Sunday, April 24, 2011

An Analysis of the U.N. Protect, Respect and Remedy Framework Guiding Principles, Part I--From Conception to Guiding Principle

On March 24, 2011 the United Nations released the "Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework" (the "GP" or "Guiding Principles"), the culmination of the work of the UN Special Representative on business & human rights, John Ruggie, and his team. 

 
(From Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers
Global Employment Law, March 29, 2011)


The consideration of the Guiding Principles marks a great milestone in the development of frameworks of governance of economic actors outside of the framework of national law.  This milestone can be understood as consisting of four great aspects.  The Guiding Principles represents the first successful efforts to provide a governance framework that can be adopted into the national legal orders of adhering states.  In this aspect it represents a critical effort in the harmonization of national law on the basis of global consensus.  At the same time, the Guiding Principles also represents the first successful effort to provide a framework for the development of customary and conventional international law.  In this aspect, the Guiding principles represent a critical effort in the harmonization of governance for an important transnational actor at the international level.  Additionally, the Guiding Principles for the first time acknowledges the existence and importance of non-governmental sources of governance rules.  The embrace of the importance of social norm systems of autonomous behavior rules for economic enterprises represents a critical acknowledgment of non-state actors as a source of norm making the authority of which is not dependent on states.  Lastly, the Guidelines for the first time link remedial obligations to the state duty to remedy and the corporate responsibility to respect human rights in a way that both preserves the autonomy of human rights and their connection to both law and social norms systems.    

Institute for Human Rights and Business, March 31, 2011).

The Guiding Principles were endorsed by the U.N. Human Rights Council in June, 2011.   “In an unprecedented step, the United Nations Human Rights Council has endorsed a new set of Guiding Principles for Business and Human Rights designed to provide -for the first time- a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.” United Nations Human Rights Council, News Release, New Guiding Principles on Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.

 The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior  for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval, all major stakeholders in the process will seek to mold the Guidelines to suit their interests.  See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. ").  In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010, the "DP" or "Draft Principles") to final form GP (March 2011) from a more neutral perspective.

For this purpose I have provided my own thoughts about that context and development that I will develop in a series of posting, divided along the conceptual lines within which the Guiding Principles were framed.

That analysis is divided into several parts:











This posting begins the analysis of the Guiding Principles by reviewing the development and concepts that were developed in the "Protect, Respect, and Remedy" framework that serves as the foundation to the Guiding Principles.

The full analysis will be published as Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business & Development Law Journal, 2011 and can be accessed here.


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Part I: From Conception to Principle—The Genesis of the "Protect-Respect-Remedy" Framework and the Drafting of the Guiding Principles



What was to become the General Principles was developed in the course of the work of the SRSG,[1] as he sought to apply a principle of “principled pragmatism” as a basis for thinking through the issue of governance across multiple state systems, an emerging international governance framework,[2] and systems of behavior developed by business in its activities across the world.[3] The SRSG’s mandate began with a series of studies that were designed to elicit information from stakeholders including the corporate sector,[4] along with a set of fact-finding missions.[5]  This section provides a brief review of the development of the Guiding Principles from initial conceptualization to its realization in late 2010 by considering the evolution and refinement of the SRSG’s mandate through the reports produced between 2006 and 2010.   

The initial report produced by the SRSG in 2006[6] was based on his preliminary research and conceptualization of the mandate.[7] The initial object was to distance the conceptual framework of the SRSG’s project from that which produced the failed Norms.[8]  The 2006 Report reaffirmed the classical organization of public power within which the law-state system held a primary position and with respect to which law, including international law, served as the most authoritative source of obligation.[9] But the Report also recognized the possibility of spaces for regulation under regimes other than law, where the state, and its domestic-international law system was not directly involved.[10]  But that space was not a public space; it was a space for private governance.[11]  The possibility of bifurcating governance, would permit the development of a further possibility, that of creating a governance regime in which the several components of governance could be harnessed for the same purpose in a coordinated way.  That possibility was to be explored on the basis of a distinct approach that the SRSG described as principled pragmatism.[12] Principled pragmatism served not just as a conceptual framework but also as a methodological roadmap for the elaboration of a framework amalgamating the legal systems of states, the governance systems of international organizations, and the social norm systems of corporations.[13] The Report also set out the information gathering tasks that were to serve as the foundation for the SRSG’s proposals.[14]

