Challenging corporate 'humanity': Legal disembodiment, embodiment and human rights

Human Rights Law Review

Volumn 7, Issue 3, 2007, Pages 511-543

  Grear, Anna ^a  

^a UNIVERSITY OF THE WEST OF ENGLAND   (United Kingdom)

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EID: 34547981858     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngm013     Document Type: Article

References (163)

1. See Baxi, The Future of Human Rights (Oxford: Oxford University Press, 2002) and the second edition, which further develops his central thesis (Oxford: Oxford University Press, 2006).
2. Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection (Oxford: Oxford University Press, 2006).
3. By, in part, utilising the sociological approach recently offered by Turner, Vulnerability and Human Rights (Pennysylvania: Pennysylvania State University Press, 2006).
4. See also, on a similar theme, Grear, 'Human Rights - Human Bodies? Some Reflections on Corporate Human Rights Distortion, The Legal Subject, Embodiment and Human Rights Theory', (2006) 17 Law and Critique 171.
5. Universal Declaration of Human Rights (UDHR), GA Res 217A(III), 10 December 1948.
6. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, ETS No. 5.
7. Ignatieff argues that the UDHR has become the 'sacred text' (Ignatieff, 'Human Rights as Idolatry', in Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001) 53) of what Wiesel has called a world-wide secular religion' (Wiesel, 'A Tribute to Human Rights', in Danieli et al. (eds) The Universal Declaration of Human Rights: Fifty Years and Beyond (Amityville, NY: Baywood, 1999) 3),
8. cited by Ignatieff, ibid.
9. Baxi (2002), supra n. 1 at 132.
10. Ibid.
11. McCorquodale and Fairbrother, 'Globalization and Human Rights, (1999) 21 Human Rights Quarterly 735 at 737.
12. Luke, 'New World Order or Neo-World Orders: Power, Politics and Ideology in Informationalizing Glocalities', (1995) 91 Global Modernities at 99-100.
13. cited by McCorquodale and Fairbrother, ibid. at 738.
14. In 1996, of the world's 100 largest economies, 51 were corporations and only 49 were states, see Longworth, 'Large Companies now Economically Bigger Than Some Countries, Chicago Tribune, 15 October 1996,
15. cited by McCorquodale and Fairbrother, supra n. 9 at 738.
16. Baxi (2002), supra n. 1 at 147.
17. Ibid. at 146-9.
18. Ibid. at 148. Baxi gives as one example the idea that the 'human right to health is best served, in a variety of contexts, by the protection of research and development rights of pharmaceutical and diagnostic industries... [and] the right to public and political participation (enshrined in the Declaration on the Right to Development) is best secured by the rapid growth of information technologies'.
19. Jochnick, 'Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights', (1999) 21 Human Rights Quarterly 21 at 65.
20. Baxi (2002), supra n. 1 at 149.
21. Ibid.
22. Egede and Wells, 'An Annotated Bibliography of the Accountability of Multinational Corporations: A Review of International Human Rights Law, Working Paper Series No. 12, The Centre for Business Relationships, Accountability, Sustainability and Society.
23. See also, Simons, 'Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-Regulation Regimes, (2004) 59 Relations Industrielles/Industrial Relations 101;
24. and McCrudden, 'Human Rights Codes for Transnational Corporations: What Can the Sullivan and MacBride Principles Tell Us?', (1999) 19 Oxford Journal of Legal Studies 167.
25. E/CN4/Sub.2/2003/12/Rev.2 (2003). See Kinley and Chambers 'The UN Human Rights Norms for Corporations: The Private Implications of Public International Law', (2006) 6 Human Rights Law Review 447.
26. McCorquodale and Fairbrother, supra n. 9 at 735.
27. 'Dignity, although a central value in human rights discourse, is not unproblematic: See McCrudden, 'Human Dignity', University of Oxford Faculty of Law Legal Studies Research Paper Series: Working Paper No. 10/ 2006. McCrudden argues that the use of the notion of dignity is widespread in legal discourse, whether instantiated in international or constitutional documents, judicial decision making in the human rights context, or in transnational judicial conversation but, for example, that '[t]here is little common understanding of what dignity requires across jurisdictions. The meaning of dignity is therefore highly context specific, varying significantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions.... Dignity often provides a convenient cover for the adoption of interpretations of human rights guarantees that appear to be intentionally, not just coincidentally, highly contingent on local circumstances' (at 21).
