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Business and Human Rights, from Theory to Practice and Law to Morality: Taking a Philosophical Look at the Proposed UN Treaty

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Abstract

This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in.

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Notes

  1. A comprehensive list is available at GBI (2019)

  2. Ruggie explains: “legally, the parent company and each subsidiary are construed as a ‘separate legal personality’, subject to the individual jurisdictions in which they are incorporated. Therefore, the parent company is generally not liable for wrongs committed by a subsidiary, even where it is the sole shareholder, unless the subsidiary is under such close day-to-day operational control by the parent that it can be seen as being its mere agent. This makes it extremely difficult for any jurisdiction to regulate the overall activities of multinationals, and it can prevent victims of corporate-related human rights abuses from obtaining adequate remedy” (2013, p. xxxiii)

  3. The 2013 Resolution, titled “A modern understanding of CSR”, “Emphasises that the current global economic crisis arose from fundamental errors with respect to transparency, accountability, responsibility and from short-termism, and that the EU has a duty to ensure that these lessons are learnt by all (…); strongly advocates corporate social responsibility (CSR), and takes the view that CSR – if implemented correctly and practised by all companies, not only larger firms – can make a great contribution towards restoring lost confidence, which is necessary for a sustainable economic recovery, and can mitigate the social consequences of the economic crisis; notes that when business assumes a responsibility for society, the environment and employees, a win-win situation is created that serves to broaden the basis of trust necessary for economic success; takes the view that making CSR part of a sustainable business strategy is in the interest of businesses and of society as a whole; points out that many businesses – especially small and medium-sized enterprises (SMEs) – are setting an outstanding example in this field (…) Believes that when assessing the social responsibility of a company, it is necessary to take into account the behaviour of companies operating within its supply chain and, where applicable, of its subcontractors” (European Parliament, 6 February 2013, paragraphs 2–8).

  4. The Motion “Strongly condemns the practices by which companies temporarily establish themselves in regions for a limited period only, during which time they are entitled to settlement benefits (…); Emphasises that the business sector also has a responsibility to achieve the 2020 strategy goals; encourages companies to extend their activities which fall within the CSR philosophy beyond their industrial bases, and to take into consideration the long-term stability and growth of the regions in which they are established; stresses that in cases where restructuring cannot be avoided, companies must fulfil their legal obligations under EU and national law, prioritising the information of and consultation with employees, and the opportunity to review alternatives put forward by the social partners; calls for a local dialogue, comprising all stakeholders, in order to discuss the best possible arrangements in cases of restructuring” (European Parliament 2018/2633, paragraphs 8 and 12–14).

  5. See Business and Society Exploring Solutions, an online shared resource on non-judicial grievance mechanisms (an initiative of UN Special Representative John Ruggie) http://www.baseswiki.org

  6. One example of employee regulation is employees of Amazon, Google, Microsoft, Facebook, Salesforce and Wayfair’s calls for their companies to cut ties with Immigration and Customs Enforcement so as not to be complicit in the family separations at the US/Mexico border, following President Trump’s ‘zero tolerance’ policy (since 2018 onwards).

  7. Professor Ruggie describes the Council’s process for creating such mandates as one that led to the UN-endorsed Guiding Principles – still the key guidance for both governments and corporations around the world: “Such mandates are created by a Human Rights Council resolution (previously by the Commission). The Council comprises 47 UN member states elected on a regional basis for three-year terms; all other states may participate fully as observers but cannot vote. Resolutions require a lead sponsor from among Council members. The UK led the creation of the initial mandate, working with 4 other core sponsors: Argentina, India, Nigeria, and the Russian Federation. This cross-regional grouping – one core sponsor from each of the 5 regional groups (African, Asian, Eastern European, Latin American, Western European and “Others”) – reflected the importance of working across north-south and east-west political divides, which is essential to achieving progress in this field. Norway took over the lead in 2006, when the Council replaced the Commission” (Ruggie 2013, p. xlvii).

