United Nations Special Representative of the Secretary-General on business & human rights
These “Foundation” pages explain the corporate responsibility to respect human rights so participants have the necessary background to engage constructively in the sections that follow. This section does not have discussion questions like the other sections do, but readers are welcome to add comments and reactions.
Updated 5 April 2010
In June 2008, the Human Rights Council welcomed the "Protect, Respect, Remedy" framework that the Special Representative proposed, affirming that there is a corporate responsibility to respect human rights. The corporate responsibility to respect human rights means to avoid infringing on the rights of others, and addressing adverse impacts that may occur.
The term “responsibility” to respect, rather than “duty,” is meant to indicate that respecting rights is not an obligation current international human rights law generally imposes directly on companies, although elements may be reflected in domestic laws. At the international level it is a standard of expected conduct acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility.
Companies may undertake additional human rights commitments for philanthropic reasons, or to protect and promote their brand; operational conditions may dictate additional responsibilities in specific circumstances; and contracts with public authorities for particular projects may require them. In other instances, such as natural disasters or public health emergencies, there may be compelling reasons for any social actor with capacity to contribute temporarily. Such contingent and time-bound actions by some companies in certain situations may be both reasonable and desirable.
But the proposition that corporate human rights responsibilities as a general rule should be determined by companies’ capacity, whether absolute or relative to States, is troubling. On that premise, a profitable company in a poor country could find itself called upon to perform ever-expanding social and even governance functions—lacking democratic legitimacy, diminishing the State’s incentive to build sustainable capacity, and undermining the company’s own economic role and possibly its commercial viability. Indeed, the proposition invites undesirable strategic gaming in any kind of country context.
In contrast, the corporate responsibility to respect human rights exists independently of States’ duties or capacity. It constitutes a universally applicable human rights responsibility for all companies, in all situations.
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Agreement: 5 8
The SRSG has done and continues to do important work in conceptualising the responsibilities of corporations for the realisation of fundamental rights. However, the notion that companies only have a responsibility to respect fundamental rights is a severe curtailment of the responsibilities that corporations should (and in my view do) in fact have for the realisation of fundamental rights. The notion that due diligence involves a positive responsibility is limited: ultimately, it involves positive duties to guard against harms. But, what about active duties to assist in the realisation of fundamental rights? The SRSG claims that these are 'voluntary' or a matter of 'philanthropy'. But, consider, for instance, the case of pharmaceutical companies seeking to deny HIV drugs to the those who cannot afford them: is the reduction in price to an affordable level simply a matter of voluntariness? Are we simply to allow hundreds of thousands of individuals to die if these companies lack the philanthropic will? The lack of resources of so many in our world together with the capacity of corporations to improve their lives provides a strong case (obviously this is a very brief intervention and there are several grounds on which to defend this) for extending the duties of corporations beyond simply a responsibility to respect. This is something also of particular importance to developing countries where often state capacity is not sufficient alone to realise rights and a collaborative approach is necessary. The responsibility to respect either needs to be extended to include these duties or an additional component added to the framework. Naturally, there is a need to consider the limits of corporate obligation: the SRSG's mandate could help in the process of conceptualising this. But without a recognition of wider responsibilities upon corporations, the SRSG's framework is centrally incomplete.
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Agreement: 2 1
That's a very interesting point with highly complicated solutions. If there is a corporate "responsibility" to slash prices for its products because the poor can't afford them, who sets those prices? The company itself? Will the company set different prices depending on the country's need? Will it develop an Office of Price-Setting? Would we (to say nothing of governments) be comfortable giving companies so much power?
This seems like one of the ideal cases where governments and NGOs could work together (with the strategic use of foreign and domestic media) to shame a company into doing something to promote the right to health. It has been successful (albeit slow) in several countries to date, and it acknowledges that the company won't be able to singlehandedly tackle the extremely complex problem.
