Out with the ‘Old’, in with the ‘New’: Challenging Dominant Regulatory Approaches in the Field of Human Rights

Mainstream doctrinal and theoretical thinking in international human rights scholarship still adheres to ‘old governance’ regulatory approaches. This is despite the reality of transnational corporations’ (TNCs) increasing involvement in ‘new governance’ architectures in the field of international human rights as regulatory actors and agents of change. ‘Old governance’ approaches are distinguished by statist, positivist regulatory dispositions: they typically position TNCs as violators of human rights; assume a hierarchical relationship between state and society; couple regulation with governments while presuming the state to be the ideal regulator; and, consequently, emphasize power and legal accountability as normative concerns and predominant vehicles for social change. The present article critically reflects on the conceptual, practical and normative implications of this ‘old governance’ bias for contemporary thinking about corporations and human rights under conditions of economic globalization. On the basis of these analyses, the article takes first steps on the path to further theoretical development of a new governance theory for business and human rights. It does so by outlining the importance of new governance perspectives for better evaluating the role that corporate actors actually assume in the field, and what this may mean for these norms’ protection.


Introduction
sees the world essentially through the prism of the "state" will be seeing a rather distorted image as we enter the twenty-first century'. 2 Alston captures what was couched at the turn of the century as a paradigm shift in doctrinal thinking about human rights. 3 According to this dominant narrative, the mounting power of non-state actors -particularly transnational corporations (TNCs) -and their increasing involvement in human rights violations, have laid down the challenge of 're-imagining . . . the nature of the human rights regime and the relationships among the different actors within it'. 4 The act of 're-imagining' in the context of business and human rights primarily demanded a departure from the classical statist paradigm underpinning international human rights law (IHRL) -and international law more broadly -so as to extend its purview to TNCs and recognize them as legal personalities. This departure would qualify TNCs as violators of IHRL, thereby making them accountable alongside sovereign states for human rights abuses. 5 In fact, these narratives contend, it is only by overcoming existing doctrinal constraints and imposing hard legal human rights obligations on TNCs that contemporary aspirations to ensure broader accountability can be effectively met. 6 IHRL scholars' and practitioners' growing attention to TNCs, and their corresponding efforts to address the challenges posed to human rights by corporate actors, have thus often been couched in paradigm-shifting rhetoric. This rhetoric characterizes the main legal instruments developed under the purview of IHRL to cope with TNCs and the doctrinal commentary thereon; and primarily involves the increasing backpedalling from a tapered articulation of human rights as individual protections from the abusive power of states. And yet, such efforts to depart from classical statist understandings of IHRL have not been accompanied by extensive attempts from within the international legal community to interrogate whether the broader regulatory approach of IHRL is still relevant for this regime under conditions of economic globalization. IHRL scholars and practitioners continuously adhere, in other words, to international legal positivist, state-centric regulatory dispositions, that are emblematic of international legal jurisprudence more broadly.
This article undertakes a deconstructive task in critically reflecting on the dual statist and legal positivist prisms of international human rights practice and scholarship, and 2 Ibid. 3 See, e.g., A. Clapham, Human Rights Obligations of Non-State Actors (2006), at 1. 4 Alston, supra note 1, at 4; see also Reinisch, 'The Changing International Legal Framework for Dealing with Non-State Actors', in P. Alston (ed.), Non-State Actors and Human Rights (2005) 37. TNCs became a subject of concern in international law several decades earlier in the context of their involvement in foreign direct investments. Around the turn of the century, international legal focus was increasingly directed towards their involvement in human rights violations such as the role of Royal Dutch Shell in the torture and killing of Nigerian protestors (see Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013)), or the involvement of apparel companies in employing workers in sweatshops (see, e.g., Cavanagh, 'The Global Resistance to Sweatshops', in A. Ross (ed.), No Sweat: Fashion, Free Trade, and the Rights of Garment Workers (1997) 39). 5 Rodley, 'Non-State Actors and Human Rights', in S. Sheeran and Sir N. Rodley (eds), Routledge Handbook of International Human Rights Law (2013) 523, at 523; Clapham, supra note 3, at 1. 6 Alston, supra note 1, at 6. their implications for contemporary thinking about human rights norms under conditions of economic globalization. The article begins by first analysing what it terms the 'old governance' structure of prominent legal tools devised or enlisted in recent decades to address corporate involvement in human rights violations (Section 2). This analysis centres on the regulatory assumptions of the proposed Business and Human Rights Treaty, the Alien Tort Statute and the UN Guiding Principles on Business and Human Rights. As will be argued, the governance approach underlying these legal tools has certain characteristic features. This approach conceptualizes TNCs predominantly as violators of human rights and thus as regulatory objects; it frames the relationship between state and society as hierarchical; and perceives positive law as the essential vehicle for instigating social change. 7 These legal instruments thus embody a certain vision of the relationships between TNCs and human rights and between TNCs and the state; a vision that considers both sets of relationships as one-dimensional and dialectic.
These three regulatory tools do not reflect, however, the full landscape of regulatory measures that have developed in the field of human rights in recent decades. In parallel to these, TNCs also became increasingly involved in the field of human rights via their participation in private transnational regulatory regimes. Employing the term 'new governance' to describe these regimes, a corresponding growing body of literature in political science has theorized TNCs' involvement therein as examples of TNCs' regulatory functions and roles. New governance theories, introduced and discussed in the latter half of Section 2, offer a different lens for understanding what regulation is and what practices and actors it involves; how control is exercised in contemporary societies; and how various configurations of ordering bring about social change in diverse areas of human activity. Their regulatory lens thus accounts for the fact that TNCs, despite their private character, often assume public functions and wield public power. In the field of human rights, much like states, they therefore assume a complex role as both violators and norm-generators and enforcers.
