The UN Guiding Principles

In 2005, the Secretary-general of the UN appointed John Ruggie as Special Representative on the issue of Human Rights and transnational corporations and other business enterprises. Many reasons lead to the appointment of Ruggie, and the main one is because he played an important role in the theoretical construction of the United Nations Global Compact – which is a compilation of principles of voluntary adherence to Human Rights and business activities. In 2008, Ruggie presented the “Protect, Respect and Remedy”, a framework for business and human rights in a comprehensive approach – so in 2011, the United Nations Human Rights Council adopted by consensus the Guiding Principles on Business and Human Rights. In this week’s series we are going to explain a little more about its importance, and what are the criticisms around this framework.

As far as the ‘Guiding Principles’ are concerned, they are not considered to be rules of international law, but are included in the framework of practical recommendations. The UN Guiding Principles on Business and Human Rights prescribes not only what must be done by the government and corporations to better manage the risks against human rights, but they also teach how to manage it. That framework is based upon 3 main objectives: to protect, respect and remedy.

In this sense, it is worth mentioning the ideological alignment of Ruggie’s Principles with the global capitalist agenda for the construction of a non-binding instrument to which corporations could voluntarily adhere to (BUHMANN, 2013, p.39).

The “protect” aims at the State role as a guardian of the individuals, being responsible for their protection against violations of human rights perpetrated by third parties. However, although there is a preoccupation with those rights, there are no expectations for a mechanism that can endorse individual protection if the State is inefficient, besides the fact that there is no mention of extraterritorial liability mechanisms.

The “respect” establishes the responsibility of corporations to respect human rights, which can be considered as a negative responsibility, that is, the abstention from violating human rights. In that context, although the chain of production is mentioned, there are no mentions if those prerogatives are also applied in the subsidiaries.

The ”remedy” represents the victims’ access to redress mechanisms through the reach of effective judicial and administrative measures. The provision presents a very generic text, not imposing practical and forceful measures to ensure the redress.

Its creation brought greater visibility to the issue of Human Rights and Business in the context of the United Nations actuation, being responsible for keeping in debate the impact of business activities on the accomplishment of human rights. However, this framework also has several criticisms in the field of Human Rights and Business – during the approval of the framework, John Ruggie sought as much as possible the need for a “consensus” between the corporations and the framework of the GPs, which consisted in adapting this line to business demands.

Therefore, corporations were also allowed to have their say in the process of creating the GPs and were benefited from this search for “consensus”. The Guiding Principles do not objectively determine corporate liability for Human Rights violations, only that of States, and their rules do not constitute a substantial threat to corporate activity, as they also allow corporations to choose whether or not to adhere to them.

It is undeniable that the voluntaristic character present in instruments of soft law no longer play a satisfactory role in preventing human rights violations committed by transnational corporations. Still in relation to the Guiding Principles, it is also possible to see the absence of specialization and the construction of an explicit narrative on the duties and obligations of corporations. Thus, there is a need for deepening the discussions on an international binding instrument on Human Rights and Business, such as the projects of the Drafts that have already been presented at the UN Human Rights Council.

 

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