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This short analysis has demonstrated the possibility of varying interpretations of the consequences of the UNGPs on the functional use of soft law instruments within the international human rights framework. In addition to the classical preparatory function of soft law (that is expressed concretely in the expectation to harden the corporate obligation to respect human rights), the UNGPs use and foster soft law instruments to perform a pragmatic shift towards an output-oriented multilayer governance approach. This shift is characterized by institutionalized stakeholder involvement and an openness towards alternative regulative approaches;

  • 86 Bundesgesetz uber die im Ausland erbrachten privaten Sicherheitsdienstleistungen (BPS), Sept.
  • 2013, .
  • 87 See e.g.: Aaronson (2011): 51; C. Seibert, Private Military and Security Companies in International Law—A Challenge for Non-binding Norms: The Montreux Document and the International Code of Conduct for Private Security Service Providers (Cambridge/Antwerp/Portland: Intersentia, 2014): 266.
  • 88 See e.g.: D. Augenstein, ‘The Crisis of International Human Rights Law in the Global Market Economy’, Netherland Yearbook of International Law vol. 44 (2013): 41—64 at 55—9.

furthermore, it is not limited to the UNGPs, but disseminated across the sector as an underlying benchmark for follow-up projects at the international, regional, and national level.

This pragmatic shift towards new governance approaches challenges the fundamental principles of international law-making. In particular, the active role that corporations play in this regulative process clashes with the dogmatic notion of a limited catalogue of recognized subjects in international law-making processes. One response to this conflict from an international law perspective is simply to ignore it. The inherent risk of this strategy seems to be that the gap between dogmatic and regulative reality in international law would further widen. A more promising response would be to reassess the status of corporations in international law. To a certain extent, the use of soft law by the UNGPs itself offers a possible foundation for reassessment. This is possible not only by fostering the involvement of corporations in the preparation of regulations (participation in multi-stakeholder dialogues), but also by formally granting them an active role in the norm-shaping process (multi-stakeholder initiatives).

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