On March 2, 2006 John Ruggie, the Special Representative to the Secretary General (SRSG), finally made public his interim report to the UN Commission on Human Rights. Given the content of this report, EarthRights International (ERI) would have happily waited a bit longer. Since last spring, the likelihood that the SRSG would be able to meet the mandate set out in a  resolution (13.15 Kb) by the Commission on Human Rights was bleak given the depth and breadth of the mandate as well as the controversy surrounding the issues.

As the year progressed, those prospects seemed even less likely given that John Ruggie was not appointed SRSG until the end of July 2005, well into the first year of a short two-year mandate. But now, given the contents of the SRSG’s interim report, his summary disposal of over 6 years of efforts by an expert body of the UN Sub-Commission on the Promotion and Protection of Human Rights, and his inappropriate perceptions of the sectoral and geographical distribution of human rights violations by corporations, the probability that Mr. Ruggie will be able to “move beyond the stalemate” surrounding the debate on the Norms and actually fulfill his mandate is even more discouraging. And the future outlook for the Norms is even worse.

Therefore, in preparation for the second year of his term as Special Representative to the Secretary General on the issue of human rights and transnational corporations and other business enterprises and to help guide his work in accordance with his mandate, ERI hereby calls on John Ruggie to:

Give Due Consideration to the Norms

Unfortunately, John Ruggie exerts significant effort in negatively assessing the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. In paragraphs 55 through 69, Ruggie employs unnecessarily harsh language in his evaluation of the usefulness of the Norms. Ruggie completely disregards the process that came before him and ultimately led to his appointment. The Norms were the result of consultations among the members of the Expert Working Group with other UN agencies, business associations, corporations and NGOs. UN member states were given the opportunity to pronounce upon the Norms. This process led to the resolution that an SRSG was needed to continue the process. While highly debated, the Norms are a necessary step in the international standard setting process. The SRSG's disdain for a valid and legitimate process and an outcome highly regarded by NGOs is certain to lead to continued polarization among those involved in the campaign to hold businesses accountable for human rights violations. ERI intends to combat the position taken by Mr. Ruggie against the Norms by garnering not only additional and strengthened support for the Norms from NGOs, but also from allied states and conscientious corporations.

Address Binding Accountability for Corporations

In paragraph 53 of his interim report, Ruggie acknowledges the well-known deficits of existing voluntary initiatives and instruments addressing corporate responsibility for human rights protections:

One weakness is that most choose their own definitionsand standards of human rights, influenced by but rarely based directly on internationally agreed standards…. Much the same is true of their accountability provisions. … [E]ven when taken together these “fragments” leave many areas of human rights uncovered and human rights in many geographical areas poorly protected…. The challenge for the human rights community then is to make the promotion and protection of human rights a more standard and uniform corporate practice.

At least on these points we can agree with this report, but hazard to go even further by asking: “What accountability provisions?”

In paragraphs 70-81, Ruggie outlines the process he intends to undertake to address these deficiencies: “A mapping of corporate responsibilities using such distinctions as its coordinates would have considerable practical utilities for companies, governments and civil society alike.” In this respect, Ruggie's consideration of the process which came before him would be useful, such a “mapping” can already be found in the  Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights 142.31 Kb.

Clarify the International Standard for Corporate Complicity

On the issue of corporate complicity, Ruggie specifically refers to the 9^th Circuit Appellate Court ruling reached in ERI’s Unocal case in paragraph 72. However, we feel that he needs yet additional guidance on understanding the current international standard.  ERI intends to assist the SRSG in this endeavor and is working with the International Human Rights Law Clinic, headed by Deena Hurwitz at the University of Virginia, to outline the current international standard for corporate complicity in human rights violations. We hope that our submission will guide further development of an appropriate internationally binding standard. We also hope that this input, as well as the previous case studies submission in the Joint NGO Report on Human Rights and the Extractive Industry and ERI’s submission on Corporate Abuses of Human Rights in Burma, will help guide Ruggie’s recommendations on clarifying the concept of “sphere of influence,” which is clearly part of his mandate.

