Business and human rights: from soft law to hard law?

• Author: Ramona Elisabeta Cîrlig
• Pages: 228-246

Business and human rights: from s oft law to hard law?

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Ramona Elisabeta CÎRLIG

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Abstrac t

Over the la st deca des the internati onal community turned its attent ion towards t he

impact that busin esses ha ve on human right s, and the role they c an p lay in furt hering

human rig hts protectio n, i n light of the lea d role they play in g lobaliza tion, and the

increa singly vocal alleg ations of hu man rig hts viola tions direc ted agai nst some

multin ationals. These develop ment s trigg ered some action at the United N ations, and at the

Europea n Unio n lev el, and led to the d evelopment of interna tional soft law i n this a rea,

moving slowly t owards bi nding instruments. This p aper explores th e evolutio n of bu siness

and human rig hts, present s the cu rrent intern ational non -bi nding i nstruments, a s wel l as

some sta tes’ bindi ng init iatives in this area , and highligh ts the tenden cy to move from soft

law to hard la w, to leave the realm of vo luntary corpora te respo nsibility for the one of pure

accou ntabilit y. In this context, several solu tions are deba ted by scholars: from a bin ding

treaty, or a serie s of narrower treaties focu sed on specific area s, to a Mo del Law which

could b e used b y stat es to enact laws imposing obl igations on businesses withi n th eir

jurisdicti ons, or even add ing human rig hts in the in ternation al investment a greements and

maki ng use of the intern ational arb itration as a n enforcement mechan ism.

Keyword s: busin ess and h uman right s, OECD Guideli nes for Mul tination al

Enterpri ses, UN Global Compact, UN Guiding Principles on Busin ess and Human Right s,

UK Mod ern Slavery Act 20 15.

JEL Cla ssification: K10, K22

1. Introduction

Over the last decades the international community turned its attention

towards the impact that businesses have on human rights and the role they can play

in furthering human rights protection, in light of the leading role played by

corporations in globalization, and the increasingly vocal allegations of human

rights violations directed against some multinationals. This state of facts triggered

some action at the United Nations, and at the European Union level and led to the

development of international soft law, and even pieces of hard law requiring

businesses to respect human rights.

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This article was submitted to 6th International Conference “Perspectives of Business Law in the

Third M illennium”, 25 -26 November 2016, the Bucharest University of Economic Studies,

Bucharest, Romania.

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Ramona Elisabeta Cîrlig - Lawyer in Bucharest Bar Association, ramona.cirlig@musat.ro

Juridical Tribune Volume 6, Issue 2, December 2016

229

Traditionally there was a clear divide between human rights law, with a

focus on the states’ obligations, and business law, with a focus on economic

aspects. Nowadays the borders between the two main areas are increasingly

blurred, impacting tort law, criminal law, contract law, as well as investment and

commercial arbitration.

Businesses can be involved in human rights violations either as primary

perpetrators or as accomplices, aiding and abetting to human rights abuses

committed of third parties (usually governments or State organs or entities). Most

cases against businesses, which reach litigation, involve claims of corporate

complicity

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.

Besides the traditional domestic judicial fora where enterprises can be tried

for human rights violations, new actors emerged in this area, like NGOs, financial

institutions, OECD National Contact Points, and stock markets, which can

eventually affect a company’s reputation and its access to funding. Moreover, there

seems to be a tendency towards creating or strengthening the mechanisms available

at national and international level regarding corporate accountability for human

rights violations.

This paper explores the United Nations and other international efforts to

create non-binding, soft-law standards such as the OECD Guidelines for

Multinational Enterprises, the UN Global Compact and the UN Guiding Principles

on Business and Human Rights, as well as the states’ initiatives in the are a of

business and human rights. Moreover, the paper highlights the tendency to move

from soft law to hard law, to leave the realm of voluntary corporate responsibility

for the one of pure accountability. In this context, several solutions put forward by

scholars, are described: a binding treaty, a Model Law which could be used by

states to enact laws imposing obligations on businesses within their jurisdictions, or

even adding human rights in the international investment agreements and making

use of the international arbitration as an enforcement mechanism.

In the end, it concludes that time is not ripe for hard law in the area of

business and human rights, thus answering to the question put forward in the title

by a blunt “Not yet”.

This paper has involved desk-based research of the existing literature on

the subject, the relevant international case law, the websites of the different actors

involved, which enabled us to formulate a synthesis regarding the current status of

the subject, while highlighting the initiatives that are looming, and reaching a

conclusion on what the future holds with respect to business and human rights.

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Dr. Jennifer Zerk, Corporate liability for gross human rights abuses. Towards a fairer and more

effective system of domes tic law rem edies. A r eport pr epared for the Office of the UN H igh

Commissioner for Human Rights, 2016. Available online at: htt p://www.ohchr.org/Documents/

Issues/Business/DomesticLawRemedies/Study DomesticeLawRemedies.pdf. Last accessed on

14.11.2016.