{"status":"ok","message-type":"work","message-version":"1.0.0","message":{"indexed":{"date-parts":[[2022,12,21]],"date-time":"2022-12-21T16:29:08Z","timestamp":1671640148691},"reference-count":60,"publisher":"Cambridge University Press (CUP)","issue":"2","license":[{"start":{"date-parts":[[2021,1,1]],"date-time":"2021-01-01T00:00:00Z","timestamp":1609459200000},"content-version":"unspecified","delay-in-days":3288,"URL":"https:\/\/www.cambridge.org\/core\/terms"},{"start":{"date-parts":[[2012,1,1]],"date-time":"2012-01-01T00:00:00Z","timestamp":1325376000000},"content-version":"tdm","delay-in-days":0,"URL":"http:\/\/journals.sagepub.com\/page\/policies\/text-and-data-mining-license"}],"content-domain":{"domain":["journals.sagepub.com"],"crossmark-restriction":true},"short-container-title":["J. Law. Med. Ethics"],"published-print":{"date-parts":[[2012]]},"abstract":"<jats:p>In early 2011, news emerged that United States authorities had begun to apply injections of pentobarbital, a substance provided by Danish pharmaceutical company Lundbeck, when executing capital punishments. Lundbeck reported to be appalled by such unintended usage of pentobarbital, which is licensed for treatment of refractory forms of epilepsy and for usage as an anaesthetic.<\/jats:p><jats:p>The human rights NGOs Reprieve and Amnesty International urged Lundbeck to ensure that pentobarbital was not made available to U.S. authorities for use in capital punishments. Lundbeck argued that complete halting of provision of pentobarbital would be detrimental to patients suffering from conditions of severe epilepsy for whom the substance was developed and intended for treatment for life-threatening epileptic seizures. Lundbeck\u2019s Danish headquarters also argued that controlling the provision of pentobarbital was out of Danish Lundbeck\u2019s hands because the substance is produced at Lundbeck\u2019s plant in the United States. Eventually, after talks with Amnesty International and Reprieve, Lundbeck in July 2011 announced that it would seek to put a stop to using pentobarbital in capital punishment through the introduction of a \u201cdrop-ship\u201d program (ensuring that the drug is distributed through one specific channel and buyers are required to sign a statement that the product will not be applied towards capital punishment).<\/jats:p>","DOI":"10.1111\/j.1748-720x.2012.00659.x","type":"journal-article","created":{"date-parts":[[2015,10,13]],"date-time":"2015-10-13T21:00:35Z","timestamp":1444770035000},"page":"206-219","update-policy":"http:\/\/dx.doi.org\/10.1177\/sage-journals-update-policy","source":"Crossref","is-referenced-by-count":3,"title":["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"],"prefix":"10.1017","volume":"40","author":[{"given":"Karin","family":"Buhmann","sequence":"first","affiliation":[],"role":[{"role":"author","vocabulary":"crossref"}]}],"member":"56","published-online":{"date-parts":[[2021,1,1]]},"reference":[{"key":"S1073110500015345_bib21","unstructured":"21 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."},{"key":"S1073110500015345_bib59","unstructured":"59 Id. (when accessed December 9, 2011, it included a reference to a \u201crecent post\u201d 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."},{"key":"S1073110500015345_bib35","unstructured":"35 \u201cComplicity 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.\u201d SRSG, Clarifying the Concepts of \u201cSphere of Influence\u201d and \u201cComplicity,\u201d UN Doc. A\/HRC\/8\/16, May 15, 2008, at para. 30, see also at paras. 26\u201329."},{"key":"S1073110500015345_bib18","unstructured":"18 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."},{"key":"S1073110500015345_bib23","unstructured":"23 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."},{"key":"S1073110500015345_bib51","unstructured":"51 Id., at 31\u201332."},{"key":"S1073110500015345_bib52","unstructured":"52 Id., at 38."},{"key":"S1073110500015345_bib27","unstructured":"27 Art. 71 of the UN Charter empowers the UN Economic and Social Council (ECOSOC) to \u201cmake suitable arrangements for consultation\u201d with NGOs \u201cwhich are concerned with matters within its competence.\u201d"},{"key":"S1073110500015345_bib29","unstructured":"29 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)."},{"key":"S1073110500015345_bib55","unstructured":"55 Id."},{"key":"S1073110500015345_bib5","unstructured":"5 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)."},{"key":"S1073110500015345_bib9","unstructured":"9 Lundbeck, Lundbeck Overhauls Pentobarbital Distribution Program to Restrict Misuse, Press Release, July 1, 2011."