ECCHR!

DOCUMENTATION EUROPEAN CENTER FOR CONSTITUTIONAL AND HUMAN RIGHTS

on Transnational Corporations and Human Rights
9 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

CONTENT
Introduction 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

INTRODUCTION
As 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,

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

CONFERENCE REPORT
On 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 Remarks
The 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

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 World

Danuta 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-

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-horror
Prof. 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 Rights
Prof. 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-

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.

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 Rights

Colin 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

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 Movement

In 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)

10

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)

11

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)

12

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 Food

Olivier 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

13

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 Groups

In 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 Environment

Interview 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)

15

VIII. Scope of Accountability of Transnational Companies for Human Rights Violations

Dutch 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 Violations

Dora 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.

16

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 Conducts
In 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.

17

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

18

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)

19

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 Experts

1. Interview with lawyer Peter Weiss (USA) conducted on October 12, 2008 in Berlin, Germany
Peter 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.

20

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

21

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

22

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,

23

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.

25

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, Germany
Jacqueline 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

28

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 pending in Chad? Let me explain our course of action. We went to Belgium and the Belgian judge charged Hissne Habr for crimes against humanity, genocide and war crimes. Belgium was therefore obliged to request his extradition and, at that time, the judge issued an international arrest warrant against Hissne Habr. Senegal received the extradition request. According to Senegalese extradition laws, it is within the competence of the Prosecution Chamber to provide an evaluation, positive or negative, of the extradition request. The file is then to be handed directly to the President of the Republic, who executes the decision via a decree. In our case, the Prosecution Chamber declared itself incompetent to provide the evaluation, demonstrating that the file was not only juridical, but also highly political. In this case, we are not talking about a common person or someone who can be easily convicted by the relevant courts. Why are there not immunity-related problems? Hissne Habr does not have immunity any longer. We ensured that the Chadian government withdrew his immunity. We had, and still have, a document issued by the Chadian government stating clearly that Hissne Habr no longer has immunity. In Chad, the question of immunity has been discussed intensively and we have revoked that law.

29

At the time, there was a law mandating the creation of a court to put Hissne Habr and his accomplices on trial. While the law existed, the necessary structures to implement it did not. Hissne Habr cannot be tried in Chad. That is also our decision, and the decision of those who initiated the proceedings, because if Hissne Habr were tried in Chad, he would be killed in his first appearance. This issue is rather complex and complicated in Chad. Those who were used by Hissne Habr to commit the killings and all the grave and massive human rights violations occupy positions of power in Chad today. It is therefore unacceptable for Hissne Habr to be prosecuted in Chad. From the time we initiated the proceedings, we did not choose the Chadian state and, instead, chose Senegal. When that did not work, we went to Belgium. The competent tribunals in Senegal refused to extradite him and denied their jurisdiction to address the contents of our case, alleging that this was an African affair. This explains why the matter was then placed on the agenda of the African Union (AU). There were no references to prosecutions of heads of state in the policies or texts of the AU, nor were there any authorities, nor precedence in any state of the AU. At this point, we have effectively withdrawn our case and the AU has determined that Hissne Habr should stand trial in Senegal. This is because the AU refuses to allow African leaders to be judged outside Africa; in their own words, par les blancs. Mr. Katende, you are very active in the Democratic Republic of Congo (DRC), particularly in a process that has enlisted much international cooperation. You use the instruments of Congolese law. Jean Claude Katende: In the DRC, there are laws that allow for the prosecution of people and corporations within Congolese jurisdiction. This is what we have done in the proceedings concerning the corporations involved in the massacre of civilians in the Kilwa region in 2004. The laws exist, in fact, but our problem is the implementation of these laws by the Congolese judiciary. Is the Congolese judiciary capable of ruling today

with complete independence vis--vis multinational corporations? This is the crucial point. For us, the law, as implemented in the DRC today, fails when it comes to convicting a transnational corporation. What are the problems with these legal processes in the DRC? The first problem is the acquisition of the judiciary by the executive power. The independence of the judiciary exists only on paper. In reality, judges and prosecutors are not independent. They follow orders and instructions they receive from either the Prime Minister or the President of the Republic. That is our first concern. Our second concern is the influence of the multinationals. The multinationals have a lot of money and this allows them to bribe judges to persuade them to rule in their favour. Ms. Moudena, must the response to political problems in Africa, and particularly in Chad with the proceedings against the dictator, be accomplished by judicial means or is the application of the law just one suitable option? Jacqueline Moudena: In the case of Hissne Habr, we have the choice to use a traditional justice mechanism. One example of this mechanism has been demonstrated in South Africa with the Truth and Reconciliation Commission, and another in Morocco with the Equity and Reconciliation Commission. We did not want this. The first reason is because the context is not the same and the problems are not the same. We need national reconciliation in Chad, but that is only possible through judicial justice. A reconciliation that would intervene regardless of the judicial process would push us into a perpetual situation without peace. In a country that has experienced more than thirty years of war, to achieve reconciliation for the citizens in Chad, the authors of the massive and continual violations of human rights must answer for their acts. The result would be more security and a guarantee to the victims, which would enable them to proceed to reconciliation and to obtain a peace, a sustainable peace. Is the Congolese perspective the same? Ms. Moudena spoke already of traditional justice. It seems

30

rather often that traditional instruments tend to be used as western ideology to flee the responsibility to prosecute crimes? Jean Claude Katende: Personally, I think you must consider the context in any country. I am not sure that you could directly duplicate what has happened in South Africa and Morocco. Regarding the DRC, I believe that reconciliation cannot be achieved without justice because there have been so many crimes and human rights violations. From our perspective, we think that the authors of those different human rights violations must face justice in order to give the victims some satisfaction in knowing that these persons will be punished and to accomplish reparations. One must also anticipate the future. If the law does not intervene, the same things could repeat; therefore, the legal system is a means not only capable of repairing what has been done, but also of preventing the reoccurrence of such violations. In Chad, there is also the case of Idriss Dby, a collaborator of the dictator Habr. Jacqueline Moudena: In the case of Chad, when you say you cannot bypass the judiciary, that is because you must take into account the fact that the current President was the Major General Chief of Staff under Hissne Habr, who we are currently prosecuting, so he is not merely the current President. Today, in the Ministry of the Interior (the police), there are individuals who once held important positions under Hissne Habr and, in particular, those who were in charge of the repressive machinery during the dictatorial period. Thus, the victims live with their tormentors in their everyday life. They deal with each other as daily routine. This is the reason it has been said that justice cannot be achieved. Chad will never have reconciliation if the torturer refuses to tell the victims why they have been tortured. Most often, those who were tortured or lost parents suffered only because their parents shared the same ethnic backgrounds as the opponents. There were no fundamental reasons to torture those people. Therefore, it is absolutely important that these victims see,

hear, and above all, comprehend their tormentors as they explain themselves before a court. That is the reason why we chose the voice of justice. But how would it be possible to achieve an independent judiciary? That is complicated, but we figure that today we will focus on international crimes since these crimes are going to be tried in another territory by virtue of universal jurisdiction. We predict that Senegal will move forward with the process and that, above all, the Senegalese judges in charge of the case will act in an equitable manner both for Hissne Habr and the victims. It is also a question of honour in Senegal because it would be the first time that an African jurisdiction would rule on international crimes. If Africa does not want the authors of these crimes be judged outside of Africa, it must show its capacity and power to judge international crimes on its own territory. Concerning this topic are there any possibilities for success against war crimes in the Congo? Are you familiar with the example of Thomas Lubanga and the International Criminal Court? Yes, in The Hague. ... a Congolese military official whos release was ordered by the Trial Chamber I in July. This is the first trial of the Court. Is the ICC always an alternative? Jean Claude Katende: Yes. There are two important things to mention. The first is that there were crimes committed before the implementation of the Rome Statute inaugurating the ICC. My organization demands the implementation of an international tribunal similar to the one in Rwanda, with the goal of pursing crimes committed between 1996 and 2002 to the extent that they concern certain persons who currently hold some of the countrys leading positions. Concerning the crimes committed after 2002, since the ICC has jurisdiction, we support these crimes being judged by the ICC, especially in regard to Jean-Pierre Bemba, Katenga, and other ministers who murdered the population.

31

We also believe that in the long run, the work conducted by the ICC could be significant to the African legal system, particularly for the Congolese system where these matters are taken into their hands. We should not forget that the ICC remains a complementary court that intervenes in cases where the nations involved are not willing to, or incapable of issuing independent judgements. Personally, I believe that the ongoing work of the ICC is a good thing because it is increasingly important to fight against impunity in our countries which could ameliorate the living conditions of the population, the majority of which has been victim to acts committed by those persons who are being taken to the ICC today. How do you understand globalization? Do you have examples that contradict the narrative of Western ideology? After all has been said and done (the investments, the aid), the fundamental question we have to consider is: what has been the use of all of this to the African people? That is the big question. Everything that we have been given and everything that has been done by the class in power has been to their benefit. The African population does not receive their share from what has been done. We should consider mechanisms that would allow the population to profit directly from the aid and executed investments without filtering through the rulers who, in the plurality of cases, do not allow the aid to get to the people. If aid and executed investments contributed to the amelioration of the living conditions of our people, our work today would lack significance, or at least its significance would be declining over time. Instead, every year there are reports that our people do not have access to health care, nutrition, and education. That means the aid has not benefited our populations most in need. Could you explain to us the process in Kilwa? What happened there and what role does your organization play in this process? In 2004, an area that possesses many ores was occupied by a group of individuals described as rebels. From my point of view, these were young people who were having fun. The occupation of the area endangered one of the largest corpora32

tions working in the DRC in that area: Anvil Mining. The government of Congo sought to recapture the locality by sending in troops, but they did not have the means to do so. Thus, they asked Anvil Mining for assistance. In particular, they asked for a plane, trucks and food to assist the army and Anvil provided them. The troops were transported immediately to Kilwa with the vehicles made available for them. While recapturing the area, instead of merely attacking the small group of rebels who could have been stopped without using weapons (the young people were not heavily armed), the army began repressive actions against the civilian population and as many as one hundred individuals lost their lives. Even worse, after having massacred those one hundred people, the corporate vehicles were used to evacuate the bodies and bury them in a common grave. At the same time, property was looted and goods were transported out by the corporations vehicles. Our organization was informed and we sent a team. Although Kilwa is located at least 400 km away, we were able to send people to conduct a survey and produce a report. The conclusions of this report were confirmed in a report by the United Nations mission in the Congo. That is how the case began. The investigating judge was seized and the case was scheduled a couple of years later before the military tribunal of Katanga. The tribunal first issued an acquittal for the corporation, Anvil Mining, and its accused agents. Only the military was convicted and ordered to pay ridiculously insignificant compensation for damages to the victims. We have filed an appeal of this decision and the hearing began last Tuesday. We are certain that the judge for this appeal will not do anything more than confirm the judgement in the first instance. The role of our organization has been crucial as we have been the first to issue a report and demand the prosecution of the military, the Anvil Mining Corporation and its involved personnel. We have also mobilized certain international organizations to provide assistance, not only to ease the task of the lawyers, but also for the protection of victims. In this kind of work, if you initiate judicial proceedings, you must always keep in mind that the victims

