国际经济法主要主体

第三节　国际经济法主要主体

Section 3　Subjects of International Economic Law

【The Fundamental】

A. The Widening of the Notion of Subjects of International Law

The doctrine dominant in the nineteenth century considered international law as the law dealing exclusively with the relations between states. Of course, in the last resort, all law is made to regulate the behavior of individual human beings. Yet, under this doctrine, an individual was no bearer of rights or duties derived directly from international law. Where rules of international law created a right in favor of an individual, he could obtain or defend his right only if his home State espoused the corresponding claim as its own. Similarly, where international law intended to impose duties on individuals, the only way to bring this about was to oblige the State concerned to insert a provision to this effect in to their domestic law, for example, a provision against the counterfeiting of foreign currency. If an individual broke such a rule of domestic law, he was punished for having violated the domestic rule corresponding to the international law rule concerned. Should the State concerned fail to enact such a rule or should its courts fail to enforce it, such failure, on the international level wouldlead to a State to state claim against the defaulting State.

In peacetime this system worked reasonably well. However, it was inadequate in time of war. International law, for humanitarian reasons, rightly wants to protect individuals against war crimes, even if the crimes concerned are not only tolerated but even ordered by the home State of the perpetrator. However, while State to State pressure, in peacetime, may cause a State to respect its obligations, even after it has first failed to do so, in war, pressure between two States fighting each other will be so great that any increase of such pressure, for example, by way of reprisals, would soon degenerate into sheer inhumanity.

The most reliable way to ensure respect for international humanitarian law in time of war consists therefore in holding a war criminal personally responsible for his acts, and in authorizing tribunals in the opponent state to enforce this responsibility. Should the war criminal have obeyed orders of his superiors under his domestic law, this fact may be considered in mitigation of penalties but not as a defense to the charge. The individual thus becomes the direct addressee of the rules of warfare. He thus becomes a passive subject of international law, possibly leaving him only the choice of being either executed by his own side for having disobeyed an order to violate international law or by the enemy for having obeyed an order criminal under international law. In spite of such misgivings, pragmatic reasons have led to a general acceptance of this practice.

Individuals, likewise, may derive directly a right from a treaty. Where the terms of a treaty grant to an individual a right, for example, of compensation against a State to be enforced before this State’s tribunals, such a rule does not make this individual a subject of international law. The individual, however, becomes an active subject of international law, where the treaty concerned does authorize him to bring his claim, without any intercession by his home State, directly before international instances, as provided, for example, in the Agreement on Minority Rights in Upper Silesia, in several conventions for the Protection of Human Rights and-possibly-in the convention on the settlement of Investment Disputes between State and Nationals of other States (the ICSID^[28]Convention).

If international law thus recognizes an “individual” as a subject of international law for certain purposes, this recognition not only refers to individual human beings but also to juridical persons, that is, to entities endowed with legal personality under national orinternational law. Just like in domestic constitutional law, corporations may obtain protection of their human rights also before the appropriate international bodies. Article 1 of the European Convention on Human rights^[29]protects “persons” without distinguishing between physical and juridical persons. Thus, the European Court of Human Rights did protect, for example, the right of Times Newspaper Ltd to freedom of expression. As far as protection of property rights is concerned such a right is guaranteed to juridical persons expressis verbis in Article 1 of the First Additional Protocol to the European Convention on Human Rights.

From the angle of international economic law, the most important of the treaties recognizing “individuals” as subjects of international law is the ICSID Convention, which, as most large-size investments are made by corporate investors, in practice is concerned almost exclusively with the protection of juridical persons.

However, there is some dispute as to whether access to ICSID arbitration does indeed convey to an individual the status of an active subject of international law. If one looks only at the main function of an ICSID award, the dispute settled thereby might just as effectively have been settled by an arbitral tribunal established under the auspices of the International Chamber of Commerce (ICC)^[30]. Yet nobody would claim that the parties participating in such a commercial arbitration established under the auspices of the ICC, a non-governmental organization, thereby acquire the status of subjects of international law. Herndl, commenting on the ICSID draft convention as the representative of Austria, stated that the ICSID awards would be “analogous” to awards in commercial arbitral proceedings. Some authors therefore reject the idea that litigation before an ICSID tribunal could be linked to public international law, although one of the parties would always be a State. They agree that the subject-matter of a dispute before an ICSID as well as before an ICC Tribunal may not always be purely commercial. In many cases, such a dispute will involve an administrative act of the State. Yet, the nature of such acts does not establish a public international law relationship between the parties, not does it exclude them from the jurisdiction of arbitral tribunals established underauspices of the ICC.

Other authors point to further facts which justify considering access to ICSID tribunals as an access to a public international law forum, with the corollary of bestowing on the private parties before such tribunals the quality of active subjects of international law. ICSID tribunals owe their existence to a treaty, access to them is possible without prior exhaustion of local remedies-unless a State party to the Treaty specifically excludes the applicability of Article 26 of the Convention; a State may not exercise its right of diplomatic protection in respect of a dispute which one of its nationals has consented to submit or has submitted to ICSID arbitration. The awards rendered by an ICSID tribunal cannot be subjected to any appeal to national tribunals and can only be annulled by an ICSID ad hoc committee. These authors, therefore, consider ICSID tribunals as international tribunals in the sense mentioned. In their view, the private party by operation of the ICSID Convention acquires the capacity to plead before this international tribunal as a subject of international law.

