Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games: Rethinking the Voluntary Approach to Corporate Social Responsibility

AuthorJeffrey Van Detta
PositionAtlanta's John Marshall Law School, Atlanta, Georgia, U.S.A.
Pages99-124
Jerey Van Detta, ‘Sexual Orientation, Human Rights, and Corporate
Sponsorship of the Sochi Olympic Games: Rethinking the Voluntary Approach
to Corporate Social Responsibility’ (2014) 30(78) Utrecht Journal of
International and European Law 99, DOI: http://dx.doi.org/10.5334/ujiel.cf
I. Introduction
Atos SE describes itself as “an international information technology services company with annual 2012
revenue of EUR 8.8 billion and 77,000 employees in 47 countries” that “delivers consulting and technology
services, systems integration and managed services” across “Manufacturing, Retail, Services; Public, Health &
Transports; Financial Services; Telecoms, Media & Technology; Energy & Utilities.1 Atos boasts of having an
“A+” rating in Corporate Social Responsibility through its voluntary reporting process.2 Atos also trumpets
its sponsorship of the 2014 Winter Olympic Games in Sochi, Russian Federation.3 Indeed, its sponsorship
is inextricably intertwined with an advertising campaign that fuses Atos’ identity as a major Sochi Games
sponsor with Atos’ marketing aspirations: “Atos leads the technology effort for the staging of the Games.
1 http://atos.net/en-us/home/we-are.html.
2 Atos Receives The Highest GRI Rating Of A+ For Its 2012 Corporate Responsibility Integrated Report, Press Release (3 July 2013)
http://atos.net/en-us/home/we-are/news/press-release/2013/pr-2013_07_02_01.html>. Atos’ annual CSR reports, which com-
menced in 2009, are available at
sibility-report-2012.html>.
3 .
Multi-national enterprises (MNEs) have provided substantial sponsorship for the Sochi Winter
Olympic Games despite a host-country government that has recently enacted stunningly harsh
legislation aimed at the Lesbian, Gay, Bisexual, Transgender, and Intersex (LGBTI) communities
within Russia. This is a Corporate Social Responsibility (CSR) problem. Should Europe address
it through voluntary corporate compliance, Europe’s historically preferred mode of promoting
CSR? Or should Europe reconsider whether it can more eectively promote CSR compliance
legislatively – and if so, by what kind of legislation? To honor the explicit and increased protec-
tions of human rights against sexual orientation discrimination in the Treaty of Amsterdam and
the Charter of Fundamental Human Rights, more than voluntary, good intentions are needed.
Particularly since the United States has eectively bowed out of enforcing CSR through the
American federal courts, there now exists a regulatory lacuna that the European Commission is
best situated to ll through the precision oered by judicious rulemaking. The article ultimately
proposes an approach that combines the public-pressure engine that fuels voluntary CSR with
public disclosures mandated by law to optimize the information and mobilization of public opin-
ion and pressure – factors particularly noteworthy given the powerful “branding” benets that
MNEs seek through Olympic sponsorship.
RESEARCH ARTICLE
Sexual Orientation, Human Rights, and Corporate
Sponsorship of the Sochi Olympic Games: Rethinking
the Voluntary Approach to Corporate Social
Responsibility
Jerey A. Van Detta*
* Atlanta’s John Marshall Law School, Atlanta, Georgia, U.S.A.
jvandetta@johnmarshall.edu
Keywords: Corporate Social Responsibility; LGBTI rights; Olympic sponsorship; Russian Federa-
tion; European Commission; Treaty of Amsterdam; Charter of Fundamental Human Rights; Cali-
fornia Supply-Chain Transparency Act; Mandatory Corporate Disclosure Laws
UTRECHT JOURNAL OF
INTERNATIONAL AND EUROPEAN LAW
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
100
This same effort and skills can help your company as you pursue record-breaking competitive advantage.”4
By making the brand of Atos synonymous with “The Olympics,” Atos has achieved a coup in marketing5 of
which few multi-national enterprises (MNEs) can boast.6
Yet in doing so, Atos—like the other MNEs that are sponsoring the Sochi Games—is aiding and abetting
a host-country government that has recently enacted stunningly harsh legislation aimed at the Lesbian,
Gay, Bisexual, Transgender, and Intersex (LGBTI) communities within Russia, as well as any non-Russians
who, within the reach of Russian law-enforcement, speak out in any way supportive of the LGBTI com-
munity.7 This recent legislation in Russia is often referenced by the bland title “Article 6.21 of the Russian
Code of Administrative Offenses,”8 but nests within Part 6 of that Code, which is more revealingly cap-
tioned “Administrative Offences Endangering the Health and Sanitary and Epidemiological Well-Being of
the Population and Endangering Public Morals.”9 The Section itself carries the title, “Propaganda of Non-
traditional Sexual Relations Among Minors.”10
Given some of the very serious allegations of aiding and abetting human rights violations that have been
made against E.U.-based MNEs, the role of MNEs like Atos in supporting an international athletic competi-
tion that happens to be hosted in a non-E.U. member state that has passed a municipal law that restricts
speech about matters of concern to the LGBTI communities in Russia and the E.U. might seem, by com-
parison, to be mild next to allegations of torture, extra-judicial killing, genocide, and mass imprisonment
made against a wide array of other governments that MNEs have supported. However, when we examine
the issue in its full context, the importance of the struggle by the LGBTI communities in Europe and else-
where for recognition of basic human identities and human rights demonstrates that legislation targeting
“disfavored” social groups must command our attention and elicit our great concern. The role of events like
the Olympic Games as exercises in sanitizing the image of a national government which has embarked on
persecution is too great to ignore or dismiss. Moreover, history itself commands that corporations confront
the problem.
The specter of the 1936 Olympic Games in Berlin still casts a pall over the zone where international sport
meets political power — as does the corporate sponsorship of those Games by the most iconic of American
corporate brands, Coca-Cola.11 This is by no means to suggest a crude comparison between the Third Reich
4 ibid.
5 See Daniel A Craig, Note, ‘Bad Sports: Has Olympic Brand Protection Gone Too Far?’ (2013) 9 South Carolina Journal of Interna-
tional Law and Business, 375 (observing that ‘[t]he Olympic rings are one of the most widely recognized symbols in the world,
and “evidence shows that only certain religious symbols are more widely recognized around the world than the logo of the five
interlaced rings”, representing a brand recently valued at US $ 47.6 million’)(quoting Alexandre Miguel Mestre, TMC Asser Instituut,
The Law of the Olympic Games (2009) fn 85).
6 A listing of the elite group of Official Worldwide Partners, Official Partners, Official Supporters, and Official Suppliers of the 2014
Sochi Games may be found at 4.php>.
7 For an English-language translation of § 6.21, see Erin Decker and Josh Wilson, Russia’s ‘Gay Propoganda’ Law: Russian Federal
Law #135-FZ’ (13 Aug 2013) SRAS . The term LGB, while common, is under-
inclusive, because it omits transsexual and intersexual persons, who face similarly invidious forms of societal discrimination. See
Rebbeca Juro, ‘Chris Hayes and the Tunnel Vision of the Elites, ‘The Bilerico Project’” (25 August 2013) .bilerico.
com/2013/08/chris_hayes_the_tunnel_vision_of_the_elites.php> (noting that ‘the story of the new anti-LGBTI propaganda laws
in Russia doesn’t begin and end with how they affect gays and lesbians since transgender Russians are every bit as much a target of
those laws’); Daniel Gandert and others, ‘The Intersection Of Women’s Olympic Sport And Intersex Athletes: A Long And Winding
Road’ (2013) 46 Indiana Law Review.
8 See eg Eric Sasson, ‘The Sochi Scandal Is Just Beginning: Just Because The Russian Government Says It Won’t Arrest Gay Athletes
Doesn’t Mean The Olympics Controversy Is Over’ (Salon 13, August 2013) .salon.com/2013/08/13/the_sochi_scan-
dal_is_just_beginning/>.
9 See Code Of Administrative Offences Of The Russian Federation, .russian-offences-code.com/>. The version of the
Code in English translation available on that website has not yet been updated to reflect the enactment of Section 6.21. See
> Leading Russian-law scholar William E Butler writes of this
Code that ‘[u]nder Russian legislation[,] anti-social behavior may be criminal, or it may fall into a category unknown to the Anglo-
American legal world: administrative offenses.’ W E Butler, Russian Law (Oxford 3d ed. 2009) § 6.160. Butler notes that ‘[i]t is
estimated that more than 30 million persons are brought to administrative responsibility in the Russian Federation each year.’ Id
at § 6.161.
10 See Decker and Wilson (n 7).
11 A fact that the present-day Coca-Cola Company neither denies nor seeks to explain, but simply relates as innocuous fact. See
Coca-Cola and the Olympic Games: Our Partnership History, at
b2f6eeb214290b6d.pdf> (stating that ‘Coca-Cola sponsored the 1936 Games, which were followed by a 12-year hiatus surround-
ing World War II’)(from the website of Cision, a public-relations software firm, see http://us.cision.com/); see Coca-Cola Ads In Nazi
Germany, ‘Adbranch- Evolution of the Advetising Industry’ (Adbranch, Feb 25 2011)t .adbranch.com/coca-cola-ads-
in-nazi-germany/>; Arnd Krüger and William Murray (eds), The Nazi Olympics: Sport, Politics and Appeasement in the 1930s (U Ill Pr
2003) p 42 (f n 98); Trevor Slack (ed), The Commercialisation of Sport (Routledge 2004), p 186.
Van Detta 101
and the Government of the Russian Federation, a false analogy readily refuted because it is grounded nei-
ther in logic nor in fact.12 Indeed, such a false analogy would be an ad hominem attack against the very
people who gave their lives in the millions to defeat the persecutions of the Reich. However, the issue of
corporate support for governments that significantly restrict human rights must be considered. The legacy
of corporate complicity in the rise and persecutions of human-rights oppressing governments — whether
the in 1930s Berlin, 1960s South Africa, or 21st century Russia — is a continuing problem to which we can-
not close our eyes or our minds.13 It was, is, and always will be, a problem of Corporate Social Responsibility
(CSR). The ultimate question examined in this article is whether this CSR issue should be dealt with through
modes of voluntary corporate compliance, the historically preferred mode of promoting CSR in the E.U.; or
whether the E.U. should take this opportunity to examine whether it can promote CSR compliance more
effectively by legislation that requires CSR as a matter of E.U. law, at least with respect to the vindication of
fundamental human rights.
This article concludes that the latter course has become appropriate, particularly for two reasons among
others. First, the explicit and increased protections of human rights against sexual-orientation discrimina-
tion in the E.U. Charter on Fundamental Human Rights (the “Charter”)14 and the European Convention
on Human Rights (“the Convention”)15 demand more of corporations headquartered or operating in the
E.U. than voluntary, good intentions, given the enormous powers they wield; these protections are only
meaningful if they are vindicated not only in government action, but also, in the business of MNEs, which
can have an even more profound impact on preserving those rights. Second, since the United States has
effectively bowed out of providing a legal means by which CSR can be enforced against MNEs in American
federal courts, there now exists a regulatory lacuna that the European Commission is best situated to fill by
the precision offered through judicious rule-making, rather than the haphazard and unpredictable course
of litigation in the municipal courts of any country.
The discussion proceeds in six additional sections. Section II examines the E.U.’s traditional approach to
CSR, particularly with its implications for promoting CSR in protecting fundamental human rights when
that protection clashes with powerful economic motives of profit-making. In Section III, we consider the
evolution of the legal recognition of LBGTI rights in the E.U., both through the Convention and the Charter,
and in decisions of the European Court of Human Rights and the European Court of Justice. A closer
examination of the 2013 Russian legislation is undertaken in Section IV, particularly from the perspective
of its effect on the objectives of the Convention and the Charter, and the dilemma it creates for MNEs
such as Atos. From that groundwork, we evaluate in Section V the efficacy of voluntary CSR for protecting
LBGTI human rights when MNEs are faced with incredibly lucrative opportunities as Olympic sponsors to
overlook them or play down the effect of Russia’s legislation on them, and we consider whether a legal
response by the E.U. would more strongly encourage compliance. Finally, in Section VI, a model for such
12 See Arnd Krüger and William Murray (eds), The Nazi Olympics: Sport, Politics and Appeasement in the 1930s (U Ill Pr 2003).
13 See eg Matt Lebovic, ‘Will Olympics in Russia be a second “Nazi Games”? Rising anti-gay violence and repressive new laws are
drawing comparisons between the Sochi 2014 winter games and Berlin 1936’, (The Times of Israel 13 August 2013)
www.timesofisrael.com/will-olympics-in-russia-be-a-second-nazi-games/>; Lisa Keen, ‘The Bottom Line On Olympic Sponsors’,
(Keen News Service, 21 September 2013), at .keennewsservice.com/2013/09/21/the-bottom-line-on-olympic-
sponsors/>.
14 The Charter of Fundamental Human Rights of the European Union, .
15 > For readers outside of the E.U., the distinction between the Charter and the Convention
may be confusing. The Convention (circa 1950) applies to all 47 member nations of the Council of Europe (which includes Russia);
the Charter (circa 2000) applies only in the 27 Council member nations that are also E.U. members. The ‘Charter’s prime objec-
tive is to make rights more visible,’ and rather than establishing ‘new rights,’ the Charter ‘assemble[s] existing rights that were
previously scattered over a range of sources including the European Convention on Human Rights and Fundamental Freedoms
(ECHR) and other Council of Europe (COE), United Nations (UN) and International Labour Organisation (ILO) agreements.’ While
the Convention ‘is applied directly by the national courts of each’ Council of Europe ‘country and by the European Court of Human
Rights (ECtHR) in Strasbourg,’ the Charter is enforced through rulings of the European Court of Justice (ECJ) in Luxembourg. How-
ever, the ECJ operates in a rather unique way with respect to the Charter, since it is typically not a court of first instance (except
as to litigation by persons ‘directly and individually’ concerned by a measure of an E.U. institution or body), nor an international
human rights court nor a court of appeal. Charter issues typically come before the ECJ when either the European Commission or
an E.U. member’s national courts refer cases to the ECJ. The relationship between the ECtHR and the ECJ has also not entirely been
clarified. While envisioned as one of ‘mutual respect’ and ‘cooperation,’ observers expect that ‘there should be a right of appeal
from the ECJ to the ECtHR when an act of the EU is challenged for violation of a right enshrined in the’ Convention. See
www.eucharter.org/home.php?page_id=66>. The inter-relationships between the two courts are helpfully detailed in Elena Butti,
The Roles and Relationship between the Two European Courts in Post-Lisbon EU Human Rights Protection, Jurist, 23 Sept 2013,
.php>. As Ms. Butti notes, ‘cross-references between the two courts
have been increasing over time,’ evidencing ‘a determination by both EU courts to avoid conflict with and to demonstrate deference
to the other court, contributing to the creation of a ‘uniform human rights standard.’ Id.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
102
regulation is proposed that strikes a careful via media between “suggested” and “coerced” CSR compliance.
