* Todd Weiler, MA & LLB (Western Ontario), LLM (Ottawa), LLM (Michigan), is an international trade lawyer who specializes in investor-state arbitrations. He is an Adjunct Professor at the Washington College of Law at American University in Washington, D.C. and a Research Fellow & Lecturer at the Centre for Energy, Petroleum & Mineral Law and Policy at the University of Dundee in Scotland. Professor Weiler maintains a leading website on investor-state claims, www.naftalaw.org, and is currently completing a SJD at the University of Michigan in Ann Arbor. He can be reached at tweiler@naftalaw.org.
1 Enforcement is maintained through the inclusion of provisions in investment treaties that permit enforcement under international conventions. See generally Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38.
2 See, e.g., Andrea Durbin & Mark Vallianatos, ‘Transnational Corporate Bill of Rights’—Negotiations for a Multilateral Agreement on Investment (MAI), http://www.globalpolicy.org/
socecon/bwi-wto/mai1.htm (Apr. 1997); see also Public Citizen, The Alarming Multilateral Agreement on Investment (MAI) Now Being Negotiated at the OECD, at http://www.citiz-
en.org/trade/issues/mai/Opposition/articles.cfm?ID=5625 (last visited Apr. 26, 2004).
3 Beth Stephens, Corporate Liability: Enforcing Human Rights Through Domestic Litigation, 24 Hastings Int’l & Comp. L. Rev. 401, 401 (2001).
4 Christina Baez et al., Multinational Enterprises and Human Rights, 8 U. Miami Int’l & Comp. L. Rev. 183, 184–85 (2000) (citations omitted).
5 Anne-Christine Habbard, The Integration of Human Rights in Corporate Principles, in Organization for Economic Co-operation and Development, Guidelines for Multinational Enterprises 99 (2001) [hereinafter OECD Guidelines].
6 Human Rights Watch, The Enron Corporation: Corporate Complicity in Human Rights Violations, at http://www.hrw.org/reports/1999/enron/ (last visited Apr. 26, 2004).
7 Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities (1999), http://www.hrw.
org/reports/1999/nigeria/ [hereinafter The Price of Oil].
8 Jenness Duke, Enforcement of Human Rights of Multinational Corporations: Global Climate, Strategies and Trends for Compliance, 28 Denver J. Int’l L. & Pol’y 339, 343–44 (2000); Principles Relating to the Human Rights Conduct of Companies: Working Paper Prepared by Mr. David Weissbrodt, U.N. ESCOR Commission on Human Rights, 52d Sess., Provisional Agenda Item 4, para. 3, U.N. Doc. E/CN.4/Sub.2/2000/WG.2/WP.1 (2000).
9 Summary of Roundtable Discussion, in OECD Guidelines, supra note 5, at 51–52 (summarizing comments made by Pieter Kroon).
10 Of course, this avenue can be limited by deficient local legal regimes. There is also the potential application of the U.S. Alien Tort Claims Act, 28 U.S.C. � 1350 (1994), but the exorbitant costs of litigation and the vagaries of U.S. procedural law—such as the requirement of personal jurisdiction and forum nonconveniens—can limit the availability of this remedy to all but a few claimants. See Stephens, supra note 3, at 407–12.
11 See, e.g., Ian Ayres & John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992); John Braithwaite & Peter Drands, Global Business Regulation (2000).
12 Habbard, supra note 5, at 101 (emphasis in original).
13 Letter from Kenneth Roth, Executive Director, Human Rights Watch, to Kofi Annan, United Nations Secretary-General (July 28, 2000), http://www.hrw.org/press/2000/
07/hrw-ltr-july.htm.
14 The Realization of Economic, Social and Cultural Rights: The Question of Transnational Corporations, U.N. ESCOR Commission on Human Rights, 51st Sess., Agenda Item 4(c), para. 34, U.N. Doc. E/CN.4/Sub.2/1999/9 (1999).
15 The Effects of the Working Methods and Activities of Transnational Corporations on the Enjoyment of Human Rights, ESCOR Commission on Human Rights, 57th Sess., para. 4, U.N. Doc. E/CN.4/Sub.2/RES/2001/3 (2001).
16 The OECD negotiations on a multilateral investment agreement collapsed in 1997 under the weight of fundamental disagreements as to the scope and coverage of an agreement between OECD members and because of the relative lack of interest on the part of international businesses (who appeared unwilling to publicly support the negotiations when they came under a belated attack by anti-globalization groups).
17 See Baez et al., supra note 4, at 319 (citing Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)). In Filartiga, multimillion dollar awards were made against the defendant for the infliction of torture upon the claimants but were never enforced by the courts of Honduras. See id.
18 Under international investment agreements and mixed claims jurisprudence, the only remedy for a breach is the payment of compensation. Compensation would accordingly be the only remedy available under the proposed human rights protection mechanism.
19 See, e.g., Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, art. 11, 1465 U.N.T.S. 112, 116; International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 2, 999 U.N.T.S. 171, 173; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, art. 6, 660 U.N.T.S. 211, 222; G.A. Res. 44/25, U.N. GAOR, 44th Sess., art. 39, U.N. Doc. A/RES/44/25 (1989); G.A. Res. 217A(111), U.N. GAOR, 3d Sess., art. 8, U.N. Doc. A/810 (1948); Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, U.N. ESCOR Commission on Human Rights, 56th Sess., Annex, Provisional Agenda Item 11(d), pmbl., U.N. Doc. E/CN.4/2000/62 (2000) [hereinafter Principles & Guidelines].
