This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

In 2011 the United Nations (UN) published the ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect, and Remedy” Framework’ (Guiding Principles). The Guiding Principles specify that for-profit corporations have responsibilities to respect human rights. Do these responsibilities entail that corporations, too, have basic rights? The contention that corporations are moral persons is problematic because it confers moral status to an organization similar to that conferred to a human agent. I shall argue that corporations are not moral persons. But as collective bodies created, operated, and perpetuated by individual human moral agents, one can ascribe to corporations secondary moral agency as organizations. This ascription, I conclude, makes sense of the normative business responsibilities outlined in the Guiding Principles without committing one to the view that corporations are full moral persons.

In June 2014, the Human Rights Council passed a resolution establishing an inter-governmental working group to discuss a legally binding instrument relating to transnational corporations and other business enterprises. In this article, I outline four arguments for why such an instrument is desirable. Identifying the purpose of such a treaty is crucial in outlining a vision of what it should seek to achieve and in determining its content. The arguments indicate that a treaty is necessary to provide legal solutions to cure serious lacunae and ambiguities in the current framework of international law which have a serious negative impact upon the rights of individuals affected by corporate activities. The emphasis throughout is upon why a binding legal instrument is important, as opposed to softer forms of regulation such as the United Nations Guiding Principles on Business and Human Rights. The four arguments in turn provide the resources to respond to objections raised against the treaty and to reject an alternative, more restrictive proposal for a treaty that only addresses ‘gross’ human rights violations.

This article addresses human rights responsibilities of multinational corporations (MNCs) in the light of what I describe as the four Bhopal catastrophes. More than thirty years of struggle by the valiant violated people to seek justice is situated in the contemporary efforts of the United Nations to develop a new discursivity for human rights and business—from the Global Compact to the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, the Guiding Principles on Business and Human Rights, and the more recent process to elaborate a legally-binding international instrument.

The business and human rights debate has essentially bypassed the media industry. This article addresses that gap in the debate by applying the Guiding Principles on Business and Human Rights to the media. Application of human rights responsibilities to the media in accordance with the Guiding Principles is significantly complicated by the existence of media rights of freedom of expression. It is argued that the application of the Guiding Principles to the media industry leaves significant scope for it to be involved with serious and systemic human rights violations. This conclusion indicates that the Guiding Principles are an inadequately theorised tool for dealing with human rights responsibilities of the media. It may reveal deeper flaws in the Guiding Principles, which extend to industries other than the media. At the least, a dialogue between the human rights community and the media industry must commence in order to work out how human rights might apply in the context of the responsibilities of one of the world’s most important and powerful industries.

This article examines the legal as well as political feasibility of four potential options for a legally-binding international instrument in the area of business and human rights. The four options that the open-ended intergovernmental working group may wish to consider while negotiating an instrument are: (i) to clarify and strengthen the states’ duty to protect human rights, including extraterritorially; (ii) to oblige states, through a framework convention, to report on the adoption and implementation of national action plans on business and human rights; (iii) to impose direct human rights obligations on corporations and establish a new mechanism to monitor compliance with such obligations; and (iv) to impose duties of mutual legal assistance on states to ensure access to effective remedies for victims harmed by transnational operations of corporations. As these options are not mutually exclusive, the author argues that a hybrid instrument building on elements of the first and the fourth option may be the best way forward both in terms of political feasibility and improving access to effective remedies for victims.

The claim that corporations have human rights obligations remains contentious and can be fraught with confusion. This article synthesizes existing corporate human rights theory and responds to objections to the idea that transnational corporations (TNCs) have human rights obligations. The argument proceeds in three stages. The first section describes the different forms TNCs take and explains why TNCs are properly understood as moral agents responsible for their policies and practices. The second section reviews and explains different philosophical theories of corporate human rights obligations. The third section articulates and responds to objections to the idea that corporations have human rights obligations. The main conclusion of this article is that there are multiple, compelling and overlapping justifications of corporate human rights obligations.

This article argues that there is a newer model of contracting for natural resources that expands the potential for corporate responsibility towards those adversely affected by business activities. It lays out the conceptual roadmap and justification underlying these shifts and changes in contracting for natural resources. The article calls for a renewed focus in exploring enforcement of corporate obligations for impacts to individuals and communities within a contractual framework. Examples of this type of arrangements include contracts that can be construed to allow third parties to sue on a contract; community development agreements; contracts between investors and communities; environmental contracts; human rights deeds, and investor–state–local community contracts (tripartite contracts). These contractual forms demonstrate that the law of contract has evolved from the nineteenth century idea that contracts merely protect the rights of investors without much concern for those who are directly affected by extractive industry operations. By including affected communities, indigenous communities, and others, these new contractual forms demonstrate that investors and governments are trustees and that extractive resources must be mobilized for the benefits of their publics. In so doing, we map this turn to contracts between multiple parties in the resource extraction context, and argue that it affirmatively demonstrates real potential to address or mitigate the absence of remedial and responsibility regimes for the adverse impacts of extractive industry activities on individuals and communities.

In the last several decades a diverse movement has emerged that seeks to extend the accountability for human rights beyond governments and states, to businesses. Though the view that business has human rights responsibilities has attracted a great deal of positive attention, this view continues to face many reservations and unresolved questions.

Business ethicists have responded in a twofold manner. First, they have tried to formulate the general terms or frameworks within which the discussion might best proceed. Second, they have sought to answer several questions that these different frameworks pose: A. What are human rights and how justify one’s defence of them?; B. Who is responsible for human rights? What justifies their extension to business?; and C. What are the general features of business’s human rights responsibilities? Are they mandatory or voluntary? How are the specific human rights responsibilities of business to be determined?

Within the limited space of this article, this article seeks to critically examine where the discussion of these issues presently stands and what has been the contribution of business ethicists.

How do companies respond to their critics? Are there significant differences in responsiveness between industrial sectors, between the countries in which companies are based, and between the companies themselves? Do responses reflect the belief that companies have a responsibility to respect human rights? Do companies that participate in the UN Global Compact react more responsibly than those that do not? This article attempts to answer these questions by examining company responses to civil society reports contained in the company response database of the Business & Human Rights Resource Centre. The analysis covers responses to 1877 requests made by the Resource Centre from 2005–2014.