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Last Updated: 10 October 2013
THE CORPORATE RESPONSIBLITY TO RESPECT RIGHTS: SOFT LAW OR NOT LAW?
Justine Nolan, University of New South
Wales
Citation
This paper is to be published in S Deva and D Bilchitz (eds) Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? Cambridge University Press, (Nov. 2013). This paper may also be referenced as [2013] UNSWLRS 72.
Abstract
This paper is primarily focussed on examining the role (and effectiveness) of soft law in regulating businesses with respect to human rights. Section I grapples with developing a general definition of soft law, and in doing so, examines both the advantages and limitations of soft law regulation. Section II provides an overview of the significant soft law developments in the business and human rights field. Given the diversity of the principal constituents in this sector – States, corporations and NGOs - it is perhaps not surprising that soft law has been a principal default mechanism for connecting human rights and business in recent decades. Section III focuses on the SRSG’s concept of the corporate responsibility to respect as embodied in the Guiding Principles and its status and significance. If considered soft law, then what distinguishes it from prior soft law instruments and to what extent is it likely to be more or less effective than previous attempts to curb corporate human rights violations?While
this paper highlights the many limitations of using soft law to hold
corporations to account for human rights, it also recognises
that reliance on
soft law can result in incremental change. Soft law is not necessarily
commensurate with soft results. Achieving
something, even if not perfect, can
be preferable to achieving nothing. However, for soft law (and in particular the
corporate responsibility
to respect as set out in the Guiding Principles) to be
an effective and sustainable rights protection mechanism, I argue that there
is
a need for a more intimate connection to ‘hard’ - that is legally
binding - law. This could be achieved in various
ways but one is to require
States to oblige corporations to comply with the due diligence component of
the responsibility to respect.
In its current format, the corporate
responsibility to respect embodies a high degree of fragility and flexibility
but what is
needed most urgently in this field is greater robustness and
uniformity that not only encourages but requires corporations to, at
a minimum,
respect human rights.
INTRODUCTION
In June 2011 the United Nations’ (UN)
Human Rights Council endorsed the Guiding Principles on Business and Human
Rights.[1] The Guiding Principles are
the culmination of six years work by the Special Representative for Business and
Human Rights (the SRSG)
and are designed to operationalise the ‘Protect,
Respect, Remedy’ Framework (the Framework) established by the SRSG in
2008. [2] Both the Framework and the
Guiding Principles highlight the corporate responsibility to respect human
rights as a baseline expectation
for all companies.
[3] The Guiding Principles note that the
corporate responsibility to respect ‘means that they [companies] should
avoid infringing
on the human rights of others and should address adverse human
rights impacts with which they are
involved’.[4] It is arguable
that the limitations of this concept – that of a corporation’s
responsibility (not obligation) to respect
(but not protect) rights - are more
readily apparent than its promise. To some, the notion of the responsibility to
respect rights
based on social expectations is an inadequate approximation of
the nature and scope of business’ relationship with human rights
and
simply reinforces the acceptance of a ‘world where companies are
encouraged, but not obliged, to respect human
rights’.[5]
In the last 30 years, attempts to regulate the negative impact of business
activities on human rights have increased. While a range
of diverse tactics has
been employed (with varying degrees of success) there has been a wide degree of
reliance on soft law mechanisms
both to prevent and monitor corporate rights
violations. The SRSG commented in 2011 that the corporate responsibility to
respect
rights is a notion that has been gradually emerging and is
‘acknowledged in virtually every voluntary and soft-law instrument
related
to corporate responsibility, and now affirmed by the Human Rights Council
itself.’[6] The development of
such soft law instruments to police corporate conduct has been marked by the
involvement and increasing
‘regulatory’[7] role
played by non-state actors such as non-government organisations (NGOs), trade
unions and corporations themselves. While there
is no entrenched definition of
what constitutes soft law, in the context of international law it might commonly
include an ‘international
instrument other than a treaty that contains
principles, norms, standards or other statements of expected
behaviour.’[8] In the business
and human rights field it might also include widely accepted codes of conduct
that have been developed by a group
of stakeholders as a mechanism to prevent
corporate rights
abuses.[9]
Soft law has played
a prominent role in the development of the SRSG’s concept of why and how a
corporation might be responsible
for human rights. Both the Framework and the
subsequent Guiding Principles stress that the corporate responsibility to
respect human
rights is based on social expectations (rather than a legal
obligation).[10] Such reliance on
soft law to ground a corporation’s responsibility for human rights
reflects the SRSG’s pragmatic view
that any road toward developing an
international treaty, which would place binding obligations on business with
respect to human
rights was one better not travelled at the present
time.[11]
The Guiding Principles thus appear to be the latest in a long line of soft
regulatory techniques used to encourage, but not require,
a corporation to
comply with human rights.
While
this paper highlights the many limitations of using soft law to hold
corporations to account for human rights, it also recognises
that reliance on
soft law can result in incremental change. Soft law is not necessarily
commensurate with soft results. Achieving
something, even if not perfect, can
be preferable to achieving nothing. However, for soft law (and in particular the
corporate responsibility
to respect as set out in the Guiding Principles) to be
an effective and sustainable rights protection mechanism, I argue that there
is
a need for a more intimate connection to ‘hard’ - that is legally
binding - law. This could be achieved in various
ways but one is to require
States to oblige corporations to comply with the due diligence component of
the responsibility to respect.
In its current format, the corporate
responsibility to respect embodies a high degree of fragility and flexibility
but what is
needed most urgently in this field is greater robustness and
uniformity that not only encourages but requires corporations to, at
a minimum,
respect human rights.
1. SOFT LAW OR NOT-LAW?
Over a decade ago Muchlinkski argued that
‘a climate of expectation as to proper corporate conduct should be built
up through
both “soft law” and “hard law” options.
Developments in “soft law” through corporate and NGO
codes of
conduct are already creating a climate in which it might be expected that the
management of MNEs [multinational enterprises]
includes a conscious assessment
of ...human rights
implications...’.[12] However,
what has been apparent since Muchlinkski’s statement in 2001 is that while
developments in the soft law regulation
of corporations with respect to human
rights have continued to expand and build up this climate of expectation, the
development of
hard law has lagged behind. The increasing relevance of soft law
in this sector is symptomatic of a broader ‘worldwide shift
from
government to governance’ and is marked by ‘the ascendancy of a new
system in which regulation is produced in a
participatory fashion by public and
private actors collaborating with each
other.’[13]
This is particularly true in the business and human rights field where
corporations, NGOs and States are all influential (though
not necessarily equal
with each other) in the formulation of guidelines, codes and principles that
detail the relevance of human
rights standards to business activities. Soft law
tends to embody a diffusion of governance which does not render governments
powerless
but ‘nevertheless throw[s] up challenges of coordination and
regulation’.[14]
Commentators vary in their opinions as to the indicators that might be used
in classifying particular instruments as soft law. As
Chinkin notes,
‘[t]here is a wide diversity in the instruments of so-called soft law
which makes the generic term a misleading
simplification.’[15]
Shelton agrees that the line between what might be loosely defined as law and
not-law is blurred but attempts a definition of soft
law by noting that it
‘usually refers to any international instrument other than a treaty that
contains principles, norms,
standards or other statements of expected
behaviour.’[16]
Others argue for the inclusion of some treaties as soft law, albeit only those
treaties with soft
obligations.[17]
For some, it is easier to adopt a negative approach and attempt to define soft
law by what it is not rather than what it is. Boyle
argues for example, that
soft law can be determined by the status of the obligations it imposes. He
suggests that soft law is not
(legally) binding, consists of general norms or
principles but not rules, and is not readily enforceable through binding dispute
resolution mechanisms. However he also concedes that any clear demarcation
between hard and soft law is
challenging.[18]
It is particularly difficult to achieve a clear definition in the human rights
arena (although such complexities are not exclusive
to human rights, and also
occur, for example, in the field of international environmental
law)[19] where treaties are apt to
include ‘soft’ obligations, such as undertakings to strive to
cooperate or agree to take steps
which further blur the line between soft and
hard. What is clear, is that the differentiation between soft and so-called hard
(or
legally binding) law is not binary but one that should be viewed as
developing on a continuum.
