Who Turned Multinational Corporations into Bearers of Human Rights? On the Creation of Corporate 'Human' Rights in International Law

Abstract

Who turned multinational corporations into bearers of human rights? This contribution analyzes the recognition and transformation of the idea of legal persons as rights holders from a rather isolated and restricted phenomenon in some domestic contexts, into a broader and fully-fledged recognition of corporations as human rights bearers in international law. Throughout the last decades, the highly contested and by no means obvious recognition of corporations as independent right holders has become a salient discursive element in two fields of international law; international human rights law and international investment law. By inquiring into the role of historical contingency, we analyze the interplay between events and discursive structures that led to the creation of corporate human rights. We argue that this development can be traced back to three historical events post 1945: First, the inclusion of legal persons in the drafting process of the ECHR and its First Additional Protocol in the late 1940s. Secondly, the jurisprudence of the ECtHR, peaking in the 1980s, which effectively promoted and expanded corporate rights. Thirdly, the migration of corporate human rights into the realm of investment arbitration in the early 2000s. Ultimately, we situate this critical re-description of corporate human rights in the debate on counterfactual thinking and the problem of false contingency, asking the question whether an alternative course of events would have been possible.