Changing International ‘ Subjectivity ’ and Rights and Obligations under International Law – Status of Corporations

1.1. Broadening the circle of subjects Introductory textbooks on public international law invariably include a section on the subjects of international law appearing as part of the fundamentals of this branch of law.1 The doctrine of international ‘subjectivity’2 is also among the international law topics that have attracted the attention of a number of scholars who have entered the debate on the content and reach of this ‘subjectivity’. The subject of international law has been defined, for instance, in the following way: it is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims;3 it is capable of independently bearing rights and obligations under international law.4 The idea of subjects of the international legal system is often linked – even conflated – with the notion of international legal personality.5 It has been suggested that international legal personality arises in three principal contexts: capacity to make claims in respect of breaches of international law; capacity to make treaties and agreements valid on the international plane; and the enjoyment of privileges and immunities from national jurisdictions.6 A review of the literature addressing the issue of international ‘subjectivity’ suggests that varying kinds of links are made between international (legal) ‘subjectivity’, international (legal) capacity and international (legal) personality.7

In the past, when international law was viewed as regulating solely inter-state relations, states were the only subjects of international law.Departure from this exclusively state-centric model of the international legal system in the course of the years -thus recognising the changes in the dynamic of the international system -has also resulted in the widening of the group of entities labelled as international law subjects.An important step was taken in 1949 when the International Court of Justice (ICJ) gave its advisory opinion concerning the international rights and duties of international organisations, more specifically the UN in the case at hand.In the case of Reparation for Injuries Suffered in the Service of the United Nations the UN was characterised as an international person and as a subject of international law, capable of possessing international rights and duties and capacity to maintain its rights by bringing international claims.8Subsequently, international 'subjectivity' of international organisations has been widely recognised, and the capacities of international organisations are regarded as also encompassing the capacity to become parties to international agreements and the capacity to enjoy certain privileges and immunities. 9hile states have the status of primary subjects of international law with the most extensive capacities (full legal capacity),10 the 'subjectivity' of international organisations is limited and determined by the powers vested in them. 11The scope of this 'subjectivity' does give rise to various interpretations.Among other things, the issues of human rights obligations of international organisations and the accountability of international organisations for human rights violations have sparked vivid debates. 12While it has been concluded that universally recognised human rights are binding upon international organisations, international law is still in a state of flux, e.g.where it concerns the division of responsibilities between international organisations and their Member States. 13he contemporary literature on international law also lists other actors among the subjects of international law, including insurgents, national liberation movements, and certain sui generis or state-like entities. 14Even individuals have appeared on some of these lists of subjects. 15Those who challenge this view of seeing individuals as subjects of international law underline the fact that individuals are under the exclusive control of states.When treaties provide for the rights and duties of individuals, this would mean that each state only undertakes (by agreement vis-à-vis the other Contracting States) to confer such rights and impose duties on individuals solely within its own legal system.Individuals' rights to file complaints with international judicial or quasi-judicial bodies are just exceptional, being no more than a procedural right which lacks any attendant substantive right or the power to enforce a possible decision of an international body.16However, developments in international law over the years have made the international position of individuals complex and multifaceted.Under modern international law, individuals have gradually come to be regarded not only as holders of material interests acknowledged at the international level, but they are also capable of infringing fundamental values of the world community.The development of international human rights law and the doctrine of individual criminal responsibility under international law have introduced important changes in the international legal system.The most recent affirmation of individual criminal responsibility at the international level is to be found in the 1998 Statute of the International Criminal Court (ICC) which provides for criminal jurisdiction over individuals accused of genocide, crimes against humanity, war crimes and the 'crime of aggression' . 17hese changes have influenced the debate on the international 'subjectivity' of individuals.As a result of both granting individuals legal rights and placing obligations on them that are operational at the international level, there are scholars who are of the opinion that individuals possess international legal status as subjects of international law.18

Multinational corporations -contested subjects
If there are different scholarly views on the international 'subjectivity' of individuals, the status of corporations as subjects of international law is even more contested.The debate on the international 'subjectivity' of corporations revolves around the business entities that operate across national borders, labelled 'multinational corporations' , for instance. 19Debates on this matter are characterised by a strong resistance to include corporate entities among the subjects of international law, and until recently suggestions that corporations be considered as having international legal personality were exceptional.Many authors have simply left the question open. 20hose scholars who have addressed the issue have noted, for instance, that multinational corporations have 'controversial candidatures' which in principle have no international legal personality. 21ccording to some views, these entities are sometimes counted among the subjects of international law. 22t is acknowledged that the situation becomes more complex when a corporation is closely controlled by a government so that it could be considered as a state agency, with or without some degree of autonomy.Additionally, ownership of shares may give a state a controlling interest in a 'private law corporation' . 23he rights and responsibilities of corporations that are state-owned or otherwise controlled by a state raise important questions from the viewpoint of human rights protection.The prevailing state of affairs appears to enable the state to escape its human rights obligations when the state operates in the business context as a company actor.
