The UN Guiding Principles for Business and Human Rights--Reflections on the UNGP's 12th Anniversary of Endorsement

 

The UN Guiding Principles for Business and Human Rights were endorsed unanimously by the UN Human Rights Council this month twelve years ago s in its resolution 17/4 of 16 June 2011. A very different time. 

At the time of its presentation to the Human Rights Council, John Ruggie, then serving as Special Representative for the Secretary General (SRSG) on the issue of human rights and transnational
corporations and other business enterprises, noted in his transmittal report (A/HRC/17/31):

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13. What do these Guiding Principles do? And how should they be read? Council
endorsement of the Guiding Principles, by itself, will not bring business and human rights challenges to an end. But it will mark the end of the beginning: by establishing a common global platform for action, on which cumulative progress can be built, step-by-step, without
foreclosing any other promising longer-term developments.
14. The Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved.

Twelve years out, the SRSG's words have proven to be oracular. HRC endorsement did not bring about an end to business and human rights challenges.  Almost from the time of its endorsement, critical stakeholders were hard at work to move on from or through the UNGP. They took seriously the notion of the endorsement as the "end of the beginning" and sought to move from the beginning somewhere else.  That somewhere else has, it turns out, included attempting to patch together something that passes for an international legally binding instrument that would, at best move the UNGP to a "next" phase, or move the business and human rights community in an altogether different direction. It has also included first a vigorous effort to encourage the performative state theatrics of the "National Action Plan" process; one that was, at least on paper, potentially useful, but that in reality (and paralleling what civil society heartily criticized business performance of the second pillar duty to respect)  as an elaborate exercise in virtue signalling. 

More recently, states have engaged, with great vigor, in expanding the substantial governance gaps that were a prime motivation for the UNGP project in the first place.

The root cause of the business and human rights predicament today lies in the governance
gaps created by globalization - between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge. (Ruggie 2008 Report, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (A/HRC/8/5)).

Mercifully, the emerging governance gaps do not repeat the failures of those identified by Professor Ruggie. Rather they create quite interesting new ones.  These are the gaps that are created in the spaces between national legislative efforts to project business and human rights regulatory authority along supply chains, blocking legislation,  and the quite distinct set of state recognition (and transposition) of international human rights norms into their domestic legal orders. Perhaps even the appearance of forward motion is forward motion; and in any case, the need to project domestic political authority outward simultaneously with other states appears to be  the political condition of the third decade of the 21st century. 

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What the SRSG might have envisioned as a consensus based (more or less) basis for step by  step "progress" as that is envisioned in the text of the UNGP has become a cacophony of efforts producing a bricolage of legislation, norms, and public and private regulatory efforts that tend to mark this age. That cacophony has become polyphonic: while it might once have been a "family fight" among leading expositors of a business and human rights vision from the soft and comfortable environs of the developed world (including taking on the mantel of speaker for the less well privileged) has become a mirror of the great ideological divisions of the contemporary global political orders--one in which Marxist-Leninist, post-colonial, indigenous, and theocratic voices are also increasingly determined to be heard in their own voices. Moreover, healthy markets in private standards have emerged as well.  These all focus on the corporate responsibility to respect to human rights.  The state duty to protect human rights, as a developing area, appears far more attached to past practice and sensibilities about the distinction between international law and the realm of domestic legal ordering.

Nonetheless there has been progress and, indeed, a common platform for action appears to be emerging within the UNGP framework. That common platform is compliance based, and grounded on a sort of triumph of the precautionary principle of public law now transposed and embedded in the principles and habits of economic activity. The consequences have yet to be fully appreciated. But some are already visible: the transformation of the working style of economic activity from one encouraging risk taking for innovation to one far more risk averse; the redirection of the costing of economic activity from that of production to that of impact; the willingness to rely on qualitative rather than quantitative analytics; while at the same time the inevitable move from bureaucratic systems of exercises of administrative discretion to the development of data driven assessment models grounded in risk of human rights breaches; and lastly the move toward the establishment of a global common law of human rights torts.   

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And thus, after twelve years, and in an odd sort of way, John Ruggie's prediction--that the UNGP’s "normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved" (2011 Report; ¶14)--has come true. People and collectives have interpreted those implications in ways that suit them and then run with those implications toward whatever goal they think they can connect to the interpretive trapeze acts that bridge the idea/ideal of the UNGP and the realities of what is to be sold to a target audience.  

That, then, is what twelve years have brought. Great promise and greater expectations have been realized.  That realization, however, may have manifested itself in remarkably unanticipated ways.   At the root of both innovation and resistance, are the UNGP--the common platform. Nonetheless, it is not the principles of the UNGP around which all of this activity is manifesting, but rather around the idea of the UNGP--its language, and the way in which it has ordered the world of business and human rights. States, enterprises, civil society may be inspired by the UNGP, they may draw on their interpretation of its principles and objectives, they may use the UNGP as a springboard to something more desired.  All of that litters the arena of law, policy, practice, and sensibility in public and private sectors. But none of this requires a close analysis of the principles themselves.  Nor is the language of those principles themselves subject to the sort of interpretive contestations that mark statutes or constitutional principle. 

It is sometimes possible to detach the idea of the body of text that is the subject of commentary from the text itself. In the case of the UNGPs, for example, the idea of the UNGPs as a whole becomes as important as the substance of its text. In this case the UNGP are objectified in ways in which it is no longer essential to understand how it works or even its three pillar structures. The UNGP stands for something else--as a project, as a process, as a set of aspirations, and the like. It is in some sense a fetish—a sign that signifies something else. And it is this “something else” that may be invoked by those who apply the UNGPs in this way. A commentary of the objectified UNGP , as distinct from a commentary of the UNGP, is an important additional context from which meaning and application may be extracted. (LC Backer, Commentary on the UNGP (OUP forthcoming 2024), chp 1 draft)

That, though, may be enough.