Analysis Criterion – International Law

The Storebrand Standard

Storebrand aims to invest in companies that contribute actively to sustainable development. We believe such practices – when integrated into core business – will be financially rewarded. Furthermore, we have implemented a standard across the Group – the Storebrand standard – that leads to certain companies being excluded from investment, including those involved in serious violations of international law.

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Definition

International law encompasses rules and principles of general application dealing with the conduct of nations and international organisations, as well as some of their relations with persons, whether natural or juridical. Storebrand has a separate criterion for human rights and thus human rights are not included in this description. This criterion focuses mainly on international criminal law and humanitarian law.

Background

Whereas historical warfare used to involve one state against another, modern conflicts have changed considerably. Since the Second World War, an increasing number of non-state actors have become involved in armed conflicts, such as private military forces. In addition, traditional companies may also be involved indirectly while carrying out economic activities, for example by exploiting natural resources. These activities may lead to the financing of campaigns of violence, perhaps causing the conflict or its continuation.

Several studies and reports by the International Committee of the Red Cross describe how business activities during an armed conflict might fall under the scope of international humanitarian law and could constitute war crimes. The International Commission of Jurist has also issued several reports analysing corporate responsibility in armed conflict situations, specifically corporate complicity or contribution to international crimes.

Even though there is no forum where companies can be prosecuted as legal entities under international law, company officials have been tried for crimes under international criminal law, for example following the Second World War by the Nuremberg Tribunal for being involved in crimes of the Nazi regime ¹. Furthermore, as national legal systems incorporate international criminal law into their domestic legislation, they often include legal entities, including companies, in the list of potential perpetrators. This has been the case in Norway since March 2008 and the Norwegian Penal Code counts over 16 war crimes for acts committed abroad “on behalf of an enterprise registered in Norway” ².

In this context, Storebrand evaluates cases where companies might contribute to breaches of international humanitarian law, international criminal law and other fundamental ethical norms or international law in general, including human rights. This usually occurs when companies have operations in conflict areas or under repressive regimes, occupied territories or Non-Self-Governing Territories. For example, Storebrand will assess situations where security companies assist an occupying state to “maintain the peace” in a conflict area, help an occupying state power to extract the natural resources of an occupied territory, help the occupying power by selling goods and services that further the occupation or the settlement of the occupying power’s civilians in occupied territories or may contribute to genocide by funding campaigns of violence. In addition, Storebrand will also require companies to examine their supply chains to ensure that their buying of raw materials, for example, is not contributing to conflict, such as in the case of conflict minerals.

As an investor, Storebrand is concerned that companies act responsibly and not in a way that causes damage to operations or reputation, results in legal action, or diminishes future business opportunities.

International law and conventions

The UN Charter, The Hague and Geneva Conventions together with UN Resolutions, decisions from the International Court of Justice and decisions from the International Criminal Court form the basis for Storebrand’s international law violations criterion.

Conventions and UN Resolutions central to the International Law Criterion

  • The UN Charter – Geneva Protocol to the Hague Convention
  • The Geneva Conventions – UN Security Council Resolutions
  • Protocols additional to the Geneva Conventions – UN General Assembly Resolutions
  • The Hague Conventions – International Court of Justice Decisions, International Criminal Court Decisions
  • The International Committee of the Red Cross’ work and its essential rules on international humanitarian law, although not legally binding, also serve as guidance for Storebrand’s international law criterion in addition to, in some cases, references to EU and Norwegian/Swedish official recommendations on international law matters.

Furthermore, a long series of voluntary guidelines also inform this criterion such as UN Guiding Principles, OECD Guidelines for multinationals in "weak governance" zones, UNGP & PRI Guidance on Responsible Business in conflict-affected and high-risk areas and the Voluntary Principles on Security and Human Rights. In addition, regarding private military and security companies, Storebrand will assess company behaviour based on the Montreux Document and the International Code of Conduct for Private Security Services Providers.

Scope

Storebrand will not invest in companies involved in serious violations of international law. In the event that subsidiaries of a company are involved in serious violations of international law, but are not publicly listed, the closest listed company above the subsidiary in the hierarchy, with a controlling interest, is excluded. In the event that a subsidiary involved is listed, the parent company is also excluded if it has a controlling interest in the subsidiary. If a parent company is involved in serious violations of international law, listed subsidiaries are only excluded if they are involved in the same unacceptable activities. Storebrand will also consider exclusion in cases where suppliers or other business partners (such as joint ventures), systematically violate the criterion. Storebrand will not exclude companies based on operations in specific countries, but will assess the manner in which they run their business in the countries where they operate.

¹For example for supplying Zyclon B gas to concentration camps.

²LOV 2005-05-20 nr 28: Lov om straff (straffeloven). Kapittel 4. Foretaksstraff

References

UN – International Law

American Law Institute, Restatement 3rd, Section 10, International Law

New York University, GlobaLex, Introduction to Public International law research

International Court of Justice, Charter of the UN

University of Bologna, Research Guide to International Law on the Internet

The International Committee of the Red Cross (ICRC), "What is Humanitarian Law"

The International Committee of the Red Cross (ICRC), ”The International Committee of the Red Cross as guardian of international humanitarian law”

Cassese, A. (2005) International Law, Oxford: Oxford University Press

Document last updated: September 2016

Criterion enforced since: 2005

Storebrand Asset Management AS

This report is provided by Storebrand Asset Management for the purposes of information only. Whilst reasonable care is taken in compiling the information contained herein, Storebrand Asset Management gives no guarantee as to its completeness, accuracy or correctness. All opinions constitute Storebrand Asset Management´s judgment as of the date of this document and are subject to change without notice. Storebrand Asset Management shall not be liable for any loss of profit or indirect or consequential loss arising from any use of information in this report.