The corporate responsibility to respect human rights: soft law or not law?

Abstract

This paper is primarily focussed on examining the role (and effectiveness) of soft law in regulating businesses with respect to human rights. Section I grapples with developing a general definition of soft law, and in doing so, examines both the advantages and limitations of soft law regulation. Section II provides an overview of the significant soft law developments in the business and human rights field. Given the diversity of the principal constituents in this sector - States, corporations and NGOs - it is perhaps not surprising that soft law has been a principal default mechanism for connecting human rights and business in recent decades. Section III focuses on the SRSG’s concept of the corporate responsibility to respect as embodied in the Guiding Principles and its status and significance. If considered soft law, then what distinguishes it from prior soft law instruments and to what extent is it likely to be more or less effective than previous attempts to curb corporate human rights violations? While this paper highlights the many limitations of using soft law to hold corporations to account for human rights, it also recognises that reliance on soft law can result in incremental change. Soft law is not necessarily commensurate with soft results. Achieving something, even if not perfect, can be preferable to achieving nothing. However, for soft law (and in particular the corporate responsibility to respect as set out in the Guiding Principles) to be an effective and sustainable rights protection mechanism, I argue that there is a need for a more intimate connection to ‘hard’ - that is legally binding - law. This could be achieved in various ways but one is to require States to oblige corporations to comply with the due diligence component of the responsibility to respect. In its current format, the corporate responsibility to respect embodies a high degree of fragility and flexibility but what is needed most urgently in this field is greater robustness and uniformity that not only encourages but requires corporations to, at a minimum, respect human rights.