3.3.1.1. Introduction and General Principles
The Introduction to the Guiding Principles summarises the history of and background to the work of SGSR Ruggie. It outlines the three phases of his mandates: Firstly,
identification and clarification of existing international standards and practices;141
secondly, the recommendation phase and the publishing of the Protect Respect and Remedy framework (PRR);142 and finally the operationalising phase.143 Paragraphs 6, 7
and 8 elaborate on the PRR explaining that the framework rests on the three pillars,144 that
it has been endorsed by governments, business and civil society145 and that its
multistakeholder approach ‘contributed to its widespread positive reception.’146
Clear about some of the GPs apparent limitations, however, the Introduction states that: [Human Rights] Council endorsement of the Guiding Principles, by itself, will not bring business and human rights challenges to an end. But it will mark the end of the beginning: by establishing a common global platform for action, on which
cumulative progress can be built, step-by-step, without foreclosing any other promising longer-term developments.147
140 For Ruggie’s views on the GPs see e.g. Fletcher Forum, ‘Business and Human Rights: Together at Last?
A Conversation with John Ruggie’ 35-SUM Fletcher Forum of World Affairs 117-122 (hereinafter ‘Fletcher Forum’).
141 Guiding Principles note 134, Introduction at 3 para.4. 142 Guiding Principles ibid, Introduction at 3 para.5. 143 Guiding Principles ibid, Introduction at 3 para.9. 144 Guiding Principles ibid, Introduction at 4 para. 6. 145 Guiding Principles ibid, Introduction at 4 para. 7. 146 Guiding Principles ibid, Introduction at 4 para.8. 147 Guiding Principles ibid, Introduction at 5 para.13.
Nevertheless, the GPs are venturing to become a ‘single, logically coherent and
comprehensive template’148 for States and business actors although they are ‘not a tool kit’
to resolve the problem of human rights violations by business because ‘one size does not fit all.’149 What they do strive to achieve is to identify ‘where the current regime falls short
and how it should be improved’150 and to provide clarification of the obligations and
applicable standards via the accompanying commentary.
Ruggie’s report in 2010 set out ‘five priority areas’ which he identified as necessary for ensuring ‘greater policy coherence and effectiveness’ in the State duty to protect and which are elaborated upon to some extent by the GPs:
(a) safeguarding their own ability to meet their human rights obligations; (b) considering human rights when they do business with business; (c) fostering corporate cultures respectful of rights at home and abroad; (d) devising innovative policies to guide companies operating in conflict-affected areas; and (e) examining the cross-cutting issue of extraterritorial jurisdiction.151
Furthermore, the stated aim of the GPs is to ‘not only to provide guidance that is practical, but also guidance informed by actual practice’152 therefore several of the GPs‘ key
elements were ‘road-tested’ prior to their publication:
For example, those elaborating effectiveness criteria for non-judicial grievance mechanisms involving business enterprises and communities in which they operate were piloted in five different sectors, each in a different country. The workability of the Guiding Principles’ human rights due diligence provisions was tested internally by 10 companies, and was the subject of detailed discussions with corporate law professionals from more than 20 countries with expertise in over 40 jurisdictions. 153
In addition, ‘off-the-record, scenario-based workshops’ were held with ‘officials from a cross-section of States’ who had ‘practical experience’ in dealing with the human rights
148 Guiding Principles ibid, Introduction at 5 para.14. 149 Guiding Principles ibid, Introduction at 5 para.15. 150 Guiding Principles ibid, Introduction at 5 para.14.
151 Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie, ‘Business and human rights: Business and Human Rights: Further steps toward the operationalization of the “protect, respect and remedy”
framework’ A/HRC/14/27 9 April 2010 http://baseswiki.org/w/images/en/ 0/04/2010_Advance_Edited_Report.pdf [last accessed 24.10.11] at 5-6 para.19.
