What's in a Name? Transnational Corporations as Bystanders Under International Law

Abstract

Transnational corporations (TNCs) are unique in the international arena. They are not state actors, and do not create law as state actors do. Neither however, are they like individuals, who having been the victim of human rights abuses too often in the past, now command their own special protections under international human rights law. Rather, under the doctrine of international law, TNCs stand alone. Despite this, TNCs – with their vast economic, multi-jurisdictional influence – wield an enormous amount of power in the international social, economic and legal arena. To that extent, a gap exists in international law that has not yet sufficiently addressed this issue. This paper offers a new perspective for examining transnational corporations; by using the term “bystander” to describe the role that TNCs have created for themselves, I hope to shift the debate concerning current accountability mechanisms for TNCs under international law. Starting from this bystander framework, I examine the various accountability approaches that are being advocated regarding TNCs under international law and discuss how using a bystander framework can offer solutions that are grounded in the theoretical paradigm that is being used by TNCs themselves.