'Corporate Human Rights?' by Andreas Kulick in (2021) European Journal of International Law (forthcoming) comments
Do corporations have human rights? This article addresses a to date rather understudied issue of the corporations and human rights debate: whether and to what extent corporations can be bearers of human rights, with a focus on the ECHR and ECtHR jurisprudence. In a nutshell, it argues that what subsequently will be called ‘the individualistic approach’, i.e. purporting that the corporate form itself cannot be bearer of human rights, counter-intuitively, leads to almost unfettered human rights entitlements of corporations. Thereby, this piece provides a critique of both established corporate law thinking as well as the dominant view in human rights scholarship. Instead, it is submitted that taking the corporate form seriously and granting it some entitlements to some extent under a functionalist theory emerges as the preferable approach – theoretically, doctrinally and practically. The article draws on ECtHR jurisprudence, general legal as well as corporate law theory and on comparative constitutional law in order to corroborate its argument.
Kulick argues
To some, they are anathema – to others, such as the European Court of Human Rights (‘ECtHR’), they seem to be self-evident. Flying under the radar until fairly recently, the issue of corporate human rights – i.e. whether, and if so to what extent, corporations can be bearers of human rights – has gained much less scholarly and public attention than its sister issue, corporate human rights obligations. At first glance it may appear almost absurd: mere creatures of the law, not of flesh and blood, claiming human rights protection; ‘artificial’ creatures thus, which above all oftentimes accumulate tremendous power – whereas human rights are intended to protect the weak against the powerful, and not vice versa. This may very well be the reason why some international human rights instruments grant human rights exclusively to individuals, such as Article 1(2) of the American Convention on Human Rights (‘ACHR’), or Article 2(1) of the International Covenant on Civil and Political Rights (‘ICCPR’). However, the European Convention on Human Rights (‘ECHR’) is less clear in this regard. While containing indications, the Convention does not make explicit mention of a general acceptance of human rights of corporations, i.e. separate legal entities. Nonetheless, as stated above, the ECtHR usually does not spend much time on the matter, assuming that corporations enjoy the rights enshrined in the Convention. For those who argue that corporate human rights are nothing short of a perversion, such scant reasoning appears particularly outrageous.
Regardless, however, whether one embraces or rejects the concept of corporate human rights, the prevalent view in human rights scholarship and practice seems to subscribe to what I will call in the following the ‘individualistic approach’: that the corporate form itself cannot enjoy human rights protections. On this notion, only human beings ultimately deserve the protections of, e.g., the ECHR. Hence, this means that, either corporations cannot have human rights at all (‘no corporate human rights’ position) or corporations may only enjoy human rights to the extent that the human beings behind them are entitled to human rights protections (‘derivative rights’ position). Underlying this individualistic approach is the narrative that granting human rights to the corporate form itself is dubious or even perverse and that focusing on the human beings as (at least eventually) the sole entities capable to possess human rights limits and prevents the expansion of corporate human rights and thus corporate power.
In this article, I will seek to demonstrate that this individualistic approach leads to the exact opposite, i.e. the unfettered expansion of corporate human rights. In the following, I will offer a theoretical argument why, counter-intuitively, acknowledging corporate human rights – i.e. granting (some) human rights to the corporate form per se – serves to limit them. The focus of this article is on the ECHR. Its considerations are tailored primarily for the specific framework of the Convention and submit a new approach that is intended first and foremost as the adequate solution within such framework. Other human rights instruments and mechanisms may require different nuancing. However, the arguments employed regarding the nature of the corporate form and the functional approach as alternative to the prevalent individualistic approach may potentially prove convincing beyond the realm of the ECHR.
Part 2 will flesh out the individualistic approach to corporate human rights in more detail and will elaborate on its two variants, the no corporate human rights and the derivative rights positions. In Part 3, the ECtHR’s take on the matter of corporate human rights will be examined. The stock-taking here is a mixed one. It reveals that the Court takes a rather pedestrian approach. The Court assumes that corporations are entitled to ECHR rights. It does so without explaining its underlying theory and without displaying a consistent view on whether it is the corporate form for its own sake or only the human beings behind it that can enable the corporation to enjoy human rights. In Part 4, I will investigate examples of derivative rights approaches in constitutional law jurisprudence, focusing on case law from the U.S. and Germany, that indicate a cautionary tale with respect to the ability of the individualistic approach to limit corporate human rights. In fact, so I submit in Part 5, employing basic insights from legal theory, the individualistic approach is founded on a naturalistic misconception of legal personhood that leads to corporate apotheosis and thus to the opposite of what it intends to achieve. Instead, as Part 6 seeks to explain, a functional approach, taking seriously the corporate form and the social reality that it represents, is indeed the more adequate alternative. It avoids the naturalistic trap and promises to curb much better corporate human rights expansion. Part 7 concludes this article.
