A Treaty on Enforcing Human Rights Against Business: Closing the Loophole or Getting Stuck in a Loop?

This Article takes a human rights law perspective on the issue of enforcing corporate social responsibility. While corporations receive a variety of rights under international law, they do not equally hold a corresponding set of duties. The Article assesses the merits and shortcomings of existing initiatives to bridge this gap, in particular the Special Representative to the Secretary-General's (legally nonbinding) Framework and Guiding Principles, as well as the most recent initiative at the United Nations Human Rights Council on developing a (legally binding) treaty on business and human rights. While emphasizing that existing legal frameworks—such as human rights law, international criminal law, and international investment law—do not suffice to close this loophole (of corporations being rights bearing but not rights bound), the Article remains equally skeptical about the prospects for a new legally binding treaty. Even if such a treaty were realized, it remains largely unclear how and by which bodies such a treaty would be enforced toward corporations. The authors suggest concentrating efforts on improving the enforceability of existing standards under the Framework and Guiding Principles rather than striving for a new treaty, and to do so on the international, but even more on the national, level.