Category Archives: Human Rights

One of the Missing Pieces in the Accountability Puzzle

Arvind Ganesan is the Director of Business and Human Rights at Human Rights Watch.

Professor Stewart’s proposal is intriguing. Incorporating international crimes into a slowly evolving legal regime that might eventually hold companies accountable for complicity in abuses abroad could be a useful step. Even though his proposal is limited to “international crimes” that would only cover a narrow set of abuses relative to all of the human rights issues companies have, it still is worth exploring.

Whether one agrees or disagrees with his thesis, one thing is clear: his proposal is part of a larger trend towards stronger mechanisms that could institutionalize enforcement of the human rights responsibilities of companies.

In the late 1990s when Human Rights Watch first began work on Business and Human Rights, most companies did not accept that they had human rights responsibilities. The earliest cases under the Alien Tort Statute (ATS) against companies had been filed against Texaco (now Chevron) in Ecuador and against Unocal (now Chevron) in Burma, but had not reached any resolution. A number of companies were criticized because of human rights issues related to their operations, but were still resistant to changing their practices.

Most companies argued that host governments needed to address the abuses. By the beginning of the 21st century, some companies (mainly those burned by public criticism) started to grudgingly move to adopt human rights standards. The first company codes of conduct started to appear along with the first multistakeholder initiatives (MSIs) such as the Fair Labor Association (FLA) and the Voluntary Principles on Security and Human Rights.

After that, the ill-fated UN Norms were drafted. By 2006, human rights policies, MSI’s, shareholder activism, and public scrutiny of companies were all part of the global mix. A range of activities had evolved to try to hold companies accountable. Then, the UN approved the new mandate for the Special Representative on Business and Human Rights.

One area that has consistently lagged behind all of the others has been the enforceable legal framework and specifically, legal accountability for corporate complicity in abuses. In 2006, there was no regulation for businesses although some had been proposed. For example, US congressional representative Chris Smith had drafted the Global Online Freedom Act to regulate internet companies so that they would have to protect freedom of expression and privacy online. GOFA was a response to scandalous disclosures that major internet providers were self-censoring in China and that one of them had turned over private account information on activists to Chinese authorities who were later imprisoned for their efforts to promote human rights online. But the bill has not become law.

Nor had the courts held companies liable under the US ATS. Some companies had reached confidential settlements with plaintiffs, but no company had been found liable for human rights violations under the ATS, so the regulatory effect of such suits are not yet realized. And recent rulings by the US Supreme Court make that possibility even more remote.

Modest regulation has continued to evolve. In 2010, the regulatory environment slowly began to change, beginning with the passage of the US Dodd-Frank financial reforms law that had two human rights-friendly provisions: section 1502 that required publicly listed companies to disclose whether they sourced conflict minerals from the Democratic Republic of Congo; and section 1504 that required public extractives companies to disclose their payments to foreign governments. These laws represented some of the first attempts to regulate companies on human rights grounds. Even though they were relatively modest—only requiring companies to disclose information—they have been hotly contested by the industry and section 1504 has yet to go into force.

The next year, the UN Guiding Principles on Business and Human Rights were approved. And building on the precedent of Dodd-Frank, governments like Canada, the UK, and the members of the European Union have all drafted their own extractives disclosure legislation. Other rules are in effect or developing, for example, the US has human rights disclosure rules for investments above US$500,000 in Burma. New social reporting rules are proliferating in Europe and as far afield as India.

New disclosure rules are a promising development, but they are not a substitute for full accountability. In our view, the best, but still imperfect, legal model may be one that mirrors anti-corruption laws. Those laws, such as the US Foreign Corrupt Practices Act (FCPA), have extraterritorial reach, require companies to put systems in place to identify and prevent bribery and hold companies accountable when bribes are paid. Human rights rules could do the same thing: apply extraterritorially, require companies to put policies and procedures in place to identify and prevent abuses, face civil and criminal liability if abuses occur, and to regularly report on their efforts to protect human rights in their operations.

Laws like a human rights FCPA will not easily pass and will undoubtedly face resistance from industry and the governments sympathetic to them. But structurally, they offer the best chance to cover the largest swath of companies. The growing number of disclosure laws may be the first step towards comprehensive rules. And there is some evidence that change is coming. The proposed UN treaty on transnational corporations and human rights, for example, is a sign of movement. While it is controversial (Human Rights Watch has expressed reservations about it), it does signify a desire to move beyond the status quo. But it would be premature and naïve to think that real accountability will come easily or is inevitable.

Any move towards accountability at the national or international level will be a challenge and will take time. In that context, Professor Stewart’s proposal may be a way to fill in the missing pieces of the accountability puzzle. Like many current developments, it is indirect inasmuch as it is not regulation, but the hope of de facto regulation through potential liability. It is not a panacea for abuses or a substitute for clear and explicit laws that define the human rights responsibilities of companies, but is a part of the mix of efforts that are slowly and surely trying to ensure accountability for business-related abuses.

Corporate Criminal Liability for International Crimes? Yes Please

Simon Taylor is a Director and co-founder of Global Witness

Over the last 20 years, we at Global Witness have waded through an endless stream (now a torrent) of corporate and individual abuse, asset-stripping and the furtherance, through financial support, of mass murder and destruction. So with great excitement, I read James Stewart’s paper, “The Turn to Corporate Criminal Liability for International Crimes.” From my perspective, anything that could be deployed to begin the process of holding companies and their officers to account for the kind of behaviours that we regularly expose is a welcome development. So please continue the debate and bring us those tools.

I should pre-empt my comments by stating I am not a lawyer, and have little exposure to legal matters and their finer points beyond the often tough process we conduct to ensure our output stands, despite the brutalities of the UK’s libel laws. That leaves me, I think, with a fairly basic understanding of James Stewart’s arguments, and comments about his paper on the Opinio Juris site. I am also left with many questions. For this reason, I would ask readers to forgive me my likely mangling of terminology, and instead, I hope I can contribute to the debate with a challenge or two, and hopefully provide you with an insight into our world of investigation, exposé and frequent collision with corporate and individual perpetrators.

Some of you will be familiar with our work – from its start with the exposure and shutting down of illegal timber exports from Khmer Rouge areas in Cambodia to Thailand, through bringing “blood diamonds” to world attention, conceiving and co-launching the global Publish What You Pay (PWYP) movement, and our work on banks that take dictators loot, and anonymous companies and trusts that hide the perpetrators. Across our work, there are common themes and many of them relate to the mechanisms and facilitators used, not to mention the legal inadequacies that variously aid and abet the perpetrators.

Global Witness “investigates and campaigns to prevent natural resource-related conflict and corruption and associated environmental and human rights abuses.” For the purpose of this discussion, think of the following question: How could we ensure that exploitation of natural resources can lead to a positive development outcome given that the natural resources of a country generally belong to the people of that country? Rather than what we currently see, with very few exceptions, which is a predatory relationship between exploiting company/investors, more often than not, involving a “Faustian pact” with kleptocratic elites who view their country’s resources as their own personal cash-cow?

Half of what we do is to investigate. We look for the facts. We want credible evidence that clarifies what is happening, who is doing what, and how they are doing it. The other half is seeking change – and that can often end up in the long-term grind of seeking new international mechanisms that bring change in behaviour. We deploy the strength of our evidence to help shape the outcome. James Stewart mentions a number of these, including the Kimberley process on conflict diamonds. I won’t go into that here, but I would mention another, the Extractive Industry Transparency Initiative, or EITI, where civil society in theory is empowered to hold governments and companies to account for the payments received and paid.

In seeking to answer my development question, I think the following analogy helps: Imagine in front of you, a bathtub, full of milky water, due to bath salts. You cannot see the bottom, but the water is leaking away. This is because the tub has various holes in the bottom, of differing sizes, and in multiple locations. Your task is to find the location of the holes, work out how large they are and their shape, and then fashion a plug to stem the flow. EITI, which remains a work in progress, should eventually become one of those plugs.

Over time, my attitude to the corporate role in these processes has hardened, but it has been because of the behaviour of the companies. To illustrate this point, let me focus on corruption in the oil sector. Thinking back to the late 1990’s and early 2000’s, and to the question asked of oil companies: whether they should disclose the payments they make for extraction in countries like Angola? At that time, around 90% of Angolan state income was generated from oil, and tens of billions of dollars were being (and continue to be) siphoned off by the elite. I remember the response: “What is the business interest?” I found it unfathomable how anyone, given the situation of utter deprivation that prevailed in Angola at the time, could ask such a question. That is unless one takes into account the thesis of Joel Bakan in his extraordinary documentary/book “The Corporation” – that the predominant corporate model behaves like a psychopath! I don’t mean as we often think of psychopaths as deliberate and unthinking killers, more that the corporate interest always comes first, thus outright criminal behaviour, or behaviour that by any normal ethical standards should be criminalised, can become acceptable – the cost-benefit analysis being the extent of thinking about whether to proceed!

