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: Law at the End of the Day

The U.N. Guiding Principles: Participate in the Online Forum for the Special Representative of the UN Secretary-General (SRSG) for business & human rights.

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There is a great change coming to the regulation of business, especially as it touches on the effects of economic activities on human rights. This change recognizes the extraordinary change in the fundamentals of governance that has been one of the unavoidable consequences of the implementation of the current system of economic globalization. In lieu of a patchwork of domestic legal orders tightly bound within the territorial borders of political states each a "law unto itself" within that territory, governance is now networked. That network extends from the state and the formal structures of law-based systems, a privileged source of rules within the territory it legitimately controls, to international public actors, producing norms addressed to states, and to non-state actors with significant governance authority within the ambit of their operations and communities.

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In a recent essay, my colleague Edward Waitzer described it well.

In our hyper-integrated global economy, corporate performance and resilience is increasingly vulnerable. When things go wrong, reputational risk moves quickly through, and up, supply chains. Activists have learned to leverage this to effect social change ? and corporate leaders are becoming equally adept at managing, rather than being managed by, public expectations.
It?s not surprising that decision-makers ? from courts to legislators, business leaders to institutional investors ? are re-thinking market norms and corporate cultures. Debate is heated about what the values in business should be, and how they can be used to legitimize business activities.
Canada, with its relatively concentrated, resource-based economy and progressive social policies, has focused on sustainability issues, including the corporate responsibility to respect human rights. In March, 2009, a new corporate social responsibility (CSR) strategy was laid out for the Canadian extractive sector (mining, oil and gas). It spelled out concrete measures, including establishment of a CSR counsellor to assist in the resolution of issues arising from activities of Canadian companies abroad.
Development of legal instruments that reflect this reassessment of corporate ?citizenship? and consequential accountability mechanisms is still at a relatively early stage. It is complicated by globalization, which blurs the lines of responsibility and authority, as well as the fact that the foundations of corporate law (such as separate legal personality and limited liability) have historically hindered accountability for corporate actions. (Ed Waitzer, Joining the Global Dialogue on Corporate Social Responsibility, The Globe & Mail, Dec. 24, 2010).

Over the course of the last several years, John Ruggie, as Special Representative of the United Nations Secretary General for Business and Human Rights, has engaged in a great project, to develop a framework within which states, businesses and other entities can order their obligations to engage in behavior sensitive to their consequences for the human rights of individuals and groups. See, Larry Catá Backer, On the Evolution of the United Nations? 'Protect-Respect-Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010. Adopting anapproach grounded in"principled pragmatism", and committed to extensive consultation among all stakeholders, Professor Riggie developed what is now sometimes references as the Three Pillar Framework, is based on a state duty to protect, a corporate responsibility to respect and a joint obligation to remedy abuses of human rights. See id.

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The SRSG pointed to the future in the report submitted in 2010, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Business and Human Rights: Further steps toward the operationalization of the ?protect, respect and remedy? framework, A/HRC/14/27, Human Rights Council, 14th session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development (hereafter the 2010 Report). The conceptual framework developed in earlier reports was to be operationalized through the development of a set of guiding principles. (2010 Report, at ¶ 124). ?The final report also will present options and recommendations to the Council regarding possible successor initiatives to the mandate. ? (Id., at ¶ 125). ?The Special Representative will engage extensively with Member States and others in developing these ideas. Nevertheless, to sustain the momentum the mandate has achieved, he is flagging one recommendation now. ? (Id.).

Institute for Human Rights and Business

The Guiding Principles were distributed in draft form on November 22, 2010 as the Report Of The Special Representative Of The Secretary-General On The Issue Of Human Rights And Transnational Corporations And Other Business Enterprises, John Ruggie, Guiding Principles For The Implementation Of The United Nations ?Protect, Respect And Remedy? Framework, (Draft 22-1-2010). Available , http://www.reports-and-materials.org/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf. ?The Guiding Principles elaborate and clarify for companies, states, and other stakeholders how they can operationalize the UN ?Protect, Respect and Remedy? Framework, by taking practical steps to address business impacts on the human rights of individuals. The UN Human Rights Council had endorsed the Framework unanimously in 2008, and asked Ruggie to provide this additional concrete guidance.? (United Nations, Press Release, Draft Guiding Principles for business & human rights posted for consultation, Nov. 22, 2010. The Guiding Principles were presented as an elaboration of the implications of existing law and normative standards presented ?within a single coherent and comprehensive template.? (Guiding Principles, supra, at ¶13). However, the Guiding Principles were not meant to be treated merely as a tool kit. (Id., at ¶ 14).

Ed Waitzer explains that SRSG Ruggie's

?Guiding Principles? framework brings together social ideals and operational practicalities. It helps to frame, and make operational, an emerging international consensus, starting with the need for states to adopt a more comprehensive approach to address business-related human rights impacts, and to encourage business enterprises to respect human rights.
The blueprint explains how respecting human rights means putting in place policies and processes, appropriate to a business?s size and circumstances, to identify, prevent and mitigate any adverse impacts on human rights which the business might cause or contribute to. It also spells out why it is important that a business articulate its commitment to human rights to all employees, business partners and relevant stakeholders. (Ed Waitzer, Joining the Global Dialogue on Corporate Social Responsibility, The Globe & Mail, Dec. 24, 2010).

The consultation continues. The SRSG has now opened a forum seeking comments to the draft Guiding Principles.

In June 2011, the SRSG will present to the UN Human Rights Council his final recommendations, which will include a set of Guiding Principles for the operationalization of the UN "Protect, Respect and Remedy" framework.
The Guiding Principles elaborate and clarify for companies, states, and other stakeholders how they can operationalize the UN ?Protect, Respect and Remedy? Framework, by taking practical steps to address business impacts on the human rights of individuals. The Human Rights Council endorsed the Framework unanimously in 2008, and asked the SRSG to provide this additional concrete guidance.
The purpose of this forum is to gather feedback on the draft Guiding Principles from a broad range of stakeholders. It will remain open until 31 January 2011, after which the SRSG will submit the final text for translation before presenting it formally to the Human Rights Council at its June session.
How to use this forum
Anyone can read these pages. If you want to post a comment and contribute to the discussion, register and you will receive an activation email. Once you click on the link in the email and sign in, you will be able to post a comment and rate others' comments.
To those who commented in previous phases of the consultation, thank you for your participation. Your comments have been archived, but your accou
nt should still be active. Please contact admin[at]srsgconsultation[dot]org with any technical issues.
For more information about the SRSG, please visit his web portal, which is hosted by the independent Business & Human Rights Resource Centre. (SRSG Consultation web site, Welcome to the online forum for the Special Representative of the UN Secretary-General (SRSG) for business & human rights).

"Anyone involved or interested in the challenges of corporate social responsibility, including governance and accountability, should take part in this crucial global discussion." Waitzer, supra. The Online Consultation is open until January 31, 2011.

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Participate!

Full post as published by Law at the End of the Day on January 01, 2011 (boomark / email).