Abstract
States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels. In this essay, I explore some of the factors that may explain why state and non-state actors hold these diverse preferences. I conclude that while some of these preferences may be attributable to the unique advantages of soft law or hard law, other preferences likely depend on the effects produced by the interaction of both types of law within the broader regulatory landscape.
Highlights
States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights
Some actors prefer soft law governance while others advocate for legally binding solutions at the national and international levels
France introduced both a binding due diligence obligation and liability for those companies that fail to do so.[13]. These examples illustrate how some of the human rights due diligence norms from the Guiding Principles are making their way into domestic legislation directly even in the absence of an international agreement
Summary
States and non-state actors, such as business organizations and NGOs, have varying preferences among regulatory options in business and human rights. “Soft law” refers to institutions that are weakened along one or more of these three dimensions.[2] A number of factors may lead state and non-state actors to prefer either hard law or soft law Some of these factors have traditionally explained state preferences, while others are unique to non-state actors, especially business organizations. Provisions for legal liability.[4] States may fear that implementing these laws when their peers do not will lead to corporate flight as corporations relocate to another state that declines to pass such laws They will prefer soft law approaches that provide them with flexibility and adaptability to respond to these potential costs until peer states are willing to make similar credible commitments through hard law. Soft law allows these organizations to exit at lower cost if the reactions are not beneficial to the organization
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