The extant reality of TNCs' complex involvement in the field of human rights, and the conceptual framework offered by new governance approaches to understand these roles as regulatory ones, have not, however, always been seriously recognized, acknowledged and engaged with by international human rights scholars (Section 3). This lack of engagement is manifest in three interdependent scholarly domains. First, 'traditional' doctrinal scholarship often marginalizes the issue of business and human rights altogether, to focus almost exclusively on states and international institutions. Second, doctrinal commentary and debates which do focus on business and human rights as a specific sub-field of IHRL do not rupture the boundaries of statecentric, legal positivist thinking either, but rather direct their predominant attention to TNCs as objects of regulatory control. Underpinning this focus is often a normative standpoint which either expresses scepticism towards the actual potential of TNCs to effectively observe their own conduct as regards human rights norms; or, alternatively, ultimately considers the private character of TNCs as fundamentally different from that of the state as an inherently public entity. Finally, even human rights theorists -whose main thrust is to move beyond the restricted ambits of doctrinal studies, to examine more broadly and principally the meaning and rationale of human rights -often remain tethered to positivist models of law and power in which the state continues to be the central reference point. International human rights scholarship is still very much eclipsed, therefore, by an old governance bias that impedes the development of a full-fledged theory of business and human rights.
Taken together, these analyses suggest the merits of considering the potential of pursuing a new governance approach to human rights as a lens for better understanding and critically reflecting on TNCs' part in the generation, institutionalization and enforcement of human rights norms. A preliminary discussion on the value of such an approach is therefore launched in Section 4, as a modest first step on the path to further theoretical development of a new governance theory for business and human rights. In a nutshell, a new governance prism would permit moving away from the dichotomous discourse of whether corporate actors are 'good' or 'bad' for human rights, which naturally flows from old governance sensibilities; and expands the scope of exploratory avenues and normative thinking in the field, so as to better evaluate both the opportunities and perils afforded by decentralized regulatory architectures. It accordingly facilitates a reappraisal of the structure and potential of international law to respond to the involvement of TNCs in the field of human rights, not only as violators but also as regulatory agents. 8

Two Regulatory Paradigms: Old and New Governance A The Old
As TNCs became the 'driving agents of the global economy', 9 their growing influence on social spheres beyond the economic became an increasing cause for concern for states, human rights lawyers, activists, non-governmental organizations (NGOs), workers and consumers worldwide. 10 This concern triggered increasing civil society activism, 11 transnational litigation 12 and, importantly, the promulgation of legal frameworks targeted at 'subjecting business to the mandate of international human rights law'. 13 The need to develop such frameworks palpably arose out of the limited ability of the traditional model of human rights to address the problem of TNCs. Not only are corporate actors disregarded by international human rights treaties as duty-bearers of legal obligations; 14 but also, this regime's 'lack of transnationalization' 15 effectively means that TNCs can easily 'avoid national regulation through their mobility and flexibility of structure and organisation'. 16 The need to address the role of TNCs as violators of human rights in international law hence primarily called for a departure from the classical statist, legal positivist paradigm underpinning it.
Attempts at this departure bred the creation or enlisting of several legal instruments to specifically target the relationship between TNCs and human rights under the purview of IHRL. But whilst these recognize the need to diverge from a limited understanding of human rights exclusively as individual protections from the abusive powers of states, they are still predicated on 'old governance' regulatory structures which do not question the adequacy of IHRL's regulatory approach in the context of dealing with TNCs. These legal tools thus continuously position TNCs almost exclusively as violators of human rights; assume a hierarchy between state and society; conceptually pair regulation with governments and legal enforcement; and view positive 'hard' legal obligations as the essential vehicle for instigating social change, and the state as the most competent and normatively desirable regulatory actor.
The most recent response to TNCs in IHRL, driven by a number of states and strongly supported by civil society, 17 was launched by the Human Rights Council in 2014 in the form of a resolution calling for the development of 'an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises'. 18 21 The Draft Treaty thus designates states as the primary duty-bearers with respect to the protection and promotion of human rights norms within their jurisdiction. 22 In doing so, it remains faithful to the pre-existing hierarchical, state-oriented, regulatory regime in international law, according to which TNCs as non-state actors are subject to the coercive and central power of the state, and remain objects of regulatory control. This regulatory standpoint not only assumes the state to have the sole capacity to commandand-control, but also presupposes its effectiveness in doing so as the ideal and only legitimate regulator of international legal obligations. 23  other hand, are conceptualized almost exclusively as miscreant agents which require directing and constraining in the public interest. Their relationships with human rights and with the state, by this view, are one-dimensional and adversarial. The same governance approach underlies jurisprudence under the US Alien Tort Statute (ATS) which was enlisted in recent decades to cope with the problems posed by TNCs, and considered by international human rights lawyers -at least up until the US Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum Co. -an important legal tool in confronting corporate involvement in human rights violations. 24 The ATS is often considered a decentred regulatory mechanism which provides individual right-bearers with a 'bottom-up claim to fairness' in the administration of IHRL. 25 Nevertheless, it primarily features old governance qualities in seeking to anchor corporate accountability in legally binding duties, and to subject TNCs to the coercive rule of American courts. 26 The legal strategy at its heart seeks to mobilize the American legal system in order to enforce international standards by policing and sanctioning corporate complicity in human rights violations in foreign states whereby the local law cannot be effectively evoked. 27 Like the Draft Treaty, then, ATS jurisprudence presupposes the state's significance as direct enforcer, and advocates 'hard' adversarial legal frameworks for effective regulation. It centres on TNCs' ethically questionable character as private actors, marking them as necessary objects of regulatory scrutiny.
