Unilateral Home State Regulation: Imperialism or Tool for Subaltern Resistance?

Home state reluctance to engage in the regulation of international corporate activities in the human rights context is sometimes expressed as a concern that it would constitute an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a role for home states in regulating so as to prevent and remedy human rights harms is increasingly being suggested. The purpose of this paper is to explore theoretical perspectives that lend support to unilateral home state regulation. Having established that unilateral home state regulation could serve as a catalyst for international norm creation, the paper will explore whether, despite its potential benefits, such regulation is inevitably imperialistic. In order to answer this question, customary international law process will be critiqued, by drawing upon the work of TWAIL scholars (Third World Approaches to International Law).