Professor John Ruggie, the United Nations Special Representative of the Secretary General on human rights and transnational corporations and other business enterprises (hereinafter J. Ruggie), and his team, have recently published 2009 report on ‘Business and human rights: Towards operationalizing the »the protect, respect and remedy« framework« (U.N. Doc. A/HRC/11/13/, 22 April 2009). In his recent report, J. Ruggie follows his three-pillar framework for corporate accountability for human rights outlined in his 2008 report (Protect, Respect and Remedy: A Framework for Business and Human Rights’, U.N. Doc. A/HRC/8/5, 7 April 2008.) The 2008 Report proposed a normative framework comprising of three main components: the state duty to protect against human rights violations by or involving corporations; the corporate responsibility to respect human rights; and effective access to remedies. Along the same lines, the 2009 report notes in its introduction that:
The framework rests on three pillars: the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; the corporate responsibility to respect human rights, which in essence means to act with due diligence to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. The three pillars are complementary in that each supports the others. (para.2) (footnote omitted).
Firstly, the report primarily recognizes the responsibility of States in the protection and promotion of human rights. He notes, for example that ‘there are also strong policy reasons for home States to encourage their companies to respect rights abroad, especially if a State itself is involved in the business venture – whether as owner, investor, insurer, procurer, or simply promoter.’ (para. 16). In sum, he concludes that ‘a major objective of the Special Representative’s renewed mandate is to assist Governments in recognizing those connections and advancing the business and human rights agenda beyond its currently narrow confines.’ (para. 44).
Secondly, the 2009 report acknowledges that corporations have a responsibility and obligations to respect human rights. In a sharp contrast to the previous report, the 2009 report recognizes that ‘there may be situations in which companies have additional responsibilities. But the responsibility to respect is the baseline norm for all companies in all situations.’ (para. 48) He further observes that ‘operating conditions may impose additional requirements on companies, for example, the need to protect employees in conflict affected areas, or from violence in the workplace.’ (para. 66). However, he cautions that ‘this is more appropriately considered a specific operationalization of the responsibility to respect, and not a separate responsibility altogether.’ (para. 66).
Thirdly, victims of human rights violations by or involving corporations have at their disposal only a few effective legal avenues for enforcing corporate responsibility for human rights. He recognizes the essential importance of the access to remedies in the following paragraph:
Grievance mechanisms, judicial and non-judicial, form part of both the State duty to protect and the corporate responsibility to respect. They are essential to ensuring access to remedy for victims of corporate abuse. For States, they are also means of enforcing or corporate compliance with relevant law and standards, and of deterring abuse. For companies, operational-level mechanisms have the added benefit of giving early warning of problems and helping mitigate or resolve them before abuses occur or disputes compound. But too many barriers exist to accessing judicial remedy, and too few non-judicial mechanisms meet the minimum principles of effectiveness. Further improvements, shared learning, and innovations are required. (para. 115).
The 2009 Report notes correctly in its conclusion that ‘ business and human rights is not an ephemeral issue to be considered at some future date. It is and must remain at the core of our common concerns today.’ (para. 121). The 2009 report is therefore a major step forward in the field of human rights and business. In spite of and because of this, the questions whether the framework ‘protect, respect and remedy’ offers the most appropriate path for dealing with issues of corporate responsibility for human rights remain open. The majority of the 2009 report summarizes the current state of legal and non-legal initiatives in this field and it is therefore descriptive in its nature. The 2009 report does not provide a victims’ orientated solution to the difficulties of remedying human rights violations. It, however, promises, that ‘ the Special Representative will continue research and consultations on barriers to judicial remedy, as well as possible options to address them.’ (para. 98). As in his 2008 report, J. Ruggie does not attempt to explain how his proposed framework relates to the generally accepted framework under international human rights law, where state obligations are usually classified into three categories: the obligation to respect, the obligation to protect and the obligation to fulfil and whether corporation may also have obligations to respect, protect and fulfil human rights. Even though the report recognizes that corporations may have responsibilities beyond responsibility to respect, it refrains from discussing whether corporations have some positive obligations to protect and tu fulfil human rights. In other words and as argued before, an obligation to protect would mean that corporations are obliged to adopt internal regulations and take other measures to prohibit and prevent human rights violations internally, in their own activities, but also externally, in business relationships with third parties (subsidiaries, contractors, sub-contractors and other business partners), throughout their supply chains.
All in all, it may appear that the proposed framework leaves much to be clarified in the future, particularly in relation to the nature of the obligations of corporations under human rights law. The 2009 report represents an important step forward and it recognizes that when the focus would be directed towards the means rather than the ends, the framework for human rights and business could provide some guidance on how to tackle the challenges facing human rights and business fields. However, the historical momentum of development of corporate responsibility and accountability for human rights will be difficult to halt, and, thanks to its normative development, it is hoped that it will be possible to bring timely justice and reparations to those who have suffered due to harmful conduct by or involving corporations. In this light, it may well be argued that not only do states have obligations to respect, protect and fulfil, but also that corporations have obligations to respect, protect and fulfil fundamental human rights.