When a private corporation cooperates with States as well as international organizations and conduct stemming from this cooperation results in international human rights violations, who can be held legally responsible?
This Article dissects systemic deficiencies in the traditionally state-centric human rights regime and challenges its inadequacies when dealing with contemporary forms of transnational cooperative governance. Transnational cooperative governance refers to modes of cooperation in which States, and different Non-State Actors work together in addressing transnational concerns that cannot be adequately regulated by any one of these actors alone.
Using border management cooperation between HawkEye 360, the EU, and its Member States as an illustration, this Article argues that in situations of cooperative governance – involving private corporations, international organizations, and States – legal responsibility for unlawful human rights conduct under the contemporary human rights regime, cannot be apportioned effectively among the implicated parties. The diffusion of unlawful conduct between the implicated parties blurs the line between primary human rights violations and secondary rules on responsibility, making it hard to establish which entity committed a wrong capable of triggering an obligation of reparations for individual victims under international human rights law. For this reason, individual victims are ultimately left without an effective judicial remedy and ensuing reparations.
To eliminate this responsibility-gap, the Article advances “Relational Human Rights Responsibility” as an alternative approach to the international human rights regime in apportioning responsibility between actors involved in transnational cooperative governance. This theoretically grounded but ultimately policy- and litigation-oriented solution is applicable beyond the sphere of border management and designed to safeguard the relevance of international human rights law for other forms of transnational cooperative governance implicating private corporations, international organizations, and States.