In undertaking the task of fulfilling the mandate given to him, Ruggie faced a difficult situation: he could not create direct legal obligations of corporations for International Law (as the Norms – which he outrightly rejected - tried to) but at the same time he needed to come up with obligations that have a real impact.161 What was expected in essence was a treaty, but not like the Norms. In Pillar 2 and 3, Ruggie deals with this problem by attempting to balance between avoiding overstating the corporate obligation on the one hand and allowing corporations to violate rights with impunity on the other, because they had unenforceable obligations. He thus crafted the corporate obligation as societal expectations as opposed to binding obligations as the Norms had done, and then proposed ways of making corporations aware of the potential legal costs of violating the Guiding Principles, in the hope that this would deter them from committing violations.
It has been argued that going by the terminology he applies in the UN Framework and Guiding Principles, the law was not ‘necessarily at the heart of Ruggie’s framework’.162
Ruggie is criticised for not having done substantive work in defining the corporate obligation for human
158 Ibid.
159 If one argues that corporation duties exist in the same manner as state duties (as David Bilchitz seems to argue;
see discussion in Bilchitz op cit note 138 at 128-132), then how are they enforced? The UDHR does speak to corporate obligations but lacks the necessary enforcement mechanisms to effectively impose such a duty (Anderson op cit note 135 at 468).
160 See generally Buhmann op cit note 127. This is the point Ruggie attempts to make where he is accused of using
‘system specific’ language to appeal to the different issues raised in the debate, for example, that companies cannot have international law obligations.
161 Knox op cit note 31. 162
International Law Society ‘The Ruggie Guiding Principles on Business and Human Rights: What Do They Mean for Lawyers?’ (Panel discussion, 5 July 2011) available at
http://international.lawsociety.org.uk/files/Ruggie%20panel%20discussion%20summary.pdf accessed on 21 September 2013.
rights. Some aspects of Ruggie’s findings extend beyond legal concerns.163
He creates a vague responsibility to respect that is not exactly a legal obligation, continuing the ambiguity of corporate codes of conduct, which are non-binding. The Guiding Principles refer to responsibilities and not duties of corporations, giving the impression that companies have no legal duties. Robert Grabosch observes that nowhere in the Framework or Guiding Principles does Ruggie elaborate the standards of any human rights in the business context.164 Surya Deva
opines that the language of the Guiding Principles has the potential to undermine the corporate obligations for human rights.165
Ruggie’s responsibility to respect is much under-specified; arguably not to distort the political and social status quo, which does not recognise corporate obligation for human rights, and thus stand a chance to survive.166 Ruggie is said to have used confusing terminology, which did not exist in international law, specifically the creation of the ‘protect/respect’ cages in the 2008 ‘UN Protect Respect Remedy Framework’.167 While he is of the view that corporations can violate all human rights, Ruggie nevertheless strongly argues for the ‘protect/respect’ cages which characterise the framework for business and human rights. Ruggie describes the corporate responsibility to respect as a baseline responsibility and adds that unless the companies perform certain public functions, more should not be required of them in terms of human rights obligations.168 In essence therefore, he places no limitations on the rights, but limits the respective corporate duties.169 His position implies that although business entities can inflict a varied range of human rights violations, they have the corresponding duty only to respect and not more. This gives the impression that the obligation required of business entities is much less
163 Knox op cit note 31.
164 Robert Grabosch SRSG John Ruggie’s Draft Guiding Principles for the implementation of the United Nations
‘protect, respect, and remedy framework’ (27 January 2011) Position Paper of the European Center for
Constitutional and Human Rights at 19.
165 See Deva op cit note 118 at 94, and generally his discussion of the casual use of human rights terminology at 91-
8.
166 Haines Fiona, Macdonald Kate & Balaton‐Chrimes Samantha ‘Contextualizing the business responsibility to
respect: How much is lost in translation?’ in Radu Mares (ed) The UN Guiding Principles on Business and Human
Rights: Foundations and implementation (2011) 107‐128(19).
167 Response of Surya Deva and David Bilchitz to Comments of Professor John Ruggie on ‘Human Rights
Obligations of Business: Beyond the Corporate Responsibility to Respect?’ (15 January 2014).
168
Human Rights Council ‘Business and human rights: Towards operationalizing the “protect, respect and remedy” framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’ (22 April 2009) A/HRC/11/13 [Ruggie Report 2009] para 61-65.
