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Economic, Social and Cultural Rights, Sustainable Development Goals, and Duties of Corporations: Rejecting the False Dichotomies

Published online by Cambridge University Press:  19 February 2021

Danwood CHIRWA Open the ORCID record for Danwood CHIRWA [Opens in a new window]  and
Nojeem AMODU
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Abstract

The attention that the Sustainable Development Goals (SDGs) has given to public–private partnerships in solving global concerns including poverty, sustainable development and climate change has shed new light on the question of duties of corporations in relation to economic, social and cultural (ESC) rights. At the same time, objections to recognizing the obligations of corporations in relation to human rights in general and to ESC rights in particular have continued to be made. At the formal level, these objections are reflected in new distinctions such as between the duties of states and responsibilities of corporations, between primary duties of states and secondary duties of corporations, and between obligations of compliance and obligations of performance. All these objections and distinctions are untenable and serve only to stultify the discourse on business and human rights. The current state of human rights is dynamic, not static; commodious, not stale. There is ample space in it to accommodate duties of corporations regarding ESC rights.

Keywords

CorporationsDutiesEconomicSocial and cultural rightsSDGsUNGPs
Type
Scholarly Article
Information
Business and Human Rights Journal , Volume 6 , Issue 1 , February 2021 , pp. 21 - 41
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

Conflicts of interest: The authors declare none.

*

Dean and Professor of Law, University of Cape Town, South Africa.

**

Postdoctoral Fellow, University of Cape Town, South Africa.

References

1 GA Resolution 63/117 (2008), UN Doc A/63/435 (adopted 10 December 2008, entered into force 5 May 2013).

2 See, e.g., Cockrell, Alfred, ‘Private Law and Bill of Rights: A Threshold Issue of “Horizontality”’ in Bill of Rights Compendium (Durban: Butterworths, 2001) 3A–18 Google Scholar; Halton Cheadle and Dennis Davis, ‘The Application of the 1996 Constitution in the Private Sphere’ (1997) 13 South African Journal on Human Rights 44, 59–60.

3 Except otherwise expressly differentiated, the words ‘company’, ‘corporation’, ‘business’ and ‘business enterprise’ are used interchangeably in this article to connote a legal entity or an incorporated association of persons – regardless of size – carrying on commercial activities using the corporate form.

4 See, e.g., Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations’ “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011) (UNGPs). See also HRC Res 17/4 on Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/17/4 (6 July 2011); HRC Res 26/22 on Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/26/22 (15 July 2014); HRC Res 35/7 on Business and Human Rights: Mandate of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/35/7 (14 July 2017); HRC Res 44/15 on Business and Human Rights: the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, and Improving Accountability and Access to Remedy, A/HRC/RES/44/15 (23 July 2020); HRC Res 26/9 on Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with respect to Human Rights, A/HRC/RES/26/9 (14 July 2014).

5 Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v The Argentine Republic, ICSID Case No. ARB/07/26 Award (8 December 2016) (Urbaser).

6 UN General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’, UN GA Res 70/1, A/RES/70/1 (21 October 2015).

7 Ibid.

8 GA Res 55/2 (8 September 2000).

9 Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment, UN Doc A/CONF.48/14, at 2 and Corr.1 (1972).

10 Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, UN Doc A/CONF.151/26 (Vol I), 12 August 1992, Annex I.

11 Nojeem Amodu, ‘Corporate Social Responsibility and Economic Globalization: Mainstreaming Sustainable Development Goals into the AfCFTA Discourse’ (2020) 47:1 Legal Issues of Economic Integration 71, 77.

12 See note 6, the Preamble.

13 Opened for signature 10 years on 16 December 1966, 999 UNTS 3 and entered into force 3 January 1976.

14 CESCR, ‘The Pledge to “Leave No One Behind”: The International Covenant on Economic, Social and Cultural Rights and the 2030 Agenda for Sustainable Development’, Statement by the CESCR, UN Doc E/C.12/2019/1 (8 March 2019), para 6.