Soft law may develop partly by default and partly
by design. Reliance on soft law, whether in this field or others, has not
emerged
simply because there is a lack of anything better (although there is no
denying that can be - and indeed has been in this field -
a significant factor
in the development of soft law). The use of soft law can be a deliberate choice
and often more attractive to
the relevant stakeholders (in this case
particularly to business and governments alike) because it may contain
aspirational goals
that aim for the best possible scenario with few constraints
if such goals are not met. Thus, it is easier to achieve consensus in
drafting a
document that outlines these types of ‘commitments’.
Following
from the political divisiveness generated by the debate around the UN
Norms,[20] achieving consensus was
highly prized by the SRSG throughout his
term.[21] Part of his preference for
a soft law approach in developing the corporate responsibility to respect, was
perhaps because the informal
nature of soft law allows for a broader group of
participants (including non-state actors) in both its development and
enforcement.[22] Soft law can
generally be formed in a far more timely manner than a treaty: this is perhaps
exemplified by the field of business
and human rights where waiting for the
development of a comprehensive treaty holding corporations accountable for human
rights abuses
might be akin to waiting for Godot.
[23] Soft law can serve as a
precursor to the introduction of hard law. For example, it might be used as a
testing ground for the development
of new mechanisms of accountability and thus
function as a useful and necessary tool for the development of hard law that
formally
binds parties.
This paper opts for a broad definition of soft law
that includes those instruments categorised as ‘non-binding or voluntary
resolutions and codes of conduct formulated and accepted by international and
regional organisations, along with statements prepared
by individuals or groups
in a non-government capacity, but which purport to promote international
principles’.[24] This would
include for example, codes of conduct developed not only at an international
level but also at a more micro-level such
as by multi-stakeholder groups that
rely on and profess to promote international rights. This paper excludes
treaties from soft law
on the basis that from the outset they set out to impose
legally binding obligations. The definition of soft law embraced in this
paper
distinguishes treaties from instruments such as resolutions, principles and
codes because unlike a treaty they are deliberately
cast in a non-legally
binding framework. Thus Boyle’s point, that soft law can be characterised
by the status of the obligations
it imposes – distinguishing between an
intention to legally bind (or not bind) stakeholders – is a useful one.
While
over time the effectiveness of soft law instruments in
‘binding’ stakeholders to an agreement or an agreed course of
action, may be commensurate with, or exceed that of hard law regulatory
mechanisms (such as treaties) the relevant point of distinction
here is the
intention (or not) to legally bind parties to the instrument at the time of its
conception.
The binding/non-binding nature of soft law is contentious.
Characterising soft law as non-binding might be regarded by some as accurate
only in the strict legal sense. Soft law can include ‘mechanisms [that]
provide guidelines and principles which, while not
legally binding, have force
by virtue of the consent that governments, companies, and other civil society
actors accord them’[25] Codes
of conduct, developed by multi-stakeholder groups in the business and human
rights field, might be reflective of the varying
norms and societal expectations
concerning corporations and their responsibilities and while not legally binding
may have ‘force’
by the degree of consensus and acceptance linked to
that instrument .
Thus to argue that soft law is simply not-law is perhaps
too simplistic. The evolution of soft law instruments in the business and
human
rights sector has created at minimum, standards of expected conduct that, while
not setting out to be legally binding, may
have normative value that is intended
to prescribe expected standards of behaviour. Wide-spread acceptance of a
particular instrument
may not turn soft law into legally binding principles but
may nevertheless establish standards which ‘socially bind’
corporations to human rights. How effective this is in regulating corporate
behaviour with respect to human rights is a key question.
In the absence of
legally binding characteristics, the potential ‘law-making quality’
of soft law is linked to its ‘authority’
which will in turn
influence the likely impact and longevity of the instrument. Does the instrument
create an obligation to do or
not do something? Is there apparent consent by
relevant stakeholders drafting or using the instrument, to be
‘bound’
by it, and if so, how might such soft law be enforced? The
authority of the soft law is intrinsically linked to its binding nature.
In
attempting to assess the authority of soft law it is useful to examine a
particular instance of such regulation from a number of
perspectives. Firstly,
consider why this particular mode of ‘law’ was chosen. For example,
does it complement and/or
extend existing law on the subject or is it standing
in place of such law? If the soft law is acting as a complement to existing
law,
the combination of the two modes of ‘law’ might serve to create a
greater sense of authority for the soft law than
if it stands alone. Secondly,
given the mode chosen, does it have the potential to generate compliance,
whether by States or other
relevant parties? Or to put it another way, what is
its normative potential? In answering this question, one should consider the
process of the development of the soft law, including how it was drafted and the
degree of consensus that was reached regarding the
final product. For example,
in what institutional setting was it formulated and what processes are there for
follow up mechanisms
at both international and domestic levels? Also relevant
here, is the substantive text of the soft law - does it employ the language
of
obligation or revert to ‘should’ rather than
‘shall’?[26] Each of
these factors are useful indicators of the ‘binding nature of the soft law
and its latent power or authority to drive
improved adherence to human rights
standards.
The consistent use of soft law in the business and human
rights field is indicative of the emergence and reliance on a notion of
‘networked
governance’[27] that places
corporate behaviour under the scrutiny of not only States, but also NGOs, unions
and other stakeholders. Soft law as
it is being used to regulate business,
transcends the traditional and formal role played by States as the primary
regulator and not
only encourages, but heavily relies on the
‘marketplace’ to police the problem. The effectiveness of this
system of governance
and therefore soft law mechanisms more generally, is
strongly dependant on the perceived authority of a particular instrument to
create change. There is little doubt that ‘[s]oft law in its various forms
can of course be abused, but so can most legal
forms’.[28] The key to
developing effective soft law is in developing and establishing its
‘bindingness’ to a point where compliance
is widespread and
consistent.
