Mega-Sporting Events (MSEs) like the Olympics and FIFA World Cup inspire humanity and have the potential to promote human rights, including through job creation and urban regeneration. Yet for over a decade MSEs have been linked to a pattern of human rights abuses that reads like a panoply of Business and Human Rights themes. The very legitimacy and social license of MSEs is increasingly on the line. Yet we may have reached a tipping point. In the past year the Commonwealth Games Federation, FIFA, and the International Olympic Committee have begun to instigate human rights reforms. A new multi-stakeholder coalition, chaired by Mary Robinson and facilitated by IHRB, meanwhile is pursuing innovative collaborate solutions to the human rights issues at stake. Supported by international agencies, governments, sports bodies, sponsors and broadcasters, and civil society, this coalition seeks to promote learning and accountability in a sector for whom business and human rights is new territory.

On 29 November 2020, Swiss citizens voted on a popular constitutional initiative, known as the Swiss Responsible Business Initiative.1 The vote was triggered by an initiative signed by more than the required 100,000 Swiss citizens who used their constitutional right to ask for an amendment of the Swiss Constitution by introducing a new provision on mandatory human rights due diligence and corporate liability. For such an initiative to be successful, both the majority of the people as well as of the cantons (states) is required. While 50.7 per cent of the participating voters accepted the initiative, the proposal did not reach the majority of the cantons and therefore the Responsible Business Initiative was rejected. Its rejection nevertheless triggered the adoption of new reporting and due diligence obligations relating to conflict minerals and child labour, which the Parliament had promised to adopt in case the Responsible Business Initiative was rejected.2 This contribution outlines the content of the newly adopted human rights due diligence legislation that will reflect the due diligence standard for companies in Switzerland for the years to come. It also aims to inform policy makers in other countries by describing the political struggle underlying the adoption of mandatory human rights due diligence in Switzerland.

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

Following the 2011 endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs), states have begun to implement National Action Plans (NAPs) to operationalize the UNGPs. Using a case study approach and applying a conceptual framework for polycentric governance, this article aims to provide an early assessment of the effectiveness of NAPs adopted by the United Kingdom and the United States to combat one of the worst human rights abuses in global supply chains: modern slavery. This study demonstrates that both NAPs contain elements addressing the governance gaps surrounding modern slavery, such as enacting new laws, adapting existing regulations, strengthening multi-stakeholder mechanisms for business accountability, and promoting innovation. However, it is argued that the NAPs themselves were not the catalysts for the majority of these measures. This article concludes that states should optimize the five characteristics of polycentric governance outlined in this study to improve the relevance and effectiveness of NAPs as drivers of change.

Human rights have come to play a prominent role in debates about the responsibilities of business. In the business ethics literature, there are two approaches to the question of whether businesses have human rights obligations. The ‘moral’ approach conceives of human rights as antecedently existing basic moral rights. The ‘institutional’ approach starts with contemporary human rights practice in which human rights refer to rights enumerated in the Universal Declaration of Human Rights and subsequent international documents, and in which states are the primary duty bearers of human rights. This commentary argues that the implications of adopting one or the other approach are much greater than most scholars recognize, and that we have reason to reject the moral approach and to adopt the institutional approach instead. The commentary highlights key questions that need to be addressed if human rights are to play a central role in framing the responsibilities of business.

This article utilizes the struggles for land rights associated to two sugar cane investments in Cambodia to reflect on the interactions between the multi-territoriality of supply chain capitalism and the multiplication of local spaces of legal intervention. With a combination of legal institutionalism, critical geography and value chains analysis, the article engages with value chains as the new space and form of the global system of production and looks at the theoretical and practical implications that derive from delocalization, outsourcing and the establishment of transnational networks that cut across boundaries and jurisdictions. After discussing the human rights impact of large-scale sugar production in the Koh-Kong region, the article introduces a critical legal chain approach to unpack and make visible the material and legal threads that connect Cambodia with multiple geographies around the world. In its last part, it utilizes the multi-territorial character of production to map its complexity and introduce the notion of ‘legal chokeholds’. These are legal structures and spaces of intervention that can be leveraged by human rights scholars, activists and other actors interested in re-defining the way in which rights, bargaining power and value are distributed through the chain of production. The violations and possible defence of the land rights that occurred in Cambodia are thus presented as output of non-linear interactions between legal and non-legal elements that operate at a distance, often unaware of each other.

