This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

The concept of a ‘safe harbour’ has been mentioned in several contexts during ongoing discussions around regulatory developments towards mandatory human rights and environmental due diligence (mHREDD) which continue at international, European and national levels. This article analyses the concept of a ‘safe harbour’ and how it relates to human rights due diligence (HRDD) as described in the UN Guiding Principles on Business and Human Rights (UNGPs). It discusses examples of other types of safe harbours which were recognized in legislation and case law; considers that a safe harbour could result in a ‘tick-box’ approach; highlights the implications for access to remedy; and distinguishes a safe harbour exemption from a defence of having undertaken HRDD in accordance with an expected standard of conduct.

After the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the Human Rights Council in June 2011, human rights due diligence (HRDD) has become a common currency widely embraced among stakeholders operating in the business and human rights (BHR) field. The UNGPs envisage HRDD to be the primary tool for businesses to identify, prevent, mitigate and account for adverse impacts of their activities on internationally recognized human rights.

Investor–state dispute settlement (ISDS) has been heavily criticized from the perspective of human rights. However, the potential adverse human rights impacts of ISDS and the responsibilities of businesses to avoid causing or contributing to those impacts under the UN Guiding Principles on Business and Human Rights have yet to be spelled out. Although states are currently reforming ISDS, progress has been slow, and businesses have an independent responsibility to ensure that their operations do not harm human rights. Against this background, this article unpacks how businesses might contribute to three non-exhaustive examples of potential human rights impacts of ISDS: namely, the chilling effect on human rights regulation, crippling mega-awards and direct impacts on third-party rights. This article breaks new ground by exploring how human rights due diligence could be a useful tool for businesses to identify and address these impacts.

The UN Guiding Principles (UNGPs) and their concept of human rights due diligence (HRDD) cannot succeed in their current form, because they reify neoliberalism’s public/private divide. This article establishes this argument across historical, theoretical, and normative dimensions, and charts a new way forward. The UNGPs’ separation of the ‘state duty to protect’ from the ‘corporate responsibility to respect’ reflects a contestable conception of companies as private actors: free to act/transact in any way that is not harmful. This is a problem because harm is often invisible, even when taking an active due-diligence approach. To resolve this, HRDD practices must also be based on the positive value of equality. However, businesses are more than mere agents; they also coordinate production and enable social connections. These structural features reveal a ‘missing fourth pillar’ of the UNGPs: a collective political responsibility to challenge and change our current world order.

There has been tremendous momentum in adoption of business and human rights regulations, specifically national legislation that mandate human rights due diligence. While these laws have been heralded as the torchbearers of progress, this article approaches national legislation on business and human rights by placing them in context of a North–South divide through a Third World Approaches to International Law (TWAIL) lens. It looks at the form of regulation of transnational corporations (national/international) – not the substance – and illustrates the neo-colonial flavour of these laws by diving into the narrative behind the adoption of the French devoir de vigilance law. It illustrates that the French law can also be read as an attempt to universalise European values while reinforcing power hierarchies. The claim of this article is that national legislation cannot be a substitute for a treaty but only a path towards one, because national legislation structurally lacks means to take the Global South participation seriously.

This article opines that corporations should utilize leverage in procurement contracts with states to prevent human rights abuses. Capitalizing on leverage over state business partners should be understood as an under-explored but intriguing dimension to the advancement of human rights. This article uses the example of the Pfizer-Israel procurement contract to provide mRNA COVID-19 vaccinations as a case study. While the Pfizer-Israel contract required Israeli governmental compliance with various laws, and referenced other legal obligations, no reference to human rights, such as the right to informed consent, was referenced in any contractual provision. The failure of Pfizer to insert contractual provisions regarding the Israeli government’s duty to obtain informed consent provides a glaring exemplar of a missed corporate opportunity to fulfil the corporate responsibility to respect human rights.

The scale and scope of the climate crisis and its drastically worsening impacts means that even as a ‘climate due diligence’ obligation is increasingly taking shape as a dimension of human rights due diligence, there is also growing evidence of the limitations of this emerging norm. This article provides four critiques of climate due diligence based on its insufficiency, its conceptual ambiguity, its operational limitations, and its structural limitations. It argues that these critiques could be addressed by regulatory reform that draw clear ‘red lines’ based on the need to prevent the development of any new fossil fuel and address the ‘corporate capture’ of regulatory institutions by the fossil fuel industry. Additionally, it calls for reparations to ensure effective access to a remedy for existing and potential future climate-related human rights impacts that business has caused or contributed to.