should be at the center of any action. The victims face multiple risks. Some might be killed or disappear without a reason. Hence, our work has been to protect the victims and to mobilize the international community to assist. Consequently, we have these results today. Even if these are not very important, for us, the fact that it is the first time that a multinational corporation was brought to trial in the DRC, even if it was acquitted, is a positive step. Ms. Moudena, you are familiar with another example where the World Bank is involved in a process. Could you please explain the crimes committed and the context of the World Banks engagement in Chad? What is your part in that case? Jacqueline Moudena: The World Banks political strategy has by no means been okay with the Chadian people. The World Bank has always spoken of poverty reduction in terms of exploiting Chadian oil. Since 2000, it has financed a pipeline construction to export Chadian oil without taking into account that the regime was not ready to accommodate the oil. The history of mismanagement of Chadian oil is not a new phenomenon; none of the successive regimes, which have often been implemented by coups dtat, have been capable of managing the oil. In seeking to finance the project, the World Bank twisted their arms and then shut the door. Human rights organizations and the general civil society have called on the World Bank to meet the minimum conditions required to ensure human rights as preconditions of any exploitation of oil. The World Bank has not taken these warnings into consideration and, instead, sought to resolve all these problems by organizing oil resource management. They wanted Chad to pass a law to appoint managers of these resources. The law specified that portions of oil revenues should be prioritized in a way that all Chadian people would benefit. One portion was even designated for the next generation through a trust fund in Belgium. Meanwhile, the World Bank has ignored, or perhaps does not want to consider, the opinions of organizations and civil society. Concerning the trust account for the future generation, the law has been modified and no longer exists today. The Chadian government 33

created insecurity in Chad in order to take over the fund in support of a war brought by Sudan. This is, in fact, a war between the Chadian people. While Sudan arms the Chadian rebels, the oil money is now used by the Chadian government to arm the Sudanese rebellion. The fund for the future generation does not exist anymore. The funds designated to priority sectors have also not been administered reasonably. Today, this project has pushed the population into total misery. When you travel to the oil zone, the planned schools have not been built, the health centers have not been constructed, and roads have not been asphalted. The population that was displaced from its property has not been compensated, or rather, since some of them have been, they have never been adequately compensated and never in the way designated in the policies adopted during the World Banks course of action for oil exploitation. Meanwhile, the World Bank realized that it is impossible to work with the Chadian government because it believes that the Chadian government has not respected its engagements in unilaterally modifying the law they established together. The World Bank has not only withdrawn from the project, but also claims that Chad should compensate it for the loan they used for pipeline construction and for their financing and establishment of certain projects. Today, the Chadian people are in complete despair. The World Bank simply backed out in order to avoid the many consequences. That is the reason we absolutely wanted to initiate an action against the World Bank. The retreat shall not be disregarded by the Chadian population. In the face of these problems, what is your perception of the future of your country? It is difficult to speak of solutions that could contribute to solving all the problems we experience because it is about the lives of human beings and it involves multiple problems. To find appropriate solutions is very difficult because you will, again, start to speak about the most fundamental things, like political governance. The system should be completely revised to be able to take the problems head on and resolve them, and thats very delicate.

If you speak of a change of government in Chad, it becomes apparent that it is nearly impossible when, for example, right under the nose of the World Bank the President of the Republic has issued the modification of the constitution enabling his eternal representation. He is now the President for life in Chad, which was supported by France head on. It is quite difficult to tell if there could be change through transparent elections whatsoever. The course of action exerted by those in power has always been to suppress the opposition completely. Today you could say that no opposition exists in Chad. There are some adversaries who have taken over the government under the pretext that it was necessary in order to form an open government. That is the big fault of part of the opposition. And do the few people remaining in the opposition have the charisma to oppose that power? I doubt it, and I strongly doubt that a political succession could be the solution for all the Chadian problems. From a Congolese perspective, are the legal instruments the means of first choice or do you prefer the other important instruments, such as the economical, ecological, social ones? Jean Claude Katende: In the context of multinationals and human rights, I think that we will continue to monitor all the bad practices employed by the multinationals corporations. It is important to be informed about recent developments. We will continue our activities on the national level using the available legal means. At the same time, we will lead actions on the international level by employing mechanisms like the guiding principles of the OECD, but also by trying to establish whether in the countries where there are NGOs that collaborate with us, there are possibilities to prosecute the multinational corporations within those jurisdictions. We will also work to strengthen our synergy, our partnerships with international NGOs, in the context of our defence work, and continue to exert pressure on multinationals and on the government of the DRC. My last question relates to the social responsibility of corporations. What do you think about soft law mechanisms?

Jean Claude Katende: From my point of view, as I expressed in the other presentation, I think that at the international level today there are no voluntary conventions or norms that could be tantamount to the guiding principles of the OECD. These principles offer a good opportunity to civil society organizations to introduce complaints at the point of contact in the corporations countries of origins. That should not stop us, however, from noting the fact that the mechanisms implemented by the guiding principles of the OECD do not include sanctions. It is merely a mechanism for mediation. We would appreciate if these mechanisms were revised to create obligatory principles for corporations. Jacqueline Moudena: In the case of human rights violations by multinationals, you must seize the smallest opportunity, whatever it may be, in order to resolve this problem even if you are unsuccessful and do not win the case within the domestic law, because to win a case against multinationals who are complicit with the state is a very difficult task and takes a very long time. However, if you have the option to make a complaint about these multinationals to any organ of governance, I believe that the effect is increasingly deterrent. Therefore, it is indispensable to our fight to seize every occasion, use all the options, and take every opportunity that is in our possession; otherwise, we are helpless. It is better to have this mechanism and use it, than to have nothing and watch these multinationals dominate the people. Thus, I believe it is a very good thing and it is especially necessary to bring together sufficient elements and be active on the ground in order to be able to take the next step towards using those mechanisms. Thank you very much Madame Moudena and Monsieur Katende. Interview conducted by Kamil Majchrzak. Translation from French: Judith Schneider. Becky Grossman contributed to this interview.

34

3. Interview with Colin Gonsalves (Human Rights Law Network, India) and Patrick Sindane (Coalition against Water Privatization, South Africa) conducted on October 7, 2008 in Berlin
Colin Gonsalves is the Founder/Director of the Human Rights Law Network (HRLN) and a Senior Advocate in the Supreme Court of India. As a human rights litigator in India, Mr. Gonsalves specializes in human rights protection, labor law and public interest law. Mr. Gonsalves is an active litigator in the Supreme Court of India and several state High Courts. He has brought numerous precedent-setting cases to the Supreme Court of India in the sphere of both civil and political rights as well as social and economic rights. One of Mr. Gonsalves most significant achievements has been his co-development of the Indian Peoples Tribunal (IPT), an independent organization directed by retired Supreme Court and High Court Judges that investigates human rights violations. Patrick Sindanes interest in human rights issues began shortly after finishing his matriculation exams. He joined the Anti-Privatisation Forum (APF), one of the leading social movements in South Africa. He is now working for the Coalition Against Water Privatisation (CAWP) as an Organizer/Spokesman and assisted both the APF and CAWP in conducting research on the effects of prepaid water meters in the communities and also on HIV/AIDS and water. Two books resulted from this work. Patrick, how did you get involved in the case against water privatization? Patrick Sindane: I got involved because of my living condition, which is similar to any ordinary South African. There is no sympathy with the poor. I come from a poor family. Fortunately, I worked at a steel producing company and I had to find my own place to stay. The house of my family is small and I have brothers and sisters, you know. When I looked for a place, I stayed in a hostel on a compound. That compound used to be owned by a company that is called Cisco. There were no services. The place was

vandalized, no water, no electricity. We had to cover the windows with plastic. I got interested in reading the newspaper, the budgets and the policies, and what the government was planning for people like us and I attended one of the meetings organized by the city on the budget. They promised to build upgrades for us and so forth. By that time, I realized that no one was meeting the promises that they made. Of course, without electricity you can live for days, but without water, I realized: something is wrong because I was struggling to get drinking water. Women were traveling long distances to search for water. We had problems with the sanitation. And I started to group six or seven people together to say, Can we challenge the city? Enough is enough! At that point, we started to form an organization, just a community organization, and it grew. When it was growing up, we heard about the Anti-Privatization Forum. It consists of community-based organizations that are against privatizations. Then we said ok, let us go to this forum because we are going to be a social movement which is well known now in Johannesburg. I worked as a volunteer to do what we do organize campaigns. Then I attended one of the water meetings. It was the Coalition against Water Privatization, and when I got there, they were in the process of doing research because the city was planning to install pre-paid water meters in Soweto. So I volunteered myself and said, Look, I have no qualifications, but I have no problem going into the communities. What was the goal of the survey you did? We did research on the amount of water people usually use and on the resources. After the research we published two books. Also, after the research, they were hiring someone who organizes for the Coalition and this is how I got involved. South Africa is a fast-developing country with, presumably, the latest constitution created and a role model for many African economies. Is it possible to harmonize human rights, in particular socioeconomic rights, and the liberal market? The rest of the world thinks that the South African Constitution is the best in the world. Well, the South

35

African Constitution is full of rights, but at the same time it is full of limitations, especially in the bill of rights. When it comes to the issue of water, it does not say you have the right to water, but you have the right to access to water. So having said that it is a problem, however we say the state, within its limitations, is obliged by the constitution. CAWP initiated a political movement against a prepaid water supply. What was the strategy in the beginning? Did you plan to take legal steps from the very beginning? When we started, we realized: we need more information, as much as we can get. I thought it was discriminating against the poor because it is comparable to not being able to buy a loaf of bread. So we allied with the CAWP, the Movement for the Freedom of Expression and the Forum Against Privatization. We formed a research team, also independent researchers. In 2003, we filed the case. It took us three years to bring the case to the Johannesburg High Court. The city allocated 350 liters per household per month. Their calculation was based on eight members in one household. In Soweto, actually 16 to 20 people live in one household so it was quite unfair for the people. In 2007, after three days of hearing the judge said: ok, I need some time for the facts and details. We hoped the judgment would be quite general. We were demanding 50 liters of free water per day per person. In 2008, the court declared the water meters illegal and unconstitutional. The court ordered the city to provide the people with 50 liters per day. It furthermore ordered that the city pay back all our expenses for the court proceedings. We knew the city would appeal against the ruling based on many reasons. They got a loan from a company called Suez, the contract was terminated due to the ruling, and the city has to return the loan. So it is now on the Supreme Court and we are prepared to go to the Constitutional Court. But we, like I said, we are a social movement. We believe in the peoples power. We had a debate before going the legal way. We cannot fight the

bourgeoisie and their institutions in the courts. We need to strengthen our power on the ground. Thats why they are so strong. In the end, we agreed that we need to hold the state accountable to its constitutional obligations, because they say nobody is above the Constitution. So lets go the legal way and challenge them by the Constitution. That is why we have two approaches. After winning the case, we started to remove the water meters; we took the law in our hand. No matter whether we win or lose in the Constitutional Court, the campaign has also another approach; we remove the water meters. People will have water. People do not really trust in the courts, especially the people in the organizations, like us. We are not hiding. We invite the media, we invite the city and we tell them the days of actions. But we took of the water meters so the people have water again. When we removed the meters, the police came. We take the judgment, show it to the police; then we are allowed to remove them. For us, it is the state that is responsible. We discovered that the water meters were produced in South Africa. The owners of the company are the same government officials who run that company. So they earn twice, as government officials and company owners. Thats how the black bourgeoisie messes in South Africa. If you look and research you will find that each government official has a share in the banks, the companies building the 2010 stadiums and so forth, so the money is just circulating amongst themselves. Now, the target is the rural community in most African countries. They are no longer focusing on the townships. In rural areas, there is less opposition with a lower degree of organization. Now it is difficult for companies to come to Soweto, because people will protest. Having heard about the chances for litigation, we are interested in the follow up. Colin, do you agree on how to handle court decisions, enforce a court order, or use the litigation within the media, community work, and political action? Is it the best way to handle such court decisions?

