Human Rights Clauses in Public Procurement: A New Tool to Promote Human Rights in (States’) Business Activities?

The integration of the protection of human rights in public procurement procedures remains a complex and under-researched issue, even though the purchasing of goods and services by public entities is a major component of the world economy and serious violations of human rights by State authorities and contracting enterprises are not hard to find. The growing concern about human rights violations in public procurement is made manifest by the number of instruments, predominantly of a soft law nature, adopted at international level (ILO, WTO, UN, EU). In this regard, it is possible to discern a ʻhardening trendʼ in so far as social and human rights standards are being incorporated into public contracts and tender documents when it comes to the participation of companies in selection processes and the criteria for evaluating tenders. It is therefore worth examining whether and to what extent there is a trend towards attributing binding value to international soft law standards, that is to say, the extent to which such standards are de facto binding for States and companies participating in public procurement procedures. This trend towards a ‘hardening’ of international standards in the field of public procurement may show that soft law instruments can play an important role in modifying existing rules.