"Business, Human Rights & the Limits of Law", 20 Jun 2019

Corporate responsibility for human rights is increasingly being etched into law, causing a paradigm shift in how the law defines a “reasonable business”. But the shift remains fragile, the new understanding murky. As the nature of business and human rights evolves from voluntary to legal, so too must its content. Voluntary standards can be vague and subjective. Law cannot. If legal penalties are to flow from corporate human rights failures, business responsibility for human rights must be certain enough to be justiciable: judges applying legal reasoning must be able objectively to determine a company’s liability, or lack thereof.

This is the pressing challenge for business and human rights as a legal discipline. As we explain in Business and Human Rights as Law (LexisNexis 2019), the core tenets of business respect for human rights have not been subject to judicial review or rigorous legal analysis. The result is dangerous and persistent uncertainty for businesses and stakeholders alike. It is time for lawyers, applying distinctly legal reasoning, to wrestle seriously with this uncertainty...