9.3.3 The Ruggie report: "Protect, Respect and Remedy" principles and its application to the oil industry

On 7 April 2008, the Ruggie Report was released (see chapter 7, in particular section 7.5).1 John Ruggie, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises had elaborated on a framework toward the aim of providing more effective protection against corporate-related human rights harms. The framework states that the State has a duty to protect people, companies have a duty to respect human rights and both have a duty to remedy violations. The approach taken by Ruggie has the merit of formulating specific and tangible measures, including changes in national laws and regulatory policies, international mechanisms and voluntary initiatives. Although the human rights regime "rests upon the bedrock role of States", the Ruggie Report clearly stresses that companies have the responsibility to respect human rights, and so, independently of States' duties.2 Consequently, failure in this regard can subject a company to domestic jurisdiction. Concerning the allegation of complicity, the Ruggie Report points out that: "The number of domestic jurisdictions in which charges for international crimes can be brought against corporations is increasing, and companies may also incur non-criminal liability for complicity in human rights abuses". A recommendation at this level is to strengthen the judicial capacity to hear complaints and enforce remedies against all companies operating in their territory. It implies that obstacles to access to justice should be addressed. Moreover, the Ruggie Report draws attention to the significant role of national human rights institutions which have the capacity to handle grievances related to the human rights performance of companies.3

At the level of the State's duty to protect, the Report especially recommends that all actors should work towards developing better methods for balancing investor interests and the needs of host States to discharge their human rights obligations. This is based on the fact that the expansion of legal rights of transnational companies has created imbalances between companies and States that may be detrimental to human rights. The Report also upholds that host States offer protection through bilateral investment treaties to attract foreign investment. Such protection generally covers a promise not to modify the law to the disadvantage of the investor. Consequently, States find it difficult to strengthen domestic and environmental standards, including those related to human rights.

In conclusion, although the Report does not intend to 'withdraw' the responsibility of States to protect human rights, it clearly points out the responsibility of companies to respect human rights. It sketches them as complementary responsibilities. When applied to the exploitation of natural resources, several human rights related issues are to be addressed by both the States and the companies (extractive industry).

Firstly, companies shall respect the right of Indigenous People to self-determination when the extractive natural resources are located in areas inhabited by Indigenous People. In such cases, either the people wish to continue their traditional way of living when they are not interested in the so-called 'modern economic development' and prefer the area to remain untouched or they are interested in profiting from the economic benefits that could be generated in the area (e.g. to use it to improve their infrastructure or welfare).4

Secondly, whenever it has been firmly, voluntary and democratically established that the local people agree to the exploitation of their area, companies shall respect the rights of the inhabitants during the preliminary phase of exploitation. That can mean providing a fair market value for the expropriated property; providing alternative areas for living; a profit-sharing agreement with the community; implementation of a transparent investment policy; environmental assessment, involving external expertise.5

Thirdly, during exploitation and exploration, companies should implement the highest standards regarding environmental and social concerns. This should be the case even where local law does not itself impose high standards or does not enforce them. Another important element of best practices concerns avoiding corruption. A company shall not facilitate the governmental abuse of the ' community money' derived from natural resources.

Fourthly, after the exploitation phase, the company shall restore the area, to the extent possible to its original status, requesting assistance from the relevant experts. People should be offered financial compensation and/or the choice to move back to their traditional grounds.

Finally, from preliminary phase to post-exploitation phase, companies shall ensure transparency in their operations by publishing clear and complete sustainability reports; for example, by following the GRI's Guideline 400, supported by evidence and verified by independent experts. As it became clear from a 2008 survey conducted by the GRI and the Roberts Environmental Centre on Reporting on Human Rights: "more quantitative results and performance-orientated indicators are needed to measure the effectiveness of policies and actions that a company implements to ensure human rights".6