Human Dignity And Corporate Accountability For Human Rights Violations
By Dr. Melba K. Wasunna, Ba Law Llb Sjd
This article shall attempt to build a new jurisprudential and practical approach to understanding the notion of human dignity in relation to corporate human rights violations. My aim is to show that human dignity represents a coherent and progressive approach to dealing with the threats to human rights posed by multinational corporations (MNCs) in modern times. The article begins by briefly discussing preliminary issues of whether MNCs are capable of bearing international human rights obligations and if so, whether such obligations actually exist in current international law. Concluding that any such claims are tenuous at best, the article then proceeds to conduct an in-depth examination of the meaning and value of the notion of human dignity in modern philosophy. It then goes on to illustrate how the concept might facilitate the establishment of a binding relationship in international law between MNCs and human rights norms. This article ultimately concludes that human dignity is the best, if not the only, available ground for the development of international legal accountability for MNC human rights abuses.
The international human rights framework was conceived on the assumption that States can and do control all the activities of all individuals and entities operating within their respective jurisdictions. Accordingly, some have contended that the protection of human rights is the sole responsibility of the State such that any infringement of rights from non-State entities falls within domestic jurisdictions to be pursued under national laws. This view is succinctly stated by McCorquodale as follows:
"International human rights law, for all its diversity and size, places direct legal obligations only on states. The international human rights law system is a state-based system, a system in which the law operates in only one area: state action. It ignores actions by nonstate actors, such as ... transnational corporations .... Nonstate actors are treated as if their actions could not violate human rights, or it is pretended that states can and do control all their activities. "
However, the advent of globalization in the last few decades has spurred the growth of multinational corporations (“MNCs”), which are business entities with the ability to operate on the global arena and transcend the regulatory capacity of a single State. Although the term “MNC” has been used extensively in academic literature; there is currently no universally agreeable definition. In this paper, the term MNC will be used to refer to an economic enterprise that owns, controls or manages operations or productions in two or more countries, whether its actions are directed by a head office in a single State or by various control systems across the globe. This definition is predicated on the modern corporate enterprise theory, which allows all constituent corporations that are part of an integral business group to be treated as a single economic unit for the purposes of attaching liability. The theory relies on the concept of ‘control’ between a parent company and its subsidiaries, which may take the form of holding a majority of the shares or the power of one entity to control or direct the management and policies of another entity.
While MNCs can and do facilitate the enjoyment of human rights for a wide range of people, the negative impact that their operations have on human rights is also well documented. MNCs, particularly those with operations in developing countries, have been associated with violations of human rights such as labour rights (providing poor working conditions, including poor wages), the right to health (polluting the environment, which affects access to clean water), and the rights to life, land, housing and adequate living standards, among others. Vulnerable individuals, whose human rights have been adversely affected by the MNC’s activities, have little or no legal redress against the corporation under their country’s domestic laws. The result has been what Justice Ian Binnie accurately describes as “an unfair imbalance ... between the price paid by the first world and the real costs incurred in the third world”.
The issue was most recently propelled to the forefront of the global debate in 2008 when the United Nations (“UN”) Human Rights Council unanimously welcomed a conceptual framework known as the Protect, Respect and Remedy: a Framework for Business and Human Rights proposed by John Ruggie, the Special Representative of the UN Secretary-General on the issue human rights, transnational corporations and other business enterprises. This was followed, in 2011, by Ruggie’s Guiding Principles on Business and Human Rights, which the UN Human Rights Council also unanimously endorsed as practical steps for implementing the 2008 framework.
Ruggie’s framework has been instrumental in clarifying the wider debate on corporate social responsibility. For example, the thorny question as to whether corporations should respect internationally recognized human rights, irrespective of whether domestic systems provide for effective enforcement of such responsibility, can now be answered with an unequivocal ‘yes’. However, what remains deeply contested in the legal fraternity is the assertion by some human rights commentators that such corporate responsibility can, and should, be legally enforceable under international human rights law. In other words, a lacuna currently exists as to how transnational violations of human rights by MNCs can be legally addressed at the international level particularly in situations where a State is unable or unwilling to address such abuses.
This paper posits that the concept of human dignity constitutes the best, if not the only, available ground for the development of international obligations for MNCs with respect to human rights. In fact, the principle of respect for human dignity has played an important legal role in several social and political movements of the 20th century including the civil rights movements in the United States, the advancement of women’s rights in the workplace, discussions on the ethics of biomedical research, the issue of euthanasia and the issues of genetic manipulation and human cloning, among others. It is the concept’s success, amongst other things, in these human rights movements that informs my argument that it is the appropriate legal (and philosophical) bedrock to rely upon in order to create binding obligations in international human rights law for corporations.
