Commentary regarding joint civil society statement on draft Guiding Principles on business & human rights
25 Jan 2011
Posted to Transnational Dispute Management Journal’s OGEMID(Oil-Gas-Energy-Mining-Infrastructure Dispute Management) mailing list
The Financial Times last weekreported that Amnesty International, Human Rights Watch and five other pressure groups have indicated they would oppose the adoption next June by the UN Human Rights Council of the final draft recommendations on business and human rights from Professor John Ruggie. This is despite very strong support from States, other members of civil society and the international business community, including major companies in extractive industries.
The framework proposes a set of principles and guidelines including: (i) reiterating States' responsibility to protect human rights against abuse by third parties, including business, through new and existing instruments (ii) for companies to respect human rights through the implementation of due diligence, human rights impact assessments and a number of other measures and (iii) for both to ensure proper judicial and/or non judicial remedies in case ofnon-compliance.
But Amnesty and other groups argue that "in their current form, [Mr Ruggie’s proposals] ... risk undermining efforts to strengthen corporate responsibility and accountability for human rights" and that these should indeed be mandatory for all private and state-owned companies.
If and when adopted by the United Nations, the proposed set of Guidelines shall become "soft law" instead of "hard law" and this is an opportunity to stress the role of "soft law", the consequences of which can indeed be as serious as for "hard law" when it concerns reputation, access to financing, share value, license to operate, employee recruitment and retention. It isclear that there are some very serious sanctions for those companies that do not comply with so-called 'soft-law' principles, and these sanctions are themselves anything but 'soft' but rather "hard", in that very often the effect is immediate and allow little or no room for defence.
Amnesty's position is perhaps more understandable if it were to relate solely to those companies which are not exposed to these soft law requirements. But even then, these stakeholders, when acting in an international capacity or in partnership with companies that are directly subject to soft law do become exposed to these soft law principles and requirements. One can reasonably say that all companies whatever their size and ownership are increasingly becoming exposed to soft law and its sanctions.
Given the foregoing, in today's climate, query whether "hard law" as required by Amnesty and others would really make a difference to behaviour. One must keep in mind that hard law at an international level, currently applies to State actors (with very few exceptions), is extremely complex , takes time to adopt and can be difficult to apply. With this in mind Ruggie has rightly argued for the strengthening of the existing instruments that governments have at their disposal.
In recommending that the principles should not be adopted - mainly because they are voluntary ( and also in Amnesty's view because they are not sufficiently clear on how the government and companies should reach these objectives ) - Amnesty International and others run the risk that there would be nothing equivalent (or at least not for some time), despite the willingness from companies to act now and agree for certain principles and guidelines of Human Rights' international (soft) law to apply.
It is important that the international business community is given the opportunity to reflect on Amnesty International's proposal and its potential effects and your viewswould be very welcome.
Best regards,
Stéphane Brabant
Herbert Smith LLP