Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate 'Human' Rights in International Law

19 Pages Posted: 25 Sep 2018 Last revised: 24 Oct 2018

See all articles by Silvia Steininger

Silvia Steininger

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law

Jochen von Bernstorff

University of Tuebingen - Faculty of Law

Date Written: September 25, 2018

Abstract

Who turned multinational corporations into bearers of human rights? This contribution analyzes the recognition and transformation of the idea of legal persons as rights holders from a rather isolated and restricted phenomenon in some domestic contexts, into a broader and fully-fledged recognition of corporations as human rights bearers in international law. Throughout the last decades, the highly contested and by no means obvious recognition of corporations as independent right holders has become a salient discursive element in two fields of international law; international human rights law and international investment law.

By inquiring into the role of historical contingency, we analyze the interplay between events and discursive structures that led to the creation of corporate human rights. We argue that this development can be traced back to three historical events post 1945: First, the inclusion of legal persons in the drafting process of the ECHR and its First Additional Protocol in the late 1940s. Secondly, the jurisprudence of the ECtHR, peaking in the 1980s, which effectively promoted and expanded corporate rights. Thirdly, the migration of corporate human rights into the realm of investment arbitration in the early 2000s. Ultimately, we situate this critical re-description of corporate human rights in the debate on counterfactual thinking and the problem of false contingency, asking the question whether an alternative course of events would have been possible.

Keywords: corporations, legal persons, right holders, human rights, investment, historical contingency, counterfactual

Suggested Citation

Steininger, Silvia and von Bernstorff, Jochen, Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate 'Human' Rights in International Law (September 25, 2018). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-25. Available at SSRN: https://ssrn.com/abstract=3254823 or http://dx.doi.org/10.2139/ssrn.3254823

Silvia Steininger (Contact Author)

Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

Jochen Von Bernstorff

University of Tuebingen - Faculty of Law ( email )

Wilhelmstrasse 7
Tuebingen 72074, 72074
Germany

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