},{"key":"S1073110500015345_bib1","unstructured":"1 The Protect, Respect, Remedy Framework was developed in 2005\u20132008 by Professor John Ruggie, the UN Secretary-General's Special Representative on Business and Human Rights. For details, see below Section 3."},{"key":"S1073110500015345_bib31","unstructured":"31 Id., at paras. 56\u201358."},{"key":"S1073110500015345_bib19","unstructured":"19 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."},{"key":"S1073110500015345_bib7","unstructured":"7 Reprieve, \u201cDanish Pharmaceutical Company Lundbeck Votes to Continue Supplying Pentobarbital for Lethal Injections,\u201d March 25, 2011, referring to Dr. David Waisel, Associate Professor of Anaesthesia at Harvard Medical School."},{"key":"S1073110500015345_bib32","unstructured":"32 Id., at para. 58."},{"key":"S1073110500015345_bib39","unstructured":"39 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."},{"key":"S1073110500015345_bib49","unstructured":"49 The Interpretive Guide (at p. 9) provides this definition of salient human rights: \u201cThe 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,\u201d compare p. 27 which notes that for \u201ca pharmaceutical company, the right to health will be particularly salient.\u201d"},{"key":"S1073110500015345_bib60","volume-title":"Lundbeck fras\u00e6lger en r\u00e6kke 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]","author":"Lundbeck","year":"2011"},{"key":"S1073110500015345_bib43","unstructured":"43 See further Guiding Principles 11, 12 and 13; Interpretive Guide: 13, 15\u201316."},{"key":"S1073110500015345_bib56","unstructured":"56 Amnesty kritiserer skarpt Lundbeck [Amnesty criticizes Lundbeck sharply] Business.dk, February 16, 2011; Amnesty International, Lundbeck l\u00e6gger pres p\u00e5 amerikanske stater [Lundbeck putting pressure on American states], June 6, 2011."},{"key":"S1073110500015345_bib28","volume-title":"The UN Guiding Principles on Business and Human Rights","author":"Knox","year":"2012"},{"key":"S1073110500015345_bib11","unstructured":"11 General Comment No. 14, para. 12."},{"key":"S1073110500015345_bib20","unstructured":"20 UN Doc. E\/CN.4\/2005\/L.87, April 15, 2005."},{"key":"S1073110500015345_bib6","unstructured":"6 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."},{"key":"S1073110500015345_bib38","unstructured":"38 Id., at Introduction, para. 14."},{"key":"S1073110500015345_bib46","unstructured":"46 See Guiding Principle 19 \u2014 commentary; Interpretive Guide, at 8."},{"key":"S1073110500015345_bib36","unstructured":"36 See Guiding Principles, supra note 24, at \u201cIntroduction,\u201d at para. 13."},{"key":"S1073110500015345_bib2","unstructured":"2 Dansk Biotek website, available at <http:\/\/www.danskbiotek.dk\/member\/h-lundbeck> (last visited May 1, 2012)."},{"key":"S1073110500015345_bib25","unstructured":"25 Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises, July 6, 2011, UN doc. A\/HRC\/RES\/17\/4."},{"key":"S1073110500015345_bib8","doi-asserted-by":"crossref","unstructured":"8 Prosecutor v. Furundzija, International Criminal Tribunal for the Former Yugoslavia, 2002, International Law Reports 121 (2002): 213.","DOI":"10.1017\/CBO9781316152522.006"},{"key":"S1073110500015345_bib40","unstructured":"40 In the 1989 landmark case Soering vs. the United Kingdom, the European Court of Human Rights found that what amounts to \u201cinhuman or degrading treatment or punishment\u201d depends on all the circumstances of the case. Although concerned mainly with the \u201cdeath row phenomenon,\u201d with reference to its previous case law, the Court noted that treatment has been held by the Court to be both \u201cinhuman\u201d because it was premeditated, was applied for hours at a stretch and \u201ccaused, if not actual bodily injury, at least intense physical and mental suffering.\u201d 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 \u201cwill inevitably claim innocent victims.\u201d Amnesty International, The Death Penalty: Questions and Answers, available at <http:\/\/www.amnestyusa.org\/pdfs\/dp_qa.pdf> (last visited May 2, 2012)."},{"key":"S1073110500015345_bib30","unstructured":"30 See SRSG, supra note 22, at para.54."},{"key":"S1073110500015345_bib33","unstructured":"33 Id., at paras. 59\u201363."},{"key":"S1073110500015345_bib34","unstructured":"34 Id., at paras. 54\u201355."},{"key":"S1073110500015345_bib42","unstructured":"42 See Interpretive Guide, supra note 39, at 7."},{"key":"S1073110500015345_bib4","unstructured":"4 Reprieve, \u201cDanish Pharmaceutical Company Lundbeck Votes to Continue Supplying Pentobarbital for Lethal Injections,\u201d March 25, 2011."