As regards the broader question of whether corporations have rights and obligations under international law, they are viewed as possessing rights, for instance, under international investment law, including the right not to be discriminated against vis-à-vis national firms and a right to receive compensation in the event of expropriation.Under human rights law, corporate entities enjoy such rights as the right to a fair trial, the right to privacy, the right of freedom of expression, and property rights. 24orporations have been granted locus standi before some international tribunals. 25A corporate entity can be an applicant even before a human rights supervisory body.This possibility was created under the European Convention on Human Rights. 26In one of the seminal judgments of the European Court of Human Rights, i.e. in the case of The Sunday Times v United Kingdom, the first applicant was Times Newspapers Ltd. 27 In some cases, the legal person may be the only appropriate victim that can complain to the Strasbourg Court. 28In a recent case in which the Strasbourg Court ruled, the applicant was a publicly-traded private open joint-stock company. 29here are scholars who consider that it is at least theoretically possible that international law could impose some human rights obligations directly on corporations. 30Some of the existing general rules of international human rights law found in public international law, and traditionally applicable only to states, can be said to apply also to non-state actors.This is to recognise the importance of non-state actors and their influence without suggesting that they have achieved the role of legislator.The situation has been described as states having fixed non-state actors with some rights and duties, whereby these actors have become subjects of interest without any automatic legitimising effect. 31It is worth noting that corporate accountability was actively discussed in the preparatory process of the Statute of the ICC, and that references to the prosecution of corporate entities were even inserted in the draft Statute.Eventually, however, these references were left out from the final text of the Statute. 32It has been pointed out that the lack of international jurisdiction does not mean that corporations are under no international legal obligations, nor does it prevent us from speaking about corporations breaking international law.International human rights obligations can fall on states, individuals and other non-state actors.Where obligations exist, different jurisdictions may or may not be able to enforce them.In the absence of in-ternational enforcement mechanisms open to claims against corporate actors, international law is being used to hold corporations accountable for human rights violations at the national level. 33Among the most notable national context to hold corporations accountable for the violations of international human rights is the Alien Tort Claims Act (ATCA) in the USA. 34he debate on the status of corporations in the international legal system has features similar to that on the 'subjectivity' of individuals, including whether rights and obligations stipulated in international documents apply directly to corporations under international law or indirectly through national legal systems.The traditional way of seeing the human rights regulation of corporations is as 'indirect' regulation through national law when, on the basis of states' international obligations, states are obligated to ensure that human rights norms are not breached by private actors. 35Based on states' obligation to protect human rights, states are obliged to take steps to ensure protection against human rights abuses by private actors operating under or within their jurisdiction.Under this traditional 'indirect' form of regulation and state-centred framework, human rights standards are imposed on corporations at national level and states may be held responsible for human rights violations if these violations result from their failure to regulate corporate activity effectively.In these situations states' performance is assessed on the basis of the standard of due diligence.
