In my post yesterday, I covered what I like about Prof. Ruggie’s Guiding Principles.  In this post, I’ll talk about what’s not covered by the GPs – what I consider to be a missed opportunity to clarify central legal principles on the application of the international human rights regime to corporations.  It’s important to note that Ruggie is not claiming that the GPs are a statement of legal principles, but I would have liked to see them reflect the current law.

In the Ruggie framework, states have a duty to protect human rights and to remedy their violations, while businesses have a moral “responsibility” and expectation to respect human rights.  So far, so good, and pretty non-controversial.  But Prof. Ruggie leaves open – and  studiously avoids – the questions that would potentially incur the opposition of the companies whose consensus he has sought.

Does international law impose human rights obligations (as opposed to just expectations) on companies, in addition to states?  How far does the state duty to protect and provide remedies extend, and could a state violate its international legal obligations by failing to enact laws or declining to reduce barriers to accessing such remedies?  What is the status of the requirement of due diligence – is it a legal defense, a proactive duty, or simply a good idea?  And would international law ever require, rather than permit, a state to exercise extraterritorial jurisdiction over its own companies’ actions?

I can think of a number or reasons why the GPs decline to address these questions.  First, the “pragmatic approach” counsels against tackling such issues – why chase after ephemeral and controversial points of international law when there are concrete gains to be made now through win-win, collaborative efforts?

Second, Prof. Ruggie was not given the mandate to develop new legal norms, but rather to identify what already exists; if he were to take positions on controversial legal questions, he could be accused of pushing beyond his mandate and risk losing support for what he has already achieved.

And third, the old trial lawyer’s advice: never ask a question whose answer you don’t know in advance.  Maybe he fears that if he were to turn over such dangerous stones, human rights groups wouldn’t like the answers he came up with.

The problem is, these stones are already being turned.  Governments are taking positions on the status of human rights obligations for companies, and courts are being forced to judge one way or the other.  I sympathize with the desire to remain neutral by opting out of the controversy, but in fact there is no way to predict how policymakers and arbiters will use and interpret the gaps in the “Protect, Respect and Remedy” framework.  In this situation, silence will not be construed as neutrality.

I don’t want to overstate the extent to which Prof. Ruggie has avoided the legal issues.  I enumerated examples of places where he has confronted these questions in my previous post.  But with only one exception – his stance on the international criminal law standard for aiding and abetting – his few references to international law as it relates to corporations are not real positions.  They raise more questions than they answer, and they take us no closer to addressing what to my mind is the biggest question of all: given the enormous gaps in jurisdiction and enforcement that stymie victims of corporate abuses today, how do we close the net of impunity if companies don’t take their “responsibility to respect” seriously?

Without an answer to critical questions about the legal status of obligations and responsibilities, we have nothing to rely on but the goodwill of implementing governments and companies to operationalize the GPs.  And that, while it may work out in some cases, hardly constitutes accountability.

Prof. Ruggie presumably believes it should be left to states to tangle with the tough legal questions.  I have no quarrel with him about this – states do, after all, create the international legal order, and there’s no question that many details remain to be fleshed out on international human rights law as it relates to corporations.

However, international law already gives us the rough outlines of corporate obligations, in addition to the obligations of states to enforce human rights norms against business enterprises, and I fear the consequences of Prof. Ruggie’s refusal to say whether he agrees or not.  Ruggie is not a lawyer, and wanted to avoid legal questions, but taking that approach missed an opportunity to definitely set forth legal norms on corporate responsibility.