Spheres of Influence
John Ruggie, a Harvard professor, has been exploring the relationship between human rights and business for just over a year as the UN Secretary General’s special representative for Business and Human Rights. In a recent interview with the Financial Express, Ruggie spoke about the latest focus of his work – what is the duty of the state to protect against corporate abuse?
From a business perspective, this focus on state obligation in upholding human rights is most likely a relief. One of the main corporate criticisms of the now failed UN Norms for Transnational Corporations was that the Norms found too large a role in international law for businesses to ensure human rights are being upheld.
More specifically, Ruggie points out in his report, The Evolving International Agenda, that the role defined for corporations under the Norms was essentially the same as that defined for States, an overlap that leads to much confusion, among other things. He goes on to conclude in the Financial Express interview that it is “hard to contend that corporations have direct legal obligations under international human rights law.”
However, he also found “a growing potential for companies to be held liable for international crimes… under domestic law but reflecting international standards of individual responsibility.” A current example of this latter case is Chiquita's liability not under international law but under Colombian law for contracting with a right-wing militia that committed internationally-recognized human rights abuses.
Part of the goal for Ruggie’s now extended mandate is to more clearly define the idea of a corporate sphere of influence in international law. He believes that one means to achieving this goal is to “further clarify and progressively codify the duties of states to protect human rights against corporate violations” on both an individual state and multi-state level.
In a White Paper issued in April of this year, the American Bar Association (ABA) took a stab at roughly defining the corporate sphere of influence in corporate social responsibility (CSR) by saying that businesses should integrate “broader societal concerns into business strategy and business operations in ways that enhance reputation and sustainable business prospects.” The ABA suggests that some ideas for embracing this approach include adopting relevant international conventions and industry best practices.
With regard to state responsibility, it says laws should be a minimum jumping off point for CSR but that, “local laws should not regulate corporate social behavior or impose exactions or taxes to enforce policies rooted more in political considerations and pet economic theories, than in the protection of social welfare and individual rights.” The ABA proposes that the judiciary will play a role in resolving the jurisdictional no-man’s- land between corporate and governmental obligations in the area of CSR.
The ABA is coming at the dilemma more from the perspective of how it (as a group of lawyers rather than nation-states) can help to delineate the respective roles of corporations and governments, and with a focus on CSR in particular rather than human rights more generally. Still, there is a fair amount of overlap between the ABA’s orientation and Ruggie’s. Both are attempting to clarify the roles of states and corporations with regard to upholding social goals. However, as a broad policy statement the ABA position leaves lots of gaps in the specifics of the sphere of influence framework. For example, it does not elaborate on which corporate human rights practices should be legalized and which ones should remain voluntary. It will be interesting to see if Ruggie can meet his goal and fill in some of those specifics.
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