The relationship between corporations and international human rights is an uneasy one. Efforts have been made to harness the benefits of corporations to facilitate the sustainable development of states, while simultaneously attempting to close the gap between corporations’ economic goals and their adverse impacts on human rights. These efforts have produced some crucial, yet incomplete, progress: defining expected conduct for corporations in soft-law, increasing reliance on human rights due diligence regulations, and some corporate accountability at the national court levels.

Yet while international law focuses on defining corporate accountability for human rights, it has tended to overlook the growing role of corporations as lawmakers in international human rights law. Using a variety of mechanisms, corporations are shaping myriad human rights ranging from freedom of expression to the right to a healthy environment.

International law remains primarily state-centric: only states promulgate treaties, generate custom, and otherwise produce international law. As creatures of domestic law, corporations are rule-takers and thought not to possess international legal personality. Yet through a variety of mechanisms, including norm entrepreneurship, interpretive authority, lobbying, and the creation of private adjudicative mechanisms, corporations are determining the shape of international human rights.

The Governance Gap as Invitation

The background to the corporation-international human rights problem is likely familiar to most. The UN Guiding Principles on Business and Human Rights (UNGPs), drafted by John Ruggie, identified a “governance gap” in which corporate power has expanded through increased use of subsidiaries and supply chain networks, yet the international legal infrastructure to hold them accountable has not evolved at the same rate. The UNGPs expect that corporations will respect human rights as a way to mitigate this gap, although the responsibility is rooted in societal expectations rather than a legal obligation. This has resulted in the persistence of the governance gap and efforts to go further – through mandatory due diligence legislation, binding treaty negotiations, and parent company liability in national courts – have failed to fully close the gap.

Yet while attention has been focused on corporate accountability for human rights, less attention has been paid to the growing role of corporations as rule makers in this arena. Through norm entrepreneurship; norm interpretation; lobbying; and adjudication corporations are constructing – or at least meaningfully shaping – international human rights law.

From Norm-Takers to Norm-Entrepreneurs

Norm entrepreneurs are actors who possess clear conceptions of acceptable or desired behaviour within their social context. Microsoft took on this role in relation to the right to privacy in the digital sphere. In the late 1990s, the right to privacy was still mainly focused on state interference, however experts began developing the Platform for Privacy Preferences (P3P) to help users control and manage personal information shared with Internet sites. Microsoft became an early adopter of P3P and worked with the OECD’s Working Party on Information Security and Privacy to develop privacy guidelines. It was also very involved in the EU’s legislative process that led to the General Data Protection Regulation – including defining the scope of the “right to be forgotten”, proposing amendments, and suggesting legislative text that was ultimately reflected in the final version of the legislation.

Norm entrepreneurs serve as pivotal agents in norm development by highlighting attention toward such issues or by creating them. Once the norm is more widely accepted, it can be internalized by actors, which is often facilitated through its legalization. By participating in the technical and policy standards that drove a common understanding of the right to privacy in the digital sphere, adopting these standards into its products, and then participating in its legal framing, Microsoft helped construct the right to privacy in the digital sphere, doing so by operating alongside, rather than below, the formal lawmaking process.

Interpretation as Lawmaking

Corporations are further using interpretation – the discerning or clarifying of meaning – as a means to construct international human rights law. Human rights due diligence (HRDD) provides a clear illustration of this practice.  Although the UNGPs articulate the broad contours of HRDD, it still must be translated into practice. Translation can reshape the meaning embedded in law, reconfigure its conceptual associations, and transform the outcomes it produces.

This practice has enabled corporations to interpret the corporate responsibility to respect human rights very differently from what was contemplated by the UNGPs, which requires businesses to refrain from harming human rights and addressing adverse impacts. Some businesses have interpreted this to simply require a due diligence process, while others have recast it as an organizational performance tool or as an audit procedure. Moreover, the UNGPs specify that due diligence should extend across the entirety of a business’ supply chain and severe human rights impacts should be prioritized. Yet in practice, corporations often limit due diligence to first-tier suppliers and focus on convenient or high-profile issues rather than severe harms.

The problem may be compounded when corporations outsource their translation practices to third-parties. Auditing companies interpret legal norms on behalf of companies and convert raw data into indicators and risk scorecards using a guidance provided by a private audit data-sharing platform. Additionally, companies translate metrics provided by private audit platforms into their disclosure documents, which relies heavily on reports from that platform, and very little supporting data. Similarly, companies often outsource their due diligence obligations to consultants who interpret the law for them while others rely on due diligence reports from online platforms, some of which do not even rely on the UNGPs as part of their methodology.

