Between State, Company, and Market: A Preliminary Engagement on the Business and Human Rights Obligations of States and State Owned Enterprises (SOEs)

Abstract

This past summer, the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises delivered its 2016 Report to the U.N. Human Rights Council. The focus of that report was the relationship of states and state owned enterprises to the state duty to protect and the corporate responsibility to respect human rights at the core of the United Nations Guiding Principles for Business and Human Rights. Part II develops a deep analysis of the 2016 WG Report, interrogating its conceptual framework and its implantation programs. Part III then briefly considers the work left to be done: from conceptual lacunae to implementation. It consists of a set of ten (10) challenges and recommendations for further development. These recommendations and challenges suggest that issues of corporate personality, of sovereign immunity, of asset partition, and of the mania for compartmentalization that marks certain approaches to global economic and financial regulation may well hobble the work of embedding human rights within the operation of states as owners and SOEs as public enterprises. More importantly they suggest the difficulty of the current strongly held consensus that the focus of regulatory governance must be grounded in and through a formally constituted enterprise, the SOE, rather than focusing regulation on economic activity irrespective of the form in which it is undertaken. Until these conceptual issues are considered the regulation of economic activates — SOEs, supply chains, multinational corporations, will remain elusive.

Keywords: State Owned Enterprises, Business and Human Rights, Corporate Social Responsibility Guiding Principles Business Human Rights, OECD Principles SOE Governance

JEL Classification: F23, F53, K33, K42, L22, M14, P16, P41