(Pix (c) Larry Catá Backer 2015)
Professor James Stewart, of the Faculty of Law at the University of British Columbia, has produced a valuable on line symposium: Business and Human Rights: Next Steps. Its genesis is John Ruggie's closing remarks delivered at the close of the 3rd Forum on Business and Human Rights held in Geneva 2-3 December 2014. Professor Ruggie's remarks (and my brief comments) may be accessed HERE). A number of well respected academics doing excellent work in the field were asked to comment around Professor's Ruggie's remarks. And Professor Ruggie then provided a response to the commentaries.
The most interesting aspect of the on line symposium is its evidence of the ways in which academic opinions are hardening and several schools of "the future of law" are emerging. The right wing of this debate is populated with statists--those academics still deeply invested in the Westphalian system, and its elaboration of a system founded on the distinction between legitimate systems of command (law produced by or through states) and everything else. On the left are an assortment of anti-statist academics who tend to see either the decline or the irrelevance of the state (to differing degrees), and the emergence of transnational governance orders in which governance is tending toward centralization in some global order. In the middle are a small group of academic theorists who see value and resilience in the state but understand that the ideological pretensions of the Westphalian system have become unrealistic in a world now ordered through governance frameworks of a number of actors only some of which are states. Leftists and rightists tend to be ideologues; they see the world through the constricting structures of their belief systems. Centrists tend to be pragmatists, they seek truth from facts and build theories of systems and their structures around the realities of their practices.
John Ruggie's principled pragmatism tends to be a lightening rod for leftists and rightists, yet they offer a solid foundation for both the ideologies of left and right, and a basis for the realities of the emerging governance orders. And that is very much in evidence in the symposium, especially the discussions of polycentricity, and the role of treaty law in the emerging governance orders. To a great degree, the commentaries and Professor Ruggie's responses provide a great coming together of these quite distinct perspectives. The result is both illuminating, and to some extent suggestive of the difficulties of communication in a context where consensus views are still very much in transition.
This post includes the Symposium Concept Note authored by Professor Stewart, a list of the contributions (with links to their texts where available), and the text of Professor Ruggie's excellent responsive commentary: Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights.
John Ruggie's principled pragmatism tends to be a lightening rod for leftists and rightists, yet they offer a solid foundation for both the ideologies of left and right, and a basis for the realities of the emerging governance orders. And that is very much in evidence in the symposium, especially the discussions of polycentricity, and the role of treaty law in the emerging governance orders. To a great degree, the commentaries and Professor Ruggie's responses provide a great coming together of these quite distinct perspectives. The result is both illuminating, and to some extent suggestive of the difficulties of communication in a context where consensus views are still very much in transition.
This post includes the Symposium Concept Note authored by Professor Stewart, a list of the contributions (with links to their texts where available), and the text of Professor Ruggie's excellent responsive commentary: Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights.
Symposium: Business and Human Rights – Next Steps
January 27, 2015James G. Stewart
The Business and Human Rights movement finds itself at interesting crossroads.
On the one hand, there is a push to create a binding treaty governing business and human rights. In June last year, the United Nations Human Rights Council resolved to “to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights” (see here). Quite what the parameters of this treaty might be, how it would address standard issues like extraterritoriality, and its relationship with overlapping initiatives and fields is still unclear, but the idea itself is momentous.
At the same time, there are several new initiatives that seek to address “gross” corporate violations of human rights and/or international crimes. Also in June last year, the United Nations Human Rights Council unanimously approved a parallel project “[r]equest[ing] the United Nations High Commissioner for Human Rights to continue the work on domestic law remedies to address corporate involvement in gross human rights abuses, and to organize consultations with experts, States and other relevant stakeholders”. The OHCHR’s program of work for this project, to which I will contribute, is available here.
Similarly, the International Corporate Accountability Roundtable has launched a separate but related project on corporate crimes that are linked to human rights abuses (see here). Whereas the OHCHR’s project focuses on “gross” human rights violations, the ICAR variant is concerned with corporate crime, including but not limited to corporate responsibility for international crimes. This project, that I’m also privileged to participate in, involves an Independent Commission of Experts comprised of Canadian Supreme Court Justice Ian Binnie, Alex Whiting at Harvard, Anita Ramasastry at the University of Washington and others.
