Towards a new legal consensus on business and human rights: A 10th anniversary essay
| Author | Daniel Augenstein |
| DOI | 10.1177/09240519221076337 |
| Date | 01 March 2022 |
| Published date | 01 March 2022 |
| Subject Matter | Articles |
Towards a new legal consensus
on business and human rights:
A 10th anniversary essay
Daniel Augenstein
Tilburg Law School, Tilburg, Netherlands
Abstract
The article takes stock of developments in domestic and international law concerning the regula-
tion of adverse human rights impacts by global business enterprises, one decade after the adoption
of the UN Guiding Principles on Business and Human Rights (UNGPs) and the Maastricht
Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural
Rights (Maastricht Principles). It discusses these soft-law instruments in the light of long-standing
systemic obstacles to holding business enterprises legally accountable for their global human rights
impacts. The article argues for a new legal consensus on business and human rights, grounded in
the increasing recognition by States that corporate respect for human rights should be brought
under the purview of (international) human rights law. This consensus builds on the gradual con-
vergence between the regulatory models that underpin the UNGPs and the Maastricht Principles,
such that States’domestic regulation of business enterprises with extraterritorial effect becomes
anchored in international legal obligations towards foreign victims of business-related human rights
violations.
Keywords
Business and human rights, CSR, home-state regulation, extraterritorial obligations, UNGPs,
Maastricht principles, business and human rights treaty
1. INTRODUCTION
2021 marks the 10th anniversary of two important international soft-law initiatives on business and
human rights: the UN Guiding Principles on Business and Human Rights (UNGPs) endorsed by the
Corresponding author:
Daniel Augenstein, Department of Public Law and Governance, Tilburg Law School, Professor Cobbenhagenlaan 221,
Tilburg 5037 DE, Netherlands.
E-mail: D.H.Augenstein@tilburguniversity.edu
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(1) 35–55
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09240519221076337
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Human Rights Council in March 2011;
1
and the Maastricht Principles on Extraterritorial
Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht
Principles) adopted by a group of human rights experts in September of the same year.
2
While
neither the UNGPs nor the Maastricht Principles are legally binding, they both draw on inter-
national human rights law to close protection gaps that emerged with the exposure of the inter-
national State-based order to the human rights impacts of economic globalisation. As such, they
represent the most recent wave of responses to a long history of egregious human rights violations
involving so-called ‘multi-national’corporations and their global supply chains –from the Bhopal
tragedy of the 1980s and the execution of the Ogoni Nine in the Nigeria of the 1990s to the Rana
Plaza building collapse of the 2010s and the present-day adverse human rights impacts of business
responses to COVID-19 on workers in the Global South.
The article takes stock of the reception and impact of the UNGPs and the Maastricht Principles
one decade after their adoption. It discusses both soft-law instruments in the light of long-standing
systemic obstacles to holding business enterprises legally accountable for their global human rights
impacts. These obstacles have often been explained in virtue of States retreating from, or losing
control over, processes of economic globalisation associated with (neoliberal) policies of trade lib-
eralisation, deregulation, and privatisation.
3
Yet, they are equally consequential of the way State
legal orders have institutionalised the relationship between ‘business’and ‘human rights’, based
on the intersecting distinctions between public and private, and between domestic and foreign.
The public-private divide has construed powerful for-profit corporations akin to private individuals
whose disembodied ‘human’rights (private property and sanctity of contracts) require protection
against the State; and whose responsibilities towards society are exhausted by maximising share-
holder value and engaging in corporate philanthropy.
4
Concurrently, the domestic-foreign divide
has propelled a globalisation of the liberal private sphere of ‘free’market activities, while constrict-
ing the scope of public human rights obligations by sovereign territorial borders.
5
This territorial-
isation of human rights obligations in public international law, together with the segmentation of
globally integrated business enterprises into separate legal persons via domestic private law (the
‘corporate veil’), has shielded for-profit corporations from legal human rights accountability.
Against this background, the article argues for a new legal consensus on business and human
rights that is grounded in the increasing recognition by States that corporate respect for human
rights should be brought under the purview of (international) human rights law. This requires bridg-
ing the divide between (private and voluntary) social responsibilities of corporations and (public
1. Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations’“Protect,
Respect and Remedy”Framework’(2011) A/HRC/17/31.
2. ‘Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’, pub-
lished with extensive commentary in (2012) 34 Human Rights Quarterly 1084.
3. See, respectively, Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge
University Press 1996); Saskia Sassen, Losing Control? Sovereignty in the Age of Globalisation (Colombia University
Press 1996).
4. From the burgeoning multi-disciplinary literature, see Jessica Whyte, The Morals of the Market (Verso 2019); Steven
Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, (2001) 111 Yale Law Journal 443;
Anna Grear, ‘Challenging Corporate “Humanity”: Legal Disembodiment, Embodiment and Human Rights’(2007) 7
Human Rights Law Review 511; Subhabrata Bobby Banerjee, ‘Corporate Social Responsibility: The Good, the Bad
and the Ugly’(2008) 34 Critical Sociology 51.
5. David Kennedy, ‘Law and the Political Economy of the World’(2013) 26 Leiden Journal of International Law 7; Claire
Cutler, Private Power and Global Authority (Cambridge University Press 2003).
36 Netherlands Quarterly of Human Rights 40(1)
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