Economic History is a discipline not so distant from Law when it comes to understanding the complexity of relations mingling with the power of National States expressed by their faculty of producing law within a territory, and that of commercial enterprises. French economic historian Philippe Norel advances the thesis that long distant traders have made considerable efforts since ancient times to circumvent those regulations imposed by political powers. As a matter of fact, the idea of the existence of natural laws governing commerce has been upheld by liberal authors such as Adam Smith. Applied to Norel's thesis, the Smithian paradigm may tell us that cross-border commerce could be understood as a force indifferent to Law and struggling to shape it to its own advantage in the long run. Worry may arise if one considers that what we could call the laws of commerce do not necessarily correspond to the humanist ideals expected to command the action of the States and expressed by them. Globalization brings to this question a new dimension, that of a deeper disconnection between the political sphere and the economic sphere; better yet, our 'second globalization' rips the Transnational Firm (TF) out of the orbit of State-power and State-law. The question of the morality of firms has been long posed by both economists and jurists, and it regains relevance when one enquires about the respect of norms considered natural and universal by individual States and by the International Community.
[...] The question is therefore that of the actual adhesion of corporate actors to existing international norms, and not the existence of norms itself. As a consequence of what we would like to call "délaissement du Droit" (inconsideration of Law), the issue of corporate violations of humanitarian norms is took over by entities whose action is ranges out of the sphere of Law, specially NGOs. The question of responsibility and most importantly that of compensation is somehow extracted from the domain of legality, to be brought into the domain of charity; from the domain of justice into that of humanitarian relief. [...]
[...] European Union member States have since 1988 been recommended by the Council of Europe[12] to adopt the principle of corporate criminal liability[13]. France for instance has complied with the Counsel's exhortations, and has amended its Code pénal in 1992[14]: "les personnes morales, à l'exclusion de l'Etat, sont responsables pénalement selon les distinctions des articles 121-4 à 121-7 et, dans les cas prévus par la loi ou le réglement, des infractions commises pour leur compte par leurs organes ou représentants" (art. [...]
[...] Beth STEPHENS "The Amorality of Profit: Transnational Corporations and Human Rights", Berkeley Journal of International Law, vol www.universalis.fr Norel 2004. The author identifies the Carolingian era (751-987) as the beginning of the Long Distance Trader's pressure upon political powers, op cit . in An Inquiry into the Nature and Causes of the Wealth of Nations I use the distinction brought by MIT economic historian Suzanne Berger between a 'first globalization' (1870-1914) and a second one (that experienced by our generation). [...]
[...] According to Monshipouri, "Indonesia produces more Nike products than any other nation, manufaturing 36% of the sneaker and apparel giant's commodities". Beth Stephens op. Cit. Keck and Sikkink Activists beyond borders. Ithaca: Cornell University Press. Professor and Chair of Quinnipac University's Political Science Department. As an example, the December 17th 1997 O.E.C.D Convention consecrates the criminal liability of moral persons for acts committed in the international ambit. However, it is only applicable if States legislate on the matter accordingly with the Convention. [...]
[...] Moreover, repressive jurisdictions, as far as corporations are concerned, are essentially national. It is then easy to understand that the action being public TFs acting in compliance with laxist or corrupted States rest criminally irresponsible. We could here again introduce the Kelsenian notion of positvation. A law becomes effectively positive not only with the actual compliance of the subjects, but also with the actual enforcement by authorities. In this sense, the dependence of corporate criminal responsibility mechanisms vis-à-vis national States is a clear obstacle to the positivation of national (or international for that matter) norms concerning such responsibility. [...]
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