There are strong arguments as to why human rights law should be applied directly to corporations, i.e. why international law should 'directly' regulate corporate activities: corporations can and do affect enjoyment of human rights, and they enjoy considerable rights and benefits flowing from international law. 36Additionally, in practice, states have different capacities to regulate corporate activities effectively at the national level.For instance, developing host states that are highly dependent on foreign investment may face particular problems to effectively regulate the activities of multinational corporations.In these situations when it is not possible to depend exclusively on host states to hold multinational corporations accountable for human rights violations, attention has been drawn to the regulatory potential of corporations' home states. 37This state of affairs has also strengthened demands to render corporations directly accountable under international law.
However, for the time being any agreement on the direct applicability of international human rights law on corporations is lacking. 38The traditional 'indirect' regulation model according to which states are the only bearers of human rights obligations under international law still appears to be the prevailing standpoint.In defence of this traditional view, it is claimed that attempting to extend legal duties under spring of 2011. 40These reports have sparked an unprecedented debate on the responsibilities of corporate actors for human rights violations.The SRSG introduced the 'Protect, Respect and Remedy' Framework, underlining the crucial and primary role of states to protect human rights but also drawing attention to the role of corporations in the area of human rights protection.The Framework underlines different roles and duties of states and corporate actors 41 and calls for corporate responsibility to respect human rights. 42The 'Remedy part' of the Framework draws attention to the need to strengthen effective access to remedies with respect to human rights violations linked to corporate activities.The SRSG's proposals have been vividly discussed -also criticised -by academics. 43The business community appears to have welcomed them since they are viewed to clarify the situation on the responsibilities of business actors in the area of human rights protection. 44In his reports the SRSG neither expressly calls for changing the international law system on responsibilities nor touches upon the issue of international 'subjectivity' (nor personality or capacity), but he labels his approach as 'principled pragmatism' . 45Obviously the SRSG's proposals cannot result in changes in international law as such, but actions of states are crucial for any substantive modifications of the existing international law system.However, the SRSG's reports are of great significance because they have set off an extremely useful debate, e.g. on the existing gaps in human rights regulation and responsibilities of corporate actors under international law.Furthermore, the reports have been instrumental in putting the spotlight on the role of business actors in conflict situations when human rights are at particular risk -often left unprotected to a great extent - 46 and on the operation of corporations that are state-owned or otherwise state-controlled. 47Although the question of whether the SRSG's remarks and proposals will have any concrete effects on the international legal system remains to a great extent in the hands of states, it is nevertheless notable that the 'Protect, Respect, Remedy' Framework has already influenced legislation at the national level and practices of international organisations, e.g. in the area of responsible supply chain management of business actors.These effects have been concretised in the context of the minerals originating from conflict-ridden Eastern Congo resulting, among other things, in the introduction of a piece of national legislation in the USA (the Dodd-Frank Act).The SRSG's proposals have also influenced UN and OECD practices. 48o put into effect their rights and powers in judicial and other proceedings (to enforce their rights) at the international level.49 Already in its Reparation for Injuries opinion, the ICJ noted that there is neither a uniform nature nor content for the subjects of international law.50 In general, there is no standard set of rights and obligations for each and every subject of international law, but 'subject' is a relative notion, the precise contents of which may differ from subject to subject and even between various subjects of the same category.51 At best, the legal situation can be characterised as complex, and the number of entities with personality for particular purposes is considerable.A great deal depends on the relation of the particular entity to the various aspects of the relevant substantive law. Fo instance, while the individual is in certain contexts regarded as a legal person, he/she has no treaty-making capacity under international law.52 In light of the debates revolving around the question of international 'subjectivity' , it is hardly surprising that many scholars view the very idea of 'subjects' in the international legal system as confusing, even misleading.53 The confusion is seen to stem in part from the doctrine of 'subjectivity' being conflated with the notion of international legal personality and international capacity.54 Some authors see 'subjectivity' and legal personality as being the same, while others do not equate these concepts.It has been underlined that the elements of international legal personality, international legal