The Human Rights Obligations of Corporate Directors

Corporate directors and officers substantially influence how well—or poorly—a corporation addresses human rights risks. But their involvement is often hidden or misunderstood, despite the reality that many corporate human rights abuses occur because of explicit choices made by their leadership that, on many occasions, inevitably lead to human rights violations. The failure to understand their role in past corporate human rights violations leads to ineffective strategies to prevent future ones as leading international, regional, and domestic laws and norms on business and human rights inadequately address the corporate governance gaps that facilitate human rights violations.

This Article identifies the critical role that corporate boards and officers play in human rights violations committed by their corporations.  It introduces a four-part typology that categorizes the different executive choices at the root of many of the most infamous corporate human rights violations today and in the recent past. These abuses arose from decisions made by the corporate directors and officers: Some neglected their oversight responsibilities; others approved deals with entities known to violate human rights; and still others created and endorsed business models that depend on exploiting human rights.  By understanding these choices and their consequences, senior management and their legal counsel can better understand the root causes of corporate human rights abuses and identify blind spots in their governance practices.

This Article also explains that corporate law and governance play a crucial role in addressing human rights violations.  Courts, victims, and advocates cannot rely exclusively on human rights law to prevent corporate human rights violations.  Instead, the root of the problem may be within corporate law and the governance decisions of the board of directors and officers. This Article explains that corporate directors and officers should prioritize human rights within their corporations for three important reasons that are derived from corporate law: legal liability for breaching fiduciary duties (Delaware driver); shareholder investigations and activism (shareholder driver); and converging expectations on good governance driven by foreign legislators, multinational corporations, international organizations, and multilateral executive coordination (global drivers).  Each of these contributions can improve both the prevention of corporate human rights abuses and accountability for it should it occur.