  8. The phrase is used by Abdullahi A. An-Na’im in Bauer & Bell (1999, p. 150), and (most notably, because developed into a strategic approach to business and human rights that is ultimately endorsed by the Human Rights Council) by John Ruggie in his Interim Report of February 2006 (Ruggie 2006, para 81); see also Ruggie 2010, paragraphs 4–15, and Ruggie 2013, xlii-xliii. See Appendix 2 for an account of Ruggie’s ‘principled pragmatism’ and some criticism it received. Ruggie never fully justifies this approach, at normative level; his intention is to utilise it for his specific mandate (see Appendix 2).

  9. Sandel explains this in his book of Public Philosophy: Essays on Morality in Politics, published four years prior to Justice: “in the view of modern-day Kantians, certain rights are so fundamental that even the general welfare cannot override them (…) So Kantian liberals need an account of rights that does not depend on utilitarian considerations. More than this, they need an account that does not depend on any particular conception of the good, that does not presuppose the superiority of one way of life over others (…) The solution proposed by Kantian liberals is to draw a distinction between the ‘right’ and the ‘good’ – between a framework of basic rights and liberties, and the conceptions of the good that people may choose to pursue within the framework.” (Sandel 2005, p. 150) The difference is that between supporting a framework of rights per se, or in general, out of principle (e.g. the right to free speech), and supporting affirming some particular rights, because they serve certain ends – that is, out of utilitarian consideration, say, because free speech will increase the general welfare. (It is Sandel’s example, pp. 150–1).

  10. This integrated model is also consistent with Onora O’Neill’s cosmopolitan view of ethics, which goes beyond utility v. principles, arguing that global responsibility must instead be based on a broad sense of obligation. (The foundations of O’Neill’s philosophy are Kantian). There is no transnational governance that could be made universally responsible for regulation, because global challenges are complex and interconnected; rights and responsibilities must be shared; global business must be seen as a global citizen, with rights that need to be recognised and responsibilities that it shares with other stakeholders (Robinson and Dowson 2012, p. 260).

  11. Sadely, Sir John has left us earlier this month. He will be missed.

  12. See, for example, Grear and Weston (2015)

  13. Others, like Thomas Nagel and John Tasioulas, agree. The latter argues that “If human rights are not to fall victim to their own popularity, some principled way of distinguishing the genuine articles from the presumed spate of counterfeits is required (…) the international regime of human rights is not self-validating; instead, its legitimacy depends upon compliance with independent moral standards, including genuine human rights”. And he quotes the former saying that “The existence of moral rights does not depend on their political recognition or enforcement but rather on the moral question whether there is a decisive justification for including these forms of inviolability in the status of every member of the moral community. The reality of moral rights is purely normative rather than institutional – though of course institutions may be designed to enforce them” (Nagel 2002:33) (cit. in Tasioulas 2007, p. 75).

  14. A century before, John Stuart Mill offered a judgement test, which would support Hart’s liberal position. He argued that society had no right to enforce its moral perceptions, where their violation would not cause perceptible ‘harm’ to others (Mill 1974). He believed that, in the absence of harm, diversity was a positive factor in society. His opponent, Sir James Fitzjames Stephen, argued that society could not safely be precluded from enforcing its morality at need (Penner 2002, pp. 82–86). Mill’s contribution to the issue became known as the ‘harm principle’, but it should be clarified what precisely constitutes ‘harm’.

  15. See, for example, Amartya Sen’s arguments on the role of voluntary initiatives such as social monitoring and activist support in complementing the legal route, discussed below (Sen 2011).

  16. Sen explains this as follows: “it’s not that the ground for something to be legislated is that it is in some pre-existing sense a ‘natural’ right, but rather that ‘advocating their incorporation in a legal system’ can be part of what we understand by the declaration of a ‘natural right’ or a ‘moral right’. The meaning of ‘rights’ in the moral sense must include this interpretation of the word – as the existence of a corresponding moral claim” (Sen 2011, p. 441).

  17. In his “Elements of a Theory of Human Rights”, Sen questions the purely legalistic approach, saying that we should examine “whether legalisation is the pre-eminent, or even a necessary, route through which human rights can be pursued” (Sen 2004, p. 318). Instead, he sees human rights “as pronouncements in social ethics, sustainable by open public reasoning” (Ib., pp. 355–356).

