Some critics say that there was a lack of tolerance for opposing views in the process and disregard has consequently been shown for the apparent ‘consensus’ that characterised Ruggie’s deliberations throughout the consultations, drafting and adoption of his findings.116 If this criticism holds any water, the uncritical adoption of the UN Guiding Principles could be seen as undermining the legitimacy of his findings and proposals and the entire process that resulted in them. In the view of some, the ‘consensus’ proposition is seen as part of Ruggie’s vocabulary,117
and a fact that leads to self-legitimisation of the outcome.118 Surya Deva argues that there should have been a ‘piercing of the “façade” of consensus’, a going against this ‘coalition of the
114 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.
115 Ibid.
116 See for example David Bilchitz ‘The Ruggie Framework: An Adequate Rubric for Corporate Human Rights
Obligations?’ (2010) 7(2) Sur - International Journal on Human Rights 199 at 255 et esq available at
http://www.surjournal.org/eng/conteudos/pdf/12/10.pdf, accessed on 9 August 2014. The author is of the view that
the consensus approach was seen as a way to avoid rejection of the findings should they fail to gain the approval of states and business entities or the Human Rights Commission, as happened to the UN Draft Norms.
117 Carlos Lopez, ‘The “Ruggie Process”: From Legal Obligations to Corporate Social Responsibility?’ in Surya
Deva & David Bilchitz (eds) Human rights obligations of business: beyond the corporate responsibility to respect? (2013) at 69-70. Lopez questions the perception of unanimous adoption of the propositions made by Ruggie, noting that although many people may have been consulted, the outcome was not (and was not intended to be) endorsed by all the stakeholders, or even a majority of them – it was the document of its author. As such the consensus alluded to was only apparent.
118 Surya Deva, ‘Treating Human Rights Lightly: A Critique of the Guiding Principles’ Complicity in Undermining
willing’119
if a more robust outcome was to be arrived at. Deliberations of any kind ought to be preceded by expression of the fundamental differences that give rise to the need for the deliberations, then negotiations would follow to try and address the differences and only then can an agreement be reached, reflecting the compromises made to arrive at a given position. Ruggie’s critics argue that he failed to acknowledge the differences that arose regarding the issues in discussion, he did not articulate them, neither did he acknowledge the final position taken in view of these differences; nor did he offer reasons why his choice was the preferred option.120 However, there is evidence to the contrary of this argument.121 There seems to be an exchange of views around Ruggie’s findings at all stages, for example as documented by the Business and Human Rights Resource Centre.122
David Kinley notes in his description of Ruggie’s work:
Ruggie’s tenure in the position has been marked by extra ordinary energy, a commendable willingness to engage and openness to debate; a determination to find common ground and move off that which has been ‘poisoned’; and a prodigious output of well-researched, succinct and readable reports and papers.123
A record of consultation meeting reports, including responses to the various outputs delivered by Ruggie are kept by the Business and Human Rights Resource Centre, in support of Kinley’s view.124
Ruggie adopted a consensus approach to arrive at the UN Guiding Principles, taking a clear turn away from the means that had been applied in previous failed attempts to create human rights
119 Ibid.
120 Ibid at 81.
121 See for example the opposition to the Guiding Principles by Amnesty International (See ‘Amnesty International
attacks draft Ruggie human rights standards’ available at http://www.businessrespect.net/page.php?Story_ID=2658 accessed on 16/5/2012. Ruggie responded in a letter “Bizarre response by human rights groups to UN framework plan” giving reasons why the opposition was unfounded and not in the best interests of those it sought to speak for. Article available at http://www.ft.com/intl/cms/s/0/629fbcd0-2361-11e0-8389-00144feab49a.html#axzz1v2sgH5w5, accessed on 4 August 2014.
122 Seehttp://www.business-
humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil/2010/Reportstatements, accessed on
20 February 2014.
123
David Kinley Civilizing Globalization: Human Rights and the Global Economy (2009) 197
124 See http://www.business-
humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil/2010/Reportstatements, accessed on 5
August 2014. In an Inter-active Dialogue with the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, for example, Amnesty International voice their dissatisfaction with the UN Framework. In this regard, see the array of documents filed in the website under ‘Responses & commentary - NGOs, experts & business groups’.
obligations for corporations.125 As an initiative, Ruggie’s work stood out compared to the previous initiatives around business and human rights because it was more inclusive;126 he held consultations with numerous stakeholders from governments, business (which otherwise would not have had a say in the Human Rights Council127) and civil society thus resulting in an output representative of the views and wishes of a broad spectrum of interested parties and therefore more likely to be accepted. Ruggie’s work was characterised by continued support by the Council, and the Guiding Principles were eventually unanimously adopted by the Council in June 2011, thus giving them legitimacy.128
Ruggie’s approach has been praised and criticised in the same breath: criticised on the basis that arriving at a consensus could have demanded too much compromise in view of the differences between the negotiating states, that it would consequently undermine the agreement reached;129 it was praised on the basis that it ‘prizes dialogue and agreement over ambition’130 thereby presenting practical solutions that can be applied in the present.