36

Colin Gonsalves: I would say direct action in the developing world is the best way of doing things. Perhaps direct action may sometimes break the law as it stands, right? When the law is unjust, it has to be broken. The symbolic Gandhi march for the right to make salt is the historic act of civil disobedience by the people. The British had outlawed the making of salt by Indian people. He took a huge procession to a spot where they actually manufactured salt and said the laws are yours, but the laws are not just. He would tell the court as an advocate, it is my duty to break your law and it is your duty to punish me. The general statement Patrick made, that people are distrustful of the courts, is probably valid as a general notion for the entire developing world. In a country like India, very few people go to the courts. Of the marginalized, which is actually the majority - the slum dwellers, the unorganized workers, the disabled - no one would go to court even for grave violations of human rights. In India, we have a vibrant court system. The courts to some extent support the enforcement of basic rights. We have an incredible system of public interest law, which I will explain in the conference a little bit. How did you develop the idea of starting the Human Rights Lawyers Network? How can you provide access to socio-economic rights? In other words, is there a specific legal mechanism you favor? The idea developed in the 80s as a legal idea with the Supreme Court by certain judges who had a leftist orientation. They developed and expanded the concept `local standard` so that almost everyone could petition a class action in the High Court or the Supreme Court on behalf of millions of people. You dont need the authorization of the people. We began in 1989, basically, with the labor law organization and branched out into criminal law, and later into public interest law in general. The right to food case, which you might have heard of, is the most important case. 150 million children get a midday meal, 110 million children and women get supplementary nutrition. So, about 250 million people benefit from the public distribution system. So there is a huge impact. Those judges initiate a special branch of the Supreme Court. How was this new idea developed? 37

Lawyers and judges were not happy with the decision because it brought in a whole range of human rights issues to the Supreme Court, which was basically meant as a court of appeal for property matters and commercial disputes. The system has settled in a way. Now, in times of globalization, the minds of the judges have changed; they are more upperclass. They are disinclined to think of socialistic ideas, equity and human rights. They think it is an aberration now. But it is too entrenched for them to do away with it and the people support it. Corporations started to work within the sphere of public distribution. They have factual power when it comes to ensuring human rights standards. How is this issue addressed and how would you like it to be addressed? What is the role of civil society? Corporations have actually taken over Parliament and government in our country. It is not so obvious today, but within the next few years it will become very clear. For example, when Parliament tried to introduce a tobacco warning, 150 members of Parliament out of 510 wrote to the minister saying it was unacceptable. I would say Parliament has been privatized. Saskia Sassen argues that governments are still very powerful and adapting to the changes that flow from globalization. What do think about the interrelation of government and corporations? I would slightly disagree. Like I was saying, Parliament has been privatized. Now corporations largely control the executive and you have corporations coming in today working on the education policy, deciding the health policies. You actually have a privatization of state thinking. It is no longer in the hand of politicians and people who are responsible to their constituencies. There are corporations who say you should develop in a particular way. I can understand corporations have a role in information technologies or industry, banking, but today, in social services, you have the corporations coming in, making plans for the entire community. And here you can hear the voices of the NGOs. I think state power is willingly falling away. See, in the era of globalization and privatization the state is very happy to be in the hands of corporations that choose money to be made for the hands of each member

of Parliament. Even a person coming from a poor background, that person would adapt very quickly, within the first month of office, and understand how the system works. As far as the legal tools to prosecute transnational corporations, there has been a very slight change in our country because we have what is called writ jurisdiction, which is against government and government-aided bodies. It can be used against corporations performing public functions. The public function test has come in to some extent. So even a private body can be sued as if it were the government. How was this concept of accountability developed? What was the source? It did not come through legislation, but by a court decision which said that since corporations are expanding into all fields of activity, including the social sphere, if they perform a public function, they would be treated in the writ court. This was introduced in commercial cases. There was, for example, a famous cricket body, which controlled huge revenues, which actually appointed the Indian cricket team. The question arose as to whether you could go directly to the high court and prosecute them for their malperformances in respect of advertisement rights. The courts said the cricket board is performing a public function. It always comes in commercial cases. Our idea is to hold companies that are based in Europe or the U.S. accountable for what they do in India or South Africa. What do you think of this idea? Would it support your work? I would say the prosecution of transnationals is the cutting edge of law now. Which country will turn out to be the lead in developing the law of prosecuting transnationals is anybodys guess. We do a lot of prosecution, but not in the American way of getting damages. The action results in payments of compensation. But tort claims do not work in my country. The law is the same. It just takes too many years - over ten years. We use the courts successfully for injunctions against corporations or for mandatory orders from government which will affect the corporations. Ultimately, corporations are accountable to 38

the government and through the government to the people. It is basically the writ petition of the public interest or the class action petition. It would be great to sue the European companies in Europe. Look at the pesticides; the companies have a huge lobby in India. The pesticides are banned in Germany, and they just use them for the Indian market. Can you ask an Indian court: why do you allow it here? If European courts are open to the argument that harmful products should not be sold anywhere in the world, we would be a lot further. The argument is somewhat simple. If you have a law banning medicines, it is based on the fact that it affects the German people. It affects a human being. What difference does it make if a particular country has weaker laws or weaker standards? If you have decided as the German government that it affects the human being so badly that, apart from banning it, there is no other remedy, how can you, under any understanding of law, reject the same action abroad? I can understand the borderline case. On the basis of clear studies, I do not see any reason for differentiation. Some European companies withdrew when faced with ethical questions. What do you think of the unusual idea to have a lawsuit before the ICJ; a developing country suing a European country for not enforcing proper laws on their corporations? How do you view this extraterritorial obligation of states? Is the government not obliged to enforce their laws on protecting human rights abroad? We have never used UN norms. We never looked at it carefully. But it might be interesting, not as a legal mechanism, but as a mechanism of blaming and shaming. If the Indian government would be taken to the UN for an Indian company operating in Darfur, it would be a tremendous move. I think we should do it. I would like to see at the end of this meeting a concrete plan of action so that we can actually take up a whole range of cases, either in the European courts or in Indian courts. Suez had to leave many countries in Latin America; I guess they realized that it does not make much sense to privatize water.

Patrick Sindane: The multinationals do not win. The issue of pre-paid water meters was also stopped in London. Companies are looking for new markets in order to make more profit. We can see South African companies focusing on other African states. The water resources are mainly in the hands of South African companies, therefore, we started with the network in Africa. We give the advice: be careful with those people. On the world social forum, we even started a bigger network in order to prevent U.S. or French companies from controlling the African water markets, but in general we would rather focus on the constitution than relying on the help of international courts. Colin Gonsalves: Indian companies are also coming to Africa. For example, the Oil and Natural Gas Commission, our biggest Indian company, has gone to Darfur and taken over from the Europeans who obeyed the embargo and left. We go to Burma, support the military regime by doing business with them. South African arms manufacturers could send arms into a critical region. Can you sue these companies? These economies will become very brutal economies in some way. Interview conducted by Alexander Kamieth and Dr. Miriam Saage-Maa.

Niger liberated itself from colonialism in 1960. What is the situation today, nearly fifty years later? What has been the legacy of colonial dependency? Independence has only been nominal. Like every other African country, Niger has remained in economic, political, and cultural dependency since 1960. In terms of politics and the economy, African countries have been on the receiving end of development paths that are decided elsewhere by an international agenda controlled by international financial institutions. They have been dependent on the generous aid from allied countries that provide support in emergency situations or for various recurring crises. Structural adjustment programs have brought the African countries to their knees. Contemporary strategies of poverty reduction have been prescribed by the same doctor, for the same agonizing patient. The first few years after the implementation of these strategies have been an indication of a new fiasco. How do Western and Northern countries influence Niger in terms of the quality of life of its inhabitants? Are there any benefits for Nigerians arising from investments or development aid coming from the North? The aid of the North has been useful in situations of deep economic and financial crisis. This includes some bilateral aid, as well as financing by international financial institutions. Today, however, everybody should be watching in the rear mirror. With this aid, the North or the West have helped development and forced the South into dependency and chronic structural poverty. As an organization that aims to protect human rights and individual and collective liberties of the citizens and the African people, we have always been critical of the ill politics of development and bad governance by African political leaders. The West must conduct its own self-criticism today. Is the North morally proud of what its assorted actions have contributed to or maintained? This moral consideration should help redefine the nature of cooperation in development. Furthermore, and in a more effective way, the West has contributed to underdevelopment through some of its companies

4. Interview with lawyer and humanrights activist Badi Hima (Niger) conducted on October 29 in Niamey
Badi Hima is a founding member (1991) and Vice President (since 1999) of the ANDDH (Association Nigrienne pour la Promotion des Droits de lHomme). The ANDDH is a member of ROTAB (Rseau des Organisations pour la Transparence et lAnalyse Budgtaire), Publish What You Pay Niger and of GREN/ Niger (Groupe de Rflexion sur les Industries Extractives). GREN/Niger is affiliated with FIDH (Fdration Internationale des Ligues des Droits de lHomme) and a member of UIDH (Union Interafricaine des Droits de lHomme). Due to logistical problems, he could not attend the Conference in Berlin.