15 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (26 January 1997), para 2 contained in CESCR, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN Doc E/C.12/2000/13 at 16 (2 October 2000), para 7.

16 However, SDGs do not set out targets that can all be said to be derived from ESC rights. In fact, some commentators have pointed out the inadequacies of SDGs regarding the incorporation of ESC standards. See, e.g., Kate Donald, ‘The 2030 Agenda for Sustainable Development: Opportunity of Threat for Economic, Social and Cultural Rights’ in Jackie Dugard et al (eds), Research Handbook on Economic, Social and Cultural Rights as Human Rights (Cheltenham: Edward Elgar Publishing Ltd, 2020); Inga T Winkler and Carmel Williams, ‘The Sustainable Development Goals and Human Rights: A Critical Early Review’ (2018) 21:8 International Journal of Human Rights 1023; Audrey R Chapman, ‘Evaluating the Health-Related Targets in the Sustainable Development Goals from a Human Rights Perspective’ (2017) 21:8 International Journal of Human Rights 1098.

17 CESCR, note 14, para 18.

18 CESCR, ‘Poverty and the International Covenant on Economic, Social and Cultural Rights’, Statement of the CESCR to the Third United Nations Conference on the Least Developed Countries, UN Doc E/2002/22, E/C.12/2001/17 (4 May 2001), para 8, noting that poverty is a ‘human condition characterised by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights’.

19 McCorquodale, Robert, ‘Corporate Social Responsibility and International Human Rights Law’ (2009) 87 Journal of Business Ethics 385, 387.CrossRefGoogle Scholar

20 CESCR, General Comment No 4: The Right to Adequate Housing, UN Doc E/1992/23 (1991) 14.

21 For jurisprudence and literature showing that corporations can have a negative impact on ESC rights, see, e.g., Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples’ Rights Communication No 155/96 (2001); Ugandan Consortium on Corporate Accountability, The State of Corporate Accountability in Uganda: A Baseline Study Report for the Uganda Consortium on Corporate Accountability (September 2016), https://www.accahumanrights.org/images/reports/UCCA.pdf (accessed 10 December 2020); FIDH and Lawyers for Human Rights, ‘Blyvooruitzicht Mine Village: The Human Toll of State and Corporate Abdication of Responsibility in South Africa’ (January 2017), https://www.fidh.org/IMG/pdf/rapafriquesud687abassdef.pdf (accessed 10 December 2020); Gonzalo Aguilar Cavallo, ‘Pascua Lama, Human Rights, and Indigenous Peoples: A Chilean Case Through the Lens of International Law’ (2013) 5:1 Goettingen Journal of International Law 215; Jernej Letnar Černič, Corporate Accountability under Socio-Economic Rights (Abingdon: Routledge, 2019), 7–9.

22 CESCR, ‘General Comment No 24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’, UN Doc E/C.12/GC/24 9 (10 August 2017), para 22.

23 2000 11 BCLR 1169 (CC); 2001 1 SA 46 (CC).

24 Ibid, para 35.

25 See, e.g., SDGs 12 to 16.

26 To date, none of the General Comments of the CESCR refers to the ESC rights of future generations.

27 As Nicolás Carrillo-Santarelli has aptly said: ‘[state obligations] are obligations of means and due diligence, which implies that corporate abuses neither automatically nor always engage State responsibility. In such events, victims still have rights to protection and reparations, which must be fulfilled. States may volunteer to provide reparations when they are not responsible, but are not obliged to do so’. Nicolás Carrillo-Santarelli, ‘Corporate Human Rights Obligations: Controversial but Necessary’ (24 August 2015), https://www.business-humanrights.org/en/blog/corporate-human-rights-obligations-controversial-but-necessary/#one (accessed 10 December 2020). See also Steven R Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111:3 Yale Law Journal 443. For critiques of the narrow approach adopted by the UNGPs, see Deva, Surya and Bilchitz, David (eds), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013).CrossRefGoogle Scholar

