Wednesday, June 27, 2018

"Constitutional Rights and Corporate Actors" Constitution, Corporations and Human Rights at the ICON-S Conference, Hong Kong 26 June 2018

The recently concluded ICON-S 2018 Conference provided a marvelous space to consider some of the thorniest emerging issue sin law, governance and (infra)structure that now confront lawyers, policymakers, and the global stakeholders who together build and maintain increasingly dense layered systems of governance managing individuals and institutions--including the state. The Call for Papers provided a nice summary of the focus:
The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.” Modern identity struggles and the search for constitutional and legal mechanisms that can accommodate diversity occur at many levels including the national, supra-national, local, individual, and collective; and also involve multiple dimensions: ethnic, racial, religious, gender, sexual, and cultural, to name but a few. In recent years, identity claims and security issues have taken centre stage in law and politics, prompting realignment of domestic, regional and international orders. Technological advancement has to some extent countered traditional security concerns, but has given rise to new ones as well as to issues of privacy and political control. At the same time, democracy, a widely revered political ideal for addressing differences and realising human aspirations, is facing challenges in many parts of the world. How should public law respond to these changing circumstances? Asia – with some of the most diverse cultures in the world, where domestic and regional security threats and human rights violations loom large, and where democracy is a relatively recent and at times fragile phenomenon or still under experimentation – offers a unique setting for fresh thinking on these and other closely-related themes. (ICON-S).
My colleagues, Jernej Letnar Cernic, Surya Deva, Sarah Joseph and I were thrilled to have been able to organize a panel for the event: Constitutional Rights and Corporate Actors. We thought to consider issues around formal and informal linkages around human rights standards/principles among state based constitutional law, international law-standards frameworks, and societal governance modalities. The idea was to consider the way these linkages might provide a means, formal or informal, of transposing constitutional obligations once reserved to the state alone, to enterprises operating within and between states. 

The Panel description follows, along with the abstracts (and some of the PowerPoints) of the presentations. The 2018 ICON-S Program may be accessed HERE.

Constitutional Rights and Corporate Actors. Constitutions and constitutional rights are predominantly designed to control the power and (non-)actions of state agencies within a given territory. Victims of corporate human rights abuses have very limited means – either in their home country or the country where the corporation in question is registered or, indeed, before an international forum – to seek access to effective remedies. Against this backdrop, this panel will explore the extent to which constitutional rights provisions should and could directly apply to corporate actors both when they do business at home and abroad. Drawing lessons from a number of jurisdictions such as India, Europe and US, the panel will try to identify whether horizontal application of constitutional rights can be regarded as a generally accepted norm of comparative constitutional law. 

Jernej Letnar Cernic

Constitutional Obligations of Corporations in Europe
Developments in business and human rights in the past decade reveal a division between voluntary and binding approaches to the questions of whether corporations have human rights obligations and whether they should be held accountable for their human rights impacts. Even though the proponents of both sides attempt to demonstrate that these approaches are not mutually exclusive, victims on the ground are today still witnessing the continuation of the status quo, mostly to the benefit of of major corporate players.  Soft-law guidelines and principles do not create binding international legal obligations, but they merely restate the state-of-the-art in human rights law. Victims of corporate human rights have thus often encountered difficulties in enforcing their claims against corporations. They often find hurdles due to the absence of binding human rights obligations of corporate actors. On the other hand, national constitutions often include binding human rights obligations for both individual and legal persons, thereby creating also human rights obligations for corporations.

This paper, therefore, attempts to answer the question whether the constitutional provisions of domestic systems of the European states apply also to corporate actors.In doing so it examines selected ten countries from all regions of Europe in order to establish whether their constitutional documents bind also corporate actors. It further examines what is the nature and scope of such constitutional obligations.  In the closing part of the article, conclusions are drawn on how those countries should proceed to reform the enforcement of corporate human rights obligations deriving from their constitutions.  PowerPoint..

Surya Deva

Constitutional Rights and Corporate Actors in India
This paper will explore the extent to which fundamental rights (FRs) provisions in Part III of the Indian Constitution could be directly invoked against companies to hold them accountable for human rights abuses. I will examine two issues related to this question: the extent of horizontal application of FRs, and the relevance of corporate law (principles of separate corporate personality and limited liability) to this constitutional law question.     

The FRs are generally available against the ‘state’ as defined by Article 12 of the Indian Constitution. The definition of ‘state’ includes ‘other authorities within the territory of India or under the control of the Government of India’. The Supreme Court has extended considerably the meaning of ‘other authorities’ by developing an instrumentality test. However, I will argue that the instrumentality test is not suitable to meet the complex challenges posed the privatisation of governance and economy. The solution to achieve an optimal horizontal application of FRs might lie either in an amendment of Article 12 or the judicial enunciation of a new test that focuses more on functions of private non-state actors.

Moreover, even if an optimal horizontal application of FRs is achieved in principle, this might not result companies held accountable for human rights abuses in practice, as companies might plead principles of separate corporate personality and limited liability to deny or limit their liability. The paper will, therefore, also consider the tools that courts could employ to mitigate the negative effect of these corporate law principles on the enjoyment of constitutionally-guaranteed FRs.

Larry Catá Backer

The United States Constitution, as well as those of many of the states in the Union, contain extensive and well known categories of fundamental rights which are protected against the assertion of governmental power. They provide substantial protection of property, of life and liberty interests of persons against the state, but have traditionally offered far less well defined protections of economic, social or cultural rights except to the extent they might be extracted from constitutionally derived protections against discrimination against a growing list of recognized categories—among them race, religion, ethnicity, sexual preferences. 

This paper considers whether and to what extent—formally or functionally—the traditional constitutional constraints on government might be asserted against non-governmental authorities exercising governmental power. The question is made more complicated because the object of constitutional burden is also a bearer of substantial constitutional rights. The paper first considers the scope of constitutional protections for human rights int he U.S. These emphasize political and civil rights, privilege religion, and ficus on anti-discrimination obligations. Second,it examine the limits of constitutional imposition through the lens of the corporation as a constitutional rights holder. Third,it considers the Corporation as a bearer of constitutional duty within a jurisprudence that draws a fairly hard line between public and private actors, whatever the functional effect of their actions.  Lastly it examines the reach of international law, and its utility in any project to project national constitutional human rights obligations on enterprises.

The paper then considers possible avenues for creating regimes that effectively transpose at least functional constitutional obligations onto private actors. There are several avenues worth considering.  First, either federal or state legislation can transpose constitutional obligation against states into legal obligations that may be asserted against enterprises. Second, corporations could be encouraged to adopt these duties as a matter of internal governance and in their contracts with their stakeholders. Finally, an international law-norm approach will be considered.  The limitations of these approaches will then be considered, including among them the possibility that corporations can challenge such legal regimes as violations of their own constitutional rights against governmental interference, that the complexity and limitations of effective applicable scope may make the approaches unworkable, and lastly that they will have little effective scope of remedy. PowerPoint:

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