yann Queinnec (Sherpa)

Boniface Dumpe (Centre for Social and Corporate Responsibility)

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making this information available to the public and thereby forcing corporations to give an account of their conduct to the public; (3) the litigation approach: holding corporations legally accountable through civil lawsuits or criminal investigations. Having dealt with the role of nation states and the human rights movement on the first day of the conference, the focus on the second day shifted to specific categories of human rights violations that are relevant to transnational corporations.

The Bengal famine of 1942-43, De Schutter reminded the audience, became notorious because harvests that year had been higher than usual. The problem then was that certain groups had lost their livelihoods and lacked sufficient income to buy food, as the war regime denied them access to their production instruments.

Two approaches to explain causes of hunger De Schutter recalled two existing approaches to the problem of world hunger. According to the first approach, which he labeled the food availability approach, there is hunger because there is too little food for everybodythe demand for food far outweighs supply. This problematic situation, as economists and agronomists are quick to point out, can presumably only be met by increasing food production. In contrast, De Schutter prefers the second approach. The entitlements approach follows that hunger is the result of a lack of sufficient purchasing power and can only be remedied by protecting certain rights and strengthening legal entitlements. This approach frames hunger as a political problem. The appropriate response would be to protect rights and to strengthen entitlements. Key words of a solution would be empowerment, accountability and adequate legal framework.

See the videos from this discussion at: http://www.ecchr.eu/conference-tnc-reports/ articles/tnc-reports4.html

VI. Agribusiness and the Right to FoodOlivier De Schutter, UN Special Rapporteur on the Right to Food, premised his presentation on the notion that the right to food and the struggle against hunger is not about increasing food production, but rather a question of increasing affordability of existing produce.

Prof. Dr. Olivier De Schutter, UN Special Rapporteur on the Right to Food and Dr. Miriam Saage-Maa (ECCHR)

Paradoxically, most people suffering from hunger are food producers themselves. Furthermore, one study conducted by Bread for the World concluded that 50% of the hungry are small-scale farmers. Food producers simply do not earn enough to feed themselves. Essentially, prices are too high for consumers and too low for producers. According to De Schutter, the gap between farmgate prices and the prices paid by consumers must be reduced. The purchasing power of both the smallholders (through remunerative prices) and the urban poor (through social safety nets and food-for-work or cash-for-work programs) must be increased. The production of

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food should not only be a means to increase volumes available to meet a growing demand, but also a means to raise incomes among the food insecure.

THE QUESTION OF PRICES IN THE CURRENT CRISIS

In order to explain this gap in prices, De Schutter mentioned that the food production and distribution chain contains providers of inputs (e.g. seed, fertilizers, and pesticides), farmers and agricultural laborers, (sometimes) investors in land, commodity traders, food processors, retailers and comparatively few consumers at the very end of the chain. De Schutter described the unequal bargaining power of the different actors within the chain. He identified small farmers (especially when they are not organized), agricultural laborers, and consumers as the most vulnerable actors. A problem arises when providers of inputs become increasingly concentrated and adamant about the protection of intellectual property rights. When this happens, farmers often become dependent and fall into significant debt. De Schutter mentioned that Aventis, Monsanto, Pioneer, Syngenta and 6 other corporations, control 1/3 of the US$23b market for commercial seeds. The scientific research agenda of input providers does not respond to the needs of farmers in developing countries. Investments in land pose a risk of forced evictions, as well as the risks attached to land scarcity, rising prices, necessary plot expansions, and land too expensive for smallholders. Commodity traders and food producers also encourage land concentration and monocultural produc14

tion. Cargill and ADM, for example, export 40% of U.S. grains. Often times, these actors set the prices of crops unilaterally. They may provide access to high-value markets, but encourage cash crops for exports, leading to land concentration, monocultural production and increased dualisation of the farming sector. Because of their ability to buy where labor is cheap and to sell where solvent demand rises, they are able to increase the gap between producer and consumer prices. Finally, commodity traders and food producers set quality and volume standards with which smallholders may find difficult to comply. Food retailers show a growing degree of concentration and are rapidly expanding in developing countries. Facilitated by liberalization of services through requests and offers under General Agreement on Trade in Services (GATS), this leads to a segmentation in the food sector between (a) producers who serve high-value and global markets and (b) producers serving low-value and local markets, often smallholders who are scattered geographically. Both kinds of producers start to compete against each other. Standards of quality can often be imposed by retailers. Food retailers set pressure on prices usually through online reverse auctions, leading to subsistence wages for workers or short-term contracts with no employment security. In his final thoughts, De Schutter addressed the development of global trade liberalization (e.g. by GATT, GATS, WTO), which has increased opportunities for global firms without promoting counterweighing responsibilities. Antitrust law could be reframed to protect producers as well as consumers, he added. De Schutter also addressed the difficulties that arise when defining the components of fair remuneration. Whether one should insist on the responsibilities of actors in the food chain, including smallholders, to facilitate compliance with their requirements, or on the coexistence of two worlds in agriculture, remains an unresolved dilemma. De Schutter added that financial speculation may help explain the current food crisis. On the national level, food reserves might be a reaction to that. On the international level, however, agreements

among states to sell at predefined prices should be considered.

