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.
A short comment on the report of the UN Special Representative of the Secretary-General on the issue of human rights and Transnational corporations and other business enterprises, Professor John Ruggie to the United Nations Human Rights Council, “Business and human rights: Towards operationalizing the “protect, respect and remedy” framework” AH/HRC/8/5, 22 April 2009. Jernej Letnar Černič
This short comment examines the recent work within the United Nations on regulation of business in relation to human rights. Professor John Ruggie (hereinafter Ruggie), the United Nations Special Representative of the Secretary General on human rights and transnational corporations and other business enterprises submitted his fourth report under the title “Business and human rights: Towards operationalizing the “protect, respect and remedy” framework to the Human Rights Council on 22 April 2009.1 In his recent Report, Ruggie follows his three-pillar framework for corporate accountability for human rights outlined in his 2008 Report (Protect, Respect and Remedy: A Framework for Business and Human Rights’, U.N. Doc. A/HRC/8/5, 7 April 2008). The 2008 Report proposed a normative framework comprising three main components: the state duty to protect against human rights violations by or involving corporations; the corporate responsibility to respect human rights; and effective access to remedies. Along the same lines, the 2009 Report notes in its introduction that: The 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 rights, 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. (footnote omitted).2
1
U.N. Human Rights Council [HRC], Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development: Protect, Respect and Remedy: A Framework for Business and Human Rights, U.N. Doc. A/HRC/11/13/, 22 April 2009. 2 Ibid. Para. 2.
Electronic copy available at: http://ssrn.com/abstract=1491548
The aim of this short section is to participate in the ongoing debate on whether corporations have human rights obligations and responsibility in national law and in international law. Ruggie notes that ‘in every crisis are opportunities’ and that ‘in operationalizing the “protect, respect and remedy” framework, the Special Representative aims to identify such opportunities in the business and human rights domain and demonstrate how they can be grasped and acted upon’.3
First, the Report primarily recognizes the responsibility of States in the protection and promotion of human rights. States have, under international human rights law, the primary obligation to protect individuals from human rights violations by or involving state or non-state actors. The 2009 Report notes that ‘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 it and to investigate, punish and redress it when it occurs’4 State responsibility plays a seminal role in achieving corporate responsibility for human rights. States are obliged to respect, protect and fulfil the human rights of individuals against corporate conduct in violation of human rights. However, the 2009 Report highlights some of the problems governments face when regulating corporations in relation to human rights: There is “vertical” incoherence, where Governments sign on to human rights obligations but then fail to adopt policies, laws, and processes to implement them. Even more widespread is “horizontal” incoherence, where economic or business-focused departments and agencies that directly shape business practices - including trade, investment, export credit and insurance, corporate law, and securities regulation - conduct their work in isolation from and largely uninformed by their Government’s human rights agencies and obligations.5
3
Ibid. Para. 11. Ibid. Para. 14. 5 Ibid. Para. 18. 4
Electronic copy available at: http://ssrn.com/abstract=1491548
It is true that this problem can often traced in different areas of the public administration of a country and cannot be ascribed as pertaining only to human rights and the business field. The 2009 Report further notes, for example, that ‘there are also strong policy reasons for home States to encourage their companies to respect rights abroad, especially if a State itself is involved in the business venture – whether as owner, investor, insurer, procurer, or simply promoter.’6 In sum, Ruggie concludes that ‘a major objective of the Special Representative’s renewed mandate is to assist Governments in recognizing those connections and advancing the business and human rights agenda beyond its currently narrow confines.’7 The second pillar of Ruggie’s framework includes the corporate responsibility and obligation to respect human rights and this is acknowledged in the 2009 Report. It correctly notes that corporate responsibility to respect human rights ‘has acquired near-universal recognition by all stakeholders’.8 In sharp contrast to the previous report, the 2009 Report recognizes that ‘there may be situations in which companies have additional responsibilities. But the responsibility to respect is the baseline norm for all companies in all situations.’ 9 It is clear that all corporations are required not to violate the human rights of others. Ruggie further observes that ‘operating conditions may impose additional requirements on companies, for example, the need to protect employees in conflict affected areas, or from violence in the workplace.’10 However, he cautions that ‘this is more appropriately considered a specific operationalization of the responsibility to respect, and not a separate responsibility altogether.’11 However, Ruggie found very few corporations which include systems to monitor its compliance with human rights. Therefore, 6
Ibid. Para. 16. Ibid. Para. 44. 8 Ibid. Para. 46 9 Ibid. Para. 48. 10 Ibid. Para. 66. 11 Ibid. 7
he argues that corporations should employ human rights due diligence to prevent and respond to potential human rights violations.
12
The substantive content of
human rights due diligence should include all internationally widely recognized human rights. The largest problems in the field of human rights and business relates to the question how and in which forum can victims enforce corporate human rights violations.
