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.