152 Guiding Principles note 134, Introduction at 3 para.5. 153 Guiding Principles ibid, Introduction at 4 para.11.
challenges arising in conflict zones.154 Such an approach is based clearly on Ruggie’s long-
stated desire to establish ‘principled pragmatism’155 in an area which he felt had long
lacked an ‘authoritative focal point.’156
Intensely critical of the Norms project and its attempt to create a binding set of rules governing business and human rights, Ruggie has stated that he views it as ‘inconceivable that any meaningful instrument encompassing all these features could be negotiated and adopted in the foreseeable future’ 157 which appears to contradict his earlier position where
he refused to exclude international legislation as a possible future outcome.158 Indeed, he
concluded in his 2006 Report that ‘normative undertakings and advocacy are essential ingredients for the continued development of the human rights regime in relation to
business.’159 Nevertheless, he describes his current ‘principled pragmatism’ in these terms:
The first and most critical step in any such endeavour is to set a clear strategic objective. I set mine as achieving the maximum reduction in corporate-related human rights harm in the shortest possible period of time.160
As stated, this is to be achieved ‘by establishing a common platform for action’ which ostensibly does not not preclude normative developments but given the opposition to an international treaty, it seems an unlikely prospect.161 Ruggie’s ‘common platform’ is of
course founded upon the Protect, Respect and Remedy principles and envisions a clearly defined world where States have the obligation to protect human rights, business actors are encouraged to respect human rights and any human rights violations by business actors
154 Ibid.
155 J.Ruggie, The Construction of the UN ‘Protect, Respect and Remedy’ Framework for Business and
Human Rights: The True Confessions of a Principled Pragmatist’ European Human Rights Law Review 127 (2011) (hereinafter ‘Ruggie (2011)’) at 132.
156 Guiding Principles note 134, Introduction at 3 para.5. This is a restatement of the argument made in
‘Protect, Respect and Remedy: a Framework for Business and Human Rights,’ Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie A/HRC/8/5 7 April 2008 http://198.170.85.29/Ruggie-report-7- Apr-2008.pdf [last accessed 24.10.11] at 4 para.5.
157 Ruggie (2011) note 155 at 128. See also the criticisms referred to in notes 72, 98 and 116. 158 Interim Report (2006) note 118 at 17 para. 69. See also Simons note 136 at 9 [online SSRN]. 159 Interim Report (2006) bid.
160 Ibid at 128.
ought to be remedied. While there is no doubt that the GPs are founded upon the Protect, Respect, Remedy framework, as will be seen, there is some debate about the extent to which they reflect the original doctrine. What is also evident is that Ruggie has actively stepped away from endorsing a binding international regulatory mechanism.162
Following the Introduction, several ‘General Principles’ are laid out. The scope of the GPs is set out with a statement to the effect that they are applicable to all States and business actors, broadly defined i.e. ‘all business enterprises both transnational and others, regardless of their size, location, ownership and structure.’163 This broad and inclusive
definition (reiterated in GP14) is to be welcomed as it eliminates the need for complex explanations which attempt to differentiate between organisational structures as highlighted in Chapter 1164 and encompasses Small and Medium Enterprises (SMEs)
which are just as capable of violating human rights as larger entities.165 Required
responses, however, may be dependent upon the capacity of an enterprise in certain contexts,166 more of which later.
Most significant, and the target for most criticism, is the fact that the GPs are explicitly non-binding in their application:
Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.167
Notwithstanding this limitation, the GPs are seeking to enhance ‘standards and practices with regard to business and human rights so as to achieve tangible results for affected individuals and communities, and thereby also contributing to a socially sustainable
162 Simons note 136 at 10 [online SSRN].
163 Guiding Principles note 134, General Principles at 6. See also GP14. 164 Infra at 1.1.
165 This broad definitional approach was advocated by e.g. P.Muchlinski, ‘Comments on the Draft Guiding
Principles for Business and Human Rights,’ 24 January 2011, http://www.business-humanrights.org/
SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples/Submissions [last accessed 23.10.11].
166 Guiding Principles note 134, GP14.
globalization.’168 Of course, it remains to be seen whether this is achievable and will
necessitate further research.