Special Seminar 1 - Business and Human Rights Tort

What is the Governance Framework?

The Governance Framework is to regulate corporate conducts in particular ways, such as state obligations to uphold human rights, to ensure companies don’t create harm and then mechanisms to make sure companies’ actions don’t cause harms.

What are the 3 interlocking systems that maintain the Governance Framework? And what does this consist of?

There are 3 interlocking systems, which consists of -

1. corporate governance (where companies have internalised some issues intergrated within public and private law, making sure due diligence is done in order to make sure their actions don’t do harm, such as shaping enterprise-wide strategy and policies including risk management),

2. public law (traditional systems of domestic public law, administrative law - traditional system of public law and governance, domestic and international, though it is unable to do all the heavy lifting on many global policy challenges, from poverty eradication to combating climate change) and

3. private law (such as stakeholders concerned with business conducts, which includes public interest justifications and it is a system of civil governance involving stakeholders concerned about adverse effects of business conduct and employing various social compliance mechanisms, such as advocacy campaigns, lawsuits, and other forms of pressure, but also partnering with companies to induce positive change.)

What are the 4 issues that these 3 interlocking systems face when trying to regulate corporate conduct?

All these factors discussed above have complicated issues regarding policy regulating corporate conducts, especially when conducting business overseas.

These systems work together to regulate corporate conduct, the issue is that they are fragmented, which means -

1. Geoeconomic changes accompany geopolitical shifts in nation-state power relations,

2. Rise in networked governance such as ISO, accounting standards boards which are non-governmental organisations making standards which corporations recognise to regulate their own conduct and,

3. Complexity of global issues and extensive interests, diversity of issues across and within different states (such as the extent of vulnerabilities, such as certain countries being harmed environmentally due to corporate conduct),

4. Scale mismatch, as in the multinational corporations will try to obtain resources such as in a country with more regulations but there is a trade-off, or a country with less regulations where there is freedom and you make a lot of money, transferring money to subsidaries from the parent companies, considering tax benefits and regulatory benefits.

What are 5 sources of international law policies? And what are the roles of these 5 sources?

The sources of international law policy includes -

1. Draft norms → These are initiatives involving the subcommission of the UN which make the corporations which work in different areas/multinational enterprises which involves a treaties making them liable under international law in the same way states have been and this would be ratified by only states (this is controversial as only states can be party to an international treaty and a system amongst states and one of the biggest issues included that this did not come from the general assembly, but from the subcommittee, so it didnt have the support of the state parties),

2. United Nations Global Compact → This involved different companies joined together to agree to their own standards in absence of countries’ law and was never intended to regulate, but more so guide and engage companies (social constructivist approach - creating social norms by deciding how you will behave, which fostered corporate norms),

3. OECD Guidelines for Multinational Enterprises → This involved standards set for responsible business conduct in areas such as labour rights, environmental and human rights and act as a international contact point to resolve disputes with corporations (but it is limited in scope and countries are legally bound to it, as opposed to companies which arent legally bound to it - countries which are in membership in OECD are bound to it and it is meant for states to acknowledge the impact of business conduct),

4. United Nations Binding Treaty → This involves a yearly open-ended working with transnational corporations and business in respect to human rights and involves a drafting on instruments on the regulation of other business enterprises, attempting to create a system which holds multinational enterprises accountable for their actions worldwide and the member states have given their mandate (the criticism is that there are too many interests groups, entities and lobbyists which means it is hard to come to a consensus to establish an instrument) AND

5. United Nations Guiding Principles → This consists of three pillars (protect, respect and remedy). And the duties for UNGP was for multinational enterprises and states, and how they should individually respect/remedy human rights and these are not binding (for practical reasons it was not binding, since some states would refuse to join). The remedies included state judicial mechanisms, state non-judicial mechanisms and non-state based grievance mechanisms. (In the formation of the UNGP, there was an implemention of multiperspectival approaches, such as how civil society, trade unions, companies impacted these and other aspects/approaches made.)

