By Liz Umlas Senior Research Analyst

On March 28, John Ruggie, the UN Special Representative of the Secretary General (SRSG) on business and human rights, submitted his second report to the UN Human Rights Council.  This was to have been his final report at the end of a two-year appointment.  However, the document covers only part of an ambitious mandate, and Dr. Ruggie has requested a one-year extension from the Council to develop full recommendations based on his work.

As of this writing, there had been few formal, public commentaries on the report. What follows is a commentary on selected aspects of the report and a brief overview of the implications of the SRSG’s work.

First, some background.  In 2005, UN Secretary General Kofi Annan appointed Dr. Ruggie as the first Special Representative on business and human rights.  The mandate includes identifying standards on corporate responsibility and human rights, commenting on states’ role in regulating corporate activities in relation to human rights, and compiling best practices.
           
The appointment came out of a particular process.  In 2003, the UN Sub-Commission for the Protection and Promotion of Human Rights had adopted a document called the UN Human Rights Norms for Business.  Human rights groups welcomed the Norms as a comprehensive statement on global human rights standards, and corporate responsibility in relation to these standards, which also acknowledged the primary duty of states to protect these rights.¹   However, the Norms became a polarizing event, with opponents (including some companies and UN member states, as well as industry organizations) claiming the Norms would impose new legal obligations on businesses, and supporters (many of them rights groups) denying that this was the case.

Dr. Ruggie’s appointment was meant in part to break this deadlock.  For the first time, there was a clear channel for the ongoing debate about corporate responsibility in relation to human rights.  In 2005-2007, the SRSG called a number of regional, multi-stakeholder issue- and sector-specific consultations.   He and his team produced or commissioned several studies and surveys as addenda to the report, including an overview of corporate human rights impact assessments.

The report itself draws on these consultations and studies to provide a “mapping” of international standards and voluntary initiatives.  It sets out a continuum of standards and practices on responsibility and accountability with regard to human rights, ranging from state duty to protect at one end, to self-regulation at the other.  The document contains a number of summary statements and conclusions that Ruggie has drawn in the course of his work.  For example:

• While states clearly have the primary duty to protect human rights, there is increasing concern that they might be unwilling or unable to carry out this duty, or even ignorant of what it really entails (p7)
• While there is an “expanding web of potential corporate liability for international crimes” (p9)², there is less clarity around corporate responsibility for other kinds of human rights violations, leaving “large protection gaps for victims” (p25)
• International human rights instruments such as UN treaties and the ILO core conventions do not seem to impose “direct legal responsibilities” on corporations, though scrutiny under these instruments is increasing (p15)

The SRSG’s conclusions should serve as points of departure for deeper debate. 

Some aspects of the report are likely to generate disagreement.  For example, in heavily emphasizing the state duty to protect - indeed a fundamental tenet of human rights - the SRSG seems in places to understate corporate agency.  He states: “the permissive conditions for business-related human rights abuses today are created by a misalignment between economic forces and governance capacity” (p25); and “where Governments lack capacity or abdicate their duties, the corporate sphere of influence looms large by default” (p26).  True, but it should also be stated clearly that some companies take advantage of that gap or abdication, or do not question local laws that clearly violate international human rights standards, particularly in so-called “weak governance zones”.  This is only hinted at in a footnote. 

And while human rights groups welcomed the SRSG’s acknowledgment of protection gaps for victims of corporate human rights abuses, they have expressed concern that the report does not bring these victims’ perspective sufficiently into the picture.³

The report acknowledges some of the problems with voluntary or self-regulatory initiatives, including the fact that with all such initiatives, “determined laggards find ways to avoid scrutiny” (p24).  So it is puzzling when Dr. Ruggie concludes that societies will “somehow manage to mitigate if not eliminate the problem” of laggards once what he calls a “tipping point” is reached (ibid.). What he means by “tipping point,” and how he will use his mandate to reach it, is unclear.     

Further, the SRSG calls for bringing soft law and self-regulatory initiatives “to a scale where they become truly systemic interventions” (p25).  He notes two necessary conditions: states must provide “business incentives and disincentives”, and “accountability practices must be more deeply embedded” within markets (ibid.).  But one wonders: why should we believe any self-regulatory initiatives will become “truly systemic” anytime soon?  Are there examples?⁴  What would such “incentives and disincentives” look like? Would they include stock market listing standards around human rights? Mandatory reporting?

In the end, as the SRSG aptly notes in the first line of his report, “There is no magic in the marketplace” (p3). Voluntary initiatives and self-regulation serve a function, but they have never been sufficient, which is why rights groups, as well as some jurists and even some companies, have continued to press for clear and binding international standards. 

As for the UN Norms, in his interim report Dr. Ruggie had dismissed them in a manner that many observers felt was “throwing out the baby with the bathwater”.  And yet, there have been some constructive efforts to focus on what was useful about the Norms and build on that.  As one group of legal scholars has pointed out recently, in the crucial work of identifying international standards on corporations and human rights, “it is hard to see past the existing core substantive provisions of the Norms.”⁵  To his credit, the SRSG acknowledges the promising work of the Business Leaders Initiative on Human Rights (BLIHR), whose member companies have been road-testing the Norms for several years.   

Overall, the SRSG’s appointment and work represent an opportunity.   There is now a window for civil society organizations, corporations, social investors and other interested parties to respond to the report and its addenda, to push back on areas of disagreement, and most importantly to find ways to work toward the common goal of promoting and protecting human rights everywhere that companies operate.  Dr. Ruggie makes a call for continued “transparent consultations with all stakeholders” if his mandate is extended (p26). With that prospect at hand, a useful debate should be in the cards.