A Step Forward: UN ‘Protect, Respect, Remedy’ Framework and Guiding Principles

Research Paper by,

Bizhan Roshan

Submission Date: April 29, 2015

Abstract

Corporate duties under international human rights had been the subject of debate for many years between States, corporations and human rights advocate groups. For this reason, John Ruggie was appointed as the United Nations Special Representative of the Secretary-General “on the issue of human rights and transnational corporations and other business enterprises” to clarify this. To address this issue, Ruggie presented the UN ‘Protect, Respect, Remedy’: Framework in 2008 and subsequently presented the Guiding Principles to operationalize it in 2011. They were unanimously endorsed by the UN Human Rights Council in the years they were presented.

The Framework and Guiding Principles attracted a great deal of support from States and the corporations, but didn’t meet the expectation of human rights advocates, which was the direct application of human rights on corporations. This paper argues that although the Framework and the Guiding Principles are not legally binding, it is a step in the right direction in applying international human rights principles on corporations. The paper endeavors to prove this by explaining the Framework and the Guiding Principles, providing a summary of different stakeholders take on both the Framework and the Guiding Principles and then analyzing the achievements of both documents.

I.Introduction

Theincreased privatization of the worldwide economy, accompanied with the increasing transnational economic activity, put business and human rights on the global policy agenda in the 1990s.[1] These widespread changes increased social awareness of businesses impact on human rights and also caused UN to put the issue in its priority list.[2] The reason this topic made to the global policy agenda and UN’s priority list was not only that businesses especially multi national corporations were spreading around the globe, but because their expansion resulted in heinous human rights violations ranging from child labor to aiding and abetting in international crimes. In this regard, Shell’saiding and abetting with Nigerian government in human rights abuse in Niger Delta, Unocal’s and Total’s complicity in forced labor in Burma, Google and Yahoo’s undertaking of censorship in China, deprivation of local communities of water in India by Coca Cola are the very fewexamples.[3]

This situation called on United Nations to take some measures to address this problem. In 1998 UN Human Rights Commission, the predecessor for UN Human Right Council undertook an initiative in this regard but failed.[4] In 2005Harvard Professor John Ruggie was mandated to proceed with the task of clarifying human rights norms that apply to corporations. The result of Ruggies’ work was ‘Protect, Respect, Remedy: a Framework for Business and Human Rights’ in 2008 and ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ in 2011.[5] UN Human Rights Council unanimously endorsed both the Framework and the Guiding Principles.[6] The Framework and the Guiding Principles attracted a good deal of support from governments and businesses/corporations, but human rights advocates criticized them for not imposing direct human rights duties[7] on corporations. This article attempts to argue that though the Framework and the Guiding Principles do not directly impose human rights obligations on corporations and are not binding, but are still great achievement and considers them a step a forward.

The article proceeds with giving a background of the issue, followed by elaboration on the Framework. Then the article talks about the reflection on the Framework and the Guiding Principles and furthermoves to the achievements of the Framework and the Guiding Principles by dividing it into current achievements and the potential future achievements and ends by a conclusion.

II.Background

In the beginning of the 1970s, the UN’s Economic and Social Council requested that the secretary general establish a group of experts to research the impact of transnational corporations (TNCs) on development process and international relations.[8] The group proposed to constitute a Commission on TNCs that beside other things should draft a code of conduct for TNCs.[9]This mission to draft an agreeable code under the auspices of the Commission took more than a decade, but due to disagreements between developed and developing countries the Draft of 1990 could not be adopted.[10]

Following the aforementioned initiative, the first, Global Compact, was proposed by the former UN Secretary General Kofi Anan at the World Economic Forum in Davos on January 31, 1999.[11] The Global Compact entails ten principles in the fields of human rights, environment, labor and anti corruption was officially launched in 2000.[12] Almost at the same time with the first initiative, in August 1998, the Human Rights Sub Commission on the Promotion and Protection of Human Rights established a five member-working group to work on the Working Methods and Activities of Transnational Corporations.[13] The working group proposed their work under the name “UN Draft Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights” (hereinafter UN Norms).[14] The UN Norms stated that Corporations under international law are subject to the same rules of human rights obligations: “to promote, secure the fulfillment of, respect, ensure respect of and protect human rights,” which States have accepted for themselves under international treaties they haveratified,[15] but the governments on the Human Rights Commission did not ratify the Norms, asserting that the Norms have “no legal standing”.[16]

