University of the Philippines Manila

College of Arts and Sciences

Department of Social Sciences

Breaking chains: Human rights violations committed by multinational corporations in

the Philippines under the lens of Private International Law

Aries Joseph A. Hegina

2010-35566

March 15, 2014

Introduction

“The human rights of individuals, groups and peoples are affected by and dependent
on the extraterritorial acts and omissions of States. The advent of economic
globalization in particular, has meant that States and other global actors exert
considerable influence on the realization of economic, social and cultural rights across
the world. “

(Preamble of the Maastricht Principles on Extraterritorial Obligations of States in the

area of Economic, Social and Cultural Rights, 2011)

In the prevailing political and economic system, rights are not freely given, nor innate—
rights should be fought for.

In a global system that is subjected to constant flux, every aspect of the human
experience is rendered vulnerable. Realms that are supposedly private and mutually
exclusive from the changes in the political and economic systems are shattered. One
such aspect is that of the human rights of the individual. According to the United
Nations, human rights are “rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, colour, religion, language,
or any other status.” (UN Office of the High Commissioner for Human Rights), Thus,
the rights of individuals transcend colors and class and could not be curtailed. Also,
human rights are said to be “interrelated, interdependent and indivisible.” No human
right should exist with other human entitlements nor can it be watered down or
changed. Human rights, therefore, are indispensible to the survival of the individual.
Human rights ensure that a person can enjoy certain liberties without any intervention
or restriction, unless these rights are abused.

One key aspect of human rights and serves as its foundation is its universality
dimension. Aside from being indispensible, human rights should be availed by
everyone and the state should ensure that individuals can freely obtain these rights.
States should foster an environment and cultivate a society where rights can be enjoyed
without any fear of restriction. This point is furthered by the United Nations by saying
that:

States assume obligations and duties under international law to respect, to

protect and to fulfill human rights. The obligation to respect means that States
must refrain from interfering with or curtailing the enjoyment of human rights.
 The obligation to protect requires States to protect individuals and groups
against human rights abuses. The obligation to fulfill means that States must take
positive action to facilitate the enjoyment of basic human rights. At the
individual level, while we are entitled our human rights, we should also respect
the human rights of others.” (United Nations High Commissioner for Human
Rights)

It is essential to take note the universality dimension of human rights in assessing the
various forms of human rights and to some extent, to the violations of these rights. One
situation where one could readily see its manifestations is in the realm of the corporate
world, and how the rights of workers are enjoyed and to some extent, curtailed.

It could be deduced that the current and prevailing economic system of liberalism and
capitalism sparked the widening and deepening of the reach of transnational and
multinational corporations in the lives of the people. These corporations impact the
lives of the individual in the micro and macro scales: micro in a sense that a worker’s
civil and labor rights can be trampled on the four walls of the office; and macro in a
sense that the operations of these corporations can bring detrimental repercussions to
the lives of the people such as militarization and environmental hazards, among others.
When human rights violations are committed by these corporations, it should be noted
that at the onset, the state should provide the necessary avenues to address and resolve
these violations. When the lives of its constituents are at stake and their rights are
trampled upon, it is the obligation of the state to provide remedies, both legal and
extralegal, to resolve these conflicts.

According to Jägers and van der Heijden (2006), it has been the traditional notion in the
field of international law that it concerns the affairs of states. International law is ever
changing and flourishing and as a result, non-state entities, such as the individual, have
been allowed to avail of their rights and be given duties under the said field. Thus,
Jagers and van der Heijden said that in the case of bringing corporations to be
accountable in the forum, it is possible for an individual to demand such. This can be
done by demanding corporations to adhere to the different international conventions
that apply to these entities. However, the task of bringing corporations who committed
human rights violations into the forum is a different story altogether, as there is no
mechanism in the international level that is available to do such.

This paper will tackle the question whether human rights violations committed by
multinational corporations from a foreign state can be remedied in another state. This
will tackle the principles, legal concepts and a case study in Private International Law
that concern the research question. Lastly, the researcher will try to contextualize the
issue in question by putting it under the Philippine situation.