My argument will proceed in the following three separate, but related, queries: (i) can an intimate relationship be established between MNCs and international human rights? In other words, are MNCs capable of bearing human rights obligations under international law (the “Possibility” Issue)?; (ii) if so, do MNCs have real and existing obligations in international human rights law to respect and promote human rights (the “Reality” Issue)?; (iii) or is there another basis in international human rights law to create and impose legal obligations on MNCs (the “Source” Issue)? The first two issues have been explored at length by many commentators, and it is not my intention to give a detailed analysis of them here. Instead, I shall briefly show that while MNCs can be said to be subjects of international law, and are therefore capable of bearing human rights obligations, claims for the actual existence of such obligations are tenuous at best. I will then conduct an in-depth examination of the Source Issue in order to determine possible rules in international law that might facilitate the establishment of a binding relationship between MNCs and human rights values. I will argue that international human rights law is open to such obligations coming into existence on the basis of the foundational principle of human dignity.
2. THE POSSIBILITY ISSUE: CAN MNCS BE SUBJECTS OF INTERNATIONAL HUMAN RIGHTS LAW?
This section will briefly address the question of whether MNCs are capable of bearing human rights obligations.
Traditionally, the system of international human rights law has predominantly focused on States as the primary violators of human rights and thus the holders of binding human rights obligations. However, non-State organs have also long been recognized as being subject to international law. For example, the preamble of the Universal Declaration of Human Rights (“UDHR”) requires not only States but also “every individual and organ of society” to participate in the promotion and protection of basic human rights. Thus it can be said that MNCs, as ‘organs of society’, have, at the very least, the ability to hold as well as enforce rights and obligations.
In addition, there have been certain developments in international law in the last few decades that have led non-State actors to being increasingly recognized as subject to international law. To begin with, jurisprudence emerging from international criminal tribunals for Nuremberg, Tokyo, Rwanda and Yugoslavia has confirmed that individuals who commit acts considered to be crimes in international law will be held responsible for their actions and will be liable for punishment. Also, international organizations such as the United Nations and the World Health Organization have been recognized by the International Court of Justice as endowed with international legal personality and are therefore subject to international law independent of the member States comprising the organizations. This jurisprudence from the international courts confirms that individuals, whether natural or legal, can be held directly responsible for violating international human rights law rules in certain circumstances.
MNCs, admittedly, entered the international scene at a much later stage and like private citizens, were assumed to be accountable only under domestic law. However, in recent years, MNCs have been treated as distinct legal personalities with the ability to enjoy certain rights under the international law regime. For instance, they have the capacity to bring international claims in areas concerning economic law under bilateral or regional investment treaties and free trade agreements. The First Protocol to the European Convention on Human Rights also recognizes the rights of corporations to property, free speech, fair trial and privacy. This modern trend, which allows and enables MNCs to utilize international law mechanisms to protect their interests and facilitate their activities, leads me to the conclusion that MNCs must also possess the legal capacity to bear direct duties under the same regime. As noted by Ratner, “If states and international organizations can accept rights and duties of corporations in some [international law] areas, there is no theoretical bar to recognizing duties more broadly, including duties in the human rights area”. Indeed, some international treaties, especially in the field of international environmental law, have already placed direct legal obligations on MNCs, albeit in a limited fashion.
Moreover, new economic realities in modern times, which have been exacerbated by the process of globalisation, render the traditional argument that MNCs, as non-State actors, cannot be subjects of international law as antiquated and impractical. Triggs argues that “through their network of subsidiaries and their capacity to invest and conduct business in other States, trans-national corporations appear to have gained … international legal personality and defined rights and responsibilities”. Hence, the view that MNCs are capable of bearing human rights obligations should not be viewed as an extraordinary and unprecedented development but rather as an extension of the position prevailing at international law and practices under which MNCs already enjoy rights, and bear limited obligations.
Critics may argue that imposing direct human rights obligations on MNCs would take away the responsibility of a State to protect and promote human rights. MNCs, so the argument goes, are non-State actors whose only duty is to obey the law, whereas States should regulate on matters of social responsibility. It is conceded that States continue to be the primary subjects of international human rights law. However, international law does not preclude the existence of concurrent obligations to be borne by non-State actors, including MNCs. In my view, given their capacity to transcend a single State’s jurisdiction and the effect of their activities on people’s lives across the globe, conferring legal status to MNCs in international human rights law should be viewed as merely complementary to the existing State-centric regime.
