---

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.

Endnotes

[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: https://pennstatelaw.psu.edu/faculty/backer; and http://works.bepress.com/jean-philippe_robe/. 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 https://lvgaldieri.wordpress.com/2013/05/22/ruggie-and-the-red-priest-a-lesson-in-listening/. For the second, see “Guidelines for Outbound Mining Investments,” produced by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters, available at http://www.srz.com/files/upload/Conflict_Minerals_Resource_Center/CCCMC_Guidelines_for_Social_Responsibility_in_Outbound_Mining_Operations_English_Version.pdf.

[viii] See http://www.treatymovement.com/.

[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 http://webtv.un.org/search/ahrc26l.22rev.1-vote-item3-37th-meeting-26th-regular-session-human-rights-council/3643474571001?term=human 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 http://www.globalpolicy.org/home/221-transnational-corporations/52638-new-working-paper-corporate-influence-on-the-business-and-human-rights-agenda-of-the-un.html.

http://www.treatymovement.com/.

[xii] The estimate comes from McKinsey; see http://www.mckinsey.com/insights/urbanization/urban_world_the_shifting_global_business_landscape.

[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 http://www.reports-and-materials.org/sites/default/files/reports-and-materials/UK-Foreign-Office-letter-to-Ruggie-9-Jul-2009.pdf; and http://www.reports-and-materials.org/sites/default/files/reports-and-materials/Ruggie-letter-to-UK-Foreign-Office-14-Jul-2009.pdf.

[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 http://www.ihrb.org/tags.html?tag=business+and+human+rights+treaty; and “Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors,” available at http://www.ihrb.org/commentary/quo-vadis-unsolicited-advice-business.html.

[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 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1703465.

[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.” http://www.ilo.org/ipec/facts/WorstFormsofChildLabour/lang–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).

---

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?

---

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.

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, 3^rd 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.