28 See, e.g., Bishop, John, ‘The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations’ (2012) 22:1 Business Ethics Quarterly 119 CrossRefGoogle Scholar; John Ruggie, ‘Business and Human Rights – Treaty Road Not Travelled’ (6 May 2008), https://www.globalpolicy.org/social-and-economic-policy/social-and-economic-policy-at-the-un/un-and-business/32270-business-and-human-rights-treaty-road-not-travelled.html (accessed 10 December 2020); John Ruggie, ‘Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights’ (23 January 2015), https://ssrn.com/abstract=2554726 (accessed 10 December 2020); Douglass Cassel and Anita Ramasastry, ‘White Paper: Options for a Treaty on Business and Human Rights’ (2015) 6 Notre Dame Journal of International and Comparative Law 1.

29 Hsieh, Nien-Hê, ‘Should Business Have Human Rights Obligations?’ (2015) 14 Journal of Human Rights 218, 219, 226.CrossRefGoogle Scholar

30 Ibid.

31 See, e.g., Charlesworth, Hilary, ‘Worlds Apart: Public/Private Distinction in International Law’ in Thornton, Margaret (ed), Public and Private: Feminist Legal Debates (Oxford: Oxford University Press, 1995) 243, 245–246 Google Scholar; Hunt, Paul, Reclaiming Social Rights: International and Comparative Perspectives (Aldershot: Ashgate, 1996) 86 Google Scholar; Pateman, Carole, The Disorder of Women: Democracy, Feminism and Political Theory (Cambridge: Polity, 1989) 43 Google Scholar; Thornton, Margaret, ‘The Cartography of Public and Private’ in Thornton, Margaret (ed), Public and Private: Feminist Legal Debates (Oxford: Oxford University Press, 1995) 2–3.Google Scholar

32 See, e.g., Cheadle and Davis, note 2; Cockrel, note 2.

33 Hsieh, note 29; Nien-Hê Hsieh, ‘Business Responsibilities for Human Rights: A Commentary on Arnold’ (2017) 2 Business and Human Rights Journal 297.

34 See, e.g., Arnold, Denis, ‘Corporations and Human Rights Obligations’ (2016) 1 Business and Human Rights Journal 255, 264.CrossRefGoogle Scholar

35 See, e.g., Hsieh, note 29, 255–256; Sir Geoffrey Chandler, ‘Commentary on the United States Council for International Business “Talking Points” on the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (20 November 2003), https://media.business-humanrights.org/media/documents/files/reports-and-materials/Chandler-commentary-on-USCIB-Talking-Points.htm (accessed 27 October 2020).

36 Cheadle and Davis, note 2, 59–60.

37 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, para 5.

38 See, e.g., Scott, Craig and Macklem, Patrick, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1 CrossRefGoogle Scholar; Liebenberg, Sandra, ‘The Protection of Economic and Social Rights in Domestic Legal Systems’ in Eide, Asbjørn et al (eds), Economic, Social and Cultural Rights: A Textbook (2nd rev edn) (Dordrecht: Martinus Nijhoff Publishers, 2001) 55, 57–61 Google Scholar; de Vos, Pierre, ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13:1 South African Journal on Human Rights 67 CrossRefGoogle Scholar; Mbazira, Christopher, ‘Bolstering the Protection of Economic, Social and Cultural Rights under the Malawian Constitution’ (2007) 1:2 Malawi Law Journal 220 Google Scholar; Mureinik, Etienne, ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8:4 South African Journal on Human Rights 464.CrossRefGoogle Scholar

39 This distinction derives from Berlin’s distinction between ‘negative liberty’ and ‘positive liberty’, which holds that the former merely requires non-interference while the latter requires action from the duty bearer. See Berlin, Isaiah, Four Essays on Liberty (Oxford: Clarendon Press, 1969) 121–154 Google Scholar. For critiques of this distinction, see, e.g., Charles Taylor, ‘What’s Wrong with Negative Liberty’ in Alan Ryan (ed) The Idea of Freedom (Oxford: Oxford University Press, 1979) 175–193; Quentin Skinner, ‘A Third Concept of Liberty’ (2001) 117 Proceedings of the British Academy 237–268.

