Power and responsibility: why human rights should address corporate environmental wrongs

Abstract

This chapter attempts to construct a normative justification for the imposition of human rights duties on transnational corporations (TNCs) that commit environmental wrongs in the developing world. Under the now near-hegemonic worldview of welfare economics, TNCs are analogised to individuals competing in the marketplace and thus placed squarely on the private side of the public/private divide. If we step outside of the economic worldview, however, and recognise the extent to which the normative justifications for civil and political human rights have traditionally been rooted in a perceived need to counteract the imbalance of power between the individual and the state, it becomes clear that it is frequently far more appropriate to treat TNCs as like states than like individuals. Many TNCs, after all, wield more power and resources than many states. Accordingly, at least where one of two sets of factual circumstances exist, human rights duties should be imposed directly on TNCs for environmental harms: 1) where the state has become so weak and/or corrupt as to be non-functional, or 2) where the TNC has so much power and influence within the domestic government that it essentially controls state decision-making.