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has limited itself to condemning non-State actor abuses. The European Court of Human Rights
has generally adopted the traditional view, imposing far-reaching obligations to protect on States
but leaving to them the choice of means.40
44.
In conclusion, it does not seem that the international human rights instruments discussed
here currently impose direct legal responsibilities on corporations. Even so, corporations are
under growing scrutiny by the international human rights mechanisms. And while States have
been unwilling to adopt binding international human rights standards for corporations, together
with business and civil society they have drawn on some of these instruments in establishing soft
law standards and initiatives. It seems likely, therefore, that these instruments will play a key
role in any future development of defining corporate responsibility for human rights.
IV. SOFT LAW MECHANISMS
45.
Soft law is “soft” in the sense that it does not by itself create legally binding obligations.
It derives its normative force through recognition of social expectations by States and other key
actors.41 States may turn to soft law for several reasons: to chart possible future directions for,
and fill gaps in, the international legal order when they are not yet able or willing to take firmer
measures; where they conclude that legally binding mechanisms are not the best tool to address a
particular issue; or in some instances to avoid having more binding measures gain political
momentum.
46.
This section maps three current types of soft law arrangements that address corporate
responsibility and accountability for human rights: the traditional standard-setting role
performed by intergovernmental organizations; the enhanced accountability mechanisms
recently added by some intergovernmental initiatives; and an emerging multi-stakeholder form
that involves corporations directly, along with States and civil society organizations, in
redressing sources of corporate-related human rights abuses.42
47.
A prominent example of the normative role of soft law is the ILO Tripartite Declaration
of Principles Concerning Multinational Enterprises and Social Policy, endorsed not only by
States but also by global employers’ and workers’ organizations. It proclaims that all parties,
including multinational enterprises, “should respect the Universal Declaration of Human Rights
and the corresponding international Covenants”.43
40
See Clapham, note 12 above.
41
Some soft law instruments may contain elements that already impose, or may come to
impose, obligations on States under customary international law, which would give them binding
effect independent of the soft law instrument itself.
42
This section responds to subparagraphs (a) and (e) of resolution 2005/69.
43
ILO Tripartite Declaration, para. 8.
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