Category Archives: Corporate Accountability

Human Rights, No Dogmas: The UN Guiding Principles on Business and Human Rights

John Tasioulas is Chair and Director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College London and, during 2014-15, a Fellow at the Radcliffe Institute for Advanced Study at Harvard University. He is the co-editor of The Philosophy of International Law (OUP, 2010).

The Guiding Principles on Business and Human Rights (GPs) are a bold and imaginative experiment in human rights governance. It would be premature to hazard a definitive verdict on their overall success in raising the level of human rights compliance among corporations. However, there are promising signs that the principles are becoming entrenched in what John Ruggie has called “the regulatory ecosystem for business and human rights”.[1] Still, I believe we can already conclude that the GPs vividly illustrate the impressive flexibility possessed by human rights as regulatory tools. This is in stark contrast to recent efforts by leading philosophers – including John Rawls, Jürgen Habermas, and Joseph Raz[2] – to regiment the concept of a human right in various ways. The irony is that such exercises in conceptual regimentation are usually advanced on the basis that they reflect the real world practice of human rights. Yet this same practice, as exemplified by innovations such as the GPs, breaks the conceptual shackles that philosophers have sought to place on it, and does so for compelling reasons.

Two dogmas about human rights are especially prominent among these conceptual shackles. The first is the statist dogma that human rights impose obligations exclusively or principally on states. This has the automatic effect of rendering problematic the very idea that business enterprises bear primary, rather than derivative, human rights responsibilities. The other is the legalist dogma that human rights, even if they are not themselves fundamentally legal standards, are to be implemented exclusively or principally through the medium of (enforceable) law. The two dogmas make natural companions, since it is states that play the central legislative role at the global, regional and national levels. And, with respect to international human rights law, at least, states are normally taken to be the only or primary duty-bearers. But even supposing that the two dogmas are faithful to the nature of human rights law, it is doubtful that they are true of human rights understood as underlying moral-political ideals.[3]

The GPs mount a frontal assault on statism by assigning human rights responsibilities to corporations quite independently of any legal or other demands their home or host states may impose on them. Moreover, to the extent that they bear these responsibilities, it is not because corporations are deemed to be ‘state–like’ entities that discharge governmental functions. This is made clear by the fact that the GPs assign corporations and states significantly different responsibilities. States have a governance duty to promote human rights compliance by third parties, for example, through the enactment of human rights laws that bind business enterprises. By contrast, no such governance role is ascribed to corporations. Instead, they are obligated only to respect human rights in their own activities, including in their relationships with third parties. Such respect includes taking appropriate remedial and other measures in response to their human rights violations or those of their partners. These differential responsibilities respond directly to the concern, voiced both within and beyond the business community, that the GPs will lead to an undesirable “privatisation” of human rights. The line between “protect” and “respect” is meant to ensure that corporations are not lumbered with – or, from a different perspective, do not usurp – obligations that properly belong to governments.

The anti-legalism of the GPs is signalled in a number of ways. Although the names, and perhaps the content, of the human rights that corporations should respect are derived from international human rights law, the GPs do not in themselves possess any legal standing. Instead, they are intended to provide an authoritative and publicly acknowledged specification of the human rights responsibilities applicable to corporations. In this way they can act as focal points for co-ordination that help overcome obstacles to human rights compliance on the part of both states and business enterprises. As Ruggie nicely put it in his monograph Just Business, the GPs address the question of “[w]here companies should look for an authoritative enumeration, not of human rights laws that might apply to them, but of human rights they should respect”.[4] This assumes, correctly in my view, that human rights are not fundamentally legal standards, but independent moral-political standards that human rights law often seeks to embody and implement.

But, in fact, the GPs are even more radically anti-legalistic than the previous paragraph suggests. Not only are they not legal standards, we should also not conceive of the GPs as standards that always ought to become law, “laws-in-waiting”, as it were. Indeed, in rare a moment of philosophical self-disclosure in Just Business, Ruggie endorses Amartya Sen’s view that treating human rights either as the progeny or parents of law would “unduly constrict – Sen actually uses the term “incarcerate” – the social logics and processes other than law that drive enduring public recognition of rights”.[5] This idea feeds into Ruggie’s broader conclusion that human rights should be secured through forms of “polycentric governance” in which international and domestic legal mechanisms, in all their diverse manifestations, are one modality of governance among others, with their deployment being dependent on their comparative efficacy.

The general idea that law is just one institutional mechanism for implementing human rights has numerous implications in the GPs. One is a welcome emphasis on fostering a human rights consciousness within the ethos of day-to-day corporate life, primarily by means of embedding routine forms of due diligence geared to identifying, preventing, and addressing adverse impacts on human rights. Another is the idea that business-related human rights violations are to be remedied through non–judicial, as well as formal judicial, grievance mechanisms. Again, the GPs here plausibly challenge the naïve assumption that any human rights violation worthy of the name must always be subject to legal redress. Of course, there are conditions that any adequate non-judicial mechanism will need to satisfy in order to be effective, including safeguards against corporations becoming judges in their own case.

Another important aspect of the GP’s anti-legalism is the idea that significant improvements in human rights compliance by business can be achieved in the absence of a comprehensive legally binding instrument, such as a multilateral treaty on the topic. The objections to such a treaty are a combination of the pragmatic and the principled. Among the pragmatic, there is the dearth of state support for such a treaty or consensus as to its provisions, the inordinate amount of time it would need to be negotiated, and the risk that states will use this delay as an excuse for not taking action. Among the principled, the concern that a universal treaty would either unduly constrain state discretion in striking a balance among competing considerations or, alternatively, that it would be too vague to provide effective guidance.

In line with his appeal to “polycentric governance” and a “smart mix of measures”, Ruggie contends that the GPs can prepare the ground for further legal developments, including the use of more limited treaties as “precision tools”. Elaborating on this suggestion, in his Geneva speech Ruggie proposed that consideration be given to a “legal instrument addressing corporate involvement in the category of “gross” human rights violations”,[6] since this class of human rights abuses is the most severe and its eradication has the backing of a broad international consensus.

