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Democratizing International Business and Human Rights by Catalyzing Strategic Litigation

Backer, Larry Catá and Haddad, Nabih and Teraoka, Tomonori and Wang, Keren, Democratizing International Business and Human Rights by Catalyzing Strategic Litigation: The Guidelines for Multinational Enterprises and the U.N. Guiding Principles of Business and Human Rights from the Bottom Up (September 14, 2013). Available at SSRN

With the June 2011 endorsement of the U.N. Guiding Principles for Business and Human Rights by the U.N. Human Rights Council, the international community entered a new phase in the approach to the important work of developing global norms for economic activity with human rights impacts, irrespective of the states in which these occur. But the business and human rights project still privileges the state and the elite communities of enterprises, lawyers and civil society organizations that form the networks of norm creation and operationalization on which the objects of human rights discourse are dependent. To effectively implement the Guiding Principles requires an empowerment of all stakeholders down the supply and value chain. This empowerment must naturalize the substantive norms embedded in the Guiding Principles into the cultures of business activity shared by all stakeholders. This article, then, elaborates our initial framework for a three-phase approach for the Democratizing Human Rights/Catalyzing Strategic Litigation (DHR/CSL) initiative, which begins with knowledge production centered on focused toolkits, followed by the education/knowledge transmission phase that involves deployment of knowledge-product as toolkits through student centered training, education, and technical assistance; finally, the project will move towards the operationalization phase where large networks of stakeholders can both effectively and sustainably enforce business due diligence through the implementation of litigation/complaint strategies. The combination of knowledge creation, education/technical assistance and targeted litigation/complaint strategies may serve to overcome the problem of evolving the current development of business and human rights project from a bauble for the use of global elites and as an instrumental project to protect the privilege of states to a mechanics of asserting popular power through the mechanics of markets and the invocation of the international procedures which states themselves are bound to honor.

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