‘I want to go beyond the traditional, narrow, state-focused approach and argue that some of the obligations found in public international law, and traditionally only applied to states, also apply to non-state actors.’Footnote ¹ Professor Clapham embarks on a mission to expand the international human rights project into a ‘coherent theory of human rights protection capable of practical application to protect the victims of indignities everywhere’.Footnote ² Taking his landmark study Human Rights in the Private Sphere Footnote ³ a step further, Clapham sets out to reconceptualize human rights law that requires a ‘paradigm shift away from the usual exclusively state-centric approach’Footnote ⁴ able to cover non-state actors such as armed groups, international organizations, and corporations, as well as abusive spouses committing domestic violence, restaurant owners and landlords that discriminate against individuals’ fundamental rights.Footnote ⁵ This book works at two levels—the international law level and the domestic constitutional level—to explain that non-state actors can and indeed are legally bound to observe human rights. In this way Clapham elaborates (Chapters 8–11) his previous works where he pointed out that international human rights law demands that states protect individuals from private acts threatening their human rights and that, in some circumstances, generates directly enforceable duties on private actors themselves.

This review is confined to the international level and to corporations. Clapham argues that international law standards of state and individual responsibility (international law, international human rights law, and international criminal law) resolve the existence and scope of legal obligations falling on non-state actors.Footnote ⁶ The book begins by challenging human rights lawyers to take the ‘privatization’ of human rights seriously and embrace a ‘paradigm shift’.Footnote ⁷ The second part examines the legal frameworks and practices of three types of non-state actors: intergovernmental organizations (including the United Nations, World Bank and International Monetary Fund, the World Trade Organization, and the European Union), corporations, and armed groups.Footnote ⁸ The last two chapters discus the underpinning values of the human rights project and emphasize the massive task laying in front of human rights lawyers: come to terms with the ‘interlocking legal orders’Footnote ⁹ that create ‘variegated obligations, not in hierarchical terms, but rather through the concept of complementarity’.Footnote ¹⁰

This is a massive study. It is a tour de force through international and constitutional law, philosophy, and history of human rights. The passion is evident: lawyers should question their ‘filters’ and ‘doctrinaire approaches’ that ‘blind us’ instead of allowing a ‘wider field of vision’.Footnote ¹¹ The sense of purpose is unmistakable: develop a coherent view of international obligations applying to all actors, state and non-state. A sense of optimism is barely disguised: ‘the point [where businesses have obligations under international law of human rights] is nearer than is usually imagined. In fact, many of us imagine we are already there’.Footnote ¹² The book sends a powerful message: international human rights law has the capacity to adapt to new challenges and must evolve to encompass non-state actor obligationsFootnote ¹³ while legal academia should never lose sight of the value dimension of human rights due to myopic allegiance to legal doctrines that might have outlived their utility.

Clapham sets out to ‘privatize’ human rights but nevertheless carefully considers the pitfalls of such an approach.Footnote ¹⁴ Readers might view with apprehension the entire project due to five risks: it might trivialize, dilute, and distract attention from human rights as a bulwark against state abuse, as well as bestow inappropriate power and legitimacy on non-state actors.Footnote ¹⁵ Clapham further places this project into perspective by discussing four phenomena: globalization, privatization, fragmentation and feminization.Footnote ¹⁶ Regarding globalization, he entertains the possibility that it might stimulate new forms of accountability as ‘top-down effects of more open markets for transnational actors’ coexist with bottom-up demands of civil society groups and networks: ‘one could start to exploit the dynamics to ensure better respect for human rights’.Footnote ¹⁷

With the imperative for action established, Clapham questions four legal doctrines—international legal personality, the duty holder, the nature of obligations, and sources of law—in Chapters 2 and 3. Do non-state actors such as corporations have international legal personality, are they ‘subjects’ of international law? Clapham vigorously rejects the utility of this question. Drawing on authorities such as Brownlie, Klabbers, and Higgins, the book urges scholars to ‘escape the intensely debated but sterile question’.Footnote ¹⁸ As a way forward Clapham proposes that rights and duties depend on the capacity of the entity to enjoy rights and bear duties and to exercise its functions.Footnote ¹⁹

