:-) It certainly does make the brain hurt.
>I do remember that thread. I don't think corporations are entitled to
>'human' rights, generally because they are not human, and can't be
>subject to human penalties (e.g., imprisonment). That made the
>practicality of making corporations answerable to the law difficult, but
>the concept was that they were not beyond the reach of the law.
>
>However, to my mind, this latest item is a quantum leap beyond that,
>because it codifies that the corporations are beyond the reach of the
>law (scofflaws), while still allowed to use the laws for their own
>interests (not outlaws). The parallel that comes to my mind is the
>divine rights of kings.
>
>Where do we find the line that separates the beneficial corporate entity
>(e.g, the shoe repair shop in my community), from the the trans-national
>like Shell (subject of the original post in this thread)?
We've been through that before too. Weren't you just telling me that
"small is beautiful"?
"Small-scale capitalism works out fine, but as scale increases the
departure from real capitalism becomes more pronounced---profits are
privatized, but costs are socialized. The attendant repair and
maintenance are left to succeeding generations if possible, if not,
to present low and middle income taxpayers." -- "tvoivozhd",
Homestead list
IMHO if you can attach the word "community" or "local" to a business
description, it's misleading to call it a "corporate entity", though
it may be accurate.
>How do we get the laws changed to bring the corporations to heel, when
>it appears that they own the legal system?
>
>How do we starve the mammoth, when our senior governments are fixed on
>feeding them (remember 'too big to fail'), while allowing allowing
>actual organic species to go extinct?
That's the problem, Wall St owns Washington. (And the Pentagon likes
it that way.)
Adam Smith believed an efficient market is composed of small,
owner-managed enterprises located in the communities where the owners
reside.
Some notes (also in the archives I think):
Going back two centuries, economists have worried about what Adam
Smith described as the tendency of chieftains in a market system ''to
deceive and even to oppress the public.'
"People of the same trade seldom meet together, even for merriment
and diversion, but the conversation ends in a conspiracy against the
public, or in some contrivance to raise prices" ("Wealth of
Nations"). He said businessmen always yearn to escape from price
competition through collusion.
He didn't like corporations and governments either. He viewed
government primarily as an instrument for extracting taxes to
subsidize elites and intervening in the market to protect corporate
monopolies. "Civil government, so far as it is instituted for the
security of property, is in reality instituted for the defense of the
rich against the poor, or of those who have some property against
those who have none at all.'"
Adam Smith commented in 1776 that the only trades that justified
incorporation were banking, insurance, canal building and waterworks.
He believed it was contrary to the public interest for any other
businesses or trades to be incorporated and that all should be run as
partnerships.
**Smith believed the efficient market is composed of small,
owner-managed enterprises located in the communities where the owners
reside. Such owners normally share in the community's values and have
a personal stake in the future of both the community and the
enterprise.**
In the global corporate economy, footloose money moves across
national borders at the speed of light, society's assets are
entrusted to massive corporations lacking any local or national
allegiance, and management is removed from real owners by layers of
investment institutions and holding companies.
His account of policy-making in England says that the "principal
architects" of policy - in his day the "merchants and manufacturers"
- make sure that their own interests are "most peculiarly attended
to", however "grievous" the effect on others, including the people of
England, but far more so, those who were subjected to "the savage
injustice of the Europeans", particularly in conquered India, Smith's
own prime concern.
"All for ourselves, and nothing for other people, seems, in every age
of the world, to have been the vile maxim of the masters of mankind."
(The Wealth of Nations)
"Whenever there is great property, there is great inequality. For one
very rich man, there must be at least five hundred of the poor, and
the affluence of the few supposes the indigence of the many..." (The
Wealth of Nations)
Guess: how many times does Adam Smith mention the "invisible hand" in
The Wealth of Nations?
Once. And he doesn't think much of it.