39

exploiting the continent down to the bones (one must use these terms to illustrate the cruel reality). Is there a positive impact of companies, such as AREVA, in regards to development today? How is it possible that a country that is among the worlds leading producers of uranium constantly remains at the bottom of a worldwide ranking of human development during the decades that AREVA extracted uranium? After forty years of mining, what profit is AREVA making today? For the majority of Nigerians, uranium has not changed the quality of life for the better. How is it comprehensible that while the global market price was 100,000 Francs, Nigerian uranium was purchased for 25,000 Francs per kilo? You might then understand the enragement of the Nigerians who took to the streets to protest against the AREVA contracts. Colonization or dependence, which the Africans thought they had left behind with independence, has been replaced by the dispossession of the continents natural resources comparable to an enterprise of pauperisation. There is gold in Samira in the western territories of Niger. Socit Minire du Liptako, a project of the Canadian company SEMAFO, extracts it. Profits from this operation go only to the company and dignitaries of the regime, neither to Niger nor to the Nigeriens. Without transparency in the process, Niger has recently agreed on a contract with CNPC (China National Petroleum Corporation) for the extraction of oil. The contract remains a secret. Along with signing the contract, the Chinese company paid an immediate bonus of 127 billion francs. What have the Chinese obtained in this contract that they would be willing to give a 127 billion bonus to Niger? The Cabinet de Consultation cashed 3.15 billion for the expense of Nigerian experts. ROTAB has called for the implementation of a parliamentary fact-finding commission to monitor the process of contract signing and to ensure that environmental, social and economic impact studies are conducted before the companys operations are initiated. Nevertheless, a week ago, the first stone was set in Zinder without those minimal requirements having been met. How is it possible for a company like AREVA to continue to exist given the backlash from both the Nigerian government and rebel insurgents?

AREVA cannot continue to be complicit in the degradation of the rights of our population. We encourage the state to fight for the populations interests instead of being an accessory in the exploitation of natural resources. AREVA has been active in implementing programs to combat AIDS/HIV in Niger. Do you think this indicates potential for further humanitarian work by the company or is it merely a cover-up? These actions are useful, but remain secondary and peripheral in proportion to their responsibilities and obligations. The day when international justice will be just and equitable, we will prosecute AREVA and the Chinese for every tort they inflict on our African populations. If we dont experience that day, our children will one day. That is the legacy we will leave behind. Why is it important to raise the issue of transnational corporations when talking about human rights violations in Africa? Could you please give us some examples of violations of human rights committed by transnational corporations? You know that the mining industries have brought poverty and war to Africa due to their everyday human rights violations. That is very important. Everywhere they have been involved, the corporations contributed to the degradation of living conditions of the population. The types of contracts they have created and the conditions of exploitation have had serious consequences for human rights. Respecting human rights has not been their biggest concern in Africa. This is seen in all African countries blessed with mineral resources. The guiding principles of the OECDs claim to respect the human rights of persons who are affected by the activities of multinational corporations in conformity with the obligations and the international commitments of the government of the concerned country have not always been adhered to. The impact on the environment, sanitation, and health of the population and on security conditions at work can be particularly disastrous, as already mentioned. In fact, in the region of Arlit where two

40

mines of uranium are based, the population has been faced with the contamination of water and the environment by radioactivity. There is no respect for the schedule of specifications set out in the certificate of conformity delivered by the Ministry of Mining. Corporate responsibility means integrating the social, environmental, and governmental concerns into the economic and commercial strategies of corporations. It means refusing corporate activities in the name of sustainable development. As expressed by the Office of Social Concerns (OSC), it is the request to replace the rampant quest for profits, with the consideration of social and environmental concerns. The survey on the exploitation of gold in Samira revealed several categories of human rights violations. The compensation awarded to the Autochthon population following the dispossession was undervalued and only provided for the end of public utility. The environmental impacts are vast. Pollution, particularly by cyanide and lead, caused significant damage to the life of animals and birds located in the environs of the wastewater evacuation canal, bearing testimony to the real ecological threat for the ambient zone. The use of corrosive chemical products like hydrochloric acid, caustic soda solution, and heavy metals such as cyanide and lead, has apparent degrading and detrimental effects on the human, vegetal, and aquatic environment, as well as on animals. Although human losses due to the effects of the substances used in the treatment of gold ore have not been tracked, scores of animal cadavers (goats and birds, in particular) have been found in the area surrounding where mine wastewater is disposed. The deadly attacks on birds and animals by cyanide or other baneful substances through contamination in the food chain may also result in casualties among other animals. The impact of cyanide, hydrochloride acid, calcium carbonate, and lead, is further highlighted by the miners themselves. In terms of the social consequences, there is a weakness of social investments, inflation of living expenses, social and cultural upset, protection of the employers, and restrictions to the exercise of trade union autonomy. If the effect of gold exploitation has already been dramatic in just three or four years, what can we 41

say about the exploitation of uranium for forty years? In Arlit and Akokan, civil society is fighting against the negative impacts of uranium mining in terms of human rights violations. The findings from an investigation done by the Commission de Recherche et dInformation Indpendantes sur la Radioactivit (CRIIRAD) are only formal. The mining of uranium has brought a veritable human and environmental tragedy with the complicit silence by the companies responsible, COMINAK and AREVA, but also by the Nigerien authorities at the head of state since independence. Analysis has revealed the following: contamination and exhaustion of aquatic resources; contamination of ambient air by dusts and radioactive gases; disposal of contaminated scrap metal to penniless populations looking for shelter; dispersion of radioactive materials in the environment including the open air storage of radioactive waste in front of the hospital; accidents during the transportation of radioactive substances; exploitation of uranium and the consequential greenhouse effect; and insufficient public sanitation. What should we expect when it is well known that the Chinese do not show respect for the most minimum human rights standards? What is the link between current wars and conflicts as well as human rights violations in West Africa and the extractive industries? Oil caused the war in Congo-Brazzaville. Oil was also the underlying cause of the war in Sudan, and is at the core of the war in Chad. Uranium and the destination of its profits is similarly the reason for the rebellion in Niger. In addition to the impact of those conflicts in terms of human rights violations (crimes, killings, displacements of populations, etc.), the environmental and health related impacts (i.e. radioactivity) have been documented in several studies. The rural population in the region of Arlit (the site of the uranium mines) suffers under the grave consequences to the vegetation, which has caused losses to agriculture and cattle breeding. The movement of engines used to exploit the resources has caused disillusionment within the population. The people do not know what to do anymore. What are the main obstacles in addressing this issue for the two networks ROTAB and GREN you are involved with and for your personal work?

ROTAB and GREN work hard for the enforcement of regulations and also to raise awareness among civil society actors, local representatives, and the media about the lack of transparency within the extractive industries, increasing knowledge about Nigerien legislation and budgetary spending. The networks are lobbying for the implementation of the Extractive Industries Transparency Initiative (EITI), which Niger has been a member of since March 2005. We have initiated a two-fold approach. First, to compel the Nigerian state to respect the absolute obligation of an evaluation study on sanitary and environmental impacts caused by the exploitation of uranium in Arlit, coal in Tchirozrine, gold in Samira, oil in Diffa and Zinder, and to initiate adequate judicial remedies against the companies responsible. Second, we claim a 15% share of all mining revenues from the state for local communities. This is a legal obligation the state cannot deprive itself, along with the need to implement a fund for mineral resources. The main obstacles include the complete lack of transparency regarding exploitation contracts and the lack of respect by the state for its responsibilities derived from its membership in EITI. The third obstacle is the presence of China in Africa, despite not being a member of the EITI. As such, China is the nation that respects human rights the least. That reality is visible to the naked eye. Do you think there are effective legal remedies on national and international levels to address these human rights violations? We are in need of effective mechanisms to prosecute countries and corporations that disregard the rights of populations and their environment. Violations caused by radioactivity should therefore be considered crimes against humanity given consideration to the humanitarian disasters they provoke. Thank you very much Badi. Interview conducted by Kamil Majchrzak. Translation from French: Judith Schneider. Becky Grossman contributed to this interview.

5. Interview with lawyer Yann Quiennec (France) conducted on October 10, 2008, in Berlin
Yann Quiennec is the Director of the Sherpa Association, an international network of lawyers based in Paris. Before joining Sherpa, he practiced law as a tax and legal adviser with Landwell & Partners from 1997 to 2004. He has practiced in Central Africa (Chad, Cameroon, Equatorial Guinea) from 1997 to 2001, where he advised major transnational corporations in the oil and gas sectors. He has recently published several papers including OECD Guidelines for Multinational Enterprises - An Evolving Legal Status, and directed two working papers for the European Coalition for Corporate Justice on the issue of parent company liability within the supply chain. How and why was Sherpa established? Sherpa is a non-profit organisation founded in 2001 that strives to put into practice the concept of social and environmental accountability by public and private actors in the context of sustainable development. Sherpa is an international network of lawyers (based in Europe, North America, Africa, Asia, and Latin America) working in collaboration with international civil society organizations, trade unions, academics, and experts. The activities undertaken by Sherpa seek to highlight the human rights and social rights violations and attacks on the environment committed by multinational corporations, in order to increase the level of accountability among economic actors and to prevent and repair damages. In its initiatives, Sherpa has developed a culture of result. From this perspective, the emphasis is first and foremost to reach constructive agreements with companies. The discussions focus on solutions of adequate repair and on creating innovative mechanisms for preventing social and environmental risks. In achieving its objectives, Sherpa undertakes field investigations and legal analyses on its own initiative or at the request of victims. This enables us to compile legal cases against multinational corpora-

42

tions responsible for serious violations of human, environmental or social rights. According to the results of our investigations and legal analyses, Sherpa utilizes a range of relevant legal and dispute resolution tools, such as filing legal complaints, arbitration, and negotiation. Sherpa also undertakes advocacy, investigations and work as counsel. Why is Sherpa addressing the issue of the responsibility of transnational corporations for human rights violations? Our vision is that the new balance of power emerging out of globalization requires an unprecedented commitment by lawyers. It falls to them to establish the tools of prevention and repair and to remedy the damages caused by economic actors. Sherpa conducts important litigation against multinational corporations. Could you explain the goal of these proceedings and the reoccurring problems? Sherpa is an association of lawyers based in France, with an objective to promote corporate social responsibility. We issue complaints and initiate legal proceedings to achieve that goal. The judicial track is not systematic, but pursuing it, nevertheless, allows us to gain experience with the obstacles we face. Today, these obstacles relate to the manner in which the corporations organize their activities, particularly their presence in the countries where they establish autonomous structures called branches. Very often the base of corporate control makes big decisions for the entity and benefits from those decisions in terms of increasing profits, and thus making the regulatory autonomy of the branches illusive. In this context, victims in certain countries (very often the countries of the global South) inform us that a branch of a big corporation has done something constituting a violation of human rights, the environment, etc., and asks for our legal assistance. Confronted with these kinds of facts, we first verify their veracity, and then look for a means to hold the corporation responsible. In fact, our speciality is the French legal system, and if the perpetrators or accomplices have French nationality, or if an 43

