Business and Human Rights Part III: Foundations--The Scope of the Responsibility to Protect

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 

For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework of the consultation  framework. 

Part III: Foundations--Scope of the Responsibility to Protect.

The SRSG has suggested an intensely contextual scope to the second pillar reponsibility of corporations ot protect human rights.

The scope of a company’s responsibility is determined by the impact of its activities on human rights, and whether and how the company might contribute to abuse through the relationships connected to its business.  The national and local contexts in which the business operation takes place should alert the company to any particular human rights challenges it may face on the ground.

A mining company and an apparel manufacturer undertake very different activities, and therefore will have different impacts as well as a different set of relationships, even when operating in the same country; while both equally bear a responsibility to respect human rights, the scope of responsibility will look different for the two companies.

The relationships dimension is linked to the topic of complicity, the legal meaning of which has been spelled out most clearly in the area of aiding and abetting international crimes, i.e. knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime.  (See the SRSG's 2008 report, paragraphs 73-81.)  

United Nations Special Representative of the Secretary-General on business & human rights, Scope of the Responsibility to Protect. The contextual foundation of duty is neither exotic nor unknown to corporations.  It serves as the essence of the application of law and in fundamental to basic legal notions--from "reasonableness," to "materiality" and "proportionality."  More interesting is the connection between the scope of the responsibility to protect and complicity.  The legal basis of complicity remains unsettled as a matter of transnational law.

The concept of "corporate complicity" is relatively new. Although it has echoes in some branches of law, such as the law of accomplices in criminal law, those active in the area of business and human rights are gradually seeking to describe what "corporate complicity" means in terms of legal policy, good business practices, as well as in different branches of the law. But there continues to be considerable confusion and uncertainty about when a company should be considered to be complicit in human rights violations committed by others.
In part the confusion may be attributable to the inherent generality of the concept, which broadly speaking invokes "the liability of one person for the act of another." The relationship between complicity and more traditional forms of accomplice liability has been debated in the jurisprudence of the International Criminal Tribunals for Rwanda and Yugoslavia.  The International Criminal Court Statute is said to be unclear. The ICJ report lends clarity, offering the following three-part definition of complicity as applied to corporations:
First, by such conduct, the company or its employees contribute to specific gross human rights abuses, whether through an act or failure to act, and whatever form of participation, assistance or encouragement the conduct takes, it:

(i) Enables the specific abuses to occur, meaning that the abuses would not occur without the contribution of the company, or
(ii) Exacerbates the specific abuses, meaning that the company makes the situation worse, including where without the contribution of the company, some of the abuses would have occurred on a smaller scale, or with less frequency, or
(iii) Facilitates the specific abuses, meaning that the company's conduct makes it easier to carry out the abuses or changes the way the abuses are carried out, including the methods used, the timing or their efficiency.

Second, the company or its employees actively wish to enable, exacerbate or facilitate the gross human rights abuses or, even without desiring such an outcome, they know or should know from all the circumstances, of the risk that their conduct will contribute to the human rights abuses, or are willfully blind to that risk.
Third, the company or its employees are proximate to the principal perpetrator of the gross human rights abuses or the victim of the abuses either because of geographic closeness, or because of the duration, frequency, intensity and/or nature of the connection, interactions of business transactions concerned. The closer in these respects that the company or its employees are to the situation or the actors involved the more likely it is that the company's conduct will be found in law to have enabled, exacerbated or facilitated the abuses and the more likely it is that the law will hold that the company knew or should have known of the risk.
Recognizing that the concept of complicity remains vague and contested, the ICJ report frames the potential culpability of companies in terms of specific forms of criminal liability widely recognized as a matter of international law, namely, aiding and abetting liability, joint criminal enterprise liability, and the doctrine of superior responsibility.