In all, States should not be absolved of their primary obligations to protect and promote human rights within their jurisdictions. However, MNCs are entities also capable of being the bearers of direct human rights obligations and thus should be held responsible for human rights abuses, at the very least within the scope of their operations. Simply put, “MNCs to an extent have, or at least have the potential to possess, international legal personality”.
3. THE REALITY ISSUE: DO CORPORATIONS HAVE HUMAN RIGHTS OBLIGATIONS UNDER INTERNATIONAL LAW?
Having concluded that MNCs are capable of bearing human rights obligations, the key question then becomes whether existing international human rights law already imposes obligations on corporations, or whether substantive legal change would be necessary to impose such obligations.
Proponents point out that the preamble of the UDHR asserts that “every organ of society … [shall] secure [the] universal and effective recognition and observance [of human rights]”. Also, articles 29 and 30 of the UDHR stipulate that “everyone” owes human rights duties to the community to which they are a part. Likewise both the International Covenant on Civil and Political Rights (“ICCPR”) and International Covenant on Economic, Social and Cultural Rights (“ICESCR”) contemplate the existence of obligations for non-State entities by asserting: “the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present covenant”. It has therefore been argued that every ‘individual’ and every ‘organ of society’, as the case may be, excludes no one, not even corporations in the promotion and the protection of human rights.
Also offered in support of this viewpoint are some commentaries by human rights treaty bodies. For instance, the UN Committee on Economic Social and Cultural Rights (“ESCR Committee”), in its General Comment 12, asserted that “all members of society [including] private business sector have responsibilities in the realization of the right to adequate food”. On the basis of these provisions, proponents assert that international human rights law is not limited to reach States only but also clearly imposes duties on corporations to respect and promote human rights. Some argue that from the perspectives of the victims, it is irrelevant for them whether the violator is a State, an individual or a corporation; therefore whoever the perpetrator is shall be liable under international human rights law.
With respect, even though some authors may claim that the UDHR represents customary international law in its entirety, this article takes a cautious approach and recognizes that while some aspects of the instrument are indeed customary law, it is doubtful that the provisions invoked above, in as far as MNC obligations are concerned, qualify. That is, the status of the UDHR as customary international law, especially with respect to corporate duties, by no means enjoys universal acceptance. This is illustrated by the lack of consistent State practice in so far as directly imposing international human rights duties on corporations is concerned and the ambiguity in the “duties” provisions themselves. With respect to the latter, even if a reference is made to individual “duties” in the UDHR, which arguably could include those of corporations, there is no clarification of exactly what these duties entail. It is also instructive to note that other international human rights treaties do not include a provision on correlative private duties similar to articles 29 and 30 of the UDHR; only their preambular paragraphs make reference to duties that individuals have towards other individuals. In my view, these provisions at best may serve as a springboard towards a new conception of human rights in which commitments of corporations are more clearly articulated. This avenue shall be explored in greater detail in the section directly below. For now, it suffices to say that the above arguments fail to offer sufficient proof that the UDHR provides binding corporate human rights obligations.
Furthermore, the reliance on the commentary from human rights treaty bodies for the existence of corporate human rights obligations seems to be misplaced. While these treaty bodies do indeed acknowledge that corporations have human rights duties, they seem to endorse their existence only through domestic State action. For instance, in its General Comment 15, the ESCR Committee stated that “steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries”. Similarly, the ESCR Committee stated that “the violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties … [including] failure to regulate the activities … corporations so as to prevent them from violating the right to health of others”.
Therefore, under the current paradigm of international law, the obligation to ensure specific rights is addressed to the State, and corporations are only restricted indirectly through State action at the domestic level. This contemporary position has been set out as follows by the Human Rights Committee in its General Comment 31: “The article 2, paragraph 1, obligations are binding on States [Parties] and do not, as such, have direct horizontal effect as a matter of international law. The Covenant cannot be viewed as a substitute for domestic criminal or civil law”.
