Human Rights and Corporations

1. Frame: corporate power and human suffering

Open with the asymmetry between corporate power and the regime that regulates it. Larger transnationals have turnovers exceeding all but the biggest states and exercise power along chains of value-extraction across jurisdictions — concentrating harms on workers and communities, concentrating gains on shareholders.

Two case studies anchor the stakes. Bhopal (1984): a Union Carbide plant released methyl isocyanate, killing at least 4,000 in the immediate aftermath; the US parent was insulated by corporate-veil and forum-non-conveniens dismissal. Rana Plaza (2013): a Dhaka factory collapsed after workers were forced back into a building they had reported as unsafe; at least 1,134 died.

Two quotations set the terrain. Friedman defends the corporate form; Bakan describes it. Any rights regime that aspires to constrain corporate conduct must confront both.

"There is one and only one social responsibility of business — to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud." — Milton Friedman, "The Social Responsibility of Business is to Increase its Profits", New York Times Magazine, 13 September 1970

"The corporation's legally defined mandate is to pursue, relentlessly and without exception, its own self-interest, regardless of the often-harmful consequences it might cause to others." — Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (2004)

2. Explain: the legal architecture in layers

(a) The default position

The orthodox starting point: states are duty-bearers. The UDHR, ICCPR, ICESCR and regional instruments are addressed to states; corporations as private entities enjoy various human-rights protections (property, fair trial, expression) but do not bear human-rights obligations as a matter of treaty law. The asymmetry is striking: corporations are right-holders via legal personality but not duty-bearers, even where their power dwarfs the states they operate in.

(b) The voluntary turn (1998–2005)

The international system tried to fill the gap with voluntary instruments. Amnesty's Human Rights Principles for Companies (1998) reflected growing civil-society pressure. The UN Global Compact (2000) followed: ten principles. Principles 1 and 2 require businesses to "support and respect the protection of internationally proclaimed human rights" and "make sure that they are not complicit in human rights abuses". Embraced by business — thousands signed up — but criticised as purely voluntary, lacking legal bite, and legitimating corporate conduct.

A more demanding alternative briefly surfaced. In 2003 a Sub-Commission proposed the UN Norms on the Responsibilities of Transnational Corporations, imposing treaty-style obligations. They were rejected by business and by the Commission. In 2005 the UN appointed John Ruggie as Special Representative on Business and Human Rights to find a viable middle path.

(c) The UN Guiding Principles (2011)

Ruggie's process produced the UN Guiding Principles on Business and Human Rights (UNGP, 2011), unanimously endorsed by the Human Rights Council. They aim, in Bilchitz's gloss, to deliver "tangible results for affected individuals and communities". They are organised around three pillars.

For Ruggie the UNGPs were "the end of the beginning" rather than the destination. They were welcomed by business — a fact critics treat as diagnostic. Nothing in their text binds a corporation as a matter of international law; "responsibility" in Pillar II is deliberately not "obligation". Ruggie defended the methodology in his Interim Report:

"An unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most — in the daily lives of people." — John Ruggie, Interim Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Doc E/CN.4/2006/97 (22 February 2006), para 81; later restated in Just Business (W. W. Norton, 2013)

(d) The post-UNGP turn: a binding treaty?

Critics pushed for something with teeth. In 2013 Ecuador and others proposed a treaty on corporate human-rights obligations. In 2014 the Human Rights Council established an Open-Ended Intergovernmental Working Group (OEIWG); successive drafts (2019, 2020, revised 2023) cover corporate obligations, parent-subsidiary liability, remedy and jurisdiction. Business and several Northern states remain opposed.

(e) Domestic and extraterritorial litigation routes

Pillar III implies domestic systems should provide a forum for victims. Practice varies dramatically.

United States: ATCA and its retreat. The Alien Tort Claims Act (28 USC §1350) is a 1789 statute giving district courts jurisdiction over civil actions by aliens for torts in violation of the law of nations or a US treaty. It was the leading vehicle for transnational corporate human-rights litigation.

United Kingdom: parent-company duty of care. The English route is tortious rather than human-rights based. A parent company can, in defined circumstances, owe a common-law duty of care to those affected by its foreign subsidiary's operations.

Canada. Common-law systems outside the US have started to open new routes.

(f) Mandatory human-rights due diligence regimes

The most consequential post-UNGP development is the move from voluntary "responsibility" to mandatory due diligence in domestic law. France's Loi sur le devoir de vigilance (2017) requires large French companies to publish and implement a vigilance plan covering subsidiaries and suppliers, with civil liability for failure. Germany's Lieferkettengesetz (2021, in force 2023) obliges large companies to identify, prevent and remediate human-rights and environmental risks in supply chains, with administrative enforcement. The EU CSDDD (2024) creates an EU-wide due-diligence obligation with civil liability. Together they shift "responsibility to respect" from social expectation to legal obligation.

3. Critique

Six interlocking critiques recur; a strong essay deploys several.

(i) Voluntarism. The UNGPs are non-binding. Pillar II frames conduct as "responsibility" — a social expectation — not legal obligation. Deva and Bilchitz argue the category mistake is fatal: rights are entitlements with corresponding duties, not preferences. Without enforcement the regime is aspirational at best, decorative at worst.

"A purely voluntary approach to regulating corporate human rights violations is fundamentally flawed: it relies on the goodwill of those whose conduct it purports to regulate, and offers no meaningful avenue of redress when that goodwill fails." — Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business (Routledge, 2012)

(ii) Capture. The UNGPs were welcomed by business — diagnostic, not incidental. The 2003 Norms were rejected and buried; the 2011 UNGPs were embraced. Acceptability to those an instrument purports to discipline is evidence of capture; the "bluewash" charge — companies using the UN imprimatur to launder reputational risk — applies as forcefully here as to the Global Compact.