This article presents an empirical study of six grievance mechanisms in multi-stakeholder initiatives (MSIs). It argues that key characteristics of each grievance mechanism as well as the contexts in which they operate significantly affect human rights outcomes. However, even the most successful mechanisms only manage to produce remedies in particular types of cases and contexts. The research also finds that it is prohibitively difficult to determine whether ‘effective’ remedy has been achieved in individual cases. Furthermore, the key intervention by the UN Guiding Principles on Business and Human Rights (UNGPs), to prescribe a set of effectiveness criteria for designing or revising MSI grievance mechanisms, itself appears ineffective in stimulating better outcomes for rights-holders. Drawing on these findings, the article reflects on the future potential and limitations of MSI grievance mechanisms within broader struggles to ensure business respect for human rights.

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a helpful, but insufficient tool for addressing corporate abuse of human rights. One reason for this is because the root cause of many business and human rights problems is the structural elements and goals of corporate law facilitates corporate violations of human rights. So long as states fail to transform the way in which corporations operate – in part, by reconceptualizing corporate law – even the best drafted HRDD laws will be inadequate to halt corporate harms.

In its 2019 report to the Human Rights Council, the United Nations (UN) Working Group on business and human rights emphasized that ‘gender-transformative’ remedies can bring ‘change to patriarchal norms and unequal power relations that underpin discrimination, gender-based violence and gender stereotyping’. This article aims to deepen our knowledge of such remediation for women human rights defenders who fight against corporate human rights abuses. Human rights remediation is highly fragmented. This has the advantage that remedies at one level can offer sources of learning for remedies at other levels. This article uses relevant communications that the UN Special Rapporteur on the situation of human rights defenders sent to states and corporations jointly with other Special Procedures (including the UN Special Rapporteur on violence against women and girls, its causes and consequences and the UN Working Group on discrimination against women and girls in law and practice) between 2011 and 2020 as a source of learning.

This paper presents an alternative epistemic worldview of the corporate responsibility to respect human rights (CR2R) as a norm. It examines how an Afrocentric interpretation of the CR2R norm can contribute to a relational system where corporations promote human rights in African host communities. It uses an African norm — Ubuntu — to reframe and reinterpret Pillar II in Afrocentric terms. It argues that this reframing is important for three reasons. First, Ubuntu reframing increases the CR2R norm’s intelligibility in Africa because it clarifies and contextualizes the term ‘respect’ used in Pillar II. Second, reframing the CR2R norm through Ubuntu fills the ethical gap in the interpretation of the CR2Rnorm. Third, an Ubuntu-inspired interpretation insulates the CR2R norm from some scholars’ critique that the CR2R norm’s scope is narrow because it only encourages MNCs to avoid infringing on the human rights of others without prescribing positive obligations. This paper then examines channels through which Ubuntu can influence the CR2R norm.

There is growing recognition of the need for a more ‘socially just’ implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) that embraces bottom-up, rights holder-driven approaches.1 An initiative is underway to articulate a set of community principles to supplement the three-pillar ‘respect, protect, remedy’ framework of the UNGPs, with a fourth pillar that underscores the importance of rights holder agency to the effective implementation of human rights protections.2 With regard to access to remedy, the UN Working Group on Business and Human Rights has emphasized that ‘rights holders should be central to the entire remedy process’,3 and others have made similar observations, encouraging a ‘co-design’ process.4

This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.

This article argues that the trend to zoom into mandatory human rights due diligence (mHRDD) as the sole solution to corporate abuse is misleading. In fact, it might risk missing entirely the main point which, as set out in this article, should be creating economic systems that enable rights-based and rights-driven business models. A small, but growing number of scholarly articles address the economic, fiscal and regulatory institutions needed to create an enabling environment for the fulfilment of human rights. These policy areas constitute what some of us understand as a ‘rights-based economy’ or ‘rights-enabling economies’. State-level efforts would be much more effective in promoting substantive equality if driven by a rights-based approach rather than a market logic. This article contends that while ensuring comprehensive mHRDD is in place as a preventative and mitigation tool, states must also push for transformative macroeconomic policies based on human rights principles as a way to fundamentally change business models.

