The Ruggie Guiding Principles for business and human rights: Five predictions

April 7, 2011

By Robert Grabosch, Attorney at law

A final proposal for Guiding Principles on business and human rights was recently submitted by SRSG John Ruggie to the Human Rights Council for endorsement in June 2011. Little has changed compared to the draft. Below, I am making some observations and predictions.

Ruggie’s final proposal for Guiding Principles

  • A new General Principle stipulates that “nothing in these Guiding Principles should be read as creating new international law obligations”. This clause pre-empts the interpretation of Council endorsement of the Guiding Principles as an expression of opinio juris regarding international customs that are not yet widely recognised as reflections of a legal obligation.
  • The dichotomy of legitimate policy demands underlies the entire business and human rights issue but is still not addressed sufficiently in the GPs. Instead, the hints at this issue in ¶ 5 of the Draft Report have vanished in Ruggie’s final Report.
  • The heavily criticised Draft GP 2 on home State responsibility (“States should encourage business enterprises … to respect human rights …”) has been changed gently to “States should set out clearly the expectation that…”.  Firstly, unlike the draft “responsibility to encourage”, the final State “responsibility to expect” does not extend explicitly to corporations’ subsidiaries and other related entities. Secondly: can home States fulfil the “responsibility to expect” simply by expressing their assumption that business does no harm? Probably not. The Commentary to Guiding Principle 2 still contains a vague and tentative brainstorming about approaches home States could take, and equally vague and tentative reservations and limitations. A previous analysis and comparison to Ruggie’s former reports has shown: Ruggie’s re-statement of international law at this point is confused and inconsistent. A wonderful playground for anyone who wants home States to stay inactive.
  • More obvious than before is the disparity between the responsibilities of home and of host States. While the Global North should set out “expectations” (GP 2), the Global South should “enforce laws” (GP 3). This focus misses the reality that business-related human rights violations in the Global South are largely influenced by the Global North, and that the Global South has for various reasons so far not coped with the problem.
  • The Draft provided for a business responsibility to “observe internationally recognized human rights also where national law is weak” (Draft GP 21). Corporations will like that this straight-forward responsibility has now been obscured to: “comply with all applicable laws and respect internationally recognized human rights, wherever they operate” (GP 23).
  • The Global North still neither must nor should provide victims with access to courts or other dispute resolution mechanisms (GP 26).
  • Directors’ duties at criminal and civil law and criminal corporate liability play no role in the GPs.The GPs also contain no idea on how international (human rights) law and csr might influence the interpretation of domestic tort and labour law by courts (an approach that SRSG Ruggie is aware of).

Five predictions

The Human Rights Council is set to take a stance on SRSG Ruggie’s final submission in June 2011. Based on the observations above, I dare to make a few predictions of what will happen until then and thereafter:

  1. States of the Global North will tend to support the GPs. How outspokenly and loudly will depend on which other issues dominate their political agenda, and on the extent of media coverage. The GPs are a political sparkler: They sound fabulous while refusing to be an expression of opinio juris (international law) and while demanding little from States of the Global North other than “setting out expectations”.
  2. States of the Global South will be more sceptical. Why are they to enforce hard laws while the Global North is exempted from its responsibilities? People of the Global South might not agree that those who did and do influence and profit from the violations of their human rights – the Global North and corporations therebased – bear no meaningful responsibilities, much less duties.
  3. Corporations that already have (or pretend to have) a csr policy, particularly those who were involved in the Ruggie process, will continue to support the GPs. However, most corporations will remain quiet. They wont like the strong provisions on due diligence, but that would be an embarrassing statement to make publicly In the end, they wont care. The GPs do not claim legal status.
  4. NGOs who focus on csr will endorse. On the other side, those who are convinced that csr can only be one facet of a holistic concept will reject the GPs, but they will do so rather quietly, because SRSG Ruggie quickly accuses critics of “undermining” the business and human rights agenda.
  5. The GPs will be passed without major alterations and will have hardly any effect. The rhetoric for  neglecting human rights will be based on the non-binding character of the GPs, on the economy, development and jobs, on the competition among the States of the Global South, and on a separation of international and domestic law. Squinting at the market niche of enlightened and affluent consumers, only some businesses will publicly embrace and apply the Guiding Principles.

Conclusion

The critique by the ECCHR and me on the Draft Guiding Principles is still up to date. It is striking that many of the approaches that SRSG Ruggie himself has previously highlighted are under-utilised or entirely absent in the Guiding Principles: The role of the home State, tort law and criminal law, and the interpretation of domestic law in light of international soft and hard law are dysfunctional or unmentioned. I recently explained why endorsing the Draft of the Guiding Principles had a lot to do with optimistic belief, rather than reasoning. (Meanwhile, the biggest support for the Guiding Principles came from a coalition of 300 churches holding an  accumulated fund for business investment worth $ 100 bn.) Corporate involvement in human rights violations is a complex issue, needing and deserving a holistic response. Ruggie’s set of principles will probably be endorsed by the Council. Like a brand new ship released with fireworks and champagne after six years of intensive work, it might look “definitely better than nothing at all” and yet – based on flawed assumptions – start to sink as it leaves the wharf.

 

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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