States are not the only duty holders of human rights obligations. For Clapham, the public-private sphere distinction should be abandoned and rights should be claimed against public and private power. The foundational Universal Declaration, he argues, does not identify the duty holder but just the entitlements of every individual to minimum standards of treatment that ensure human dignity.Footnote ²⁰ The obligations of companies under international human rights law are legal obligations. Conflating international legal obligation with international enforcement is an error that shortcuts our thinking of corporate and state legal obligations under international law. Clapham rejects the Austinian and Kelsenian view of law being dependent on effective sanction. There are international rights without international remedies, even when it comes to state obligations.Footnote ²¹

Clapham rejects ‘a doctrinaire approach to sources of international law [that] blinds us to the hybrid varieties of international human rights law which have merged to meet new challenges to the enjoyment of human rights’.Footnote ²² He deems non-binding instruments essential to human rights law.Footnote ²³ Regarding corporations,Footnote ²⁴ Clapham draws on international customary law but also makes ample use of soft law (like the OECD Guidelines and the Draft UN Norms) and indeed corporate practice (leading MNEs at the time were road-testing the UN Norms). Clapham fuses these sources in Chapter 11 when he moves the discussion from values to the specific scope of obligations. The book maintains that the existence and scope of non-state actors’ obligations are to be derived from international law sources and are further specified in ‘context’ through a weighing and balancing exercise; the fundamental values powering the human rights project as well as soft law, corporate practices, civil society activism, investor and consumer behaviour shape that ‘context’ and the scope of corporate obligations. Therefore lawyers are ill-advised to ignore all but hard law instruments.

However, there are difficulties with this view of non-state actor obligations under international law, some of which Clapham acknowledges. His ‘legal pluralist’ view of sources of law and shedding of state-centrism can make lawyers uneasy methodologically but also strategically: better to put faith in the current state-centred system rather than a new, unknown, diffuse accountability arrangement.Footnote ²⁵ Better to preserve the current state focus of international human rights law than move to law as ‘multiplicity of communicative processes’, ‘world law’, or ‘multilevel governance’.Footnote ²⁶ Clapham clearly foresaw the difficulties that lawyers would have with John Ruggie’s embrace of ‘polycentrism’ during his UN mandate.

There are further difficulties. The attraction of having corporations recognized as ‘subjects’ of international law comes from Higgins’ observation: doctrine stipulates that all international law is to be divided into ‘subjects’ bearing rights and obligations without the need for municipal intervention, and ‘objects’, that is, the rest of us.Footnote ²⁷ For lawyers seeking to bind transnational corporations under current international law, legal personality is the Holy Grail. It allows legal argumentation to avoid getting trapped at the municipal law level, saddled with the complexity of moving across varying domestic legal orders and non-ratification of some human rights treaties; to avoid the enforcement level by separating, in agreement with Clapham, obligation from enforcement given the latter’s weaknesses at international level; and to draw only on international treaties that contain often general human rights standards and lofty value affirmations. That leaves human rights lawyers in a favourable position: they enthusiastically take on the task to expand the system to corporations, assume the role of legitimate gate keepers for the international human rights discourse, and feel licensed to (broadly) interpret and ‘progressively develop’ the body of human rights law standards. The result has often been a rather expansive view of obligations of corporations, and maybe a slight overconfidence in the role of such legal argumentation in shaping the field of business and human rights. Not surprisingly, this chain of thought that might start with the ‘legal personality’ issue has invited backlash. Clapham notes that resistance to recognition of corporate personality under international law comes from states.Footnote ²⁸ And Ruggie drew on Amartya Sen to fight back against what he perceived was a tendency to see human rights as legal rights and ‘proto legal commands’ only. Clapham himself applied a decisive blow to the ‘legal personality’ doctrine, but his project ran into other difficulties.

The book succeeds only in part in its mission to expand human rights law to non-state actors through direct obligations. It works on the assumption that the way to expand the boundaries of the international human rights system is reapplying well established notions of responsibility,Footnote ²⁹ such as respect-protect-fulfil and complicity. This is an effort to achieve strength through consistency: a unitary account of human rights law that features similar human rights obligations applicable to state and non-state actors alike with variations only in the scope of obligations. The existence and scope of these obligations derive from international law standards of state and individual responsibility. The argument starts to unravel when Clapham, absorbed in the task of ensuring internal consistency of his project, begins to lose sight of external consistency with the complexities of ‘modern life’ and ‘complex networks’.Footnote ³⁰ To substantiate this critique, I look at the conceptual strategy Clapham uses, that is, both the concepts chosen and some omissions that, in my opinion, are indefensible.

