Business and Human Rights Part II--Thoughts on the Corporate Responsibility to Respect Human Rights

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 PressRelease, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raisedin 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 II:  Foundations--Links Between Framework Pillars.

The SRSG has described the links between pillars in the following way:

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, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. 
This online consultation is initially focused on the second pillar, the corporate responsibility to respect human rights.  But the pillars are not meant to exist in isolation from one another.
The U.N. "Protect, Respect, Remedy" framework is a response to the fact that the challenges of business and human rights are complex, and do not lend themselves to a singular solution but rather require all parts of society to do many things differently.  The framework is intended to reflect and promote the ongoing, dynamic interaction between business, governments, civil society, and other actors, and contribute to collective and cumulative progress.
Human rights due diligence is one illustration of how the three framework pillars interact:  As states and others require companies to undertake human rights due diligence, companies will in turn demand greater clarity about their responsibilities are, which will in turn put more pressure on states to define and fulfill their own duties.

United Nations Special Representative of the Secretary-General on business & human rights, Links Between the Framework Pillars, Online Consultation.  In this essay I focus on the possible tension between defining the core substance of each of the pillars (and privileging the autonomy of each pillar) on the one hand, and the need to produce an integrated system grounded in a strong set of interlocking relationships between the pillars on the other.  This is one of the more subtle issues within the "protect, respect, remedy" project. 

At the core of the tension are notions of hierarchy and subordination.  In a recently published essay  on the social utility of ancient legal pedagogy, the American academic Paul Carrington nicely described a common understanding of the presumptions at the center of the problem:

In varying degrees, hierarchy is indispensable to all human endeavors entailing oragnized collaboration.  Most that are worthwhile require it. . . .  Many of our most valued freedoms depend on restraints imposed by hierarchs of one kind or another, and there is, therefore, nothing inherently wrong with reproducing it in a classroom devoted to professional training.  Everything depends on the purpose of hierarchy and the fitness of its methods to that purpose.

Paul D. Carrington, "The Pedagogy of the Old Case Method:  A Tribute to 'Bull' Warren,"  Journal of Legla Education 59(3):457-466, 460 (February 2010).  That same understanding of the presumptions underling collective organization can produce in some the strongly held belief that hierarchy is an inevitable component in defining the relationships between states, corporations, and organs of dispute resolution within a complex systems of overlapping governance norms.  Order and rationality appear to compel a necessity to reorient horizontally constructed systems into a vertically oriented one.   The power of a modern form of Pandektenrecht can easily produce a move toward ordering based on the need to rank the authority of state-corporation-judge in a way that reduces both overlap.  More importantly, it would tend to eradicate the possibility of multiple sources of obligation--reducing governance to a single linear equation governed in accordance with a principle not unlike that of the Marxist Leninist notion of democratic centralism, a concept much practiced in fact though not in form in the West. 

Yet this striving for ordering is not what is at the heart of the three pillar framework.  The organization evokes to some extent the concepts underlying the very American ordering of authority within the federal government, than it does the singular ordering of a unified governance power.  Separation of powers notions underlie the construction of the core of each pillar, and checks and balances suggests the basis of the relations among them and their inter relation.  The pillar structure suggests a balancing of anti-tyranny (arbitrariness)  principles and efficiency principles.  States have a duty to protect, but that obligation cannot be used to subvert the obligation to take human rights into account because of the independent obligation of corporations to respect a broader understanding of human rights.  And  affected parties ought to be able to invoke the process of an autonomous dispute resolution system for effective remedies  against either for their respective lapses.  At the same time, the state duty to protect ought to produce a set of normative obligations that impact (and ease) the scope of a corporation's responsibility to respect, and both state and corporation ought to be intimately involved in the construction and maintenance of programs of dispute resolution that makes the obligations of both effective.   Put differently, a state's duty to protect both helps define and is defined by the corporation's responsibility to protect human rights.  Both state and corporation are intimately involved in the construction and maintenance of systems of dispute resolution.  States may make their courts available for the resolution of second pillar obligations (through arbitration provisions for example),

The recent decisions from the U.K. National Contact Point under the OECD Guidelines for Multinational Corporations provides an illustration of the separation and interconnection of the three pillar structure within a horizontal power framework.  See Initial Assessment by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Survival International and Vedanta Resources plc, March 27, 2009 and Final Statement by the UK National Contact Point for the OECD Guidelines for Multinational Enterprises: Complaint from Survival International against Vedanta Resources plc, 25 Sept. 2009.  The company  was obligated under the law of the Republic of India, as determined by its Supreme Court.  The Company was simultaneously bound by principles of international human rights law beyond the  Rules of the Indian domestic legal order.  But those independent obligations would have direct application on the company's activities in India.  The forum for resolution of the claims was maintained by a state but open to a broad range of affected parties and not connected to the courts of the state.   See, Larry Catá Backer, Part I: The OECD, Vedanta, and the Supreme Court of India—Polycentricity in Transnational Governance--The Issue of Standing, Law at the End of the Day, Nov. 1, 2009, and Larry Catá Backer, Part II: The OECD, Vedanta, & the Indian Supreme Court—Polycentricity, Transnational Corporate Governance and John Ruggie’s Protect/Respect Framework, Law at the End of the Day, Nov. 3, 2009.

Yet the result is not legal and policy incoherence--the idea that states do not coordinate the expression of their policy in law or governance. 

That leaves Mr. Ruggie in essentially new territory--one that rejects the monopoly of law systems within states and the conception of norm systems as non-binding.

The “protect, respect and remedy” framework lays the foundations for generating the necessary means to advance the business and human rights agenda. It spells out differentiated yet complementary roles and responsibilities for states and companies, and it includes the element of remedy for when things go wrong. It is systemic in character, meaning that the component parts are intended to support and reinforce one another, creating a dynamic process of cumulative progress—one that does not foreclose additional longer-term meaningful measures. [ Opening remarks by UN Special Representative John Ruggie, October 5, 2009, at 5].

What is described, effectively, is polycentric norm making among multiple systems of functionally differentiated governance communities that are required to interact with each other in complex and dynamic ways. Incompatible systems, law and norm--must effectively find a way to communicate and to harmonize values and relevance for their constituting communities, whether these are citizens, consumer, employees, or investors.

Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2009.