Editorial: business and human rights

Abstract

lUR □ EDITORIAL Editorial: business and human rights The much accountability intersection international has of recently business, discussion been rights and the and focus activity. legal of accountability hasrecently beenthefocusof muchinternational discussionand activity. The work of UN Special Representative John Ruggie (see IUR17.2)hasbeencompleted, anda Resolution hasbeenpassedbytheHumanRights Council.Although welcomedby global unions, and (less warmly) by humanrights groups,the questionsnow become,has the problembeen adequatelyaddressed,whatis happeningnow, and wheredo we go from here?Thiseditionof IUR presentsan opportunity to examinewhat problems remain andtoreflect on whathasbeen achieved.Some in the tradeunion movement clearly believethatusefulprogress has occurred. Ben MoxhamoftheBritish TUC explainswhyit has welcomed the Guiding Principles. Commitments around'due diligence' and 'breathingnew life'intotheUS OECD National Contact Pointseemto havesetthegroundwork forconvincing US unionsthatthefinaldeal emerging from Ruggie's workwas worth signing up to,as Ashwini Sukthankar explains. Andas canbe seen from the ITUC's 'BriefingNote for Trade Unionists', reproduced here,theITUCandglobal unionshavealso embraced thenewFramework. Some improvements are alreadyvisible.The OECD Guidelines havebeen renewedto include a human rights section andtoexpandsomeofthe concepts aroundthebreadth ofcorporate responsibility . Andin theUK thecourtsseem increasingly willing toaccepttheideathat a duty ofcare extends from corporate headquarters downtothe impacts ofsubsidiary companieson theground. Yet,arethesereally goalsthat we canattribute to whattookplaceattheUN,suchthat we canchalk theprocessoffas a success? Maybe.Butitmight also be recognisedthatthe OECD Guidelines have been revisedno fewerthan five times before.And the principle set out in the recent Chandler v Cape case is thelatest inan emergent jurisprudence dating backatleast20 years. Some countries resolvethechallengesof corporateaccountability better thanothers. Australia is citedas an exampleof some progress in the area of holdingcorporations accountableunder the criminal law, thoughRoss Wilson'sarticle reminds us thatcorporate liability in neighbouringNew Zealandremains a hugechallenge.His reporton the Pike RiverRoyal Commission reminds us that evenwhenan industrialised State is dealingwitha local company, and whenthe additional problems oftransnational accountabilitydon 'texist, pinning responsibility on a corporateactorand thosewho runand profit from it remains a substantial challenge. The US courtshave taken a more robust approachto holdingcorporate groupstructures accountableand to seeing the 'real' natureof relationsbetween companies as opposed to being thwarted by the formal legal structures, courts there aremorewilling to'piercetheveilof incorporation'. But as Richard Meeranexplains, corporate structures ofseparatelegalpersonality and limited liability remain significant barriers in UK law. Companiescan shieldthemselves from liability wherethewrongful actis committed by a subsidiary companyand it remainspossible legallyto establish businessstructures thatseparateassetsfrom liabilities. Globally speaking, all of theseold legal problemscontinueto thwart legalroutes toaccountability undernational law, and theUN Framework has notchangedthis. Inhisfinal text, John Ruggie madesomeapparently strongrecommendations. Among these werestrident demands, suchas that States should 'enforcelaws' and that they should 'protect against humanrights abuseswithin their territory /jurisdiction'. Just reading themconveys a sense ofurgency, a senseofmoralindignation, a sense ofa clarioncallto action.ButwhattheGuiding Principles didnotdo was toexplainhowtotackle theproblem ofhomeStates lacking extra-territorialjurisdiction , nor the problemthathost Stateshaveinsufficiently strong and/ oraccessible legal systems. Theyalso offered nothing of substance toaddressthechallenges posedbythe veilofincorporation, noroflimited liability. Ashwini Sukthankar makesa cutting insight with herRorschach testmetaphor fortheGuidelines, eachofushas'seeninthem whatwe wanttosee'. One outcome ofthisisthat union-busting lawyers are now offering their clientsan opportunity to stay'unionfree'whilecomplying fully withthe newUNFramework. On suchevidence itisfair to assumethatat leastsome of theoptimism surrounding theGuidelines maybe misplaced. Still, we arewherewe are.Andone important improvement is that unionsarenowparticipating in thesediscussions, suchas theForum on businessand humanrights, whichmetin Genevain earlyDecember2012.We oughtnotto pretend thatthishas somehowfully balancedthediscussion .Theterms ofreference within which we now workweremainly decidedwithout theparticipation of unions (thoughtheynow have union endorsement). Andrepresentation bybusinesses, corporate lawfirms, CSRconsultancy groups, and government agenciesis muchstronger thanparticipation by unions.Human rights NGOs are much betterresourcedthat the international labourmovement interms ofappropriately skilled legalcapacity, and theyremain fully engagedin theprocess. Closer alliance with theNGOsaround themanyareasof agreement wouldlikely yield greater results forthevictims ofcorporate abuses. Daniel Blackburn, Editor INTERNATIONAL union rights Page 2Volume 19Issue 42012 ...