Having the Ruggie Pulled Out From Under Us: From “Sanction and Remedy” to non-judicial grievance mechanisms
In 2005, U.N. Secretary General Kofi Annan named Professor John Ruggie as his Special Representative “on the issue of human rights and transnational corporations and other business enterprises.” Ruggie set out to map “patterns of alleged human rights abuses by business enterprises; evolving standards of international human rights law and international criminal law; emerging practices by States and companies; commentaries of United Nations treaty bodies on State obligations concerning business-related human rights abuses; the impact of investment agreements and corporate law and securities regulation on both States’ and enterprises’ human rights policies; and related subjects.”
This research led Ruggie to conclude that “escalating charges of corporate-related human rights abuses are the canary in the coal mine, signalling that all is not well.” He also found “an exceptionally high percentage of cases of human rights abuses associated with the activities of extractive industries.”
In 2008, Ruggie tabled his first report, which laid out a framework based on the duty of States to protect against human rights abuses, the corporate responsibility to respect human rights (which Ruggie defined as “do no harm” and further obligates corporations to “address adverse impacts with which they are involved”), and the need for victims of human rights abuses by corporations to have access to effective remedy.
The conclusions Ruggie came to in the first three years of his mandate lent international credibility and legitimacy to largely existing analyses and findings regarding the potentially harmful impacts of corporations, especially extractive companies, on human rights and on environments. Ruggie is clear, now at the end of his second mandate, that his findings themselves have not in the main proven to be unanticipated or unprecedented. But the legitimacy derived from his U.N. mandate and the apparently robust nature of his methodology —based on extensive global consultations and focused research — have contributed to an unprecedented global attention for, and consensus about, the nature of the problems related to the impacts of corporations on human rights, particularly for vulnerable populations. Additionally, Ruggie has sought to organize existing knowledge and information in such a way that it might lead to greater clarity about the way forward, about how to begin to address these negative impacts. This was the focus of Ruggie’s second mandate that ended in March of 2011.
Unfortunately, in moving from naming and framing problems in 2008, to providing guidelines through which to address these problems in 2011, Ruggie has retreated from making strong recommendations that he himself had identified as feasible in key areas.
Sanction and Remedy
One of the key problems that Ruggie accurately “named” in his 2008 “Protect, Respect and Remedy” framework report was lack of access to justice, particularly for vulnerable populations and people living in weak governance zones. Ruggie said:
“The root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences. These governance gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning or reparation. How to narrow and ultimately bridge the gaps in relation to human rights is our fundamental challenge.”
Ruggie also tipped the veil on a possible solution. Recognizing that vulnerable individuals and communities in so-called weak governance zones do not have access to well-functioning legal systems or effective regulatory systems, and also realizing that it may be a long time, if ever, before there would be access to justice through an international court pertaining to corporations or through an international regulatory regime, Ruggie pointed the finger at the home countries of multinationals as a potential source of access to justice.
In 2008 Ruggie said that while “[e]xperts 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.” Ruggie further said that “there is increasing encouragement at the international level, including from treaty bodies, for Home states to take regulatory action to prevent abuses by their companies overseas.”
As hopeful as that may sound, three years later one can only speculate that push-back from multinational extractive companies, among others, has caused Ruggie to retreat significantly from the promise shown in his 2008 report. In his Guiding Principles Ruggie only asks States to “encourage business enterprises domiciled in their territory and/or jurisdiction to respect human rights throughout their global operations...” (underline added). And Ruggie now says that the “role that States should play to ensure that business enterprises domiciled in their territory and/or jurisdiction do not commit or contribute to human rights abuses abroad is a complex and sensitive issue” (underline added). His recommendation to home States to reduce barriers to their own courts for overseas claimants who “cannot access home state courts regardless of the merits of the claim” is framed as something they “should” do as opposed to something they “must” do as in other recommendations.
“Non-Judicial Grievance Mechanisms”
Rather than to emphasize home state regulation or the creation of access to justice through home state courts, Ruggie recommends a proliferation of non-judicial grievance mechanisms at the project level, at the national level and at the international level as part of all manner of voluntary codes of conduct.
Non-judicial grievance mechanisms are a typical creature of the voluntary corporate social responsibility (CSR) movement. Their deficiencies mirror problems with voluntary CSR measures more broadly. Voluntary measures are typically unevenly applied, not sufficiently independent, transparent and unbiased, may be used strategically to thwart agency by communities struggling to protect values of importance to them, and cannot compel sanction or remedy.
We have two non-judicial grievance mechanisms in Canada that are relevant to the activities of Canadian extractive companies operating overseas. The National Contact Point for the OECD Guidelines on Multinational Enterprises and the Canadian CSR Counsellor for the extractive sector, created in 2009 under the Government of Canada’s new CSR Policy for the extractive sector called “Building the Canadian Advantage.”
Neither will investigate complaints; neither will make determinations of fact about whether the guidelines they are meant to uphold were actually breached, neither will provide sanction and both can only provide remedy if the corporation against which a complaint has been made decides to provide some form of remedy.
This latter point is particularly important from a human rights perspective. Both the NCP and the CSR Consellor processes put complainants in the untenable position of having to rely on the very company that stands accused of having caused them harm to decide if it is inclined to provide any form of remedy, and if so, what and how much remedy it may provide. These processes put effective power over remedy in the hands of the alleged violator. From a human rights perspective this is highly problematic. It is disappointing that the U.N. Special Representative on human rights and transnational corporations recommends placing increasing numbers of alleged victims of mining companies in this untenable position.
3. Ruggie studied 320 random cases of human rights abuses by corporations (between February 2005 and December 2007) and found that of eight sectors studied, the extractive sector dominated at 28% of the total. Addendum: Corporations and human rights: a survey of the scope and patterns of alleged corporate-related human rights abuse. pp. 8-9.