Business and human rights at the UN: What might happen next?

Human Rights Quarterly

Volumn 31, Issue 2, 2009, Pages 299-320

  Jerbi, Scott ^a  

^a UNITED NATIONS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BUSINESS; HUMAN RIGHTS; UNITED NATIONS;

EID: 68149158937     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.0.0068     Document Type: Article

References (77)

1. The Business & Human Rights Resource Centre, available at http://www.businesshumanrights.org/Home, tracks formal company policy statements explicitly referring to human rights. As of 15 January 2009, 236 companies with such statements are listed on the Resource Centre's website.
2. Launched in 1999, the Fair Labor Association, available at http://www.fairlabor.org, is a network of companies, nongovernmental organizations, and universities, dedicated to protecting workers' rights in member company operations worldwide through independent monitoring and verification using international labor standards.
3. The Voluntary Principles on Security and Human Rights, available at http://www.voluntaryprinciples.org, is an initiative that began in 2000 with support from the governments of the United States and the United Kingdom (and now the governments of The Netherlands and Norway), major companies in the extractive and energy sectors, and -NGOs. Its goal is to adopt a set of voluntary principles to guide companies in maintaining the safety and security of their operations within an operating framework that ensures respect for human rights and fundamental freedoms.
4. The Kimberley Process to certify diamonds, available at http://www.kimberleyprocess.com, was launched in 2003 by governments, the international diamond industry, and civil society organizations to stem the flow of so-called "conflict diamonds"-rough diamonds used by rebel movements to finance wars.
5. Press Release, Business for Social Responsibility, Companies, Human Rights Groups, Investors, Academics and Technology Leaders to Address International Free Expression and Privacy Challenges (18 Jan. 2007), available at http://www.csrwire.com/PressRelease.php?id=7272.
6. See David Vogel, The Private Regulation of Global Corporate Conduct 2 (Center for Responsible Business, University of California, Berkeley, Working Paper Series, Paper 34, 2006).
7. See Philipp Pattberg, The Transformation of Global Business Regulation 8 (Global Governance Project, Working Paper No. 18, 2006).
8. Human Rights and Transnational Corporations and Other Business Enterprises, C.H.R. Res. 2005/69, U.N. ESCOR, Comm'n on Hum. Rts., 61st Sess., U.N. Doc. E/CN.4/RES/2005/69 (2005). This resolution recommends the appointment by the UN SecretaryGeneral of a special representative on the issue of human rights and transnational corporations and other business enterprises for an initial period of two years.
9. Ruggie is Kirkpatrick Professor of International Affairs and Director, Mossavar-Rahmani Center for Business and Government, Kennedy School of Government, Harvard University.
10. Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, adopted 18 June 2008, H.R.C. Res. 8/7, U.N. GAOR, Hum. Rts. Council, 8th Sess., 28th mtg., at 30, U.N. Doc. A/HRC/8/52 (2008).
11. The Guidelines are part of the OECD Declaration and Decisions on International Investment and Multinational Enterprises, which was updated most recently in June 2000.
12. ILO, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, adopted Nov. 1977, 204th Sess., amended Nov. 2000, 279th Sess. (2001), available at http://www.ilo.org/public/english/employment/multi/download/english.pdf.
13. Programme of Action on the Establishment of a New International Economic Order, G.A. Res. S-6/ 3202, U.N. GAOR, 6th Special Sess., Agenda Item 7, § V, U.N. Doc. A/RES/S-6/3202 (1974), includes five sub-paragraphs explaining the reasons for the proposed code which included preventing "interference in the internal affairs of the countries" where these corporations operated as well as issues relating to technology transfers and reinvestment of corporate profits in developing countries.
