In December, when Prof. John Ruggie, the UN Secretary-General’s Special Representative for Business and Human Rights, came out with a discussion draft of his Guiding Principles – the culmination of six years of work on the question of what and how human rights obligations apply to businesses – much of civil society was dissatisfied.
Ruggie was blasted for taking retrograde stances on a number of issues, most prominently extraterritorial jurisdiction (my colleagues and I believe that in at least some cases, States have an obligation to regulate and provide remedies for the actions of their companies abroad; Ruggie identified no such principle). He did make clear that his principles were not a legal document, but we believed it would be better if the GPs reflected the law.
Now that his final version has been publicly released, I see some major positive developments. Knowing all the consultation and cogitation that went into them, I think the GPs are a pretty impressive document. They set out a plausible framework for dividing responsibility between governments and businesses on human rights issues, provide commonsense suggestions on the range of grievance mechanisms and remedies that are necessary to effectively address human rights impacts, and assist companies to construct due diligence regimes.
The very fact that Prof. Ruggie was able to get companies and governments to sit down and discuss these issues rationally – let alone to agree on doing something about them – is a tremendous achievement. I don’t necessarily agree with all his conclusions, but then again, I’m sure the companies don’t, either. Hopefully, the GPs represent the start of a process and not an end in themselves.
In particular, Prof. Ruggie has consistently and forcefully pushed the envelope on corporations’ internal responsibilities, i.e., the things they should do to in terms of corporate policy and structure to prevent human rights impacts, address them when they occur, and do right by individuals and communities who are aggrieved as a result of corporate activities.
He has brought a welcome focus to the myriad ways in which national corporate legal regimes and international commercial law (including investment treaties) can affect human rights. And his GPs provide detailed standards by which states can measure and model the judicial and non-judicial remedies they make available for those who suffer corporate-related human rights abuses.
The GPs do not generally include extensive analysis of legal standards and obligations – particularly with relation to corporations, but there are some notable exceptions that deserve special mention:
- A clear and much-welcome stance on the international criminal law standard for aiding and abetting (“knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime”);
- The observation that corporations’ legal liability is defined “largely” (but, it is implied, not entirely) by domestic law;
- The conclusion that states are not “generally” required by international law to exercise extraterritorial jurisdiction (leaving open the possibility, however, that they would be required to do so in specific cases); and
- A call for states to adopt multilateral approaches to prevent and address corporate complicity in gross human rights abuses, presumably a reference to his recommendation to the Human Rights Council to create a follow-up mechanism with a mandate to develop a multilateral legal instrument addressing the worst corporate abuses.
My main complaint relates to what the GPs omit, which will be the subject of my next post.
This post was written by Jonathan Kaufman, former staff.
