Document Type

Article

Disciplines

International Law

Abstract

The conventional international framework for protection of human rights is state-centric; it obligates primarily states to promote, and not violate, human rights. However, the advent of national and transnational private actors,' especially multinational corporations (MNCs),2 in public services has posed serious challenges to this model. States no longer enjoy the monopoly as violators of human rights and no longer solely bear the duty to protect human rights. The international community3 is realizing that in order to achieve fuller and wider realization of human rights, the umbrella of human rights obligations and their enforcement should cover MNCs.' But since the existing international mechanism was not designed to apply to MNCs, its inadequacy is exposed. Such inadequacy becomes more conspicuous when a state is weaker than an MNC,5 is in connivance with an MNC,6 or is more interested in foreign investment than enforcement of human rights. The non-obligatory' character of the existing international mechanism gives a final and almost fatal blow to this inadequacy.

This shortfall necessitates a reconceptualization of the prevailing international framework of accountability, as well as of the legal status of MNCs under international law. It must be noted that the issue is currently more about what8 and how9 rather than about why - why should MNCs, which are established and operated for profit, follow human rights norms?

This article will examine two separate but related questions related to the matter of how. First, what should be the nature of an international mechanism that can effectively deal with human rights violations by MNCs?" Second, should MNCs be treated as subjects under international law? Since examination of these two issues requires an understanding of who such MNCs are and what human rights they violate, I begin in Part II by construing a definition of MNCs and illustrating human rights violations committed by them. In Part III, I analyze the existing international mechanism, both in words and action, and in Part IV, I point out its "four-fold" inadequacy. In Part V, I argue, regarding the first issue, that the proposed international mechanism should be based upon a partnership between the United Nations (U.N.) and the World Trade Organization (WTO) for the promotion of human rights in the new economic order. Involvement of the WTO in the promotion of human rights, if any, has been the subject of intense academic debate in recent years. " The Petersmann-Alston debate 3 is a very recent example, in which the former argued for the integration of human rights into the law of the worldwide organizations, whereas the latter strongly resisted such "merger and acquisition of human rights by trade law."'" Without taking sides in the Petersmann-Alston debate,' I will argue that both the U.N. and the WTO should be part of an international mechanism to enforce human rights obligations against MNCs. Bringing the WTO within the human rights framework of accountability ensures a balance between conflicting interests of business and human rights at the apex level of policy formulation. Further, this would strengthen the enforcement mechanism of the U.N., which is under serious stress in enforcing its mandate even against the states.

In Part VI of the article I argue, regarding the second issue raised above, that the status of MNCs under international law as mere objects should be reexamined.' 6 Since the traditional distinction between subjects and objects of international law has blurred, as far as the issue of human rights is concerned, it is imperative to treat MNCs as "secondary limited" subjects under the international law, at least for a limited purpose. As far as human rights are concerned, MNCs should fall directly within the jurisdiction of international regulatory institutions, because the approach of indirect regulation has failed to deliver the desired results. Part VII concludes that collaborative efforts on the part of the WTO and U.N. are required to ensure accountability of MNCs for human rights violations. This further requires that international law treats MNCs as its limited subjects for a limited purpose.

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