Negotiating the Hard/Soft Law Divide in Business and Human Rights: The Implementation of the UNGPs in the European Union
| Author | Daniel Augenstein |
| Date | 01 May 2018 |
| Published date | 01 May 2018 |
| DOI | http://doi.org/10.1111/1758-5899.12530 |
Negotiating the Hard/Soft Law Divide in
Business and Human Rights: The
Implementation of the UNGPs in the European
Union
Daniel Augenstein
Tilburg Law School
Abstract
The article discusses the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the Euro-
pean Union against the backdrop of perennial debates between proponents of ‘hard’versus ‘soft’law approaches to prevent-
ing and redressing corporate-related human rights violations. It argues that the Open Method of Coordination (OMC) –an EU
governance instrument of transnational policy-making –could contribute to negotiating the hard/soft law divide in business
and human rights by ensuring a more effective implementation of the UNGPs in the European legal space. Moreover, the
European experience with open coordination calls for a reappraisal of the relationship between international law and global
governance in addressing today’s business and human rights predicament. The first part of the article situates the debate
between proponents of ‘hard’and ‘soft’law approaches to business and human rights in the context of two UN-driven initia-
tives: the development of national action plans (NAPs) to implement the UNGPs; and the negotiation of an international busi-
ness and human rights treaty. The second part of the article relates experiences with the existing NAP process in the
European Union to the policy background and rationale of the Open Method of Coordination and discusses the conditions for
its successful employment in the business and human rights domain.
Policy Implications
•The European Union should develop an Open Method of Coordination on business and human rights to enhance the
implementation of the UN Guiding Principles on Business and Human Rights in the EU Member States.
•An Open Method of Coordination could support the UNGP implementation process through establishing a common time-
table for the production and revision of national action plans; building up a set of common indicators and benchmarks;
institutionalising a state-to-state peer review process; and promoting multi-stakeholder initiatives and dialogues at the
European and national level.
•A more effective implementation of the UNGPs in the European Union would contribute to negotiating the hard/soft law
divide in business and human rights.
•Past European experience with open coordination calls for a reappraisal of the relationship between the international
treaty initiative and the UN Guiding Principles on Business and Human Rights.
1. Business and human rights in Europe
In April 2017, the European Union Agency for Fundamental
Rights (FRA) published its Opinion on Improving Access to
Remedy in the Area of Business and Human Rights at the EU
Level (FRA, 2017). Parts of the Opinion deal with the imple-
mentation of the UN Guiding Principles on Business and
Human Rights (UNGPs) in the European Union and the EU
member states via national action plans (NAPs). FRA calls
upon all EU member states ‘to develop comprehensive NAPs
in line with the UN Guiding Principles’. The EU itself ‘could
encourage faster adoption, greater harmonisation, better
comparison between the plans, and stronger peer review on
the plans themselves and on the action to which they are
committed’(FRA, 2017, p. 66). To this end, FRA recommends
the use of the Open Method of Coordination (OMC) –an EU
governance instrument to enhance cooperation between the
member states and to direct national policies towards com-
mon European objectives. An OMC on business and human
rights could help member states to develop ‘a common
understanding of the problems and challenges in implement-
ing the UN Guiding Principles, as well as to build consensus
on their practical implementation’. From an EU perspective, it
could ‘provide a way to monitor how EU law in the area of
business and human rights is implemented and identify areas
of potential future action’(FRA, 2017, p. 67).
The author of this contribution has been instrumental in
developing the FRA recommendation to design an Open
©2018 University of Durham and John Wiley & Sons, Ltd. Global Policy (2018) 9:2 doi: 10.1111/1758-5899.12530
Global Policy Volume 9 . Issue 2 . May 2018
254
Research Article
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