I want to conclude by raising two questions about this attractive proposal. The first relates to how the category of “gross” human rights abuses is to be picked out. Ruggie had previously suggested that the category included those violations “that may rise to the level of international crimes, such as genocide, extrajudicial killings, and slavery or slavery-like practices”.[7] However, criminality is a problematic criterion. First, there is considerable variation within the category of international crimes as to both severity and consensus. Piracy, for example, although an international crime, is hardly on the same level of moral turpitude as slavery. One response to this concern is to invoke particularly heinous sub-category of international crimes, such as crimes against humanity. But even assuming that a crimes against humanity approach, with its requirement of a widespread or systematic attack on a civilian population, is not unduly restrictive, another problem remains. Criminality carries the implication that the most appropriate, or even required, remedy is punishment. This will be especially so when grave wrong-doing of the kind entailed by crimes against humanity is in question. Although the punishment of corporations or their officers may often be warranted for their involvement in gross human rights violations, it would be undesirable to obscure the need for other sorts of legal responses, such as injunctions or compensation orders.[8]

In view of the foregoing difficulties, perhaps a superior general criterion for identifying the relevant human rights violations is by reference to norms that enjoy the legal status of jus cogens – international legal norms that bind all states irrespective of their consent. The creation of a more limited treaty on business and human rights could then be seen as one way of discharging the universal obligation on states to secure this special category of rights. This proposal, however, is hostage to the ongoing controversy about which norms, including which human rights norms, qualify as jus cogens. Yet another possibility is to abandon the search for a general criterion and to adopt a more piecemeal and opportunistic approach. Treaties could be established to trouble-shoot particular kinds of corporate human rights violations, e.g. a treaty to combat the targeting of children by the tobacco industry. I suspect the latter, more modest strategy may well be the most effective and realistic in the foreseeable future.

I turn now to my second question about Ruggie’s proposal. One reason he gives for opposing a comprehensive multilateral treaty is its scale: “while business and human rights may be a single label that we attach to a range of activities, it is so vast, diverse, and conflicted an issue area that it does not lend itself though a single set of comprehensive and actionable treaty obligations”.[9] But why is the single set of responsibilities articulated by the GPs any less subject to this objection? Surely they too are supposed to be “comprehensive and actionable”? One possible reason Ruggie may have in mind – and here I am engaging in speculation, partly in the hope that he will disown this interpretation – is that the GPs are more flexible than treaty provisions in being ultimately rooted in “social expectations”. That they are so rooted is an idea that repeatedly crops up in Just Business. But this imagined response raises the vexing prospect that the level of human rights protection afforded by the GPs will vary from society to society depending on nothing more than contingent facts about the “expectations” of the host society. The idea of unitary human rights standards for the entire globe goes by the board. In consequence, Western transnational corporations operating in the less developed countries will be subject to weaker standards, corresponding to the minimal “expectations” of societies accustomed and resigned to oppression. By contrast, non-Western transnational corporations, of which Ruggie rightly points out there is an ever-increasing number, will be held to much higher standards when operating in Western environments. Whatever the advantages of the GPs over a comprehensive multilateral treaty, the licensing of double standards in human rights governance cannot be among them.

[1] J. Ruggie, Closing Plenary Remarks, 3rd UN Forum on Business & Human Rights, Geneva, December 3, 2014.

[2] J. Rawls, The Law of Peoples (Harvard University Press, 1999); J. Habermas, The Postnational Constellation (MIT Press, 2001); J. Raz, ‘Human Rights without Foundations’, in S. Besson and J. Tasioulas (eds), The Philosophy of International Law (OUP, 2010).

[3] J. Tasioulas, ‘On the Nature of Human Rights’, in G. Ernst and J-C Heilinger (eds), The Philosophy of Human Rights: Contemporary Controversies (de Gruyter, 2012), pp.17-59.

[4] J. Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton & Co, 2013), p.96.

[5] J. Ruggie, Just Business, p.xxxv.

[6] J. Ruggie, “Closing Plenary Remarks”, p.7.

[7] J. Ruggie, “A UN Business and Human Rights Treaty?”, 28 January 2014, p.5.

[8] For sage reflections on the ‘awkward fit’ between human rights and criminal law, see O. Fiss, The Dictates of Justice: Essays on Law and Human Rights (Republic of Letters, 2011), ch.5.

[9] J. Ruggie, “Closing Plenary Remarks”, p.6.

Incorporating Rights: Making the Most of the Meantime

Erika George is a Professor of Law and Co-Director Center for Global Justice at the S.J. Quinney College of Law of the University of Utah and author of the forthcoming, Incorporating Rights: Corporate Social Responsibility, Conscious Communities and Transnational Orders under contract Oxford University Press.

In June 2014 the U.N. Human Rights Council adopted a resolution establishing an open-ended intergovernmental working group to commence deliberations and draft an international legally binding instrument on transnational corporations. The Council also agreed to extend the mandate of the U.N. Working Group on Business and Human Rights, the entity created to promote the U.N. Guiding Principles on Business and Human Rights. The Guiding Principles are a non-legally binding set of standards created consistent with an earlier Council mandate to “operationalize” the “Protect, Respect and Remedy Framework.”

The Council’s action advancing treaty talks could be seen as calling into question the durability of the Framework and Guiding Principles or as undermining short and medium term measures to address business and human rights challenges. This would be unfortunate, but as various stakeholders contest the merits of a binding international instrument in light of the Council’s actions many observers are asking: which direction should the business and human rights movement go?

It is now clear that the movement will take parallel paths. Work must proceed on several fronts to ensure that business enterprises align their practices with respect for human rights. However, I believe the movement stands to advance human rights protection farther faster by insisting on more aggressive implementation of the Guiding Principles. In the absence of a binding international agreement, or until one is put in place, I believe future efforts should place emphasis on two things to advance protection: (1) the importance of access to information about business impacts on human rights, and (2) the imperative of access to a fair forum to provide remedy to victims of rights violations.

