One of the most challenged and discussed ideas in the evolving field of business and human rights, which has been particularly challenged in debates about a treaty on that issue, is the one that espouses that corporations must have direct international human rights obligations. That is to say, that international law ought to directly regulate human rights obligations of their own.
Challenges to this notion rest, at first glance, on theoretical, policy and legal arguments. The former rest, for instance, in the belief that it is States who are properly addressees of human rights obligations, and that imposing burdens on corporations could wreck the human rights edifice. Policy considerations point out things such as the difficulty of coming up with an adequate international system of supervision of corporate conduct or that the time is not yet ripe for imposing duties on corporations, given their reluctance and the opposition of developed States, the reason why insisting on the creation of those obligations could undermine efforts to come up with clarifications and developments about crucial aspects, such as extraterritorial State obligations, which are not dependent on the existence of direct corporate obligations. Finally, some challenge the legality of those obligations based on notions of subjectivity, which is apparently lacked by corporations under contemporary international rules.
In light of those objections, voiced even by some NGOs, the purpose of this chapter is threefold: first, to demonstrate that the challenges are, ultimately, not about insurmountable theoretical, policy or legal obstacles to direct corporate human rights duties but rather – perhaps unconsciously so – due to fear, selfishness or a lack of imagination; secondly, to argue that corporate duties already exist to some degree, and that complementary standards need to be enacted for individuals to be fully and effectively protected from corporate abuses; and finally, to draw attention to the fact that direct obligations may be a necessary dimension – not the only one – to tackle a problem that has to be addressed: that corporations can and do participate in human rights violations.
The latter should actually be treated as the starting point and the underlying problem, given the legal and ethical implications and demands, both in the sense that victims be protected and abusers held accountable.