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


The UNGPs are an important development in the global governance of business.[1] They are not merely a governance instrument or simple manual; they may only constitute international secondary soft law, but the formality of their endorsement brings them within the realm of international law. As an international soft law instrument, the UNGPs represent a major innovation, as they address business enterprises which are actors but not (yet) fully-fledged subjects of international law, define a form of commitment for them, and recommend precise action to fulfil this responsibility.

From the outset, the UNGPs are standard-filling as they unpack and explain the human rights obligations of states in the field of human rights and business. In doing so, they also touch on unexplored areas of international human rights law and seem to aim, in the long term, at creating new standards. The UNGPs are a first step towards expanding state obligations to protect (establishing obligatory due diligence and HR reporting, or mandatory standards for situations where the state plays a predominant role in the conducting of business activities, etc.) and formulating an actual human rights obligation for business enterprises, so far in the form of a responsibility to respect. This last point requires an extensive conceptual rethink of international law and a massive amount of political will within the international community. Its realization in practice would also require major adjustments to domestic and international legislation on criminal, administrative, and civil jurisdiction and procedures.

It is too early to predict the effects of such an instrument. As the UNGPs mostly take stock of pre-existing developments within the field of human rights and business, the effects of the UNGPs as such are difficult to trace. In this respect, the establishment, work, and, in June 2014, the mandate renewal of the UNWG on human rights may make a difference. In addition to being a focal point for human rights and business within the human rights system, the UNWG is in a unique position to mainstream issues with potentially considerable effects, push topical agendas, and feed into other processes and initiatives at the international, regional, and domestic level. Through country visits, the working group has the opportunity to remind states of their human rights obligations as well as to recommend a large range of actions that should be undertaken by both state and non-state actors. By promoting national action plans and providing guidance to states to develop such plans, the working group is building on existing practice as well as enhancing the tool that it deems paramount to the dissemination and implementation of the UNGPs. More recently, the UNWG is pushing the human rights and business agenda in the UN, for instance by promoting the mainstreaming of issues relevant to human rights and business in the work of UN treaty bodies and in the Universal Periodic Review.

Needless to say, the role played by non-legally binding standards in the field of human rights and business has been colossal and paramount to the developments leading to the endorsement of the UNGPs by the HRC. There is indeed nothing problematic about non-binding instruments as such. As Shelton explains, these standards ‘offer a flexible and efficient way to order responses to common problems. They are not law and they do not need to be in order to influence conduct in the desired manner.’85 A soft law instrument such as the UNGPs does not reduce or undermine the pre-existing legally binding obligation for states to protect human rights. It might even pave the way towards creating, in an admittedly distant future, new international obligations for both states and business enterprises. However, there is a danger that such state obligations may become diluted by the declaration of new duties and responsibilities, which amount, when unpacked, to a long list of possible actions to be taken by various actors.86 Therefore, all actors must focus on the principal matter in hand: the protection of human rights. This means that business enterprises must, as a minimum, respect the laws of the countries in which they are operating and states must regulate, monitor, and redress the human rights- related abuses that businesses may commit within their jurisdiction.

Soft law blurs some of the lines drawn by international human rights law; in some cases, it works towards reducing state commitment; in our case it seeks to expand the field of human rights at the risk of creating misperceptions among all stakeholders and false expectations among right-holders. When actual human rights violations occur, the disputes are, so far, ultimately settled by state organs (courts of justice). In such situations, as Prosper Weil puts it, there is no hesitation as to which standards apply: ‘on one side of the line, there is born a legal obligation that can be relied on before a court or an arbitrator ...; on the other side, there is nothing of the kind.’8? This remains true today: no matter how blurred the frontiers between hard law and soft law have become, states continue clearly to perceive the difference. [2] [3] [4]

  • [1] S. Aaronson and I. Higham, ‘ “Re-Righting Business”: John Ruggie and the Struggle to DevelopInternational Human Rights Standards for Transnational Firms’, Human Rights Quarterly vol. 35(2013): 333-64.
  • [2] D. Shelton, ‘International Law and “Relative Normativity” ’, in International Law, ed. M. D.Evans (Oxford: Oxford University Press, 2010): 169.
  • [3] 86 S. Lagoutte, ‘New Challenges Facing States within the Field of Human Rights and Business’,Nordic Journal of Human Rights vol. 33 (2015): 158—80.
  • [4] Weil (1983): 417.
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