Proposing a new theoretical approach to international law-making that relates to transnational global concerns which require private non-state actor participation for their solution, this paper considers the inclusive multi-stakeholder based process that led to the emergent UN-based Business and Human Rights (BHR) regime. Taking a socio-legal approach to communicative and discursive aspects of regulation and taking inspiration from legal discourse studies, the paper identifies the communicative and negotiative elements of the process towards the BHR regime and analyse them to draw out insights for future processes of transnational regulation of global or local sustainability concerns. This leads to the formulation of a process of collaborative rule-making within an international law context. The paper develops a model for collaborative regulation to help deliver a ‘compliance pull’ that international law professor Thomas Franck in the 1990s argued is paramount for international law-making in the absence of strong enforcement institutions.
After several failed efforts at international regulation of business responsibilities for human rights, a BHR regime finally emerged with the UN Human Rights Council’s ‘welcoming’ in 2008 of the United Nations (UN) Framework on Business and Human Rights, confirmed by the Human Rights Council’s adoption in 2011 of the UN Guiding Principles on BHR (UNGPs). The UN Framework and UNGPs broke ground not only though having become developed and accepted within the normally state-centred UN context, but also by explicitly involving the private sector in several capacities: the private sectors was included along with other non-state actors in the evolution of the new set of norms in a manner that recognised companies as potential bearers of responsibilities, and the process led to recognition of an explicit role of private companies in regard to human rights (even if so far on a soft-law basis).
The paper argues that the lessons of the multi-stakeholder regulatory process towards the current BHR regime that was successful in generating support for a new international soft law guidance in a field that had previously been highly controversial offers insights for future international law-making to regulate transnational concerns. Such concerns may relate to societal impacts in regards to natural or human resources, climate change, or other challenges for sustainable balancing of economic and non-economic practices and needs. Based on an empirical analysis of documents produced and submitted as part of the regulatory process, the paper identifies strengths and weaknesses of the regulatory process that took place under the mandate as Special Representative of the UN Secretary-General on BHR (held for the two terms 2005-2008 and 2008-2011 by professor John Ruggie). The paper describes how the process that resulted in the BHR regime can be argued to exemplify a reintroduction and reassertion of the role of the UN as an international organisation that is a relevant regulator for transnational sustainability-related concerns, as well as renovation of its regulatory role, expanding it to include private non-state actors and simultaneously reminding states of the own Duty to Protect at the horizontal level between firms and individuals.
The paper concludes the analysis by developing recommendations for future multi-stakeholder regulatory processes under international organisations like the UN. The overall theoretical contribution aims to feed into a process of updating international law-making to respond to the increasing role and influence of non-state actors that act and cause impacts beyond the borders of nation states.
9d. Law and sustainability
