A Rejoinder to G. Skinner's Rethinking Limited Liability of Parent Corporations for Foreign Subsidiariess Violations of International Human Rights Law

Abstract

The article accounts for three baselines that marked the thinking in the field of business and human rights: the first legalization baseline drawn by international human rights lawyers engaged in the UN Draft Norms effort of early 2000s, the second baseline exposing the polycentrism and principled pragmatism of the Ruggie mandate that delivered the 2011 UN Guiding Principles, and the third legalization baseline that is currently being drawn in the post-UNGPs period by those engaged in the 2014 UN process to craft a business and human rights (BHR) treaty. The article highlighted reductionism in several guises that came to define the first BHR baseline. Seeking to absorb the lessons from the two previous baselines, the argument herein was in favor of a legalization perspective on BHR that is both comprehensive and nuanced. I put forward a “two track, multichannel legalization perspective” as an effort to clarify a few aspects: (a) when coercive, harder legalization or softer forms of legalization are appropriate by analytically separating two regimes of BHR in line with the UNGPs Principle 13; (b) why there is a necessity to valorize better softer legalization and non-legal strategies by highlighting three “first order principles” that exist and interact in the transnational value chain context; and (c) how to valorize such softer legalization strategies by employing a “roping” strategy of gaining strength from weak threads.