Human Rights and Corporate Wrongs

Human Rights and Corporate Wrongs

Closing the Governance Gap

Corporations, Globalisation and the Law series

Simon Baughen

The effects of globalisation, together with the increase in foreign investment and resource development within the developing world, have created a context for human rights abuses by States in which transnational corporations are complicit. This timely book considers how these ‘governance gaps’, as identified by Professor John Ruggie, may be closed. Simon Baughen examines the status of corporations under international law, the civil liability of corporations for their participation in international crimes and self-regulation through voluntary codes of conduct, such as the 2011 UN Guiding Principles.

Chapter 7: Customary international law as a cause of action outside the US

Simon Baughen

Subjects: business and management, corporate social responsibility, law - academic, corporate law and governance, human rights, public international law, politics and public policy, human rights


Under the ATS, the violation of certain jus cogens norms of international criminal law to which private persons are subject, has been held to create a civil cause of action. This chapter will consider whether this cause of action is a peculiarly US phenomenon which looks doomed to extinction after Kiobel or whether such a cause of action would subsist in other jurisdictions. The critical question is whether violations of customary international law (CIL) generate a distinct cause of action under UK law. The answer to this question depends upon how the UK courts have dealt with the relationship between international law and domestic law. There are two doctrines on this issue. The first is the doctrine of incorporation under which the rules of international law are incorporated into UK law automatically and are considered to be part of UK law unless they are in conflict with an Act of Parliament. The second is the doctrine of transformation under which the rules of international law are not to be considered as part of UK law except insofar as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long-established custom. In criminal proceedings the theory of transformation has been applied.

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