In Human Rights Council Resolution 17/4 (June 7, 2011) the Human Rights Council endorsed the Guiding Principles on Business and Human Rights for implementing the "Protect, Respect, and Remedy" Framework (A/HRC/17/31) presented by John Ruggie, the former Special Representative of the Secretary General. Paragraph 11 of Resolution 17/4 requests the Secretary General to prepare a report on how the United Nations system can contribute to the advancement of the business and human rights agenda and the dissemination and implementation of the Guiding Principles.
Institute for Human Rights and Business, March 31, 2011).
To that end, the The U.N. Secretary General recently distributed a call for input and suggestions to organizations and individuals engaged in activities related to human rights. The following is the statement I delivered in response to that request.
March 23, 2012
Office of the United Nations High
Commissioner for Human Rights
c/o Lene Wendland
Research and Right to Development Division
OHCHR CH 1211
Geneva 10
Switzerland
Subject: Business
and Human Rights and the UN System—Human Rights Council Resolution 17/4
Dear Ms. Wendland:
I
appreciate the opportunity to provide input and suggestions to the United
Nations-Secretary General relating to Human Rights Council Resolution 17/4
concerning human rights and transnational corporations and other business
enterprises, Paragraph 11 of which requested the Secretary General to prepare a
report on the ways in which the United Nations system, as a whole, can
contribute to the advancement of the business and human rights agenda and the
dissemination and implementation of the Guiding Principles, with particular
emphasis on capacity building of relevant actors. What follows is a brief outline of a more
comprehensive program of institutionalization, norm development and
participation that promotes an organic naturalization of the normative
framework of the Guiding Principles under the management of the United Nations
system. I write solely in my individual capacity but based on the experience
acquired from my own research and my experiences working with SRSG Ruggie and
as a representative of faculty governance organizations at a large state
assisted university where I now serve as chair of its University Faculty
Senate.
Innovation
is never perfect—either in conception or implementation. Reality always serves
as the ultimate limiting principle for both theory and practice. All innovative
movements have confronted this reality. Those that have remained un-bending
have failed; those that have sought to preserve what they could to advance
their project in the face of the constraints that reality imposes tend to
survive, and sometimes flourish. The Special Representative to the Secretary
General John Ruggie’s voyage of principled pragmatism has served the “Protect,
Respect and Remedy” framework well; its insights are not yet fully represented
in the Guiding Principles. Articulated
as a set of sometimes-dense doctrines, the perhaps necessary imprecision of the
Guiding Principles leaves much open to interpretation in a context in which its
application can lead to incoherence. The emphasis on state organs and a more
narrow framework for the domestication of international norms within states
reminds us that the project of business and human rights is still in its early
and formative stages. (See Larry Catá
Backer, “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. Available: http://ssrn.com/abstract=1922953). Yet, more significantly, the Guiding
Principles also mark the extraordinary success of the project itself.
This
great success is no small matter—despite the initial pessimism of all
stakeholders—states, corporations, non-governmental and public
international—the SRSG was able to craft a coherent system of governance and
obtain official endorsement of states acting through an international
organization not known for its unity of vision or purpose. That alone will be
the object of study by political scientists, institutional theorists and
sociologists for some time to come. Whatever its initial shortcomings, the
U.N.’s human rights project and its recent realization through the endorsement
of the Guiding Principles has opened a number of significant pathways to
development of law and governance frameworks. It accepts that there are formal
systems of governance beyond those of the state. It begins to make a pragmatic
case for the interlacing of international law and domestic legal orders. It recognizes the governance aspects of
social norm systems and seeks a method of institutionalizing that role. It broadens the scope of remediation in a
systematic way and attempts to harmonize the principles that serve as markets of
legitimacy and accountability for each. The Guiding Principles manage this
within a overall framework that still grounds its operation in and through
states and which continues to treat corporations and other actors as dependent
on and subject to an exclusive (at least in the aggregate) control of states
through law in ways that even states now find troublesome. It is likely to play
a significant role in the development of governance frameworks in this area for
some time to time.