Maintain a Broad Approach to Standards for Corporate Accountability

ERI takes issue with the SRSG’s limited comprehension of the overall situation with respect human rights abuse by corporations. In his introductory framing of the issues, Ruggie argues that a sectoral approach to developing a standard of accountability for corporations is needed. However, while it is true that some sectors have problems specific to their sector, there are significant issues common to all which must be addressed. Ruggie also makes the correlation between human rights abuses and countries of “weak governance.” However, the problem of corporations and human rights abuses cannot be conveniently addressed as a geographic or purely governance issue. It is undisputed, that the primary responsibility for human rights rests on states.  Clearly, where states fail, are unwilling or unable to protect human rights, these cases get the greatest publicity as these are the situations where international assistance is most greatly needed.  In general, in other functioning societies, corporations are hopefully held to account through existing state mechanisms.  This does not mean that human rights abuses are not taking place.  It does mean though that our efforts should be focused on holding corporations directly responsible. On this point, we also find that we are surprisingly in agreement with Ruggie's statement in paragraph 65 of his Interim Report:

There are legitimate arguments in support of the proposition that it may be desirable in some circumstances for corporations to become direct bearers of international human rights obligations, especially where host Governments cannot or will not enforce their obligations and where the classical international human rights regime, therefore, cannot possibly be expected to function as intended.

A clear definition of corporate obligations is unmistakably needed, so that the existing mechanisms available to enforce such obligations can apply such responsibilities, extraterritorially or not. Continued voluntary initiatives will maintain the status quo and leave conscientious companies at a disadvantage. Therefore, human rights standards for business must be enshrined at the multilateral level in order to apply to all corporations, not merely the most progressive. The playing field desperately needs to be leveled, not only for the business bottom line but for the communities in which these companies work.

An international standard will apply, no matter the company, the industry, the host or home state. An international standard will equally apply to Chinese and American companies violating human rights. Violations that take place in Burma or Canada will be given the same accountability and enforcement. Forced labor in the extractives industries will be given the same attention as child labor in the apparel and footwear industries.

This is clearly the purpose of this whole UN exercise, from the establishment of the Working Group on the Activities of Transnational Corporations in 1999 to Ruggie’s current appointment as SRSG. We know that the establishment of a separate mechanism to hear complaints against corporations for human rights abuses is also necessary so that the problem of extraterritorial jurisdiction can be avoided. Unfortunately, based on Ruggie’s interim report that solution seems far indeed and will most likely not be addressed even in his final report.

Ensure Broad Consultation and Transparency

Whatever course Ruggie takes with his mandate, broader consultation and transparency in the process is desperately needed. Over the last 8 months, NGOs have scrambled to discover where Ruggies next consultations will be and to find opportunities to engage him. Ruggie’s consultations thus far have clearly been slanted in favor of corporations. That is clear given the tone of his Interim Report. The input he has had from NGOs and civil society has been purely due to their own efforts and initiative. We sincerely hope that the SRSG will increase his consultations with civil society in general, particularly with those communities suffering human rights abuses by corporation. We hope that Mr. Ruggie will have balanced consultations this year which will lead to him reconsidering the Norms. We also hope that Ruggie engages NGOs who are actively working on the development of a human rights impact assessment procedure to further assist him in meeting his mandate.

Conclusion

Unfortunately, the interim report suggests that the final report will not include any substantive changes or even suggestions for changes in the accountability gap that led to this process and thus, the SRSG will not be able to meet his mandate. However, miracles may happen, and hopefully the SRSG will listen to the calls of civil society, change his focus and use the experience of the representatives that came before him to lead us to common binding international standards. In the meantime, ERI will continue its efforts to find support for the Norms and the standard setting process as well as use whatever mechanisms are currently available to us to hold corporations accountable for environmental and human rights abuses.