The prevailing position appears to be that for victims of corporate human rights violations to obtain effective remedy, they must seek justice within a domestic legal system. This explains why MNCs have been able to largely operate in a legal vacuum - because international human rights law does not impose direct obligations on their transnational activities. At this juncture, it would be prudent to briefly discuss, and clarify, recent developments involving international criminal responsibility of corporations, a subject currently under intense debate by the international community. Whereas the assertion that international human rights law imposes clear duties on corporations has been rejected in this paper, recent scholarship suggests that the position may be different in the international criminal law context. Indeed, there is growing evidence that a marked shift towards direct liability under international criminal law has occurred in the last few decades with respect to individuals, including corporate entities, which commit international crimes such as genocide or crimes against humanity. A detailed consideration of these circumstances, however, lies beyond the scope of the paper and is more appropriately discussed under international humanitarian law. For now, it suffices to note that despite the strong insistence by some quarters that these changes in the international criminal law context extend beyond international crimes to include violations of international human rights law, it is contended that corporations have only gradually incurred responsibilities towards human rights, not actual human rights obligations. This distinction is important as a misdirected reliance on direct legal obligations under international criminal law may constitute a formidable obstacle in making meaningful progress in devising effective ways through which MNCs can be held accountable for their negative human rights impacts.
The question then becomes whether there is additional room under international law for harnessing the emerging human rights responsibilities of corporations towards accountability. How to move towards such a new conception will be explored in the section below.
4. THE SOURCE ISSUE: IS THERE A BASIS IN INTERNATIONAL LAW TO IMPOSE CORPORATE HUMAN RIGHTS ACCOUNTABILITY?
4. THE SOURCE ISSUE: IS THERE A BASIS IN INTERNATIONAL LAW TO IMPOSE CORPORATE HUMAN RIGHTS ACCOUNTABILITY?
Having accepted that international economic (and even political) power has shifted from individual States to MNCs, this paper posits that a re-examination of the international human rights framework is necessary in order to determine a basis upon which MNCs can and should be held accountable for their transnational violations of human rights. In this section, I shall seek to fill this jurisprudential gap by using the concept of human dignity as the foundational principle of corporate accountability. My aim is to show that human dignity represents both a modern philosophical concept and a key legal principle for dealing with threats to human rights posed by MNCs. To this end, I shall explore the meaning of the concept of human dignity and the ways in which human rights rest on, give voice to, or seek to realize this concept. Ultimately, it shall be argued that the notion of human dignity constitutes the best, if not the only, available ground for the development of international accountability for MNC human rights abuses.
4.1 A Brief Reflection on the Philosophical Discourse on Human Dignity
The concept of human dignity is not confined to modern legal discourse but has deep roots in the theology of religion, moral and political philosophy. This section will provide a brief overview of the historical development of human dignity. While a detailed account would not be possible or, indeed, desirable here, I hope to draw upon historical philosophical conceptions to shed light on the meaning of the term in modern times.
The philosophical underpinnings of the principle of human dignity can be traced all the way back to classical Roman law, which used the concept to convey an individual’s rank and status in society. This viewpoint was later displaced by early Christian religious teachings, which asserted that human dignity was completely based upon one distinguishing feature bestowed upon humans by God: that man was created in His own likeness and has dominion over all other creatures. St. Thomas Aquinas (1225-1274), in particular, considered that the likeness of man to God constituted human dignity. This idea was subsequently developed in the period of Renaissance, where human dignity was seen as a universal quality enjoyed by all human beings. This period served to fortify the idea that dignity is not merely inherent and inalienable but also universal to all people.
The notion of human dignity was eventually received in the secular context where prominent philosophical writers in the 17th century such as Samuel von Pufendorf (1632-1694) incorporated the concept of human dignity into his doctrine of natural law. According to Pufendorf, an individual possessed human dignity because of his or her immortal soul and because he or she was endowed with understanding or the ability to reason; hence because all humans were so endowed, they were equal by nature. Increasingly, other philosophers dropped the religious concepts previously associated with the concept and expounded on this modern development of dignity, which drew substantially on the importance of human beings as having the capacity of reason.
Arguably, the most influential person on this concept, who has even been called the “god-father” of the modern doctrine of human dignity, is Immanuel Kant (1724-1804). Similar to Pufendorf, Kant argued that the basis of human dignity is the ability of man to reason or to think. However, contrary to Pufendorf who believed that only human relations could provide human dignity, Kant believed there was a deeper value in human dignity - one that extended beyond its relativity to mankind. Kant asserted that “man does not exist as a mere means for any use or will, but as an end in himself. Thus, he always has to be regarded, in all actions both towards himself and to other reasonable beings, as the end, too”. This formulation is what is commonly referred to as the categorical imperative of the Kant doctrine. Later, in order to shed more light on his doctrine, Kant developed it into the practical imperative as follows: “Act in such a way as to treat humanity, whether in your own person or that of another, always as the end, never merely as the means”.