Finally, all of these new undertakings exist in the wake of Professor John Ruggie’s groundbreaking work developing the Guiding Principles on Business and Human Rights. As is well known, in 2005, Professor Ruggie was appointed UN Special Representative to the Secretary General on Business and Human Rights. After six years of work, the United Nations Human Rights Council approved his Guiding Principles on Business and Human Rights. Together with helpful commentaries, these have created the dominant paradigm for processing corporate engagement with human rights, setting the backdrop for all these newer initiatives and programs.
But what sense to make of these projects as an ensemble? In particular, how do they sit with core philosophical, political and historical ideas about international human rights law generally? On a wider level, how do they relate to one another, cognate fields like international criminal law, or social processes? In this symposium, I invite some of the very best scholars in the world to address these questions. I start by posting Professor Ruggie’s closing plenary remarks to United Nations Forum on Business & Human Rights in Geneva on December 4, 2014. Then, I ask a set of leading commentators, from different disciplinary backgrounds and with varied political aspirations, to react to his statement. Finally, Professor Ruggie offers a response to these commentators.
In my opinion, the result is a rich scholarly exchange on issues of major contemporary importance. JGS.
__________
LIFE IN THE GLOBAL PUBLIC DOMAIN:
RESPONSE TO COMMENTARIES ON THE UN GUIDING PRINCIPLES AND THE PROPOSED TREATY ON BUSINESS AND HUMAN RIGHTS
John G. Ruggie*
As the author of the United Nations Guiding Principles (GPs), I am honored that so distinguished a group of scholars has agreed to address them in this symposium. They do so not only from a policy perspective but also on deeper conceptual, legal and even philosophical grounds. I am particularly pleased that several of the commentators recognize that the heterodox nature of the GPs is necessitated by fundamental changes in the system of global governance and law-making of which human rights traditionalists may be unaware, tend to ignore or fail to understand.
Foundational Logics
Before responding to the commentaries, allow me to provide some of the intellectual and policy context within which the GPs were conceived, because their text alone cannot possibly convey it. In developing them over the course of a six year UN mandate, involving nearly fifty international consultations, extensive research and pilot projects, I had no interest in producing a piece of paper that would gather dust (or whatever electronic files gather) on library or scholars’ shelves. I strove to achieve what Professors Pauwelyn, Wessel and Wouters describe as “thick stakeholder consensus,” in contrast to the “thin state consent” that so often emerges from intergovernmental negotiations.1 And I then hoped to leverage that consensus into “endorsement” by the UN Human Rights Council, adding to the GPs’ authoritative stature, helping to achieve their uptake by other international standard setting bodies, and embedding them in the global regulatory ecosystem for business and human rights.
In the event, the Council’s reception was unprecedented: never before had it endorsed a normative text that governments did not negotiate themselves. International uptake of key elements was swift: by the Organization for Economic Cooperation and Development, the European Union, the International Organization of Standardization, the International Finance Corporation, the Human Rights Commission of the Association of Southeast Asian Nations, the General Assembly of the Organization of American States, and the African Union, as well as by scores of individual states and businesses—even by the American and International Bar Associations. Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.
But here comes a confession: these things involved politics. I state it openly in my book reflecting on the experience: “Accordingly, the GPs needed to be carefully calibrated: pushing the envelope, but not out of reach.”2 For some critics, this is the GP’s original sin, staining them beyond absolution. Thankfully, most observers see it as precisely what enabled long-standing aspiration to be admitted into the realm of actual policy and practice. And when I presented the GPs to the Human Rights Council I stated that its endorsement would not end all business and human rights challenges; but I added that it would mark the end of the beginning, because for the first time there would be a commonly agreed-upon foundation on which to build.
