Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Human rights and private law:
A growing and significant field of research

June 2018 – Private law scholarship is witnessing human rights law assume increasing importance. One example here is the question of whether a domestic parent company is directly liable for human rights injuries inflicted by a foreign subsidiary. Similarly, adherence to human rights standards in the manufacture of supply chain products is a subject of increased legislative attention.  
In the area of cross-border private law relations, a topic traditionally regulated by private international law provisions, courts are increasingly turning to human rights given that private international law regimes vary from country to country and have failed to keep pace with globalisation and its developments. Here human rights law offers a uniform legal baseline for all individuals and can serve as a safety net in the event these minimum standards are violated.



Institute director Holger Fleischer is addressing the topic of human rights in the context of his research in the area of social corporate responsibility. In an article authored jointly with Nadja Danninger, former research assistant at the Institute, he analyses developments in the treatment of corporate group liability – on the example of reforms undertaken in Switzerland and France – so as to reflect on the further development of German law.


Corporate group liability for human rights violations: Quo vadis?

 

They are found in increasing numbers: lawsuits filed against domestically located parent companies for human rights violations committed abroad by corporate group subsidiaries. The prospects of success depend on various factors, above all the question of the applicable law and the scope of monitoring and control duties in a group setting. In Germany, high court guidance is for the moment nowhere in sight, neither as regards conventional company law and group law nor in emerging organisational tort law (Deliktsorganisationsrecht). In light of this legal uncertainty, a growing number of voices are calling for swift legislative reforms. Recently, a group of public law scholars commissioned by several non-governmental organisations formulated a proposal for an “Act on the Obligation of Companies to Exercise Due Diligence in the Protection of Human Rights” (Gesetz über die unternehmerische Sorgfaltspflicht zum Schutz der Menschenrechte).

Developments in corporate group liability in France and Switzerland

Developments in some neighbouring countries have already flourished. France has recently introduced a law on the duty of care owed by a parent company and the company commissioning work. And in Switzerland legal and economic policymakers are considering the “Responsible Business Initiative” (Konzernverantwortungsinitiative), legislation contemplating the direct liability of Swiss companies for the conduct of its foreign subsidiaries and suppliers. A current article summarises these new developments and relates initial assessments from both countries; it concludes with several considerations on the further development of German law de lege lata und de lege ferenda.

Holger Fleischer/Nadja Danninger, Konzernhaftung für Menschenrechtsverletzungen: Französische und schweizerische Reformen als Regelungsvorbilder für Deutschland?, DB 2017, 2849–2857.

Corporate social responsibility (CSR) has for several years been a topic of enhanced legislative attention. In light of an economy that knows no national borders, it is an issue that carries consequences for globally linked procurement markets and supply chains. Increasingly, marketers and importers are being held accountable for the conditions under which a supplier’s products are manufactured, with attention being paid to aspects such as environmental standards and rules on child labour. In this respect, one can speak of the emergence of "supply chain law" (Lieferkettenrecht). A contribution by Holger Fleischer and Jakob Hahn examines the current status of supply chain law from a comparative perspective. The article is scheduled for publication in Issue 7 of the journal Recht der internationalen Wirtschaft:

Reporting duties on human rights standards in supply chains. An international survey

The effective implementation of human rights in commercial chains of production stands high on the policy agenda of national and international business law. In light of global procurement markets, focus lies not only on the foreign subsidiaries of domestic parent companies but also on the working and manufacturing conditions throughout the entire supply chain. Supply chain governance is now a central management task, and we see the initial conceptions of supply chain due diligence. In closing various governance gaps in global supply chains, the home countries of multi-national companies have various mechanisms at their disposal, ranging from “harder” duty-of-care standards (resulting in criminal or civil liability) to “softer” reporting duties. The latter comprise the central element of a slowly evolving but academically under-explored body of “supply chain law”.

The article offers an updated survey of the topic: It first details the international prerequisites for adherence to human rights standards in supply chains before offering a comprehensive look at special reporting duties – as grounded in human rights law – in foreign legal systems and at EU level. Thereafter the design of individual reporting duties is analysed and initial experiences with them are evaluated.

Holger Fleischer, Jakob Hahn, Berichtspflichten über menschenrechtliche Standards in der Lieferkette – eine internationale Bestandsaufnahme, Recht der Internationalen Wirtschaft 2018, 397 - 405.

 

Jürgen Basedow, emeritus director at the Max Planck Institute for Comparative and International Private Law, strives to clarify the relationship between private international law and human rights law in a draft resolution that he has formulated.

 

Globalisation, private international law, and human rights

 

In cross-border legal disputes, it is private international law that answers the following questions: Whose national courts have jurisdiction? Which national law is applicable? To what extent can a judgment be enforced in a different country? Yet private international law – despite what its name might suggest – is in fact national and not international law. That is to say, every country has its own regime of private international law, with its scope of application ending at the national border. An inadequate level of international coordination regularly produces friction between the various legal systems and can sometimes lead to individual citizens being deprived of certain rights. Such aggrieved citizens are, with greater frequency, turning to human rights.

