IALL 2022 was chockablock with wonderful programs and one of the best was saved for the last day with a program on “Business & Human Rights” by Stanford Law School Lecturer Jamie O’Connell. O’Connell’s program described the origins, development, and status of the United Nations Guiding Principles on Business and Human Rights (“Guiding Principles”). The Guiding Principles are the most authoritative human rights standards businesses are expected to follow. And while they are not binding, they have been shown to have significant and increasing normative force and practical effect on the behavior of businesses.
The first attempt to identify the human rights obligations of businesses began in the early 2000s with a group of experts, largely from academia, who drafted a set of binding rules. These rules included, most controversially, a guarantee that businesses were not only responsible for following human rights obligations but also must guarantee compliance from their suppliers and contractors. The pushback from businesses was fierce and, after some intense lobbying, the initiative was quickly quashed.
However, despite this initial failure, UN Secretary-General Kofi Annan recognized the need for guidance on what human rights obligations businesses do have. In 2005 he appointed Harvard Professor John Ruggie as Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises. Ruggie’s first task was to investigate what obligations businesses had regarding human rights. After three years of talking to business leaders and other stakeholders, Ruggie presented his Protect, Respect and Remedy (“PRR”) framework, which became the foundation for the Guiding Principles.
O’Connell then went on to describe Ruggie’s PRR framework. First, governments are the primary agents responsible for protecting human rights and governments have an obligation to regulate businesses to protect human rights. This principle is generally considered uncontroversial. Second, all businesses have a responsibility to respect human rights, but businesses are only responsible for themselves and no one else, including their suppliers or contractors. O’Connell credits this principle as key for getting businesses on board with the project. Finally, when there is a violation of a human right, there needs to be a remedy available to compensate victims.
O’Connell then moves on to discuss Ruggie’s efforts to build trust with business leaders by using language and concepts that they would understand such as due diligence and by emphasizing that it was in their interest to abide by human rights obligations. At the same time, Ruggie developed a somewhat antagonistic relationship with many in the human rights community who were often critical of his effort and widely denounced him as a sellout for caving into business interests at the expense of human rights. O’Connell believes that Ruggie was strategically encouraging the antagonism to assist him with his effort to build relationships with business leaders because Ruggie recognized that without business buy-in, his effort was doomed to failure.
Six years after his appointment as Special Representative, Ruggie published the Guiding Principles. O’Connell concludes with a discussion of what they include and their impact. First, the Guiding Principles are non-binding soft law. This hands-off approach was important to gain business support. The Guiding Principles also say that businesses have an obligation of due diligence to abide by all human rights obligations and require a formal commitment to respect human rights approved by the highest officers of the corporation. Ruggie knew that if those in charge were involved, employees would take the effort seriously. Finally, within Ruggie’s due diligence language, the Guiding Principles identify an obligation by businesses to avoid contracting with suppliers and corporations that are known violators of human rights. It was this principle that led to the defeat of the earlier effort, so O’Connell credits the trust that Ruggie had built up with business leaders for its survival. Once the Guiding Principles were released, many governments and businesses began treating the principles favorably and they quickly gained wide support. Since being introduced, the Guiding Principles have come full circle and have moved from being soft law to binding law in many jurisdictions. O’Connell credits Ruggie’s skillful diplomacy and savvy relationship-building for saving what, at one time, seemed like a project doomed to failure. Thanks to his efforts, the world now has an important tool to hold businesses accountable for protecting human rights.