Transnational business and human rights litigation: An Imperialist Project?

Business and human rights litigators have increasingly attempted to hold to account parent companies incorporated in the west for the extraterritorial human rights abuses committed by their subsidiaries and supply chains in the global south. This has met with the criticisms of judges and scholars calling out such attempts as imperialists. The purpose of this article is to address this anti-imperialist critique in the context of the accountability of multinational enterprises. The anti-imperialist critique is based on three fallacies. First, the equal sovereign fallacy: the assumption that developing and developed states are equally able to hold multinationals to account. Second, the transnational commerce fallacy: the acceptance of the transnational use of western laws protecting a particular market or economy, but the refusal to apply the laws aimed at preventing or remediating human rights abuses committed by commercial actors extraterritorially. Third, the public/private divide fallacy: to consider multinational enterprises as purely private actors while ignoring that they were hybrid entities regulated by both private and public laws during colonial times.