14. See, e.g., Thomas E. McCarthy, Transnational Corporations and Human Rights, in UN Law/FUNDAMENTAL RIGHTS: TWO TOPICS IN INTERNATIONAL LAW 175 (Antonio Cassese ed., 1979).
15. McCarthy, supra note 14, at 185 (referring to U.N. Doc. A/32/267).
16. UN Commission on Transnational Corporations, Report of the Inter-governmental Working Group on the Code of Conduct (First and Second Sessions), UN Doc. E/C.10/31 (Pt. I, II).
17. For further discussion, see J.H. Dunning, The Political Economy of International Production, in THE UNITED NATIONS LIBRARY ON TRANSNATIONAL CORPORATIONS VOL. 7: GOVERNMENTS AND TRANSNATIONAL CORPORATIONS 309 (Theodore H. Moran ed., 1993).
18. See Integration of the Commission on Transnational Corporations into the Institutional Machinery of the United Nations Conference on Trade and Development, adopted 19 Dec. 1994, G.A. Res. 49/130, U.N. GAOR, 49th Sess., Agenda Item 12, U.N. Doc. A/RES/49/130 (1995).
19. See, e.g., JAMES TRAUB, THE BEST INTENTIONS: KOFI ANNAN AND THE UN IN THE ERA OF AMERICAN WORLD POWER 146-47 (2006).
20. United Nations Global Compact, available at http://www. unglobalcompact.org.
21. GLOBAL COMPACT OFFICE, UNITED NATIONS, CORPORATE CITIZENSHIP IN THE WORLD ECONOMY: THE GLOBAL COMPACT (2004), available at http://www.unglobalcompact.org/docs/about-the-gc/2.0.1.pdf.
22. Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted 13 Aug. 2003, Sub-Comm'n on the Promotion & Protect. of Hum. Rts. Res. 2003/12, U.N. ESCOR, Comm'n on Hum. Rts, Sub-Comm'n on the Promotion & Protect. of Hum. Rts., 55th Sess., U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).
23. Id. ¶ 1.
24. For a more detailed analysis of the Sub-Commission Norms, see David Kinley, Justine Nolan & Natalie Zerial, The Politics of Corporate Social Responsibility: Reflections on the United Nations Human Rights Norms for Corporations, 25 COMPANIES & SECURITIES L.J. 30 (2007).
25. Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights, C.H.R. Res. 2004/116, U.N. ESCOR, Comm'n on Hum. Rts., 60th Sess., ¶ c, U.N. Doc. E/CN.4/2004/L.73/Rev.1 (2004).
26. Id. ¶ b.
27. Report of the Sub-Commission on the Promotion and Protection of Human Rights, U.N. ESCOR, Comm'n on Hum. Rts., 61st Sess., U.N. Doc. E/CN.4/2005/91 (2005).
28. Id. ¶ 52.
29. Id. ¶ 52(b).
30. Human Rights and Transnational Corporations and Other Business Enterprises, C.H.R. Res. 2005/69, U.N. ESCOR, Comm'n on Hum. Rts., 61st Sess., 59th mtg., at 269, U.N. Doc. E/CN.4/RES/2005/69 (2005).
31. See Provisional Summary Record of the 38th Meeting, U.N. ESCOR, 2005 Substantive Sess., ¶¶ 46-48, U.N. Doc. E/2005/SR.38 (2005).
32. Press Release, United Nations, Secretary-General Appoints John Ruggie of United States Special Representative on Issue of Human Rights, Transnational Corporations, Other Business Enterprises (28 July 2005), available at http://www.un.org/News/Press/docs/2005/sga934.doc.htm.
33. Promotion and Protection of Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. ESCOR, Comm'n on Hum. Rts., 62d Sess, Provisional Agenda Item 17, U.N. Doc. E/CN.4/2006/97 (2006).
34. Id. ¶ 68.
35. Id. ¶ 69.
36. Id. ¶ 59.
37. Challenges to aspects of Ruggie's critique of the Norms can be found, for example, in a statement by Professor David Weissbrodt (a member of the Sub-Commission who led the drafting of the Norms) in a presentation before the American Society of International Law. David Weissbrodt, UN Perspectives on Business and Humanitarian and Human Rights Obligations (30 Mar. 2006). The International Federation for Human Rights also offered comments on Ruggie's report, questioning some aspects of his critique of the Sub-Commission Norms. INT'L FED'N OF HUMAN RIGHTS (FIDH), POSITION PAPER 442/2: COMMENTS TO THE INTERIM REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES (Mar. 2006). For Ruggie's response, see Letter from John G. Ruggie, UN Special Representative on Transnational Corporations & Human Rights, Comment on FIDH Position Paper (20 Mar. 2006), available at http://www.fidh.org/article.php3?id-article= 3166.
