The Corporate Responsibility to Respect Human Rights: Lessons Drawn from Corporate Criminal Liability and Moral Imagination

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In 2014 the United Nations launched a debate on corporate criminal liability as a mechanism for States to prosecute gross human rights abuses by multinational corporations. This paper understands these efforts as part of the creation and implementation of the Corporate Responsibility to Respect Human Rights in the context of a transnational governance system to regulate companies. It contributes to this development by examining the potential of four stylised liability models – vicarious liability, identification doctrine, aggregation liability, and organisational liability – to prosecute and prevent such gross human rights abuses. The analysis is based on a theoretical framework which complements the law and economics approach regularly employed in studies on corporate criminal liability with the idea of the socially embedded multinational corporation, and the concept of moral imagination as an effective instrument to prevent human rights abuses. The analysis ascertains that among the derivative liability models, vicarious liability offers the greatest potential to further the corporate responsibility to respect human rights while aggregation liability bears particular potential for negligence cases. In contrast, identification liability is not suitable for holding multinational corporations liable. Due to its inherent focus on corporate culture, organisational liability provides for the best environment for effective preventive measures.