On The Legal Regime For Business' Human Rights Responsibility

The latter half of the 20th century has witnessed the increasingly prominent adverse human rights impacts of business enterprises,in particular large multinational corporations.Business enterprises may not only affect "virtually all internationally recognized rights",but also inflict severe harms upon human rights.In the meantime,the international human rights law remains a state-centered structure,one that neither recognizes business enterprises as a subject of international law,nor addresses business and human rights issues in a systematic manner.As such,the development of a legal regime for business and human rights becomes a much-debated issue in the field of international law.Business and human rights issues exemplify both the fragmentation of international law and the constitutional fragments phenomenon.As a result of the fragmentation of international law,business enterprises are not typical regulatory targets under the international human rights law.As a result of the constitutional fragments phenomenon,the international community recognizes human rights'binding force on business enterprises,but lacks the institutional arrangements for the juridification process.Consequentially,human rights' binding force on private actors,such as business enterprises,is usually validated through a "contemporary paradox":human rights are no longer first set as norms of law that may subsequently be breached,but are rather validated by their very violation and the subsequent outcry.In other words,human rights are juridified to fulfill the needs of specific scenarios,in a bottom-up fashion that is spontaneous,iterative and unsystematic.This "common law" approach to juridification inevitably results in uncertainties in terms of standards and outcome of human rights' binding force.For business and human rights issues,these uncertainties mean,on the one hand,higher compliance costs for business enterprises with human rights standards,and on the other hand,more difficulties in seeking remedies for victims.On business and human rights issues,the relevant actors not only juridify human rights'binding force on business enterprises with a bric-a-brac of decisions responding to the exigencies of the moment,but also have engaged in multiple attempts to build a systematic legal regime for business and human rights.The competition between hard law and soft law is a recurring theme throughout the history of the latter endeavors.The international community,as represented by the United Nations(UN),has undergone three stages for its efforts to develop a legal regime for business and human rights:the failed attempt to draft a binding treaty,the initial success of a soft law instrument,and the revisit to the treaty issue.As important building blocks of international legal regimes,hard law and soft law each has its advantages.This dissertation acknowledges the potential for soft law to operate as an effective governance tool in its own right.On basis of this understanding and from a development point of view,this dissertation argues that hard law and soft law are not of a linear relationship where "soft law lays foundation for hard law,and the interpretation and application of hard law in turn generate new soft law".Rather,the two types are of a reticulated relationship where hard law and soft law,as constitutive elements of legal regimes,push forward the overall development through cooperation and competition.Such interaction between hard law and soft law is named a relationship of "co-development" in this dissertation.Against the backdrop of the fragmentation of international law and the constitutional fragments phenomenon,this dissertation seeks to build a United-Nations-centered legal regime for business and human rights,on basis of the co-development relationship between hard law and soft law.This dissertation contains five chapters.The first chapter focuses on co-development relationship between hard law and soft law as demonstrated in the field of business and human rights.During the development process of a legal regime,hard law and soft law demonstrate a co-development relationship,where the two interact in various manners and to various degrees.Interpretation and reconstruction are two basic means of interaction.For interpretative interaction,the later norm and the prior norm are consistent in their core proposition,with the later as a derivative of the prior.Most UN treaties—including those on human rights issues—are formulated in this fashion,though with the increased diversity and complexity of international and regional interests,international law-making tends to be more reliance on non-conventional approaches,such as from soft law to soft law,rather than the traditional from soft law to hard law approach.For reconstructive interaction,the later norm and the prior norm are rivalries,with the later criticizing and seeking to replace the prior.The relationship between two landmark instruments on business and human rights issues,the 2011 UN Guiding Principles and the 2003 UN Draft Norms,is an example of this type of interaction.The UN Draft Norms were rejected by both UN member states and the business community.By contrast,the UN Guiding Principles were endorsed by the UN Human Rights Council and have become the cornerstone of existing business and human rights governance framework.The second chapter explores the necessity and drafting strategies of a binding business and human rights treaty,through analysis of the substantive and formal characteristics of the 201 1 UN Guiding Principles.On basis of the "Protect,Respect and Remedy" framework,the UN Guiding Principles are one UN endorsed human rights instrument that for the first time,treats a category of non-state actor(i.e.,business enterprises)as a separate regulatory target,and restates corporate social responsibility(CSR)practices with human rights law discourse As such,they have profound impacts in both the human rights and the CSR fields.From a formal bindingness perspective,the UN Guiding Principles are a soft law instrument.However,due to several special characteristics,such as the expert-driven drafting process,the lack of negotiation and vote by UN member states,and the integration of hard law,soft law and even non-legal elements,this dissertation holds that the UN Guiding Principles are a new type of human rights intruments in the UN system.Despite