What duties, if any, does international human rights law establish for individuals, corporations, and other private actors? For many years, the conventional answer has been that it places duties on states to respect the rights of individuals and creates few or no private duties. In other words, human rights law is aligned vertically, not horizontally. But that view has regularly been challenged. Most recently, in 2003, the United Nations Commission on Human Rights (Commission), historically the most important incubator of human rights agreements, received two proposed instruments that might appear to realign human rights law horizontally: private actors would have duties as well as rights, and they would owe those duties to society as a whole or to individuals within it. The draft Declaration on Human Social Responsibilities (Declaration) would identify duties that all individuals owe to their societies; and the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (draft Norms) would set out duties of businesses under human rights law. The Human Rights Commission did not embrace the proposals before its replacement by the Human Rights Council in 2006, and the Council has not considered them. Both received some support, however, and it seems likely that their proponents will continue to pursue adoption of their principles in one form or another. This article argues that if adopted, those principles would cause serious damage to human rights law.

For global business, international trade and investment are bound at the hip. When businesses trade internationally, goods or services cross borders; when they invest, it is capital and other factors of production that do so. Companies trade to supply their foreign investments; they invest to facilitate and diversify their trade. In contrast, international law addresses trade and investment separately and regulates them in ways that are dramatically different. First, trade has been governed multilaterally since 1947 through what today is the World Trade Organization (WTO), whereas close to 2,600 separate bilateral investment treaties (BITs), which mushroomed only in the 1980s and 1990s, now regulate foreign direct investment (FDI). Second, hundreds of increasingly sophisticated WTO rules discipline trade, whereas a mere handful of principles cover investment—many of which derive from customary international law. Third, trade agreements are enforced exclusively between states, with reciprocal trade sanctions as the remedy of last resort; under investment treaties, private companies have standing to claim monetary damages from host country governments.