Part II: What do social media platforms and the Russian company Nornickel have in common? In search of a form of international liability for legal persons. [Opinion]

PART II

Social media and the environment have one common denominator: both fields need a strict international legal approach, as shown by the examples of Trump’s social media ban and the Norilsk diesel-oil spill. These issues could be addressed by creating an international legal framework as discussed in Part I and by establishing a neutral global oversight mechanism to oversee these two sensitive areas and to check their conformity with future internationally agreed treaties and guidelines. In this Part, possible oversight mechanisms will be explored within the domains of IHRL and international criminal law. 

SMPs’ oversight mechanism

What could be the external oversight mechanism for SMPs? Since IHRL is primarily state-centric and no legally binding obligations for companies can be derived from human rights treaties or guidelines (see Part I), it will be difficult for human rights treaty bodies (e.g. UN Human Rights Committee) to enforce compliance with international human rights standards. The same is true for possible oversight mechanisms in the field of international criminal law. International criminal courts or tribunals have to date no personal jurisdiction over legal persons (including SMPs), with the exception of the Special Tribunal for Lebanon. Therefore, SMPs could not be brought before, for instance, the ICC, when they are aiding or abetting the commission of an international crime through their content moderation practice. 

Given that international law does not provide for a suitable oversight mechanism for SMPs yet, some SMPs have created their own supervisory body. For instance, Facebook adopted the Oversight Board, which consists of 40 members from all over the world, and which oversees Facebook’s content moderation decisions on the basis of a request for review made by its users or by Facebook itself (art. 1 and 2 Charter of the Oversight Board). One of the decisions the Oversight Board will soon review, is the suspension of Trump’s account on Facebook and the question whether this ban should be permanent.

Should SMPs’ content moderation decisions be reviewed by non-independent, private bodies? One can question the independence of, for example, Facebook’s Oversight Board since its members are selected by Facebook itself (art. 1.8 Charter of the Oversight Board). Hence, a neutral oversight mechanism in collaboration with relevant stakeholders (e.g. SMPs) should be established at the international level. Such a self-regulatory mechanism can work if certain conditions are met like independence, responsibility, transparency, efficacy, and inclusion of civil society actors. This independent supervisory mechanism, which would review content moderation decisions taken by SMPs, should consist of representatives of all relevant stakeholders. Its decisions should be binding for SMPs and should be made available to the public.

Environmental crime oversight mechanism

Corporate environmental responsibility is often overlooked in criminal legal discourse. Often, the natural person is taking all the risks, while the legal person is protected by legal boundaries. Whereby these natural persons are mid-level management employees who are used as “sacrificial lambs”. In this way many corporate entities hide behind their international structures. As a result, there is impunity

There are more and more calls by the international community to regulate environmental harm caused by multinational corporations via an international oversight mechanism. The idea of an international crime of ecocide is not an entirely new one. It emerged within the second half of the last century following the usage of Napalm in the Vietnam War and other environmental disasters. Recently the campaign has received more and more attention. In this light Pope Francis expressed his support for an international crime of ecocide in 2019. Following the introduction of a proposed bill by the Belgian Green Party in July 2020 to make ecocide the fifth crime under the Rome Statute of the ICC, the Belgian Minister of Foreign Affairs, Sophie Wilmès, issued a statement in favour of this suggestion in December 2020. This was the first time the idea was directly endorsed by a state government, which is a welcome development and another step towards the goal of an international oversight mechanism for corporate liability in cases of environmental harm. This endorsement was taken up by the European Parliament in 2021, which urges “the EU and the Member States to promote the recognition of ecocide as an international crime under the Rome Statute of the International Criminal Court.” 

The call for the prosecution of an international crime of ecocide at the ICC is getting louder and stronger. Following the tradition of the Rome Statute crimes, ecocide would be the fifth codified international crime. In the light of the experience of the ICC as a neutral judicial body in international criminality, it seems logical to place ecocide under its roof and have jurisdiction over ecocide and exert oversight of gross environmental wrongdoing. Nevertheless, it has to be kept in mind that the ICC does suffer from structural deficiencies, especially with key nations such as the U.S., China and Russia not on board. Furthermore, the ICC in its current state exercises jurisdiction only over natural persons. These issues have to be considered carefully so that the crime of ecocide does not end as a “lame duck”. Lately the incorporation of a crime of ecocide under the Rome Statute of the ICC is a welcome and strong development in order to tackle international environmental harm through potentially criminal acts. The ICC as a neutral legal oversight and enforcement mechanism could be a cornerstone for international relations and global environmental protection.

It appears that the global legal system still tolerates a structure of organised irresponsibility in environmental issues to benefit the major polluters. The same applies to SMPs, which can unconditionally and unchecked moderate social media content, thereby affecting the right to freedom of opinion and expression of their users. Both the uncontrollability of social media content moderation and the global effects of environmental crime, do underline a need for stronger international guidance within these areas. As outlined in Part II, it is about time to supervise both domains through international oversight mechanisms.

 

This article was written by Eline Labey and David Krott. 

Eline Labey is a PhD candidate at the Vrije Universiteit Brussel (VUB), specializing in international criminal law and international human rights law. She earned her LLM in international law from the University of Cambridge.

David Krott works as a research assistant at the FH Aachen (Germany) and is a PhD candidate at the VUB, specialising in international environmental criminal law. He earned his LLM from the University of Otago.

David Krott

David Krott works as a research assistant at the FH Aachen (Germany) and is a PhD candidate at the VUB, specialising in international environmental criminal law. He earned his LLM from the University of Otago.