A Call for a Restriction of “Corporate Human Rights” in Competition Enforcement Procedures, and More Generally

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Albert Sanchez Graells, Francisco Marcos, Jun 16, 2014

Despite having originally been recognized with the clear and limited purpose of protecting the individual from State abuses (and, incidentally, from violations by other individuals where their rights may clash), the human rights recognized in the European Convention on Human Rights have been, to a significant degree, extended to protect corporate entities. As the European Court of Human Rights put it, the assumption underlying such a protective stretch is that the dynamic nature of the ECHR (i.e. its perception as a “living instrument'”) and an unspecified set of present-day conditions support a very flexible interpretation of the ECHR with the teleological aim of making corporations the beneficiaries of an array of “human rights.”

It is important to stress that, in our view, the extension of such protection has not been derived from a clearly defined strategy or conscious decision to actually grant such protection to corporations; rather, the patchy developments in this area have usually derived from a compartmentalized or “siloistic” approach to the analysis of specific problems in given cases. Under the very specific circumstances of those cases, good administration considerations-or, to some extent, the will to limit public administrative intervention in the context of enforcement of economic law-were usually the real underpinning rationale for the decisions reached by the Courts confronted with “corporate human rights” claims (mainly, the ECtHR and the Court of Justice of the European Union). Unfortunately, these were cloaked under human rights rhetoric.

Such creeping extensions of corporate human rights protection have resulted in a broader trend where there seems to be a full assimilation between individual human rights (and human rights of groups and associations concerned with the promotion of activities mainly centered in the individual) and corporate human rights (or rights of corporate entities, including or particularly concerned with those engaged in for-profit and economic activities). In our view, the creation of such momentum for corporate human rights has been accidental-and unfortunate.