2. NO ‘SILVER BULLET’ OR SINGLE SOLUTION TO CURBING CORPORATE RIGHTS VIOLATIONS
To understand the development and predominant
reliance on soft law in regulating corporate adherence to human rights, it is
necessary
to recount a little political history including the role of the UN in
the process. The UN has long recognised the need to increase
corporate awareness
of human rights and has flirted (briefly) between adopting a stern
regulatory-type approach to the problem with
a more (predominant)
promotional/awareness-raising style of linking business and rights. More
recently, the SRSG has repeatedly stated
that there is no magic ‘silver
bullet’[29]
that will provide a systemic solution to reducing the incidence of
business-related human rights abuses. For much of the past few
decades a
plethora of tactics have been adopted in attempts to regulate or at least
minimise the negative impact business can have
on human rights with varying
levels of success.
The reason that soft law type codes and initiatives have
developed in such numbers in the past few decades is that there remains very
few
direct legal obligations dealing with human rights that bind corporations
operating trans-nationally.[30] This
lack of clear legal liability has been central to the creation of a permissive
international ‘human rights free’
environment[31] in which some
corporations seem to now operate and the parallel increase in the development of
soft law mechanisms to regulate corporate
behaviour. The traditional
understanding of international human rights law is that it binds only States, a
matter which was largely
uncontested for many years partly because States have
long been viewed as the principal protagonists in human rights abuses. This
focus on States as the bearers of human rights responsibilities has meant that
some corporations, in particular, transnational corporations
(TNCs) have been
able to operate largely in a legal vacuum, devoid of obligations at the
international level.
In the last 20 to 30 years a variety of soft law
instruments have variously attempted to fill or at least partially address this
legal
lacuna. In the 1970s work began within the UN on drafting an international
code of conduct to regulate the activities of
TNCs.[32] In 1975, the UN
established a Centre on Transnational Corporations, which by 1977 was
co-ordinating the negotiation of a Draft Code
of Conduct on Transnational
Corporations.[33] Over subsequent
years the negotiators managed to agree that TNCs should respect host countries
developmental goals, observe their
domestic laws, respect fundamental human
rights, adhere to socio-cultural objectives and values, abstain from corrupt
practices,
and observe consumer and environmental protection objectives.
Negotiations lingered until the 1990’s but the now defunct United
Nations
Centre on Transnational Corporations met serious political and business
opposition, not unlike that which the UN Norms were
to encounter just over a
decade later. The draft Code was viewed as an attempt by the UN to meddle in the
affairs of business. The
involvement of the United Nations in corporate affairs
was viewed as an unnecessary and unwanted effort (by companies and some
governments)
to regulate business.
In the 1980s, the UNs’ policy
towards TNCs changed course. Instead of trying to regulate foreign direct
investment, UN agencies
sought to facilitate the access of developing countries
to investment.[34] The 1990s was a
period when globalisation gathered force and corporate lobbying effectively
undermined multilateral attempts at addressing
their power. Corporate self
regulation was the key buzz word and the development of codes of conduct in
various forms from 1991 (when
Levi Strauss first introduced its code) to the end
of that decade was explosive. At the same time and continuing today,
UN-business
relations entered a new era as the international body strives to
develop partnerships with large corporations or establish long term
projects
funded by corporate
philanthropists.[35] The UN is clear
in its belief concerning the positive role business can play in ‘being
part of the solution to the challenges
of
globalisation’.[36]
Throughout
this period when the UN started to change course and develop a more user
friendly (and softer regulatory) relationship
with business, there were ongoing
efforts to continue to develop soft law mechanisms to guide improvements in
corporate behaviour.
Since the 1970’s a number of inter-governmental
organizations have formed voluntary guidelines, declarations and codes of
conduct
to guide the activities of corporations with two of the most notable
early efforts being those of the Organization for Economic Cooperation
and
Development (OECD) and the International Labour Organisation
(ILO).[37]
Parallel to the
development of these high-level broad inter-governmental soft guidelines were
efforts developed at the more micro-level,
focusing specifically on regional
issues or particular industries. In 1977 the Sullivan
Principles,[38] directed at the
behaviour of American companies operating in South Africa, were established, and
in 1984 the MacBride Principles[39]
were created with the aim of influencing the behaviour of US firms in Northern
Ireland. Both of these soft law initiatives were drafted
as codes that might
‘voluntarily’ be adopted by businesses in an attempt to avoid
potentially harsher external regulation
(the threat of United States legislation
for example) which would require companies to disinvest from South Africa and
Northern Ireland.
The 1990s saw intense media attention focused on
supply chain production and the manufacturing processes of brands such as Gap
and
Nike were highlighted along with an increasing western-driven consumer
demand for corporations to assume greater responsibility for
the manner in which
their goods were produced whether it be on home soil or offshore. In the absence
of any international legal regulation
governing supply chain production,
hundreds of corporate codes of conduct were developed along with several
multi-stakeholder initiatives
aimed at integrating human rights into corporate
practices.[40] An important aspect
of the evolution of the global economic system has been the increased reliance
by companies, TNCs in particular,
on a global supply chain. This reliance is
especially obvious in low-wage, labour intensive industries like clothing and
footwear.
‘In a world of 80,000 transnational corporations, ten times as
many subsidiaries and countless national firms, many of which
are small
and-medium-sized enterprises’ any attempt to regulate corporate behaviour
will always be a challenge.[41]
Such regulation has become progressively more complicated given the
decentralized and complex supply chains that produce so many of
today’s
consumer goods and gives rise to particular challenges when employing soft law
to protect human rights.
In 2000, the UN re-entered the fray and
launched the Global Compact which ‘asks companies to embrace, support and
enact, within
their sphere of influence, a set of core values in the areas of
human rights, labour standards, the environment and
anti-corruption.’[42] The
Global Compact has since gone on to garner support from over 7,000 businesses
who have signed up to its ten principles. During
this time however it has also
attracted some significant criticism relating to the very soft commitments
required of its participants.[43] At
around the same time as the Global Compact was being developed; another
initiative within the UN was also taking root. In 1998,
the UN Sub-Commission on
the Promotion and Protection of Human Rights, (a 26-member group of experts
which reported to the then Commission
on Human Rights) established a working
group on the activities of transnational corporations which, in 2001, was asked
to ‘[c]ontribute
to the drafting of relevant norms concerning human rights
and transnational corporations and other economic units whose activities
have an
impact on human rights.’[44]
The working group formulated the Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with
regard to Human Rights which
were subsequently adopted by the UN Sub-Commission on the Promotion and
Protection on Human Rights in
August 2003. The draft Norms were considered by
the Commission on Human Rights, in April 2004 and again in 2005 but it did not
adopt
(nor expressly reject) them.
The UN Norms were not universally
welcomed and were viewed by some as an unwelcome and unwarranted attempt to
privatise human
rights.[45]
Their introduction prompted heated debate within the business and human rights
domain creating strong divisions between and within
the various stakeholder
groups, including companies, NGOs, labour unions, governments and industry
bodies.[46] Prompted by the
widespread interest in the UN Norms (both positive and negative), the UN Human
Rights Commission resolved in April
2005 to request the UN Secretary General to
appoint a Special Representative on the issue of business and human
rights[47], reflecting a growing
interest internationally on the role companies might play with respect to human
rights and the need to clarify
the standards of corporate responsibility. The
SRSG quickly distanced himself from what he termed the ‘train wreck’
of
the UN Norms and subsequently declared them
‘dead’,[48] but the
debate around the UN Norms did not dissipate quite so quickly. The development
of the UN Norms had sparked a revival in the
decades-old discussion about the
merits of ‘hard’ (that is, legally binding) vs. ‘soft’
mechanisms that might
be employed to curb corporate violations of human rights.
