A proper map at last – but the journey's only just begun: reflections on the Ruggie Draft Guiding Principles
After almost six years, hundreds of submissions, a small library of research reports and working papers, hundreds of meetings and roundtables and forty- seven different international consultations, the mandate of Professor John Ruggie as the UN Secretary General's Special Representative on Business and Human Rights – or the “Ruggie process”, as it is sometimes called – is now reaching its final stages.
Speaking at the RSA in London on 11 January 2011 ( Note 1 ). Professor Ruggie reflected on the background to his mandate, how he and his team had worked to fulfil it, and the huge challenges that now lay ahead. There is no doubt that the Ruggie process has already made a huge contribution, in policy terms, to the field of business and human rights. While the human rights impacts of business have long been of concern, the search for solutions had been marred until recently by deeply polarised debate, a lack of systematic empirical research, and utter confusion, as a matter of policy, regarding what the respective roles of states and companies should be ( Note 2 ).
Thanks to the Ruggie process, the ongoing debate over business and human rights is now a much more coherent and disciplined one. The “Protect, Respect and Remedy” framework has given a diverse group of stakeholders – governments, international institutions, companies, NGOs and advocacy groups – something to rally around.
This framework – proposed in Professor Ruggie's 2008 report to the Human Rights Council – rests on three “pillars”: (i) the state's duty to protect against human rights abuses by business (ii) the corporate responsibility to respect human rights (iii) and the need for more effective access to remedies ( Note 3 ). It affirms that primary responsibility for ensuring that companies do not violate human rights rests with states. This is a legal duty under international law. However, companies have responsibilities too, derived from their role as “organs of society” or “corporate citizens”, to “do no harm”. These responsibilities are driven and defined by social or “moral” expectations. The third part of the framework concerns the need to ensure that those whose rights have been infringed have access to an effective remedy. Obviously, states have a crucial role to play here, in ensuring that domestic courts are a realistic venue for gaining proper redress for human rights violations by companies. But the framework also creates space for non-judicial alternatives, including grievance and compensation mechanisms created by companies themselves.
The Human Rights Council decided unanimously to adopt what is now known as the “Ruggie Framework”. That was an achievement in itself. Since then, the Ruggie Framework has been very widely endorsed and applied, and has become almost the standard way of conceptualising, analysing and discussing business and human rights related issues. Part of its appeal must surely be the way the framework manages to distil international law and policy surrounding business and human rights – with all its complexities and controversies – into three basic propositions. There are nuances surrounding each of the three pillars, but we can at least agree on the fundamentals. This much is encouraging. While there may be different views on the best route to take, at least we know where we are starting from, and can broadly make out the terrain. The question is, what is the best way forward?
The draft Guiding Principles
This was the question the Human Rights Council put to Professor Ruggie when it decided to extend his mandate for a further three years to 2011. For this second phase, the Special Representative was given two further tasks – “operationalising” the “Protect, Respect and Remedy” framework (i.e. providing guidance to states, companies and other social actors as to what implementation of the framework would entail) and “promoting” the framework within relevant international and regional organisations and other stakeholders.
The “operationalisation” part of the mandate is to be fulfilled by a new set of Guiding Principles, which will formally be presented to the Human Rights Council for its endorsement in June 2011. The hoped-for outcome is an authoritative reference point for governments and companies as to how to implement the “Protect, Respect and Remedy” Framework. A draft set of Guiding Principles was published for public consultation in November 2010. This consultation process closed at the end of January 2011.
Professor Ruggie has made it clear that the Guiding Principles were not intended to be an international law- making exercise: rather, a reflection of where the international law on business and human rights stands at present, and what actors must do to comply with it. This is not, however, as easy as it sounds. The difficulty with this particular area of international law is that state practice is so sparse and so sporadic that it is often hard to separate what the law is from what it ought to be . There are different views, therefore, about the extent to which the draft Guiding Principles is an accurate statement of international law as it currently stands. Some respondents have suggested, for example, that the Guiding Principles understate the extent to which companies are already subject to human rights obligations under international and national law. Other groups have argued that the obligations of home states to regulate the human rights performance of multinationals abroad are actually further developed than the Guiding Principles appear to suggest. On the other hand, some say that on this point the Guiding Principles go too far.