I do not believe another international human rights treaty will be sufficient to bring about the constructive changes necessary to ensure that human dignity is not disregarded in today’s dynamic global economy. Constructive change will require more than law. It will require that we cultivate ethical business cultures through ensuring that human rights are incorporated into business strategy as a matter of routine daily decision-making. I believe the Guiding Principles provide a more promising path for bringing business conduct into alignment with respect for human rights by contributing to the creation of conditions that could change the culture of global commerce.

In his closing plenary remarks to the Third U.N. Forum on Business and Human Rights in December 2014, the former U.N. Special Representative for Business & Human Rights, Professor John Ruggie, reminded those stakeholders in attendance that the Guiding Principles were simply intended to be the “end of the beginning.” Accordingly, the Guiding Principles should not have been expected to end of all business and human rights challenges.

Indeed, challenges do remain and expectations have not been met. In her closing remarks to the U.N. Forum, Audrey Gaughran, speaking on behalf of Amnesty International, expressed support for an international treaty. She observed that little has changed for the victims of violations since the endorsement of the Guiding Principles. According to Amnesty International, it remains “easy and cheap” for the less socially conscious members of the corporate community to abuse human rights with impunity. In the organization’s experience, businesses continue to “deny and lie” even when confronted with evidence of abuse and only will compensate victims of violations after being compelled to do so by a court of law. The challenges identified by human rights advocates are real and more must be done to address them. Will the treaty proposal get us where we need to be?

Hard law will be hard to devise and it may not be the most appropriate device to address the business and human rights challenges of most urgent concern. Historically, there has been a lack of political support for binding international regulation in this area. For instance, an earlier effort to do so, the UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, drew strong and immediate objections. Political support for future efforts will likely remain weak. Moreover, as Professor Ruggie observed in his remarks to the Forum, business and human rights challenges are myriad: “while business and human rights may be a single label that we attach to a range of activities, it is [a] vast, diverse, and conflicted an issue area that it does not lend itself to governance through a single set of comprehensive and actionable treaty obligations.”

While proponents should not be dissuaded by the difficulty of developing a binding instrument or by political opposition to it, I am not particularly optimistic about the potential of the effort. First, the present proposal is too limited in scope. The focus on the conduct of transnational business organizations fails to appreciate that local businesses also impact human rights and are often linked to global supply chains. This limitation would be a step back from the Framework and Guiding Principles which take into account the risk of harm any commercial enterprise, no matter the size or location, has the potential to place human rights at risk. Second, it is far from clear that obligations set forth in a business and human rights treaty would be adopted or enforced. Several existing binding international human rights legal instruments are simply not enforced.

What the Guiding Principles offer is the potential for international human rights to be operationalized. If business decisions were made with human rights in mind, as the due diligence and impact assessment components of the Guiding Principles detail, many adverse impacts and rights abuses could be avoided in the first instance by those businesses enterprises that care to conduct business consciously.

To date, the Guiding Principles have been underestimated and under utilized. In some instances, the Guiding Principles have been unfairly criticized. Far from foreclosing future developments in laws or policies to address business and human rights challenges, the introduction to the Guiding Principles acknowledges the possibility of “promising longer-term developments” and invites “cumulative progress.” There is encouraging evidence that the Guiding Principles are gaining traction with some governments and among some segments of the business community that would be well situated to develop business practices that respect human rights, pass laws and provide forums for resolving disputes. A treaty will be a long time coming, if ever. In the meantime there must be progress towards advancing human rights protection. What should the business and human rights movement do to make the most of the meantime?

In the context of the treaty proposal, Professor Ruggie has suggested as an initial step consideration of “gross” human rights violations. While I appreciate the political feasibility of taking on the worst abuses first, it is in the banality of the day-to-day decision-making that a real difference can be made. I believe we must begin with more public information about the human rights impacts of particular industries and certain business practices. Exploring binding legal instruments that would require integrated reporting in high impact industry sectors could be a beginning. Transparency is a prerequisite for protecting human rights. Often exposure of abuses ends impunity and can contribute to accountability.

More can be done to promote transformation in business practices through greater transparency about human rights impacts. National Action Plans promoting transparency regulations could serve to bring about the conditions under which soft standards are strengthened. Presently, global supply chains connect conscious consumers and investors with conditions of production they would find unconscionable for the adverse human rights impacts involved.

The promotion of well-crafted transparency regimes requiring reporting about human rights impacts could serve to drive systemic changes by: (1) empowering consumers and investors to make informed choices consistent with their values, and (2) enabling commercial enterprises to address risks practices present to human rights and reverse adverse impacts. Information has an important role to play to in promoting an ethical business culture and preventing abuse—provided there are marketplace or other penalties. Abusing human rights must be made difficult and costly for business enterprise.

Having observed and participated in each annual U.N. Forum the renewed effort to advance a binding instrument did not come as a complete surprise to me. While business stakeholders at the Forum share strategies for developing impact assessments and due diligence programs, the concerns articulated by NGOs have centered on the third pillar of the Framework—access to remedy. The renewed push for a binding instrument is due in significant part to the Framework process falling far short of the expectations of certain stakeholder constituencies, particularly on the issue of access to remedy for victims of rights violations.

Pursuant to the Council Resolution renewing its mandate, the Working Group on Business and Human Rights will launch an inclusive and transparent consultative process with States in 2015 and open to other relevant stakeholders to explore legal and practical measures to improve access to remedy through judicial and non-judicial forums. This will be critically important work if the Guiding Principles and Framework process is to remain credible, particularly to victims of rights violations. Here, I would like to see more attention devoted to strengthening the capacities of the OCED National Contact Points to resolve disputes and more study of the potential reach of extraterritorial jurisdiction to provide access to adjudication of claims. Creating incentives for industry actors to address the issues raised by alleged victims of abuse must also be considered.

