Business, Compliance and Human Rights Law

The Effectiveness of Transnational Private Regulations for Vulnerable Stakeholders

Gabriel Webber Ziero

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000520170
• Edition: 1
• Topic: Betriebswirtschaft
• Subtopic: Wirtschaftsrecht

In recent years, transnational private regulations (TPRs) have gained importance in the areas of business and human rights, particularly from a consumer point of view. However, some question whether TPRs are indeed suitable normative frameworks contributing to their signatory entities' compliance with human rights standards and effective avoidance of human rights abuses. In response to this question, this book proposes an analytical concept of effective compliance. Based on the elements identified as crucial for achieving effective compliance, it conducts an in-depth analysis of how TPRs' normative frameworks function in practice and identifies common patterns and challenges. Such inquiry is based on an interdisciplinary methodological approach between law and sociology, seeking not only to comprehend and assess how law is systematized in theoretical terms, but also to understand how it works on the ground. This allows identification of the lack of active and effective participation of vulnerable stakeholders in the discursive processes established and governed by TPRs, such as rule-making and conformity assessment processes, as the main challenge. Based on such evidence, the book addresses the possibilities of overcoming such challenges, proposing that to fully achieve TPRs' potential from an effective compliance point of view, legal empowerment of vulnerable groups is essential. It concludes by providing key observations and suggestions that contribute to the use of TPRs as instruments in the struggle for rights of empowered vulnerable stakeholders.

The book will be of interest to academics, researchers, and policy-makers working in the areas of international law, transnational law, sociology of law, and human rights law.

1The transnational legal landscape

DOI: 10.4324/9781003184577-2

The transnational legal landscape distinguishes itself from state-centred legal spheres by its flexibility. Ferrarese has poetically related this feature of transnational law to dunes that continue to change due to the wind: ‘It is a sandy landscape with moving dunes and subjected to the caprice of the winds ... which are significant symptoms of a new legal season’.¹ Nevertheless, to investigate the extent to which transnational law, and in particular transnational private regulations (TPRs), normative frameworks indicate the arrival of a new legal season, which can help their signatory entities achieve effective compliance with international human rights standards, it is necessary to establish a theoretical basis upon which this book can be built. Consequently, this chapter is devoted to asking where TPRs are situated in the international legal landscape. This guides our enquiry regarding how TPRs form and how they interact with human rights standards.

Maria Rosaria Ferrarese, Il Diritto al Presente: Globalizzazione e Tempo Delle Istituzioni (Il Mulino 2002) 146.

1.1The role of law in the international space

The origins of modern international law,² departing from the work of Vittoria and Grotius, can be traced to universal concepts that primarily address individuals, such as jus gentium, which emerged from Roman private law to grant rights to foreigners who were not subject to Roman civil law.³ Only in the last 400 years, which in terms of the historical time is almost yesterday, has international law been centred on the paradigm of inter-state relations, also known as the Westphalian paradigm which resulted from the 1648 Treaties of Westphalia.⁴ This shift can be seen in the late eighteenth century writings of d’Aguesseau, who developed the expression jus inter gentes (or droit des gens) as the law addressing international relations.⁵ To apply the concepts established in the context of jus gentium to an inter-state setting, legal scholars such as d’Aguesseau relied on theories underlying royal absolutism which held that the state was embodied in the figure of the king and, as a consequence, nations should be considered individuals.⁶

Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (2nd Revised edn, Martinus Nijhoff Publishers 2013) 9.

Gabrio Lombardi, Ricerche in Tema Di ‘Ius Gentium’ (Giuffrè 1946).

Antonio Truyol y Serra, Histoire Du Droit International Public (Economica 1995) 65; SS Lotus (France v Turkey) [1927] Permanent Court of International Justice PCIJ Series A – No. 10.

Henri-François d’Aguesseau, Discours et Œuvres Mêlées de M. Le Chancelier d’Aguesseau, vol 2 (Libraires Associés 1773) 65 and 97.

This process is nowadays referred to as ‘personification’ of the state, in this sense see: Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press 2012) 47.

Given the inter-state paradigm upon which the study of law in international space has been based, specifically in the work of d’Aguesseau, Bentham has introduced the expression international law. As the expression is currently used, it signifies law governing the ‘transactions between sovereigns’⁷ to distinguish it from law addressing intra-state issues, such as national law.⁸ Bentham’s work, in particular the dyad national-international law centred on the role of the state, has become a constitutive paradigm for legal scholarship since the nineteenth century. However, one of the consequences derived from such an approach has been the confinement of the actions of individuals and private actors such as companies to the realm of national law.

Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, vol 2 (New edn Corrected by the Author, W Pickering 1823) 260.

Bentham uses the term municipal law as the law addressing intra-state issues; however, the expression national law is used here for clarity.

Boundaries between national and international legal realms and the Westphalian paradigm of international law have been challenged since Bentham’s time, especially in events during the twentieth century. For example, in the first quarter of the century, individuals were able to access international tribunals in order to claim reparations from states.⁹ Moreover, international organizations were created to address topics a priori reserved to national law, such as labour issues tackled by the International Labour Organization (ILO). Due to the creation of the United Nations (UN) in 1945 and with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948, international law has intensified the expansion of its scope beyond the inter-state paradigm.¹⁰ For example, treaties that regulate relations between states and individuals, such as human rights conventions and treaties on the protection of foreign investors, have been adopted.

See, for example the experience from the Central American Court of Justice established in 1908 that functioned until 1918. For further information related to this issue: Antônio Augusto Cançado Trindade, Os Tribunais Internacionais Contemporâneos (FUNAG 2013).

Hersch Lauterpacht, International Law and Human Rights (Stevens & Sons Limited 1950) 18; Dominique Carreau and Fabrizio Marrella, Droit International (12th edn, Pedone 2018) 69.

Although international law has expanded its scope to integrate areas and subjects that do not belong to an inter-state setting, it is still, to a large extent, based on a state-centred paradigm in which the state is the measure of all things.¹¹ In this sense, despite confusion regarding the states’ action – such as in areas of monetary issues, environmental protection, and human rights – the dyad national-international law is fundamental for the actions of private actors since they are primarily regulated by national law.¹² However, this regulatory scenario has been challenged by the reality of international relations which has being increasingly led and shaped by individuals and other private actors.

Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] International Court of Justice ICJ Reports 1949, p. 180.

Barcelona Traction, Light and Power Company (New Application: 1962) (Belgium v Spain) [1970] International Court of Justice ICJ Reports 1970, p. 3 [38].

1.1.1The emergence of a transnational society

The second half of the twentieth century, particularly its last three decades, was characterized by a quantitative dimension – the intensification of social and economic cross-border activities supported by the development of new technologies¹³ often addressed under the term globalization. However, to fully comprehend the impacts of such a process, it is necessary to consider the qualitative aspects of the globalization process. Thus, the material changes influenced by globalization, for instance in ‘the nature of legal processes and structures that shape the relationships and interactions’¹⁴ among different actors, such as states, companies, and civil society, must be examined.

Andreas Georg Scherer and Guido Palazzo, ‘Globalization and Corporate Social Responsibility’ in Andrew Crane and others (eds), Oxford Handbook of Corporate Social Responsibility (Oxford University Press 2009) 415.

Wolfgang H Reinicke and Jan Martin Witte, ‘Challenges to the International Legal System Interdependence, Globalization, and Sovereignty: The Role of Non-Binding International Legal Accords’ in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford University Press 2000) 75.

According to Santos,¹⁵ the globalization process, especially what qualifies its qualitative dimension, presents two dynamics. On the one hand, it is possible to perceive a movement of globalized localisms, or local realities that become global patterns, such as the English legal structure of corporations where the enterprise is a separate legal entity distinct from its shareholders, that have been incorporated into national legal systems. On the other hand, dynamics of localized globalisms can also be identified, such as the impacts transnational corporations’ operations have on the livelihood of traditional communities and on the global environment.

Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (Routledge 1995) 263.

Because of these underlying dynamics of the globalization process which expose different societies to similar realities, it is possible to witness the emergence of a transnational space of social interaction. This space is de-territorialized and structured by horizontal, collaborative, and polycentric means such as forums and social media.¹⁶ However, these characteristics do not mean that transnational space is the same as international space. Although the international arena also addresses cross-border issues, within the classic paradigm of a state-centric order, it has a limited constituency which is formed by states and international organizations. The transnational space, in turn, is open for participation from different actors such as states, companies, international organizations, individuals, and organizations from civil society.

Manuel Castells, ‘The New Public Sphere: Global Civil Society, Communication Networks, and Global Governance’ (2008) 616 Annals of the American Academy of Political and Social Science 78, 84; Carreau and Marrella, 74.

The plurality of actors relating in a fluid and self-managed way, as noted by Habermas,¹⁷ acquires a political dimension as stakeholders tend to address and even auto-regulate questions usually located beyond and/or across national boundaries. This novel panorama leads to a new distribution of pow...