Rethinking Corporate Human Rights Accountability

Source: Pammela Quinn Saunders, Drexel University Thomas R. Kline School of Law Research Paper No. 2014-A-06, May 8, 2014

From the abstract:
The standard account of corporate human rights accountability assumes that corporate entities, rather than individual corporate officers or employees, are the optimal targets of regulatory litigation. This assumption has led human rights advocates to despair over recent court decisions concluding that only individuals, rather than organizations, may be sued under the two federal statutes which have, until now, served as the virtually exclusive vehicles for bringing such claims. In light of these decisions (and similar barriers to suits against corporate entities in some other jurisdictions), human rights advocates find themselves at a crossroads. Will litigants shift exclusively to other theories or fora in order to sue corporate entities directly or will they instead or in addition pursue claims against individual corporate agents?

While the standard account would suggest the former, that answer may be neither realistic nor correct. In fact, the arguments underlying the conclusion that institutional liability is essential were developed outside of the human rights context. To be sure, many of the same goals that underlie human rights litigation also underlie the traditional, domestic corporate litigation context in which these arguments originated. Yet, a more complex set of motivations are involved in the project of holding multinational corporations accountable for their complicity in human rights violations. Failing to consider either of the non-traditional goals that underlie human rights litigation leads to an incomplete account regarding the importance of different forms of liability in this context.

This Article develops a typology of goals underlying corporate human rights litigation and then “matches” these goals to the benefits and drawbacks of individual versus institutional liability. It concludes that, while pursuing a mix of institutional and individual claims is likely the ideal approach, it is a close question. In the specific context of international human rights claims, there are significant benefits to naming individual corporate actors as defendants that have been largely overlooked. Far from being the disaster that it has been depicted to be, litigation targeting individual corporate actors has great potential to benefit victims and to serve as an important addition to the regulatory toolkit.