The form and content of the UN Norms harked back to the UN’s earlier
unsuccessful attempt in the 1970s to draft a more prescriptive,
‘regulatory’ code of conduct for companies with the UN
Norms
considered by some activists as a potential precursor to developing a human
rights treaty on the subject. This prescriptive
approach can be contrasted with
the ‘softer’ style of the Global Compact, an initiative with which
the newly- appointed
SRSG had been intimately involved.
During his
initial three year term, the SRSG spent time mapping both the plethora of
mechanisms used to attempt to prevent corporate
rights abuses as well as the
rights abuses themselves. His early annual
reports[49] to the UN Human Rights
Council (which were drafted after extensive consultations with stakeholders
large and small) framed the problem
and examined existing responses but it was
not until 2008 that his new course was revealed. In 2008 the SRSG presented a
‘conceptual
and policy framework’ to the UN Human Rights Council
that he suggested would ‘anchor the business and human rights debate
and...help guide all relevant
actors.’[50] The Framework
rests on three pillars: ‘the State duty to protect against human rights
abuses by third parties, including business;
the corporate responsibility to
respect human rights; and the need for more effective access to
remedies.’[51]
The way
forward, it seemed rested not just upon a new Framework but also upon a more
conciliatory, less prescriptive approach towards
business in particular. To
understand fully the SRSG’s approach, one needs to consider it in the
context of his appointment
and the debates that preceded it. A key part of the
SRSG’s methodology was focused on overcoming the failure of agreement
triggered
by the introduction of the UN Norms and his approach from the outset
was characterised by ‘principled
pragmatism’[52] as a means of
achieving broader consensus. The SRSG’s term was extended in 2008 for
another three years and, in 2011, with
his final report to the UN Human Rights
Council, the SRSG endeavoured to ‘operationalise’ the Framework and
proposed
the Guiding Principles. In July 2011 the UN Human Rights Council
endorsed the Guiding Principles and announced the formation of
a Working Group
‘to promote the effective and comprehensive dissemination and
implementation of the Guiding
Principles’.[53]
The
Guiding Principles emerged from decades of reliance on soft measures to prevent
and police corporate human rights violations that
were primarily designed to
guide corporate behaviour but not necessarily to bind it legally. The engagement
of business with human
rights was thrust upon some companies earlier than
others, with some adopting a proactive approach while others remaining
essentially
reactive. The Body Shop for example, has long promoted itself as
much more than just a beauty company. More than thirty years ago,
the Body Shop
pioneered its simple idea that businesses have the power to do good, and has
continued very visibly to promote human
rights as one of its essential platforms
for doing business. Subsequent to the emergence of this somewhat radical
‘do-gooder’
notion of corporate responsibility (that challenged
Milton Friedman’s argument of the time that the only social responsibility
of business is to increase its
profits)[54] there was an increasing
awareness among companies about the need to formalise, or perhaps more
accurately, regularise their approach
to incorporating human rights issues in
their operations. The development and reliance on thematic or sector-specific
codes emerged
as a de facto choice for a large number of companies,
particularly those in industries with poor social or environmental track
records, such as
the extractive industries and the clothing, footwear and toy
industries. Codes continue to be widely used in supply chain production
as a
mechanism for attempting to achieve corporate compliance with human rights
standards. Such codes, which are increasingly likely
to originate from a
multi-stakeholder forum, are a means of providing soft sector-specific guidance
on the applicability of human
rights to that corporate sector and endeavour to
achieve a degree of consensus, consistency and credibility that is often lacking
in single enterprise corporate-driven codes. Such codes are in essence akin to
‘law’ for those companies that adopt it,
albeit a soft and selective
form of law that acts as a type of privatised
regulation.[55]
While the
protection of individuals from corporate human rights violation is complex in
all sectors, it is particularly problematic
where global supply chains are
relied upon to produce goods. Global supply chains were first developed to
reduce the costs of labour-intensive
production processes such as clothing and
footwear, but they continue to expand as more products and services - from
computer chips
to medical research - seek lower-cost production solutions. This
has been accompanied by the development of a global labour market
that has
outstripped the traditional forms of labour market regulation. Global supply
chains stretch across multiple jurisdictions
but are effectively regulated by
none. This lack of regulation, combined with the vagaries of global competition,
predictably lead
to frequent abuses of human rights more generally and labour
rights in particular. In response, civil society organizations have
often
resorted to using one of the only weapons they have, namely information, to
expose abuses of labour rights and embarrass the
brand-name buyers involved. One
technique has been to try and get the brand to sign onto a particular code or
guideline that would
provide some form of external accountability for how the
production process functions. Such codes, while lacking the legally binding
nature of domestic law, nevertheless can provide a platform for monitoring and
assessing a company’s performance with respect
to human rights.
In
his first Interim Report to the UN Human Rights Council the SRSG acknowledged
the challenges in attempting to curb human rights
violations by the corporate
sector and identified a number of soft law initiatives that had attempted to
police and minimise corporate
human rights abuses, some particularly focused on
supply chain production.[56] In his
report the SRSG noted that while monitoring adherence to a code of conduct can
be useful in curbing corporate human rights
violations, such codes have their
limitations both in terms of standard setting and enforcement. He explained:
...there can be little doubt but that these arrangements have weaknesses as well. One is that most choose their own definitions and standards of human rights, influenced by but rarely based directly on internationally agreed standards. Those choices have as much to do with what is politically acceptable within and among the participating entities than with objective human rights needs. Much the same is true of their accountability provisions. Moreover, these initiatives tend not to include determined laggards, who constitute the biggest problem – although laggards, too, may require access to capital markets and in the long run face other external pressures. Finally, even when taken together, these “fragments” leave many areas of human rights uncovered, and human rights in many geographical areas poorly protected. The challenge for the human rights community, then, is to make the promotion and protection of human rights a more standard and uniform corporate practice.[57]
While
the proliferation of soft law initiatives – whether company specific or as
part of a multi-stakeholder initiative –
in the last few decades has meant
that hundreds of companies have now publicly committed to upholding basic human
rights, the challenge
is to ensure these soft law standards espoused in codes or
guidelines adopted by business are consistent, comprehensive and implemented.
With this abundance of soft law, along with the challenges reliance on soft law
regulation imposes, one obvious question is how the
SRSG’s three pillared
Framework and its accompanying Guiding Principles stand apart from the others?
In particular, is this
continuing recourse to soft law (specifically, to anchor
the second pillar of the Framework, namely, the corporate responsibility
to
respect rights) likely to be an effective mechanism for preventing corporate
human rights abuses? One might legitimately argue
that relying on the good
faith of corporate actors to adopt and adhere to soft law regulation has worked
somewhat sporadically so
far, so what is it about UN Framework and Guiding
Principles that indicates it will work more effectively in the future?
