Kishanthi Parella
Abstract
There is an important but oft neglected relationship between the problems of corporate governance and international law. Corporate managers grapple with how to respond to society’s demands that their enterprises do better when it comes to protecting people and the planet. These demands take many forms, including increased pressure for “sustainability” and “environmental, social, and governance” (“ESG”) measures. These demands are made in response to the economic, social, environmental, and political crises facing our world and a recognition of the responsibility of corporations and other business actors to contribute to their resolution. What is often unrecognized is that many of these crises occur because corporations fail to follow international law. Corporate misdeeds often arise from the violation of international law norms on human rights, environmental protection, sustainable development, and use of force, among others. International law can guide corporate managers on meeting the public’s demand for more responsible business practices if they would only follow it.
The problem is enforcement: Many corporate actors do not abide by international law because the international legal order lacks adequate mechanisms to ensure their compliance. Specifically, an international legal order based on enforcement by state actors may fail to produce robust corporate compliance because, on many occasions, governments are unwilling or unable to ensure that corporations within their jurisdictions obey international law. This Article borrows insights from stakeholder management to reveal that corporate actors frequently align their behavior to conform to the values and expectations of a range of non-state actors—corporate stakeholders—such as consumers, employees, insurers, financial institutions, investors, industry organizations, and non-governmental organizations (“NGOs”) among others. These stakeholders can address important gaps in the international legal order by offering incentives that nudge corporate actors toward compliance with international law. This Article develops a typology of enforcement strategies practiced by corporate stakeholders: predicative, facilitative, direct, and amplification. It emphasizes the multiple audiences for international law enforcement: The actions of corporate stakeholders not only change the preferences of the targets—the corporate actors—to comply with international law, but also the incentives of the intermediaries—other corporate stakeholders—to enforce international law. This Article thereby contributes to the scholarship on who enforces international law, why they do so, and if they can be relied upon to do it again. In so doing, it provides corporate stakeholders with a framework to contextualize their own individual efforts and to calibrate their efforts with those of other stakeholders for more effective enforcement of international law.
