Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/7.5.1
7.5.1 Governance gaps versus accountability gaps
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS371878:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Ruggie 2008, supra note 3, §3; UN HRC (22 April 2009) UN Doc A/HRC/11/13, 22 April 2009, §7.
E.g. presentation by Kamminga, M., 'Leidt de benadering van John Ruggie tot het sluiten van de 'accountability gap'?' [Does the Ruggie approach result in closing the accountability gap?], Symposium 'Mensenrechten en Bedrijfsleven' [Human rights and business], organised by Nederlands Juristen Comité voor de Mensenrechten [Dutch Committee for Human Rights] and the NGO Stand Up For Your Rights on 23 June 2009 in Amsterdam, the Netherlands, in which the author participated <http://media.leidenuniv.nl/legacy/Voorlopig_Programma_23juni09.pdf> accessed on 2 September 2009. See also: E. Duruigbo, 'Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring Challenges,' in Northwestern Journal of International Human Rights, Vol. 6, Issue 2, Spring 2008, pp. 222-261, at: http://www.law.northwestern.edu/journals/jihr/v6/n2/2/, accessed on 12 August 2010; C. Broecker, 'Better the Devil You Know' - Home State Approaches to Promoting Transnational Corporate Accountability', Paper New York University School of Law, 2009, at: http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context= christen_broecker, accessed on 12 August 2010; European Parliament, News, European Parliament Report Proposes Human Rights Global Governance of Businesses', 18 May 2009, at: http://www.globalgovernancewatch.org/on_the_issues/european-parliament-report-proposes-human-rights-global-governance-of-businesses, accessed on 12 August 2010.
Presentation by Ruggie, Conference 'Business and Human Rights' (1 December 2008), Wassenaar, the Netherlands, at: http://www.oesorichtlijnen.nl/wp-content/uploads/Uitnodi-ging%20bedrijfslevendag.pdf and http://www.minbuza.nl/dsresource?objectid=buzabe-heer:59586&type=pdf, accessed on 19 May 2010; Dutch Department for Foreign Affairs, '2008 Rapportage over de uitvoering van de mensenrechtenstrategie: Naar een menswaardig bestaan' [2008 Report on the Implementation of human rights strategies 'To a decent existence'], 27 March 2009, at: http://www.tweedekamer.nl/images/31263-27bijla-ge_tcm118-185145.pdf, accessed on 12 August 2010. This approach aligns with the idea that governments, business and civil society should operate as a partnership, an idea elaborated upon in the Earth Charter, which reads under 'Universal Responsibilities' [Preamble]: 'to realize these aspirations, we must decide to live with a sense of universal responsibility, identifying ourselves with the whole Earth community as well as our local communities.' Supra note 2 [§ 80].
E.g. Misereor/The Global Policy Forum Europe, 'Problematic Pragmatism - The Ruggie Report 2008: Background, Analysis and Perspectives', June 2008, at: http://www.cidse.org/uploadedFiles/Publications/Publication_repository/policy_paper_Misereor_background_ Ruggie_report_june08_EN.pdf, accessed on 12 August 2010. Their general reaction to the Ruggie Report is: 'Thus Ruggie's reports 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. Although John Ruggie repeatedly stressed that he rejects any legally binding instruments to regulate companies at global level, because (i) treaty-making can be 'painfully slow'; (ii) a treaty-making process 'risks undermining effective shorter-term measures to raise business standards (. )', and (iii) serious questions remain 'about how treaty obligations would be enforced''. See also: C. Ochoa, American Society of International Law, ASIL Insights - Vol 12, No. 12, 18 June 2008, at: http://www.asil.org/insights080618.cfm, accessed on 12 August 2010; Amnesty International, Submission to the Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and other Business enterprises, July 2008, at: http://www.amnesty.org/en/library/asset/IOR40/018/2008/en/fa1 e737c-6ad9-11 dd 8e5e43ea85d15a69/ ior400182008en.html, accessed on 12 August 2010.
According to Ruggie, globalisation whereby the scope and impact of economic activity are global, as opposed to still mainly state-based law systems, has resulted in governance gaps' concerning business and human rights. The background of these governance gaps' can be found in the practice that international human rights treaties and the bodies established by them are apparently not sufficiently focussed on the role of companies in relation to human rights. These gaps "create the permissive environment within which blameworthy acts by corporations may occur without adequate sanctioning or reparation."1 How to narrow and ultimately bridge the governance gaps in relation to human rights is what Ruggie sees as our fundamental challenge. From a human rights law perspective, however, these gaps have been referred to as 'accountability gaps', i.e. that corporate conglomerates need not account for their worldwide activities against the same standards everywhere.2 Ruggie, though, chooses to refer to them as governance gaps' in order to emphasise that the current systemic problems can only be solved when governments, companies and civil society accept their common responsibilities in realising global governance.3 His approach aspires to find pragmatic solutions supported by those actors who have to implement them in daily practice rather than to initiate a new legal path that can theoretically close the legal gaps (e.g. by proposing an international human rights treaty imposing duties directly on companies). The latter approach may take many years to become effective and enforceable; if the required international political support can be acquired at all. Criticasters of Ruggie's approach do not agree with him, and allege that his report only encourages ' good' companies to use due diligence but that it will not bring any change in respect of 'bad' companies' practices.4
In sum, the reality that compliance with human rights standards by business actors has not been effectively incorporated in human rights instruments can be considered a gap. Ruggie's framework intends to fill this gap by guiding companies on how to respect human rights. He relies on CSR as a tool to achieve this.