An Inquiry into the Nature and Causes of the Wealth of Nations
by Adam Smith
<http://www.gutenberg.org/dirs/3/3/0/3300/3300-8.zip>
It's the same old answer: localise. Think globally, act locally. A
hell of a lot of people are doing that these days. You can build
corporate predators out of your life (I think you do that). Once
enough people do it, it reaches a critical mass that has an effect.
The only way to rein the corporations in is to keep on hurting them
in the pocket. That's what they've got instead of a heart. A pocket.
Paint their bottom line red and you'll have their attention. Finally
they learn that a black bottom line is conditional.
All best
Keith
>Darryl
>(off to think about smaller things for a while, this is making my brain
>hurt)
>
>On 22/10/2010 8:45 AM, Keith Addison wrote:
>>> This one still leaves me stunned. I've read it twice now, trying to
>>> imagine how it could possibly come to pass.
>> Well, they think they own everything, and everyone, and certainly the
>> law, whatever law. Even if they don't own it, they're usually in a
>> position to bend it.
>>
>>> It seems to me, that as a matter of basic equity in law, that a person
>>> (natural or otherwise) should not be able to invoke the legal system to
>>> its advantage unless it is equally answerable to the same body of law.
>>>
>>> How is it that trans-national corporations, that explicitly operate in
>>> the international realm, can be not answerable to international law?
>> This might help:
>> http://www.asil.org/files/insight100930pdf.pdf
>>
>>> Still stunned.
>> I'm not very surprised.
>>
>> Do you remember this?
>>
>> "How to kill a mammoth," from Roberto Verzola, secretary-general of
>> the Philippine Greens:
> > <http://www.mail-archive.com/biofuel@sustainablelists.org/msg30628.html>
>> [biofuel] Mammoth corporations
>>
>>> >Economics, properly defined, is the study of human behaviour in the
>>> >marketplace. IT is a BEHAVIOURAL SCIENCE. Unfortunately, people are too
>>> >often greedy and the economic models can predict behaviour by reducing
>>> >humans to a collection of pecuniary interests.
>>> >
>>> >So, the problem is not to change economics. The problem is to change
>>> >people's attitude. When that happens, the economist's models will fail.
>>> >
>>> >You can denounce economics all you want, but it is really
>>>human behaviour
>>> >that is the problem. That is what we need to address.
>>> >
>>> >Pat
>>>
>>> Hi Pat.
>>> I have a different interpretation: it is true that people are
>>> occasionally / often greedy in varying degrees. However economists
>>> idealized this greed and made it the centerpoint of the ideal economic
> >> agent. Then society created a legal person in the perfect image of
>>> this idealized economic agent. This legal person is the
>>> corporation/business firm, the epitome of pure greed. Corporations
>>> (which I'd count as if they were a separate species) have domesticated
>>> many humans and forced them to act and think like corporations too.
>>> This is what we need to address.
>>> Roberto Verzola
>> Prehistoric peoples could kill mammoths; how about corporations?
>> by Roberto Verzola
>>
>> Most legal systems today recognize the registered business firm as a
>> distinct legal person, separate from its stockholders, board of
>> directors or employees. In fact, laws would often refer to "natural
>> or legal persons". It should therefore be safe to conclude that such
>> registered business firms or corporations are persons (ie,
>> organisms), but NOT "natural persons", and therefore not humans.
>>
>> Other social institutions have been created by humans (State, Church,
> > etc.), but they have never quite reached the state of life and
>> reproductive capacity that corporations attained.
>>
>> It would be very useful to analyze corporations *as if* they were a
>> different species, and then to extract ecological insights from the
>> analysis. (By corporations here, I am basically referring to
>> registered business firms, or for-profit corporations).
>>
>> Corporations are born; they grow; they might also die. They can
>> reproduce and multiply, using different methods, both asexual and
>> sexual. We have bacteria within our bodies as if they were part of
>> us; corporations have humans within them. Their genetic programming -
>> profit maximization - is much simpler than human genetic programming,
>> humans being a bundle of mixed and often conflicting emotions and
>> motives. Corporations' computational capabilities for such
>> maximization easily exceed most natural persons' capabilities.
