‘Change here for…’: Understanding progress in business and human rights through legal entanglement
| Published date | 01 September 2024 |
| DOI | http://doi.org/10.1177/09240519241253103 |
| Author | Tomáš Morochovič |
| Date | 01 September 2024 |
| Subject Matter | Articles |
‘Change here for…’:
Understanding progress in
business and human rights
through legal entanglement
TomášMorochovič*
International Law Department, Graduate Institute of International and Development
Studies, Geneva, Switzerland
Abstract
Progress in the business and human rights space can be quite a fickle thing to assess. Despite inten-
sive norm development, many observers emphasise elements of stagnation within the field. This
article argues that much of the frustration is caused by the dominance of a linear understanding
of progress which is fixated on the dichotomy between soft and hard forms of regulation. This,
in turn, obscures much of the dynamism within the field. To better account for progress within
the business and human rights space, the article suggests a shift of framing from a linear conception
of regulatory change to one that understands the field as an entangled normative network char-
acterised through the connections between norms. By using the norm of human rights due dili-
gence as an example, the article highlights the nuanced developments and linkages between
various instruments, systems, and actors that evidence intense norm-making activity within the
business and human rights space. The on-going normative-discursive exchange between stake-
holders produces a norm that is constituted through an iterative process of entanglement.
Keywords
Business and human rights, human rights due diligence, legal entanglement, OECD Guidelines,
UN Guiding Principles on Business and Human Rights
* TomášMorochovičis a Doctoral Candidate in the International Law Department at the Graduate Institute of
International and Development Studies in Geneva, Switzerland. The author wishes to thank everyone who engaged with
and contributed to the various iterations of this article –in particular, the anonymous peer reviewers, Nico Krisch,
Andrew Clapham, Debadatta Bose, Jana Šikorská, and all the participants of the BHR Young Researchers Summit held at
the University of St. Gallen in 2022.
Corresponding author:
TomášMorochovič, Doctoral Candidate, International Law Department, Graduate Institute of International and
Development Studies, Chem. Eugène-Rigot 2, 1202, Geneva, Switzerland.
Email: t.morochovic@gmail.com
Creative Commons CC BY: This article is distributed under the terms of the Creative Commons Attribution
4.0 License (https://creativecommons.org/licenses/by/4.0/) which permits any use, reproduction and distribu-
tion of the work without further permission provided the original work is attributed as specified on the SAGE and Open
Access page (https://us.sagepub.com/en-us/nam/open-access-at-sage).
Article
Netherlands Quarterly of Human Rights
2024, Vol. 42(3) 233–252
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519241253103
journals.sagepub.com/home/nqh
1. INTRODUCTION
Progress in the business and human rights space can be quite a fickle thing to assess. Despite
intense norm-making activity over the past decade which resulted in the proliferation of
various soft norms and more conventional binding instruments, such as domestic legislation,
often the overall picture painted of the field is one of stagnation. Although the field is moving
in the right direction, we are not getting to our desired destination quite quickly enough. In
this article, it is suggested that much of this frustration is triggered by the linear understanding
of progress which is pervasive within business and human rights. It is argued that the dominant
narrative characterises development within the field as the movement from soft instruments
towards hard, binding, and ideally international laws. Thus, the linear progress narrative is con-
structed around the soft/hard dichotomy and is quite similar to the movement along a single
railway track –soft law and corporate social responsibility serve as the point of departure and
binding international law as the grand city terminal. Yet, just as the most direct railway route
might not be the quickest, so too the exaggerated adherence to the linear progress narrative
can hamstring our understanding of progress.
In this article it is argued that the linear progress narrative and the soft/hard dichotomy fail to
grasp much of the dynamism within the business and human rights field. In contrast, progress
within this area comes into much better view if we approach it with a frame that allows us to
see the micro-level developments and linkages between various norms, systems, and actors.
An approach centred around the concept of legal entanglement reconfigures the image of the
field into a genuine transnational legality which is characterised through the various connections
existing within the network. Instead of a single railway line, we are confronted with a complex
transport system in which various lines but also modes of transport connect, intersect, or create
transit hubs, thus making travel much more efficient. By linking normative and discursive ele-
ments and continuously weaving more of them in, the entangled legality of business and
human rights, just as the transport network, creates a different yet powerful and expansiv e
system.
Thevalueofsuchachangeofperspectiveisdemonstratedbyunpacking,insectiontwo,
the current state of the business and human rights field. The section proceeds by explaining
how the predominance of the linear progress narrative and the soft/hard dichotomy is facilitating
a sense of stagnation in the area, before then proposing a change of perspective to a networked
rather than linear understanding of norm development. In section three, the concept of legal
entanglement as a potential theoretical frame to transcend the dominant narrative is suggested.
The section provides a brief introduction to the concept and identifies some ways in which it
challenges our understanding of how legal norms develop. Finally, in section four a closer
look is taken at how legal entanglement can be identified in the business and human rights
field by zooming-in on the linkages and contestations around the norm of human rights due dili-
gence (‘HRDD’).
2. WAITING FOR A DIRECT CONNECTION: LINEAR PROGRESS
WITHIN THE BUSINESS AND HUMAN RIGHTS FIELD
One of the central hubs of interaction for stakeholders in the business and human rights
community is the annual session of the open-ended intergovernmental working group on
234 Netherlands Quarterly of Human Rights 42(3)
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