Friday, March 23, 2012
Statement of Larry Catá Backer: Input and Suggestions to the SG Report, Advancing the Business and Human Rights Agenda of the "Protect, Respect and Remedy" Guiding Principles
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
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.