22 September 2015

Despite its 'business' element, the business and human rights agenda still turns heavily on what states are or are not willing to do.


Dr Jolyon Ford

Former Associate Fellow, International Law


The dilapidated premises of the Union Carbide plant stand as a reminder of the night in 1984, when the plant began to leak 27 tons of toxic methyl isocyanate. Bhopal, India. Photo: Giles Clarke/Getty Images.
The dilapidated premises of the Union Carbide plant, Bhopal, India. Photo: Getty Images.


  • It is probable that the period 2015–25 will see fairly sustained pressure for the adoption of measures to narrow the ‘governance gap’ between corporate influence and accountability, including with regard to business respect for human rights.
  • This regulatory gap is not a vacuum, and a range of standards do already apply. However, uncertainty about the future of the business and human rights (BHR) agenda explains the need for more guidance on wider trends for policy-makers, legal advisers and others.
  • Market incentives are shifting so that there is no necessary trade-off between being competitive and being responsible; indeed, in some sectors proven social responsibility may increasingly provide a competitive edge.
  • Intergovernmental processes and activists are focusing on access to remedy, but progress will be slow and piecemeal. Some legislative and business actors are focusing on prevention issues, and Europe shows an emerging trend towards more mandatory due diligence and disclosure requirements for corporations.
  • Big business in major economies will not necessarily resist some legislation on due diligence, if only to reduce prevailing regulatory uncertainty. Yet any legislative moves will be patchwork in global terms, and may be less significant in prevention terms than self-regulatory initiatives by the business and financial sectors.
  • The international legal framework on BHR issues is not evolving as fast or as fully as some experts maintain. In particular, there is insufficient evidence behind claims that a general international law duty now exists on states to regulate the human rights impacts of corporate nationals abroad.
  • It remains easy to overstate levels of awareness and activity around BHR issues and the 2011 UN Guiding Principles (GPs) on Business and Human Rights. Most firms lack sufficient awareness, capacity or incentives in this area. Pressures on governments to narrow the governance gap will not necessarily see the GPs receive greater global priority.
  • The BHR agenda is about much more than national-level uptake of the GPs, and is not simply a legal or legislative project. Yet the ideal scope of the BHR narrative remains debatable. Wide framings of the BHR debate could affect how readily it is able to gain a transformative degree of traction as a legal, policy and business strategy issue.
  • With the focus on procedural due diligence requirements, one emerging risk is that the BHR narrative becomes primarily about narrow issues of technical compliance and reporting. If so, it will lose its power to drive broader, transformative strategic and commercial thinking.
  • Comprehensive, just, effective and predictable future BHR frameworks at any level will require both public law grounding and widespread positive business engagement. An ideal strategy cannot be limited either to top-down state ‘command’ regulations or to voluntary business-driven initiatives alone.