>> Therefore they easily survive better in the economic competition.
>>
>> It is profit that keeps corporations alive. They are genetically
>> programmed to maximize the flow of profits into their gut. To extract
>> profit from their environment, corporations transform everything into
>> commodities and then make profits by selling them or renting them
>> out. Corporations can transform practically anything into a
>> commodity, including corporations and profits themselves.
>>
>> Today, corporations are the dominant species on the planet. They have
>> taken over most social institutions and other niches that humans have
>> originally created for themselves. The physical reach of the biggest
>> corporations span the entire globe. The term "globalization" can
>> mean, without exaggeration, the global rule of corporations.
>>
>> The non-stop transformation of the natural world - the ecological
>> base of human survival - into commodities for profit-making has, in
>> fact, become a threat to the survival not only of human beings but of
>> many other species.
>>
>> In the same way that we learned to domesticate plants and animals,
>> corporations have learned to domesticate humans. Much of today's
>> educational process is a process of corporate domestication,
>> reinforced subsequently by corporate-controlled media. Corporations
>> have perfected the art of training humans, using carrot-and-stick
>> methods, to keep them tame and obedient.
>>
>> Of course, some humans have remained wild and undomesticated. But
>> today, they are outside the mainstream.
>>
>> Corporations have trained domesticated humans to immobilize, maim,
>> kill or otherwise "neutralize" those fellow-humans who have remained
>> feral and uncontrolled by corporations. But there's a growing body of
>> feral humans who are now trying to learn how to disable, maim or kill
>> corporations.
>>
>> Prehistoric humans knew how to kill the largest beasts of their time;
>> modern humans have not yet learned how to kill corporations.
>> Individual humans have practically no hope of fighting off a
>> determined corporate attack. Most confrontations between corporations
>> and communities of humans end up in corporate victory, with humans
>> ending up dead, maimed or subdued and domesticated, their human will
> > broken.
>>
>> On those occasions when humans manage a victory, it almost never
>> results in the death of the attacking corporation. When corporations
>> lose a battle with feral humans, they can simply withdraw for a
>> while, split into several persons, combine with another person,
>> change their persona, or adopt other survival tricks which they have
>> evolved over time. In fact, when entering new and presumably wild
>> territory, a corporation would often clone itself and send its clone
>> in. Even in the remote possibility that the clone dies from human
>> attacks, the mother firm stays unharmed and as powerful as ever.
>>
>> In prehistoric ages, our ancestors learned how to repel, disable or
>> kill an attacking mammoth; the challenge of our age is learning how
>> to do the same with corporations.
>>
>> --0--
>>
>> Also this:
>>
>> http://www.guardian.co.uk/Columnists/Column/0,,377458,00.html
>>
>> Big business has us bang to rights
> > Corporations behave as if they are more human than we are
>>
>> George Monbiot
>> Thursday 5 October 2000
>> The Guardian
>>
>> The location of the boundaries of our humanity is perhaps the key
>> moral question of our age. Whether a test-tube baby should be
>> selected so that his cells can be used to save the life of his
>> sister, whether one conjoined twin should die so that another can
>> live, whether partial human embryos should be cloned and reared for
>> organ transplants confront us with problems we have never faced
>> before. Medical advances, both wonderful and terrifying, are eroding
>> the edges of our identity.
>>
>> The new Human Rights Act is intended to provide us with some of the
>> guidelines we need to help sort this out. It insists that we have an
>> inalienable right both to life itself and to the freedoms without
>> which that life would be wretched. But while the rights it guarantees
>> have proved fairly easy to define, it is, curiously, the concept of
>> humanity which turns out to be precarious.
>>
>> Human beings, you might have thought, are animate, bipedal creatures
>> a bit like you and me. But the lawyers would have it otherwise. Big
>> companies might not breathe or speak or eat (though they certainly
>> reproduce), but they are now using human rights laws to claim legal
>> protections and fundamental liberties. As their humanity develops, so
>> ours diminishes.