3. THE ‘BINDING’ NATURE OF THE CORPORATE RESPONSIBLITY TO RESPECT
From the outset, it was clear that the SRSG was
looking to overcome the turbulence and ‘doctrinal
excesses’[58] of the UN Norms
and develop a plan based on consensus and pragmatism. To move ahead, as the
SRSG noted, with ‘an unflinching
commitment to the principle of
strengthening the promotion and protection of human rights as it relates to
business, coupled with
a pragmatic attachment to what works best in creating
change where it matters most – in the daily lives of
people.’[59] However,
sometimes a desire to reach a result in the short term can lead not only to
compromise but to compromised standards.
[60]
Historically, when political leaders speak of pragmatism, it has often been code
for subordinating ideals to other strategic and
geopolitical priorities. Where
solutions are endorsed on the basis of their pragmatism, the
‘softer’ short term solution
needs to be weighed against the
viability of achieving a longer term ‘harder’ resolution.
Emphasis on the practical in this case, has resulted in the extension of
a consensual regime of softly developed regulation that encourages
but does not
require (in a legally binding sense) corporations to respect human rights. Can
principled pragmatism be effective in
bringing corporations to account? The
corporate responsibility to respect, as embodied in the Guiding Principles, is,
taken at face
value,
unobjectionable,[61] but is it a
‘game-changer’?[62]
Is it simply more soft law or a consolidated and definitive version of the
numerous codes and guidelines that have preceded it that
will reshape and
redefine businesses’ approach to human rights going forward? It is only,
in my view, likely to be the latter
if certain aspects of it harden to require
more consistency in the application and understanding of the corporate
responsibility
to respect rights.
The corporate responsibility to respect
is defined in the Guiding Principles as meaning business ‘should avoid
infringing on
the human rights of others and should address adverse human rights
impacts with which they are
involved.’[63] The explanatory
Commentary accompanying the Principles states that ‘the responsibility to
respect human rights is a global
standard of expected conduct for all business
enterprises wherever they operate [and that] [i]t exists independently of
States’
abilities and/or willingness to fulfil their own human rights
obligations, and does not diminish those
obligations.’[64]
Its
content (as to what rights should be respected) is defined by reference to a
litany of international human rights laws (see Guiding
Principle 12) but,
interestingly, the SRSG chose to ground its source of obligation not in this law
but in a more inchoate and softer
source.[65] The decision to couch
the responsibility to respect rights as a responsibility, not an obligation (in
contrast to the State duty to protect human rights) was a deliberate one.
It is grounded in social expectation not legal obligation and it is the
‘courts
of public
opinion’[66] that are relied
on to ‘enforce’ such expectations. The decision to frame it as
‘not-law’ elevated the odds
of achieving governmental consensus and
business backing, but it is a sticking point for many
NGOs.[67]
The concept of
due diligence is introduced as a mechanism by which companies might discharge
their responsibility to respect rights
and reflects the continued reliance on a
largely self-regulatory process to curb corporate human rights violations.
Guiding Principle
17 notes the parameters of the recommended due diligence
process.
In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and
communicating how impacts are addressed. Human rights due diligence:
(a) Should cover adverse human rights impacts that the business enterprise
may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;
(b) Will vary in complexity with the size of the business enterprise, the risk
of severe human rights impacts, and the nature and context of its operations;
(c) Should be ongoing, recognizing that the human rights risks may change
over time as the business enterprise’s operations and operating context evolve.
Guiding Principle 18 recommends the process should ‘draw
on internal and/or independent external human rights expertise [and]
involve
meaningful consultation with potentially affected groups and other relevant
stakeholders’.
One of the limitations of this
‘unobjectionable’ process is that it is not coupled with binding law
to enforce this responsibility.
There is no legal obligation to conduct the due
diligence. The due diligence may or may not be undertaken largely internally by
the
company, alongside ‘meaningful consultation’ with external
stakeholders. There is no legal obligation either to conduct
such an assessment
or to publish its results. Relying on the courts of public opinion to protect
victims from corporate violations
of human rights was the mode of the late
1990s, but limited progress has been made since that time to move along the
continuum from
self-regulation to legal obligation. Domestic governments,
ideally should reinforce these ‘societal expectations’ to
respect
human rights by, at a minimum, legally requiring due diligence to be conducted
and the results made public, but whether
they will choose to do so may in part
depend on the binding nature of this latest instrument. The Guiding Principles
were drafted
as principles, not law, knowingly. One might legitimately argue
that from the perspective of ‘practitioners, governments and
intergovernmental organisations, there is not a continuum of instruments from
soft to hard, but a binary system in which an instrument
is entered into as law
or not-law.’[68] The consensus
achieved on the Guiding Principles in the UN Human Rights Council was precisely
because they were viewed as not-law
and the corporate responsibility to respect
rights is not what one might think of as a traditional or formal legal
obligation.
But as noted earlier, to argue that soft law is simply
not-law can be simplistic. As one commentator notes, ‘the challenge lies
in appreciating fully the declining reliability of formal criteria of
international law as guideposts as to what actually constitutes
international
law’.[69] In assessing the
‘authority’ or bindingness of the corporate responsibility to
respect it is useful to examine it in
the context of the factors raised
earlier.[70] In particular, what is
the significance of housing this responsibility in soft law, and, given the mode
chosen, does it have the
potential to generate compliance by significant
stakeholders (including States and business)?
As discussed earlier, soft
law will be at its most effective when it ‘stands not in isolation’
but ‘instead, [as]
it is used most frequently either as a precursor to
hard law or as a supplement to a hard-law
instrument’[71] and from this
it might obtain a certain element of bindingness. Soft law standing alone can
lack legitimacy if not coupled with
any binding law for either the source of the
obligation or its enforcement mechanisms. The linkage between the rights and the
responsibility
to respect them, as set out in the Guiding Principles, is
amorphous and not grounded in legal
obligation.[72] On this point, the
development of the Guiding Principles on Business and Human Rights can be
contrasted with the establishment of
the UN Guiding Principles on Internal
Displacement.[73] Similar to some of
the reasons proposed by the SRSG in eschewing a treaty form for business, UN
Special Representative Francis Deng
favoured casting the Guiding Principles for
internally displaced persons (IDPs) in its ‘softer’ form because it
was more
timely and likely to achieve a broader degree of consensus. However,
with respect to IDPs, it was also recognised that existing treaties
already
covered many of the rights and obligations associated with IDPs and that Deng
was essentially ‘graft[ing] soft law
onto a hard law
foundation’.[74] This is a
point of distinction between the two sets of Guiding Principles. The second
pillar of the Framework, the corporate responsibility
to respect, is not
grounded by the SRSG in hard law, being based instead on societal expectations,
which has the effect of reducing
its normative value and making it softer and
more inchoate than what might be required.
