Business and human rights: three baselines for business and human rights / Radu Mares.

After endorsing the UN Guiding Principles on business and human rights (UNGPs) in 2011,
the UN set up in 2014 an intergovernmental working group with a mandate to examine a
treaty on business and human rights. A first draft for discussion will be issued in late 2017.
The intention has been to supplement the UNGPs – an authoritative policy instrument seen
as ‘soft law’ – with a legally binding instrument.
This brief explains the progression of legal reasoning around corporate human rights responsibilities during the last two decades. One can identify three stages, or “baselines”, that
were drawn in the mid-2000s, in 2011, and post-2014 on how to regulate the activities of
multinational enterprises (MNEs).
The first baseline is the result of the classical international human rights law tradition exposed in the UN Norms the Responsibilities of Transnational Corporations with Regard to
Human Rights (UN Norms), which were developed in the early 2000s and shelved in 2004
after encountering fatal opposition from states and businesses.
The second baseline consists of the UNGPs, adopted in 2011, following the UN mandate
of John Ruggie, who came with a different take on global governance – and the role of
international law therein – and how to shape business conduct.
The third baseline is currently being drawn as the UN began in 2014 exploring an international
legal instrument on corporate accountability through the work of the UN inter-governmental
working group.
Is the third baseline predisposed to revert to the first baseline? Is that desirable and what
would be the alternative to this reversal? How does one ensure that the emerging third
legalization baseline is complementary with the second baseline? This brief identifies characteristics of the three baselines to stimulate evaluation of the past developments and
encourage reflections on the way forward for regulatory thinking on MNE accountability.