element of the offence was located in France, this is all that we need in order to argue for jurisdiction within the French courts. The major obstacle is establishing that the corporation itself is at least partially responsible for the origin of decision-making, which led to bad practices by the branches. What are those practices you speak of? I think what is interesting about Sherpas approach is that we use the criminal law and French civil law to evoke social, economic and cultural rights by their widest possible definition. In concrete cases, corporate practices consist of deplorable working conditions for the employees, such as miners in numerous mining operations. This ranges from uranium to manganese to gold. There are also health effects with impacts of a range of severity on the populations living alongside the water from the oil exploitation, for example. It is further expressed in the deplorable lack in wages, which causes violations of fundamental workers rights, such as, for example, the right to damages incurred by workers due to cancellation. We have a very illustrative dossier on this topic concerning the Congo. And finally, in terms of the environment, there are also very concrete practices, such as dumping of toxic waste by the Probo Koala (cargo ship) in Abidjan two years ago. These are the types of practices that negatively impact the environment and human rights in the widest definition of the term. How do you succeed in proving the complicity between actors? The main problem in telling a corporation is always: you are responsible for what happened here. The problem of how to successfully link the corporate command to the activities of its branches is crucial. There are several steps to undertake in order to trace the chain of command between the branch practices and the decision-makers that issued those specific practices. Amidst the wide variety of elements, the

major obstacle is the legal autonomy of the structures. This creates an artificial obstacle, as quite often the branches only follow instructions given by the corporate headquarters. Under the guise of independence, it is the corporations leaders that, in reality, make the big strategic decisions. Therefore, one of the biggest difficulties for us is proving the existing relationships between decision-making at the top level (at the corporate level) and the wide application of the inferior branches. There is, for example, one element that is frequently invoked. The corporations rushed themselves into it: ethical engagements. The ethical engagement of a corporation is expressed on the corporate level by conducting marketing campaigns, often on a global scale, saying, We do certain things to ensure sustainable development for future generations, etc. A simple expression of this kind on the corporate level provides us with an argument that in the field there is emerging information about a branch (which is advertised by the marketing and communication as operating on these great principles), and with this information we can prove that this advertisement is contradicted by the facts. Legally, these are the arguments you can use to establish negligence or to characterize misleading publicity. In this context, malevolence is an extremely important notion. In the cases we initiate, the direction we take is to denounce these contradictions and establish malevolence. This is done in order to convince the judges that a reasonable person under similar conditions would have taken measures to prevent or repair the damages. What do you think of soft law instruments like corporate social responsibility? Is it a means for change? It is a means, but it is insufficient. It is something you observe in practice with any voluntary regulations in general, and the current financial crisis illustrates this. You cannot merely have a concern and trust that there will not be any major impact on the social and environmental level if left in the hands of private actors.

Thus, with voluntary regulations, yes, its good to drive people to better practices. Apart from that, however, experience shows that if there are no applicable sanctions, these copious efforts often lead to the minimum result. The conventional communication concentrates only on what is good and ignores everything that is going wrong. Thus, there is a paradox: the instruments of soft law multiply, creating the feeling of regulation without making the rules of the game clearer, resulting in legal insecurity both for the victims and the corporations. Soft law nevertheless allows for the emergence of useful standards for the future in identifying what you have the right to expect from a corporation in terms of social and environmental responsibility. What experiences have you had working on transnational corporations, and which legal instruments, from your perspective, do you prefer in combating human rights violations? Please give us some examples from your work. Quite a vast set of legal tools may be used from criminal law to tort law to consumer law in matters of misleading advertising. Among others, we have experienced the following three examples with Rougier, Total and Areva: ROUGIER: a constructive legal setback In the case launched by 7 Cameroonian farmers and Friends of the Earth against both the directors of SFID, a Cameroonian law firm, and its parent company ROUGIER S.A., the Chambre de lInstruction de la Cour dAppel of Paris issued an order of inadmissibility against the legal action on February 13, 2004. The charges were lodged in March 2002 for the alleged destruction of goods belonging to another party, forgery and use of forged documents, fraud, concealment, and acts of corruption by civil servants. The case before the Chambre de lInstruction concerned whether the French parent company could be pursued as an accomplice for its activities, despite the fact that it was impossible to pursue the alleged primary perpetrators in Cameroon (the subsidiary body) in the local jurisdiction.

44

Consequently, the plaintiffs decided to present the case before the Cour de Cassation (Court of Cassation). The court rejected this approach. Mr. William Bourdon lodged an appeal before the European Court of Human Rights. The court declined the appeal, as constructed by the Cameroonian plaintiffs, on lack of standing and held the case was inadmissible at first instance. This case helped Sherpa identify the weak points within the set of French legal provisions that are applicable in the fight against illegal logging. Drawing numerous lessons from this experience, Sherpa has developed a set of proposals to modify the French Penal Code with regard to concealment, which is a current topic of discussion within the French government and of particular importance in the context of the future French Presidency of the European Union. TOTAL: a legal breakthrough with unprecedented consequences After filing a legal complaint in August 2002 on behalf of two Burmese citizens who were victims of forced labor on a gas pipeline worksite established by TOTAL, proceedings were launched against in October 2002 at the Tribunal de Grande Instance in Nanterre for the crimes of abduction and kidnapping. In a proceeding that set a significant legal precedent, an investigating judge was designated and an investigation was opened against a French parent company for acts perpetrated by a foreign subsidiary. Today, the case is frequently cited to illustrate the evolution of transnational accountability for global economic actors. On November 29, 2005, an agreement was signed between TOTAL and the plaintiffs. TOTAL compensated each plaintiff in the amount of 10,000 Euros and committed to pay damages to all persons who suffered from the same conditions as the plaintiffs. A solidarity fund of 5.2 million Euros was also created for humanitarian and development projects to benefit Burmese refugees in Thailand. Evidently, if the process had never been opened, this outcome would not have been achieved. Without precedence

in France, this case indicates the importance of a rigorous field investigation phase in allowing for the collection of evidence. This case has demonstrated that a combination of these elements, combined with a rigorous legal approach, facilitates negotiations with the actors in question, despite asymmetrical power relations (TOTAL, for example is the foremost company in the CAC 40), in finding a solution to the dispute. AREVA: new governance tool based on inquiry, investigation, and media coverage Following numerous fact-finding missions to Gabon and Niger between 2003 and 2006, Sherpa and its partners (CRIIRAD and Mdecins du Monde) published an inquiry report emphasizing the culpable negligence of the AREVA Corporation with regard to the prevention of health-related and environmental impacts from its mining activities in the two countries. After a press conference on April 4, 2007, and the medias interest in denouncing their activities, AREVA invited Sherpa to establish health observatories designed to monitor the health consequences of uranium extraction. Currently being finalized, the discussions should yield an unprecedented governance tool, which will be adopted as a best practice and duplicated and implemented in all of AREVAs mining sites around the world. This initiative is likely to become a significant model inspiring similar efforts within the industry, given AREVAs status as one of the major international players in the sector. Following the example of the TOTAL case, this case demonstrates that serious investigative work, when driven by rigorous legal analysis and collaboration with partner organizations with specific expertise (CRIIRAD in the field of radioactivity and Medecins du Monde in the field of health), has the capacity to lead to constructive discussions with corporations as influential as AREVA. Are there any benefits or possibilities of using labor laws of the home country in cooperation with trade unions of the home and host countries in the context of TNCs? Could you please give us some examples from your practice?

45

The COMILOG Company based in Gabon was a subsidiary of a French holding company. It employed almost one thousand salaried staff, the majority of whom were Congolese, to transport manganese from a mine in the Congo. In 1992, the company suddenly ceased its activities in Congo without justification or compensation for violating employment contracts for the salaried Congolese staff. Despite negotiations between the governments of Congo, Gabon and COMILOG, the workers have still not received reparations. Sixteen years after the fact, these workers still have not found work and do not receive a pension: they have no more resources. In 2006, Sherpa was asked by the Workers Collective of COMILOG (Compagnie Minire de Logou) to recover unemployment payments that have been unpaid by the holding company in France since 1992. In November 2007, Sherpa decided to proceed under the French legal system, and went before the Labour Tribunal (Conseil des Prudhommes) of Paris for the first time claiming that the holding company be held responsible for violations of labor rights committed by a subsidiary company abroad. COMILOG has been the subject of numerous transactions since the 1990s, and thus, ERAMET, COMILOG International and COMILOG France are the three entities challenged in this court action. The first hearing took place on October 9, 2008 in Paris. Merci beaucoup. Interview conducted by Kamil Majchrzak. Translation from French: Judith Schneider.

case against Mercedes Benz Argentina for crimes against humanity, and the trial attorney for Argentinean foreign debt from the period of 1976-1983. Arietto also defends incarcerated youth offenders and youth at risk of incarceration from corrupt police practices in Buenos Aires.

Denise Bentele is a Legal Analyst for the ECCHR on the issue of transnational corporations and human rights. She is the author of Responsibility of Transnational Corporations for Human Rights Violations and co-author of this conference report. Prior to joining ECCHR, Bentele worked as an attorney in Hamburg and as a lecturer in Tanzania. She has also interned with the International Criminal Tribunal for Rwanda (ICTR) and the International Secretariat of Amnesty International.

William Bourdon is a lawyer and ex- Secretary General of the Fdration Internationale des Droits de lHomme (FIDH) from 1995 until 2000. In 2001, he created Sherpa, a French NGO which apart from other activities litigates cases on human rights abuses by transnational corporations and for which he serves as president. In 2005, Bourdon mediated a case with oil company Total on behalf of Burmese victims of forced labor, receiving 5.2 million as compensation.

XII. Presentation of Speakers

Maria Florencia Arietto received a degree in law at the Universidad de Buenos Aires and is specialized in criminal legal practice. She is an attorney at a private firm in Buenos Aires, Argentina, where she practices in the areas of tributary criminal law and juvenile justice. In 2006-2007, she represented the descendants of Roberto Quieto for his torture, kidnapping and homicide during the Argentinean dictatorship. Today, she is the trial attorney for the

Tillmann Rudolf Braun is the Deputy Head in the division of International Investment, Debt Rescheduling and Development Banks within the DirectorateGeneral for External Economic Policy of the Federal Ministry of Economics and Technology in Berlin. His professional responsibilities include, among other things, serving as the national contact person for the OECD-Guidelines for Multinational Enterprises on behalf of the German Federal Government. Braun has been working for the German Federal Ministry of Economics since 1995, when he started in the Directorate-General for Economic Policy, Bonn. He took a leave of absence to study for a Master of Public Administration Degree at Harvard University. He also served as an assistant to the Special Representative of the German Chancellor for negotiations

46

on compensations for former slave laborers and Parliamentary Adviser for the FDP Caucus in the German Bundestag. In 2003, Braun returned to the Federal Ministry of Economics, Directorate-General for External Economic Policy. He has published and lectured on international investment law and on Germanys bilateral investment treaties, inter alia: The New German-Chinese Bilateral Investment TreatyA Commentary and Evaluation in Light of the Development of Investment Protection under Public International Law, ICSID ReviewForeign Investment Law Journal [with P. Schonard (Fall 2007, 1-22)], Investment Protection under WTO LawNew Developments in the Aftermath of Cancn, Beitrge zum Transnationalen Wirtschaftsrecht, 2004, (Paper 28, University of Halle-Wittenberg, 2004). In the spring 2009 term, Braun will hold the position of Global Fellow and Visiting Scholar from the Government at New York University School of Law, where he will conduct research on globalization and international investment law.

committee from 1980 to 1983. Dubler-Gmelin was SPD-Vice-President from 1988 to 1998 and member of SPD-National Board from 1978 to 2005 and German Minister of Justice from 1998 to 2002. DublerGmelin is the Chairperson of the SPDCommittee on Human Rights. Since 2005 Dubler-Gmelin is the chairperson of the Committee on Human Rights and Humanitarian Affairs and, also since 2008, the chairperson of the Committee on Human Rights and Legal Affairs of the Parliamentary Assembly of the Council of Europe (PACE). Dubler-Gmelin is also a lecturer at the Otto-Suhr-Institute at the Free University Berlin and Tongij University Shanghai. She is the honorable President of the German Palliative Care Movement (Deutsche Hospiz-und Palliativbewegung).