But
aspiration does little to contribute to implementation. A governance
architecture is required for consolidating the work of the Special
Representative John Ruggie. The United Nations system might well be the most
appropriate place within which that architecture might be realized. A support
network is also required to routinize the normative elements of the Guiding
Principles so that they can move from expressions of ideas to ordinary habits of behavior. But, as the
SRSG made clear through years of consultations and reports, the Guiding
Principles will likely fail if it, like the institutional architecture built to
promote it, remains locked within a single governance community. To develop an
advancement strategy tied solely to the institutional universe of the United
Nations system will do little, ultimately, to move forward the business and
human rights agenda and the dissemination and implementation of the Guiding
Principles in an international universe in which governance authority is now
shared among institutions.
The
key to the success of the project undertaken, then, will require a double strategy: first, institutionalization of the Guiding
Principles within the United Nations system, and second, promoting the embedding of the Guiding principles
within related governance organizations and key stakeholders. The first strategy is aimed to promote the
integrity of the Guiding Principles and to provide a site for transparency and
accountability. The second is to
naturalize the normative elements of the Guiding Principles within the
governance operations of key international organizations, civil society
elements and the large group of business related stakeholders to which the
Guiding Principles are directed.
As
such, what is needed going forward to meet the objectives of advancing “the
business and human rights agenda and the dissemination and implementation of
the Guiding Principles, with particular emphasis on capacity building of
relevant actors” is the implementation of a five part strategy:
1.
Enforce the Guiding Principles within the United Nations System,
ensure that civil society organs that work with the United Nations adopt the
Guiding Principles and require businesses that deal with the United Nations
(suppliers of goods or services and otherwise) to adopt and apply the Guiding
Principles as a condition of doing business with the United Nations.
2. Adopt a technical institutional
architecture as a nexus point for the promotion of the Guiding Principles,
the maintenance of information, as a site for technical assistance, and as a
resource to governments, businesses and civil society, and as the principal
institutional advocate of the Guiding Principles;
3. Create centralized bodies and
mechanisms for the systematic development of the Guiding Principles,
its coherent and uniform interpretation and application, and for further
development.
4.
Build in a consultation mechanism to promote a system of sustained and
periodic consultation with stakeholders, including states,
international organizations, businesses and civil society; and
5. Create a mechanism for inter-governmental
cooperation and policy coherence among international institutions whose
work touches on Guiding Principles and among the human rights organs of states.
Each of these
is discussed in turn.
(Pix (c) Larry Catá Backer 2012))
Enforce the Norms
within the United Nations System: The Guiding Principles ought to be made
applicable to all organs of the United Nations system. All organs of the United
Nations must ensure that they follow the Guiding Principles in their own
operations and that the Guiding Principles are followed to the extent
appropriate. The Secretary General should encourage all civil society
organizations that work with the United Nations to adopt the Guiding Principles
and apply them to their own operations. It should require that all businesses
with which the United Nations deals adopt and embrace the Guiding Principles as
a condition of doing business with them.
As
most states have discovered, the ability of a government to enforce normative
standards, and certainly to change approaches to behavior, is less likely where
the standards apply to actors other than the government seeking their
enforcement. Where the government
community that seeks to have important standards of behavior or rules of conduct
and operation embraced by others does not apply these standards to its own
operation or conduct, there is likely to be a sense that the standards are not
worth applying. That application must be deemed as important an internal
governance matter as it is a matter for those enterprises with whom the United
Nations deals.
The
United Nations system itself must serve as a model for the adoption and
application of the Guiding Principles.
It is true that the United Nations is not an economic enterprise and it
is also true that the human rights due diligence system will have limited
application, but the invocation of the state duty, applied to the organs of the
United Nations itself will carry strong symbolic and perhaps practical effects. More importantly, adoption of the Guiding
Principles throughout the United Nations system will itself move all of its
organizations to seek to apply the Guiding Principles where they exercise
governance roles. That, in itself, will
substantially advance the business and human rights agenda by more clearly
tying all the work of United Nations organs to human rights principles. Equally important would be the determination
that United Nations entities, in everything from procurement activities to
partnerships with enterprises and civil society, would expect that each of
these organizations would also comply with the Guiding Principles.
