Response and Comments on John Ruggie S Guiding Principles for the Implementation of The

Response and Comments on John Ruggie’s Guiding Principles for the implementation of the United Nations ‘Protect, Respect and Remedy’ Framework.

Introduction

1. John Ruggie’s ‘Guiding Principles for the implementation of the United Nations ‘Protect, Respect and Remedy’ Framework’ [‘Guiding Principles’] provide an attractive road map to the increased accountability of business enterprises for human rights abuses and corporate related harm. However beneath the rhetoric there is little suggestion as to what kind of legal framework is necessary to ensure that business enterprises comply with their international human rights obligations; nor is there any clear indication of how States can enforce such obligations. Those principles pertaining to the corporate responsibility to respect are similarly vague; other than human rights due diligence (which is covered in detail under the Corporate Responsibility to Respect Pillar) it is not clear precisely what it is that the Guiding Principles compel business to do.

Response

2. This response examines what forms of direct legal pressure may be applied to business enterprises to ensure that they comply with their international human rights obligations. It focuses on the role that domestic corporate regulation can play in the effective implementation of the United Nations ‘Protect, Respect and Remedy’ Framework (“the PRP Framework”) and in particular on developments in business enterprises’ disclosure and reporting obligations. It examines how a business enterprise’s failure to comply with the duty to respect human rights is a material factor that should be disclosed to both shareholders and consumers. 3. In the introduction to his Guiding Principles John Ruggie sets out one of the main obstacles to holding business enterprises legally liable for human rights violations committed abroad:

‘ At present, States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and / or jurisdiction. But nor are they prohibited from doing so provided there is a recognised jurisdictional basis and that the exercise of jurisdiction is reasonable. Nevertheless, within this permissible space, States have chosen to act only in exceptional cases, and unevenly.1’

4. Despite this problem the Guiding Principles place a duty firmly on States to take steps to: ‘encourage business enterprises domiciled in their territory and / or jurisdiction to respect human rights throughout their global operations, including those conducted by their subsidiaries and other related legal entities.2’ They recognise that corporate law can play an important role in achieving this objective and that States should ensure that the laws and policies that govern the creation and ongoing operation of business enterprises do not constrain but enable business respect for human rights3. The Guiding Principles give a number of suggestions as to how companies can be encouraged to respect human rights. These include:

i. Business enterprises provide adequate communication on their human rights performance; ii. Financial reporting requirements should clarify that human rights impacts in some instances may be “material” or “significant” from the investors’ point of view and indicate when they should be disclosed4. iii. Those agencies that finance business enterprise perform their task with the same exacting scrutiny and awareness of human 1 Ruggie, John. “Guiding Principles on the Implementation of the United Nations Protect, Respect and Remedy Framework, p.2. 2 Guiding Principle 2. 3 Guiding Principle 5. 4 Guiding Principle 5. rights impacts as any other business enterprise.5 iv. Business enterprises undertake clear policy commitments to respect human rights and should include consistent internal monitoring of their activities including ongoing human rights due diligence6; v. Businesses should be prepared to communicate publicly on their response to actual and potential human rights impacts when faced with concerns of relevant stakeholders7 vi. When businesses operate in countries where national law is weak they continue to observe international recognised human rights instruments8.

5. As stated above John Ruggie identifies the difficulty States have in imposing extraterritorial jurisdiction over actions committed abroad by companies domiciled within their territory. In his earlier work he drew a distinction between the use of domestic measures with extraterritorial implications and the exercise of direct extraterritorial jurisdiction over private actors or activities abroad. Examples of the former include, ‘asking locally incorporated parent companies to take certain steps in relation to the management of foreign subsidiaries. Other methods involve the use of reporting obligations, or import or export controls, and taking steps to monitor and reduce risks associated with projects requiring export assistance. These measures can be highly influential in relation to private foreign conduct.9’ Examples of the latter include international approaches to areas such as anti-corruption, money-laundering, some environmental regimes and child sex-tourism, many of which proceed by way of multilateral agreements10. The United Kingdom’s Bribery Act 2010 is one example of a domestic measure that asserts extraterritorial jurisdiction over the actions of private actors abroad.

5 Guiding Principle 8. 6 Guiding Principle 14. 7 Guiding Principle 19. 8 Guiding Principle 21. 9 Zerk, Jennifer. Extraterritorial Jurisdiction: Lessons for the Business and Human Rights Sphere from Six Regulatory Areas. Jennifer Zerk Consulting, June 2010, p5. 10 See n.1, p.2. 6. The use of domestic measures with extraterritorial implications is generally thought to be less controversial than assertions of direct extraterritorial jurisdiction. This is presumably because they focus on acts or persons at home and pose less of a threat to States' political and legal sovereignty. This paper suggests that using domestic company law to impose stringent reporting and disclosure requirements on companies domiciled within a state would be an appropriate way to implement some of the recommendations made in the Guiding Principles and would help to fill some of the conspicuous accountability gaps.

