Corporate Impunity and the Tolerable Lightness of Soft Laws

Much has already been written on how voluntary soft law measures ought to be made more effective by crystalizing them into something more binding and enforceable. This contribution will put forth an alternative suggestion by first hypothesizing that if a company and its leadership are intrinsically motivated to being socially responsible – or truly dedicated to not “causing or contributing to adverse human impacts” to quote the United Nations Guiding Principles on Business & Human Rights (UNGP) – then it does not really matter whether the law itself is hard or soft. Moreover, the amount of time and effort spent on discussing how soft laws can and should be crystalized may be a red herring, which takes much focus and attention away from the more crucial question of “how can we get corporate stakeholders to be intrinsically motivated to being socially responsible.” In addition to increasing awareness of this important, yet often neglected question, this contribution will also suggest that: 1) soft law is just fine as it is: a non-legally binding enumeration of aspirational goals that everyone can agree to, which lack enforceable sanctions; and, 2) in light of this realization, we ought to question the prudence of the UN Human Rights Council’s Open-Ended Intergovernmental Working Group (IGWG) and its persistent efforts to crystalize various aspects of the UNGP into a legally binding international treaty with the aim of regulating transnational corporations and their activities. Lastly, this contribution will propose soft law-based approaches that may incentivize corporate stakeholders to be socially responsible more intrinsically.