Now on to loftier matters. I next want to elaborate briefly on the idea of “polycentric governance” which the GPs embody because it is not always fully understood but is critical to how the GPs are structured and intended to operate. It rests on the observation that corporate conduct at the global level today is shaped by three distinct governance systems. The first is the traditional system of public law and governance, domestic and international. Important as it is, by itself it has been unable to do all the heavy lifting on this and many other global policy challenges, ranging from poverty eradication to combating climate change. Indeed, formal state- based multilateralism has become harder, not easier in the past decade or so.3 The second is a system of civil governance involving stakeholders affected by business enterprises and employing various social compliance mechanisms, such as advocacy campaigns, law suits and other forms of pressure, but also partnering with companies to induce positive change. The third is governance by business enterprises of their own affairs, which internalizes elements of the other two. In the case of multinational corporations, corporate governance so conceived is a distinct transnational law-making system in its own right—the private law of contracts, with direct consequences that can equal and in many cases surpass the scale and effectiveness of public governance in particular issue areas.4 Thus, the intellectual and policy challenge as I saw it was to try and formulate an authoritative basis whereby the three forms of governance systems become better aligned in relation to business and human rights, compensate for one another’s shortcomings and begin to play mutually reinforcing roles, out of which cumulative change can evolve over time. From the outset I rejected the voluntary/mandatory dichotomy that had paralyzed creative thinking and policymaking for too long, and insisted that “a smart mix of measures” would be required to get from here to there.
To foster alignment among the three governance systems, the GPs deliberately draw on the different discourses and rationales that reflect the different social roles they play in regulating corporate conduct. Thus, for states the emphasis is on the legal obligations they have under the international human rights regime to protect against human rights abuses by third parties, including business, as well as policy rationales that are consistent with, and supportive of, meeting those obligations. For businesses, beyond compliance with legal obligations, the GPs focus on the need to manage the risk of involvement in human rights abuses, which requires that companies act with due diligence to avoid infringing on the rights of others and address harm where it does occur. For affected individuals and communities, the GPs stipulate ways for their further empowerment to realize their rights to remedy where negative impacts occur. This multi- perspectivalism too has caused puzzlement if not consternation among traditionalists.
Drawing these foundational elements together, the GPs rest on three distinct but what I hoped would become dynamically interrelated pillars:
1. The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
2. An independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved;
3. Greater access by victims to effective remedy, judicial and non-judicial.
The thirty-one principles, each with commentary, elaborate the meaning of these foundational elements and their implications for law, policy, and practice. For its part, the Human Rights Council didn’t simply endorse a general idea; its endorsement covered the specific guidance that the GPs stipulate.
This approach may come more naturally to a political scientist than to human rights lawyers, ethical theorists or advocacy groups. In his commentary, John Tasioulas identifies several of what he calls “dogmas” that have limited past efforts to strengthen the international protection of human rights against corporate abuse: statism, legalism, a failure to recognize that human rights globally can only be secured through forms of polycentric governance, the growing fragmentation of international law and of the international political order—to which I would add the passionate belief on the part of some that certain human rights protections already “exist” in some ethereal sense, when the battle precisely is how to bring them into being and secure their effectiveness.5
Questions about Polycentric Governance
I now turn to the commentaries, taking them up thematically rather than by author. It comes as little surprise that the first concerns polycentric governance. To begin, Tasioulas raises what he calls a “vexing prospect” regarding the GPs corporate pillar. Let me explain. Under the GPs, companies have two types of requirements. One is to comply with all applicable laws. The other is to respect internationally recognized human rights in their own activities and through their business relationships, irrespective of what the host state does or does not do. Apart from legal requirements, the source of this independent corporate responsibility to respect is rooted in social norms and expectations. Tasioulas raises the concern that some societies are resigned to accepting lower expectations than others; he may well be right but we don’t need to debate the point here. More important for present purposes is that from it he infers the fear that “the idea of unitary human rights standards for the entire globe goes by the board.” This misses a critical element of the polycentric governance model.
A decade ago I published an academic article that introduced the concept of “the global public domain.” I described it as “an increasingly institutionalized transnational arena of discourse, contestation and action concerning the production of global public goods, involving private as well as public actors. It does not by itself determine global governance outcomes any more than its counterpart does at the domestic level. But it introduces opportunities for and constraints upon both global and national governance that did not exist in the past.”6 The GPs incorporate this understanding. Thus, the social norms and expectations regarding the corporate responsibility to respect are not simply local. The local increasingly is connected to and reinforced within the global public domain, thanks to civil society networks, social media, and the growing recognition by companies themselves in many sectors that enterprise-wide social risk management is in their own best interest.