There are a few key steps Clapham makes to bind companies under international law. First, the classical categories of obligations (respect-protect-fulfil) apply to all public and private actors. Yes, there will be differences in scope and for companies the concept of sphere of influence is the key in setting the scope right. That will deliver a coherent system of complementary responsibilities of varying scopes. Second, Clapham emphasizes that responsibility is for the impacts of own actions. That applies to the WTO which is not expected to overstep its mandate and become an enforcer of human rights,Footnote ³¹ international financial institutions,Footnote ³² and corporations.Footnote ³³ Third, Clapham relies on the notion of complicity to cover a company’s involvement with third parties that infringe human rights. Standards of complicity are to be found in the International Law Commission’s work on state responsibility and in international criminal law.Footnote ³⁴ Noteworthy, complicity has both legal and non-legal connotations, as demonstrated by the UN Global Compact and the High Commissioner for Human Rights references to direct, beneficial, and silent complicity. Fourth, Clapham indicates that limiting principles for a potentially very broad corporate responsibility are to be found in the ‘key’ notion of ‘sphere of influence’Footnote ³⁵ and in being responsible only for ‘own actions’.

There are problems with all these concepts. Sticking to the respect-protect-fulfil categories sets the stage for an expansive treatment of corporate responsibilities. Grounding responsibility in ‘own actions’ and ‘complicity’ requires a distinction that is notoriously difficult to make and hardly works in practice: every time a third party infringes human rights, some remote culpable corporate commission or omission can be found, and a charge of complicity can be made. Indeed Clapham defines complicity to include ‘beneficial’ complicity which could hold virtually any company and every consumer responsible as benefiting from the way goods are made on the other side of the world. ‘Complicity’ gives Clapham the scheme of attribution for linking a company to abusive partners. This, however, is an accordion-like concept whose endless reach is clearly revealedFootnote ³⁶ and the way in which Clapham poses and not answers genuine questions about the ‘limits of our duty to ensure protection of the dignity of others’Footnote ³⁷ is disheartening. Finally, the heavy reliance on the notion of ‘sphere of influence’ as a limiting principle is similarly difficult to operationalize in practice beyond suggestive graphical depictions of concentric circles. For that reason, Ruggie discarded this concept although it was him who developed it for the Global Compact in order to engage companies and raise their awareness.

So there are reservations about the conceptual building blocks this book uses to deliver a rather expansive corporate responsibility. A look at what is missing—what I call indefensible omissions—in Clapham’s treatment reveals further problems endangering the external consistency of his project.

First, aspects of state sovereignty are hardly incorporated into Clapham’s conceptualization. Nonetheless, allusions to state sovereignty are peppered throughout the book as we learn, for example, about the resistance of developing countries to including human rights in the WTO system,Footnote ³⁸ the fears of accepting ‘international personality’ of corporations,Footnote ³⁹ the concerns that saddling MNEs with obligations might have perverse results on countries in ‘urgent need of foreign capital and of integration with the global economy,Footnote ⁴⁰ and the extraterritoriality objections to home state regulationFootnote ⁴¹ raised in the Alien Tort Claims Act (ATCA) litigation.Footnote ⁴² Second, although a full chapter is dedicated to MNEs, the principle of legal separation of entities hardly surfaces. This legal principle is widely recognized as the bedrock of business law in virtually all countries. Clapham goes no further than observing that, in a complex world featuring a ‘myriad of connections’ and sub-contracting arrangements, there are demands to ‘pierce the veil’ to address responsibilities which could be addressed through ‘complicity’ notions.Footnote ⁴³ The book actually incorrectly asserts that ‘legal systems become more comfortable with “piercing the corporate veil”’.Footnote ⁴⁴ These two principles are of maximum importance in international and business law but neither of them shape or limit Clapham’s analysis despite its focus on transnationalism.Footnote ⁴⁵ In a world of sovereign states that chose to integrate in the global economy to pursue strategic economic development interests, this is no small oversight.

