The future of corporate accountability for violations of human rights.

Author:Ruggie, John Gerard
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 10:45 a.m., Friday, March 27, by its moderator, Penelope Simons of the University of Ottawa, who introduced the panelists: John G. Ruggie of Harvard's Kennedy School of Government and Special Representative of the United Nations' Secretary-General for Business and Human Rights; Robert McCorquodale, Director of the British Institute of International and Comparative Law; Christiana Ochoa of the Indiana University Maurer School of Law; Adam Greene of the United States Council for International Business; and Lisa Misol of Human Rights Watch.

INTRODUCTION

It is my pleasure to welcome you to this panel on the Future of Corporate Accountability for Violations of Human Rights. The global concern for the human rights implications of corporate activity and corporate impunity for violations of human rights is not new. The issue was most recently propelled to the forefront of global debate in 2003. The catalyst was the drafting of the UN Norms on the Responsibility of Transnational Corporations and other Business Enterprises with Regard to Human Rights (1) (the UN Norms) by a UN working group of independent experts, their subsequent unanimous adoption by (what was then) the Sub-Commission on the Promotion and Protection of Human Rights, and finally their submission to the Human Rights Commission (now the Human Rights Council). One of the results of the controversy provoked by the UN Norms was the creation of a new UN special procedure, the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Entities, and the appointment to that position of Professor John Ruggie.

In April last year, Professor Ruggie submitted his much anticipated final report to the Human Rights Council. His Report sets out a comprehensive policy framework aimed at reducing the "governance gaps" in relation to the negative human rights impacts of corporate activity. (2) It is based on three principles: the further development of the state's international human rights law duty to protect individuals from violations of their human rights by corporate actors; the concept of the responsibility of business to respect human rights--"to do no harm"; and the development of remedies for victims of corporate human rights abuses.

Professor Ruggie's proposals are thoughtful, comprehensive, and strategic. The Report was well received by the Human Rights Council, business, (3) and a number of NGOs. It has also been criticized by others who would have liked to have seen his recommendations go further and include some reference to the role of binding legal human fights obligations for corporate actors. (4)

In June 2008, the Human Rights Council extended Professor Ruggie's mandate for another three years, requesting him to, among other things, develop the three principles of his policy framework; integrate a gender perspective throughout his work and give attention to those belonging to vulnerable groups, in particular children; identify, exchange, and promote best practices for business in this area; and advance the policy framework, continuing to consult with a wide variety of stakeholders. Professor Ruggie released his preliminary work plan for his new mandate in October 2008. (5)

In this panel we will be discussing the work of the Special Representative and the operationalization of his policy framework. In particular, panelists will consider where we should go from here in the effort to develop norms to regulate corporate activity effectively and address corporate impunity for human fights abuses.

(1) UNECOSOC, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/12/Rev.2 (2003) and Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc E/CN.4/Sub.2/2003/38/Rev.2 (2003).

(2) UNHRC, Protect Respect and Remedy: A Framework for Business and Human Rights: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Entities, A/HRC/8/5 (Apr. 7, 2008).

(3) See, e.g., IOE, ICC & BIAC, Joint Initial Views of the International Organisation of Employers (IOE), the International Chamber of Commerce (ICC) and the Business and Industry Advisory Committee to the OECD (BIAC) to the Eighth Session of the Human Rights Council on the Third Report of the Special Representative of the UN Secretary-General on Business and Human Rights, available at .

(4) Amnesty International, Submission to the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other Business Enterprises, July 2008, available at ; see also Joint ArGO Statement to the Eighth Session of the Human Rights Council: Third Report of the Special Representative of the Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises, May 19, 2008, available at ; and Canadian Network on Corporate Accountability, Submission to the UN Secretary General's Special Representative on Business and Human Rights (SRSG), available at, .

(5) The Special Representative's 2009 Report develops this work plan in significantly more detail: see UNHRC, Business and Human Rights: Towards Operationalizing the "Protect, Respect and Remedy" Framework, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Entities, A/HRC/11/13 (Apr. 22, 2009).

By Penelope Simons, Associate Professor, University of Ottawa, Faculty of Law (Common Law Section).

PROTECT, RESPECT AND REMEDY: A UNITED NATIONS POLICY FRAMEWORK FOR BUSINESS AND HUMAN RIGHTS

At its June 2008 session, the United Nations Human Rights Council unanimously "welcomed" the "protect, respect and remedy" policy framework I had proposed in my capacity as Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises. (1) This marked the first time the Council or its predecessor, the Commission on Human Rights, had taken an actual policy position on business and human rights. The Council also extended my mandate by three years, tasking me with "operationalizing" the framework--providing "practical recommendations" and "concrete guidance" to states, businesses, and other social actors on its implementation. (2)

The policy framework rests on three pillars: the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human fights, which in essence means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. The three pillars are complementary in that each supports the others.

The precipitating factor behind my original mandate in 2005 was the Commission's negative reaction to the "Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights," a self-initiated effort by an expert subsidiary body. (3) A broad spectrum of states, North and South, nevertheless felt that business and human rights required serious attention. The Commission therefore requested the UN Secretary-General to appoint a Special Representative to "identify and clarify" existing standards and ways of moving the agenda forward. (4) Then Secretary-General Kofi Annan appointed me in July 2005, and Ban Ki-moon continued the assignment.

This note outlines the framework and flags some of the strategic directions in which the "operationalization" phase is moving.

  1. THE STATE DUTY TO PROTECT

    The state duty to protect against third party abuse, including by business, is grounded in international human rights law. (5) It is a standard of conduct, not result: states are not held responsible for corporate-related human rights abuse per se but may be considered in breach of their obligations where they fail to take appropriate steps to prevent and investigate, as well as to punish and redress it when it occurs. (6) States have certain discretion as to how to fulfill the duty, but the main human rights treaties generally contemplate legislative, administrative, and judicial measures. The extraterritorial dimension of the duty to protect remains unsettled in international law.

    Current guidance from international human rights bodies suggests that states are not required to regulate the extraterritorial activities of businesses incorporated in their jurisdiction, but nor are they generally prohibited from doing so provided there is a recognized jurisdictional basis and that an overall reasonableness test is met. Within those parameters, some UN Treaty Bodies are encouraging home states to take steps to prevent abuse abroad by corporations within their jurisdiction. (7)

    There are strong policy reasons for home states to encourage "their" companies to respect rights abroad, especially if the state is involved in the business venture--whether as owner, investor, insurer, procurer, or simply promoter. Such encouragement limits home states' possible association with possible overseas corporate abuse. And it can provide much-needed support to host states lacking the capacity to implement an effective regulatory environment on their own.

    States have long understood their obligations regarding abuse by state agents. Moreover, most have adopted measures and established institutions in certain core areas of business and human rights, such as labor standards and workplace non-discrimination. But beyond that, the business and human rights domain exhibits considerable legal and policy incoherence, as elaborated in my 2008 Report.

    There is "vertical"...

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