When Oxfam America funds a community group in Cajamarca, Peru, which organizes protests against the local operation of Newmont Mining, headquartered in Denver, Colorado, and brings the community leader to Newmont’s annual shareholder meetings to make their case to the CEO and the press, those actions unfold in transnational space, not simply separate local spaces. Similarly, when Zambian or Andian communities lodge complaints against Chinese companies, based on social norms and expectations previously established with Western companies in the same or nearby locales, and the Chinese managers request guidance from Beijing, and Beijing’s guidance in turn references the GPs and the OECD Guidelines for Multinational Enterprises, those acts involve transnational space.7 The aggregation of such transnational spaces constitutes “the global public domain.”
Surya Deva also observes that “operations of business are no longer constrained by artificial territorial boundaries.” But in contrast to Tasioulas, his understanding of international law-making remains resolutely statist in character. Corporations are merely targets of regulation by the public governance system. In his scheme, they have no role in governance including as transnational law-makers, which is ironic because, at the same time, he insists that multinationals are so much more powerful than many states.
Questions about Scale of Treaty
The second major theme in the commentaries concerns the scope and scale of any international business and human rights treaty, a discussion renewed by the adoption by the Human Rights Council Resolution 26/9 in June 2014, which established an intergovernmental working group “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” A “treaty alliance” of some 600 NGOs have signed on in support.8
Before responding to the commentaries on the matter of the proposed treaty, a few basic facts are in order. The resolution’s sponsors were Ecuador and South Africa, supported by Bolivia, Cuba and Venezuela. It did not garner a majority of votes in the Council, only a plurality. To obtain even a plurality, the sponsors had to include a footnote in the resolution excluding national firms from the treaty’s scope, notwithstanding its title.9 Virtually every major home country of multinationals either voted against the proposal or abstained. China was an exception, but its explanation of vote made it clear that its position hardly differed in substance from other home countries’.10 Nor can it be said that the vote divided cleanly on North-South lines. For example, apart from the sponsors, all Latin American members of the Council, including Brazil and Mexico, abstained. Under the UN’s informal protocol, abstaining on a resolution pushed strongly by your neighbors can be taken to signify non-support. Finally, the proposal makes no effort to build on the GPs; in fact, the most ardent treaty supporters have done virtually nothing to act on the GPs within their own countries, and some have opposed references to the GPs in other international fora. Instead, the proposal essentially would start the process all over again with the aim of producing a single, overarching legal instrument that, like a silver bullet, promises the resolve business and human rights challenges once and for all.
The European Union and the United States indicated that they will not participate in the negotiations, although I suspect that eventually they will. NGO critics of their position attribute it to corporate influence, which of course cannot be discounted. But they fail to entertain the possibility that there is also something fundamentally flawed with the proposed approach, which on their own analysis has produced repeated failure in the past, and on which I elaborate below.11 Ecuador, the main force behind the proposal, estimates that negotiations could take a decade or more. Erika George, in the subtitle of her commentary, cleverly expresses the main challenge we now face as “making the most of the meantime.” But my best guess is that if the current parameters of the resolution and the intent of the treaty sponsors hold fast, one of two outcomes is likely to occur: either the process will drag on like the 1970s UN Code of Conduct for Multinational Corporations negotiations, which were finally abandoned in 1992; or Ecuador and its allies gather enough votes and ratifications from small states to produce an equivalent to the Migrant Workers Convention, which entered into force in 1990 but has not been ratified by a single migrant worker-receiving country—the equivalent in the present case being the major home countries of multinational corporations. By 2025 nearly half of the Global Fortune 500 firms are expected to be domiciled in emerging market countries, further narrowing the North- South divide that some have sought to resurrect in support of the current treaty initiative.12