Victims of human rights violations by or involving
corporations have at their disposal only a few effective legal avenues for enforcing corporate responsibility for human rights. Ruggie recognizes the essential importance of access to remedies in the following paragraph: Grievance mechanisms, judicial and non-judicial, form part of both the State duty to protect and the corporate responsibility to respect. They are essential to ensuring access to remedy for victims of corporate abuse. For States, they are also means of enforcing or corporate compliance with relevant law and standards, and of deterring abuse. For companies, operational-level mechanisms have the added benefit of giving early warning of problems and helping mitigate or resolve them before abuses occur or disputes compound. But too many barriers exist to accessing judicial remedy, and too few nonjudicial mechanisms meet the minimum principles of effectiveness. Further improvements, shared learning, and innovations are required.13
Even though the 2009 Report makes quite clear what has to be done to move beyond the weakness of the current normative framework to effectively tackle the allegation of human rights violations by or involving corporations, much remains to be done at a national and international level to turn existing mechanisms into more victim friendly and effective mechanisms. In any case, victims of corporate human rights violations must be provided with adequate information on available mechanisms and with the means and know-how to access them. The 2009 Report notes correctly in its conclusion that ‘business and human rights is not an ephemeral issue to be considered at some future date.
12 13
Ibid. Para. 49. Ibid. Para. 115.
It is and must remain at the core of our common concerns today.’14 What remains now, is for corporations to begin employing Ruggie’s framework in their daily policies.
The 2009 Report can be described as a major step forward in the field of human rights and business. In spite of, and because of, this the question whether the framework ‘protect, respect and remedy’ offers the most appropriate path for dealing with issues of corporate responsibility for human rights, remains open. The majority of the 2009 Report summarizes the current state of legal and non-legal initiatives in this field and it is therefore partially descriptive in its nature. It does not provide a victim orientated solution to the difficulties of remedying human rights violations and it appears to adopt a more top-down approach. It does, however, promise that ‘the Special Representative will continue research and consultations on barriers to judicial remedy, as well as possible options to address them.’ 15 As in his 2008 Report, Ruggie does not attempt to explain how his proposed framework relates to the generally accepted framework under international human rights law, where state obligations are usually classified into three categories: the obligation to respect, the obligation to protect and the obligation to fulfill. Do corporations also have the obligation to respect, protect and fulfill human rights? Even though the Report recognizes that corporations may have responsibilities beyond the responsibility to respect, it opens up the possibility that corporations also have some positive obligations to protect and to fulfill human rights.16 In other words and as argued before, an obligation to protect would mean that corporations are obliged to adopt internal regulations and take other measures to prohibit and prevent human rights violations internally, in their own activities, but also externally, in business
14
Ibid. Para. 121. Ibid. Para. 98 16 Ibid. Paras. 59, 61-65. 15
relationships with third parties (subsidiaries, contractors, sub-contractors and other business partners), throughout their supply chains. All in all, it may appear that the proposed framework leaves much to be clarified in the future, particularly in relation to the nature of the obligations of corporations under human rights law and its implementation in practice. Nonetheless, the 2009 Report represents an important step forward and it recognizes that when the focus is directed towards the means rather than the ends, the framework for human rights and business could provide some guidance on how to tackle the challenges facing these fields. However, the historical momentum of the development of corporate responsibility and accountability for human rights will be difficult to halt, and, thanks to its normative development, it is hoped that it will be possible to bring timely justice and reparations to those who have suffered due to harmful conduct by or involving corporations. In this light, it may well be argued that not only do States have obligations to respect, protect and fulfill, but also that corporations have obligations to respect, protect and fulfill human rights. Locke once implicitly suggested that rights must be protected through law. The way in which the activities of corporations impact upon the individual’s enjoyment of human rights has important and far-reaching consequences. In many cases, corporations (and their officers) contribute directly or indirectly to human rights violations. It was noted above that the current normative framework is nevertheless fraught with legal loopholes. As the national normative frameworks continue to develop, States will need to make better use of civil and criminal domestic systems and possibly draft binding regional and international documents on clear human rights and business standards. As a national approach may be a chosen course for corporate responsibility for human rights, a normative international framework de lege ferenda should still
be explored. The vision that protection and promotion of human rights falls exclusively within the responsibility of the State cannot not be fully argued in the field of human rights. In this way, States still have a primary responsibility to respect, protect and fulfil human rights. The crux of the conundrum is that corporations and their officers also have a role to play. The term ‘role’ implies responsibility, which is defined as ‘the trait of being answerable to someone for something or being responsible for one's conduct’.17 Translating the language of this definition, the present study has attempted to show that corporations and their officers occupy an important position within the entire structure of human rights implementation both in law and fact.
It has also been argued that normative and voluntary approaches cannot function in isolation. Even more so, some voluntary initiatives have already been enacted through domestic laws. The international community can and should ensure that individuals subjected to violations of their human rights, by or involving corporations and their officers, do not continue to suffer because of the absence of legal remedies. Yet that is exactly the problem encountered by most of victims of corporate conduct. Unless something changes, victims of alleged human rights violations by or involving corporations in Africa, Asia and Latin America, and elsewhere of private military corporations in the Middle East, will remain without any legal recourse. Reform is possible but whether the international community has the will to create it remains to be seen. Admittedly, the aims and proposals listed in John Ruggie’s Report are ambitious and some may say unrealistic, but they should be considered reasonable and achievable.
Despite the historic deprioritisation of the human rights obligations of corporations, the negative effects of globalization have brought them to the forefront of the human rights discourse, particularly in national legal orders. As 17
See . Accessed 10 September 2009.
articulations and interpretations of corporations’ obligations and responsibility in national legal orders become more frequent, the ability to enforce these articulations remains relatively weak. For to ensure human rights to individuals, also in relation to the behaviour of corporations and its officers, it appears to be necessary to re-examine the human rights framework de lege lata in the light of changes brought by globalization. Though by no means exhaustive, the proposals outlined in the 2009 Report can be first and necessary step.