Still other authors try to steer a middle-course, speaking of semi-international or quasi-international arbitrations.

Be that as it may, the other instances mentioned above, by themselves, justify us in considering individuals, that is, juridical as well as physical persons, as active subjects of international law-albeit only within the framework of the treaties concerned. But such a grant made by a treaty may be revoked by another treaty between the same parties. The persons affected by such a revocation will no longer be able to invoke the protection of the international forum established by the earlier treaty.

Thus the minorities in Upper Silesia, enjoying such rights under the German-Polish treaty on Upper Silesia of 15 May 1922 lost these rights when the treaty lapsed in 1937. The tribunal was to wind-up pending cases. Pursuant to a German-Polish Agreement of 14 March 1938, the Tribunal ended its work before all pending cases were wound-up. The persons concerned were left without a remedy.

Thus, whatever active personality individuals may possess under international law, such personality is derived from a treaty, is limited to the powers granted there-in and is moreover of a precarious nature.

B. The Actors of International Economic Law

1. States and Entities Created by a State.

While the widening of the notion of subjects of international law enables physical and juridical persons to become subjects of international economic law, the several sovereignStates remain the main actors, in this as in other spheres of international law. Yet, there is a certain difference in respect of the entities acting on behalf of the State. In the nineteenth century nearly all international activities of the state were concentrated in its Ministry of Foreign Affaires^[31]. At least outwardly, this Ministry monopolized relations with other States, even where on the domestic level it had to obtain the consent or even to execute the orders of other ministries, say, of defense or of finance. As the important of international organizations grew, these organizations succeeded in establishing direct contacts with the ministries, which, in the member States, work in the same field as the organization concerned.

In international economic law, acts on behalf of a State will not only be taken by its Foreign Ministry or Ministry of Finance^[32], but also by other entities endowed with the right to act a jure imperii, for example, its central bank of issue or a rationing authority. States may even act in the sphere of international law in their capacity as owners of State enterprises. Thus Yugoslavia waived international law claims against Austria concerning damages for violation of Yugoslavia’s riparian rights over the river Drau (Drava) for as long as a contract between the Austria State Enterprise Verbundgesellschaft and the Yugoslav State Enterprise ELES, advantageous to the latter, remained in force.

2. Multinational Enterprises.

States are by no means the only actors in international economic law. Wealth means power, but this may manifest itself only indirectly in international as in national law. In the sixteenth century much economic power lay in the hands of individual bankers. The Medici family used its wealth as a stepping-stone towards becoming the sovereign rulers of Florence. Their German counterparts, especially the Fugger and Welser families in Augsburg, wielded their power only behind the scenes, for example by financing the election of Charles V as emperor. The Welsers obtained in return large concessions in Venezuela, without however, acquiring sovereign status. Thus, when Archduke Ferdinand, the son of Emperor Ferdinand I and nephew of Charles V married Philippine Welser, the children of this “mesalliance” were excluded from the line f succession to the throne.

Today, economic power is also not necessarily to be equated with political power. From a formalistic point of view, even the weakest State disposes of legislative and police powers, which even the strongest multinational enterprises does not possess as its own. However, ifsuch an enterprise threatens to unleash its economic power against an economically weak State, such State may feel compelled not to exercise its powers in a way resented by the enterprise. Moreover, the enterprise may use part of its wealth to gain influence on the decision-makers in such a State.

From a factual point of view the world-wide economic power and influence of multinational enterprises is often said to be so large that they allegedly keep “sovereignty at bay”-as suggested by the title of a book by R. Vernon. Their power appeared so formidable to Judge Padillo Nervo that he claimed:

It is not the shareholders in those huge corporations, who are in need of diplomatic protection; it is rather the poorer or weaker States, where the investments take place, who need to be protected against encroachment by powerful financial groups.

What appears to contribute, to these exaggerated apprehensions is the sheer size of multinational enterprises, some of whose budgets are said to be larger than those of many developing countries.

Strangely enough, dominant doctrine prefers to define multinational enterprises without any reference to their size. While everybody agrees that the influence which multinational enterprises excise, for better or for worse, on international economic relations makes itself only if the enterprises concerned are of a certain size, nevertheless a “quantitative approach” to a definition has been abandoned. It appears to have been too difficult to agree on quantitative criteria which could cover all types of multinational enterprises.

An “operational” definition would define a multinational enterprise as entity which, from its headquarters in its home State, exercises its activities there as well as in one or several further States (host States). However, any such host States, in accordance with its conflict if law rules, will be able to treat the enterprises’ activities in this State as those of a foreign enterprise. Thus, no problem specific to multinational enterprises will arise in such a case-even if the persons are controlling the enterprises are of different nationalities. This criterion of the diverse nationality of the controlling shareholders of the corporation has also been proposed as the exclusive basis for the definition of a multinational enterprise. However, the nationality of these persons might be important only in exceptional circumstances which, under present-day international law, would themselves justify lifting the corporate veil.

Dominant doctrine favors a “structural” definition, underlining the specificity of the situation arising in a host State when a company established under this State’s domestic law cannot act on its own initiative and judgment, but has to obey directives emanating from itsforeign mother firm-directives which may be contrary to the interests or even to the law of the host State. Following this functional approach, the United Nations Commission on International Trade Law (UNCITRAL)^[33]-as well as Goldman in his report to the Institut de Droit International^[34]-defines a multinational enterprise as follows:

The term ‘multinational enterprise’ is used in a broad sense and includes enterprises which through branches, subsidiaries or other establishments engage in substantial commercial or other economic activities in States (‘host States’) other than in State in which decision-making and/or control is centered (the ‘home State’).

