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Nolan, Justine --- "The Corporate Responsibility to Respect Human Rights: Soft Law or Not Law?" [2013] UNSWLRS 72

Last Updated: 10 October 2013

THE CORPORATE RESPONSIBLITY TO RESPECT RIGHTS: SOFT LAW OR NOT LAW?



Justine Nolan, University of New South Wales

Citation

This paper is to be published in S Deva and D Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? Cambridge University Press, (Nov. 2013). This paper may also be referenced as [2013] UNSWLRS 72.

Abstract

This paper is primarily focussed on examining the role (and effectiveness) of soft law in regulating businesses with respect to human rights. Section I grapples with developing a general definition of soft law, and in doing so, examines both the advantages and limitations of soft law regulation. Section II provides an overview of the significant soft law developments in the business and human rights field. Given the diversity of the principal constituents in this sector – States, corporations and NGOs - it is perhaps not surprising that soft law has been a principal default mechanism for connecting human rights and business in recent decades. Section III focuses on the SRSG’s concept of the corporate responsibility to respect as embodied in the Guiding Principles and its status and significance. If considered soft law, then what distinguishes it from prior soft law instruments and to what extent is it likely to be more or less effective than previous attempts to curb corporate human rights violations?

While this paper highlights the many limitations of using soft law to hold corporations to account for human rights, it also recognises that reliance on soft law can result in incremental change. Soft law is not necessarily commensurate with soft results. Achieving something, even if not perfect, can be preferable to achieving nothing. However, for soft law (and in particular the corporate responsibility to respect as set out in the Guiding Principles) to be an effective and sustainable rights protection mechanism, I argue that there is a need for a more intimate connection to ‘hard’ - that is legally binding - law. This could be achieved in various ways but one is to require States to oblige corporations to comply with the due diligence component of the responsibility to respect. In its current format, the corporate responsibility to respect embodies a high degree of fragility and flexibility but what is needed most urgently in this field is greater robustness and uniformity that not only encourages but requires corporations to, at a minimum, respect human rights.



INTRODUCTION





In June 2011 the United Nations’ (UN) Human Rights Council endorsed the Guiding Principles on Business and Human Rights.[1] The Guiding Principles are the culmination of six years work by the Special Representative for Business and Human Rights (the SRSG) and are designed to operationalise the ‘Protect, Respect, Remedy’ Framework (the Framework) established by the SRSG in 2008. [2] Both the Framework and the Guiding Principles highlight the corporate responsibility to respect human rights as a baseline expectation for all companies. [3] The Guiding Principles note that the corporate responsibility to respect ‘means that they [companies] should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved’.[4] It is arguable that the limitations of this concept – that of a corporation’s responsibility (not obligation) to respect (but not protect) rights - are more readily apparent than its promise. To some, the notion of the responsibility to respect rights based on social expectations is an inadequate approximation of the nature and scope of business’ relationship with human rights and simply reinforces the acceptance of a ‘world where companies are encouraged, but not obliged, to respect human rights’.[5] In the last 30 years, attempts to regulate the negative impact of business activities on human rights have increased. While a range of diverse tactics has been employed (with varying degrees of success) there has been a wide degree of reliance on soft law mechanisms both to prevent and monitor corporate rights violations. The SRSG commented in 2011 that the corporate responsibility to respect rights is a notion that has been gradually emerging and is ‘acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility, and now affirmed by the Human Rights Council itself.’[6] The development of such soft law instruments to police corporate conduct has been marked by the involvement and increasing ‘regulatory’[7] role played by non-state actors such as non-government organisations (NGOs), trade unions and corporations themselves. While there is no entrenched definition of what constitutes soft law, in the context of international law it might commonly include an ‘international instrument other than a treaty that contains principles, norms, standards or other statements of expected behaviour.’[8] In the business and human rights field it might also include widely accepted codes of conduct that have been developed by a group of stakeholders as a mechanism to prevent corporate rights abuses.[9]



Soft law has played a prominent role in the development of the SRSG’s concept of why and how a corporation might be responsible for human rights. Both the Framework and the subsequent Guiding Principles stress that the corporate responsibility to respect human rights is based on social expectations (rather than a legal obligation).[10] Such reliance on soft law to ground a corporation’s responsibility for human rights reflects the SRSG’s pragmatic view that any road toward developing an international treaty, which would place binding obligations on business with respect to human rights was one better not travelled at the present time.[11] The Guiding Principles thus appear to be the latest in a long line of soft regulatory techniques used to encourage, but not require, a corporation to comply with human rights.

This paper is primarily focussed on examining the role (and effectiveness) of soft law in regulating businesses with respect to human rights. Section I grapples with developing a general definition of soft law, and in doing so, examines both the advantages and limitations of soft law regulation. Section II provides an overview of the significant soft law developments in the business and human rights field. Given the diversity of the principal constituents in this sector – States, corporations and NGOs - it is perhaps not surprising that soft law has been a principal default mechanism for connecting human rights and business in recent decades. Section III focuses on the SRSG’s concept of the corporate responsibility to respect as embodied in the Guiding Principles and its status and significance. If considered soft law, then what distinguishes it from prior soft law instruments and to what extent is it likely to be more or less effective than previous attempts to curb corporate human rights violations?

While this paper highlights the many limitations of using soft law to hold corporations to account for human rights, it also recognises that reliance on soft law can result in incremental change. Soft law is not necessarily commensurate with soft results. Achieving something, even if not perfect, can be preferable to achieving nothing. However, for soft law (and in particular the corporate responsibility to respect as set out in the Guiding Principles) to be an effective and sustainable rights protection mechanism, I argue that there is a need for a more intimate connection to ‘hard’ - that is legally binding - law. This could be achieved in various ways but one is to require States to oblige corporations to comply with the due diligence component of the responsibility to respect. In its current format, the corporate responsibility to respect embodies a high degree of fragility and flexibility but what is needed most urgently in this field is greater robustness and uniformity that not only encourages but requires corporations to, at a minimum, respect human rights.

