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Abstract

National courts often face many obstacles in enforcing human rights law in the private sphere. There is the difficulty in determining the effect that human rights have in private legal relationships. With regard to criminal liability, only a very limited number of states have legislation that makes the attribution of criminal responsibility to legal entities possible. As to responsibility under civil law, it can easily become an empty exercise, if the company directly involved with the violation has no means to bear the costs of remediation, since it is an established doctrine of corporate law in most jurisdictions that the owners of a company are not liable for the damage the company causes (corporate veil). Non legal barriers, notably in countries in which the rule of law is weak, include costs of the judicial process; lack of political or economic independence of the courts;obstruction of the legitimate work of human rights defenders; and difficulties in securing legal representation or a lack of adequate resources to legal prosecutors.The above dilemma creates vulnerability for local populations facing violations of human rights carried out in the context of the activities of transnational corporations, notably in developing countries. It frequently happens that the barriers for sanctioning and remedying such violations in the countries hosting the corporations are insurmountable. As a consequence, cases had been multiplying in which victims of human rights violations, allegedly committed by transnationals in developing and the least developed countries, brought suits against the companies before the domestic courts of their home states or before the courts of other developed states where those companies are also present. Turning to the parent company has not been always successful, however.

These are some of the aspects of the context in which this Article is inserted.This Article is concerned with transnational corporations’ embryonic duty to respect international human rights law. Understanding how that obligation may be crystallizing and how courts address that responsibility is relevant for the enforcement of human rights at both the international and domestic levels.Professor André Nollkaemper explains that an international dispute is based on competing claims that are grounded in international law,3and many of the claims brought against transnationals in states where they are established or have legal presence are at least in part founded on international law. Accordingly, some courts have resorted to applying international legal standards when deciding such cases. Furthermore, international law provides national courts indifferent jurisdictions with a common ground and language to address the same type of problems under varying domestic laws, which directly or indirectly reflect international legal standards, allowing them to cooperate among themselves in enforcing the same legal standards, to build up an international case law and to foster the rule of law at the local and international level.This Article addresses the issue through a very specific perspective and does not attempt to be exhaustive. It assesses how transnational corporations’ duty to respect international human rights law is progressively emerging in the practice of the United Nations, and how that practice may foster and reflect the emergence of an international law obligation to respect human rights. It also reviews,albeit briefly, the main legal obstacles in the path of enforcing that obligation at the international and national levels. The terms “transnational corporations(TNCs),” “transnationals,” “corporations,” and “businesses” are equivalently employed in their broader sense so as to encompass businesses in general while focusing on the corporations with activities and interests in different jurisdictions; a TNC is considered a non-state actor (NSA)

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