In considering the normative
potential (and thus bindingness) of the corporate responsibility to respect, one
relevant factor to consider
is the forum in which the Principles were developed
and adopted. The fact that the Guiding Principles have the endorsement of the
UN
Human Rights Council and grew out of a collaborative process managed and
monitored by the then UN Commission on Human Rights and
now the Council adds to
their authoritative status and moves them up the continuum of soft to a more
potentially binding form of
law. In theory, given the degree of consultation and
consensus (of governments) sought and achieved by the SRSG during his mandate,
there is the potential to generate State compliance. ‘[A] central property
of soft law as a norm-generating mechanism is its
ability to contribute to the
internalisation of new norms within States by becoming entrenched in domestic
legislation.’[75] The
internalisation of the Guiding Principles on Internal Displacement in numerous
domestic laws has been a significant factor in
maintaining compliance with them.
It is critical to the success of the Guiding Principles on Business and Human
Rights that States
are willing and ready to recognise their authority and
incorporate them into domestic law.
Whether States will similarly
internalise the Guiding Principles on Business and Human Rights may be
influenced by the authoritative
nature of the content and language of the
Guiding Principles. Depending on your viewpoint, the corporate responsibility to
respect,
either offers the necessary flexibility for companies to ‘know
and show’[76] their respect
for human rights or allows ‘for too much wiggle room [and includes] too
many “shoulds” in place of
“shalls”’.[77] The
language used in the Guiding Principles when framing the corporate
responsibility to respect human rights, is generally non-authoritative,
and in
itself unlikely to provoke a normative
response.[78] The SRSG’s
emphasis on pragmatism has dictated the framing of the language throughout the
Guiding Principles but is nowhere
more evident than in relation to the second
pillar, the corporate responsibility to respect rights. The ambiguity of the
language
is likely to be welcomed by some stakeholders to allow for specific
idiosyncratic tailoring of responses at an industry and State
level. On the
other hand, the looseness of the language is perhaps more likely to invite
inaction and a business-as-usual approach
from companies that remain hesitant
about their responsibility to act.
The fact that the Guiding Principles
were endorsed by the UN Human Rights Council means that its status ranks far
beyond a code such
as that of, for example the Fair Labour Association which is
adopted by 37 companies.[79] The
institutional setting of the UN is important but not determinative. The UN
Global Compact had the backing of the UN Secretary
General yet it is difficult
to find a less binding version of soft law than the Compact. However,
the endorsement of the Guiding Principles by the UN Human Rights Council has
strengthened its position as an authoritative
instrument of soft law. In
addition the revision of the Organisation for Economic Cooperation and
Development’s (OECD) Guidelines
for Multinational Enterprises in 2011 was
heavily influenced by the work of the Special Representative indicating some
convergence
internationally behind the Principles. In July 2011, the UN Human
Rights Council decided to establish a Working Group ‘to promote
the
effective and comprehensive dissemination and implementation of the Guiding
Principles’ and consists of five independent
experts, of balanced
geographical representation, for a period of three years. The Council also
decided to establish a Forum on
business and human rights under the guidance of
the Working Group to meet annually to discuss trends and challenges in the
implementation
of the Guiding Principles and promote dialogue and cooperation on
issues linked to business and human rights.
[80] The Working Group and the annual
Forum are the principal follow-up mechanisms established following the end of
the SRSG’s term
but the open-ended wording of the Council’s
resolution focuses on further consensus building, prizing dialogue and
information-gathering
over accountability. This does not bode well for
developing a process to harden the corporate responsibility to respect and thus
develop a mechanism to ensure greater robustness and uniformity in protecting
individuals from corporate violations of human rights.
4. CONCLUSION
Highlighting the limitations of soft law in
holding corporations to account for human rights violations is a straightforward
task
particularly if one focuses on the selective nature of the standard-setting
and participants involved, and the lack of strong accountability
measures to
enforce it. But the clamour for hard international law is a difficult process
and not one that necessarily resolves all
these issues. International human
rights law is not renowned for its enforceability and the path to a treaty
requires political commitment
that is not currently forthcoming in this field.
There is no doubt that what is required is both a mix of soft and hard law (both
domestic and international) but if heavy reliance is to be placed on soft law it
should be done in such a manner that will generate
consistent and uniform
compliance in generating greater corporate respect for human rights. The most
recent soft law initiative
that speaks to a corporation’s responsibility
toward human rights –the Guiding Principles - needs more clearly defined
parameters and less ‘wiggle room’ for business. Formulating and
adopting coherent policies and gathering them into an
international soft
instrument is a positive step but not sufficient. One of the major challenges
for international standard setting
is ensuring compliance and it is in this area
where the Guiding Principles are weakest. The fact that the source of the
corporate
responsibility is inchoate and the language adopted to frame the
second pillar is ambiguous means that the result is the development
of a
non-authoritative ‘pillar’ that is unlikely to induce strong
normative change.
Given the political climate in which the SRSG was
appointed, the pragmatic approach and reliance on soft law with regard to a
corporation’s
responsibilities toward human rights is understandable, but
inadequate. While the SRSG has successfully sought to craft a framework
of
guidelines palatable to States and business, the path of principled pragmatism
has led to the development of soft law guidelines
that prize dialogue and
consensus over ambition. However, a harder edge could be given to this soft law
approach to develop a more
robust framework that not only encourages, but
requires corporations to respect human rights. Legally mandating and clarifying
what
is required of the due diligence component of the corporate responsibility
to respect is one that should be taken by States as part
of their duty to
protect human rights. The source of the corporate responsibility to respect
rights should also be linked to international
human rights law and not left to
the whim of society.
As has been evident from the past, securing the
engagement of business in human rights issues as part of a soft form of
regulation,
is not a fool-proof method for obtaining success, nor is it a
straightforward process. Writing in 1999, Addo commented that ‘only
a
selected few among private corporations are likely to willingly submit to new
responsibilities without being legally compelled
to do
so’.[81] Over a decade later,
Addo’s comment still rings true. While the number of corporations prepared
to adopt human rights policies
may have risen, the limited mechanisms for
enforcing such policies remain largely embedded in soft law, that unless
hardened, will
have a very limited effect in preventing future violations of
human rights by corporations.
[1] Human Rights Council,
‘Human Rights and transnational corporations and other business
enterprises’ UN Doc. A/HRC/RES/17/4,
(6 July 2011),
www.business-humanrights.org/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf
(last accessed 16 August 2012).
[2]
Human Rights Council, ‘Protect, Respect and Remedy: A Framework for
Business and Human Rights: Report of the Special Representative
of the Secretary
General on the Issue of Human Rights and Transnational Corporations and Other
Business Enterprises’, A/HRC/8/5
(7 April 2008) (SRSG, ‘2008
Report’).
[3] Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework: Report of the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprises’, A/HRC/17/31 (21 March 2011) (SRSG ‘2011 Guiding Principles’) at Guiding Principle 11 [II.A.11] at 13.
[4] Ibid.
[5]A. Ganesan (Human Rights Watch), ‘UN Human Rights Council: Weak Stance on Business Standards’ ( 16 June 2011), www.hrw.org/news/2011/06/16/un-human-rights-council-weak-stance-business-standards (last accessed 10 October 2012).