>>
>> Last month, a quarrying company called Lafarge Redland Aggregates
>> took the Scottish environment minister to court on the grounds that
>> its human rights had been breached. Article 6 of the European
>> Convention determines that human beings should be allowed a fair
>> hearing of cases in which they are involved "within a reasonable
>> time". Lafarge is insisting that the results of the public inquiry
>> into its plan to dig up a mountain in South Harris have been
>> unreasonably delayed. The company, as the campaigning academic
>> Alastair McIntosh has argued, may have good reason to complain, but
>> to use human rights law to press its case sets a frightening
>> precedent.
>>
>> It is a concept developed in the US. The 14th amendment to the
>> constitution was introduced in 1868 with the aim of extending to
>> blacks the legal protections enjoyed by whites: equality under the
>> law, the right to life, liberty and the enjoyment of property. By
>> 1896, a series of extraordinary rulings by a corrupt, white and
>> corporate-dominated judiciary had succeeded in denying these rights
>> to the black people they were supposed to protect, while granting
>> them instead to corporations.
>>
>> Though black people eventually reclaimed their legal protections,
>> corporate human rights were never rescinded. Indeed, while they have
>> progressively extended the boundaries of their own humanity, the
>> companies have ensured that ours is ever more restrained.
>>
>> Firms in the US have argued that regulating their advertisements or
>> restricting their political donations infringes their "human right"
>> to "free speech". They have insisted that their right to the
>> "peaceful enjoyment of possessions" should oblige local authorities
>> to grant them planning permission, and prevent peaceful protesters
> > from gathering on their land.
>>
>> At the same time, however, they have helped to ensure that the
>> "social, economic and cultural" rights, which might have allowed us
>> to challenge their dominance, remain merely "aspirational". As the
>> solicitor Daniel Bennett has pointed out, article 13 of the European
>> Convention, by which we could have contested the corporations'
>> absolute control of fundamental resources, has been deliberately
>> excluded from our own Human Rights Act.
>>
>> The rise of corporate human rights has been accompanied by an erosion
>> of responsibilities. Limited liability allows firms to shed their
>> obligations towards their creditors. Establishing subsidiaries -
>> regarded in law as separate entities - allows them to shed their
>> obligations towards the rest of us. And while they can use human
>> rights laws against us, we can't use human rights laws against them,
>> as they were developed to constrain only the activities of states. As
> > far as the law goes, corporations are now more human than we are.
>>
>> The potential consequences are momentous. Governments could find
>> themselves unable to prevent the advertising of tobacco, the dumping
>> of toxic waste or the export of arms to dictatorships. Yet in Britain
>> the public discussion of this issue has so far been confined to the
>> pages of the Stornoway Gazette.
>>
>> The creatures we invented to serve us are taking over. While we have
>> been fretting about the power of nanotechnology and artificial
>> intelligence, our domination by bodies we created but have lost the
>> means to control has already arrived. It is surely inconceivable that
>> we should grant human rights to computers. Why then should they be
>> enjoyed by corporations?
>>
>> [EMAIL PROTECTED]
>>
>> --0--
>>
>> And this:
>>
>> <http://journeytoforever.org/fyi_previous5.html#creed>
>> Feel No Remorse -- The Corporate Creed
>>
>> Feel No Remorse -- The Corporate Creed
>> M. W. Guzy is a former police detective and school teacher who now
>> writes a weekly column for the St. Louis Post Dispatch.
>>
>> Jan 23 2002
>> http://www.tompaine.com/
>>
>> The Washington Post recently reported that the Monsanto chemical
>> company knowingly polluted the towns of Anniston, Ala., and Sauget,
>> Ill., for years with the deadly by-products of PCB manufacture. While
>> doing so, the firm -- now Solutia, Inc. "intentionally concealed the
>> public health hazards and environmental devastation associated with
>> these pollutants." The corporation did this to protect its profits.