This definition may be criticized as being very broad indeed. If applied literally, it would cover many enterprises in a broader area which, in everyday language, nobody would designate as multinational enterprises, and where the specific problems mentioned above will hardly ever arise. However, as long as, for the reasons set out below, rules on multinational enterprises do not contain any firm obligations enforceable by sanctions, so loose a definition perhaps can be accepted.

In the United States, this definition has come under attack from another angle. The majority of the States in the United Nations General Assembly is apprehensive of multinational enterprises whose home States belong to the “Western and Others” Group. The above definition, however, covers all multinational enterprises including those established by the Socialist States, by Third World States themselves or by their nationals (e.g., enterprises whose establishment is envisaged by the Andean Pact).

Siqueyros wants to reserve the label “multinational enterprises” to State-owned or State-controlled enterprises set up on a regional level in Third World States. Rather optimistically, he believes that the policies pursued by such enterprises may be more compatible with the interest of their host States than those of multinational enterprises whose home State is a “western and others” state. The former are said to be even the very counterpart of the latter. United Nations practice took up the suggestion made by Siqueyros and changed the name of the object of its activities in this field from “multinational corporations” to “transnational corporations”.

The Soviet Union, too, protested when China put the joint organization established by Socialist States in the foreign trade field on the same level with transnational corporations from “western and others” States. The Soviet Union claimed that its entities had been set up in full conformity with the legal systems of the countries concerned and that their activities were highly appreciated by all, including the developing countries.

The “Western and Others” group resents attempts to limit United Nations rulemaking efforts concerning multinational enterprises to those in private ownership as an unreasonable discrimination. Moreover, such a definition would neglect the fact that “western and Others”States, too, had established State-owned multinational enterprises, e.g., ENI (Italy) or VOEST(Austria), now mostly privatized. Any definition including them, while excluding enterprises owned by Socialist and Third World State, would be even more discriminatory.

These objections are well founded. Whatever may be said for or against multinational enterprises may be said of them all, whether they are privately or State-owned and irrespective or their geographical or ideological roots. Yet, the divergent views on the inclusion of State-owned multinational enterprises was one of the issues which blocked progress on the United Nations Draft Code of Conduct of Transnational Corporations^[35]adopted by consensus a report to the Economic and Social Council (ECOSOC) to the effect that the Commission is aware of the growing interdependence of issues and of the role of enterprises engaged in transnational operations, regardless of form or nature of ownership and country of origin, with due regard to their relative weight and influence in the world economy.

The debates pro and contra multinational enterprises are held in the United Nations within the context of the North-south conflict, although two-thirds of the activities of multi-national enterprises are exercised between States belonging to the “Western and Others” group.

In these debates, there is usually agreement that these enterprises exercise a positive effect on the host States, in so far as they import capital and know-how which often may not be found locally. On a somewhat higher level, they may be praised for trying to overcome by their global policies the narrow limits of the individual nation States. But at this point a critique already begins. The managers of the mother company are said to be unfamiliar with the conditions in the host countries. They are said to plan their policies regardless of their impact on the local market, especially its labor market, to use the often world-wide network of their enterprise to obtain speculative gains on currency transactions, to escape the effects of taxlaws by shifting profits to tax-haven countries by means of fictional transfer prices between the mother and daughter firms and to counteract the effect of strikes by transferring orders of personnel to a sister-firm in another country. In addition to these main grievances, transnational corporations have also been accused of damaging the economic and social structures of the host countries in many other ways. Some bribery scandals have led to accusations of corrupt practices against these enterprises in general. Last, but not least, there is the accusation that such corporations have influenced political events in their host States.

Some of these accusations are contradictory. Thus the International Telephone and Telegraph Corporation (ITT)^[36]has been accused of having interfered Chilean domestic politics by working against subsidiary of ITT. On the other hand, ITT has been accused on the ground that, as long as the United States were neutral in the Second World War, its German subsidiary supported the German war effort. This latter accusation involves blaming ITT for not having interfered with Nazi Germany’s admittedly criminal policies. ITT’s critics blissfully forget to tell us what the managers of ITT’s German’s subsidiary should have done in order to spare ITT their accusations meted out with such hindsight wisdom. Managers, after all, rarely feel vocation to become martyrs-even for a righteous cause.

As far as the other accusations against multinational enterprises are concerned, public ownership did not prevent the city of Vienna’s Bauring from becoming engaged in a bribery scandal in Saudi Arabia. Likewise the managers of a mother firm, regardless whether the firm is in public or private ownership or whether the home state is a developed or a developing State, will deem the shifting of orders or personnel so as to counteract the effect of a strike so treasonable that they will have recourse to this method to satisfy their customers, wherever this technically possible. The timing of money transfers which a host state may resent as speculation against its currency may appear to the managers as sound business practice-again without distinction between public or private ownership of the enterprise concerned. We thus concur with Mahali’s finding that state-owned multinational enterprises, including those owned by Socialist or Third World state, will follow more or less the same policies as those followed by privately owned multinational enterprises. Thus, there appears no reason for treating one group differently from the other.