The 2007 Report addressed the principal elements of the initial mandate.[15] Its object was to provide a comprehensive mapping of customary practices, by states, international actors and corporations, to serve as a basis for extracting principle.  It elaborated a series of five clusters of standards, which were to serve as the basis of the Protect, Respect and Remedy framework.[16] The SRSG also began to consider issues of implementation, focusing initially on accountability and interpretive mechanisms.[17] The importance of the 2007 Report lies not merely in the mapping, but rather in the organization of that mapping.  That organization had strong substantive effects—creating the beginnings of a framework for conceptualizing the structure of global governance of corporate actions with human rights effects and  revealing the generally accepted content of this framework through the aggregate behavior rules of states, international bodies and corporations.
The 2008 Report[18] presented the first synthesis of the conceptualization and data gathering projects of the 2006 and 2007 Reports.  Its theme was the construction of  “a common framework of understanding, a foundation on which thinking and action can build in a cumulative fashion.”[19] It was the first real attempt to sketch out a multi-governance framework which would organize contributions by each of  the major systemic stakeholders—states, businesses and non-governmental stakeholders—to a system that coordinated and harmonized the governance orders of each of the stakeholders polycentric system of governance could each contribute to the objective of the mandate, the protection of human rights in economic intercourse, through their respective governance systems.[20]  The object of this approach was practical, derived from the recognition, emphasized in the fact finding of the prior reports.  As a result, multiple governance organs contributed to the maintenance of human rights.  The failure to coordinate between them, and to systematize their approach to human rights within each system, contributed significantly to the governance gaps that were at the heart of human rights governance failures.[21] The three-pillar Protect-Respect-Remedy framework was first introduced as a response to this need.[22]

The first three reports, then, can be understood as a forming a single unit that starts from a rejection of past efforts, reframing and data gathering and reconceptualization grounded in the data and an openness to coordinating polycentric systems within and beyond states and their legal orders.  With the renewal of the SRSG’s mandate by the Human Rights Council (HRC) in 2008,[23] the focus changed from conception to operationalization.[24] It stressed that “the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lie with the State.”[25] The 2009 Report[26] provided a first attempt at conceptualizing operationalization.[27] The emphasis was on the principle measures through which states and businesses operated as the starting point for framing issues of implementation.  States operated through law and policy, and so operationalization required an emphasis on policy coordination and the aggressive implementation of law and legal obligation that bound states.  Businesses operated through contract and the expectations of its principal stakeholders, regularized through markets. Operationalization required an emphasis on the mechanics through which these stakeholders could hold companies accountable.  The form chosen was the disclosure regimes already proven relatively effective in the regulation of securities markets ion many states.  

The 2010 Report[28] refined and developed the ideas of the 2009 Report. It considered the results of extensive consultations with governments, business and civil society actors and refined the framework in response. The legal basis of the state’s duty was made a more central element of the “Protect, Respect, and Remedy” framework.  The emphasis on the corporate responsibility was more discernably articulated through pushed its disclosure obligations.  The Report emphasized the state’s paramount role in dispute resolution.  Corporate activity was relegated to the realm of the grievance and the management of the exotic. The remedial framework emphasized the importance of the formal judicial mechanism, and its more informal mediation variant, though the latter was meant to be administered through the court system.   

The 2009 and 2010 Reports, then, also can be understood as a single unit.  With the 2010 Report, the structuring of the operationalization of the “Protect, Respect, and Remedy” framework is substantially elaborated.  If the emphasis of the first three reports was on the principle part of principled pragmatism, the focus of the last two was on the practical aspects. For that purpose, the SRSG considered the practical element of each of the framework’s pillars.  The state duty to respect was practically conceived as centering on the issue of law system coherence.  States act through law/regulation, and that law/regulation system could only advance human rights objectives if it was internally coherent.  Coherence also required an element of external coherence. External coherence is necessary to bind the distinct stakeholder systems together (state, international and corporate). The corporate responsibility was practically conceived through the device of human rights due diligence.  This focus suggested both the governance character of the device—human rights due diligence was the expression of the “law” of corporate behavior within its operational framework, and the means through which it could enforce its norms and connect them to the governance systems of states and international actors.  However, the SRSDG appeared to increasingly focused on the third pillar access to justice part of the framework as the place where the concepts of the framework could be practically realized on the ground.  But that reduction of the access to remedy pillar also tended to reframe it as a consequential element of the state duty to protect and the corporate responsibility to respect human rights.  

