Transnational Business and Human Rights Litigation: An Imperialist Project?

Abstract

Business and human rights litigators have increasingly attempted to hold to account parent companies incorporated in the west for the extraterritorial human rights abuses committed by their subsidiaries and supply chains in the global south. This has met with the criticisms of judges and scholars calling out such attempts as imperialists. The purpose of this article is to address this anti-imperialist critique in the context of the accountability of multinational enterprises. The anti-imperialist critique is based on three fallacies. First, the equal sovereign fallacy: the assumption that developing and developed states are equally able to hold multinationals to account. Second, the transnational commerce fallacy: the acceptance of the transnational use of western laws protecting a particular market or economy, but the refusal to apply the laws aimed at preventing or remediating human rights abuses committed by commercial actors extraterritorially. Third, the public/private divide fallacy: to consider multinational enterprises as purely private actors while ignoring that they were hybrid entities regulated by both private and public laws during colonial times.

An integrated approach to corporate due diligence from a human rights, environmental, and TWAIL perspective

“…Given the colonial foundations of international law, the principles concerning jurisdiction which suggest that home state regulation is a violation of host state sovereignty could in themselves be imperialistic: serving as the means through which home states and home state corporations are shielded from pressure to address corporate‐related environmental and human rights impacts (Seck, 2011, p. 196). It is not only the actions of states, but also the inaction of states which can be imperialistic (Palombo, 2022, p. 24). Additionally, home state regulation is characterized as imperialistic in so far that it operates through, and is justified by reference to “universal norms” (Seck, 2011, pp.…”

“…Rather than preventing forum shopping, it seems to have been reassigned by corporations as a defense against accountability for torts committed by their subsidiaries abroad, resulting in the case being dismissed on jurisdictional grounds. Furthermore, Courts have often justified its use on the concern of being “imperialist” for applying Global North laws to Global South contexts (In re Union Carbide Corp, 1986, p. 867; Palombo, 2022, pp. 5–8).…”

Decentring Narratives around Business and Human Rights Instruments: An Example of the French Devoir de Vigilance Law

“…She invokes the Bhopal case to counter an anti-imperialist critique that more often than not the Global South prefers transnational litigation in the home state because it serves as an alternative to TNCs exploiting the absence of lawit is not something that the North forced on the South. 119 Yet, she says victims would not accept extraterritoriality unless compelled to. 120 Her argument is primarily a utilitarian one against 'utopian' international lawyers: national laws are currently the only avenue for justice.…”