Wednesday, August 9, 2017

Happold: Who Benefits from Human Rights Treaties?

Matthew Happold (Université du Luxembourg - Law) has posted Who Benefits from Human Rights Treaties? (in Liber Amicorum Rusen Ergeç, Isabelle Riassetto, Luc Heuschling, & Georges Ravarani eds., 2017). Here's the abstract:

This chapter examines how the question of whether legal persons (in particular corporations) enjoy human rights has been answered under a number of human rights treaties. Most human rights treaties have been interpreted as conferring rights upon natural, but not on legal, persons. And most international human rights bodies will only entertain complaints from individuals and not from corporations. But the European Court of Human Rights and the Court of Justice of the European Union have taken a quite different approach from that of other regional and sub-regional courts and the UN Human Rights Committee, viewing corporations as rights-holders under the treaties they administer. They have done so, however, largely on the basis not of any expressed philosophical disagreements but by reference to the relevant treaty texts. Grander arguments have tended to be supportive, even when extensive. This is unsurprising. If such an important distinction is to be made, it should be undertaken by the treaty drafters.

But saying that legal persons can be rights-holders under human rights treaties is only a beginning. Corporations are not individuals, even though they can be analogised as such. Which leads back to the original question: when should they benefit from the same rights as individuals? Two issues arise here. The first concerns what rights corporations should enjoy: the second the extent to which they should enjoy them. In contrast to the initial question, these two issues have been left to the judges alone to determine.

The justification given by the European Court of Human Rights for precluding governmental bodies or entities from bringing claims is to prevent States parties to the Convention from acting both as applicants and respondents, because it is the State itself which is obliged to guarantee respect for fundamental rights within its territory. Drilling down further, one might say that different categories of entity are holders of rights and bearers of obligations under human rights treaties. Increasingly, given the decline of the State and the rise of the corporation, we are told that human rights should serve directly to regulate corporate behaviour. Might not the same consideration lead to a need to reconsider the circumstances in which it is appropriate for corporations themselves to enjoy such rights?