This preview has intentionally blurred sections. Sign up to view the full version.View Full Document
Unformatted text preview: Volume 14(1) Extending the International Criminal Court’s jurisdiction 199 Extending the International Criminal Court’s jurisdiction to corporations: overcoming complementarity concerns. Kathryn Haigh* This article argues that the negative impact that transnational corporations may have on the protection and promotion of international human rights can be improved by extending the International Criminal Court’s jurisdiction to corporations. Realising this goal would require that the concerns, including complementarity concerns, expressed by Rome Conference delegates be addressed. This article explores a number of ways to address the complementarity concerns and identifies limitations with those approaches. Given these limitations, if state parties cannot be dissuaded of their complementarity concerns, it is argued that a pragmatic response is to adopt an exception-based approach to including corporations within the ICC’s jurisdiction — that is, to extend the ICC’s jurisdiction to corporations generally, but specifically exclude corporations registered in state parties that do not recognise corporate criminality for the offences subject of the Rome Statute in their national criminal jurisdictions. While an exception-based approach would have its own difficulties, it would enable the ICC’s jurisdiction to be extended to corporations generally — a significant development for the protection of international human rights. Introduction Transnational corporations (TNCs) are major players in a globalised and privatised international economy. Accompanying this economic power is considerable political and social clout. TNCs can use this power to promote human rights by improving a population’s economic development (Kinley and Tadaki 2004, 933). However, the same power may enable TNCs to avoid liability for their role, be it direct or indirect, in a range of egregious human rights abuses — including, in the context of militarised commerce, allegations that TNCs have participated in serious international crimes such as genocide, war crimes and crimes against humanity (Joseph 2004, 3). * Kathryn Haigh is a principal legal officer with the Commonwealth Director of Public Prosecutions. Email: <[email protected]>. The views expressed in this article are the author’s and may not reflect those of the Commonwealth Director of Public Prosecutions. The author wishes to thank the anonymous referees for their valuable comments. 200 Australian Journal of Human Rights 2008 Many ‘host’ states, which are often developing states where TNCs locate their production capabilities, may be unwilling or unable to efficiently regulate the human rights conduct of TNCs within their jurisdiction. A host state may not have the financial or legal resources to regulate a powerful TNC. The host state may be concerned that the TNC will relocate, taking its foreign direct investment with it, if made to account for its human rights conduct. The problem is compounded if the host made to account for its human rights conduct....
View Full Document
- Fall '11
- Law, criminal law, Corporation, rome statute