For me, this demonstrates the limits of Corporate Social Responsibility. For sure, there have been some major improvements in corporate behaviour, thanks to some incredible work by key CSR specialists within and outside companies – and this should continue. But they do not go anywhere near far enough. In my experience, the limits of CSR are delineated by the boundary that separates corporate interests from public interests – where they are aligned, progress can be made, but where not, the corporate interest always comes first. Our experience from over 17 years of campaigning to obtain a global standard of disclosure of project-level payments made by extractive companies strongly supports this thesis. Within months of launching the PWYP campaign in 2002, we had won the moral argument as to whether extractive companies should disclose such payments. But, with some notable company exceptions, it has taken what I would describe as trench warfare ever since, with us and our amazing PWYP colleagues, fighting the companies for every incremental improvement.

Why do companies that now profess their support for transparency behave in this way? In my opinion, this is because in many natural resource-rich, but desperately poor countries, access to concessions often requires illicit payments – often a situation created by the companies. Thus disclosure, could either lead to companies falling foul of anti-corruption legislation, or at least major embarrassment. This is precisely why we are seeking mandatory disclosure laws so that companies cannot make such payments without being exposed. Conversely, rather than helping to make a global standard, thereby helping themselves to avoid this situation, many companies have decided they want to maintain the status quo, and are expending considerable effort to undermine incoming disclosure laws, such as Amendment 1504 of the Dodd-Frank Act and the transposition in Europe of the Accounting and Transparency Directives, which require project-level payment disclosure.

So back to my bathtub – we need help. We’ve found many of the holes, and we are shaping several of the plugs – and we will continue to do so. But there are several we simply cannot find, and perhaps we do not even appreciate their existence. Here I am particularly thinking of legal remedies that can be used to bring cases, or at least imply that possibility, to impact decision-making at the board room. People often think of corruption as an exercise of payments with brown envelopes to get what you want. But in our experience, it is much more pervasive and of a scale that frequently bleeds countries dry – driving conflict, acting as a recruiting sergeant for disenfranchised youth. Denial of healthcare, education or frankly any prospect of a future breeds violence – and whilst it often might not be possible to link corrupt corporations and their officers with pulling the trigger, we know of many examples where they have been directly responsible for the conditions that lead to the trigger being pulled, and even bankrolled buying the gun. Of course we want to see efforts on all fronts to bring about changes in corporate behaviour, but until we see serious jail time as a possibility, and an end to what I consider ineffectual “cost of doing business” style fines, nothing will change.

Civil Society’s Reflections on Corporate Responsibility for International Crimes: An Introduction and Open Invitation

Promoting dialogue between academics and civil society is one of the founding aspirations of this blog. In the manifesto, I emphasize how greater dialogue of this sort will help maintain a kind of symbiosis between theory and practice, which in turn, assists keeping the former informed and the latter defensible. This focus arises from my interest in philosophical pragmatism, which doesn’t mean just muddling through as is the colloquial understanding of pragmatism, but instead promotes high-theory that does not occupy an ethereal position divorced from reality. I’m interested in a two-way, respectfully critical dialogue between the academy and the civil society.

In that spirit, I wanted to invite members of civil society to critically engage with a recent article I wrote entitled The Turn to Corporate Criminal Liability for International Crimes: Transcending the Alien Tort Statute. In a previous online discussion, a set of distinguished academics kindly agreed to criticize the article, and my friends at Opinio Juris generously played host. The responses from Samuel Moyn (Harvard), Steven Ratner (Michigan) and Beth Stephens (Rutgers), together with my replies to them (see here), proved helpful in clarifying the scope of the idea, areas for further research and points of residual disagreement.

In this symposium, I will replicate our discussion about corporate responsibility for international crimes within civil society. In an initial set of commentary, representatives from Global Witness, Human Rights Watch, the International Centre for Transitional Justice, Enough, FAFO, and the European Centre for Constitutional and Human Rights will all post insightful reflections that add much new information and perspective to our earlier debates. These leading commentators collectively boast years of experience dealing with these issues at the coalface, which is evident from their excellent contributions. I begin their commentary tomorrow.

At the same time, there are two obvious problems with this excellent set of commentators. First, they all emanate from the West, which robs the debate of input from civil society in Third World countries likely to be most affected by cases against businesses. I know of some NGOs in these parts of the world who are especially critical of corporate accountability, so it would be a shame not to include their voices in this discussion. Second, all of the commentators I have arranged are generally supportive of this form of corporate accountability, which is gratifying to me as author of the underlying article, but inconsistent with my desire to host a range of competing viewpoints.

This brings us to the open invitation. In addition to posting the thoughts of these leading Western NGOs, I invite representatives from civil society from throughout the world to write and submit a short blog post responding to the ideas in the article itself and our debates. Here are the guidelines for submissions:

  • Submissions must respect the principles in the blog’s manifesto. See here.
  • Submissions should be a maximum of 1,500 words including footnotes (if you decide to include footnotes at all);
  • Your submission should begin with a sentence or two describing your organization, where you are based, and the work you do;
  • Your submission should contain absolutely no allegations against particular companies. I am interested in ideas, not allegations;
  • I will preference submissions that show signs of having engaged with the article and debate here;
  • Articles can be submitted to me in English or French. Regrettably, I cannot host submissions in other languages;
  • Please send the submission by email to: with the words “Civil Society Blog Submission” in the email’s subject line;
  • I will publish up to 15 submissions if I get this many. I cannot guarantee that I’ll publish all submissions, but I am hoping to get enough responses to publish a variety from different parts of the world.

The deadline for submissions is 20 April, 2015.

I hope that, by engaging a set of Western NGOs together with numerous others from throughout the world, the resulting discussion will provide a diverse set of ideas for and against this type of accountability.



Blackwater’s Unsung Heroes

This piece is a cross-post from something Sara Grey and I published on Just Security several days ago (see here). Working on atrocities can be corrosive of one’s respect for humanity, so honoring incidents of moral courage is a healthy antidote. I remember one example of a junior soldier refusing his drunk (and armed) superior officer access to a warehouse of women at Čelebići prison camp in Bosnia for fear that the women would be raped, but this is an especially striking story of moral courage, too. Note that deliberately, we have never said anything about our perception of the guilt or innocence of the four Blackwater guards tried in Washington D.C., even though we collectively sat through the whole trial. I am grateful to Matt Murphy and Adam Frost for their kind emails to me since we originally posted this.

In a recent discussion of newly released memos on torture in the War on Terror, David Cole has surmised that “had anyone had the temerity to say no, the program almost certainty would have halted.” Likewise, in an excellent two-part blog (here and here) a decade after the Abu Ghraib scandal, David Luban cited Hannah Arendt’s observation that “most people will comply but some people will not,” before lauding those who never lost their moral bearings in America’s decent into systematized torture.

Some time has passed since four Blackwater guards were convicted last October of killing numerous unarmed civilians at Nisour Square, Baghdad. Understandably, the trial and verdict attracted a great deal of media attention, but something very important, paralleling the concerns that preoccupy Luban and Cole, has gone entirely unnoticed in the aftermath. Some people within that Blackwater unit said “no,” and maintained that position in the face of tremendous opposition.

Based on public perception, one might be tempted to think that nothing noble happened amongst the group of Blackwater guards at Nisour Square that afternoon. That impression is wrong. On the contrary, three members of Blackwater’s Raven 23 team who deployed that day displayed tremendous moral courage during and after the massacre. Without them, the death toll would likely be higher and there would almost certainly have been no trial or convictions. For this reason, we must remember, honor and celebrate their moral courage and humanity.

When Raven 23 set out from the Green Zone on September 16, 2007, Mark Mealy, Matthew Murphy, and Adam Frost were in the first two of four armored vehicles. According to their own testimony at trial, they watched in horror as their mission quickly transformed into what Murphy later called “the most horribly botched thing I’ve ever seen in my life.”

Matthew Murphy, now a policeman in Boston, was a rifleman in the Marines for two years before joining Blackwater in Iraq. During the trial, he testified that he heard gunfire from his teammates, then looked over his left shoulder to see one of them firing grenades at a white Kia, before others also turned their machine guns on civilians in a traffic jam. On the stand, Murphy bravely contradicted his teammates who said that they regretted nothing, by testifying that he saw no incoming gunfire and perceived no threat.

After the ordeal subsided, the Blackwater convoy left Nisour Square to the North against the flow of traffic, in what prosecutors described as like trying to enter a football stadium at the end of a game while the crowd is pouring out to the parking lot. During this obstructed exit, Murphy signaled to some children to get down, out of fear for what his teammates might do. It’s hard to say in hindsight what might have happened if he hadn’t done this, but given how events unfolded that day, there are strong chances Murphy prevented more unnecessary casualties.

Later, two cars blocked the convoy’s path, so Murphy directed the cars to turn around. When one of his teammates, Paul Slough, opened fire on the vehicles anyway, Murphy yelled, “Cease fucking fire!” As a result of his intervention, the injured driver was able to drive away, unlike so many others that afternoon. Needless to say, those legal advisers Luban and Cole have discussed were not in a war zone, surrounded by armed colleagues who had demonstrated the capacity to shoot people who posed no threat to them.

Murphy was not alone. Mark Mealy joined Blackwater after ten years in the Army, six of which were in active service. After retiring from the Army, he joined the National Guard with hopes of completing post-secondary education, but when his National Guard unit deployed to Iraq in 2003, his plans changed. After his Guard deployment, he worked for several private contractors in Iraq, eventually took a position with Blackwater, and in a stroke of exceptionally poor fortune, found himself in one of the firm’s armored vehicles in Nisour Square during that terrible fifteen minutes.

When the chips were down, Mealy was also on the right side of Arendt’s divide. After returning to base, he convened a meeting in his room, where he and the others we mention here confronted their teammates, saying they’d seen people “murdered out there.” Predictably, this did not go down well. The team leader barked that they needed to find a new line of work if they had a problem with what had happened. After that, the defendants gave Murphy, Frost, and Mealy the “stink eye,” and one later told Frost, now a policeman in Phoenix, that things might get rough for him around the base.

Undeterred, these three men jointly approached their commander, Chuck Pearson, complaining of “excessive use of force” and “reckless conduct.” At trial, Pearson testified that in all his years in the armed forces, he’d never seen a group of soldiers so disturbed by their own unit’s actions: the three men seemed to be in shock and Frost was crying. Revealing this emotion at trial was also an act of bravery for a soldier, but in this very human reaction, we also find something to cherish and honor.

Several days after these men met with their superior, Blackwater ordered all members of this team to report to the US Embassy in Iraq to provide confidential statements about what transpired at Nisour Square. When these statements were subsequently leaked to the public, Adam Frost began a diary to memorialize events as they really took place. In one entry he wrote:

As of now, 5 days after the event, it seems that the [State Department] and [Blackwater] are locked into their stories and the real story will forever stay shrouded from the public … .”

That this premonition did not come to pass is largely the result of these few men; Murphy, Frost, Mealy, and others who bravely provided essential testimony in the landmark trial in Washington, DC. They also paid a price for doing so. In its rousing closing statement, the prosecution told the jury that Murphy, Frost, and Mealy “were called rats and they were looked down upon by the contractor community. And they nonetheless did it. Why? Because they were courageous enough and strong enough to know that that was wrong. That was slaughter.”

None of these men worked for Blackwater again. Murphy signed another contract with the company soon after the harrowing incident, and then went on leave. While away, he got a phone call from his employer telling him that, because of the incident, he was “suspended indefinitely.” Frost also went on leave and was fired a week later. As for Mealy, he simply told the jury that he was done with Blackwater’s Raven 23 Unit.

All of this, of course, suggests that these men deserve recognition alongside the other moral heroes David Luban rightly praises. Martin Luther King, Jr. once said, “courage is an inner resolution to go forward despite obstacles.” In the face of these sorts of pressures in warfare, many would play down their conscientious reactions and say nothing, especially given the dangers they themselves faced. Murphy, Frost, and Mealy “went forward” with their consciences and emerged from this horrendous saga as unsung heroes deserving of our praise and respect.

In reading David Cole’s new reports, it’s hard not to feel like the American leadership in the War on Terror has, on these crucial issues at least, had far less moral courage or humanity in far easier personal circumstances. Perhaps that makes them all the more blameworthy.

Life in the Global Public Domain: Response to Commentaries

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.

As the author of the United Nations Guiding Principles (GPs), I am honored that so distinguished a group of scholars has agreed to address them in this symposium. They do so not only from a policy perspective but also on deeper conceptual, legal and even philosophical grounds. I am particularly pleased that several of the commentators recognize that the heterodox nature of the GPs is necessitated by fundamental changes in the system of global governance and law-making of which human rights traditionalists may be unaware, tend to ignore or fail to understand.

Foundational Logics

Before responding to the commentaries, allow me to provide some of the intellectual and policy context within which the GPs were conceived, because their text alone cannot possibly convey it. In developing them over the course of a six year UN mandate, involving nearly fifty international consultations, extensive research and pilot projects, I had no interest in producing a piece of paper that would gather dust (or whatever electronic files gather) on library or scholars’ shelves. I strove to achieve what Professors Pauwelyn, Wessel and Wouters describe as “thick stakeholder consensus,” in contrast to the “thin state consent” that so often emerges from intergovernmental negotiations.[i] And I then hoped to leverage that consensus into “endorsement” by the UN Human Rights Council, adding to the GPs’ authoritative stature, helping to achieve their uptake by other international standard setting bodies, and embedding them in the global regulatory ecosystem for business and human rights.

In the event, the Council’s reception was unprecedented: never before had it endorsed a normative text that governments did not negotiate themselves. International uptake of key elements was swift: by the Organization for Economic Cooperation and Development, the European Union, the International Organization of Standardization, the International Finance Corporation, the Human Rights Commission of the Association of Southeast Asian Nations, the General Assembly of the Organization of American States, and the African Union, as well as by scores of individual states and businesses—even by the American and International Bar Associations. Some of the measures that have already been adopted include binding legal and policy requirements, with penalties for non-compliance.

But here comes a confession: these things involved politics. I state it openly in my book reflecting on the experience: “Accordingly, the GPs needed to be carefully calibrated: pushing the envelope, but not out of reach.”[ii] For some critics, this is the GP’s original sin, staining them beyond absolution. Thankfully, most observers see it as precisely what enabled long-standing aspiration to be admitted into the realm of actual policy and practice. And when I presented the GPs to the Human Rights Council I stated that its endorsement would not end all business and human rights challenges; but I added that it would mark the end of the beginning, because for the first time there would be a commonly agreed-upon foundation on which to build.

Now on to loftier matters. I next want to elaborate briefly on the idea of “polycentric governance” which the GPs embody because it is not always fully understood but is critical to how the GPs are structured and intended to operate. It rests on the observation that corporate conduct at the global level today is shaped by three distinct governance systems. The first is the traditional system of public law and governance, domestic and international. Important as it is, by itself it has been unable to do all the heavy lifting on this and many other global policy challenges, ranging from poverty eradication to combating climate change. Indeed, formal state-based multilateralism has become harder, not easier in the past decade or so.[iii] The second is a system of civil governance involving stakeholders affected by business enterprises and employing various social compliance mechanisms, such as advocacy campaigns, law suits and other forms of pressure, but also partnering with companies to induce positive change. The third is governance by business enterprises of their own affairs, which internalizes elements of the other two. In the case of multinational corporations, corporate governance so conceived is a distinct transnational law-making system in its own right—the private law of contracts, with direct consequences that can equal and in many cases surpass the scale and effectiveness of public governance in particular issue areas.[iv] Thus, the intellectual and policy challenge as I saw it was to try and formulate an authoritative basis whereby the three forms of governance systems become better aligned in relation to business and human rights, compensate for one another’s shortcomings and begin to play mutually reinforcing roles, out of which cumulative change can evolve over time. From the outset I rejected the voluntary/mandatory dichotomy that had paralyzed creative thinking and policymaking for too long, and insisted that “a smart mix of measures” would be required to get from here to there.

To foster alignment among the three governance systems, the GPs deliberately draw on the different discourses and rationales that reflect the different social roles they play in regulating corporate conduct. Thus, for states the emphasis is on the legal obligations they have under the international human rights regime to protect against human rights abuses by third parties, including business, as well as policy rationales that are consistent with, and supportive of, meeting those obligations. For businesses, beyond compliance with legal obligations, the GPs focus on the need to manage the risk of involvement in human rights abuses, which requires that companies act with due diligence to avoid infringing on the rights of others and address harm where it does occur. For affected individuals and communities, the GPs stipulate ways for their further empowerment to realize their rights to remedy where negative impacts occur. This multi-perspectivalism too has caused puzzlement if not consternation among traditionalists.


Drawing these foundational elements together, the GPs rest on three distinct but what I hoped would become dynamically interrelated pillars:

  1. The state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
  2. An independent corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved;
  3. Greater access by victims to effective remedy, judicial and non-judicial.

The thirty-one principles, each with commentary, elaborate the meaning of these foundational elements and their implications for law, policy, and practice. For its part, the Human Rights Council didn’t simply endorse a general idea; its endorsement covered the specific guidance that the GPs stipulate.

This approach may come more naturally to a political scientist than to human rights lawyers, ethical theorists or advocacy groups. In his commentary, John Tasioulas identifies several of what he calls “dogmas” that have limited past efforts to strengthen the international protection of human rights against corporate abuse: statism, legalism, a failure to recognize that human rights globally can only be secured through forms of polycentric governance, the growing fragmentation of international law and of the international political order—to which I would add the passionate belief on the part of some that certain human rights protections already “exist” in some ethereal sense, when the battle precisely is how to bring them into being and secure their effectiveness.[v]

Questions about Polycentric Governance

I now turn to the commentaries, taking them up thematically rather than by author. It comes as little surprise that the first concerns polycentric governance. To begin, Tasioulas raises what he calls a “vexing prospect” regarding the GPs corporate pillar. Let me explain. Under the GPs, companies have two types of requirements. One is to comply with all applicable laws. The other is to respect internationally recognized human rights in their own activities and through their business relationships, irrespective of what the host state does or does not do. Apart from legal requirements, the source of this independent corporate responsibility to respect is rooted in social norms and expectations. Tasioulas raises the concern that some societies are resigned to accepting lower expectations than others; he may well be right but we don’t need to debate the point here. More important for present purposes is that from it he infers the fear that “the idea of unitary human rights standards for the entire globe goes by the board.” This misses a critical element of the polycentric governance model.

A decade ago I published an academic article that introduced the concept of “the global public domain.” I described it as “an increasingly institutionalized transnational arena of discourse, contestation and action concerning the production of global public goods, involving private as well as public actors. It does not by itself determine global governance outcomes any more than its counterpart does at the domestic level. But it introduces opportunities for and constraints upon both global and national governance that did not exist in the past.”[vi] The GPs incorporate this understanding. Thus, the social norms and expectations regarding the corporate responsibility to respect are not simply local. The local increasingly is connected to and reinforced within the global public domain, thanks to civil society networks, social media, and the growing recognition by companies themselves in many sectors that enterprise-wide social risk management is in their own best interest.

When Oxfam America funds a community group in Cajamarca, Peru, which organizes protests against the local operation of Newmont Mining, headquartered in Denver, Colorado, and brings the community leader to Newmont’s annual shareholder meetings to make their case to the CEO and the press, those actions unfold in transnational space, not simply separate local spaces. Similarly, when Zambian or Andean communities lodge complaints against Chinese companies, based on social norms and expectations previously established with Western companies in the same or nearby locales, and the Chinese managers request guidance from Beijing, and Beijing’s guidance in turn references the GPs and the OECD Guidelines for Multinational Enterprises, those acts involve transnational space.[vii] The aggregation of such transnational spaces constitutes “the global public domain.”

Surya Deva also observes that “operations of business are no longer constrained by artificial territorial boundaries.” But in contrast to Tasioulas, his understanding of international law-making remains resolutely statist in character. Corporations are merely targets of regulation by the public governance system. In his scheme, they have no role in governance including as transnational law-makers, which is ironic because, at the same time, he insists that multinationals are so much more powerful than many states.

Questions about Scale of Treaty

The second major theme in the commentaries concerns the scope and scale of any international business and human rights treaty, a discussion renewed by the adoption by the Human Rights Council Resolution 26/9 in June 2014, which established an intergovernmental working group “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” A “treaty alliance” of some 600 NGOs have signed on in support.[viii]

Before responding to the commentaries on the matter of the proposed treaty, a few basic facts are in order. The resolution’s sponsors were Ecuador and South Africa, supported by Bolivia, Cuba and Venezuela. It did not garner a majority of votes in the Council, only a plurality. To obtain even a plurality, the sponsors had to include a footnote in the resolution excluding national firms from the treaty’s scope, notwithstanding its title.[ix] Virtually every major home country of multinationals either voted against the proposal or abstained. China was an exception, but its explanation of vote made it clear that its position hardly differed in substance from other home countries’.[x] Nor can it be said that the vote divided cleanly on North-South lines. For example, apart from the sponsors, all Latin American members of the Council, including Brazil and Mexico, abstained. Under the UN’s informal protocol, abstaining on a resolution pushed strongly by your neighbors can be taken to signify non-support. Finally, the proposal makes no effort to build on the GPs; in fact, the most ardent treaty supporters have done virtually nothing to act on the GPs within their own countries, and some have opposed references to the GPs in other international fora. Instead, the proposal essentially would start the process all over again with the aim of producing a single, overarching legal instrument that, like a silver bullet, promises the resolve business and human rights challenges once and for all.

The European Union and the United States indicated that they will not participate in the negotiations, although I suspect that eventually they will. NGO critics of their position attribute it to corporate influence, which of course cannot be discounted. But they fail to entertain the possibility that there is also something fundamentally flawed with the proposed approach, which on their own analysis has produced repeated failure in the past, and on which I elaborate below.[xi] Ecuador, the main force behind the proposal, estimates that negotiations could take a decade or more. Erika George, in the subtitle of her commentary, cleverly expresses the main challenge we now face as “making the most of the meantime.” But my best guess is that if the current parameters of the resolution and the intent of the treaty sponsors hold fast, one of two outcomes is likely to occur: either the process will drag on like the 1970s UN Code of Conduct for Multinational Corporations negotiations, which were finally abandoned in 1992; or Ecuador and its allies gather enough votes and ratifications from small states to produce an equivalent to the Migrant Workers Convention, which entered into force in 1990 but has not been ratified by a single migrant worker-receiving country—the equivalent in the present case being the major home countries of multinational corporations. By 2025 nearly half of the Global Fortune 500 firms are expected to be domiciled in emerging market countries, further narrowing the North-South divide that some have sought to resurrect in support of the current treaty initiative.[xii]

Now back to the commentaries. Tasioulas notes my long-standing objections to any attempt to shoehorn the entire complex of business and human rights issues into a single, overarching international legal instrument. The brief explanation is that the category of business and human rights involves an enormous range of problem diversity, legal and institutional variations, as well as conflicting interests across and even within states. Therefore, a general business and human rights 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. Jenny Martinez reaches much the same conclusion in her commentary. But Tasioulas as well as Surya Deva and Frederic Megret ask: why doesn’t this objection apply to the GPs? They are comprehensive, involving all states, all businesses and all internationally recognized rights. The answer is simple: because the GPs are not a treaty. Governments would never have endorsed them if they were. The GPs are a “soft law” instrument, which increasingly is how governments make initial moves into highly complex and conflicted issues. Even so, several generally human rights-friendly states needed considerable persuasion to accept certain foundational formulations in the GPs, not merely because they were protecting “their” corporations as might be assumed, but in defense of strongly held legal doctrines and to avoid setting precedents for other, unrelated, matters.[xiii]

The commentators also address my suggestion that, if treaty negotiations are to have any chance of success, they should focus on “carefully constructed precision tools” aimed at specific governance gaps. I first argued this case in a 2007 law journal article.[xiv] In the context of the current treaty debate, I have suggested that an obvious first instance would be corporate involvement in “gross abuses.”[xv] 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 (think Alien Tort Statute post-Kiobel); and because the knock-on effects for other aspects of the business and human rights agenda would be considerable, as was true of the ATS.

Surya Deva rejects these arguments. He believes that the first takes too constricted a view of the role of international law. I well understand that international law has expressive functions in addition to its regulative role. But there is no shortage of expressive international human rights law. The last thing victims need is a symbolic gesture that makes promises which cannot be kept. What is needed is laws that get implemented and make a difference on the ground. Deva also rejects the focus on gross abuses because it doesn’t cover enough human rights territory (it is “irrelevant whether human rights violations are regarded as ‘gross’ or not,” he states). But the real choice, as Jenny Martinez puts it bluntly in her commentary, is between a first step and no step at all. For my part, I find it unfathomable that in the current international political order states would agree to establish and enforce a single set of global standards for corporate conduct concerning every internationally recognized human right, ranging from extrajudicial killings to providing an adequate work-life balance. And I shudder to think of the damage that would be done to existing human rights standards in the process. At a deeper level, Deva would do well to engage the analysis of scholars such as John Douglas Bishop and scholar-practitioners like Philip Alston and José Alvarez, who have thought seriously about the societal risks of over-extending legal human rights obligations to corporations.[xvi] In short, like it or not, making choices about the substantive focus of a treaty is inevitable; the only question is who makes them, on what basis and with which consequences.

Tasioulas and James Stewart also raise questions about the “gross abuses” focus, but of a more technical nature. Both assume that addressing gross abuses would require states to establish a standard of corporate criminal liability as a matter of international or national law. This, Tasioulas fears, would “obscure the need for other sorts of responses, such as compensation.” But criminalization is not necessary. While the trend to recognize criminal liability of legal persons has been increasing, a number of countries still do not do so. Following the kinds of approaches adopted in the OECD and UN anti-bribery conventions, states would be free to consider appropriate forms of liability in line with the fundamental principles of their national legal systems, which could include civil or administrative liability, with corporate dissolution as the ultimate penalty. Compensation could also be made available, and the liability of legal persons could be without prejudice to criminal liability of natural persons who may have contributed to the corporation’s liability.

Moreover, while it is true that it remains unclear how far a treaty instrument on gross abuses would reach in addressing serious violations of social and economic rights, it certainly would encompass a number of grave harms in which business enterprises have been involved, including slavery and slavery-like practices, such as forced and bonded labor, both of which remain widespread.[xvii] In any case, bear in mind that the burden of my argument has been that international legal instruments in business and human rights should address specific governance gaps. Gross abuses are but one plausible instantiation. Erika George suggests additional ideas that are well worth considering.

Questions about Remedy

Understandably, the third theme that runs through the commentaries is the challenge of providing effective remedy for victims, particularly judicial remedy. The GPs, like every NGO report on the subject that I’ve ever read, are better at decrying inadequate access to judicial remedy than fixing it. GP 25 affirms that providing access to effective remedy is part and parcel of the state duty to protect against human rights abuses within their jurisdiction. The GPs go on to identify obstacles, and urge states to take steps to overcome them. Clearly this is not enough to ensure that it happens in practice, as I have readily acknowledged. What the treaty sponsors and advocates have in mind, however, is comprehensive forms of extraterritorial jurisdiction under international human rights law. Here too we enter very tricky terrain.

The Commentary to GP 2 summarizes, based on extensive research, what I believed to be international law and practice at the time of writing: “At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”[xviii] Being grounded in a multilateral agreement, the Commentary goes on to say, would provide one such jurisdictional basis. But this brings us right back to the scale of a treaty. Sit back for a moment and ponder the following two questions: for how many internationally recognized human rights do you believe states would endorse extraterritorial jurisdiction? Even more important for a symposium such as this, for how many rights should they do so? Does anyone expect, and should we want, extraterritorial jurisdiction to prevail across the entire range of internationally recognized rights? In my view, the answer to both questions is a resounding “no.”

That states would not agree requires little elaboration. While some UN human rights treaty bodies have urged home states of multinationals to provide greater extraterritorial protection against certain corporate-related human rights abuses, and research conducted under my mandate identified the grounds on which, and the ways in which, states have done so in a number of related policy domains, state conduct generally makes it clear that they do not regard this to be an acceptable means to address violations of the entire array of internationally recognized human rights. It makes little difference whether the states in question are located in the North, South, East, West or whatever azimuth one prefers to reference. Therefore, once again choices have to be made.

That it is an intrinsically bad idea undoubtedly will be more controversial for some. Deva ends his commentary by proposing a Business and Human Rights Declaration, similar to the Universal Declaration of Human Rights. He insists that it must “assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.” I have no principled objection to a Declaration. But if that same hierarchy were established in a legally binding international instrument and coupled with extraterritorial jurisdiction, it would utterly incapacitate national and local governments from conducting the often extensive number and variety of trade-offs that the very act of governance requires. Policy choices typically do not come neatly packaged, with human rights on one side and “other areas/instruments” on the other. They may involve conflicts between different human rights themselves. Moreover, “other areas/instruments” can equally implicate human rights, of different rights-holders, say, or over different temporal horizons. No single treaty could possibly resolve these complex interactions, so it would be left to each state to take its own approach to enforcement. But that would simply produce confusion and conflicting outcomes, and in some cases chaos, not uniform practices.

In sum, if we accept, as elementary logic requires, that not all internationally recognized human rights would or should trigger extraterritorial jurisdiction, then which ones? As a matter of record, extraterritorial jurisdiction in cases of gross abuses when committed by natural persons has greater international support than any other human rights-related abuse. In principle, this ought to make it easier to forge agreement for clarifying that the same prohibitions apply to legal persons, thus reinforcing the argument for a focus on corporate involvement in gross abuses.

At present, the most promising practical development on the legal remedy front comes as a result of a second resolution the Human Rights Council adopted in June 2014 (HRC 26/22), introduced by Norway and adopted by consensus (meaning that it required no vote). Among other things, it requests the Office of the High Commissioner for Human Rights to explore “the full range of legal options and practical measures to improve access to remedy for victims of business-related human rights abuses” and, in collaboration with the expert working group that was established to succeed my mandate, to organize consultations among all relevant stakeholders—which will include national investigators and prosecutors who struggle with these issues in their daily work. This could inform the treaty process if the sponsors were willing to draw on it. If the treaty negotiations make no progress, then perhaps it could come to serve as a basis for a constructive alternative initiative.

Whatever one’s preferences may be regarding the specifics of a binding international legal instrument, everyone agrees that legal reform is difficult and takes time. But remedy is not limited to punishment. It may also include apologies, restitution, rehabilitation, financial or non-financial compensation, as well as prevention of harm through, for example, guarantees of non-repetition. Alternative dispute resolution techniques can play a critical role in this regard. Accordingly, the GPs also stressed the importance of promoting forms of non-judicial remedy. GP 31, the longest of the entire set, lays out effectiveness and legitimacy criteria to which such mechanisms must adhere.

Non-judicial mechanisms can be state-based, as in the case of administrative labor tribunals, or the National Contact Points under the OECD Guidelines, which included the GPs’ corporate responsibility to respect pillar in the Guidelines’ 2011 revision, and which have witnessed a spike in human rights-based complaints since. They can also involve grievance mechanisms that companies establish at local and/or corporate levels as many are doing, or collaboratively. Effective company-related grievance mechanisms can serve two important functions. First, they can make it possible for grievances to be addressed early and directly when and where they occur, thereby preventing harms from compounding and grievances from escalating. Second, they can serve as an early-warning system for companies, enabling them to adapt their practices accordingly. Many such operational level grievance procedures remain a work in progress that are still being tested (and in some cases contested by activist groups and plaintiffs lawyers). But for now they fall neatly into Erika George’s category of “making the most of the meantime.” And if they succeed, in the long run they will serve as a significant complement to whatever international legal regime may evolve, just as they do at the domestic level in even the most robust legal systems.

Concluding Thoughts

Much more could be said about the thoughtful commentaries this symposium has brought together, and the broader issues at stake. But in concluding I limit myself to two points. The first is to reiterate the important contributions of Amartya Sen to my understanding of human rights, which John Tasioulas notes in his commentary. Sen insists that human rights are much more than laws’ antecedents or progeny. Indeed, he states, such a view threatens to “incarcerate” the social logics and processes other than law that drive public recognition of rights.[xix] My work, including the Guiding Principles, has sought to contribute to the freeing of human rights discourse and practice from these conceptual shackles, by drawing on the interests, capacities and engagement of states, market actors, civil society, and the intrinsic power of ideational and normative factors. Second, now that negotiations on an international legal instrument are about to commence, my sole concerns are that they build on what has already been achieved, not undermine it; and that the effort be meaningful and actionable where it matters most: not in legal treatises, journals of ethics, or the mesmerizing effects that the word “binding” has on the critical faculties of many committed activists, but in the daily lives of people—and not in some far-off promised future that may or may not ever materialize, but starting in the here and now.


[i] Joost Pauwelyn, Ramsel A. Wessel and Jan Wouters, “The Stagnation of International Law,” Leuven Centre for Global Governance Studies, Working Paper No. 97, October 2012.

[ii] John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights (New York: W.W. Norton, 2013).

[iii] Pauwelyn, Wessel and Wouters report that new multinational treaties have declined precipitously for more than a decade, and that not a single one was deposited with the UN in 2011.

[iv] The most creative work by lawyers on the subject of transnational law-making by multinational corporations with which I am familiar is by Larry Catá Backer, and Jean-Philippe Robé. It is too voluminous to even begin citing here, but see their respective websites:; and Both reference the work of the German sociologist of law Günther Teubner, whose writings on the fragmentation of international law and its implications for “legal regime collision” should be required reading for all students of human rights law. See, for example, Andreas Fischer-Lescano and Gűnther Teubner, “Regime Collision: The Vain Search for Legal Unity in the Fragmentation of International Law,” Michigan Journal of International Law, 25 (2003-2004).

[v] A leading exemplar of this last tendency is David Bilchitz, “A chasm between ‘is’ and ‘ought’? A critique of the normative foundations of the SRSG’s Framework and the Guiding Principles,” in Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge: Cambridge University Press, 2013).

[vi] John Gerard Ruggie, “Reconstituting the Global Public Domain: Issues, Actors, and Processes,” European Journal of International Relations, 10(4): 499–531, citation on p. 519.

[vii] The first example is described in my book, Just Business, p. xli; also see Louis V. Galdieri, “Ruggie and the Red Priest,” available at For the second, see “Guidelines for Outbound Mining Investments,” produced by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, available at

[viii] See

[ix] The resolution is entitled “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.” But the oddly worded footnote defines “other business enterprises” as “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.”

[x] China’s delegate stated that their affirmative vote was based on the following “understanding”: that the issue of a business and human rights treaty is complex; that 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; and that it will be necessary, therefore, to carry out “detailed and in-depth” studies, and for the treaty process itself to be “gradual” and “inclusive.” See rights council&sort=date.

[xi] A recent NGO survey sums up the overall record since the 1970s: “All these efforts met with vigorous opposition from TNCs and their business associations, and they ultimately failed.” See “Corporate Influence on the Business and Human Rights Agenda of the United Nations,” Working paper issued by Misereor, Global Policy Forum, and Brot für die Welt,” June 2014, p. 5, available at

[xii] The estimate comes from McKinsey; see

[xiii] For example, the United States objected to my stipulation that the state duty to protect applies within a state’s jurisdiction; they insisted that it was limited to its territory—I suspect with Guantanamo in mind. The UK objected that it did not accept to the idea of a general state duty to protect, that this was strictly a treaty-specific obligation. Sweden objected to the inclusion of an independent corporate responsibility to respect human rights because it feared that it would detract from state obligations. And so it went, even with friendly states. I managed to satisfy the U.S. by changing the referent to “jurisdiction and/or territory.” The UK agreed that it would express its reservation in explaining its vote after the fact, which did not affect its endorsement. In the case of Sweden, thanks to personal relations with higher officials the objections of legal advisors were withdrawn. The UK subsequently released a letter sent to me by the Legal Advisor at the Foreign and Commonwealth Office, so I also released my response. They are available at; and

[xiv] John Gerard Ruggie, “Business and Human Rights: The Evolving International Agenda,” American Journal of International Law, 101 (October 2007).

[xv] See, for example, my blogs “A Business and Human Rights Treaty? International Legalization as Precision Tools,” available at; and “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” available at

[xvi] John Douglas Bishop, “The Limits of Corporate Human Rights Obligations and the Rights of For-Profit Corporations,” Business Ethics Quarterly, 22 (January 2012); Philip Alston, “The ‘Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Alston, ed., Non-State Actors and Human Rights (New York: Oxford University Press, 2005); and José E. Alvarez, “Are Corporations ‘Subjects’ of International Law,” available at

[xvii] Conceivably one might be able to make the case that systematic and widespread patterns of corporate-related involvement in what the ILO defines as the worst forms of child labor be included: “(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”–en/index.htm

[xviii] On this and related points, also see John H. Knox, “The Ruggie Rules: Applying Human Rights Law to Corporations,” in Radu Mares, ed., The UN Guiding Principles on Business and Human Rights (Leiden: Martinus Nijhoff, 2012). Knox, a professor international law, currently serves as UN Independent Expert on Human Rights and the Environment.

[xix] See Amartya Sen, “Human Rights and the Limits of the Law,” Cardoso Law Review, 27 (No. 6, 2006); “Elements of a Theory of Human Rights,” Philosophy and Public Affairs, 32 (Autumn 2004); and The Idea of Justice (Cambridge: Harvard University Press, 2009).

Would a Treaty Be All It Is Made Up to Be?

Frédéric Mégret is an Associate Professor at the Faculty of Law, McGill University and the Canada Research Chair on the Law of Human Rights and Legal Pluralism

In moving towards the negotiation of a treaty on business and human rights, the international human rights movement is on familiar terrain. Indeed, legalization has represented a hallmark of the movement’s strategy ever since the adoption of the Universal Declaration of Human Rights. “From declarations to conventions” seems to be the natural direction that the project has been taking for decades. The International Covenants for example were a specific response to the perceived limitations of the UDHR. There is a time for politics, and there is a time for law. Human rights both domestically and internationally are fundamentally invested in the idea that the move from policy to binding standards is indispensable.

The move to a treaty on business and human rights should therefore not come as a surprise. No doubt it has some things to commend it. At the same time, doubts are already being voiced about whether it is a good idea. Some of these doubts may have to do with perceived hidden motivations for proposing a treaty, and the sort of substantive instrument that might result. For example, there is concern that the current treaty agenda reflects an anti-business bias, seeking to draw attention away from the responsibilities of the host state at the expense of the state of incorporation and transnational businesses themselves. Violations of human rights as a result of the activities of corporations result from a complex chain of causation that may include predatory corporate actors, but also irresponsible states on both ends (sending, receiving). The balance achieved in the Guiding Principles is a fragile one and there is a risk that it might be disrupted. The interstate environment in which treaties are negotiated might resurrect South-North antinomies that today are not the most helpful when it comes to the question of business and human rights. As Ruggie points out helpfully, whether a corporation is “transnational” or not is increasingly irrelevant. If nothing else, a human rights paradigm ought to inform a more cosmopolitan approach (as it has for most existing human rights treaties) one which is as much focused on the domestic as the transnational.

Nonetheless, it is far too early to anticipate what the eventual substance of a Treaty on business and human rights might be. Fears about its orientation are not really a reason for not having a treaty at all, only a reason to fight to have as good a treaty as possible. The real question at this stage is whether there is something inherently problematic about having a treaty as opposed to the Guiding Principles as they stand. And if one is to look for an inherent problem with having a treaty, it must be a problem with a treaty as a form. Although the Guiding Principles would presumably not be eliminated merely as a result of the emergence of a treaty, they would most likely be sidelined, or at least cease to reflect the global consensus alone, especially if the treaty was comprehensive. Here the question is whether, as in the traditional human rights vision, “Guiding Principles” were always a second best to a treaty, or whether there is something in the notion of Guiding Principles that is inherently appealing as a regulatory model when it comes to that particular topic (business and human rights) and in the current conditions (largely post-national and post-modern). I take John Ruggie’s Harvard piece as ambivalent on this very issue, at the same time not ruling out the need for a treaty yet cautiously trying to defend the sui generis character of the Guideline and the need to stay true to their “regulatory dynamics.” As I am in broad agreement with that cautious attitude, I want to suggest three ways in which we might see a comprehensive treaty as problematic.

A first concern might be what one might call the untranslatability of the Guiding Principles project into the language of a human rights treaty. As a human rights instrument, an international treaty on multinational corporations would be an almost unprecedented treaty focused not on proclaiming certain rights or protecting certain groups (as has traditionally been the case), but on imposing obligations upon a certain category of actors. It would therefore be more a treaty on obligations than on rights, even though the implementation of the obligations would be presumed to lead to the fulfillment of the rights. The combination of rights and duties is, admittedly, not unprecedented and, in fact, increasingly common. For example the Convention on the rights of persons with disabilities is a very mixed bag of rights proclamation and insistence on certain standards that states, local authorities and private actors ought to respect to make the rights of persons with disabilities a reality. However at stake is clearly a change in the style of human rights and it may be that something is lost by legalizing too many things, in ways that reflect international legislative inflation and perhaps a move away from the parsimony of rights. In other words, one might think there should be an international regulatory division of labour between human rights treaties (that remain at the level of quasi-constitutional principles) and implementing instruments (guidelines, corporate guides of conduct) that seek to chart the many ways in which treaties ought to be implemented.

A second perhaps more significant concern might be that the move to a treaty does too much of the promise of legal bindingness and therefore the prospect of enforceability. There is no doubt that currently there continues to exist huge gaps in the sort of accountability that victims of corporate rights violations can hope to obtain. The question, however, is whether this is because of the absence of a treaty. In practice, for example, it is not clear that simply because treaties are binding in Law means that they are regularly or systematically enforced. There is by now two decades of theoretical and empirical literature on whether treaties improve human rights compliance that is at best inconclusive. Note that the issue of whether human rights treaties induce compliance generally is distinct from whether they can command compliance in particular cases: the latter may be true even as the former is not, in the sense that one can evidently win an individual case under a treaty on the basis of its binding character even as that treaty is otherwise regularly ignored. In practice the existence of a treaty may or may not be the focus of strategies to promote human rights, but many such efforts do not particularly rely on its binding character (except rhetorically). In fact, as pointed out by Ruggie, the Guiding Principles have already become influential (with international institutions for example) largely despite not being binding. It is no small feat, in particular, that a non-binding international instrument has already translated into binding legislation, where many binding treaties are never incorporated into domestic law.

The lesson is that at least when it comes to that issue area, orienting institutional change may be more important than imposing it. At least as important to treaty compliance is the extent to which treaties set realistic standards or have a degree of legitimacy with the actors whose behaviour they claim to regulate. But herein lies the crux: bindingness, of course, is not everything. One might have standards that are scrupulously observed only because they are so low in the first place, something that would hardly count as a victory for human rights. In that sense human rights might be said to be at an implicit disadvantage in international normative competition since they start from a certain axiological high ground rather than simply some promise of rational-efficiency. At any rate, the binding character of a treaty might be obtained only at the cost of diluted standards, as states awaken to some of the legal ramifications of a treaty entering into force; or a treaty might be “strong” but fail to secure the participation of key states (as happened with the Convention on the Rights of Migrant Workers), a potentially disastrous result when it comes to transnational corporations. The move to a treaty, in other words, might destroy some of the constructive ambiguity upon which the Guiding Principles were based and signal, paradoxically, a decline in the implementation of the standards it champions.

Third, moving to the treaty form may effectively redefine the nature of the regulation involved, beyond the question of whether the resulting standards are binding or not. The “treatification” of the Guiding Principles might be seen as pushing in two, not necessarily compatible directions. On the one hand, the existence of a treaty directly regulating multinational corporations might be said to reinforce the status of such corporations as, henceforth, fully fledged subjects of international law and not merely entities producing their own form of endogenous regulation existing in a grey transnational normative zone. This strengthens the idea of corporations as human rights actors in their own right (even if substantively the treaty remains focused on their respecting rather than protecting human rights), in ways that can only challenge the state’s centrality. Given how vexed an issue the status of corporations as subjects of international law has been, a treaty – whatever else it does substantively – might at least clarify this issue. An alternative way of looking at it is that the adoption of a treaty would manifest a strong return of the “public” and an emphasis on the role of the state in regulating non-state actors. This at least is implicit in the idea that treaties’ source of authority is sovereign consent to them. Multinational corporations, even though they would be presumably regulated by the treaty and even though they would presumably lobby states both directly and indirectly, would not be a party to the treaty itself. Under this view, they would ultimately appear more as objects than subjects where one of the merits of the Guiding Principles was to put them at the centre of the regulatory effort that focused on them, thus presumably encouraging ownership and accountability.

In other words, the move to a treaty is a move to “normalize” the regulation of corporations within the vernacular of public international law and away from the sort of “private ordering” that has become a hallmark of the regulation of corporations today. It thus arguably does away with one of the central features of the Guiding Principles as a hybrid instrument at least partly “owned” by corporations. As such, one can wonder whether the move to a treaty does not manifest a form of failure of legal imagination. Is it so difficult to imagine a global instrument that would be binding under international law yet not restricted by nature to state membership?

A First Step is Better than No Step at All

Jenny S. Martinez is the Warren Christopher Professor in the Practice of International Law and Diplomacy at Stanford Law School. She is the author of The Slave Trade and the Origins of International Human Rights Law (OUP, 2012).

Last year, the U.N. Human Rights Council voted 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.” The objective of this working group would be to “clarify the obligations of transnational corporations and other business enterprises with respect to human rights.” The new initiative has largely been supported by states in the Global South, while the United States and the European Union have opposed the treaty effort on the grounds that it is unlikely to succeed and will divert attention from implementation of the non-binding but widely discussed Guiding Principles on Business and Human Rights. The Guiding Principles were, of course, spearheaded by John Ruggie when he was the U.N. Special Representative for Business and Human Rights, and endorsed by the Human Rights Council in 2011.

Last December at the U.N. Forum on Business and Human Rights, however, Ruggie himself resisted this framing of the path forward, saying that he “saw no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other” and urging “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.”

Ruggie is correct that, in principle, there need be no contradiction between pursuit of the voluntary implementation of the non-binding principles as to some aspects of the human rights obligations of businesses and simultaneous negotiation of binding international legal obligations as to other aspects. In practical terms, however, the danger is that the treaty drafting process will slowly limp forward without resulting in a document with any legal bite, while giving states and businesses an excuse to abandon all effort to implement the Guiding Principles. How can this trap be avoided?

Ruggie is right to suggest that the best path forward may be through narrower, more focused agreements on specific topics rather than one overarching treaty that attempts to govern the entire field. A single treaty is likely to be rich in aspiration and weak on detail and tools for implementation. Moreover, narrower and more specific treaties might be more likely to garner eventual ratifications from initially skeptical states.

What kinds of problems might treaties address, and how might they do so? One comparison might be the ILO Convention on the Worst Forms of Child Labor, which was adopted by the ILO in 1999 and has now been ratified by 174 countries (the fastest pace for ratification of any ILO agreement). In that treaty, states obligate themselves to take “immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” Contrast with the murky language of the International Covenant on Economic, Social and Cultural Rights, wherein a ratifying state “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” While intrepid international lawyers have attempted for decades to give teeth to this vague language through forceful and elaborate interpretations, the basic mushiness remains.

Moreover, rather than relying on lofty generalities, the ILO child labor treaty lists several concrete practices — such as slavery, debt bondage, forcible use of child soldiers, and prostitution — that automatically constitute worst forms of child labor, while also including more open-ended definitions that encompass abuses of similar gravity. It is much easier to tell whether a state has prohibited five very concrete things than to tell whether it has achieved a much vaguer goal like promoting equality. Moreover, concrete goals provide a rallying point for domestic political advocacy, as civil society groups can lobby for adoption of legislative and administrative measures in compliance with the international standard.

Now, it would be a mistake to treaty the ILO Convention on the Worst Forms of Child Labor as a model treaty, because despite its wide ratification, it is not clear how successful it has been. Despite its immediate and binding language, and sharp definition of certain prohibited practices, the lack of a strong international enforcement mechanism is a problem. A more effective treaty would provide stronger means for monitoring, measuring and enforcement.

A good start in the area of business and human rights would be a treaty focused on the worst types of abuses, such as corporate actors knowingly aiding and abetting core international crimes as defined in the Rome Statute of the International Criminal Court. Such a treaty would oblige states to take immediate measures in domestic law to prohibit and provide for appropriate civil and criminal liability for such abuses.  It would provide for some kind of international monitoring and oversight, and might include jurisdictional provisions clarifying which states would have obligations and would be entitled to exercise jurisdiction in the case of corporate actors whose activities span multiple jurisdictions. Would such a treaty lead us to a perfect world? Would it address fundamental issues of distributional justice between global north and global south, between the haves and have nots of globalization? Of course not. But a first step is better than no step at all, and it would be a sensible place to start the effort of moving from soft to hard law in this arena. Such a focused treaty would be more likely to garner support from wary countries, and if it clarified jurisdictional rules, could even gain support from businesses because it would bring greater predictability and clarity.   This would not preclude simultaneous efforts to implement the Guiding Principles, nor would it preclude later treaties addressing other aspects of business and human rights. The long-term questions raised by the relationship between business and human rights will ultimately require long-term solutions, but this would be a sensible place to start.

A New Instrument on “Gross” Violations? Enthusiasm and Apprehension

I join this fascinating discussion to offer reflections on Professor Ruggie’s interesting proposal for “a legal instrument addressing corporate involvement in the category of “gross” human rights violations.” As someone whose work focuses on the relationship between commerce, atrocity and international criminal law (“ICL”), I applaud Professor Ruggie’s consistent expressions of interest in this relationship, and his desire to play a proactive role in moving this type of accountability forward. His desire coincides with a range of new initiatives that share similar aspirations: in one recently launched by the International Corporate Accountability Roundtable (ICAR), of which I am a member, a group of experts plans to explore the sorts of problems (legal, investigative and practical) that impede prosecutions of these sorts. In another, recently announced by the United Nations Office of the High Commissioner for Human Rights, ICL will feature as one part of a wider and longer project investigating best practices in corporate accountability for “gross” human rights abuses.

Neither of these twin initiatives advocates for the promulgation of a new treaty; both contemplate building frameworks similar to the UN Guiding Principles, that work with pre-existing legal tools. By contrast, the idea of a “new instrument” attempts to break new ground, presumably in treaty form. A treaty would certainly offer a number of benefits. A single instrument addressing corporate responsibility for “gross” human rights violations could help in producing clear, uniform law that provides helpful guidance to businesses and human rights advocates alike. A treaty could identify and confront barriers to justice, including the cost of financing litigation, difficulties with investigative capacity or the absence of a regulatory level playing field globally. It could also be helpful in recommending divisions of labor between home and host countries, such that everything from evidence acquisition to conduct of trial and enforcement of sentences is better coordinated. All of these features are salutary, important, and worth pursuing.

This said, I want to express a series of countervailing dangers involved in codifying a new instrument on corporate responsibility for “gross” violations of human rights, in the hopes that attempts at generating a legal instrument like this are appraised of the possible pitfalls that await. In a way, my concerns are reminiscent of David Kennedy’s Dark Sides of Virtue—the idea that while human rights initiatives frequently bring about a great deal of good into the world, at a very minimum, they must make conscious and address (if possible) their potential downsides. In what follows, I expand on several of these, in ways that I hope act as a friendly caution to those involved in this laudable project.

The first concern stems from how we understand “gross” violations. I appreciate “gross violations of human rights” is something of a term of art in the field, and that the UN General Assembly and others have adopted definitions that equate “gross” violations with ICL to avoid the ambiguities of separating more fundamental human rights from less. Whether ICL and “gross” human rights overlap perfectly or just substantially, there is a sense that these two sisters of international law are again lifting one another up. If some (not Moyn) see Nuremberg as the genesis of both international human rights and ICL, perhaps modern initiatives focused on civilizing business, such as this new instrument, can replicate the catalytic effect between the two fields. Personally, I see this possibility in positive terms, but we should also pause to observe the potential downsides.

For one reason, ICL is a relatively poor vehicle for enforcing economic, social and cultural rights. In its early years, the ICTY flirted with including violations of economic, social and cultural rights in its understanding of persecution as a crime against humanity, but that approach has received a mixed welcome, and by and large, is not close to adequately protecting systemic violations of economic, social and cultural rights. The mismatch between ICL and “gross” violations of human rights would cut the other way too. It’s unclear for instance, whether pillage of natural resources (a primary mechanism for modern conflict financing) constitutes a “gross” human rights violation within the meaning this new instrument would adopt, even though it is unquestionably an international crime that has deleterious consequences for civilian populations in many corners of the world. From the foregoing, one is left wondering whether a focus on “gross” human rights violations will do full justice to human rights or ICL?

And how about national law? Over the summer, a colleague and I sat through the entire Blackwater trial in Washington D.C. (see initial commentary here and a presentation here), in part, because we saw it as a pivotal moment for the idea of home states holding their own corporate officers accountable for conduct that amounts to international crimes perpetrated in foreign war zones. I say “amounts to” because the Blackwater trial was most striking in one respect: it made not an iota of reference to international law at any point. This purely American criminal trial could have constituted a corporate war crime case if charged as such, but instead, the US Attorney’s preferred to employ different, local offenses in providing a judicial response to the gross (corporate) human rights violations that transpired in Baghdad that day.

Still, the Blackwater trial should still count as a judicial response to “gross” human rights violations by a corporation, no? The trial is a remarkable example of the accountability the business and human rights movement aspires to, absent only the reference to international law. Surely we aren’t so wedded to international law that we deprive it of this status. The question for the new instrument then becomes, how would a treaty governing business and “gross” violations of human rights address purely domestic trials like this, that make no mention of human rights of international crimes at all. Is there not a danger that the new category of “gross” violations obscures more than it clarifies?

Leaving the scope of this new treaty to one side, what of the implications for ICL of a new treaty governing “gross” violations of human rights? A new instrument could allow a wholesale departure from previous standards in ICL that already rightly implicate private actors. This anxiety isn’t purely academic—one of the reasons we do not see new treaties governing International Humanitarian Law presently is that the International Committee of the Red Cross (ICRC) knows full well that opening up the Geneva Conventions in a post-September 11 world will lead to a net diminution of humanitarian protections. Are we certain that a similar process will not transpire for “gross” corporate violations of human rights, in ways that push the two bodies of international law further underground rather than lifting them up?

One idea is that a new instrument governing corporate responsibility for “gross” violations of human rights could contain an entirely compartmentalized set of principles that apply to businesses and their representatives, leaving ICL entirely unaffected. Yet, this idea of a segregated regime could pose both symbolic and substantive problems. At the level of symbolism, why should there be a separate category for one set of actors, when they are already bound by pre-existing doctrine in ICL itself? Does this preferential treatment imply that business is normatively or morally privileged? Although I’m sometimes tempted by Jules Coleman’s argument that markets deserve special moral deference because they stabilize notions of the good that we cannot otherwise agree on, overall, I am reluctant to venerate businesspeople over and above politicians, military leaders or other groups capable of committing these crimes.

I suspect that part of the response to these symbolic concerns is that the new instrument will really just focus on harmonizing disparate standards particular to corporations. The problem with this idea is that ICL itself is disparate already, so one can’t harmonize some standards (like complicity) without cutting across pre-existing law. Consequently, if the concern is harmonization, perhaps the task is to harmonize ICL as a whole, or at least portions of it that most closely affect these debates. Over the past years, I have argued that we should adopt a single concept of blame attribution universally (including, but not limited to, complicity) to address some of these problems. Since then, I have set out a set of arguments (see here) for this type of global standardization. Although commerce was a major driver in my thinking, I consistently pitched this claim to the entire field of ICL. The idea of a new instrument to do or encourage this for just business cases is less ambitious, but it does fragment the discipline.

In addition, equating “gross” human rights with ICL brings business and human rights face to face with transitional justice. Up until this point, much of this discussion has assumed a very juridical response to corporate malfeasance. For various reasons I won’t labor here, I believe that judicial responses to this problem are critically important, especially given the immense culture of impunity presently in place. Nonetheless, a number of scholars are less enthusiastic about the fetishization of legal accountability that ICL has brought about. To repackage their concerns into the present context, a new instrument governing gross violations of human rights should not preclude a Truth and Reconciliation Commission instead of a criminal trial, in response, say, to corporate implication in Apartheid South Africa. This poses an interesting tension, however, since we are unequivocally calling for greater judicial-type accountability, including overcoming legal barriers that tend to inhibit it. Those negotiating a new instrument will have to confront this inherent tension.

This brings us to the dangers of “crowding out”. A focus on “gross” violations of human rights could undermine Professor Ruggie’s excellent work on corporations and human rights simpliciter. A new and exciting scholarship is emerging in ICL lamenting the extent to which ICL crowds out other agenda. The moral intensity of atrocity impedes our vision of political economy, colonial history, and human rights performance, all of which also play important causal roles in reproducing mass violence. We simply forget about these other contextual factors in our enthusiasm for sensationalized trials (which arguably do too little to deal with root causes). I have misgivings about this “crowding out” thesis as a critique of ICL (see here), but it is helpful in reminding us of the need to pursue solutions to the problem of business and human rights generally at the same time we develop new tools for the worst types of violations. In other words, our enthusiasm for a new instrument on corporate responsibility for “gross” human rights violations should not obscure the need for deeper structural change and our commitment to pursuing it.

Overall, with respect to “gross” violations at least, one wonders whether the better approach is just to focus on what we already have—the relationship between current ICL and commerce remains very poorly understood, not to mention very infrequently enforced. To be sure, there are upsides to the treaty approach that may outweigh the potential pitfalls I point to; my enthusiasm may win out over my apprehensions depending on the precise parameters of a draft treaty. But however this particular initiative plays out, greater emphasis on the relationship between extant ICL and business will illuminate the possibilities for accountability that already exist, without inviting States back to a negotiating table. In this respect, too, the possibility of a new instrument should not blind us to the work already at hand.

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.