Why We Need a Legal Understanding of Business and Human Rights
The text below is from the Postcript to our book, Business and Human Rights as Law: Towards Justiciability of Rights, Involvement, and Remedy (LexisNexis 2019).
Postcript: A Word of Caution and a Call to Arms
We have sought with this text to explore the penumbrae on which the nascent legal discipline of business and human rights is being built. These run as indelible fault line from the very concept of adverse human rights impacts through to rights-compatible remedy, casting the entire discipline in principled uncertainty. But we have not waded through these issues to naysay or philosophize. To the contrary: we have considered the Guiding Principles on Business and Human Rights with a legal lens because we see in them remarkable, practical possibility. In creating a shared language of expectation and accountability, the Guiding Principles have laid the foundation for subjective corporate responsibility to become an objective legal science. That holds value for stakeholders and businesses alike. For stakeholders, particularly the most vulnerable, the virtues in deterrence and remedy may be priceless. For businesses, the value is certainty. Clear expectations are predictable and universal expectations level the playing field.
Seizing these benefits, however, depends on careful consideration of what the realm of business and human rights will, and should, look like as law. If voluntary business and human rights norms don legal garb unquestioned, the legal science will be one in name only. Law demands principled predictability, which corporate responsibility as voluntary, subjectively governed discipline is ill-suited to offer. This paradigm incompatibility has thus far been too lightly dismissed. The Zero Draft elevates concepts of corporate liability defined only in the voluntary sphere as if they were received legal wisdom. In Canada, the Ombudsperson for Responsible Enterprise risks doing the same by arming voluntary corporate responsibility standards with legal sanction without any of the certainty that should precede it. The French Loi relative au devoir de vigilance des des sociétés mères et des entreprises donneuses d’ordre and its proposed Swiss relation, once tested, may also end up importing the circularity and vagueness currently endemic to voluntary business and human rights standards into law. The challenge in each of these cases is not that business and human rights is becoming law. Rather, it is that business and human rights is only pretending to become law, that it is acquiring law’s consequence without subjecting itself to law’s rigour.
The legal discipline of business and human rights is at a critical juncture. There can be little doubt that the human rights standard of care for the reasonable business is evolving. Litigation risks are multiplying. Legislation is proliferating. And international law is grappling with how to subject private actors to global human rights responsibilities. But the discipline’s reach currently exceeds its grasp. Lawmakers, stakeholders, and even some businesses speak of human rights, involvement, and remedy in the corporate context as if the concepts were self-evident or born of rich pedigree. They are neither. Law has only probed human rights and remedy with states, not businesses, as duty-bearers; it scrutinizes causation still, and largely in a way anathema to the Guiding Principles’ express terms. This is not a reason to stop reaching for law’s limits. It is, however, the reason why our understanding of business and human rights as law — objective, principled, justiciable — must evolve in tandem with law and in parallel to corporate responsibility as voluntary enterprise.
