Building on a ‘landmark year’ and thinking ahead
12 January 2012
A London Guardian blog1 recently described 2011 as “a landmark year” for human rights—starting with the Arab spring. It went on to say: “2011 was also a landmark year for business and human rights: John Ruggie’s guiding principles were endorsed by the UN Human Rights Council, and then incorporated into the new OECD guidelines, ISO26000 and the sustainability policy of the IFC.”
In October 2011, the European Commission took the first step in the same direction when it issued its new corporate social responsibility policy for 2011-2014, stating that the Commission “Expects all European enterprises to meet the corporate responsibility to respect human rights, as defined in the UN Guiding Principles,” and “Invites EU Member States to develop by the end of 2012 national plans for the implementation of the UN Guiding Principles.”2
And in a different part of the world, the Association of Southeast Asian Nations (ASEAN) has announced that the first thematic study by its relatively new Intergovernmental Commission on Human Rights would focus on business and human rights. One of the Commissioners has said:3
“The target for this thematic study is an ASEAN Guideline that is fully compliant with the UN frameworks, especially the Protect, Respect and Remedy Framework for Business and Human Rights and the Guiding Principles for Business and Human Rights which were endorsed by the UN Human Rights Council.”
Thus, in a relatively short period of time we have managed to achieve unprecedented convergence among major international standard setting bodies regarding the steps states and business enterprises must take to meet their respective human rights commitments under the UN “Protect, Respect and Remedy” Guiding Principles.
Convergence is desirable for two reasons. First, reducing the number of competing fragmentary approaches provides greater clarity and predictability for businesses, affected individuals and communities, and other stakeholders. This will produce larger-scale change than in the past, as well as change that is more cumulative in its effects over time. Second, several of these standard setting bodies have implementation mechanisms that complement—indeed, go beyond—those of the United Nations.
There are risks that some of the benefits of convergence could be lost in implementation. One is that different entities, ranging from individual businesses to consultancies to intergovernmental institutions, develop their own unique interpretation of the UN Guiding Principles, and that the GPs may get watered down as a result and potentially lose the precision and interconnectivity that is the basis of their expected synergistic effects. To be sure, I said in my final report to the Human Rights Council that the GPs “are not intended as a tool kit, simply to be taken off the shelf and plugged in” — that they will need to be further refined for different sectors and operating contexts, different sizes of firms, and so on.4 But such efforts must be benchmarked against the GPs and embody their spirit if the advantages of convergence are to be maintained.
The risk of fragmentation is highest in relation to the GPs second pillar, the corporate responsibility to respect human rights, because the number of players involved is higher by orders of magnitude. To minimize that risk, the Office of the High Commissioner for Human Rights recently published an “Interpretive Guide”5 for the “corporate responsibility to respect.”
It adds no new requirements beyond the Guiding Principles but it does provide far greater detail than I was able to convey in the GPs document—with its 10,700 word limit set by the United Nations. The OHCHR Interpretive Guide was drafted by former members of my team and I oversaw the effort.
A second risk is related to capacity. The authors of some of the best academic studies on why there is so often a considerable disconnect between the commitment by states to adopt human rights standards through treaty ratifications and their subsequent compliance with those commitments have found that simple lack of capacity—resource and managerial capacity—has not received sufficient attention. They conclude:
“If weak rather than authoritarian statehood is the root cause for rights violations, the mechanisms specified [in their earlier and widely cited book] to bring about change will not do the trick, because they are geared at turning around illiberal regimes that are unwilling to enforce human rights. As a result, more attention needs to be paid to the ‘management approach’ in compliance research and to capacity building.”6
Supporting efforts at capacity building is one of the tasks assigned to the new UN Working Group on Business and Human Rights that meets for the first time in Geneva next week. Ideally, it would put itself in the position of being able to leverage other efforts toward that end, including the Institute for Human Rights and Business, perhaps by establishing a network of such organisations to augment the Working Group’s capacity building work.
Footnotes:
1. Alison Braybrooks, “Why 2011 was a landmark year for business and human rights,” (16 Dec. 2011) available at www.guardian.co.uk/sustainable-business/human-rights-business.
2. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, “A renewed EU strategy 2011-14 for Corporate Social Responsibility,” available at http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/new-csr/act_en.pdf
3. Remarks by Rafendi Djamin, Indonesian Representative to ASEAN Intergovernmental Commission on Human Rights, at Asia Pacific Forum of National Human Rights Institutions Regional Conference on Business and Human Rights, October 11-13, 2011, Seoul, South Korea.
4. UN document A/HRC/17/31, 21 March 2011, paragraph 15.
5. The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (Geneva: Office of the UN High Commissioner for Human Rights, 2011), available at www.ohchr.org/Documents/Issues/Business/RtRInterpretativeGuide.pdf
6. Thomas Risse, Stephen Ropp and Kathryn Sikkink, “From Commitment to Compliance: The Persistent Power of Human Rights,” p. 7 of manuscript (on file with author). Their previous edited volume is The Power of Human Rights: International Norms and Domestic Change (New York: Cambridge University Press, 1999).
