The introduction chapter reviewed the attempts made at the international level to regulate corporate human rights conduct. One of the most recent outputs of the international deliberations on the subject is the UN “Protect, Respect and Remedy Framework”1
together with the UN "Guiding Principles on Business and Human Rights"2 (the UN Guiding Principles) developed to implement the Framework. Both documents were developed by the Special Representative of the Secretary General of the UN on Business and Human Rights, John Ruggie. Ruggie, who had been tasked to provide clarity regarding standards of corporate responsibility and accountability of business and the role of government in regulating transnational corporations and other business entities in the area of human rights.3 At the onset of his mandate, it was hoped that Ruggie would come up with a report ‘making recommendations on new kinds of legislation, regulation, or standard-setting activity’ to provide clarity at the international level.4 However, Ruggie argued against coming up with a set of binding international obligations, thereby presenting an apparent return to the status quo he was tasked to move away from.5
Ruggie’s decision not to create binding international obligations for business appears to be the biggest criticism of his findings.6 This chapter enumerates a number of justifications to
1
UN General Assembly ,Protect, Respect and Remedy: a Framework for Business and Human Rights’ (7 April 2008) UN Doc A/HRC/8/5.
2 ‘UN General Assembly, Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework’ (2011) HR/PUB/11/04 [UN Guiding Principles].
3
Human Rights Council Resolution 2005/69 ‘Human rights and transnational corporations and other business enterprises’ (Ruggie Mandate).
4 Alan Atkisson Corporations and Human Rights: How to Fill the Gap available at
http://www.worldchanging.com/archives/005207.html, accessed on 9 September 2011.
5
John Ruggie Business & human rights: Treaty road not travelled 6 May 2008 available at http://www.business-
humanrights.org/Updates/Archive/SpecialRepPapers, accessed on 12 October 2009.
6 See Penelope Simons, International law’s invisible hand and the future of corporate accountability for violations of
human rights (2012) 3(1) Journal of Human Rights and the Environment 14; Robert C Blitt ‘Beyond Ruggie’s Guiding Principles on Business and Human Rights: Charting an Embracive Approach to Corporate Human Rights Compliance’ (2012) 48(1) Texas International Law Journal, 52-56. In the Joint Civil Society Statement to the 17th
Session of the Human Rights Council (May 30 2011) endorsed by over 40 organisations from around the world, the
civil society asked for the inclusion of a clear indication prior to the adoption of Ruggie’s resolution of commitment to “a future intergovernmental standard-setting process” subsequent to adoption of the UN Guiding Principles; available at http://www.hrw.org/news/2011/05/30/joint-civil-society-statement-17th-session-human-rights-council, accessed on 17 December 2014.
illustrate that the decision by the Special Representative not to develop binding international obligations at the first instance is not fatal to the effort to make corporate entities accountable for human rights violations. Negotiations at the international level presuppose a minimum of consensus among the different states; in the absence of this consensus, it is imperative that common ground be established: what human rights can be linked to business – all, or only some; how are the positive duties for the realisation of social and economic rights to be understood in relation to business; are the concepts of corporate social responsibility and human rights linked and to what extent; in a case like Kenya’s where the Constitution provides for human rights of juristic persons, how are its provisions to be interpreted and how would the constitutional provisions fare against International Law obligations? These and numerous other issues must be deliberated and a greater understanding reached within the domestic context in order to provide a sound basis for the effective implementation of an international treaty. The study thus supports the preference for development of the domestic jurisprudence as proposed by Ruggie. This is seen as a more feasible and effective option for the present moment, and a useful prerequisite for laying the foundation for the implementation of a business and human rights treaty in the future.
In discussing Ruggie’s findings and the extent of my reliance on them, I do not consider the entire spectrum of his proposals. I will limit myself to what I consider necessary or relevant to the typical corporation in Kenya, the prevalent form of corporate entity. Whereas Ruggie’s work and findings are directed at transnational corporations and other business enterprises, this study will limit itself to the category of ‘other business enterprises’, as these, rather than the former, constitute the majority of the business entities in Kenya. Most of the business entities in Kenya operate within the state and would be classified as small in scale (in comparison with the multinational companies), but they are corporations nonetheless and subject to human rights standards. For this reason, this research does not look at the question of extraterritoriality, or obligation of home states for violations committed abroad. Nor does the study look at the case for supporting business respect for human rights in conflict affected areas, for the reason that Kenya is not a conflict affected state in the sense understood generally, as defined by international organisations such as the World Bank.7 This research contemplates the typical corporation in Kenya and makes proposals with that kind of entity in mind. Multinational
7 See for example ‘Harmonized list of fragile situations FY15’ available at
corporations will nonetheless be included in the ambit of the proposals made because the recommendations made will apply to all corporations operating in the country.