According to Kant, this means that a human being should be regarded as a person who possesses a dignity (an absolute inner worth) by which he demands respect for himself from all other rational beings in the world. One can see that Kant explicitly links the notion of dignity to respect as he stipulates that our humanity demands that others respect us while at the same time we respect them. He further asserts, “do not let others tread with impunity on your rights” thereby also linking dignity to human rights. It can therefore be surmised that for Kant, human dignity is universal and inherent; possessed by every human being and expressed in the form of human rights. As we shall see below, the Kantian doctrine became one of the inspirations for the inclusion of the notion of human dignity in the UDHR and other international human rights instruments.
Also of note is the work of Ronald Dworkin, who is today considered to be one of the most influential modern legal philosophers on the concept of human dignity. Similar to Kant, Dworkin provides a conception of human dignity in his latest work cryptically called Justice for Hedgehogs, which, amongst others, embodies the notion of self-respect. Dworkin sees self-respect as an underlying principle of human dignity that requires individuals to recognize not just their inherent worth but also imposes a moral duty to respect the lives of others who are similarly endowed with inherent worth. It is worth mentioning that in his earlier work, Taking Rights Seriously, Dworkin asserted that legal principles (including international human rights standards) flow from certain underlying moral principles such as justice, fairness and human dignity. For my purposes, it is not necessary to break down Dworkin’s overall teleological account of the concept of human dignity. Instead, it is simply enough to note that according to Dworkin, human dignity is a moral principle that demands that people’s human rights be taken into account by other individuals.
Overall, although there are interesting differences among philosophers on the meaning of human dignity, what is clear from these different strands, and is pivotal to this paper, is that central to the concept is the idea that all human beings are worthy of respect - an inherent value that exists simply by virtue of our humanity. Whether this understanding of the concept is the basis upon which human rights exist today shall be elucidated in the section below.
4.2 Human Dignity in International Law
After the atrocities of World War II, human dignity was formally protected in international human rights law and has since come to be considered as the “foundational concept of the global human rights regime”. The UDHR identifies human dignity as the basis of human rights by stating that the “recognition of inherent dignity … is the foundation of freedom, justice and peace in the world”. Article 1 then goes on to reaffirm the Kantian doctrine by asserting that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. Furthermore, Article 22 states that a person’s economic, social and cultural rights are indispensable for his or her dignity.
Most human rights treaties also expressly endorse human dignity as the source of human rights. The UN Charter preamble states:
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person … and have determined to promote social progress and better standards of life in larger freedom….
Article 1 of the UN Charter takes up this theme and provides: “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. There are also several more specific uses of dignity in the remainder of the UN Charter. For instance, Article 22, on the right to social security, provides:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
In addition, Article 23(3), which articulates an individual’s fundamental right to work, provides that “everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”.
Similarly, the ICCPR, the ICESCR and the International Covenant on the Elimination of Racial Discrimination all affirmed in their preambles that human dignity is the underlying foundation of international human rights law. More recently, emerging from the comprehensive reconsideration of international human rights law at the World Conference on Human Rights in 1993, the Vienna Declaration asserts dignity as being the proper source of international human rights law. The preamble of the Declaration affirms that:
... all human rights derive from the dignity and worth inherent in the human person, and that the person is the central subject of human rights and fundamental freedoms, and consequently should be the principal beneficiary and should participate actively in the realization of these rights and freedoms.
The Vienna Declaration not only adopted dignity as a foundational principle to human rights in general, but also explicitly recognized the concept in provisions dealing with particular areas of human rights, such as the treatment of indigenous peoples, the prohibition of torture, the prohibition of gender-based violence and harassment, the abolition of poverty, and the issue of biomedical ethics. It should also be noted that the notion of dignity is not restricted to international human rights instruments. It has also become embedded in the texts of regional human rights treaties, most notably in the preambles to the Inter-American, Arab, African, and (some) European human rights instruments.
In sum, the inclusion of human dignity in the above international and regional instruments demonstrates the idea that human dignity is the underlying foundation of international human rights law. As it will be argued later on, any violation of dignity, whether by States or private actors, should be included within the legal architecture that protects human rights.