Now back to the commentaries. Tasioulas notes my long-standing objections to any attempt to shoehorn the entire complex of business and human rights issues into a single, overarching international legal instrument. The brief explanation is that the category of business and human rights involves an enormous range of problem diversity, legal and institutional variations, as well as conflicting interests across and even within states. Therefore, a general business and human rights treaty would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places. Jenny Martinez reaches much the same conclusion in her commentary. But Tasioulas as well as Surya Deva and Frederic Megret ask: why doesn’t this objection apply to the GPs? They are comprehensive, involving all states, all businesses and all internationally recognized rights. The answer is simple: because the GPs are not a treaty. Governments would never have endorsed them if they were. The GPs are a “soft law” instrument, which increasingly is how governments make initial moves into highly complex and conflicted issues. Even so, several generally human rights-friendly states needed considerable persuasion to accept certain foundational formulations in the GPs, not merely because they were protecting “their” corporations as might be assumed, but in defense of strongly held legal doctrines and to avoid setting precedents for other, unrelated, matters.13
The commentators also address my suggestion that, if treaty negotiations are to have any chance of success, they should focus on “carefully constructed precision tools” aimed at specific governance gaps. I first argued this case in a 2007 law journal article.14 In the context of the current treaty debate, I have suggested that an obvious first instance would be corporate involvement in “gross abuses.”15 I did so because of the severity of the abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains considerable confusion about how they should be implemented in practice when it comes to legal persons (think Alien Tort Statute post-Kiobel); and because the knock-on effects for other aspects of the business and human rights agenda would be considerable, as was true of the ATS.
Surya Deva rejects these arguments. He believes that the first takes too constricted a view of the role of international law. I well understand that international law has expressive functions in addition to its regulative role. But there is no shortage of expressive international human rights law. The last thing victims need is a symbolic gesture that makes promises which cannot be kept. What is needed is laws that get implemented and make a difference on the ground. Deva also rejects the focus on gross abuses because it doesn’t cover enough human rights territory (it is “irrelevant whether human rights violations are regarded as ‘gross’ or not,” he states). But the real choice, as Jenny Martinez puts it bluntly in her commentary, is between a first step and no step at all. For my part, I find it unfathomable that in the current international political order states would agree to establish and enforce a single set of global standards for corporate conduct concerning every internationally recognized human right, ranging from extrajudicial killings to providing an adequate work-life balance. And I shudder to think of the damage that would be done to existing human rights standards in the process. At a deeper level, Deva would do well to engage the analysis of scholars such as John Douglas Bishop and scholar-practitioners like Philip Alston and José Alvarez, who have thought seriously about the societal risks of over-extending legal human rights obligations to corporations.16 In short, like it or not, making choices about the substantive focus of a treaty is inevitable; the only question is who makes them, on what basis and with which consequences.
Tasioulas and James Stewart also raise questions about the “gross abuses” focus, but of a more technical nature. Both assume that addressing gross abuses would require states to establish a standard of corporate criminal liability as a matter of international or national law. This, Tasioulas fears, would “obscure the need for other sorts of responses, such as compensation.” But criminalization is not necessary. While the trend to recognize criminal liability of legal persons has been increasing, a number of countries still do not do so. Following the kinds of approaches adopted in the OECD and UN anti-bribery conventions, states would be free to consider appropriate forms of liability in line with the fundamental principles of their national legal systems, which could include civil or administrative liability, with corporate dissolution as the ultimate penalty. Compensation could also be made available, and the liability of legal persons could be without prejudice to criminal liability of natural persons who may have contributed to the corporation’s liability.
Moreover, while it is true that it remains unclear how far a treaty instrument on gross abuses would reach in addressing serious violations of social and economic rights, it certainly would encompass a number of grave harms in which business enterprises have been involved, including slavery and slavery-like practices, such as forced and bonded labor, both of which remain widespread.17 In any case, bear in mind that the burden of my argument has been that international legal instruments in business and human rights should address specific governance gaps. Gross abuses are but one plausible instantiation. Erika George suggests additional ideas that are well worth considering.