>>
>> Shortly after this report was published, the St. Louis Post-Dispatch
>> ran an editorial condemning the socially irresponsible greed at the
>> heart of the matter. It said, in part, that the episode "provides a
>> chilling glimpse of the dark side of corporate culture." Noting that
>> "it is one thing to make a human mistake out of ignorance," it opined
>> that "once a company knows" it is harming the public, "then conceals
>> this knowledge or refuses to act on it, it has broached even the
>> minimum standards of ethics."
>>
>> I sympathize with the sentiments expressed, but articles like this
>> remind me of Sgt. Reese in "The Terminator." He was the rebel soldier
>> who was sent to combat the automated killer for whom that film was
>> named. In one memorable scene, Reese tries desperately to convince
>> disbelieving civilians that the Terminator may look like a man but,
>> in fact, is not human.
>>
>> "You don't understand," he pleads. "It can't be bargained with. It
>> can't be reasoned with. It doesn't feel pity, or remorse, or fear."
>> He thus unwittingly describes the modern corporation.
>>
>> Corporations employ people, but this does not make them human. Like
>> the Terminator, they are artificial entities created with a single
>> purpose in mind -- the former to kill, the latter to generate profit.
>> All other activities they engage in are incidental to their
>> respective missions.
>>
>> Of course, corporations contribute to the general well being. Not
>> only do they produce needed goods and services, but they promote
>> prosperity by providing well-paid jobs, health insurance, and
> > retirement plans for their employees. To enhance their public stature
>> while reducing their tax liabilities, they also contribute to worthy
>> civic causes.
>>
>> All of these activities, however, are tangential to their central
>> enterprise of garnering the largest possible profit. In fact, they
>> have a fiduciary obligation to their shareholders to do just that.
>> Understanding this defining feature of the corporate life reveals
>> terms like "business ethics" and "corporate conscience" to be
>> oxymorons. These misnomers come into use when we commit the
>> intellectual sin of anthropomorphism -- attributing human
>> characteristics to non-human entities. The firm is neither good nor
>> bad, and it feels no pity or remorse.
>>
>> During the '70s, the Ford Motor Company produced a subcompact auto
>> called the Pinto. The corporation subsequently learned that the
>> vehicle had an unfortunate tendency to explode when involved in
>> rear-end collisions. The decision was made to continue building the
> > Pinto because it was cheaper to settle with survivors than it would
>> be to stop production and re-tool the line. This is the kind of
>> clear-eyed business vision that polluted the fields and streams of
>> Anniston and Sauget.
>>
>> If these decisions seem inhuman, it's because they are. Asking a
>> corporation to limit its profit in the interest of ethics is akin to
>> asking a hungry tiger to consider the long-term health implications
>> of eating too much red meat. You can't expect the beast to betray its
>> nature.
>>
>> The fun-loving firm that brought you the Pinto has just announced
>> 35,000 job cuts. It didn't take this action because it's evil, but
>> rather because its capacity for production currently exceeds the
>> demand for its product. Ford will gladly accept any tax rebate
>> Congress sends it -- acquiring wealth is its reason for existence.
>> But it won't hire one new worker until demand again exceeds capacity.
>> CEOs who ignore the laws of economics suffer the same fate as airline
>> pilots who violate the laws of physics.
>>
>> Teddy Roosevelt didn't gain a reputation as a "trust-buster" because
>> he was an admirer of Karl Marx. He despised socialism, which he saw
>> as a threat to liberty. He likewise distrusted unbridled capitalism
>> because he recognized that markets are efficient, but also ruthless.
>>
>> The only way to humanize corporate behavior is to make breaking the
>> law less profitable than obeying it. When crime truly doesn't pay,
>> corporations become model citizens.
>>
>> The bottom line is that somebody is going to set policy. Who would
>> you prefer: Teddy -- or the Terminator?
>>
>> --0--
>>
>> There's lots more in the archives.
