The Business and Human Rights Nexus

A narrative of legislative failure?

The business and human rights nexus has occupied a prominent position in the international law agenda since the 1970s.[1] The predominant narrative sees the nexus as the unwavering (but for a long time unsuccessful) attempt by the international community to regulate the negative impacts of economic globalization, itself conceptually very welcome, and to influence the behaviour of transnational corporations (TNCs), which at least in the 1970s were a new phenomenon. While there was broad agreement from the beginning that international law was the most promising regulative toolset for tackling the negative externalities of economic globalization, the opinions of the states parties were highly divided in terms of which concrete regulative measures to take.[2] As a record from the time, Seymour J. Rubin’s AJIL article on the discussions on and organizational structure of the UN Commission on Transnational Corporations established in 1974 depicts the struggles quite clearly.[3] In very simplified terms, one might say that within the UN bodies the greater part of state representatives of the global south lobbied for a binding convention, whereas their counterparts in the global north favoured a more flexible regulative approach. Within the responsible UN Commission, the role of the states as exclusive regulative players was unquestioned. Nevertheless, the parallel—but formally entirely separate—argumentative proxy war between NGOs and business representatives on the topic further complicated the state-driven discussions.[4] [5] Caught up in the concurrent interplay of these discourses, promising first regulative drafts such as the Draft United Nations Code of Conduct (1988)n and some years later the Norms on Responsibilities (2003)1[6] were doomed to failured[7]

At the same time, other efforts in this direction were being made outside the scope of international law: partly motivated by a desire to avoid the discussion on international legally binding and non-binding regulations, business-driven voluntary policy initiatives took up the issue and integrated the business and human rights nexus partly into the emerging corporate social responsibility debated[8] [9] [10] The most prominent example to date is unquestionably the creation of the Global Compact15 in 2000.1® Many more initiatives followed and were adopted by corporations, as demonstrated by the impressive numbers in the EU’s revised CSR strategy published in 2011.[11] [12] The relative success of these private non-law approaches had—at least to some extent—repercussions on the international law discoursed8

  • [1] See e.g.: D. G. Arnold, ‘Transnational Corporations and the Duty to Respect Basic Human Rights’, Business Ethics Quarterly vol. 20 (2010): 371—99, 372ff. and J. G. Ruggie, ‘Business andHuman Rights: The Evolving International Agenda’, American Journal of International Law (AJIL) vol. 101 (2007): 819—40, 819f.
  • [2] See e.g.: D. Weissbrod and M. Kruger, ‘Human Rights Responsibilities of Businesses as Nonstate Actors’, in Non-state Actors and Human Rights, ed. P. Alston (Oxford: Oxford University Press,2005): 315-50, 318ff.
  • [3] S. J. Rubin, ‘Reflections Concerning the United Nations Commission of Transnational Corporations’, AJIL vol. 70 (1976): 73-91.
  • [4] See e.g.: P. Alston, ‘Non-state Actors and Human Rights’, in International Human Rights—TheSuccessor to International Human Rights in Context: Law Politics and Morals—Text and Materials, ed. P.Alston and R. Goodman (Oxford: Oxford University Press, 2013): 1461—1515 at 1477; J. Martens,‘Corporate Influence on the Business and Human Rights Agenda of the United Nations’ (Misereor,Brot fur die Welt and Global Policy Forum Working Paper, Aachen, Berlin, Bonn, New York, 2014):6—10; as well as the joint comments of the International Chamber of Commerce and the InternationalOrganization of Employers on the draft norms on the responsibilities of transnational corporationsand other business enterprises with regard to human rights (UN Doc. E/CN.4/2/2003/NGO/44).
  • [5] Draft United Nations Code of Conduct on Transnational Corporations (UN Doc. E/1988/39/Add.1).
  • [6] Norms on the Responsibilities of Transnational Corporations and Other Business Enterpriseswith Regard to Human Rights (UN Doc. E/CN.4/Sub.2/2003/12/Rev.2).
  • [7] For further details see: Arnold (2010): 374-6 as well as Weissbrodt and Kruger (2005): 318—21.
  • [8] For a detailed analysis see: F. Wettstein, ‘CSR and the Debate on Business and HumanRights: Bridging the Great Divide’, Business Ethics Quarterly vol. 22 (2012): 739—70 at 745—7.
  • [9] ‘United Nations Global Compact’ .
  • [10] A. Rasche, ‘A “Necessary Supplement”: What the United Nations Global Compact is (and isnot)’, in Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives,ed. K. Buhmann, L. Roseberry, and M. Morsing (Basingstoke: Palgrave Macmillan, 2011): 52—76at 56—8.
  • [11] 17 European Commission, A Renewed EU Strategy 2011—14 for Corporate Social Responsibility(Brussels, 2011), COM (2011): 681.
  • [12] This can be seen in the fact that the mandate of the newly appointed special representative to theSG on the issue of human rights and transnational corporations and other business enterprises contained e.g. the obligation ‘to compile a compendium of best practices of ... transnational corporationsand other business enterprises’. See Commission on Human Rights Res. 2005/69 (UN Doc. E/CN.4/RES/2005/69) para. 1(e).
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