Towards normative transformation: re-conceptualising business and human rights

MacLeod, Sorcha (2012) Towards normative transformation: re-conceptualising business and human rights. PhD thesis, University of Glasgow.

Abstract

This dissertation examines the ongoing problem of business actors violating human rights and the regulatory attempts to deal with the problem at the international level. In particular, it considers the work of the UN Secretary- General’s Special Representative on Business Human Rights, John Ruggie and the ‘Protect, Respect and Remedy’ framework as elaborated in the 2011 UN Guiding Principles on Business and Human Rights. It also critically analyses the UN Global Compact, the OECD Guidelines on Multinational Enterprises as well as developments in the European Union in this area. Each of these regulatory mechanisms demonstrates elements of new governance, hybrid or third way models of regulation such as voluntarism, wide participation through multistakeholder structures and subsidiarity, all of which are useful soft law techniques that contribute to a culture of human rights or human rights norm internalisation. Nevertheless, they fall down in failing to provide a normative regulatory framework which would address human rights abuses by business actors which remain unresponsive to soft law models of regulation. Specifically, there is a lack of redress for the victims of human rights abuses by business actors and the current regulatory models do not offer a deterrent to or punishment of such abuses. This dissertation argues that the international community must thus re-conceptualise the business and human rights problem and move towards a mandatory international legal paradigm.

New governance models have emerged from a changing international legal paradigm and they represent a move away from State-centric regulation towards the complementary co-existence of hard and soft rules in one domain. While many of the new governance techniques offer useful means of internalising a human rights culture within the business community and thus helping to prevent human rights abuses, nevertheless, the lack of normative rules means that no binding redress mechanisms or remedies are available. A true new governance approach allows both normative and non-normative standards to co-exist. Given that the voluntary business and human rights initiatives alone have failed to address the problem adequately, a new international normative approach is
necessary. This thesis posits that re-conceptualising business actors as human rights dutyholders does not require a major paradigm shift. International law has always recognised business actors as subjects of international law, or alternatively, participants at minimum, and there is no good reason why they cannot be subject to human rights obligations. This thesis advocates the application of a horizontal approach to human rights which encompasses human rights violations by business actors. At present, a conservative, positivist and State-centric perspective of international law prevails, which prioritises the maintenance of State sovereignty over the rights of individuals not to be abused by business actors.

The law is correct as of October 2011.

• Item Type: Thesis (PhD)
• Qualification Level: Doctoral
• Keywords: Business and human rights, corporate social responsibility, UN Guiding Principles on Business and Human Rights, OECD Guidelines on Multinational Enterprises, UN Global Compact, Protect Respect Remedy, hybrid regulation, voluntarism, multistakeholder, soft law, norm internalisation, norm internalization, human rights dutyholders, horizontal application of human rights
• Subjects: K Law > KZ Law of Nations; K Law > K Law (General)
• Colleges/Schools: College of Social Sciences > School of Law
• Supervisor's Name: Scobbie, Prof. Iain
• Date of Award: 2012
• Depositing User: Dr Sorcha MacLeod
• Unique ID: glathesis:2012-3714
• Copyright: Copyright of this thesis is held by the author.
• Date Deposited: 14 Nov 2012
• Last Modified: 10 Dec 2012 14:09
• URI: https://theses.gla.ac.uk/id/eprint/3714