capacity and international 'subjectivity' should not be tightly linked.55 Andrew Clapham has discussed the issue of international 'subjectivity' under the heading of 'subjects as prisoners of doctrine' .56 He considers the traditional treatment of the question regarding subjects of international law both confusing and incomplete. Acording to him, it makes complete sense to talk about limited international personality of corporations, but the problem is that the question of international legal personality has remained entangled with the misleading concept of subjects of international law and the related question of attributions of statehood under international law.Increasing the categories of international legal persons recognised under international law is assumed to lead to an expansion of the possible authors of international law.This is seen to threaten the viable development of a decentralised, state-centred international legal order.57 In Clapham's view, the concept of a subject of international law is often useless.While the role of non-state actors on the international plane cannot be ignored, the doctrine of 'subjectivity' developed to explain the framework of rights and duties under international law constrains the debate.Therefore, scholars are increasingly rejecting the whole notion of subjects and exposing the fact that there seem to be no commonly agreed rules to determine who can be classed as a subject.Clapham suggests concentrating on the rights and obligations of entities rather than their personality and moving from the debate on 'subjectivity' to the capacity of the entity to enjoy rights and bear obligations.Rights and obligations under international law should not depend on the 'mysteries of subjectivity' .58 Jennifer A. Zerk points to the fact that the development of human rights law and international economic law has dramatically increased the scope for participation in international law by non-state actors.According to her, rather than dividing participants into 'subjects' and 'objects' of international law, as has traditionally been done, a more useful approach would be to consider the degree to which international law recognises the existence of different kinds of participants in the international legal system.59 Rosalyn Higgins' criticism of the division of 'subjects' and 'objects' of international law is perhaps the most compelling.She has concluded that 'the whole notion of "subjects" and "objects" has no credible reality, and, in my view, no functional purpose. Wehave erected an intellectual prison of our own choosing and then declared it to be an unalterable constraint' .Higgins notes that it is more helpful, and closer to perceived reality, to view international law as a particular decision-making process including a variety of participants.60 Jan Klabbers has referred to the non-existence of any agreement among international lawyers about the identity of international law subjects.61 He describes the 'subjectivity' of international law as a status conferred by the academic community: a subject of international law is the legitimate subject of international research and reflection.Personality, in turn, is a status conferred by the legal system.The confusion results from the circumstance that the international legal system has no single authority endowed with the power to confer personality.Consequently, the very notion of subjects of international law is characterised by fluidity.Given the circumstance that different subjects may have different sets of rights and obligations under international law, the precise degree of rights and obligations is a matter of analysis.Klabbers concludes that personality in international law, like 'subjectivity' , is but a descriptive notion: useful to describe a state of affairs, but normatively empty, as neither rights nor obligations flow from it automatically.Personality is by no means a threshold that must be crossed before an entity can participate in international legal relations; instead, once an entity does participate, it may be described as having a degree of international legal personality.62

Rethinking 'subjectivity' in international law -discarding the doctrine altogether?
The creation of large multinational corporations and the ensuing increase in corporate power have made corporations increasingly visible actors in international relations.Presently, corporate entities enjoy a considerable number of rights and obligations deriving from international law.The role of corporations has also resulted in including multinational corporations among the subjects of international law.However, it appears that the doctrine of international 'subjectivity' , at least in its present form, has difficulties accommodating non-state entities. 63In the background one can detect states' hesitancy to broaden the circle of subjects and the fear of weakening the state-centric system of international regulation. 64s discussed in this article, the doctrine of subjects of international law has also come under critical scrutiny by a number of scholars.Combining 'subjectivity' with such notions as personality and capacity in various -often vague -ways has rendered the doctrine confusing, even misleading, and out of step with the present-day needs of the international community.Many authors have suggested shifting the focus from the debate on the subjects of international law to the participants in international legal relations, concentrating on the capacity of an actor to enjoy rights and incur obligations under international law.A number of remarks appear to favour discarding the very doctrine of international 'subjectivity' .
