The project compares the international legal discourses on business and human rights (BHR) in the US and Germany. The examination is based on an in-depth analysis of the most important international law journals and textbooks in both countries. Thus, the project analyses approximately three dozen journal articles on BHR and ten textbooks/casebooks per country.
In addition to some similarities, the comparison reveals numerous differences, for example in terms of the topics discussed, the substantive positions taken on certain aspects of the subject (see below) and the style of legal argumentation.
One difference, for example, concerns the international legal personality of corporations: In Germany, the concept is often used to describe the legal status of corporations, which, according to many voices, are partial subjects of international law with legal rights but no legal obligations deriving from international (human rights) law. In the US, on the other hand, the concept of international legal personality is mostly rejected as an unnecessary doctrinal construction that obscures the essential question of the role of corporations in the international legal process.
Another difference concerns the state’s duty to protect under human rights law. Many German scholars address this question, focusing in particular on the extraterritorial dimension: Are states obliged to regulate the activities of national corporations abroad? In the US, however, the question is hardly discussed at all.
In addition to identifying similarities and differences, the project also seeks to contextualise especially the differences between the two discourses. A wide range of factors are relevant here, including the (different) scholarly traditions of international law, the national legal systems, and the style of international law journals in both countries.
The overarching framework of the project is the comparison of national approaches to international law (comparative international law). On the basis of the project’s findings, it is argued that a decidedly comparative international law approach can contribute to a better understanding of pressing international legal issues.
