Dr. Barnali Choudhury

Business and Human Rights Obligations on the Continuum of Soft to Hard Law

In the wake of the Rana Plaza disaster as well as ongoing human rights atrocities perpetuated by multinational corporations, the impetus for the business and human rights (BHR) movement continues to grow momentum. The idea of linking business and human rights issues is no longer viewed as two distinct systems which operate in isolation from one another but is rather seen as a predicament that must be addressed.

The UN Guiding Principles on Business and Human Rights (UNGPs) is the latest international response to this predicament. Advocating for differentiated but complementary responsibilities, the UNGPs place primary responsibility for addressing business and human rights issues with the state, but further identifies the need for corporations to respect human rights within their sphere of influence. More importantly, the UNGPs confirm that corporations have human rights responsibilities.

However, corporate human rights obligations have mainly been situated at the voluntary level. That is, human rights obligations for corporations are phrased in permissive rather than mandatory language. Moreover, enforcement obligations for these voluntary obligations are either weak or non-existent. For that reason, corporate human rights obligations are often termed soft law.
Recently, however, there have been attempts to harden corporate human rights obligations. Several states are currently negotiating a binding Business and Human Rights treaty which, upon completion, would impose legally binding human rights obligations on multinational corporations. Similarly, the UK has recently introduced the Modern Slavery Act which imposes board liability for failures to disclose the company’s practices in eradicating slavery within its organization and supply chains. Moreover, the French are currently debating a bill which would impose civil liability on corporations who fail to undergo due diligence processes to ascertain human rights risks.

Against this background, this article seeks to examine where on the continuum of soft to hard law the BHR movement lies. More importantly, given the consensus and corporate acceptance that soft law obligations have generated, it questions whether greater efforts to harden BHR obligations are warranted.