Technical
institutional architecture: Whether
or not the Secretary General adopts the Guiding Principles as a central element
of the operations of the organs of the United Nations, the SG should consider
developing a secretariat around which the technical work of the Guiding
Principles might be organized. The
Secretariat might be established as a freestanding organization under the umbrella
of the High Commissioner for Human Rights and might draw on personnel from
related agencies that would devote some or all of their time to the work of the
Secretariat. Alternatively, a cooperative arrangement might be developed
between the Office of the High Commissioner and the U.N. Global Compact. Joining
the United Nations Development Programme (and the Millennium Development Goals)
would also deepen the coordination among entities in the U.N. system to apply
the Guiding Principles. Working with the U.N. Conference on Trade and
Development (UNCTAD) might provide a platform both for intergovernmental
consultation and also for the undertaking of research, policy analysis and data
collection at the heart of the technical and advisory objectives of any business
and human rights secretariat. Any
institutional organ created might be funded by states that are committed to the
advancement of the global human rights agenda as represented by the Guiding
Principles with which the Secretariat might cooperate in meaningful ways.
There
are a number of important goals that can be satisfied through the creation of a
centralized institutional technical architecture around the Guiding Principles.
These can be understood as falling within three categories: data generation and assessment; second, policy development; and third, technical assistance. The use and value
of data generation and assessment requires little explanation. With a new framework, like that represented
by the Guiding Principles, that function becomes critical to the advancement of
the Principles and the maturation of structures through which it can foster
appropriate behavior habits. Equally
important, however are the availability of a Secretariat as a place where
policy can be developed as the Guiding Principles framework becomes more deeply
established and as a source of technical assistance. Policy capacity is essential for promoting
the ongoing development of the Guiding Principles in the face of changes in
practices and as new issues arise. It serves as the foundation for the ongoing
work of the High Commissioner and the Human Rights Council in further
developing the Guiding Principles themselves as new situations arise.
Technical
assistance is crucial for the appropriate and efficient adoption of the Guiding
Principles by business and related entities.
Indeed, the importance of technical assistance cannot be overemphasized,
especially in its role in capacity
building for businesses and stakeholder groups. Perhaps following the model
of the World Bank, technical assistance can be coupled with the very important
task of capacity building among both businesses and civil society elements
(including relevant stakeholders). Key elements of technical assistance
programs for businesses could include: (1) capacity building programs through
training; (2) development of an “answer bank” for basic questions; (3) the
development of form or process banks for companies and others seeking
information about implementation of human rights due diligence; and (4) the
development of metrics for internal audit systems and impact analysis risk
assessment. Technical assistance, of
course, is equally important for other stakeholders—civil society and affected
populations who may be adversely impacted by business activity. For them capacity building would also include
training. But training would be focused
on issues of engagement and transparency, for both purposes of monitoring
compliance by business and for engagement in the activities of business with
human rights impacts. The form and process bank might be an important and
useful first product of any Secretariat to meet these fundamental goals.
This
effort would tie in the technical assistance work of the Secretariat with
another important function—transparency.
(See Larry Catá Backer, “Transparency and Business in International Law
— Governance between Norm and Technique” (March 17, 2012). Available at http://ssrn.com/abstract=2025503). For
the Guiding Principles to develop, it requires a commitment to transparency. Transparency
is understood here both in its informational aspects, discussed above, and also
in its participation aspects. It is in
the latter role that transparency lends the great connection between business
and stakeholder that can be enhanced through the mediating role of the United
Nations. (See, Larry Catá Backer, “From Moral Obligation to International Law:
Disclosure Systems, Markets and the Regulation of Multinational Corporations.” Georgetown Journal of International Law,
Vol. 39(4):591-653 (2008). Available: http://ssrn.com/abstract=1112882).