28. Boutros-Ghali, Human Rights: The Common Language of Humanity, in United Nations: World Conference on Human Rights, The Vienna Declaration and Programme of Action (1993).
29. Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge: Cambridge University Press, 2006), questions whether 'the hype which surrounds human rights talk is misplaced; intellectually untenable and possibly morally counterproductive in inhibiting the imagination of more emancipatory projects' (at 272).
30. Addo, "The Corporation as a Victim of Human Rights Violations, in Addo (ed.) Human Rights Standards and the Responsibility of Transnational Corporations (Hague: Kluwer, 1999) 187 at 188.
31. Hohfeld, 'Nature of Stockholders', Individual Liability for Corporation Debts', (1909) 9 Columbia Law Review 285 at 288,
32. cited in Finnis, "The Priority of Persons', in Horder (ed), Oxford Essays in Jurisprudence, Volume IV (Oxford: Oxford University Press, 2000) 10.
33. Jones, 'Human Rights, Group Rights, Peoples Rights, (1999) 21 Human Rights Quarterly 80 at 83.
34. Ibid. at 85.
35. Ibid. at 86.
36. Ibid.
37. Ibid. at 88.
38. Ibid. at 107.
39. Addo, supra n. 24 at 188-9.
40. Ibid. at 196.
41. Ibid. at 192.
42. Ibid. at 193 [emphasis added].
43. See supra n. 11.
44. Addo, supra n. 24 at 188.
45. Moran, 'Corporate Criminal Capacity: Nostalgia for Representation, (1992) 1 Social and Legal Studies 371 at 375.
46. Hartmann, 'Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights', available at: http://www.thomhartmanncom/summary/ shtml.
47. Stammers, 'Social Movements and the Social Construction of Human Rights', (1999) 21 Human Rights Quarterly 980 at 981.
48. Ibid. at 986.
49. Baxi (2006), supra n. 1 at 258.
50. Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination and Reason (Chicago and London: Chicago University Press, 1987) at x.
51. Cheah, Fraser and Grbich (eds), Thinking Through the Body of Law (St Leonards: Allen and Unwin, 1996) at xv,
52. cited in Sclater, 'Introduction', in Bainham, Sclater and Richards (eds), Body Lore and Laws (Oxford: Hart, 2002) 1 at 1.
53. Formal justice as fairness reduces the concreteness of the other, minimises differences of need and desire, and emphasises similarities and homologies between subjects. The moral worth of the other's demand is to be sought more in what self and other share than in those differences and specificities that make the other a concrete historical being. Douzinas and Gearey, Critical Jurisprudence (Oxford: Hart Publishing, 2005) at 127-8.
54. Bottomley, 'The Many Appearances of the Body in Feminist Scholarship', in Bainham, Sclater and Richards (eds), supra n. 44, 127 at 134-5.
55. It should be noted, in relation to this, what when the law does have a human body in mind, that body is 'the bounded heterosexual male body, 'immutable', 'a means of denying bodily integrity to women (and to men who refuse to behave like "true" men) who are deemed to lack clear boundary definition': Naffine, 'The Body Bag, in Naffine and Owens (eds), Sexing the Subject of Law (Sydney: Sweet and Maxwell, 1997) 79 at 84.
56. Douzinas and Gearey, supra n. 45 at 126,
57. citing, in support of the proposition that justice becomes lawful possession, Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990) at chapter 2.
58. Naffine, 'Who are Law's Persons? From Cheshire Cats to Responsible Subjects, (2003) 66 Modern Law Review 346 at 365.
59. For further discussions of aspects of the traditional liberal property construct in relation to human rights see Waldron, The Right to Private Property (Oxford: Clarendon Press, 1998);
60. Gray, 'Equitable Property, (1994) Current Legal Problems 157;
61. Grear, 'A Tale of the Land, the Insider, the Outsider and Human Rights', (2003) 1 Legal Studies 33;
62. Gray and Gray, 'Civil Rights, Civil Wrongs and Quasi-Public Space', [1999] European Human Rights Law Review 46;
