"The End of the Beginning?": A Comprehensive Look at the U.N.'S Business and Human Rights Agenda from a Bystander Perspective
Amerson, Jena Martin, Fordham Journal of Corporate & Financial Law
With the endorsement of the Guiding Principles regarding the issue of business and human rights, an important chapter has come to a close. Beginning with the then U.N. Secretary-General's "global compact" speech in 1999, the international legal framework for business and human rights has undergone tremendous change and progress. Yet, for all these developments, there has been no exhaustive examination in the legal academy of all of these events; certainly there is no one piece that discusses or analyzes all the major instruments that have been proposed and endorsed by the U.N. on the subject of business and its relationship with human rights issues. This Article attempts to fill that gap. By documenting the rise and development of Transnational Corporations as potential subjects under international law, the Article will help to provide a comprehensive overview of the issues concerning Transnational Corporations and businesses for the last twelve years. In addition, by examining the Guiding Principles through the lens of bystander rhetoric, this Article hopes to point the way forward to the next phase in developing a meaningful accountability structure for TNCs under international law.
Ruggie has gone to great lengths to analyze the environment in which multinational corporations operate today, particularly what he calls 'governance gaps' or 'weak governance zones' - areas where few of the underpinnings of law and order exist. "This authority vacuum, or governance gap, often leads responsible companies to stumble when faced with some of the most difficult choices imaginable, or to try and perform de facto governmental roles in local communities for which they are ill-equipped. Less responsible firms take advantage of the asymmetry of power they enjoy to do as they will.1
On June 16, 2011, the U.N. Human Rights Council unanimously endorsed2 the Guiding Principles on Business and Human Rights ("Guiding Principles" or "Principles").3 With its vote to endorse these principles, an era of seismic shifts regarding business and human rights came to an end. In a matter of twelve years, the landscape of international human rights law changed dramatically. In this time frame, Transnational Corporations ("TNCs") went from lurking in the shadows of the human rights debate, to being placed on the United Nations' center stage, a spotlight firmly fixed upon them.4 Much of that change came at the hand of John Ruggie and his team. Acting as Special Representative5 to the U.N. on business and human rights6 issues from 2005-201 1, Ruggie analyzed the problems that plague TNCs regarding human rights issues and set forth his proposal to help solve the problem.7
However, while Ruggie' s work is transformational, it is still incomplete.8 The Guiding Principles are significant, but they are nonbinding. Victims of human rights abuses who lack the means of redress in their domestic sphere are still largely unable to turn to international law in order to hold TNCs accountable for their role in the abuse. This can lead to significant human rights abuses left unchecked, particularly in weak governance zones, where the State itself either perpetrates the abuse or is unwilling to stop the aggressor. While many are hopeful that Ruggie has laid the foundation in the Principles for future accountability mechanisms, the Principles themselves reject this as an appropriate use of its framework.
Previously, I have proposed a new paradigm for looking at TNCs9 under international law, namely that of a bystander.10 The basis for my proposal was that TNCs employ the rhetoric of the bystander to try to avoid responsibility for human rights violations under international law by confusing and dominating the dialogue on corporate accountability." I maintained that until we find an accountability framework that incorporated the bystander name, TNCs would continue to control the debate regarding their role in human rights abuses and prevent the creation of an accountability framework that incorporates TNCs. …