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Home arrow Law arrow Tracing the roles of soft law in human rights

The new addressees

It is a feature of international human rights law that states are not at the centre of reciprocal engagements with other states but commit not to violate and to actively protect the human rights of individuals. Non-state actors are a known figure in human rights, both as the recipient of the protection and as a possible ‘indirect human rights abuser’ (e.g. a husband beating his wife, a company engaging in discrimination, a private militia killing people), whose negative actions states have an obligation to regulate, sanction, and redress.

The UNGPs on business and human rights directly address, for the first time, a category of non-state actors (business enterprises), in their own right, and elaborate a series of responsibilities with which they should comply.53 In this respect, business enterprises become the addressees of a set of norms endorsed by the United Nations. A UN Special Procedure (the Working Group) is in charge of ensuring the dissemination and implementation of these principles^4 by addressing business enterprises in its recommendations on implementation55 after conducting country visits.56 [1] [2] [3] [4]

This chapter is not the place to dwell on the nature of the corporate responsibility to respect human rights and on the possible existence of a corporate obligation to respect human rightsTh It goes without saying that business enterprises are paramount stakeholders and actors in the business and human rights field, but this does not give them a formal role in the creation of soft law. Likewise, the role played by these new addressees during the consultations on the UNGPs does not give them any new formal status under international human rights law. States remain the driving force in creating international law, while other stakeholders (civil society, experts, business organizations, etc.) are consulted to give expert/technical advice and feedback in the form of criticisms and/or support.

Further, business enterprises do suffer from a representation problem on the global stage. In fact, the new addressees of the UNGPs (i.e. transnational, multinational companies, or other business enterprises) constitute an endless category. The International Organization of Employers, the International Chamber of Commerce, as well as the multinationals that were active in the debates, meetings, and consultations on the UNGPs and continue to provide expertise and push agendas with the UNWG through the Annual Forum,58 cannot be considered to be representative of all the potential business addressees of the UNGPs.

The above difficulty in no way detracts from what is fundamentally new in the UNGPs: that they address new actors and recommend that they take action. Consequently, the UNWG is directly addressing business enterprises in its work, as can be seen in the UNWG country visit reports. In the three country visit reports available so far, recommendations have been directly addressed to business enterprises. Under the title ‘Recommendations to Business’, the report on Mongolia addresses seven recommendations directly to business enterprises.59 The report on the visit to Ghana has a section devoted to recommendations to business and international development partners. Two main types of private actor are directly addressed by the UNWG: business enterprises and industry, and private sector associations.60 The report on the visit to the USA differs slightly, as there is no set of recommendations directly addressed to business enterprises as specific entities. The seventeen recommendations are mostly addressed to US public authorities (government, counties, municipalities, etc.). A few specific business sectors are, however, mentioned directly: companies in the agricultural sector, coal companies, and the financial sector, as well as business associations and networks.^

  • 57 There is an abundant literature on the topic. A 2013 anthology, Deva and Bilchitz (2013), takes an in-depth look at the UNGPs, considering that the pragmatic approach followed by Ruggie led to a text that does not take the human rights obligations of private corporations seriously. They examine further how companies can be made accountable for human rights violations.
  • 58 An Annual Forum has been organized by the UNWG and held in Geneva each year since 2012.
  • 59 Report on the visit to Mongolia, Addendum to the Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, 2 Apr. 2013, A/HRC/ 23/32/Add. 1, para. 95 (a-g).
  • 60 Report on the visit to Ghana, Addendum to the Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, 6 May 2014, A/HRC/26/ 25/Add.5, paras 82 and 83.
  • 61 Report on the visit to the USA, Addendum to the Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, 6 May 2014, A/HRC/26/ 25/Add.4, para. 102, respectively (h), (l), (o), and (p).

  • [1] Resolution 2005/69 of the UN Commission on Human Rights.
  • [2] 52 Buhmann (2012): 101-4.
  • [3] Humanitarian law addresses also non-state actors (rebel forces in the Common Art. 3 to GenevaConventions), but define no obligations for them other than the one they define for any party to aconflict.
  • [4] A/HRC/RES/17/4, 6(a). 55 A/HRC/RES/17/4,6(b). 56 A/HRC/RES/17/4, 6(d).
 
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