Damned if You Do,Damned if You Don't? The Lundbeck Case of Pentobarbital,the Guiding Principles on Business and Human Rights,and Competing Human Rights Responsibilities

The Protect, Respect, Remedy Framework was developed in 2005–2008 by Professor John Ruggie, the UN Secretary-General's Special Representative on Business and Human Rights. For details, see below Section 3.

Dansk Biotek website, available at <http://www.danskbiotek.dk/member/h-lundbeck> (last visited May 1, 2012).

Nicholl D. , “Lundbeck and Pentobarbital: Pharma Rakes a Stand,” The Guardian, July 1, 2011.

Reprieve, “Danish Pharmaceutical Company Lundbeck Votes to Continue Supplying Pentobarbital for Lethal Injections,” March 25, 2011.

Lundbeck , Lundbeck's Position Regarding the Misuse of Pentobarbital, 2011, available at <http://www.lundbeck.com/global/media/lundbecks-position-regarding-the-misuse-of-pentobarbital> (as of December 9, 2011).

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, Adopted and proclaimed by General Assembly resolution 44/128 of December 15, 1989.

Reprieve, “Danish Pharmaceutical Company Lundbeck Votes to Continue Supplying Pentobarbital for Lethal Injections,” March 25, 2011, referring to Dr. David Waisel, Associate Professor of Anaesthesia at Harvard Medical School.

Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, International Law Reports 121 (2002): 213.

Lundbeck, Lundbeck Overhauls Pentobarbital Distribution Program to Restrict Misuse , Press Release, July 1, 2011.

Committee on Economic, Social and Cultural Rights (2000) General Comment No. 14 - The right to the highest attainable standard of health, UN Doc. E/C.12/2000/4, August 11, 2000, paras. 4, 8 and 9.

General Comment No. 14, para. 12.

General Comment No. 14, para. 17.

General Comment No. 14, esp. at para. 33.

General Comment No. 14, para. 42.

General Comment No. 14, para. 43 (d) and (e).

General Comment No. 14, paras. 48–52.

General Comment No. 14, paras. 63–65.

SRSG, State Responsibilities to Regulate and Adjudicate Corporate Activities under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UN Doc. A/HRC/4/35/Add.1, February 13, 2007.

United Nations Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights 2003, UN doc. E/CN.4/Sub.2/2003/12/Rev.2.

UN Doc. E/CN.4/2005/L.87, April 15, 2005.

Commission on Human Rights, Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. E/CN.4./2005/L.87, April 15, 2005, para. 1.

SRSG, Protect, Respect and Remedy: A Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, UN Doc. A/HRC/8/5 (2008), April 7, 2008.

Human Rights Council, Mandate of the Special Representatiive of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises , Human Rights Council Resolution, June 7/8, 2008.

SRSG, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect, Remedy’ Framework, UN Doc. A/HRC/17/31, March 21, 2011.

Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises, July 6, 2011, UN doc. A/HRC/RES/17/4.

Id.

Art. 71 of the UN Charter empowers the UN Economic and Social Council (ECOSOC) to “make suitable arrangements for consultation” with NGOs “which are concerned with matters within its competence.”

For details on the development of the UN Framework and Guiding Principles, see Knox J. H. , “The Ruggie Rules: Applying Human Rights Law to Corporations,” in Mares R. , ed., The UN Guiding Principles on Business and Human Rights (Antwerp: Brill, 2012): At 51–83; and Buhmann K. , “Development of the “UN Framework”: A Pragmatic Process towards a Pragmatic Output,” in Mares R. , ed., The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Martinus Nijhoff Publishers, 2012): At 85–106.

Published in the report to the General Assembly of the UN Special Rapporteur on the right to the highest attainable standard of health (UN document: A/63/263, dated August 11, 2008).

See SRSG, supra note 22, at para.54.

Id., at paras. 56–58.

Id., at para. 58.

Id., at paras. 59–63.

Id., at paras. 54–55.

“Complicity in the business and human rights context refers to the indirect involvement of companies in human rights abuses. In essence, complicity means that a company knowingly contributed to another's abuse of human rights. It is conceived as indirect involvement because the company itself does not actually carry out the abuse. In principle, complicity may be alleged in relation to knowingly contributing to any type of human rights abuse, whether of civil or political rights, or economic, social and cultural rights.” SRSG, Clarifying the Concepts of “Sphere of Influence” and “Complicity,” UN Doc. A/HRC/8/16, May 15, 2008, at para. 30, see also at paras. 26–29.

