Negotiating the Hard/Soft Law Divide in Business and Human Rights: The Implementation of the UNGPs in the European Union

Abstract

AbstractThe article discusses the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union against the backdrop of perennial debates between proponents of ‘hard’ versus ‘soft’ law approaches to preventing and redressing corporate‐related human rights violations. It argues that the Open Method of Coordination (OMC) – an EU governance instrument of transnational policy‐making – could contribute to negotiating the hard/soft law divide in business and human rights by ensuring a more effective implementation of the UNGPs in the European legal space. Moreover, the European experience with open coordination calls for a reappraisal of the relationship between international law and global governance in addressing today's business and human rights predicament. The first part of the article situates the debate between proponents of ‘hard’ and ‘soft’ law approaches to business and human rights in the context of two UN‐driven initiatives: the development of national action plans (NAPs) to implement the UNGPs; and the negotiation of an international business and human rights treaty. The second part of the article relates experiences with the existing NAP process in the European Union to the policy background and rationale of the Open Method of Coordination and discusses the conditions for its successful employment in the business and human rights domain.