Stakeholders in the business and human rights movement speak of a “smart mix” to fix the global governance gap that gives rise to abuses. Hard law may be required to ensure access to remedy to victims, but soft law and standard setting should not be underestimated for preventing violations. To be clear, I do not oppose a treaty in principle. However, I do think the drafters would be well advised to heed the advice offered by Professor Ruggie—a business and human rights treaty should work to reinforce and to build on the regulatory dynamics already underway in the implementation of the Guiding Principles. I do not see the treaty proposal as a threat to progress but rather a call to redouble efforts and to focus attention on the work that still remains to ensure human rights are promoted and protected.


Corporate Human Rights Abuses and International Law: Brief Comments

Surya Deva is an Associate Professor at City University of Hong Kong, School of Law. He has published extensively on various aspects of business and human rights. His recent books include Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (co-edited with David Bilchitz) (Cambridge University Press, 2013) and Regulating Corporate Human Rights Violations: Humanizing Business (Routledge, 2012).

This blog entry offers brief comments on three interrelated aspects: the role of international law in regulating corporate conduct impinging upon human rights, the nature and scope of the proposed international instrument(s), and a potential alternative to move forward. In offering these comments, I will engage with the position taken by Professor John Ruggie on this matter, including his remarks at the 3rd UN Forum on Business and Human Rights held in December 2014.

Role of international law

I consider that international law has a critical role to play in ensuring that business enterprises comply with international human rights norms. There are two main reasons for this: first, operations of business enterprises are no longer constrained by artificial territorial boundaries; second, several states are unwilling or unable to act robustly against powerful corporate actors even within their territory or jurisdiction. As I allude below, an effective response to the second reason would require international law to move beyond an excessively state-centric orientation.

International law’s critical role is not, however, as a stand-alone device. Rather, international law should be part of a number of regulatory initiatives invoked in tandem to tame propensity of profit-driven corporations to ignore human rights. Ruggie calls this regulatory design a “smart mix of measures”. I see it in terms of an “integrated theory of regulation” in which multiple regulatory measures are employed in a cumulative and coordinated manner so that different initiatives could counter each other’s limitations (Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business, Routledge, 2012).

Against this background, the proposed international instrument(s) – in order to be useful – should cover the deficiencies and limitations of the Guiding Principles on Business and Human Rights (GPs) in humanizing business. Ruggie would like future regulatory legalisation to “reinforce and build” on the GPs. But I will caution that the process of reinforcement and building must not gloss over or strengthen the GPs’ deficiencies and limitations, e.g., that corporate human rights responsibilities are based solely on social expectations, that states only have a “duty to protect” against human rights violations by business enterprises, and that companies merely have a responsibility to respect human rights, (see Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, CUP, 2013).

The proposed international instrument(s) should be able to provide victims access to justice in situations where the GPs might fail to deliver, that is, where states are willing and/or capable to exercise their “protect duty” against corporations or where corporations do not see any clear business case to conduct due diligence to discharge their “responsibility to respect” human rights. In fact, I will argue that the proposed international instrument will be a necessary logical extension of the GPs: while complementing the GPs, such an instrument will also fill gaps inherent in them.

Nature and scope of international instrument(s)

There is extensive discussion about the need for a legally binding international treaty. Binding regulatory initiatives strengthen the overall regulatory efficacy because even voluntary initiatives work better under the shadow of obligatory regimes (and vice versa). It is telling that all major corporate settlements related to human rights abuses or environmental pollution, including the recent one involving Shell, have been offshoots of litigation against transnational corporations (TNCs). So, it is desirable to have binding international instruments regulating corporate behaviour.

However, considering that the obligatory nature of international law is very different in practice from the status of obligatory domestic laws, one should not overemphasise the need for a legally binding treaty over other considerations. A soft but normatively sound international instrument might prove more useful in practice as compared to a hard but a narrow or normatively deficient treaty. Non-state actors and a “coalition of the willing states” could turn a soft international instrument into a hard one in practice.

In terms of the scope of a future international instrument, Ruggie rightly highlights the “highly problematic” nature of the footnote of the Ecuadorian resolution adopted by the Human Rights Council in June 2014. Although certain developing countries might perceive that an international treaty is only required to deal with TNCs, having such a narrow focus will be indefensible, unworkable and politically unviable. Any proposed international instrument should apply to all types of business enterprises, as any attempt to limit its scope by providing a definition of targeted corporations will inevitably result in lawyers advising enterprises how to bypass the given definitional contours.

It is paradoxical, however, that Ruggie does not carry forward his expansive views in relation to another aspect having a bearing on the scope of the proposed treaty. For pragmatic reasons, Ruggie’s advice is to begin with a carefully crafted precision tool aimed at capturing egregious human rights violations. While this may sound sensible, this proposed path is highly problematic. If “the corporate form of the abuser is irrelevant” for victims (John Ruggie, ‘Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors’), equally irrelevant is whether human rights violations are regarded as “gross” or not. Why should the proposed international treaty exclude access to remedies for victims of the Rana Plaza building collapse or the Bhopal gas disaster for that matter?

I will also contend that calls for negotiating a narrow treaty that deals only with egregious abuses is reflective, among others, of the Global North’s prioritisation of civil and political rights over social, economic and cultural rights. For people living in the Global South – who suffer disproportionately due to corporate-related human rights abuses – the latter set of rights are equally, if not more, important. Why should the displacement of indigenous people for mining, emission of (and/or exposure to) hazardous chemicals, compulsory pre-employment pregnancy testing of women and illegitimate land grabs by companies be taken less seriously than slavery or genocide?

If the scope of the proposed international instrument is confined to egregious human rights violations, it will mostly serve a symbolic purpose for its ambit will exclude most of the human rights abuses. Nor will it capture important human rights under several core international conventions such as Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC) and the Convention of the Rights of Persons with Disabilities (CRPD), which the GPs do not expect companies to respect as part of their “minimum” responsibility.

