Apologies for the delay in posting - I've been writing a book chapter on the impact of the business and human rights movement on the prosecution of companies for complicity in international crimes. More of that later. But here are my latest thoughts from the world of business and human rights...
A few weeks ago, Human Rights Watch published a piece entitled “Without Rules: A Failed Approach to Corporate Accountability.” The central premise was that initiatives such as Professor John Ruggie’s United Nations Council-endorsed Guiding Principles on Business and Human Rights were ‘woefully inadequate’ as an effort to hold the corporate world accountable for its adverse impact on human rights. Worse still, HRW claimed that the Guiding Principles ‘may actually help entrench a dominant paradigm among companies and many governments, which derides the rules and regulations that companies need in favor of voluntary and largely unenforceable commitments.’ It was argued that instead of such non-binding initiatives, cold hard law was needed from the governments of the world; there was perhaps also the subtext that an overarching international body should be created to which all States and all companies would be subject.
Understandably piqued by such trenchant criticism, Professor Ruggie defended the Guiding Principles in an article published on the Institute for Business and Human Rights’ website, “Progress In Corporate Accountability.” Not pulling any punches, he waspishly retorted that the HRW article ‘risks turning the clock back rather than moving us forward.’ Recalling the size of the challenges he faced throughout his 6 year mandate as UN Special Representative on the question of business and human rights, and alluding to the need to build consensus gradually with States as well as business interests, Ruggie enumerated the major developments since June 2011, the date the UNGPs were approved by the Human Rights Council. These included:
- Publication of the OECD Guidelines for Multinational Enterprises, containing a human rights chapter drawn from the Guiding Principles, and which also provide for national complaints mechanisms in the forty-two adhering states concerning the conduct of multinationals operating in or from those states.
- Publication of the OECD Common Approaches for Export Credit Agencies, which affect access to capital at the national level.
- Publication of the new International Finance Corporation Sustainability Principles and Performance Standards, which affect access to international capital. These standards are tracked by more than 80 of the private sector lending institutions.
- Publication of ISO26000 Guidance on Social Responsibility, providing ‘harmonised, globally relevant guidance for private and public sector organisations’ to ‘encourage implementation of best practice in social responsibility worldwide.’
- A request from the European Commission to member states to submit plans for implementing the Guiding Principles.
- Incorporation of the UNGP’s concept of human rights due diligence into Section 1502 of the United States Dodd-Frank Act in relation to conflict minerals procured in the Democratic Republic of Congo.
- Clear reference to the UNGPs by the U.S. government as the benchmark reporting requirement for entities investing more than $500,000 in the newly-opened-for-business Myanmar.
- Encouraging initiatives from ASEAN and the African Union to align business and human rights programmes with the Guiding Principles.
As Professor Ruggie also pointed out, the number of companies developing human rights policies, due diligence procedures and grievance mechanisms is rising significantly. The UNGPs are gaining credibility as well as endorsements from a host of different sources including the American Bar Association and they have even been referred to by the US Supreme Court in the Kiobel litigation.
So, who has won this round of the debate? In one sense, it is of course an unanswerable point for HRW to argue that an absence of binding legal regulations, rigorously enforced by eager governments, results in errant companies enjoying impunity for human rights abuses committed today. Without question, a strict universal regime to hold corporations to account by imposing huge fines, revoking trading licences or even imprisoning senior management for criminal complicity in human rights abuses would have a dramatic impact and would remove at a stroke many of the ills referred to by HRW.
Such a universal regime is, for the moment, nothing but wishful thinking. It has been hard enough for the international community to negotiate a permanent international criminal court to bring to justice those accused of the worst crimes known to humanity – and even now, there are many powerful nations who continue to abstain, pleading national sovereignty, neo-colonialism or other such outdated arguments. Whilst clearly a work in progress, the efforts of the Coalition for the ICC ensure that the number of States signing up to the Rome Statute is steadily increasing. Similarly, the UNGPs are slowly but surely creating a coalescing coalition of States, businesses, multi-stakeholder bodies and indigenous groups who are all working towards the goal of universal acceptance of corporate human rights responsibility.
The Guiding Principles are more than the first step on the road to greater accountability. But for their existence, it is almost certain that the OECD Guidelines, the IFC Standards, ISO26000 and section 1502 of the Dodd-Frank Act (amongst others) would simply not have existed.
So, whilst at this stage the name of the game should be more than just raising awareness of business and human rights, HRW are a little premature in damning the entire movement as ‘woeful.’ Securing agreement on these issues is an iterative, incremental process – as in many areas of human rights – and the NGO community would be well advised to remember this.
