Том 2, № 2 (2024)

This paper deals with how to make international law more de facto effective. There are countless conventions on topics such as human rights, environmental law, or, in our case, corruption prevention. The central thesis is that lawyers and policymakers can make existing treaties more effective using a multidisciplinary approach. It consists of the empirical studies of other science fields, including behavioural economics, sociology, and criminology. This approach is compatible with international law, specifically with the rules of interpretation laid out in the Vienna Convention on the Law of Treaties (hereinafter — VCLT), through an evolutionary interpretation. An effective anticorruption policy needs to be tailor-made for the specific country’s condition. The assumption that a successful approach in one state in one specific situation will necessarily be successful in another is flawed. This paper presents different policy concepts to curb corruption: rational choice, self-concept maintenance, principal-agent theory, and collective action problem. The concepts are evaluated through the lens of empirical studies. To exemplify this approach an application of the criterion “culture” will be shown. G. Hofstede discovered in his research different cultural dimensions: power distance, individualism, masculinity, and uncertainty avoidance. Each dimension has a unique interaction with corruption. These interactions explain why the same approach does not yield the same result. For example, a state that has a very high-power distance would not benefit as strongly from a principal-agent theory approach. In high-power distance countries the average citizen has little to no influence on the state’s politics. The accountability of principles, however, is one of the key elements of the principal-agent approach. On the contrary such an approach would certainly backfire. Giving principals more money and monitoring powers, as the approach suggests, would only consolidate existing structures. In a state with high accountability (low-power distance) this approach would strengthen the fight against corruption.

The vertical nature of international human rights norms presupposes states to be the addressee of human rights obligations. Therefore, there is no corporate liability for human rights abuses under international law. National legislation also does not contain any explicit rule that would allow to hold a parent company liable for human rights violations committed by its subsidiary or supplier abroad. Nevertheless, even in the absence of a clear legal basis, the national courts of Canada, France, the UK and the Netherlands, express their willingness to recognise the existence of responsibility to respect human rights on the part of corporations. Furthermore, modern case law of the aforementioned states represents possibilities to actually hold corporations liable under tort and criminal law for violations of this obligation. The reason for these “bottom — up” developments appears to be the shift of focus from corporate to victims protection. Corporate legal autonomy originated from strict corporate separation principle, as it becomes questionable nowadays. The need for the developments was born from a laissez-faire approach applied to corporations over the years that gave them the possibility to become invisible in their home states and therefore insulate liability for wrongdoings abroad. National courts of Canada, France, the UK and the Netherlands in course of their judicial practice invoke a great variety of possible causes of action to be the ground of imposing the responsibility to respect human rights on corporations and consequently holding them liable for violation of that obligation. Causes of action encompass international human rights law provisions, invocation of duty of care concept, human rights due diligence framework and criminal law provisions. However, the question whether any cause of action invoked by national courts in order to hold parent companies liable for human rights abuses committed by their subsidiaries or suppliers abroad meets the criteria of universality and applicability at the international level.