Mich: Reconstructing corporate transnational human rights obligations

Tamo Atabongawung (University of Rotterdam, Bernheim Fellow)

International legal scholars still confront the problem – whether corporations can be attributed human rights obligations or not. While moral arguments remain persuasive, responsibility in international law is state-centric and requires some facts of sovereignty to obtain. Nonetheless, moral and legal responsibilities are not so distinct, as it is not jurisprudentially uncommon to associate the proper function of a legal system with its ability to institutionalise enforceable moral claims as a way of obligating agents. In this sense enforceable moral claims conceptually speaking pre-date any institutional arrangements (which give rise to legal responsibility). I argue that under international law such moral principles, which provide reasons for action and further justify enforceable claims, can be located in ius cogens. International law sanctifies ius cogens as peremptory or non-derogatory principles and inviolable. Therefore obligation towards this corpus is capacity neutral and the failure to observe such principles can trigger responsibility proper. This conception albeit its limitations, challenges the basic axioms on which positivist international law rests, namely that States are the only subjects of human rights obligations, and that enforcement is constitutive of obligations.