A potential alternative to move forward

Ruggie raises legitimate concerns about the feasibility of negotiating a single comprehensive international business and human rights treaty, which are useful. Why will it be impossible to have a treaty when the GPs could cover the same vast, diverse and complex set of issues within the rubric of business and human rights in a single document? The answer lies, among others, in the GPs’ attempt to avoid controversial issues in this area. If the proposed treaty adopted the same approach, it might not prove useful. Conversely, if the treaty drafters decided to confront such complex controversial issues or outline the exact human rights obligations of companies, they might not be able to reach a consensus.

To overcome this dilemma, I suggest an alternative: we should start with drafting a Declaration on the Human Rights Obligations of Business (Declaration) along the lines of the Universal Declaration of Human Rights. The proposed Declaration should (i) provide a sound normative basis for why companies have human rights obligations, (ii) proclaim that human rights applicable to companies are not limited only to those mentioned in the International Bill of Rights but rather extend to those elaborated in all UN human rights treaties (iii) outline the principles governing the extent of corporate obligations in relation to these rights, (iv) envisage a number of state-focal and non-state-centric mechanisms to implement and enforce human rights obligations against companies, and (v) suggest ways to remove substantive, conceptual, procedural and financial obstacles experienced by victims in holding companies accountable for human rights violations. Keeping in mind the fractured nature of international law, it will be crucial for the Declaration to assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.

Once such a Declaration is in place, simultaneous and/or sequential efforts should be made to concretise the human rights obligations of companies in different areas and also clarify the obligations (including extraterritorial ones) of states in regulating corporate behaviour. This will entail negotiating and adopting a number of international instruments in due course. It may also be worthwhile to draft several Model Laws on specific areas to provide states with concrete guidance as to what legislative reforms and policy adjustments they should make to deal with the privatisation of human rights when acting at domestic, bilateral, regional and international levels. Such a process will of course take time, but that itself should not be a ground to delay initiating the above process.

The Declaration (and subsequent treaties) should employ a number of enforcement mechanisms – both state-based and non-state-based – at municipal and international levels to ensure the companies that do not comply with the agreed obligations could be held accountable in an efficient and speedy manner. In particular, the Declaration should contemplate the institutionalisation of the role of civil society organisation (CSOs) in enforcing and implementing human rights norms against companies. For example, a committee of CSOs in each state could be allowed to receive and deal with complaints of human rights abuses by business. Although such committees might not have formal enforcement and compliance powers, their determinations could be posted on a designated website to be used in dynamic ways by diverse stakeholders.

In additional to acknowledging the role of traditional civil and criminal sanctions in ensuring corporate compliance, the Declaration should underline the role of informal means and social (dis)incentives in enforcing human rights norms. These tools will be especially crucial for victims in those situations where states are unwilling or unable to act against companies for diverse reasons.

In short, the proposed international instrument(s) dealing with corporate human rights violations must not be overly state-centric. A deviation from the state-centric conception of international (human rights) law is required because states are not always consistent and reliable in enforcing human rights norms – this is one of the key reasons for the so-called governance gaps. If such instruments confer on states the exclusive power to enforce human rights norms against companies, they will do very little to fill the current governance gaps.

If the path proposed above does not find favour with enough states, then the option of evolving international norms “bottom-up” should be pursued, as business and human rights would require international law’s imaginative responses in the 21st century (Surya Deva, ‘Multinationals, Human Rights and International Law: Time to Move Beyond the “State-Centric” Conception?’ in Jernej Letnar Černič & Tara Van Ho, eds., Human Rights and Business: Direct Corporate Accountability for Human Rights (Wolf, 2015).

Closing Plenary Remarks, UN Forum on Business & Human Rights

John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government, Affiliated Professor in International Legal Studies at Harvard Law School, and a Fellow of the American Academy of Arts and Sciences. From 1997-2001 he served as the first-ever UN Assistant Secretary-General for Strategic Planning, where his responsibilities included establishing the UN Global Compact and proposing and gaining General Assembly approval for the Millennium Development Goals. From 2005-2011 he was the Special Representative of the UN Secretary-General for Business and Human Rights, in which capacity he developed the UN Guiding Principles on Business and Human Rights. His book reflecting on that experience, entitled Just Business: Multinational Corporations and Human Rights (W.W. Norton, 2013), has been translated into Chinese, Japanese, Korean, Portuguese, and Spanish.


Third United Nations Forum on Business & Human Rights, Closing Plenary Remarks, Geneva, December 3, 2014

I am honored to have been asked to make closing remarks at this third United Nations Forum on Business and Human Rights. When I proposed to the Human Rights Council in 2011 that it convene such an annual event, I hoped that it would turn into a global town hall meeting, where people from every region and every sector of society could come and share experiences with implementing the UN Guiding Principles on Business and Human Rights, and identify what additional steps might need to be taken to strengthen the promotion and protection of human rights in relation to business activity.

Moreover, when I presented the Guiding Principles to the Human Rights Council, I said that its endorsement would not end all business and human rights challenges, but that it would mark the end of the beginning—by providing, for the first time, an authoritative conceptual, normative, and policy framework, stipulating minimum standards regarding the respective duties of states and responsibilities of enterprises in relation to business and human rights, including the need for rights holders to enjoy greater access to effective remedy.

I further stated that implementing and building on the Guiding Principles would require “a smart mix of measures,” voluntary as well as mandatory, which are capable of generating cumulative change and achieving transformational scale.

What I’ve seen and heard these past three days shows that my vision for the Forum is being realized. We have learned a great deal about the achievements and also challenges in implementing the Guiding Principles. And we have heard vigorous arguments for and against a proposed binding instrument to regulate transnational corporations under international human rights law.

Let me stress at the outset that, given my commitment to “a smart mix of measures,” I see no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other. Therefore, I urge in the strongest possible terms that as the treaty negotiations unfold, we resist any attempt to polarize the debate as one between the Guiding Principles and a treaty.

At the same time, it seems only reasonable to expect that future legalization should reinforce and build on the regulatory dynamics that are already underway in implementing the Guiding Principles, which the Human Rights Council endorsed unanimously just three years ago. And if legalization is to be effective, it also must take into account the rapidly changing international landscape it seeks to influence.

So what are some of those regulatory dynamics? And what are the key features of the landscape that should inform further steps?

A graphic way to describe what has been achieved since 2011 is that the Guiding Principles are becoming embedded in the regulatory ecosystem for business and human rights, and that their place in this ecosystem has begun to expand from the international to the national and local spheres.

Almost from the start, elements of the Guiding Principles were incorporated into policies of other international bodies, public and private, including the OECD, the International Organization for Standardization, and the International Finance Corporation, whose standards are tracked by most project lending banks. The Guiding Principles are also drawn upon by regional initiatives, initially European Union, and more recently ASEAN, the African Union, and the Organization of American States. UN treaty bodies and Special Procedures increasingly reference them.

States have begun to take additional steps to act upon the Guiding Principles, ranging from comprehensive National Action Plans, to non-financial reporting requirements, down to the more granular level of the Peruvian Superintendency of Banks, Insurers and Private Pension Funds establishing human rights standards for local businesses that service international mining companies. The Guiding Principles also feature in China’s new Guidelines for Outbound Mining Investments.

Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.

During the past three days we have also learned how businesses are aligning their policies and practices with the Guiding Principles, particularly the due diligence requirements and provisions for grievance mechanisms. We have heard that the International Bar Association and several national bar associations are engaged in efforts to incorporate the Guiding Principles into the practice of law firms and in house legal departments. The number of human rights complains brought to National Contact Points under the OECD Guidelines has spiked since the Guiding Principles’ adoption, as have shareholder resolutions raising human rights concerns, while workers organizations and NGOs report that they are using the Guiding Principles in their policy and legal advocacy work.

The Guiding Principles seem even to have had some influence in the world of investor/state arbitration. UNCITRAL, the United Nations Commission on International Trade Law, recently adopted new rules ensuring greater transparency and accessibility to the public, for which I lobbied at several Commission sessions. And a new generation of international investment agreements has begun to acknowledge the need for governments to have adequate domestic policy space for genuine efforts to improve environmental and social conditions, including labor standards and other human rights—an issue to which my mandate devoted considerable time and resources, focused in particular on Africa where highly asymmetrical contracts were standard practice in the past.

Most important, there is growing anecdotal evidence that where the Guiding Principles are being applied, the incidence of human rights harm is reduced. Effective due diligence and grievance mechanisms clearly contribute to that outcome. As for improvements in legal remedy, the Human Rights Council has tasked the Office of the High Commissioner with research and consultations addressing obstacles in cases where severe harm is done, and identifying practical solutions for reducing them. The results will be submitted to the Council for its consideration.

Of course, given the magnitude of business and human rights challenges, these achievements remain modest. Much more needs to be done, as I am the first to stress. But let me ask this of those who still harbor doubt about the Guiding Principles’ utility: how many treaties dealing with comparably complex and controversial subjects do you know of that generated this level of activity within three years of their adoption? I know of none.

Let me now turn to some key characteristics of the institutional landscape that any attempt at further legalization needs to bear in mind if it is to have any practical effect. I’ll highlight just three.

First, the issue of transnational corporations no longer falls easily into the North-South cleavage that drove UN coalition building in the past, and which some have sought to resurrect rhetorically in recent months. One of the most profound global geo-economic shifts today is the rapid increase of transnational corporations based in so-called emerging markets. In the year 2000 they numbered just 12 on the Fortune Global 500 list. In 2010 the number had risen to 85. By 2025 their number is expected to reach 230, or nearly half of the entire FG 500.

Let’s look at this picture a bit more closely. Who is the world’s largest oil company? Is it Exxon? Shell? No, it’s Saudi Aramco. None of the Western majors even makes it into the top 10. Who is the world’s largest manufacturer of electronic equipment? Samsung? Ericsson? No, it’s Foxconn, headquartered in Taiwan with production facilities in China employing 1.3 million people. Who is the largest manufacturing employer in the United Kingdom? Not to keep you in suspense, it is India’s Tata Group. Many of us like a good brew, so what about the world’s largest beer companies? Number one grew out of a merger between a Belgian and Brazilian company, and number two is South African. Notably, at the recent Asia-Pacific Economic Cooperation Summit, President Xi Jinping predicted that China’s outbound direct investment would reach US $ 1.25 trillion over the next decade, tripling its current level. We are entering a new and different world.

Why is this shift important for future international legalization? The answer is contained in how China’s representative explained its vote in the Human Rights Council on the resolution to launch treaty negotiations. The issue of business and human rights is complex, he said; and differences exist among countries in terms of their economic, judicial, and enterprise systems, as well as their historical and cultural backgrounds, which need to be taken into account. Thus, he continued, it will be necessary to carry out “detailed and in-depth” studies, and for the negotiations themselves to be “gradual, inclusive, and open.”

Bottom line: the larger the number and the greater the diversity of home countries of transnational corporations, the more complex the process of international legalization becomes in this space. Exactly the same has been true across all areas of international lawmaking, which is one reason why we have seen such a rapid expansion in the use of soft-law instruments, like the Guiding Principles, while the number of new multilateral treaties has declined dramatically for the past two decades—not a single one was deposited with the United Nations in 2011.

My second point is that a human rights treaty focused exclusively on transnational corporations is highly problematic. Under the definitions of transnational corporations and other business enterprises contained in the current treaty proposal, the international brands and retailers that sourced apparel products from local suppliers in Rana Plaza would have been covered by the treaty, but not the factories in which some 1,200 workers were killed. NGOs have rightly expressed their dismay at this omission because victims don’t care whether they are abused by transnational or local firms. And they have pointed out that excluding national companies represents a regression from the Guiding Principles, which do encompass all business enterprises.

