Durand on Isiksel, “A Corporate Right to Have Rights?”

On Friday 13th, 2018, Professor Turkular Isiksel joined the Sawyer Seminar on Corporations and International Law to discuss her work. Isiksel, the James P. Shenton Assistant Professor of the Core Curriculum at Columbia University, began her lecture by explaining her roots. She had not started off as a scholar interested in corporations per se, but was instead a graduate student focusing her academic work on the European Union, which she had once considered a “harbinger of a new generation of cosmopolitan institutions.” She was quickly disillusioned of this optimistic notion, however, upon studying what the European Union actually did, day-to-day. She realized that the individual rights that the European Union protected most aggressively had to do with commercial mobility, and the agents who took the most advantage of this were, without surprise, business firms. She continued by highlighting that flesh and blood individuals were secondary actors in this situation.

Professor Isiksel explained that over the arc of modern constitutionalism, as an idea and as a practice, since the late 18th century, a reversal seems to be taking place whereas domestic regimes of rights model the rights of legal persons on those of natural persons. In the European Union, however, natural persons come within the realm of rights protections insofar as they act like economic actors (when they are selling services across borders, for example, or moving across borders to exercise their freedom of establishment).

Following this background information, Professor Isiksel discussed the argument from her paper, entitled A Corporate Right to Have Rights? Personhood and Corporate Agency in a Global Age. Per her research, expanding the European Union rights regime can paradoxically end up curtailing the rights of individual citizens and instead amplify the power of private firms. In this respect, she describes the European Union as an exemplar of the process that she calls the “dehumanization of human rights.” She further elucidated this argument: despite having been enacted to protect the dignity and basic interests of human rights in the post-war period, the discourse of human rights is in the process of being appropriated to protect private economic actors. This process, she clarifies, is visible in the domain of international investment law. She went on to describe herself as an earnest and naïve political theorist, and warned that this implied claim of corporate humanity needed to be taken seriously. In her paper, she concluded that none of the major theories of corporate personhood could yield a water-tight argument concerning corporate humanity, as distinct from corporate personhood. It seemed to her that the corporate take-over of human rights discourse, both in the domestic and international context, was in some ways a welcome occasion to revisit fundamental questions about the nature of human rights norms, the institutions charged with upholding them, the set of agents who are entitled to their protection and the relationship between international human rights norms and domestic basic individual rights norms. She caveated her thoughts, however, by saying that these questions are not a straight forward liberal or conservative issue, because everyone relies on corporations to pursue their values, life plans and livelihoods. The disruptions of the autonomy of these corporations would affect everyone very deeply. In her eyes, there seems to be just as much reason to protect the first amendment rights of the New York Times corporations as there is to protect the first amendment rights of a flesh and blood person.  The question is therefore finding principles and guidelines by which to delimit the bounds of corporate autonomy.

She then went on to discuss a book proposal that she had circulated to the students enrolled into the seminar, before opening the floor up to questions and further discussion.

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