The Ruggie Guiding Principles and the dichotomy of legitimate policy demands

December 18, 2010

By Robert Grabosch, Attorney at law
John Ruggie, the Special Representative of the Secretary General on the issue of human rights and transnational corporation has recently released the draft for his Guiding Principles on business and human rights, which will mark the end of his 5 year mandate in 2011.

An issue running through all parts of the ‘protect, respect, remedy’ framework is that of legitimate policy demands that conflict with legitimate human rights demands. SRSG Ruggie recognizes the importance of this issue, but does not address it anywhere in his Draft Guiding Principles.

As SRSG Ruggie points out in ¶ 5 of his Draft Report, the protection of human rights is complicated by other legitimate policy demands coming into play, including the need for investment, jobs, as well as access to markets, technology and skills. Indeed, to give an example, defendants and several governments involved in the Khulumani/Ntsebeza litigation against corporations that reportedly aided and abetted with the former South African apartheid regime argued that US courts would impede international investment and trade if they gave South African apartheid victims access to effective redress. Similarly, opponents of forceful dislocations in the course of hydropower infrastructure projects are often accused of being “against development”. And governments may often refrain from protecting human rights in fear of diminishing jobs and loosing foreign direct investment. The conflict between human rights and economic development―both of which imply legitimate demands―is at the heart of the business and human rights debate.

Even though SRSG Ruggie acknowledges the importance of the dichotomy of legitimate policy demands, the DGPs and the respective Commentary lack a vision of how these policy demands can be conciliated. To the contrary: the frequent use of the undefined terms “appropriate and effective”, “adequate” and “discretion” throughout the Principles and Commentary, as well as the remark that “the Guiding Principles are not a toolkit … one size does not fit all” (¶ 14 of the Report) facilitate the entering of legitimate economic policy demands into the human rights discussion. DGP 3 does well in calling for institutional and procedural changes that are indeed necessary for achieving policy coherence. But the problem runs deeper and remains untouched: Material guidance is needed on how conflicting policy demands inter-relate, how they should be either balanced or put in a hierarchical order.

One possible way to conciliate the two opposing sets of legitimate demands can be based on the ‘principles of justice’ of legal philosopher John Rawles: Policy demands in the interest of society as a whole can justify individual detriments, but not if the result is an infringement of a basic set of liberties and rights shared equally by all mankind. In other words, the goal of economic development cannot trump individuals’ human rights, but can well come into play as long as human rights are protected, respected, and remedied.

SRSG Ruggie apparently shares this view where he states briefly in ¶ 5 of his Draft Report: “Of course, none of these factors absolves States of their human rights obligations.” Strikingly, however, this important cognition of SRSG Ruggie reflects nowhere in the DGPs.

In my opinion – and I am only putting this out there as an idea for discussion – a paragraph as follows could do well in the Introduction of the Guiding Principles:

Where there are signs of business enterprises’ involvement in human rights violations, legitimate economic objectives, including the need for investment, jobs, as well as access to markets, technology and skills, shall not be used by States or business enterprises as a reason for refraining from or postponing adequate measures to realize their respective human rights duties and responsibilities.

The inclusion of this paragraph by the Human Rights Council should be viable, as it is, structurally, a copy of the ‘precautionary principle’, which addresses a comparable dichotomy of legitimate environmental and developmental policy demands. The precautionary principle is widely-spread in many domestic environmental laws, and since the 1992 Rio Declaration on Environment and Development has played an important role in many areas of international environmental law.

As a result of the implication of this principle, States and business enterprises would be expected to take adequate, speedy steps to avert the violation. Alternatively, they would have the chance to demonstrate that the circumstances which are perceived as signs of business enterprises’ involvement in human rights, are erroneously perceived so.

 

Robert is Rechtsanwalt (Attorney at law) and Ph.D. student in Berlin, Germany, and specialises on the responsibility of transnational corporations for human rights violations in the Global South. He studied law at the Humboldt University of Berlin and the Catholic University of Leuven, Belgium, and obtained an LL.M. (International Law) at the University of Cape Town, South Africa, in 2009.

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One Response to “The Ruggie Guiding Principles and the dichotomy of legitimate policy demands”


  1. […] December 22, 2010 Robert Grabosch  and I recently discussed the insights of John Ruggie’s recently published Draft Guiding Principles for the Implementation of the United Nations ‘Protect, Respect and Remedy’ Framework, and interestingly came to different conclusions. This Note, accordingly, reacts to Robert’s Recent comment on the draft’s dichotomy of legitimate policy demands (available here). […]


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