Soft Law and Transnational Corporations' 'Power': Framing the Accountability for Human Rights

Abstract One of the most relevant effects of globalization on the law concerns the role played by private actors operating in the economic field. In particular, transnational corporations (TNCs) have acquired not only increasing freedom of movement among legal orders but also the ability to influence the lawmaking process within the transnational law sphere. More generally, it has been widely recognized that corporations play a pervasive role in public national and international policy making. Implicit in TNCs is their capacity to transcend national boundaries, and the fact that they are usually limited liability companies. Given the theoretical and practical difficulties in ascribing legal responsibilities to TNCs at the international level, alternative tools in order to prevent violations of and foster compliance with human rights have been developed by international or non-governmental organizations that tend to directly address firms. Such instruments belong to the domain of soft law. All these tools directly address corporations and are the outcome of a convergence between the international law of human rights and the Corporate Social Responsibility (CSR) paradigm. The content of these tools cover all the range of obligations – both negative and positive - associated to human rights: the obligation to respect, the obligation to protect, and the obligation to fullfill human rights. The paper aims at analysing and assessing the implications of this merge of ethical and legal perspective within the soft path of TNCs accountability for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns our to be much more useful.