The United Nations Guiding Principles has three principles, what are the three pillars and what do they stand for?

• 1st pillar is states have the duty to protect human rights against abuses by third parties within their jurisdiction, through regulation, legislation, via policies, via enforcement or compliance mechanisms and in terms of overseas, this remains uncertain and enforcement includes assessing laws to address these gaps and making sure these laws enable business respect for human rights but no constrain businesses.

• 2nd pillar is states must respect the business, encouraging businesses on how they address their human rights abuses, such as through regulations and legislations + companies are not limited to individuals but can be owned by business partners, families, friends or different companies working together to create a form or even states owning companies, but states who own corporations have an extra duty to NOT cause harm.

• 3rd pillar is remedy (the state has a lot of responsibilities and duties, creating pathways for associated situations such as conflicts between companies and employees, states must create pathways, such as through the court system, judicial review + the state has to create pathways for people to seek redress, hence what is meant by ‘remedy’. In terms of obligations, there are other aspects of international law, such as international investment law which impacts how companies behaviour internationally).

Why do corporations ONLY have the responsibility to respect human rights (as per 2nd principle of the UNGP) and nothing beyond that? (5 reasons)

The reason companies are expected to ‘respect’ as opposed to complete a positive obligation akin to states is due to -

1. A state has wide-ranging powers, they can alter the law through state mechanisms,

2. It does not impose positive obligation which would discourage companies from acting and this would lead companies to shut shop,

3. Companies are a jurisdictional person, they can in some cases be considered to have their own human rights and protection as a result and can in some respects act like a person - even if it doesnt have personhood,

4. To avoid blurring between corporations and states, it maintains the distinction and you cannot hold it to the same standard as with states especially in relation to the UN, but there is criticisms such as companies having powers, relevance and tasks akin to a state (such as buiding roads, schools or having more powers than poorer states, which raises some concerns),

5. Economic incenitives to not impose positive obligations as it imposes more burdens on companies to complete tasks akin to a state

What is meant by corporations ONLY have the responsibility to respect human rights as per 2nd principle of the UNGP? And where should UNGP apply in terms of enterprises, and the role of UNGP in ensuring that corporations respect human rights?

What we mean by businesses need to respect human rights is that we as private citizens must not infringe on the rights of others, companies have to avoid harming others, seek to miitgate/prevent adverse human rights towards others locally or overseas, such as implementing an environmental impact assessment or process that satisifes a regulatory body.

And the UNGP should apply to all enterprises, irrespective of their sector, structure, or whether or not it is cross-board or international (such as a parent subsidary structure, or dual ownership structure), they should NONETHELESS respect human rights, implementing policies and human rights due diligence process and process to enable mediation as a part of companies’ conducts, making sure safeguards are implemented, risks are assessed and consultations of expertise/communicating with stakeholders.

What is meant by the 3rd pillar of UNGP - remedy? And what are the 3 forms of remedial mechanisms offered, and what are they?

People who have suffered can seek a range of different remedies.

States must act when abuses occur in their territory or jurisdiction, they should have remedies available in 3 forms, which are -

• state based judicial mechanisms (such as court cases, public or criminal cases and etc),

• state non-judicial mechanisms (an example being an ombudsman, mediation), AND

• non-state based grievance mechanisms (these include ones run by corporations which have caused the harm, states must consider how these methods are addressed and businesses must establish an operational system)

What gives the UNGP their legitimacy - which 3 communities recognised them? What actions were taken once the UNGP was created, and how does the UNGP contrast to the UN Global Compact, and the OECD guidelines, and what is the benefits/weakness of the UNGP in contrast to these other international law policies?

