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Consequences of the UNGPs: New Actors and Changing Law-Making Procedures?

If the pragmatic integration of corporations and other stakeholders in the business and human rights nexus into the wider human rights realm is to be fostered via soft law instruments, essential questions must be answered regarding the dogmatic foundations of such an undertaking. A crucial requirement is the clarification of the ‘actors’ theory of international law and its relation to the fundamental normative question of subjectivity in international law. Initially, it may seem purely academic to impose this discussion in relation to the pragmatic regulative approach of the business and human rights nexus. However, there are good reasons for opening this theoretical Pandora’s box: the new soft law developments and their pragmatic broadening of the regulative means touch upon key foundations of international law as a discipline, asking questions such as ‘Who is entitled to make law, and who are the legitimate participants in the game?’34 Furthermore, this development indicates a critical evaluation of acceptance of the international law system and may be considered a litmus test for the adaptability of new phenomena to the existing international legal system.

In general, the traditional canon of subjects in international law is well known and fairly short: the primary recognized subjects of international law are the states and—to a limited extent—international organizations. Subjectivity overall is thereby defined as the capability of an entity to possess international rights, duties, and the capacity to maintain its rights by bringing international claims. Furthermore, the list of criteria for subjectivity is closely linked to the notion of international legal personality, meaning the inherent capacity to enter into treaties and agreements in the international arena as well as the question of responsibility.55 [1] [2] [3]

In the field of international human rights law in particular, this classical notion was fundamentally challenged by the emergence of the individual as an explicit rights holder in international law. Supplemented by the materialization of a limited set of individual obligations in international criminal law, individuals are understood as ‘ “subjects” in some sense’, at least ‘to the extent that individuals have rights, duties and capacities under international law’.56 In recent years, the discussion regarding other non-state actors such as corporations or civil society organizations has taken a rather similar direction. The key point from a sociological perspective is the increasingly prominent role adopted by these entities in the process of developing and evolving the international legal systemTh But one may ask: what does the actor/ subject debate have to do with the topic of this volume: the emergence of soft law in general in the human rights field? The issue is an instrumental one: compared to the exclusively state-focused intergovernmental process of drafting ‘hard’ international law, regulative instruments with soft law content often show a greater ability to translate social realities into normative forms.58 This is mainly due to the fact that soft law projects profit from the fact that a wider variety of actors participate in the drafting process itself. Coming back to the specific case of the actors/sub- jects debate, soft law mechanisms have the capacity to translate the factual power of certain actors on the international level into normative terms. Although soft law instruments may only have a relative normative effect^9 they may provide an opportunity to reduce the dogmatic gap between the normative concept of subjectivity in international law and the reality of international law. This leads us to our next question, namely: how do the UNGPs influence or contribute to this essential and paradigmatic discussion?

Neither the ‘Protect, Respect, and Remedy’ Framework nor the UNGPs provide an explicit answer to the questions of whether or how non-state-actors could or should be integrated into international law in the specific realm of the business and human rights nexus. The continuous reference to the fact that the UNGPs and Rights and Obligation under International Law: Status of Corporations’, Utrecht Law Review vol. 8 (2012): 145—54 at 145; Klabbers in Jurcys et al. (2013): 33; Vincent Chetail, ‘The Legal Personality of Multinational Corporations, State Responsibility and Due Diligence: The Way Forward’, in Unite et diversite du droit international—Unity and Diversity of International Law/Ecrits en lhonneur du pro- fesseur Pierre-Marie Dupuy—Essays in Honour of Professor Pierre-Marie Dupuy, ed. D. Alland et al. (Leiden/Boston: Martinus Nijhoff Publishers, 2014): 105—30 at 107—10.

  • 56 K. Parlett, The Individual in the International Legal System (Cambridge: Cambridge University Press, 2011): 3 and 359. Regarding the specific role of the individual in International Human Rights Law see also the chapter by Stephanie Lagoutte in this volume.
  • 57 From a normative perspective, see e.g.: Chetail in Alland et al. (2014): 110—19 and P. Dumberry, ‘L’Entreprise, sujet de droit international? Retour sur la question a la lumiere des developpements recents du droit international des investissements’, Revue generale de droit international public vol. 8 (2004): 103—22; from a ‘realistic’ perspective, J. P. Paust, ‘Nonstate Actors Participation in International Law and Pretense of Exclusion’, Virginia Journal of International Law vol. 51 (2011): 977—1004.
  • 58 See e.g.: W Benedek, ‘Multi-Stakeholderism in the Development of International Law’, in From Bilateralism to Community Interest: Essays in Honour of Bruno Simma, ed. U. Fastenrath et al. (Oxford: Oxford University Press, 2011): 201—10 at 210.
  • 59 D. Shelton, ‘Normative Hierarchy in International Law’, AJIL vol. 100 (2006): 291—323 at 319.

are not to be interpreted as creating new international law obligations creates the impression that the principles have no influence on the actor/subject debate at all. However, a closer look on the concrete second-order effects of the UNGPs calls this general assumption into question. To systematically illustrate the various implications of the UNGPs’ soft law norms for the actor/subject discussion, we shall apply the same subdivision according to functional interpretation as in section 2, as different understandings of the soft law function of the UNGPs will lead to different consequences.

  • [1] C. M. Bailliet, ‘What is to Become of the Human Rights International Order in an Age of Neomedievalism?’, in Non-state Actors, Soft Law and Protective Regimes: From the Margins, ed. C. M Bailliet(Cambridge: Cambridge University Press, 2014): 95—124 at 120.
  • [2] 54 A. Bianchi, ‘The Fight for Inclusion: Non-state Actors and International Law’, in From Bilateralismto Community Interest: Essays in Honour of Bruno Simma, ed. Ulrich Fastenrath et al. (Oxford: OxfordUniversity Press, 2011): 39—57 at 40.
  • [3] See e.g.: J. E. Alvarez, ‘Are Corporations “Subjects” of International Law?’, Santa Clara Journalof International Law vol. 9 (2011): 1—35 at 3; M. Pentikainen, ‘Changing International “Subjectivity”
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