Corporations (TNCs) have come under increasing public scrutiny for their involvement in human rights violations, particularly in developing countries. One may think of child and slave labor in the supply chain, cooperation with violent or corrupt regimes, and grand scale environmental pollution. Legal protection for victims of human rights violations against transnational corporations is poor. Public international law protects the freedom of trade but does not regulate the way companies use this freedom. Moreover, it is disputed whether international human rights law can impose obligations on companies. This has triggered the question what role national tort laws can play to fill this protection gap.
For understanding the incorporation between the Human Rights and Law of tort we need to be familiarized with the two terms beforehand.
Human rights are commonly understood as “inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being.” Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in both national and international law. The doctrine of human rights in international practice, within international law, global and regional institutions, in the policies of states and in the activities of non-governmental organizations, has been a cornerstone of public policy around the world. In The idea of human rights it says: “if the public discourse of peacetime global society can be said to have a common moral language, it is that of human rights.” Despite this, the strong claims made by the doctrine of human rights continue to provoke considerable skepticism and debates about the content, nature and justifications of human rights to this day. Indeed, the question of what is meant by a “right” is itself controversial and the subject of continued philosophical debate.
Many of the basic ideas that animated the movement developed in the aftermath of the Second World War and the atrocities of The Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. The ancient world did not possess the concept of universal human rights. Ancient societies had “elaborate systems of duties… conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights”. The modern concept of human rights developed during the early Modern period, alongside the European secularization of Judeo-Christian ethics. The true forerunner of human rights discourse was the concept of natural rights which appeared as part of the medieval Natural law tradition that became prominent during the Enlightenment with such philosophers as John Locke, Francis Hutcheson, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution and the French Revolution.
From this foundation, the modern human rights arguments emerged over the latter half of the twentieth century. Gelling as social activism and political rhetoric in many nations put it high on the world agenda.
|“||All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.||”|
|—Article 1 of the United Nations Universal Declaration of Human Rights (UDHR)|
Classification of Human Rights
Human rights can be classified and organized in a number of different ways; at an international level the most common categorization of human rights has been to split them into civil and political rights, and economic, social and cultural rights.
Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR). Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The UDHR included economic, social and cultural rights and civil and political rights because it was based on the principle that the different rights could only successfully exist in combination:
The ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his social, economic and cultural rights.
—International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights, 1966
This is held to be true because without civil and political rights the public cannot assert their economic, social and cultural rights. Similarly, without livelihoods and a working society, the public cannot assert or make use of civil or political rights (known as the full belly thesis).
The indivisibility and interdependence of all human rights has been confirmed by the 1993 Vienna Declaration and Programme of Action:
All human rights are universal, indivisible and interdependent and related. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.
This statement was again endorsed at the 2005 World Summit in New York (paragraph 121).
Although accepted by the signatories to the UDHR, most do not in practice give equal weight to the different types of rights. Some Western cultures have often given priority to civil and political rights, sometimes at the expense of economic and social rights such as the right to work, to education, health and housing. Similarly the ex-Soviet bloc countries and Asian countries have tended to give priority to economic, social and cultural rights, but have often failed to provide civil and political rights.
Opponents of the indivisibility of human rights argue that economic, social and cultural rights are fundamentally different from civil and political rights and require completely different approaches. Economic, social and cultural rights are argued to be:
- positive, meaning that they require active provision of entitlements by the state (as opposed to the state being required only to prevent the breach of rights)
- resource-intensive, meaning that they are expensive and difficult to provide
- progressive, meaning that they will take significant time to implement
- vague, meaning they cannot be quantitatively measured, and whether they are adequately provided or not is difficult to judge
- ideologically divisive/political, meaning that there is no consensus on what should and shouldn’t be provided as a right
- socialist, as opposed to capitalist
- non-justiciable, meaning that their provision, or the breach of them, cannot be judged in a court of law
- aspirations or goals, as opposed to real ‘legal’ rights
Similarly civil and political rights are categorized as:
- negative, meaning the state can protect them simply by taking no action
- immediate, meaning they can be immediately provided if the state decides to
- precise, meaning their provision is easy to judge and measure
- real ‘legal’ rights
Olivia Ball and Paul Gready argue that for both civil and political rights and economic, social and cultural rights, it is easy to find examples which do not fit into the above categorization. Among several others, they highlight the fact that maintaining a judicial system, a fundamental requirement of the civil right to due process before the law and other rights relating to judicial process, is positive, resource-intensive, progressive and vague, while the social right to housing is precise, justiciable and can be a real ‘legal’ right.
Human rights violations
Human rights violations occur when actions by state (or non-state) actors’ abuse, ignore, or deny basic human rights (including civil, political, cultural, social, and economic rights). Furthermore, violations of human rights can occur when any state or non-state actor breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws, Article 39 of the United Nations Charter designates the UN Security Council (or an appointed authority) as the only tribunal that may determine UN human rights violations.
