Towards Normative Transformation: Re-Conceptualising Business and Human Rights

Publikation: Bog/antologi/afhandling/rapportPh.d.-afhandlingForskning

This dissertation examines the ongoing problem of business actors violating
human rights and the regulatory attempts to deal with the problem at the
international level. In particular, it considers the work of the UN Secretary-
General’s Special Representative on Business Human Rights, John Ruggie and the
‘Protect, Respect and Remedy’ framework as elaborated in the 2011 UN Guiding
Principles on Business and Human Rights. It also critically analyses the UN Global
Compact, the OECD Guidelines on Multinational Enterprises as well as
developments in the European Union in this area. Each of these regulatory
mechanisms demonstrates elements of new governance, hybrid or third way
models of regulation such as voluntarism, wide participation through
multistakeholder structures and subsidiarity, all of which are useful soft law
techniques that contribute to a culture of human rights or human rights norm
internalisation. Nevertheless, they fall down in failing to provide a normative
regulatory framework which would address human rights abuses by business
actors which remain unresponsive to soft law models of regulation. Specifically,
there is a lack of redress for the victims of human rights abuses by business
actors and the current regulatory models do not offer a deterrent to or
punishment of such abuses. This dissertation argues that the international
community must thus re-conceptualise the business and human rights problem
and move towards a mandatory international legal paradigm.

New governance models have emerged from a changing international legal
paradigm and they represent a move away from State-centric regulation towards
the complementary co-existence of hard and soft rules in one domain. While
many of the new governance techniques offer useful means of internalising a
human rights culture within the business community and thus helping to prevent
human rights abuses, nevertheless, the lack of normative rules means that no
binding redress mechanisms or remedies are available. A true new governance
approach allows both normative and non-normative standards to co-exist. Given
that the voluntary business and human rights initiatives alone have failed to
address the problem adequately, a new international normative approach is
necessary. This thesis posits that re-conceptualising business actors as human
rights dutyholders does not require a major paradigm shift. International law
has always recognised business actors as subjects of international law, or
alternatively, participants at minimum, and there is no good reason why they
cannot be subject to human rights obligations. This thesis advocates the
application of a horizontal approach to human rights which encompasses human
rights violations by business actors. At present, a conservative, positivist and
State-centric perspective of international law prevails, which prioritises the
maintenance of State sovereignty over the rights of individuals not to be abused
by business actors.

The law is correct as of October 2011.
ForlagUniversity of Glasgow
Antal sider392
StatusUdgivet - 2012

ID: 236279298