4.3 The Meaning of Human Dignity
Having considered the philosophical underpinnings of the notion of human dignity and its embodiment in international human rights instruments, the question then becomes: how do we understand the concept of dignity in modern times? It is worth noting that despite its apparent centrality to human rights law, the term is never explicitly defined in the text of the international instruments. This raises the following questions: what does dignity actually mean in these instruments? Is it a basis for human rights, a right in itself, or is it simply a synonym for human rights? This section shall tackle these queries with a view to articulating what it actually means to have human dignity and what implications this has for developing a coherent legal and philosophical justification for corporate accountability of human rights violations.
Contemporary literature on the meaning of the term reveals that there are two broad philosophical views that attempt to explain whether and how the notion of human dignity provides a foundation for human rights: reductionism and essentialism. According to the first viewpoint, reductionism, the lack of a substantive definition in international instruments implies that the term human dignity is a mere rhetorical slogan, a catch-all phrase that lacks any real or substantial expression in law. Proponents of this viewpoint have even gone so far as to describe the term as “useless”, “vague”, “a fuzzy concept”, and “elusive as to be virtually meaningless”, amongst others.
Reductionists further believe the term human dignity amounts to no more than the existing philosophical principle of autonomy. Dignity, they argue, merely aims to protect an individual’s right to control his or her life or destiny, that is, self-rule. Therefore, the concept simply requires every person to respect every other person’s right to make choices and to take action based on that person’s own values and belief system. On this account, dignity involves not only refraining from interfering with others’ choices, but sometimes actually providing them with the necessary conditions and opportunities for exercising their autonomy. Proponents of this viewpoint contend that human dignity adds nothing more than that which has already been articulated by the principle of autonomy because it merely amounts to “treating people in the way that they wish to be treated”.
In contrast, essentialists believe that human dignity contains certain features that differentiate it from other philosophical concepts such as autonomy. Their approach is to “distill dignity’s meaning down to its fundamental core by searching for the root or basic meaning of dignity”. Essentialists tend to view the concept as possessing a minimum core, which recognizes that every human being possesses an intrinsic worth that should be recognized and respected by others. Following the Kantian doctrine, essentialists believe that autonomy and reason serve as the foundation of human dignity.
This paper aligns itself with the second viewpoint for the following reasons. In my view, it would be a mistake to conclude from the lack of a definition in international human rights instruments that human dignity is simply a slogan, which is too ambiguous to be meaningful in international law or that it is reducible to the principle of autonomy. Admittedly, the concept does indeed lack a clear definition in human rights texts; however, as it will be shown, this in no way detracts from its essence and usefulness in human rights jurisprudence. Reductionists seem to confuse the notion of inherent dignity of the human person with that of moral dignity. The former, which forms the subject of analysis in this paper, plays a central role in legal instruments and is inseparable from the human condition while the latter is a synonym for ‘honour’ and relates to the behaviour of human beings in choosing good over bad. In addition, reductionists are reminded of other fundamental concepts such as “equality”, “justice” “discrimination” and “freedom”, which have also not been defined by international law instruments but are nonetheless considered to be meaningful. This, as Andorno points out, is not only because of the impossibility of finding a precise definition of such terms that satisfies everyone in a multi-cultural world, but also because rigid definitions often lead to unsolvable difficulties in the implementation of legal norms. McCrudden agrees that while “there is no common substantive conception of dignity ... there [nonetheless] appears to be an acceptance of the concept of dignity”.
It is contended that by international instruments asserting that dignity is “inherent … to all members of the human family”, that all human beings are “free and equal in dignity and rights”, and that “these rights derive from the inherent dignity of the human person”, these instruments offer invaluable guidance for clarifying the meaning of human dignity as used in international law. First, dignity is a permanent and intrinsic attribute that is inseparable from our humanity; thus it is not a value that can be derived from some specific personal features such as age, nationality, race or gender. Secondly, dignity implies that basic rights are equal for all; therefore if human dignity is the same for all, then all human beings possess equal basic rights. Thirdly, rights derive from human dignity, a pre-existing value that therefore cannot be taken away arbitrarily. These three elements lead me to conclude that, at the very least, the ‘minimum core’ of human dignity entails the following: every human being has his or her own intrinsic worth simply by virtue of being human, which should be recognised and respected by others; and thus human rights, which flow from human dignity, are inherent in every human individual and should be respected.
It would be prudent, at this stage, to make a distinction between human dignity and human rights as these maybe confused as being one and the same concept. The Vienna Declaration clearly asserts that “all human rights derive from the dignity and worth inherent in the human person”. In my view, this suggests that these are two separate, but nonetheless intimately linked concepts. Donnelly points out that “the practice of human rights provides a powerful mechanism to realize in the social world the underlying dignity of the person”. Therefore the link between human rights and human dignity is that human rights are a practical social instrument, which reflect and aim to realize the underlying encompassing value of human dignity.
