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Why States Were Right to Endorse Ruggie’s Guiding Principles

Jun 30, 2011

In June, member states at the UN Human Rights Council passed a resolution endorsing Guiding Principles for Business and Human Rights. This is an important step forward, the first time any UN body has endorsed a soft-law instrument on business responsibilities. As the Council was deliberating, LoR’s Mark Taylor published the following post in support of the GPs.

(June 16 2011) This week member states at the UN Human Rights Council will pass a resolution on the work of the Special Representative of the Secretary General on Business and Human Rights, Harvard Professor John Ruggie. Earlier this year, Ruggie released the draft of his Guiding Principals (the commentaries and reactions are all available via this link to the Business and Human Rights Resource Centre)

The Guiding Principles are a formalization of the “Protect, Respect and Remedy” Framework which the Human Rights Council welcomed unanimously (no small feat on its own) back in 2008. As Ruggie noted in his presentation to the HRC two weeks ago, the Framework has managed to generate a high level of early acceptance. In fact, it is fast becoming the new standard: key business, trade union and multilateral organisations are already incorporating the Guiding Principles into their work.

Still, on the margins, it is possible to discern grumblings. Some business no doubt dislike Ruggie’s use of terms like “regulation” and global civil society organisations will bemoan the lack new ‘binding’ rules for companies.

This is probably as it should be.

Back in 2005, Professor Ralph Steinhardt described the need for “a middle path, maintaining the general impetus towards corporate responsibility in the human rights field but justifying a global standard that is so grounded in inter-national law as to offer corporations a measure of protection from aggressive or idiosyncratic approaches to human rights.” As I argue in a recent article addressing the CSR crowd, Ruggie has acheived this and more.

What the HRC asked for

The HRC welcomed the Framework unanimously in part because Ruggie had managed to capture in his report that sensible middle ground. The terrain that Ruggie mapped out in 2008 was based on the finding of his previous mandate, which was an evidence based mandate. He spent those first three years looking at the existing state of law and practice and described a middle ground in which states are ultimately responsible for human rights and business – at a minimum – is expected to not infringe on the rights of others.

Ruggie established that state duties include the options to regulate where they see fit and where they can. Business responsibilities were, on the one hand, delimited and, on the other, clarified: delimited on the basis of responsibility derived from activities and relationships (not simply presence, purchase or sphere of influence) and clarified in that the act of respecting was given expression in the form of due diligence.

Ruggie was careful to point out that this “responsibility to respect” was not a legal obligation under international law, but a “social” one reflected in business CSR policies that echoed the phrasing of international human rights law instruments which call for respect of human rights by all “organs of society”. Human rights lawyers would argue that it is in fact a legal responsibility as well. For Ruggie, the key seemed to be to find a way to ensure that social expectations and legal principles entered into the set of internationally agreed norms in a way that would form the basis for future rule-making by states in their own jurisdictions and, crucially, future business behaviour.

In this way, the Framework made clear that the voluntary vs. regulatory compliance distinction was a false one. Clearly both are in play. The real challeng has always been to define what is compliance when it comes to business respect for human rights. Ruggie has gotten closer to a good answer than anyone before.

With the GPs, Ruggie has done pretty much what the Council expected of him to, namely to operationalise the “Protect, Respect and Remedy” framework. The GPs are a step forward also because they make clear what governments need to do to ensure they are meeting their human rights duties (states are, after all, the primary “duty bearers” for human rights). The GPs will help governments understand what are the rules that need to be put in place with respect to their businesses. That alone is reason enough for the Human Rights Council to use the strongest verb possible in endorsing the Guiding Principles.

The GPs strike a balance in favour of law that holds the potential to actually work, and by that I mean they provide clarity of rules for business within a framework that is based on ensuring access to justice for victims. So, if you think the law should be clear about what companies need to do to avoid hurting people, directly or indirectly, that they there should be checks in place to ensure they do, and that there should be accessible remedies for victims when they don’t, then the GPs deserve your support.

That’s why states at the HRC should endorse the GPs using the strongest possible language to ensure they enter international “soft law” with a decent level of normative authority.

Watch this space for more on the implications of the GPs in the coming weeks.