Moreover, the adversarial nature of the claims set in motion by ATS plaintiffs, the accusatorial environment of the court and the legal procedure's ultimate goal of establishing TNCs' legal accountability all innately position TNCs and civil society on opposing sides. This characteristic is inherent in the legal mechanism of ATS claims as being based on a rights discourse. As such, ATS litigation entails a 'trump quality', 28 framed competitively as a zero-sum game in which one side's loss is the other's gain. The regulatory approach implicit in this legal mechanism is therefore not one which perceives governance as a learning process in which TNCs may engage in open communication to find mutually beneficial solutions. Rather, under the purview of this 24 Shamir, 'Between Self-Regulation and the Alien Tort legal instrument, TNCs' agency is limited to compliance, with no opportunity for dialogue or negotiation with various other societal actors. The UN Guiding Principles on Business and Human Rights (UNGPs) endorsed by the Human Rights Council in 2011 reflect, to some extent, a different regulatory approach in the role that they ascribe to TNCs, at least procedurally. 29 The drafting process of the UNGPs, that is, was guided by the Special Representative to the Secretary-General's (SRSG) objective of securing the procedural engagement of a wide range of stakeholders in the UNGPs' formulation. In incorporating TNCs in the norm-generating process, the SRSG had thereby embraced, at least partially, their role as regulatory partners. 30 However, the substantive content of the UNGPs and the structure of obligations they support as a whole still reflect a hierarchical and centralized regulatory attitude which is aligned with the doctrinal framework of IHRL. Specifically, the UNGPs divide human rights obligations between states and corporate actors hierarchically, underscoring the role of governments as the exclusive regulators with legal obligations to protect human rights, whilst TNCs -as private 'economic organs' 31 -merely hold subsidiary responsibilities to respect human rights norms. 32 The regulatory premise of this framework perceives a tension between the traits of traditional public regulatory agents in international law on the one hand, and TNCs' private nature on the other. States, which both violate and regulate human rights norms, are therefore obliged to perform their latter role also in the context of corporate conduct. TNCs, however, are only evaluated in terms of their impact as private actors and are positioned exclusively as violators and regulatory objects. 33 The UNGPs do not account, therefore, for any de-facto public functions that TNCs already assume in the active shaping, diffusion or institutionalization of human rights norms via their economic endeavours. 34  absence of state-based hard law or its effective implementation, a 'governance gap' is created, which the UNGPs attempt to fill by demanding that TNCs act not unlike responsible individuals in refraining from abusing human rights. Regardless of their non-binding nature, then, the UNGPs ultimately embody and reinforce a legal positivist distinction between law and what is captured by new governance theories as the private exercise of public governance. The UNGPs thus reiterate the governance approach of international law's doctrine of subjects, whereby 'regulation' is commensurate with state-made law, and corporate action is a mere manifestation of a 'civic duty' to 'respect'.

B The New
The three regulatory tools thus far described do not reflect the full landscape of regulatory measures that have been developed in the field of human rights in recent decades. Parallel to legal instruments formulated broadly within the purview of IHRL to rein in TNCs, the latter also became gradually involved as regulatory actors in the field via their participation in pluralized, decentred regulatory architectures. 35 Such initiatives proliferated from the mid-1990s as part of an intricate matrix of regulatory regimes shaping and shaped by corporate conduct in the transnational arena, often involving alliances with governmental actors, IGOs and civil society. 36 Despite differing in scope and architecture, they are all predicated on TNCs' often voluntary allocation of resources towards formulating and implementing schemes that mould the environmental, labour and human rights standards tied to their global productions. 37 Such regimes all share some basic features that have been theorized by a corresponding body of literature developed in political science, as instances of 'new governance' regulation. These features relate to what new governance paradigms capture as TNCs' regulatory functions in the field of human rights. The reference to these 35  functions embodies a conceptual understanding of TNCs' role in the design and administration of human rights, namely, their participation in agenda setting, the drafting of norms, their role in monitoring and implementation and the enforcement of behaviour. 38 This conceptual analysis is grounded in a broad and nuanced interpretation of 'regulation' as encompassing 'all mechanisms of social control' including those 'which are not the products of state activity, nor part of any institutional arrangement'. 39 It refers to the promulgation of 'prescriptive rules and the monitoring and enforcement of these rules by social, business, and political actors on other social, business, and political actors'. 40 Contrary to 'command-and-control' old governance, a new governance approach envisages regulation as an iterative, dynamic, experimental learning process, 41 in which non-state actors' agency is no longer limited to choosing whether or not to comply. 42 This lens thus shifts emphasis from questions on the subject of legal accountability, towards the way change occurs within social and legal systems. 43 It accounts for 'the dispersal of capacities and resources relevant to the exercise of power among a wide range of state, non-state and supranational actors', 44 and for the ways in which they are empowered to participate in numerous stages of the social ordering process. 45 In the context of TNCs' regulatory functions in the field of human rights, these are operationalized through numerous techniques such as soft-law, contractual norms, information gathering, benchmarking, or institutionalized consensus-building, to name but a few; 46 and involve various regulatory structures including collaborations with governments or civil-society, and the reallocation of regulatory power between public and private actors; 47 the use of information-based practices; legitimacy-based authority (as opposed to legal-based); 48 and a regulatory focus on aspects concerning behaviour, integrity of messages and performance. 49 New governance paradigms thus capture a much broader set of practices which could be regarded as characteristic of the regulatory environment of the international human rights regime, and therefore challenge the understanding of hard law, formal regulation as the exclusive venue for social change.