40 Shue, Henry, Subsistence, Affluence, and US Foreign Policy (Princeton: Princeton University Press, 1980) 37.Google Scholar

41 Ibid, 52.

42 Asbjørn Eide, Final Report on the Right to Adequate Food as a Human Right’, UN Doc E/CN.4/Sub.2/1987/23; Asbjørn Eide ‘Economic, Social and Cultural Rights as Legal Rights’ in Eide, Asbjørn, Krause, Catarina and Rosas, Allan (eds), Economic, Social Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff Publishers, 1995) 21, 35–40.CrossRefGoogle Scholar

43 See, e.g., the African Commission’s decision in Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria Communication No 155/96 (2001) (SERAC); CESCR, ‘General Comment No. 13: The Right to Education (Art. 13)’ (8 December 1999), para 46; CESCR, ‘General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’ (11 August 2000), para 33; and section 7 of the South African Constitution, which provides that that ‘state must respect, protect, promote and fulfil the rights in the Bill of Rights.’

44 See, e.g., SERAC, ibid; Grootboom, note 23; Chirwa, Danwood and Chenwi, Lilian (eds), The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives (Cambridge: Cambridge University Press, 2016)CrossRefGoogle Scholar; Malcom Langford (ed), Socio-Economic Rights Jurisprudence: Emerging Trends in Comparative and International Law (Cambridge: Cambridge University Press, 2008); Christina Binder et al (eds), Research Handbook on International Law and Social Rights (Cheltenham: Edward Elgar, 2020).

45 Velásquez Rodríguez v Honduras [1988] Inter-Am Court HR (ser C) No 4 is probably the first known instance of judicial enforcement of this duty.

46 ILO conventions protect freedom of association and the right to bargain collectively; non-discrimination in the workplace, prohibition of forced labour, child labour and other forms of economic exploitation, the right to safe and healthy work environment; and the right to a reasonable working hours. The Convention on the Rights of the Child, UN Doc A/44/49 (1989), imposes human rights obligations on parents and other actors.

47 Note 5.

48 Pillar I of the UNGPs is headed ‘The state duty to protect human rights’, whereas Pillar II is headed ‘The corporate responsibility to respect human rights’.

49 John Ruggie, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’, A Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/8/5, 7 April 2008, para 9.

50 Ibid.

51 John Ruggie, ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’, A/HRC/14/27 (9 April 2010), para 55.

52 For example, the Draft Articles on Responsibility of States for Internationally Wrongful Act, adopted by the International Law Commission (contained in Report of the International Law Commission on the work of its 53rd session, UN Doc A/55/10 (2000)), define secondary rules for the enforcement of the primary rules of international law. The primary rules are binding, and responsibility arises from their violation. On the meaning of the doctrine responsibility in international law, see, e.g., Alain Pellet ‘The Definition of Responsibility in International Law’ in James Crawford et al (eds), The Law of International Responsibility (Oxford: Oxford University Press, 2010) 3–16; Volker Roeben, ‘Responsibility in International Law’ (2012) 16 Max Planck UNYB 100, 106–110.

53 Pellet, ibid, 6–8.

54 UNGPs, Principles 11 and 15. The other principles in Pillar II are essentially an elaboration of these two principles.

55 UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (2003), approved 13 August 2003, by UN Sub-Commission on the Promotion and Protection of Human Rights resolution 2003/16, UN Doc E/CN.4/Sub.2/2003/L.11 at 52.