1. SOFT LAW OR NOT-LAW?



Over a decade ago Muchlinkski argued that ‘a climate of expectation as to proper corporate conduct should be built up through both “soft law” and “hard law” options. Developments in “soft law” through corporate and NGO codes of conduct are already creating a climate in which it might be expected that the management of MNEs [multinational enterprises] includes a conscious assessment of ...human rights implications...’.[12] However, what has been apparent since Muchlinkski’s statement in 2001 is that while developments in the soft law regulation of corporations with respect to human rights have continued to expand and build up this climate of expectation, the development of hard law has lagged behind. The increasing relevance of soft law in this sector is symptomatic of a broader ‘worldwide shift from government to governance’ and is marked by ‘the ascendancy of a new system in which regulation is produced in a participatory fashion by public and private actors collaborating with each other.’[13] This is particularly true in the business and human rights field where corporations, NGOs and States are all influential (though not necessarily equal with each other) in the formulation of guidelines, codes and principles that detail the relevance of human rights standards to business activities. Soft law tends to embody a diffusion of governance which does not render governments powerless but ‘nevertheless throw[s] up challenges of coordination and regulation’.[14]

Commentators vary in their opinions as to the indicators that might be used in classifying particular instruments as soft law. As Chinkin notes, ‘[t]here is a wide diversity in the instruments of so-called soft law which makes the generic term a misleading simplification.’[15] Shelton agrees that the line between what might be loosely defined as law and not-law is blurred but attempts a definition of soft law by noting that it ‘usually refers to any international instrument other than a treaty that contains principles, norms, standards or other statements of expected behaviour.’[16] Others argue for the inclusion of some treaties as soft law, albeit only those treaties with soft obligations.[17] For some, it is easier to adopt a negative approach and attempt to define soft law by what it is not rather than what it is. Boyle argues for example, that soft law can be determined by the status of the obligations it imposes. He suggests that soft law is not (legally) binding, consists of general norms or principles but not rules, and is not readily enforceable through binding dispute resolution mechanisms. However he also concedes that any clear demarcation between hard and soft law is challenging.[18] It is particularly difficult to achieve a clear definition in the human rights arena (although such complexities are not exclusive to human rights, and also occur, for example, in the field of international environmental law)[19] where treaties are apt to include ‘soft’ obligations, such as undertakings to strive to cooperate or agree to take steps which further blur the line between soft and hard. What is clear, is that the differentiation between soft and so-called hard (or legally binding) law is not binary but one that should be viewed as developing on a continuum.

Soft law may develop partly by default and partly by design. Reliance on soft law, whether in this field or others, has not emerged simply because there is a lack of anything better (although there is no denying that can be - and indeed has been in this field - a significant factor in the development of soft law). The use of soft law can be a deliberate choice and often more attractive to the relevant stakeholders (in this case particularly to business and governments alike) because it may contain aspirational goals that aim for the best possible scenario with few constraints if such goals are not met. Thus, it is easier to achieve consensus in drafting a document that outlines these types of ‘commitments’.

Following from the political divisiveness generated by the debate around the UN Norms,[20] achieving consensus was highly prized by the SRSG throughout his term.[21] Part of his preference for a soft law approach in developing the corporate responsibility to respect, was perhaps because the informal nature of soft law allows for a broader group of participants (including non-state actors) in both its development and enforcement.[22] Soft law can generally be formed in a far more timely manner than a treaty: this is perhaps exemplified by the field of business and human rights where waiting for the development of a comprehensive treaty holding corporations accountable for human rights abuses might be akin to waiting for Godot. [23] Soft law can serve as a precursor to the introduction of hard law. For example, it might be used as a testing ground for the development of new mechanisms of accountability and thus function as a useful and necessary tool for the development of hard law that formally binds parties.

This paper opts for a broad definition of soft law that includes those instruments categorised as ‘non-binding or voluntary resolutions and codes of conduct formulated and accepted by international and regional organisations, along with statements prepared by individuals or groups in a non-government capacity, but which purport to promote international principles’.[24] This would include for example, codes of conduct developed not only at an international level but also at a more micro-level such as by multi-stakeholder groups that rely on and profess to promote international rights. This paper excludes treaties from soft law on the basis that from the outset they set out to impose legally binding obligations. The definition of soft law embraced in this paper distinguishes treaties from instruments such as resolutions, principles and codes because unlike a treaty they are deliberately cast in a non-legally binding framework. Thus Boyle’s point, that soft law can be characterised by the status of the obligations it imposes – distinguishing between an intention to legally bind (or not bind) stakeholders – is a useful one. While over time the effectiveness of soft law instruments in ‘binding’ stakeholders to an agreement or an agreed course of action, may be commensurate with, or exceed that of hard law regulatory mechanisms (such as treaties) the relevant point of distinction here is the intention (or not) to legally bind parties to the instrument at the time of its conception.

The binding/non-binding nature of soft law is contentious. Characterising soft law as non-binding might be regarded by some as accurate only in the strict legal sense. Soft law can include ‘mechanisms [that] provide guidelines and principles which, while not legally binding, have force by virtue of the consent that governments, companies, and other civil society actors accord them’[25] Codes of conduct, developed by multi-stakeholder groups in the business and human rights field, might be reflective of the varying norms and societal expectations concerning corporations and their responsibilities and while not legally binding may have ‘force’ by the degree of consensus and acceptance linked to that instrument .

Thus to argue that soft law is simply not-law is perhaps too simplistic. The evolution of soft law instruments in the business and human rights sector has created at minimum, standards of expected conduct that, while not setting out to be legally binding, may have normative value that is intended to prescribe expected standards of behaviour. Wide-spread acceptance of a particular instrument may not turn soft law into legally binding principles but may nevertheless establish standards which ‘socially bind’ corporations to human rights. How effective this is in regulating corporate behaviour with respect to human rights is a key question. In the absence of legally binding characteristics, the potential ‘law-making quality’ of soft law is linked to its ‘authority’ which will in turn influence the likely impact and longevity of the instrument. Does the instrument create an obligation to do or not do something? Is there apparent consent by relevant stakeholders drafting or using the instrument, to be ‘bound’ by it, and if so, how might such soft law be enforced? The authority of the soft law is intrinsically linked to its binding nature.

In attempting to assess the authority of soft law it is useful to examine a particular instance of such regulation from a number of perspectives. Firstly, consider why this particular mode of ‘law’ was chosen. For example, does it complement and/or extend existing law on the subject or is it standing in place of such law? If the soft law is acting as a complement to existing law, the combination of the two modes of ‘law’ might serve to create a greater sense of authority for the soft law than if it stands alone. Secondly, given the mode chosen, does it have the potential to generate compliance, whether by States or other relevant parties? Or to put it another way, what is its normative potential? In answering this question, one should consider the process of the development of the soft law, including how it was drafted and the degree of consensus that was reached regarding the final product. For example, in what institutional setting was it formulated and what processes are there for follow up mechanisms at both international and domestic levels? Also relevant here, is the substantive text of the soft law - does it employ the language of obligation or revert to ‘should’ rather than ‘shall’?[26] Each of these factors are useful indicators of the ‘binding nature of the soft law and its latent power or authority to drive improved adherence to human rights standards.