Examples of such regimes abound. Prominent infrastructures include self-regulation in which 'the regulator is also the regulatee'; 50 'meta-regulatory' schemes which typically involve national regulation of corporate self-regulation; 51 and other 'regulatory hybridizations' or cooperative frameworks such as multi-stakeholder initiatives. 52 According to new governance paradigms, these various structures should not be conceptualized as dichotomous to government regulation. Rather, they are best understood as different 'typologies of social control' that may be placed on a continuum 'with pure forms of self-regulation and government regulation at opposite ends'. 53 The most conspicuous form of self-regulation in the context of TNCs and human rights are unilateral codes of conduct in which TNCs design and enforce human rights standards within their global supply chains. 54 These codes are often deployed to guide not only the behaviour of the self-regulating corporation, but also that of all other entities with whom the self-regulating corporation maintains commercial relationships. Codes of conduct are thus understood to function, by new governance paradigms, as a conduit through which TNCs regulate other actors, as well as the field of human rights itself, where the latter is often left 'unregulated' due to the absence of state regulation or its effective enforcement. 55 49 Levi-Faur, supra note 7, at 9-10, lists several more aspects. 50 Ibid., at 8. 51 Ibid., at 11. There are several examples of these in the human rights arena. Some are classic meta-regulatory structures in which the state is the 'indirect regulator of internal control systems': C. Parker, The Open Corporations, Effective Self-Regulation and Democracy (2014) The codification of human rights norms by TNCs and their formalization as a practice therefore confer powers and duties on actors in the field, so as to establish a normative order which defines and limits individuals' human rights conditions. Codes of conduct help establish transnational 'systems of control beyond the state', with no necessary 'recourse to the authority and sanction of government'. 56 Regardless, therefore, of how sweeping the impacts that codes of conduct have on human rights conditions are, the distinct analytical lens offered by new governance paradigms accounts for the ways in which TNCs assume public functions that either supplement or supplant those of the state, by partaking in the development and enforcement of human rights norms through self-regulation. Thus, codes of conduct might prove more successful in guaranteeing healthy working environments or the provision of a minimum wage, and less successful in securing freedom of association or collective bargaining; but in either case, it is the corporate actor which assumes a central role in shaping and enforcing these norms, a role often more influential than that of the state itself. 57 Co-regulation, or multi-stakeholder initiatives, are other prominent regulatory structures through which TNCs assume public functions in the generation and enforcement of human rights norms. 58  October 2020). 64 Levi-Faur, supra note 7, at 10.
In the FLA, for example, participating stakeholders all assume equal roles in decision-making processes. 65 Partaking in the 'legislation' of the Initiative's Code of Conduct, in the implementation of its constitutive norms and in the process of remedying deficiencies, TNCs therefore become active participants in processes considered to be the 'functional equivalents' of law-making, adjudication and enforcement in the field of human rights 66 -or, put otherwise, in processes of a jurisgenerative quality. 67 Similarly, the governance structure of the ICoC comprises representatives of three pillars: government, industry and civil society, 68 which all took part in the standardsetting process as well as in ongoing oversight. 69 More broadly, the regulatory techniques through which multi-stakeholder initiatives are operationalized often include a combination of standard-setting or the drafting of a code; 70 reporting, monitoring or performance assessment; 71 certification; 72 capacity building; and enforcement. 73 These governance structures pluralize authority and blur the public-private division of regulatory power. Within these structures, TNCs' agency is not limited to decisions on whether or not to comply with externally imposed regulation. resources are drawn on within a collective endeavour, to materially shape the human rights conditions of individuals, often on a global scale. These instances of transnational private regulation, and the theoretical lens which understands these instances as forming a continuum of regulatory tools rather than as dichotomous to law, have not attracted the attention of international human rights scholars. It is perhaps unsurprising that the international legal practice developed to cope with TNCs in the field of human rights has not significantly moved away from state-centric, legal positivist regulatory dispositions, given the more principled reluctance of states to progress towards recognizing TNCs as international legal subjects. What is intriguing, however, is that the scholarship which has developed in parallel and in response to the mounting involvement of TNCs in human rights violations has too often remained tethered to conceptual frameworks which do not consider the public regulatory functions that corporations have increasingly come to assume in this field. In other words, international human rights scholars are not, in principle, precluded from engaging with theoretical frameworks -such as new governance paradigms -that provide alternative understandings of the role TNCs assume in the field of human rights. And yet, as analysed in what follows, they typically do not.

The Old Governance Bias of Human Rights Scholarship
The disregard of new governance prisms is manifest in three areas within international human rights scholarship. First, international human rights textbooks that are based on traditional doctrinal scholarship, and which constitute the main literary corpus through which IHRL is taught, typically allocate relatively narrow sections to the relationship between TNCs and human rights. Second, the parameters of discussion within the doctrinal sub-field of business and human rights are also significantly influenced by an old governance bias. These discussions are predominantly framed around the tension between TNCs as regulatory objects and human rights, or preoccupied with the viability and effectiveness of hard legal frameworks in establishing TNCs' legal accountability. Third is the old governance bias of theorists and philosophers of human rights. Whereas human rights theories seek to rigorously enquire into the nature and rationale of human rights, or to provide robust explanatory frameworks for how these norms evolve and become institutionalized, they, too, are predominantly informed by the regulatory assumptions of the practice and doctrinal commentary thereon.

A Doctrinal Scholarship 1 Traditional
Discussions on corporations and human rights feature marginally in general IHRL textbooks. 74 Etymologically, these textbooks refer to TNCs typically and not 74 See, e.g., P. Alston and R. Goodman 78 This framing reflects a regulatory approach which mirrors that of the praxis, according to which the state and its coercive power -employed through laws backed by sanctions -are assumed to be the backbone of regulation. Its underlying ideology envisages a hierarchical relationship between the state and other social actors, in which policy is formed unilaterally by the state, only to be complied with by social actors, or otherwise be coercively enforced. 79 The regulatory process, accordingly, is not grounded in horizontal social interactions, but is rather vertically constructed top-down. 80 The unequivocal answer to novel challenges to human rights norms, this literature contends, is either the imposition of positive international legal obligations on governments to subject TNCs to measures that would give effect to human rights, or the direct imposition of international obligations on TNCs themselves. 81 Understandably perhaps, the governance approach of traditional scholarship remains faithful to that of the international praxis, in light of its aim to provide a descriptive account of this praxis. Insofar as the plethora of regulatory initiatives involving  79 Ibid. 80 Rodley, supra note 5, at 540: 'While it is therefore clear that business enterprises, notably those acting transnationally, have no direct legal responsibility under IHRL, there is every reason to focus on the responsibility of the state of the (parent) corporation to ensure that the latter does not become an accomplice to human rights abuses'. 81 See, e.g., Alston and Goodman, supra note 74, at 1467: For human rights proponents, the growth of corporate power raises the question of how to ensure that the activities of transnational corporations in particular are consistent with human rights standards and of how to promote accountability when violations of those standards occur. In principle, the answer is straightforward. The human rights obligations assumed by each government require it to use all appropriate means to ensure that actors operating within its territory . . . comply with national legislation designed to give effect to human rights.