That model takes as its starting point the approaches taken by a both an E.U. nation, and a non-E.U. juris-
diction, in using non-coercive law to encourage MNEs to take CSR more seriously, and synthesizes them
into an approach that combines the public-pressure engine that fuels voluntary CSR with public disclo-
sures mandated by law to optimize the information and mobilization of public opinion and pressure – fac-
tors particularly noteworthy given the powerful “branding” benefits that MNEs, like Atos, seek through
Olympic sponsorship. Section VII offers concluding thoughts.
II. The Traditional E.U. Approach to CSR Revisited from a Human Rights
Perspective
A. Preliminary Note on the Varying Denitions of CSR, and the Working Denition
for this Article
CSR has been described in an almost disorienting variety of ways. For example, CSR has been described in
terms of its “primary elements” as composed of “human rights, environment, labor, and anti-corruption
priorities.”16 Others have defined CSR through statistical examination of definitions gathered through litera-
ture review, out of which “five dimensions of CSR were identified through a content analysis of the defini-
tions” and distilled as the environmental dimension, the social dimension, the economic dimension, the
stakeholder dimension, and the voluntariness dimension.17 The first four dimensions “are merely different
categories of impacts from business” — which in sum total reflect “the recognition that business, as a pro-
ducer of economic wealth, does not only have economic impacts” — while the fifth dimension “implies that
the business should perform above regulatory requirements … [that] set the minimum performance level
deemed acceptable.”18 Still others have defined CSR as
… the core … idea that it reflects the social imperatives and the social consequences of business success.
Thus, CSR (and its synonyms) empirically consists of clearly articulated and communicated policies and
practices of corporations that reflect business responsibility for some of the wider societal good. Yet
the precise manifestation and direction of the responsibility lie at the discretion of the corporation.19
Corporate discretion is exercised through the relative weights given to each element when managing the
business “with … regard for financial performance, environmental consequences, and social impact.”20 The
ways in which management of any given corporation uses its discretion in striking a balance is reducible to a
number of archetypes: [1] the corporation that has “no ambition to be socially responsible and in fact [may]
be out of compliance with applicable” law; [2] the corporation that merely “complies with applicable laws
and perhaps engages in small amounts of generic corporate philanthropy, but does little beyond that”; [3]
the corporation that “moves beyond bare compliance but only does so where it would be profitable,” “view[s]
CSR primarily as a public relations matter, for particularly in consumer-focused industries, social responsi-
bility attracts customers and social irresponsibility repels them,” and “incorporate[s] … [CSR] considerations
at all levels of their operations and decision making, but only act[s] upon them when it would benefit
their financial bottom line”; [4] the corporation that “routinely balances economic, social, and environmen-
tal considerations” for reasons beyond compliance and profit out of a “motivat[ion] to ‘do good’” both for
“constituencies and for the planet – while still producing returns for their shareholders”; [5] corporations
that “integrate social responsibility principles into their strategy and business processes … such that” CSR
becomes “‘built in, not bolted on’”; and [6] corporations in which CSR “is fully integrated and embedded
in every aspect of the organization,” in that these “companies also redesign or ‘reengineer’ their business
models, financial institutions, and markets to identify and root out any underlying causes inconsistent with
social responsibility.”21
16 David Scheffer and Caroline Kaeb, ‘The Five Levels of CSR Complaince: The Resiliency of Corporate Liability under the Alien Tort
Statute and the Case for a Counterattack Strategy in Compliance Theory’ (2011) 29 Berkeley Int’l LJ 334, 334.
17 Alexander Dahlsrud, ‘How Corporate Social Responsibility is Defined: An Analysis of 37 Definitions’ (2008), 15 Corp So. Responsib
& Envron Mgt 1, 2-4.
18 ibid p 6.
19 Dirk Matten and Jeremy Moon, ‘“Implicit” And “Explicit” CSR: A Conceptual Framework For A Comparative Understanding Of
Corporate Social Responsibility’ (2008) 33 Acad Mgt Rev 404, 405.
20 Miriam A Cherry and Judd F Sneirson, ‘Beyond Profit: Rethinking Corporate Social Responsibility and Greenwashing After the BP
Oil Disaster’ (2011) 85 Tulane L Rev 983, 1010.
21 ibid at 1010-1013.
Van Detta 103
Considering what has been identified as CSR’s “primary elements”, “five dimensions,” and “archetypes”
of balancing among “financial performance, environmental consequences, and social impact,” it becomes
clear that CSR is “context specific for each individual business” and thus turns on the questions of “what are
the specific CSR issues to be addressed and how to engage with the stakeholders” affected by those issues.22
Thus, it can be fairly said that CSR is itself defined by an overriding question of “how CSR is socially con-
structed in a specific context.”23
With these parameters in mind, this article sets out to “socially construct” CSR “in the specific context”
of its human rights dimension. Because of the centrality of human rights to the E.U.’s very existence, the
author’s CSR working definition in the human rights context treats CSR’s imperative to go beyond the
minimal in protecting and promoting human rights to at least the level of the corporation that “routinely
balances economic, social, and environmental considerations” for reasons beyond compliance and profit out
of a “motivat[ion] to ‘do good’” both for “constituencies and for the planet – while still producing returns for
their shareholders.”24
B. The E.U.’s Approach to CSR
While CSR had been discussed to varying degrees in E.U. countries for a number of years25, the “launch”
of “a wide debate on how the European Union could promote corporate social responsibility at both the
European and international level in the E.U.” is the much-discussed Green Paper of 2001.26 The Green Paper
has been described as “neither binding nor explicit in its suggestions” since “EU green papers, by nature,
are policy papers intended to stimulate discussion among interested nongovernmental actors in a specific
policy area.”27 The debate sought here was discussion of the merits of a possible corporate code for the E.U.,
and from that discussion the objective was to “provide impetus for subsequent legislation.”28
On the subject of human rights, the Green Paper clearly envisions a dynamic area of CSR, one meriting
great attention as CSR “has a strong human rights dimension” in which “[c]ompanies face challenging
questions” that “presen[t] political and moral dilemmas” such as “how to identify where their areas of
responsibility lie as distinct from those of governments … and how to approach and operate in countries
where human rights violations are widespread.”29 The Commission also recognized that “[t]he European
Union itself has an obligation in the framework of its Co-operation policy to ensure the respect of …
human rights.”30 The link between CSR and the E.U.’s own self-conscious efforts to expand human rights
protection is clearly established in the Council’s observation that “[a]t a time when the” E.U. “endeavours
to identify its common values by adopting a Charter of Fundamental Rights, an increasing number of
European countries recognize their social responsibility more and more clearly and consider it as part
of their identity.”31 However, the E.U. Commission did not go farther, even as to human rights, in as
much as it declared that “[a]t this [2001] stage the Commission does not wish to pre-judge the outcome
of” the “debate on new ways of promoting corporate social responsibility” that would have inevitably
22 See Dahlsrud (n 17) 6.
23 ibid at 7.
24 ibid at 6.
25 Jan Wouters and Leen Chanet, ‘Corporate Human Rights Responsibility: A European Perspective’ (2008) 6 Nw J Int’l HR 262, 273
and n 60; Pall A Davidsson, ‘Note, Legal Enforcement of Corporate Social Responsibility Within The EU’ (2002) 8 Colum J Euro L
529, 536-537.
26 Commission Green Paper on Promoting a European Framework for Corporate Social Responsibility, COM (2001) 366 final (July 18,
2001) para , p 3 (hereinafter ‘2001 Green Paper’); see Pall A Davidsson (n 25) 537.
27 Joshua M Chanin, ‘“The Regulatory Grass Is Greener”: A Comparative Analysis of the Alien Tort Claims Act and the European
Union’s Green Paper on Corporate Social Responsibility’ (2005), 12 Ind J Global Leg Studies 745, 768-769.
28 ibid at 769 (quoting European Union Documents, Documents of Individual Institutions: European Commission).
29 EU Comm’n 2002 Green Paper, para 52, p 13.
30 ibid.
31 ibid para 8, p 4. These observations are congruent with the definition of ‘Human Rights’ offered in the Green Paper’s appendix:
Human Rights are based on the recognition of the inherent dignity and of the equal and inalienable rights of all mem-
bers of the human family is the foundation of freedom, justice and peace in the world. They are defined in the Universal
Declaration of Human Rights (1948). At the European level, Article 6 of the Treaty on European Union reaffirms that
the European Union “is founded on the principles of liberty, democracy, respect for human rights and fundamental free-
doms, and the rule of law, principles which are common to the Member States.” In addition the European Convention of
Human Rights adopted by the Council of Europe is legally binding in all Member States. Moreover, the European Charter
of Fundamental Rights adopted in Nice in December 2000 is the instrument inspiring respect for fundamental rights by
the European institutions and the Member States where they act under Union law.
ibid, p 24.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
104
resulted had it “ma[de] concrete proposals for action.”32 Rather, the Commission posed sets of questions
for consideration by various constituencies and on various specific issues33 – and about the E.U. itself, the
Commission posed the following questions:
The Role for the EU
What could the European Union do to promote the development of corporate social responsibility at
European and international level? In particular, should the EU add value and complement existing
socially responsible activities by:
- Developing an overall European framework, in partnership with the main corporate social
responsibility actors, aiming at promoting transparency, coherence and best practice in corpo-
rate social responsibility practices?
- Promoting consensus on, and supporting, best practice approaches to evaluation and verifica-
tion of corporate social responsibility practices?
- and/or by which other means?34
Some of the ideas that the Commission hoped would come out of the kinds of debate it foresaw in the wake
of the 2001 Green Paper were articulated in a separate undertaking by the United Nations, a U.N. Human
Rights Council-sponsored report released in 2011, known by the name of the Special Representative, John
Ruggie, who authored it, as the “Ruggie Report.”35 The Ruggie Report has been described as the U.N.’s “most
recent and ambitious attempt … to develop a human rights framework to tame global capital.”36 In the
Report’s view, “the root cause of today’s human rights disasters is not the profit-maximizing imperatives of
corporate capitalism but [rather] a ‘governance gap’ specifically created by globalization,” which [1] govern-
ments, for their part, can address “through market pressure—statutes to make ‘bad’ behavior cost more—and
through laws ‘responsibilizing’ high level corporate officials, by increasing corporate and individual liability,”
and which [2] MNEs, for their part, can address by implementing proactive measures that effectuate a corpo-
rate responsibility to “‘respect’” human rights, including by avoiding, through due diligence, “‘contribut[ing]
to abuse’” of human rights.37
Critics, however, have questioned whether “adopting voluntary, non-binding recommendations with no
independent monitoring process, really constitute[s] evidence of ‘success’?”38 They assert that “there is mini-
mal evidence that” such approaches have “transformed, or will transform, the behaviors of Multinational
Corporation (MNCs),” which function as “profit-seeking ‘amoral calculators.’”39 Among the reasons for such
a gloomy assessment include the sheer economic power wielded by large MNCs and the “’increasingly sym-
biotic relationships’” between states and MNCs, which have become “the institution[s] [on which the state]
now relies upon to provide employment, prosperity and economic growth (not to mention electoral success
for the party in power).”40
The problems with voluntary CSR—as currently understood to protect core European values from dimi-
nution by corporate activity (especially by corporate support of regimes that do not share those values)—is
illustrated in this article by means of a case study of corporate support for Russia’s Sochi Olympic Games in
the face of recent Russian legislation that a key European legal authority has found “incompatible with the
underlying values of the” Convention “and to be violations of Articles 10, 11 and 14 of the” Convention. In
32 ibid, para 93, p 23.
33 ibid, para 92, pp 22-23.
34 ibid, p 23.
35 UNHCR ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporta-
tions and Other Business Enterprises, John Ruggie’ and Annex: Guiding Principles on Business and Human Rights: Implementing
the United Nations ‘Protect, Respect and Remedy’ Framework (2011).
36 Steven Bittle and Laureen Snider, Examining the Ruggie Report: Can Voluntary Guidelines Tame Global Capitalism? (Springer 2013)
21 Crit Crim 177, 178; Radu Mares, ‘Business and Human Rights After Ruggie: Foundations, the Art of Simplification and the Imper-
ative of Cumulative Progress’, The UN Guiding Principles on Business and Human Right 1 (2012)
uploads/2012/06/Business-and-Human-Rights-After-Ruggie.pdf>.
37 Bittle and Snider, (n 36) at 181-182.
38 ibid at 185.
39 ibid at 186.
40 ibid at 187. The last point is one that has attracted much attention in America after its Supreme Court ruled that corporations have
free-speech rights that protect unlimited corporate financial support for candidates seeking elective office. See Citizens United v.
Federal Election Commission, (2010) 558 US 310.
Van Detta 105
Section III, we examine the recognition of LGBTI rights in the E.U. We consider the Russian legislation at
issue in Section IV. With this background and in this specific context, the viability of the E.U.’s completely
voluntary approach to corporate social responsibility is evaluated in Section V.
