Normativity, Ethics, and the UN Guiding Principles on Business and Human Rights: A Critical Assessment

Abstract

This article critically assesses the work of the UN Special Representative for Business and Human Rights (SRSG) John Ruggie. The article adopts a normative perspective on the issue. Thus, its critique is derived from the standpoint of ethics. The SRSG was instrumental in shifting the burden of proof to those who deny corporate human rights responsibilities. This achievement, however, is relativized by the very restrictive interpretation of such responsibilities, both in terms of their scope as well as the normative force assigned to them. Finally, the article explores and analyzes the SRSG's relative reluctance to address and engage with ethical categories more explicitly. It outlines the dangers and blind spots that may result from this reluctance and reflects on the role that ethics can, and perhaps should, play in the broader debate on business and human rights.

Notes

1. Ruggie is not against the use of legal instruments in business and human rights. In fact, he has always emphasized that “International legal instruments must and will play a role in the continued evolution of the business and human rights regime” (Ruggie 2013: 125). However, he does not believe in one overarching treaty on the matter. Rather, he sees a role for legal instruments “as carefully crafted precision tools” addressing specific subject areas and governance gaps in the business and human rights realm (Ruggie 2014). He has stuck to this position also in regard to Ecuador's recent proposal in the UN Human Rights Council to get new treaty negotiations underway, citing practical challenges and perhaps fearing that such negotiations could be an “excuse” for states to stall the GP implementation process (see Ruggie 2008b, 2014).

2. See Ramasastry (2013: 162–172) for a short history of attempts to install a binding human rights framework for companies and the subsequent focus on voluntary measures.

3. A similar argument was made by Ryder (2010: 47) with respect to the OECD Guidelines, which similarly do not depend on companies opting in. However, they do depend on the consent of the respective government.

4. As opposed to this interpretation by Frankena, Feinberg's (1966) typology of duties does include certain duties that do not necessarily correlate with other people's rights, such as duties of status, duties of obedience, and duties of compelling appropriateness.

5. In fact, as McCorquodale (2009: 391) reports, the Human Rights Council's 2009 resolution, which endorsed the SRSG's Framework, did use the term “Responsibility” for both states and corporations.

6. A negative duty, in a nutshell, is a “duty to ensure that others are not unduly harmed (or wronged) through one's own conduct” (Pogge 2002: 130). A positive duty, on the other hand, is a duty to “benefit persons or to shield them from other [than one's own] harms” (Pogge 2002: 130). Ruggie asserts that the responsibility to respect includes positive action. However, this does not turn the responsibility itself into a positive one. It remains negative—that is, a responsibility not to harm others—but it is an active negative responsibility, which requires specific action, as opposed to a passive negative responsibility, which requires mere forbearance (see Wettstein 2012c).

7. See below for more extensive elaboration on this point.

8. Somewhat symptomatically, it is in these terms that the SRSG interprets positive corporate responsibility beyond the responsibility to respect: “Clearly, companies may undertake additional commitments voluntarily or as a matter of philanthropy… But what is desirable for companies to do should not be confused with what is required of them” (Ruggie 2009: 16–17).

9. Similarly, O'Neill (2001: 194) argues that corporate power can be used to support and strengthen reasonably just states. Global justice, in her view, must be built by a diversity of agents with varying ranges of capabilities. The ideological separation of states as primary agents and nonstate actors as secondary agents of justice obstructs the view of the variety of contributions such actors are, in fact, able to make. On the connection between global justice, human rights, and corporate responsibility, see Wettstein (2009).

10. Some scholars have advanced such models of shared responsibility. I have mentioned Iris Marion Young's (2006) social connection model, which ascribes responsibility along the parameters power, privilege, interest, and collective ability rather than as a function of causal involvement. Similarly, Michael Santoro's (2000: 143–158, 2009: 14–17, 2010) “Fair Share Theory of Human Rights Responsibility” proposes responsibility as a function of an agent's potential to have a positive impact on the situation, its relationship to the victims and its ease in withstanding potential retaliation by a perpetrator. Hsieh (2004: 650–651) proposed a “principle of limited scope” with similar aim. The SRSG's reports do not take note of such proposals.