Among the various issues addressed under the business and human rights (BHR) discourse, corporate human rights abuses occurring in developing countries are at the core. Human rights issues are extremely difficult to solve because governments are often devoid of the capacity and willingness to tackle the issues. The UN Guiding Principles on Business and Human Rights of 2011 (UNGPs) provide a framework for how such matters should be addressed, by proposing human rights due diligence (HRDD) as an operating principle of corporate responsibility to respect human rights. According to the UNGPs, business enterprises are expected to address not only human rights abuses caused by their business activities but also human rights abuses committed solely in the company’s supply chain. Even if only large transnational corporations (TNCs) fulfill their responsibility of exercising HRDD, corporate human rights abuses in developing countries will be drastically reduced. The question is how we can get the TNCs to exercise HRDD and which legal methods will be effective. With reference to Gunther Teubner, this article argues that a reflexive law approach is inevitable and will be the most effective method of addressing BHR issues. The article first defines the meaning of reflexive law by reviewing Teubner’s work as well as the EU Eco-Management and Audit Scheme as a policy experiment and the implications drawn by scholars. The review demonstrates the necessity and effectiveness of the reflexive law approach to environmental problems and it extracts vital factors that seem to lead to an effective reflexive law, which include disclosure of environmental information, stakeholder engagement, environmental management process, and incentive. Based on the discussion on the reflexive environmental law and considering the complexity of BHR issues, the article proceeds to demonstrate what a reflexive BHR approach would look like by reviewing the French Duty of Vigilance Law and the Korean BHR policy on public institutions. The paper argues for the inevitability of the reflexive law approach to BHR issues and opines on the two polices with reflexive BHR law based on the success factors drawn from reflexive environmental law experience. Although several defects were found in the French and Korean policies, these defects are remediable and that the reflexive BHR law approach may produce far better outcomes than one would expect from formal or substantive law approaches. Finally, the article proposes two ideas that will help one understand the unique features of reflexive BHR law, as compared to reflexive environmental law, namely the diffusion effect of HRDD, and the importance of bridgeheads in the BHR movement. The article concludes that securing bridgeheads in the BHR movement is important in implementing a reflexive BHR law approach.
Among the various issues addressed under the business and human rights (BHR) discourse, corporate human rights abuses occurring in developing countries are at the core. Human rights issues are extremely difficult to solve because governments are often devoid of the capacity and willingness to tackle the issues. The UN Guiding Principles on Business and Human Rights of 2011 (UNGPs) provide a framework for how such matters should be addressed, by proposing human rights due diligence (HRDD) as an operating principle of corporate responsibility to respect human rights. According to the UNGPs, business enterprises are expected to address not only human rights abuses caused by their business activities but also human rights abuses committed solely in the company’s supply chain. Even if only large transnational corporations (TNCs) fulfill their responsibility of exercising HRDD, corporate human rights abuses in developing countries will be drastically reduced. The question is how we can get the TNCs to exercise HRDD and which legal methods will be effective. With reference to Gunther Teubner, this article argues that a reflexive law approach is inevitable and will be the most effective method of addressing BHR issues. The article first defines the meaning of reflexive law by reviewing Teubner’s work as well as the EU Eco-Management and Audit Scheme as a policy experiment and the implications drawn by scholars. The review demonstrates the necessity and effectiveness of the reflexive law approach to environmental problems and it extracts vital factors that seem to lead to an effective reflexive law, which include disclosure of environmental information, stakeholder engagement, environmental management process, and incentive. Based on the discussion on the reflexive environmental law and considering the complexity of BHR issues, the article proceeds to demonstrate what a reflexive BHR approach would look like by reviewing the French Duty of Vigilance Law and the Korean BHR policy on public institutions. The paper argues for the inevitability of the reflexive law approach to BHR issues and opines on the two polices with reflexive BHR law based on the success factors drawn from reflexive environmental law experience. Although several defects were found in the French and Korean policies, these defects are remediable and that the reflexive BHR law approach may produce far better outcomes than one would expect from formal or substantive law approaches. Finally, the article proposes two ideas that will help one understand the unique features of reflexive BHR law, as compared to reflexive environmental law, namely the diffusion effect of HRDD, and the importance of bridgeheads in the BHR movement. The article concludes that securing bridgeheads in the BHR movement is important in implementing a reflexive BHR law approach.
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