The consistent use of soft law in the business and human rights field is indicative of the emergence and reliance on a notion of ‘networked governance’[27] that places corporate behaviour under the scrutiny of not only States, but also NGOs, unions and other stakeholders. Soft law as it is being used to regulate business, transcends the traditional and formal role played by States as the primary regulator and not only encourages, but heavily relies on the ‘marketplace’ to police the problem. The effectiveness of this system of governance and therefore soft law mechanisms more generally, is strongly dependant on the perceived authority of a particular instrument to create change. There is little doubt that ‘[s]oft law in its various forms can of course be abused, but so can most legal forms’.[28] The key to developing effective soft law is in developing and establishing its ‘bindingness’ to a point where compliance is widespread and consistent.

2. NO ‘SILVER BULLET’ OR SINGLE SOLUTION TO CURBING CORPORATE RIGHTS VIOLATIONS

To understand the development and predominant reliance on soft law in regulating corporate adherence to human rights, it is necessary to recount a little political history including the role of the UN in the process. The UN has long recognised the need to increase corporate awareness of human rights and has flirted (briefly) between adopting a stern regulatory-type approach to the problem with a more (predominant) promotional/awareness-raising style of linking business and rights. More recently, the SRSG has repeatedly stated that there is no magic ‘silver bullet’[29] that will provide a systemic solution to reducing the incidence of business-related human rights abuses. For much of the past few decades a plethora of tactics have been adopted in attempts to regulate or at least minimise the negative impact business can have on human rights with varying levels of success.

The reason that soft law type codes and initiatives have developed in such numbers in the past few decades is that there remains very few direct legal obligations dealing with human rights that bind corporations operating trans-nationally.[30] This lack of clear legal liability has been central to the creation of a permissive international ‘human rights free’ environment[31] in which some corporations seem to now operate and the parallel increase in the development of soft law mechanisms to regulate corporate behaviour. The traditional understanding of international human rights law is that it binds only States, a matter which was largely uncontested for many years partly because States have long been viewed as the principal protagonists in human rights abuses. This focus on States as the bearers of human rights responsibilities has meant that some corporations, in particular, transnational corporations (TNCs) have been able to operate largely in a legal vacuum, devoid of obligations at the international level.

In the last 20 to 30 years a variety of soft law instruments have variously attempted to fill or at least partially address this legal lacuna. In the 1970s work began within the UN on drafting an international code of conduct to regulate the activities of TNCs.[32] In 1975, the UN established a Centre on Transnational Corporations, which by 1977 was co-ordinating the negotiation of a Draft Code of Conduct on Transnational Corporations.[33] Over subsequent years the negotiators managed to agree that TNCs should respect host countries developmental goals, observe their domestic laws, respect fundamental human rights, adhere to socio-cultural objectives and values, abstain from corrupt practices, and observe consumer and environmental protection objectives. Negotiations lingered until the 1990’s but the now defunct United Nations Centre on Transnational Corporations met serious political and business opposition, not unlike that which the UN Norms were to encounter just over a decade later. The draft Code was viewed as an attempt by the UN to meddle in the affairs of business. The involvement of the United Nations in corporate affairs was viewed as an unnecessary and unwanted effort (by companies and some governments) to regulate business.

In the 1980s, the UNs’ policy towards TNCs changed course. Instead of trying to regulate foreign direct investment, UN agencies sought to facilitate the access of developing countries to investment.[34] The 1990s was a period when globalisation gathered force and corporate lobbying effectively undermined multilateral attempts at addressing their power. Corporate self regulation was the key buzz word and the development of codes of conduct in various forms from 1991 (when Levi Strauss first introduced its code) to the end of that decade was explosive. At the same time and continuing today, UN-business relations entered a new era as the international body strives to develop partnerships with large corporations or establish long term projects funded by corporate philanthropists.[35] The UN is clear in its belief concerning the positive role business can play in ‘being part of the solution to the challenges of globalisation’.[36]



Throughout this period when the UN started to change course and develop a more user friendly (and softer regulatory) relationship with business, there were ongoing efforts to continue to develop soft law mechanisms to guide improvements in corporate behaviour. Since the 1970’s a number of inter-governmental organizations have formed voluntary guidelines, declarations and codes of conduct to guide the activities of corporations with two of the most notable early efforts being those of the Organization for Economic Cooperation and Development (OECD) and the International Labour Organisation (ILO).[37]



Parallel to the development of these high-level broad inter-governmental soft guidelines were efforts developed at the more micro-level, focusing specifically on regional issues or particular industries. In 1977 the Sullivan Principles,[38] directed at the behaviour of American companies operating in South Africa, were established, and in 1984 the MacBride Principles[39] were created with the aim of influencing the behaviour of US firms in Northern Ireland. Both of these soft law initiatives were drafted as codes that might ‘voluntarily’ be adopted by businesses in an attempt to avoid potentially harsher external regulation (the threat of United States legislation for example) which would require companies to disinvest from South Africa and Northern Ireland.



The 1990s saw intense media attention focused on supply chain production and the manufacturing processes of brands such as Gap and Nike were highlighted along with an increasing western-driven consumer demand for corporations to assume greater responsibility for the manner in which their goods were produced whether it be on home soil or offshore. In the absence of any international legal regulation governing supply chain production, hundreds of corporate codes of conduct were developed along with several multi-stakeholder initiatives aimed at integrating human rights into corporate practices.[40] An important aspect of the evolution of the global economic system has been the increased reliance by companies, TNCs in particular, on a global supply chain. This reliance is especially obvious in low-wage, labour intensive industries like clothing and footwear. ‘In a world of 80,000 transnational corporations, ten times as many subsidiaries and countless national firms, many of which are small and-medium-sized enterprises’ any attempt to regulate corporate behaviour will always be a challenge.[41] Such regulation has become progressively more complicated given the decentralized and complex supply chains that produce so many of today’s consumer goods and gives rise to particular challenges when employing soft law to protect human rights.



In 2000, the UN re-entered the fray and launched the Global Compact which ‘asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment and anti-corruption.’[42] The Global Compact has since gone on to garner support from over 7,000 businesses who have signed up to its ten principles. During this time however it has also attracted some significant criticism relating to the very soft commitments required of its participants.[43] At around the same time as the Global Compact was being developed; another initiative within the UN was also taking root. In 1998, the UN Sub-Commission on the Promotion and Protection of Human Rights, (a 26-member group of experts which reported to the then Commission on Human Rights) established a working group on the activities of transnational corporations which, in 2001, was asked to ‘[c]ontribute to the drafting of relevant norms concerning human rights and transnational corporations and other economic units whose activities have an impact on human rights.’[44] The working group formulated the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights which were subsequently adopted by the UN Sub-Commission on the Promotion and Protection on Human Rights in August 2003. The draft Norms were considered by the Commission on Human Rights, in April 2004 and again in 2005 but it did not adopt (nor expressly reject) them.



