A Human-Rights Duty to Regulate Corporations?

by John Knox

I’ve spent the last couple of days in an expert meeting on “the role of states in regulating and adjudicating the activities of corporations with respect to human rights,” hosted by the Danish Ministry of Foreign Affairs and the Danish section of the International Commission of Jurists. The meeting was designed to help inform John Ruggie, the Special Representative of the Secretary-General on Human Rights and Transnational Enterprises and Other Business Enterprises, or the SRSG, as he’s called (because saying the whole title slows down the conversation quite a bit), as he carries out his mandate to report and give recommendations to the Human Rights Council on the topic. His final recommendations are due next summer.

The consultation wasn’t public, so I guess I won’t say what was said or who said it, but here’s a general description. Despite the fact that it included a very wide range of folks, from governments, businesses, human rights NGOs, and academia, the discussion of the relationship between corporate activities and human rights was constructive and pragmatic, not ideological. This is due in large part to Ruggie’s own efforts. His mandate succeeded the failed effort by some human rights groups and academics to convince the Human Rights Commission to adopt the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (known just as the Norms, for the same reasons given supra), which was drafted by a group of Sub-Commission members led by David Weissbrodt. Ruggie made clear early in his mandate that he wasn’t going to pursue that quest, which led to criticism from human rights groups such as Amnesty and HRW. But he’s been successful, I think, in moving the debate beyond the Norms and convincing a wide array of stakeholders that he’s open to hearing what they have to say.

The focus of this meeting was firmly on the responsibility of states under existing human rights law to protect those within their jurisdiction from harm to their human rights, including in particular harm caused by corporations. It thus avoided the conceptual problems arising from the Norms’ effort to hold corporations directly liable for violations of human rights law. It was designed not to come to any conclusions, but merely to raise and explore issues that people thought Ruggie should take into account as he prepares his final report to the UN. (I was on a panel on trade and human rights, which put me in the somewhat awkward position of trying to tell the person who coined the term “embedded liberalism” something he doesn’t already know.)

Ruggie’s mandate expires this summer. An interesting question will be whether the HR Council extends the mandate and, if so, whether and how it will be reconfigured. It will also be interesting to see whether the Council asks the SG to reappoint Ruggie. He’s done a huge amount of work on this to date, raising money to support a full-time team of people, compiling over one thousand pages of reports, convening a series of meetings with people from virtually every sector imaginable . . . . It would certainly be logical to ask him to continue to work on it. I don’t think the UN has all that many special representatives who find money themselves for the work they’re asked to do.

On a completely different note, I always try to do some cross-border cultural research on trips abroad, mainly by watching TV in the hotel room. This trip, I concentrated on sports programming, and therefore I’m able to report, after careful investigation, that the following sports were being televised in Copenhagen Thursday night: soccer, soccer, team handball, soccer, doubles badminton, soccer, and dodgeball. Oh, and soccer. The truly odd thing was that in every game, the New England Patriots were winning.

http://opiniojuris.org/2007/11/10/a-human-rights-duty-to-regulate-corporations/

10 Responses

  1. “It thus avoided the conceptual problems arising from the Norms’ effort to hold corporations directly liable for violations of human rights law”

    Now, why would the corporations de “directly liable for human rights violations”? See here and here

    To me the problems don’t seem to be conceptual but instead, legal responsability and economic liability. And if they are going to avoid that, then they shouldn’t bother.

  2. I don’t think that most people would dispute that corporations can (and do) violate human rights. The cases you link to are examples of one way those violations can occur. Conceptual (and practical and political) difficulties arise, though, in holding corporations DIRECTLY liable under INTERNATIONAL human rights law because, for good reasons, that law is designed to constrain governments, not private actors. By focusing on governments’ duty under int’l human rights law to protect against private violations of human rights, it’s possible to avoid those difficulties and still get to where we should be: holding corporations and other powerful non-state actors responsible for their human rights violations.

  3. Much has been already written on this topic and, again, it appears that some academic commentators present the same formalistic arguments all over again, and, by doing so create artificial legal problems where they could be easily avoided. For sure, primary responsibility for protection of human rights rest on states, but this does not absolve corporations from respecting, at minimum, fundamental international human rights. Saying that corporations have some fundamental human rights obligations does not dilutes or distort the concept of human rights, rather by doing so the whole concept can be reinforced. It is somehow telling that victims of human rights violations are often excluded from the academic debates on corporations and human rights. I would wish for a discussion where all affected parties could voice their concern in relations to human rights obligations of corporations.

  4. “By focusing on governments’ duty under int’l human rights law to protect against private violations of human rights, it’s possible to avoid those difficulties and still get to where we should be: holding corporations and other powerful non-state actors responsible for their human rights violations.”

    I see not only a problem in just focusing only in those governments, while turning a blind eye to the crimes committed by corporations, but also disagree in that the same goal would be achieved.

    First of all, if the intention of those laws are to prevent human rights abuses, why not economically choke those governments that violate human rights? If thhose corporations were legally and financially responsible, they would most certainly avoid certain practices. (And I guess that is why those human rights organizations prefer to see them held accountable.

    Now, as for the same goals being achieved, lets take the case of Black Water. They are not legally responsible for their actions in Iraq. You then try to use international law, and all the US has to do is to mantain that information classified. And no justice will be done or if they are lucky enough they will get their justice many decades after those crimes are commited.

    Now let me ask you this: Was there any influence by those big corporations to get Ruggie to refuse holding those corps responsible?

  5. The NGOs like to go after corporations because they’re much more vulnerable to legal shakedown.

    Can anyone figure out what supposed crime Ford or Mercedes-Benz is accused to committing in Argentina? I’m unsure that “handing over” union members would be illegal in any setting.

    Looks like more ATCA abuse to me.

  6. Mathews: Ford is accused of having a clandestine center out of which several people were dissapeared and torture inside one of their factories.

    “subsidiary of the Ford Motor Company were involved in the illegal detention and disappearance of workers during the military regime”

    “It was during that testimony that he gave details about the alleged detention centre established by the military at the Ford plant during the “Dirty War”. ”

    As for Mercedez Benz, “alleging Mercedes-Benz was complicit in the killing, torture or kidnapping by the military of unionized auto workers”

    Not to recognize that as a crime, is to be an apologist for human rights abuses.

  7. All the evidence they’ve produced is that the said detention facility was located at a Ford factory. Even the suit acknowledges the military set it up, not Ford.

  8. Matthew, then you go tell Professor Knox that he doesnt know what the hell he is talking about ( Just in case you missed it :”The cases you link to are examples of one way those violations can occur.”)

  9. I believe Mr. Cox simply mentions the cases without passing judgment one way or another, on his way towards making his point that the law seems unsuited for acting directly upon corporations rather than states.

    Frankly, these suits remind me of the ones against Talisman Energy.

  10. Ok, so lets try this way: wasn’t your president who said ” if you harbour a terrorist (a state terrorist in this case) you are a terrorist?”

    I think it is quite disingeneous of you to think that Ford had nothing to do. That they could torture inside the plant without the knowledge of managers etc. Also, I have already mentioned that this is a blatent case of “prestation”. In such cases (at least that is my understanding), it does not matter that they knew whaty was going on.

    Or, go ask a lawyer what happens when someone is comitting a crime in someone’s property with their knowledge. There is no excuse. Unless of course you are a torture apologist!!

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