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Transnational corporations
Another possible candidate for international personality is the transna-
tional or multinational enterprise. Various definitions exist of this impor-
tant phenomenon in international relations.
266
They in essence constitute
264
See e.g. D. Fligler,
Multinational Public Corporations
, Washington, DC, 1967; Brownlie,
Principles
, pp. 65–6, and D. A. Ijalaye,
The Extension of Corporate Personality in Interna-
tional Law
, Leiden, 1978, pp. 57–146. See also P. Muchlinski,
Multinational Enterprises
and the Law
, updated edn, Oxford, 1999.
265
Cited in Ijalaye,
Corporate Personality
, p. 69.
266
See e.g. C. W. Jenks, in
Transnational Law in a Changing Society
(eds. W. Friedman,
L. Henkin and O. Lissitzyn), New York, 1972, p. 70; H. Baade, in
Legal Problems of
a Code of Conduct for Multinational Enterprises
(ed. N. Horn), Boston, 1980; J. Char-
ney, ‘Transnational Corporations and Developing Public International Law’,
Duke Law
Journal
, 1983, p. 748; F. Rigaux, ‘Transnational Corporations’ in Bedjaoui,
International
Law: Achievements and Prospects
, p. 121, and Henkin
et al.
,
International Law: Cases
250
i n t e r nat i o na l l aw
private business organisations comprising several legal entities linked to-
gether by parent corporations and are distinguished by size and multi-
national spread. In the years following the
Barcelona Traction
case,
267
an
increasing amount of practice has been evident on the international plane
dealing with such corporations. What has been sought is a set of guidelines
governing the major elements of the international conduct of these enti-
ties.
268
However, progress has been slow and several crucial issues remain
to be resolved, including the legal effect, if any, of such guidelines.
269
The
question of the international personality of transnational corporations
remains an open one.
270
and Materials
, p. 368. See also Muchlinski,
Multinational Enterprises
; C. M. Vazquez,
‘Direct vs Indirect Obligations of Corporations under International Law’, 43
Columbia
Journal of Transnational Law
, 2005, p. 927; F. Johns, ‘The Invisibility of the Transna-
tional Corporation: An Analysis of International Law and Legal Theory’, 19
Melbourne
University Law Review
, 1993–4, p. 893; D. Eshanov, ‘The Role of Multinational Corpo-
rations from the Neoinstitutionalist and International Law Perspectives’, 16
New York
University Environmental Law Journal
, 2008, p. 110, and S. R. Ratner, ‘Corporations
and Human Rights: A Theory of Legal Responsibility’, 111
Yale Law Journal
, 2001,
p. 443.
267
ICJ Reports, 1970, pp. 3, 46–7; 46 ILR, pp. 178, 220–1.
268
See e.g. OECD Guidelines for Multinational Enterprises, 75 US Dept. State Bull., p. 83
(1976), and ILO Tripartite Declaration of Principles concerning Multinational Enterprises
and Social Policy, 17 ILM, pp. 423–30. See also Baade,
Legal Problems
, pp. 416–40. Note
the OECD Principles of Corporate Governance, 1998 and the ILO Tripartite Declaration
of Principles concerning Multinational Enterprises and Social Policy, 2000. See also the
Draft Norms on Responsibilities for Transnational Corporations and Other Business En-
terprises with Regard to Human Rights produced by the UN Sub-Commission on the
Promotion and Protection of Human Rights’ Sessional Working Group on the work-
ing methods and activities of transnational corporations, E/CN.4/Sub.2/2002/13, August
2002, and
Human Rights Standards and the Responsibilities of Transnational Corporations
(ed. M. Addo), The Hague, 1999.
269
See the Draft Code of Conduct produced by the UN Commission on Transnational Cor-
porations, 22 ILM, pp. 177–206; 23 ILM, p. 627 and
ibid.
, p. 602 (Secretariat report on
outstanding issues); E/1990/94 (1990) and the World Bank Guidelines on the Treatment
of Foreign Direct Investment, 31 ILM, 1992, p. 1366. The Commission ceased work in
1993. The Sub-Commission on the Promotion and Protection of Human Rights adopted
‘Norms on the Responsibilities of Transnational Corporations and Other Business Enter-
prises with Regard to Human Rights’ in 2003: see E/CN.4/Sub.2/2003/12/Rev.2. Note the
Andean Group commission decision 292 on a uniform code on Andean multinational
enterprises, 30 ILM, 1991, p. 1295, and the Eastern and Southern African states charter
on a regime of multinational industrial enterprises,
ibid.
, p. 696. See also the previous
footnote.
270
The
Third US Restatement of Foreign Relations Law
, St Paul, 1987, p. 126 notes that the
transnational corporation, while an established feature of international life, ‘has not yet
achieved independent status in international law’.
t h e s u b j e c t s o f i n t e r nat i o na l l aw
251
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