[6] SRSG, ‘The UN "Protect, Respect and Remedy" Framework for Business and Human Rights’ (September 2010), http://198.170.85.29/Ruggie-protect-respect-remedy-framework.pdf (last accessed 4 December 2012).
[7] Regulation as referred to in this paper incorporates both formal and informal mechanisms or techniques designed to influence or at times coerce corporations to better respect and/or protect human rights.
[8] D. Shelton, ‘Normative hierarchy in international law’ (2006) 100 American Journal of International Law 291, at 319.
[9] See further discussion at n 25.
[10] SRSG, ‘2008 Report’, n 2, para 54 ; and SRSG, ‘2011 Report’, n 3, Guiding Principle 11[ II.A.11].
[11] J. Ruggie, ‘Treaty road not travelled’ (May 2008), www.hks.harvard.edu/m-rcbg/news/ruggie/Pages%20from%20ECM%20May_FINAL_JohnRuggie_may%2010.pdf (last accessed 9 October 2012).
[12] P. Muchlinkski ‘Human Rights and Multinationals: Is there a Problem?’ (2001) 77 International Affairs 31 at 46.
[13] L. Baccaro and V. Mele, ‘For lack of anything better? International organizations and global corporate codes’ (2011) 89 Public Administration 451.
[14] C.Scott, F. Cafaggi and L. Senden, ‘The Conceptual and Constitutional Challenge of Transnational Private Regulation’ (2011) 38 Journal of Law and Society 1, at 2.
[15] C.M. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) 38 International and Comparative Law Quarterly 850 at 850..
[16] D. Shelton, ‘Normative hierarchy in international law’ n 8, 319.
[17] C.M. Chinkin, ‘The
Challenge of Soft Law’ n15, 851; also see generally S. Freeland,
‘For Better or For Worse? The
Use of “Soft Law” within the
International Legal Regulation of Outer Space’ (2011) XXXVI Annals of
Air and Space Law 409.
[18]
A.E. Boyle, ‘Some Reflections on the Relationship of Treaties and Soft
Law’ (1999) 48 International and Comparative Law Quarterly 901, at
901-902.
[19] Ibid., at 902-907.
[20] United Nations Sub-Commission on the Promotion and Protection of Human Rights, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, E/CN.4/Sub.2/2003/12/Rev.2 (2003) (`UN Draft Norms’). See also the discussion at n 46
[21] See in this book S. Deva, ‘Treating Human Rights Lightly: a Critique of the Consensus Rhetoric and Language Employed by the Guiding Principles’ pTBA
[22] Although such involvement can also be incorporated within the treaty making process. For example, civil society was strongly involved in the development and drafting of an international treaty that led to the establishment of the International Criminal Court: the Rome Statute of the International Criminal Court.
[23] Waiting for Godot is a play by Samuel Beckett, in which two characters, Vladimir and Estragon, wait endlessly and in vain for someone named Godot to arrive.
[24] Chinkin, ‘The Challenge of Soft Law’ n 15,851.
[25] Institute for Human Rights and Business, ‘From Red Flags to Green Flags: The corporate responsibility to respect human rights in high-risk countries’ (2011), www.ihrb.org/pdf/from_red_to_green_flags/complete_report.pdf (last accessed 10 October, 2012), 39.
[26] C. Jochnick, ‘Making Headway on Business and Human Rights’ (11 February 2011), http://politicsofpoverty.oxfamamerica.org/2011/02/11/making-headway-on-business-and-human-rights/ (last accessed 10 October 2012). See examples from The Guiding Princples at n 79.
[27] Baccaro and Mele, ‘International Organisations’, n 13 at 453.
[28] Boyle, ‘Some Reflections’, n18 at 913.
[29] Human Rights Council, ‘Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts’, A/HRC/4/035 (4 February, 2007) (SRSG, ‘2007 Report’) at para. 7.
[30] There is a diversity of opinions on the extent to which international human rights law currently binds (directly or indirectly) corporations. See for example D. Bilchitz, ‘A Chasm Between ‘Is’ and ‘Ought’? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles’ in this book, pTBA
[31] O. De Schutter, ‘Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations’ (2006) www.corporatejustice.org/IMG/pdf/Extraterritorialityreport_DeSchutter.pdf (last accessed 16 August 2012).
[32] P. Utting, ‘UN-Business Partnerships: Whose Agenda Counts?’ (Paper presented at a seminar on Partnerships for Development or Privatization of the Multilateral System?, Oslo, 8 December 2000) 2. www.unrisd.org/unrisd/website/document.nsf/d2a23ad2d50cb2a280256eb300385855/a687857bd5e36114c1256c3600434b5f/$FILE/utting.pdf (last accessed 30 January 2013).
[33] S. J. Rubin,
‘Transnational Corporations and International Codes of Conduct: A Study of
the Relationship between International
Legal Cooperation and Economic
Development’ (1995) 10 American University International Law Review
1282.
[34] P. Utting,
‘Rethinking Business Regulation: From Self Regulation to Social
Control’, (September 2005),
www.unrisd.org/unrisd/website/document.nsf/ab82a6805797760f80256b4f005da1ab/f02ac3db0ed406e0c12570a10029bec8/$FILE/utting.pdf
(last accessed 11 December 2012). .
[35] A. Zammit, Development at Risk: Rethinking UN-Business Partnerships (UNRISD, Geneva, 2003), Chapter III. Also see P. Utting, ‘UN-Business Partnerships’ n 32, 3. Recent examples include the establishment of the UN Foundation with a one billion dollar grant from CNN founder Ted Turner and the establishment of the Global Alliance for Vaccines and Immunizations whose contributors include the Bill and Melinda Gates Foundation.
[36] See United Nations Global Compact www.unglobalcompact.org (last accessed 9 October 2012).
[37] OECD Guidelines for Multinational Enterprises, www.oecd.org/daf/internationalinvestment/guidelinesformultinationalenterprises/48004323.pdf (last accessed on 27 January 2013); and the ILO Tripartite declaration of principles concerning multinational enterprises and social policy (MNE Declaration) - 4th Edition, www.ilo.org/empent/Publications/WCMS_094386/lang--en/index.htm (last accessed 12 October 2012).
[38] L. Sullivan, The Sullivan Principles (1977).
[39] S. McManus for the Irish National Caucus, The MacBride Principles (1984).
[40] Examples include: the Fair Labor Association’s Workplace Code of Conduct and monitoring scheme, Social Accountability 8000, the Ethical Trading Initiative, the Global Reporting Initiative and the Voluntary Principles on Security and Human Rights.
[41] Human Rights council, ‘Business and Human Rights: Further steps towards the operationalization of the “protect, respect, remedy” framework’ A/HRC/14/27 (9 April 2010) (SRSG, ‘2010 Report’), para. 82.
[42] See UN Global Compact www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html (last accessed 9 October 2012).
[43] S. Deva, ‘The UN Global Compact for Responsible Corporate Citizenship: Is it still too compact to be global?’ (2006) 2 Corporate Governance Law Review 145; J. Nolan, ‘The United Nations’ Compact with Business: Hindering or Helping the Protection of Human Rights?’ [2005] UQLawJl 26; (2005) 24 University of Queensland Law Journal 445; and Baccaro and Mele, ‘International Organisations’, n 13 at 460.