The UN Norms were not universally welcomed and were viewed by some as an unwelcome and unwarranted attempt to privatise human rights.[45] Their introduction prompted heated debate within the business and human rights domain creating strong divisions between and within the various stakeholder groups, including companies, NGOs, labour unions, governments and industry bodies.[46] Prompted by the widespread interest in the UN Norms (both positive and negative), the UN Human Rights Commission resolved in April 2005 to request the UN Secretary General to appoint a Special Representative on the issue of business and human rights[47], reflecting a growing interest internationally on the role companies might play with respect to human rights and the need to clarify the standards of corporate responsibility. The SRSG quickly distanced himself from what he termed the ‘train wreck’ of the UN Norms and subsequently declared them ‘dead’,[48] but the debate around the UN Norms did not dissipate quite so quickly. The development of the UN Norms had sparked a revival in the decades-old discussion about the merits of ‘hard’ (that is, legally binding) vs. ‘soft’ mechanisms that might be employed to curb corporate violations of human rights. The form and content of the UN Norms harked back to the UN’s earlier unsuccessful attempt in the 1970s to draft a more prescriptive, ‘regulatory’ code of conduct for companies with the UN Norms considered by some activists as a potential precursor to developing a human rights treaty on the subject. This prescriptive approach can be contrasted with the ‘softer’ style of the Global Compact, an initiative with which the newly- appointed SRSG had been intimately involved.



During his initial three year term, the SRSG spent time mapping both the plethora of mechanisms used to attempt to prevent corporate rights abuses as well as the rights abuses themselves. His early annual reports[49] to the UN Human Rights Council (which were drafted after extensive consultations with stakeholders large and small) framed the problem and examined existing responses but it was not until 2008 that his new course was revealed. In 2008 the SRSG presented a ‘conceptual and policy framework’ to the UN Human Rights Council that he suggested would ‘anchor the business and human rights debate and...help guide all relevant actors.’[50] The Framework rests on three pillars: ‘the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for more effective access to remedies.’[51]



The way forward, it seemed rested not just upon a new Framework but also upon a more conciliatory, less prescriptive approach towards business in particular. To understand fully the SRSG’s approach, one needs to consider it in the context of his appointment and the debates that preceded it. A key part of the SRSG’s methodology was focused on overcoming the failure of agreement triggered by the introduction of the UN Norms and his approach from the outset was characterised by ‘principled pragmatism’[52] as a means of achieving broader consensus. The SRSG’s term was extended in 2008 for another three years and, in 2011, with his final report to the UN Human Rights Council, the SRSG endeavoured to ‘operationalise’ the Framework and proposed the Guiding Principles. In July 2011 the UN Human Rights Council endorsed the Guiding Principles and announced the formation of a Working Group ‘to promote the effective and comprehensive dissemination and implementation of the Guiding Principles’.[53]



The Guiding Principles emerged from decades of reliance on soft measures to prevent and police corporate human rights violations that were primarily designed to guide corporate behaviour but not necessarily to bind it legally. The engagement of business with human rights was thrust upon some companies earlier than others, with some adopting a proactive approach while others remaining essentially reactive. The Body Shop for example, has long promoted itself as much more than just a beauty company. More than thirty years ago, the Body Shop pioneered its simple idea that businesses have the power to do good, and has continued very visibly to promote human rights as one of its essential platforms for doing business. Subsequent to the emergence of this somewhat radical ‘do-gooder’ notion of corporate responsibility (that challenged Milton Friedman’s argument of the time that the only social responsibility of business is to increase its profits)[54] there was an increasing awareness among companies about the need to formalise, or perhaps more accurately, regularise their approach to incorporating human rights issues in their operations. The development and reliance on thematic or sector-specific codes emerged as a de facto choice for a large number of companies, particularly those in industries with poor social or environmental track records, such as the extractive industries and the clothing, footwear and toy industries. Codes continue to be widely used in supply chain production as a mechanism for attempting to achieve corporate compliance with human rights standards. Such codes, which are increasingly likely to originate from a multi-stakeholder forum, are a means of providing soft sector-specific guidance on the applicability of human rights to that corporate sector and endeavour to achieve a degree of consensus, consistency and credibility that is often lacking in single enterprise corporate-driven codes. Such codes are in essence akin to ‘law’ for those companies that adopt it, albeit a soft and selective form of law that acts as a type of privatised regulation.[55]



While the protection of individuals from corporate human rights violation is complex in all sectors, it is particularly problematic where global supply chains are relied upon to produce goods. Global supply chains were first developed to reduce the costs of labour-intensive production processes such as clothing and footwear, but they continue to expand as more products and services - from computer chips to medical research - seek lower-cost production solutions. This has been accompanied by the development of a global labour market that has outstripped the traditional forms of labour market regulation. Global supply chains stretch across multiple jurisdictions but are effectively regulated by none. This lack of regulation, combined with the vagaries of global competition, predictably lead to frequent abuses of human rights more generally and labour rights in particular. In response, civil society organizations have often resorted to using one of the only weapons they have, namely information, to expose abuses of labour rights and embarrass the brand-name buyers involved. One technique has been to try and get the brand to sign onto a particular code or guideline that would provide some form of external accountability for how the production process functions. Such codes, while lacking the legally binding nature of domestic law, nevertheless can provide a platform for monitoring and assessing a company’s performance with respect to human rights.



In his first Interim Report to the UN Human Rights Council the SRSG acknowledged the challenges in attempting to curb human rights violations by the corporate sector and identified a number of soft law initiatives that had attempted to police and minimise corporate human rights abuses, some particularly focused on supply chain production.[56] In his report the SRSG noted that while monitoring adherence to a code of conduct can be useful in curbing corporate human rights violations, such codes have their limitations both in terms of standard setting and enforcement. He explained:

...there can be little doubt but that these arrangements have weaknesses as well. One is that most choose their own definitions and standards of human rights, influenced by but rarely based directly on internationally agreed standards. Those choices have as much to do with what is politically acceptable within and among the participating entities than with objective human rights needs. Much the same is true of their accountability provisions. Moreover, these initiatives tend not to include determined laggards, who constitute the biggest problem – although laggards, too, may require access to capital markets and in the long run face other external pressures. Finally, even when taken together, these “fragments” leave many areas of human rights uncovered, and human rights in many geographical areas poorly protected. The challenge for the human rights community, then, is to make the promotion and protection of human rights a more standard and uniform corporate practice.[57]

While the proliferation of soft law initiatives – whether company specific or as part of a multi-stakeholder initiative – in the last few decades has meant that hundreds of companies have now publicly committed to upholding basic human rights, the challenge is to ensure these soft law standards espoused in codes or guidelines adopted by business are consistent, comprehensive and implemented. With this abundance of soft law, along with the challenges reliance on soft law regulation imposes, one obvious question is how the SRSG’s three pillared Framework and its accompanying Guiding Principles stand apart from the others? In particular, is this continuing recourse to soft law (specifically, to anchor the second pillar of the Framework, namely, the corporate responsibility to respect rights) likely to be an effective mechanism for preventing corporate human rights abuses? One might legitimately argue that relying on the good faith of corporate actors to adopt and adhere to soft law regulation has worked somewhat sporadically so far, so what is it about UN Framework and Guiding Principles that indicates it will work more effectively in the future?

