Enforcement of a Global Code of Conduct on TNC’s Operations

Despite a number of failed attempts at creating a binding instrument governing the responsibilities of transnational corporations, the United Nations has established an open-ended intergovernmental working group (OEIWG) mandated to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The OEIWG will face many questions, including those related to (1) the scope of the rights the instrument will protect; (2) the range of businesses it will govern; (3) the obligations that it will impose on states vis-à-vis transnational corporations and their related entities; (4) whether it will apply directly to transnational corporations; (5) the array of remedies that the instrument might provide to those who have been harmed by breach; and (6) the fora and form of dispute resolution recommended for enforcement. Although all 6 of the questions above are intertwined, this chapter will focus upon matters arising under questions (5) and (6). This chapter will consider and evaluate three potential enforcement options: (1) alignment between the international instrument developed by the OEIWG and domestic enforcement methods; (2) international mediation and arbitration; and (3) the creation of an international court. The chapter will also consider whether the variety of powers that the relevant enforcement body has should include powers to punish misconduct as well as compensate those harmed by misconduct.