Wigand Cramer is a sociologist and economist who currently works as the Political Secretary and District Chief of the IG Metall trade union for the regions Berlin-Brandenburg and Saxony. After working twenty-two years in the IT Industry as a freelancer, company employee, consultant, trainer, member of the work council and joint works council, supervisory board member, trust director, strike chief, executive director and chairperson, he began working in 2002 for the IG Metall in the Siemens Team. His primary focus of activity is what he describes as the wild east, as well as the microchip industry in Saxony.

Boniface Dumpe is the Deputy Director of the Centre for Social & Corporate Responsibility (CSCR) in Nigeria. CSCR is a non-governmental organization that serves as a neutral liaison between multinational oil companies and the local communities in which these companies operate in the Niger Delta. CSCR monitors the activities of oil companies to ensure that they operate within global standards while also bringing to their attention specific issues concerning community members. In particular, they monitor the handling of oil spills and other environmental hazards resulting from operations. Along with handling oil company-community conflicts, CSCR monitors prisons and police stations through their Access to Justice division. They provide legal aid to citizens and facilitate the release of illegally detained persons and inmates of minor offences.

Herta Dubler-Gmelin studied history, law and political science in Tbingen and Berlin, received a PhD in 1975 and, before being appointed to a professorship at the Free University Berlin, worked as a lawyer in Stuttgart and Berlin. In 1965 she joined the SPD (Social Democratic Party of Germany), has been a member of the German Parliament since 1972 and served as the chairwoman of the legal

Katherine Gallagher has been a Staff Attorney at the Center for Constitutional Rights (CCR) since 2006, where she focuses on holding individuals, including US and foreign government officials and corporations, including private military contractors, accountable for serious human rights violations. The cases on which she is currently working include: Arar v. Ashcroft, Matar v. Dichter, Saleh v. Titan and Estate of Ataban v. Blackwater. Prior to joining CCR, Gallagher worked at the United Nations International

47

Criminal Tribunal for the former Yugoslavia from 2001-2006. She has also worked as a legal advisor for the Organization for Security and Cooperation in Europe in Kosovo, with the United Nations International Independent Investigating Commission in Beirut, Lebanon and with the Special Court for Sierra Leone in Freetown. During the negotiations to establish the International Criminal Court, she worked as a member of the Womens Caucus for Gender Justice in the International Criminal Court. Katherine received a joint M.A. in Journalism and Middle East Studies from New York University in 1995 and a J.D. from the City University of New York in 2000. She is a frequent author on topics involving the issue of international criminal law, extraordinary renditions and human rights and how to litigate International Human Rights Cases in U.S. Courts.

and political rights as well as social and economic rights. One of Mr. Gonsalvess most significant achievements has been his co-development of the Indian Peoples Tribunal (IPT), an independent organization directed by retired Supreme Court and High Court Judges that investigates human rights violations. Mr. Gonsalves has written, edited and co-edited numerous articles and books on a range of human rights law issues. Additionally, he co-founded and serves as editor of Combat Law, widely acknowledged as the leading human rights magazine in the country.

Dora Lucy Arias Giraldo is a lawyer and human rights defender in Colombia. A member of CAJAR, she has litigated cases involving transnational corporations in the violation of human rights. She is president of the Colombian Association of Defense Lawyers Eduardo Uma Mendoza ACADEUM.

Colin Gonsalves is the Founder and Director of the Human Rights Law Network (HRLN) and a Senior Advocate in the Supreme Court of India. A human rights litigator in India, Mr. Gonsalves specializes in human rights protection, labor law and public interest law. He graduated from the Indian Institute of Technology, Bombay, where he started his professional life as a civil engineer. He was drawn to the legal sphere through his work with the millworkers union in Bombay. He commenced formal legal study in 1979 and litigated his first case on behalf of 5,000 workers locked out of their jobs while still in law school. Upon graduation in 1983, he co-founded the India Center for Human Rights and Law in Bombay and developed it into a national network of over 200 lawyers and paralegals under the auspices of the Human Rights Law Network. Mr. Gonsalves is an active litigator in the Supreme Court of India and several state high courts. He has brought numerous precedent-setting cases to the Supreme Court of India in the spheres of both civil

Political scientist by training, Constanze J. Helmchen has spent the last ten years on questions surrounding corporate responsibility for sustainable development in its diverse dimensions. Moving from strategic management consultancy at the Boston Consulting Group she returned to her university focus on ethnic conflict resolution, editing the Berghof Handbook for Conflict Transformation published by the Berghof Research Center for Constructive Conflict Management. At the medium-sized consultancy IFOK she then concentrated on tri-sector facilitation processes, bringing together public, private and civil society interests on various issues from environmental challenges to community and development issues. Now in her fifth year with the German Technical Cooperation, GTZ, she returned from Bolivia in January 2007 to coordinate the German Global Compact Network as UN-mandated Focal Point.

Seema Joshi has eight years of professional experience working in areas of international law, human rights, and sustainable development. She is currently acting as legal adviser to the Ending Impunity campaign at the UK-based international organization Global Witness, where her work focuses on increasing accountability and fairness in the justice system for those affected by natural resource exploitation. Joshi previously worked for the United Nations Development Programme in Thailand, where she managed the Asia Pacific regional program focused on improving environmental decision-making practices and policies for the poor. Before moving to Asia, she worked as a lawyer in Canada on environmental and natural resource related claims.

48

Joshi holds a Masters in International Law from the London School of Economics. She also holds a Bachelor of Laws and Bachelor of Arts from a Canadian university. In 1999, she was admitted as a Barrister and Solicitor to the Law Society of Alberta, Canada. Currently, Joshi is on secondment from Global Witness to the UN Special Representative of the Secretary General on Business & Human Rights to focus on issues relating to the role of home states in conflict zones.

Wolfgang Kaleck is the General Secretary of the European Center for Constitutional and Human Rights e.V. and long-time president of the progressive Republican Lawyers Association (2000-2008). Kaleck is an attorney specialized in criminal practice and is the spokesman of the Coalition against Impunity, Truth and Justice for Disappearance of German Citizens in Argentina. He has worked closely with Amnesty International, The Center for Constitutional Rights (CCR) and Human Rights Watch on cases regarding the disappearance of German citizens in Argentina, as well as on behalf of the detainees in Abu Ghraib and Guantanamo, and against the former Uzbek Minister of the Interior. Together with CCR, he filed two lawsuits in Germany against former U.S. Secretary of Defense Donald Rumsfeld and other high-ranking members of the US administration and military for gross violations of international law in regard to human rights abuses in Abu Ghraib.

of the Netherlands Government Advisory Committee on Human Rights. Kamminga is also a member of the editorial board of the Netherlands International Law Review and a co-rapporteur of the Committee on International Human Rights and Practice of the International Law Association. Kamminga is the author of Inter-State Accountability for Violations of Human Rights (1992), editor with Zia-Zarifi of Liability of Multinational Corporations under International Law (2000) and, with F. Coomans, of Extraterritorial Application of Human Rights Treaties (2004). He has written numerous articles in the fields of general international law, international human rights and international environmental law.

Jean Claude Katende is the president of ASADHO (Association Africaine de Dfense des Droits de lHomme African Association for Human Rights). This association 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. He is a member of the National Executive Committee of the Publish What You Pay coalition and of the committee of the Extractive Industries Transparency Initiative (EITI) in the Democratic Republic of the Congo.

Menno T. Kamminga is a Professor of International Law at Maastricht University in the Netherlands and has been director of the Maastricht Centre for Human Rights since 2000. From 1987 to 2000, he was a Senior Lecturer in International Law at the Erasmus University in Rotterdam and from 1978 to 1987, he served as a Legal Adviser at the International Secretariat of Amnesty International in London. In 1973 and 1974 Kamminga was awarded two Masters Degrees of International Law and International Relations at Groningen University and The Fletcher School of Law and Diplomacy, respectively. He earned a Ph.D. from Leiden University in 1990. He is Chairman of the Netherlands Government Advisory Committee on International Law and a member

Benedetta Lacey is the Special Advisor on Corporate Accountability to Amnesty International. She is also the Chair of Amnestys global network of sections working on business and human rights issues. Before joining Amnesty, Lacey worked as an advisor on transnational accountability issues, with a particular emphasis on non state actors. She was awarded an Arthur Helton Fellowship by the American Society of International Law to conduct an investigation into the accountability of the UN in refugee camps. She advised the UK Parliament Joint Working Group on the OECD Guidelines for Multinational Enterprises about accountability issues relating to companies operating in weak governance zones. She also worked

49

in the U.K. on a group litigation brought by Masai and Samburu claimants seeking compensation for injury from unexploded ordinance left by the British Army on Kenyan training ranges. Lacey trained as a barrister with the UK Government and is a Lord Denning Scholar of the Honourable Society of Lincolns Inn.

Cone, Rio de Janeiro) an independent non-profit organization engaged in socioeconomic research and education. PACS mission is to place its staffs efforts and creativity at the service of social movements and other organizations for development in the endeavor to rethink the economy and to head our social and economic system in new directions. At the present time, we are working with a group of fishermen directly impacted by a transnational corporation in Rio de Janeiro, Brazil.

Carlos Lopez-Hurtado is a legal officer and head of the International Economic Relations Programme International Commission of Jurists. He studied law at the Catholic University of Peru, where he also received a diploma in sociology. He holds a Masters and a Ph.D. in Public International Law from the Graduate Institute of International Studies, Geneva. Between 2001 and 2002, he was a visiting scholar at Lincoln College, Oxford University, where he conducted research leading to his doctoral dissertation, WTO Legal System and International Human Rights Law. He worked for the Office of the UN High Commissioner for Human Rights until 2007. He has researched and written about social clauses in international trade agreements, human rights and trade and investment, social labeling and the protection of labor rights, the rights of the accused in international criminal law, and more generally on public international law, reservations to human rights treaties, etc. In 2005 he went to Nepal to become the first Legal Advisor to the Office of the UN High Commissioner for Human Rights in Nepal. He has worked for various NGOs in Peru and at the international level, represented the Peru National Human Rights NGO coordination before treaty-bodies and collaborated with FIAN, the International Council of Human Rights Policy and other organizations. Since January 2008, he leads the ICJ work on business, human rights and accountability that promotes the consolidation and development of international standards on business accountability and the enhancement of access to justice by victims of human rights abuse by companies.