River Co-governance and Co-management in Aotearoa New Zealand: Enabling Indigenous Ways of Knowing and Being' by Karen Fisher and Meg Parsons in (2020) 9(3) Transnational Environmental Law comments
Legislation emerging from Treaty of Waitangi settlements provide Māori, the Indigenous people of Aotearoa New Zealand, with new opportunities to destabilize and decolonize the colonial knowledge, processes and practices that contribute towards negative material and metaphysical impacts on their rohe [traditional lands and waters]. In this article we focus our attention on the Nga Wai o Maniapoto (Waipa River) Act 2012 and the Deed of Settlement signed between the Crown (the New Zealand government) and Ngāti Maniapoto (the tribal group with ancestral authority over the Waipā River) as an example of how the law in Aotearoa New Zealand is increasingly stretched beyond settler-colonial confines to embrace legal and ontological pluralism. We illustrate how this Act serves as the foundation upon which Ngāti Maniapoto are seeking to restore, manage, and enhance the health of their river. Such legislation, we argue, provides a far higher degree of recognition of Māori rights and interests both as an outcome of the settlement process and by strengthening provisions under the Resource Management Act 1991 regarding the role of Māori in resource management. We conclude by suggesting that co-governance and co-management arrangements hold great potential for transforming river management by recognizing and accommodating ontological and epistemological pluralism, which moves Aotearoa New Zealand closer to achieving sustainable and just river futures for all.
'Recognizing the Martuwarra's First Law Right to Life as a Living Ancestral Being' by Anne Poelina, Donna Bagnall and Michelle Lim at 541-568 in the same issue states
Traditional custodians of the Martuwarra (Fitzroy River) derive their identity and existence from this globally significant river. The First Laws of the Martuwarra are shared by Martuwarra Nations through a common songline, which sets out community and individual rights and duties. First Law recognizes the River as the Rainbow Serpent: a living ancestral being from source to sea. On 3 November 2016, the Fitzroy River Declaration was concluded between Martuwarra Nations. This marked the first time in Australia when both First Law and the rights of nature were recognized explicitly in a negotiated instrument. This article argues for legal recognition within colonial state laws of the Martuwarra as a living ancestral being by close analogy with the case concerning the Whanganui River. We seek to advance the scope of native title water rights in Australia and contend that implementation of First Law is fundamental for the protection of the right to life of the Martuwarra.
There is a more cautios view in 'Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and Legal Subjects' by Elizabeth Macpherson, Julia Torres Ventura and Felipe Clavijo Ospina who argue at 521-540 that
The recognition of rivers and related ecosystems as legal persons or subjects is an emerging mechanism in transnational practice available to governments in seeking more effective and collaborative natural resource management, sometimes at the insistence of indigenous peoples. This approach is developing particularly quickly in Colombia, where legal rights for rivers and ecosystems are grasping onto, and evolving out of, constitutional human rights protections. This enables the development of a new type of constitutionalism of nature. Yet legal rights for rivers may obscure the rights of indigenous peoples and their role in resource ownership and governance. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful, in devising ecosystem rights, of the complex and interrelated rights, interests and tenures of indigenous peoples and local communities.
They note
Legal models that recognize or declare rivers and their ecosystems to be legal persons or legal subjects have emerged during this century as a possible tool for settling disputes between local communities and governments over natural resource management, through either legislation or judicial decisions. Such disputes often concern a natural resource that is subject to threat or under pressure and the failure of existing laws and institutions effectively to protect the resource from development. As such, legal person or legal subject models have emerged as new mechanisms to encourage governments to provide more effective and collaborative natural resource management, often involving local communities as ‘guardians’.
These developments are ad hoc, and in many cases have been driven by indigenous, ethnic or local communities, who have experienced historical injustices in terms of land and resource dispossession. These communities hold distinctive relationships with nature or the environment which may be more reflective of ecocentric philosophical approaches than their western counterparts. In many cases they now have extensive land holdings or recognized rights to participate in or control natural resource management.
Some might argue that legal person or legal subject models are useful tools available to indigenous peoples in settling claims to natural resources. One example is the Whanganui River in Aotearoa (New Zealand), which was declared to be a ‘legal person’ in 2017 as part of a reparative settlement of the historical river claims of local Māori. Community activism for legal rights for rivers and ecosystems has occurred in countries as diverse as Mexico, the United States (US), and Bangladesh, although not always at the insistence of indigenous peoples.
