INTRODUCTION

Much has been said and debated over the question of corporate accountability in the field of human rights, particularly in light of recent high-profile cases before domestic courts and the adoption and expansion in the use of the UN Guiding Principles on Business and Human Rights worldwide. This leads us to question whether certain developments, of both judicial and political nature, can lead to the creation of rules that will be applicable to corporations to at least ensure the respect of human rights, and in some instances, their reparation when they have been infringed.

New perspectives are required to ensure that the law can effectively regulate the phenomena that international reality poses on human rights, since classic approaches on which the foundations of international law are based seem to be insufficient to address them nowadays. From this perspective, two particular topics seem to be especially difficult to tackle: extraterritoriality and the role of soft law. Both topics have been heavily discussed by doctrine and judiciaries in different countries, for their implications at the international level could be profound.

The question of extraterritoriality seems to be particularly important, since sovereignty – the basis of the Westphalian era of international law – is at stake and States have done everything they can to defend their right not to be subject to judicial or other type of intervention in their internal affairs. The Kiobel case in the United States Supreme Court highlighted specifically that states must exercise extreme caution when adjudicating claims that do not touch their interests or jurisdiction. However, other domestic tribunals have considered that if certain requirements are met, such as the nationality of the parties or the lack of a reliable judicial recourse at the original forum (and thus the risk of a denial of justice), they could have jurisdiction over a case with few or inexistent links to the forum.

On the other hand, the role of soft law under classic international law has also been given increasing consideration. Even though several states have expressed their opinion that soft law standards are merely guidelines and have no binding force in any sense, some elements in the classic sources of international law could potentially lead to a re-interpretation of this notion.