Many developing countries face significant challenges in dealing with the influence of corporations and their blatant disregard for people’s rights. These companies contribute to environmental pollution, employ children, pay unfair wages akin to slavery, and subject workers to hazardous conditions.
Ratna Kapur and other legal scholars suggest that the uncertain state of corporate liability provides an opportunity to explore how the pursuit of legal justice through human rights affects vulnerable aspects such as racial, cultural, and civilisational structures. However, this pursuit often perpetuates the existing normative framework, undermining the potential for transformative justice. Transformative justice recognises that the current criminal justice system perpetuates harm and fails to address issues like inequality, trauma, and systemic oppression by “others” spanning centuries.
At the same time, the issue of the normative character and implementation of human rights is highly divisive. Australian academic Ntina Tzouvala contends that “there is scepticism, if not overt hostility, regarding the possibility of equal inclusion for non-Western, predominantly non-white political communities in the realm of international law, which rests on a deep-seated perception of cultural or racial inferiority”. Such inclusion is seen as feasible and desirable only if these communities adopt reforms aligned with capitalist modernity.
Accordingly, comprehending the historical context of international law and its manifestations is crucial in comprehending the ongoing challenges in pursuing justice.
Post-colonial scholars such as Bennett Capers and Anne Orford shed light on why international law has not been beneficial to victims of abuses in the developing world. Orford argues that intentional misinterpretation of the law is widespread, attributed to the interconnectedness between international law and imperialism. She then suggests engaging in a productive form of misreading that challenges the established protocols of international legal scholarship to reinterpret these texts in new ways.
On the other hand, Capers suggests the importance of “reading back” when interpreting legal texts, which involves a critical examination of both the explicit and implicit elements, including the revealed and concealed aspects. He emphasises the need to be mindful of power dynamics such as master/ slave, civilised/ primitive, enlightened/ backward, and good/evil, which have become ingrained in the subconscious of the white world, particularly when engaging with legal literature.
Essentially, this implies that the law is inherently biased and never neutral, reinforcing prejudices related to race, class, gender, and other hierarchies. Uncovering the hidden factors perpetuating human rights abuses in developing countries requires going beyond surface-level analysis and appreciating the underlying dynamics at play, particularly the role of both local and foreign economic actors.
International law traditionally focused solely on states, excluding individuals and corporations from its purview, which has diminished its normative influence. Attempts were made at the multilateral level to expand the scope of public international law to include corporations through non-binding instruments such as the United Nations Global Compact in 2000 and the subsequent United Nations Guiding Principles on Business and Human Rights (UNGPs).
Efforts to include corporations through non-binding instruments have been weakened by developed countries favouring voluntarism, enabling multinational corporations to exploit institutional limitations in developing countries. Based on this, Kamil Omoteso and Hakeem Yusuf reason that a balancing and accountability mechanism is necessary to address the power imbalance between companies and resource-rich developing countries, where most of the violations take place.
The prevailing focus on human rights, in alignment with neoliberal ideology, downplays the traditional and ongoing role of foreign states in exploiting the “other” within the framework of global capitalism. In the past, the capitalist-inspired human rights discourse was also used to criticise postcolonial governments when they attempted to assert control over their natural resources through measures like nationalisation.
Thus, understanding the historical context and political events is crucial in comprehending corporate liability in countries with colonial legacies in particular.
To effectively address problems faced by victims of business harm in obtaining legal recognition under international law, alternative approaches beyond surface-level analysis are necessary. Employing deconstruction theoretical discourse, pioneered by Jacques Derrida, can uncover hidden alternative meanings within legal texts and can also explore nuanced perspectives and uncover previously unseen dimensions within the legal framework.
Since the early days of human rights discourse, there has been a desire to challenge the critique that it is overly abstract and detached from the lived experiences of individuals. The abstract notion of the “universal human” found in human rights texts seemed capable of expanding to include those previously excluded.
This led to the widespread adoption of the language of human rights by all countries, including those historically marginalised, in an effort to claim inclusion within the category of humanity.