The UNGP obtained their legitimacy through the recognition of -

1. Trade unions,

2. indigenous communities and organisations,

3. companies and their confirmation with it after the consultation

The aftermath of the UNGP and what it established? -

This resulted in the establishment of common factual baseline, there were 50 international consultations across the world, and site visits to many companies across countries and sectors, NGOs and worker organisations. There were pilot projects in several sectors and countries disseminated UNGPs.

How does the UNGP contrast to the UN Global Compact and the OECD guidelines? -

• The UNGP acts as a contrast with the UN Global Compact, which was more of a learning platform as a guidance compact - contrast to UNGP.

• In contrast to the UNGP, OECD guidelines are only binding to OECD member states, though the OECD guidelines are useful as you can go to national contact points and try to mediate between the complainant and the multinational enterprise, without the need for a judicial component - but UNGP is more descriptive, as to what companies should do, though OECD guideline is a mechanism but limited to what it can do.

What are the flaws of 3 international law policies - in terms of norms, the UN Global Compact and Mandates?

1. Flaws of norm is that it was the work of the subcommission, and not the general assembly, therefore they didnt obtain a mandate from the states

2. Flaws with UN global compact is that it is solely a learning platform, it helps understand companies as to their actions and what they’re doing, but not binding, it is merely an exchange of knowledge

3. Role of a mandate in shaping a UN instrument is provides the entity the legitimacy to shape an instrument, states provide negotiators a mandate to complete a task which the states will then ratify, but without a mandate and you wish to implement something that states don’t agree with, it will be unlikely to be successful

What are the problems of Wagner’s vision of function of global tort law?

Wagner’s vision of global tort law has potential problems, such as -

1. Producer/manufacturer MNE liability for activity further down the supply chain (they can externalise the issue if it is further down the supply chain, or fragmentation across states where there are limitations where multi-enterprise companies are based, which countries’ tort law will be implemented),

2. Limitations of vicarious liability,

3. Role of human rights due diligence

What are the 4 step process within the UNGP ‘human rights due diligence’? And what is the role of ‘human rights due diligence’ in corporation accountability, and what is one criticism on the implementation of ‘human rights due diligence’?

This consists of 4 step process which is -

1. Assessing actual and potential human rights impacts

2. Integrating and acting on findings

3. Tracking responses

4. Communicating how impacts are addressed → This means that we have to focus on who is doing the said human rights abuses such as examining further down the chain or directly at the parental company, and through assessing how the activity will impact the environment, local community or workforce, what can be done and how can the company communicate this, how to address human rights abuses?

Human rights due diligence does not let anyone off the hook in terms of accountability, it will allow companies to have a set procedure - however, the criticism is that the uncertainty of companies due to the fragmentation.

What are the 5 duties that arise for MNEs/multinational enterprises under the UNGP (UN Guiding Principles)?

For businesses, beyond compliance with legal obligations, the Guiding Principles focus on the need to manage the risk of involvement in human rights abuses, which requires that -

1. The responsibility to respect → This means that the core responsibility for MNEs is to avoid infringing on the human rights of others and to address adverse human rights impacts with which they are involved, this responsibility applies to all enterprises regardless of size, sector, location, ownership and structure. This requires MNEs to comply with all applicable laws and respect internationally recognised human rights wherever they operate irrespective of conflicting local requirements, and AT MINIMUM they must adhere to the human rights expressed in the International Bill of Human Rights and ILO’s Declaration on Fundamental Principles and Rights at Work

2. Operational requirements → To meet their responsibility to respect human rights, MNEs must have specific policies and processes in place, such as (1) policy commitment which entails a high-level policy statement that stipulates their human rights expectations for personnel and business partners, and this must be made publicly available and embedded in operational practises, (2) MNEs must carry out ongoing human rights due diligence to identify, prevent, mitigate and account for their human rights impacts, this is meant to cover impacts the MNE causes/contributes through their activities as well impacts directly linked to their operations, products or services, (3) Remediation where the MNE identifies that this has caused an adverse effect and must cooperate in its remediation through legitimate processes