After the UN Norms failed to get the approval of the Human Rights Commission, the Commission in 2005 requested the UN Secretary General to appoint a special representative “on the issue of human rights and transnational corporations and other business enterprises” to initiate a new process[17]. The UN Secretary General appointed Professor John Ruggie for a period of two years, later on his mandate was extended for one more year and again in 2008 his term was extended further for another three years.[18]The Human Rights Commission mandated him to clarify the human rights norms that apply to corporations.[19]The result of Ruggie’s wok in the six years mandate was “Protect, Respect and Remedy” Framework in 2008 and Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (hereinafter “Guiding Principles”) in 2011,[20]which both of them were unanimously endorsed by the UN Human Rights Council.[21]

III.“Protect, Respect and Remedy” Framework and Guiding Principles

Ruggie started his work by rejecting the UN norms, which means he took the position that international human rights law dose not directly impose liability on corporations, but rather corporations are subject to international human rights law indirectly through States.[22] Hebased the framework on different, but interdependent duties.[23]

The Framework is composed of three core principles: (1) the State duty to protect from human rights violations by third parties, including businesses/corporations; (2) the businesses/corporations duty to respect human rights; and (3) the duty to establish effective legal remedies.[24] The three principles areinterdependent on each other and are only effective if they work together.[25]In the Guiding Principles, which is designed to operationalize the framework, Ruggie elaborated on the three pillars(Protect, Respect, Remedy) of the Framework in a systematic manner. He described each pillar under two main headings of (a) Foundational principles, in which he basically breaks each pillar into sub headings and then provide detailed explanation in the commentaries and (b) the Operational principles, in which he talked about how to put the principles into practice and provide guidance under sub headings and explains them in commentaries.[26]

1)The State Duty to Protect

The state duty to protect is not a controversial principle: this principle encompasses a state’s obligation to ensure that all entities within their jurisdiction or control comply with human rights norms, including corporations.[27] The only challenge to this principle is the states duty to protect human rights violations by private corporations that operate at a transnational level and have the resources and capacity to move from one country to another.[28]Ruggieconstantly and clearly stressed that this duty is imposed on States by existing international human rights law.[29] Though, in some regards the duty to protect echoes a somewhat new apprehension of the law, it has a strong legal base in the current international human rights instruments and has long been endorsed by human rights instruments, bodies and scholars.[30]Ruggie systematically elaborated this principle in the context of corporate and other businesses activities.[31]

2)Corporations Duty to Respect

The second principle states that corporations have a duty to respect human rights law.[32]Ruggie based this principle on societal expectations as opposed to human rights law, by doing so, he made this duty less controversial, but at the cost of making it weaker.[33] Using human rights law, Ruggie defined the scope of corporate responsibility to respect.[34] Then he described the societal expectations as being that society expects corporations to respect human rights as they are stated and endorsed in the international law, specifically, the main human rights and labor instruments.[35]

Ruggie strengthened the duty to respect human rights by elaborating as to what this duty entails.[36] Instead of specifying particular human rights that corporations should respect, Ruggie stated, “there are few if any rights business cannot impact – or to be – perceived to impact – in some manner. Therefore, companies should consider all such rights.”[37]Ruggie doesn’t see the duty to respect human rights only as being passive. Instead, it encompasses positive due diligence responsibilities on corporations to “address adverse human rights impacts with which they are involved,” that includes corporations attempt to avoid or control adverse human rights impacts that are directly connected to their operations, products, or related activities by their business relationships.[38]

According to Ruggie, due diligence has four parts. First, corporations should “adopt a human rights policy”. Secondly, corporations should undertake impact assessment, to know how current and proposed activities may impact human rights. Third, corporations should mainstream human rights in their policies. AndFourth, corporations should monitor and audit their performance.[39]

In addition, he clarified to corporations that the responsibility to respect requires avoiding complicity and states that complicity “has legal and non-legal pedigrees, and the implications of both are important for companies”.[40]If companies knowledgably aid and abet in commission of international crimes with governments and other private entities, it may cause them non-criminal liability for complicity in human rights violations.[41]And warningly says that the number of countries in which claims against corporations for commission of international crimes can be brought is increasing.[42]In its non-legal sense, he says that social actors such as public and private investors, the Global Compact, campaigning organizations and companies themselves see corporate complicity as an “important benchmark”, and adds that complicity claims “can impose reputational costs and even lead to divestment, without legal liability being established”.[43]

Ruggie emphasized that in order to hold corporations responsible for their performance all stakeholders should be able to monitor their performance; therefore, he encourages corporations to make their reports accessible to the public.[44]