See Guiding Principles, supra note 24, at “Introduction,” at para. 13.

Id., at Introduction, para. 15.

Id., at Introduction, para. 14.

Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, United Nations, Geneva and New York, 2012.

In the 1989 landmark case Soering vs. the United Kingdom, the European Court of Human Rights found that what amounts to “inhuman or degrading treatment or punishment” depends on all the circumstances of the case. Although concerned mainly with the “death row phenomenon,” with reference to its previous case law, the Court noted that treatment has been held by the Court to be both “inhuman” because it was premeditated, was applied for hours at a stretch and “caused, if not actual bodily injury, at least intense physical and mental suffering.” The Court noted in the Soering case that such factors as the execution method, the detainee's personal circumstances, the sentence's disproportionality to the gravity of the crime, and conditions of detention could all violate Article 3 of the European Convention on Human Rights. Soering v. the United Kingdom, application no. 14038/88, European Court of Human Rights, paras. 89, 100, 104. In addition, as noted by Amnesty International, the death penalty “will inevitably claim innocent victims.” Amnesty International, The Death Penalty: Questions and Answers, available at <http://www.amnestyusa.org/pdfs/dp_qa.pdf> (last visited May 2, 2012).

The concept of complicity is addressed in the SRSG's 2008 UN Framework report, supra note 22, at paras. 73–82, and in more detail in a companion report to the main 2008 report, Clarifying the Concepts of “Sphere of Influence” and “Complicity,” UN Doc. A/HRC/8/16, May 15, 2008). The legal and related financial risks that companies may encounter by disregarding human rights are discussed, for example, in the SRSG's 2010 report to the Human Rights Council, SRSG, Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/14/27, April 9, 2010.

See Interpretive Guide, supra note 39, at 7.

See further Guiding Principles 11, 12 and 13; Interpretive Guide: 13, 15–16.

See Guiding Principle 19; Interpretive Guide, supra note 39, at 18.

See Guiding Principle 19; Interpretive Guide, supra note 39, at 18.

See Guiding Principle 19 – commentary; Interpretive Guide, at 8.

See Interpretive Guide, supra note 39, at 44.

See Nicholl , supra note 3.

The Interpretive Guide (at p. 9) provides this definition of salient human rights: “The most salient human rights for a business enterprise are those that stand out as being most at risk. This will typically vary according to the enterprise's sector and operating context. The Guiding Principles make clear that an enterprise should not focus exclusively on the most salient human rights issues and ignore others that might arise. But the most salient rights will logically be the ones on which the enterprise concentrates its primary efforts,” compare p. 27 which notes that for “a pharmaceutical company, the right to health will be particularly salient.”

See Interpretive Guide, supra note 39, at 30.

Id., at 31–32.

Id., at 38.

Id., at 67.

See Lundbeck, supra note 9.

Id.

Amnesty kritiserer skarpt Lundbeck [Amnesty criticizes Lundbeck sharply] Business.dk, February 16, 2011; Amnesty International, Lundbeck lægger pres på amerikanske stater [Lundbeck putting pressure on American states], June 6, 2011.

Information from Amnesty International, Denmark, to author. The drop-ship program was proposed by Reprieve.

The Pentobarbital Experiment, “Lundbeck's Pentobarbital Kills Its 27th Patient in Texas, Its 28th in Georgia on September 21, 2011 and Its 29th Patient in Alabama on September 22, 2011,” September 25, 2011 (when accessed December 9, 2011, the link included reference to “recent post” with information that a 36th individual had been killed in Texas on November 16, 2011.)

Id. (when accessed December 9, 2011, it included a reference to a “recent post” with information that a 36th individual had been killed in Texas on November 16, 2011.) Compare Amnesty International, supra note 56, making reference to 13 individuals executed since December 2010, and Nicholl , supra note 3, which notes that at that time 17 individuals had been executed by use of a lethal cocktail containing pentobarbital.

After this article was drafted, Lundbeck announced in a press release dated December 22, 2011 that the company has sold of a portfolio of products, including Pentobarbital, to another company, and that the acquiring company will continue the drop-ship program. The transaction was explained to be based on a strategic business decision to focus on newer products. Lundbeck , Lundbeck frasælger en række produkter i USA som led i sin langsigtede forretningstrategi, [As part of long term business strategy Lundbeck sells of range of products in the US], Press Release, December 22, 2011.