(2) Inhumane Working Conditions and Other Labor Rights Violations

VII. Working GroupsIn keeping with the conference organizers conviction that legal remedies to human rights violations need to be considered in context, the social, political and economic background of corporate human rights violations were then more intensively discussed in smaller working groups on:

(1) Extractive Industries and Resource Conflicts

Katherine Gallagher (Center for Constitutional Rights)

Jacqueline Moudena (Association Tchadienne des Droits de lHomme), Jean Claude Katende (Association Africaine de Dfense des Droits de lHomme) and Boniface Dumpe (Centre for Social & Corporate Responsibility)

(3) Right to Water, Food and a Healthy EnvironmentInterview with Patrick Sindane

Interview with Jacqueline Moudena and Jean Claude Katende

Vincent Neussl (Misereor), Raymond Quiocho Salas (SALIGAN) and Seema Joshi (Global Witness)

Patrick Sindane (Coalition against Water Privatization)

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VIII. Scope of Accountability of Transnational Companies for Human Rights ViolationsDutch professor Dr. Menno Kamminga and French lawyer William Bourdon discussed the scope of accountability of transnational companies for human rights violations. Prof. Dr. Menno Kamminga first defined what he calls the accountability gap: a transnational corporation is not subject to one legal system, namely the legal system of the country in which the corporation has its headquarters, but through its various components it may act within different jurisdictions. The transnational corporation is like an octopus which can take advantage of strengths and weaknesses of all these legal systems.

Scope of Accountability of Transnational Companies for Human Rights ViolationsDora Lucy Arias Giraldo (Corporacin Colectivo de Abogados Jos Alvear Restrepo)

http://www.ecchr.eu/conference-tnc-reports/ articles/tnc-reports7.html

In each working group, activists form grassroots organizations and humanitarian aid organizations shared their experience with lawyers who have been working on cases related to each topic. Speakers included Jean Claude Katende (ASADHO Katanga, DRC), Boniface Dumpe (CSCR, Nigeria), Patrick Sindane (Coalition against Water Privatization, South Africa), Katherine Gallagher (CCR, USA), Karina Martins Kato (PACS, Brasil), Dora Lucy Arias Giraldo (Corporacin Colectivo de Abogados Jos Alvear Restrepo, Colombia), Yann Queinnec (Sherpa, France), Florencia Arrieto (Argentinean lawyer) Ana Mara Suarez Franco (FIAN International), Seema Joshi (Global Witness, UK), Ingeborg Wick (SDWIND, Germany), Raymond Quiocho Salas (SALIGAN, Philippines) and others. After analyzing economic and social problems, the appropriate legal approach to each specific situation was then examined. The results of the three working groups were presented by speakers/reporters afterwards.

In order to fill this accountability gap, Kamminga then discussed various approaches such as international standard setting and supervision or multi-stakeholder initiatives that have been proposed by some human rights organizations. Kamminga disapproves of the latter as a dangerous privatization of standard setting. The better, most realistic option is more lawsuits against multinationals, Kamminga said. So far only a few places exist, such as the US and the UK, where lawsuits have troubled transnational corporations. Kamminga is convinced that in Western Europe, generally it is easier to sue multinationals than in the US because of the demise of the forum-nonconvenience-doctrine under EU law and because Western European courts generally would be more inclined to listen to international law arguments. Kamminga therefore welcomed the establishment of European human rights organizations with the explicit aim of litigation such as through the ECCHR.

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For Kamminga, litigation is also of great importance from a strategic point of view. Only when transnational corporations are under pressure from multiple lawsuits in different countries will they join other actors in asking the United Nations for consistent international standard setting. Denise Bentele (ECCHR) added that the indirect impact of casework cannot be underestimated. Only when many cases are decided by courts and then discussed by academics can precedents be established and customary law developed.

to be manipulated and to avoid the risk of naivety. We must constantly point to the contrast between the words and the deeds of companies. To conclude, Bourdon referred to the American novelist F. Scott Fitzgerald by stating, the more things appear as impossible, the more we have to try to do it. In the following debate, Michael Ratner from the Center for Constitutional Rights addressed some of the practical problems with their cases in the U.S. When [we] sue a corporation [we] have one of the big, major law firms against us. The gathering of evidence is gigantic. It is very expensive. You really need a coalition of people and groups to be able to bring such a case. One would not only need technical expertise, but also a lot of finance and enough lawyers to deal with such a case for many years. As an example, he mentioned a case against Shell that CCR is litigating together with Earth Rights International, which has been pending for almost ten years. Olivier De Schutter referred to certain tools which are still underestimated by the human rights movement: When companies advertise their practices, adopt codes of conduct, [and] participate in labeling schemes [] this advertising [is] maybe misleading. All EU member states have legislation incorporating European directives on misleading advertising and when a consumer alleges that he or she is being misled by the way a company presents itself, the company can be found liable. And codes of conduct which are generally seen as non-binding can be a boomerang for companies using them for self-promotion.

Prof. Dr. Menno Kamminga (Universitt Maastricht), Denise Bentele (ECCHR) and William Bourdon (Sherpa)

William Bourdon then mentioned the three main difficulties he faced in connection with cases involving transnational corporations: (1) the security of witnesses and lawyers; (2) the sophistication of the legal experts involved, including NGOs; (3) and the propaganda efforts of the companies involved. Concerning the latter, Bourdon said companies declare themselves to be the most legitimate actors to effect change in the world. They claim that the less they are judged, the more efficiently they will be able to change the world. Bourdon then addressed the issue of legal experts: We have to be very professional and cautious not

IX. Panel Discussion on Chances and Disadvantages of Litigation, Soft-law Mechanisms and Code of ConductsIn the concluding panel discussion, Wigand Cramer of the German Union IG Metall, emphasized the role of labor unions during the last 200 years, fighting for the improvement of working and living conditions through collective agreements. Some of these regulations have become law, such as the regulations on working time or minimum wages.

