Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/7.5.2
7.5.2 Ruggie's model for "complementary governance"
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS368297:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Although not very explicit, the same view can be found in the UN Draft Norms and the Commentary, which limit the corporate obligation to protect human rights to 'their respective spheres of activity and influence (see section: 7.4.3 supra). The concept of ' common but differentiated responsibilities is well known in the fields of international environmental law and sustainable development. See e.g. A. Hildering, International Law, Sustainable Development and Water Management (Eburon-Delft, 2004), pp. 35-40, 149150.
Prominent law firms have issued differing legal advices on how to interprete the legal impact of the Ruggie Report: Watchell, Lipton, Rosen & Katz LLP advises their clients that the Ruggie framework would 'impose on corporations the obligation to compensate for the various deficiencies of the countries in which they perform their business'. Martin Lipton & Kevin S. Schwartz of Wachtell, Lipton, Rosen & Katz, 'A United Nations Proposal Defining Corporate Social Responsibility For Human Rights ', 1 May 2008, p. 1; available at: http:// amlawdaily.typepad.com/amlawdaily/files/wachtell_lipton_memo_on_global_business_ human_rights.pdf, accessed on 12 August 2010. On the other hand, Weil, Gotshal & Manges LLP explains to its clients that 'the Special Representative s mandate does not include the ability to impose new binding legal obligations on corporations.' Weil, Gotshal & Manges LLP -'Corporate Social Responsibility for Human Rights: Comments on the UN Special Representative Report Entitled 'Protect, Respect and Remedy: a Framework for Business and Human Rights', 22 May 2008, at: http://amlawdaily.typepad.com/amlawdaily/files/weil_gotshal_response_to_un_report_on_human_rights_and_business_final.pdf, accessed on 19 May 2010. In their view, a due diligence process can only bring issues to the attention of a company, having the effect that a company can avoid liability in the tort of negligence which uses the stricter threshold of reasonable foresight of harm. Due diligence prevents litigation rather than act as a trigger for it. Van Dam, C., 'Launch of the Report of the International Commission of Jurists 'Corporate Complicity & Legal Accountability' (Lecture, London, 28 October, 2008) rightly points out that although John Ruggie's work does not focus on legally binding rules, his work will inevitably have impact on these rules, particularly in the area of due care: 'In this respect, there is no clear line to draw between binding rules of care and voluntary rules of care. The concepts are mutually influencing each other [...]. Moreover, this is a dynamic area of the law in which the standard of due care will evolve with the opinions in society. What was accepted as proper behaviour yesterday can be considered to be negligent behaviour today.'
See e.g. Clapham, supra note 33, pp. 266-270, 317-334 tries to establish direct applicability on the basis of customary international law and human rights treaties' bodies' recommendations; Clapham, Human Rights in the Private Sphere (Oxford: Clarendon Press, 1993), pp. 137-138; Jägers 2002, supra note 68, pp 36-38, 47 grounds this view on the doctrine of ius cogens and/or through the horizontal application of human rights obligations, also known as Drittwirkung; Muchlinsky, supra note 68, pp. 514-518, 536 bases his on ethical business practice. See furthermore: Anna Triponel, 'Business & Human Rights Law: Diverging Trends in the United States and France',in AM. U. INT'L L. REV., 2008, pp. 856-912.
Outlined by e.g. J. Abrisketa, 'Blackwater: mercenaries and international law',in Fride Comment, October 2007, at: http://www.fride.org/descarga/blackwater.english.pdf, accessed on 12 August 2010; P.W. Singer 'War, Profits, and the Vacuum of Law: Privatized Military Firms and International Law,' in Columbia Journal of Transnational Law, Vol. 44, No. 2,2004, pp. 521-549.