3. THE ‘BINDING’ NATURE OF THE CORPORATE RESPONSIBLITY TO RESPECT



From the outset, it was clear that the SRSG was looking to overcome the turbulence and ‘doctrinal excesses’[58] of the UN Norms and develop a plan based on consensus and pragmatism. To move ahead, as the SRSG noted, with ‘an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people.’[59] However, sometimes a desire to reach a result in the short term can lead not only to compromise but to compromised standards. [60] Historically, when political leaders speak of pragmatism, it has often been code for subordinating ideals to other strategic and geopolitical priorities. Where solutions are endorsed on the basis of their pragmatism, the ‘softer’ short term solution needs to be weighed against the viability of achieving a longer term ‘harder’ resolution.



Emphasis on the practical in this case, has resulted in the extension of a consensual regime of softly developed regulation that encourages but does not require (in a legally binding sense) corporations to respect human rights. Can principled pragmatism be effective in bringing corporations to account? The corporate responsibility to respect, as embodied in the Guiding Principles, is, taken at face value, unobjectionable,[61] but is it a ‘game-changer’?[62] Is it simply more soft law or a consolidated and definitive version of the numerous codes and guidelines that have preceded it that will reshape and redefine businesses’ approach to human rights going forward? It is only, in my view, likely to be the latter if certain aspects of it harden to require more consistency in the application and understanding of the corporate responsibility to respect rights.



The corporate responsibility to respect is defined in the Guiding Principles as meaning business ‘should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’[63] The explanatory Commentary accompanying the Principles states that ‘the responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate [and that] [i]t exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations.’[64]



Its content (as to what rights should be respected) is defined by reference to a litany of international human rights laws (see Guiding Principle 12) but, interestingly, the SRSG chose to ground its source of obligation not in this law but in a more inchoate and softer source.[65] The decision to couch the responsibility to respect rights as a responsibility, not an obligation (in contrast to the State duty to protect human rights) was a deliberate one. It is grounded in social expectation not legal obligation and it is the ‘courts of public opinion’[66] that are relied on to ‘enforce’ such expectations. The decision to frame it as ‘not-law’ elevated the odds of achieving governmental consensus and business backing, but it is a sticking point for many NGOs.[67]



The concept of due diligence is introduced as a mechanism by which companies might discharge their responsibility to respect rights and reflects the continued reliance on a largely self-regulatory process to curb corporate human rights violations. Guiding Principle 17 notes the parameters of the recommended due diligence process.



In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and

communicating how impacts are addressed. Human rights due diligence:



(a) Should cover adverse human rights impacts that the business enterprise

may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;



(b) Will vary in complexity with the size of the business enterprise, the risk

of severe human rights impacts, and the nature and context of its operations;



(c) Should be ongoing, recognizing that the human rights risks may change

over time as the business enterprise’s operations and operating context evolve.

Guiding Principle 18 recommends the process should ‘draw on internal and/or independent external human rights expertise [and] involve meaningful consultation with potentially affected groups and other relevant stakeholders’.



One of the limitations of this ‘unobjectionable’ process is that it is not coupled with binding law to enforce this responsibility. There is no legal obligation to conduct the due diligence. The due diligence may or may not be undertaken largely internally by the company, alongside ‘meaningful consultation’ with external stakeholders. There is no legal obligation either to conduct such an assessment or to publish its results. Relying on the courts of public opinion to protect victims from corporate violations of human rights was the mode of the late 1990s, but limited progress has been made since that time to move along the continuum from self-regulation to legal obligation. Domestic governments, ideally should reinforce these ‘societal expectations’ to respect human rights by, at a minimum, legally requiring due diligence to be conducted and the results made public, but whether they will choose to do so may in part depend on the binding nature of this latest instrument. The Guiding Principles were drafted as principles, not law, knowingly. One might legitimately argue that from the perspective of ‘practitioners, governments and intergovernmental organisations, there is not a continuum of instruments from soft to hard, but a binary system in which an instrument is entered into as law or not-law.’[68] The consensus achieved on the Guiding Principles in the UN Human Rights Council was precisely because they were viewed as not-law and the corporate responsibility to respect rights is not what one might think of as a traditional or formal legal obligation.



But as noted earlier, to argue that soft law is simply not-law can be simplistic. As one commentator notes, ‘the challenge lies in appreciating fully the declining reliability of formal criteria of international law as guideposts as to what actually constitutes international law’.[69] In assessing the ‘authority’ or bindingness of the corporate responsibility to respect it is useful to examine it in the context of the factors raised earlier.[70] In particular, what is the significance of housing this responsibility in soft law, and, given the mode chosen, does it have the potential to generate compliance by significant stakeholders (including States and business)?



As discussed earlier, soft law will be at its most effective when it ‘stands not in isolation’ but ‘instead, [as] it is used most frequently either as a precursor to hard law or as a supplement to a hard-law instrument’[71] and from this it might obtain a certain element of bindingness. Soft law standing alone can lack legitimacy if not coupled with any binding law for either the source of the obligation or its enforcement mechanisms. The linkage between the rights and the responsibility to respect them, as set out in the Guiding Principles, is amorphous and not grounded in legal obligation.[72] On this point, the development of the Guiding Principles on Business and Human Rights can be contrasted with the establishment of the UN Guiding Principles on Internal Displacement.[73] Similar to some of the reasons proposed by the SRSG in eschewing a treaty form for business, UN Special Representative Francis Deng favoured casting the Guiding Principles for internally displaced persons (IDPs) in its ‘softer’ form because it was more timely and likely to achieve a broader degree of consensus. However, with respect to IDPs, it was also recognised that existing treaties already covered many of the rights and obligations associated with IDPs and that Deng was essentially ‘graft[ing] soft law onto a hard law foundation’.[74] This is a point of distinction between the two sets of Guiding Principles. The second pillar of the Framework, the corporate responsibility to respect, is not grounded by the SRSG in hard law, being based instead on societal expectations, which has the effect of reducing its normative value and making it softer and more inchoate than what might be required.



