Transterritorialidade – Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos, Ana Claudia Ruy Cardia Atchabahian (Lumen Juris, 2020)

Abstract

When evaluating the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs), some may claim that the State’s duty to protect (Pillar 1) has been fulfilled with the adoption of National Action Plans; and that the corporate responsibility to respect human rights (Pillar 2) has been fulfilled by calls for companies to act responsibly through initiatives that seek to make them aware of social expectations. However, the effectiveness of both types of initiatives to bring about real changes in people’s lives is open to criticism. Access to remedy (Pillar 3) is notoriously the weaker pillar of the UNGPs.1 In Transterritorialidade – Uma Teoria de Responsabilização de Empresas por Violações aos Direitos Humanos (Transterritoriality – A Theory of Corporate Accountability for Human Rights Violations), Ana Claudia Ruy Cardia Atchabahian confronts this reality. The book is law-oriented and will mainly appeal to those with a legal background, perhaps less to a business audience. The theory presented is developed from the realization that Pillar 3 is neglected by both states and businesses. The author is on a quest for instruments that can ensure corporate accountability for human rights violations. First, the book presents the reasons for choosing access to remedy as a research topic; then it analyses existing instruments and initiatives to promote redress, and how they fall short of what is promised and desired. Finally, the author proposes her own theory, which revolves around the application of extraterritoriality, but in such a way that it increases the chances that the substantive law applied is victims-centred. The first chapter delivers the backdrop to Atchabahian’s concerns, namely the postWorld War II reconstruction of countries based on consumption, and the consequent dependence on companies that produce goods and services, which are attracted to countries in exchange for a portion of sovereignty. Investments, economic prosperity, and the possibility of consumption bring a sense of security that blinds people to the human and environmental costs of this arrangement. International law coping with this situation is fragmented, leading to insecurity that is reinforced by the actions of transnational corporations. States, voluntarily or not, fail to protect individuals. The author identifies this as a violation of Douzinas’ ‘ethics of alterity’, the ‘ethics before the being and the obligation before the others’ need or interest’ (p. 22). The response proposed is based on Amartya Sen’s ‘behavioural ethic’ (p. 22) whose normative framework arises from Gunther Teubner’s transnational or global law and the norms of international human rights law. Chapters 2 and 3 discuss corporate liability in existing initiatives, and their ability to produce redress. The UNGPs, the current UN process for drafting a treaty on business and human rights and domestic models (e.g., national action plans or specific legislation like the