Readings: Eric De Brabandere on Corporations in the International Legal System

With the Supreme Court scheduled to hear arguments over corporate liability in the Alien Tort Statute later this month, this short book chapter makes for a good, useful read.  Dr. Eric De Brabandere is an associate professor of international law at Leiden University's Grotius Centre.  His "Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal System" (SSRN link) appears as a chapter in Jean d'Aspremont, ed., Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge 2011).

Abstract: To date, multinational corporations have had no direct human rights obligations under international law. Nonetheless, international lawyers can no longer ignore the increasing role of non-state actors in international society. This chapter first explores the factual and normative dimensions of international corporation responsibility for human rights violations. It then analyzes existing mechanisms and new proposals for enhancing the accountability of transnational corporations, either through the use of ‘soft’ instruments, domestic jurisdictional mechanisms or through the extension of international individual criminal responsibility to corporations. This chapter will argue that to date no attempt to take on direct international corporate responsibility has led to the inclusion of corporations as formal participants in the international legal system.

The chapter includes a discussion of the ATS that might turn out to be overtaken by events, given the Supreme Court hearing upcoming.  However, the most useful work of the chapter is its brisk summary of the current state of international law regarding corporate liability, as seen by those in the international community most interested in elaborating such a concept and most sympathetic to it.