To conclude, if we accept the notion that human beings have intrinsic worth, it follows then that not only is each individual entitled to fundamental rights and freedoms but also that human beings deserve to be protected from serious threats to their dignity. One can see that unlike the reductionist approach, which asserts that dignity overlaps with philosophical concepts like autonomy, essentialists correctly take into account other aspects of our human experience that provide a richer conception of dignity. The impact that this understanding of human dignity will have on corporate human rights violations will be explored next.
4.4 Human Dignity as the Overarching Principle to Corporate Human Rights Accountability
Having accepted that the international human rights framework is a mechanism for the realisation of the foundational value of human dignity, the question then becomes: how do we use human dignity to construct the foundations of corporate human rights accountability at the international level? In addressing this issue, I shall combine, on the one hand, the appeal to human dignity as an overarching principle with, on the other hand, the recourse to human rights norms as embedded in international law so as to provide an effective and practical way forward for dealing with MNC human rights abuses.
I should begin by pointing out that the primary reason for my emphasis on human dignity as the basis for achieving MNC accountability for their human rights violations is that corporate activities are closely connected to the most basic human rights, namely the rights to work, to adequate standard of living, health and access to a clean environment, among others. In my view, if human dignity is the foundation upon which these and other human rights are based, then it is not too farfetched to invoke the concept as the ultimate rationale for the enforcement of human rights responsibilities of MNCs at the international level.
It follows from my earlier discussion that human dignity is the underlying foundation of the international human rights regime, that human dignity constitutes a fundamental source from which new human rights may be derived or existing rights extended to apply to new situations. This means that human dignity provides us with a key point of leverage to effect the transition from what ‘ought’ to what ‘is’ and thus provides a fuller and richer content of international human rights norms. In relation to MNC abuses of human rights, Ratner points out that “if human rights are aimed at the protection of human dignity, the law needs to respond to abuses that do not implicate the state directly”. Kinley and Tadaki agree that the concept of human dignity possesses “a norm-making capacity that can both effect corporate behaviour and form a basis for future ... regulation”. Therefore it is submitted that human dignity, as a legal and philosophical concept, is uniquely positioned to provide a key vehicle for re-analysing and renaming what businesses currently perceive as ‘corporate risks’ into ‘corporate violations’ and as such demands accountability for any negative impacts on human rights.
Keeping the above in mind, this paper identifies a distinctively useful institutional function which dignity can play with respect to corporate human rights violations: enhancing a victim’s right to effective remedy under international human rights law. In this regard, it is contended that human dignity can play a dual role: one involving a legal dimension that relates to the ability by victims to bring claims of wrongdoing and seek reparation; the second involving a moral dimension relating to the substantive reparation itself, whereby an individual whose rights have been violated is able to obtain relief from the wrongdoer.
The distinction between these two different, but related, spheres is based on the practical consequences that each has under international law. Here, sensitivity to context is essential requiring a recapitulation of the business and human rights predicament, as follows: despite the negative impacts that MNCs can and do have on human rights and the failure by (some) Host States to effectively regulate MNCs’ adverse impacts on human rights, international law currently does not provide for specific corporate human rights obligations thus leaving many victims of corporate human rights abuses without effective remedy. Therefore, the first role of human dignity in enhancing MNC accountability as proposed herein envisions a direct legal function for the concept and is consistent with the clear duty imposed on States by international law to protect human rights. In other words, this dimension utilizes dignity, as an underlying principle of the international human rights framework, to compel all States to comply with their international duty to protect human rights including by providing access to judicial systems to enable persons whose rights have been violated by MNCs to obtain effective remedy.
The second leans on the emerging social responsibility of corporations to respect international human rights, as accepted by businesses themselves (albeit under pressure from stakeholders). In this context, the concept of human dignity is used as an apparatus to propel MNCs to voluntarily reassess their business activities in light of international human rights norms and address their negative impacts, whether or not the State judicial and administrative machinery is effective, thus preserving the fundamental idea that each individual human being is deserving of respect and concern. The common theme in both these conceptual paths is that a denial of either is implicitly incompatible with the basic idea of the inherent dignity and worth of a human being that currently exists under philosophical, social and legal discourse.
