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Consequences of the ‘governance’ approach

Mainly due to their polycentric and multilayered structure, evaluation of the consequences of a governance approach to the UNGPs for the actor/subject discussion is complex, and different aspects must be taken into consideration. In the context of our subject in this chapter, the issue of the role of corporations in the development of new international law norms is of particular interest.

The indirect norm-shaping involvement of corporations and institutionalization of multi-stakeholder dialogues

One of the most frequently given reasons why the ‘Protect, Respect, and Remedy’ Framework and the UNGPs did not share the fate of their unsuccessful regulative predecessors is the early involvement of corporations and civil society representatives as stakeholders in the drafting process^[1] [2] This multi-stakeholder approach enabled the formal integration of the formerly independent but influential lobbying discourse into the drafting process. To continue using the language of governance, from which this approach is borrowed, the multi-stakeholder approach practised in the drafting process increases the chances of the specific regulations being accepted due to the involvement of different actors as process owners.65 The emergence of multi-stakeholder dialogues is not a completely new phenomenon in the realm of international law—an early example is the Johannesburg World Summit on Sustainability in 2002—and the incorporation of such forms of participation can mainly be seen in the arena of instruments with soft law content.66 Yet, in this context the unique aspect of the UNGPs is that the multi-stakeholder approach is not limited to its own drafting process, but at the same time takes root in most of the national and international uptake and concretization processes in the business and human rights nexus. Thus, the UNGPs establish a sectorial procedural benchmark, and due to their element of ‘inclusive discourse’ are also often glorified as a desirable development towards a democratization of international law. Regarding the actor/ subject question, this tendency at least contributes to a formalization and consolidation of the role of corporations in the preparatory stages of new projects for the creation of norms relating to business and human rights.

  • [1] See e.g.: K. Buhmann, ‘The Development of the “UN Framework”: A Pragmatic Process towardsa Pragmatic Output’, in The UN Guiding Principles on Business and Human Rights: Foundations andImplementation, ed. R. Mares (Leiden/Boston: Martinus Nijhoff Publishers, 2012): 85—105 at 101—4.
  • [2] See e.g.: Addo (2014): 145f. 66 See e.g.: Benedek in Fastenrath et al. (2011): 210.
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