  18. Here is a detailed account of Ruggie’s view: “Yet how do companies know they respect human rights? Do they have systems in place enabling them to support the claim with any degree of confidence? In fact, most do not. Their approach in a sense has been highly ‘legalistic’: focused on the requirements of their legal license to operate, and only slowly discovering that in many situations meeting legal requirements alone may fall short of the universal expectation that they must operate with respect for human rights – especially, but not only, where laws are inadequate or not enforced (…)

    What is required, therefore, is human rights due diligence – not merely the transactional kind you do before a merger or acquisition, but an ongoing process whereby companies manage the risk of human rights harms throughout the life cycle of a project, with a view to avoiding or mitigating them. Broadly speaking, such a due diligence process should include four elements: a statement of policy or other form of commitment on human rights; assessing human rights impacts; integrating the findings into company culture and processes; and tracking as well as reporting performance.

    Companies need to assess the potential and actual impacts of their own activities, and of the relationships associated with those activities – be they with suppliers, joint venture partners, security forces, government agents, and others. Heightened due diligence should be practiced in operating contexts where things are more likely to go wrong, such as conflict affected areas.

    Secondly, I want to stress the role played by site-level grievance mechanisms to which affected individuals and communities can bring corporate-related concerns. They are especially important for companies with large physical footprints on their areas of operation, such as extractive and infrastructure projects. Yet when one surveys what companies actually do, more often than not one finds a replay of the “legalistic” approach I’ve already mentioned: if it isn’t required by law, we don’t need to do it. Companies thereby deny those who are adversely affected by their activities an opportunity to resolve issues that may be readily remediable. At the same time, they deny themselves an early-warning system signalling when all is not well before disputes escalate into major campaigns or lawsuits.

    It is astonishing how many major human rights-related confrontations between individuals or communities on one side, and companies on the other, begin as relatively minor grievances that companies ignore or dismiss” (Ruggie 2009).

  19. See Ford and O’Brien (2017), who are in favour of seeking initiatives – whether voluntary or legal – that help promote regulatory effectiveness and avoid formalistic ritualism.

  20. Donaldson identifies a set of ten international human rights and discusses some minimal duties that must be observed in respecting them. He is not the first to establish a correlation between rights and duties, but he is unique in applying this to corporate human rights. He links the concept of minimal rights with a threshold of morally acceptable corporate behaviour thus: “If I have a right to physical security, then you should, at a minimum, refrain from depriving me of physical security (…). It would be nice, of course, if you did more: if you treated me charitably and with love. But you must at a minimum respect my rights. Hence, it will help to conceive the problem of assigning minimal responsibilities to multinational corporations through the question, ‘What specific rights should multinationals respect?’” (Donaldson 1990, p. 66).

  21. Donaldson rejects the metaphysical view of rights, “that simply formulated rights, such as the right to liberty or property, exist in some simple, eternal, moral firmament” (Ib., p. 78). Instead, we need detailed formulation of each right, and a procedure for weighing various rights against each other. He insists on this requirement to provide specific descriptions of rights, especially international ones, and their application in concrete situations.

  22. One model includes five general principles for psychology professionals, namely beneficence, fidelity, integrity, justice, and respect for people’s rights and dignity. These are considered ultimate ethical goals. Other sources talk of ten fundamental standards or principles (APA Code of Ethics 2017), sometimes reduced to five – dignity, fairness, prudence, honesty, openness, and prevention of suffering (Francis and Murfey 2016, p. 197). Another model is that of Donaldson (1990) who – as we have seen – talks about ten fundamental rights, which he considers fundamental at international level.

  23. See, for example, Ford and O’Brien (2017).

  24. See Woods (2015).

  25. See McCorquodale et al. (2017).

  26. All the reports are available on the UN Office of the High Commissioner for Human Rights website at https://www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/Reports.aspx

  27. “Principled pragmatism – the way forward for business and human rights” (OHCHR, 7 June 2010)

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Acknowledgements

The author is grateful for helpful comments by Michael Santoro, Molly Land, Malcolm Rogge and Jordi Vives Gabriel, as well as incisive questions and useful suggestions received from two anonymous reviewers.