In spite of all the accusations make against multinational enterprises, even developing countries as host countries recognize that multinational enterprises can important agents ofdevelopment. The home countries of multinational enterprises, on the other hand, do not oppose the claim that the activities of multinational enterprises should be controlled in order to prevent possible or real abuse of the powers of such enterprises. However, the very fact of the operation of these enterprises in more than one state makes it difficult for national authorities, whether of the home state or of the host states, to control these enterprises fully. In order to be satisfactory, such control requires information to be obtained from and legal effects to be produced outside of the country concerned. But public as well as private international law allow only very sparingly any extra-territorial effects to measures taken by another state.

The scene, therefore, appears to be set for action to be taken within the framework of international organization. In fact, efforts to regulate the behavior of multinational enterprises are not limited to ECOSOC’s Commission on transnational corporations. While work on its draft code of conduct has been held up, inter alia, on account of the member states’ inability to agree on the inclusion of state-owned multinational enterprises, the International Labor Organization (ILO)^[37]in 1977 has adopted a Tripartite Declaration in Principles concerning Multinational Enterprises and Social Policy^[38], dealing mainly with problems of trade-union activities, employment policy, training, working conditions and mutual consultations between management and employees. In 1981, the WHO adopted an International Code of Marketing of Breast-milk Substitutes, which regulates marketing practices of multinational enterprises.

Non-governmental organizations may also play a role in controlling the activities of multinational enterprises. International trade unions, inter alia, assume this task. They are confronted with the problem that a national trade union, for example, in case of the participation of the several national subsidiaries in a threatened lay-off planned for the multinational enterprises as a whole, will tend to side with its national subsidiary to the detriment of the subsidiaries in other countries. Worker co-determination is no panacea. The laws adopted in this matter by the several countries where the enterprises operate may vary considerably, as may the attitudes of national trade unions towards worker co-determination. Moreover, even if an efficient worker co-determination does exist at the seat of the mother firm, its worker representatives may be just as unfamiliar with the real needs of distant subsidiaries as the representatives of management. In spite of these handicaps, however, sometrade-union action in this field has been crowned by success.

Any international regulation of problems of multinational enterprises can be successful only if it applies to all the states where such an enterprise exercises its activities. Regulation on a worldwide scale therefore will have to be acceptable to all three groups of states represented in the United Nations Organization and the ILO. In view of the deep divergences of opinion between these groups as to the scope and intensity of control, any formulation of rules on such enterprises will only be acceptable as soft law. Here, as well as in the draft code of conduct on the transfer of technology, the Third World originally had proposed to make its rules mandatory, but has had to give up this demand for the reason stated above. As a rear guard action, the Third World insists that in all matters relating to the code, states shall fulfill in good faith their international obligations including those required by generally recognized international legal rules and principles.

According to them, these last words refer to the very issue (e.g., rules on compensation) which the “Western and others” group has found unacceptable as part of the Code itself. States from this group can hardly be expected to agree to accept these same rules as binding general principles, quite apart from the fact that their opposition to these alleged principles shows that these principles are not “universally” recognized.

The OECD’s^[39]guidelines for multinational enterprises did not have to overcome differences of opinion of similar gravity, as the ORCD^[40]is composed only of states of the“Western and others” group. Yet, these guidelines are also merely soft law. This is due partly to the fact that the OECD’s member states are committed to a liberal market economy. The OECD had ideological objections against regulation by strict rules. Moreover, the OECD may have hoped that its guidelines would be applied also by firms, based in an OECD member country, but operating in States outside the OECD group. This aim could only be achieved if the mother firms concerned voluntarily accepted a commitment to abide by these guidelines. However, even concerning relations between members of the OECD, the aims of these guidelines could realized much more easily if, while fixing a general course, they left each enterprise with some leeway to adapt them to the requirements of its specific situation.

The OECD guidelines are to be distinguished from the United Nations and ILO efforts inthat they deal with all aspects of multinational enterprises, bestowing “soft tights” and imposing “soft obligations” on such enterprises as well as on host and home states. Presumably, out of respect for the sovereignty of their member States, the United Nations and the ILO impose duties only on enterprises.

Any control, in order to be effective, needs some “following-up procedure”, including a machinery to settle disputes on the interpretation of the control rules concerned. The OECD, so as not to jeopardize the voluntary character of its guidelines, could not very well declare the follow-up procedure to be an adjudication. Yet, in practice, it comes pretty close to it. The United Nations code of conduct, too, will contain some sort of follow-up procedure. Thus, the fact of having access to the international dispute-settlement bodies set up in connection with the OECD guidelines as well as in the United Nations Code of Conduct will bestow on multinational enterprises the quality of subjects of international law.

In concluding that multinational enterprises thus are subjects of international law let us, however, stress once more that, in spite of their economic importance in the field of international relations, their international law status remains precarious, as the states having adopted the OECD guidelines or adopting the United Nations Code of Conduct may, by a subsequent act, revoke at any time the tights granted therein.

(Abridged from Chapter 1 of the International Economic Law written by Seidl-Hohenveldern, Ignaz, and published by Kluwer Law International in 1999.)