Principles and concepts

This part of the paper will tackle the various principles, mostly grounded on European
literature which is pertinent and relevant in providing recourse in the committal of
human rights violations by multinational corporations in other states.

Universal Declaration of Human Rights

This declaration, which is made possible through the initiative of the United Nations
and its members, stipulate the nature of human rights. Human rights are inherent to all
human beings and should be universal. Also, these rights all “interrelated,
interdependent and indivisible” The UDHR provides that since human rights have a
universality dimension, it is only crucial for it to be guaranteed and protected by law.
The United Nations states that human rights are safeguarded in the form of “treaties,
customary international law, general principles and other sources of international law.”
In the field of public international law, human rights are guaranteed under the field of
International human rights law. This specific field of law “lays down obligations of
Governments to act in certain ways or to refrain from certain acts, in order to promote
and protect human rights and fundamental freedoms of individuals or groups” (United
Nations High Commissioner of Human Rights)

The UN "Protect, Respect and Remedy" Framework for Business and Human Rights

Unprecedented development during the 1990s in key sectors of the economy coupled
with allegations of corporations fostering unbearable and inhumane working
conditions in their offshore locations pushed the development of the “Protect, Respect
and Remedy” framework.

In 2004, the “Draft Norms on the Responsibilities of Transnational Corporations and

Other Business Enterprises with Regard to Human Rights” was made. This document
sought to:

Impose as binding obligations on companies directly under international human

rights law the same range of duties that states have accepted for themselves:
namely, “to promote, secure the fulfillment of, respect, ensure respect of, and
protect human rights,” with the only distinctions being that states would have
“primary” duties and companies would have “secondary” duties, and that the
duties of companies would take effect within their (undefined) “spheres of
 influence”. (UN “Protect, Respect and Remedy Framework for Business and
Human Rights)

These Norms were later developed in 2008 to what is the current “Protect, Respect and
Remedy framework”, making it the first time the United Nations made a substantive
point and assertive stand on the issue.

There are three pillars that are stipulated in the said framework. The first pillar is “the
state duty to protect against human rights abuses committed by third parties, including
business, through appropriate policies, regulation and adjudication.” This pillar
emphasizes that in addressing human rights abuses committed by corporations, it
should be the state that should be at the forefront of preventing and recognizing these
atrocities. Also, the first pillar recognizes that not all states are equipped with
mechanisms that address the interplay of the human rights and the corporatist agenda.
According to the framework, “overall state practice exhibits substantial legal and policy
incoherence and gaps, which often entail significant consequences for victims,
companies and states themselves.” It was also identified that “failure to enforce existing
laws” is the most common policy flaw in states. To address this policy flaw, it is
encouraged that states, as well as corporations, should espouse various ways and
means to ensure that human rights are respected and protected such as fostering a
culture that is respectful of human rights in the workspace; and espouse policy
coherence among agencies to address the state’s failure to implement existing laws.

The second pillar is known as “the corporate responsibility to respect”. One could see
that the framework used the word “responsibility”. According to the UN, it is due to
the fact that international human rights law is not yet an obligation for corporations to
adhere to. Also, the second pillar emphasizes that it is the responsibility of corporations
to diligently act on protecting the rights of others and to address the disparaging
implications that may stem from the abuse of these rights. The corporate responsibility
to enforce the protection and addressing of human rights is said to affect all the
corporation’s activities: from its business paradigms and programs, its linkages to other
corporations and even to the general society.

Lastly, the third pillar stipulates that “access to effective remedy” should be provided
by the state so as to address the violations that stem from human rights abuses. The
framework recognizes that “, access to judicial mechanisms for business-related human
rights claims is often most difficult where the need is greatest as a result of both legal
and practical obstacles”. Thus, it only underscores the need for judicial, administrative
and other extralegal measures and mechanisms for those who seek recourse from
human rights abuses.

It could be seen that this framework highlights the interplay of private and public
spheres as cooperation between the corporation and the state is needed to ensure that a
proper grievance-addressing mechanism with regard to corporate-led human rights
abuses is in place. It also belongs in the realm of the public international law side. Yet,
despite its inherent partiality to public international law, this framework is essential in
addressing cases brought on the domestic forum when a conflict of laws case exists.

