We introduce this symposium of articles by explaining the notions of hard and soft law, and reviewing UN developments on business and human rights in this light. We move to a more detailed discussion of existing hard law, particularly the state duty to protect, before examining examples of fulfilment of that duty via the domestication (especially the judicialization) of human rights norms for business. We also note the many pitfalls in contemporary approaches, before examining how the proposed legally binding instrument might address those pitfalls. We conclude with commentary on how soft and hard norms to date have failed to grapple with corporate power, the issue which animates the need for a business human rights debate in the first place, before introducing the articles to follow.

Scholars have suggested that ‘home’ states of transnational corporations (TNCs) have a legal duty to protect against human rights abuses occurring in ‘host’ states that may be breached by failure to regulate TNCs’ extraterritorial activities. This article challenges the claim that such a duty of home states to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist as a matter of law. The article first summarizes the general structure of arguments made in favour of such a ‘home state duty to regulate’. It then considers the foundations and meanings of extraterritorial jurisdiction in public international law and international human rights law; requirements and conditions of attribution and state responsibility for the conduct of non-state actors; and the scope and limits of ‘positive obligations’ to ensure the effective enjoyment of human rights, domestically and extraterritorially, as they relate to prevention of human rights abuses by TNCs.

Firms’ human rights due diligence (HRDD) and communication on their human rights impacts are not only elements in the Corporate Responsibility to Respect human rights (Pillar Two), but also to be promoted by States as part of their State Duty to Protect (Pillar One) through regulatory strategies aiming at shaping business conduct. Analysing the EU’s 2014 Non-Financial Reporting Directive as an example of governmental regulation for promoting responsible business conduct, the article discusses conditions for HRDD and reporting as a communication process to stimulate organizational change in accordance with the UN Guiding Principles to avoid harm, including through affected-stakeholder engagement. Applying socio-legal regulatory theory along with organizational and accounting literature, the article finds that the Directive’s predominant focus on ex-post measures appears to be a neglected opportunity to induce ex-ante organizational learning and changed business conduct to prevent adverse human rights impact. It offers recommendations for regulators and stakeholders for stronger regulation.