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He stressed that the social state in Europe is currently challenged by the phenomenon of globalization, since corporations are moving to states with lower levels of regulation. Therefore, the international work of unions is increasingly important in helping to form collective resistance against exploitation. With regard to litigation, he emphasized that it only comes into play when the harm is already done. Besides organizing themselves, Mr. Cramer claimed that unions should become more open towards campaigning and joint efforts with social movements. Although there would be no alternative to unionization, cooperation with other actors needs to be strengthened. Jacqueline Moudena, a Chadian human rights lawyer, stressed the significance of case law, although she recognized that all options should be explored when responding to critical situations. An advantage of the judicial path, Moudena added, is that working closely with the victims allows them to feel more invested in the process. She also pointed out the importance of NGOs and public campaigns in exerting political pressure, which can contribute to success in courts too. The risks for both lawyers and social movements in repressive societies should not been forgotten. Constanze Helmchen, the Coordinator of the German Global Compact Network of the GTZ, regards soft law mechanisms as a complementary instrument to litigation. "I completely agree that legally binding standards is the ideal way, but in many cases there are no legally binding standards, or, where there are, there may not be sufficient monitoring, so other frameworks may be second best but better than nothing." She explained that the aim of the Global Compact is to encourage companies to respect labor and human rights standards before harm is done and then highlighted the advantages of developing a multiplicity of options and instruments. She challenged the idea that all corporations seek to maximize profits at any cost. Companies are not all homogeneous entities, she added, or equally opposed to ethical considerations. In certain caJacqueline Moudena (Association Tchadienne des Droits de lHomme)

Interview with Jacqueline Moudena

ses, stakeholders' interests are compatible with the corporation's own interests in terms of shareholder value. In this respect, Helmchen mentioned the importance of NGOs and customers in observing corporate practices from a critical angle and demanding more ethical practices. The Global Compact aims to develop a multi-stakeholder platform in order to "enhance dialogue between different groups" by facilitating awareness raising, data compilation, and improved monitoring strategies. According to Tillmann Braun from the German National Focal Point on the OECD Guidelines, the Guidelines are neither hard nor soft law, but rather something in between, offering "room for mediation" in which companies and NGOs can come together to discuss issues related to their supply chain, workers' rights, or child labor in a neutral atmosphere. Braun expressed his skepticism about the discussion of whether voluntary or mandatory instruments are preferable. Because of codes of conduct, for example, no Western company can employ child labor, emphasizing that there is some

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common understanding of the values that should guide business practices. "Although these codes of conduct are not hard law, in effect they may serve this aim," Braun concluded.

2. All states have the obligation to exercise effective control to promote human rights, maybe not stemming from the Universal Declaration, but certainly stemming from the human rights treaties that this government has signed. When the failure of the home state to exercise effective control over its corporations becomes evident, the affected parties should go to the International Court of Justice, which resolves disputes between governments. 3. Because companies operate on grants, the granting authorities share a responsibility for any involvement of these companies in serious crimes. Although he does believe in the death penalty for persons, he proposed the death penalty for corporations or at least house arrest, meaning that a corporation which refuses to abide by applicable laws and human rights norms in its foreign operations should be prevented from operating abroad. In fact,

Interview mit Peter Weiss (Center for Constitutional Rights)Peter Weiss (Center for Constitutional Rights)

Peter Weiss, from the Center for Constitutional Rights, agreed that soft law instruments can have an influence on corporations. He confessed his dislike of the term soft law, which implies something non-binding. Instead, he suggested that we talk about emerging norms as norms on their way to becoming hard law. Codes of conduct and resolutions may be cited by judges as representing universal consensus in critical cases. Referring to the problem of accountability and the corporate veil, Weiss highlighted the fact that the Global Compact itself acts on the assumption that the rules and standards of the Global Compact apply to subsidiaries, even when these subsidiaries are not independently registered with the parent company. He then came up with three proposals: 1. The paradox that law is national and business is global can be remedied through a global incorporation of companies.

Ingeborg Wick (Sdwind)

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Elisabeth Strohscheidt (Misereor)

Ana Mari Surez Franco (FIAN)

there are cases where transnational corporations have been deregistered in certain countries, i.e. prohibited by law (albeit the law of the host country) from operating there. Karsten Nowrot, from the Transnational Economic Law Research Center of the University of Halle-Wittenberg, was convinced that the debate on mandatory versus voluntary rules is misleading. According to him, litigation is needed to demonstrate to certain corporations that there is a red line. At the same time, the use of such a tool can also cause harm since it may destroy a whole cooperative structure. For that reason, litigation should be the last resort. To sum up, Mr. Nowrot said that although most of the companies comply with most of the law, most of the time, there is a need for better regulation and not only national regulation but any tool helping to avoid human rights violations. Elisabeth Strohscheidt, from Misereor, referred to the discussion of mandatory versus voluntary rules as outdated and reminded the audience that the human rights movement would appreciate soft-law mechanisms if they worked. As the situation stands, however, advocates and activists, including many present at the conference, are risking their lives every time they litigate, she asserted.

