Business and Human Rights Part XXIV--On the Relationship Between the State Duty to Protect and 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 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 XXIV: On the Relationship Between the State Duty to Protect and the Corporate Responsibility to Respect Human Rights.

The SRSG has emphasized the horizontak relationship between the three pillar framework.  The state duty to protect huamn rights, the corporate responsibility to respect human rights and the obligation of both to provide remedies, are viewed as co-equal and autonomous obligations, differently expressed but equally applicable.  One wonders, however, whether the international organizations under which the SRSG's mandate is realized share that view entirely. A careful review of the Human Rights Council's "welcoming" of the Three Pillar framework in June 2008, suggests that there may not yet be consensus on this issue within the international community that is supporting the SRSG's work. See, HUMAN RIGHTS COUNCIL, Eighth session, Agenda item 1, Organizational and procedural matters, A/HRC/8/52, 1 September 2008; 8/7. Mandate of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises June 18, 2008, at 30-32 (adopted without a vote).


Consider in this respect what might be the Council's understanding of the hierarchical implications of the three pillar standard:

Stressing that the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lie with the State,


Emphasizing that transnational corporations and other business enterprises have a responsibility to respect human rights,


Recognizing that proper regulation, including through national legislation, of transnational corporations and other business enterprises, and their responsible operation can contribute to the promotion, protection and fulfilment of and respect for human rights and assist in channelling the benefits of business towards contributing to the enjoyment of human rights and fundamental freedoms,


Concerned that weak national legislation and implementation cannot effectively mitigate the negative impact of globalization on vulnerable economies, fully realize the benefits of globalization or derive maximally the benefits of activities of transnational corporations and other business enterprises and that therefore efforts to bridge governance gaps at the national, regional and international levels are necessary,

 HUMAN RIGHTS COUNCIL, Eighth session, Agenda item 1, Organizational and procedural matters, A/HRC/8/52, 1 September 2008; 8/7. Mandate of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises June 18, 2008, at 31.

The suggestion of hierarchy is clear enough:  the state duty to protect is paramount.  International norms become operative only to the extent transposed into the law of domestic legal orders.  Harmonization of those domestic orders through an adoption of the same set of international norms will reduce the ability of multinational enterprises to "game" the system where they might exploit regulatory differences among jurisdictions through the ease by which they might move resources and operations as a consequence of globalization.   Corporate obligation to respect is consequential.  It serves principally as a safety net--when states fail in their obligations and as an emphasis of the obligation of all individuals to conform to law.  It is not clear, though, that thsi is what the SRSG had in mind.  It suggests a much smaller and more passive role for systems of autonomous regulation of corporations, and a less distinct role for corporations as sites of regulation beyond national interest driven domestic legislation.  It implies that polycentricity, at least a horizontally equal polycentricity, is unlikely to garner significant support.

Yet the conceptual foundations of the mandate as elaborated by the STSG has found a way to be true to the notions expressed above, while breaking new ground. Since the SRSG's 2006 Report he has been clear that “[t]he role of social norms and expectations can be particularly important where the capacity or willingness to enforce legal standards is lacking or absent altogether.” (Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises. Interim Report, 2006, ¶ 1, U.N. Doc. E/CN.4/2006/97 (2006), available , at 75). But the role of the state, and state based legal regimes remains “not only primary, but also critical.” Id., at ¶ 75 The role of the SRSG was principally evidence based. “As indicated at the outset, the SRSG takes his mandate to be primarily evidence based.” Id. at ¶ 81. The SRSG provides information necessary to afford states the opportunity to effectively and thoroughly employ their authority to impose legal requirements on states through their domestic law systems.

But insofar as it involves assessing difficult situations that are themselves in flux, it inevitably will also entail making normative judgments. In the SRSG’s case, the basis for those judgments might best be described as a principled form of pragmatism: an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people. Id.

For that purpose, an additional governance system—social, non-state based, and grounded in the nature of the relationships between corporations and their stakeholders, would be required.