Jacqueline 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, then in exile in Senegal, to trial. Moudena is President of the Chadian Association for Human Rights (ATPDH Association Tschadienne des Droits de lHomme). She has repeatedly received death threats and was severely injured in a grenade attack in 2001. After fighting in NDjamena in February of 2008, she again had to leave her country under threat to her safety, but she returned to Chad after five months. She received the Martin Ennals Award for Human Rights Defenders in April of 2002 and the Dickinson School of Law, Pennsylvania, USA awarded her a special prize for her involvement in human rights defense trough its program Scholars at Risk in 2004. Moudena and her organization have also challenged the Chad/Cameroon Oil and Pipeline Project, a 650mile oil extraction and transport project financed by the World Bank and completed in 2003; ATPDH is advocating for a more just national oil policy. She urges that Chadian people desperately need the kind of sustainable development that oil revenues could finance, as well as compensation for land loss, environmental damage and related health problems.

Karina Yoshie Martins Kato is an economist at PACS (Institute of Alternative Policies for the Southern

Karsten Nowrot is a Senior Lecturer and Researcher at the Transnational Economic Law Research Center (TELC) in the Faculty of Law, Economics and Business at the Martin Luther University, HalleWittenberg, Germany. He received his legal education at the Universities of Kiel/Germany, Surrey/ UK, Halle-Wittenberg/Germany and the Indiana University School of Law/USA. He holds two German

50

law degrees with distinction from 1997/2001 and was awarded the degree of Master of Laws in 1998 as well as his Ph.D. in 2005, both with distinction. His primary research interests lay in the areas of International Economic Law, Public International Law and European Union Law. He has taught courses on issues of international, European and German law at universities in China, Germany, the Russian Federation, and at the Ministry of Industry and Trade of Jordan. Nowrot is a prolific author on topics involving the issue of transnational corporations and human rights. His doctoral thesis is entitled, Normative Consequences of the Participation of Transnational Enterprises in the Law-Making Processes of the International Economic System. In addition to numerous other contributions, he has received the Commerzbank Research Award 2004 in recognition of his research project The International Legal Status of Transnational Corporations in the World Economic System.

assistance to basic sectors, such as women, urban poor, labor, peasants and local governments and has worked on issues relevant to these groups, including Moro and indigenous peoples, peace initiatives and the environment. Additionally, he has been involved in labor and environmental policy work and has presented in front of the House of Representatives in the Philippines. Prior to his appointment with SALIGAN, Mr. Salas worked with the Environmental Legal Assistance Center in Palawan where he worked with the Indigenous Peoples Empowerment and Resource Management Project. He also completed a year-long graduate internship at the Ateneo Human Rights Center. Mr. Salas received his J.D. at the Ateneo of Manila University Rockwell Center in Makati City, Philippines, in 2001. He is currently working on mining operations and has worked with local communities to protect their natural resources from the destructiveness of mining operations. SALIGAN, along with other members of the Alternative Law Group in the Philippines, plans to file claims against transnational mining companies on behalf of community members. He is presently engaged in drafting the City Environmental Code in Davao.

Yann Queinnec is the director of Association Sherpa, an international network of jurists based in Paris. Before joining Sherpa, he practiced law as a tax and legal adviser with Landwell & Partners from 1997 to 2004. He has practiced in Central Africa (Chad, Cameroon and Equatorial Guinea) from 1997 to 2001, where he advised major transnational corporations in the oil and gas sectors. In 1995, he obtained an LLM in International Business Legal Studies, at the University of Exeter and in 1996 a DJCE (Diplme Juriste Conseil dentreprise) at the University of Rennes. He has been contributing to Sherpa for four years and has been the director for a year. He has recently published several papers, OECD Guidelines for Multinational Enterprises - An Evolving Legal Status and directed two working papers for the European Coalition for Corporate Justice on the issue of parent company liability within the supply chain. Raymond Quiocho Salas is a staff lawyer with SALIGAN (Sentro ng Alternatibong Lingap Panligal, Alternative Legal Assistance Center) in Mindanao, Philippines. He works to extend developmental legal

Michael Ratner is the President of the Center for Constitutional Rights (CCR), a non-profit legal organization dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Ratner was co-counsel in representing Guantanamo Bay detainees in the United States Supreme Court in 2004. His leadership in the arena of human rights continues to strengthen the role of the international rule of law to promote justice and oppose armed aggression. Over the last four decades, CCR has lent its expertise and support to virtually every popular movement for social and racial justice. Since 9/11, CCR has spear-headed the struggle to restore the fundamental right of habeas corpus and continues to combat the illegal expansion of executive power and the American torture programs that have undermined fundamental rights in the name of the so-called war on terror, by representing victims of torture, rendition and domestic spying.

51

Ratner is the author of many books and articles, including The Trial of Donald Rumsfeld A Prosecution by Book (2008), Against War with Iraq, (2003), Guantanamo: What the World Should Know (2004) and the textbook, International Human Rights Litigation in U. S. Courts (1996). He has taught law at Yale Law School and Columbia University Law School and is the co-host of the popular radio program Law and Disorder. The recipient of many honors, Ratner was also included in The National Law Journals list of 100 of the Most Influential Lawyers in America.

Miriam Saage-Maa is a Legal Analyst at the ECCHR where she coordinates efforts related to transnational corporations and human rights. Miriam Saage-Maa studied law at Humboldt-Universitt in Berlin and earned a doctorate in constitutional history at Johann Wolfgang von Goethe Universitt in Frankfurt am Main.

Columbia University. She is currently a Centennial Visiting Professor at the London School of Economics. Her most recent book is titled Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton University Press, 2006) and was published in German by Suhrkamp (2008) as Das Paradox des Nationalen. Sassen has completed a five-year project on sustainable human settlement for UNESCO with a network of researchers and activists in over thirty countries. She is a member of both the council on Foreign Relations and the National Academy of Sciences Panel on Cities and was chair of the Information Technology and International Cooperation Committee of the Social Science Research Council (USA). Her books are translated into sixteen languages and she has written for The Guardian, The New York Times, Le Monde Diplomatique, the International Herald Tribune, Newsweek International and the Financial Times, among others.

Danuta Sacher studied geography, sociology and communication sciences at the University of Frankfurt/Main and the University of Mainz. Since 1990, she has engaged with the Protestant Churches of Germany in development cooperation. From 1990 until 1995, she served at the regional desk for Central America, Mexico and the Caribbean for the Development Service of the Protestant Churches of Germany (EZE, now EED). From 1995 to 1998, she served as the Regional Director of the Central American Refugee and Returnee Program in Costa Rica as part of the European-Canadian consortium, Project Counseling Service for Latin American Refugees and from 1998 to 2001, she worked in Guatemala with the U.S. American human rights group WOLA (Washington Office on Latin America) as the Regional Coordinator of its Central American Advocacy Training Program. In 2004, Sacher became the head of Development Policy and Campaigns at Brot fr die Welt (Bread for the World) in Stuttgart.

Olivier De Schutter is a Professor at the University of Louvain and at the College of Europe. He serves on the Global Law School Faculty at New York University and is a member of the UN Special Rapporteur on the right to food. His current research focuses on the links between governance and fundamental rights, especially within the framework of the European Union and on globalization and human rights, specifically on the accountability of transnational corporations. Relevant publications in this area include, The Accountability of Multinational Corporations in European Law, in Non-State Actors and Human Rights [Ph. Alston (ed.), OUP 2005], Transnational Corporations as Instruments of Human Development , in Human Rights and Development: Towards Mutual Reinforcement [Ph. Alston and M. Robinson (eds.), 2005].

Saskia Sassen is the Lynd Professor of Sociology and a member of The Committee on Global Thought at

Patrick Sindanes interest in what was happening around the world, especially around issues of human rights, began shortly after finishing his matriculation exams. He joined the Anti-Privatisation Forum (APF), one of the leading social movements in South Africa. He is now working for the Coalition Against Water Privatisation (CAWP) as an Organizer/Spokesman and assisted both the APF and CAWP in doing a

52

research on the effects of prepaid water meters in the communities and also on HIV/AIDS and water. Two books resulted from this work.

Elisabeth Strohscheidt, born in 1954, graduated with a Master of Arts (MA) in English language and literature, political Science and philosophy at Aachen University. She conducted post-graduate studies on land rights and human rights of Australias indigenous aboriginal and Torres Strait Islanders populations and published various articles on these issues. She has worked with Amnesty International since the late 1970s, first as a volunteer, later for about eight years as a staff member at the German section, responsible for Asia and business and human rights issues. Since April 2003, she has been working as human rights desk officer at MISEREOR in Aachen, with a major focus on corporate responsibility and accountability for human rights and development. She has produced several publications on these issues.

Sif Thorgeirsson, a citizen of both Iceland and USA, now based in London, manages the Resource Centres Corporate Legal Accountability Project. The project is working at developing an online information hub on corporate legal accountability for human rights abuses, highlighting significant lawsuits in all parts of the world. The Resource Centre will launch a special corporate legal accountability portal on its website in September 2008. The portal will clarify each case in non-legal language and present special commentaries by leading advocates and legal experts. Thorgeirsson was formerly a Researcher at Yale Law School on international human rights issues (including business & human rights). She was an associate at Troutman Sanders law firm in Washington D.C., where her practice focused on project development and finance in the energy sector, international law and corporate law. She received her law degree from George Washington University Law School in 1998. While studying law, she worked as a research assistant to international law Professor Ralph Steinhardt, working on subjects including human rights and corporate responsibility.

Ana Mari Surez Franco is the National Group Coordinator of the Justiciability Program for FIAN International. In this role, she assists with programs monitoring public policies and she is involved with extraterritorial obligations and international lobby work. She received her legal education at the Pontifical Javerianan University Bogot, the University of the Andes Bogot, the Universities of Heidelberg and Mannheim in Germany and at the American University in the United States in 2004. In 2008, Franco submitted her Ph.D. thesis entitled Justiciability of Economic, Social and Cultural Rights in Latin America. In 2002, she was awarded a Master of Law, with the thesis, Human Rights as a Condition for Development Cooperation at the World Bank, from the Max-Planck-Institute for Public International Law at the University of Heidelberg. Ana Mari Surez Franco has written and published much dealing with the right to food. Two of her latest publications are manuals: How to Use the Voluntary Guidelines on the Right to Food to Monitor Public Policies and How to Document Violations of the Right to Adequate Food (both published in 2007 by FIAN international). She was born in Bogot, Colombia. 53

Michel Uiterwaal is a lawyer at Bhler Franken Koppe Wijngaarden, Amsterdam (Netherlands). He has handled many human rights-related cases as counsel or co-counsel, including: representing Nigerian plaintiffs and a Dutch NGO in holding Shell headquarters and Shell Nigeria liable for oil spills in Nigeria, a tort case on behalf of survivors of the Srebrenica massacre, a claim against the Dutch State for failure to protect civilians in the UN Safe Area, and in cases before the European Court of Human Rights. In 2003 and 2004 he was an assistant in the defense team at the Special Court for Sierra Leone. Uiterwaal received his legal education at the University of Amsterdam, and was awarded the degree of Masters of Laws in 2003; his master thesis was entitled, The possibility of civil cases in Dutch courts on transnational human rights violations.