(iii) The remedy gap. Even where rights are notionally protected, victims rarely obtain effective remedy. Corporate veil, forum non conveniens, evidentiary asymmetry, costs and limitation make transnational accountability the exception. Pillar III sets the aspiration; the record is settlements, dismissals and partial wins.

(iv) Extraterritoriality narrowed. Kiobel imported the presumption against extraterritoriality; Jesner excluded foreign corporations. The ATCA corridor that enabled late-1990s litigation against extractive majors has all but closed. UK and Canadian developments help but do not replace a federal cause of action in the world's largest jurisdiction.

(v) Forum shopping. Corporate groups exploit jurisdictional fragmentation: parents in friendly jurisdictions, operations routed through subsidiaries in weaker ones, corporate veil defeating upward attribution. Where one jurisdiction tightens, capital re-routes.

(vi) The structural critique. The deepest objection — Bakan, O'Connell — is that the corporate form is constitutively oriented to profit; layering human-rights expectations on a structure designed for amoral pursuit of return is engineering the structure resists. Any regime that does not reform the form treats symptom not disease. Friedman is not wrong about the corporation as currently constituted; that is the problem. Bakan's closing line states the stakes:

"Corporations now govern society, perhaps more than governments themselves do." — Joel Bakan, The Corporation: The Pathological Pursuit of Profit and Power (2004)

4. Evaluate: a defensible answer-line

Take the lecture's position. The existing UN regime is "modest and ineffective". The Global Compact, UNGPs and even the OEIWG drafts sit at the conservative end of what is needed. Worse, soft-law commitments without enforcement risk legitimating corporate power — licensing companies to perform a commitment that has no operational consequence, and crowding out more demanding alternatives. Ruggie's "principled pragmatism" has institutional logic, but pragmatism producing only what business will accept is, in outcome, indistinguishable from capture.

Meaningful change requires three converging moves. First, a binding treaty: the OEIWG process, if it survives Northern-state opposition, supplies the hard-law backbone the UNGPs deliberately lack. Second, mandatory human-rights due diligence at domestic and regional level — France 2017, Germany 2021, CSDDD 2024 — converting "responsibility to respect" into legal obligation with civil liability. Third, reform of the corporate form itself: shareholder primacy, board duties, limited liability and the corporate veil revisited so the structure is not constitutively at war with imposed obligations.

"Private economic power is not external to the human rights project but central to it: any rights response that ignores political economy risks reproducing the very structures it claims to constrain." — Paul O'Connell, on the political economy of human rights (lecture position; see also Vindicating Socio-Economic Rights, Routledge, 2012)

Human-rights law can mobilise pressure — naming, shaming, mapping harms, providing causes of action. It cannot on its own solve structural corporate power. The honest evaluation is that the regime is one tool among several, currently punching below its weight.

5. Academic positions in one line

• Ruggie — UNGPs as "principled pragmatism" and "the end of the beginning".
• Deva — "responsibility to respect" is a category error; an instrument that does not bind cannot regulate.
• Bakan — the structural critique: the corporate form is constitutively profit-oriented.
• Bilchitz — UNGPs are a step forward but stop short of binding obligations and under-specify Pillar III.
• Ratner, (2001) 111 Yale LJ 443 — canonical case for corporations as direct duty-bearers under IHRL.
• O'Connell — private power is itself a human-rights problem; ignoring political economy reproduces it.

6. Common pitfalls

7. Exam answer skeleton

1. FRAME — corporate power asymmetry. Scale (TNC revenues exceeding state GDPs), case studies (Bhopal 1984; Rana Plaza 2013), Friedman/Bakan dyad.
2. EXPLAIN — the architecture. Default (states as duty-bearers). Voluntary turn (Global Compact 2000; Norms 2003; Ruggie 2005). UNGPs 2011 / Three Pillars. OEIWG treaty drafts. Litigation (US — Unocal, Kiobel, Jesner; UK — Lubbe, Vedanta, Okpabi; Canada — Nevsun). Mandatory due diligence (France 2017; Germany 2021; CSDDD 2024).
3. CRITIQUE — voluntarism, capture/bluewash, remedy gap, ATCA contraction, forum shopping, structural. Use at least three; one structural.
4. EVALUATE — adopt the lecture's position: regime "modest and ineffective"; soft law risks legitimating corporate power; binding treaty + mandatory due diligence + corporate-form reform. Cite Deva, Bakan, O'Connell.
5. CONCLUDE — the lecture's closing question: "is human rights law up to it?" Answer: not on its own and not in its voluntarist shape; but the binding-treaty + mandatory-due-diligence + form-reform programme is credible, and human-rights law is one language in which the political pressure for it is mobilised.

8. Checklist

• Opened with the corporate-power asymmetry and at least one case study (Bhopal or Rana Plaza).
• Quoted Friedman and Bakan to establish the structural frame.
• Stated the default doctrine — states as duty-bearers; corporations as right-holders — before discussing any instrument.
• Distinguished soft-law (Global Compact, UNGPs) from hard-law (treaty drafts; CSDDD; domestic due-diligence statutes) every time.
• Named the Three Pillars of the UNGPs and Ruggie's "principled pragmatism".
• Mapped the ATCA arc (Unocal → Kiobel → Jesner) and the UK arc (Lubbe → Vedanta → Okpabi); flagged Nevsun as the Canadian counter-current.
• Deployed at least three critiques, one of them structural (Bakan / O'Connell).
• Adopted a defensible answer-line — the current regime is modest, ineffective and at risk of legitimating corporate power; binding treaty + mandatory due diligence + corporate-form reform are needed; cited Deva, Bakan, O'Connell.