III. Evolving Recognition of LBGTI Human Rights in the E.U.
A. Section 13 of the Treaty of Amsterdam, and Rulings by the European Court of
Human Rights (ECtHR)
Some of the first rulings of the ECtHR to find that the Convention prohibits discrimination against gay
persons came at the turn of the last century.41 The Treaty of Amsterdam’s Section 13 empowered the Euro-
pean Commission to prohibit discrimination against LGBTIs42, but the Commission has legislated slowly,
and in a piecemeal fashion.43 Nonetheless, the Commission inaugurated nearly 15 years of progress to the
present, in which LGBTI rights have taken on enhanced significance within the E.U. For example, com-
mentators have recognized the strong role played by the decisions of the ECtHR in catalyzing change in
member nations:
The ECtHR has become increasingly progressive on LGBTI issues. It has found violations of the
European Convention against countries that criminalize consensual same-sex conduct, that
impose a higher age of consent for gay men, that prohibit lesbians and gay men from serving
in the military, and that restrict the ability of transsexuals to change identity documents or to
marry someone whose sex is opposite to their newly-acquired gender. For all these issues, the
Court reversed one or more earlier decisions rejecting challenges to these policies. This pattern
suggests a high degree of judicial discretion or “agency.” Yet these shifts in ECtHR jurisprudence
also track similar progressive trends in the national laws and policies of Council of Europe (CoE)
member states.44
The ECtHR’s work has affected the legal work of other bodies in the E.U. For example, in October 2013, the
European Court of Justice ruled that gays count as a “social group,” who are eligible for asylum in E.U. mem-
ber countries if they can demonstrate persecution.45 “Faced with asylum requests from three gay men from
Senegal, Sierra Leone and Uganda, the Dutch State Council asked the CJEU whether homosexual people
were considered a ‘particular social group’ within the meaning of the Directive [on Asylum Qualifications].”46
That Directive provides that refugee status may be claimed by “any person who, owing to well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling
to avail himself of the protection of that country.”47 In response to the Dutch State Council, the ECJ ruled
that “[h]omosexual applicants for asylum can constitute a particular social group who may be [considered]
41 See eg, ECtHR Salguero da Silva Mouta [1999] App no 33290/96 paras 34-36; ECtHR Fretté [2002] App no 36515/97 para 26.
42 Dimitry Kochenov, ‘Democracy and Human Rights - Not for Gay People? EU Eastern Enlargement and Its Impact on the Protection
of the Rights of Sexual Minorities’ (2007) 13 Texas Wesleyan LR (forthcoming); T J Langekamp, ‘Finding Fundamental Fairness:
Protecting the Rights of Homosexuals under European Union Accession Law’ (2003) 4 San Diego In’tl LJ 437. For the legal situation
prior to the Amsterdam treaty, see B Carolan, ‘Rights of Sexual Minorities in Ireland and Europe: Rhetoric versus Reality’ (2001) 19
Dickinson J Intl L 387.
43 Dimitry Kochenov, ‘Gay Rights in the EU: A Long Way Forward for the Union of 27’, Croatian Yearbook of European Law and Policy
3.3 (2007), 469-490, at 471 (observing that ‘other EC legislation, such as Directive 2004/38/EC on the free movement of citizens,13
Directive 2003/109/EC on the free movement of third-country nationals who are long-term residents,14 and Directive 2003/86/
EC on family reunification15 all f[e]ll short of ensuring full protection for gay rights’.
44 Laurence R Helfer and Erik Voeten, ‘International Courts as Agents of Legal Change: Evidence from LGBTI Rights in Europe’
(November 3, 2012) International Organization, Vol. 67; available at SSRN: 850526 or http://dx.doi.
org/10.2139/ssrn.1850526>.
45 Judgment in Case C-199/12, C-200/12, C-201/12 X, Y, Z v Minister voor Immigratie en Asiel; see ‘Homosexuality And Asylum:
Bigotry By Degrees—The Level Of Persecution Determines When Gays Can Claim Asylum In Europe’, (The Economist,16 Nov 2013)
http://www.economist.com/news/europe/21589914-level-persecution-determines-when-gays-can-claim-asylum-europe-big-
otry-degrees>; ‘When And Where Is Being Gay Grounds For Asylum?’, (The Economist, 19 Nov 2013) .economist.com/
blogs/economist-explains/2013/11/economist-explains-13>.
46 ‘EU Court Of Justice Rules Sexual Orientation Valid Ground For Fear Of Persecution In Asylum Procedures’, European Parliament’s
Intergroup on LGBT Rights (7 Nov 2013) .LGBTI-ep.eu/press-releases/eu-court-of-justice-rules-sexual-orientation-
valid-ground-for-fear-of-persecution-in-asylum-procedures/>; Council Directive 2004/83/EC of 29 April 2004 on minimum stand-
ards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted.
47 Court of Justice of the European Union, Homosexual Applicants For Asylum Can Constitute A Particular Social Group Who May Be
Persecuted On Account Of Their Sexual Orientation, Press Release No 145/13, (Luxembourg, 7 November 2013).
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
106
persecuted on account of their sexual orientation,” and “[i]n that context, the existence of a term of impris-
onment in the country of origin sanctioning homosexual acts may constitute an act of persecution per se,
provided that it is actually applied.”48 In addition, the ECJ emphasized that in evaluating asylum requests
from LGBTI persons, an E.U. member state “cannot reasonably expect, in order to avoid the risk of persecu-
tion, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in
the expression of his sexual orientation.”49
B. The E.C.’s 2010 “Toolkit” to Promote LGBTI Human Rights, and the Director-
General’s Report on Trans and Intersex People Discrimination on the Grounds of
Sex, Gender Identity and Gender Expression
The ECtHR’s rulings have also anticipated regulatory policy-making by the European Commission. After the
European Commission introduced a “a non-binding toolkit to promote LGBTI people’s human rights in June
2010,” 50 a panel of experts advising the European Commission’s Directorate-General for Justice issued their
landmark report on Trans And Intersex People Discrimination On The Grounds Of Sex, Gender Identity And
Gender Expression.51 In that report, special note was made of the strength of protection under E.U. human
rights law for the LBGTI community, both in Art. 19 TFEU (which is the most general legal provision on non-
discrimination in the Convention, entitling the E.U. to take action to combat “discrimination based on sex
… or sexual orientation”), as well as in international human rights law, which reflects growing “recognition
that gender identity and gender expression constitute a separate ground of discrimination” and “that the
ECtHR has recognised transsexuality as a protected stand-alone ground under Art. 14 ECHR.”52 The report
observed that “[s]adly, discrimination against trans and intersex people remains wide spread and takes many
forms” and that “at the level of EU law itself,” it should be “argue[d] that the term ‘discrimination on grounds
of sex’ should be interpreted even [more broadly], so as to include more forms of discrimination on grounds
of gender identity as well as discrimination on grounds of gender expression and discrimination against
intersex people.” 53 The next, and most recent, step on this path occurred in 2013, when the “EU’s 27 foreign
affairs ministers adopted a ground-breaking global policy,” called the LGBTI Guidelines, which instructed
E.U. diplomats around the globe “to defend the human rights of LGBTI people.”54 As described by the Euro-
pean Parliament’s Intergroup on LGBTI Rights, “[t]he Guidelines will be binding,” and “[t]he EU’s diplomatic
efforts will revolve around four priorities,” which include “[e]liminat[ing] discriminatory laws and policies,
including the death penalty”; “[p]romot[ing] equality and non-discrimination at work, in healthcare and
in education”; “[c]ombat[ing] state or individual violence against LGBTI persons”; and “[s]upport[ing] and
protect[ing] human rights defenders.”55
Europe has shown resolve in making good on these missions. However, challenges remain, particularly
among their new E.U. members in Eastern Europe.56 The latest test, and first after adoption of the Guidelines,
came at the end of November 2013, when Ukraine was scheduled to sign an association agreement with
the E.U. -- but this would have obligated Ukraine to embrace the LGBTI Guidelines and to make appropriate
48 ibid.
49 Judgment in Case C-199/12, C-200/12, C-201/12 X, Y, Z v Minister voor Immigratie en Asie. However, as noted in the pages of
The Economist, ‘[t]he notion of “benign criminalisation” is extremely dangerous’ and that “the court missed a chance to say” that
‘that criminalising people “for who they are” is itself persecution’. ‘Homosexuality And Asylum: Bigotry By Degrees—The Level Of
Persecution Determines When Gays Can Claim Asylum In Europe’ (Economist, 16 Nov 2013)
europe/21589914-level-persecution-determines-when-gays-can-claim-asylum-europe-bigotry-degrees>.
50 Meps Welcome New Toolkit To Defend LGBTI People’s Human Rights (30 June 2010)
meps-welcome-new-toolkit/>. The purpose of the toolkit is described as to permit ‘the future European External Action Service
(EEAS) and EU Member States to actively work towards the decriminalisation of same-sex relations throughout the world, to further
denounce discrimination on grounds of sexual orientation and gender identity, and to support human rights defenders in repres-
sive area’, Id.
51 Silvan Agius and Christa Tobler, Trans and Intersex People: Discrimination on the Ground of Sex, Gender Identity and Gender
Expression (June 2011)(report financed by and prepared for the use of the European Commission, Directorate-General for
Justice).
52 ibid, at 5, 87.
53 ibid at 87.
54 ‘EU Foreign Affairs Ministers Adopt Ground-Breaking Global LGBTI Policy’ (24 June 2013)
eu-foreign-affairs-ministers-adopt-lgbti-guidelines/>.
55 ibid.
56 Conor O’Dwyer, ‘From Conditionality to Persuasion? Europeanization and the Rights of Sexual Minorities in Post-Accession
Poland’ (2010) European Integration 32.3 229-247; see D Kochenov, ‘Democracy and Human Rights - Not for Gay People? EU
Eastern Enlargement and Its Impact on the Protection of the Rights of Sexual Minorities’ (2007) 13 Texas Wesleyan LR (forth-
coming).
Van Detta 107
amendments to domestic legislation in order to comply. Calling it a tango between E.U.-responsibilities
and public opinion in Ukraine, an editorialist recently observed that “[a]lthough the government submitted
a bill in April which would amend the labour code and prohibit discrimination based on sexual orienta-
tion in the work place, the [Ukrainian] parliament has not yet managed to bring it to a vote” and in fact, is
stalling because of national elections in 2015 and a “highly conservative” electorate, 79.4 percent of whom
“are against same-sex relationships.57 Under threats of crippling Russian sanctions on Ukraine’s imports if
Ukraine joined the E.U. as scheduled on 29 November 2013, Ukraine’s then-president, Viktor Yanukovych,
renounced the previously negotiated association agreement,58 insinuating instead that Ukraine might join
a rival customs union organised by Russia.59 While LGBTI rights were not the only (nor probably even the
decisive) factor in Ukraine’s decision to walk away from the association agreement, Russia obviously wishes
to exercise cultural and moral, as well as economic, sway within the former Soviet sphere of power. Indeed,
the signal that the E.U. took human rights in Ukraine quite seriously came most strongly from what the
E.U. might have done—but in fact did not do—to appease the Yanukovych government; in the words of an
editorialist:
… [T]he EU has—just—emerged from this squabble without seriously compromising its attachment
to the rule of law and human rights. Having unwisely been drawn into a tug-of-war with Russia, it
was tempted, for example, to ditch its demand for the release of Yulia Tymoshenko, the opponent
whom Mr Yanukovych has imprisoned. Doing so would have suggested to both current and aspirant
members of the EU that its talk of rules and democracy was so much cant.60
It is no great stretch of the imagination to see that the participation of major E.U.-based corporations in
sponsoring Olympic Games in Russia — on the heels of the most breathtakingly and blatantly discriminatory
anti-LGBTI message sent in Russia’s post-1917 history — risks, in equal measure, reducing the E.U.’s blos-
soming commitment to LGBTI rights to just “so much cant.” Clearly, particularly as studies such as those of
O’Dwyer indicate61, change in attitude and treatment of LGBTI communities within parts of the E.U. itself
will take economic action, in addition to political progress. And that economic action best comes from the
power of Foreign Direct Investment (FDI) that sits in the hands of Western Europe’s great MNEs.62
IV. Russia’s “Scarlet Letter”63 Legislation Directed Against the LBGTI
Community Specically and Advocates for Human Rights Generally
Often referenced by the bland title “Article 6.21 of the Russian Code of Administrative Offenses,”64 but codi-
fied within Part 6 of that Code (“Administrative Offences Endangering the Health and Sanitary and Epide-
miological Well-Being of the Population and Endangering Public Morals65), Article 6.21 proclaims its subject
57 Bogdan Globa, ‘Opinion:The EU-Ukraine tango on gay rights’ (25 Oct. 2013) 21897>; see also
the world map with survey results by country at Global Acceptance of Homosexuality, Pew Research Group, Global Attitudes Pro-
ject (4 June 2013) .pewglobal.org/2013/06/04/global-acceptance-of-homosexuality/>.
58 ‘Ukraine and The EU: Stealing Their Dream—Viktor Yanukovych Is Hijacking Ukrainians’ European Future’, (The Economist, 30 Nov
2013) .economist.com/news/europe/21590977-viktor-yanukovych-hijacking-ukrainians-european-future-stealing-
their-dream>.
59 Ukraine And The European Union: Day Of The Gangster Pygmy—Why, Despite The Appearance Of Defeat, Europe Might Have Won
The Battle Of Ukraine, (Economist, 30 Nov 2013) .economist.com/news/leaders/21590902-why-despite-appearance-
defeat-europe-might-have-won-battle-ukraine-day>.
60 ibid.
61 Conor O’Dwyer, ‘From Conditionality to Persuasion? Europeanization and the Rights of Sexual Minorities in Post-Accession Poland’
(2010) European Integration 32.3: 229-247.
62 See eg Beate Sjafjell, ‘Internalizing Externalities In E.U. Law: Why Neither Corporate Governance Nor Corporate Social Responsibil-
ity Provides The Answers’ (2009) 40 Geo Wash Int’l L Rev 977, 980-981, 987-989, 991-993, 1024.