38. Joint Letter from NGOs to John G. Ruggie, Special Representative on Human Rights and Transnational Corporations and Other Business Enterprises, Office of the High Commissioner for Human Rights (18 May 2006), available at http://www.amnestyusa.org/document.php?lang=e&id=engior500032006.
39. Promotion and Protection of Human Rights, supra note 33, ¶ 70.
40. Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, Report of the Special Representative of the Secretary-General, John Ruggie, U.N. GAOR, Hum. Rts. Council, 4th Sess., Agenda Item 2, ¶ 29 n.26, U.N. Doc A/HRC/4/35 (2007) (citing Connelly v. R.T.Z. Corp., [1998] A.C. 854 (H.L. 1997) (appeal taken from Eng.);
41. Lubbe v. Cape PLC, [2000] 4 All ER 268 (H.L.) (appeal taken from Eng.).
42. The author was present at the United Nations in Geneva during the Council discussion of the Special Representative's report. The text of most of the government statements discussed in this section is available at http://www.business-humanrights.org/Documents/RuggieHRC2007. References not available in written form were taken from the author's notes of the discussion.
43. Amnesty Int'l, ESCR-Net, Human Rights Watch (HRW), Int'l Comm'n of Jurists & FIDH, Joint Statement to Human Rights Council, 4th Sess. (Mar. 2007), available at http://www.reports-and-materials.org/NGO-joint- statement-to-UN-re-Ruggie-report-29-Mar-2007.pdf.
44. Protect, Respect and Remedy: A Framework for Business and Human Rights, Report of the Special Representative of the Secretary-General, John Ruggie, U.N. GAOR, Hum. Rts. Council, 8th Sess., Agenda Item 3, U.N. Doc. A/HRC/8/5 (2008).
45. John G. Ruggie, Special Representative of the Secretary-General for Business and Human Rights, Presentation of Report to United Nations Human Rights Council (3 June 2008), available at http://www.business-humanrights.org/ Documents/Ruggie-Human-Rights-Council-3-Jun-2008.pdf.
46. The Special Representative further states in paragraph 92 that, at a minimum, such mechanisms must be: Legitimate: a mechanism must have clear, transparent and sufficiently independent governance structures to ensure that no party to a particular grievance process can interfere with the fair conduct of that process;
47. Accessible: a mechanism must be publicized to those who may wish to access it and provide adequate assistance for aggrieved parties who may face barriers to access, including language, literacy, awareness, finance, distance, or fear of reprisal;
48. Prdictable: a mechanism must provide a clear and known procedure with a time frame for each stage and clarity on the types of process and outcome it can (and cannot) offer, as well as a means of monitoring the implementation of any outcome;
49. Equitable: a mechanism must ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair and equitable terms;
50. Rights-compatible: a mechanism must ensure that its outcomes and remedies accord with internationally recognized human rights standards;
51. Transparent: a mechanism must provide sufficient transparency of process and outcome to meet the public interest concerns at stake and should presume transparency wherever possible; non-State mechanisms in particular should be transparent about the receipt of complaints and the key elements of their outcomes.
52. Mandate of the Special Representative, supra note 10.
53. Int'l Org. of Employers (IOE), Int'l Chamber of Commerce (ICC) & Business and Industry Advisory Comm. to the OECD (BIAC), Joint Statement to the Human Rights Council, 8th Sess. (May 2008), available at http://www.reports-and-materials.org/Letter-IOE-ICC-BIAC-re-Ruggie-report-May- 2008.pdf.