A critical first step to meet that goal would be the production and maintenance
of a data bank containing the human rights due diligence reports of enterprises
committed to the Guiding Principles. The
United Nations Global Compact could take a leading role in the maintenance and
dissemination of this data bank. It
might also serve as the nexus point for bringing the operationalization element
represented by the Guiding Principles, with the normative framework of the
Global Compact itself.
Interpretation
and Policy Institutions and Mechanism:
Technical assistance in the face of rule or policy incoherence is doomed
to failure. John Ruggie’s reports to the Human Rights Council in 2007, 2008 and
2009 made the case for this proposition in the strongest possible terms. As a necessary element in the role of the
United Nations system in furthering the Guiding Principles, technical
assistance must be served by an institutional architecture that organizes
further rulemaking, provides uniform interpretation of the Guiding Principles,
and serves as a site for dispute resolution about the meaning or application of
the Guiding Principles. Such roles can be initiated modestly—through
development of a capacity for rulemaking, interpretation and dispute resolution
within the United Nations system. This
would tie in usefully should the United Nations adopt the Guiding Principles
internally (my first suggestion). It would be more useful still if such a set
of mechanisms could be instituted through the United Nations to deal with all
matters arising from the Guiding Principles.
The
establishment of a mechanism for the advancement of policy and the
interpretation of the Guiding Principles is key to the preservation of the
coherence of the normative values of the Guiding Principles and its systems of
implementation, principally in this case, the architecture of human rights due
diligence. The Guiding Principles will best serve if interpretation of its
principles can be harmonized. This is, of course, one of the most important
lessons to be gained from the experience of the European Union, the
establishment of which was crucially dependent on the early determination to
centralize interpretation of the obligations of its Member States through a
single institutional organ. Equally
important, because the Guiding Principles cannot be understood as a static set
of norms, the development of an institutional capacity for anticipating and
promoting appropriate elaboration of human rights standards in the future is
crucial to the preservation of the Guiding Principles as a contemporaneously
relevant set of behavior ordering principles. The endorsement of standards, of
course, is an essential task of the U.N.’s deliberative organs, but the
development of standards themselves is usefully undertaken by institutions of
experts and important stakeholders maintained for that purpose.
Harmonization
and policy modification that may sometimes follow is usually undertaken under
two circumstances; first instrumentally at the instance of the organ charged
with the harmonization and development tasks and secondly in the course of
resolving disputes among actors faced with the task of implementing the Guiding
Principles. The harmonization objective through the United Nations may not
succeed in the absence of a dispute resolution organ of some kind. It might be useful, for example to consider an
interpretive harmonizing organ taking as inspiration the organization and role
of the European Court of Justice. The
Secretary General, for example, might appoint a working group of experts to hear
questions about the interpretation of the Guiding Principles in particular
situations and give those interpretations some authoritative weight. Alternatively, inspiration might derive from
the Organization for Economic Development and Cooperation (OECD) and its
National Contact Point system, about the later of which I have written. (See Larry Catá Backer, “Rights And Accountability In Development
(Raid) V Das Air (21
July 2008) And Global Witness V Afrimex (28 August 2008);
Small Steps Toward an Autonomous Transnational Legal System for the Regulation
of Multinational Corporations,” Melbourne
Journal Of International Law 10(1):258-307 (2009). Available http://ssrn.com/abstract=1427883).
Additional models might also inspire in different contexts: for example where non-governmental groups
dispute the application of the Guiding Principles, arbitration or mediation
operated through the Office of the High Commissioner might be establishment on
an ICSID model.
