Lecture summary: The history of corporate human rights abuses is much older than the history of international human rights law. The activities of colonial corporations are a case in point. However, the relation between the state and corporations has changed significantly over the years. Unlike colonial corporations deriving their powers from the Royal Charters, transnational corporations (TNCs) of today are self-generating powers to take decisions affecting people, political outcomes or the planet. For example, decisions made by Facebook or its Oversight Board could impact not only the human rights of billions of people but also shape election outcomes and international crimes. In some cases, remedial mechanisms established by TNCs require affected rights holders to waive their right to seek remedies through state-based judicial or non-judicial mechanisms.
What has, however, not changed much is the largely ineffective response of international law to regulate human rights abuses by TNCs. This lecture will critically examine four of such regulatory approaches: (i) the passive approach of international law regulating TNCs through states, seen again in a treaty currently being negotiated at the Human Rights Council, (ii) the peripheral approach of international criminal law to corporate liability for international crimes as reflected in the Rome Statue, (iii) the privileged approach embraced by international investment law to confer only rights on TNCs, and (iv) the pragmatic approach adopted by the UN Guiding Principles on Business and Human Rights to bypass difficult regulatory challenges. To remain relevant, I will argue that international (human rights) law should recognise the emergence of new sovereigns and reimagine both state-centric and non-state-centric regulatory approaches towards TNCs.
Surya Deva is a Professor at the Macquarie Law School, Macquarie University, Sydney, and a member of the UN Working Group on Business and Human Rights. His primary research interests lie in business and human rights, India-China constitutional law and sustainable development. Prof Deva has published extensively in these areas, and has advised various UN bodies, governments, multinational corporations and civil society organisations on matters related to business and human rights. Prior to joining Macquarie University, he taught at the School of Law of City University of Hong Kong, the National Law Institute University Bhopal and the University of Delhi. Prof Deva is one of the founding Editors-in-Chief of the Business and Human Rights Journal (CUP), and sits on the Editorial/Advisory Board of the Netherlands Quarterly of Human Rights, the Vienna Journal on International Constitutional Law, the Indian Law Review, and the Australian Journal of Human Rights. He is an elected member of the Executive Committee of the International Association of Constitutional Law (2018-22). Some of Prof Deva’s publications are available on SSRN.
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