54. Id.
55. Statement by Socially Responsible Investors to the Human Rights Council on the Third Report of the Special Representative of the UN Secretary-General on Business and Human Rights, 8th Sess. (3 June 2008), available at http://www.reports-and-materials.org/SRI-letter-re-Ruggie-report-3-Jun-2008.pdf.
56. Joint NGO Statement to the Human Rights Council on the Third Report of the Special Representative of the Secretary-General on Human Rights and Transnational Corporations and other Business Enterprises, 8th Sess. (20 May 2008), available at http://www.escr-net.org/actions-more/actions-more- show.htm?doc-id=686620&parent-id=430908.
57. Id.
58. Mandate of the Special Representative, supra note 10, ¶ 2.
59. Id. ¶ 4(d).
60. Id. ¶ 4(g).
61. Amnesty Int'l, Submission to the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (July 2008) available at http://www.reports-and-materials.org/Amnesty-submission-to-Ruggie-Jul-2008.doc
62. John G. Ruggie, Representative of the Secretary-General on Business and Human Rights, Address to the Sixth Inter-Committee Meeting of the Human Rights Treaty Bodies (19 June 2007), available at http://www.reports-and- materials.org/Ruggie-address-to-treatybodies-19-Jun-2007.pdf.
63. Mandate of the Special Representative, supra note 10, ¶ 5.
64. Protect, Respect and Remedy, supra note 43, ¶ 45.
65. See, e.g., Follow-up to the Outcome of the Millennium Summit, U.N. GAOR, 61st Sess., Agenda Item 113, U.N. Doc. A/61/583 (2006) (detailing follow-up to the high-level panel on system-wide coherence in the areas of development, humanitarian assistance and the environment).
66. John G. Ruggie, Special Representative of the Secretary-General for Business and Human Rights, Keynote Presentation at Annual Meeting of National Contact Points, OECD (24 June 2008).
67. For further discussion, see AMNESTY INT'L, HUMAN RIGHTS ON THE LINE: THE BAKU -TBILISI-CEYHAN PIPELINE PROJECT (May 2003), available at http://www.amnestyusa.org/business/humanrightsontheline. pdf.
68. Protect, Respect and Remedy, supra note 43, ¶ 36.
69. Ethical Corp., By Invitation: John Ruggie: Business and Human Rights-Treaty Road not Travelled (6 May 2008), available at http://www.ethicalcorp.com/content.asp?ContentID=5887.
70. See, e.g., Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int'l L. 291 (2006).
71. Preliminary Work Plan, Mandate of the Special Representative on the Issue of Human Rights and Transnational Corporations and other Business Enterprises, 1 September 2008-30 June 2011 (10 Oct. 2008), available at http://www.reports-and-materials.org/Ruggie-preliminary-work-plan-2008-2011.pdf.
72. For an analysis of this effort, see Roberta Cohen, The Guiding Principles on Internal Displacement: An Innovation in International Standard Setting, 10 GLOBAL GOVERNANCE 459 (2004).
73. Press Release, United Nations, Global Leadership Group to Advise on Business and Human Rights (22 Sept. 2008), available at http://www.reports-and-materials.org/Leadership-group-22-Sep-2008.pdf
74. Francis M. Deng, The Guiding Principles on Internal Displacement and the Development of International Norms, in INTERNATIONAL LAW AND INTERNATIONAL RELATIONS: BRIDGING THEORY AND PRACTICE 141 (Thomas J. Biersteker et al, eds., 2007).
75. Mandate of the Special Representative, supra note 10, ¶ 4(e).
76. For a recent analysis of the work of such bodies with respect to business related issues, see OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS, BUSINESS AND HUMAN RIGHTS: A SURVEY OF NHRI PRACTICES (2008), available at http://www.reports-and-materials.org/OHCHRNational- Human-Rights-Institutions-practices-Apr-2008.doc.
77. Vaughn Lowe, The Politics of Law-Making: Are the Method and Character of Norm Creation Changing?, in THE ROLE OF LAW IN INTERNATIONAL POLITICS: ESSAYS IN INTERNATIONAL RELATIONS AND INTERNATIONAL LAW 207, 226 (Michael Byers ed., 2000).