[Interview] Nadia Perrone: ‘We are at a pivotal moment in defining new responsibilities for powerful non-state actors’

Nadia Perrone is a visiting research fellow at the T.M.C. Asser Instituut. During her stay at the Asser Institute, she is conducting research on the use of business and human rights soft law in domestic litigations. Nadia Perrone: “I would like to demonstrate that the main business and human rights initiative, the UNGPs, can no longer be considered to be soft law”. An interview.

What is the main research project you are working on?
"My study explores the main business human rights soft law initiatives, such as the OECD guidelines, the ten principles of the United Nation’s Global Compact, but especially the United Nations Guiding Principles (UNGPs) in order to understand how they have been implemented over time. The enforcement of soft law is not a novelty in international law. By studying past experiences, it will be possible to define the degree of what human rights soft laws have achieved since their adoption.”

Why is this topic important?
“Because multinational corporations are not considered to be a subject of international law, and they don't have any direct obligations under international human rights law. Yet the impact of their activities on human rights, environment and climate change has proven to be very significant. Considering the involvement of corporations in well-known cases of labour exploitation, child labour, complicity in armed conflicts, environmental damage, and high levels of greenhouse gas emissions, this regime of impunity seems more and more inadequate. Since the 1970s, soft law initiatives have shown to provide some solutions to these problems, and now the time seems ripe to move on something harder.”

What are you hoping to achieve with your research?
“I would like to demonstrate that the main business and human rights initiative, the UNGPs, can no longer be considered to be soft law. Describing soft law is not an easy task. There is still no universal definition of soft law, and the concept is not unanimously accepted by international lawyers. Some, for instance, refer to soft law as an ‘instrument’ other than a treaty, such as principles, orders or standards. Others may consider soft law as residual category, to be defined in a negative way: if a document cannot be considered as law, then it is soft law, without having a legally binding force. However, at the same time there is a consensus that soft law is a set of rules, which undergoes a process to become binding rules of international law. So, the 'softness' should be understood as the degree to which a norm hardens into an established rule of international law. And in order to define this degree of hardening (soft laws), I study the three main areas in which the business and human rights soft law has been improved. These are domestic legislation, domestic litigation and the private initiatives.”

How do legislative developments, domestic litigations, and private initiatives use soft laws to create new responsibilities for companies?
“In these three different areas soft law has been used differently. The EU proposal of corporate sustainability due diligence for example, clearly declares itself in line with the UNGPs as an international standard. The proposal further requires commitment by companies to identify, prevent and mitigate their impact on human rights. In order to avoid negative impacts on human rights and environment in their own operation and throughout the whole value chain, the proposal would basically translate soft law - specifically principle 17 and 18 of the UNGPs - in domestic legislation of EU member states. Within domestic litigation, soft law is being used to interpret national law, to allow courts to make breakthrough decisions against corporations. And lastly, soft law can also help clarify responsibilities between buyers and suppliers in order to avoid human rights violations in the supply chain.”

How would you describe the role of soft law, particularly the UNGPs, in shaping domestic litigations related to business and human rights?
“Even in cases in which soft law has not been implemented through domestic legislation, it can still have an indirect impact on domestic courts. In particular, soft law proves to be crucial for the application and interpretation of general clauses of national law. As far as the UNGPs are concerned, they can be used as an aid in the interpretation of existing norms in order to structure human rights obligations for corporations.”

Can you provide a brief example from your research to demonstrate its impact?
“At the moment, there is just one case in which a court clearly used the UNGPs to define a climate change obligation against a corporation, that is the Milieudefensie v. Shell Case. In this case, the role of soft law has been essential, since the judge defined a duty of care for the company, reading through the lenses of UNGPs the “unwritten standard of care” of book 6 section 162 of Dutch Civil Code. The court further specifically stated that the UNGPs are “suitable as a guideline in the interpretation of the unwritten standard of care.”. Thus, even indirectly, a soft law instrument ended up defining a new obligation for a corporation. Although it is probably too early to speak about settled case-law, we do see that all over the world similar cases are now emerging, with plaintiffs tending to use the UNGPs, and business and human rights soft law in general, to give new meaning to already existing domestic norms.” 

What impact has international soft law had on the willingness of corporations to embrace responsible behaviour regarding environmental and human rights issues?
“The effectiveness of a soft law instrument is obviously lower, compared to laws. But, considering the difficulty of reaching a general consensus in the field of business and human rights, soft law does create expectations by providing a framework, while also maintaining some flexibility. The aim of the UNGPs was to create a universal paradigm for corporate responsibility. And this goal is being achieved, since the UNGPs are now considered authoritative and universally endorsed, as the court in the Shell case declared. On the other hand, though, large corporations have understood the international relevance of this instrument and supported the content of the guideline principles, often through a public commitment on their websites. Often this corporate's endorsement has proven to be greenwashing, but it is an evolving framework, and they are now called upon to take more serious action.”

Why did you choose to become a visiting researcher at the Asser Institute?
“The Asser Institute is a well-known institute at the international level. I was thrilled by the idea of being accepted to this field of study in such a prestigious context. Moreover, the Institute offered me the chance to improve my research within the research strand ‘Transnational public interests: constituting public interest beyond and below the state’. This gave me the possibility to share ideas and information with other experts in my field of research which positively affected my work.”

Do you have any advice for young academics wishing to enter into the field you are in now?
“I would advise them to not be scared about this field of international law (laughs), and to keep studying the challenging relationship between business and human rights. We are at a pivotal moment in defining new responsibilities for powerful non-state actors, and we must use our voices to advocate for a new legal framework that reflects this shift in power.”

About Nadia Perrone
Nadia Perrone is a visiting researcher in the strand ‘Transnational public interests: constituting public interest beyond and below the state.’ She is a PhD candidate in law and sustainability and a teaching assistant at the University of Salento. Perrone’s research analyses how accountability systems, provided by international soft law, have been used to improve responsible behaviour of corporations in the area of human rights and the environment.

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