Early View Article - Negotiating the Hard/Soft Law Divide in Business and Human Rights: The Implementation of the UNGPs in the European Union
The article discusses the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union against the backdrop of perennial debates between proponents of ‘hard’ versus ‘soft’ law approaches to preventing and redressing corporate-related human rights violations. It argues that the Open Method of Coordination (OMC) – an EU governance instrument of transnational policy-making – could contribute to negotiating the hard/soft law divide in business and human rights by ensuring a more effective implementation of the UNGPs in the European legal space. Moreover, the European experience with open coordination calls for a reappraisal of the relationship between international law and global governance in addressing today's business and human rights predicament. The first part of the article situates the debate between proponents of ‘hard’ and ‘soft’ law approaches to business and human rights in the context of two UN-driven initiatives: the development of national action plans (NAPs) to implement the UNGPs; and the negotiation of an international business and human rights treaty. The second part of the article relates experiences with the existing NAP process in the European Union to the policy background and rationale of the Open Method of Coordination and discusses the conditions for its successful employment in the business and human rights domain.
- The European Union should develop an Open Method of Coordination on business and human rights to enhance the implementation of the UN Guiding Principles on Business and Human Rights in the EU Member States.
- An Open Method of Coordination could support the UNGP implementation process through establishing a common time-table for the production and revision of national action plans; building up a set of common indicators and benchmarks; institutionalising a state-to-state peer review process; and promoting multi-stakeholder initiatives and dialogues at the European and national level.
- A more effective implementation of the UNGPs in the European Union would contribute to negotiating the hard/soft law divide in business and human rights.
- Past European experience with open coordination calls for a reappraisal of the relationship between the international treaty initiative and the UN Guiding Principles on Business and Human Rights.