"Faith in the virtues of globalization has long slowed the regulatory will of governments"


Du October 24 to 28 will be the 8e session of the intergovernmental working group, chaired by Ecuador, on transnational corporations and human rights. Its mission, since its creation in June 2014 by a UN resolution, is to develop a “binding legal instrument”an international treaty enforceable against multinational corporations that violate human rights.

The third version of the text was presented in February. A version that the NGOs find watered down compared to the previous ones, because still giving too much of a share to the “voluntary commitments”whereas, among the hundred or so participating States, some intend on the contrary to limit the binding scope of the text.

The stakes are high. In this area, it is rather the soft law, soft law, which has prevailed so far, with the “OECD Guidelines for Multinational Enterprises” (1976), updated in 2011 and taken up the same year by the UN, which had already, in 2003, asked companies adhering to the global pact to observe "standards" of behavior. But as the jurist Kathia Martin-Chenut, director of research at the CNRS at the Institute of Legal and Philosophical Sciences of the Sorbonne, observed during a seminar organized on September 15 at the Ecole des mines by the chair "Theory of business", the Universal Declaration of Human Rights adopted by the UN in 1948 provided for its application to be extended by all States to all of society, including businesses.

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But the legal and political obstacles on this path are numerous. First of all, companies, legal persons, are not subjects of international law in the eyes of the courts. The law, notes the jurist, "does not provide individuals or communities with rights to reparation commensurate with the liability of companies whose activity generates damage" human or environmental.

Then, disasters or scandals involving corporate liability, from the Bhopal accident in India (1984) to the Rana Plaza accident in Bangladesh (2013), have prompted, in the face of media campaigns, measures self-regulation, with the proliferation of "voluntary standards", charters and labels. And faith in the virtues of globalization has long slowed the regulatory will of governments.

“Retroactive Loop”

However, this proliferation of initiatives of soft law has found its extension in the law through what the researcher calls the "normative densification". The legislator, followed by the judge, has in fact increasingly regulated the conditions under which companies must communicate and act on their commitments in terms of social and environmental responsibilities. The recent European directives on transparency, adopted (Corporate Sustainability Reporting Directive, publication of information on sustainability by companies) or in draft (Corporate Sustainability Due Diligence, duty of vigilance or due diligence in terms of sustainability), are the best expression. They find their equivalent in North and South America, or in Africa, through laws governing environmental standards, investment contracts and taxation.

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