In considering the normative potential (and thus bindingness) of the corporate responsibility to respect, one relevant factor to consider is the forum in which the Principles were developed and adopted. The fact that the Guiding Principles have the endorsement of the UN Human Rights Council and grew out of a collaborative process managed and monitored by the then UN Commission on Human Rights and now the Council adds to their authoritative status and moves them up the continuum of soft to a more potentially binding form of law. In theory, given the degree of consultation and consensus (of governments) sought and achieved by the SRSG during his mandate, there is the potential to generate State compliance. ‘[A] central property of soft law as a norm-generating mechanism is its ability to contribute to the internalisation of new norms within States by becoming entrenched in domestic legislation.’[75] The internalisation of the Guiding Principles on Internal Displacement in numerous domestic laws has been a significant factor in maintaining compliance with them. It is critical to the success of the Guiding Principles on Business and Human Rights that States are willing and ready to recognise their authority and incorporate them into domestic law.



Whether States will similarly internalise the Guiding Principles on Business and Human Rights may be influenced by the authoritative nature of the content and language of the Guiding Principles. Depending on your viewpoint, the corporate responsibility to respect, either offers the necessary flexibility for companies to ‘know and show’[76] their respect for human rights or allows ‘for too much wiggle room [and includes] too many “shoulds” in place of “shalls”’.[77] The language used in the Guiding Principles when framing the corporate responsibility to respect human rights, is generally non-authoritative, and in itself unlikely to provoke a normative response.[78] The SRSG’s emphasis on pragmatism has dictated the framing of the language throughout the Guiding Principles but is nowhere more evident than in relation to the second pillar, the corporate responsibility to respect rights. The ambiguity of the language is likely to be welcomed by some stakeholders to allow for specific idiosyncratic tailoring of responses at an industry and State level. On the other hand, the looseness of the language is perhaps more likely to invite inaction and a business-as-usual approach from companies that remain hesitant about their responsibility to act.



The fact that the Guiding Principles were endorsed by the UN Human Rights Council means that its status ranks far beyond a code such as that of, for example the Fair Labour Association which is adopted by 37 companies.[79] The institutional setting of the UN is important but not determinative. The UN Global Compact had the backing of the UN Secretary General yet it is difficult to find a less binding version of soft law than the Compact. However, the endorsement of the Guiding Principles by the UN Human Rights Council has strengthened its position as an authoritative instrument of soft law. In addition the revision of the Organisation for Economic Cooperation and Development’s (OECD) Guidelines for Multinational Enterprises in 2011 was heavily influenced by the work of the Special Representative indicating some convergence internationally behind the Principles. In July 2011, the UN Human Rights Council decided to establish a Working Group ‘to promote the effective and comprehensive dissemination and implementation of the Guiding Principles’ and consists of five independent experts, of balanced geographical representation, for a period of three years. The Council also decided to establish a Forum on business and human rights under the guidance of the Working Group to meet annually to discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights. [80] The Working Group and the annual Forum are the principal follow-up mechanisms established following the end of the SRSG’s term but the open-ended wording of the Council’s resolution focuses on further consensus building, prizing dialogue and information-gathering over accountability. This does not bode well for developing a process to harden the corporate responsibility to respect and thus develop a mechanism to ensure greater robustness and uniformity in protecting individuals from corporate violations of human rights.

4. CONCLUSION



Highlighting the limitations of soft law in holding corporations to account for human rights violations is a straightforward task particularly if one focuses on the selective nature of the standard-setting and participants involved, and the lack of strong accountability measures to enforce it. But the clamour for hard international law is a difficult process and not one that necessarily resolves all these issues. International human rights law is not renowned for its enforceability and the path to a treaty requires political commitment that is not currently forthcoming in this field. There is no doubt that what is required is both a mix of soft and hard law (both domestic and international) but if heavy reliance is to be placed on soft law it should be done in such a manner that will generate consistent and uniform compliance in generating greater corporate respect for human rights. The most recent soft law initiative that speaks to a corporation’s responsibility toward human rights –the Guiding Principles - needs more clearly defined parameters and less ‘wiggle room’ for business. Formulating and adopting coherent policies and gathering them into an international soft instrument is a positive step but not sufficient. One of the major challenges for international standard setting is ensuring compliance and it is in this area where the Guiding Principles are weakest. The fact that the source of the corporate responsibility is inchoate and the language adopted to frame the second pillar is ambiguous means that the result is the development of a non-authoritative ‘pillar’ that is unlikely to induce strong normative change.



Given the political climate in which the SRSG was appointed, the pragmatic approach and reliance on soft law with regard to a corporation’s responsibilities toward human rights is understandable, but inadequate. While the SRSG has successfully sought to craft a framework of guidelines palatable to States and business, the path of principled pragmatism has led to the development of soft law guidelines that prize dialogue and consensus over ambition. However, a harder edge could be given to this soft law approach to develop a more robust framework that not only encourages, but requires corporations to respect human rights. Legally mandating and clarifying what is required of the due diligence component of the corporate responsibility to respect is one that should be taken by States as part of their duty to protect human rights. The source of the corporate responsibility to respect rights should also be linked to international human rights law and not left to the whim of society.



As has been evident from the past, securing the engagement of business in human rights issues as part of a soft form of regulation, is not a fool-proof method for obtaining success, nor is it a straightforward process. Writing in 1999, Addo commented that ‘only a selected few among private corporations are likely to willingly submit to new responsibilities without being legally compelled to do so’.[81] Over a decade later, Addo’s comment still rings true. While the number of corporations prepared to adopt human rights policies may have risen, the limited mechanisms for enforcing such policies remain largely embedded in soft law, that unless hardened, will have a very limited effect in preventing future violations of human rights by corporations.


[1] Human Rights Council, ‘Human Rights and transnational corporations and other business enterprises’ UN Doc. A/HRC/RES/17/4, (6 July 2011), www.business-humanrights.org/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf (last accessed 16 August 2012).

[2] Human Rights Council, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/8/5 (7 April 2008) (SRSG, ‘2008 Report’).

[3] Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework: Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/17/31 (21 March 2011) (SRSG ‘2011 Guiding Principles’) at Guiding Principle 11 [II.A.11] at 13.

[4] Ibid.

[5]A. Ganesan (Human Rights Watch), ‘UN Human Rights Council: Weak Stance on Business Standards’ ( 16 June 2011), www.hrw.org/news/2011/06/16/un-human-rights-council-weak-stance-business-standards (last accessed 10 October 2012).

[6] SRSG, ‘The UN "Protect, Respect and Remedy" Framework for Business and Human Rights’ (September 2010), http://198.170.85.29/Ruggie-protect-respect-remedy-framework.pdf (last accessed 4 December 2012).

[7] Regulation as referred to in this paper incorporates both formal and informal mechanisms or techniques designed to influence or at times coerce corporations to better respect and/or protect human rights.

