Introduction
The topic of debate is whether corporate human rights pose an obstacle or precursor to their own accountability for human rights violations. Many might have an intuitive response: if corporations can be held responsible for human rights violations, they also should have protected rights and access to courts to enforce those rights. Or vice versa, as the case may be. Instead, we argue that there is no necessary link between corporate human rights and accountability. In any event, there is presently no comprehensive and effective mechanism to hold companies responsible for human rights violations.
A different question is whether corporate human rights are a good idea. There is first the threshold question of whether corporations enjoy at least some human rights and whether the rule of law requires that states cannot exercise their coercive powers arbitrarily vis-à-vis humans but all legal subjects.
The more important question, in our view, is about the extent of corporate rights under international law. This blog post presents a comparative analysis of human rights protection and accountability for human rights violations within three distinct regional human rights systems. It provides a brief overview of current initiatives in international law aimed at enhancing corporate accountability for human rights obligations. It then offers reflections on institutional design, asking what role corporate human rights should play. Are there barriers to the accountability of corporations in human rights law? And who should decide this important question?
A balance of protection and accountability? A comparative perspective
However, as we will see, the protection of corporate rights does not necessarily preclude corporate accountability, but it may make it more difficult in at least some cases. To make this argument, we first address protection, then accountability, and then discuss the balance.
Protection
In terms of corporate rights, the First Protocol to the European Convention on Human Rights (ECHR) protects the right to property and extends this right to legal persons (art 1, and see Bramelid and Malmström v Sweden). The European Court of Human Rights (ECtHR) has held that shares are protected against deprivation and certain forms of governmental control and interference (see e.g. Sovtransavto Holding v Ukraine). The general rule is that shareholders’ rights will only be recognised in “exceptional cases” where the company itself could not pursue the claim. Unlike investment treaties, the ECHR does not provide for the payment of compensation to a national whose property has been expropriated, and legitimate objects of public interest may call for compensation far below the full market value; and, unlike in international investment law, claims for reflective loss are barred. By contrast, the right to property in art 21 of the American Convention on Human Rights (ACHR) does not apply to legal persons. While shares have been held to be “property” by the Inter-American Court of Human Rights (IACtHR), the ACHR has only nominal utility for shareholders because legal persons cannot enjoy the protection of the ACHR. The African Charter on Human and People’s Rights (AfCHPR) also includes the right to property in art 14, but, like the IACtHR, jurisdiction under the AfCHPR is limited to human beings.
Accountability
At the outset, we note that none of the regional human rights systems has jurisdiction over non-state private actors as respondents. However, as seen below, that does not mean there is no way to address accountability for such actors by tightening states’ obligations to regulate them.
The Inter-American human rights system has been at the forefront of elaborating jurisprudence and soft law standards to establish the contours of corporate accountability for human rights infringements, taking a direct obligation model. The IACtHR in Miskito Divers v Honduras held, based on the UN Guiding Principles on Business and Human Rights (UNGP) , that “businesses must ensure that their activities do not cause or contribute to human rights violations, and must adopt measures to redress [them].” According to the Court, this entails adopting “at their own expense, preventive measures to protect the human rights of their workers, as well as measures aimed at preventing their activities from having a negative impact on the communities in which they operate or on the environment.” (para 51). States also have duties to enhance the accountability of corporations: states must adopt measures aimed at ensuring that transnational companies are held accountable for human rights violations committed in their territory or when they benefit from the activity of national companies that participate in their production chains (paras 48-51).
The African system is similar, but it employs an indirect obligation model. The Kilwa case is a good example of this: the Canadian-Australian mining company Anvil Mining provided logistical support to the Democratic Republic of Congo (DRC) in a massacre in a town called Kilwa in 2004 by providing vehicles to transport soldiers and move arrested persons to places of detention and executive. In 2016, the African Commission ruled that the Congolese army was responsible. Still, it went further to recommend that the DRC take diligent action to prosecute and punish state agents and Anvil Mining personnel involved in the violations, including a request for the extradition of Anvil Mining personnel. Here we flag that there is a wide gulf between both the mandates of regional human rights Commissions and Courts, primarily that states are only obliged by treaty to enforce judicial decisions. As for something with potentially greater potency, the ACtHPR recently noted in LIDHO v Côte d’Ivoire that while the responsibility to respect international law obligations primarily lies with states, “this responsibility is [also] incumbent on companies, notably, multinational companies” (para 142, on this case more generally, see recent commentary here and here).