3. Addressing Impacts through Relationships → MNEs are responsible for impacts linked to their business relationships which includes partners and entities in their global value chances, hence if the MNE has leverage to prevent or mitigate an impact caused by a business partner, they should exercise it, and if it lacks leverage, it should increase it or end the relationship taking into account human rights consequences

4. Heightened Care in Conflict-Affected Areas → Because the risk of human rights abuses are higher in conflict zones, MNEs operaring there are expected to (1) exercise heightened due diligence to ensure they are not involved in those abuses, (2) treat risk of contributing or causing abuses as legal compliance issue that could lead to corporate criminal or civil liability and (3) assess whether their activities or relationships exacerbate the conflict

5. Grievance Mechanisms → MNEs should establish or participate in effective operational-level grievance mechanisms, which allows adversely impacted communities and individuals raise concerns, making sure grievances are addressed and remediated by the MNE before major disputes occur.

How has the UNGP created distinct duties and responsibilities between the roles of states and MNEs? (focusing on the states ‘duty’ and the MNEs ‘responsibility ONLY)

The UNGPs differentiate between the legal "duty" of the State and the societal "responsibility" of corporations:

• State Duty to Protect: States are the primary duty-bearers under international human rights law. Their duty is a standard of conduct, meaning they must take appropriate steps to prevent, investigate, punish, and redress human rights abuses by third parties, including business enterprises, within their territory or jurisdiction.

• Corporate Responsibility to Respect: This is a global standard of expected conduct for all business enterprises. It exists independently of a State’s ability or willingness to fulfil its own obligations and does not diminish those obligations. While States must protect against third-party abuse, businesses are required to avoid infringing on rights and to address impacts with which they are involved.

How has the UNGP created distinct duties and responsibilities between the roles of states and MNEs - focusing the following actions of (1) actionable tasks, (2) scope of human rights, (3) business relationships and (4) special contexts?

In terms of actionable tasks,

• States have a duty to enforce laws, provide guidance to businesses and ensure policy coherence across governmental departments

• MNEs have a corporate responsibility to implement policy commitment, conduct human rights due diligence and establish remediation processes

In terms of scope of human rights,

• States must respect, protect and fulfil the human rights of individuals within their jurisdiction

• MNEs’ corporate responsibility is to respect internationally recognised human rights, defined at minimum by the International Bill of Human Rights and the ILO Declaration on Fundamental Principles

In terms of business relationships,

• States should promote respect through commercial transactions, such as public procurement and it gives them the opportunity to promote awareness of and respect for human rights by those enterprises, including through the terms of contracts, with due regard to States’ relevant obligations under national and international law.

• MNEs must seek to prevent or mitigate impacts directly linked to their operations, products or services by their business relationships and they must do this through human rights due diligence - the human rights due diligence includes (1) assessing actual and potential human rights impacts, (2) integrating and acting upon the findings, (3) tracking responses, and (4) communicating how impacts are addressed

In terms of special contexts,

• States should help ensure businesses are not involved in gross abuses in conflict-affected areas

• MNEs must treat the risk of gross abuses as a legal compliance issue and exercise heightened care

How has the UNGP created distinct duties and responsibilities between the roles of states and MNEs - focusing on access to remedy?

Both States and corporations have roles in ensuring victims of business-related abuse have access to remedy:

• State Role: States must provide a systemic foundation for remedy, primarily through effective domestic judicial mechanisms. They should also provide non-judicial grievance mechanisms to supplement these courts.

• Corporate Role: Businesses should establish or participate in operational-level grievance mechanisms. These are designed to identify and address grievances early and directly, preventing them from escalating into major human rights abuses.

• Common Criteria that both must fulfil: Both State-based non-judicial mechanisms and corporate operational-level mechanisms should meet effectiveness criteria, including being legitimate, accessible, predictable, equitable, and transparent

Why should states and multinational enterprises have different duties with respect to human rights - especially in light of MNEs and states having different duties and responsibilities?