The “Protect, Respect, and Remedy” framework, then, is not just a reaction to the failed Norms project. Careful review of the SRSG’s reports suggests its character and nature is that of an institutionalized multi-level governance framework that the Protect-Respect-Remedy framework represents. But there is a potentially wide gulf between conceptualization and operationalization.  The “Protect, Respect and Remedy” framework as developed through the SRSG’s 2006-2010 reports builds a framework grounded in the actual practices of state and non-state, gathering together the aggregate of practices and governance presumptions that together effectively regulate the behavior of states and corporations in matters relating to human rights.  That exercise suggested both the important role of the state and the emerging role of corporations as governance centers.  Though corporations are neither states nor public actors, and thus can neither exercise the privileges of states nor be burdened by state obligations, they emerge as autonomous actors, even in more modest form.  The recognition of polycentric centers of governance, one law and state based and the other norm and non-state based marks the principle innovative insight of the “Protect, Respect and Remedy” framework project.  It would find its expression in the elaboration of governance-tinged principles structuring a system that operationalizes these frameworks. 

But that move from insight to governance system required the approval of a state system based international body.  In the march from framework to operational principles, one can discern a substantive movement away from the broadest possibilities of the framework to something perhaps more modest.  This is reflected in the SRSG’s last, 2011 Report.[29]  It served as an introduction to the draft Guiding Principles themselves, along with an Official Commentary.  It ‘s principal objective was to describe the transformation of “Protect, Respect, and Remedy” from framework—an articulation of theory—to principle, that is a workable set of guiding norms that might be applied by states, corporations and other stakeholders to implement the “Protect, Respect, and Remedy” framework. Refined and finalized, the Guiding Principles were submitted with a short summary that was still the work of the Special Representative from 2005.   But in that process of transforming framework to principle, the substance of the project was also changed.  In particular, the move toward greater horizontal parity between the state duty and the corporate responsibility to respect human rights was recast as a more conventionally hierarchical ordering in which state duty structures the human rights enterprise itself. Yet, the Guiding Principles mean to leave enough of an opening for the maintenance of a governance space in which corporate enterprises can develop and manage cultures of governance beyond the more narrowly tailored state and law-based structures of human rights norms. 
The UN's top expert on business and human rights, Harvard Professor John Ruggie. Thursday 17 April 2009, European Parliament, Brussels.