Questions about Remedy
Understandably, the third theme that runs through the commentaries is the challenge of providing effective remedy for victims, particularly judicial remedy. The GPs, like every NGO report on the subject that I’ve ever read, are better at decrying inadequate access to judicial remedy than fixing it. GP 25 affirms that providing access to effective remedy is part and parcel of the state duty to protect against human rights abuses within their jurisdiction. The GPs go on to identify obstacles, and urge states to take steps to overcome them. Clearly this is not enough to ensure that it happens in practice, as I have readily acknowledged. What the treaty sponsors and advocates have in mind, however, is comprehensive forms of extraterritorial jurisdiction under international human rights law. Here too we enter very tricky terrain.
The Commentary to GP 2 summarizes, based on extensive research, what I believed to be international law and practice at the time of writing: “At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”18 Being grounded in a multilateral agreement, the Commentary goes on to say, would provide one such jurisdictional basis. But this brings us right back to the scale of a treaty. Sit back for a moment and ponder the following two questions: for how many internationally recognized human rights do you believe states would endorse extraterritorial jurisdiction? Even more important for a symposium such as this, for how many rights should they do so? Does anyone expect, and should we want, extraterritorial jurisdiction to prevail across the entire range of internationally recognized rights? In my view, the answer to both questions is a resounding “no.”
That states would not agree requires little elaboration. While some UN human rights treaty bodies have urged home states of multinationals to provide greater extraterritorial protection against certain corporate-related human rights abuses, and research conducted under my mandate identified the grounds on which, and the ways in which, states have done so in a number of related policy domains, state conduct generally makes it clear that they do not regard this to be an acceptable means to address violations of the entire array of internationally recognized human rights. It makes little difference whether the states in question are located in the North, South, East, West or whatever azimuth one prefers to reference. Therefore, once again choices have to be made.
That it is an intrinsically bad idea undoubtedly will be more controversial for some. Deva ends his commentary by proposing a Business and Human Rights Declaration, similar to the Universal Declaration of Human Rights. He insists that it must “assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.” I have no principled objection to a Declaration. But if that same hierarchy were established in a legally binding international instrument and coupled with extraterritorial jurisdiction, it would utterly incapacitate national and local governments from conducting the often extensive number and variety of trade-offs that the very act of governance requires. Policy choices typically do not come neatly packaged, with human rights on one side and “other areas/instruments” on the other. They may involve conflicts between different human rights themselves. Moreover, “other areas/instruments” can equally implicate human rights, of different rights-holders, say, or over different temporal horizons. No single treaty could possibly resolve these complex interactions, so it would be left to each state to take its own approach to enforcement. But that would simply produce confusion and conflicting outcomes, and in some cases chaos, not uniform practices.
In sum, if we accept, as elementary logic requires, that not all internationally recognized human rights would or should trigger extraterritorial jurisdiction, then which ones? As a matter of record, extraterritorial jurisdiction in cases of gross abuses when committed by natural persons has greater international support than any other human rights-related abuse. In principle, this ought to make it easier to forge agreement for clarifying that the same prohibitions apply to legal persons, thus reinforcing the argument for a focus on corporate involvement in gross abuses.
At present, the most promising practical development on the legal remedy front comes as a result of a second resolution the Human Rights Council adopted in June 2014 (HRC 26/22), introduced by Norway and adopted by consensus (meaning that it required no vote). Among other things, it requests the Office of the High Commissioner for Human Rights to explore “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses” and, in collaboration with the expert working group that was established to succeed my mandate, to organize consultations among all relevant stakeholders—which will include national investigators and prosecutors who struggle with these issues in their daily work. This could inform the treaty process if the sponsors were willing to draw on it. If the treaty negotiations make no progress, then perhaps it could come to serve as a basis for a constructive alternative initiative.
Whatever one’s preferences may be regarding the specifics of a binding international legal instrument, everyone agrees that legal reform is difficult and takes time. But remedy is not limited to punishment. It may also include apologies, restitution, rehabilitation, financial or non- financial compensation, as well as prevention of harm through, for example, guarantees of non- repetition. Alternative dispute resolution techniques can play a critical role in this regard. Accordingly, the GPs also stressed the importance of promoting forms of non-judicial remedy. GP 31, the longest of the entire set, lays out effectiveness and legitimacy criteria to which such mechanisms must adhere.