There are 5 key reasons for this distinction, which is -

1. States as Primary Duty-Bearers and Trustees

States are the primary duty-bearers under international human rights law. Their duty is a legal "standard of conduct" derived from existing international obligations to respect, protect, and fulfil the human rights of individuals within their territory or jurisdiction. This systemic role requires States to provide a comprehensive legal and regulatory framework to prevent, investigate, and punish abuses by any third party.

2. Corporations as Specialized Organs of Society

In contrast, business enterprises are recognized as "specialized organs of society performing specialized functions". Because their primary role is economic rather than political or legal, their responsibility is tailored to their specific activities. This responsibility is defined as a global standard of expected conduct, which is to respect human rights by avoiding infringement on others' rights and addressing any adverse impacts they are involved in.

3. Independent and Non-Diminishing Responsibility

The corporate responsibility to respect human rights exists independently of a State’s ability or willingness to fulfil its own obligations. This ensures that (1) human rights are protected even in "failed" or weak States, because If corporate responsibility were merely a derivative of State duty, businesses might have no obligations in areas where the government is unable or unwilling to protect its citizens, and (2) states remain accountable, this means that the responsibility of businesses does not "diminish" the State's own obligations.

4. Matching Obligations to Impacts and Capacity

While States have broad, systemic obligations to ensure the enjoyment of rights across their entire population, the corporate responsibility is proportional to the enterprise's size and the severity of its impacts. Whilst, MNEs can impact human rights, and their responsibility is therefore focused on human rights due diligence to identify and mitigate those specific risks. MNEs will have their own duties towards their employees, and companies but also to those citizens externally impacted by their activities, whilst States have a broader duties to all their citizens.

5. Coherence and Policy Space

By separating the roles of States and MNEs, the framework allows States to maintain domestic policy decision-making and space to meet their human rights obligations (such as through legislation or investment treaties) while providing a clear, universal standard for businesses to follow regardless of where they operate.

Why do all these mechanisms have the potential to be more effective and why - what are their strengths and weaknesse: state judicial mechanisms, state non-judicial mechanisms or non-state-based grievance mechanisms (the 3 remedies as discussed in the UNGP)? What do all these mechanisms look like?

1. State-Based Judicial Mechanisms

This is the core foundation of an effective remedial system - such as the criminal, administrative or public law of the state.

• Strengths: They are essential for ensuring impartiality, integrity, and due process. For certain situations, such as alleged crimes, cooperation with judicial mechanisms is typically required.

• Weaknesses: Their effectiveness is often hindered by legal and practical barriers, such as the high cost of claims, difficulty in securing legal representation, and complex rules regarding corporate group liability or extraterritorial jurisdiction. And as discussed by Ruggie J, the inability to see MNE as one enterprise optimising worldwide operations is not recognised in public law, and parent companies may enjoy seperate legal personalities from its’ subsidaries. Fragmentation of legal systems, especially those who are corrupt and likely to rule leniently and in favour of MNEs. Wagner explained that even where the public authority is in command of the relevant information, civil servants may lack the resolve and the financial resources to vigorously prosecute claims against powerful corporations

Human rights due diligence

2. State-Based Non-Judicial Mechanisms

These mechanisms (such as National Human Rights Institutions or ombudsman offices) play an essential role in complementing judicial systems.

• Strengths: They can fill significant gaps when judicial systems are overburdened, when a judicial remedy is not the preferred approach for the claimant, or when a non-judicial process is more culturally appropriate. They offer a variety of processes, including mediation and adjudication, to supplement the courts.

• Weaknesses: It is not an easy under-taking, requires strong advocates and representatives on the sides of adversely impacted communities to know how to bargain and mediate with these MNEs and their representatives to ensure the best outcome, provided MNEs will have professionals and the uneven power imbalance that brings where adversely impacted communities are oftentimes marginalised, unaware of their entitlements and what they can demand.

