Problem II.B.:

     The Special Rapporteur appointed by the UN to address corporations and human rights, Professor John Ruggie of Harvard University, accelerated his work, producing an important study in February 2008 on the responsibilities of corporations. (Documents associated with Ruggie’s work may be found here.) The report set out a three-part framework for understanding corporate responsibility:

17. . . . The framework of “protect, respect, and remedy” can assist all social actors - governments, companies, and civil society - to reduce the adverse human rights consequences of these misalignments.

18. Take first the State duty to protect. . . . [I]nternational law provides that States have a duty to protect against human rights abuses by non-State actors, including by business, affecting persons within their territory or jurisdiction.To help States interpret how this duty applies under the core United Nations human rights conventions, the treaty monitoring bodies generally recommend that States take all necessary steps to protect against such abuse, including to prevent, investigate, and punish the abuse, and to provide access to redress.States have discretion to decide what measures to take, but the treaty bodies indicate that both regulation and adjudication of corporate activities vis-à-vis human rights are appropriate. They also suggest that the duty applies to the activities of all types of businesses - national and transnational, large and small - and that it applies to all rights private parties are capable of impairing. Regional human rights systems have reached similar conclusions.

19. Experts disagree on whether international law requires home States to help prevent human rights abuses abroad by corporations based within their territory. There is greater consensus that those States are not prohibited from doing so where a recognized basis of jurisdiction exists,and the actions of the home State meet an overall reasonableness test, which includes non-intervention in the internal affairs of other States. Indeed, there is increasing encouragement at the international level, including from the treaty bodies, for home States to take regulatory action to prevent abuse by their companies overseas. . . .

23. The corporate responsibility to respect human rights is the second principle. It is recognized in such soft law instruments as . . . the OECD Guidelines for Multinational Enterprises. It is invoked by the largest global business organizations in their submission to the mandate . . . It is one of the commitments companies undertake in joining the Global Compact.And the Special Representative’s surveys document the fact that companies worldwide increasingly claim they respect human rights.

24. To respect rights essentially means not to infringe on the rights of others - put simply, to do no harm. Because companies can affect virtually all internationally recognized rights, they should consider the responsibility to respect in relation to all such rights, although some may require greater attention in particular contexts. . . .

25. Yet how do companies know they respect human rights? Do they have systems in place enabling them to support the claim with any degree of confidence? Most do not. What is required is due diligence - a process whereby companies not only ensure compliance with national laws but also manage the risk of human rights harm with a view to avoiding it.The scope of human rights-related due diligence is determined by the context in which a company is operating, its activities, and the relationships associated with those activities.

26. Access to remedy is the third principle. Even where institutions operate optimally, disputes over the human rights impact of companies are likely to occur. Currently, access to formal judicial systems is often most difficult where the need is greatest. And non-judicial mechanisms are seriously underdeveloped - from the company level up through national and international levels. Chapter IV below identifies criteria of effectiveness for grievance mechanisms and suggests ways to strengthen the current system.

     Meanwhile, litigation in the United States against corporations for human rights abuses continued. As of the fall of 2009, plaintiffs had not received any judgments against corporate defendants. However, in April 2009, a federal judge in New York allowed a limited number of claims to continue against Western companies for aiding and abetting human rights abuses in apartheid-era South Africa, notwithstanding the opposition to such litigation from the U.S. Department of State and the government of South Africa. In June 2009, Shell Oil agreed to a $15.5 million settlement (text here) of a long-running ATCA case against it for complicity in murderous attacks by the Nigerian government against opponents of Shell’s operations. Shell did not accept liability for any abuses but put $5 million into a trust fund for residents of the Ogoniland area of the Niger river delta.

Notes and Questions:

1. How does Ruggie’s approach to corporate responsibility differ from that of the UN Subcommission’s norms? Why do you suppose corporations have endorsed his general framework?

2. How far should the state’s duty to protect against corporate abuses extend? Does it overcome the problem of state incapacity to regulate some businesses?

3. How far should the corporation’s duty to respect extend? Consider Ruggie’s admonishment to “do no harm” in the context of negative vs. positive human rights discussed in Chapter 7, Problem II.