If the doctrine of international 'subjectivity' were discarded and, for instance, the doctrine of participants in international legal relations introduced in its stead, it would still be necessary to ask if this 'trick' helps to solve the problems linked to the former.Perhaps the doctrine of participants in international legal relations is not as empty and 'mysterious' as that of 'subjectivity' , but in order to move forward from the confusion created by the 'subjectivity' doctrine, any doctrine introduced to replace it would also need to be clarified.Who are the relevant participants, what kinds of rights and obligations do they have under international law, and how are accountability and responsibilities to be concretised are some of the questions that would need to be answered.However, before we discard old concepts and introduce new ones, it may be worthwhile to consider if the existing doctrine of subjects of international law could be clarified and modified in such a way as to make it workable.It is quite possible that after some proper academic brainstorming the doctrine of international 'subjectivity' may well function as an umbrella concept for the roles of different participants in international legal relations, also pointing to their rights and obligations as well as making sense of accountability and responsibilities of various actors.
The Special Representative of the UN Secretary General on Business and Human Rights (SRSG) chose -and undoubtedly wisely so -to adopt the approach of 'principled pragmatism' in his work that enabled him to avoid entering endless debates on theories and interpretations of international law, including international 'subjectivity' characterised by disagreements and even deadlocks.The 'Protect, Respect and Remedy' Framework proposed by the SRSG provides a good basis for the development of the international legal system in the direction of increasing its ability to accommodate the accountability of corporations for human rights violations.Strengthening this accountability is crucial in filling the existing gaps in the area where the system of international law, including the allocation of responsibilities, does not correspond to reality.Far too often corporations escape any accountability, for instance, in situations when the host state is unwilling or unable to protect human rights.Furthermore, as the SRSG pointed out, there are serious gaps in the protection of human rights in conflict situations and in contexts having a state-business nexus.
What further complicates the issue of responsibilities nowadays is the privatisation of many functions, such as medical care, that in many states have been taken care of by the public sector.This privatisation development also concerns armed conflicts, when many states contract private firms to carry out direct military activities or activities supporting them.In these circumstances of the privatisation of conflicts the very question of state responsibility for violations of international law has become complicated and blurred. 65This has also brought to the fore the question of the accountability of private corporations participating in activities in conflict situations. 66Furthermore, it is not uncommon that many corporations working and investing in conflict zones or having other business links to conflicts are state-owned or otherwise state-controlled.These are just a few examples to highlight how challenging many presentday situations may be from the viewpoint of human rights protection which also have links to the debates on international 'subjectivity' and participation in international legal relations.There are major gaps in human rights protection when various state interests (such as economic and military ones) come into play.To fill these gaps the existing norms of international law on accountability and responsibilities require thorough rethinking and redirecting, and, in general, more responsible thinking particularly on the part of governments.
Paying attention to the roles and duties of various actors that are relevant to human rights protection is crucial, regardless of labels, i.e. whether they are called subjects, participants or something else.The role and duties of states are of the utmost importance, as is underlined by the SRSG in his reports.While it is crucial to strengthen accountability of all actors affecting the protection of human rights, the role of corporations as profit-creating actors and their different roles and capacities vis-à-vis states should be paid due regard in considerations of 'translating' human rights obligations for corporate actors. 67Furthermore, there are compelling reasons for maintaining the international legal system in which states retain their principal position as the drafters of international law norms.States are -if not always in practice, at least potentially -more democratic actors than corporations.Governments must be able to assess competing public interests and freely discharge their regulatory responsibilities for achieving social welfare objectives.It is precisely this capacity for performing important filtering functions that justifies the state-centric fiction of international law making. 6868 See also Tully, supra note 22, pp.330-332, 345.