The major advantage to this dual approach is that it paves the way for critical political consensus concerning the role of international human rights law in ensuring that MNCs respect human rights principles during the course of their business operations. In other words, dignity can play a significant role politically in smoothing over the different philosophical outlooks and values of States, businesses and human rights organizations and promote the possibility of a concrete global agreement among these differing outlooks to ensure MNC accountability for their transnational human rights violations. As noted by Schachter, the notion of human dignity “has acquired a resonance that leads it to be invoked widely as a legal and moral ground for protest against degrading and abusive treatment. No other ideal seems so clearly accepted as a universal social good”. Indeed, the business world seems to be open to this suggestion as affirmed by the Business Leaders Initiative on Human Rights, when it set out to find practical ways of implementing the UDHR within its various business organizations around the world.
Critics may argue that international human rights law only charges States with being responsible for protecting the rights of those within their jurisdictions. By implication, so the argument goes, non-State actors, including MNCs, are exempt from human rights accountability at the international level because human rights are currently expressed as belonging to the jurisprudence of States. However, as McBeth points out:
... the strong focus on the State in … efforts to secure the rights declared in the UDHR should be viewed as a practical matter for the implementation of the UDHR rights; it should not distract one from the character of the UDHR as an explicit acknowledgement of the existence … of pre-existing human rights that accrue to every human being and derive from human dignity.
In other words, the protection of human dignity - the need to ensure that the inherent worth of every human being is respected - is not necessarily bonded to the exercise of State power. Human dignity, inextricably linked to human rights, may be violated by any person or entity, including MNCs and as such demands accountability. Moreover, as Clapham asserts, “the strength of the human rights system has always been its ability to adapt to new demands and new non-state actors”. Thus, it is submitted that human dignity provides us with a sound jurisprudential and legal foundation through which the existing human rights machinery may be reoriented to cope with the new demands for protection from harmful MNC activities.
Ultimately, however, it should be noted that recourse to the fundamental value of human dignity for MNC human rights accountability is a necessary, but not in itself a sufficient mechanism for providing an effective response to the complex challenges posed by transnational corporate human rights violations. Some further mechanisms will be required for dignity to actually become functional. This is a vital concept to grasp. While we need to recur to human dignity as the ultimate justification of imposing accountability on corporations, this paper contends that more concrete or practical notions are needed to flesh out the principle in real life. Therefore, the international community ought to reflect on concrete mechanisms through which the fundamental value of human dignity may be harnessed, legally and socially, to provide for MNC accountability.
In sum, if, as Clapham avers, the overriding objective of human rights is to protect the victim’s inherent dignity, then the victim has to be protected from everyone, including non-State actors such as corporations. However, the transnational character of MNCs poses significant barriers to the protection of human rights mainly because their operations are usually conducted beyond the exclusive jurisdictional control of a single State. This paper has sought to take an existing philosophical and legal concept - human dignity - and place it at the centre of the quest towards ensuring MNC accountability for human rights violations. Such accountability is premised on the idea that human rights protect the dignity or inherent worth of human beings and consequently, upon their violation, human beings lose their ‘human character’. Thus, the appeal in human dignity as a foundational basis for future MNC accountability lies not just in the fact that it is an overarching principle in international human rights law but that it also reconciles the profit-driven demands of doing business with the social expectations on businesses to respect human rights and provides a foundational platform whereby both voluntary and legal mechanisms may have relevant and reinforcing roles to play in regulating the relationship between business and human rights.
The premise that international human rights law only governs State relations is clearly antiquated and requires modification. Given the massive scale of modern commercial projects in today’s globalised economy, MNCs are now, more than ever, capable of infringing fundamental human rights in the pursuit of greater profits, investment or economic development. This paper has shown that MNCs are indeed also capable of bearing obligations in international human rights law. However, neither treaty law nor international jurisprudence has - as of yet - articulated the actual existence of such standards. Nevertheless, there are no legal obstacles in international law to the formation of such obligations. Therefore it has been contended that the concept of human dignity provides the international community with a natural philosophical and legal foundation upon which MNCs can (and should) be held accountable for their human rights violations. My analysis of the concept has shown that the basic minimum content, which can be discerned from international human rights instruments, is that each human being possesses an intrinsic worth that should be respected and that some forms of conduct, including by corporations, are inconsistent with the respect for this intrinsic worth. In my view, corporate infringement of human dignity, regardless of circumstances, is never acceptable and should not be tolerated. It is hoped that the above analysis offers a framework for the global community to begin to derive a set of principles that will guarantee corporate accountability of human rights violations.