Introduction

Multinational corporations (MNCs) operate in what has been described as “a vacuum between ineffective national laws and non-existent or unenforceable international law”.¹ National laws have proved inadequate in the governance of MNCs because of territorial limitations. Under international law the MNC is barely recognised and generally not directly bound by international law.² Attempts to fill the vacuum in which MNCs operate have resorted to soft laws and/or self-regulation.³ To date these approaches have not yielded satisfactory results. For their part, many MNCs have adopted corporate social responsibility (CSR) strategy to fill the vacuum. This strategy generally lacks formal state power of sanction and instead seeks normative authority from international law.⁴ Significantly, human rights issues are increasingly incorporated in companies’ CSR strategies. Human rights issues are included, for example, in corporate assessments mentioning human rights compliance, sustainability reports touting compliance with international human rights standards and corporate codes of conduct. The CSR philosophy is convenient for corporations as the approach shifts focus away from regulation. According to Buhmann, the emerging concept of CSR and its relationship to law and 2legal standards has had limited attention paid to it by legal academics.⁵ This may not be surprising as the predominant view of CSR that it consists of “ethical, voluntary, non-enforceable rules”⁶ would seem to have placed the concept outside the ambit of the law as law is generally known, especially from a positivist perspective.⁷ According to Dine, since corporate initiatives are voluntary they are liable to capture by the public relations department of companies. She further opines that “it is likely that a great deal of energy will be spent to little effect. The participants have ‘a feel good’ factor which deflects them from the more important structural issues causing the problems”.⁸