It is well known that not only states commit human rights violations. Private entities, including corporations, do too. What is less known, is that the international legal system that was once a safe haven for corporations involved in human rights violations is undergoing a spectacular revolution.

In a vigorous discussion held by the International Commission of Jurists (ICJ) on 21 June at an event parallel to the UN Human Rights Council's 20th regular session in Geneva, expert panelists explored ways of further enhancing businesses' human rights responsibilities.

The ongoing case of Kiobel v Royal Dutch Petroleum Company[1] is only one of the numerous lawsuits that have been brought against multinational corporations before US courts over the last couple of years. In parallel to this movement, the "Guiding Principles on Business and Human Rights" were endorsed by the UN Human Rights Council in its resolutions 17/4 on 16 June 2011.

The principles are the product of six years' research led by Professor Ruggie of Harvard University, involving governments, companies, business associations and civil society around the world. The "Corporate Responsibility to Respect" principles provide a blueprint for companies on how to know and show that they are respecting human rights. The "Access to Remedy" principles focus on ensuring that where people are harmed by business activities, there is both adequate accountability and effective redress, judicial and non-judicial.

Professor Andrew Clapham (Geneva Academy of International Humanitarian Law and Human Rights) noted that according to Ruggie's own interpretation of the Guiding Principles, human rights recognized under customary law do bind corporations - contrary to the oral argument presented by Shell in the Kiobel case. There would thus be no obstacle to corporate liability under international law for serious violations of human rights such as genocide, torture and crimes against humanity. 

Michael Addo (Working Group on the issue of human rights and transnational corporations and other businessenterprises) said that we should look at corporate responsibility from the perspective of the duty of states to protect. He emphasized the importance of evidence (in the form of human rights treaties and other sources of international law), multilateral consultations and a common understanding in order to achieve an effective framework for corporate responsibility.

The fact that the Guiding Principles are not legally binding does not mean they will not be effective. They are designed to promote good practices for the management of human rights by companies and to advise governments on the development of domestic legislation and policies relating to business and human rights.

As Professor Clapham pointed out, multinational corporations involved in human rights violations not only face a risk of litigation but also non-legal threats such as withdrawal of investment and adverse reactions from the public at large due to negative publicity. Publicizing corporate conduct by 'naming and shaming' can make it impossible for multinationals to find new contracts as states do not want to be seen as endorsing their practices.

Harriet Berg (Norwegian delegate to UNOG and former Head of Group Governmental Relations at Telenor) stressed the importance of predictability and level-playing-fields for businesses. International financial institutions and banks now often require companies to have guidelines on their human rights policy before granting them loans, and the fact that over 400 companies endorse the Principles make them a powerful, global, instrument.

Some have expressed concerns that companies can avoid their human rights obligations in one country by relocating their business to other countries with less stringent policies. Addo noted that such conduct could, however, be countered by states with legislation regulating the extraterritorial activities of companies within their jurisdiction.

Considering the issue from the point of view of businesses, Ms Rachel Groux-Nurnberg (Statkraft AS, Norway) focused on the integration and implementation of human rights instruments by corporations. She noted that for human rights to be respected by corporations, there need to be uniform expectations among them. A duplication of instruments undermines their effectiveness, as businesses tend to opt for the lowest common denominator. Their obligations must be clear, so that regulation in the form of legislation or codes of conduct is effective. In this regard, the Guiding Principles provide a clear framework for governments and businesses to adopt adequate standards.

However, there might be gaps to be filled as different sectors may require more specific regulation, for example the regulation of arms in private security companies. Hence the added value of detailed corporate codes of conduct.

The Guiding Principles thus provide the necessary impetus for states to adopt legislation allowing the prosecution of corporations for HR violations. It remains to be seen how rapidly this shift will occur across the globe, as emerging countries tend to shy away from imposing stringent human rights obligations on companies in order to attract investors. But if a majority of states and businesses take the necessary steps for corporate responsibility to become the rule rather than the exception, the future of human rights looks bright.

[1] Class action seeking relief for crimes against humanity, including torture and extrajudicial executions, committed with defendants' assistance and complicity between 1992 and 1995 against the Ogoni people of the Niger Delta.

(Photo © DR)