56 In Africa, the following constitutions recognize the horizontal application of the bill of rights: Cape Verde Constitution 2010, art 18; Ghana Constitution 1992, sec 12(1); Malawi Constitution 1994, sec 15(1); South Africa Constitution 1996, sec 8(2); Gambia Constitution 1996, sec 5(1); Kenya Constitution 2010, art 20(1); Uganda Constitution 1995, art 20(2). In the United State of America, the state action doctrine is applied to private conduct, see, e.g., Shelley v Kraemer, 334 US 1 (1948); Marsh v Alabama, 326 US 501 (1946). In Germany, the concept of Drittwirkung holds that while basic rights cannot form the basis of constitutional actions between private persons, they can be invoked in litigation between private parties through the general clauses and concepts of private law. See, e.g., Lüth Case BVerfGE 7, 198 (15 January 1958) in DP Kommers (trans), The Constitutional Jurisprudence of The Federal Republic of Germany 361–368 (1997). In Educational Company of Ireland Ltd v Fitzpatrick (No 2) [1961] IR 345, the Irish Supreme Court held that the constitutional right to freedom of association could be enforced by the employees against the employer and hence that the law that permitted a trade union to picket was unconstitutional to the extent that it purported to sanction the curtailment of freedom of association of the nine employees. For more comparative practices on horizontality, see Jorg Fedtke and Dawn Oliver (eds), Human Rights and the Private Sphere: A Comparative Study (London: Routledge, 2007).

57 For example, the Universal Declaration on Human Rights (UDHR), UN Doc A/810 (1948), recognizes rights without tying them to states. More specifically, Article 30 provides: ‘Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein’ [emphasis added]. A similar provision is found in Article 17 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221. According to the pre-ambles to the ICCPR and the ICESCR, ‘the individual, having duties to other individuals and to the community to which he belongs’, is ‘under a responsibility to strive for the promotion and observance of the rights’. Article 2(e) of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc A/34/46, enjoins states to ‘take appropriate measures to eliminate discrimination against women by any person, organisation or enterprise’. See also Articles 27–29 of the African Charter on Human and Peoples’ Rights, 1520 UNTS 217, which recognize duties of individuals, and Articles 20 and 29–30 of the African Charter on the Rights and Welfare of the Child, OAU Doc CAB/LEG/24.9/49 (1990), which recognize general and specific obligations of parents, children and other non-state actors.

58 Para 1 of the Draft UN Norms provided: ‘States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups’.

59 See note 4.

60 Ibid.

61 Ruggie, note 49, para 55.

62 1699 UNTS 1-29403, 202–208 (concluded on 3 October 1991, came into force on 28 September 1992).

63 See Article 30 of the UDHR and Articles 5(1) and 11 of the ICESCR.

64 Urbaser, note 5, para 1194.

65 Ibid, para 1195.

66 Ibid.

67 Ibid.

68 UDHR, Article 30.

69 ICESCR, Articles 11 and 5(1).

70 Urbaser, note 5, para 1199.

71 It must be noted that the tribunal accepted the argument that the BIT had to be interpreted in the light of international law (para 1200). It interpreted the BIT as recognizing the right to water and sanitation (para 1205).

72 Urbaser, note 5, para 1208.

73 Ibid, para 1207.

74 For instance, in the Reciprocal Investment Promotion and Protection Agreement between the Government of the Kingdom of Morocco and the Government of the Federal Republic of Nigeria signed at Abuja on 3 December 2016 (not yet in force), there are several progressive provisions focusing on the obligations of the investor. Article 24(2) not only specifies that ‘Investors should apply the International Labour Organization (ILO) Tripartite Declaration on Multinational Investments and Social Policy as well as specific or sectoral standards of responsible practice where these exist,’ but also in Article 18 such investing companies are obliged to ‘uphold the human rights in the host state’; and ‘to act in accordance with core labour standards required by the ILO Declaration on Fundamental principles and Rights of Work, 1998.’

