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Mission Creeps. The (Unintended) Re-enforcement of the Actor’s Discussion in International Law through the Expansion of Soft Law Instruments in the business and Human Rights Nexus

Christoph Good

Introduction

The phenomenon of a rising number of mechanisms with soft law content in international law in general1 and in the human rights arena in particular over the last few decades can be interpreted as a shift in the regulative paradigm of international law.3 Especially in the field of human rights—to some extent containing a category of absolute rights4—this development raises various questions, primarily regarding the effectiveness of these non-binding forms of regulation, their impact on the existing human rights protection framework, and their interaction with pre-existing binding treaty norms.5 Not surprisingly, most legal scholars therefore predominantly focus on the dichotomy of soft versus hard law and the direct consequences for the actual level of protection of international human rights.

Following Stephanie Lagoutte’s chapter, which focuses primarily on understanding the exact nature of the UN Guiding Principles on business and human rights and disentangling their contents, this chapter seeks to address the cross-cutting issue of

  • 1 A. Boyle, ‘Soft Law in International Law-Making’, in International Law, ed. M. D. Evans (Oxford: Oxford University Press, 2014, 4th edn): 118—36, 118f.
  • 2 Regarding the number of soft law instruments see for example the OHCHR overview of universal human rights instruments on: .
  • 3 T. Meyer, ‘Collective Decision-Making in International Governance’, AJIL Unbound blog [Agora: The End of Treaties], 28 Apr. 2014, .
  • 4 O. de Schutter, International Human Rights Law (Cambridge: Cambridge University Press, 2014, 2nd edn): 295ff. and N. Mavronicola, ‘What is an “Absolute Right”? Deciphering Absoluteness in the Context of Article 3 of the European Convention on Human Rights’, Human Rights Law Review vol. 12 (2012): 723-58.
  • 5 D. Shelton, ‘Human Rights’, in Commitment and Compliance: The Role of Non-binding Norms in the International Legal System, ed. D. Shelton (Oxford: Oxford University Press, 2003): 345^64.

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

the business and human rights nexus as a paragon for recent soft law developments in international human rights law.[1] To demonstrate the apparently unintended side effects of newly developed human rights soft law instruments, the chapter describes the emergence of specific but functionally varying soft law-related mechanisms in the field of business and human rights and analyses their regulative consequences (section 2). Based on these general remarks, special attention is given to the peculiar effects of new developments on the issue of recognition of actors/subjects in international (human rights) law and the correlated changes in norm-shaping for private actors. Furthermore, we will examine whether these new soft law-driven intra-human rights developments have effects on fundamental paradigms of public international law (section 3).

  • [1] See e.g.: the UN Guiding Principles on Business and Human Rights (UN Doc. A/HRC/17/31) adopted in 2011, the new human rights chapter within the OECD Guidelines for MultinationalEnterprises revised in 2011 () or the VoluntaryPrinciples on Security and Human Rights () establishedin 2000.
 
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