[44] UN Sub-Commission on the Promotion and Protection of Human Rights, ‘The effects of the working methods and activities of transnational corporations on the enjoyment of human rights’, E/CN.4/Sub.2/RES/2001/3 (15 August 2001).
[45] J. Nolan, ‘With Power comes Responsibility: Human Rights and Corporate Accountability’ (2005) 28 University of New South Wales Law Journal- 581 at 585; and D. Kinley, J. Nolan and N.Zerial ‘Reflections on the United Nations Human Rights Norms for Corporations’ (2007) 25 Companies and Securities Law Journal 30, at 34-37.
[46] See generally, D. Kinley, J. Nolan and N. Zerial ‘Reflections’ n 45.
[47] Commission on Human Rights, Agenda Item 17, E/CN.4/2005/L.87 (15 April 2005); and United Nations, Secretary-General Appoints John Ruggie of United States Special Representative on Issue of Human Rights,Transnational Corporations, Other Business Enterprises SGA/A/934 (28 July 2005), www.un.org/News/Press/docs/2005/sga934.doc.htm (last accessed 12 October 2012). On 28 July 2005, the UN Secretary General appointed Professor John Ruggie as the UN Special Representative. Professor Ruggie previously served as UN Assistant Secretary-General and senior adviser for strategic planning from 1997 to 2001. He was one of the main architects of the United Nations Global Compact, and he led the Secretary-General’s effort at the Millennium Summit in 2000 to propose and secure the adoption of the Millennium Development Goals.
[48] J. Ruggie, Remarks delivered at a forum on Corporate Social Responsibility Co-Sponsored by the Fair Labor Association and the German Network of Business Ethics (Bamburg, Germany, 14 June 2006), www.reports-and-materials.org/Ruggie-remarks-to-Fair-Labor-Association-and-German-Network-of-Business-Ethics-14-June-2006.pdf (last accessed 9 October 2012).
[49] The reports are easily accessible at www.business-humanrights.org/SpecialRepPortal/Home (last accessed 12 October 2012).
[50] SRSG, ‘2008 Report’, n 2 at 1.
[51] Ibid.
[52] See discussion at n 60 for an explanation of principled pragmatism
[53] Human Rights Council, Seventeenth session, Agenda item 3 ‘Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development’, A/HRC/RES/17/4 (6 July 2011) para 6 (a), www.business-humanrights.org/media/documents/un-human-rights-council-resolution-re-human-rights-transnational-corps-eng-6-jul-2011.pdf (last visited 9 October 2012).
[54] Milton Friedman, ‘The Social Responsibility of Business is to Increase its Profits’, New York Times, (13 September 1970), 32
[55] See also in this book on this topic N.Jagers ‘Will Transnational Private Regulation Close the Governance Gap?’ pTBA
[56] Commission on Human Rights, ‘Interim Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, E/CN.4/2006/97 (22 February 2006), paras 31-53 (SRSG, ‘2006 Interim Report’).[57] Ibid., at para. 53.
[58] Ibid., at para. 59.
[59] Ibid.,at para. 81.
[60] P.Orchard, ‘Protection of internally displaced persons: soft law as a norm-generating mechanism’ (2010) 36 Review of International Studies 281 at 286.
[61] D. Kinley, Civilising
Globalisation (Cambridge University Press, 2009),
198.
[62] Remarks by SRSG John
Ruggie “The ‘Protect, Respect and Remedy Framework:
Implications
for the ILO” International Labour Conference (Geneva, 3 June 2010) 3, www.ilo.org/wcmsp5/groups/public/@ed_emp/@emp_ent/@multi/documents/genericdocument/wcms_142560.pdf
(last accessed 11 December 2012). Also, see the Interview with Professor John
Ruggie, Special Representative of the UN Secretary-General
on business &
human rights by the International Bar Association, www.ibanet.org/Article/Detail.aspx?ArticleUid=4b5233cb-f4b9-4fcd-9779-77e7e85e4d83
(last accessed 9 October 2012).
[63] SRSG, ‘2011 Report’, n 3 at Guiding Principle 11[II.A.11].
[64] Ibid.
[65] See also in this regard, D. Bilchitz, ‘A Chasm Between ‘Is’ and ‘Ought’? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles pTBA
[66] SRSG, ‘2008 Report’, n 2, para. 54.
[67] See for example the comments of Ganesan, ‘UN Human Rights Council’, n 5.
[68] D. Shelton, ‘Normative
Hierarchy’, n 8, 321.
[69]
G.F. Handl, W.M. Reisman, B. Simma, P.M. Dupuy and C. Chinkin,
‘A Hard Look at Soft Law’ 82 (1988) American. Soceity of
International Law Procedure 371 at 372.
[70] See discussion at n 25-26..
[71] D. Shelton, ‘Normative
Hierarchy’, n 8,
320.
[72]In terms of the Guiding
Principles acting as the basis for the future hard law, it can be said that the
SRSG has effectively closed
(but perhaps not slammed) the door on developing a
general or comprehensive treaty governing corporations’ responsibilities
to human rights (with the exception of corporate liability for international
crimes). See SRSG, ‘Treaty Road’, n 111, but in respect of a narrower area,
that of corporate liability for international crimes, the SRSG has recognised
such liability,
and arguably a treaty in this area would be more politically
feasible. See also SRSG, ‘2007 Report’, n 29, para 19-32;
and P.
Simons, ‘International law’s invisible hand and the future of
corporate accountability for violations of human
rights’ (2012) 3
Journal of Human Rights and the Environment 5, at 12.
[73] United Nations, ‘Handbook for the Protection of Internally Displaced Persons, Provisional Release 2007 (Annex 1)’ E/CN.4/1998/53/Add2(1998): www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=47949b3f2&query=guiding%20principles%20internal%20displacement (last accessed on 9 October 2012).
[74] P. Orchard, ‘Protection of Internally Displaced Persons’, n 60, 293
[75] Ibid., 286.
[77] C. Jochnick, ‘Making Headway on Business and Human Rights’ n 26..
[78] For example, Guiding Principle 11 ‘Business enterprises...should address adverse human rights impacts...’ or Guiding Principle 13 ‘The responsibility to respect human rights requires that business enterprises:... (b) Seek to prevent or mitigate adverse human rights impacts’ or or Guiding Principle 23 ‘In all contexts, business enterprises should:... (b) Seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements’ or Guiding Principle 24 ‘business enterprises should first seek to prevent’. [emphasis added].
[79] Fair Labor Association www.fairlabor.org (last accessed on 9
October 2012).
[80] Human
Rights Council, ‘Human rights and transnational corporations and other
business enterprises’, A/HRC/RES/17/4, (6 July 2011).
[81] M. K. Addo, ‘Human Rights and Transnational Corporations – an introduction’ in M. K. Addo (ed) Human Rights and Transnational Corporations (The Hague: Kluwer Law International, 2001), 11.
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