>>
>> Best
>>
>> Keith
>>
>>
>>> Darryl
>>>
>>> On 20/10/2010 3:15 PM, Keith Addison wrote:
>>>> A judge in the Manhattan-based federal Second Circuit Court of
>>>> Appeals recently ruled that transnational corporations who
>>>> participate in gross human rights abuses cannot be held responsible
>>>> for torture, genocide, war crimes and the like because, as
>>>> corporations, their activities fall outside the jurisdiction of
>>>> international law.
>>>>
>>>> [Should that "who" be "that", or not? - K]
>>>>
>>>> http://towardfreedom.com/africa/2149-nigeria-shell-oils-license-to-kill
>>>>
>>>> Nigeria: Shell Oil's 'License to Kill'
>>>> Tuesday, 19 October 2010 15:39 Abena Ampofoa Asare
>>>>
>>>> Source: Pambazuka News
>>>>
>>>> Last month, Judge José A. Cabranes of the Manhattan-based federal
>>>> Second Circuit Court of Appeals issued a judicial opinion that sent
>>>> international lawyers, human rights advocates and African
>>> > environmental activists reeling. Cabranes ruled that transnational
>>>> corporations who participate in gross human rights abuses cannot be
>>>> held responsible for torture, genocide, war crimes and the like
>>>> because, as corporations, their activities fall outside the
>>>> jurisdiction of international law. The Pan-African Newswire described
>>>> the court's opinion as a corporate licence to kill. Judge Pierre
>>>> Leval, also of the Second Circuit, issued a dissenting opinion
> >>> describing the Cabranes ruling as an unprecedented 'blow to the
>>>> efforts of international law to protect human rights'.
>>>>
>>>> The plaintiffs in Kiobel v. Royal Dutch Petroleum (Shell) were the
>>> > relatives of Ken Saro-Wiwa, Dr Barinem Kiobel and other Ogoni leaders
>>>> imprisoned, tortured and executed in mid-1990s Nigeria. Their crime
>>>> was protesting the environmental devastation associated with Shell's
>>>> long tenure in the region. The Niger Delta violence, culminating in
>>>> the execution of Saro-Wiwa, a non-violent playwright, businessman and
>>>> organiser, exposed the brutal overlap between big oil's financial
>>>> imperatives and a military dictatorship's state repression. The
>>>> tragedy of the Niger Delta forced the world to acknowledge the human
>>>> costs of doing business as usual in the midst of a military
>>>> dictatorship. 'This is it,' Saro-Wiwa wrote just months before his
>>>> death, 'they [the Abacha dictatorship] are going to arrest us all and
> >>> execute us. All for Shell.'
>>>>
>>>> This lawsuit against the Dutch, British and Nigerian holdings of
>>>> Shell Petroleum was thrust before the Manhattan federal appeals court
>>>> under the Alien Torts Statute (ATS), an extraordinary 1789 law which
>>>> allows non-citizens to file lawsuits in US courts for serious
>>>> breaches of international law. As a puzzling relic of the first
>>>> Congress, the ATS lay mostly dormant until the 1980s when creative
>>>> lawyers began using the statute to bring cases of international human
>>>> rights abuse to trial in the US. Since then, American federal court
>>>> judges have been urged - unequipped and often unwilling - into
>>>> debates about international human rights law as ATS lawsuits on South
>>>> African apartheid, Bosnian genocide, chemical warfare in Vietnam and
>>>> other atrocities appeared before their courts.
>>>>
>>>> Last month, the Second Circuit's foray into the murky waters of
>>>> international law via the Shell suit led to the shocking assertion
>>>> that there is 'no historical evidence of an existing or even nascent
>>>> norm of customary international law imposing liability on
>>>> corporations for violations of human rights'. Another Second Circuit
>>>> judge, Pierre Leval, violently disagreed with Cabranes's 'illogical'
>>>> and 'strange' misreading of international law. In a separately issued
>>>> opinion, Leval described international law as explicit in condemning
>>>> human rights abuse and silent on the issue of corporate civil
>>>> responsibility. Silences in the law, Leval argued, must not be
>>>> interpreted to undermine the spirit, intention and norms of the law -
>>>> particularly when the stakes are so high. This new precedent, Leval
>>>> warned, would 'offer to unscrupulous businesses advantages of
>>>> incorporation never before dreamed of S businesses will now be free
>>>> to trade in or exploit slaves, employ mercenary armies to do dirty
>>>> work for despot's political opponents, perform genocides or operate
>>>> torture prisons S ---all without civil liability to victims'. Leval
>>>> condemned the Cabranes ruling as a boon to corporations 'who earn
>>>> profits by commercial exploitation or abuse of fundamental human
>>>> rights', by allowing them to 'successfully shield [their] profitsS.