Scholars have suggested that ‘home’ states of transnational corporations (TNCs) have a legal duty to protect against human rights abuses occurring in ‘host’ states that may be breached by failure to regulate TNCs’ extraterritorial activities. This article challenges the claim that such a duty of home states to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist as a matter of law. The article first summarizes the general structure of arguments made in favour of such a ‘home state duty to regulate’. It then considers the foundations and meanings of extraterritorial jurisdiction in public international law and international human rights law; requirements and conditions of attribution and state responsibility for the conduct of non-state actors; and the scope and limits of ‘positive obligations’ to ensure the effective enjoyment of human rights, domestically and extraterritorially, as they relate to prevention of human rights abuses by TNCs.

National Contact Points (NCPs), which support the OECD Guidelines for Multinational Enterprises, are often invoked as a reliable state-based mechanism for holding transnational corporations accountable for business-related human rights abuses. The objective of this article is to scrutinize the ability of NCPs to offer effective remedy through the lens of an often-quoted success story (the case of the post-colonial brewery Bralima-Heineken at the Dutch NCP) and through a few existing studies that examine factors that curtail or enhance the possibility of NCP mechanisms to deliver effective remedy. Based on these findings, we suggest specific ‘actions for effectiveness’ in the form of recommendations for improving NCPs as a tool to deliver effective remedy. Zooming out, we extend some general observations on how our findings illustrate that NCPs are expressions of a larger systemic problem surrounding the role of law within market globalization and the impact of economic liberalization on the making of norms, changing legal authority and basic fairness under conditions of stark power imbalance. Supporting this approach are historical factors which make the OECD Guidelines and NCPs ripe for such conceptualization.

The article examines the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union via National Action Plans (NAPs). We argue that some of the shortcomings currently observed in the implementation process could effectively be addressed through the Open Method of Coordination (OMC) – a governance instrument already used by the European Union (EU) in other policy domains. The article sketches out the polycentric global governance approach envisaged by the UNGPs and discusses the institutional and policy background of their implementation in the EU. It provides an assessment of EU member states’ NAPs on business and human rights, as benchmarked against international NAP guidance, before relating experiences with the existing NAP process to the policy background and rationale of the OMC and considering the conditions for employing the OMC in the business and human rights domain. Building on a recent opinion of the EU Fundamental Rights Agency, the article concludes with a concrete proposal for developing an OMC on business and human rights in the EU.

This article explores different approaches to assessing the effectiveness of non-state-based non-judicial grievance mechanisms (NSBGMs) in achieving access to remedy for rightsholders. It queries the approach that has been widely adopted as a result of the United Nations Guiding Principles on Business and Human Rights (UNGPs), which focuses on the procedural aspects of grievance mechanisms. Rather, it stresses the importance of analysing the outcomes of cases for rightsholders. This article tests this hypothesis by undertaking comprehensive empirical research into the complaint mechanism of the Roundtable on Sustainable Palm Oil (RSPO). RSPO is found to perform well when judged according to the UNGPs’ effectiveness criteria. However, it performs poorly when individual cases are assessed to ascertain the outcomes that are achieved for rightsholders. The article therefore argues for the importance of equivalent scrutiny of outcomes in relation to other NSBGMs and provides an approach and accompanying methodology that can be utilized for that purpose.

The divide between hard law and soft law approaches to global regulation of corporations in relation to human rights is partly based on empirical assumptions. Taking a step back, we assess the claims concerning the current state of global regulation and political feasibility of hard law approaches. Moving beyond the usual suspects, we map 98 existing standards that regulate corporations and find a great variation in how different sectors treat human rights and accountability issues. Turning to the explanation of the current jungle of global business and human rights regulation, we contrast and test dominant and competing expressive theories with a consequentialist commitment curve, in which corporations and states seek to minimize human rights commitments. We find support for all approaches to regulatory reform, but argue that greater attention should be given to the consequentialist insights, and how political economy can be leveraged to strengthen regulatory outcomes.

This article delves into the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) with a view to inform the negotiating process of the proposed business and human rights (BHR) treaty. It highlights points of convergence and divergence between the two regulatory regimes and explores how the BHR treaty negotiations could draw from the deep seabed mining regime with regard to the responsibility and liability of states and corporations. In particular, it suggests that a BHR treaty could incorporate some of the arrangements of UNCLOS to address state obligations and direct corporate human rights obligations, both of a general and specific nature, including the obligation to carry out human rights due diligence. The article also proposes a mechanism of responsibility and liability of states and corporations under the future BHR treaty going beyond UNCLOS and embracing residual liability for home and/or host states.