International Legal Accountability Over Non-State Actors: An Analysis of the Report of the Special Representative of the Secretary General

The article opens with three examples illustrating the need for an international framework that considers corporate actors as holders of legal obligations to protect human rights: (1) the unpunished criminal misconduct and human rights abuses by private military and security companies; (2) the private detention industry and immigrants, especially the perverse profit incentive to cut costs at the expense of the rights of the detainees; and (3) the dumping of toxic waste in States that lack government institutions that are able to hold corporations accountable. The article then describes the Framework (Protect, Respect, and Remedy: A Framework for Business and Human Rights) articulated by the Special Representative on the issue of human rights and transnational corporations and other business enterprises. Although the Framework is a definitive step forward in the dialogue about corporate accountability, it is severely undermined for the following reasons. First, the Framework imposes no new legal obligations upon corporations, and leaves these non-State actors to determine themselves what human rights may be material to their business. Second, by emphasizing the State\u27s role in protecting their populations from harm, the Framework fails to consider situations where States cannot or will not enact domestic regulation that protects human rights. Third, from the corporate perspective, relegating legal obligations to States alone provides for complex regulatory systems where corporate operations are subject to differing legal standards depending on their field of operation and thus produce inefficiency affecting the corporate bottom line. Fourth, the Framework does no more than add to the current regime of voluntary corporate codes, which alone are insufficient to regain the needed political governance of economic globalization. The authors suggest that The Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights be used as a foundation to establish accountability and to bring corporate actors out of their legal grey zones