},{"key":"S1073110500015345_bib13","unstructured":"13 General Comment No. 14, esp. at para. 33."},{"key":"S1073110500015345_bib10","unstructured":"10 Committee on Economic, Social and Cultural Rights (2000) General Comment No. 14 \u2014 The right to the highest attainable standard of health, UN Doc. E\/C.12\/2000\/4, August 11, 2000, paras. 4, 8 and 9."},{"key":"S1073110500015345_bib14","doi-asserted-by":"publisher","DOI":"10.1016\/0167-5699(93)90326-G"},{"key":"S1073110500015345_bib47","unstructured":"47 See Interpretive Guide, supra note 39, at 44."},{"key":"S1073110500015345_bib17","doi-asserted-by":"crossref","unstructured":"17 General Comment No. 14, paras. 63\u201365.","DOI":"10.1177\/026455056801400301"},{"key":"S1073110500015345_bib37","unstructured":"37 Id., at Introduction, para. 15."},{"key":"S1073110500015345_bib3","unstructured":"3 Nicholl, D. , \u201cLundbeck and Pentobarbital: Pharma Rakes a Stand,\u201d The Guardian, July 1, 2011."},{"key":"S1073110500015345_bib12","unstructured":"12 General Comment No. 14, para. 17."},{"key":"S1073110500015345_bib24","unstructured":"24 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 \u2018Protect, Respect, Remedy\u2019 Framework, UN Doc. A\/HRC\/17\/31, March 21, 2011."},{"key":"S1073110500015345_bib45","unstructured":"45 See Guiding Principle 19; Interpretive Guide, supra note 39, at 18."},{"key":"S1073110500015345_bib58","unstructured":"58 The Pentobarbital Experiment, \u201cLundbeck'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,\u201d September 25, 2011 (when accessed December 9, 2011, the link included reference to \u201crecent post\u201d with information that a 36th individual had been killed in Texas on November 16, 2011.)"},{"key":"S1073110500015345_bib53","unstructured":"53 Id., at 67."},{"key":"S1073110500015345_bib15","doi-asserted-by":"publisher","DOI":"10.1016\/0167-5699(93)90327-H"},{"key":"S1073110500015345_bib41","unstructured":"41 The concept of complicity is addressed in the SRSG's 2008 UN Framework report, supra note 22, at paras. 73\u201382, and in more detail in a companion report to the main 2008 report, Clarifying the Concepts of \u201cSphere of Influence\u201d and \u201cComplicity,\u201d 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 \u201cProtect, Respect and Remedy\u201d Framework, UN Doc. A\/HRC\/14\/27, April 9, 2010."},{"key":"S1073110500015345_bib26","unstructured":"26 Id."},{"key":"S1073110500015345_bib54","unstructured":"54 See Lundbeck, supra note 9."},{"key":"S1073110500015345_bib16","doi-asserted-by":"publisher","DOI":"10.1177\/002224298805200405"},{"key":"S1073110500015345_bib44","unstructured":"44 See Guiding Principle 19; Interpretive Guide, supra note 39, at 18."},{"key":"S1073110500015345_bib48","unstructured":"48 See Nicholl, , supra note 3."},{"key":"S1073110500015345_bib50","unstructured":"50 See Interpretive Guide, supra note 39, at 30."},{"key":"S1073110500015345_bib22","unstructured":"22 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."},{"key":"S1073110500015345_bib57","unstructured":"57 Information from Amnesty International, Denmark, to author. The drop-ship program was proposed by Reprieve."}],"container-title":["Journal of Law, Medicine &amp; Ethics"],"original-title":[],"language":"en","link":[{"URL":"https:\/\/api.wiley.com\/onlinelibrary\/tdm\/v1\/articles\/10.1111%2Fj.1748-720X.2012.00659.x","content-type":"unspecified","content-version":"vor","intended-application":"text-mining"},{"URL":"http:\/\/journals.sagepub.com\/doi\/pdf\/10.1111\/j.1748-720X.2012.00659.x","content-type":"application\/pdf","content-version":"vor","intended-application":"text-mining"},{"URL":"https:\/\/www.cambridge.org\/core\/services\/aop-cambridge-core\/content\/view\/S1073110500015345","content-type":"unspecified","content-version":"vor","intended-application":"similarity-checking"}],"deposited":{"date-parts":[[2022,5,23]],"date-time":"2022-05-23T03:21:56Z","timestamp":1653276116000},"score":1,"resource":{"primary":{"URL":"https:\/\/www.cambridge.org\/core\/product\/identifier\/S1073110500015345\/type\/journal_article"}},"subtitle":[],"short-title":[],"issued":{"date-parts":[[2012]]},"references-count":60,"journal-issue":{"issue":"2","published-print":{"date-parts":[[2012]]}},"alternative-id":["S1073110500015345"],"URL":"https:\/\/doi.org\/10.1111\/j.1748-720x.2012.00659.x","relation":{},"ISSN":["1073-1105","1748-720X"],"issn-type":[{"value":"1073-1105","type":"print"},{"value":"1748-720X","type":"electronic"}],"subject":[],"published":{"date-parts":[[2012]]}}}