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Correspondence to Ana-Maria Pascal.

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Appendices

Appendix 1

Summary of the Consultation Around the Proposed UN Treaty

On 26 June 2014, the Human Rights Council decided to establish Open-ended Intergovernmental Working Group, with the mandate to create an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. So far, there have been five annual sessions, with a sixth one scheduled to take place in October 2020. All session reports and details about submissions to consultations in-between sessions are available at https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx. Below is a non-exhaustive list of details about participation in intersessional consultations.

  • For the first session, which took place in July 2015, several states (including Brazil, Indonesia, Cuba, Namibia, and the Russian Federation), specialised agencies and intergovernmental organizations, national and international committees for the promotion of human rights, over twenty NGOs and just as many other relevant stakeholders (including lawyers, academics, and research institutes and consultants from South Africa, Slovenia and Hong Kong among others) made oral statements, or submitted written contributions.

  • For the second session, which took place in October 2016, several states (including Cuba, Bolivia Peru, Nicaragua and Palestine), one regional group (EU), one international organization (ILO), over twenty NGOs (from India, Indonesia and Hong Kong among others) and other stakeholders (from Cuba, India, Indonesia, Myanmar, Latin America and South Africa, among others) made oral statements, or submitted written contributions.

  • For the third session, which took place in October 2017, seven states (including Azerbaijan, Mexico, Botswana, and Indonesia), the EU, over twenty NGOs, and other stakeholders, including victim support representatives from Latin America, Morocco, and Sri Lanka, made oral statements, or submitted written contributions.

  • Following the publication of the draft Elements of the intended Treaty, on 29 September 2017, five states, all non-Western (Argentina, Azerbaijan, Mexico, Qatar, and Singapore), four NGOs, and ten other stakeholders (academics, institutes and foundations), including representatives from South America, South Africa, and Japan, sent written responses with comments and proposals for amendments.

  • Based on this response, a Zero Draft Legally Binding Instrument was published in July 2018; following this, a wide range of NGO’s, governments, academics and other group representatives responded with comments and recommendations. The list of oral and written Submissions received is available on the OHCHR page dedicated to the fourth session; see also the special blog dedicated to this by the Business & Human Rights Resource Centre, at https://www.business-humanrights.org/en/about-us/blog/debate-the-treaty/reflections-on-the-zero-draftand https://www.business-humanrights.org/en/binding-treaty/statements-initiatives-commentaries.

  • For the fourth session, which took place in October 2018, a series of open consultations was held, both on the process and on the substance of the intended Treaty – see the section on “Intersessional Consultations” on the OHCHR page dedicated to the fourth session. Ninety-three members states, several intergovernmental organizations, national human rights institutions and a large number of NGOs took part in the session. (See the report of the fourth session, UN doc. A/HRC/40/48 of 2 January 2019).

  • For the fifth session, which took place in October 2019, a revised version of the draft was prepared (UN Revised Draft Treaty, 17 July 2019) Again, multiple oral statements were made by (and written submissions were received from) a large number of stakeholders; participants included, as with the other sessions, state members of the UN, intergovernmental organizations and NGOs (see the report – UN doc. A/HRC/43/55).

  • For the sixth session, scheduled to take place in October 2020, two open consultations with Governments, regional groups, intergovernmental organizations etc. are planned, as a basis for the preparation of the second revised draft. (See the page dedicated to the sixth session on the OHCHR website).

Appendix 2

John Ruggie’s “Principled Pragmatism” in Building a Framework for Business and Human rights

The key thing to say about this is that it is not meant to be a general normative theory as such; rather, it is the approach Ruggie chooses to take to his UN mandate – i.e. to prepare the normative basis for a framework on business and human rights, and develop an operational plan for it. This specific aim might explain why Ruggie never embarked on a full philosophical undertaking, to justify and develop his approach. From his standpoint, it was enough to explain that an approach to business and human rights had to be both principle-based and practically (read: politically) achievable.

