I have suggested the way the the Guiding Principles for Business and Human Rights, since its endorsement in 2011, has increasingly emphasized the first pillar obligations--the state duty to respect human rights. More troubling, perhaps, is the way in which that state duty to protect human rights appears to have become the foundation through which both the second pillar corporate responsibility to respect human rights and the remedial pillar are both constrained and understood. (e.g., The 2nd U.N. Forum on Busness and Human Rights Live Streaming and Thoughts on Trends in Managing Business Behaviors,
Dec. 3, 2013). As part of this institutional focus on the state in the Guiding
Principles, the Working Group
has devoted substantial resources to the
toolkit development potential of so-called National Action Plans
These are meant to provide the framework for state intervention in the
business of human rights for economic activity. And to that extent they
may well be useful devices. Yet the focus on National Action Plans also suggests possible divergence from the overall objectives and structure of the Guiding Principles. The first touches on the way that Naitonla Action Plans may evidence a turn toward the creation of a hierarchy among the three pillars of the Guiding Principles. The Second touches on the short sighted efforts to legitimate and expand the extraterritorial power of state.
From the first, the Working Group
has emphasized the importance of the state duty to protect the
the fountainhead of regulatory coherence (within itself a system that
has traditionally produced as much incoherence through national
deviation as coherence through the adoption of chapeau standards
non-uniformly enforced or even understood) and has sought to understand the scope and nature fo the corporate responsibility to respect human rights and the remedial obligation through the lens of the state duty. At the same time, the Working Group has increasingly committed itself to the project of deepening state involvement in the regulation of the human rights detrimental
effects of business activity both within their borders and
extraterritorially, to the extent of their power.
Indeed, the focus of this consultation, aimed at subsuming the corporate responsibility to respect human rights within the aegis of the state duty to protect might. Taken to its limit, this trend will substantially transform the Guiding Principles from a framework of collaboration among distinct autonomous governance organizations--states, enterprises and international organizations--into a 20th century framework of state grounded legal silos. That will, in turn, return us to the framework of regulatory incoherence and governance gaps that prompted John Ruggie's work in the first place, the fruit of which was the Guiding Principles. The corporate responsibility to respect is both transnational in character, that is it derives its principles from sources beyond the state, nor can it be limited by the peculiarities of the expression of state power.It is a critical feature in a global dialogue that was meant to foster change both from the top down and the bottom up, sensitive to the preferences and customs of all critical stakeholders. The partitioning
of the corporate respect for human rights into little corporate culture nationalities effectively writes the second pillar out of the Guiding Principles and turns it merely to an expression of technique
--human rights due diligence in the service of the state and not in the service of the individuals who suffer human rights deprivations.
Secondly, to the extent National Action Plans are seen to promote extraterritoriality (now quite fashionable among certain influential sectors of internationalist elites), even under the guise of furthering the international soft law agenda of devices like the Guiding Principles, they will exacerbate the move toward institutionalizing the hierarchy of states, reintroduce the old notion of the "Family of civilized States" and thus a trend toward the revival of neo-colonialism and hegemony now softened by its purported basis in internationalization. (e.g., Backer, Larry Catá, Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order
University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1,
2006) But more troubling might be the way that the National Action Plans might well serve (no doubt inadvertently) to displace the corporate responsibility to respect human rights, and to subordinate it to, and restrict its expression through, the state duty to protect human rights.