[The Reflections]

1. How do you understand the widening of the notion of subjects of international Law?

2. What does the word “individual” refer to as a subject of international law?

3. What compose the actors of International Economic Law?

4. Is there any difference between “multinational corporations” and “transnational corporations”?

【The In-depth】

The Obligations of Transnational Corporations in the Global Context

We live in a world of complex global economic, political, and social processes thatinfluence our lives enormously. It is difficult to trace the causes of these developments and determine who is obliged to remedy the massive problems we face today like global poverty, slavery and exploitation, and the destruction of our environment. Moral philosophy and political theory are struggling for an adequate conception of our obligations in global and regional contexts. The prevailing commonsense morality says that the primary moral actor is the individual and the obligations of collectives are often more or less ignored. From this perspective, the individual is overburdened with responsibility for mitigating large-scale problems effectively. Things look quite different, however, when we turn to political theory and look at the political legitimation of rules in international relations. While the individual is seen as the main and ideal actor in processes of democratic will formation and rule setting within the nation-state, governance beyond the nation-state has other demands. In keeping with current notions of good international governance, the citizen has given way to collectives as the primary political actor. Private collectives in particular have gained increasing prominence in international negotiations, public deliberation, and rule-setting.

We therefore face the somewhat awkward situation that in moral frameworks, the obligations attributed to the individual have become quite extensive, whereas in political frameworks, the legitimacy of a citizen’s participation in global agreements has been curtailed. Both frameworks have their pitfalls. Our understanding of moral obligations to address large-scale problems is as inadequate as the prevailing ideas concerning legitimate governance in international relations. In this paper, I will discuss these issues, focusing on the obligations of transnational corporations in international relations.

Before I turn to the question of legitimate international governance, I should indicate some developments in the current international rule system that supports my suggestions. The collective actor approach is not merely idealistic but has its roots in actual phenomena. These developments in transnational and European governance as well as in international law can be interpreted as the institutional context that, by creating pressure for justification and control, promotes the implementation of collective actors’ obligations. One can distinguish at least four trends in this direction that could be expanded and further developed:

(a) Liability. In international labor law we find a perspective that focuses on the effects of economic exchange processes when it comes to civil liability. A corporation, for example, can be held liable for damages caused “intentionally” or through the negligence of its employees. Domestic courts have a history of ordering corporations to pay for damages that occur as a result of their complicity in abuses perpetrated by governments. Since World War II, forexample, survivors have successfully sued companies that relied on slave labor or benefited from property seized from Jews during the Nazi Holocaust. A wide range of cases is filed under the so called Alien Tort Statute (ATS) in the United States, which was adopted as part of the First Judiciary Act in 1789, and provides that district courts have jurisdiction over any civil action for a tort committed in violation of US law anywhere in the world. The ATS probably aimed to assure that pirates captured in the US could be sued by their foreign victims to recover damages, and that foreign diplomats assaulted in the United States could similarly use the federal courts. A recent and very prominent case was brought against one of the world’s largest pharmaceutical companies, Pfizer, for injuries suffered by Nigerian citizens hurt by an experimental antibiotic administered without their informed consent.

(b) Complicity. ATS actions have also been filed in US federal courts against some of the largest multinationals for their alleged complicity in human rights violations around the world. In Doe vs. Unocal, a group of Burmese villagers sued the US corporation Unocal, and Total, S.A., a French company, for their complicity in slavery-like practices and other human rights violations in a joint venture pipeline project with the government in Burma. It is interesting that the Unocal I case did not rest liability on the assertion that the firm maintained business relationships with a state that violates human rights, nor was it claimed that the corporation was liable for the actions of the state that was the joint venture partner. Rather, the court mentioned circumstances under which a private actor nonetheless can be held responsible: most importantly, when the corporation commits one or some of the narrow class of wrongs identified by treaty and custom.

(c) Policy-making. While corporations have historically had to lobby for influence in legislative processes, they have now become an integral part of policy-making, bringing with them much needed expertise and practical knowledge. This can be observed within the European Union. A main channel for firms had been to lobby at the national level to effectively influence the consensus in the Council of Ministers, but the European Commission has introduced a reverse process. It now seeks to win over firms in order to strengthen the EC’s position vis-à-vis third countries and EU member states. Corporations are now intensively involved in decisions on trade and trade policy that affects human rights standards.

(d) Self-Regulation. We are currently witnessing a range of market-based initiatives where firms compete for sales and capital through making a public commitment to human rights. Precursors of these measures are the so-called Sullivan Principles, first articulated in 1977, which amounted to a voluntary code of conduct for companies doing business in SouthAfrica under the apartheid regime. Despite their uncertain impact in South Africa, the Sullivan Principles have served as a model for similar activities such as social accountability auditing and verification, unilateral Codes of Conduct, and “human rights-sensitive” product lines and brands. Starbucks offers “fair trade coffee” and the World Diamonds Council has developed the “Kimberley Process,” which is a protocol for assuring that profits from the sale of gems do not support governments or paramilitary groups that violate human rights. One prominent example of a pact between private actors (TNCs) and a public actor, (in this case the United Nations) is the Global Compact, brought to life by Kofi Annan in January 1999. Along with the UN High Commission for Human Rights, the International Labor Organization (ILO), and representatives of the UN Environmental Program, about 50 corporations take part, among them Nike, Shell, BP, Amoco and Rio Tinto. The agreement is that the corporations must go public on the Global Compact Internet site by describing their progress in implementing human rights, labor standards and environmental protection. In turn they are allowed to use a UN logo for their advertising.