There are two main sources on this – Ruggie’s reports to the Human Rights Council,Footnote 27 in his capacity as Special Representative of the Secretary General for business and human rights (between 2005 and 2011), most notably as author of the UN Guiding Principles (2011) and his book, Just Business: Multinational Corporations and Human Rights, published in 2013. We provide a list of relevant paragraphs below, which shows that Ruggie’s views consist of –.

  • a definition, which he uses both in the reports and in his book (see details about the 2006 and 2010 Reports, as well as Ruggie 2013 below);

  • a specification regarding Ruggie’s main intention, namely to close the governance gaps that allow companies to have negative impacts without adequate sanction or reparation (OHCHR 2010, our emphasis). This suggests the main reason that led him to focus on a pragmatist approach is to do with the added complexities of transnational business, which he refers to as ‘polycentric governance’ in his book (Ruggie 2013, p. xliii);

  • an emphasis on the dynamic, interactive method, engaging multiple stakeholders, which Ruggie considers to be the key to making cumulative progress with the business and human rights agenda (see details about Ruggie 2010 and OHRCR, 2010 below);

  • specific recommendations made in the Guiding Principles, which further illustrate his principled pragmatism (see details about Ruggie 2013, below).

2006 Interim Report

“As indicated at the outset, the Special Representative of the Secretary-General takes his mandate to be primarily evidence-based. But insofar as it involves assessing difficult situations that are themselves in flux, it inevitably will also entail making normative judgements. In the Special Representative’s case, the basis for those judgements might best be described as a principled form of pragmatism: an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most - in the daily lives of people.” (Ruggie 2006, paragraph 81; our emphasis).

2010 Report

“In his first report to the then Commission on Human Rights, the Special Representative described the approach he would take to the mandate as principled pragmatism: “an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most – in the daily lives of people”.2 (Ruggie 2010, paragraph 4, our emphasis). Footnote 2 refers to the 2006 Report E/CN.4/2006/97, paragraph 81 cited above.

The remaining paragraphs of the “Principled Pragmatism” section refer to the dynamic, interactive method that he considers to be key to making cumulative progress with the business and human rights agenda, given Ruggie’s conviction that different social actors (from States to businesses and civil society) have to contribute to it; and his explicit intention to draft a framework that can help achieve this kind of cumulative progress (Ruggie 2010, para. 5). Unsurprisingly, in the later stage of his work, “he has combined research, consultations and practical experimentation to give practical effect to the “protect, respect, remedy” framework.” (OHCHR 2010). Ruggie himself confirms this in his 2010 report: “As has been true throughout the mandate, the operationalization phase combines research, consultations and practical experimentation” and he gives the wide consultation he had undertaken with a large number of participants from both Western and non-Western jurisdictions and across sectors, regions and traditions. Finally, equally important are his efforts to disseminate and implement the Framework, by helping a wide range of states, institutions and intergovernmental organisations update their standards. (Ruggie 2010, paras. 7–14). All these are concrete elements of the pragmatist approach that he adopts.

OHCHR, 7 June 2010

This is how Ruggie’s principled pragmatism is presented in a special blog dedicated to it,Footnote 28 on the Office of the High Commissioner’s website:

“Acknowledging as he has from the start that there is “no silver bullet solution” to the challenges, Ruggie stressed at the side event that there must be a broad range of responses found to “build an understanding of human rights into the corporate DNA”. The framework is there to bring coherence to the process – it will not solve the problems all at once but we are looking for cumulative progress, he said.

Operating from a position of “principled pragmatism”, Ruggie said he had set out to close the governance gaps which “provide the permissive environment for wrongful acts by companies of all kinds without adequate sanction or reparation”. In this latest phase of his work, he has combined research, consultations and practical experimentation to give practical effect to the “protect, respect, remedy” framework.

The report describes some of the initiatives taken: the mapping of more than 40 jurisdictions with the assistance of leading law firms from around the world; with the help of five companies, the testing of the framework’s principles for company-based grievance mechanisms; convening a groups of States to brainstorm ideas to prevent or mitigate business-related human rights abuses in conflict-affected areas; and an online consultation on the corporate responsibility to protect human rights in December 2009 which attracted visitors from 101 countries in its first three months.

