What is Ruggie doing?

Abstract

FOCUS □ BUSINESSAND HUMANRIGHTS What is Ruggie doing? Ruggieis outto challenge what he describes as a 'permissive environment withinwhich blameworthy acts bycorporations mayoccur withoutadequate sanctioning or reparation' DANIEL BLACKBURN is Director of ICTUR. Inrights to the look 1990s compliance. at the the question United By Nations of 1998 corporate the ('UN') UN human started Sub to look at the questionof corporate human rightscompliance. By 1998 the UN Sub Commissionon Human Rightshad begun a processof drafting a provisional document that would groundcorporatehumanrights obligationswithinthe UN system. The processproduced a remarkably progressive document, the Draft Norms on the Responsibilities of Transnational Corporations and OtherBusiness Enterprises withRegardto HumanRights. The Normswere radicalbecause theyclearlyand specificallyaddress transnationalbusinesses directly. This was largelyunprecedented in an international law systemthat overwhelmingly addressesonlyStates. Asa sampleofhowdirect thelanguagewas in thatdocument, and also as an indication ofpreciselywhytheDraft Normswererelevant to the interests of workers,the followingextractis instructive: Transnational corporations and other businessenterprises shallensurethe freedom of association and effective recognition ofthe right tocollective bargaining by protecting the right toestablish and,subject onlytotherules oftheorganisation concerned, tojoin organisationsoftheir ownchoosing without distinction , previous authorisation, orinterference, forthe protection oftheir employment interests andforother collective bargaining purposes asprovided in nationallegislation and the relevant ILOconventions. Article D (9), Draft Norms on the Responsibilities ofTransnational Corporations andOtherBusinessEnterprises withRegard to HumanRights, E/CN.4/Sub. 2/2003/1 2 (2003). The dutyextendsto a positiveobligationto 'ensure' that theright isrespected. Andthis duty is clearly anddirectly addressed tobusinesses themselves . The Normswere a revelation. Leading humanrights organisations welcomedand promotedthem keenly. Unfortunately, thedrafting processbecametemporarily stalledduringthe transfer of the Draft Normsdeveloped by the Sub Commission on HumanRights to the highertierUN body,the HumanRights Commission. The HumanRights Commission was notvery impressed with theradicalposition adoptedbytheSubCommission, and rather thanassenting totheNorms andauthorising the processunderwhichtheymight eventually havegainedstatus as a fullinstrument ofinternationallaw ,theHumanRights Commission essentially rejected theproposal andemphasised that in its'draft' form theNorms had 'no legalstanding'. The processthenstalledindefinitely whenthe UN underwenta restructuring of the bodies responsibleforits humanrightsprogrammes. The Human RightsCommission and the Sub Commission werebothwoundup,andceasedto exist.SincethentheDraft Norms havehungina kindoflegallimbo,half-finished, partly rejected, andlacking legalstatus, yetatthesametime continuing to hauntthehumanrights community as a kindof ghostly reminder ofwhatmight have been. Variousoptimists occasionallywield the DraftNormsin legal arguments, but theyare lonelyvoices. Formostpractical purposes,and forall their greatpromise, theDraft Norms area dead duck,and theyare goingnowhere.They place neither clearmoralnorlegalresponsibilitieson corporations. Allwas notlost,however. In 2005thenewly created UNHumanRights Council, effectively the successor bodytotheHumanRights Commission, adopteda Resolution authorising a newinitiative. Undertheterms of this,Professor JohnRuggie, who had previously servedwiththeUN'sGlobal Compact initiative, was appointedas Special Representative to theSecretary GeneralCSRSG') on HumanRights andTransnational Corporations and other Business Enterprises. Ruggie was chargedwith mappingexistinghuman rights obligations of corporate actors,and to develop strategic recommendations on thewayforward. Ruggie's initial findings in2006werecontained in an Interim Report. In 2007a technically interestingset of findings appeared thatoutlined existing frameworks of corporate responsibility. In the2007report Ruggierecognised that: [A] fundamental institutional misalignment is present: between thescopeand impact ofeconomic forces and actors, on theonehand, and thecapacity ofsocieties tomanagetheir adverse consequences, on theother. Thismisalignment creates the permissive environment within whichblameworthy actsbycorporationsmayoccurwithout adequatesanctioning orreparation. Forthesakeofthevictims of abuse,and tosustain globalisation as a positive force,thismust befixed. In a 2008Speechat Chatham House in London Ruggiesummarised something ofthecoreofthe problem, fleshing out whatthese'blameworthy acts'might be: Theissueofbusiness and humanrights burst intoglobalpublicconsciousness inthe1990s. Someoftheearlycaseshaveacquirediconic status: Shellaccusedofcomplicity forstanding bysilently as theNigerian military government executed a leaderofcommunity groups demonstrating againstthecompany's environmental degradation oftheDeltaregion; BP INTERNATIONAL union rights Page 16Volume 17Issue 2201 0 accusedofbeingresponsible forallegedactsof murder, disappearances, torture, rape,and forced displacement ofcommunities bya Colombian armybrigade protecting itsinstallation ;allegations ofsweatshop conditions and childlaborinNike's Indonesian, and the GAP'sSalvadorian, suppliers. Butitwas onlyin 2008thatRuggiereleasedhis majorreport, Protect, Respect and Remedy , that setout theSRSG'semerging grandvisionfora three-fold approachto tackling whereresponsibilities wouldfall.As he putit: The framework rests on differentiated but complementary responsibilities. Itcomprises three coreprinciples: theStatedutytoprotect againsthumanrights abusesbythird parties, including business; thecorporate responsibility torespect humanrights ; and theneedfor more effective accesstoremedies. On 18June2008,theUN HumanRights Council renewedthetermof theSpecialRepresentative of the UN Secretary-General on HumanRights and TransnationalCorporationsand Other BusinessEnterprises, forthreeyears.The key points ofthenewmandate required Ruggie: H To provide viewsand concrete and practical recommendations on waystostrengthen the fulfilment oftheduty oftheStatetoprotect allhumanrights from abusesbyorinvolving transnational corporations and other business enterprises MTo elaborate further on thescope and content ofthecorporate responsibility torespect all humanrights To setoutrecommendations, atthenational, regional and international level,forenhancing accesstoeffective remedies K...