Globalization and human rights are largely used today in popular catchphrases about recent transformations in our contemporary world. Both represent new developments on the international level that affect the States and societies. The particular globalization of capital, markets and services, paralleled by the removal of national barriers to trade and investments, is a development that tends to be seen as an inevitable trend of the contemporary world. These trends lead to a growing influence of different entities within the international arena: notable among those are transnational corporations, which often have more global importance than do small and poor sovereign States with seats in the United Nations.

Transnational corporations are accused of having been involved in many direct or indirect violations of human rights of a political, civil, social, economical or cultural dimension.[1]The examples of this fact are grave violations of human rights in Nigeria, Burma, Pakistan, India, Sudan and in many other developed countries[2]. The fact that State power seems today to be weakening means the need to effective mechanisms to provide protection of human rights against illegal activities of non-state actors such as TNCs.

This article will thus examine the question of TNCs’ direct liability under international human rights law. We shall discuss the question of the legal responsibility of TNCs, and of possible ways to impose duties upon TNCs under international law, especially under international human rights law. First, we shall examine the question of TNC’s legal subjectivity under international law or, in other words, if a TNC can be considered as a subject of international law, so that the direct applicability of international norms to it can be envisaged. Then, we shall examine new developments within the international human rights discourse, trying to apply the human rights instruments directly to non-State actors.  

1. TNCs as Subjects of International Law

The view that only States are subjects of international law begun to be challenged by Philip Jessup[3] when he stated the hypothesis that individuals are in fact subjects of international law.

A first criticism of the classical approach is the fact that States are the sole source of authority and law in the international system does not lead to the conclusion that they are the only subjects of international law: "The international system is a system of States, made by States, perhaps largely - still - for States, but not only for States. Law is made by States, and by their laws States have created (or recognized) other entities, and have given them status, powers, rights, responsibilities and remedies, within the international system."[4] Furthermore, in one of the cases, the International Court of Justice has asserted that subjects of international law are different, as are the rights and obligations held by them: "The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights"[5].

Thus, nothing should prevent TNCs from being seen as subjects of international law. The mere existence of international norms applying directly to them allows us to regard them as international legal subjects.[6] There are certain international instruments in different areas that grant TNCs a range of rights[7], impose directly on TNCs international obligations[8] (for instance, not to interfere with the internal affairs of a host country)[9], address to regulate the behavior of TNCs on the international level[10]. Hence, the fact that TNCs have international rights and obligations is evidence that TNCs can be considered as subjects of international law, because international subjectivity stems from the fact of enjoying  rights asserted and protected under international law and having obligations imposed on by legal instruments.[11]

2.Being a subject of international law TNCs can be directly liable for breach of international law.

After the Second Word War, the criminal law of some countries, mainly from the common law system, came to recognize the concept of corporate criminal liability.[12]

According to the independent research foundation (Fafo), founded by the Norwegian Confederation of Trade Unions in 1982, there are certain provisions of the criminal codes in a number .of countries: Canada, France, the United Kingdom, the United States, and Norway, -  that make it possible for a business entity to be prosecuted for war crimes or crimes against humanity committed outside those countries[13].

Furthermore, this concept is used in the European States; in particular, in 1988 the Council of Europe recommended those member States whose criminal law had not yet provided for corporate criminal liability to reconsider the matter.[14] Thus, the criminal responsibility of corporations is emerging as a well recognized concept on the national level. This trend is acknowledged by different authors[15], including Roberto Ago, Special Reporter of the ILC on State responsibility[16]. Other examples revealing this trend are the developments within the Council of Europe of a project for a convention on the protection of environment by penal law, where the penal legal responsibility of legal persons is inscribed.[17]

One of the sources of international law is "the general principles of law recognized by civilized nations"[18]. If criminal corporate responsibility is recognized within the domestic systems, then it can be recognized on the international level.[19] A starting point for the liability of TNCs under international law is the Universal Declaration of Human Rights (UDHR), where the preamble states that “every organ of society” is bound to abide by its substantive human rights provisions.[20] Furthermore, the existence of such international instruments as ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy(16.11.1977) in International Legal Materials, 1978,15 ;OECD (1997) The OECD Guidelines for Multinational Enterprises mean that they can be useful points of reference for national governments that wish to impose biding domestic duties on TNCs. The most comprehensive proposed outline of human rights duties for TNCs is the "United Nations Norms on Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights"[21]. The current document envisages enforceability of the norms by "national courts or international tribunals, pursuant to national and international law".[22]

Since TNCs can be regarded as subjects of international law in light of existing international positive norms that are directly regulating their behavior, taking into consideration recent developments that are changing the concept of the international human rights protection by including non-State actors’ responsibility, customary principle that states individual responsibility for violations of jus cogens norms we can conclude that TNCs  have direct responsibility for breaches of human rights law. At this point it is necessary to answer whe all international legal instruments mentioned above are effective tools for comprehensive protection of individuals from illegal activities of TNCs. The answer is not positive. There are several reasons for that but the main one is the absence of obligatory norms of international law. Treaties and other international instruments analyzed above are considered to be so called “soft” law which has no binding effect on its subjects. Nevertheless, the recent developments of international law and efforts of international community to impose on TNCs legal responsibility are regarded to be the first steps to ensure that human rights are not just ideals but also a reality.