The belief of the previously marginalised groups is rooted in the act of “verifying equality,” where the unfounded claim that all human beings are born free and equal in rights is taken seriously. This optimism, however, has not generally yielded any positive outcome, and the process of inclusion remains unfulfilled for many marginalised communities world over.
The example of Western Sahara illustrates the detrimental impact of the close relations between the EU and Morocco on the rights of the Sahrawi people. The ambiguous stance on the legal status of Western Sahara and economic ties between the EU and Morocco compromise Europe’s trade interests, political and legal positions, and prospects for resolving the conflict.
The collaboration between states and corporations in resource exploitation, known as primitive accumulation, is a joint effort rather than solely driven by companies. Therefore, it is necessary to challenge the artificial separation between the “state” and “corporation”, which has resulted in an ongoing debate on addressing human rights violations caused by cross-border business activities.
According to José Reis, viewing the state, market, and society as opposing entities is a mistake. In addition, economist Ha-Joon Chang has also highlighted the underlying assumptions of the neoliberal discourse regarding the role of the state in relation to markets (corporations). He emphasises that the legitimacy and contestability of institutions embodying rights and obligations are ultimately determined in the realm of politics.
Therefore, when examining the actions of corporations in their transboundary economic activities, it is crucial to give more attention to the role of the law and its doctrines, based on European values and triumphalism.
My aim is not to present a literal argument for addressing contemporary problems related to the relationship between the state and the market, which includes widespread human rights violations. But, it is important to challenge the conventional belief that transnational corporations are competitors to the state, whereas there is little or nothing that separates them. This perspective has influenced legal approaches that aim to address non-compliant multinational corporations in the international system.
Thus, the ongoing debate on the governance of multinational corporations’ cross-border activities revolves around conflicting perspectives regarding the voluntary and binding nature of rules governing such operations. The dominance of what Dorothée Baumann-Pauly and Justine Nolan call the“business and human rights paradigm” has led to the proliferation of governance initiatives.
These initiatives encompass a galaxy of norms, from enforceable hard law to voluntary principles generated by private parties, states, multi-stakeholder initiatives, and international organisations. Such things as the due diligence legislation in some European states appear to be a bluff, serving to safeguard their investments overseas.
Arguably, the current push for a binding instrument is another unwelcomed addition to an already populated space. From companies to states, everyone is concerned about ‘greenwashing’ their souls instead of confronting the precarious state of marginalised peoples.
This paradigm in the interaction between business and human rights is not making progress but instead represents stagnation. And contrary to popular belief, it has achieved little and threatens to further fragment the dodgy international law, while neglecting the victims who are supposed to benefit from these initiatives.
Empirical evidence also indicates that these initiatives have not effectively eliminated the harms caused by businesses in their value chains. Challenges such as persistent child labour and issues related to tobacco farming in Southern African countries demonstrate the difficulty in holding companies and their intermediaries accountable for desecrations.
Additionally, the activities of international economic actors result in other problems, including environmental degradation, illicit financial flows, and tax avoidance. The choice of many countries to spend every penny to attract these global bullies and accompanying problems (investments) could be harmful in the name of jobs and economic development.
With all its promises and shortcomings, theinternational legal framework governing corporations and human rights has struggled to keep up with the modern economy, which is largely dominated by recalcitrant corporations and some states who know no limits.
Despite the conclusion and adoption of numerous instruments addressing environmental protection, human rights, and commercial arbitration/investments over the past three decades, this approach has dismally failed to effectively close the regulatory gap in international law regarding corporate activities and their impact on human rights. Furthermore, it also lacks clarity on extraterritorial human rights obligations and fails to address potential conflicts between international investment law and human rights law.
It is important to recognise that the developing world has long suffered from the actions of both states and corporations, and this exploitation did not start with the advent of ‘globalisation’ in the 1990s but goes back many centuries. Approaching current challenges in the Global South through a distorted Eurocentric-informed legal lens that ignores this historical context creates problems in effectively addressing the issues at hand.
Siya yi banga le economy!