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

Author:Elisabeta Cîrlig
Position:Lawyer in Bucharest Bar Association
Pages:228-246
SUMMARY

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 furt hering human rights protection, in light of the lead role they play in globalization, and the increasingly vocal allegations of human rights violations directed against some multinationals. These developments triggered some action at... (see full summary)

 
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Business and human rights: from s oft law to hard law?
1
Ramona Elisabeta CÎRLIG
2
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 pl ay 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, t o 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 addi ng 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.
Keywords: 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.
1
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.
2
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
3
.
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.
3
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.

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