to the fact that there is no binding legislation at the international level dealing with transnational
organisations as post UDHR treaties, “generally speaking impose no direct obligations on such
entities” 27 , as they are primarily state based. This debate has intensified during the latter 20 th
and early 21 st century as the power of transnational corporations has grown substantially, with
their revenue growing to eclipse the GPD of certain state actors. Louis Henkin and Adam
McBeth have both argued that “no one, no company, no market, [and] no cyberspace” 28 should
be excluded from responsibilities laid down by the UDHR and that a reading of the “UDHR
that limits the obligation to respect human rights to state actors necessarily contravenes article
30 UDHR.” 29 This holds true as a moral argument and many corporations do construct their
policies based on the international covenants, however the covenants do not bind them.
Although there are no legally binding treaties which bind transnational corporations, the debate
at the international level has spawned, firstly, UNGC in 2000 and UNGP endorsed by the
human rights council in 2011. The UNGP provides a global standard for “preventing and
addressing the risk of adverse impacts on human rights linked to business activity” 30 , whether
it be the states duty to protect human rights (1 st pillar) or the responsibility of corporations to
respect human rights (2 nd pillar).
The main problem with both the UNGC and the UNGP is the continued widening of
what John Ruggie calls “Goverence gaps.” 31 By this Ruggie is referring to the state of business
and human rights, where there has been a reshuffle of global power, whereby the power of
certain transactional organisations has overtaken states, whose power is increasingly
restricted compared to the rising power of transnational corporations. Alongside this, human
rights law at the international level has not fully adapted to the flexible nature of TNCs, leaving
space for corporate human rights abuse to occur relatively unchallenged. The flexibility of the
TNCs is problematic when we consider that the UNGP hands regulatory authority for
monitoring measures and binding enforcement of such measures back to the state. This
problem is twofold, firstly, the state where the TNC bases itself may not enforce the human
rights obligations as they seek to procure investment from these TNCs and secondly should
certain states enforce these obligations the TNC may relocate to another state.
Adam, McBeth. "Every Organ of Society: The Responsibility of Non-State Actors for the Realization
of Human Rights." Hamline J. Pub. L. & Pol'y 30 (2008): 33, 34
28 Louis, Henkin. "The Universal declaration at 50 and the Challenge of Global Markets." Brook. J. Int'l
L. 25 (1999): 17.
29 Adam, McBeth, 84
30 Larry Catá, Backer. "Moving Forward the UN Guiding Principles for Business and Human Rights:
Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might
Bind Them All." Fordham Int'l LJ 38 (2015): 457.
31 John, Ruggie. "Business and human rights: Towards operationalizing the “protect, respect and
remedy” framework." Report to the Human Rights Council, A/HRC/11/13 (2009)
27
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