63 The reference is to one of the most famous enduring American literary works of the 19th century, authored by Nathaniel Haw-
thorne. The letter was affixed to the clothing of women in Puritan communities in Colonial New England as a form of shaming
punishment for adultery. See Dennis Foster, The Embroidered Sin: Confessional Evasion in The Scarlet Letter, 25 Criticism 141
(1983) .
64 See eg Eric Sasson, ‘The Sochi Scandal Is Just Beginning: Just Because The Russian Government Says It Won’t Arrest Gay Athletes
Doesn’t Mean The Olympics Controversy Is Over’ (Salon, 13 Aug 2013), .salon.com/2013/08/13/the_sochi_scan-
dal_is_just_beginning/>.
65 See Code Of Administrative Offences Of The Russian Federation, . The version of the
Code in English translation available on that website has not yet been updated to reflect the enactment of Section 6.21. See
www.russian-offences-code.com/SectionII/Chapter6.html> Leading Russian-law scholar William E Butler writes of the this Code
that ‘[u]nder Russian legislation anti-social behavior may be criminal, or it may fall into a category unknown to the Anglo-American
legal world: administrative offenses.’ William E Butler, Russian Law (Oxford 3d ed. 2009) § 6.160. Butler notes that ‘[i]t is estimated
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
108
unreservedly as “Propaganda of Non-traditional Sexual Relations Among Minors,”66 but its true legal effect
requires more discerning examination. A fascinating opportunity for Russia to explain this new law tran-
spired at the Parliamentary Assembly of the Council of Europe at Strasbourg in October 2013, where Sergey
Naryshkin, Speaker of the State Duma of the Russian Federation made the following remarks:
Another law that is often criticised abroad concerns propaganda about non-traditional sexual rela-
tions among minors. Many who comment on this law – whether deliberately or not – omit or forget
the words in the title “among minors.” That is a distortion of the content and the motivation for
the law’s adoption. Concerns have been voiced that it could become an instrument of discrimina-
tion against minorities. I do not share those concerns, not only because there is a lack of relevant
examples. People of non-traditional orientation do not face any restrictions on any grounds in their
work, education, social or political activities. They are free to shape their life in accordance with
their preferences. However, before they come of age, children should not be forced into anything
or subjected to propaganda. 67
Of course, when pressed to articulate “the evidence that the State Duma” relied on in enacting Section
6.21, “especially in regard to the Venice Commission’s clear statement that children need objective, relevant
information on sexuality,” the Russian Speaker replied, “I am ready to repeat my answer a third time, if you
insist.”68 But the casual response of the Speaker overlooked the gravity of the question. As many readers of
this Journal will well know, “[t]he European Commission for Democracy through Law — better known as
the Venice Commission as it meets in Venice — is the Council of Europe’s advisory body on constitutional
matters” and “provide[s] legal advice to its member states and, in particular,” helps “states wishing to bring
their legal and institutional structures into line with European standards and international experience in the
fields of democracy, human rights and the rule of law.”69 The Venice Commission had already identified the
very weaknesses with this law that Speaker Naryshkin refused to address. The Venice Commission noted not
only that “the provisions under consideration are not formulated with sufficient precision so as to satisfy the
requirement ‘prescribed by law’” such that its scope “seems not to be limited to sexuality explicit content,
but to apply to legitimate expressions of sexual orientation,” but also that the Russian enactment turned
fundamental principles of the Convention on their heads:
[To assert] “public morality”, the values and traditions including religion of the majority, and “pro-
tection of minors” as justifications for prohibition on “homosexual propaganda” fail[s] to pass the
essential necessity and proportionality tests as required by the ECHR. Again, the prohibitions under
consideration are not limited to sexually explicit content or obscenities, but they are blanket restric-
tions aimed at legitimate expressions of sexual orientation. The Venice Commission reiterates that
homosexuality, as a variation of sexual orientation, is protected under the ECHR and as such, cannot
be deemed contrary to morals by public authorities, in the sense of Article 10 § 2 of the ECHR. On
the other hand, there is no evidence that expressions of sexual orientation would adversely affect
minors, whose interest is to receive relevant, appropriate and objective information about sexuality,
including sexual orientations.70
The Venice Commission stated most emphatically that “the aim of these measures is not so much to advance
and promote traditional values and attitudes towards family and sexuality but rather to curtail nontradi-
tional ones by punishing their expression and promotion,” and thus Section 6.21 is “incompatible with
‘the underlying values of the ECHR’, in addition to their failure to meet the requirements for restrictions
prescribed by Articles 10, 11 and 14 of the” Convention.71
that more than 30 million persons are brought to administrative responsibility in the Russian Federation each year.’ Id at § 6.161.
66 See Decker and Wilson (n 7).
67 Verbatim Record Of The Address By Chairperson Of The State Duma Of The Federal Assembly Of The Russian Federation Mr. Sergey
Naryshkin And His Answers To The Questions From The Parliamentarians At The Session Of The Parliamentary Assembly Of The
Council Of Europe (Strasbourg, 1 October 2013), available at .coe.mid.ru/doc/ve_011013.htm>. In a similar vein are
Mr Naryshinkin’s comments in response to various pointed questions from other delegates, including Mogens Jensen (Denmark),
Ms Karlsson, and Mr Villumsen (Denmark).
68 ibid (remarks of Mr Villumsen and Mr Naryshkin).
69 Council of Europe—Venice Commission, orms/pages/?p=01_Presentation>.
70 European Commission For Democracy Through Law, Op 707/2012 (On The Issue Of The So-Called “Propaganda of Homosexuality”
In Light of Recent Legislation In Some Member States of the Council of Europe), paras 79, 80.
71 ibid para 82.
Van Detta 109
Accordingly, there can be no doubt that Russia’s Administrative Offenses Code 6.21 has a serious effect
on the objectives of European human rights policies in general, and its LGBTI policies in particular — and it
should have therefore created a soul-searching dilemma for MNEs such as Atos. At a time where the ECJ has
focused attention on the persecution of homosexuality as a potential basis for granting asylum applications
in the E.U., the Russian enactment is little more than a discriminatory law, thinly veiled with a veneer of
pretext. While the Russian government speaks of the law in terms of “protecting minors” and repeats assur-
ances that Russia will not discriminate against LGBTI athletes who attend the Sochi Olympics72, other groups
outside of Russia see the farce for what it is. For example, public health officials at the 2013 Meeting of the
European AIDS Clinical Society (EACS)73 denounced the law as “discriminatory” and as an “imped[iment] [to]
individuals with HIV from seeking care.”74 At a press conference, EACS member Tamás Bereczky described
Section 6.21 as “purportedly directed against propaganda for minors, but, in fact, we know that, in practice,
this law is being ostensibly used for the persecution of gays in general.”75 University students in Europe have
insightfully decoded the law as one “strik[ing] to the very core of prejudice based on sexual orientation”:
Not only does it perpetuate the fallacy that sexual orientation is a choice, but it encourages danger-
ous connotations between homosexuality and sexual offences. Such discriminatory attitudes are
clear from the wording of the act, including prohibition of ‘creating non-traditional sexual attitudes.’
The laughable idea of ‘creating’ a sexual identity within another demonstrates the frightening stu-
pidity of such discrimination, which blatantly ignores reality in pursuit of a fictitious ‘traditional’
sexual orientation.76
How, then, should the E.U. deal with corporations, such as Atos, which remain steadfast in supporting a
regime – a member of the Council of Europe, no less – that continues to legislate against the very human
rights principles on which the Convention and the Charter are founded? In Section V, infra, the efficacy of
leaving CSR to purely voluntary, corporate self-regulated efforts is examined, and rejected, as is coercive
efforts to use litigated compliance; in Section VI, a public-opinion driven-model of CSR social reporting,
facilitated by an independent agency established by the E.U., is proposed.
V. Can Corporate Complicity in Assisting Regimes that Violate Core
European Values be Eectively Managed by a Voluntary Approach to CSR?
“The EU and Member States,” a commentary recently observed, “are in the driver’s seat of advancing the
global CSR discussion and its implementation.”77 This responsibility carries with it a sizable burden, how-
ever. “[B]usinesses and government trade facilitators must review and recommend how they are going to
meet the challenge of a CSR policy that while at once championing the charge of social responsibility can,
at the same time, create a barrier to actualization.”78 For example, the emphasis on voluntary CSR since the
2001 Green Paper issued has now made it “common” for “European MNEs . . . to have special CSR or sustain-
ability departments.”79
Other recent scholarship has argued for more aggressive policing of E.U. companies’ commerce with
regimes in which a company directly aids and abets a non-E.U. nation in violating the kind of rights protected
by the Convention and the Charter.80 For example, in examining the role of Trovicor GmbH in providing
technological infrastructure and maintenance services to the Assad regime in Syria that permits the regime
“to track individuals’ movements, access electronic files, and even detain and torture members of the opposi-
72 See eg Stephen Wilson, ‘Sochi 2013: Olympic Boycott Not Necessary, Russia Says, Vowing To No Discrimination Against Gays,
Huffington Post—Canada’ (Hufngton Post, 22 Aug. 2013) .huffingtonpost.ca/2013/08/22/sochi-olympic-
boycott_n_3794775.html>.
73 See 14th European AIDS Conference (October 16-19 2013) Brussels, Belgium, at 13.com/index.
php?id=40>.
74 ‘Highlights From EASC 2013: Russian Anti-Gay Propaganda Law Concerns HIV Experts, (Infectious Disease News, 16 Oct 2013) at
3-resource-center/russian-anti-gay-propaganda-law-concerns-hiv-experts>.
75 ibid.
76 Joe Marshall, ‘Russia’s Precarious Minority And A Chilling Reversal Of Liberalization’ (21 Aug 2013) The Student Journals
www.studentjournals.co.uk/comment/politics/2295-russia-s-precarious-minority-and-a-chilling-reversal-of-liberalisation>.
77 Tim Breitbarth and Phil Harris and Rob Aitken, ‘Corporate Social Responsibility In The European Union: A New Trade Barrier?’
(2009) 9 J Public Affairs 239, 252.
78 ibid.
79 ibid at 251.
80 See Rishi R Gupta, ‘Comment, Germany’s Support Of Assad: Corporate Complicity In The Creation Of The Syrian Surveillance State
Under The European Convention On Human Rights’ (2013) 28 Am U Int’l L Rev 1357, 1359, 1374-1386.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
110
tion” by “tracking a speaker’s location and identity”,81 a commentator argues “the [Convention] provides the
ECtHR jurisdiction over the extraterritorial effects of a corporation’s actions through the state agent theory”
and that “Germany violated its positive obligation to respect the rights in Article 8 of the [Convention] by
failing to regulate the Germany company … after it facilitated the creation of a Syrian surveillance state.”82
Of course, such allegations of direct violations of the Convention by supplying regimes with equipment
and services used to effectuate human rights violations are distinguishable from the indirect facilitation of
human rights violations, inconsistent with the Convention, by means of cooperating with a foreign sover-
eign in sponsoring a world-wide propaganda event while that same sovereign aggressively seeks to deny
human rights to the LBGTI community within its borders. Particularly when the corporate entity—such as
Atos—is a citizen of an E.U. country that not only is not boycotting the propaganda event, but is, to the
contrary, sending an ofcial delegation to participate in it83, theories of direct-liability will be swept aside by
the political cover offered by the home-state government’s sovereign policies. Moreover, theories of direct
liability would in any event falter because the corporate support for the propaganda event is not, within
the understanding of causation in either the common-law of torts or the civil-law of delict, the cause of the
objectionable legislation, nor is that legislation a product of the corporate sponsorship. Rather, the relation-
ship—while clear—between corporate support for the regime as it actively works to deny human rights to
the LGBTI community, is also attenuated; and it would be very difficult for any member of the Russian LGBTI
community, or any individual or organization that spoke favorably of the LGBTI community in Russia and
was thereafter punished under Section 6.21 of the Administrative Offences Code, to show that corporate
sponsors of a contemporaneous propaganda event were legal causes of their injury.
Indeed, efforts in the United States to impose direct corporate liability for aiding and abetting regimes
that violate human rights have been mixed, at best, and may be entirely foreclosed by two recent rulings
of America’s Supreme Court concerning the two U.S. laws most often invoked by victims in such cases, the
Alien Tort Statute (ATS)84 and the Torture Victims Protection Act (TVPA).85 First, the TVPA has been inter-
preted not to apply to corporate entities.86 Second, the ATS has been interpreted not to apply to rights viola-
tions that do not occur in U.S. territory,87 and it remains unclear whether the ATS applies to corporations at
all after one influential American federal appeals court held that it does not.88 Furthermore, major efforts to
use litigation to hold accountable MNEs who supplied the tools that propped up South Africa’s Apartheid
Regime — from IBM-supplied identification card systems to Ford and Chrysler police vehicles89 — have been
interminable, prolix, unwieldy, and ultimately, will fail under the U.S. Supreme Court’s new, territorially-
limited interpretation of the ATS.90 Thus, while some scholars have proposed that the E.U. needs to do what
too many of the American courts have hesitated to do —declare unequivocally that the corporation should
be considered an actor subject to international law, and that those corporations that qualify as MNEs are to
81 ibid at 1359-1360 and (n 7) (citing Monitoring The Opposition: Siemens Allegedly Sold Surveillance Gear To Syria (Spielgel Online
Int’L, 11 Apr 2012) .spiegel.de/international/business/ard-reports-siemens-sold-surveillance-technology-to-syria-
a-826860.html>); see Nicole Perlroth, Researchers Find 25 Countries Using Surveillance Software (The NY Times, 13 March 2013)
-find-25-countries-using-surveillance-software/?_r=0> (noting that ‘Pri-
vacy International and other groups filed complaints with the Organization for Economic Cooperation and Development against
Gamma Group and Trovicor GmbH, a German company that also sells surveillance software’); Chloe Shuffrey, Our OECD complaint
against Gamma International and Trovicor (5 Feb 2013) Privacy Int’L,
plaint-against-gamma-international-and-trovicor>.