Consultation Mechanisms. SRSG
Ruggie demonstrated decisively the importance of consultation in developing the
information and cooperation of critical stakeholders in developing a complex framework
of public and private standards. That
model ought to be incorporated into the operationalization of the Guiding
Principles going forward on an institutional basis. Perhaps under the auspices of the High
Commissioner for Human Rights or of the U.N. Global Compact, consultations
ought to be instituted on a regular and periodic basis. These consultations, modeled on those of SRSG
Ruggie in the development of the Guiding Principles might include separate
track consultations with civil society, business and states. They might
usefully be further divided between technical consultations at the operations
level and policy consultations at the leadership level. Less frequently multi-stakeholder conferences
might be arranged. These would serve to
deepen commitment among critical actors and to produce information necessary to
the efficient and sensitive development of the Guiding Principles. An
additional important element of this process would be to deepen the
relationship between the United Nations system and the human rights commission
of states. Such a connection, directed
from within the United Nations system, would do much to strengthen the
institutional structures to aid states in meeting the Guiding Principles norms
under the “State Duty to Protect” prong of the Guiding Principles.
Stakeholder consultation might also
be considered a vital element in the appropriate operationalization of the
Guiding Principles both within the architecture of the United Nations system
and between that system and the actors who are meant to apply the Guiding
Principles in their activities. It provides an efficient method for developing
data and information about the operationalization of the Guiding Principles. It points to issues that merit further
development. It provides a way of
uncovering areas where technical assistance is necessary. It suggests agendas for U.N. agencies whose
portfolios include human rights. It
deepens commitment to the Guiding Principles. It provides a method of
developing networks that would strengthen a harmonization of understandings of
the Guiding Principles and patterns of compliance. It
reduces conflict by fostering communication, the early identification of
issues and their resolution. Consultation mechanisms might well be funded in
part through contributions by states through their human rights commissions, by
businesses and their associations, and by public actors, for example, the
European and African Union, the Organization of American States or Association
of Southeast Asian Nations.
Create a mechanism for
inter-governmental cooperation and policy coherence among international
institutions: Beyond
consultation, and focusing more closely on the heart of the object of this
response, inter-agency cooperation must be fostered to more thoroughly embed
the Guiding Principles and the United Nation’s human rights agenda. The need
for inter-agency cooperation, of course, is hardly novel or worth listing
without more. That “more” would take its
inspiration from the recent efforts of the OECD, the Global Reporting
Initiative (GRI) and the International
Standardization Organization (ISO) to include first an informal element of
information sharing and contacts for informal harmonization and transparency;
and second, the creation of more formal cooperation arrangements that would
provide for the incorporation of the Guiding Principles standards within the
operating framework of cooperating agencies. The most important example of the
second element of cooperation was recently realized with the adoption by the
OECD of the Guiding Principles as part of the principles of the OECD Guidelines
for Multinational Enterprises (2011).
Formal and informal systems of
cooperation require two basic elements.
First they require institutional centers from which cooperation can be
managed. Second, they require the
identification of organizations with which cooperation is appropriate. From these, it is possible to develop a
commitment to cooperation and transparency that institutionalizes systems of
information and expertise sharing. For
the first, cooperation requires an institutionalization of governance for the
Guiding Principles. That is a subject
discussed above. In the absence of the
development of some sort of institutional base, the ability of the Secretary
General or other appropriate actors to direct in an efficient and systematic
way, the human rights agenda of the United Nations will remain limited and
fractured.
For the second, a short preliminary
list of cooperation centers can be identified. Several of them have already
been identified: the OECD, the U.N.
Global Compact, and the state human rights commission. Beyond the organizations and entities discussed
above, they might include the following organizations: (1) the World Bank (WB); (2) the
International Monetary Fund (IMF); (3) the European Union (EU); (4) Regional
Human Rights Organizations (RHRO); (5) the World Trade Organization.
The World Bank has been at the forefront
of a number of initiatives that touch on business and human rights
concerns. These include efforts against
corruption, technical advice on poverty eradication and the development of
robust economic systems. These efforts lend themselves to the insights and
normative behavior frameworks of the Guiding Principles. These might be usefully incorporated in the
technical and advisory work of the organs of the World Bank. The Guiding Principles might also be
incorporated into the lending conditions of the Bank and its related
organs. Moreover, World Bank staff
could provide a substantial source of technical advice and information.
