Business and Human Rights Part XVI--Implementation: When International and National Norms Conflict

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 fo the consultation  framework. 

Part XVI: Human Rights Due Diligence--Implementation: When International and National Norms Conflict. IN PROGRESS

The test of implementation of new systems tend to cluster around the limiting case.  In polycentric systems, like that envisioned in the Three Pillar Protect/Respect/Remedy framework, that limiting  case occurs when international and national norms conflict.  The SRSG explains:

Companies sometimes face situations in which national law or local practice conflicts with international human rights principles.  National authorities generally require compliance with their laws; local communities may demand observance of traditional practices; while others may advocate adherence to international human rights standards, as might the company itself for reasons of principle and consistency.

There are places in which law (including United Nations or home state sanctions) prohibits companies from operating, or where the risk of becoming involved in international crimes is so great that companies should refrain from doing business there.  But the vast majority of cases do not fall into these categories, leaving companies left with the challenge of finding ways to honor the principles of international human rights standards without violating national law.

United Nations Special Representative of the Secretary-General on Business & Human Rights, Implementation, When International and National Laws Conflict.  

Companies already face this polycentric dilemma.  Under the OECD's Guidelines for Multinational Corporations,  companies that comply with national law of the jurisdiction in which they operate may still violate their international obligations as assessed by the state organs of the jurisdiction in which the corporation is licensed.  For  a discussion of a recent example, 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; 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.

Still, the SRSG is right--this limiting issue is likely the exception than the rule.  And that insight might well serve to provide a framework for dealing with this possibility on the ground.  I have offered one approach in Larry Catá Backer, When the Human Rights Obligations of Corporations Under National and International Standards Conflict: A Proposed Method for Analysis and Action, Law at the End of the Day, Jan. 23, 2010.

The SRSG offers additional alternatives:

Companies faced with this situation have taken different approaches:

• Some multinational companies left South Africa during Apartheid to avoid having to implement discriminatory practices, while others stayed and explicitly disobeyed segregation laws, challenging the government to enforce its own legislation.
• To honor the spirit of freedom of association where it is curtailed by the government, some companies have encouraged workers to form their own representative structures, facilitated elections of worker representatives, provided education on labor rights, and trained local management on how to respond constructively to worker grievances.
• Companies in the internet and telecommunications sector have responded to government challenges to free expression and privacy by working with human rights advocates to develop guidance on what steps companies should take when faced with such challenges.

 United Nations Special Representative of the Secretary-General on Business & Human Rights, Implementation, When International and National Laws Conflict.