Ruggie explains that at the time of starting any treaty negotiations a minimum consensus, one that went beyond the mere acknowledgement of the existence of a problem, was needed among states. This, in his view, was missing on the subject of human rights and business, hence
125
The UN Norms sought to impose direct obligations on corporations.
126 Human Rights Resolution 2005/69 para 3 states: “The Commission on Human Rights… (3) Requests the Special
Representative, in carrying out the above mandate, to liaise closely with the Special Adviser to the Secretary- General for the Global Compact and to consult on an ongoing basis with all stakeholders, including states, the Global Compact, international and regional organizations such as the International Labour Organization, the United Nations Conference on Trade and Development, the United Nations Environment Programme and the Organization for Economic Co-operation and Development, transnational corporations and other business enterprises, and civil society, including employers’ organizations, workers’ organizations, indigenous and other affected communities and non-governmental organizations.”
127 Karin Buhmann ‘Navigating from ‘train wreck’ to being ‘welcomed’: Negotiation Strategies and Argumentative
Patterns in the Development of the UN Framework’ in Deva & Bilchitz op cit note 117 at 57.
128 The Human Rights Council is tasked with the unique role of providing global leadership in human rights under
its mandate to promote ‘universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner’. (General Assembly Resolution A/RES/60/251) The Council seeks to promote human rights education and learning as well as advisory services, and serves as a forum for dialogue on thematic issues on all human rights, as it did in deliberating on Ruggie’s work and findings. (A/RES/60/251 Resolution adopted by the General Assembly Human Rights Council (3 April 2006) Para 5(b)) The Council is further mandated to promote the full implementation of human rights obligations undertaken by states. Its role in taking forward the business and human rights debate is therefore of utmost importance. The activities leading up to the Guiding Principles through a process managed by the Human Rights Council adds to their authoritative status. (Nolan op cit note 27 at 158) Before the Norms, the Draft Code developed in 1990 following almost two decades’ work was rejected by the Council. The Norms were the work of a group of independent experts and as such they would not have been binding, even if they were accepted. See Knox op cit note 31.
129
See David Bilchitz ‘The Ruggie Framework: An Adequate Rubric for Corporate Human Rights Obligations?’ (2010) 7(2) Sur - International Journal on Human Rights 199 at 216 available at
http://www.surjournal.org/eng/conteudos/pdf/12/10.pdf, accessed on 17 December 2014.
his preferred approach.131 Faced with the problem of failure of corporations to respect, promote or uphold human rights, a tempting solution is to fix this problem by drafting better rules, creating internationally binding obligations against corporations and building modern bureaucratic institutions to enforce them, perhaps an international court to enforce the corporate obligations created.132 This may be perceived as a shortcut to attaining the desired end, but it may be more preferable to begin with dialogue within states involving all the different players, then among states. Dialogue over issues arising will generate concern and procure commitment from the deliberating parties; a result will be agreement on principles which can then build onto further agreement on rules and a commitment to enforce the rules.133 Ruggie subscribes to this line of thought, while his critics propose the reverse, creation of rules and then working towards a consensus on them. Whereas the same end may ultimately be reached, this research proposes a preference for the former, beginning with a dialogue and an effort to build consensus among the different stakeholders, then building on that to generate a binding agreement.
The subject of business and human rights is a relatively new field where more questions are asked than answers given to the meaning of concepts and procedures. Development of a human rights respecting corporate culture at the domestic level is therefore important as it will create common ground for any solid progress in the business and human rights field; corporations must appreciate the role that they have to play, taking it as an obligation they must fulfill not if they can, but always; knowing what is expected of them and how they are to bring it about. States on their part must also appreciate their obligation to facilitate and ensure that corporations understand and uphold human rights. States should be able to hold corporations accountable if they fail in this task, and know the means they can apply to attain this end. Any agreement about what the duty to uphold human rights means, and what it entails, must be preceded by discussions among states which also requires a certain level of harmony of thoughts among the negotiating parties. It seems more rational therefore to begin by creating consensus as a foundation for any further progress at the international level. The UN Framework and Guiding Principles will go a long way in creating this consensus within and among states, building a solid foundation for the negotiation of a treaty.
131
John Ruggie ‘Business & human rights: Treaty road not travelled’ (6 May 2008) Ethical Corp. 43. Penelope Simons, a critic of Ruggie acknowledges this fact; see Penelope Simons op cit note 6 at 41.
132 See Adler and Woolcock op cit note 84 at 184. 133 Ibid.