[1] The history of the development of the Protect, Respect and Remedy framework is discussed in greater detail in Larry Catá Backer, On the Evolution of the United Nations’ “Protect-Respect-Remedy” Project:  The State, the Corporation and Human Rights in a Global Governance Context, ,supra note 42.).
[2] The object was to identify “the directions in which achievable objectives may lie,” the legal focus of which was to be on the identification and harmonization of legal standards; “achieving greater clarity of, and possibly greater convergence among, emerging standards is a pressing need.”  John Ruggie, Remarks at the Business & Human Rights Seminar in Old Billingsgate, London (Dec. 8 2005), available at http://www.bhrseminar.org/John%20Ruggie%20Remarks.doc
          [3]. The starting point is “corporate liability for abuses that amount to violations of international criminal or humanitarian law.” John Ruggie, Remarks at the Business & Human Rights Seminar in Old Billingsgate, London (Dec. 8 2005), available at http://www.bhrseminar.org/John%20Ruggie%20Remarks.doc. The reasons for starting at this point is that it is a critically important issue on its own, where greater clarity is needed, while it may also shed light on the general strategy of legalizing corporate human rights obligations. Id.
          [4]. The SRSG planned to conduct surveys of business policies and practices with regard to human rights to learn how businesses conceive of human rights, what standards they reference, and their use of impact assessments. John Ruggie, Speech 4 (Oct. 2005). John G. Ruggie, Opening Remarks Wilton Park Conference on Business & Human Rights (Oct.10-12, 2005), p.4.  Available at http://www.business-humanrights.org/SpecialRepPortal/Home/Speechesinterviews/2005, click link for Opening Remarks.   Legal teams were also contacted to determine how European and American courts understand the concepts of complicity and sphere of influence in this context. Id.
          [5]. Id. at 5.
[6] John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97 (2006). Available http://www1.umn.edu/humanrts/business/RuggieReport2006.html.
          [7].    SRSG 2006 Report, supra note --, para. 3. Work on the mandate began by “conducting extensive consultations on the substance of the mandate as well as alternative ways to pursue it—with states, non-governmental organizations, international business associations and individual companies, international labor federations, U.N. and other international agencies, and legal experts.” Id.
[8]  2006 Report, supra, para. 61-69. The SRSG devoted some attention to this aspect of the opening task of the project.  “My major concern was the legal and conceptual foundations of the Norms, especially as expressed in the General Obligations section and the implications that flow from it. I judged them to be poorly conceived and, therefore, highly problematic in their potential effects.”  Opening Statement to United Nations Human Rights Council, Professor John G. Ruggie, Special Representative of the Secretary-General for Business and Human Rights, Geneva, 25 September 2006.
          [9].    The “premise that the objective of the mandate is to strengthen the promotion and protection of human rights in relation to transnational corporations and other business enterprises, but that governments bear principal responsibility for the vindication of those rights.” Id. para. 7.
[10] “The role of social norms and expectations can be particularly important where the capacity or willingness to enforce legal standards is lacking or absent altogether.” 2006 Report, supra, at par. 75.  But, as will become evident, the relationship between social norm systems and law-state systems, will remain the most difficult framing issue of the SRSG project.
[11] Early on the SRSG indicated a conceptual rejection of the notion of corporations as public actors. 
In the best case scenario, these formulations would do little more than keep lawyers in gainful employment for a generation to come. But in the worst case scenario, I fear, they would turn transnational corporations into more benign twenty-first century versions of East India companies, undermining the capacity of developing countries to generate independent and democratically controlled institutions capable of acting in the public interest – which to my mind is by far the most effective guarantor of human rights.
Opening Statement to United Nations Human Rights Council, Professor John G. Ruggie, Special Representative of the Secretary-General for Business and Human Rights, Geneva, 25 September 2006.
[12] 2006 Report, para. 70-81.
[13] The SRSG has described principled pragmatism:
The very first time I ever made any remarks on this mandate I was asked to describe my approach to this, and I called it principled pragmatism. It is driven by principle, the principle that we need to strengthen the human rights regime to better respond to corporate-related human rights challenges and respond more effectively to the needs of victims. But it is utterly pragmatic in how to get from here to there. The determinant for choosing alternative paths is which ones provide the best mix of effectiveness and feasibility. That is what we have been trying to do with this mandate since 2005.
John Ruggie, Business and Human Rights:  Achievements and Prospects, Transcript of an interview by Devin Stewart, Policy Innovations, October 28, 2008.  Available http://www.policyinnovations.org/ideas/briefings/data/000089. On the understanding of the implementation of SRSG’s principled pragmatism, see U.N. Commission for Human Rights, News and Events, Principled pragmatism – the way forward for business and human rights, Jun 7, 2010.  Available http://www.ohchr.org/EN/NewsEvents/Pages/PrincipledpragmatismBusinessHR.aspx. Principled pragmatism followed the framework through to the development of the Guiding Principles. “Like the Framework, the Guiding Principles draw on extensive research and pilot projects carried out in several industry sectors and countries, as well as several rounds of consultations with States, businesses, investors, affected groups and other civil society stakeholders. All told, the mandate will have conducted 47 international consultations from beginning to end.”  Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie, Guiding Principles for the Implementation of the United Nation’s ‘Protect, Respect and Remedy’ Framework, DRAFT, Nov., 2010,  ¶ 12
