Commentary: Business and Human Rights as a Galaxy of Norms
In the last several years, there has been an increasing tendency to view the impacts of transnational business operations through the lens of human rights law. A major obstacle to holding companies accountable for the harms that they impose, however, has been the separate legal identity of corporate subsidiaries and of contractors in a company’s supply chain. France’s recently enacted duty of vigilance statute seeks to overcome this obstacle by imposing a duty on companies to identify potential serious human rights violations by their subsidiaries and by companies with which they have an “established commercial relationship.” Failure to engage in such vigilance can subject a company to liability for damages resulting from such failure.
This Article situates the new French duty of vigilance within a broader set of norms that can be characterized as the Business and Human Rights Galaxy. This Galaxy consists of five rings that represent standards and expectations ranging from classic enforceable “hard law” to voluntary principles generated by private parties, multi-stakeholder initiatives, and international organizations. The provisions in these rings are related in fluid and dynamic ways and exert varying degrees of gravitational influence on one another. Thus, for instance, what are conventionally regarded as forms of hard law may draw on voluntary private standards in setting expectations for behavior, and soft law norms may be incorporated into legally enforceable contract provisions between companies and their suppliers.
This Article suggests that appreciation of these dynamics can furnish guidance in interpreting the novel duty of vigilance that the new French statute establishes. In particular, the common law duty of care and the United Nations Guiding Principles on Business and Human Rights can illuminate the nature and scope of the duty of vigilance. At the same time, the introduction of the new French statute into the Business and Human Rights Galaxy means that it too has the potential to influence provisions in other rings of the Galaxy...