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The legislative breakthrough on an international level: the UNGPs and their recent regulative dissemination

In 2005, the newly appointed special representative on the issue of human rights and transnational corporations, John Ruggie, revitalized the blocked state-driven discussions on the international legal regulation of the business and human rights nexus—whether binding or non-binding. Over a period of three years, Ruggie and his team analysed the complex reasons for the failure of the previous regulative projects as well as the advantages and disadvantages of extra-legal policy initiatives. In addition, the stakeholder representatives in the process were repeatedly consulted.[1] [2] [3] [4] [5] [6] [7] The first major result of this extensive undertaking was the ‘Protect, Respect, and Remedy’ Framework/0 which was unanimously ‘welcomed’ by the HRC in 2008. A second result was the operationalization of the framework in the form of the UN Guiding Principles (UNGPs)/i realized between 2008 and 2011, which the HRC then adopted by consensus in July 2011.22 a key factor in the broad acceptance of the framework and the UNGPs within the community of states, with whom the final decision rested, was the inherent promise that both framework and principles were based exclusively on pre-existing state obligations/3 They were ‘sold’ as a compilation and clarification of existing state obligations under international law and not as the creation of new international obligations or the weakening of pre-existing norms/4 Whether this characterization is entirely correct will not be our concern in this chapter.25 Instead, we shall focus exclusively on the methodological aspects of the UNGPs and their follow-up processes.

When compared to the enormous amount of time taken initially to find any regulative framework at all to deal with the business and human rights nexus, the speed of its regulative dissemination is remarkable. Very quickly, a huge number of uptakes and follow-up projects to the ‘Protect, Respect, and Remedy’ Framework and the UNGPs were developed and endorsed at both the national and international level. Landmark uptakes include the decision of the EU to call on all its member states to adopt a national action plan for the implementation of the UNGPs in their national legislation and policy developments.26 Furthermore, the EU not only directed states in their dissemination activities, but also developed sectorial implementation guides for corporations.27 Similar developments have recently been seen at the UN level and within the OECD framework.28

  • [1] See for a self-description: J. G. Ruggie, ‘Global Governance and “New GovernanceTheory”: Lessons from Business and Human Rights’, Global Governance vol. 20 (2014): 5—17 at 6—8. For a critical assessment of these development see also the chapter by Stephanie Lagoutte in thisvolume.
  • [2] UN Doc. A/HRC/8/5.
  • [3] UN Doc. A/HRC/17/31. An interesting aspect of the UNGPs from a legislative perspective is thefact, that the legal text itself already contains ex ante its authoritative interpretation.
  • [4] HRC Res. 17/4 (UN Doc. A/HRC/RES/17/4) para. 1.
  • [5] The ‘fear’ of new binding obligations can be seen in the heated discussions at the HRC in summer 2014 related to the finally nevertheless adopted Ecuador proposal regarding the developmentof a binding instrument on business and human rights (see e.g.: L. C. Backer, ‘And a Treaty to Bindthem All: On Prospects and Obstacles to Moving from the GPs to a Multilateral Treaty Framework, aPreliminary Assessment’, Law at the End of the Day Blog, 3 July 2014, ).
  • [6] 24 ‘Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subjectto under international law with regard to human rights.’ See General Principles (UN Doc. A/HRC/ 17/31).
  • [7] For a critical analysis see e.g.: S. Deva, ‘Treating Human Rights Lightly: A Critique of theConsensus Rhetoric and the Language Employed by the Guiding Principles’, in Human RightsObligations of Business: Beyond the Corporate Responsibility to Respect?, ed. S. Deva and D. Bilchitz(Cambridge: Cambridge University Press, 2013): 78—104 and C. Lopez, ‘The “Ruggie Process”: FromLegal Obligations to Corporate Social Responsibility’, in Deva and Bilchitz (2013): 58—77. For acritical assessment regarding the legal consequences see also the chapter by Stephanie Lagoutte in thisvolume.
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