TNCs in the field of human rights are considered by states themselves to be beyond the scope of international human rights law, then the marginal treatment they receive in IHRL textbooks is arguably coherent. Be that as it may, this old governance bias results in a failure to account for the full range of regulatory phenomena that have actually characterized the field of human rights for some time now. One might therefore critically reflect in this context on the relationship between practice and scholarship, and on the role of scholarship in perpetuating the limitedness of the practice, especially in light of the particularities of the doctrine of sources in international law. Namely, if scholarship is considered a subsidiary means for determining the rules of international law, then the influence of its old governance bias on the progressive development of the practice itself should not be discounted. 'Ordinary publicists', as dubbed by Sandesh Sivakumaran, can indeed 'contribute to the emergence of new ideas', especially when such authors are also members of expert groups. 82 The ways in which substantive issues are approached by scholars and teachers have a meaningful impact on 'students' views on the subject ...'. 83 Importantly, international legal scholarship has a 'law-making potential', as Gleider Hernández notes, 'that is exercised through cognising, structuring, and apprehending legal materials'. 84 In this context, scholarship may therefore play a prescriptive role in driving the re-demarcation of disciplinary boundaries to include transnational private regulation within their scope, as instantiations of international law.

Business and Human Rights
Old governance regulatory dispositions are characteristic also of the sub-field of doctrinal scholarship which centres in particular on business and human rights. 85 Contrary to 'traditional' scholarship, the starting point of business and human rights literature is indeed the overshadowing of the 'traditional preoccupation of human rights law with protecting individuals against the oppressive power of the "public" and "territorial" state', by 'concerns about the human rights impacts of "private" power ...'. 86 Business and human rights scholars thus acknowledge and engage with the centrality of the corporate actor in the field of human rights, and indeed often concede to the misfit between the state-centric structure of IHRL and global business operations. And yet, these scholars often rely on the very statist regulatory assumptions which they purport to vigorously challenge. Specifically, this scholarship typically considers the state the 'ideal authority to regulate international legal obligations within and between states', 87 and thus continues to focus on international legal instruments which ascribe the state the direct role of legislator and enforcer, marginalizing those in which states assume an indirect role as orchestrators or coordinators. This focus is arguably driven by this scholarship's 'quest for [corporate] accountability', 88 and its coinciding scepticism towards TNCs' potential to effectively monitor and constrain their own behaviour; or, alternatively, by this scholarship's functional separation between the role of private and public actors in society. 89 Regardless, however, of the normative impetus driving and shaping modern business and human rights legal writing, the fact remains that its prominent focal point continues to be the legal instruments devised under the purview of the UN to 'address the human rights impact of business'. 90 These include, most notably, the UNGPs and the Draft Treaty, the latter of which -as discussed earlier -indeed constitutes a paradigmatic example of an old governance regulatory instrument. 91 87 Lustig, supra note 23, at 595. For an early example, see Clapham, supra note 3, at 28 (specifically recognizing the possibility of moving towards a new governance paradigm, but offering, alternatively, a different approach which emphasizes TNCs as possible objects of the law: 'My approach retains as a starting point the principles and rules of public international law with its origins in the law-making power of the nation-state . . . . I recognize the importance of non-state actors and their influence without suggesting that they have achieved the role of law-maker' should centre on the reasons for such a treaty, rather than contemplating the difficulties associated with its achievement. The implicit regulatory assumption is that the archetypical statist regulatory tool -the international treaty -and the state as its promulgator and enforcer, is undoubtedly the proper mechanism through which to order the field of human rights). 88 Ramasastry, supra note 87, at 238 (emphasis added). See also several years earlier, Clapham, supra note 3, at 196. 89 I thank an anonymous reviewer for this point. 90  The scholarly debate on these instruments is thus predominantly confined to the governance approach underpinning them. Its main preoccupation is the extent to which these instruments succeed in binding TNCs and establishing their legal accountability. 92 For example, the debate on the Draft Treaty typically centres on whether TNCs' legal accountability can be better achieved through states' obligations to enforce TNCs' respect for human rights (and the difficulties that this route poses); 93 or whether direct international legal obligations on TNCs are required. 94 Comparisons between the Draft Treaty and the UNGPs similarly focus on which of the two proves more adequate in binding TNCs to human rights standards -an international instrument, or the implementation of international standards within states' own domestic law. Whilst the two ostensibly involve two different regulatory layers -the national and international -they nevertheless share the same assumptions regarding the role of the state, and uphold the public-private dialectic in which the functions of TNCs are distinct from those of the law-making and enforcing state. 95 Still very much defined by statist sensibilities, this scholarship often articulates an implied distinction in kind -rather than degree -between formal legal regulation as the dominant venue for social change, and 'voluntarism'. 96 By distinguishing law centre on the regulatory role of states; Jägers, 'Sustainable Development Goals and the Business and Human Rights Discourse: Ships Passing in the Night?', 42 Human Rights Quarterly (2020) 145, despite adopting a social constructivist approach which recognizes that '[normative], institutional, and behavioral change cannot be attributed to self-interest or coercion through formal legal regulations alone' (ibid., at 148-149), still focuses both on states as agents of change and the ultimate regulatory actors through which such change takes effect, and on the UNGPs as the framework the content of which is commensurate with the business and human rights discourse. 92 Even in the context of a normative discussion, the focus is on how to establish the case for binding obligations on TNCs. See, e.g., Bilchitz, ' A Chasm between "Is" and "Ought?" The only context in which the notion of an equal standing between states and TNCs is implied is in the context of claims supporting binding obligations for corporations. See, e.g., Bilchitz, supra note 87; Bilchitz, supra note 92. 96 See, e.g., Ramasastry, supra note 87, at 238, presents an understanding of the field of business and human rights as 'contextually and conceptually different from CSR in its aims and ambitions'. New governance prisms recognize these two discourses as merely focusing on different regulatory instruments to affect social change.