82 Rishi R Gupta (n 80) at 1360, 1361.
83 ‘France Opposes Games Boycott Over Anti-Gay Law: France’s Sports Minister Has Said It Would Be Wrong To Boycott The 2014
Winter Olympics In Russia Over Moscow’s Adoption Of A Contentious Law That Bans Gay “Propaganda” For Minors’, (The Local:
France’s News in English, 13 Aug 2013) .thelocal.fr/20130813/france-opposes-games-boycott-over-anti-gay-law>.
84 28 USC §1350.
85 106 Stat 73, note following 28 USC §1350.
86 Mohamed v Palestinian Authority, 132 S. Ct 1702 (US 2012). The Court noted that individual corporate directors, officers, employ-
ees or agents could be held personally liable under the statute. That is often, however, of little utility to torture victims, since
identifying specific corporate agents as the wrongdoers is a daunting—often impossible—task, as is providing individual knowl-
edge of entity wrongdoing, and since remedies against the individual actors often cannot approach the adequacy of entity liabil-
ity.
87 Kiobel v. Royal Dutch Petroleum Co, 133 S Ct 1659 (US 2013); see Jeffrey A Van Detta, ‘Some Legal Considerations For EU-Based
MNEs Contemplating High-Risk Foreign Direct Investments In The Energy Sector After Kiobel v. Royal Dutch Petroleum and Chev-
ron Corporation v. Naranjo’ (2013) 9 South Carolina J. Int’l L & Bus, 162.
88 Kiobel v.Royal Dutch Petroleum Co (US 2013) 621 F.3d 111 (2d Cir 2010), aff’d on other grounds, 133 S Ct 1659; see Matteo M Win-
kler, ‘What Remains of the Alien Tort Statute After Kiobel?’ (2013) 39 NCJ Int’l L & Com Reg 171.
89 See In re South African Apartheid Litigation, 346 F Supp 2d 538 (SDNY 2004), rev’d sub nom Khulumani v Barclay Nat Bank Ltd,
504 F 3d 254 (2d Cir 2007).
90 Balintulo v Daimler AG, 727 F 3d 174 (2d Cir 2013).
Van Detta 111
be treated as quasi-sovereigns when their actions touch and concern a government regime’s policies that
either violate international law or are repugnant to the instruments of the E.U91—the dependency of the
E.U. member states on corporate activity to generate employment and prosperity makes such heavy-handed
enforcement untenable as a practical matter.92
What does this mean for other kinds of coercive measures that various E.U. or Council of Europe bodies,
or member state legislatures, might be urged to consider as vehicles for CSR enforcement? Regardless of the
viability of a court-oriented campaign to combat corporate complicity in extolling an Olympic host nation
in the midst of increasing human rights violations, the tension with E.U.’s human rights policy created by
Russia’s legislation remains strong. Indeed, if anything, the tension between the E.U.’s policies and the
Russian legislation became both evident and acute with the November 7, 2013 release of the ECJ’s ruling,
discussed in Section III.A above, that will permit LGBTIs facing persecution in their home country to apply
for asylum in an E.U. member nation. It did not take long for the implications of this ruling for Russian
LGBTIs and advocates for LGBTIs’ legal and social equality in Russia to see that this ruling may very well
open E.U. doors to Russians seeking asylum in E.U. member nations.93 Nor did it take long to see how much
difficulty individual E.U. member nations will have in dealing with their human rights obligations when it
comes to the actions of their eastern neighbor.
A perfect example of how tensions among E.U. obligations, member-states’ ambitions, and Russian power
distort meaningful government action comes from the recent “about-face” by Dutch Foreign Minister Frans
Timmermans. In response to legislative inquiries, “Timmermans sent a letter to [the Dutch] parliament,” in
which, news reports stated, he observed that “[t]he [Russian] anti-homosexuality propaganda law has a stig-
matizing and discriminatory effect and contributes to a climate of homophobia” and “’[t]he circumstances
of the LGBTIs, including the possible consequences of the new law, will of course be considered in evaluat-
ing asylum requests,’” and may establish violations of protected rights that “would lead to the issuing of an
asylum permit.”94 Yet, within 48 hours after those reports circulated, the Dutch Foreign Minister retreated
entirely from this position, telling RAI Novosti (a Russian news company which President Putin summarily
dissolved in December 201395) that his comments had been “misinterpreted” and taken out of context, and
declaring that LGBTIs in Russia are not being persecuted.96
One can hardly expect the E.U. authorities to regulate – or punish – corporate support for regimes hos-
tile to principal aims of E.U. human-rights policies if E.U. member nations themselves cannot muster the
91 See eg Sorcha McLeod, ‘Corporate Social Responsibility Within The European Union Framework’ (2005) 23 Wis Int’l LJ 541, 551-
552 (‘Yet the two-pronged basis on which corporations resist the imposition of legally-binding norms is first, that they are not
subjects of international law, and second, that to do so would shift responsibility from states to private actors. In the absence of
voluntary corporate compliance with CSR norms, what is the solution?’).
92 One might well ask at this juncture about the possibility of direct action against the IOC for its award of games to a nation not
compliant with core values contained in instruments such as the ECHR. In reality, such a strategy portends even less favorably.
While recognizing that over the past 100 years, the IOC’s motives, incentives, and commitments have frequently contradicted the
fundamental principles of the Modern Olympic Movement, set out in the Olympic Charter, effectuating change through the use
of the courts has been futile ‘[a]s national courts have been unwilling to rule against the IOC,’ and thus other change mechanisms
must be found ‘so that the Olympic Movement’s fundamental values of fairness and equality always prevail.’ Jennifer Ann Cleary,
‘A Need To Align The Modern Games With The Modern Times: The International Olympic Committee’s Commitment To Fairness,
Equality, And Sex Discrimination’ (2011) Case W Res L Rev 1285, 1287 (2011)(footnotes omitted).
93 See eg, Sunnivie Brydum, ‘European Court Declares Gays Can Seek Asylum In EU’—The European Court Of Justice Declared That
Sexual Orientation Is A Fundamental Characteristic For Which Many People In Nations Around The World Are Persecuted, And
Can Now Seek Asylum In The European Union, Advocate Com’ (Advocate, 7 Nov 2013) .advocate.com/news/world-
news/2013/11/09/european-court-declares-gays-can-seek-asylum-eu> (‘Thursday’s ruling could also have implications for LGBT
people from other nations with laws criminalizing an LGBT identity who want to seek asylum in the EU, including Russia, which
enacted a nationwide ban on “propaganda of nontraditional sexual relations” earlier this year’); Esther Tanquintic-Misa, ‘Gays Can
Seek Asylum In EU’, (IBTraveler, 11 Nov 2013) 131111/gays-lgbt-lesbian-asylum-eu.
htm#.Upjz3Y3QEmv>; see also Paul Sonne, ‘Russian Gays Look To U.S. For Asylum’ (Wall St J, 16 Aug 2013), at
wsj.com/news/articles/SB10001424127887324139404579016692141360158> (efforts by Russian LGBTIs to seek asylum ‘may
become more common as Russia moves ahead with controversial antigay regulations, which have led some to call for a boycott of
the 2014 Winter Olympics in Sochi’ including ‘the so-called gay propaganda bill, which punishes those who publicly inform minors
that “nontraditional relationships” are OK,’ as well as ‘new laws [that] ban adoptions by same-sex couples and criminalize actions
that insult the “religious feelings” of Russian believers’).
94 ‘Dutch Say Russian Gay Rights Violations May Warrant Asylum’ (Reuters, 5 Nov 2013) .reuters.com/article/2013/11/05/
us-netherlands-russia-gays-idUSBRE9A40LT20131105>; ‘Dutch Foreign Minister: Russia Does Not Prosecute Against Gay People
– There Is No Ground For Asylum’, (PinkNews, 11 Nov 2013) 3/11/11/dutch-foreign-minister-
russia-does-not-prosecute-against-gay-people-there-is-no-ground-for-asylum/>.
95 Steven Lee Meyers, ‘Without Notice, Putin Dissolves A News Agency’, N.Y. Times (10 Dec 2013), at A1.
96 Dutch FM: ‘Gays In Russia Not Prosecuted, Don’t Need Asylum In Netherlands’ (RT News, 10 Nov 2013)
netherlands-minister-russia-gay-asylum-508/>.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
112
political will to confront them directly. Nonetheless, simply because complex questions of diplomacy and
public policy may inhibit official government action, there is no reason to simply abandon E.U.-facilitated
efforts to promote CSR. Indeed, none of the foregoing should be seen as suggesting that E.U. law has no
role to play in Atos’s decision to remain a sponsor of the Sochi Olympic Games. What has been established
simply is that Sochi sponsorship is a CSR problem that is not to be addressed practically under the rubric of
direct liability for violations of the Convention or the Charter, or even by other kinds of punitive regulation
by recalcitrant member-state governments.97
In Section VI, we examine an alternative to an entirely voluntary approach to CSR on the one hand, and
a coercive approach on the other hand, and consider the significance of that via media approach for deal-
ing with situations such as the one presented by Atos’s role as a high-profile sponsor of the Sochi Winter
Olympic Games.
VI. A Via Media Between “Suggested” and “Coerced” CSR? The Potential
for an Independent Human-Rights Scoring Authority and Required
“Human-Rights Labeling”
A. The Disclosure Approach to Regulation
The discussion of CSR within the E.U., as elsewhere, has generated debate over whether CSR should be accom-
plished by “hard” law or “soft” law.98 A better question, however, is how governments can combine both
approaches in thoughtful ways to achieve a realistic middle-ground that incorporates elements of both hard
and soft law.99 For some time, social disclosure by corporations, to achieve corporate social transparency, has
been viewed as one such middle way.100 The goal of social disclosure is two-fold, and synergistic: organizational
transparency and stakeholder engagement.101 Organizational transparency is essential to “contributing to an
ongoing stakeholder dialogue”.102 That dialogue, in which “corporations and their stakeholders” discus “appro-
priate firm behavior,” is the essence of stakeholder engagement.103 What has become known as “disclosure-
based regulation” has proven valuable because disclosure requirements are enacted with less difficulty, cost,
and unintended consequences than substantive regulation, and “disclosure schemes comport with the prevail-
ing political philosophy” by “preserv[ing] individual choice while avoiding direct governmental interference.”104
97 For a passionate argument laying out a roadmap for advocates to use in bringing such direct-liability cases before municipal courts
in the EU by relying on EU instruments, customary international law, and the municipal law of delict in individual EU member-
states, see Liesbeth F H Enneking, ‘Crossing The Atlantic? The Political and Legal Feasibility of European Foreign Direct Liability
Cases’ (2009) 40 Geo Wash Int’l L Rev 903.
98 See eg John J Kirton and Michael J Trebilock (eds) Hard Choises, Soft Law: Voluntary Standards in Global Trade, Environment and
Social Governance (Ashgate 2004) 23-30, 189-190 (defining ‘hard’ law as government-enacted rules versus ‘soft’ law as volun-
tary measures undertaken by corporations, often with the encouragement of governments or Inter-Governmental Organizations).
Extensive, contextual discussions comparing ‘hard’ law and ‘soft’ law approaches to CSR issues are found at id, Chapters 16-19.
99 See eg Larry Catá Backer, ‘From Moral Obligation To International Law: Disclosure Systems, Markets And The Regulation Of Multi-
national Corporation’ (2008) 39 Geo J Int’l L 591, 597-601.
100 Eg Cynthia A Williams, ‘The Securities and Exchange Commission and Corporate Social Transparency’ (1999) 112 Harv L Rev 1197,
1273-1296. The term first entered corporate discourse through R E Freeman’s 1984 book, Strategic Management: A Stakeholder
Approach, Id at 853, 884. The idea, however, of a corporation owing responsibilities to persons beyond shareholders is consider-
ably older. See E Merrick Dodd Jr, ‘For Whom Are Corporate Managers Trustees?’ (1932) 45 Harv L Rev 1145, 1147-48 ‘An obvious
play on the word “stockholder”’, the stakeholder ‘approach sought to broaden the concept of strategic management beyond its
traditional economic roots, by defining stakeholders as “any group or individual who is affected by or can affect the achievement of
an organization’s objectives.” The purpose of stakeholder management was to devise methods to manage the myriad groups and
relationships that resulted in a strategic fashion.’ Edward R Freeman and John McVea, ‘A Stakeholder Approach To Strategic Man-
agement’, Darden Business School Working Paper No 01-02 (2001) (n 4) http://ssrn.com/abstract=263511. A long-running debate
exists in corporate law between those who believe the corporation’s sole or primary purpose is to maximize shareholder profit,
the “shareholder primacy” theory, and those who believe a corporation must honor all of its constituents’ interests, including the
concerns of employees, creditors, customers, and society at large, the “stakeholder” theory. Lisa M Fairfax, ‘The Rhetoric of Corpo-
rate Law: The Impact of Stakeholder Rhetoric on Corporate Norms’ (2005-2006 31 J Corp L 675. While the stakeholder approach
has its limits — eg applying only to those ‘human beings in a business firm or who engage in transactions with the firm,’ Eric W
Orts & Alan Strudler, ‘The Ethical and Environmental Limits of Stakeholder Theory’ (Apr 2002) 12 Bus Ethics Qtrly 215, 215-216
—’stakeholder theory has been critical to helping CSR scholars identify and specify the social obligations of business’. Jill A Brown,
and William R Forster, ‘CSR And Stakeholder Theory: A Tale Of Adam Smith’ (2013) 112 J Bus Ethics 301, 31. For a comprehensive
view of European perspectives on stakeholder theory, see Maria Bonnafous-Boucher and Yvon Prequeux (eds), Stakeholder Theory:
A European Perspective (Palgrave Macmillan 2005).
101 David Hess, ‘Social Reporting and New Governance Regulation: The Prospects of Achieving Corporate Accountability through
Transparency’ (2007) 17 Business Ethics Qtrly 453, 454-455.
102 ibid at 453, 454-455.
103 ibid at 453, 454-455.
