John Ruggie, Goldilocks and the Three Little Pigs

July 6, 2011

By Robert Grabosch, Attorney at law

The United Nations Human Rights Council has endorsed the Guiding Principles for Business and Human Rights as they were submitted in March 2011 by the Secretary-General’s Special Representative John Ruggie. Since the Guiding Principles claim to not create but restate international law and ask little of the states of the Global North, the endorsement by the Human Rights Council was foreseeable. It is exactly these low demands what has sparked stark criticism.[1] However, SRSG Ruggie resorted to pragmatism and vagueness rather than clarifying current international law.

The Guiding Principles are particularly controversial in that they do not clearly state the obligations of the Global North to keep private businesses located on its territory from violating human rights abroad. According to the Guiding Principles, states of the Global North “should set out clearly the expectation” that businesses respect human rights not only at home but also in the Global South. Due to this vagueness, 130 civil society organisations complained in a joint statement that this non-recognition of a responsibility to protect foreign citizens fails to adequately reflect current international legal obligations.

Furthermore, the Guiding Principles appear to be the first authoritative framework that even denies states of the Global North the general right to pass and enforce regulations on businesses activity within their territory and with an effect far away in the Global South, subjecting that right to vague reservations such as “reasonableness” and “multilateral agreement”.[2]

The opposite opinion, namely that the Guiding Principles go too far, that they exaggerate existing standards, was heard from the business world. In the end, as a journal article by SRSG Ruggie from spring 2011 indicates, political pragmatism and vagueness win over legal reasoning and clear-cut guidance:[3]

To me, the juxtaposition of the two [opinions] suggests that on ETJ the Guiding Principles pass the Goldilocks test: “Ahhh”, she exclaimed happily, “this porridge is just right”.

Not without reason is there an increasing focus on the role of corporations’ home states.[4] Will Ruggie’s porridge set home states in motion? Goldilocks would probably not have resorted to simple compromise but scrutinised her cooking closely, had she met the Three Little Pigs: Compromise lead the second little pig to build its house from sticks instead of bricks – achieving hardly better protection than the first little pig’s house of straw.

A follow-up body (not the strong mechanism that some anticipated[5]) will show whether the vague Guiding Principle on home state responsibility can really be blown away as easily as a house of sticks: The Council decided to appoint at its next session a Working Group of five independent experts which will be focussing on a forum for the discussion of trends and challenges in the area of business and 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] For an overview on the most critical points, see this previous blog post.

[2] See Commentary on Guiding Principle 2, and compare with Bernstorff’s opposite understanding of international law: Bernstorff “Extraterritoriale menschenrechtliche Staatenpflichten und Corporate Social Responsibility”, Archiv des Völkerrechts (2011) 34, at 58.

[3] John Ruggie “The Construction of the UN ‘Protect, Respect and Remedy’ Framework for Business and Human Rights:
The True Confessions of a Principled Pragmatist”, European Human Rights Law Review (2011) 127, at 132.

[4] See Bernstorff, above fn 2, at 35.

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