Crossing the Rubicon: Enforcing the international legal responsibility of transnational corporations for ius cogens human rights violations

Abstract: The objective of this thesis is to comprehensively demonstrate the existing extent, and the nature of the Ius Cogens Human Rights Obligations of Transnational Companies and their enforcement in the international law. The existing international human rights law is mainly state-centric as it creates obligations primarily upon States to promote human rights. Apart from that one can outline an affluence of (non-state) actors who in various ways and to a varied extent participate in the international community. It is submitted that one of the most controversial non-state actors is transnational corporation. The top one hundred transnational corporations own nearly two trillion dollars of assets outside their home countries, a quarter of the world's stock of all foreign direct investment (FDI). It is submitted that transnational companies (TNCs) nowadays freely exploit economic, natural and human resources of many states without respecting the basic human rights of their population. Many states are unwilling or unable to influence the behaviour of those companies effectively, or to protect their residents from abuses that may occur. Legal redress can therefore provide effective protection of the weak. It is often argued that national systems should have a primary role in enforcing the accountability of non-state actors. However, victims normally face numerous obstacles in enforcing the accountability of TNCs in the national courts. Hence, it is submitted that those obstacles could be addressed by recourse to certain international procedures. From that it follows that there are four questions of central importance. First, do transnational corporations have to comply with human rights obligations? Secondly, if a corporation bears a duty to respect human rights norms, can a TNC then incur international legal responsibility for violations of international human rights law, especially norms of an ius cogens nature? Thirdly, since international legal obligations of transnational companies would be of little importance in the absence of effective measures to enforce them, what should be the nature of an international mechanism that could effectively deal with ius cogens human rights violations by TNCs (extension of existing jurisdiction of international tribunals or establishment of new international forums). And fourthly, should TNCs be treated as participants in international law, and should they carry any special form of responsibility.