3 International Legal Personality in a Human Rights Context
3.4 Multinational Corporations, International Legal Personality and
3.4.2 Multinational Corporations and Their Ability to Possess
As no international organisation can dispense legal personality, it is extremely difficult to find consensus amongst states on the status of multinational corporations.
Even when giving multinational corporations international legal personality, it is not necessary to grant them the full range of rights and duties possessed by states or full international legal personality for that matter. With legal personality, multinational corporations would not magically and automatically be comparable to states and their powers.
There are various manners in which international legal personality has been attempted to be attached to multinational corporations. Firstly, some scholars have argued that there is evidence that multinational corporations already possess a level of international legal personality270 and they can clearly be recognised as
267 Pammela Q Saunders, ‘Rethinking Corporate Human Rights Accountability’ (2015) 89 Tulane Law Review 603, 664.
268 Clapham (n 223) 191.
269 Kai Ambos, ‘Article 25 - Individual Criminal Responsibility’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court - Observers’ Notes, Article by Article (2nd edn, Hart Publishing 2008) 746.
270 Charney (n 178) 762; Friedmann (n 65) 375; Ku (n 185) 753.
subjects of international law.271 This however is clearly not widely accepted. It can be argued that when an actor possess certain duties and rights it will lead to the conclusion that the actor has international legal personality.272 Typically it is said that the concept of international legal personality does not recognise corporate entities to possess the required rights and duties. However this we can argue to be at least partly false. As demonstrated, companies can in the context of the ECHR possess certain internationally accepted human rights. Their capability to be right-holders is thus recognisable. We however run into trouble when we attempt to argue whether corporations have judicial duties which would indicate a level of international legal personality. There similarly exists a concept created by some scholars that when companies are granted rights they then must be given correlating obligations.273 A similar concept can be found in the work of Wesley Newcomb Hohfeld. Hohfeld’s writing on the real conceptions of legal terms, such as rights, privileges, duties, responsibilities, power and liability is often cited in scholarly work when attempting to find a deeper understanding of the relation between duty and right.274 The concept of duty in Hohfeld’s work correlates with a privilege or liberty in which someone’s judicial right has a correlating duty as the opposite.275
Andrew Clapham believes that customary international law could bind and hence obligate corporations.276 However, without having a deep conversation on customary international law, such broad-based assumptions on the validity and legitimacy of customary international law do not fit into a discussion attempting to build an enforceable and globally recognised level of responsibility. Some scholars on the other hand have determined that multinational corporations do not have international legal personality, because there exists no binding treaty directly regulating them,277 and thus note that without the validity of a treaty issuing judicial duties to multinational corporations they do not possess international legal personality. The current international treaties are not built to include non-state actors such as multinational corporations. With a legally binding treaty specifically
271 Jägers (n 169) 266.
272 Jan Klabbers, ‘Presumptive Personality: The European Union in International Law’ in Martti Koskenniemi (ed), International Law Aspects of the European Union (Kluwer Law International 1998); Clapham (n 67) 83.
273 Harold Hongju Koh, ‘Separating Myth from Reality about Corporate Responsibility Litigation’ (2004) 7 Journal of International Economic Law 263, 737; Pariotti (n 105)142.
274 Wesley Newcomb Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16; Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1917) 26 Yale Law Journal 710.
275 Hohfeld 1913 (n 274) 30; Hohfeld 1917 (n 274) 742; 745.
276 Clapham (n 67) 244.
277 Francois Rigaux, ‘Transnational Corporations’ in Mohammed Bedjaoui (ed), International Law: Achievements and Prospects (1991) 129; Antonio Cassese, International Law in a Divided World (Oxford University Press 1986) 103.
drafted for multinational corporations, the demanded criterion for international legal personality would be fulfilled automatically and there would be no question whether multinational corporations possess international legal personality, as such a treaty would grant such a status whilst assigning legal rights and duties.
A second option is shifting the focus away from the concept of international legal personality. As mentioned, the concept tends to be more theoretical than attached to reality and practice. For example, Rosalyn Higgins has discussed specifically the notion that subjects or objects of international law have no functional purpose.278 International legal personality is in practice only a theoretical concept without much weight or importance in the actual judicial rights and duties conversation.
Disregarding international legal personality to ease the extension of subjects of international law to also include non-state actors is not the right option. Instead international legal personality can be connected to precise rights and duties in a manner in which legal personality only exists in relation to those rights and duties.
The third option therefore means multinational corporations could be given limited procedural and substantial rights and duties which would be relevant to their interests, as discussed by Jonathan I. Charney.279 Similarly, Wolfgang Friedmann notes that multinational corporations participate in the development of public international law and could acquire a limited and transient legal personality to the extent to which the actions are controlled within international law and not private international law.280 In this scenario, multinational corporations would not be given full legal personality, nor would their significance in international law be elevated.
Their capability of possessing certain legal rights and duties would translate into limited legal personality. Surya Deva notes that multinational corporations have at least limited international legal personality based on their rights and duties:281 their limited capability is due to ‘their legal construction and their status under international law’ being derived from states and is an extension of domestic law.282
There exists no theoretical constraint that prevents states from accepting that multinational corporations possess international legal personality.283 Even though a theoretical barrier to acceptance does not exist, the international legal personality of multinational corporations is widely debated and definitely not fully accepted in practice.284 States might be unwilling to accept the status of corporate entities based partly on their fears of their own loss of international
278 Rosalyn Higgins, Problems and Process. International Law and How We Use It (Clarendon Press 1994) 50.
279 Charney (n 178) 775.
280 Friedmann (n 65) 223.
281 Deva (n 87) 78.
282 ibid 50.
283 Kinley and Tadaki (n 149) 945.
284 Brownlie (n 53) 58.
power. At its core, the complexity concerns the idea that the increase of subjects of international law would eventually lead to an expansion of the possible authors of international law, which is a false assumption.285 Allowing corporations into the realm of human rights would also make them ‘quasi-public institutions’, which would grant them a level of constitutional status simultaneously.286 Companies as quasi-government institutions would allow them to have a clear public feature in regard to the surrounding society287 and hence at least confuse the relation between government and so-called quasi-government. As noted earlier, rights and duties do not have to be convergent amongst actors. It is apparent that in any situation a multinational corporation could not obviously have the same duties as a state or even an international organisation, and nor should it have.288
285 Clapham (n 67) 59; Kamminga and Zia-Zarifi (n 96) 6; Johns (n 160) 900; Kinley and Tadaki (n 149) 946.
286 Muchlinski (n 149) 16.
287 Florian Wettstein, Multi-National Corporations and Global Justice: Human Rights Obligations of a Quasi-Governmental Institution (Stanford University Press 1999) 324.
288 Joseph (n 104) 90; Kinley and Tadaki (n 149) 945; Deva (n 87) 56.