X. Interviews with Experts1. Interview with lawyer Peter Weiss (USA) conducted on October 12, 2008 in Berlin, GermanyPeter Weiss is currently Vice President and cooperating attorney of the Center for Constitutional Rights, and member of the ECCHR Advisory Board. He is a practitioner of human rights law and Vice President of Fdration Internationale des Droits de lHomme (FIDH). He has been involved long-term with the campaign to rid the world of nuclear weapons. He is President of the Lawyers Committee on Nuclear Policy and Vice President/former President of International Association of Lawyers Against Nuclear Arms (IALANA). Peter, first of all, thank you again for taking your time for this interview. You fled in 38 from Europe and then in 46 you came No, I didnt leave Europe in 38. In 38, I left Austria and my parents and I first went to Czechoslovakia for about three months, and then from Czechoslovakia we went to Paris and lived in France until 1941. Then in 41, we came to the United States.

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What happened when you arrived in the States? When we arrived in the States we had very little money; my father worked, my mother worked, and I went to high school. I started working at the age of sixteen after school and eventually, I got a scholarship to go to college. And when were you called to be a soldier? In 1944, when I was eighteen. And you were taking part in the liberation of Europe? No, I never got sent overseas. Okay. Because first, I had basic training in the field artillery and then I had basic training in the infantry. They were looking for people who spoke German and they realized from my records that I spoke German, so I was sent to military intelligence training. After that, I was sent to a very secret installation outside of Washington where they were interrogating high-level German prisoners. Who was there? Well, Wernher von Braun was there, you know, the rocket specialist. There were a lot of scientists and admirals and generals. And you talked to them? Yes, I talked to them and, interestingly enough, Ive really forgotten about it. I mean, I didnt forget but I didnt think much about that period of my military service. About a year ago, the National Park Service got in touch with me and it turned out that the place where this occurred, where this interrogation center was, was a park which the National Park Service had leased to the army for the duration of the war. At one point the historians of the National Park Service got all excited; they wanted to write the history of this place because its part of the history of the National Park Service, so they were looking for as many of the veterans of this post as they could find. They

got in touch with me, they came to interview me, and then they organized a reunion. I just got a card from them just before I left for Berlin. They sent me a card which about twelve people from the National Park Service signed and they said, Were sending this to you on the anniversary of our reunion. It was October 5 of last year that we had the reunion. Were they torturing them? Well thats the interesting part. We all spoke, there were twenty-one of us, with family and friends and people from the army. We all got a citation from a colonel for our service and when I was called up to get the citation, I said to the colonel, Could I say a word in the microphone? and he didnt know what to say. So I went to the microphone and I said, Im very honored to be here and to receive this citation from the United States Army but I dont want it to be taken as support for the war thats going on now. And his face dropped and the Washington Post wrote this story the next day on the front page. Great! When they lined up all twenty-one of us with microphones and everybody said a few words, most of us said, It never would have occurred to us to torture anybody. First of all, as one of us said, because you lose your humanity when you torture and secondly, because its not the way to get information. One of us, who became a famous scientist, said, I got more information by playing chess with the prisoners than I would have by torturing. What do you think why did the military secret service and the CIA start after the war to torture prisoners? The technique . . . They didnt start after the war; they started after 9/11. They started after the attack on the World Trade Center. Yeah, but they were torturing also in Vietnam. Well, thats true. There was some torture in Vietnam, but not as official policy, like now. There are two possibilities here; one, that it was a reaction to torture

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by others. The other, that it could be a racist thing. You know, you dont torture white people but you do go and torture yellow people and dark skinned people. I know that after 9/11 it was simply the fact that people like Cheney, who knew nothing about how to interrogate people, how to deal with other cultures, just that by whatever means we have we want to get this information, and Rumsfeld and Bush went along. According to them, terrorism is the kind of thing where the rules dont apply. When youre fighting terrorism you take the gloves off, right? But torture was used even before, especially in the nineteenth century, a technique used to rule. During the Algerian War, France extensively used torture. As a counter insurgent technique it was developed during the French War in Indochina after the defeat of Dien Bien Phu and then exported to Latin America. There are also strong links to the U.S. like the French sociologist, Mathieu Rigouste, has discovered. It is like a part of the so-called democratic regime to fight subversion. I think one of the reasons we didnt torture Germans was that there were a lot of American prisoners in German hands and so the people running the American military thought like Colin Powell thought, that the Geneva conventions say that you cant torture so nobody tortures. Colin Powell really didnt go along with the torture, or rather, he did go along with it, but he opposed it. Also the people who were running the American army then were different. Eisenhower, I think, was not the kind of person who would torture. But send an atomic bomb to Hiroshima and later... No, that was Truman. Yeah, but Eisenhower and General Douglas MacArthur were proposing the same during the Korean War. Maybe. Ok, so when you were a soldier you suddenly came back to Europe and you were also working, if I understand right, for the preparation of the Subsequent Nuremberg Trials, providing them with some data on the IG Farben. Could you explain this?

