ABSTRACT
Businesses, like other legal entities, are bound first and foremost by domestic law. As a general rule, whether a company is domiciled, has invested or is simply trading in a given country, it will be subject to the domestic law of that country. While states are under an obligation, under international human rights law, to protect potential victims from corporate human rights abuses, the type, depth and extent of the regulation of businesses can vary a great deal from one country to another. Moreover, one of the biggest obstacles to the effective prevention of businesses’ human rights abuses is the fact that in many countries, especially developing countries, while the legal framework may be relatively sophisticated, rules are only partially enforced and corruption may distort their application. In this context, this chapter cannot cover all aspects of the regulation of
business in the human rights area by all governments around the world. Rather, it intends to present the various ways in which states may decide to shape their policies so as to fulfil their duty to protect human rights against corporate abuse, as required by the UN Guiding Principles on Business and Human Rights, but also by international human rights law generally.1 As was the case with regard to the private regulation of companies,2 states’ public regulation of companies did not start with the adoption of the UN Guiding Principles. Employment law, environmental regulation, social reporting and procurement are among the various areas touching upon the field of business and human rights that states have been regulating for decades, well before the phrase ‘business and human rights’ was even coined. This chapter purports to review these policies through a business and human rights lens and to look at newer types of policy and regulation which states have adopted that fulfil their international legal obligation to protect human rights against corporate abuse, and contribute to bridging the corporate accountability gap. UN Guiding Principle 2 on Business and Human Rights recommends that
‘States should set out clearly the expectation that all business enterprises
domiciled in their territory and/or jurisdiction respect human rights throughout their operations’. This is meant to include business enterprises’ overseas operations. With this in mind, this chapter is divided into two sections. The first section covers law and policies that are purely domestic, in the sense that they are meant to apply on the territory of the state that has adopted them, for the benefit of people who are present on that same territory. The second section covers law and policies that have extraterritorial implications, in the sense that although they apply on the territory of the state that has adopted them, they are for the benefit of people who live outside that territory, in a foreign country. Many of the policies discussed in the second section were adopted by the United States, or by US states, making this chapter rather US-centred. This is not to say that other countries have done nothing in this area. However, it seems as though the US has been at the forefront when it comes to the adoption of such policies, and that they have attracted a lot of media and scholarly attention.
