Author ORCID Identifier

Barnali Choudhury: 0000-0002-5762-2957

Document Type

Article

Publication Date

2024

Keywords

Corporations, Human Rights, Environment, Human Rights Due Diligence, Nevsun, Vedanta, Okpabi, Duty of Vigilance, United Nations Guiding Principles on Business and Human Rights, Business and Human Rights

Abstract

International human rights law is generally thought to apply directly to states, not to corporations since the latter is not a subject of international law. Some domestic courts are, however, enforcing these norms against corporations in domestic settings. Canadian courts have, for instance, recognized that corporations can be liable for breach of customary international law norms while UK courts have enforced international human rights norms indirectly against corporations relying on a combination of domestic corporate and tort law.

At the same time, some states are choosing to enforce international human rights norms against corporations using regulatory initiatives. These initiatives, known as due diligence initiatives, vary in scope, but generally prescribe obligations for corporations in the respect of human rights. These initiatives offer greater promise than court enforcement of international human rights norms as states are often able to ex ante legislate the issues with which courts enforcing international human rights norms are struggling.

Nevertheless, while due diligence initiatives offer greater promise than court enforcement of international human rights norms, they are far from a panacea. The initiatives often lack the necessary elements to make them a superior tool – that is, their scope, reach or enforcement possibilities may be limited – and they tend to focus on risks to business rather than risks to human rights, among other limitations.

Given the complexities in addressing corporate abuses, adopting a plurality of approaches to mitigate corporate abuse of human rights is likely necessary. Court enforcement and due diligence initiatives are but two approaches, the latter more promising than the first, but neither offers an antidote to the malignancy of corporate abuse. For that, there is a need for greater transformation of the economy such that corporate harms of human rights and the environment are no longer business as usual.

Comments

"Forthcoming in I. Tourkochoriti et al, Comparative Enforcement of International Law (2024)"

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