Well, after I was discharged from the army, in the spring of 1946, one of my professors from my first two years in college asked for me to come to Berlin. He had gone to work for the Board of Economic Warfare in Washington at the beginning of the war. Then at the end of the war with Germany, he was sent to Berlin to head up the Decartelization Branch of military government; they called it Kartell-Entflechtung Germany. I was rather close to him and he asked me to come over as a translator. It took several months for me to be cleared and finally, in the fall of 1946, I came to Berlin and I went to work for the Decartelization Branch. After a couple of months, they made me an investigator, a researcher and an investigator, being sent out to talk to people. I remember once they sent me to interrogate Hermann Abs. You know who he was? Could you tell us something about him? Herman Abs was probably the leading banker in Germany who wasnt in prison at the time. I was driven to his home, somewhere in the mountains, and he was very annoyed that such a young person was coming to interview him because he was such an important person. I was only nineteen at the time. So the decartelization worked, to some extent, in breaking up the formal cartels. There was also the IG Farben Control Commission, which was run by all four of the occupying powers. IG Farben was broken up into four pieces, each of which is now five times as big as IG Farben was at the time. But IG Farben was a classic case of a criminal enterprise. IG Farben employed slave labor and did all kinds of other violations of human rights. So that was a very interesting time to be in Berlin. But why was the U.S. was so interested in litigating against corporations? They werent litigating against corporations. They wanted to break up the economic power of Germany, because the cartels had been supporting Hitler and they didnt want another Nazi-type or other aggressive regime to come to power in Germany with the support of German industry. In any case, it didnt last; it only lasted for less than a year and by that time the Cold War was starting and the Americans

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were deciding that they wanted to keep Germany as strong as possible. But one might also say that they were destroying the competition of . . . Yes, of course. Your work was also somehow directly connected with the Subsequent Nuremberg Trials At one point I was sent to Nuremberg on special assignment to interrogate one of the principal officers of Arbed SA, which was the steel cartel. He was a prisoner in Nuremberg. I was sent to interrogate him about how Arbed had functioned, who the other people were in Arbed, and so forth, but that was only for about a week. Why do you think that during the Cold War it was not so important to take all these measures against criminals for the Subsequent Nuremberg Trials ? I mean, not only the decartelization, but really to find the war criminals There were a lot of trials right after the war, before the Cold War became intense. There were a lot of trials for a ten-year period. Which trials do you mean? There were the judges trials, the doctors trials, the Nuremberg Trials. Yeah, but many of the accused of the Subsequent Nuremberg Trials were just receiving small sentences ,and then many of these sentences were commuted in 1951 by the US High Commissioners for Germany, John J. McCloy. Well, it depends if youre talking about the trials by the Americans and the British or if youre talking about trials by the German justice system. The German justice system gave very small sentences because many of the judges were former Nazis. For the people who were tried by the British or American courts, there were a lot of death sentences imposed. Take, for instance, the Zyklon B people - one of the most

important cases against an economic enterprise. They said We were ordered to produce Zyklon B gas for the German army. We didnt know how it was being used and later it was proved during the trial that they knew it was being used to exterminate people in the concentration camps and they still kept supplying it. Their defense was that if they had refused, they probably would have been arrested or sent to prison or whatever, but they were executed. The Nazi state, post-war West Germany, and the United States were all and still are capitalistic countries. In the Nazi state, there was a clear connection between cartels and a jingoistic society. Sixty years ago, you worked to break down these cartels. Do you see a connection between these two causes? What particular danger comes with cartels or transnational corporations with regard to human rights and war? The connection is the unbridled power of large, private economic units: the larger, the more powerful. A common element between the cartels then and the transnationals now is that they both use their economic power primarily in pursuit of profit. In the case of cartels, this takes the form of reducing or eliminating competition; in the case of todays transnationals, it takes the form of inhumane working conditions, disregard for the environment, the health of consumers, etc. By the way, when I interviewed the leader of the Socialist Party in Berlin after the war he said he was not necessarily opposed to dismantling cartels because large economic units are more efficient than small ones. It seems as though the model of the social market welfare state came out of the conflict between the American economic policy against cartels and corporations in Germany and the post war reality in which elements of the old corporatistic legal traditions remained. Do you think that this is related to todays problems we face concerning transnational corporations? I wouldnt go too far in tracing the evils of todays TNCs to the policy pursued by America in the forties. What we are seeing today is the ultimate stage of neoliberalism; the illusion of free trade as providing efficiency for the market and the consumer,

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when in fact it leads to an inelastic market and an exploited consumer. From a contemporary perspective, do you think the higher degree of cartelization and/or monopolization in a country leads to more human rights violations or jingoistic tendencies? Since cartelization eliminates competition, it produces more and more powerful economic units, which are more and more difficult to regulate in all respects, including human rights violation. But the elimination of competition as such does not necessarily lead to classic human rights violations. During the ECCHR conference, you suggested house arrest as a punishment for corporations. House arrest concerns individuals. What do you mean by employing the language of individual justice when talking about corporations? I was using some fanciful analogies. Capital punishment of a TNC means loss of its corporate charter, which is issued by the state and therefore, in principle, can be withdrawn by the state. House arrest means that a corporation which refuses to abide by applicable laws and human rights norms in its foreign operations should be prevented from operating abroad. In fact, there are cases where TNCs have been deregistered in certain countries, i.e. prohibited by law (by the law of the host country) from operating there. Youre known as one of the few lawyers who is very interested in applying international norms within a national legal system. How did you come up with this idea? Well, because I had an international background. I first lived in Austria, then in France, lived in Czechoslovakia, and then came to the United States (thats already four countries) so I felt much more international than American lawyers who were born and spent their whole life in the United States. Furthermore, I went to Yale law school and I took courses with one of the great names in international law in the United States, Myers McDougal, who was, at one time, president of the American Society of International Law. That reinforced my interest in international law. 24

