Isiksel, Turkuler. "The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights". Human Rights Quarterly, Vol.38, No.2 (2016): 294-349.

Isiksel, Turkuler. "The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights". Human Rights Quarterly, Vol.38, No.2 (2016): 294-349.

• Human rights ultimately exist out of a belief that certain things are guaranteed to all human beings because they are human beings. These concepts have been increasingly applied to cover the rights of investors, including corporations, representing a slow application of human rights to non-human legal entities (296-297).
• This development is dangerous because the goals of rights-bearing corporate entities are the maximization of profit, a goal not usually in accordance with the goal of the rest of the human rights regime: protecting human beings (298).
• The issue at play is the international equivalent of the US recognizing the rights of corporations as legal persons, as subject to constitutional protects for persons, in its domestic law. This example will actually be used as the basis of analysis for these changes in international law (299).
• Access to domestic constitutional rights has been a fiercely contested issues, with various racial, ethnic, sexual, and religious minorities being excluded from these protection (300). They expanded to include legal and corporate entities following a series of court cases from 1886 to 1910, over which the US Supreme Court ruled that corporations possess most of the constitutional rights held by humans (301).
• This change began with the Court's decision in the Santa Clara County v. Southern Pacific Railroad in 1886, when it decided that the Railroad company was a 'person' able to claim protection under the 14th Amendment from being taxed under different laws than other persons and corporations (302).
• The primary rationale behind the rulings in the 19th Century were to diminish the barriers created by states to interstate commerce. The court saw most laws as preventing commercial and economic expansion, and set against them to bind the nation more closely economically and promote the growth of powerful railway and telegraph businesses (304-305).
• This crusade against parochial state interests is clearly demonstrated in Western Union Telegraph v. Kansas, where the Supreme Court ruled that a Kansas requirement for corporations registered outside of the state to pay a special tax was illegal interference in interstate commerce, infringing on the rights of corporations to freely engage in this commerce (305).
• In the 21st Century, the basis of constitutional protections established in the 19th Century have been expanded to include almost all elements of the Constitution. Most recently, the Citizens United v. Federal Electoral Commission found that corporations have a right to free speech, and Burwell v. Hobby Lobby found that certain family businesses can claim religious beliefs and protections (303).
• Traditional views of international law assume that only states bear international rights and duties. Since the end of WWII, however, this situation has increasingly changed to non-state actors having certain duties under international law (300-301).
• The biggest development has been the right of corporations to sue national governments under free trade agreements, including NAFTA. Most of these agreements create courts of arbitration for claims by corporations that states have violated provisions of the treaties. Similar set-ups exist for the thousands of international investment agreements (306).
• The decisions of investment courts, especially those created under free trade treaties, inform the decisions of other courts, meaning that the interpretation of these laws and treaties changes over time. These changes in interpretation have mainly benefited corporations by limit the regulatory actions states are allowed to take (307-308).
• The trend in international law towards increasing rights for corporations mirrors the rationale for increasing these rights under US constitutional law: international associations, like the federal government, are limiting the power of states to regulate or impede international commerce (305-306, 308).
• The main difference between the expansion of corporate rights in America versus the rest of the World is that the diminution of states' rights in America paved the way for federal regulation. There is no world government which can replace the regulations being repealed at the state level. This leaves corporations largely unchecked (309-310).
• In many ways, the rights of investors and corporations are much better protected than human rights. Whereas human rights are often difficult to invoke, corporations generally have access to a range of international tribunals and legal remedies (309).
• There are many structural parallels between international human rights law and international investment law: both enable private legal persons to bring claims against states through international courts and limit the behavior states are allowed to engage in. In fact, many liberties granted to corporations were copied from those granted to individuals under human rights law (310-311).
• Arbitrators are aware of these similarities and purposefully borrow basic procedural concepts from human rights law to apply in investment law. The applicability of concepts like due process or proportionality is based on the defense of those concepts in international human rights law (311-313).
• "Firms are likely to invoke those norms of international law [...] likely to further their interests. International human rights law is congenial to firms looking to challenge state measures because it offers a framework for contesting the treatment of private actors by states" (313).
• Human rights also have particular rhetorical power in legal arguments in the post-Cold War era, lending those principles an air of credibility that corporations seek to take advantage of in arguing that similar principles apply in investment law (313).
• Arguments attempting to apply international principles of human rights to corporations not only try to extent the concept of legal personhood to corporations, a change already enshrined in the domestic law of most countries, but extend the idea of humanity to corporation, a clearly absurd idea (314-315).
• There are three dominant theories which justify the legal personhood of corporations: the concession theory, the organic entity theory, and aggregative theory of personhood:
• The concession theory argues that corporations are artificial creations of the state and have those rights which the state has decided to give them. Therefore corporations have some of the right of legal persons because the state chooses for them to have these rights (315).
• Under this definition, corporations clearly cannot be human. Although a law could be passed on a domestic law proclaiming that corporation are now legally human, this would not translate to the international level. Moreover, it would not change the fundamental fact that human is more than a legal category (316).
• The organic entity theory, developed by Otto von Gierke and Frederic William Maitland, argues that corporations are real entities existing before the state and that their legal status is merely the state's post facto recognition of this existing and autonomous arrangement (316-317). This view goes farther to argue that states and laws are only legitimate to the degree which they recognize these corporations (318).
