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

Abstract

The 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-makingcould 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.

The Importance of Human Rights for Management and Organization Studies

“…Each of them corresponds to recent calls and observations in BHR scholarship. First, some scholars have acknowledged the importance of understanding institutional factors and processes in the realm of human rights (Augenstein, 2018a; 2018b; Buhmann, 2015; Wettstein, 2021). Recent contributions emphasize the importance of ‘an international ecosystem or constellation of corporate responsibility’ (Deva, 2021; Rivera, 2019, p. 213, emphasis in original) and describe civil society movements as ‘the real force behind the shifting BHR landscape’ (Wettstein, 2021, p. 325).…”

“…Many BHR-related normative frameworks and guidance principles have been created, such as the United Nations Global Compact, the United Nations Guiding Principles on Business and Human Rights, National Action Plans in more than 20 countries (Augenstein, 2018a;Rivera, 2019), and national human rights regulation such as the German Law on Supply Chain Due Diligence and the French Loi de Vigilance (Krajewski, Tonstad and Wohltmann, 2021), among others (Bueno and Bright, 2020;Macchi and Bright, 2020). However, recent studies have shown that (1) corporate BHR implementation is patchy and weak and thereby leaves much to be desired (Oxfam India, 2018), (2) human rights disclosure requirements do not really provide insights into corporate human rights conduct (Agarwal, 2018), and (3) 'only a minority of companies demonstrate the willingness and commitment to take human rights seriously' (World Benchmarking Alliance, 2020, p. 3).…”

Judicializing Environmental Governance? The Case of Transnational Corporate Accountability

“…While these tools form a much-needed framework for developing shared environmental standards, they do not possess binding force, barring further translation into national legal instruments (Morgera 2020). Under the auspices of the UNGP and its decentralized system of national action plans (Augenstein 2018), several European states have lately introduced or are currently deliberating comprehensive due diligence laws to clarify the rights and obligations of corporate actors in relation to human rights and environmental protection (Bonnitcha and McCorquodale 2017;Nicholson and Chong 2011). A crucial feature of all such policies is that they penetrate global value chains to capture corporate groups and contractual relationships across national boundaries.…”

The ‘Court of Public Opinion:’ Public Perceptions of Business Involvement in Human Rights Violations

“…This knowledge is important for the business and human rights field for two reasons. First, it informs debates in the business and human rights literature, and amongst policymakers, regarding the right balance between ‘soft’ and ‘hard’ law approaches to the regulation of MNE human rights conduct (Augenstein, 2018 ; Parella, 2020 ). A better understanding of when the public is more or less likely to judge a company to be involved in a human rights violation facilitates the identification of specific standards that require stronger, ‘hard’ law approaches; equally, it can guide efforts to shift the public’s view, so that ‘soft’ law instruments become more effective as a result of increased social pressure for compliance.…”