A few weeks ago, Human Rights Watch published a piece entitled “Without Rules: A Failed Approach to Corporate Accountability.” The central premise was that initiatives such as Professor John Ruggie’s United Nations Council-endorsed Guiding Principles on Business and Human Rights were ‘woefully inadequate’ as an effort to hold the corporate world accountable for its adverse impact on human rights. Worse still, HRW claimed that the Guiding Principles ‘may actually help entrench a dominant paradigm among companies and many governments, which derides the rules and regulations that companies need in favor of voluntary and largely unenforceable commitments.’ It was argued that instead of such non-binding initiatives, cold hard law was needed from the governments of the world; there was perhaps also the subtext that an overarching international body should be created to which all States and all companies would be subject.
Understandably piqued by such trenchant criticism, Professor Ruggie defended the Guiding Principles in an article published on the Institute for Business and Human Rights’ website, “Progress In Corporate Accountability.” Not pulling any punches, he waspishly retorted that the HRW article ‘risks turning the clock back rather than moving us forward.’ Recalling the size of the challenges he faced throughout his 6 year mandate as UN Special Representative on the question of business and human rights, and alluding to the need to build consensus gradually with States as well as business interests, Ruggie enumerated the major developments since June 2011, the date the UNGPs were approved by the Human Rights Council. These included:
- Publication of the OECD Guidelines for Multinational Enterprises, containing a human rights chapter drawn from the Guiding Principles, and which also provide for national complaints mechanisms in the forty-two adhering states concerning the conduct of multinationals operating in or from those states.
- Publication of the OECD Common Approaches for Export Credit Agencies, which affect access to capital at the national level.
- Publication of the new International Finance Corporation Sustainability Principles and Performance Standards, which affect access to international capital. These standards are tracked by more than 80 of the private sector lending institutions.
- Publication of ISO26000 Guidance on Social Responsibility, providing ‘harmonised, globally relevant guidance for private and public sector organisations’ to ‘encourage implementation of best practice in social responsibility worldwide.’
- A request from the European Commission to member states to submit plans for implementing the Guiding Principles.
- Incorporation of the UNGP’s concept of human rights due diligence into Section 1502 of the United States Dodd-Frank Act in relation to conflict minerals procured in the Democratic Republic of Congo.
- Clear reference to the UNGPs by the U.S. government as the benchmark reporting requirement for entities investing more than $500,000 in the newly-opened-for-business Myanmar.
- Encouraging initiatives from ASEAN and the African Union to align business and human rights programmes with the Guiding Principles.
As Professor Ruggie also pointed out, the number of companies developing human rights policies, due diligence procedures and grievance mechanisms is rising significantly. The UNGPs are gaining credibility as well as endorsements from a host of different sources including the American Bar Association and they have even been referred to by the US Supreme Court in the Kiobel litigation.
So, who has won this round of the debate? In one sense, it is of course an unanswerable point for HRW to argue that an absence of binding legal regulations, rigorously enforced by eager governments, results in errant companies enjoying impunity for human rights abuses committed today. Without question, a strict universal regime to hold corporations to account by imposing huge fines, revoking trading licences or even imprisoning senior management for criminal complicity in human rights abuses would have a dramatic impact and would remove at a stroke many of the ills referred to by HRW.
Such a universal regime is, for the moment, nothing but wishful thinking. It has been hard enough for the international community to negotiate a permanent international criminal court to bring to justice those accused of the worst crimes known to humanity – and even now, there are many powerful nations who continue to abstain, pleading national sovereignty, neo-colonialism or other such outdated arguments. Whilst clearly a work in progress, the efforts of the Coalition for the ICC ensure that the number of States signing up to the Rome Statute is steadily increasing. Similarly, the UNGPs are slowly but surely creating a coalescing coalition of States, businesses, multi-stakeholder bodies and indigenous groups who are all working towards the goal of universal acceptance of corporate human rights responsibility.
The Guiding Principles are more than the first step on the road to greater accountability. But for their existence, it is almost certain that the OECD Guidelines, the IFC Standards, ISO26000 and section 1502 of the Dodd-Frank Act (amongst others) would simply not have existed.
So, whilst at this stage the name of the game should be more than just raising awareness of business and human rights, HRW are a little premature in damning the entire movement as ‘woeful.’ Securing agreement on these issues is an iterative, incremental process – as in many areas of human rights – and the NGO community would be well advised to remember this.
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