Doe v. Unocal, supra note 76: Unocal argued that the laws of Myanmar were applicable. Also, Shell argued that the Dutch court was incompetent in The Hague District Ct., Oguru, Efanga, Vereniging Milieudefensie v. Shell, The Hague District Ct, the Netherlands, (Doc. No. 2009/0579), 'Incidentele conclusie houdende exceptie van onbevoegdheid, tevens voorwaardelijke conclusie van antwoord in de hoofdzaak' [writ arguing forum non conveniens and defence by Shell] of 13 May 2009 (defence by Shell) under IV.7, available at: http://www.milieudefensie.nl/globalisering/activiteiten/shell/the-people-of-nigeria-versus-shell, accessed on 12 August 2010. With regard to enforcement, see also the ! report of the Dutch Social Economic Council, 'Duurzame globalisering: een wereld te winnen' [on sustainable globalisation: a world to be won], SER Advisory Report, 2008-06E, p. 41, available at: http://www.ser.nl/~/media/Files/Internet/Talen/Engels/2008/2008_06/ 2008_06.ashx, which records about the difficult access to labour law lawyers in China.
Castermans, A.G., Van der Weide, J.A., 'De juridische verantwoordelijkheid van Nederlandse moederbedrijven voor de betrokkenheid van dochters bij schendingen van mensenrechten, arbeids-, of milieunormen in het buitenland [the legal responsibility of Dutch holding companies for complicity of subsidiaries in regard of human right abuses, violations of labour and environmental norms], 15 December 2009, available at <http://www.p-plus.nl/beelden/ castermans.pdf. An English translation is available at: https://openaccess.leidenuniv.nl/bit-stream/1887/15699/2/ENG+NL+report+on+legal+liabilityof+parent+companies+(transl+31 +May+2010).pdf, accessed on 12 August 2010; and Enneking, supra, note 68, pp. 910-913; Enneking, supra note 68, pp. 910-913.
Ruggie 2008, supra note 3 [§ 55].
The Ruggie Report proposes to use a principle-based policy framework which rests on the concept of 'common but differentiated responsibilities for the social actors, i.e. States, companies and civil society.1 The framework mainly focuses on three founding principles: Protect, Respect and Remedy. These concepts are also used in human rights law and the UN Draft Norms, as has become apparent in section 7.4. These three principles or pillars are said to form a complementary whole in that each actor supports the others in achieving progress. The second pillar will be portrayed in this section.
Although the human rights regime "rests upon the bedrock role of States", the Ruggie Report stresses that companies have the responsibility to respect human rights, independently of States' duties. Whereas the State has a 'duty' to protect, Ruggie indicates that companies have a ' responsibility to respect. The difference between a duty, i.e. a legal obligation derived from being party to international human rights conventions, and responsibility, which can only be considered a semi-legal or moral obligation, is remarkable.2 It underlines that Ruggie did not wish to take a stance in the ongoing discussion regarding the question whether international human rights treaties apply to companies. Human rights lawyers typically argue that the norms captured in those treaties do apply.3 Companies on the other hand, predictably take the stance that since companies are not parties to human rights treaties, the obligations set out therein have no direct application to them and are a concern of governments.4 Lack of jurisdiction under international treaties to try a company does not mean that a company is under no (international) legal obligation regarding human rights compliance. Beyond dispute is the fact that national laws can impose obligations of a human rights nature on companies (e.g. the examples mentioned in section 7.4.3 supra). Introducing national laws can be part of the State duty to protect. A failure to respect such laws can subject a company to domestic jurisdiction. In case of corporate-related human rights abuse, the question emerges which national law system is applicable: the host country s system or the multinational s home country? Another question is whether the applicable legal system offers adequate access to justice and remedies to victims of the violations?5 These questions relate to the remedy pillar. They are difficult to answer, and are part of current studies and of discussion between policy makers and legislators.6 But, as noted, Ruggie is not looking to become an arbiter in legal-theory disputes.
Interestingly, although the Report states that companies have a responsibility to respect human rights rather than a duty, it specifically explains that besides doing 'no harm', respecting human rights also entails to take 'positive steps'. The same approach was noted in section 7.4 supra in respect of the state duty to protect against human rights violations. States are also expected to employ proactive behaviour when it comes to protecting citizens against human rights violations by third parties, and, as recent case law shows, to preventing violations. Positive steps can, for example, imply that a company adopts a specific recruitment and training programme to implement anti-discrimination policy in a workplace.7 In general, performing a due diligence exercise is depicted as a pre-condition and therefore a pivotal instrument for companies to realise their respect for human rights. The next sections will go into more detail on this corporate due diligence aspect.