From Corporate Personality to Corporate Governance: The Transformation of International Human Rights Protection in Corporate Governance Structures
Nehal Bhuta & Rodrigo Vallejo (eds), Human Rights and Global Governance, Oxford University Press, Oxford 2020
45 Pages Posted: 7 May 2020
Date Written: January 6, 2020
This article is concerned with the role of corporate governance systems in the global governance of human rights protection. It departs from the observation that corporations have been more strongly integrated into the system of international human rights protection, but differently than initially anticipated by international lawyers. Rather than moving towards acceptance of corporations as subjects that can or should have international legal personality, corporations become accepted as actors that should instrumentalize their own private governance systems for international human rights protection. To that end, this article develops two interlinked arguments: First, it shows doctrinally how the recent developments in the global governance of business and human rights, notably the UNGP, have led to corporate governance structures becoming instrumentalised as the core and central means for corporate human rights protection at the expense of state-based human rights protection. Second, it is shown how this use of corporate governance for international human rights protection is likely to change the very nature of the international human rights that are supposed to be protected. By means of reviewing recent empirical studies on how corporations incorporate human rights within their governance structure and comparing this to the related understanding in international human rights law, it is revealed how the origin, justification and content of human rights as well as the required processes and remedies to ensure their protection changes in the translation from a state-centric to a corporate-centric understanding. In corporate governance structures, human rights become de-formalized and re-modelled in their meaning and enforcement. This result poses new questions, most importantly whether such a development is to be welcomed or criticised, i.e. whether this ‘corporate understanding’ of human rights should be accepted or whether it is necessary to ‘go back to the starting point’ of a state-centric understanding. The contribution concludes tentatively in a twofold direction. It argues for an inevitably stronger role of private law in this ‘new reality’ of human rights protection, as private law is ultimately the law that may regulate corporations as private actors. Simultaneously, it outlines and highlights the tensions that lawyers –both human rights lawyers as well as private and corporate lawyers – will face when attempting to realise this goal.
Keywords: Business and Human Rights, Corporate Social Responsibility, Corporate Governance
Suggested Citation: Suggested Citation