Business and Human Rights: From National to International and Back Again

The negative impacts on individuals’ enjoyment of human rights stemming from the activities of private economic actors such as corporations, including those which carry out activities of a transnational character, have long been documented. Impunity of corporations for their adverse human rights impacts, however, has been a recurrent problem at the national level. This has commonly been attributed to many national governments’ lack of will or ability to regulate effectively the conduct of corporations with respect to human rights or to enforce any such regulation. Against this background, various constituencies have looked to international human rights law to compel states to regulate corporate conduct. Under international human rights law, however, the substantive requirements of the human rights obligations of states with respect to the activities of corporations remain vaguely defined. As for corporations themselves, they do not currently bear human rights obligations under international law. Given these limitations, voluntary or non-binding regulatory approaches have been relied on to date in the field of business and human rights. At the international level, specifically, a number of non-binding instruments on business and human rights have been developed and adopted. The most significant of these non- binding instruments is the UN Guiding Principles on Business and Human Rights (UNGPs), which aim to provide guidance to states and corporate actors on responsible business behaviour, inter alia, with respect to human rights. While scholars and practitioners have questioned the effectiveness of this non-binding instrument in improving corporate behaviour with respect to human rights and in tackling corporate accountability gaps, the UNGPs have nonetheless acted as catalyst for the more recent, ongoing elaboration at the international level of a treaty on business and human rights. They have also informed the substance of this so-called ‘draft legally binding instrument’. Similarly, and until now more significantly, the UNGPs have inspired the development and informed the substance of a number of national laws which place certain human rights obligations on relevant categories of corporate actors at the domestic level. More recently, the UNGPs have arguably influenced and informed EU-wide legislation requiring Member States to place certain obligations on relevant categories of companies under their respective domestic law. This thesis explores the recent developments in the business and human rights regulatory journey through international and national law, a journey intertwined but not co-extensive with the regulatory journey from binding to non-binding and return. It examines these different levels, international and national, of this regulatory journey and their interaction. At the same time, it examines the function of non-binding instruments in the recent law-making efforts to tackle the negative externalities of corporate globalization.