          [14]. Regional multi-stakeholder consultation took place in Johannesburg, Bangkok, and Bogotá. The workshops including legal experts took place in London, Oslo, Brussels, and New York. And the two Geneva-based consultations included work on the extractives and financial services industries. John Ruggie, London Speech (Feb. 2007). John G. Ruggie, Prepared Remarks at Clifford Chance, London (Feb.19 2007). Available at http://www.reports-and-materials.org/Ruggie-remarks-Clifford-Chance-19-Feb-2007.pdf 
          [15]. The Special Representative of the Secretary-General, Report of the Special Representative of the Secretary-General of the United Nations on Human Rights and Transnational Corporations and Other Business Enterprises: Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Act, para. 1, delivered to the Human Rights Council, U.N. Doc. A/HRC/4/35 (Feb. 9, 2007) [hereinafter 2007 Report].
          [16]. These clusters include: the state duty to protect against human rights abuses by third parties, potential corporate responsibility and accountability for international crimes, corporate responsibility for other human rights violations under international law, soft law mechanisms, and self-regulation.  John G. Ruggie, Remarks at International Chamber of Commerce Commission on Business in Society, Paris (April 27 2007), p.2. Available at http://www.reports-and-materials.org/Ruggie-speech-to-ICC-27-Apr-2007.pdf.  John Ruggie, Paris Speech, 2-4 (April 2007).
          [17]. Mr. Ruggie emphasized there is commonly an underdeveloped accountability mechanism within voluntary initiatives that affects the performance of the initiative in that companies cannot correct what they don’t know is wrong. John Ruggie, Washington Speech, 5 (May 2007). John G. Ruggie, Remarks at Annual Plenary, Voluntary Principles on Security & Human Rights, Washington D.C. (May 7, 2007), p.5. Available at http://www.reports-and-materials.org/Ruggie-remarks-Voluntary-Principles-plenary-7-May-2007.pdf.
[18] U.N. Special Representative of the Secretary General, Protect, Respect and Remedy:  A Framework for Business and Human Rights: Rep. of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Delivered to the Human Rights Council, U.N. Doc. A/HERC/8/5 (April 7, 2008) (by John Ruggie) (the “2008 Report”).
          [19]. John G. Ruggie, Remarks, Next Steps in Business and Human Rights, Royal Institute of International Affairs, Chatham House, London (May 22, 2008), p.4.  Available at http://www.reports-and-materials.org/Ruggie-speech-Chatham-House-22-May-2008.pdf John Ruggie, Speech, 4 (May 2008).
[20] 2008 Report, supra note 55.
          [21]. This gap is vast between “the scope and impact of economic forces and actors” on one side and “the capacity of societies to manage their adverse consequences” on the other. 2008 Report, supra note 55, para. 3.
          [22]. 2008 Report, supra note 55.
          [23]. U.N. Human Rights Council, Rep. of the Human Rights Council on its Eighth Session, § 8/7, U.N.Doc. A/HRC/8/52 (Sept. 1, 2008) (by Alejandro Artucio) ,available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/8session/A.HRC.8.52.doc.
          [24]. HRC directed the SRSG to operationalize the framework, by providing “‘practical recommendations’ and ‘concrete guidance’ to states, businesses and other social actors on its implementation.”  John G. Ruggie, Remarks for ICJ Access to Justice Workshops, Johannesburg, South Africa (Oct. 29-30 2009), p.1.  Available at http://www.reports-and-materials.org/Ruggie-remarks-ICJ-Access-to-Justice-workshop-Johannesburg-29-30-Oct-2009.pdfJohn Ruggie, S.A. Speech, 1 (Oct. 2009).
          [25]. Report of the Human Rights Council on its Eighth Session, supra note 24.
[26] U.N. Special Representative of the Secretary General, Business and Human Rights:  Towards Operationalizing the “Protect, Respect and Remedy” Framework: Rep. of the Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Delivered to the Human Rights Council, U.N. Doc. A/HRC/11/13 (April 22, 2009) (by John Ruggie)  (hereafter the “2009 Report”).
          [27]. It is pointed out quite clearly from the fourteen consultations that “[e]very stakeholder group, despite their other differences, has expressed the urgent need for a common framework of understanding, a foundation on which thinking and action can build in a cumulative fashion.” Report of the Human Rights Council on its Eighth Session, supra note 24. The Protect-Respect-Remedy framework resulted. SRSG 2008 Report, supra note 61. John Ruggie, Special Representative of the Secretary-General, Remarks at Chatham House (June 3, 2008).
[28] U.N. Special Representative of the Secretary General, Business and Human Rights: Further steps toward the operationalization of the “protect, respect and remedy” framework: Rep. of the Special Representative on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Delivered to the Human Rights Council, A/HRC/14/27 (April 2010)(by John Ruggie), available http://www.reports-and-materials.org/Ruggie-report-2010.pdf (hereafter the 2010 Report).
[29] Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, John Ruggie, Guiding Principles for the Implementation of the United Nation’s ‘Protect, Respect and Remedy’ Framework, DRAFT, Nov., 2010.
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