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INTRODUCTION
Business and human rights (BHR) issues permeate some of the most pressing problems faced both by governments and businesses. These range from economic inequality,1 to the protection of human rights in free trade deals2 and to supply chain matters.3 Recently, the importance of protecting BHR issues has been highlighted by recent scandals such as the collapse of a garment factory in Bangladesh4 and the large number of employee suicides in one of Apple's largest suppliers in China.5 Indeed, the idea of BHR as encompassing two disparate systems that operate in isolation from one another is gradually being rejected by both governments and business. These issues are now understood as something which must be addressed.
Yet despite the growing recognition that it is important for business to address human rights issues, responsibilities for companies in this area are mainly voluntary. Corporate BHR responsibilities are rarely framed in mandatory language and enforcement of these voluntary responsibilities also tends to be weak or non-existent. For that reason, BHR corporate responsibilities are best characterized as ‘soft’ law.
Recently, however, there have been attempts to ‘harden’ BHR responsibilities by initiating a shift from voluntary to mandatory frameworks. States are in the midst of negotiating a binding BHR treaty, which, upon completion, would impose legally binding human rights obligations on multinational companies.6 Efforts have also been made at the domestic level to harden BHR responsibilities. Whilst binding legal obligations certainly bring clarity and enforceability, businesses have frequently opposed such initiatives. In fact, previous efforts to impose mandatory BHR obligations on businesses met with such resistance that the initiatives had to be abandoned altogether.7
Against this background, this article questions whether initiatives setting out the responsibilities of business vis-à-vis human rights need to encompass binding legal obligations in order to be effective. If the goal of promoting such initiatives is to minimize corporate impacts on human rights, binding obligations may not be beneficial in an area where business acceptance of such initiatives is crucial to their success. Instead, this article argues that BHR initiatives that are essentially soft in nature but that are accompanied by characteristics of hard law can be equally effective at establishing norms for business responsibilities without becoming legal obligations.
The...