3. Non-State-Based (Operational-Level) Mechanisms

These are typically administered by business enterprises themselves, sometimes in collaboration with stakeholders.

• Strengths: Their primary value lies in their ability to address grievances "early and directly," preventing harms from compounding and disputes from escalating. They often offer increased speed of access, reduced costs for the claimant, and a unique transnational reach that state-based mechanisms may lack. They also serve as a vital tool for a company’s ongoing human rights due diligence by identifying systemic problems through complaint patterns.

• Weaknesses: Compensation or redress by MNEs may not address the entirety of the damage inflicted onto communities, and the remedies are reactionary as opposed to preventative, meaning that abuses are only addressed when the harm has been caused and adversely impacted communities and individuals. Remedies do not always perfectly satisfy the degree of loss caused in terms of people’s lives, health or illnesses they develop, their livelihoods or historical ways of life in the area or cultural practises being disrupted due to corporate consequences.

What is the driver behind the call for a human rights due diligence law, from the perspective of corporations? (4 key points)

The corporations perspective can be explained through 4 key points -

• Predictability and Legal Certainty: Businesses benefit from coherent and consistent messages from States. Currently, there is often a lack of clarity relating to what companies can and cannot do, therefore, legislation can provide the necessary guidance and protect both rights-holders and enterprises by clarifying expectations.

• Leveling the Playing Field: Collective action and mandatory standards help "level the playing field" by raising the performance of MNEs who might otherwise gain a competitive advantage by ignoring human rights risks, which undermines MNEs who do abide by human rights standards and regulations.

• Risk Management: Implementing HRDD helps enterprises identify and address actual and potential impacts, thereby mitigating reputational, financial, and legal risks. Showing that they took every action needed to avoid involvement in abuses can also help address legal claims.

• Support for Responsible Practices: Businesses increasingly seek State guidance to ensure they are not involved in gross abuses, especially in high-risk or conflict-affected areas. This is especially crucial with the Niger Delta and Shell’s destructive environmental practises which caused massive oil spills and permanent gas flares which affected people’s health, destruction of traditional livelihoods of fishing and farming and mounting protests of the Ogoni people and the subsequent killing of roughly 2,000 Ogoni people by the Nigerian military junta. This means there is a delicate balance of economic prosperity of MNEs and also social obligations on these MNEs to not exploit, extort or harm the environment or communities based there.

What is the driver behind the call for a human rights due diligence law, from the perspective of civil society actors? (4 key points)

The civil society actors perspective can be explained through 4 key points -

• Tangible Results for Communities: Civil society views mandatory measures of the UNGP as a way to move beyond voluntary commitments to ensure these results are realized. For instance, driving forward HRDD creates an accepted social norm before becoming a legal norm, this means that there will be strengthened human rights adherence and the normative justifications behind due diligence, and this creates a global level impact where human rights protections transcend social norm variations across different countries and cultures.

• Filling Regulatory Gaps: There is often a significant legal gap where States fail to enforce existing laws or where current laws do not provide adequate coverage. Legislation is a tool to address these gaps and ensure that business respect for human rights is not just encouraged, but required. States can ensure both vertical and horizontal policy coherence, protecting human rights while providing the legal certainty that businesses require to operate sustainably.

• Transparency and Accountability: Formal reporting and communication requirements allow social actors to assess human rights impacts and hold enterprises accountable. This knowing and showing process provides a measure of transparency to individuals and groups who may be impacted.

• Access to Remedy: Civil society advocates for laws that ensure rights and obligations are matched to appropriate and effective remedies when breached. Without such frameworks, the State duty to protect can be rendered weak or even meaningless.

Wagner criticises human rights due diligence set out in UNGP, what does he argue?