[8] D. Shelton, ‘Normative hierarchy in international law’ (2006) 100 American Journal of International Law 291, at 319.

[9] See further discussion at n 25.

[10] SRSG, ‘2008 Report’, n 2, para 54 ; and SRSG, ‘2011 Report’, n 3, Guiding Principle 11[ II.A.11].

[11] J. Ruggie, ‘Treaty road not travelled’ (May 2008), www.hks.harvard.edu/m-rcbg/news/ruggie/Pages%20from%20ECM%20May_FINAL_JohnRuggie_may%2010.pdf (last accessed 9 October 2012).

[12] P. Muchlinkski ‘Human Rights and Multinationals: Is there a Problem?’ (2001) 77 International Affairs 31 at 46.

[13] L. Baccaro and V. Mele, ‘For lack of anything better? International organizations and global corporate codes’ (2011) 89 Public Administration 451.

[14] C.Scott, F. Cafaggi and L. Senden, ‘The Conceptual and Constitutional Challenge of Transnational Private Regulation’ (2011) 38 Journal of Law and Society 1, at 2.

[15] C.M. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly 850 at 850..

[16] D. Shelton, ‘Normative hierarchy in international law’ n 8, 319.

[17] C.M. Chinkin, ‘The Challenge of Soft Law’ n15, 851; also see generally S. Freeland, ‘For Better or For Worse? The Use of “Soft Law” within the International Legal Regulation of Outer Space’ (2011) XXXVI Annals of Air and Space Law 409.

[18] A.E. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 International and Comparative Law Quarterly 901, at 901-902.

[19] Ibid., at 902-907.

[20] United Nations Sub-Commission on the Promotion and Protection of Human Rights, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, E/CN.4/Sub.2/2003/12/Rev.2 (2003) (`UN Draft Norms’). See also the discussion at n 46

[21] See in this book S. Deva, ‘Treating Human Rights Lightly: a Critique of the Consensus Rhetoric and Language Employed by the Guiding Principles’ pTBA

[22] Although such involvement can also be incorporated within the treaty making process. For example, civil society was strongly involved in the development and drafting of an international treaty that led to the establishment of the International Criminal Court: the Rome Statute of the International Criminal Court.

[23] Waiting for Godot is a play by Samuel Beckett, in which two characters, Vladimir and Estragon, wait endlessly and in vain for someone named Godot to arrive.

[24] Chinkin, ‘The Challenge of Soft Law’ n 15,851.

[25] Institute for Human Rights and Business, ‘From Red Flags to Green Flags: The corporate responsibility to respect human rights in high-risk countries’ (2011), www.ihrb.org/pdf/from_red_to_green_flags/complete_report.pdf (last accessed 10 October, 2012), 39.

[26] C. Jochnick, ‘Making Headway on Business and Human Rights’ (11 February 2011), http://politicsofpoverty.oxfamamerica.org/2011/02/11/making-headway-on-business-and-human-rights/ (last accessed 10 October 2012). See examples from The Guiding Princples at n 79.

[27] Baccaro and Mele, ‘International Organisations’, n 13 at 453.

[28] Boyle, ‘Some Reflections’, n18 at 913.

[29] Human Rights Council, ‘Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts’, A/HRC/4/035 (4 February, 2007) (SRSG, ‘2007 Report’) at para. 7.

[30] There is a diversity of opinions on the extent to which international human rights law currently binds (directly or indirectly) corporations. See for example D. Bilchitz, ‘A Chasm Between ‘Is’ and ‘Ought’? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles’ in this book, pTBA

[31] O. De Schutter, ‘Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations’ (2006) www.corporatejustice.org/IMG/pdf/Extraterritorialityreport_DeSchutter.pdf (last accessed 16 August 2012).

[32] P. Utting, ‘UN-Business Partnerships: Whose Agenda Counts?’ (Paper presented at a seminar on Partnerships for Development or Privatization of the Multilateral System?, Oslo, 8 December 2000) 2. www.unrisd.org/unrisd/website/document.nsf/d2a23ad2d50cb2a280256eb300385855/a687857bd5e36114c1256c3600434b5f/$FILE/utting.pdf (last accessed 30 January 2013).

[33] S. J. Rubin, ‘Transnational Corporations and International Codes of Conduct: A Study of the Relationship between International Legal Cooperation and Economic Development’ (1995) 10 American University International Law Review 1282.

[34] P. Utting, ‘Rethinking Business Regulation: From Self Regulation to Social Control’, (September 2005), www.unrisd.org/unrisd/website/document.nsf/ab82a6805797760f80256b4f005da1ab/f02ac3db0ed406e0c12570a10029bec8/$FILE/utting.pdf (last accessed 11 December 2012). .

[35] A. Zammit, Development at Risk: Rethinking UN-Business Partnerships (UNRISD, Geneva, 2003), Chapter III. Also see P. Utting, ‘UN-Business Partnerships’ n 32, 3. Recent examples include the establishment of the UN Foundation with a one billion dollar grant from CNN founder Ted Turner and the establishment of the Global Alliance for Vaccines and Immunizations whose contributors include the Bill and Melinda Gates Foundation.

[36] See United Nations Global Compact www.unglobalcompact.org (last accessed 9 October 2012).

[37] OECD Guidelines for Multinational Enterprises, www.oecd.org/daf/internationalinvestment/guidelinesformultinationalenterprises/48004323.pdf (last accessed on 27 January 2013); and the ILO Tripartite declaration of principles concerning multinational enterprises and social policy (MNE Declaration) - 4th Edition, www.ilo.org/empent/Publications/WCMS_094386/lang--en/index.htm (last accessed 12 October 2012).

[38] L. Sullivan, The Sullivan Principles (1977).

[39] S. McManus for the Irish National Caucus, The MacBride Principles (1984).

[40] Examples include: the Fair Labor Association’s Workplace Code of Conduct and monitoring scheme, Social Accountability 8000, the Ethical Trading Initiative, the Global Reporting Initiative and the Voluntary Principles on Security and Human Rights.

[41] Human Rights council, ‘Business and Human Rights: Further steps towards the operationalization of the “protect, respect, remedy” framework’ A/HRC/14/27 (9 April 2010) (SRSG, ‘2010 Report’), para. 82.

[42] See UN Global Compact www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html (last accessed 9 October 2012).

[43] S. Deva, ‘The UN Global Compact for Responsible Corporate Citizenship: Is it still too compact to be global?’ (2006) 2 Corporate Governance Law Review 145; J. Nolan, ‘The United Nations’ Compact with Business: Hindering or Helping the Protection of Human Rights?’ [2005] UQLawJl 26; (2005) 24 University of Queensland Law Journal 445; and Baccaro and Mele, ‘International Organisations’, n 13 at 460.