Similarly, the work of the IMF lends
itself to cooperative arrangements.
Initial cooperation might be effectuated in the context of IMF technical
assistance (http://www.imf.org/external/about/techasst.htm) and monitoring (http://www.imf.org/external/about/econsurv.htm).
In that respect the IMF’s resources
might serve as a means of extending the ability to gather and analyze data
relating to the business and human rights agenda generally and the
implementation of the Guiding Principles specifically. More specifically,
substantial cooperation might be possible by coordinating the work of the High
Commissioner with respect to business and human rights and IMF’s corporate
responsibility initiatives (http://www.imf.org/external/about/crs.htm)
and the IMF’s Civic Programs (http://www.imf.org/external/np/cpac/index.htm).
These are new approaches but worthy of consideration. Equally important would
be efforts to incorporate the Guiding Principles into the IMF’s lending programs,
perhaps as part of its conditionality practices (http://www.imf.org/external/about/lending.htm).
The European Union has been a firm
friend to the U.N.’s business and human rights agendas. The EU could provide a source of support for
the secretariat related work that might be undertaken by a newly created
secretariat through the provisioning of funds and personnel. More importantly,
the EU is at the forefront of efforts to create governance structures for the
management of the behaviors of multinational enterprises, especially in the
context of sustainable activity. Those
efforts could be coordinated. E.U. Commission Vice-President Tajani,
Commissioner for Enterprise and Industry, strongly welcomed the approval of the Guiding
Principles. The EU and its Member States
have begun to map the implications of the Guiding Principles, they have led the
way in articulating considerations of social impacts in public procurement, and
initiated consultation on issues of transparency in non-financial
reporting. The EU has indicated a
willingness to cooperate more formally.
They might be especially useful in the process of deepening the Guiding
Principles through further clarification and interpretation.
Regional human rights organizations
have now advanced to the first rank of institutions that protect many aspects
of individual human rights. They would
appear to be a natural institution for cooperation, especially in the ways in
which the Guiding Principles could be used to enhance the jurisprudence of
these institutions within the structures of their respective normative conduct
and rights systems.
The WTO cooperation can center on
its involvement in the Millennium Development Goals. Goal No. 8, building a global partnership for
development is already mentioned as a significant priority for the
organization, as is Goal No. 1 (eradicate extreme poverty). In particular the
WTO’s aid for trade initiative (http://www.wto.org/english/thewto_e/coher_e/mdg_e/a4t_e.htm)
and efforts to increase access to
affordable medicine (http://www.wto.org/english/thewto_e/coher_e/mdg_e/medicine_e.htm)
might be useful places where cooperation can be initiated.
There are,
certainly, additional organizations with respect to which cooperation would be
useful. Some of them might be private,
and others national. The initial burden,
however, would be to identify that core group of institutions most closely tied
to the U.N.’s human rights agendas and the Guiding Principles and start there,
gradually increasingly the range of institutional cooperation as appropriate in
the circumstances. .
* * * * * *
I have presented an ambitious plan
“on the ways in which the United Nations system, as a whole can contribute to
the advancement of the business and human rights agenda and the dissemination
and implementation of the Guiding Principles, with particular emphasis on
capacity building of relevant actors.” Adoption of any portion of this five
part plan would move the United Nation’s human rights agenda, especially as
memorialized in the Guiding Principles, forward in significant ways. Working toward all objectives might help move
the United Nations forward more aggressively in what is clearly a global
movement now to reimagine the corporation as it is presented to stakeholders
and operates for its shareholders. (See, Larry Catá Backer, “Multinational
Corporations, Transnational Law: The United Nation's Norms on the
Responsibilities of Transnational Corporations as Harbinger of Corporate
Responsibility in International Law.” Columbia
Human Rights Law Review, Vol. 37(2): 287-389 (2006). Available at http://ssrn.com/abstract=695641).
Significant institutional engagement in that development will serve as the most
important effort by the United Nations to advance its business and human rights
agenda.
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