‘States have a duty to protect against corporate abuse’

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: John Ruggie’s recent report on corporate responsibility and accountability not only mapped the existing international human right instruments, but also pointed out that they are not legally binding on businesses. Rajiv Tikoo catches up with the UN secretary general’s special representative on the issue of human rights and transnational corporations and other business enterprises to get an insight into the reference work and its implications. Excerpts:

What are your major findings? Do companies come under the purview of international human rights treaties?

Firstly, states have a duty to protect against abuse by corporations, at least within their own territory, but they are not always able to or willing to fulfill this duty. Secondly, I found a growing potential for companies to be held liable for international crimes — with responsibility imposed under domestic law but reflecting international standards of individual responsibility. As yet, there are no similar trends for abuses not falling into the “crimes” category. It is thus hard to contend that corporations have direct legal obligations under international human rights law.

How do you assess the role of voluntary frameworks?

I also found advances in “soft law” standards as well as intergovernmental and multi-stakeholder initiatives. In particular, multi-stakeholder initiatives such as the Voluntary Principles on Security and Human Rights, the Kimberley Process Certification Scheme and the Extractives Industries Transparency Initiative play an important role in enhancing the responsibility and accountability of states and corporations alike. Of course, all of them have weaknesses that need to be dealt with.

Is self-regulation serving any purpose?

I found an expanding universe of self-regulation in the business and human rights domain, including individual company practices, industry initiatives, and multi-stakeholder efforts. The main challenges related to such self-regulations include elasticity in interpretations of international human rights standards; underdeveloped accountability mechanisms; less participation by state-owned enterprises; and the ever-present laggards of all provenances continuing to find ways to avoid scrutiny.

Have you found out anything new?

The short answer is yes. And quite apart from achieving my goal to briefly “restate” current international standards and practices regarding business and human rights, I have been able to forge relationships with stakeholders on all sides in order to build on the existing momentum for this issue and move towards closing gaps.

So, how can the corporate responsibility movement be strengthened?

We’re still thinking about the best way to strengthen corporate responsibility and accountability at both the international and national levels. Several guiding principles are already apparent though, including that any “grand strategy” needs to build out from the existing capacity of states and the states system to regulate and adjudicate harmful actions by corporations, not undermine it. We need to further clarify and progressively codify the duties of states to protect human rights against corporate violations: individually, as host and home states, as well as through collective action.

The law of the land varies from country to country. Isn’t it unrealistic to expect MNCs to embed universal codes into subsidiaries and supply chains?

This is an important question with which we’re currently grappling. My mandate also asked me to clarify the implications of concepts such as corporate “sphere of influence.” To do so requires thinking about the different challenges facing a wide variety of businesses and industries. We have also been thinking more about responsibility for acts by subsidiaries and those further down the supply chain.

Can market instruments like socially responsible investment funds that promote human rights be more useful?

No single measure would yield more immediate results in the human rights performance of firms than conducting impact assessments where a significant human rights impact can be expected. Several tools are now available and we need to test the available tools in the real world, not strive for theoretical perfection. Governments and companies need to step forward and cooperate with community groups and others in piloting these tools, so that the human rights impacts of business can be better understood and improved.

Is there a business case for human rights?

The most obvious business case is risk management, brand protection, and contributing to sustainable communities — better work forces and a growing customer base.

What next?