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The human rights content of the UNGPs

In contrast to their clear title, ‘Guiding Principles on Business and Human Rights’, literally suggesting a compilation of pre-existing principles, the human rights content of the UNGPs can be interpreted quite differently: directly after their endorsement by the HRC, the OHCHR celebrated the UNGPs in their news section as an ‘unprecedented step ... to provide for the first time a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity’^1 This interpretation of the UNGPs as a new standard creates the impression that their introduction entailed the creation of designated new human rights content—in other words, that the UNGPs were intended as a substantive ‘topping’ added to the existing human rights framework with special emphasis on the business and human rights nexus. The central point is mainly the alleged new obligation of corporations to respect human rights in all their activities.32

The Special Representative, John Ruggie, described the function of the UNGPs quite differently in his introductory commentary to the draft of the principles in 2011: they were constructed as a ‘common global platform for action on which cumulative progress can be built’33 and do not create any new obligations but elaborate ‘the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template’^4 In contrast to the former, content-oriented interpretation, the latter view suggests a procedural understanding of the UNGPs. They are not considered a ‘topping’, but rather assume the role of an ‘incubator’. Depending on the interpretation of the [1] [2] [3] [4]

UNGPs chosen, different expectations with regard to the function of the soft law instrument are raised, and different promises articulated.

2.3.1.1 Direct promise of soft law in the case of the UNGPs: ‘hardening’ the obligation to respect and ‘changing the rules of the game’

Under the interpretation of the UNGPs as a ‘topping’, the recourse to soft law is used as a functional preparatory step within a designated multilateral treaty-making process with intended side effects on customary international law.35 According to this classical international law understanding, soft law could best be described as ‘auxiliary regulative means’, in the sense of a preparatory step to the exclusively intergovernmental process of ‘hardening’ norms. Consequently, this soft law dimension always entails a progressive element, clearly defined by a goal that must be reached. At the same time, a limitation of regulative means is inherent to this type of soft law approach, since in most cases only one type of regulation is suitable. In concrete terms, a specific set of norms on the obligation of corporations to respect human rights in the form of an international binding treaty or covenant would seem to be the instrument of choice. The soft law stage of the norm is itself only transitional in nature, and once the ‘hard’ norm is established, the soft law instrument becomes superfluous. Furthermore, this type of soft law regulation encourages and follows a classical top-down approach for implementation.

Bearing the long history of the creation of the UNGPs in mind, it is obvious that the inclusion of new material content in the UNGPs aims precisely at realizing this typical soft law function. This at least seems to be the expectation that especially supportive civil society organizations and states parties of the global south repeatedly express in relation to the UNGPs and their role with regard to the corporate obligation to respect human rights.36 Whether such an expectation can ultimately be fully satisfied is hard to tellTh In fact, an early test case in the international law arena—the discussions regarding Ecuador’s proposal for the development of a binding instrument on the human rights accountability of corporations in the HRC in June 201438—overcame the initial hurdle of passing the HRC, but at the same time revealed the fragility of the consensus reached on the matter itself. This is further evidenced by the statements from the representatives of the USA, Italy (on behalf [5] [6] [7] [8]

of the EU), and Ireland during the discussions at the related HRC session and their almost hysterical evocation of the risks to which the achievements of the UNGPs would be exposed if this step towards hardening them were taken.[9] The biggest real risk posed by this approach seems to be the return of political deadlock in the UN’s legislative procedure, as witnessed during the debates on the Draft United Nations Code of Conduct (1988) and the Norms on Responsibilities (2003).[10]