Different countries, different legal assessments

The central challenge addressed by this research project can best be illustrated through the following scenarios:

A British scientist who has been hired by an international research organisation based in Darmstadt is involved in a dispute with his employer about the right salary classification. In a proceeding before the labour tribunal, the research organisation asserts the immunity it enjoys in Germany, i.e. the place where the organisation has its seat. But where else should the claimant bring suit? He lives in Darmstadt and has no connections that could serve as a basis of jurisdiction in courts of other countries. After an unsuccessful procession through the courts of Germany, it is only a claim filed with the European Court of Human Rights in Strasbourg that might help. There, the Court concludes that the universal right of access to justice means that the rules on immunity must be interpreted narrowly such that they cannot be used to preclude employment law actions brought by one's own employees.

A married couple desperately wants children but is diagnosed as infertile after a number of years in which they failed to conceive a child. While the man produces sperm cells and the woman has eggs capable of being fertilised, the fertilised eggs cannot successfully implant themselves in her uterus. The couple does not wish to adopt a non-biological child. A child of their own can be obtained only if a surrogate mother is willing to carry and deliver the child of the intended parents. Although this is forbidden in many countries, including Germany and France, it is allowed in certain states in the USA, e.g. California, where the law provides for a special procedure when entering into a surrogate mother contract. If the procedure is followed, the intended parents are entered in the birth register as the parents. The couple travels to California and locates a surrogate mother, who later gives birth to the child of the intended parents. Upon return to Germany, they want to register their child with the local authorities, but the responsible office refuses to register the woman as the mother of the child because under the BGB the mother is the woman who gave birth to the child. German law is applicable in their case because all the involved parties are Germans and the child lives in Germany. Here, too, resolution is achieved by means of a complaint filed before the European Court of Human Rights: the Court finds that the child’s right to respect for his private life is injured where a country party to the European Convention on Human Rights does not recognise the child’s established ancestral identity.

The limits of private international law


The depicted cases are paradigmatic for the problems that increasingly arise in everyday life in the present era of globalisation. Traditionally, private law relationships having a cross-border dimension were regulated by private international law. It is a field of law that determines whose national courts have jurisdiction, which national law is applicable and the extent to which a judgment of one country can be enforced in another. Yet private international law rules often vary from country to country. And with increasing frequency the lack of coordination between these rules proves to be an obstacle to the further internationalisation of life. Where moving to another land means individuals will be uncertain whether their personal status will be the same as in their home country, whether they will have meaningful access to the justice system, and whether judgments they possess will travel across the border with them, then they can be expected to think twice before deciding to act on an opportunity existing outside their own national borders. In this regard the development of private international law has not kept pace with the evolution of everyday life, with the opening of borders, with the significant increase in the flow commerce and capital, and with large scale migration.

Human rights as a safety net

There exist different vehicles for overcoming this shortcoming. The global unification of private international law as strived for in the past through public international law treaties reflects a history of only partial success. Similarly, we cannot always trust that the involved parties will always be able to avoid potential problems through the precautionary means of jurisdictional agreements and choice-of-law clauses. Accordingly, in the last two decades we have witnessed a slowly growing belief that human rights law could be of value in tempering the most pronounced coordination weaknesses of private international law.

Human rights are premised on the notion that all individuals are uniformly endowed with certain minimum rights independent of nationality and domicile; wherever private international law acts to undercut this minimum level of protection, human rights function as a safety net. Yet notwithstanding the merit behind the theory, the intended protection can only gradually develop, for human rights are formulated in soft, general terms. Their concrete scope and meaning is established only over the course of time through isolated rulings of international courts, and this often in unique cases which do not readily allow the derivation of general legal principles. Last but not least, the process of developing coherent case law is complicated further by the composition of such courts, their featuring judges having different nationalities and different cultural perceptions.

Growing significance of research in the field of “human rights”

What we find in the meantime is a research field of growing importance. First steps in this direction have been taken by Jürgen Basedow, emeritus director at the MPI for Comparative and International Private Law in Hamburg. As rapporteur of the Institute of International Law (Institut de droit international), he has undertaken a first review of international jurisprudence and condensed his findings in a draft resolution that was presented at the Hyderabad session in 2017 and that is to be further discussed in two years in the Hague. It is the objective of the resolution, as well as the aim of the Institute of International Law, that it should provide an impetus for the further development of court jurisprudence and legal scholarship across all countries.

Droits de l'homme et droit international privé – Human Rights and Private International Law, in: Annuaire de l'Institut de Droit International 2016, Editions A. Pedone, Paris 2017, 391–453.