63. Gray and Gray, 'Private Property and Public Propriety, in McLean (ed), Property and the Constitution (Oxford: Hart Publishing, 1999) 11;
64. and Green, 'Citizens and Squatters: Under the Surfaces of Land Law, in Bright and Dewar (eds), Land Law: Themes and Perspectives (Oxford: Oxford University Press, 1998) 229.
65. Douzinas, The End of Human Rights (Oxford: Hart, 2000) at 183 [emphasis added].
66. Douzinas and Gearey, supra n. 45 at 128.
67. Douzinas, supra n. 51 at 239.
68. Neocleous, 'Staging Power: Marx, Hobbes and the Personification of Capital', (2004) 14 Law and Critique 147 at 164.
69. For a full discussion of this see Neocleous, ibid.
70. Baxi (2002), supra n. 1 at 24.
71. Finnis, Natural Law and Natural Rights (Oxford: Clarendon, 1980) at 198.
72. Ibid. at 206.
73. Ibid.
74. Ibid. at 208.
75. Ibid. at 206-7,
76. citing Suarez, De Legibus I ii 5.
77. Ibid. at 207.
78. Ibid.
79. Ibid. at 208,
80. quoting from Hobbes's Leviathan (1651) Ch xiv, in Raphael (ed.), British Moralists 1650-1800, Volume 1 (Oxford, Clarendon Press, 1969) at para. 56.
81. Douzinas, supra n. 51 at 48.
82. For a fascinating account of this process see Douzinas, ibid. at 61-8.
83. Ibid. at 65.
84. Ibid. at 65.
85. Ibid. at 67.
86. Ibid.
87. For the classic discussion of the notion of possessive individualism as it emerged with capitalism in liberal political philosophy, see MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962).
88. Woodiwiss, Human Rights (Abingdon: Routledge, 2005).
89. Ibid. at 3-4.
90. See Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998) at 75.
91. See Woodiwiss, supra n. 72 at 8-9.
92. On the paradox inherent in the notion of human sacredness in its origins, see generally Agamben, supra n. 74 at Part 2, and especially Chapters 1 and 2, 'Homo Sacer' and 'The Ambivalence of the Sacred'.
93. Woodiwiss, supra n. 72 at 7.
94. Locke's right to unlimited acquisition by an individual had the implication (resisted to some extent by the Levellers) of 'the concentration of wealth and the consequent practical inequality of the right to acquire, Macpherson, supra n. 71 at 154.
95. See Douzinas, supra n. 51 at 237-9.
96. Agamben, supra n. 74 at 128.
97. See Stammers, supra n. 40 at 996-1000.
98. Woodiwiss, supra n. 72 at 10.
99. Ibid.
100. Woodiwiss also suggests that the UDHR is informed by an understanding of the causes of fascism that rests on political factors, while muting the importance of the economic conditions that contributed to the rise to power of the Nazi party, citing, in support, Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania Press, 1999) at Chapter. 1.
101. The text of the American Declaration of Independence (1776) declares 'all men' are 'created equal, [and] endowed by their Creator with certain unalienable Rights, [and] among these are Life, Liberty and the pursuit of Happiness'.
102. Douzinas, supra n. 51 at 96. Douzinas examines the content of human nature in France, which he cites as its 'country of origin'. He notes that 'after sex, colour and ethnicity were added, this abstract disembodied human nature took a very concrete form, that of a white, property-owning man'.
103. Otto, 'Disconcerting "Masculinities": Reinventing the Gendered Subject(s) of International Human Rights Law', in Buss and Manji (eds), International Law: Modern Feminist Approaches (Oxford: Hart Publishing, 2005) 105 at 105-6.
104. For further comment on this, see infra Section 5 E.
105. Woodiwiss, supra n. 72 at 28-30.
106. See Baxi (2002), supra n. 1 at 27-35.
107. Ibid. at 29.
108. Ibid. at 32.
109. Ibid. at 33.
110. Otto, supra n. 86 at 105-6.
111. Baxi (2002), supra n. 1 at 32, footnote 17.
112. Ibid.
113. Ibid. at 31.
114. Woodiwiss, supra n. 72 at 39. Interestingly, although the 1776 American Declaration of Independence makes no reference to property rights, listing the inalienable rights as 'life, liberty and the pursuit of happiness', it has been suggested that by the time of the Constitution of 1787 there had been, in effect, a counter-revolution by propertied elites.
115. Baxi (2002), supra n. 1 at 31.
116. Ibid. at 154.
117. Marks, 'From the "Single Confused Page" to the "Decalogue for Six Billion Persons": The Roots of the Universal Declaration of Human Rights in the French Revolution', (1998) 20 Human Rights Quarterly 459.