104 Paula J Dalley, ‘The Use and Misuse of Disclosure as a Regulatory System’ (2007) 34 Fla St L Rev 1089, 1092, 1093
Van Detta 113
Social disclosure has been seen to be of particular benefit to “the overall human rights project” in at
least three ways.105 First, it is argued that corporate disclosure will “result in behavior modification on the
part of decision makers.”106 Second, it is also argued that social disclosure has special value “in its ability to
empower socially conscious shareholders who will be equipped with information that can be used to engage
corporate management in dialogue and influence corporate decisions.”107 Third, other groups – consumers,
workers, and social activists, for example – are, it is argued, likewise empowered to engage with the corpora-
tion in a variety of spheres over the impact of the corporation’s business practices as they are relevant to the
concerns of each group.108
Corporate social reporting and related transparency approaches to CSR also present a number of
challenges. First, there is the challenge of precisely which corporations should be subject to reporting
requirements, a question which itself involves clearly defining the policies to be served by the reporting
measure(s). Next, there is the question of identifying the audience(s) at whom the information is aimed,
and structuring reporting requirements accordingly. Then, there is the question of scope — i.e., exactly
just what kind of information should be reported, and how it will be verified? Fourth, there is the issue
of presentation – that is to say, what does the reporting requirement need to contain in order for mem-
bers of the target audience to be able to make meaningful comparisons and contrasts among companies
based on the information reported? Fifth, what are the consequences for non-compliance – e.g., failing
to report, making inadequate disclosures, or submitting misleading disclosures? Sixth, there is the ques-
tion of what, if any, consequences or further actions should apply based on the substantive content of the
disclosures themselves, and whether such follow-up is to be carried out by corporate stakeholders and the
public generally, by government, or by some (carefully thought-out) combination of both? While a trend
of “convergence” in CSR reporting among the world’s 250 largest corporations has been observed, the
convergence has tended to coalesce around a pattern that may not be sufficiently broad to consistently
satisfy “[t]he motivations driving CSR reporting,” which “tend to be a mixture of rational and strategic
reasons as well as socially conscious values and even moral or ethical dimensions,” and could instead
enable “corporations to engage in a manner of reporting that is chiefly strategic in nature” or that merely
provides “ritualistic comfort to stakeholders.”109
Yet, despite these challenges, the consensus is emergent that CSR disclosures do have discernible impact
on stakeholder groups, including consumers.110 There is also evidence that compelled disclosure can be
effective in motivating stakeholder groups – particularly when a governmental body not only compels the
disclosure, but also shapes its content.111 However, even under those optimized circumstances, care and
sensitivity to both culture112 and cognitive psychology113 must be exercised by regulators, to ensure that
the message of the disclosures remains coherent, and the ways in which the disclosures are expressed are
mentally digestible by the target audiences. Indeed, “cognitive overload” is a phenomenon that has been
105 Aaron A Dhir, ‘The Politics of Knowledge Dissemination: Corporate Reporting, Shareholder Voice, and Human Rights’ (2009) 47
Osgoode Hall LJ 47, 81.
106 ibid.
107 ibid at 65-76, 81.
108 ibid at 64 n 69 (citing David J Doorey, ‘Who Made That? Influencing Foreign Labour Practices thorugh Reflextive Domestic Disclo-
sure Regulation’ (2005) 43 Osgoode Hall LJ 353, 375, 376).
109 Iris H-Y Chiu, ‘Standardization in Corporate Social Responsibility Reporting and a Universalist Concept of CSR —A Path Paved with
Good Intentions’ (2010) 22 Fla J Int’l L 361, 364, 391-392; see Birgitta Schwartz and Karina Tilling, ‘”ISO-lating” Corporate Social
Responsibility in the Organizational Context: A Dissenting Interpretation of ISO 26000’ (2009) 16 Corp Soc Resp & Envtl Mgmt
289,29; Ralph Hamann and others, ‘Universalizing Corporate Social Responsibility? South African Challenges to the International
Organization for Standardization’s New Social Responsibility Standard’ (2005) 110 Bus & Soc’y Rev.
110 See eg Bill Libit, ‘The Corporate Social Responsibility Report and Effective Stakeholder Engagement, Harvard Law School Forum on
Corporate Governance and Financial Regulation’ (28 December 2013) .harvard.edu/corpgov/2013/12/28/the-
corporate-social-responsibility-report-and-effective-stakeholder-engagement/>; Julie Pirsch and Shruti Gupta and Stacy Landreth
Grau, ‘A Framework for Understanding Corporate Social Responsibility Programs as a Continuum: An Exploratory Study’ (2007) 70
J Bus Ethics 125.
111 See eg Ryan Jaslow, ‘Study: Graphic Tobacco Warning Labels More Effective At Delivering Anti-Smoking Message’ (CBS News, 15
June 2012) .cbsnews.com/news/study-graphic-tobacco-warning-labels-more-effective-at-delivering-anti-smoking-
message/>.
112 See Peggy Simcic Brønn and Albana Belliu Vrioni, ‘Corporate Social Responsibility and Cause-Related Marketing: An Overview’
(2001) 20 Int’l J Advertising 207 (‘Clearly, countries that adapt practices perceived as successful in other countries without research-
ing their own consumers’ attitudes cannot hope to succeed based on the same premises’).
113 See Troy A Paredes, ‘Blinded By the Light: Information Overload and Its Consequences for Securities Regulation’ (2003) 81 Wash U
L Q 417, 418-419, 434-443.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
114
observed in the increasing number and detail of disclosures required under securities-regulation laws114,
which provides an important, and tempering, lesson for the advocates of corporate social reporting.115
In the next section, two paradigm examples of compelled, rather than voluntary, corporate social report-
ing are examined, and from those examples, the broad outlines of a proposal for Commission-mandated
corporate human-rights disclosure and communication are derived. In this proposal, the author does not
purport to have “all” of “the answers,” or even a significant part of them. The proposal is, it is hoped, a
launching point for further dialogue within Europe about creating a system under which E.U.-based corpo-
rations are held to account to their stakeholders and the consuming public generally concerning the extent
to which they are aiding and abetting regimes that fall short in significant ways of honoring the commit-
ment to human rights that Europe has made in the Convention and in the Charter.
B. An Approach to Employing Disclosures in Regulating Corporate CSR to Promote
Human Rights: Learning from, and Improving upon, Section 116 of France’s
Nouvelles Régulations Économiques and California’s Transparency in Supply Chains
Act of 2010
In looking for solutions outside of the “box” formed by political and economic realities, there must be a
middle road – the proverbial via media – between a vision of CSR that involves merely appealing to the “bet-
ter angels” of the natures of those who run MNEs116, and a more prescriptive vision recalling the wisdom of
James Madison that “[if] men were angels, we would need no laws.”117 While “[t]he law, when enforced, can
be used to punish,” or “to articulate social norms and standards” or even “to define and impose responsi-
bilities,” it “can also, however, be used to change incentives.”118 Indeed, “[w]hen designed and implemented
properly, a good law establishes an incentive structure to align legal responsibility with the actors most able
to change a set of results — actors who possess the information, the institutional capacity, and the practical
ability to make a difference in a situation our society seeks to improve.”119
Two constituencies of European MNEs have both a practical ability and institutional capacity to “make a
difference” about how those MNEs interact with regimes that are not upholding European human-rights
values: [1] those with whom the MNEs do business (customers, contractors, suppliers, vendors, distributors,
et cetera) and [2] institutional shareholders and the investing public generally. The challenge — and the
opportunity — is for the E.U. to legislate a system by which those constituencies will be put in possession
of information about an MNE’s activities that raise concerns under the Convention and the Charter.120 That
approach will require legislation to determine [1] what body will receive competency to make such determi-
nations; [2] how such determinations will be communicated to the target constituencies; and [3] what the
constituencies, and others, may do with such information to exert pressure on the MNE to bring its actions
(or its failures to act) into conformance with the fundamental values of the Convention and the Charter.
As a first step, it will be important for the E.U., through an appropriate legal instrument, to make it clear
that, as Professor Ivar Kolstad has argued, for human rights to be vindicated while corporations chase profits
on a globalized plane, MNEs must have more than merely “negative duties” not to violate human rights;
they must bear “positive duties to use their powers to pressure governments into performing their assigned
duties.”121 Having made that positive duty obvious, even it not hertofore adopted as E.U. law, the E.U. can
114 ibid at 444-462.
115 Professor Parades discusses an array of those lessons, see id at 473-484.
116 The phrase comes from the last line of President Abraham Lincoln’s First Inaugural Address (4 March, 1861) available at
www.bartleby.com/124/pres31.html>.
117 Statement Of Senator Patrick Leahy (D-Vt.), Hearing On ‘Secret Law And The Threat To Democratic And Accountable Government’
Before The Subcommittee On The Constitution, United States Senate Judiciary Committee, April 30, 2008, at
ciary.senate.gov/hearings/testimony.cfm?id=e655f9e2809e5476862f735da139cdb5&wit_id=e655f9e2809e5476862f735da139
cdb5-0-1 (paraphrasing The Federalist No 51)>.
118 Shannon Raj, ‘Note, Blood Electronics: Congo’s Conflict Minerals and the Legislation That Could Cleanse the Trade’ (2011) 84 S Cal
L Rev 981, 982.
119 ibid.
120 See eg Eric A Engle, ‘Corporate Social Responsibility (CSR): Market-Based Remedies for International Human Rights Violations?’
(2004) 40 Williamette L Rev 103, 120-121 (noting the role of shareholder activism and labelling schemes in pursuit of CSR).
121 Ivar Kolstad, ‘Human rights and positive corporate duties: the importance of corporate–state interaction’ (June 2012) 21 Business
Ethics: A European Review 276 0.1111/j.1467-8608.2012.01654.x/full>; accord Letnar Cer-
nic Jernej ‘Two steps forward, one step back: the 2010 report by the UN Special Representative on Business and Human Rights,’
German Law Journal 11.11 (2010): 1264-1280, 1276(‘The obligation to protect human rights includes the obligations of corpora-
tions to protect persons from human rights violations and to support the protection of human rights by employing the corpora-
tion’s expertise and resources to protect the human rights of individuals and local communities where they operate’).
Van Detta 115
establish a means of implementation that avoids the limited efficacy of the hortatory while eschewing the
cost, complexity, complications, and corporate resistance that would attend to prescriptive regimes.
Models for such regulation that strike a careful via media between “suggested” and “coerced” CSR compli-
ance, have been implemented by both an E.U.-member nation, France, and by a non-E.U. jurisdiction, the
American state of California, in using non-coercive law to encourage MNEs to take CSR more seriously.122
Each of these approaches is examined in turn, and then a model, derived from these examples, is set out
for addressing corporate conduct that aids or abets regimes that act inconsistently with the human-rights
values enshrined in the Convention and the Charter.
1. Section 116 of France’s Nouvelles Régulations Économiques
The European CSR movement directly influenced France’s Assemblée Nationale to adopt Section 116 of
France’s Nouvelles Régulations Économiques (NRE), and a subsequent implementing decree.123 The NRE man-
dated that in their annual reporting, publicly-traded French corporations must disclose information in four
general areas, including “information, the detail of which” was to be determined “by a decree of the Council
of State,” concerning “how the company takes into account the social and environmental consequences
of its activities.”124 The subsequent decree required additional reporting on human resources, labor stand-
ards, and community interests – three issues of interest to corporate stakeholders.125 Included among the
required “community interests” disclosures are descriptions of how the company “takes into account the
territorial impact of its activities as far as employment and regional development are concerned,” as well as
“the methodology utilized by the company’s foreign subsidiaries to account for the impact of their activities
on regional development and populations.”126
This NRE-mandated social disclosure is not, of course, nor intended to be, a panacea for the concerns
that prompted its enactment in the first place.127 As Professor Dhooge has observed, the NRE-mandated
social disclosures are “incomplete and highly dependent on corporate interpretation and stakeholder utili-
zation of the proffered information.”128 Specifically, criticism has been leveled at the NRE’s limited scope that
embraces only companies publicly listed in France, imposes much lessened reporting requirements on their
foreign subsidiaries, and leaves unaddressed whether there is a reporting obligation as to international oper-
ations beyond France’s borders.129 Also, the omission of the interests of some relevant stakeholders – such as
consumers and national and local governments – has drawn criticism.130 Similarly, the NRE-mandated social
disclosures leave a great deal “dependent on the interpretation of the reporting companies of the scope
of their obligations” and requires only that companies disclose “the procedures undertaken to account for
the impact of their activities on surrounding communities,” rather than any active engagement not only in
respecting community rights, but also, in “contribut[ing] to their realization.131 Even more significantly, no
disclosure appears to be required to inform consumers and other stakeholders whether “their products and
services are … utilized to commit human rights violations.”132
Perhaps the greatest concern expressed by critics is the “absence of reporting standards or guidelines.”133
In reporting their social disclosures, companies have not been advised “with any degree of detail how this
is to be accomplished” – such as by providing “a rating system or formula for measuring compliance with
the social indicators listed in the implementing decree,” despite the “plethora of reporting frameworks,
122 Other individual EU member nations have adopted various kinds of social and/or sustainability disclosure reporting, as discussed
in Cynthia A Williams and John A Conley, ‘An Emerging Third Way? The Erosion of the Anglo-American Shareholder Value Con-
struct’ (2005) 38 Cornell Int’l LJ 493, 502-503 (discussing measures adopted in England, Belgium, Germany, Denmark, Nether-
lands, Norway, and Sweden). It is worth noting, too, the role of social disclosures in a non-E.U. member state that nonetheless is a
member of the British Commonwealth -- Australia – which had its own legislative actions concerning corporate social disclosures.
See Paul von Nessen, ‘Australian Efforts To Promote Corporate Social Responsibility: Can Disclosure Alone Suffice?’ (2009) 27UCLA
Pac Basin LJ 1, 20-34.
