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Soft law approaches in the UNGPs: monolithic or network functions?

Due to their explicitly non-binding nature, the UNGPs can easily be situated within the broad and expanding realm of soft law in the human rights field.29

  • 26 European Commission (2011), para 4.8.2. Similar issues are currently discussed in the broader framework of the Council of Europe. In 2011, the Committee of Ministers requested the Steering Committee for Human Rights (CDDH) to elaborate a study on the feasibility and the added value of new standard-setting work of the Council of Europe on corporate social responsibility in the field on human rights. At the beginning of 2013, the Committee of Ministers requested the CDDH to elaborate, by the end of 2015, a political declaration supporting the UNGPs as well as a non-binding instrument, which may include a guide of good practice, addressing gaps in the implementation of the Guiding Principles at the European level. To perform these tasks, a Drafting Group on Human Rights and Business (CDDH-CORP) has been set up. In their third meeting the CDDH-CORP articulated inter alia the recommendation, that all Council of Europe members participate in the developments of national action plans regarding the implementation of the UNGPs; see CDDH-CORP (2014) R3, Appendix III, para. 4 (with further clarification in the Appendix to the Recommendations’, para. I b). For further information see .
  • 27 Until now specific guidance for the sectors; ‘oil and gas’ (European Commission, Oil and Gas Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights (Brussels, 2013), ); ‘information and communication technologies’ (European Commission, ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights (Brussels, 2013), ), and ‘employment and recruitment agencies’ (European Commission, Employment and Recruitment Agencies Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights (Brussels, 2013), ) were created. Furthermore, a more general report focused on the implementation of the UNGPs in small and medium size enterprises (European Commission, My Business and Human Rights: A Guide to Human Rights for Small and Medium Enterprises (Brussels, 2013), ).
  • 28 See e.g.: M. K. Addo, ‘The Reality of the United Nations Guiding Principles on Business and Human Rights’, Human Rights Law Review vol. 14 (2014): 133—47 at 142—5. Regarding the UN, a landmark decision was the mainstreaming of the UNGPs within all UN institutions in 2012 (UN Doc. A/HRC/21/21). One of the most recent uptakes can be seen in the Principles for Responsible Investment in Agriculture and Food Systems, an international soft law agreement, approved by the Committee on World Food Security in Oct. 2014 ().
  • 29 Regarding the question whether the UNGPs are soft law at all see e.g.: J. Nolan, ‘The Corporate Responsibility to Respect Human Rights: Soft Law or not Law?’, in Deva and Bilchitz (2013): 138—61.

Furthermore, the rush of uptakes of the UNGPs easily accomplishes the criterion of ‘traction’ introduced earlier in this volume.30 However, not much is gained by this broad categorization with regard to the mechanism’s legal effects. This leads to the central question of this volume, namely: what consequences for international human rights law follow from the use of soft law norms and their implementation in legal instruments in this specific area? To properly answer this question, some introductory statements must be made. First and foremost, however redundant this may initially seem, it is essential to clarify the nature of the specific human rights content established by the UNGPs. Answering this question is a necessary step if we are to evaluate what concrete function soft law norms and their instrumentaliza- tion have in this specific context and what consequences they exert on the material dimension of human rights law in relation to business activities.

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