7. Recently the United States of America amended their Securities and Exchange Commission Act 193411 (“the 1934 Act”) to impose obligations on the extractive industries to disclose payments made to foreign governments and to make those payments public by way of an annual report. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“the 2010 Act”) which amended the 1934 Act was signed into law on July 21 2010. The precise detail of the disclosure requirements are yet to be fully particularised by the Securities and Exchange Commission but the broad obligations now contained in s.13(q) of the 1934 Act are as follows:

‘ each resource extraction issuer to include in an annual report of the resource extraction issuer information relating to any payment made by the resource extraction issuer, a subsidiary of the resource extraction issuer, or an entity under the control of the resource extraction issuer, to a foreign government or the Federal Government for the purpose of the commercial development of oil, natural gas, or minerals including, i. the type and total amount of such payments made for each project of the resource extraction issuer relating to the commercial development of oil, natural gas, or minerals; and ii. the type and total amount of such payments made to each government’

11 S.13(q) of this was amended by The Dodd-Frank Wall Street Reform and Consumer Protection Act on July 21 2010. 8. The 2010 Act also amends the obligations on those companies regulated by the SEC and for whom conflict minerals are necessary to the functionality of a product. S.13(p) asks that:

Those persons disclose annually […] whether conflict minerals that are necessary as described in paragraph 2B […] did originate in the Democratic Republic of Congo or an adjoining country and, in cases in which such conflict minerals did originate in any such country, submit to the Commission a report that includes, with respect to the period covered by the report –

(i) a description of the measures taken by the person to exercise due diligence on the source and chain of custody of such minerals, which measures shall include an independent private sector audit of such report submitted through the Commission that is conducted in accordance with rules promulgated by the Commission in consultation with the Secretary of State; and (ii) a description of the products manufactured or contracted to be manufactured that are not DRC conflict free (‘DRC conflict free’ is defined to mean the products that do not contain minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of Congo or an adjoining country), the entity that conducted the independent private sector audit in accordance with clause (i), the facilities used to process the conflict minerals, the country of origin of the conflict minerals, and the efforts to determine the mine or location of origin with the greatest possible specificity.

9. The report required by s.13(p) is to be made available to the public on the internet. It is not clear precisely what consequences will flow from a failure to file a report with the SEC however the SEC does have the authority to bring civil and criminal prosecutions for failure to comply with its regulations. This recent US legislation is a compelling example of how domestic company law can foster an environment that encourages companies to comply with their duty to respect human rights.

10. It is interesting to note that the primary objective of these recent amendments appears to be providing more information for shareholders and consumers rather than the protection of human rights. The Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”) are a good example, this United Kingdom legislation make it an offence for a trader to make a misleading omission as a result of which the average consumer makes a transaction decision that he would not otherwise have taken (s.6 the 2008 Regulations). A misleading omission is defined as:

(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2) (a) the commercial practice omits material information, (b) the commercial practice hides material information, (c) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

11. It will be interesting to see whether or not this definition can stretch to include a failure to disclose human rights abuses. The 2008 Regulations are relatively recent but the Fair Trade movement and the Kimberly Process Certification Scheme to prevent trade in conflict diamonds are all examples of how domestic legislation used to inform consumers of the origin of any particular product can be used to encourage business enterprises to respect human rights.

12. Domestic company and consumer law provisions which have extraterritorial effect do not attempt to violate another State’s sovereignty. Domestic private law provisions appear to be the most appropriate method of implementing the PRP Framework something that is recognised in Guiding Principle 5 but that is insufficiently fleshed out. Corporate law can be used to impose obligations on companies to report on their impact on human rights abroad particularly in circumstances where such information is material to the interests of shareholders and consumers. It is probable that in Europe such measures will have competition law implications and these will need to be seriously considered by States seeking to impose such stringent obligations.

Conclusion

13. In conclusion the Guiding Principles talk in broad terms about how States should create an environment that encourages business enterprises to respect human rights12 and that they should enforce laws that require business enterprises to respect those rights13 but there is no requirement to create clear, enforceable legal obligations. The Guiding Principles acknowledge the difficulty of regulating the actions of companies operating abroad but fail to offer any possible solutions that rely on anything more than a company’s ability to regulate its own human rights compliance, something that risks becoming a box ticking exercise. This response has attempted to demonstrate that domestic corporate regulation provides an effective mechanism through which to implement Ruggie’s Guiding Principles and through which to overcome some of the hurdles hitherto experienced in the attempt to regulate the actions of companies operating abroad.

Katherine Tyler, Barrister, 9-12 Bell Yard, [email protected] Rachel Chambers, Barrister, Cloisters, [email protected]

12 Guiding Principle 2. 13 Guiding Principle 5.