signs of initial success of the UN Guiding Principles,debates within the UN on the hardening of business and human rights regime have not come to an end.In 2014,the UN Human Rights Council resolved to reopen its exploration of hard law regimes.This dissertation acknowledges the necessity of hard law instruments,and contends that the positioning of the treaty shall be guided by the co-development relationship of hard law and soft law.As such,the treaty shall purport to coordinate and transform existing human rights norms,to address the gaps left by soft law instruments and voluntary initiatives,and to pave way for future norms.In drafting the business and human rights treaty,interpretive and reconstructive approaches shall both be adopted to achieve the best balance between normativity and political considerations.The third chapter looks at the application of hard law and soft law co-development in the formulation of the treaty text,arguing that the use of both interpretive and reconstructive approaches would contribute to the textual development of legal norms.Specifically,in terms of scope of application,this dissertation identifies with the broad strategy taken by the UN Guiding Principles,but suggests a multi-layered textual structure for the purpose of balancing the regulatory objectives and political considerations.While emphasizing the need for all business enterprises to manage their human rights impact,the treaty shall regard "multinational corporations and other business enterprises with operations of a transnational character" as its central regulatory targets.While calling for the respect of all internationally recognized rights,those provided under the core human rights treaties shall receive particular attention.In terms of regulatory model,this dissertation advocates the separation of norms on the content of responsibility,and norms on the implementation of responsibility.For the former category,the treaty may directly provide for the standard of business' human rights responsibility,or do this in an indirect fashion,by requiring the state parties to incorporate such standards into their domestic laws.In terms of the content of responsibility,this dissertation agrees to the framework established by the UN Guiding Principles.In other words,"respect for human rights"shall be the core of business enterprises' human rights responsibility,which shall extend to the enterprises' business relationships over which they have leverageThe fourth chapter examines the application of hard law and soft law co-development in the formulation of the treaty implementation mechanisms,arguing that the use of both interpretive and reconstructive approaches would contribute to the harmonization of legal mechanisms.For norms on the implementation of responsibility,this dissertation contends that the treaty shall adopt an indirect approach by providing the specific implementation standard in the treaty,but leaving the application of such standard to the domestic law of each state party Internal and external implementation mechanisms under the treaty are all developed through criticism and reconstruction of the UN Guiding Principles.Human rights due diligence under the UN Guiding Principles provides a practical foundation for both internal and external implementation.For internal implementation,this dissertation recommends the treaty to build a layered framework on basis of human rights due diligence,under which human rights due diligence functions as a risk management measure for adverse human rights impacts caused or contributed to by the enterprise itself,and as a duty of care for adverse human rights impacts associated with the enterprise's business relationships.For external implementation,it is suggested that the treaty list human rights due diligence as the core regulatory measure,while also encouraging states to engage in extraterritorial regulation.The fifth chapter analyzes the application of hard law and soft law co-development in the formulation of the treaty remedial mechanisms,arguing that the use of both interpretive and reconstructive approaches would contribute to the perfection of functions.Prominent features of remedial mechanisms for business' human rights responsibility include the reliance on non-state and non-judicial compliant mechanisms,and the emphasis on dialogue and communication between business enterprise and the victim.This dissertation urges the treaty to reinforce the legal basis of remedial mechanisms,and to enhance the coordination between judicial mechanisms at national level and complaint mechanisms at enterprise level,with consideration of the practicalities of the victims' remedy-seeking experiences.In terms of the legal basis,this dissertation holds that the treaty shall acknowledge the victim's right to remedy and elaborate the content of this right.In terms of specific remedial mechanisms,this dissertation identifies with the multi-channel remedial mechanism framework under the UN Guiding Principles,while contending that the treaty shall place state-based judicial grievance mechanisms at the core,supplemented by state-based non-judicial mechanisms and enterprise-based operational-level grievance mechanisms.The examination of key issues of the business and human rights treaty,such as the scope,responsibility regime,implementation mechanisms,and remedial mechanisms,is intended to lay the foundation for a multi-dimensional business and human rights legal regime.Business and human rights issues are extremely complex,not only because of the varied needs and degrees of intensity of regulatory measures brought about by the broad and diverse business-related human rights impacts,but also due to the different levels of regulation that already exist for different sectors.To provide,in one single treaty,detailed human rights standards for each and every business sector,would not only face insurmountable theoretical difficulties,but also render the treaty-making process painfully slow.Therefore,the purpose of the business treaty,as studied by this dissertation,is to address the gaps left by existing soft law and voluntary initiatives,to build consensus around the basics of business enterprises' human rights responsibility,to encourage domestic regulation in this field,and to enhance harmonization of state practices.It is hoped that on such basis,sector-specific protocols may be developed to provide more detailed guidance.