The result is a double layer of private interpretation: corporations shape the practical meaning of legal obligations while outsourcing that interpretive authority to intermediaries whose methodologies operate with even less transparency or accountability than the corporations themselves.

Lobbying and Corporate Capture

Lobbying – attempting to influence the design, implementation, and execution of public policies and regulations – is another tool being used by corporations to help construct international human rights law. The EU’s Corporate Sustainability Due Diligence Directive (CSDDD) is a good example of this. The Directive was first introduced in June 2024, already reflecting a watered-down version of earlier drafts with corporate lobbying having successfully removed provisions dictating corporate responsibility for failing to consider human rights in board decision-making or implementing human rights due diligence.

In an attempt to improve European competitiveness, the European Commission (EC) began revising the Directive under the Omnibus package and once again it became a subject of corporate lobbying. The EC hosted closed door meetings with 31 companies, including companies from the oil and gas sector and financial and insurance industries, and did not conduct any public consultations. ExxonMobil alone spent €3.5 to 4 million, in a year, and deployed 15 lobbyists specifically to dismantle the CSDDD. It targeted national governments and held 18 meetings with Members of the European Parliament in a single year. It also lobbied Congress in the US to block the legislation and urged the Trump administration to incorporate the Directive into EU-US tariff negotiations as a non-tariff barrier. In addition to Exxon, several other multinational corporations employed similar tactics to lobby against the CSDDD.

As a result of corporate lobbying, several changes were made to the CSDDD. The requirement of a climate transition plan was eliminated, the scope of due diligence was narrowed to only direct suppliers and the scope of the Directive was limited only to the largest companies, among other changes. In effect, corporate lobbying helped rewrite the CSDDD.

Adjudication Without Democratic Mandate

Perhaps the most institutionally novel development of corporations helping to construct human rights is the use of corporate adjudication mechanisms. Meta’s Oversight Board is a prominent example of such a practice. Established in 2020, the Oversight Board renders independent decisions on content issues and issues policy advisory opinions on Meta’s content moderation policies. It determines content issues on the basis of freedom of expression but also considers how international human rights are implicated in its cases.

The Board employs a considerable amount of discretion in interpreting international human rights law. For instance, it applies Article 19(3) of the International Covenant on Civil and Political Rights – which was intended for states – onto a private entity, then reads it selectively, honouring only substantive legality requirements while ignoring the procedural obligations the provision also imposes. It has also developed its own norms for freedom of expression and tends to employs a selective approach to using international human rights law. That is, it relies on non-binding UN General Comments and Special Rapporteur reports while largely ignoring other sources of international human rights law. Additionally, it ignores rules for treaty interpretation and fails to specify the standards of review it relies upon.

At the same time, the Board is mindful of its role as a lawmaker. It cites to its own decisions to support its legal analysis in new cases and strategically chooses cases to hear that have “precedential impact”. In doing so, it prioritizes cases that raise “major implications for applying international human rights standards to moderating content”. The result is a body actively shaping human rights norms in the digital sphere, with methodological limitations, which could have broader implications on international law’s understanding of those rights.

Conclusion

It seems clear that corporate actors have become influential participants in the production of human rights norms. This development may offer the promise of pragmatic solutions, but it may also be contributing to a perilous privatization of international human rights law.

On the one hand, corporations contributing to human rights norm creation may help to gap-fill, a function of importance given the UNGPs’ status as soft law. In particular, where international law cannot keep pace with technological developments, corporations can help fill the resulting normative and legal vacuums that arise.

On the other hand, by constructing human rights norms, corporations may be exercising quasi-governmental policy functions despite lacking both democratic legitimacy and accountability to which public bodies are subject. Additionally, when they shape human rights norms, those norms risk being diluted or designed around financial interests rather than human dignity. If the corporation holds a dominant market position, its interpretations may also gain acceptance through its market power, even if the legal reasoning is not sound. Standards developed under these conditions may face little resistance as a result of the corporation’s dominance.

Robust mechanisms are needed to subject this type of corporate norm-making to democratic oversight and legal constraint. Without it, the result may be international human rights law that reflects private interests rather than collective values.