Softness in International Instruments -- the Case of Transnational Corporations

This paper explores the global governance of Transnational Corporations (TNCs) through "soft law". Using the fields of environmental protection and human rights as examples, the paper claims that "soft law" is conceptually and substantively inadequate and misleading in filling the voids left by classic "hard law" in governing TNCs. A reconceptualisation of and a more systematic approach to "softness" and "soft instruments" are required to more constructively fill the void. In order to prove its thesis, the paper first explains how classic "hard law" seems to fail in adequately governing transnational corporations (TNCs), and why other, "soft law" instruments are believed to be capable of addressing the void. The notion of "soft law" appears however inadequate and too general for this purpose. The paper therefore seeks to create a tool that more accurately re-conceptualizes and systemizes the legal and political discourse. The proposition is to describe international instruments on the basis of the three general categories of public legal instruments, public non-legal instruments and private non-legal instruments, and to nuance these categories through the three dimensions of softness: obligation, precision and delegation. In so doing, it takes seriously the impact of formal legal categories as well an instrument's content. The application of such conceptual tool on representative practical case studies of TNC-related instruments in the fields of environmental and human rights protection confirms that while "soft law" risks guiding policy measures towards ineffective policy instruments, the notion of "softness" is instructive for the management of transnational corporations, and leads to a more precise understanding of global governance in regime complexes generally speaking.

Jaar van publicatie:2015

Trefwoorden:softness, soft law, Transnational corporations