But whatever the correct positions are, few would disagree that the international law on business and human rights is badly in need of reform. Where there are clear legal duties – such as the duty of states to “protect against business-related human rights abuse within their territory and/or jurisdiction”, these obligations are expressed in strong, mandatory terms (e.g. “states must ”). However, the draft Guiding Principles also address numerous policy recommendations to states, such as “encouraging” business enterprises over which they do have jurisdiction to respect human rights throughout their global operations, “ensuring policy coherence” on business and human rights issues, and ensuring that those companies that do not respect human rights do not receive support from the state, e.g. in the form of export-credits.
Importantly, these Guiding Principles are not just aimed at states. If adopted, this set of principles will be among a handful of international human rights instruments that address themselves directly to companies. Through the draft Guiding Principles, Ruggie makes three key practical recommendations as far as the corporate response to human rights issues is concerned. First, companies should carry out human rights due diligence. This process “should include assessing actual and potential human rights impacts, integrating and acting upon the findings, and tracking as well as communicating their performance”. Second, companies “should be prepared to communicate publicly on their response to actual and potential human rights impacts”. Third, companies should be proactive in developing ways of ensuring remediation of adverse human rights impacts, including through “operational level grievance mechanisms”.
Are we there yet?
There is still a long way to go. At the RSA in London , the Special Representative said he viewed endorsement of the Guiding Principles by the Human Rights Council, if this is achieved, as only “the end of the beginning”. Some have expressed disappointment that the Guiding Principles are not more explicit in terms of the substance of corporate responsibilities vis-à-vis human rights. A number of respondents to the consultation process have complained that the requirements are too vague (particularly in terms of companies' implementation) and that too much has been left, for the time being, to self-regulation. Another area of criticism has been the lack of on-going oversight and monitoring of how states and companies now respond to the Guiding Principles.
However, this is perhaps to misunderstand the nature of the draft Guiding Principles. This is not a regulatory instrument in itself – it never could be – but a guide for future action. Tackling problems of business-related human rights abuses requires commitment and effort at every level of government and governance – from multilateral institutions to domestic regulators; from company boards to site managers. It also requires a re-evaluation of traditional ideas regarding the geographical scope of the “state's duty to protect”. Home states of multinationals need to step up to the challenge to take more interest in, and more responsibility for, what subsidiaries and business partners are doing abroad. This will certainly require new regulatory initiatives. But, as the Guiding Principles make clear, it also requires much more joined-up thinking across the whole range of business-related policies – company law, securities regulation, export, trade and investment – to ensure that these policy approaches support, rather than hinder, the realisation of rights.
There is still much uncertainty about how human rights translate to the business context. Obviously, the precise manner of implementation will vary from business to business, from sector to sector, and from country to country. Assuming the Guiding Principles are formally endorsed, it will be up to all parties to build on the consensus that has been achieved: for companies to respond to the challenges laid down in the draft Guiding Principles, and for governments – individually and in cooperation with others – to develop ways of guiding and supporting them. How this is to be achieved – whether through legally enforceable standards, or some other means – will be a matter for intense negotiation at domestic level. But if we can get to the point where companies treat human rights issues with the same seriousness as other areas of risk and legal compliance, where poor performance, wherever it occurs, is identified and put right, where all victims have a realistic chance of a proper remedy, and the worst abuses are exposed and punished – then we will have made real progress.
© Jennifer Zerk
1. Text of speech given at the Royal Society for the Encouragement of the Arts, Manufacture and Commerce by Professor John Ruggie, 11 January 2011, available at http://www.business-humanrights.org/media/documents/ruggie/john-ruggie-presentation-at-rsa-in-london-11-jan-2011.pdf
2. See J. Zerk “Ultimate Governance: The International Regulation of Corporate Responsibility”, Ethical Corporation Magazine, January 2007, p. 38. Copy available here http://www.ethicalcorp.com/content.asp?ContentID=4798
3. See “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, copy available at http://www.unglobalcompact.org/docs/issues_doc/human_rights/Human_Rights_Working_Group
Business and Human Rights Resource Centre: portal about the work of the Special Representative of the United Nations Secretary General on business and human rights, Professor John Ruggie. http://www.business-humanrights.org/SpecialRepPortal/Home
On 16 June 2011, the UN Human Rights Council decided unanimously to endorse Professor Ruggie's final report: "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework". There is now, for the first time, a global standard focussing specifically on reducing human rights impacts linked to business activity.
For a copy of the final version of the Guiding Principles go to http://www.ohchr.org/documents/issues/business/A.HRC.17.31.pdf
A five person Working Group to advise on the implementation of the Guiding Principles will be appointed at the Council's next session in September 2011. The Working Group will also host an annual forum on Business and Human Rights.
Jennifer Zerk Consulting: +44 (0)1223 207305 - firstname.lastname@example.org