Non-judicial mechanisms can be state-based, as in the case of administrative labor tribunals, or the National Contact Points under the OECD Guidelines, which included the GPs’ corporate responsibility to respect pillar in the Guidelines’ 2011 revision, and which have witnessed a spike in human rights-based complaints since. They can also involve grievance mechanisms that companies establish at local and/or corporate levels as many are doing, or collaboratively. Effective company-related grievance mechanisms can serve two important functions. First, they can make it possible for grievances to be addressed early and directly when and where they occur, thereby preventing harms from compounding and grievances from escalating. Second, they can serve as an early-warning system for companies, enabling them to adapt their practices accordingly. Many such operational level grievance procedures remain a work in progress that are still being tested (and in some cases contested by activist groups and plaintiffs lawyers). But for now they fall neatly into Erika George’s category of “making the most of the meantime.” And if they succeed, in the long run they will serve as a significant complement to whatever international legal regime may evolve, just as they do at the domestic level in even the most robust legal systems.
Concluding Thoughts
Much more could be said about the thoughtful commentaries this symposium has brought together, and the broader issues at stake. But in concluding I limit myself to two points. The first is to reiterate the important contributions of Amartya Sen to my understanding of human rights, which John Tasioulas notes in his commentary. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights.19 My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Second, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people—and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.
*John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. In June 2014 he received the Harry LeRoy Jones Award of the Washington Foreign Law Society, annually honoring “an individual who has made an outstanding contribution to the development and application of international law.” He previously served as United Nations Assistant Secretary- General for Strategic Planning and as the Secretary-General’s Special Representative for Business and Human Rights.
Endnotes
1 Joost Pauwelyn, Ramsel A. Wessel and Jan Wouters, “The Stagnation of International Law,” Leuven Centre for Global Governance Studies, Working Paper No. 97, October 2012.
2 John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013).
3 Pauwelyn, Wessel and Wouters report that new multinational treaties have declined precipitously for more than a decade, and that not a single one was deposited with the UN in 2011.
4 The most creative work by lawyers on the subject of transnational law-making by multinational corporations with which I am familiar is by Larry Catá Backer, and Jean-Philippe Robé. It is too voluminous to even begin citing here, but see their respective websites: https://pennstatelaw.psu.edu/faculty/backer; and http://works.bepress.com/jean-philippe_robe/. Both reference the work of the German sociologist of law Günther Teubner, whose writings on the fragmentation of international law and its implications for “legal regime collision” should be required reading for all students of human rights law. See, for example, Andreas Fischer-Lescano and Gűnther Teubner, “Regime Collision: The Vain Search for Legal Unity in the Fragmentation of International Law,” Michigan Journal of International Law, 25 (2003-2004).
5 A leading exemplar of this last tendency is David Bilchitz, “A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles,” in Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013).
6 John Gerard Ruggie, “Reconstituting the Global Public Domain: Issues, Actors, and Processes,” European Journal of International Relations, 10(4): 499–531, citation on p. 519.
7 The first example is described in my book, Just Business, p. xli; also see Louis V. Galdieri, “Ruggie and the Red Priest,” available at https://lvgaldieri.wordpress.com/2013/05/22/ruggie- and-the-red-priest-a-lesson-in-listening/. For the second, see “Guidelines for Outbound Mining Investments,” produced by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, available at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines_for_ Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.
8 See http://www.treatymovement.com/.
9 The resolution is entitled “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.” But the oddly worded footnote defines “other business enterprises” as “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.”
10 China’s delegate stated that their affirmative vote was based on the following “understanding”: that the issue of a business and human rights treaty is complex; that differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds, which need to be taken into account; and that it will be necessary, therefore, to carry out “detailed and in-depth” studies, and for the treaty process itself to be “gradual” and “inclusive.” See http://webtv.un.org/search/ahrc26l.22rev.1-vote-item3-37th- meeting-26th-regular-session-human-rights-council/3643474571001?term=human rights council&sort=date.