I will discuss the last two aspects in more detail as they are most relevant for international governance. A crucial aspect concerning self-regulation is the motivation of corporations. A recent study on this topic identify a quite selfish reason: the codes are an answer to the risks associated with civil action and consumer boycotts. Economic rationality is not being simply replaced by moral norms or a practical discourse, nor are corporations expected to become agents motivated primarily by morality. Rather, a normatively colored context creates a pressure that becomes a variable in the rational calculation. One way to maintain the pressure is to measure corporations by their promises and publicly disclose if they fail to comply, for they cannot renege on their promises without losing credibility. They agree on moral codes at first only for tactical reasons but then “talk themselves into moral obligations” and become entangled in their own moral standards. It is the distrust that many NGOs have of the strength and genuineness of corporate morality and self-regulation that maintains public awareness and sustains the pressure on corporations.

(e) The problem of legitimate governance. The picture that emerges is that despite the fragmentary and seemingly weak regulatory structure, there is real potential for the slow crystallization of new comprehensive international human rights norms that specifically bind transnational corporations and other business entities. Regimes of “corporate responsibility”have emerged on a global level but are to a major extent also the product of regional initiatives, especially of the European Union. Various attempts are under way to expand the restrictedlegal status of corporations. One radical example is that recently, the United Nations Sub-Commission for the Promotion and Protection of Human Rights approved ‘Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights,’ which can be said to be the first comprehensive international human rights norms that specifically address transnational corporations and other business entities. They lay out the responsibilities of companies to respect, secure, and promote the fulfillment of human rights with a special focus on consumers’ and workers’ rights, environmental protection, and national sovereignty. One result of the Commission’s meetings was to define TNCs as fullfledged legal persons. This is analogous to the status of natural persons in that these entities then have both rights and obligations. This would be a landmark in Economic Law. But from a democratic theory perspective, it has been questioned whether the expansion of status for TNCs should go that far.

If we accept that these new modes of so-called soft governance have a wide social reach, we have to examine their democratic legitimation. We can currently observe a development that counteracts the previously mentioned four assumptions of commonsense morality. In governance theory we have the widespread presupposition that the individual is no longer the primary political actor internationally but, if at all, one among many collective actors such as NGOs, transnational governmental organizations and transnational corporations. While a commonsense morality places a great deal of obligations on the individual, a commonsense governance theory favors the collective actor as the political agent at the international level. What is the problem with this? We have said that the collective actor has enormous capacities to contribute to creating a tight network of binding rules and controls that would help preserve respect for human rights. Does a right to political participation follow from obligations to respect human rights?

First, if international regulations are decided by private (collective) actors who make decisions according to economic rationality, and not by democratic representatives that voice the interests of their constituents, then a basic democratic principle will be turned upside down: the constitutional and law-giving power of the people to which all other powers, persons, and associations should be subject, will no longer be supreme and we face the danger that private self-regulation will become an instrument for further self-empowerment of the already powerful. This will strengthen private soft law and will lead to a pluralization of labour standards as corporations create their own normative rule systems. ILO normsetting, one should keep in mind, is obliged to respect universal norms whereas corporations are not.

Second, corporations often learn to how play this game as well. Work conditions have improved in some places in the world, but one cannot overlook the fact that self-imposed restrictions very often have the character of mere “human rights rhetoric”. Nike, for example, a prominent member of the “Global Compact”, was sued by an American labor law activist, Mark Kasky, for false or misleading statements in its advertisements. Nike had assumed that work conditions in their subcontracting firms had improved-an assumption Kasky said was untrue. In September 2003, one month after the suit was filed, Nike, which claimed it was engaged in fully protected free speech, agreed to an out-of-court settlement and paid 1.5 million dollars to a fair trade organization.

Private and private-public self-regulation might be the best we can do now to realize human rights and get some social control of transnational companies; it might be one out of a bundle of strategies that can help create a normative context that sustains a “pressure for justification” on corporations. At this point the role of the state comes into play and with it the question of duty allocation between corporations and the state. The state as the representative of its citizens should continue to bear the lion’s share of the burden of creating an institutional environment that facilitates implementation of human rights duties. It is only through the participation of those affected by human rights violations that we can arrive at legitimate international rules that bind collective actors. Through this external pressure they have to become much more serious participants in the process of realizing human rights in their specific fields of competence.

(Adapted from Kreide, Regina, The Obligations of Transnational Corporations in the Global Context.

Ethics and Economics, Vol. 4, No. 2, 2007.)

[The Terms]

1. Nazi Holocaust: 纳粹大屠杀

2. Alien Tort Statute: 美国《外国人侵权法》

3. Sullivan Principles: 苏利文原则

4. World Diamonds Council: 世界钻石理事会

5. Kimberley Process: 金伯利进程

6. UN Environmental Program: 联合国环境规划署

7. Council of Ministers: 内阁

8. the United Nations Sub-Commission for the Promotion and Protection of HumanRights: 联合国人权促进保护小组委员会

9. Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights: 《联合国关于跨国公司与其他企业在人权方面的责任准则》

[The Discussions]

1. The arguments for why transnational corporations have human rights obligations.

2. The content of the corporations’ human rights obligations.

3. The Institutional Context for Implementing Corporate Obligations.

【The Further Sources】

Genugten, Willem van, The Status of Transnational Corporations in International Public Law . 2000.