In June 2023, the OECD published ‘targeted updates’ to the newly renamed OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. This piece examines some of the most significant updates from the perspective of civil society. The majority of the updates strengthen the authoritative international standards on responsible business conduct; for example, by addressing new and important topics, such as climate change, and clarifying expectations on established due diligence concepts. Meanwhile, the revised implementation procedures suggest progressive measures for governments to strengthen their National Contact Points, but largely do not require specific improvements. This piece discusses the strengths and shortcomings of these changes and assesses the impact of the updates on international norms.

Economic inequality, in particular vertical inequality in income and wealth within countries,1 has widened considerably with potentially dramatic economic, political and social consequences.2 Reflecting the need for urgent action on inequality, the United Nation’s Sustainable Development Goal (SDG) 10 focuses on the reduction of various forms of inequality within and between countries.3 In that context, a number of recent interventions have sought to highlight how business affects inequality,4 recognizing that businesses have a central function in creating and distributing economic value in society. Significantly, two emerging initiatives, the Task Force on Inequality-Related Financial Disclosure (TIFD)5 and the Business Commission to Tackle Inequality (BCTI) by the World Business Council for Sustainable Development,6 seek to notably identify business impacts on inequality and provide approaches for their alleviation.

This article studies human rights due diligence by private corporate creditors in the context of sovereign debt restructurings. First, the legal bases of this specific due diligence are presented and systematized. Then, by providing empirical statistical evidence, the article analyses whether haircuts applied by creditors across countries regularly consider the social and economic human rights situation of the debtor countries in question, as part of creditors’ due diligence. Also, the main characteristics of bond markets that contribute to understanding the asymmetric power relationship between private lenders and sovereign borrowers are described. Finally, Argentina’s latest debt restructurings are studied in depth to determine whether human rights were taken into account when agreeing on the size of haircuts. From quantitative and qualitative data, this article concludes that the haircuts agreed by creditors are regularly not sensitive to the social and economic human rights situation of debtor populations or to the impact that debt agreements could have on them.

On 24 June 2022, the Contracting Parties of the Energy Charter Treaty (ECT) finalized discussions on the modernization of the treaty. After fifteen rounds of negotiations, an agreement in principle was reached to be adopted by the Energy Charter Conference on 22 November 2022 in Ulaanbaatar, Mongolia.1 The ECT, adopted in 1994, establishes a legal framework that aims to promote international cooperation in the energy sector.2 It has a membership of 53 countries primarily from Europe and Central Asia, as well as the European Union (EU) and the European Atomic Energy Community. In recent years, the ECT attracted widespread public attention due to its impact on states’ environmental and climate policies. Particularly, the treaty’s provisions on investment protection, with investor-to-state dispute settlement (ISDS) at the centre, allow foreign investors in the energy sector to challenge adverse state action before international arbitration and claim compensation for measures affecting their business activities. Fossil fuel investors have increasingly used the ECT to challenge environmental and climate measures, such as phasing out coal-fired power generation, banning offshore oil drilling in coastal areas, and prohibiting gas fracking projects. Such cases have fuelled concerns regarding the abilities of governments to roll-out large-scale climate action. The Intergovernmental Panel on Climate Change (IPCC) has warned that international investment agreements (IIAs) like the ECT could ‘be used by fossil-fuel companies to block national legislation aimed at phasing out the use of their assets’.3 With some of these damage claims running into billions of euros, the ECT enables fossil fuel investors to offload the costs and risks associated with their affected assets onto society at large in the face of necessary climate action. This would go, in the words of the editorial board of the Financial Times, against the ‘heart of the capitalist social contract’ and the ‘ability of markets to deal adequately with the challenge of climate change’.4

The United Nations Guiding Principles on Business and Human Rights conceive of human rights due diligence (HRDD) as covering potential impacts across value chains, including downstream. The proposed EU Corporate Sustainability Due Diligence Directive and the revision process of the OECD Guidelines for Multinational Enterprises have sparked renewed discussion on how and whether companies should conduct HRDD downstream to identify and prevent or mitigate adverse human rights impacts. Whilst some debate has occurred previously on downstream HRDD, this has predominantly centred on specific sectors, products and services where the links to egregious human rights harms may be more readily identifiable. This piece seeks to inform the current debate by broadening the examples of sectors, products and services and current business practice which demonstrate the critical need for, and ability of, companies to consider human rights risks downstream.