In concluding his progress report, Ruggie notes that his position has become the de facto United Nations focal point for business and human rights. States, companies and other national and international entities, the report says, regularly seek his advice regarding their own corporate-related human rights policies and practices.

This should not end he says, when his mandate concludes in 2011. Ruggie has recommended the Human Rights Council give early consideration to a human rights advisory and capacity-building function anchored permanently in the UN.”

Just Business Book (2013):

The 3-page section on ‘Principled Pragmatism’ starts with a quote of the definition used in the 2006 Interim Report and the 2010 Report – “an unflinching commitment to the principle….” (pp. xlii-xliii).

What follows is a series of details with specific recommendations from the Guiding Principles. These are relevant, because they are meant to operationalise the PRR framework and together they constitute Ruggie’s mandate, which he chose to approach using a principled pragmatism strategy. Whereas for states, Ruggie recommends legal obligations – in regulating corporate conduct – for businesses, he focuses on due diligence and alternative (non-judicial) mechanisms for dispute resolution – that is, a twofold effort to prevent and redress at the same time, which goes beyond mere compliance. (Ruggie 2013, pp. xliv-xlv).

Also, Ruggie is very keen “to avoid having my mandate entrapped in or sidetracked by lengthy intergovernmental negotiations over a legal text (…) Therefore, I took great care to base the mandatory elements of the Guiding Principles on the implications of existing legal standards for states and businesses; to supplement those with policy rationales (…) In short, I aimed for a formula that was politically authoritative, not a legally binding instrument” (Ruggie 2013, p. xlv).

Therefore, one can conclude that Ruggie’s principled pragmatism is a sum of these practice-focused elements, aimed to facilitate dialogue and collaboration between multiple stakeholders (rather than impose a one-size-fits-all kind of rigid, legal instrument). The focus, for him, should remain on flexibility and adaptability, as well as on links between existing laws and new policies, and well as non-judicial mechanisms.

***

Strangely, the two major reports – the PRR Framework (2008) and the UN Guiding Principles (2011) – are both quiet on the issue. But they do raise the issue of the existing gaps in global governance, which we know Ruggie’s mandate sets out to address.

In fact, the main criticism that Ruggie’s principled pragmatism has faced relates to this very claim – that he aims to respond to the challenge of existing gaps in global governance: “Nevertheless, the Report [i.e. Ruggie 2008 Report – our note] does not respond to the global governance gaps it notes with global governance solutions. Instead, it is limited to what its author deems politically achievable. This above all includes incremental steps towards observing human rights at national level, especially in Bilateral Investment Treaties (BITs) and in export promoting via Export Credit Agencies (ECAs). Ruggie is in favour of strengthening judicial capacities to hear complaints and enforce remedies against corporations. He recommends the corporations themselves to observe “due diligence” regarding respect for human rights and gives some practical recommendations in this context.8

However, Ruggie categorically rejects the UN Norms or any other global legal instrument to establish the human rights duties of corporations. Neither does the report address calls by human rights organisations for a UN special procedure (e.g., independent expert or group of experts) on business and human rights or a proposed International Advisory Centre offering governments of developing countries legal support vis-à-vis transnational corporations.

Thus, Ruggie’s report falls way short of the expectations of civil society organisations. With his “principled pragmatism” approach, Ruggie formulates what he feels is politically feasible given the forces that be in society but does not state what would be desirable and necessary to protect human rights.” (Martens 2008; footnote 8 refers to the UN Doc. A/HRC/8/5 of the 7th April 2008, paras 60–64).

It is not our aim here to either defend or dismiss Ruggie’s claims. Suffice it to say that the role the UNGPs have played in creating a common platform for standards of responsibility across the world and across sectors and stakeholders speaks for his level of achievement. The gap in global governance may not have been closed, but it is getting narrower, as interest groups working closely with businesses (such as GBI) confirm.

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Pascal, AM. Business and Human Rights, from Theory to Practice and Law to Morality: Taking a Philosophical Look at the Proposed UN Treaty. Philosophy of Management 20, 167–200 (2021). https://doi.org/10.1007/s40926-020-00150-0

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