One could retort that operationalization per se is beyond the scope of the book; this book is not really about devising legal regimes at the municipal level or a business and human rights treaty at the international level.Footnote ⁴⁶ Instead the book is meant to establish the existence and varying scope of obligations under international law, prompt lawyers into a much needed soul-searching effort to revisit accepted wisdom in human rights law, and offer a coherent conceptual apparatus for taking on subsequent tasks of further legalization and operationalization. The problem is that the book might not be able to guide—due to unsuitable concepts used and notable omissions of first order principles of international and business law—thinking and efforts to legalize broad corporate human rights responsibilities.

This critique boils down to several aspects for potential readers. First, the book is most compelling in challenging human rights lawyers to revisit critically some legal doctrines in light of the new challenges facing the human rights system. The conceptual architecture fits if the project is narrowed to the direct involvement (including legal complicity) of companies in abuses. In my view, the book rapidly becomes less compelling the more it moves away from the ‘core’ of customary international law outwards into all human rights enshrined in the Universal Declaration, and from the ‘core’ of direct involvement by the company outwards into indirect involvement situations. The book also nurtures an illusion that an accordion-like notion of complicity can persuasively move the argumentation beyond direct involvement cases; one cannot so easily because that is not ‘virgin territory’, it is inhabited by first order principles of business law and international law deeply entrenched at international and domestic levels.

Second, the path the book explores might not have been as fruitful as expected. However, because this exploration is done so expertly, Clapham in effect tested thoroughly the very limits of the project of expanding international law to apply to corporations through ‘mirroring’ state obligations and seeking a seemingly unitary account of international human rights law. The book captured the zeitgeist of an era, it beautifully illustrates the legal human rights mindset prevailing in the early 2000s. The merits and shortcomings of the book might boil down to a powerful message: there is a need to embark on a radically different effort in how to think of legalization in business and human rights. Seeking strength through internal coherency of international law by bypassing the domestic level, the enforcement level, and state sovereignty in an economically globalized world is a shortcut to nowhere. Constant interest in operationalization and legalization dynamics is one’s best ally in thinking profoundly about regulatory issues.

Third, Clapham’s treatment is a revealing contrast with the project John Ruggie undertook. Clapham, absorbed in a legal reinterpretation project and on a mission to rescue human rights law from itself, did not truly manage to come to terms with the complexity he set out to address. Ruggie embraced complexity to a larger extent and furthermore had no (professional) allegiance to the human rights project as defined by Clapham and the Draft UN Norms. Ruggie deliberately went outside the international law project—he escaped into ‘polycentricism’ and sought to create ‘facts on the ground’—during his mandate. While Clapham focused on reframing the mindset of human rights lawyers, Ruggie prized external consistency and operationalization. Both accepted legal pluralism in the search for new ways to protect human dignity in a global economy. Ruggie’s bet was on activating as many sources of leverage as possible (polycentrism) and changing the environment of law (facts on the ground), and concluded his UN mandate speaking of legalization: not by proposing a comprehensive treaty, but a narrow international instrument focused on grave abuses (international law as ‘precision tool’) and a recognition that further legalization is necessary and desirable. It appears that Ruggie’s work was more consequential in his ‘great bet’ on external consistency (approach to complexity) and operationalization (creating dynamics of change).

The book drew a sublime research baseline just as the UN was drawing the curtain on the Draft UN Norms and was embarking on the Ruggie process (2005–2011). One of Ruggie’s first moves as Special Representative was to dismiss the Norms and give us a different lens to look at corporate responsibility. We are currently about to draw another baseline. Following two Human Rights Council resolutions in 2014, the UN has restarted the legalization discussion. (International) legalization is back on the table. The questions for the legalization-minded are: will human rights lawyers relapse into the mindsets that Clapham so eloquently exposed, and if not, what has really changed in our outlook on legalization following the UN Guiding Principles? These UN treaty discussions underway—successful or not—will quickly draw another baseline in how we legally reason about business and human rights in 2016. This will reveal whether and how the Ruggie decade and the rapid changes in the globalized economy have influenced human rights perspectives on legalizing MNE responsibilities. With its accomplishments and shortcomings, Clapham’s book is an informative and provocative reflection-trigger.