169 Florian Wettstein ‘Making Noise about Silent Complicity: The Moral Inconsistency of the “Protect, Respect, and
Remedy Framework’ in Surya Deva & David Bilchitz (eds) Human rights obligations of business: beyond the
compared to the harm they can cause, thereby implying that they can do whatever they want to do.
Ruggie defines the responsibility to respect as comprising responsibility to ‘avoid causing or contributing to adverse human rights impacts’ and to ‘seek to prevent or mitigate adverse human rights impacts’.170
Ruggie’s efforts to distinguish between the obligations of corporations and those of states led him to use language that can leave room for corporations to get away with not fulfilling anticipated responsibilities. “Duty” is considered obligatory, while “responsibility” is voluntary, thereby implying that the duty of the state is obligatory, while that of corporations is not.171
However, if one agrees that International Law does not as yet impose direct obligations on companies, then Ruggie’s distinction between duty and responsibility is indeed valid. In his 2010 report, Ruggie says that:
The term “responsibility” to respect, rather than “duty”, is meant to indicate that respecting rights is not an obligation that current international human rights law generally imposes directly on companies.172
He thus gives the term ‘responsibility’ a very specific meaning, which, if accepted, may justify the distinction he creates between state and corporate obligations for human rights, implying that states have a legal obligation whereas the obligation of corporations is only a moral or social one.173 He goes on to clarify that ‘respect’ does not only imply a negative duty as the critics interpret it, but rather include positive implications as those that require the business entity to “undertake human rights due diligence to become aware of, prevent and address adverse human rights impacts” which in reality would entail positive acts such as integrating human rights policies throughout company operations.174
170
Human Rights Council ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ A/HRC/17/31 [UN Guiding Principles] 14(13).
171 UN General Assembly Report of the Open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights (10 July 2015) (Draft) para 68.
172
Human Rights Council ‘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: Further steps toward the operationalization of the “protect, respect and remedy” framework’ (9 April 2010) A/HRC/14/27 [Ruggie Report 2010], 12 (55).
173 Robert McCorquodale ‘Corporate Social Responsibility and International Human Rights Law’ (2009) 87(2)
Journal of Business Ethics 385, 391.
To add to the confusion and difficulty in giving meaning to the duty defined by Ruggie, the UN Guiding Principles are proposed not to be applied as a one-size-fits-all framework, but rather in context-specific circumstances.175 Yet again in the same breadth, the responsibility to respect human rights applies to all entities irrespective of size, sector, operational context, ownership or structure.176 The responsibility to respect contemplated is universal, and at the same time modifiable to be applicable to different contexts. The leeway given to states to tailor the responsibility to respect to suit particular entities can be used to reduce the impact of the responsibility and it could easily translate into a lesser obligation for one entity compared to another.177 Additionally, insistence on a universal standard that applies to all entities regardless of context can be seen as an imposition of western ideas, a propagation of ‘colonial imperialism’ resulting in measures that are far removed from the local reality.178 This can lead to resistance to the Guiding Principles or subsequent entity-specific regulations by local corporations.
Although the vagueness is criticised, it has its advantages, which justify the approach chosen by Ruggie. The flexibility offered by the context-specific application of the Guiding Principles will make the burden of compliance bearable on the business entities concerned. Sensitivity to the operating context of the different business entities is important to determine how businesses connect with communities.179 This knowledge will be invaluable in undertaking the human rights due diligence, analysing the corporation’s operations to foresee any likely negative human rights impact on the stakeholders, in order to put in place preventive or mitigating measures in good time.
The universal applicability of the Guiding Principles follows from the universal nature of human rights, and the nature of business entities, which, being similar, presumes the capacity to violate human rights by all entities. But, as shown above, the well-meaning duty to contextualise the operations of the Guiding Principles, is necessary if the responsibility to respect were to be practical. However, what is lacking is clear procedural guidelines necessary to translate the general principles of the responsibility to respect into every day operational context.180
175 UN Guiding Principles op cit note 2 para 15. 176 Ibid at 14.
177
Haines et al op cit note 166.
