Mapping out the way ahead for business and human rights

An Article from Business Respect, Issue Number 90, dated 12 Mar 2006
By Mallen Baker

John Ruggie, the UN Special Representative of the Secretary-General on the issue of human rights and transnational corporations, has produced his interim report.

Appointed in July 2005, Ruggie was tasked with reviewing the state of play following the failure of the proposed UN "Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights". His interim report gives an overview of his work to date, and with his focus for future strategic directions.

In pursuit of the latter, Ruggie gives his own reflections on the failure of the Norms. The Norms, drafted in treaty-like language, set out human rights principles for companies. The text contained a summary of rights that may be affected by business, positively and negatively, as well as the collation of source documents from relevant human rights instruments. Ruggie says that had the Norms confined itself to this content, coupled perhaps with a set of benchmarks of what practices business should avoid, the story of the Norms may have been very different.

As it was, he says, the Norms exercise "became engulfed by its own doctrinal excesses". It made exaggerated legal claims and created confusion. In particular, the Norms were promoted as being non-voluntary in nature whilst also representing no more than a reflection and restatement of existing international legal principles. And yet, with the exception of certain war crimes and crimes against humanity, there are no generally accepted international legal principles that do this. The legal authority claimed for the Norms was therefore utterly spurious.

In addition, the Norms were unspecific about what human rights obligations companies, rather than States, actually have. In certain instances, the Norms end up imposing higher obligations on corporations than on States. Not only could this not be justified, but it could also undermine the primary role of the State as being the legitimate agent for the protection of human rights.

Ruggie notes that it is all too easy for the debate that reached stalemate over the Norms - with the business sector opposed and the NGOs in favour - to be repeated. There is hard work to be done in defining better the appropriate instruments for progress going forward that will enable the parties to reach agreement over the substantive issues.

There is a real need for social norms of some kind - particularly where corporations are operating in countries where the capacity or willingness to enforce legal standards is lacking. To move this forward, Ruggie has asked the International Organisation of Employers to carry out work identifying effective ways for companies to deal with dilemma situations encountered in 'weak governance zones'.

One of the most difficult areas is just what constitutes corporate complicity in human rights abuses - a question which is part of the 2-year mandate that Ruggie has been given. Ruggie believes that the most explicit definition of complicity so far was that provided by the US Court of Appeals in the Unocal case that was brought under the Alien Torts Claims Act. The ruling stipulated three criteria: giving practical assistance to the actual perpetrator of a crime; the requirement that this assistance had a substantial effect on the commission of the criminal act; and the fact that the company knew or should have known that its acts would result in a possible crime even if it did not intend for that crime to take place.

Ruggie says he will continue to follow the work of the expert panel convened by the International Commission of Jurists, and to work with legal teams in different countries to examine case law there.

What he does believe is lacking at the moment across this agenda are any impact assessment tools to help companies identify their human rights impact at a national and project level. Although Ruggie believes that the development of such tools requires resources beyond the scope of his mandate and resources, he does highlight two ongoing projects of interest.

The first is the human rights compliance assessment tool developed by the Danish Institute for Human Rights. It focuses on a company's compliance with human rights instruments, using indicators derived from more that 80 instruments and conventions.

The second is a project by the International Finance Corporation to develop an actual impact assessment guide. The guide will aim to review the entire spectrum of human rights, focusing on areas where the responsibilities of companies are clearest, and providing both country and project level guidance.

Overall, Ruggie's report is pragmatic and committed to progress. NGOs for whom the Norms became an article of faith will be disappointed by the full stop this report effectively places behind this initiative. But they should be heartened by the practical commitment to finding ways forward that will actually work on the ground and improve the human rights performance of companies and states.

Send this article to a friend

Bookmark with:

 Del.icio.us |  Digg |  reddit |  Facebook |  StumbleUpon

Explore Business Respect news database