>>>> simply by taking the precaution of conducting the heinous operation
>>>> in the corporate form'. If the Shell ruling stands, ironically, the
>>>> legacy of Ken Saro-Wiwa and other activists who gave their lives
>>>> fighting for corporate responsibility would now be attached to a
>>>> legal decision shielding transnational companies that trample human
>>>> rights.
>>>>
>>>> Central to this legal controversy is a question that should not be
>>>> lost in the crossfire: What does international law and custom
>>> > prescribe for transnational corporations implicated in gross human
>>>> rights abuse? Months before this ruling, legal experts at a
>>>> Northwestern University roundtable triumphantly claimed that the
> >>> 'future has already arrived' for international corporate social
>>>> responsibility. Corporate respect for human rights was a foregone
>>>> conclusion cemented over the past two decades when 'primary elements
>>>> of corporate social responsibility--- human rights, environment,
>>>> labor, and anti-corruption priorities - prevailed in the halls of
>>>> government, in the rule-making of international institutions, in
>>>> courtrooms, and in a growing number of boardrooms.'[i] Fast forward a
>>> > few months and the Shell decision exposes a starkly different
>>>> reality: gains made in human rights efforts to rein in transnational
>>>> business must be defended and expanded, or risk being lost. In
>>>> reality, more than 15 years after Ken Saro-Wiwa's death, the
>>>> international community has yet to ensure that transnational
>>>> corporations do not contribute to genocide, war crimes, mass
>>>> incarceration and torture as they do their business around the world.
>>>>
>>>> Part of this situation is historical: international law has
> >>> traditionally responded to crimes against humanity and atrocity with
>>>> individual criminal prosecutions. At Nuremberg, the international
>>>> community affirmed a new standard by recognising that 'crimes against
>>>> international law are committed by men, not abstract entities, and
>>>> only by punishing individuals who commit such crimes can the
>>>> provisions of international law be enforced.' For the first time,
>>>> individuals, rather than states, were prosecuted for breaches of
>>>> international law. This standard of criminal responsibility has held
>>>> sway for the past 60 years.
>>>>
>>>> Since Nuremberg, the international community's response to glaring
>>>> human rights abuse has been to create international tribunals, such
>>>> as the International Criminal Tribunal of Yugoslavia (ICTY), the
>>>> International Criminal Tribunal of Rwanda (ICTR) and the Special
>>>> Court of Sierra Leone, which have all been built upon the Nuremberg
>>>> insight that flesh-and-blood men are to blame for atrocities. Even as
>>>> these later tribunals have begun to chafe against such a narrow
>>>> focus, they have adhered to the standard of pursuing only the
>>>> individuals deemed 'most responsible' for atrocity. Increasingly, the
>>>> Nuremberg emphasis on personal criminality seems less like revelation
>>>> and more like restriction. Each year, more violence-scarred countries
>>>> turn to truth and reconciliation commissions and other extrajudicial
>>>> instruments to pursue broader notions of justice.
>>>>
>>>> The creation of the International Criminal Court (ICC) has not
>>>> altered international law's focus on individual criminal
>>>> prosecutions. At the 2002 Rome Conference, there were discussions
>>>> about whether corporations should be included within the ICC's
>>>> purview. However, ideological and theoretical differences within the
>>>> signatory countries torpedoed this proposal. There were some
>>>> stakeholders who, theoretically, did not recognise the principle of
>>>> corporate criminality in their own domestic law and others who were
>>>> wary of imbuing the court with too much power. Given the ICC's
>>>> limited resources, the vision of a narrowly focused court prevailed
>>>> at the expense of the more ambitious versions. Ultimately, the ICC
>>>> would not seek to respond to the gaps in international law's
>>>> enforcement of human rights and instead would focus on bringing
>>>> individual perpetrators to trial.