Justice Ian Binnie, Legal Redress for Corporate Participation in International Human Rights Abuses:  A Progress Report,  38-SUM Brief 44, 47-48 (2009) ( Justice Ian Binnie has been a member of the Supreme Court of Canada since 1998); Chimène Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61 (2008); Andrew Clapham and Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, based on a background paper for the Global Compact dialogue on the role of the private sector in zones of conflict, New York, 21-22 March 2001.

The SRSG focuses analysis on the aiding and abetting  framework of complicity.    SRSG's 2008 report, paragraphs 74.  This requires knowledge, the provision of practical assistance or encouragement, and the production of a substantial effect.  Id.  The legal standard is grounded in a harmonizing view of international criminal standards.  See, id., at 77, 79-80.

But the SRSG suggests that complicity has a social meaning as a well as a legal meaning.  The polycontextuality parallels the basic three pillar structure of the protect, respect, remedy framework.  Just as a corporation has a duty to comply with state law (flowing from its legal license),  the corporation has an independent responsibility (flowing from its social license) to respect.  "In non-legal contexts, corporate complicity has become an important benchmark for social actors, including public and private investors, the Global Compact, campaigning organizations, and companies themselves. . . .  In this context, allegations of complicity have included indirect violations of the broad spectrum of human rights - political, civil, economic, social, and cultural."  Id., at 75.  Still social liability may not cover the same ground as legal liability: "deriving a benefit from a human rights abuse is not likely on its own to bring legal liability. Nevertheless, benefiting from abuses may carry negative implications for companies in the public perception." Id., at 78.

The SRSG then elaborates a set of considerations for avoiding legal/non-legal complicity.  Id., at 77-81.  One of the objectives is to make a stronger case for ordinary course due diligence.  "In short, the relationship between complicity and due diligence is clear and compelling: companies can avoid complicity by employing the due diligence processes described above - which, as noted, apply not only to their own activities but also to the relationships connected with them."  Id., at 81.  

It is not clear, though, that the amalgamation of legal and social standards for complicity is useful, beyond their relevance for advancing the quite sensible position favoring adoption  of a broader set of internal monitoring procedures as an integral part of corporate operations.  The pillar structure of the framework lends itself better to a clear separation between legal standards for complicity and social standards (as similar as they may be in effect), and for the development of linkages between legal and social complicity standards.  This would serve to strengthen the core concepts that distinguish the state duty to protect--itself essentially bound by law and legal conceptions--from the autonomous and independent corporate responsibility to respect.  The latter is grounded in social norm  that elaborates a broader set of standards than those recognized under the more limiting legal framework that  defines the state duty to protect.  One gets a sense of this difference in the way in which standards such as those in the OECD's Risk Awareness Tools are framed, for example the principles around the duty to speak out.  Risk Awareness Tools, Section 6..  There is little reason to tether  social standards for complicity to legal standards.  A related but distinct development might better serve the overall goals of the three pillar project.   This suggests both a potential conceptual ambiguity in the elaboration of a complicity concept within the three pillar framework, and the utility of complicity in strengthening the three pillar framework.

More importantly, though, complicity analysis is useful beyond its substantive implications.  It also highlights the links between the state duty to protect, the corporate responsibility to respect and the remedial pillar.    See, Larry Catá Backer, Business and Human Rights Part II--Thoughts on the Corporate Responsibility to Respect Human Rights, Law at the End of the Day, Feb. 2, 2010.  Complicity invokes issues of state duty to protect, the autonomous responsibility of the corporate obligation to respect, and the equally autonomous provision of remedies for complicity violations by entity and state. Indeed, complicity issues have become central to the private investing practices of governmental entities, particularly the Norwegian sovereign wealth fund.  See, e.g., Chesterman, Simon, The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations - The Case of Norway's Sovereign Wealth Fund. American University International Law Review, Vol. 23, pp. 577-615, 2008; NYU Law School, Public Law Research Paper No. 08-25.  Scope issues, then, implicate not merely context (the easy case) but also linkages, especially within the contextual linkage of complicity.