• Multilateral regulation

Multilateral regulation

The state-based system of global governance has struggled for more than a generation to regulate the expanding reach and growing influence of transnational corporations. This paper reviews two recent chapters of this effort, focused especially on human rights:

• the “Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” 
• the author’s subsequent UN mandate as Special Representative of the Secretary General regarding the issue of human rights and transnational corporations.

The paper analyses key conceptual flaws of the Draft Norms, noting the difficulties of imposing on corporations, directly under international law, the same range of human rights duties that states have. The main failing of the Draft Norms is the lack of definition regarding who is the primary bearer of duties between the state and corporations .

The author presents an empirical mapping of current international standards and practices regarding business and human rights, ranging from the most deeply rooted international legal obligations to voluntary initiatives:

• the state duty to protect against corporate abuses
• corporate responsibility and accountability for international crimes
• corporate responsibility for other human rights violations under international law
• soft law mechanisms which include legislative or regulatory dimensions
• self-regulation such as individual company practices, industry initiatives and multi-stakeholder efforts.

Finally the paper proposes a strategy for building on existing momentum in order to reduce human rights protection gaps in relation to corporate activity. The central features of such strategy are:

• to expand the international human rights regime horizontally by clarifying and codifying the duties of state to protect human rights against corporate violations, through international cooperation
• the focal point in the business and human rights debate needs to expand beyond establishing individual corporate liability - despite this being a critical element it cannot fix larger systemic imbalances in the global system of governance
• many elements of an overall strategy lie beyond the legal sphere altogether - there is the need to move beyond compliance on behalf of corporations with regards to respect to human rights.
  

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