Deva, Surya, UN’s Human Rights Norms for Transnational Corporations and Other Business Enterprises: An Imperfect Step in the Right Direction?. ILSA Journal of International＆ Comparative Law, Vol. 10, 2004.

McDonnell, Anthony, Lamare, Ryan, Gunnigle, Patrick and Lavelle, Jonathan, Developing Tomorrow’s Leaders - Evidence of Global Talent Management in Multinational Enterprises (October 1, 2008). Journal of World Business, Vol. 45, No. 2, 2010.

【注释】

[1]国际法院位于荷兰海牙，是联合国六大机构之一，也其主要司法机关，成立于1946年4月3日，同年制定的《国际法院规则》经过了1972年和1978年两次修改。国际法院是唯一具有一般管辖权的普遍性国际法院。法院的管辖权有两个方面：首先，法院须就各国行使主权自愿向其提交的争端做出裁决；其次，联合国大会或安全理事会可就任何法律问题咨询法院意见，经大会授权的联合国其他机关和专门机构也可就其活动范围内出现的法律问题咨询法院意见。

[2][法] 商法，商事法，习惯商法。

[3]美国联邦储备金监察小组。

[4]世界贸易组织是一个独立于联合国的永久性国际组织。该组织于1995年1月1日正式开始运作，负责管理世界经济和贸易秩序，总部设在瑞士日内瓦。它的前身是1947年订立的关税及贸易总协定。与关贸总协定相比，世贸组织涵盖货物贸易、服务贸易以及知识产权贸易，而关贸总协定只适用于商品货物贸易。

[5]国际货币基金组织。根据1944年7月在布雷顿森林会议签订的《国际货币基金协定》，国际货币基金组织于1945年12月27日在华盛顿成立。

[6]欧洲货币联盟，简称EMU，于1999年1月启动，其主要目标是要建立名为欧元的单一欧洲货币。

[7]最惠国待遇（most-favored-nation treatment，英文简称MFN）是国际经济贸易关系中常用的一项制度，是国与国之间贸易条约和协定的法律待遇条款，在进出口贸易、税收、通航等方面互相给予优惠利益、提供必要的方便、享受某些特权等方面的一项制度，又称“无歧视待遇”。它通常指的是缔约国双方在通商、航海、关税、公民法律地位等方面相互给予的不低于现时或将来给予任何第三国的优惠、特权或豁免待遇。

[8]友好通商航海条约指在相互友好的政治前提下，针对通商航海等事宜全面规定两国间经济、贸易关系的一种贸易条约。友好通商航海条约主要是确立缔约国间的友好关系，双方对于对方国民前来从事商业活动给予应有的保障、赋予航海上的自由权等。这类条约主要出现在二次世界大战前，当时国际经济活动以国际贸易为主，国际投资不占主要地位，反映在条约中就是关于贸易的保护规定较多，而关于投资的保护规定则很少。

[9]避免双重税收协定指国家间为了避免和消除向同一纳税人、在同一所得的基础上重复征税，根据平等互惠原则而签订的双边税收协定。如果纳税人居住地国与其取得所得的来源地国之间没有作出双方都能接受的协调安排，往往造成征税重迭，不仅会加重纳税人的负担，也不利于国际间的经济、技术和人才交流。因此，第二次世界大战后，随着国际间资金流动、劳务交流和贸易往来的发展，在国与国间签订避免双重税收协定，已日益受到国际上的重视。

[10]双边投资条约指两国间为保证对外投资享受国民待遇或最惠国待遇，禁止对项目所须的必需品征税，并允许投资者（不论其国籍如何）在外国享有投资项目的高层管理权而签订的条约。双边投资条约保证缔约双方有权决定与投资相关的资产转让，并按照公认的国际法处理征地问题。该条约还保证投资方有权就履约中的争议提请公正并有约束力得国际仲裁机构裁决。

[11]契约必须信守原则。在国际经济交往中，首先，就国家间的条约而言，“有约必守”指当事国一旦参加签订双边经济条约或多边经济条约，就在享受该项条约赋予的国际经济权利的同时，也受到该条约和国际法的约束。其次，就自然人、法人相互间或他们与国家之间的合同（契约）而言，“有约必守”指的是有关各方当事人一旦达成协议，依法订立合同，它就具有法律上的约束力，非依法律或当事人重新协议，不得单方擅自改变。

[12]对自然资源的永久主权。

[13]New International Economic Order，新国际经济秩序。

[14]各国经济权利和义务宪章是联合国于1974年12月12日在联合国大会第29届会议上通过的旨在建立新的国际经济关系的重要文件。

[15]联合国千年发展目标是联合国全体191个成员国一致通过的一项旨在将全球贫困水平在2015年之前降低一半（以1990年的水平为标准）的行动计划，2000年9月联合国首脑会议上由189个国家签署《联合国千年宣言》，正式做出此项承诺。

[16]斯德哥尔摩人类环境宣言。联合国人类环境会议于1972年6月5日至16日在斯德哥尔摩举行，该宣言是这次会议的主要成果，阐明了与会国和国际组织所取得的七点共同看法和二十六项原则，以鼓舞和指导世界各国人民保护和改善人类环境。

[17]世界自然宪章是联合国大会于1982年10月28日通过的一个法律文件。该宪章规定应尊重自然，不损害自然的基本过程，不得损害地球上的遗传活力，各种生命形式都必须至少维持其足以生存繁衍的数量，以及保障必要的栖息地等。

