Slow and Steady: International Law’s Gradual Recognition of Corporate Accountability
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International law has traditionally endowed corporations with the benefits of legal personality but refrained from imposing on them the responsibilities which should accompany those benefits. This essay provides a brief survey of how these perceptions are starting to change, and why it is important that it is the case. We live in a world in which corporations are not only able to exert more influence than some countries but are also able to commit violations of human rights without being held to account. In the past decade, however, large advances in this sphere are noticeable in international law, with a treaty establishing corporate accountability in the making. While the success of this treaty is not guaranteed, especially considering the failure of hard law in constraining corporate activity in the past, the initiative is nonetheless welcome – it illustrates a light at the end of the tunnel. One may only hope that as we approach the light, the tunnel does not collapse (as it arguably did with some initiatives in the past).
- Oskar Polanski, Author
Introduction
Traditionally duties and obligations were only imposed on States, as they were the ones with the power to violate, or enforce and protect human rights (HR), with corporate ‘activities pos[ing] limited direct challenge to [HR].’ However, more recently corporations have begun to ‘exercise “effective power” analogous to that of a state’ and have even been able to ‘override the will of governments’. This is partly due to the reduction of state power resulting from globalisation and privatisation. The former has led to increased outsourcing, thereby reducing the state’s ability to exercise control within its territory over corporate activities. The latter has amounted to ‘remov[ing] certain activity from the state-run sphere’. The increase in corporate influence has not, however, been coupled with an increase in accountability. This is despite corporations, such as those in the ‘extractive industries’ engaging with egregious violations of rights, ranging from ‘population displacement [and] murders’ to ‘environmental degradation.’ This lack of corporate accountability has created a paradox in international human rights law (IHRL). Corporations are seen ‘as objects of [IHRL] for the purposes of their own protection, but not as subjects of [IHRL], for the purposes of our [citizens’] protection’. Accordingly, corporations are not legally obligated to comply with HR, but they possess ‘the rights… of international persons.’ It should thus appear nonsensical that these increasingly powerful actors, capable of violating HR, possess the benefits of international legal personality but not the drawbacks. With their power, it is argued, ‘should come responsibility’. They should receive duties and obligations which, if violated, result in penalties and sanctions. They ought to be held accountable in law.