Similarly, Jägers, supra note 91, at 158, whilst recognizing that 'it is increasingly acknowledged that the dichotomy between hard and soft law is fading', still notes that '[the] BHR discourse differs fundamentally from what is commonly known as Corporate Social Responsibility (CSR)'.
from voluntary corporate involvement so as to conceptually disregard the latter as a form of 'regulation' or 'governance', the legal strands of this literature largely downplay the concept of regulation as a collective endeavour, and the viability of TNCs' role therein as de-facto regulatory partners rather than compliers. 97 Decentralized instruments involving TNCs are accordingly disregarded as regulatory tools, but rather often conceptualized as second-tier methods, insufficient for the taming of TNCs. This scholarship falls short, in other words, of fully appreciating and contemplating new governance theorizing of corporate involvement in decentralized regimes in terms of their contribution to processes of social ordering as norm-generating and norm-institutionalizing subjects. 98 According to the business and human rights narrative, the absence of hard legal regulation thus results in a 'governance gap' or regulatory void. 99 Doctrinal literature undoubtedly centres on important questions. However, these questions nevertheless orient the field in a particular way, the practical implications of which will be considered in this article's final section. Beyond its meaning for the Augenstein, supra note 33, at 257: 'In terms of content while all four NAPs . . . made an explicit commitment to the UNGPs, they focus heavily on past actions and voluntary measures (such as awareness raising or training) at the expense of exploring forward-looking and regulatory options'. Whilst Augenstein recognizes Open Method Coordination between states as a 'governance framework', and that 'easy juxtapositions of "hard" law versus "soft" law . . . are misleading' (ibid., at 261), he does not seem to apply the same regulatory logic when it comes to thinking about TNCs themselves. Cernic, 'Fundamental Human Rights Obligations of Corporations', in A. Hrast (ed.), Collected Papers of the 4th IRDO International Conference, Social Responsibility and Current Challenges (2009) 59, distinguishes between 'three levels of legal sources . . . from where fundamental human rights obligations derive' (emphasis added) (ibid., at 60). Voluntary norms thus, according to Cernic, 'do not create legal, but at most moral obligations' (ibid., at 63). This lens reiterates a distinction in kind between hard law and voluntary norms. Discussions about the need to establish binding obligations for TNCs, such as in Bilchitz, supra note 92, reiterate the centrality of formal legal regulation for inducing social change. 97  practice, this old governance bias has also permeated theoretical scholarship in the field, thus giving rise to additional effects on normative thinking therein.

B International Human Rights Theories
The concept of human rights has been a focal point in political and legal discourse for several decades, but it was only relatively recently that philosophers have awakened to the need to rigorously enquire into the nature and rationale of human rights, almost in tandem with scholars' lamenting over the end of the human rights' utopia. 100 Evolving against the backdrop of a widespread praxis, this theoretical corpus -which includes both 'political' and 'legal' theories of human rights -sought to construct the meaning of human rights from within their functions within this praxis, 101 so as to illuminate the idea underlying these norms, and to define the kind of objects they are and what duties they impose (and on whom). 102 The main thrust of this theoretical literature thus goes beyond its descriptive and explanatory goals, as it endeavours to establish the normative basis of this 'last utopia'. 103 In parallel, international relations (IR) theories of human rights have evolved as a response to the realist school and challenged its positivist assumptions to provide an elaborate empirical account of how human rights norms evolve and become institutionalized. Posing different research questions from those of legal or political theorists, IR theories focus on the role of nonstate actors and transnational advocacy networks in the diffusion, implementation and enforcement of norms, as 'providing the missing link to explain how, why, and when international actors such as states comply with these norms'. 104 Taken together, all three strands of theoretical thinking (political, legal and IR theories) seek to provide a more descriptively accurate and exhaustive account of the functions that human rights norms perform in reality, and how these functions materialize. The frameworks of their analyses, however, remain nourished and informed by the regulatory assumptions of positive IHRL and doctrinal scholarship.
The starting point for political and legal theories of human rights is their rejection of the assumptions underlying moral theories, of an independent moral idea that the international doctrine and practice embody. 105 Critiquing moral theories for failing to exhaustively account for the full range of phenomena relevant to the subject matter of their theory, 106 legal and political theorists call, alternatively, for an understanding of human rights that coincides with the specific objectives and features of the international human rights regime. 107 The empirical and descriptive dimensions of their theories thus purport to provide an understanding of human rights norms which echoes the contemporary practice and the essential features it attributes to the rights it acknowledges. 108 More importantly, they seek to provide theoretical tools to critically examine and evaluate this regime, thus aspiring to explain the normative force of human rights. 109 Both legal and political theories largely fall short, however, of providing a concept of human rights which accounts for the diversity of roles played by these norms in the international arena, and for the diversity of actors and regulatory structures involved in these norms' generation and institutionalization. In the context of legal theories, Patrick Macklem for example defines the nature of international human rights 'in terms of their capacity to monitor the structure and operation of the international legal order'. 110 The purpose of these norms, claims Macklem, as does Allen Buchanan, is to mitigate the exercises of power which have been legally validated by international law. Put crudely, they are conceptualized as band-aids to the deficiencies of our own making, serving to normatively legitimize an international legal order that could otherwise hardly be vindicated. As Allen Buchanan articulates: '[having] a system of international legal human rights is a necessary condition for the existing international order to be justifiable, because without a system of international legal human rights the strong rights of sovereignty that the international order confers on states would be morally unacceptable'. 111 Legal theories are thus of interest precisely because of their aim to account for 'normative role that they [human rights] play in the structure and operation of international law'. 112 Rather than offering an ideal theory, they aim to provide a descriptively adequate based theoretical explanation of what role human rights actually perform in international legal practice.