3)Access to Remedies

The third principle, access to remedies, endeavors to give more weight to the states duty to protect human rightsand the corporation’s responsibility to respect human rights by asserting that states must establish effective legal remedies against human rights violations of corporations.[45]Ruggie asserted thattreaty bodies constantly encourage states to take serious steps in adjudicating human rights abuses by corporations within their jurisdiction.[46]It is vital for states to empower their judicial system to address corporate related human rights violations and remove the barriers to access to courts “including for foreign plaintiffs-especially where alleged abuses reach the level of widespread and systematic human rights violations,” it is also important to protect businesses from meritless or frivolous claims.[47]

In addition to judicial mechanisms, he insists,non-judicial mechanisms can perform an essential role in redressing human rights violations, especially in countries where the judicial system is unable to provide adequate services non-judicial mechanisms are of significant importance, because they are more likely to deliver “a more immediate, accessible, affordable and adaptable point of initial recourse.”[48]He makes it clear that for non-judicial mechanisms to deliver the services expected of them they should satisfy certain minimum standards of being legitimate, accessible, predictable, equitable, rights-compatible, and transparent.[49] Moreover, Ruggie states that in order to avoid grievances have an adverse impacts on companies, they should spot grievances and address them beforehand and clarifies that, “an effective grievance mechanism is part of the corporate responsibility to respect”.[50]For doing so companies can utilize services such as hot lines to get aware of complaints, “advisory services for complaints”, or “expert mediators”.[51]He clarifies it to the corporations that corporation based remedies may decrease financial risks, such as “compensation claims”, “loss of production or customers” or “reputational damages”.[52]

In addition, he encourages governments to utilize National Human Rights Institutions (NHRIs), (state based non-judicial mechanism) and mandate that they manage human rights abuses of companies, since “NHRIs are particularly well-positioned to provide processes whether adjudicative or mediation-based – that are culturally appropriate, accessible and expeditious”.[53] In the events where they are unable or cannot manage grievances they can serve as an information provider body for remedy seekers and “could act as lynchpins within the wider system of grievance mechanisms, linking local, national and international levels across countries and regions”.[54]

IV.Reflections on the Framework and Guiding Principles

Many NGO’s supportRuggie in his argument that states should be doing more to ensure companies respect human rights. At the same time, NGOsare concerned that “an over-reliance on voluntary initiatives … would be both inappropriate and inadequate”.[55] For instance,Civicus, the world Alliance of citizen Participation, said Ruggies’ report failed to define home states duty to regulate the extraterritorial activities of their corporations.[56] Some 27 American, African and European human rights organizations in a joint statement asserted that the Guiding Principles doesnot include any provision that States should take into account to ensure the integration of human rights law in international trade and investment negotiations and the human rights effects of such agreements.[57]

Eventually some leading human rights and development NGO’s including Amnesty International, Action Aid, Human Rights Watch, Pax Christi, and Oxfam International admired the “Protect, Respect and Remedy Framework, but expressed concern that the UN Human Rights Council needed greater clarity and more specific recommendations as well as “a strong follow-on mechanism”.[58]Many NGO’s described the Guiding Principle’s as insufficient, and instead called for an instrument to directly enforce human rights law on corporations.[59]

Governments mostly welcomed the Framework and the Guiding Principle’s. The EU stated that the Framework was “already influencing policy development in the EU, with initiatives taken both by EU member States and EU institutions”.[60]France and Norway fully supported the draft Guiding Principles, although, British government asserted reservation.[61]Moreover, main business associations like International Organization of Employers, the International Chamber of Commerce, and the Business Industry Advisory Committee to the Organization on Economic Cooperation and Development (hereinafter “OECD”) fully supported the Framework and the Guiding Principles.[62]

It seems the Framework and the Guiding Principles have been mostly successful in attracting corporations support. BP (British Petroleum) described the framework as “a unique chance to lay to rest a long-standing international debate about whether mandatory norms are required” and stated common standards will “help to clarify some of the more challenging human rights issues business face” and also pledged to abide by Guiding Principles and integrate it into its human rights policies.[63] Novo Nordisk said, “Common standards for business would help to provide a level playing field and prevent human rights violations.”[64] CEO of Sakhalen Energy, A.P Galaev,stated, “It is my sincere hope that the Human Rights Council will endorse the Guiding Principles at its forthcoming session in June, helping to establish them as the authoritative reference point for states, companies and civil societies”.[65] But Talisman Energy mainly opposed the Guiding Principles, stating in their comments as “largely in the nature of caution or objection”.[66]