Edited by Jorge L. Fabra-Zamora
Chapter 11: Global constitutionalism without global democracy? Human rights and human dignity in a corporate world
International human rights are central to the ideal of global constitutionalism. However, different conceptions of human rights may yield different assessments of global constitutionalism in the absence of global democracy. In particular, the question of whether international legal human rights will strengthen or weaken democracy greatly depends on how such rights are best understood. In the absence of a cosmopolitan order with legitimate global authority, international legal human rights may be used in ways that undermine democratic self-determination (i.e. each democratic society’s “right to regulate” its internal affairs and external relations). To illustrate this potential challenge to democracy, this chapter focuses on two worrisome legal developments: the extension of legal human rights to corporations and the rights of corporations to international arbitration against states on the basis of bilateral investment treaties and free trade agreements. Against this background, the chapter analyses the humanist and political conceptions of human rights in order to assess the conceptual resources that each model has for offering normative guidance amidst developments in human rights practice that might threaten the human rights of natural persons. First if focuses on the negative effects that the distinctive functions of human rights norms can have upon the human rights of natural persons once corporations are recognized as legal persons bearing human rights. Turning to human rights jurisprudence, the chapter then explores the normative resources that the concept of human dignity has to offer in order to prevent such negative effects and which are unavailable to a conception of human rights that disregards the humanist core of human rights practice.
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