What was the first case for which you were really thinking about using international norms to litigate or to prosecute the criminals? Well I think the first case was the Filrtiga Case, based on the Alien Tort Claims Act. Could you explain it? Yes. I should tell you first how we found this law because it had hardly been used at all for 200 years. It was part of the first judiciary act of this new country called the United States of America. In 1789, they adopted their first laws and one of these was a onesentence law which said, in essence, that a foreigner could sue in the United States for a tort in violation of what was then called the Law of Nations, which is international law. Nobody knows exactly why it was put there, but I think its fairly clear that the reason is that the United States was a new country, a weak country when compared with the power of France and England and Spain, and it wanted to project a view to the rest of the world that it was going to be a good citizen of the world, obeying international law, giving rights to foreigners, etc. Some people think it was only an affirmation of the customary law principle that diplomats are entitled to protection, but I think it was more than that. It was the weak country saying to the strong countries, We believe in international law. Were not going to violate international law against you and you dont violate it against us. How we found the Act is an interesting story. We found it at the time of the My Lai massacre, during the Vietnam War, when a company of American soldiers under Lieutenant Calley was sent on a search-and-destroy mission. Search-and-destroy was then the policy of General Westmoreland who was the commander of American forces in Vietnam and it was a policy that went all the way up to the Pentagon. It was, basically, if you think there are people fighting with the National Liberation Front (NLF), you know, the southern Vietnamese militias (they werent a formal military but they were people fighting against the Americans) and if you believed that there were NLF people in a village, you went and destroyed the village. So they went in and they killed at least 140 people, virtually all civilians - old men, women and babies - and dumped them in a

ditch. I went later to My Lai. I saw the monument. I saw the ditch. So the world was outraged. Seymour Hersh, who was then an unknown journalist, wrote a book about it and got the Pulitzer Prize. Hes now a good friend. He came to see us at the Center for Constitutional Rights on the day he left for Fort Benning to interview Lieutenant Calley. We invited him because he wrote his first book about chemical warfare and we wanted to talk to him about that. He came and met with us for a couple of hours and then at six oclock he said, I have to go catch a plane, and I said, Where are you going? Oh, he said, Im going to Fort Benning, Georgia because theres supposed to be a guy there who knows about a big massacre that happened in Vietnam. He told me later that he went there and he asked everybody where Lieutenant Calley was and everybody said, We dont know. And, finally, on the afternoon of the second day, somebody came up to him and said, Youre looking for Calley? And he said, Yes. He said, Hes sitting over there in the corner of the officers club. So Seymour Hersh went over and sat down with Calley. What did Calley tell him? Well, Calley said, you know, I was carrying out orders. What could we expect You think the soldiers were somehow on drugs or was it a standard operating procedure against counter insurgents? The order was to kill the village, basically. But coming back to the first Alien Tort Claims Act case Im telling you the story because when the news about My Lai came out, we at the Center for Constitutional Rights started doing research to see who could be tried for creating the policy that resulted in the massacre at My Lai and thats how we found the Alien Tort Claims Act. Going to the library and looking?

At the law library at the center. It was more difficult to do research at the time because it was before computers and you had to have some imagination, you know, talk about aliens and crimes and torts and international law and so forth. So we found the Alien Tort Claims Act and we went to the South Vietnamese, with whom we had some contacts, and said, We need a plaintiff. And they said, Well, theres a young woman, a fourteen-year-old girl, whose name is Vo Ti Thien, and her entire family was wiped out, about fifteen people in her family, and we can make her available to you as a plaintiff. And we talked to her, we talked to Madam Binh, who was then the negotiator for South Vietnam in Paris, but then eventually the North Vietnamese in Hanoi decided that it was not a good idea to have a trial in an American court while the war was still going on. So that trial never happened, although we went quite far in preparing for it. We were going to have Vo Ti Thien sue General Westmoreland and other people. I dont remember whether we were going to have Calley, also; probably, but we were really looking for people at the top as defendants. Then there was no other opportunity for ten years. And then, in 1978, I was sitting in my regular law office (in my other life I was an intellectual property lawyer: trademarks) and I got a call from a German who was working for Amnesty International. His name was Gerhard Elston. I knew him slightly and he called me and he said, There is a Paraguayan torturer sitting in the Immigration and Naturalization Service Center in Brooklyn. Hes here illegally. Hes going to be deported in two days and you have to keep him here and bring him to trial. And I said, How are we going to do that? And he said, Thats your problem. So I called the Center and said we have to have an emergency meeting and we had the meeting that afternoon and somebody, I dont know if it was me or somebody else, somebody remembered the Alien Tort Claims Act, and we said, This is the case weve been waiting for. So we worked all night preparing the papers. Gerhard Elston told us that the sister of this boy whom Americo PeaIrala had tortured to death was living in New York or Washington. We got in touch with her and she said, Yes, of course I want to do the suit.

