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Protect, respect, remedy – an embraced framework for business and human rights?


By dxw


John Morrison, Executive Director, Institute for Human Rights and Business, writes:

Last week, a Wilton Park conference reflected on an important emerging development in the ongoing struggle to protect human rights around world – a proposed new United Nations Framework on Business and Human Rights (WP 1074). Professor John Ruggie, the UN Secretary-Generals Special Representative on business and human rights  has made significant progress since 2005 when at the start of his mandate a Wilton Park conference (WPS 05-33) debated the nature and scope of business responsibilities concerning internationally recognized human rights standards.

Thanks to Ruggies efforts, in 2008 states represented on the UN Human Rights Council unanimously welcomed the Protect, Respect, Remedy policy framework on business and human rights. They did so in part because of the growing mismatch between rapid economic globalization and slow regulatory responses, which have created governance gaps across a range of business sectors and geographies. States affirmed that in addition to their own obligations to protect against rights abuses involving corporate actors, all corporations have a responsibility to respect human rights and to demonstrate that commitment through appropriate forms of due diligence.  The need for effective remedies for the victims of corporate related rights abuses was also acknowledged.

The 2011 Wilton Park conference, held in cooperation with the Swiss and Norwegian Foreign Ministries, brought together 17 governments from all global regions as well as leading thinkers and practitioners from intergovernmental organizations, business, civil society, national human rights institutions and trade unions to reflect on these important advances and focus on the actions still needed in the years ahead.

The mandate of UN Special Representative for business and human rights has offered a once-in-a-generation opportunity to establish greater clarity around the obligations of governments and the responsibilities of business enterprises even when operating in contexts where states are unable or unwilling to live up to their rights commitments.   To provide further guidance on these complex issues, Special Representative Ruggie put forward late last year a set of draft Guiding Principles for consideration by member states of the UN Human Rights Council  in June 2011.

The Wilton Park dialogue made clear that not everyone finds everything they want in the draft Guiding Principles, myself included, and we will all clearly be pushing for clarifications and additions in the weeks to come as the final principles are produced by John Ruggie and his team. However, this is part of the process and does not subtract in any way from the magnitude of the accomplishment: perfection should not be the enemy of the good. Even if Professor Ruggies work since 2005 has not opened every door, it has opened most and it has closed none. I challenge any dissenter to Ruggies work to show how it has made longer-term goals more difficult. The Protect, Respect, Remedy platform is already being used by some governments, NGOs and businesses to achieve they own complementary but different goals.

During the January 2011 Wilton Park session, we heard that other human rights special procedures in the UN (those relating to indigenous peoples, water, food, toxic waste and human rights defenders) have embraced the framework in their work as well. The OECD  and the International Organization for Standardization  have adopted the framework as part of new and revised guidelines and it is informing intergovernmental discussions in regional bodies such as the EU (Europe), ECOWAS (West Africa) and ASEAN (South East Asia).  Some states have also referenced the framework in the review of export credit guarantee, bilateral trade and public procurement decisions and we can hope to see human rights due diligence as an essential expectation of a growing number of investors, international financial institutions as well as being core to the work of national human rights institutions and other key actors.

One idea for part of the follow-up to the current UN mandate being discussed is a High Level Task Force, which would be constituted by the Human Rights Council and reflect in its composition individuals from the five UN regional groups as well as a diversity of multi-stakeholder representation.  Clearly, strong mechanisms for driving better practice by states and business are needed, as is better knowledge and research on the nature of business impacts on human rights and a stronger voice for the victims of human rights abuse.  Existing mechanisms, including those linked to the UN, have to date not been effective to date in driving and encouraging better human rights performance by business.  Any new mechanisms in this area need also to be established to support the work of community organizations, NGOs, national human rights institutions, labour organizations and networks of small and medium-sized enterprises that do not have the capacity of larger companies. There also needs to be tighter links between existing human rights mechanisms of the United Nations and follow-up to Ruggies mandate, looking also at how other intergovernmental processes and multi-stakeholder initiatives might be linked in a more coherent way.

Missing in the current draft Guiding Principles are clear quality criteria for assessing the legitimacy and effectiveness of different approaches to human rights due diligence by business. The procedural steps that are currently included in the Principles are essential but not enough on their own. It is essential that there are the tools necessary for international quality control and that these are established within the United Nations, either within the existing mandate or by what follows. The danger of allowing the market place to do this alone (i.e. business consultancies) or even for regional or national state-based approaches to do so in isolation might threaten the development of a truly global level playing field for business.

Professor Ruggie has signalled the need for states to look at closing the governance gaps that have allowed businesses to operate in law free environments, in particular those operating in conflict zones. This might mean new international law that clarifies the direct liability of companies to some of the most egregious forms of human rights abuse.

Critical for the next few years will be momentum and focus.  One of the many great gains of the past years has been the involvement and support of workers organizations and the international trade union movement in this area of human rights: worker rights are indeed human rights and this coming together must be made a permanent feature of the new approach. Given the broad support for the Protect, Respect, Remedy from states across every global region we can ill afford to slip into any national relativism or allegations of protectionism moving forward this strong multi-polar support must be preserved. We also hope that the specific needs of marginalized groups and victims will be directly represented and that a stronger emphasis of cross-cutting issues such as gender will be present.