Kiobel v. Royal Dutch Petroleum (10-1491)

This case aims to describe the cases of human rights violations done in two different
settings: one from an American perspective where private international law is more
advanced and provides its implications to the perspective of a developing country with
a developing discipline in private international law. This part of the paper will also
elaborate on how the forum was able to address and provide relief on the case.

The case revolves on the question whether or not the American federal court can hear a
claim under the Alien Tort Statute which originated from another state. In the case, a
class action suit was filed by petitioner Esther Kiobel who represents residents from the
Ogoni Region in Nigeria against respondents, the Royal Dutch Petroleum Co., Shell
Transport and Trading Company PLC, and Shell Petroleum Development Company of
Nigeria, LTD under the Alien Tort Statute. According to American law, the Alien Tort
Statute “grants jurisdiction to some federal courts for certain violations of international
law.” Also, ATS states that “district courts shall have original jurisdiction of any civil
action by an alien for the tort only, committed in violation of the law of nations or a
treaty of the United States”. The facts of the case are as follows:

The petitioners allege that Royal Dutch aided the Nigerian government in
committing various acts of violence against protestors of the oil
exploration projects in the Ogoni region. Petitioners claim that they have
standing to sue under the ATS because the history, text, and purpose of
the statute support the application of the ATS to actions in foreign
countries. Petitioner also contends that previous court decisions
interpreted the ATS to extend beyond U.S territory. In response, Royal
Dutch argues that the ATS is not an exception to the presumption that
U.S. law does not apply extraterritorially, and should not be applicable to
actions outside of the U.S. The Court's decision in this case will clarify the
 reach of the U.S. federal courts' jurisdiction over certain extraterritorial
tort claims.

This case is a very recent one and opens a new chapter in American jurisprudence as it
tackled the issue of the applicability of the Alien Tort Statute in a foreign forum. The
Supreme Court of the United States ruled in favor of the respondents as the ATS does
not have extraterritorial reach. It is important to note that the applicability of the Alien
Tort Statute will likely affect, should the decision of the Supreme Court was overturned,
the conduct of corporations who have business interests in other states.

Possible implication of the Kiobel v. Royal Dutch Petroleum Case on the Philippines

Applying in the Philippine setting, should the Alien Tort Statute been implemented and
recognized in the US, it could have provided the country a wealth of possibilities. For
one, the Alien Tort Statute could have been added to the current legal mechanisms that
the Philippines have in ascertaining the fault of foreign corporations and entities in
instigating human rights violations in the country. The forum would have not resorted
to forum non conveniens if it encountered a case concerning the committal of human
rights violations of foreign entities in the country as the Alien Tort Statute could be
utilized. To further this point, with regard to the Military Access Agreement and
Balikatan Exercises, ordinary Filipinos could find recourse in the ATS to find a
resolution with regard to alleged human rights violations of US military forces in the
countryside. The Alien Tort Statute if granted extraterritorially could have helped in the
improving the human rights situation in the country.
References:

http://accountabilityroundtable.org/wp-content/uploads/2013/02/The-Third-Pillar-
Access-to-Judicial-Remedies-for-Human-Rights-Violation-by-Transnational-
Business.pdf

http://www.reports-and-materials.org/Ruggie-protect-respect-remedy-framework.pdf

Jagers and van der Heijden. (2006). Corporate Human Rights Violations: The Feasibility
of Civil Recourse in The Netherlands. Accessed on March 13, 2014 at
http://arno.uvt.nl/show.cgi?fid=81270

Kiobel vs. Royal Dutch Petroleum.Accessed on March 13, 2014 at

http://www.law.cornell.edu/supct/cert/10-1491

Kiobel vs. Royal Dutch Petroleum.Accessed on March 13, 2014 at

http://supreme.justia.com/cases/federal/us/569/10-1491/

United Nations Office of the High Commissioner for Human Rights. Accessed on
March 13, 2014 at http://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx.