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.