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Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global public goods and universal human rights in terms of interests and values that 'we all' hold in common tends to conceal or evade conflicts about their proper interpretation and implementation. This raises important normative questions with regard to the political and legal accountability of global ordering in both domains. The public goods approach has responded to this problem through extending the scope of political jurisdiction over public goods to encompass all those 'affected' by their costs and benefits. This finds its counterpart in attempts in the human rights debate to legally account for the global human rights impacts of public goods through extending human rights jurisdiction beyond state territory. By way of conclusion I contend that both approaches are indicative of a 'horizontal' transformation of statehood under conditions of globalization aimed at recovering the public good beyond the international order of states.

AbstractThe article discusses the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs) in the European Union against the backdrop of perennial debates between proponents of 'hard' versus 'soft' law approaches to preventing and redressing corporate‐related human rights violations. It argues that the Open Method of Coordination (OMC) – an EU governance instrument of transnational policy‐making – could contribute to negotiating the hard/soft law divide in business and human rights by ensuring a more effective implementation of the UNGPs in the European legal space. Moreover, the European experience with open coordination calls for a reappraisal of the relationship between international law and global governance in addressing today's business and human rights predicament. The first part of the article situates the debate between proponents of 'hard' and 'soft' law approaches to business and human rights in the context of two UN‐driven initiatives: the development of national action plans (NAPs) to implement the UNGPs; and the negotiation of an international business and human rights treaty. The second part of the article relates experiences with the existing NAP process in the European Union to the policy background and rationale of the Open Method of Coordination and discusses the conditions for its successful employment in the business and human rights domain.

Taking its cue from the US Supreme Court judgment in Kiobel that restricted the extraterritorial reach of the Alien Tort Claims Act, this article explores how sovereignty structures the relationship between global resource exploitation and the localization of human rights in the international order of states. The argument situates international human rights law in an area of tension between national political self-determination and the global economic exploitation of natural resources. Global business operations in resource-rich developing countries undermine the protective role of sovereignty in relation to political self-determination that once justified the confinement of human rights to the territorial state legal order. At the same time, jurisdiction as an expression of sovereignty restricts access to justice for victims of extraterritorial human rights violations in Western home states of 'multi-national' corporations. I contend that this asymmetry should be resolved through a territorial extension of international human rights law that accounts for the human rights impacts of global resource exploitation. This entails that transnational tort litigation for corporate human rights violations should be appraised in the light of states' human rights obligations to ensure effective civil remedies for victims located outside their borders. Moreover, it suggests that victims' quest for justice through private litigation is not merely about the satisfaction of pecuniary damages but also represents a public and political attempt to reclaim their human rights in the judicial fora of Western states.

Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global public goods and universal human rights in terms of interests and values that 'we all' hold in common tends to conceal or evade conflicts about their proper interpretation and implementation. This raises important normative questions with regard to the political and legal accountability of global ordering in both domains. The public goods approach has responded to this problem through extending the scope of political jurisdiction over public goods to encompass all those 'affected' by their costs and benefits. This finds its counterpart in attempts in the human rights debate to legally account for the global human rights impacts of public goods through extending human rights jurisdiction beyond state territory. By way of conclusion I contend that both approaches are indicative of a 'horizontal' transformation of statehood under conditions of globalization aimed at recovering the public good beyond the international order of states.