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An Instrument that Blurs the Contents of International Human Rights Law?

Ruggie’s work is successful in connecting the language of public international law with the practical discourse of CSR.62 Dressing CSR in international law language may indeed give the illusion of moving CSR beyond voluntary standard, while in fact CSR stays within the realm of voluntary commitments by business enterprises. The UNGPs on business and human rights do not provide any clarification as to what the authoritative dimension of human rights in business might be. The UNGPs simply restate a social responsibility of business via the process of due diligence.[1] [2] [3] [4] As unambiguously explained by Ruggie,

the term ‘responsibility’ to respect, rather than ‘duty’, is meant to indicate that respecting rights is not an obligation that current international human rights law generally imposes directly on companies, although elements may be reflected in domestic laws. At the international level, the corporate responsibility to respect is a standard of expected conduct acknowledged in virtually every voluntary and soft-l aw instrument related to corporate responsibility, and now affirmed by the Council itself.64

In addressing corporate responsibility to respect human rights through the vehicle of a UN instrument, Ruggie needed to render an accurate picture of international human rights law. In consequence the integration of the business human rights responsibility discourse into a UN soft law instrument has inevitably led to the abandonment of any pretence that business enterprises should have actual human rights obligations. The language used by Ruggie inevitably reflects this reality. In parallel with the dichotomy of state duty and business responsibility, the UNGPs consequently implement a distinction between human rights violations committed by states, through actions or lack of action, and the human rights abuses committed by business enterprises. Here the UNGPs refer to actions or lack of action by business enterprises that may amount to a breach of law and engage their civil responsibility and/or in the most serious cases will amount to criminal offences. More precisely, we may talk about human rights-related abuses by business enterprises or human rights impacts, as referred to in several places of the UNGPs. The use of impacts is criticized heavily by Deva, who states that ‘it is by and large uncontroversial that companies can violate human rights’65 and that the word ‘impact’ devalues the importance attached to human rights and the consequences of their violation on a victim. Deva seems to argue that Ruggie chose to depart from a conception of rights that would create legal obligations for both states and non-state actors. Nonetheless, using the language of international law and applying international human rights law thinking to business enterprises, Ruggie had no real choice other than to make the difference between the two categories of commitments (and infringements of these commitments) very explicit.

Although the language of the UNGPs is coherent, there are two main areas where the UNGPs and their subsequent interpretation do create—or maintain—a degree of confusion as to the actual contents and extent of international human rights law.

  • [1] C. Parker and J. Howe, ‘Ruggie’s Diplomatic Project and its Missing Regulatory Infrastructure’, in Mares (2012): 273-301 at 273.
  • [2] Parker and Howe in Mares (2012): 278.
  • [3] 64 Business and human rights: further steps toward the operationalization, Report of the SRSG onthe issue of human rights and transnational corporations and other business enterprises, J. Ruggie,2010, A/HRC/14/27/2010, para. 55.
  • [4] D. Surya, ‘Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and theLanguage Employed by the Guiding Principles’, in Deva and Bilchitz (2013): 96-7.
 
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