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Business and Human Rights in the Post-Westphalian Era: A Democracy-Based Assessment

The modern concept of human rights and its accompanying international legal regime were developed under the umbrella of the Westphalia international governance framework. Globalization, though, puts into question some of the fundamental pillars of Westphalia, particularly its state centric premise. As the regulatory power of the state declines, corporations, in conjunction with other non-state agents, engage in the provision of public goods and participate in the regulation of the vacuums left behind by waning states. Globalization forces us to re-think, not only the way governance is exercised at the international political arena but, more crucially to this project, how and who should assume the responsibilities derived from human rights in a context where the state is not the exclusive actor anymore.

Scholars in the business and human rights debate (BHR) have discussed extensively about why should corporations assume these responsibilities, and what should be their ideal scope. Today, the assumption that corporations do have human rights responsibilities is almost undisputed. Yet, how should corporations discharge these responsibilities? The BHR field has remained relatively silent on this question. As the debate expands, this question becomes highly topical to address. This is the central research question of this dissertation.

The main BHR responsibilities accounts have tended to adopt a commoditized conception of human rights. As a consequence, the guidance they offer on the question of how to realize the corporate human rights responsibilities is limited. Typically, human rights victims are presented as passive agents in the realization of their rights, while the responsibilities of corporations are conceived to start and end with the provision of certain goods, capabilities or resources. A democracy perspective on the BHR debate will reveal that such materialistic approach to the realization of human rights responsibilities strengthens, rather than weakens, potential patterns of injustice and domination. Human rights are not exhausted by the provision of certain goods. They also have a political dimension that must be realized. Such dimension entails that we all have the right to demand and provide justification for all those institutions that bind us. This is what the philosopher Rainer Forst labels as the basic right to justification.

Any just and complete realization of human rights inexorably requires realizing this basic right. Thus, this dissertation defends the thesis that when corporations are identified as human rights duty bearers they should discharge their responsibilities guaranteeing, in the first place, the right to justification. The best way to comply with this provision, I argue, is for corporations to create institutions or initiatives that facilitate or grant the right to justification to the victims of human rights abuses. These institutions, I claim, should be constructed around four premises: they should be victim-centered, able to adapt to different political and social contexts, oriented towards solving the injustices that led to the human rights violations, and functioning along the parameters of deliberative democracy.