20 See generally Principles & Guidelines, supra note 19.
21 Id. para. 17. On January 23, 2002, the U.N. Commission on Human Rights affirmed a “deep” commitment to the finalization of this statement, although it would apparently go no further at that time. Id.
22 Vel�squez Rodr�guez Case, Inter-Am. Ct. H.R. (ser. C) No. 4, reprinted in 9 Hum. Rts. L.J. 212, 242–43 (1988).
23 Id. para. 182., at 243.
24 Historically, states were free to treat their own citizens as poorly as they desired so long as a “minimum standard of treatment” was provided to aliens (i.e., foreign investors). See, e.g., The United States of America On Behalf of George W. Hopkins, Claimant, v. The United Mexican States (Docket No. 39) (1926), reprinted in 21 Am. J. Intl. L. 160, 166–67 (1927) (“[I]t not infrequently happens that under the rules of international law applied to controversies of an international aspect a nation is required to accord to aliens broader and more liberal treatment than it accords to its own citizens under its municipal laws. . . . The citizens of a nation may enjoy many rights which are withheld from aliens, and, conversely, under international law aliens may enjoy rights and remedies which the nation does not accord to its own citizens.”).
25 Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 466–67 (2001).
26 Id. at 468–69.
27 Id. at 472.
28 Id. at 492–93.
29 See The Price of Oil, supra note 7.
30 Doe I v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002).
31 Ratner, supra note 25, at 490.
32 Versions of the applicable types of international attribution theories can be found both in treaty law and international claims jurisprudence. See, e.g., North American Free Trade Agreement, Dec. 17, 1992, arts. 1502–03, 1992 WL 812398 (obliging states to be responsible for the actions of state enterprises and designated private monopolies acting under the delegated authority) [hereinafter NAFTA]. Similar theories of attribution can be found in the “colour of right” jurisprudence of local U.S. courts adjudicating claims under the Alien Tort Claims Act, 42 U.S.C. � 1983. See, e.g., Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997).
33 See Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, arts. 2(14), 4(3), 9(5), 1673 U.N.T.S. 57, 130, 132, 137.
34 WTO Panel Report, United States—Sections 301–310 of the Trade Act of 1974, WT/DS152/R, paras. 7.72–73, 76–78, 81–82 (Dec. 22, 1999).
35 Ratner, supra note 25, at 476–79 (citations omitted).
36 See, e.g., Kristian Ehinger, BIAC Statement, in OECD Guidelines, supra note 5, at 31.
37 The combined effect of the most-favored nation (MFN) and national treatment rules contained within the agreement would essentially oblige the host state to compensate the investor for any compensation that the investor would be forced to pay to a successful claimant. This is because the effective duty imposed by these two economic nondiscrimination rules would be for the host state to provide the best regulatory treatment available to the investor or its competitors, which would be the ability to ignore the human right in question.
38 The list includes: The Universal Declaration of Human Rights; The United Nations Convention on the Rights of the Child; The United Nations Convention to Eliminate All Forms of Discrimination Against Women; ILO Conventions 29 and 105 (forced & bonded labour); ILO Convention 87 (freedom of association); ILO Convention 98 (right to collective bargaining); ILO Conventions 100 and 111 (equal remuneration for male and female workers for work of equal value; discrimination); ILO Convention 135 (Workers’ Representatives Convention); ILO Convention 138 & Recommendation 146 (Minimum Age Convention and Recommendation); ILO Convention 155 & Recommendation 164 (Occupational Safety & Health Convention and Recommendation); ILO Convention 159 (Vocational Rehabilitation & Employment (Disabled Persons)); ILO Convention 177 (Home Work); and ILO Convention 182 (Worst Forms of Child Labour).
39 Another potential candidate for reference under the proposed mechanism would be the Universal Human Rights Guidelines for Companies, currently under consideration by a working party under the auspices of the U.N. Commission on Human Rights, once it passes through the drafting stages. As this body’s work is not devoted to the articulation of one particular set of human rights obligations, and will likely be subjected to the kind of wide-ranging consultation required to achieve sufficient legitimacy as to one day be accepted as legally binding, this document holds great promise as a universal reference point for all manifestations of the proposed mechanism.
40 Ratner, supra note 25, at 497–99.
41 Doe I v. Unocal Corp., 2002 WL 31063976, at *15 (9th Cir. 2002).
42 International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, art. 2, 999 U.N.T.S. 171, 173.
43 Case Concerning the Factory at Chorz�w (Merits), 1928 P.C.I.J. (ser. A) No. 7, at 47 (Sept. 13).
44 The state practice of subrogating the claims of citizens is, after all, exactly the same place from which investment protection regimes originally grew.
45 Cases of discriminatory or inequitable prosecution of a human rights claim against a transnational corporation by a state could well be construed as a breach of the underlying investment protection treaty provisions (requiring “fair and equitable” treatment, national treatment, and MFN treatment), but the immediate effect of such conduct would be to damage the investor/investment—forcing it to spend precious resources in its own defense.