Corporations, Globalisation and the Law series
Edited by Nina Boeger, Rachel Murray and Charlotte Villiers
Chapter 4: The United Nations, Human Rights and Transnational Corporations: Challenging the International Legal Order
Sorcha MacLeod To change international social reality, we have to break the mould in which that reality has been formed.1 INTRODUCTION What is the place of Transnational Corporations (TNCs) in international law? There is no doubt that some TNCs exert substantial informal power at the international level while lacking corresponding duties. Indeed, it is often said that some TNCs wield greater economic power than many developing and industrialized states.2 Moreover, TNCs can enjoy rights, such as the right to property, under international law in a similar way to individuals.3 Under traditional conceptions of international law, however, only states are players on the international stage: international law is the law of states and states alone are subjects of international law.4 TNCs, therefore, exert their substantial power at the international level without being subject to corresponding duties in international law. In this respect, the position of TNCs may be contrasted with that of other non-state entities operating on the international plane. Obvious comparators include Inter-Governmental Organizations (IGOs) which wield varying levels of power and influence and may, as a consequence of international legal personality, have rights and duties under international law. Key examples are the WTO and the EU.5 Individuals too, now have duties under international criminal law, as well as human rights.6 The position of IGOs and individuals in international law suggests that there is no principled legal reason for excluding TNCs as subjects of international law. Indeed, as far back as 1964, as Kamminga points out, Wolfgang Friedmann was suggesting...
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