Wagner criticised human rights due diligence as creating highly undesirable incenitives, citing the perverse effect of attaching liability to intervention, and not to passivity, will be even more visible in cases involving global supply chains, i.e. where the entity committing the violation is not a subsidiary of the chain leader, but an independent supplier.

The passive attitude of firms at the top of the supply chain towards the poor standards of human rights protection prevailing in most countries of production is precisely the problem.

Wagner argued that human rights due diligence cannot settle with sanctioning active measures to control risk, but it must also impose affirmative duties to protect human rights on a group-wide scale and across the supply chain.

What, according to Wagner, is the function of tort law?

According to Gerhard Wagner, the primary function of tort law, viewed through a normative economic lens, is to "internalise" the external costs of an activity.

Wagner outlines several key dimensions of this function:

• Optimal Resource Allocation: The goal is to incentivise potential injurers to balance the costs of safety precautions against the costs of harm and the benefits generated by their activity. An ideal system ensures that an activity is only pursued if its benefits outweigh its total social costs, including the cost of care and any residual harm caused to others.

• Realistic Pricing and Production Levels: In the context of manufacturing, tort law ensures that product prices reflect the "full cost of production," including harm caused to workers, third parties, and the environment. Without this internalisation, prices remain "too low," leading to "too high" demand and excessive levels of production and harm. Wagner highlights the maxim that the cost of the production should bear the blood of the workman.

• Deterrence and Safety Coordination: Tort law aims to avoid future harm by deterring wrongful behaviour and protecting legal entitlements. It serves to coordinate the behaviour of both potential injurers and victims in the interest of overall safety.

• Compensation: Beyond deterrence, tort law is intended to provide a mechanism to compensate victims for damage already incurred.

• Protection of Basic Interests: Historically, tort law functions to protect fundamental individual interests—such as life, health, bodily integrity, and property—which broadly overlap with the interests protected by human rights law.

What are Wagner’s criticisms of tort law?

While tort law is theoretically well-suited for these functions, its effectiveness is often undermined in the real world by legal fragmentation and enforcement deficits across different jurisdictions. This allows for the large-scale externalisation of production risks, particularly in global supply chains where manufacturers may ignore the costs of harm in countries with poor safety standards or weak judicial systems.

Is English tort law sufficient to hold multinational enterprises to account for corporate human rights abuses especially taking into account Wagner’s view, and why does he argue that English tort law might be insufficient?

As per Wagner’s discussion, he views English tort law is more sufficient at holding multinational enterprises to account, because the enforcement systems (quality and accessibility of civil justice systems) are much stronger, than that of poorer nations where the enforcement of tort law is much waeaker or there may be instances where people or legal entities are or are not liable to redress a particular harm depending on the jurisdiction.

As Wagner stated, the real challenge for tort law with respect to human rights violations caused by third parties in distant jurisdictions is not the protection of basic human interests, but the stretching of duties and liabilities across the borders separating different corporate entities.

How does the UNGP differ from Wagner’s vision of a global tort law?

Wagner saw the UNGP as creating a highly undesirable incentive for 3 reasons -

1. The perverse effect of attaching liability to intervention, and not to passivity, will be even more visible in cases involving global supply chains, i.e. where the entity committing the violation is not a subsidiary of the chain leader, but an independent supplier. The passive attitude of firms at the top of the supply chain towards the poor standards of human rights protection prevailing in most countries of production is precisely the problem, and hence, not the cure.

2. If the duty of care and potential liability hinges on the chain leader taking active measures to control risk, then tort law creates a clear incentive not to do such things, i.e. not to engage in risk management along the supply chain.

3. The upshot of the preceding analysis is that human rights due diligence cannot settle with sanctioning active measures to control risk. It must also impose affirmative duties to protect human rights on a group-wide scale and across the supply chain.

What are the 6 approaches to Business and Human Rights that Ruggie explored, and what are the pros and cons of these approaches?

