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Regulating Business and Human Rights through Soft and Hard Law: Lessons from International Nuclear Law

By: Christiane Ahlborn

For half a century, States and international organizations have made efforts to regulate the conduct of transnational business entities through international standards. However, all attempts to adopt binding international rules on business and human rights (BHR) have

failed so far, mainly due to the diverging interests of States from the Global North and the Global South. Instead, States and other relevant stakeholders, such as international organizations, transnational corporations, and civil society, have adopted non-binding soft law instruments to curb corporate human rights abuses. Still, the continuous and often flagrant human rights violations by corporations speak against the effectiveness of these soft law instruments. In 2014, only three years after the adoption of the widely commended United

Nations (UN) Guiding Principles on Business and Human Rights, the Human Rights Council passed a resolution to start the negotiations of a legally binding instrument (LBI) on BHR. While some see the LBI negotiations as a historic opportunity, States continue to disagree on the need for the international harmonization of standards, with major players like the United States and the European Union being highly skeptical of adopting a BHR treaty. By drawing lessons from international nuclear law, this Article argues that BHR should be regulated through a mix of soft and hard law instruments. It seeks to contribute to the scholarship on BHR that has sought inspiration from other fields of international law that regulate corporate activities, such as anti-corruption law, environmental law, and the law of the sea. The regulatory regime in the nuclear field is well-established and consists of an increasingly dense web of soft law and hard law instruments covering corporate conduct in the nuclear sector. This Article first examines past failed attempts to adopt binding international standards

on BHR and gives an overview of the applicable BHR soft law instruments (II). Based on insights gained from international nuclear law, the Article then discusses the upsides and downsides of soft law in regulating corporate conduct (III). The Article concludes by addressing

the trend toward taking more BHR hard law measures at the national level. Building on international nuclear law, the Article makes a case for the international harmonization of legally binding standards, which would benefit States from the Global South and Global North (IV).


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