118. Dembour, supra n. 25 at 31.
119. Emberland, supra n. 2.
120. Ibid. at 3.
121. Arguably, what makes the ECHR unique is the fact that companies were always implicitly favoured by the framers of the Convention. Emberland points out that the Preamble of the Statute of the Council of Europe has as one of its stated aims the achievement of 'a greater unity between its Members for the purpose of... facilitating their economic... progress' (ibid. at 50).
122. He suggests that the ECHR shares a common heritage with the treaties that founded the European Economic Community and that, in the context of the 'European liberal project, company claims should theoretically expect a favourable response from the Court since such claims are part and parcel of the order sought to be realised by the Convention' (ibid. at 51).
123. Furthermore, the ECtHR 'accepts that collective entities have rights on their own' (ibid. at 53) - whereas the petition system under the International Covenant on Civil and Political Rights accepts only individual complaints, and the American Convention of Human Rights system only allows collective entities to petition insofar as their application concerns alleged violations of individual human beings.
124. See, for more, ibid. at n. 153.
125. Ibid. at 42.
126. Ibid.
127. Cassesse, 'The Impact of the European Convention on Human Rights on the International Tribunal for the former Yugoslavia', in Mahoney et al. (eds), Protecting Human Rights: The European Perspective: Studies in Memory of Rolv Ryssdal (Koln: Carl Heymanns Verlag, 2000) 213 at 213,
128. cited in Dembour, supra n. 25 at 18, footnote 42.
129. Bruinsma and Parmentier, 'Interview with Mr Luzius Wildhaber, President of the ECHR', (2003) 21 Netherlands Quarterly of Human Rights 185 at 193,
130. cited in Dembour, supra n. 25 at 18, footnote 42.
131. Emberland, supra n. 2 at 10, footnote 35.
132. Emberland notes, ibid. at 14, that corporations 'concentrate their litigious efforts within a small band of ECHR provisions' (Articles 6(1) and 10, and Article 1, Protocol 1).
133. Ibid. at 198.
134. Ibid.
135. Ibid.
136. Ibid. at 199.
137. On the basis of a detailed analysis of Agrotexim Hellas SA and Others v Greece A 330-A (1995);
138. (1996) 21 EHRR 250, and related cases and contexts.
139. Through a detailed analysis of the Court's reasoning in each of the following cases: With regard to corporate commercial protection under Article 10(1), ECHR, Autronic AG v Switzerland A 178 (1990);
140. (1990) 12 EHRR 485;
141. with regard to corporate business purposes being regarded as a 'home' within the meaning of Article 8(1), ECHR, in cases concerning searches and seizures, Société Colas Est SA and Others v France 2002-111 421; (2004) 39 EHRR 17;
142. and with regard to corporate entitlement to monetary compensation for immaterial loss (Article 41, ECHR), Comingersoll SA v Portugal 2000-IV 355;
143. (2001) 31 EHRR 772.
144. Emberland, supra n. 2 at 155-96. Emberland notes that the Court's justification for a more lenient review standard is based on a 'characteristically brief' justification and that '[i]n fact, the Court's introduction of low-intensity protection standards in the business context is almost devoid of explanation' (156-7).
145. Ibid. at 200.
146. Ibid. at 4.
147. 118 US 394 (1886)
148. Finnis, supra n. 25 at 9.
149. Emberland, supra n. 2 at 206.
150. Grear, supra n. 4 at 195.
151. Baxi (2002), supra n. 1 at 33.
152. Turner, supra n. 3.
153. Ibid. at 4.
154. Ibid. at 6.
155. Ignatieff, supra n. 5.
156. Turner, supra n. 3 at 9.
157. Ibid.
158. Ibid.
159. Ibid at 35.
160. Morris, The Culture of Pain (Berkeley: University of California Press, 1991).
161. Turner, supra n. 3 at 10.
162. Ibid.
163. Indeed, it is even possible that the property right itself, so often exclusory in its construction and operation, could be reconceptualised as that which is 'proper' to embodied personalities in the justice-context of our complex relationships with each other and the things that make up our physical environment. For a fuller consideration of the theoretical links between human rights and property and their mutual potential for more inclusory concerns, see Grear, supra n. 50.