1. Polycentric Governance → Commission on Human Rights established a mandate for a “special procedure,” meaning an independent expert, and asked the UN Secretary-General to select the mandate holder. The initial mandate was modest: to identify and clarify standards and best practices in the area of business and human rights, for both states and business enterprises; to clarify such concepts as “corporate complicity” in human rights abuses committed by a related party, as well as “corporate sphere of influence”; and to develop materials for human rights impact assessments. Due to controversies surrounding the issue, the initial mandate was only for two years and it involved an in-depth examination of business and human rights. As such, it included the role of states and the question of remedy, neither of which the UN General Compact addressed.

2. Multiperspectival Framing → The Guiding Principles rest on the empirical observation that corporate conduct at the global level is shaped by three distinct governance systems. The challenge was to try and formulate a normative platform on which the three governance systems could become better aligned in relation to business and human rights, compensate for their respective short-comings, and begin to play mutually reinforcing roles out of which significant cumulative change can evolve over time. […] For traditional human rights scholars perhaps the most controversial aspect of the Guiding Principles has been the foundation of the second pillar—the corporate responsibility to respect human rights.

3. Social Norms → In the Guiding Principles it is anchored in a transnational social norm. But how does that work at the global level, where social norms vary across different countries and cultures? This does not imply that a transnational social norm is necessarily more (or less) effective than, or unrelated to, moral and legal norms; it is simply different in how it functions socially. Enterprises of course are free to undertake additional commitments, and governments to encourage or require them to do so. But respect is the baseline expectation.

4. Reflexive Dynamics → The UNGP reflect three critical functions that need to be performed better, and they seek to engage the three global governance systems—public, civil, and corporate—individually and interactively to advance those aims. Within this framework, further international legalization has a role to play through carefully crafted precision tools intended to reinforce this dynamic, not by means of some single overarching treaty that tries to encompass the entirety of the complex, diverse and contested issues.

5. Process Legitimacy → The subject of legitimacy features centrally in any international process, particularly one conducted by a single independent expert. By the time the Guiding Principles were considered by the HRC they enjoyed strong support from governments and business, as well as general but not enthusiastic support from the major human rights organizations, which would have wished for a legally binding outcome. Council approval came in two stages. It first “welcomed” the “Protect, Respect and Remedy” framework in 2008, and then asked me to serve another term in order to “operationalize” it. The Guiding Principles, which the Council endorsed in 2011, are that operationalization.

6. Distributed Networks → Shift and others have found that while company uptake of the Guiding Principles is becoming more widespread, it remains partial and is not yet deep enough. However, uptake is not limited to Western firms or governments. A dozen developing countries already have issued or are in the process of developing National Action Plans. Unlike distributed networks in computer systems, the various entities in these social networks remain independent of one another and have their own missions and priorities, so it is rare that they enact the identical norm or standard. The participation of distributed networks has triggered what Finnemore and Sikkink call “norm cascading,” well beyond the Guiding Principles’ institutional sphere of origin, into the realm of other international standardsetting bodies, national governments, businesses, civil society organizations, law societies, and the world of popular sports.

What are the three factors that Ruggie identified, and how do they contribute to the fragmentation in international lawmaking?

The first is that geoeconomic changes were accompanied by geopolitical shifts, which often are felt first in consensus-based international organizations like the United Nations. Emerging powers, with diverse national interests and reflecting different domestic economic, legal, and political systems, began to project greater influence in multilateral forums, making coalition building and consensus seeking more difficult.

A second and partly related factor is what some have called the rise of networked governance: essentially self-constituting transnational public or private governance arrangements, focused on specific policy problems.

A third factor is the sheer substantive complexity of global issues, coupled with the extensive interest diversity across and even within states that many exhibit. Climate change is an archetype of the growing number of “wicked problems.” When we do see collective responses by states in the face of such problems they tend to take the form, not of a single comprehensive governing regime for an entire issue-area, but of separate and typically uncoordinated fragments that are said to make up “regime complexes”.