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Agreement: 3 0
While I agree with the urge to make the prescriptive statement that companies, due to their resources and scope, are obliged to do more in assisting in the realisation of fundamental rights, I believe it needs to be unpacked a bit more. While there is certainly no shortage of countries who lack resources and effective human rights promotion and protection, I'm still not entirely convinced that the onus is on a given company, who operates in that country, to pick up the slack. While I agree that there is great opportunity for companies to improve the lives of people, I'm not sure there isa corresponding obligation. Part of this hits a deeper issue which is one relating to the role/definition of a corporate entity. Unlike a government entity whose mandate is to primarily advance the public good and is accountable to the public, a company is in business to make a profit and is primarily accountable to their shareholders. Not to say that companies can't take responsibility for their human rights impacts because they can and are increasingly do, but that is not the sole purpose of why they are in business, to promote human rights and democracy. Though, some may argue that human rights and democracy promotion should be a requirement of a company’s incorporation, I will not take that up here. However, I do recognize that corporate culture is changing and companies, more than ever, have to justify their social license to operate. In addition, I believe there is a place for collaboration as I agree that very often state capacity alone is insufficient. But mutually beneficial collaboration is different than companies playing a similar role as government.
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Agreement: 3 0
I would agree with the comment made directly above – here there is a need to distinguish between what we may wish companies to do, and what they are obligated to do. International law does not currently impose these types of direct human rights obligations on companies (although evolutions in international criminal law relating to the prohibition of certain types of heinous conduct are to be watched). A key contribution of the SRSG was to move the discussion beyond this voluntary v. regulatory debate. Instead of an obligation grounded in international law, companies can be obliged to satisfy certain obligations to justify their social license to operate. In addition, these expectations are gradually being reflected in national laws as well as voluntary initiatives which companies sign up to. As the SRSG set forth in one of his prior reports, the more companies sign up to these voluntary stakeholder initiatives which increasingly provide for enforcement mechanisms, the more the boundary between what is legally required of them and what is not becomes blurred. The SRSG is demonstrating to companies what their baseline responsibility is, i.e. what they absolutely should not be doing, which is different to demonstrating to companies what they can do to go beyond and assist in the fulfillment of human rights. The UN Global Compact for e.g. emphasizes ways in which companies can support and promote human rights.
Going beyond what is legally provided for could have a range of unintended consequences, such as prompting companies to reject participation in the business and human rights movement or spurring states to neglect their human rights responsibilities on the assumption that the private sector will pick these up. While of course companies have a vital role to play in realizing human rights, the notion that “can implies ought” is problematic.
To conclude on the question: “Are we simply to allow hundreds of thousands of individuals to die if these companies lack the philanthropic will?” Technically (and sadly), yes. This is not a duty that weighs on companies but on the governments responsible for their citizen’s health. However, again, there is a distinction between what is legally required and what can be expected of companies. Consider for example the number of recent initiatives which provide incentives to the private sector to participate in providing vaccines to the poor. In the Advance Market Commitment initiative for example (World Bank, GAVI Alliance, Gates Foundation), governments help spur pharmaceutical companies to create vaccines for the poor by guaranteeing to pay a certain price for the vaccines. Although this is not changing a company’s responsibility under the law, these types of initiatives are changing how one views the role of these pharmaceutical companies in the provision of global goods and the fulfillment of human rights.
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Agreement: 0 5
I think there is worldwide consensus on corporate duty to respect fundamental human rights. UN regulations actually exist in that sense (ECOSOC 2003: http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.12.Rev.2.En) but are not enforced!
I believe the matter on enforcing regulations on transnational businesses is central. Their power and scope went so global that they are virtually unreachable for regulators and hence, regulators came to involve them in the regulatory process, notably through partnerships and codes of conduct... If you cannot constrain global corporations, work with them!
The point is that becoming socially responsible might affect positively the economic performance of the corporation. An impled effect would be a shift in the purpose of corporations, they would become not only responsible for providing profits to their shareholders, but to all stakeholders, that is society at large, first by interest, ultimately by purpose!
The shift towards shaping the social role of corporations might need a step in promoting instrumental reasons for responsible business.
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Agreement: 3 0
My comment refers to the comment above. I would like to make a correction in your statement regarding the current existence of UN regulations on the corporate duty to respect human rights. The Commission on Human Rights rejected the Draft Norms in 2005 that you refer to, saying that they had some helpful elements but no further action should be taken on their basis. This in fact was the whole basis for John Ruggie's mandate -- to bring clarity to the responsibilities of business, which the Norms failed to do (for reasons Ruggie outlined in his 2006 report).
Furthermore, I would also add that the work of the Ruggie mandate has become one of the most widely referenced set of guiding principles in business and human rights, particularly the Corporate Responsibility to Respect.