Human rights abuses are monitored by United Nations committees, national institutions and governments and by many independent non-governmental organizations, such as Amnesty International, International Federation of Human Rights, Human Rights Watch, World Organization Against Torture, Freedom House, International Freedom of Expression Exchange and Anti-Slavery International. These organisations collect evidence and documentation of alleged human rights abuses and apply pressure to enforce human rights laws.
In efforts to eliminate violations of human rights, building awareness and protesting inhumane treatment has often led to calls for action and sometimes improved conditions. The UN Security Council has interceded with peace keeping forces, and other states and treaties (NATO) have intervened in situations to protect human rights.
A tort, in common law jurisdictions, is a civil wrong. Tort law deals with situations where a person’s behaviour has unfairly caused someone else to suffer loss or harm. A tort is not necessarily an illegal act but causes harm and therefore the law allows anyone who is harmed to recover their loss. Tort law is different from criminal law, which deals with situations where a person’s actions cause harm to society in general. A claim in tort may be brought by anyone who has suffered loss. Criminal cases tend to be brought by the state, although private prosecutions are possible.
Tort law is also differentiated from equity, in which a petitioner complains of a violation of some right. One who commits a tortious act is called a tortfeasor. The equivalent of tort in civil law jurisdictions is delict. Tort may be defined as a personal injury; or as “a civil action other than a breach of contract.”
A person who suffers a tortious injury is entitled to receive “damages”, usually monetary compensation, from the person or people responsible — or liable — for those injuries. Tort law defines what a legal injury is and, therefore, whether a person may be held liable for an injury they have caused. Legal injuries are not limited to physical injuries. They may also include emotional, economic, or reputational injuries as well as violations of privacy, property, or constitutional rights. Tort cases therefore comprise such varied topics as auto accidents, false imprisonment, defamation, product liability (for defective consumer products), copyright infringement, and environmental pollution (toxic torts), among many others.
In much of the common law world, the most prominent tort liability is negligence. If the injured party can prove that the person believed to have caused the injury acted negligently – that is, without taking reasonable care to avoid injuring others – tort law will allow compensation.
However, tort law also recognizes intentional torts, where a person has intentionally acted in a way that harms another, and “strict liability” or quasi-tort, which allows recovery under certain circumstances without the need to demonstrate negligence.
Categories of torts
Torts may be categorized in several ways: one such way is to divide them into Negligence, Intentional Torts, and Quasi-Torts.
The standard action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to relief, in each case designed to protect legal rights, including those of personal safety, property, and, in some cases, intangible economic interests. Negligence actions include claims coming primarily from car accidents and personal injury accidents of many kinds, including clinical negligence, worker’s negligence and so forth. Product liability cases, such as those involving warranties, may also be considered negligence actions, but there is frequently a significant overlay of additional lawful content.
Intentional torts include, among others, certain torts arising from the occupation or use of land. The tort of nuisance, for example, involves strict liability for a neighbor who interferes with another’s enjoyment of his real property. Trespass allows owners to sue for entrances by a person (or his structure, such as an overhanging building) on their land. Several intentional torts do not involve land. Examples include false imprisonment, the tort of unlawfully arresting or detaining someone, and defamation (in some jurisdictions split into libel and slander), where false information is broadcast and damages the plaintiff’s reputation.
In some cases, the development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers’ compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside the traditional common law torts. These are loosely grouped into quasi-torts or liability torts.
Negligence is a tort which depends on the existence of a breaking of the duty of care owed by one person to another. One well-known case is Donoghue v Stevenson where Mrs. Donoghue consumed part of a drink containing a decomposed snail while in a public bar in Paisley, Scotland and claimed that it had made her ill. The snail had not been visible, as the bottle of beer in which it was contained was opaque. Neither the friend who bought the bottle for her, nor the shopkeeper who sold it, were aware of the snail’s presence. The manufacturer was Mr. Stevenson, whom Mrs. Donoghue sued for damages for negligence. She could not sue Mr. Stevenson for damages for breach of contract because there was no contract between them. The majority of the members of the House of Lords agreed (3:2 ratio) that Mrs. Donoghue had a valid claim, but disagreed as to why such a claim should exist. Lord MacMillan thought this should be treated as a new product liability case. Lord Atkins argued that the law should recognize a unifying principle that we owe a duty of reasonable care to our neighbors. He quoted the Bible in support of his argument, specifically the general principle that “thou shalt love thy neighbor.” Negligence is a breach of legal duty to take care resulting in damage to the plaintiff. This definition of negligence can be divided into four component parts that the plaintiff must prove to establish negligence. The legal burden of proving these elements falls upon the plaintiff. The elements in determining the liability for negligence are:
- The plaintiff was owed a Duty of care
- There was a Dereliction or breach of that duty
- The tortfeasor directly caused the injury [but for the defendant’s actions, the plaintiff would not have suffered an injury].