• An argument could be constructed that the 'unity of will' or organic composition of corporations gives them human-like traits, therefore imbuing them with humanity. This claim would depend on a definition of humanity based on autonomous will, however, a condition which might exclude the insane or retarded from the category of 'humanity' while allowing certain higher animals or corporations into the category (318-319).
• The aggregative, or group, theory of corporations argues that corporations are essential tools for the representations of groups of shareholders, who are themselves individual humans. It contends that since corporations are just tools for natural persons, they need legal personhood representative of the rights of its constituent individuals (320).
• This conception of corporations might defend their inclusion under human rights regimes for certain directly-owned companies, but not the vast majority of corporations. Moreover, corporations exist under separate legal regimes specifically to create a separation between owners and the corporation to reduce liability. Corporations cannot be considered absolute representations of human beings, and thus the rights of those humans should not extend to the corporations they control (321).
• Additionally, even if corporations could be considered direct representations of the will and agency of their owners, they still would not become physical persons in a biological sense. It is these real natural persons that human rights are meant to protect, not legal constructs (321-322).
• There are cases where corporations have brought claims of human rights abuses against states, claiming that these violated investment laws. However, all of these cases could also have been addressed under human rights arbitration. There is therefore no necessity for protecting human rights that corporations be granted human rights (322, 327).
• Human beings, by virtue of being physical persons, are exposed to risks and concerns that corporations simple are not. Corporations cannot be tortured, beaten, raped, killed, or suffer from grief, stress, or pain. These human vulnerabilities and emotions were the reason human rights came into being; applying them to corporation makes no sense since corporations cannot be subjected to most of these human rights violations (324).
• The European Court of Human Rights, alone among human rights bodies, actually does allow corporations to bring suits before its arbitration. This practice, however, still restricts its defense of human rights to defending corporate speech from censorship. Protections under this Court do not cover the gamut of human rights (324-325).
• International precedents have demonstrated that international human rights law supersedes international investment law, as in the Inter-American Court of Human Rights's 2006 ruling in Sawhoyamaxa v. Paraguay that the human rights protections of indigenous peoples overruled any violation of investment treaties (325-326).
• The essential logic underpinning international investment law is separate from that underpinning international human rights law. Investment law exists to ensure that agreements between states are properly respected by both parties, whereas human rights are obeyed as a universal principle. Violation of investment law by one party can nullify the other's responsibilities; this is not true of international human rights law (328-329).
• This distinction can be summarized that the duty to respect investment law is a specific duty owed by one state towards either another state, whereas human rights law is a erga omnes duty not bound by concerns of nationality or treaties (330).
• One of the major issues with applying the principles of human rights to international investment law is that giving corporations protections similar to human rights would contradict the fact that the contractual rights of investment law exist between two states, not between a state and a corporation. Investment law claims that corporations have rights because they are given them by inter-state treaties, the application of human rights principles would assume that corporations always have rights separate from treaty obligations (331).
• The arguments for expanding the rights of corporations under international law and investment law come from a presumed lack of protection of corporations from exploitative national law. Without international investment law and pre-arranged arbitration, corporations would have to depend upon national courts to rule against their own government (332).
• These arguments are based on the false assumption that corporations are powerless against national governments, when in fact international corporations are a unique and protected legal status, and a large amount of economic leverage versus national governments (334).
• Even if corporations were vulnerable in the era before international investment law, that is no longer the case. Now corporations are more than adequately protected, sometimes even being able to exert pressure on states because of their privileged legal position (334-335).
• Increasing the rights of corporations and investors can actually reduce the rights of real humans to exercise democratic control over their government and world by widening the category of decisions which governments have legally blocked themselves from making (336, 339).
• Contrary to some liberal claims that investment law can force governments respect the rule of law or promote good governance, the decision of the International Court for Settling Investment Disputes in the 2003 Tecmed case -- in which the Mexican government was forced to reopen a hazardous landfill owned by the company despite public opposition -- demonstrates that investment law can only reduce the ability of governments to respond effectively to popular demand or enforce domestic regulatory law (338).
• This is particularly threatening because these changes are happening under international law, which always supersedes domestic laws. This means that obligations under international investment law supersede a government's obligations to fulfill even its own constitutional provisions (340-341).
• "Human rights norms are of a fundamentally supranational and anti-statist character. According to this 'alien ship' model of human rights (a metaphor inspired by the image of the alien ship that hovers over the White House in publicity posters of the 1996 film Independence Day), human rights norms are seen as located above states, making their impact on domestic politics primarily as foreign impositions" (344).
• The author disagrees with this conception of human rights, arguing that they are not separate from national systems but complimentary to them. Rather than replacing national laws, international human rights laws and institutions serve to provide a failsafe mechanism for those times when national constitutional protections do not adequately protect human rights (345-346).
• The importance of challenging the alien-ship model of human rights is to reverse its anti-statist character. Human rights should recognize the importance and value of states and national constitutions in protecting human rights. This means that state-level human rights protections should be regarding as as important as international protections (346-347).
• The arguments of corporations to be included under the protections of human rights law are not only flawed, but harmful because they steal legitimacy from actual human rights -- making governments less able to resist corporate pressure by invoking human rights -- and contribute to an anti-state perception of human rights which limits the ability of governments to protect the rights of their citizens (349).