178 Ibid. 179 Ibid at (4).
Another criticism seen as Ruggie’s invention is his replacement of the ‘violation’ language typical in human rights discourse with ‘risk’ and ‘impact’ mitigation - this has the potential to undermine the value of human rights.181 The risks normally considered by business entities in the usual course of their operations are risks to the business, to profits or production, but human rights risks are risks to the right holders. Because it involves individuals who are owed rights, anticipating and mitigating against human rights risks cannot be simply a calculation of probabilities to the business; effort must be made not to confuse the contexts by ensuring engagement and communication with persons, victims of corporate violations of human rights.182
While some make this distinction between direct and indirect obligations, others still argue against the notion of internationally accepted human rights standards for business. Steven Ratner notes:
To the extent that one contemplates recognising in law a large number of duties on entities other than the State, one has potentially asked International Law to do too much and ignored the expectation that states should enjoy the prerogative to regulate most areas of private conduct on their territory.183
In apparent support of this notion, Ruggie says in his Report that ‘[w]hile corporations may be considered “organs of society”, they are specialised economic organs, not democratic public interest institutions and as such, their responsibilities cannot and should not simply mirror the duties of states.184 The effort to distinguish the obligations of the state and corporations give rise to the need for the different terminology that Ruggie uses in his findings.
2.6. Conclusion
If Ruggie has not proposed binding corporate obligations for human rights thus taking the argument beyond mere expectation, what has his work contributed to the debate on business and human rights? Did he succeed in advancing the debate? Yes he has. The fact that Ruggie does not offer any uniquely novel solution is no reason to undermine the usefulness of his work.
181 See Deva, op cit note 118 at 91-8. 182 Ibid at 17.
183
Steven R. Ratner ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2002)111 Yale Law
Journal 443, 466.
184 Ruggie Report 2008 op cit note 151, 16. These duties of states include that of promoting and protecting human
Where other attempts stopped at merely stating that corporations have human rights obligations, Ruggie went ahead to specify the state and corporate duties, to expound on them and propose ways of making them accountable for violation of those rights by offering remedies for corporate violations.185
Despite the existence of the state duty to protect, the different policy options the state can employ to fulfill this duty with respect to business activities are not clear.186 Ruggie’s work has sought to “elaborate on the implications of existing standards and integrate them into a comprehensive template to be applied in different national contexts and for business entities of different sizes as each state or corporation would deem appropriate”.187
This view responds well to the criticism against the Draft Norms: that they were designed to take away the attention and resources necessary to improve the capacity of states to implement their human rights laws by attempting to place direct obligations on corporations.188 The UN Framework and Guidelines are addressed to corporations, and states, offering guidance on understanding the obligations of each in the task of promoting human rights. If domestic mechanisms were well developed and able to handle the human rights grievances brought before them, there would be no need to escalate the problem to the international level. Further, if the Guiding Principles are effectively implemented, the need for a treaty may be diminished.189
Because International Law mostly depends on the domestic jurisdiction for enforcement, it is important to have a well-developed domestic law jurisprudence on the subject of business and human rights. Additionally, because the human rights and business jurisprudence is an emerging one, and in view of the fact that not much has been achieved in the effort to regulate this area even within states, it would be more important to consider what could be done presently while more lasting solutions are sought and evaluated. There is more to gain by focusing in the present, giving meaning to corporate obligations at the state and corporate level, creating
185
Knox op cit note 31.
186 Ruggie Report 2008 op cit note 151, 27. 187 UN Guiding Principles op cit note 2 at 5(13-4).
188 Response of United States Council for International Business (USCIB) to the Draft Norms, available at
http://www.coc-runder-tisch.de/inhalte/texte_grundlagen/tk_news_TALKING_POINTS.htm, accessed on 31 May
2012. ‘We believe that, while well intentioned, this approach would be counterproductive because it risks undermining the resources and attention necessary to improve the capacity of national governments to implement and enforce their existing human rights laws, with which all companies – foreign or domestic, local or global – must already comply. It would also shift the focus away from some of the worst cases of human rights and labour abuses that take place in local economies.’
consistent state practice, and moving on to seeking consensus at the international level later, when substantive progress has been made at the domestic level to agree on this relatively novel concept of business and human rights.190 With the negotiations of a treaty on business and human rights now underway, and the attendant difficulties now more perceptible,191 the UN Framework and Guiding Principle remain a concrete tool that can be applied in the present to advance the business and human rights deliberations, making corporate respect for human rights a practical concern for states and corporations, pending the ultimate conclusion of the treaty.192
190
Customary international law, which is an alternative means for international law, can find its way into domestic laws, arising from a subjective interpretation of consistent state practice and is accompanied by a sense of obligation on the part of the state to adopt given practices.
191
The OEIWG held its first session July 6-10 2015. See UN General Assembly (Draft) Report of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (10 July 2015).
CHAPTER THREE
3. THE HUMAN RIGHTS OBLIGATIONS OF CORPORATIONS UNDER THE 2010