Peter Weiss is currently a Vice President and cooperating attorney of the Center for Constitutional Rights, with which he has been associated for forty

years. He is a practitioner of human rights law and Vice President of FIDH (Federation Internationale des Droits de lHomme). He has been involved in the 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 and former President of IALANA (International Association of Lawyers Against Nuclear Arms). Weiss is a member of the Executive Committee of Americans for Peace Now, which advocates a just peace for both sides in the Middle East. In the past he has been President of the American Committee on Africa and Chairman of the Board of the Institute for Policy Studies in Washington. He lives in New York with his wife Cora.

trade, female work and informal employment. She is also a member of the Clean Clothes Campaign.

Ingeborg Wick has been a research fellow at the SDWIND Institute for Economics and Ecumenism in Siegburg, Germany since 1991. From 1975 to 1990, she was the director of the (West) German Anti-Apartheid Movement. She studied Romance and English Language as well as Political Economics at the universities of Heidelberg and Bonn. Wick is the author of a number of publications on topics including working conditions in the worldwide textile and clothing industry, social standards in world

Michael Windfuhr is a political scientist educated at the University of Heidelberg. Since 2006, he has worked as Human Rights Director of Diakonie, the social services agency of the Protestant Church of Germany. Prior to this, he served as Secretary General of FIAN-International, an international human rights organization that promotes the right to food. After joining FIAN in 1988, Windfuhr coordinated operations in Latin America during a few years. He also represented FIAN at the United Nations after 1992. He became Secretary General of the organization in 2004. Through his work with FIAN, he contributed to setting many of the standards concerning the right to food that have emerged in the last ten years. Windfuhr is also a lecturer at the Institute for Political Science of the University of Heidelberg. He worked as an assistant to Professor Klaus von Beyme from 1996 to 2000. His main areas of interest are human rights policies, international relations theory, international economic policies, trade policies, development policies and international agricultural policies. He has published regularly on economic, social and cultural rights as well as on trade and agricultural policies.

54

ECCHR'S STATEMENT
Violations of human rights, however they occur, must be investigated and victims must have access to legal remedies that allow for compensation and justice. Traditional models of legal redress have largely focused on the State. Yet contrary to the classic conception of human rights violations, especially prevalent in northern states, rights are not only violated by state actors. In fact, non-state actors, in particular those corporate entities of the worlds of finance and the economy can and often do violate civil and political as well as economic, social and cultural human rights. The de facto power of that corporations wield should be mirrored by corresponding human rights obligations, especially for those corporations acting transnationally. Outlined below are the obligations of states and supranational organizations, and the nature of corporations human rights obligations.

their signatory States. In addition, there are no binding international mechanisms to sanction human rights violations that have been caused or supported by corporations. Overall, international law does not correctly reflect the de facto power that transnational corporations wield in international relations, and the serious threat that they can thereby pose to human rights. The lack of the existence of effective remedies, however, does not lessen the human rights obligations of corporations. The International Tribunals of Nuremberg, Yugoslavia and Rwanda have repeatedly stated that human rights obligations can exist despite the fact that enforcement mechanisms do not.

Extent of Corporate Obligations

Three categories of governmental human rights obligations are commonly accepted: (1) The duty to respect, (2) The duty to protect and (3) The duty to fulfill. Transnational corporations undoubtedly have the obligation to respect human rights in the sense that they must avoid violating them. Moreover, because human rights violations always constitute violations of fundamental rights, imposing such an obligation on private companies would not be, contrary to common claim, too onerous. Every day business will not be affected by their adherence. Furthermore, once individuals or corporations gain a certain degree of power towards others due to social and economic circumstances, these corporations and their management personnel have a special responsibility not to violate human rights obligations within their sphere of influence. This applies especially to corporations that have great economic power in countries of the South with unstable social and political conditions. Even though local authorities may be unable to enforce existing legislation for the protection of human rights effectively or even be viola-

The Human Rights Obligations of Corporations

During the last sixty years, international law has experienced a so-called individualization. Not only states but individuals have increasingly gained certain rights and obligations under international law. The starting point of this development was the Nuremberg War Crime Trials and their progeny of 1945-1949. In those proceedings, high-ranking officials of the Nazi regime were found individually responsible under international law for the most serious human rights violations. Big industrialists like Flick and Krupp were similarly found guilty of severe crimes under international law because they had decided to economically collaborate with, and thereby support, the Nazi regime. It is therefore beyond doubt that individual managers and directors of transnational corporations are capable of violating human rights under international criminal law and are, to a certain extent, obliged to respect them. However, most international treaties only bind

55

tors of human rights themselves, corporations are still expected to act within their human rights obligations. In the area of economic, social and cultural human rights there is a duty to fulfill, at the very least in situations where corporations hold a monopoly or a comparable position over resources such as water. Where local authorities are not able to ensure the provision of such basic necessities to their citizens this responsibility to provide falls to the actor exerting effective control over the resource in question; oftentimes being a corporation.

late their duty to protect when they do not offer any, or lack sufficient, legal processes for the filing of complaints against actions of corporations with headquarters in their territory due to extraterritorial violations. It is therefore indispensible that States comply with their extraterritorial obligations to regulate, monitor and sanction corporations endangering or violating human rights. States must facilitate human rights litigation against corporations by improving its legal basis.

Why Litigate against Corporations?

In the last years public discourse has focused on the social responsibility of corporations. Generally there are no objections to a discussion about the issue of to what extent corporations should voluntarily advocate for social and environmental needs of the society they are acting in. However, some participants in this discourse seem to assume that economic interests are easily harmonized with social and ecological interests and human rights. They forget that economic interests on the one hand, and environmental and human rights concerns on the other, each follow their own logic and inevitably collide in certain situations. As actors engaging in the debate around Corporate Social Responsibility (CSR) often come from the corporate perspective, and thereby from the outset prioritize economic interests, in the case of a conflict between economic interests and social and environmental needs, economic interests will usually be given priority.

Which Obligations do States have?

As already described above, States have the duty to respect, the duty to protect, and the duty to fulfill human rights obligations. That is, States are obliged not to violate human rights, to protect individuals from human rights violations by third parties, to provide effective remedies or resolution mechanisms when human rights are violated, and to enhance human rights by providing basic state services. States have the same human rights obligations when they participate in policymaking in supranational organizations such as the World Trade Organization or the International Monetary Fund, and are therefore obliged to take human rights issues into account when acting on a supranational level. European and other national jurisdictions suffer from incomplete legislation and flawed procedures for law enforcement that would allow them to hold corporations accountable for human rights violations committed both within and outside of a countrys territory. These States are not complying with their duty to protect human rights since they neither effectively prevent corporate human rights violations through legislative provisions and administrative monitoring mechanisms, nor punish such violations or provide for other legal remedies. This duty to regulate and monitor applies to extraterritorial behavior of third parties too. States vio-

Human Rights Must in Any Event Be Given Priority Over Economic Interests.
In case of corporate human rights violations of any kind, one cannot, therefore, speak of (voluntary) social responsibility any longer. Human rights violations perpetrated by transnational corporations do not only constitute political scandals that are socially or morally condemnable and provoke public protest, they are also, in fact, se-

56

rious violations of accepted legal norms. In a democratic state that supports the rule of law, each such violation should be investigated by governmental authorities and should be subject to prosecution by its courts. In reality however, corporate human rights violations all too often remain uninvestigated and unsanctioned.

social change. Since international laws as well as European national jurisdictions offer inadequate means to hold corporations accountable for violations of human rights wherever they occur, ECCHR considers it a logical consequence to call for an expansion of legislation in Europe.

The Aim of ECCHR Is to Act on Impunity of Corporate Crimes:

ECCHR works together with cooperating attorneys from various Western European states and maintains close contact with lawyers and organizations from the concerned countries of the South. We aim to minimize the inequality of arms between victims of corporate crimes on the one hand and transnational corporations on the other hand by a professional legal course of action and global cooperation with human rights organizations and lawyers. Doing so, one has to bear in mind, that the victims of corporate abuses experience empowerment through legal proceedings that comprehensively involve them. That is to say, such proceedings can be a tool through which victims persons can liberate themselves and actively and selfconfidently vouch for their legal position. Legal proceedings should be used strategically, supported by concerted public relations campaigns, and accompanied and complemented by political and social movements or initiatives. Only through such an interdisciplinary approach with coordinated and intelligently deployed legal measures for each individual case, the social situation of the persons concerned can be improved, irrespective of the outcome of the legal case.

Conclusion
In light of the disappointing results of the efforts for voluntary self-regulation by corporations, and the often ineffective soft law complaint mechanisms, ECCHR considers the creative and proactive use of formal legal proceedings against corporations an important tool to promote justice for victims of corporate human rights violations and

57

IMPRESSUM
Publisher: European Center for Constitutional and Human Rights (ECCHR) Greifswalder Strae 4 D - 10405 Berlin Tel: +49 (0) 30 40 04 85 90 Fax: +49 (0) 30 40 04 85 92 info@ecchr.eu http://www.ecchr.eu Editors: Denise Bentele, Albert Koncsek, Kamil Majchrzak and Miriam Saage-Maa. Acknowledgement: We would like to thank the contributing speakers and participants of the conference for giving their time and knowledge within their areas of expertise. We would also like to acknowledge Adeline Cazaubiele, Anna von Gall, Elizabeth Grossman, milie Guilleminault, Alex Kamieth, Juliana Martnez, Dustin Miller, Dennis Mitra, Lena Muhs, Ulrike von Mller, Natalya Pak, Mona Patel, Luisel Jesus Pea, Katja Porzucek, Ruben Reike, Julia Schlter, Judith Schneider, Lukas Theune, Erik Vang and Christian Walburg for their cooperation in completing this documentation. Layout: Andreas Schreier http://w3BUERO.de Photos: Nihad Nino Puija http://fotofabrika.de/ The ECCHR Documentation is available in both German and English. The ECCHR is registered as an association under German association law by the Berlin-Charlottenburg Regional Court and has received a tax-privileged purpose of only directly non-profit character.

DONATIONS
The Human Rights work of the ECCHR needs your support. Please help us in the legal fight against grave human rights violations. The ECCHR is a member in the Human Rights Forum [Forum Menschenrechte] and the Coalition against Impunity [Koalition gegen Straflosigkeit]. Donations are tax deductible. Donation Account: 74 877 48 000 Berliner Volksbank Bank Code: 100 900 00 IBAN: DE 54 1009 0000 7487 7480 00 BIC: BEVODEBB