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So she was the plaintiff and the next day we served Pena who was in the custody of the Immigration and Naturalization Service waiting to be deported. Then we went to court to get an order delaying his departure and the following week we argued the case. We got a good judge, but the judge thought that his hands were tied by a previous decision in the same circuit - you know, we call the judicial areas circuits. This was the Second Circuit, which includes New York, and there was a case which another lawyer had brought on behalf of a German refugee from the Holocaust named Dreyfus against a bank in Munich that had, under the Nazis, taken over the bank he owned in Munich. It wasnt the state that took over the Jewish enterprises. The state set up a set of rules which made it easy for private enterprises to take over Jewish enterprises and pay a minimal portion of the value. So this lawyer decided that this was a violation of the Law of Nations and, therefore, he thought that the Alien Tort Claims Act would apply and he brought the case, but the case was lost. It was lost, basically, because the judge in the appellate court (it was an important judge, Judge Friendly) took the old view of international law which is that international law doesnt give any rights to individuals. That was really the most important outcome of the Filrtiga case; that it changed this view of international law. By the time we brought the case to the appellate court in New York, international law gave rights to individuals. The judge that we went to in the first instance reluctantly ruled against us. He made it clear that he would have preferred to rule for us but he thought the precedent was against him. Then we appealed. It took a long time for the appellate decision to come down because when I started the argument - I was about three minutes into the argument - Judge Kaufman, who was the judge who sent the Rosenbergs to their death, interrupted me. Are you aware of that, the Rosenberg case? During the McCarthy era? Yeah. So Judge Kaufman was the head of the three judge panel before which we argued the Filrtiga case and I was about three minutes into the argument when he stopped me and said, What does 26

the State Department think of this case? And I said to myself, I didnt say it aloud, but to myself I said, In the Rosenberg case you wanted to know what the government wanted you to do to the Rosenbergs and now again, you want the government to make the decision. But when I went to law school I thought we had an independent judiciary. So as soon as the argument was over he instructed his clerk to send a question to the State Department, asking the State Department for its position. Unbelievable. And this was under Carter, right, Carter was the president. He was big on human rights, he had good people in the State Department and the thing went to a lovely man whom I knew from when I was a student at Yale law school, he was the assistant dean. So we were lucky, we got some good lawyers in the State Department but it took them a very long time, about six or seven months, to come down with their opinion because that was the time of the Iranian hostage crisis and everybody was working on that. Then when Kaufman got the positive opinion, I mean positive from our point of view, he wrote the opinion in which he overruled the judge below and said that this was a good law and a good case and he even ended his opinion with a quote from our brief, where we said that the torturer, like the pirate of old, is hostis humani generis, an enemy of all mankind. Then he even wrote an article about it for the New York Times Magazine. suddenly he became a human rights activist. Well, he started almost immediately after the Rosenberg case trying to restore his image because before that time he had a fairly good reputation as a somewhat liberal judge. This is often not easy to understand for somebody who is a jurist in Germany used to a continental way of thinking. What are the benefits and what are the drawbacks when you compare the two systems, in a human rights context? The main advantage that we have in bringing these cases is that they cant stop us from bringing them because nobody can stop a plaintiff from bringing

a civil case in the American system. And most situations that could be criminally prosecuted also constitute torts. You know what a tort is? A tort is when you do harm to somebody and youre entitled to restitution or compensation. If A kills B, there can be a murder trial but there can also be a wrongful death civil action. For instance, when O.J. Simpson was acquitted for the murder, the families of his wife and her friend who was killed with her then brought a civil action against O.J. and they won that, even though he was acquitted in the criminal trial. In most other countries, it is difficult to bring a civil action before the criminal action has been decided. In Germany, for example. Right, and the context of the criminal action is much more political than that of the civil action. If the government doesnt want to bring the criminal action, you cant compel the government to bring it, and under our system you dont have any input into the criminal action. Its not like in France, where you could be a partie civile. I dont know how that is in Germany. I dont think you have much input in the criminal action in Germany. Is it the same, as what you have already said, about benefits and drawbacks or is it something special to go against transnational corporations? The benefit is that youre in charge. The other benefit is that you can get huge damage awards in a civil action in the United States, much higher than anywhere else in the world. Like when the Center sued [Radovan] Karadi, we got a four and a half billion dollar award against Karadzic because there were many plaintiffs. That would be impossible in any other country. So those are the two main advantages. The disadvantages, as many people said at the conference, are that when you sue a corporation you need a lot of resources because youre up against the best legal talents of the country where youre suing and you sometimes have to run through years of preliminary litigation, procedural litigation, and pre-trial litigation before you get to the actual facts. Then again, you have to have your evidence totally prepared because its going to be subjected to all kinds of legal game playing, unlike in a trial against somebody like Filrtiga, who was a former 27

police officer in Paraguay. So its very expensive; its very lengthy. It can ruin a pro bono law firm with the expenses. But are there alternatives? Are there other possibilities to bring transnational corporations to justice? Well yes, of course. National corporations that commit serious violations of international law, rising to the level of crimes, should be prosecuted by the state. They should be prosecuted either by the host state or by the home state. Sometimes they are, but not very often. Regarding your experience as a corporate lawyer, how did you experience corporations human rights strategies? It all depends on the corporate culture, which is usually a function of the culture of the corporate leadership. Some corporations are more receptive to good behavior than others, often because they think this will help their sales. Future of litigations - what further steps should be undertaken to hold international corporations accountable for human rights violations? Codes of conduct will ultimately have to be made into enforceable laws. Governments will have to assume more responsibility for the conduct of their corporate creatures. Voluntary compliance, which is the standard today, can achieve some progress, but never enough. Its visible that in your engagement with human rights throughout your whole life, you were always fighting against war and trying to get war criminals. How did it come that you have a special focus on that? Well, it comes partly because my wife is a well known peace activist and I agree with her in her peace activism. Also, I think war is frequently fought not for valid reasons, if there ever is one, but for the glory and the power of the people who start the wars, like the Iraq War. Could you say something about the cases that you have worked on in your legal practice that are im-