2.3.1.2 Indirect promise of soft law in the case of the UNGPs: ‘making the existing system fully operable’

On the other hand, the view of the UNGPs as an ‘incubator’ suggests a different interpretation of the function of soft law. In this case, soft law operates more as a ‘coordinating device’.[11] [12] [13] [14] [15] Its instrumental function is not so much progressive change, but aims predominantly at managing and optimizing the existing regulative system. With regard to the UNGPs this function is expressed by the persistent invocation of the creation of a ‘level playing field’ for all competitors as a central goal. In direct contrast to the promises of the ‘hardening’ process, the regulative framework is much broader and designed to work for an indefinite period of time by assuming a clear governance role. The endorsement of the UNGPs is ‘just the end of the beginning’^2 In specific terms, such soft law governance mechanisms seem to blur the line between preparatory works and classical intergovernmental drafting processes of international law. A further characteristic of this type of procedural soft law approach is the regular transfer of expertise to an institution that acts as a focal point. In the case of the UNGPs, this function is delegated to the newly established UN Working Group on the issue of human rights and transnational corporations and other business enterprises.43 Additionally, both the regulative framework itself and the created focal point institution have an inherent ‘canonizing’ function, in the sense that they authoritatively compile and interpret the existing obligations as well as the instruments by which compliance with the obligations can be achieved.44 Nevertheless, the framework is flexible with regard to the resources applied to fulfil the purpose. As the Special Representative stated during the elaboration of the ‘Protect, Respect, and Remedy’ Framework, ‘no silver bullet can resolve the business and human rights challenge’.45 The creation of a corresponding ‘hard’ law regulation is an option, but not the ultimate or exclusive goal. The scope is wider and gives credit to all possible types of regulation and compliance mechanisms far beyond the scope of national and international law.46 It includes other regulative systems, especially ‘a civil governance system involving stakeholders affected by business enterprises ... [and] corporate governance’^ This broadening of the regulative means, demonstrated by the hybridity of the respective governance mechanisms, challenges existing legal techniques to describe its function. The most promising approaches for tackling these new legal and paralegal regulations from a theoretical perspective seem to be the emerging legal pluralism and transnational law discourses.4®

Meanwhile, the flurry of uptakes at the international and national level perpetuates not only the canonized content of the UNGPs but also their procedural nature. A cursory glance at the published national action plans on the issue of business and human rights49 reveals that ‘hard law’ regulations are the exception rather than the rule. The only exception is the evolving emergence of reporting obligations on nonfinancial matters.5° At the same time, this tendency towards more transparency can be interpreted as a push for the emergence of extra-legal accountability mechanisms in the area of civil governance, such as consumer pressure, boycotts, or the freezing of investments.51 Consequently, the monopolizing tendency of the UNGPs on the entire regulative area of the business and human rights nexus blurs the pre-existing fixed functions of soft law mechanisms and challenges the classical international law notion of soft law as a regulative auxiliary.

  • [1] See Introduction to this volume.
  • [2] ‘New Guiding Principles on Business and Human Rights Endorsed by the UN Human RightsCouncil’, OHCHR, .
  • [3] 32 Within the UNGPs, the corporate’s obligation to respect human rights is articulated in Principles11 to 24. For a critical analysis of the nature of the corporate obligation to respect human rights see thechapter by Stephanie Lagoutte in this volume.
  • [4] UN Doc. A/HRC/17/31, para. 13. 34 UN Doc. A/HRC/17/31, para. 14.
  • [5] In general to the preparatory character of soft law see: Boyle (2014): 123—5 and D. Thurer,‘Soft Law’, in Max Planck Encyclopaedia of Public International Law, ed. R. Wolfrum (Oxford: OxfordUniversity Press, 2009): para. 32.
  • [6] 36 With regard to the involvement of civil society organizations see e.g. the support of the Ecuadorresolution to develop a binding instrument for human rights accountability of corporations by the‘Treaty Alliance’—a network of more than 500 civil society organizations from all over the globe,.
  • [7] For the interplay of national and international corporate human rights obligations see e.g.: J.L. Cernic, ‘Corporations and Human Rights: Towards Binding International Legal Obligations?’, inBusiness and Human Rights, ed. M. K. Sinha (Los Angeles et al.: Sage Publications, 2013): 1—51, 26f.For an outline of possible ‘ways ahead’ see also the chapter by Stephanie Lagoutte in this volume.
  • [8] See: HRC, Elaboration of an International Legally Binding Instrument on TransnationalCorporations and Other Business Enterprises with Respect to Human Rights (UN Doc. A/HRC/26/L.22/Rev.1), 24 June 2014.
  • [9] See: HRC, 37th Meeting/26th Regular Session (Video), 26 June 2014, .
  • [10] See e.g.: N. Jagers, ‘Will Transnational Private Regulation Close the Governance Gap?’, in Devaand Bilchitz (2013): 295-328 at 295.
  • [11] See: A. T. Guzman and T. L. Meyer, ‘International Soft Law’, Journal of Legal Analysis vol. 2(2010): 171-225 at 188-92.
  • [12] UN Doc. A/HRC/17/31, para. 13.
  • [13] For its tasks and working methods see Addo (2014): 136—41.
  • [14] A recent practical example of its canonizing function can be seen in the development of a modelNational Action Plan that defines the benchmark for the member states; see .
  • [15] HRC, ‘Business and Human Rights: Mapping International Standards of Responsibility andAccountability for Corporate Acts: Report of the Special Representative of the Secretary-General on
 
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