123 See the best English-language source for NRE Section 116 and implementing decree 2002-221, Lucien J Dhooge, ‘Beyond Volunta-
rism: France’s Nouvelles Régulations Économiques’ (2004) 21 Az J Int’l & Comp L 441, 443-452.
124 ibid at 449 (quoting Law No. 2001-420 of May 15, 2001, JO, May 16, 2001, Art 116, p 7776).
125 ibid at 450.
126 ibid at 450-451 (citation omitted).
127 ibid at 466.
128 ibid at 475.
129 ibid at 476-477.
130 ibid at 478.
131 ibid at 482.
132 ibid.
133 ibid at 483.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
116
principles and protocols” that are available.134 This leaves companies uncertain of what disclosures comply,
unable to make meaningful comparisons between their disclosures to those of other companies, and with
stakeholders who will have little ability to verify that the disclosures made are candid or to compare various
companies’ disclosures meaningfully.135
Thus, while NRE Section 116 was, and remains, a landmark regulation as “the first legal requirement in
any nation that firms develop and publicly report a ‘triple bottom line’” (i.e., social and environmental, in
addition to economic),136 the actual output from regulated companies has been both variable and confirma-
tory of the criticisms. For example, one study of the filings of 36 regulated French companies, suggests that
although “companies succeeded in reporting some version of the required information,” the responses “var-
ied considerably in form, content, length, and depth,” with some reports containing “only qualitative analy-
sis and no quantitative measures,” and a majority that did not subject the data and its sources “to verification
comparable to that applied to financial accounting information.”137
2. California’s Transparency in Supply Chains Act of 2010
The state of California chose to promote national, indeed trans-national, efforts to eliminate slave labor
in the production of products by enacting a state statute known as the California Transparency in Supply
Chains Act of 2010 (“CTSCA”).138 As described in a recent article by Professor Jonathan Todres, CTSCA “man-
dates that any manufacturer or retailer with worldwide annual gross receipts of at least $100 million that
is ‘doing business’ in the State of California disclose on its website its policies on, and measures undertaken
to, combat forced labor and trafficked persons in its supply chain.”139 The Attorney General of California is
authorised to seek an injunction against any corporation that does not comply140, which will have the effect
of making corporate officers and directors personally liable for contempt of court (a jailable offense in the
United States) if they do not then bring the corporation into compliance. The benefits of laws such as CTSCA
are explained well by Professor Todres:
[The Act] represents an important first step in securing broad-based private sector involvement in
the fight against human trafficking. Mandating disclosure on internal policies makes information
available to consumers, investors, and other businesses. In turn, they can make purchasing or other
decisions with this additional information….
If investment services start considering company responses to the [Act] when providing investment
advice to clients, businesses will have even greater motivation to take additional actions to combat
134 ibid at 483-484.
135 ibid at 484-485; for subsequent studies in French that evaluate the impact of Section 116’s disclosures in various contexts see eg
Salma Damak-Ayadi, ‘Le Reporting Social Et Environnemental Suite À L’application De La Loi NRE En France’ (2010) Comptabilité-
Contrôle-Audit 53; Fabrice Mauléon, ‘Les Obligations Réglementaires En Matière De Communication Extra Financière Des Entre-
prises: La Gestion Des Risques De Contentieux Par La Transparence’ (2008) 2 Vie & Sciences de L’entreprise 44; Franck Cochoy, ‘La
Responsabilité Sociale De L’entreprise Comme «Représentation» De L’économie Et Du Droit’ (2007) 1 Droit et société 91.
136 Mary Lou Egan and others ‘France’s Nouvelles Regulations Economiques: Using Government Mandates For Corporate Reporting
To Promote Environmentally Sustainable Economic Development’ (2003) (n 10) (presentation at the 25th Annual Research Confer-
ence of the Association for Public Policy and Management, Washington DC)
WolffBendick.pdf>.
137 ibid at 14.
138 California Transparency in Supply Chains Act of 2010, SB 657, 2010 Reg Sess, 2010 Cal Legis Serv Ch 556 (West 2010) (codified at
Cal Civ Code § 1714.43).
139 Johnathan Todres, ‘The Private Sector’s Pivotal Role In Combating Human Trafficking’ (2012) 3 Cal L Rev Circuit 80, 81. Specifically,
the act requires covered corporations to
[A]t a minimum, disclose to what extent, if any, that the retail seller or manufacturer does each of the following:
(1) Engages in verification of product supply chains to evaluate and address risks of human trafficking and slavery. The
disclosure shall specify if the verification was not conducted by a third party.
(2) Conducts audits of suppliers to evaluate supplier compliance with company standards for trafficking and slavery in sup-
ply chains. The disclosure shall specify if the verification was not an independent, unannounced audit.
(3) Requires direct suppliers to certify that materials incorporated into the product comply with the laws regarding slavery
and human trafficking of the country or countries in which they are doing business.
(4) Maintains internal accountability standards and procedures for employees or contractors failing to meet company
standards regarding slavery and trafficking.
(5) Provides company employees and management, who have direct responsibility for supply chain management, training
on human trafficking and slavery, particularly with respect to mitigating risks within the supply chains of products.
Cal. Civ Code § 1714.43(c).
140 Cal Civ Code § 1714.43(d).
Van Detta 117
trafficking and slave labor in their supply chains. Pressure from and campaigns by human rights
organizations that highlight companies which are not doing enough in their eyes could further
press manufacturers and retailers covered by the California law to do more. Over time, this disclo-
sure law could spur meaningful changes in the private sector. Whether that happens will depend in
large part on the response to companies’ disclosure by investors, customers, human rights organiza-
tions, and anti-trafficking advocates.141
The California law has been criticized for leaving the nature and extent of the minimally compliant disclo-
sures ambiguous142, which some (but not all) corporations have seized upon to provide little information143,
and which, at a minimum, will need to be strengthened by interpretative regulations from the Attorney Gen-
eral’s Office.144 Some commentators have proposed specific revisions to laws like CTSCA, including a federal
version that has been discussed in the U.S. Congress,145 and these proposals should be studied carefully by
any E.U. body that might consider a similar enactment directed at certifying the human-rights compliance of
any government or government-sponsored undertaking in which an E.U. corporation participates.
3. Synthesis: An E.U.-Mandated Human Rights Scoring and Labeling System to Publicize the
Extent of Individual E.U. Corporate Harmony with E.U. Human Rights Norms, both Inter-
nally and in Foreign Investments and Collaborations
Distilling all of the foregoing discussions about CSR, LGBTI rights in the E.U., and the promise of social dis-
closure/transparency as an approach to regulating E.U. corporate CSR in the pursuit of promoting human
rights, the following proposal is made:
1. The European Commission should propose a corporate disclosure regulation law to the European
Parliament that requires companies with any E.U.-based operations to disclose whether they do busi-
ness with, or participate as sponsors of, political entities that fall short of full compliance with the
norms established by the Convention and the Charter. The law must also provide for the creation and
implementation of a human-rights record “scoring and labeling” system that the products, services,
advertising, and other business activities of each corporation must integrate so that the prescribed
labeling is noticeable and conspicuous to stakeholders, customers, consumers, and the general
public.146
2. To further its impact, the law should provide for an authority whose work will be in creating and
implementing a scoring and labeling system to give real meaning to a disclosure law.
3. The authority would have two principal missions. First, to provide independent, neutral ratings
of how well the laws and practices of national governments and government-backed projects or
141 Todres (n 139) 97 (footnotes omitted).
142 ibid 95-97.
143 See id Professor Todres has surveyed corporate disclosures made pursuant to CTSCA, and explained the range of disclosures that
companies are making pursuant to it:
‘Although the full impact of any new law can take years to assess properly, because the [Act] requires companies to post
their disclosure on their websites, it is possible to obtain an early picture of initial responses to the new law. Based on
this early limited evidence, it appears businesses are responding to the [Act] in one of four ways. First, some businesses
are detailing policies and measures in place, evidencing a commitment to combating human trafficking and use of
slave labor in their supply chains. Second, some businesses are providing disclosure that suggests they may not have
undertaken significant steps to date but are committing to particular actions to fulfill the intent of the new law. Still
other companies are disclosing that they are taking steps, but their disclosure merely tracks the statutory language and
states they are doing what the law seeks without providing any details on how they are accomplishing this. Finally, it
appears that at least a few companies understand the law literally as only requiring disclosure, and its disclosure reports
that it is undertaking none of the measures the law sets out to combat human trafficking and the use of slave labor in
its supply chains.’
ibid at 95 (footnotes omitted).
144 See id at 96 (‘Although at least some companies’ counsel have indicated that merely confirming the company is or is not doing
anything with regard to the measures outlined in the California Transparency Act technically constitutes compliance, the state
Attorney General might decide otherwise’).
145 Sophia Eckert, ‘The Business Transparency On Trafficking And Slavery Act: Fighting Forced Labor In Complex Global Supply Chains’
(2013) 12 J Int’l Bus & L 383, 399-403, 407-414.
146 For commentators discussing the need for social disclosures to be mandated, rather than voluntary, see Joshua A Newberg, ‘Cor-
porate Codes Of Ethics, Mandatory Disclosure, And The Market For Ethical Conduct’ (2004) 29 Vt L Rev 253, 294 (fn 201) (citing
authorities).
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
118
undertakings accord with both the fundamental values, as well as specific provisions, of the
Convention, Charter, and related instruments and policies. It is, of course, understood that foreign
governments and undertakings are not actually subject to the Convention, Charter, and other E.U.
instruments and policies. The purpose of this activity is to put E.U. corporations on notice that their
disclosure obligations are triggered, and to alert the public to look for such disclosures. CSR rat-
ings147 and indices148 have been developed by private concerns for a number of years now, and those
private-sector methodologies can inform the authority’s effort to establish a human-rights rating
system. This will require much more than merely appropriating the private-sector ratings systems,
for “diversity characterizes the field of sustainability reporting, with a variety of disclosure practices
and different standards of reporting being developed and promoted.”149 Moreover, the authority will
need to devise extensive and coordinated strategies to publicize the ratings system and gain — and
hold — the relevant audiences’ attention in order for the scoring and labeling system to be more than
ephemerally effective.150
4. The second mission of the authority will be to prescribe the nature, duration, and location of the dis-
closures that E.U. corporations must make — and to determine how the authority can translate that
information into a cognitively digestible labeling regime. This is not uncharted territory, of course.
The E.U. has previously rolled out labeling in a variety of contexts, including genetically-modified
foods,151regional culinary traditions,152 and energy-consumption by consumer products.153 That expe-
rience should prove invaluable. That does not mean, however, the project can be simply replicated
from the other European labeling regimes. Substantial questions will have to be carefully vetted and
considered, such as:
a. Would the authority use disclosure of a particular human-rights violation, or a particular kind
of human rights violation, as the basis for labeling? Or would the authority simply issue ratings,
with the scoring system designed to reflect various kinds of human rights violations in a country’s
(or a company’s) record?
b. Would the authority mandate disclosure, and correlative labeling, for corporate assistance to, or
collaboration with, foreign regimes that do not fully embrace E.U. human rights standards? How
would that labeling differ, if at all, from the labeling of more direct human-rights violations by
the company itself?
147 See eg Aaron K. Chatterji and David I Levine and Michael W. Toffel, ‘How Well Do Social Ratings Actually Measure Corporate Social
Responsibility?’ (2009) 18 J Econ & Mgt Strategy 125; Charles J Fombrun, ‘Measuring Corporate Social Responsibility’ (January
2005) 7 Corp Reputational R, 304. It is worth noting here that CSR ratings have come to be seen as stabilizing offsets to adverse
events, such as product recalls. See Dylan Minor and John Morgan, ‘CSR As Reputation Insurance: Primum Non Nocere’ (2011) 53
Cal Mgt Rev 40.
148 Cory Searcy and Doaa Elkhawas, ‘Corporate Sustainability Ratings: An Investigation Into How Corporations Use The Dow Jones Sus-
tainability Index’ (2012) 35 J Cleaner Production 79; Steven Scalet and Thomas F Kelly, ‘CSR Rating Agencies: What Is Their Global
Impact?’ (2010) 94 J. Bus Ethics 69; Maria Gjølberg, ‘Measuring The Immeasurable? Constructing An Index Of CSR Practices And
CSR Performance In 20 Countries’ (2009) 25 Scandinavian J. Mgt 10; Avshalom Madhala Adam and Tal Shavit, ‘How Can a Ratings-
Based Method for Assessing Corporate Social Responsibility (CSR) Provide an Incentive to Firms Excluded from Socially Responsible
Investment Indices to Invest in CSR?’ (2008), 84 J Bus Ethics 899.
149 Mohamed Chelli and Yves Gendron, ‘Sustainability Ratings and the Disciplinary Power of the Ideology of Numbers’ (2013) 112 J
Bus Ethics 187. Chelli and Gendron also observe that although ‘a number of agencies have sought to bring a sense of order in the
field through the production of sustainability ratings, … heterogeneity,’ rather than homogeneity, ‘characterizes the methods that
they use.’ Id at 187-188. For an overview of the major CSR indexing and ratings approaches, see Alexis Cellier and Pierre Chollet,
‘The Impact Of Corporate Social Responsibility On Stock Prices: An Event Study Of Vigeo Rating Announcement’, ANR Program:
Potentiel regulatoire de la RSE (2010) .kadinst.hku.hk/sdconf10/Papers_PDF/p232.pdf>.
150 See eg Alexis Celliera and Pierre Cholleta, ‘The Impact of Corporate Social Responsibility Rating Announcement On Stock Prices:
An Event Study On European Market’, Universite Paris-Est, Institut de Recherche en Gestion (2011)
viewdoc/download?rep=rep1&type=pdf&doi=10.1.1.225.3990>; Sankar Sen and C B Bhattachary, ‘Does Doing Good Always Lead
to Doing Better? Consumer Reactions to Corporate Social Responsibility’ (2005) 38 J Marketing R 225; see also Alex Wang, ‘The
Effects Of Firms’ Advertising Disclosures As A Reflection Of CSR Practices On Consumer Responses’ (2011) 7 Social Resp J 592.