75 Of course, the counterclaim by Argentina was rather unusual. It is not clear whether Argentina was claiming damages for the alleged violation of the right to water of its citizens or of the state itself. This anomaly is most evident in the computation of damages Argentina claimed which bore no relation to the impact on access to water that citizens experienced. In international law and comparative constitutional law, the right to water is enjoyed by natural persons and not by states.

76 Velásquez Rodríguez v Honduras, note 45, paras 174–177; SERAC, note 43, paras 59–60.

77 See section III.

78 It noted: ‘The Tribunal further finds that none of the provisions of the BIT has the effect of extending or transferring to the Concessionaire an obligation to perform services complying with the residents’ human right to access to water and sewage services. Respondent does not invoke any such provision to this effect. For such an obligation to exist and to become relevant in the framework of the BIT, it should either be part of another treaty (not applicable here) or it should represent a general principle of international law’. Urbaser, note 5, para 1207.

79 The tribunal observed: ‘The BIT has to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights’. Ibid, para 2000.

80 CESCR, ‘General Comment No 15: The Right to Water (Arts 11 and 12 of the Covenant)’ (20 January 2003), para 12(a).

81 Ibid, para 12(b).

82 Ibid, para 12(c)(i).

83 Ibid, para 12(c)(ii).

84 Ibid, para 12(c)(iii).

85 CESCR, ‘General Comment No 24’, note 22, para 22.

86 See, e.g., Amodu, Nojeem, Corporate Social Responsibility and Law in Africa (Abingdon: Routledge, 2020) 41–48 CrossRefGoogle Scholar; Sjåfjell, Beate, ‘How Company Law has Failed Human Rights – and What to Do about It’ (2020) 5 Business and Human Rights Journal 179.CrossRefGoogle Scholar

87 See generally Bolodeoku, Ige, ‘Corporate Governance: The Law’s Response to Agency Costs in Nigeria’ (2007) 32 Brooklyn Journal of International Law 467 Google Scholar; Douglas Branson, ‘Corporate Governance “Reform” and the New Corporate Social Responsibility’ (2001) 62 University of Pittsburgh Law Review 605; Michael Jensen and William Meckling, ‘Theory of the Firm: Managerial Behaviour, Agency Costs and Ownership Structure’ (1976) 3 Journal of Financial Economics 305.

88 Amodu, note 86, 43.

89 Otherwise known as the contractarian theory, corporate law is taken only as a fictional extension of contract law and whose business really should be focusing on facilitating the contractual interrelationships in the most efficient manner. Butler, Henry and Ribstein, Larry, ‘Opting Out of Fiduciary Duties: A Response to the Anti-Contractarians’ (1990) 65 Washington Law Review 1, 7Google Scholar; Grant Hayden and Matthew Bodie, ‘The Uncorporation and the Unraveling of the “Nexus of Contracts” Theory’ (2011) 109 Michigan Law Review 1127, 1130; and Janet Dine, The Governance of Corporate Groups (New York: Cambridge University Press, 2000) 10.

90 Amao, Olufemi, ‘Reconstructing the Role of the Corporation: Multinational Corporations as Public Actors in Nigeria’ (2007) 29 Dublin University Law Journal 312, 313 and 314.Google Scholar

91 Sjåfjell, note 86, 183 [references omitted].

92 Moyn, Samuel, Not Enough: Human Rights in an Unequal World (Cambridge, MA: The Belknap Press of Harvard University Press, 2018) 31.CrossRefGoogle Scholar

93 Ibid, 216.

94 Section 172 of the English Companies Act 2006; section 166 of Indian Companies Act 2013; sections 7(d), (k), 72(4) and 76(3) of the South African Companies Act 2008.

95 Backer, Larry Catá, ‘Considering a Treaty on Corporations and Human Rights: Mostly Failures but with a Glimmer of Success’ in Černič, Jernej Letnar and Carrillo-Santarelli, Nicolas (eds), The Future of Business and Human Rights (Cambridge: Intersentia, 2018) 106.Google Scholar