[44] UN Sub-Commission on the Promotion and Protection of Human Rights, ‘The effects of the working methods and activities of transnational corporations on the enjoyment of human rights’, E/CN.4/Sub.2/RES/2001/3 (15 August 2001).

[45] J. Nolan, ‘With Power comes Responsibility: Human Rights and Corporate Accountability’ (2005) 28 University of New South Wales Law Journal- 581 at 585; and D. Kinley, J. Nolan and N.Zerial ‘Reflections on the United Nations Human Rights Norms for Corporations’ (2007) 25 Companies and Securities Law Journal 30, at 34-37.

[46] See generally, D. Kinley, J. Nolan and N. Zerial ‘Reflections’ n 45.

[47] Commission on Human Rights, Agenda Item 17, E/CN.4/2005/L.87 (15 April 2005); and United Nations, Secretary-General Appoints John Ruggie of United States Special Representative on Issue of Human Rights,Transnational Corporations, Other Business Enterprises SGA/A/934 (28 July 2005), www.un.org/News/Press/docs/2005/sga934.doc.htm (last accessed 12 October 2012). On 28 July 2005, the UN Secretary General appointed Professor John Ruggie as the UN Special Representative. Professor Ruggie previously served as UN Assistant Secretary-General and senior adviser for strategic planning from 1997 to 2001. He was one of the main architects of the United Nations Global Compact, and he led the Secretary-General’s effort at the Millennium Summit in 2000 to propose and secure the adoption of the Millennium Development Goals.

[48] J. Ruggie, Remarks delivered at a forum on Corporate Social Responsibility Co-Sponsored by the Fair Labor Association and the German Network of Business Ethics (Bamburg, Germany, 14 June 2006), www.reports-and-materials.org/Ruggie-remarks-to-Fair-Labor-Association-and-German-Network-of-Business-Ethics-14-June-2006.pdf (last accessed 9 October 2012).

[49] The reports are easily accessible at www.business-humanrights.org/SpecialRepPortal/Home (last accessed 12 October 2012).

[50] SRSG, ‘2008 Report’, n 2 at 1.

[51] Ibid.

[52] See discussion at n 60 for an explanation of principled pragmatism

[53] Human Rights Council, Seventeenth session, Agenda item 3 ‘Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development’, A/HRC/RES/17/4 (6 July 2011) para 6 (a), www.business-humanrights.org/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf (last visited 9 October 2012).

[54] Milton Friedman, ‘The Social Responsibility of Business is to Increase its Profits’, New York Times, (13 September 1970), 32

[55] See also in this book on this topic N.Jagers ‘Will Transnational Private Regulation Close the Governance Gap?’ pTBA

[56] Commission on Human Rights, ‘Interim Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, E/CN.4/2006/97 (22 February 2006), paras 31-53 (SRSG, ‘2006 Interim Report’).

[57] Ibid., at para. 53.

[58] Ibid., at para. 59.

[59] Ibid.,at para. 81.

[60] P.Orchard, ‘Protection of internally displaced persons: soft law as a norm-generating mechanism’ (2010) 36 Review of International Studies 281 at 286.

[61] D. Kinley, Civilising Globalisation (Cambridge University Press, 2009), 198.

[62] Remarks by SRSG John Ruggie “The ‘Protect, Respect and Remedy Framework:

Implications for the ILO” International Labour Conference (Geneva, 3 June 2010) 3, www.ilo.org/wcmsp5/groups/public/@ed_emp/@emp_ent/@multi/documents/genericdocument/wcms_142560.pdf (last accessed 11 December 2012). Also, see the Interview with Professor John Ruggie, Special Representative of the UN Secretary-General on business & human rights by the International Bar Association, www.ibanet.org/Article/Detail.aspx?ArticleUid=4b5233cb-f4b9-4fcd-9779-77e7e85e4d83 (last accessed 9 October 2012).

[63] SRSG, ‘2011 Report’, n 3 at Guiding Principle 11[II.A.11].

[64] Ibid.

[65] See also in this regard, D. Bilchitz, ‘A Chasm Between ‘Is’ and ‘Ought’? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles pTBA

[66] SRSG, ‘2008 Report’, n 2, para. 54.

[67] See for example the comments of Ganesan, ‘UN Human Rights Council’, n 5.

[68] D. Shelton, ‘Normative Hierarchy’, n 8, 321.

[69] G.F. Handl, W.M. Reisman, B. Simma, P.M. Dupuy and C. Chinkin, ‘A Hard Look at Soft Law’ 82 (1988) American. Soceity of International Law Procedure 371 at 372.

[70] See discussion at n 25-26..

[71] D. Shelton, ‘Normative Hierarchy’, n 8, 320.

[72]In terms of the Guiding Principles acting as the basis for the future hard law, it can be said that the SRSG has effectively closed (but perhaps not slammed) the door on developing a general or comprehensive treaty governing corporations’ responsibilities to human rights (with the exception of corporate liability for international crimes). See SRSG, ‘Treaty Road’, n 111, but in respect of a narrower area, that of corporate liability for international crimes, the SRSG has recognised such liability, and arguably a treaty in this area would be more politically feasible. See also SRSG, ‘2007 Report’, n 29, para 19-32; and P. Simons, ‘International law’s invisible hand and the future of corporate accountability for violations of human rights’ (2012) 3 Journal of Human Rights and the Environment 5, at 12.

[73] United Nations, ‘Handbook for the Protection of Internally Displaced Persons, Provisional Release 2007 (Annex 1)’ E/CN.4/1998/53/Add2(1998): www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=47949b3f2&query=guiding%20principles%20internal%20displacement (last accessed on 9 October 2012).

[74] P. Orchard, ‘Protection of Internally Displaced Persons’, n 60, 293

[75] Ibid., 286.

[76] See SRSG interview n 62.

[77] C. Jochnick, ‘Making Headway on Business and Human Rights’ n 26..

[78] For example, Guiding Principle 11 ‘Business enterprises...should address adverse human rights impacts...’ or Guiding Principle 13 ‘The responsibility to respect human rights requires that business enterprises:... (b) Seek to prevent or mitigate adverse human rights impacts’ or or Guiding Principle 23 ‘In all contexts, business enterprises should:... (b) Seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements’ or Guiding Principle 24 ‘business enterprises should first seek to prevent’. [emphasis added].

[79] Fair Labor Association www.fairlabor.org (last accessed on 9 October 2012).

[80] Human Rights Council, ‘Human rights and transnational corporations and other

business enterprises’, A/HRC/RES/17/4, (6 July 2011).

[81] M. K. Addo, ‘Human Rights and Transnational Corporations – an introduction’ in M. K. Addo (ed) Human Rights and Transnational Corporations (The Hague: Kluwer Law International, 2001), 11.