Business and Human Rights Center – Nicolás Carrillo-Santarelli, Associate Professor of International Law, La Sabana University (Colombia)
If neither voluntary standards nor State obligations ensure the protection of victims, something is missing. That void can be filled by international corporate obligations.
This blog is part of the debate blog series on the proposed treaty and its complimentarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its “unity in diversity“.
The adoption of the Guiding Principles on Business and Human Rights, welcomed by many, is just one step in the road to fully protect victims of corporate abuses. However, some sectors oppose the adoption of hard law, as revealed by debates and rejection by some of the proposal to draft and adopt a treaty on business and human rights, even as recently as in the first session of the UN Intergovernmental Working Group to draft an “international legally binding instrument”. There is not (yet) any consensus on whether corporations should have direct international human rights obligations.
Many corporations have tremendous economic power and influence (often rivaling those of many States). This suggests that, according to the rule of law, it is important to regulate their conduct; especially because all corporations have the potential to abuse human rights. The fact that corporations benefit from international economic law, reinforces calls for holding them accountable, for consistency and to ensure they can be addressed by international law. It is thus curious that many States and corporations push for corporate protection in economic fields but are reluctant to support hard law standards on the protection of human rights from corporate abuses.
That being said, even among individuals and NGOs who advocate the adoption of a business and human rights treaty, some question whether it should regulate direct international corporate obligations. Rather than discussing if international law can regulate such obligations (it can), debates often center on concerns that this could somehow weaken human rights frameworks; give excessive power to corporations; or undermine voluntary initiatives, including codes of conduct and the Guiding Principles. I will address some of those fears.
Why do we need direct international corporate human rights obligations?
The inspiration and foundations of human rights are not incompatible with protection from non-state abuses. Actually, the full protection of human dignity demands protection from them, since non-state actors can violate human rights. Moreover, for some of the same reasons international protection is needed to protect from State abuses (e.g. uncertainty of domestic protection and the importance of acting against impunity), it is important to also offer direct international protection from corporate abuse (at least in substantive terms, authorizing different authorities in a multi-level framework to guarantee substantive rights and enforce obligations anywhere in the world). Considering that corporations can abuse or participate in the violation of any human right, as John Ruggie has said, attention must be paid to the insufficiency of relying only on State obligations. Why? Because those are obligations of means and due diligence, which implies that corporate abuses neither automatically nor always engage State responsibility. In such events, victims still have rights to protection and reparations, which must be fulfilled (States may volunteer to provide reparations when they are not responsible, but are not obliged to do so).
Additional arguments point to the importance of corporate human rights obligations: while they can have an impact on attitudes and pave the way for changes, voluntary initiatives themselves offer no certain prospects of protection; corporations can ignore them with no legal consequences or feel tempted to divert attention away from misdeeds by indicating that they have adopted them (for example, this exact dilemma has been discussed by activists before the Inter-American Commission on Human Rights at a hearing in October 2014). If neither voluntary standards nor State obligations ensure the protection of victims, something is missing. That void can be filled by regulating international corporate obligations, preventing gaps in domestic legal systems that can be taken advantage of by actors that, because of their nature and operations, can move across borders.
Can corporations be subjects of international human rights law; which ones should it address?
Some wonder if corporations are international legal persons, but this misses the point: the notion of personality is far from clear; and any actor can be given rights and duties by the sources of international law, regardless of its consideration as a subject of international law in current textbooks (law evolves and proves some theories to be false).
Another discussion is whether a binding instrument should only refer to transnational corporations. John Ruggie has opposed ignoring abuses of national corporations, and I agree. While special attention can (and should) be paid to transnational corporations, for instance in Chapters dealing with complex issues such as extraterritorial jurisdiction and the liability of parent companies; every corporate human rights abuse must be prohibited and action against it permitted (and required).
Could direct international corporate human rights obligations weaken frameworks or unduly empower corporations?
To rebut this, firstly it can be pointed out that the fact that an entity is imposed an international obligation neither endows it with powers nor changes its status, as confirmed by common article 3 to the Geneva Conventions of 1949, according to which the status of non-state actors bound by the obligations it imposes does not change. Furthermore, the very presence of corporate obligations to respect human rights may make those authorities and bodies charged with implementing international law pay greater attention to corporate conduct; and victims and their defenders will have at their disposal substantive legal arguments, which additionally may give them greater access to pertinent procedural venues (even domestic ones that serve to guarantee international law) and make criticism of corporate abuses stronger, given the expressive effects of law and stigma attached to conduct contrary to human rights.
Sometimes, it is said that even if corporate obligations are regulated, they should never be obligations to do something but rather only obligations of abstention. But how can one ignore that some corporations have functions the omission of which can have a negative impact on the enjoyment of human rights? This may happen, for instance, with companies entrusted with providing water (as discussed in the resolution entitled “Human rights and access to safe drinking water and sanitation”, adopted by the Human Rights Council on 6 October 2010).
Some also fear that adopting binding norms may weaken soft law initiatives and standards. However, hard law is not incompatible with the former: codes of conduct and guidelines can contribute to changing corporate culture; and hard law can reinforce such dynamics and further indicate that corporate abuses are unlawful everywhere. Voluntary and binding strategies are complementary and can both contribute to promoting human rights.
Since corporations have the factual capacity to violate human rights, an individual- and victim-centered international law (as it ought to be) must permit and require the full protection of all victims. While corporations already have implicit duties to not act against jus cogens and international criminal law, express norms can complement them, have expressive effects, and permit action against corporate abuses, even in cases in which prospects of protection are currently bleak.
Nicolás Carrillo-Santarelli is Associate Professor of International Law at La Sabana University in Colombia. Follow him on Twitter: @NicolasCS.
 e.g. European States, the United States of America and Japan, among other home States of powerful transnational corporations, voted against UN Human Rights Council resolution A/HRC/26/L.22/Rev.1, establishing an intergovernmental working group with the mandate to elaborate “an international legally binding instrument to regulate, in international human rights law, the activities of Transnational Corporations and Other Business Enterprises”).
 Andrew Clapham, Human Rights Obligations of Non-State Actors, Oxford University Press, 2006, Chapters 1-3, 11; Andrew Clapham, “Human Rights Obligations for Non-State-Actors: Where are We Now?”, Forthcoming in Doing Peace the Rights Way: Essays in International Law and Relations in Honour of Louise Arbour, edited by Fannie Lafontaine and François Larocque, to be published by Intersentia, at 19, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2641390 (last checked: 20 August 2015).
 See Roland Portmann, Legal Personality in International Law, Cambridge University Press, 2013; John H. Knox, “The Human Rights Council Endorses “Guiding Principles” for Corporations, ASIL Insights, 2011.