The Ruggie Guiding Principles and the Lack of External Monitoring

January 13, 2011

By Robert Grabosch, Attorney at law

In November 2010, the UN Special Representative on the issue of human rights and transnational corporations has published a draft of his Guiding Principles, which aim to implement the ‘protect, respect and remedy framework’ across all kinds of businesses. One of the biggest shortcomings of the DGPs seems to be the absence of external monitoring mechanisms. The implementation of the Guiding Principles is left essentially to the very actors that have so far notoriously failed.

SRSG Ruggie does not make any suggestions as to how the implementation of the ‘protect, respect and remedy framework’ should be monitored, or whether it should be monitored at all. As a result, it is questionable whether there will be enough reasons for States and business enterprises to pay any respect to the Guiding Principles. As SRSG Ruggie himself complains, “States have been slow to address the more systemic challenge” (¶ 6 of the Draft Report) and that voluntary approaches of businesses “have not acquired sufficient scale” (ibid, ¶ 9). NGOs and journalists will undoubtedly play a role in monitoring the Guiding Principles but they can hardly be expected to cover businesses’ involvement in human rights violations on a large scale. Financially, businesses are increasingly able to out-power other State and non-State actors.

Considering the attention that the international community has so far given the subject of business and human rights, it should not be impossible to implement an independent monitoring system, as has happened with other initiatives. For instance, the OECD Guidelines provide for the establishment of National Contact Points. The UN Human Rights Committee already monitors the implementation of the ICCPR. Its mandate could be extended so as to monitor the implementation of the GPs. Initiatives that lack external monitoring, like the UN Global Compact, became effective mainly as a “promotional endeavor”.[1]

Human rights deserve more protection than leaving them to the rather free will of those actors that have so far notoriously failed. The effect of the GPs will essentially depend on an external monitoring mechanism, which should, ideally, be similar to that provided for in Norm 16 of the draft UN Norms on Transnational Corporations and other Business Enterprises. A respective new provision in the GPs could read as follows:

Business enterprises shall be subject to periodic monitoring by the United Nations, or other international and national mechanisms already in existence or yet to be created, regarding application of the Guiding Principles. This monitoring shall be transparent and independent and take into account input from stakeholders (including non-governmental organizations) and as a result of complaints of violations of human rights. Further, business enterprises shall conduct periodic evaluations concerning the impact of their own activities on human rights.

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.

[1] Graham Knight and Jackie Smith on the UN Global Compact: “The Global Compact and its critics: activism, power relations, and Corporate Social Responsibility” in: Janie Leatherman (ed.) Discipline and punishment in global politics: illusions of control (2008).

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