How might a business and human rights treaty incorporate criminal law?

Discussions regarding a potential business and human rights treaty have been moving from the feasibility of such an undertaking to considering what the content of such a treaty might be. In this regard, I was pleased to have participated in a roundtable discussion last year on the substance of a business and human rights treaty, held at the International Commission of Jurists in Geneva. The contributions from that event are to appear in an edited collection entitled Building a Treaty on Business and Human Rights: Context and Contours, edited by Surya Deva and David Bilchitz and to be published by Cambridge University Press next year.

In my contribution, I examine the potential role that criminal law might play in a business and human rights treaty. The chapter takes as its point of departure the criminal law components of existing human rights treaties, rather than international or national criminal law, even though these are of relevance in this context. I explore how international human rights law has incorporated criminal law into existing instruments, before turning to consider the acts that give rise to criminal liability and what might be understood by ‘gross human rights violations’ in international law.

The chapter examines criminal liability in some detail, and considers how a treaty might address both the modes of liability for individual employees, officers or directors of a company, and that of the company itself as a legal person, through the doctrine of corporate criminal liability. The chapter draws on other areas of international law of relevance to this issue, including treaties relating to corruption, terrorism and organised crime. While national legal systems provide numerous examples of the application of criminal law to companies or associated individuals, this chapter consciously focuses on existing international law, particularly human rights law, in order to determine the extent of international agreement regarding the modalities of the application of criminal law to corporate activities that violate human rights. In light of this approach, the concluding section includes a suggested article on criminal liability for legal persons for inclusion in the potential business and human rights treaty. Here is the proposed article:

Subject to the provisions of its national law, each State Party shall take measures, where appropriate, to establish the liability of legal persons for serious violations of human rights including slavery, trafficking in persons, forced labour, torture, enforced disappearances, sexual exploitation of children and for international crimes, namely genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949 or other war crimes as defined by international agreements to which it is a Party.

Subject to the legal principles of the State Party, such liability of legal persons may be criminal, civil or administrative.

Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offences.

Each State Party shall, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

The full paper is now available on SSRN and in it I explain why the proposed article does not aim to provide detailed provisions concerning corporate criminal liability, such as in relation to the challenging issue of attribution. While these matters are addressed in greater detail in many national laws and a number of international treaties, international human rights law to date has taken a more cautious approach which defers to national legal traditions. The drafters of a business and human rights treaty may choose to follow this more settled approach, while still breaking new ground on the issue of corporate accountability.

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