An exclusive focus on transnational corporations also poses deeper conceptual and legal challenges—again, because the world is changing profoundly. Transnational corporations are no longer the entities they once were: vertically integrated, multidivisional organizations structured in the form of a pyramid. The 21st century transnational corporation is a far more complex economic entity. In addition to its traditional relationships with subsidiaries, joint ventures are commonplace, many with state-owned or other national companies. But the biggest change has occurred through non-equity relationships. Here what you see today is the corporation as a bundle of contracts: contract manufacturing, contract farming, contracted service provision, franchising and licensing, to name but the more prevalent networked forms. This so intermingles transnational and national firms that even drawing legal boundaries around a transnational corporation can be exceedingly difficult, let alone imposing liability only on the foreign entity in any but the most obvious situations. Therefore, a treaty should encompass all business enterprises.

My final point concerns the scale of any future treaty. There is a certain intuitive and even moral appeal to the idea that there ought to be one law, one international law, governing the conduct of all business enterprises everywhere under a common set of standards protecting all human rights. But such a treaty would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places. The crux of the problem is this: while business and human rights may be a single label that we attach to a range of activities, it is so vast, diverse, and conflicted an issue area that it does not lend itself to governance through a single set of comprehensive and actionable treaty obligations. That is why the principled pragmatism on which the Guiding Principles rest recommends international legal instruments that are carefully crafted precision tools.

In addition, it is doubtful that any overarching treaty in practice would extend protection of all internationally recognized human rights against corporate abuse, as the Guiding Principles do. This is so even if the treaty were to encompass all business enterprises, which the proposed treaty does not. The reason simply is that not all states that can make the biggest difference have signed on to the full range of human right standards.Those who haven’t are unlikely to impose them on their corporations as a matter of hard law. That not only results in an ineffective treaty, of which there are many. It also risks undermining the broad state support achieved by the Guiding Principles for addressing all internationally recognized rights at the level of policy and practice.

How, then, do we move ahead? My answer is simple: the same way we’ve come this far, step by step. First, we need to redouble efforts to implement and build on the Guiding Principles—or to start the process where it has not yet begun. The Guiding Principles work, as we have seen. But they don’t magically implement themselves. And as our Chairman noted in his opening remarks yesterday, we need to measure and report on implementation.

Second, we need to identify specific gaps that the Guiding Principles and other such means cannot reach, and then assess options for narrowing those gaps based on evidence about which are likely to be the most effective and achievable where it matters most: in the daily lives of people.

As many of you know, I have suggested as an initial step consideration of a legal instrument addressing corporate involvement in the category of “gross” human rights violations. I did so because of the severity of the abuses involved; because the underlying prohibitions already enjoy widespread consensus among states yet there remains considerable confusion about how they should be implemented in practice when it comes to legal persons; and because the knock-on effects for other aspects of the business and human rights agenda would be considerable.

In closing, I want to express my deepest appreciation to all of you—for your commitment and for the important work you do. At the end of the day, whatever differences may exist, everyone at this Forum is part of a movement. Achieving further progress is within our reach. We must and we can succeed—for the sake of individuals and communities everywhere, and for the sake of our precarious system of global governance on which people and planet depend.

Symposium: Business and Human Rights – Next Steps

The Business and Human Rights movement finds itself at interesting crossroads.

On the one hand, there is a push to create a binding treaty governing business and human rights. In June last year, the United Nations Human Rights Council resolved to “to establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights” (see here). Quite what the parameters of this treaty might be, how it would address standard issues like extraterritoriality, and its relationship with overlapping initiatives and fields is still unclear, but the idea itself is momentous.

At the same time, there are several new initiatives that seek to address “gross” corporate violations of human rights and/or international crimes. Also in June last year, the United Nations Human Rights Council unanimously approved a parallel project “[r]equest[ing] the United Nations High Commissioner for Human Rights to continue the work on domestic law remedies to address corporate involvement in gross human rights abuses, and to organize consultations with experts, States and other relevant stakeholders”. The OHCHR’s program of work for this project, to which I will contribute, is available here.

Similarly, the International Corporate Accountability Roundtable has launched a separate but related project on corporate crimes that are linked to human rights abuses (see here). Whereas the OHCHR’s project focuses on “gross” human rights violations, the ICAR variant is concerned with corporate crime, including but not limited to corporate responsibility for international crimes. This project, that I’m also privileged to participate in, involves an Independent Commission of Experts comprised of Canadian Supreme Court Justice Ian Binnie, Alex Whiting at Harvard, Anita Ramasastry at the University of Washington and others.

Finally, all of these new undertakings exist in the wake of Professor John Ruggie’s groundbreaking work developing the Guiding Principles on Business and Human Rights. As is well known, in 2005, Professor Ruggie was appointed UN Special Representative to the Secretary General on Business and Human Rights. After six years of work, the United Nations Human Rights Council approved his Guiding Principles on Business and Human Rights. Together with helpful commentaries, these have created the dominant paradigm for processing corporate engagement with human rights, setting the backdrop for all these newer initiatives and programs.

But what sense to make of these projects as an ensemble? In particular, how do they sit with core philosophical, political and historical ideas about international human rights law generally? On a wider level, how do they relate to one another, cognate fields like international criminal law, or social processes? In this symposium, I invite some of the very best scholars in the world to address these questions. I start by posting Professor Ruggie’s closing plenary remarks to United Nations Forum on Business & Human Rights in Geneva on December 4, 2014. Then, I ask a set of leading commentators, from different disciplinary backgrounds and with varied political aspirations, to react to his statement. Finally, Professor Ruggie offers a response to these commentators.

In my opinion, the result is a rich scholarly exchange on issues of major contemporary importance. JGS

What is the ICC’s Standard for Complicity Really?

