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The UN Guiding Principles on Business and Human Rights. A Confusing ‘Smart Mix’ of Soft and Hard International Human Rights Law

Stephanie Lagoutte

Introduction

The UN Guiding Principles on Business and Human Rights (UNGPs) restate and compile relevant human rights obligations and create soft law standards addressing both states and business enterprises.1 In this respect, the UNGPs interact with both international hard and soft human rights law, as well as with voluntary corporate social responsibility (CSR) standards, which business enterprises may choose to follow. The novelty brought by the interaction between CSR and human rights is twofold. In the field of CSR, the UNGPs are welcomed as a game-changer, as they create ‘a new CSR paradigm driven by systematic precision based on legal concept’.2 In the field of human rights, the UNGPs introduce a focus on non-state actors as duty-bearers in a set of human rights standards endorsed by a central UN human rights body, the Human Rights Council (HRC). The UNGPs directly address nonstate actors, that is, business enterprises, and outline their ‘responsibility to respect’3 human rights in their activities.4 This responsibility is to be implemented through specific procedures such as due diligence and reporting.

  • 1 UNGPs Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Annex to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, J. Ruggie (Human Rights Council, Seventeenth session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social, and cultural rights, including the right to development, Advance Edited Version Distr.: General, 21 Mar. 2011, Original: English, A/HRC/
  • 17/31).
  • 2 Y. Aftab, ‘The Intersection of Law and Corporate Social Responsibility: Human Rights Strategy and Litigation Readiness for Extractive Companies’, Rocky Mi. Min. L. Inst. vol. 19 (2014): 60.
  • 3 Guiding Principle (GP) 11 and 12. 4 GP 11 and 12.

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

While at first sight the field of application of human rights law seems to expand through the UNGPs, at least in terms of expectations by some actors, it remains in fact unchanged in terms of actual legal protection. Hence, a discrepancy may occur between, on the one hand, civil society views (and discourse) on the emergence of new obligations for states and private actors and, on the other hand, the very clear opinion emanating from states that only international treaties and customs create international obligations.5 In the case of the UNGPs on human rights and business, associating CSR discourse and actual legal obligation in the same instrument makes it difficult to distinguish the mandatory elements from the voluntary ones within the field of human rights and business. The introduction of new actors (i.e. business enterprises) as possible subjects, or at least addressees, of UN-endorsed standards only reinforces this confusion.

This chapter deals with the functions of soft law in international human rights law by examining the UNGPs. I argue that the UNGPs are a challenging, and sometimes confusing, international instrument for public international law and international human rights law in terms of form and content. Non-binding soft law provisions may have to some extent political consequences for states, but their implications as far as non-state actors, such as business enterprises, are concerned are very difficult to identify.

The main purpose of this chapter is therefore to seek clarification as to the nature and the contents of the UNGPs and analyse the effects of the emergence of such soft law instruments in international human rights law. Chapter 12 of this volume by Christoph Good also takes the UNGPs as its starting point, considering their consequences in terms of the role of new actors, law-making, and norm-shaping for private actors.

Following a short overview of the UNGPs on business and human rights and some preliminary reflections on the role of soft law in international human rights law, this chapter asks whether the UNGPs represent a new category of soft law. I finally argue that dressing voluntary standards that apply to both states and business companies in the ornament of international law language blurs the extent and contents of the legal obligations of the state.

 
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