Legal theories are understood, however, in strictly legal positivist, statist terms. The human rights praxis which they account for and proceed to analyse and justify only considers those instruments and actors which have been developed under the purview of the UN system and their domestic legal implementations. 113 The concept of human rights that they accordingly develop is inextricably tied to the state-individual relationship. 114 As such, legal theories largely fail to consider the changes that the international legal order has undergone in recent decades to incorporate a wide range of decentralized structures, and '[the] transition [within international law] to alternative legal frameworks in which the state is but one regulator amongst others'. 115 Adhering, in their analyses of the nature of human rights or of their practice, to the notion of a state-centred international legal order, they overlook the increasing influence and involvement of other, non-state actors, in the structuring and operation of international law. 116 Political theories encounter the same obstacle. Relating more broadly to the role human rights assume within global political discourses, political theories consider human rights to be a social phenomenon whose meaning derives from the way it is engaged by its participants. 117 These include 'a heterogenous group of agents, including the governments of states, international organizations, participants in the process of international law, economic actors, such as business firms, members of nongovernmental organizations and participants in domestic and transnational political networks and social movements'. 118 Surprisingly, however, human rights are still narrowly defined by political theorists as protections of individuals' interests that set limits to the sovereignty of states, 119 and are therefore understood as requirements which apply in the first instance to states' political institutions, and as matters of international concern. 120 According to this understanding of human rights, the correlative obligations that these protections of individuals' interests spur are to be guaranteed primarily through states' internal laws and policies. Political conceptions therefore construct the concept of human rights and their functions as parasitic on the Westphalian paradigm, thereby undertaking a legal positivist approach to human rights which, like legal theories, does not account for the breadth of phenomena constituting the praxis.
This old governance bias of legal and political theories sets limits to the conceptions of human rights that they develop. First, this bias restricts their conception of the identity of the 'duty-bearer' or enforcer of human rights to one which stands in tension with the developing view of private actors' obligations in the field. Given the immense economic and social clout of private actors and the erosion of public-private boundaries, the narrow conceptualization of human rights as limits on state sovereignty is left wanting. Namely, it overlooks how the role of human rights has by now surpassed the individual-state relationship, to function also as limits on paramilitary groups, or as barriers to the commercial exploitation of post-colonial societies for profit. Within the contemporary decentralized regulatory environment, human rights function not only as limitations on state sovereignty, but also as standards for the proper conduct of businesses, as guidelines for private security companies and as benchmarks for the operations of international and non-governmental organizations. Political theories' conception of human rights hence fails to reflect the diverse functions that human rights norms perform both in legal practice and in the public normative discourse of global politics. 121 Subsequently, in defining human rights vis-à-vis the positive legal obligations they impose, legal and political theories disregard the plurality of conduits through which human rights norms are generated and institutionalized within new governance regulatory structures. If human rights are implicitly framed as granted by governments (by virtue of states' enactment of positive IHRL), their existence would presumably be conditioned on governments' ability to uphold the interests protected by these rights. 122 Nevertheless, in a world characterized by changing structures of power, and by horizontally -alongside hierarchically -configured relations, human rights are not merely granted by states but are also constituted from below. 123 They are conjured, diffused, promoted, protected and enforced by agents other than states, so that the ability to identify the specific actor that is the author of human rights norms in a given setting is challenged. 124 Interestingly, it is exactly these types of processes that the theoretical lens and methodology of IR theories attempt to capture. These theories empirically investigate how 'the institutional structure of the delivery of human rights actually functions at both the local and the global level'. 125 They analyse the impact of international human rights norms on domestic politics, and how they lead to changes in domestic practices, behaviours, identities and political agendas. 126 Importantly, then, IR theorists have succeeded in looking past state compliance with international treaties, to recognize and assert the imperative roles of actors other than the state in mobilizing for human rights and in sustaining domestic changes in human rights policies and practices. 127 For example, IR literature exposes the extent to which human rights treaties not only influence the national legislative priorities of governmental actors, but also help potential rights claimants to imagine themselves as such, thereby encouraging them to pressure governments into realizing their (claimants') demands. 128 This analysis emphasizes the importance of social movements and the role of ordinary citizens in 'the diffusion of values for the protection of individual rights'. 129 Ostensibly, then, the regulatory approach of IR theories seems to converge with a new governance understanding of the regulatory landscape of the field. In having come to terms with the disaggregation of the state, 130 with the substantial role of agents of change from within and outside of it in the generation, diffusion and enforcement of human rights norms 131 and with the intricate social interactions impacting the promotion of human rights, IR theorists have indeed seemingly transcended the state-centric, legal positivist underpinnings of realist approaches to international law and relations.
IR theories have, nonetheless, remained faithful to the question of why states comply with IHRL, despite purporting to fully account for how this regime functions and instigates change. 132 The state, therefore, remains their main unit of analysis, whereas the regulatory role of non-state actors is only understood to be relevant insofar as it affects the behaviour of states. Subsequently, IR theories' recognition of non-state actors is interestingly limited in scope. Also, whilst the impact of ordinary citizens, NGOs and transnational advocacy networks in mobilization processes -for example 'The Boomerang Pattern', 133 or the 'Sandwich Effect' 134 -has been readily acknowledged, the impact of TNCs in these processes, their role in human rights regulation and its significance for the instigation of social change, remain underexplored. To the extent that TNCs are examined, it is largely in their capacity as targets to be pressured into compliance by civil society actors and organisations. 135 TNCs are thus conceptualized in this context, much like in doctrinal scholarship, primarily through their role as violators of human rights norms.
In assuming an old governance regulatory environment to be the backbone of international human rights law and practice, IR theories therefore remain agnostic to TNCs' potential to function as norm entrepreneurs and enforcers in the field of human rights. Their commitment to investigating the influence of positive international regimes on the diffusion and institutionalization of human rights norms in domestic settings thus limits our understanding of the ways in which international human rights norms make a difference in the world.

