One Pillar: Legal Authority and a Social License to Operate in a Global Context

The claim that businesses have a social license to operate acquires concrete form in the second pillar of the U.N. Guiding Principles on Business and Human Rights (UNGPs) in the fundamental distinction between "compliance with all applicable laws" and "respect for human rights." The aim of this paper is to critically examine the presuppositions that undergird this distinction and to explain how and why moving beyond state-centered thinking about law, in response to violations of human rights by globally operating businesses, requires acknowledging that there is one pillar that embraces states and businesses: the legal obligation to comply with international human rights law. Arguing that legal order can best be conceptualized as authoritative collective action, the paper develops the one-pillar thesis along two fronts. The first argues that there can be no credible social license to operate in a global context absent authorities that uphold and regulate joint action as regards what is to count as a global collective's bounded common good and as its bounded common place. Yet, it is this authoritative dimension of a social license to operate that the UNGPs preclude by proclaiming that the corporate responsibility to respect human rights does not itself create a legal obligation.

The second argues that both states and globally operating businesses are legal orders in their own right. From the first-person plural perspective of authoritatively mediated collective action, nothing justifies separating a state's obligation to uphold human rights, as per the first pillar of the UNGPs, from a business's responsibility to respect human rights, as per the second pillar.