One country where the recognition of rights for rivers and related ecosystems is developing particularly quickly is the South American nation of Colombia, where a number of indigenous communities maintain traditional territories and continue to fight for recognition of their rights to control and manage natural resources. In late 2016 the Constitutional Court of Colombia declared the Atrato River, threatened by unlawful mining, deforestation, and contamination, to be an entidad sujeto de derechos (legal subject) with reference to the distinctive biocultural rights of the indigenous and afrodescendent communities who call the river region home. The Court's decision reflects the community perception of the river as a spiritual being or ancestor that provides for life and culture and requires care and guardianship, and not merely as a resource to be exploited. As part of its orders for protection of the river's rights, the Constitutional Court devised an innovative and complex collaborative governance scheme involving a number of government entities, non-governmental organizations (NGOs), and local and indigenous ‘guardians’. The ruling emphasized the need for participation by indigenous and afrodescendent communities in decision making about their traditional river territory, and the key role to be played by indigenous relationships with and knowledge of nature to further its protection.
Several other courts and local or regional tribunals in Colombia have since handed down decisions that recognize ecosystems to be legal subjects, drawing on protections in Colombia's Constitution within the framework of its Estado Social de Derecho (or social welfare state based on the rule law). The Colombian Amazon, Río Cauca, Páramo de Pisba, Río de la Plata, Río Coello, Río Combeima and Río Cocora (Tolima Rivers), Río Otún, and recently the Río Magdalena (Colombia's most strategically important river), all of which have strong aquatic components, are now legal subjects with their own rights of protection, conservation, restoration, and maintenance. In July 2019, the executive branch of the Department of Nariño proposed an administrative decree to recognize the rights of nature and protection of priority ecosystems such as wetlands, lakes, and rivers. At the end of 2019, a Congressman put forward a broad reform initiative to recognize nature as a legal subject with its own rights within the right to a healthy environment enshrined in Article 79 of the Colombian Constitution.
The Colombian government recently sought an opinion from the Inter-American Court of Human Rights on the duties of states that are emerging from various international human rights in dealing with the environment. In response to this request, the Court linked the right to a clean and healthy environmentF with growing transnational movements around the rights of nature. In its ruling, and citing the Atrato case, the Court emphasized: This Court considers it important to highlight that the right to a healthy environment as a standalone right, in difference … [from] other human rights, protects all the components of the environment, like forests, rivers, oceans and others, as a legal end in itself, even in the absence of certainty or evidence of risk to individual persons. In this sense, the Court notes a tendency to recognize legal personality and, ultimately, the rights of nature not just in judicial decisions but also in constitutional laws.
It is now fair to observe that the emerging concept of ecosystem rights is being shaped by Colombia's experience. Since the Atrato decision, around ten legal developments have taken place in Colombia (including court cases, administrative decrees, and legislative reform proposals) in which nature or natural resources such as rivers have been recognized as legal persons or legal subjects. Sometimes these developments refer to the rights or cosmologies of indigenous peoples, including as guardians. At other times they recognize relationships between nature and local communities, small agricultural or peasant communities, citizens, or future generations. This begs the question for indigenous peoples and local communities in other parts of Colombia and beyond whether legal rights for rivers and ecosystems can also help them in demanding better and more collaborative river and ecosystem management within traditional areas.
Acknowledging the comparative significance of the Colombian cases and the clear cross-fertilization of transnational examples of legal rights for rivers, in this article we examine the legal foundation of the key cases granting legal rights to rivers and ecosystems in Colombia and consider their potential relevance for indigenous peoples. We do this through a detailed analysis of the most recent legal and political decisions to recognize ecosystems as legal subjects in Colombia, many of which are unknown to an English-speaking audience. Our analysis is contextualized through related and regional scholarship.
Although the cases analyzed in this article can only be understood properly in the particular constitutional and cultural context of Colombia, they all reveal important clues as to possible inroads for better protection of indigenous river and ecosystem rights and interests elsewhere. They show how ecosystem rights are grasping onto, and evolving out of, constitutional protections, departing from western laws for the regulation of the natural world and developing a new type of constitutionalism for nature.
Yet our analysis of legal and political decisions on ecosystem rights in Colombia reveals that, although progressive legal developments are certainly happening, in some cases the courts ignore or obscure the rights and perspectives of Columbia's indigenous peoples. This suggests that the courts have failed to engage deeply with the complex nature of indigenous interests, tenures, and roles in river governance. For example, the Colombian Supreme Court's decision to recognize the Colombian Amazon as a legal subject, although theoretically groundbreaking in its recognition of the rights of future generations, apparently ignores the rights of indigenous peoples to their traditional territories and their key role in the management and protection of river ecosystems. Various government and non-governmental bodies implementing the Amazon decision have picked up on this oversight and attempted to involve indigenous communities in giving effect to the Court's orders. Yet, as we detail below, the courts in subsequent cases have also failed fully to appreciate the relevance of their judgments for indigenous peoples, or the potential application of the Atrato concept of ‘biocultural rights’. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful of the rights and interests of local communities and the social, cultural, and environmental complexities of land tenure.