[18]《联合国海洋法公约》于1982年12月10日在牙买加蒙特哥湾召开的第三次联合国海洋法会议最后会议上通过。公约对内水、领海、毗邻区、大陆架、专属经济区、公海等重要概念做了界定，对当前全球各处的领海主权争端、海上天然资源管理、污染处理等具有重要的指导和裁决作用。

[19]《非洲保护自然和自然资源公约》。

[20]《东南亚国协自然及自然资源保育协议》。

[21]湿地公约也称作拉姆萨尔公约，是为了保护湿地而签署的全球性政府间保护公约，全称为《关于特别是作为水禽栖息地的国际重要湿地公约》。

[22]《濒危野生动植物物种国际贸易公约》。

[23]《保护迁徙野生动物物种公约》于1979年6月23日在德国波恩通过，因此又名波恩公约，其目标在于保护陆地、海洋和空中的迁徙物种的活动空间范围，公约于1983年12月1日生效。公约规定：应订立具体的国际协定，以处理有关迁徙物种养护和管理问题；设立科学理事会就科学事项提供咨询意见；公约还在两个附录中分别列出了濒危的迁徙物种和须经协议的迁徙物种。

[24]《关于环境保护的南极条约议定书》。

[25]布伦特兰委员会即世界环境与发展委员会。1983年第38届联合国大会通过了成立这个独立机构的决议，由联合国秘书长提名挪威工党当时的领袖布伦特兰夫人任委员会主席。委员会的主要任务是：审查世界环境和发展的关键问题，创造性地提出解决这些问题的现实行动建议，以及提高个人、团体、企业界、研究机构和各国政府对环境与发展的认识水平。

[26]《里约环境与发展宣言》，简称《里约宣言》，是联合国环境与发展大会于1962年6月14日在里约热内卢通过的简短文件，包括27条原则，旨在指导今后世界各地的可持续发展。

[27]《联合国生物多样性公约》是1992年6月5日由缔约方在巴西里约热内卢举行的联合国环境与发展大会上签署的一项保护地球生物资源的国际公约。公约重申各国对本国生物多样性资源拥有主权权利，同时有责任保护生物多样性。

[28]国际投资争端解决中心的英文全称为：The International Center for the Settlement of Investment Disputes，它是依据《解决国家与他国国民间投资争端公约》而建立的世界上第一个专门解决国际投资争议的仲裁机构，通过调解和仲裁方式专为解决政府与外国私人投资者之间的争端提供便利。

[29]《欧洲人权公约》（简称ECHR）全名为《欧洲保障人权和基本自由公约》（Convention for the Protection of Human Rights and Fundamental Freedoms），为一个保障欧洲人权与基本自由的国际公约。其于1950年左右开始起草，其后在欧洲委员会的支持下为欧洲各国所签署，于1953年9月3日正式生效。它规定集体保障和施行《世界人权宣言》中所规定的某些权利及基本自由。

[30]国际商会成立于1920年，是为世界商业服务的非政府间组织，是联合国等政府间组织的咨询机构。国际商会以贸易为促进和平、繁荣的强大力量，推行一种开放的国际贸易、投资体系和市场经济。由于国际商会的成员公司和协会本身从事于国际商业活动，因此它所制定用以规范国际商业合作的规章如《托收统一规则》、《跟单信用证统一惯例》、《国际商会2000国际贸易术语解释通则》等被广泛地应用于国际贸易中，成为国际贸易不可缺少的一部分。

[31]外交部。

[32]财政部。

[33]联合国国际贸易法委员会于1966年由大会设立，中国是其成员国之一。大会在设立贸易法委员会时承认，各国的国际贸易法律存在差异，给贸易流通造成了障碍，因此，大会把贸易法委员会视作联合国可籍此对减少或消除这些障碍发挥更积极作用的工具。该委员会有助于协调及统一国际贸易法，并集中处理四个主要的国际贸易范畴：货品销售、付款、商业仲裁及有关货运的法例。

[34]国际法学会（Institut de Droit International）又称为国际法研究院（英文The Institute of International Law），1873年9月8日在比利时Ghent Town Hall创立，学会是独立的学术团体，没有任何官方背景，其目的是为了促进国际法的发展。学会每两年召开一次大会。法文是其官方文本，英语由法语翻译而成。

[35]联合国跨国公司行动守则草案。

[36]国际电话电报公司是一家美国公司，其业务范围非常广，但以生产和经营电信及电子设备、防务设备为主。

[37]国际劳工组织是一个以国际劳工标准处理有关劳工问题的联合国专门机构。1919年，国际劳工组织根据《凡尔赛和约》，作为国际联盟的附属机构成立。总部设在瑞士日内瓦，它的训练中心位于意大利都灵，秘书处被世界各地的人称为国际劳工局。该组织曾在1969年获得诺贝尔和平奖。

[38]《关于跨国企业和社会政策的三方原则宣言》。

[39]经济合作与发展组织（Organization for Economic Co-operation and Development）是由30多个市场经济国家组成的政府间国际经济组织，旨在共同应对全球化带来的经济、社会和政府治理等方面的挑战，并把握全球化带来的机遇成立于1961年，总部设在巴黎。

[40]地区合作与发展组织（Organization for Regional Co-operation and Development）。