[IntLawProfessors] TNC's international obligations

[Simon Chesterman]

Dear All,

For some background on this and an argument that we focus too much on human rights and not enough on IHL when looking at TNCs, this paper might be of interest. It's published in final form as "Lawyers, Guns, and Money: The Governance of Business Activities in Conflict Zones" in the Chicago Journal of International Law, vol 11 (2011), pp 321-341, but you can see the early version on SSRN here:
http://ssrn.com/abstract=1594870

This paper argues that the norms governing businesses in conflict zones are both understudied and undervalued. Understudied because the focus is generally on human rights of universal application, rather than the narrower regime of international humanitarian law (IHL). Undervalued because IHL may provide a more certain foundation for real norms that can be applied to businesses and the individuals that control them.

The first part will briefly describe the normative regime that is set up by human rights and IHL. Part two looks at the specific situation of conflict zones and efforts to regulate some of the newer entities on the scene, in particular private military and security companies. Part three then sketches out a regime that focuses not on toothless regulation but on a model of governance that combines limited sanctions with wider structuring of incentives.

Best wishes,

Simon

Professor Simon CHESTERMAN:: Vice Dean (Graduate Studies) :: Faculty of Law :: National University of Singapore :: 469G Bukit Timah Road, Singapore 259776 :: +65-651 67342 (DID) :: chesterman at nus.edu.sg<mailto:chesterman at nus.edu.sg> (E) :: law.nus.edu.sg<http://law.nus.edu.sg/> (W) :: Company Registration No: 200604346E

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From: intlawprofessors-bounces at mailman.anu.edu.au [mailto:intlawprofessors-bounces at mailman.anu.edu.au] On Behalf Of Caroline Foster
Sent: Friday, 13 May, 2011 5:05 AM
To: Don Anton; intlawprofessors at mailman.anu.edu.au
Subject: Re: [IntLawProfessors] TNC's international obligations

Dear Don/colleagues,

It seems to me that the starting point is that where the TNCs are not party to an instrument (the Charter) purporting to subject them to legal obligations it is very hard at the moment to argue that they are bound directly -  but if there is an obligation on States to create a domestic legal framework subjecting the TNCs to the rules in a treaty and States comply with this oblgiation then the TNCs will become bound by the content of the treaty as a matter of national law.

However the Charter provision raises some very interesting issues.  Is there any way that a State's consent for private entities, of certain classes or generally, to be bound can in any degree bind them?  Or any way in which the law might develop towards this?  To what extent does the ITLOS opinion indicate that this is a direction in which we will see more movement, or point the way?
--

Dr. Caroline E. Foster
BA LLB (Cantuar) LLM PHD (Cantab)
Senior Lecturer,  Faculty of Law

Room 2.16, Bldg 803
9 Eden Crescent
University of Auckland
Private Bag 92019
New Zealand

From: Don Anton <AntonD at law.anu.edu.au<mailto:AntonD at law.anu.edu.au>>
Date: Fri, 13 May 2011 06:55:24 +1000
To: <intlawprofessors at mailman.anu.edu.au<mailto:intlawprofessors at mailman.anu.edu.au>>
Subject: [IntLawProfessors] TNC's international obligations

Dear Colleagues,

This post picks up on part of the exchange that Caroline Foster's post on ITLOS Case No. 17 back in early March prompted on international obligations of private parties.

In particular, I'd like to learn thoughts you may have about the operation of Art. 36 (former Art. 35 until the Protocol of Washington entered into force) of the Charter of the Organization of American States. I am interested to see whether you think this provision subjects the activities and omissions of TNCs ("shall be subject") to the provisions of all "international treaties and agreements" in particular OAS countries in which they operate.  In other words, do TNCs not only need to be mindful of municipal legislation, but also all treaties which are binding (regardless of "transformation" that may be constitutionally required).

 Art. 36 provides:
Transnational enterprises and foreign private investment shall be subject to the legislation of the host countries and to the jurisdiction of their competent courts and to the international treaties and agreements to which said countries are parties, and should conform to the development policies of the recipient countries.

Kind regards,
DA
Intlawprofessors is moderated by Don Anton and hosted by the Australian National University College of Law
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