Corporations and Economic, Social and Cultural Rights
(2014) Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges — ISBN: [9780199685974], p. chapter 7, published
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- This paper is an attempt to dispel certain conceptual misunderstandings concerning the applicability of economic and social rights to the conduct of corporations. It shows that, although international law in principle applies only to States in the international legal process, the rules of international law that define the rights of individuals can be invoked against corporations before a variety of mechanisms, at both domestic and international levels (section II). This applies to all rights, including rights that imply certain positive obligations on corporate actors. It would be artificial and potentially counter-productive, this chapter argues, to limit the corresponding duties of corporations to negative duties to abstain (section III). This was implicitly recognized when the duty to respect human rights was interpreted in the 2011 Guiding Principles on Business and Human Rights to include a duty for corporations to act with due diligence to ensure that such rights are not violated in the course of its activities. Moreover, describing companies' duties in purely negative terms would create an incentive for companies to stay away from situations which they could influence positively, but will be tempted to ignore if this could engage their legal responsibility: the relevance of such positive duties is illustrated by situations where corporations provide certain essential services, or where they are expected to control their subsidiaries or business partners (section IV). Finally, while certain factors may explain the reluctance of courts in enforcing social and economic rights invoked against corporate actors, such reluctance may not be justified: although it may be tempting to treat corporations as "persons" to fit them into predefined legal categories, they are not like individuals whose freedom of thought of conscience should be protected, and although they generally enter into relationships with others through the conclusion of contracts rather than by coercion, contractual freedom should not be considered to trump human rights where a conflict emerges between the two (section V).
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De Schutter, O. (2014). Corporations and Economic, Social and Cultural Rights. In Eibe Riedel, Gilles Giacca, and Christophe Golay (ed.), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (p. p. chapter 7). Oxford University Press. https://hdl.handle.net/2078.5/219383