International law's invisible hand and the future of corporate accountability for violations of human rights

Abstract

In May 2011, the United Nations Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (SRSG), Professor John G Ruggie, submitted to the Human Rights Council his ‘Guiding Principles on Business and Human Rights’ aimed at implementing his ‘Protect, Respect and Remedy’ policy framework. The Council unanimously adopted the Guiding Principles at its June 2011 session. Ruggie's work has been both welcomed and criticised and his Guiding Principles are likely to remain controversial. Apart from the SRSG's recommendation to the HRC to develop a process to clarify the legal obligations of business entities not to commit international crimes, his work on this issue did not include a recommendation that the future development of binding international obligations should be one of the goals of his policy framework and guiding principles.This article argues that Ruggie's approach to addressing corporate human rights impunity was misconceived. For Ruggie, ‘[t]he 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’. It is argued here, however, that to address corporate impunity effectively, one cannot simply deal with the governance gaps alone. One must also identify and address the root causes of those gaps. This article contends that corporate human rights impunity is deeply embedded in the international legal system. It seeks to demonstrate the problems with the SRSG's approach by arguing that, along with the interventions of international financial institutions in the economies of developing states, one of the most significant impediments to corporate human rights accountability is the structure of the international legal system itself. The validity of this assertion is explored through an examination of the critiques of the international legal system by Third World Approaches to International Law (TWAIL) scholars, as well as insights drawn from feminist critiques of international law. It is argued that powerful states have used international law and international institutions to create a globalised legal environment which protects and facilitates corporate activity and, although the SRSG identified symptoms of this reality during his tenure, he did not examine the deep structural aspects of this problem. This article demonstrates that such an examination would have revealed the crucial need for binding international human rights obligations for business entities in any adequate strategy aimed at addressing corporate impunity. It concludes with some recommendations for developing such obligations incrementally.

Beyond Guilty Verdicts: Human Rights Litigation and its Impact on Corporations’ Human Rights Policies

“…At the same time, host states are reluctant about holding MNCs accountable for their complicity in human rights abuses for several reasons: Underdeveloped legal systems and institutions (e.g., no legal aid for victims or lack of resources for investigations), dependence of host states on foreign direct investment that leads to a lack of political will to enforce even existing laws and regulations, and vulnerable and weak governments, often leave the victims of corporate human rights violations without the possibility for redress in the host state where human rights abuses occur (Simons 2014;Nolan 2014;Enneking 2014). Thus, it is ''unsatisfactory and unrealistic to expect TNC [transnational corporation] human rights accountability […] to emanate exclusively from the host State'' (Joseph 2004, p. 4/5).…”

“…Needless to say, fearing the accusation of meddling with the sovereignty of other states (Simons 2014) and, perhaps more importantly, a loss of their own competitive advantage as a location for businesses (Enneking 2014), home governments have predominantly been hesitant to work toward establishing the legal foundations that would allow foreign citizens more effectively to bring foreign direct liability cases to their domestic courts (Nolan 2014).…”

Putting the French Duty of Vigilance Law in Context: Towards Corporate Accountability for Human Rights Violations in the Global South?

“…Current governance arrangements are insufficient for addressing the negative impacts caused by powerful TNCs, especially in the Global South. Attempts to create binding international regimes or conventions for holding TNCs accountable for their human rights and environmental records abroad have previously failed, largely due to the fierce lobbying by TNCs and powerful business associations (Clapp 2005;Simons 2012;Ruggie 2018). In turn, also many states have resisted the adoption of international binding rules for enhancing corporate accountability.…”

The Theorized Relationship between Organizational (Non)Compliance with the United Nations Guiding Principles on Human Rights and Desired Employee Workplace Outcomes

“…The UNGPs establish a series of guidelines that organizations truly committed to respecting human rights can adopt to include employees in the drafting, implementing, and reviewing of the policy. 18. In order to gauge human rights risks, business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved, either through their own activities or as a result of their business relationships.…”