Complicity, or aiding and abetting, has attracted a great deal of attention of late in the practice of international criminal justice, theoretical literature on the topic and within the blogosphere. Unfortunately, several younger scholars who have written excellent books on the topic haven’t had the opportunity to weigh in, so I wanted to give them an opportunity to advertise their great work and take part in the respectfully critical enterprise I am initiating here.

I also wanted to use this opportunity to raise a question that has not attracted much attention elsewhere, namely, how do we interpret the reference to “purpose” in the ICC Statute’s definition of aiding and abetting? In that regard, I recently stumbled over the fact that I and, I suspect, many others in ICL have misinterpreted the provision, but I wanted to put that idea to scholars with real expertise on these issues. Thus, I have invited the following three authors to respond to the question I set out further below:

Dr Flavio Noto – Under the direction of Hans Vest and others, Flavio authored an excellent thesis entitled Secondary Liability in International Criminal Law: A Study on Aiding and Abetting or Otherwise Assisting the Commission of International Crimes (DIKE, 2013).

Screenshot 2014-12-04 15.13.34


Dr Sarah Finnin – Sarah wrote a fantastic book for her doctoral thesis entitled Elements of Accessorial Modes of Liability: Article 25(3)(b) and (e) of the Rome Statute of the International Criminal Court (Martinus Nijhoff, 2012). She is presently an Associate Legal Officer at the ICTY;

Finnin Book Coverpage


Dr Cassandra Steer – Cassandra is about to publish a great book entitled Translating Guilt: Identifying Leadership Liability for Mass Atrocity (T.M.C Asser Press, 2015). She is a Lecturer and Researcher at the Amsterdam Centre for International Law, but about to join McGill.

Steer - Book Cover

The Question

 To recall, Article 25(3)(c) of the ICC Statute states that:

“In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:…  (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission”

The received wisdom is that the reference to purpose requires a volitional commitment to the consummated offense, which makes the ICC standard higher than the position of knowledge in other international tribunals. In previous work, I have assumed as much, but I recently discovered that this is at least incomplete and potentially incorrect.

In a recent article I authored for Markus Dubber and Tatjana Hörnle’s Oxford Handbook of Criminal Law, which I creatively titled Complicity, I set out in greater detail why I suspect that the received wisdom about purpose in the ICC Statute might be misguided. To summarize (see pages 21 – 25 of the article), these reasons include:

  • The ICC definition follows the US Model Penal Code – The ICC purports to follow the US Model Penal Code (MPC), but the MPC contains a provision immediately after its famous reference to purpose, indicating that “[w]hen causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.” (see page 22 of the article)
  • Consequently, the ICC should arguably be interpreted in keeping with the US Model Penal Code – Several authors have argued that the ICC Statute should be interpreted like the MPC. If so, would this not entail reading the second aspect of aiding and abetting in the MPC into the ICC Statute? (see footnote 59 of the article). Note, in fairness to Sarah Finnin, her reference to this idea in her book is quoting Elewa Badar, “The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective” (2008) 19 Criminal Law Forum 473, 507.
  • The drafting history of the ICC Statute confirms this reading – David Scheffer and Donald Piragoff, who were involved in negotiating the provision in question for the U.S. and Canada respectively, indicate that, in essence, the reference to purpose was really meant to be synonymous with intention. Piragoff, for instance, has written that “aiding and abetting by an accused requires both knowledge of the crime being committed by the principal and some intentional conduct by the accused that constitutes the participation.” (See page 352 of this article)
  • National understandings of “purpose” for aiding and abetting do not require a volitional commitment to the outcome of the crime – the relatively few national systems that adopt purpose standards for aiding and abetting do not interpret the term as requiring a volitional commitment to the consummated crime. These include New Zealand, Canada, Israel and perhaps most significantly, the United States (See page 25 of the article).

More precisely:

US Federal Criminal Law – In a recent US Supreme Court decision, the majority held that “for purposes of aiding and abetting law, a person who actively partici­pates in a criminal scheme knowing its extent and charac­ter intends that scheme’s commission.” Rosemond v. United States, 134 S. Ct. 1240, 1243 (2014) (emphasis added);

US State Law – In a very helpful recent doctrinal survey of state law in the United States, John Decker reports that only three (3) states within the United States have purpose standards for aiding and abetting that require a volitional commitment to the criminal outcome. See John F. Decker, The Mental State Requirement for Accomplice Liability in American Criminal Law, 60 S. C. L. Rev. 237 (2008).

Israel – also a “purpose” jurisdiction, but the leading case stipulates that “where the aider only foresees the possibility of the commission of the principal offense, the aider may be convicted if it is his or her desire that should the offense actually be committed, his or her act will facilitate its commission.” Itzhak Kugler, Israel, in The Handbook of Comparative Criminal Law 352, 370 (Kevin Jon Heller & Markus Dubber eds.) (citing the Israeli Supreme Court case of CA. 320/99 Plonit v. State of Israel 55(3) PD 22 [1999];

Canada – although the criminal code stipulates purpose as the required mental element for complicity, the leading case on the proposition states that “Parliament’s use of the term ‘purpose’ in s. 21(1)(b) should not be seen as incorporating the notion of ‘desire’ into the mental state for party liability, and that the word should instead be understood as being essentially synonymous with ‘intention’”. R v. Hibbert [1995] 2 S.C.R. 973.

New Zealand – § 66(1) of the Crimes Act 1961 states that “[e]very one is a part to and guilt of an offence who… (b) does or omits an act for the purpose of aiding any person to commit the offence” (emphasis added), but the Supreme Court interprets this in the following terms: “A party will be liable as an aider and abettor only if he or she had knowledge of the essential matters constituting the offence.” Mahana Makarini Edmonds v. R. [2011] NZSC 159, para. 25 (emphasis added)

Given this history, I welcome critical engagement with the idea that the ICC standard for aiding and abetting should not be interpreted as requiring a volitional commitment to the criminal outcome. If so, what does purpose mean?