- The plaintiff suffered Damage as a result of that breach
- The damage was not too remote; there was proximate cause.
Duty of care
The first element of negligence is the legal duty of care. This concerns the relationship between the defendant and the plaintiff, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the plaintiff in all the circumstances of the case. There are two ways in which a duty of care may be established:
- The defendant and plaintiff are within one of the ‘special relationship’; or
- Outside of these relationships, according to the principles developed by case law.
There are a number of situations in which the courts recognize the existence of a duty of care. These usually arise as a result of some sort of special relationship between the parties. Examples include one road-user to another, employer to employee, manufacturer to consumer, doctor to patient and solicitor to client.
Dereliction or breach of that duty
Dereliction of duty generally refers to a failure to conform to rules of one’s job, which will vary by tasks involved. It is a failure or refusal to perform assigned duties in a satisfactory manner. Dereliction of duty on the part of an employee may be cause for disciplinary action, which will vary by employer. It may refer to a failure by an organization member to abide by the standing rules of its constitution or by-laws or perform the duties of the position appointed to.
Injury directly caused by the tort feasor
The negligent act of the tort feaser must be connected to the injuries suffered.
Damage as a result of that breach
For many torts, damage is a necessary part of the tort. Thus, it is not enough to demonstrate that you have suffered the wrong in order to win a tort case, you must also have legally recognized damages that were directly or indirectly caused by the as a result of the tort, and be able to prove the extent of those damages.
Proximate cause means that you must be able to show that the harm was caused by the tort you are suing for. The defense may argue that there was a prior cause or a superseding intervening cause. A common situation where a prior cause becomes an issue is the personal injury auto accident, where the person re-injures an old injury. For example someone who has a bad back is injured in the back in an auto accident. Years later they are still in pain. They must prove the pain is caused by the auto accident, and not the natural progression of the previous problem with the back. A superseding intervening cause happens shortly after the injury. For example, if after the accident the doctor who works on you commits malpractice and injures you further, the defense can argue that it was not the accident, but the incompetent doctor who caused your injury.
A statutory tort is like any other, in that it imposes duties on private or public parties, however they are created by the legislature, not the courts. One example is in consumer protection, with the Product Liability Directive in the European Union, where businesses making defective products that harm people must pay for any damage resulting. Liability for bad or not working products is strict in most jurisdictions. The theory of risk spreading provides support for this approach. Since manufacturers are the ‘cheapest cost avoiders’, because they have a greater chance to seek out problems, it makes sense to give them the incentive to guard against product defects. Another example is occupier’s liability, which was seen as overly complex and illogical, so many jurisdictions replaced the common law rules for occupiers’ liability with statutory torts. Statutory torts also spread across workplace health and safety laws and health and safety in food.
Legally, the term “nuisance” is traditionally used in three ways: (1) to describe an activity or condition that is harmful or annoying to others (example- indecent conduct, a rubbish heap or a smoking chimney); (2) to describe the harm caused by the before-mentioned activity or condition (example- loud noises or objectionable odors); and (3) to describe a legal liability (responsibility) that arises from the combination of the two. The law of nuisance was created to stop such bothersome activities or conduct when they unreasonably interfered either with the rights of other private landowners (example- private nuisance) or with the rights of the general public (example-public nuisance).
The tort of nuisance allows a claimant (formerly plaintiff) to sue for most acts that interfere with their use and enjoyment of their land. A good example of this is in the case of Jones v Powell. A brewery made stinking vapors which wafted onto a neighbor’s property, damaging his papers. As he was a landowner, the neighbor sued in nuisance for this damage. But Whitlock J, speaking for the Court of the King’s Bench, said that because the water supply was contaminated, it was better that the neighbor’s documents were risked. He said “it is better that they should be spoiled than that the common wealth stand in need of good liquor.” Nowadays, interfering with neighbors’ property is not looked upon so kindly. Nuisance deals with all kinds of things that spoil a landowner’s enjoyment of his property.
A subset of nuisance is known as the rule in Rylands v. Fletcher, where a dam burst into a coal mine shaft. So a dangerous escape of some hazard, including water, fire, or animals means strict liability in nuisance. This is subject only to a remoteness cap, familiar from negligence when the event is unusual and unpredictable. This was the case where chemicals from a factory seeped through a floor into the water table, contaminating East Anglia’s water reservoirs.
Defamation is tarnishing the reputation of someone; it has two varieties, slander and libel. Slander is spoken defamation and libel is printed or broadcast defamation. The two otherwise share the same features: making a factual assertion for which evidence does not exist. Defamation does not affect or hinder the voicing of opinions, but does occupy the same fields as rights to free speech in the First Amendment to the Constitution of the United States, or Article 10 of the European Convention of Human Rights. Related to defamation in the U.S. are the actions for misappropriation of publicity, invasion of privacy, and disclosure. Abuse of process and malicious prosecution are often classified as dignitary torts as well.
Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories, including torts against the person, to include assault, battery, false imprisonment, intentional infliction of emotional distress, and fraud. Property torts involve any intentional interference with the property rights of the claimant (plaintiff). Those commonly recognized include trespass to land, trespass to chattels (personal property), and conversion.
Economic torts protect people from interference with their trade or business. The area includes the doctrine of restraint of trade and has largely been submerged in the twentieth century by statutory interventions on collective labour law and modern antitrust or competition law. The “absence of any unifying principle drawing together the different heads of economic tort liability has often been remarked upon.”
Through a recent development in common law, beginning with Hedley Byrne v Heller in 1964, a victim of negligent misstatement may recover damages for pure economic loss caused by detrimental reliance on the statement. Misrepresentation is a tort as confirmed by Bridge LJ in Howard Marine and Dredging Co. Ltd. v A Ogden & Sons
Modern competition law is an important method for regulating the conduct of businesses in a market economy. A major subset of statutory torts, it is also called ‘anti-trust’ law, especially in the United States, articles 101 and 102 of the Treaty on the Functioning of the European Union, as well as the Clayton and Sherman Acts in the U.S., which create duties for undertakings, corporations and businesses not to distort competition in the marketplace. Cartels are forbidden on both sides of the Atlantic Ocean. So is the abuse of market power by monopolies (sole producers in a market) or the substantial lessening of competition through a merger, takeover, acquisition or concentration of enterprises. A huge issue in the EU is whether to follow the U.S. approach of private damages actions to prevent anti-competitive conduct.
Overlap with criminal law
There is some overlap between criminal law and tort, since tort, a private action, used to be used more than criminal laws in the past. For example, in English law an assault is both a crime and a tort (a form of trespass to the person). A tort allows a person, usually the victim, to obtain a remedy that serves their own purposes (for example by the payment of damages to a person injured in a car accident, or the obtaining of injunctive relief to stop a person interfering with their business). Criminal actions on the other hand are pursued not to obtain remedies to assist a person – although often criminal courts do have power to grant such remedies – but to remove their liberty on the state’s behalf. That explains why incarceration is usually available as a penalty for serious crimes, but not usually for torts.
The more severe penalties available in criminal law also mean that it requires a higher burden of proof to be discharged than the related tort. For example, in the O. J. Simpson murder trial, the jury was not convinced beyond reasonable doubt that O. J. Simpson had committed the crime of murder; but in a later civil trial, the jury in that case felt that there was sufficient evidence to meet the standard of preponderance of the evidence required to prove the tort of wrongful death.
Many jurisdictions, especially the US, retain punitive elements in tort damages, for example in anti-trust and consumer-related torts, making tort blur the line with criminal acts. Also there are situations where, particularly if the defendant ignores the orders of the court, a plaintiff can obtain a punitive remedy against the defendant, including imprisonment. Some torts may have a public element – for example, public nuisance – and sometimes actions in tort will be brought by a public body. Also, while criminal law is primarily punitive, many jurisdictions have developed forms of monetary compensation or restitution which criminal courts can directly order the defendant to pay to the victim.
Tort by legal jurisdiction
Legal jurisdictions whose legal system developed from the English common law have the concept of tortious liability. There are technical differences from one jurisdiction to the next in proving the various torts. For the issue of foreign elements in tort see Tort and conflict of laws.
- Australian tort law
- Canadian tort law
- English tort law
- Scots Law of Delict (broadly equivalent, deals more with principle rather than specific wrongs)
- United States tort law
- Irish tort law (see Irish Citizens Information Board)
In addition, other legal systems have concepts comparable to torts. See, for instance, the rabbinic category of Damages (Jewish law) (note though that while a few aspects of this law are incorporated into Israeli law, tort law in Israel is technically similar to English tort law – as enacted by British Mandate of Palestine authorities in 1944 and taking effect in 1947, a year before Israel became a state).
Finally, we have seen that there has on occasion been a conflict between Human Rights and the common law of tort. That question goes well beyond tort law. In my judgment this is a better way forward than the abolition of the right of individual petition. So, the difference is from the very beginning which is critical in the incorporation of the two.
Ergo, it is quite clear that legal protection for victims of human rights violations against corporations is poor and tort law in kind of making the situation more vulnerable. Public international law protects the freedom of trade but does not regulate the way companies use this freedom. Moreover, it is disputed whether international human rights law can impose obligations on companies.
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 Ronen Perry, The Role of Retributive Justice in the Common Law of Torts: A Descriptive Theory, 73 Tenn. L. Rev. 177 (2006).
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