portant to you? Like El Salvador or Nicaragua, could you say some words about these cases? Well in the Salvadoran case, again, we had a sympathetic judge, but we did not succeed in convincing her that what the United States was doing in Salvador, (it was a relatively small number, at that point, of soldiers), was really a war situation. So it came down to a question of what is a war as opposed to a low-grade military intervention. Right now, you have military people of the United States in Iran, according to Seymour Hersh, and I believe him, but are we formally at war with Iran? Obviously not. The other, ok, I have two minutes to tell you about another big case. Yeah. It doesnt involve the Center. It involves another group that Im active with, the International Association of Lawyers against Nuclear Arms (IALANA). How have you started this impossible idea of demanding an advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons? Well Ill tell you Thats very hard because thats all the time that we have. It was planned for a long time, for several years, to go to the court to get this opinion. And finally in 19, in order to go to the court we had to have a request from a UN agency, the General Assembly or some other UN agency. In 1994 we succeeded in getting a majority vote from the General Assembly of the United Nations to put a case to the World Court, namely: Is the use or threat of use of nuclear weapons compatible with international law? The court took the case and in 1995 I spent three weeks in The Hague while the hearings were going on. Of course, we had many countries participating, many organizations and in 1996, against the expectations of most international lawyers who thought that we would not win the case, we won it very narrowly, seven to seven, with the President of the court casting the deciding vote. And to conclude, in May of this year we had a one-day conference in Geneva and we asked the Algerian jurist, a very fine jurist named Mohammed Bedjaoui who was

the president of the court in 1996, we asked him to be the keynote speaker and to discuss the following question: When there is a general obligation to do something in international law, in good faith, how long can a state wait to comply with this obligation? Because in the last paragraph of the decision, which was unanimous, the court concluded in 1996 that there was a general obligation to negotiate in good faith, a general obligation in all countries, to negotiate in good faith for the total abolition of nuclear weapons. And this year, Mohammed Bedjaoui, who is now retired after being the Algerian Foreign Minister, gave a very scholarly lecture on the question of good faith and international law in which he concluded that, by now, the states should have started to comply with this obligation. So we are now thinking of going back to the court and saying how about it? Twelve years ago you said it should be done, but it hasnt been done. Thank you very much. Interview conducted by Kamil Majchrzak Anna von Gall and Becky Grossman contributed to this interview.

2. Interview with the lawyers Jean Claude Katende (Democratic Republic of Congo) and Jacqueline Moudena (Chad) conducted on October 10, 2008 in Berlin, GermanyJacqueline Moudena is a human rights lawyer who defends victims of the former dictator of Chad, Hissne Habr. She fought against impunity in order to bring Habr from exile in Senegal to trial. Moudena is President of the Chadian Association for Human Rights (Association Tschadienne des Droits de lHomme or ATPDH). She has repeatedly received death threats and was severely injured in a grenade attack in 2001. She received the Martin Ennals Award for Human Rights Defenders in April 2002, and was awarded with a special prize from the Dickinson School of Laws (Pennsylvania, USA) Scholars at Risk program in 2004 for her involvement in human rights defence. Moudena and her

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organization have challenged the Chad/Cameroon Oil and Pipeline Project, a 650-mile oil extraction and transport project financed by the World Bank and completed in 2003. Jean Claude Katende is the President of the African Association for Human Rights (lAssociation Africaine de Dfense des Droits de lHomme or ASADHO). The ASADHO was founded in 1991 by a group of young lawyers, doctors and journalists in the Democratic Republic of the Congo (DRC) in response to the Mobutu governments announcement that it would begin a process of democratization. Katende is a well-known activist in the DRC and his organization has campaigned against abuses in the natural resource sector for many years. Ms. Moudena, you initiated a lawsuit against the former dictator of Chad, Hissne Habr. Senegal, Belgium, and Chad are involved in this case. Is the outcome of these proceedings already predictable? Jacqueline Moudena: First, I would like to explain a little bit more about our course of action in these proceedings which have been dragging on for eight years already. In 2000, we filed a charge against Hissne Habr in Senegal for violations of the Convention against Torture which Senegal has signed and ratified. We accused him of crimes against humanity and torture. The investigating judge convicted Hissne Habr based on the evidence presented, but Habr and his lawyers appealed the decision. This led to a hearing before the Prosecution Chamber of the Court of Appeals of Senegal and eventually, to the Supreme Court of Senegal which declared that Senegal lacked jurisdiction. The decision forced us to make an appeal in Belgium based on universal jurisdiction. Why Belgium? With universal jurisdiction laws in Belgium, we were able to press criminal charges within the jurisdiction of Belgium. There are Belgian plaintiffs among the victims as well. In Belgium, the investigating judge worked on the case for five years, which included a one-year break due to pressure on Belgium from the United States to abolish the law of universal

jurisdiction. After postponing the lawsuit for a year, the Belgian judge resumed the case after the controversy with the United States had ended. Universal jurisdiction is a concept of national law, not an international instrument. Does this mean that the instruments of national law are more appropriate to fight against dictators and crimes? It is not a question of being more or less appropriate; Belgium simply had the capacity, by virtue of its universal jurisdiction law, to act on crimes committed on foreign territory by a foreigner. That is the meaning of universal jurisdiction: to have the power to judge crimes that have been committed in a foreign country, by a foreigner without any connection to the jurisdiction. But is there also a lawsuit