The European system does not even have an indirect obligation. The furthest the European system has gone is to find that states have a positive duty to adopt preventive or protective measures to avert third parties abusing human rights (initially decided in the context of extradition in breach of art 3 ECHR). This has been applied to hold states responsible for abuses perpetrated by non-state actors, for example, regarding pollution from a steel plant and interference with freedom of expression and privacy by media companies. The major European cases on business and human rights have been outside the European human rights system. Milieudefensie v Royal Dutch Shell is a notable example, wherein the District Court of the Hague factored in both arts 2 and 8 of the ECHR and the UNGPs as relevant to determining the defendant’s unwritten standard of care in tort law. The Court of Appeal affirmed that in December 2024 (for here for more commentary on how human rights treaties and human rights, business and climate soft law establish the standard of diligence/duty of care).
Is there a balance to be struck?
In summary, European human rights law protects businesses the most and holds them accountable the least; the African system is in the middle, and the Inter-American system protects businesses the least and holds them accountable the most. The European regional system is the outlier in protecting the rights of corporations
However, the details of the kind of international legal protection that companies and their shareholders enjoy matter. For example, we can distinguish between the rights of the corporation and those of its shareholders. Do shareholders have a human right to vote or a human right to receive a dividend?
We created the graphic above to reflect the positions taken by different regional human rights systems on protection and accountability. It suggests a trade-off (and maybe there is if all the systems illustrate this). However, protection and accountability are not an either-or proposition. What we can clearly see from that diagram is that the different systems have chosen to protect different actors to varying degrees. Does that mean there is a trade-off? Or is it a structural design choice of each system? It also seems conceivable that the IACtHR could continue to take its expansive approach to interpreting the ACHR, which it has generally adopted, and apply it also to corporations. It bars that, but needn’t.
Historical context and current initiatives
It is essential to consider the institutional design choices made by each human rights regime within its historical context, which varies across the African, European, and Inter-American contexts, as well as between the Commissions and Courts of regional human rights systems, as highlighted above.
The modern context is important, too: we live in a world where many corporations are more powerful than many states. Corporates cross borders, and transnational corporations exert their economic and political influence in different countries. The transnational activity of corporations can make it difficult for states, individually and even collectively, to regulate them and for victims of human rights abuses at their hands to bring suit. Courts have relied on the UNGP “Protect, Respect, and Remedy” framework in some of the cases discussed above; however, compliance with it is voluntary for businesses. And, while corporates may have fewer rights to protect their human rights in some regional human rights systems, they have the privilege of direct access to investment arbitration. This is compounded by the fact that none of the regional human rights courts permit corporations to be directly sued. Perhaps it is the case that corporations remain out of reach of traditional state-based human rights infrastructure.
The current state of accountability for corporations’ human rights violations is a combination of national regulatory standards and voluntary approaches to ESG and human rights due diligence. Beyond these international norms, legislation at national and regional levels often addresses obligations of multinational corporations to conduct due diligence and report on their efforts to protect human rights. As we have seen, national and regional human rights courts have a role to play in regulating states in respect of corporations’ violations of such standards, but even then, it is limited. As a rule, therefore, regional human rights protection does not provide a comprehensive or effective mechanism for ensuring the accountability of corporations. As seen above, it is structurally limited in being such a mechanism.
Conclusion
A foundational question in developments regarding the protection of corporate rights and accountability for their wrongs is who decides these issues. Given the markedly different approaches taken by the African Convention and the various choices made in the context of the ECHR to protect corporate rights, we should be uncomfortable with courts in either the domestic or international/regional context deciding on this question beyond the margins. The question of whether corporations enjoy human rights and to what extent is important. It is a question that lawmakers or treaty-makers need to decide, not judges. If regional human rights protection lacks the reach or enforcement ability to properly hold corporations to account, what alternatives might be more effective? Perhaps the answer lies in the international human rights system, taking the matter outside the hands of judges. At least this seems to be one path currently being pursued: debates that began in 2014 in the UN Human Rights Council have recently produced a draft legally binding instrument on the human rights responsibilities of corporations. Where this could lead remains to be seen.
