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Consequences of the ‘hardening’ approach

As discussed in section 2, the paramount objective of the hardening approach is the creation of direct international law obligations for corporations regarding their human rights accountability. Such a strategy has various effects on the actor/subject discussion, which can be visualized along the approach’s process/consequences line.

Regarding the process, the business and human rights project—as the example of the Ecuador resolution in the HRC clearly shows—evolves entirely in line with the classic notion of the international law system. The HRC decided to establish an open-ended intergovernmental working group to develop a legally binding instrument for transnational corporations and other business enterprises with respect to human rights.[1] [2] [3] Hence, the community of states is the exclusive owner of the process, whereas corporations are subordinated objects of regulation. The endorsed resolution at least provides the option of a degree of secondary stakeholder involvement^1 but limits its effect to a purely consultative status. Therefore, the top-down process of this approach does not seem to have any effect at all on the evaluation of corporations with regard to the actor/subject question. If anything, one might interpret it as an attempt to strengthen the current system of non-recognition of corporations as subjects of international law.

At present, trying to determine the consequences of such a regulative undertaking is akin to gazing into a crystal ball. Taking the wording of the somewhat rudimentary Ecuador resolution as point of departure, the aim is to ‘elaborate an international legally binding instrument to regulate, in international human rights law, the activities ofTransnational Corporations and Other Business Enterprises’^ Assuming it is actually possible to realize such an instrument in future, this might result in the creation of direct international law obligations for corporations in the international human rights arena. As can be seen from the related discussions on the status of individuals in international law, this could equally be used as an argument in favour of an at least partial or limited subjectivity of corporations in international law. Given the fact that in other fields of international law direct obligations of this type already exist for corporations,[4] this new development alone, as a consequence of the UNGPs, is not necessarily a fundamental game-changer in the debate.

  • [1] HRC, Elaboration of an International Legally Binding Instrument on Transnational Corporationsand Other Business Enterprises with Respect to Human Rights (UN Doc. A/HRC/26/L.22/Rev.1),24 June 2014, para. 1.
  • [2] UN Doc. A/HRC/26/L.22/Rev.1, paras 3 and 4.
  • [3] UN Doc. A/HRC/26/L.22/Rev. 1, para. 1.
  • [4] See e.g.: S. R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, TheYale Law Journal vol. 111 (2001): 443—545 at 475—88.
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