On the Moral Landscape of Corporate Obligations within International Law

Abstract

The Multi National Corporation (MNC) as a non-state actor has mutated from its original inception as an economic business entity to its powerful position today, a position that transcends economic boundaries to encompass both social and political landscapes. As such, there has been a proliferation of the corporation’s duties from the formal need to create a profit for its shareholders to an increasing practical recognition of its broader role in the geo-political landscape. Recent conversations in both academia and practice have been centred on the need to contextualise, shape and advance those corporate obligations that touch upon human rights. The latest, and most lauded, of these attempts within international law has been the United Nations Guiding Principles on Business and Human Rights (UNGPs). These principles advocate a three-pillared approach: (1) the state duty to protect; (2) the corporate duty to respect; and (3) the right to a remedy where a human rights violation has occurred.

This paper builds on these academic discussions and proposes a thought experiment, one that deconstructs the second pillar of the United Nations Guiding Principles on Business and Human Rights (UNGPs) using the work of Ladd, Donaldson and Kant. The language of the Guiding Principles indicates that corporations should respect human rights. This sits at odds with the typical construct of corporate legal obligations by imposing a landscape of morality on a corporate form, which has been legally constructed to have a much narrower personality than that of a natural person. This paper takes a Kantian approach to understand corporations, which is in itself innovative, but applying his work on morality and shaping this with discussions around the categorical and hypothetical imperative offers further unique insights. This approach offers an original explanation of the second pillar of the principles and argues that despite being much lauded, the UNGPs, and this second pillar in particular – rather than quantifying corporate duties as they relate to human rights – simply reinforce the language and expectations of Corporate Social Responsibility. In short, it represents lip service to human rights that is not met by reality.

Keywords: CSR Morality Kant