The area of business and human rights is among the most topical issues in international law. Over a decade ago, the United Nations (UN) started a process for holding states to account for adverse business conduct – at domestic level, but also extraterritorially. However, state practice doesn’t give much reason for optimism yet; at least not when it comes to rights violations committed abroad.
According to Amnesty International (2018) “economic players, especially multinational companies that operate across national borders, have gained unprecedented power and influence across the world”. While the impact of transnational corporations (TNCs) may sometimes be positive – for example, resulting in jobs and benefits for communities –, Amnesty has “exposed countless instances when corporations exploit weak and poorly enforced domestic regulation with devastating effect on people and communities” (ibid).
The legal obligation of states and corporations
The rights holders of international human rights law (IHRL) as a branch of International law (IL) are individuals, the duty bearers are states. The state has to protect its individuals from human rights violations, it has to ensure rights. Corporations are neither individuals nor states under IL. From a legal point of view, a corporation cannot be held to account for a human rights violation. Therefore, it is the state which must be held to account if it has failed to adequately protect its individuals from a violation caused by a corporation. This is quite clear for violations on a domestic level, if the violation happened in the same country where the company is registered. When the violation happens abroad, IL is rather opaque.