>>>>
>>>> Although norms of international corporate responsibility have been
>>>> articulated clearly, there are woefully few clear avenues to move
>>>> from rhetoric to response. For the better part of two decades, the
>>>> United Nations' cognizance of the raw power of transnational
>>>> companies has led to a number of exciting initiatives. As early as
>>>> 1984, the UN sought to establish a Code of Conduct for Transnational
>>>> Companies to issue both mandatory requirements and voluntary
>>>> guidelines for business. However, partially because of the Cold War
> >> > context, this comprehensive code was never adopted.
>>>> In 2000, former Secretary-General Kofi Annan created the Global
>>>> Compact, an initiative encouraging company commitments to corporate
>>>> responsibility standards. However, the Compact was voluntary,
>>>> strictly incentive-based and ultimately unable to change how
>>>> transnational companies do business. Subsequently, the UN
>>>> Sub-Commission for Human Rights created the 'Norms on the
>>>> responsibility of transnational corporations and other business
>>>> enterprises with regard to human rights'. Marked by bold rhetoric
>>>> describing extensive human rights obligations for transnational
>>>> corporations, in practice, these norms function as 'soft law'
>>> > recommendations. At best, they constitute a core document about which
>>>> to ultimately build more secure regulation mechanisms. Since their
>>>> adoption in 2003, these norms have not led to regulations and thus
>>>> have not been integrated into the practice of international law.
> >>> Despite a decades-long effort in this arena, because the UN
>>>> initiatives lack stringent enforcement mechanisms, they have not
>>>> become part of the international legal system.
>>>>
>>>> Into this gap enters the recent Second Circuit opinion dismissing the
>>>> long history of UN efforts as aspirations, ideals and guidelines
>>>> rather than as obligatory parts of the law. If Nuremberg's call for
>>>> individual moral responsibility was the main achievement of 20th
>>>> century international human rights, the 21st century's task will be
>>>> to confront the institutions that create the conditions for genocide,
>>>> atrocity and mass human suffering. The recent court judgment exposes
>>>> the costs of the international community's hesitance to stringently
>>>> regulate transnational companies. It must also renew our
>>>> determination to create mechanisms that dissuade corporations from
>>>> valuing profit above human rights, and forums to assess liability and
>>>> undermine impunity if and when they do. If this lawsuit is a clarion
>>>> call about the need to enforce established human rights norms as law,
>>>> it may become an important part of Ken Saro-Wiwa's legacy and part of
>>>> his continuing gift to the world.
>>>>
>>>> * Please send comments to [EMAIL PROTECTED] or comment online at
>>>> Pambazuka News.
>>>>
>>>> NOTES
>>>>
>>>> [i] David Scheffer and Caroline Kaeb, 'The Five Levels of CSR
>>>> Compliance: The Resiliency of Corporate Liability under the Alien
>>>> Tort Statute and the Case for a Counterattack Strategy in Compliance
>>>> Theory,' Public Policy Roundtable, The Alien Tort Statute and U.S.
>>>> Enforcement of Foreign Judgments, 4/29/2010- 4/30/2010
>>>> Photo from Amnesty International
>>> --
>>> Darryl McMahon
>>> The Emperor's New Hydrogen Economy
> >> http://www.econogics.com/TENHE/
_______________________________________________
Biofuel mailing list
Biofuel@sustainablelists.org
http://sustainablelists.org/mailman/listinfo/sustainablelorgbiofuel
Biofuel at Journey to Forever:
http://journeytoforever.org/biofuel.html
Search the combined Biofuel and Biofuels-biz list archives (70,000 messages):
http://www.mail-archive.com/biofuel@sustainablelists.org/