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To sum up thus far, the above analyses in Section 3 have revealed a tension between the dominant regulatory approaches underpinning the doctrine and theory of IHRL and the alternative regulatory prisms of new governance theories and architectures. Indeed, practitioners and scholars of human rights have endeavoured, in recent decades, to keep abreast of the regulatory changes that the field has undergone, and to attend to the novel challenges that these changes entail. The emerging field of business and human rights strove to make headway by encroaching on the state-centric boundaries of the international human rights regime, and to recognize TNCs as objects of the law. 136 And yet, notwithstanding these efforts, human rights lawyers fail to interrogate whether the broader regulatory approach of IHRL is still relevant for this regime under conditions of economic globalization. In sustaining a view of transnational private regulation as a 'field of action that exists outside the law', 137 they quell TNCs' profound involvement in structuring and shaping the human rights agenda as regulatory agents within contemporary regulatory environments. The statist, international legal positivist approach of human rights law and lawyers, it has been argued, perhaps inadvertently reproduces the difficulties that they have set out to overcome, by continuing to '[filter the corporate personality] through the persona of the state'. 138 These analyses therefore suggest the merits of contemplating the potential of pursuing a new governance approach to international human rights law and theory, so as to analytically 'render visible the activities of transnational corporations ...'. 139 Whilst the elaboration of a full-fledged 'new governance theory' of business and human rights is undoubtedly a momentous project, and as such beyond the scope of this article, the following part nevertheless takes some cautious preliminary steps on the path to this theory's much-needed development. It airs some modest insights regarding the implications of such an approach for contemporary human rights practice and theory, and for future exploratory avenues in the field. 136 Alston, supra note 1. 137

Conclusion: Considerations of a New Governance Approach to Business and Human Rights A Implications for the Human Rights Practice
What then, would taking TNCs' regulatory role seriously mean for the international human rights practice? A true distancing from the statist and legal positivist structure of IHRL would require a reconsideration of the extent to which the regulatory attitude underpinning this structure contributes to the current stalemate in the business and human rights debate. 140 As already acknowledged by human rights practitioners and scholars themselves, the current instruments which have become the focus of debates neither garner sufficient support from states nor do they truly overcome issues of enforcement in the transnational arena. 141 Arguably, then, a convergence of new governance sensibilities with IHRL would first require directing attention to the empirical and normative claims of new governance scholarship regarding the effectiveness of different forms and structures of transnational private regulation. A convergence, in this context, would require accepting the ultimate aim of human rights practice and scholarship as the starting point of discussion, whilst incorporating new governance insights to think about the spectrum of possible ways to accomplish this aim. Contrary to what is often implied in the context of discussions on 'corporate social responsibility' or 'voluntarism', such a convergence would by no means demand relinquishing the fundamental goal of human rights' protection and promotion; nor would it require disregarding the role of the state within the human rights edifice. Rather, it would mandate a consideration of the extensive empirical and normative findings of new governance scholarship regarding which regulatory architectures have more potential to actually lead to transformative social change, and, importantly, why they have such potential. 142 A new governance approach to human rights would rely on these considerations as the basis for policymaking in the field, rather than relying on predetermined categorizations of actors according to their legal subjectivity. Such an approach might also therefore entail a shift of focus within the human rights praxis from states' direct role as legislators, promulgators and enforcers of human rights norms, to their role as coordinators and orchestrators, working in tandem with TNCs. The adequacy or legitimacy of governance structures would not be judged by reference to a priori normative conventions apropos the importance of the state in administrating human rights, but rather by reference to these structures' effectiveness in solving the problems which led to their creation.
Importantly, from a conceptual standpoint, a new governance lens for IHRL that would accept transnational private regulatory regimes as practices of international law would 'extend legal validity to exercises of power that are not the sovereign power of states'. 143 Practices, according to a constructivist lens, 'can be identified not through the examination of any single blueprint'-such as that provided by international law's doctrine of sources -but rather 'through the analysis of changing patterns of shared expectations, processes, and behaviour'. 144 Extending validity to the exercise of private power turns the spotlight to concerns which transcend those currently attracting the primary focus of human rights lawyers in the context of business and human rights; primarily, to those related to the democratic deficits associated with the privatization of law. 145 Such concerns are particularly paramount at present in light of the expansion in form of TNCs' regulatory roles in the field of human rights, most potently that of information and communication technology companies in shaping and enforcing individuals' rights such as those to privacy and freedom of speech. 146 These are particularly interesting instantiations of transnational private regulation which would go unaccounted for as forms of governance by old governance paradigms, despite having disturbing democratic implications beyond those concerning human rights per se. The extension of validity to TNCs as 'subjects of power' would signify a veritable recognition of their political role, public functions and authority, which would, in turn, bust open the door for considering which norms should apply so as to legitimize this exercise of public power and mitigate its undemocratic effects. Such a conceptual move, it is submitted, transports us squarely into the realm of global administrative law (GAL) as the body of norms which addresses the phenomenon of global governance. This move thus facilitates productive discussions on the intersections between this body of public norms and TNCs' private commercial operations. 147 how legal norms are constructed and mobilized, and of how they are experienced by those whose interests they are meant to protect, new governance theorizing of human rights would afford discursive, methodological and normative tools to understand the nature of these rights more broadly as protections of individuals' interests which apply to exercises of power and public functions, regardless of the private character of the regulatory actor in question.
From this standpoint, human rights would be theorized as performing more diverse functions within the international legal and political arena, and their scope widened. Not only may they be justified as mitigating the set of harms created by international law's distribution of sovereign power, but also as moderating those generated by international law's failure to formally recognize other sources of power. The ways in which international law 'organizes global politics into an international legal order' 149 incorporates choices about the identity of participants in this legal order. International law and lawyers, in this sense, paradoxically participate in the endurance of human rights harms not only by investing states with international legal personality, but also indirectly, by not acknowledging non-state actors' de-facto legal 'subjectivity'. In tethering the concept of international law strictly to the concept of sovereignty, the legal theory of human rights overlooks this aspect of the international legal regime and its consequences for human rights norms. A new governance prism embracing a more fluid conception of human rights as mitigating social power disparities would arguably rectify this oversight and contemplate ways to address it.
Finally, new governance IR theorizing of human rights would call for exploratory avenues which investigate the involvement of TNCs in the transnational expansion of human rights norms; their role in the adaptation of human rights norms to local institutions and meanings; as well as their influence on the social construction of human rights consciousness at the grassroots level, and the formation of non-legal forms of human rights claims. 150 These exploratory avenues may result in more holistic understandings of how human rights norms make a difference in the world, which in turn may feed back into a theory of what they are, and eventually influence the development of practices in the field.