11 A recent NGO survey sums up the overall record since the 1970s: “All these efforts met with vigorous opposition from TNCs and their business associations, and they ultimately failed.” See “Corporate Influence on the Business and Human Rights Agenda of the United Nations,” Working paper issued by Misereor, Global Policy Forum, and Brot für die Welt,” June 2014, p. 5, available at http://www.globalpolicy.org/home/221-transnational-corporations/52638-new- working-paper-corporate-influence-on-the-business-and-human-rights-agenda-of-the-un.html. http://www.treatymovement.com/.
12 The estimate comes from McKinsey; see http://www.mckinsey.com/insights/urbanization/urban_world_the_shifting_global_business_lan dscape.
13 For example, the United States objected to my stipulation that the state duty to protect applies within a state’s jurisdiction; they insisted that it was limited to its territory—I suspect with Guantanamo in mind. The UK objected that it did not accept to the idea of a general state duty to protect, that this was strictly a treaty-specific obligation. Sweden objected to the inclusion of an independent corporate responsibility to respect human rights because it feared that it would detract from state obligations. And so it went, even with friendly states. I managed to satisfy the U.S. by changing the referent to “jurisdiction and/or territory.” The UK agreed that it would express its reservation in explaining its vote after the fact, which did not affect its endorsement. In the case of Sweden, thanks to personal relations with higher officials the objections of legal advisors were withdrawn. The UK subsequently released a letter sent to me by the Legal Advisor at the Foreign and Commonwealth Office, so I also released my response. They are available at http://www.reports-and-materials.org/sites/default/files/reports-and-materials/UK-Foreign- Office-letter-to-Ruggie-9-Jul-2009.pdf; and http://www.reports-and- materials.org/sites/default/files/reports-and-materials/Ruggie-letter-to-UK-Foreign-Office-14- Jul-2009.pdf.
14 John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law, 101 (October 2007).
15 See, for example, my blogs “A Business and Human Rights Treaty? International Legalization as Precision Tools,” available at http://www.ihrb.org/tags.html?tag=business+and+human+rights+treaty; and “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” available at http://www.ihrb.org/commentary/quo-vadis-unsolicited-advice-business.html.
16 John Douglas Bishop, “The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations,” Business Ethics Quarterly, 22 (January 2012); Philip Alston, “The ‘Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Alston, ed., Non-State Actors and Human Rights (New York: Oxford University Press, 2005); and José E. Alvarez, “Are Corporations ‘Subjects’ of International Law,” available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1703465.
17 Conceivably one might be able to make the case that systematic and widespread patterns of corporate-related involvement in what the ILO defines as the worst forms of child labor be included: “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.” http://www.ilo.org/ipec/facts/WorstFormsofChildLabour/lang--en/index.htm
18 On this and related points, also see John H. Knox, “The Ruggie Rules: Applying Human Rights Law to Corporations,” in Radu Mares, ed., The UN Guiding Principles on Business and Human Rights (Leiden: Martinus Nijhoff, 2012). Knox, a professor international law, currently serves as UN Independent Expert on Human Rights and the Environment.
19 See Amartya Sen, “Human Rights and the Limits of the Law,” Cardoso Law Review, 27 (No. 6, 2006); “Elements of a Theory of Human Rights,” Philosophy and Public Affairs, 32 (Autumn 2004); and The Idea of Justice (Cambridge: Harvard University Press, 2009).
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| Contributions | |
| Symposium: Business and Human Rights – Next Steps, by James G Stewart | |
| Closing Plenary Remarks, United Nations Forum on Business & Human Rights, Dec 2014, by John Ruggie | |
| Corporate Human Rights Abuses and International Law: Brief Comments, by Surya Deva | |
| Incorporating Rights: Making the Most of the Meantime, by Erika George | |
| Human Rights, No Dogmas: The UN Guiding Principles on Business and Human Rights, by John Tasioulas (forthcoming) | |
| A New Instrument for “Gross” Human Rights Violations by Corporations: Enthusiasm and Apprehension, by James G. Stewart (forthcoming) | |
| A First Step is Better than No Step At All, by Jenny Martinez (forthcoming) | |
| Would a Treaty Be All It Is Made Up to Be? by Frédéric Mégret (forthcoming) | |
| Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights, by John Ruggie (forthcoming) |
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