151 See eg Valery Federici, ‘Genetically Modified Food and Informed Consumer Choice: Comparing US and EU Labeling Laws’ (2010) 35
Brook J Int’l L 515; Yves Tiberghien, ‘Competitive Governance and the Quest for Legitimacy in the EU: the Battle over the Regulation
of GMOs since the mid-1990s’ (2009) 31 J Euro Integr 289; Rachele Berglund Bailey, ‘A Tale Of Two Systems: A Comparison Between
US And EU Labeling Policies Of Genetically Modified Foods’ (2009) 15 San Joaquin Agric L Rev 193; Jean-Christophe Bureau and
Egizio Valceschini, ‘European Food-Labeling Policy: Successes And Limitations’ (2003) 34 J Food Distr Res 70.
152 Gsela Welz, ‘Contested Origin: Food Heritage and the European Union’s Quality Label Program’ (June 2013)16 Food, Culture, &
Soc’y 265, 267-268.
153 Stefanie Lena Heinzle and Rolf Wüstenhagen, ‘Dynamic Adjustment of Eco-labeling Schemes and Consumer Choice – the Revision
of the EU Energy Label as a Missed Opportunity?’ (2012) 21 Bus Strat Env60.
Van Detta 119
c. How would a disclosure or rating appear on a company’s products, services, and promotional
materials? Should it be of a “demerit” nature—a warning, in effect, of the corporation’s dalli-
ance with human rights-violators? Or should it be a mark of distinction – reserved for those
corporations who do business only with human-rights respecters? In addition to the European
experience with genetic-modification and culinary-cultural heritage ratings, the use of labels
– colloquially known sometimes as “union bugs” – to identify products manufactured by
employees who belong to a labor union is a long-standing practice and has generated consid-
erable experience from which the envisioned authority might draw.154 The authority will also
need to be cognizant of research on the archetypes of consumer responses to CSR disclosure.155
d. How would the disclosure or rating appear in the company’s advertising? How would the format
of the disclosure or rating be adjusted for the particular nature, and target audiences, of various
media – e.g., for internet, print, broadcast communications (e.g., television, CATV, radio) or other
tangible medium (signs, billboards, banners et cetera)? The disclosure or rating would have to be
simple and straightforward. Media and advertising experience and expertise would be needed
in order to identify and address the practical difficulties in implementing the ratings and disclo-
sures in different kinds of media.
e. What level of business transactions or collaboration between the company and a sovereign that
is non-complaint with European human-rights values would have to be present before the dis-
closure and labeling requirement is triggered? As just one of many paradigms that would have
to be considered, would a European company whose products are distributed in one of the 32
U.S. States that retains the death-penalty have a disclosure and labeling obligation?156 (Contrast
that hard case with the relatively more direct and therefore straightforward case of an MNE, one
of whose subsidiaries was—at least before the E.U.’s ban157—selling pharmaceutical chemicals to
State penal authorities for use in carrying out the death penalty within that State.)
5. To insulate it from the distorting and wearying effect of lobbying, the authority would need to have
both expertise and remoteness from Brussels or Strasbourg — it would hardly do if the authority
were assailable by the onslaught of lobbying that American law firms, among others, have directed
at other E.U. officials, for example.158 The authority should be able to seek advisory opinions from
the Venice Commission about whether particular practices or laws are incompatible with European
154 See eg A Bug’s Life, Social Design Notes (3 Jan 2003) ; Jeff Rosen and
Susan Parker Sherwood, ‘Look for the Union Label: A Celebration of Union Logos and Emblems—Online Exhibit’, Labor Archives &
Research Center, San Francisco State University Leonard Library, .library.sfsu.edu/about/depts/larc.php>; ‘University
Of California Librarian Calls For Union Labels To Increase Worker Visibility—Archivist Wants To See Updated, Expanded Use Of
Graphics To Energize Labor Movement’, (California Teacher, Nov/Dec 2005) .docspopuli.org/articles/UnionLabels/
Use_the_union_label.html; Heidi Thorne, ‘Union Made Promotional Products’ (PWP Blog) at
promotional-products-what-is-a-bug/>; Monroe M Bird and James W Robinson, ‘The Effectiveness of the Union Label and “Buy
Union” Campaigns’ (2013) 25 Indus & Lab Rel Rev 512.
155 See eg Lois A Mohr and Deborah J Webb and Katherine E Harris, ‘Do Consumers Expect Companies To Be Socially Responsible? The
Impact Of Corporate Social Responsibility On Buying Behavior’ (2001) 35 J Consumer Affairs 45.
156 Such as the sale of Michelin tires in the US State of North Carolina, which retains the death-penalty. See ‘USA: Maryland joins
global trend against the death penalty’ (Amnesty Int’l, 2 May 2013) .amnesty.org/en/news/usa-maryland-joins-global-
trend-against-death-penalty-2013-05-02>; Sharon McCloskey,’ North Carolina Adopts A New Death Penalty Protocol’ (NCWatch,
5 November2013) http://www.ncpolicywatch.com/2013/11/05/north-carolina-adopts-a-new-death-penalty-protocol/; see also
Goodyear Dunlop Tires Operations, SA v Brown, 131 S Ct 2846 (US 2011)(describing factually similar, limited distribution of Good-
year Luxembourg Tires, SA, Goodyear Lastikleri TAS (Goodyear Turkey), and Goodyear Dunlop Tires France, SA products in North
Carolina).
157 See eg Chris Woolston, ‘Death Row Incurs Drug Penalty—Bid To Use Common Anaesthetic For Executions Threatens To Cut Off
Supply To US Hospitals’ (Nature, 22 Oct. 2013) .nature.com/news/death-row-incurs-drug-penalty-1.13996>; ‘Death
Penalty Opposition: EU Set to Ban Export of Drug Used in US Executions’, (Der Spiegel Online International,12 Dec 2011)
www.spiegel.de/international/europe/death-penalty-opposition-eu-set-to-ban-export-of-drug-used-in-us-executions-a-803238.
html>.
158 See Eric Lipton and Danny Hakim,’ Lobbying Bonanza as Firms Try to Influence European Union’ (18 Oct 2013) (NY Times, (18
Oct 2013), .nytimes.com/2013/10/19/world/europe/lobbying-bonanza-as-firms-try-to-influence-european-union.
html>. Indeed, the kind of remoteness that comes to mind is that of the Nobel Prize Prize Committee, which Alfred Nobel took out
of Sweden and in his will entrusted to a jury of ex-Norwegian parliamentarians:
After all, imagine you had to invent a jury with integrity and a lack of vanity or need for limelight. You couldn’t go too
wrong with a group of Norwegian ex-politicians.
This may have been what Mr. Nobel had in mind when he selected Norway as the state to deliver his peace prize. In
contrast to Sweden, where the prizes for science are awarded, Norway never aspired to rule other nations and, from very
early on, supported the idea of internationalism and peace conferences.
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
120
human-rights norms, and to act on those opinions by imposing “human-rights disclosure labeling”
requirements on MNEs who are supporting the government progenitors of the offending practices.
Admittedly, these are only some – surely not all – of the questions and challenges that the European Com-
mission, and the newly created authority, would have to address. But the promise of enlisting corporations
to use their vast power and influence to improve human-rights observance in non-E.U. countries to the
European level will make the difficulty of the journey worthwhile.
Imagine, for a moment, the impact of a uniform, well-publicized, and prominent system of human-rights
disclosure labeling, displayed in every advertisement for an MNE, in all media; in every investment prospec-
tus in notices to shareholders, customers, clients, vendors, et cetera; on all corporate web presences; on the
packaging of any product that the MNE is involved in producing; on all of the MNE’s parent and subsidiar-
ies’ websites; and in guides promoted and made readily available throughout the E.U. The power of such a
regulatory approach is particularly strong around Olympic sponsorships, which are all about MNEs getting
a huge “boost” to the value and goodwill generated by their own brand in the process of associating it with
the Olympic brand. However, as recent studies have shown, the affiliation of an organization’s brand with
the Olympic brand is tempered by the role of “attribution judgments of the consumer into the evaluation
of organizational CSR practices”: “[W]hen consumers perceive CSR to be implemented for strategic reasons”
– rather than societal and stakeholder-driven values – the effectiveness diminishes “and can even cause
‘diminishing returns’ for the organization.159 In short, the “lift” that an MNE’s brand expects to receive by
sponsoring a foreign government undertaking will be muted or effectively cancelled out by the disclosure
that the activity is one that the neutral authority has identified as that of a government that does not con-
duct either governance or lawmaking (or both) in accordance with European human-rights values and provi-
sions of European law – which is a revelation consistent with contemporary movements focusing on CSR in
corporate marketing generally.160
Although sketched out only in broad strokes, the approach proposed here in concept combines the public
pressure engine that fuels voluntary CSR with public disclosures mandated by law to optimize the informa-
tion and mobilization of public opinion and pressure – factors particularly noteworthy given the powerful
“branding” benefits that MNEs, like Atos, seek through Olympic sponsorship.161
VII. Concluding Thoughts on the Road Traversed, and the Road Ahead
If the sometimes elusive-to-define concept of CSR is to mean anything, it surely means that corporations
must be committed to supporting human rights across the board, not only in their home countries and
host nations, but in any sovereign whose land and people the activities of a corporation touch and concern.
Europe’s commitment to human rights generally, and to the human rights of LGBTI individuals among its cit-
izens and the citizens of the world specifically, is being undermined and dishonored by seemingly innocuous
conduct in which Europe’s major corporations are engaged. Atos SE’s sponsorship of the Sochi Winter Olym-
pic Games is an instructive, but by no means exclusive, example of the problem. Examining it has allowed us
to “socially construct” CSR “in the specific context” of its human rights dimension. Because of the centrality
of human rights to the E.U.’s very existence, the author’s CSR working definition in the human rights context
has treated CSR’s imperative to go beyond the minimal in protecting and promoting human rights. On that
basis, the author set out, in Section VI, a proposal for developing an approach to employing disclosures in
regulating CSR to promote human rights — an approach learning from, and improving upon, Section 116 of
France’s Nouvelles Régulations Économiques and California’s Transparency In Supply Chains Act of 2010. In
Jochen Bittner, ‘Don’t Blame The Norwegians’ (N.Y Times, 11 Oct 2013) 3/10/12/opinion/the-
problem-with-the-prize.html>.
159 Matthew Walker and others, ‘Social Responsibility and the Olympic Games: The Mediating Role of Consumer Attributions’ (2010)
9 J Bus Ethics 659, 675.
160 See eg Patrick E Murphy and Magdalena Oberseder and Gene R. Laczniak, ‘Corporate Societal Responsibility In Marketing: Norma-
tively Broadening The Concept’ (2013) 3 Acad Marketing Sci. 86; see generally Anne Ellerup Nielsen and Christa Thomsen, ‘Corpo-
rate Social Responsibility (CSR) Management and Marketing Communication: Research Streams and Themes’ (2012) 49 Hermes—J
Lang & Comm Bus 49.
161 Indeed, Atos has already had some experience with sponsorship dilution: their sponsorship of the Paralympic Games in the UK led
to unwanted publicity of their role in making controversial “fitness to work assessments” under contract with the UK’s Department
of Work Pensions. See Nina Lakhani and Jerome Taylor, ‘Hundreds Protest Against Paralympics Sponsor Atos As Anger About Its
Role In Slashing Benefits Bill Intensifies’ (The Independent, 29 Aug 2012) .independent.co.uk/news/uk/home-news/
hundreds-protest-against-paralympics-sponsor-atos-as-anger-about-its-role-in-slashing-benefits-bill-intensifies-8092512.html>;
see ‘Disabled People Protest Against Atos Role In Paralympics’ (The Guardian, 31 Aug 2012)
ety/video/2012/aug/31/disabled-protest-atos-paralympics-video>.
Van Detta 121
making the proposal, the author does not purport to have “all” of “the answers,” or even a significant part of
them. The proposal is, it is hoped, a launching point for further dialogue within the E.U. about creating a sys-
tem under which E.U.-based corporations are held to account to their stakeholders and the consuming public
generally about the extent to which they are aiding and abetting regimes that fall short in significant ways
of honoring the commitment to human rights that Europe has made in the Convention and in the Charter.
Thus, to borrow an apropos passage from one of Winston Churchill’s most famous orations, “Now this is
not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”162
Author Information
The author is the John E. Ryan Professor of International Business and Workplace Law at Atlanta’s John Mar-
shall Law School, where he also serves as the Associate Dean for Faculty Scholarship. In addition to holding
the B.A. (summa cum laude) and J.D. (cum laude) degrees, the author is pursuing an LL.M. with a Specialisa-
tion in Foreign and Comparative Law through the University of London’s International Programmes. The
author expresses his deep appreciation to the Editorial Board for their excellent work in bringing this article
to print and to the peer reviewer for insightful commentary and helpful suggestions that inspired the author
considerably in preparing the final manuscript version for the editorial process. The author can be reached
by e-mail at jvandetta@johnmarshall.edu, and his faculty page can be accessed at http://www.johnmarshall.
edu/facultystaff/jeffrey-a-vann-detta/
162 Winston S. Churchill, ‘A Speech At The Lord Mayor’s Day Luncheon At The Mansion House’, London, 9 November 1942, in War
Speeches: The End of The Beginning 265 (1943)
Sexual Orientation, Human Rights, and Corporate Sponsorship of the Sochi Olympic Games:
Rethinking the Voluntary Approach to Corporate Social Responsibility
122
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How to cite this article: Jerey Van Detta, ‘Sexual Orientation, Human Rights, and Corporate Sponsorship of the
Sochi Olympic Games: Rethinking the Voluntary Approach to Corporate Social Responsibility’ (2014) 30(78) Utrecht
Journal of International and European Law 99, DOI: http://dx.doi.org/10.5334/ujiel.cf
Published: 28 February 2014
Copyright: © 2014 The Author(s). This is an open-access article distributed under the terms of the Creative
Commons Attribution 3.0 Unported License (CC-BY 3.0), which permits unrestricted use, distribution, and
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