A gap in the corporate responsibility to respect human rights

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In 2008, Professor John Ruggie, the UN Special Representative for business and human rights, presented his ‘Protect, Respect, Remedy’ Framework to the Human Rights Council. It was well received and his mandate was renewed for another three years. Corporate responsibility is one of the Framework’s three pillars. When applied to a multinational enterprise, questions inevitably arise about what responsibilities the core company has when its affiliates infringe human rights. The principle of ‘do no harm’ on which the responsibility to respect is based adequately covers situations where the core company’s own decisions create negative ripple impacts throughout affiliate operations. However, the same cannot be said about instances in which affiliates infringe rights in the absence of a core company’s own harmful decision. Then the core company is merely associated with abusive affiliates. Even in such a situation, Ruggie rightly proposes that the core company should act with due diligence to prevent and remedy abuses. But what is the foundation upon which the core company’s responsibility to act is based? A close reading of Ruggie’s argument shows that this responsibility rests problematically on an emerging social norm, soft law and notions of non-legal complicity. This article explains why this foundation is inadequate. As a result, the very existence of the responsibility becomes questionable, its legitimacy debatable and the sound due diligence steps that Ruggie proposes less consequential in practice. To address this weakness, this article appeals to negligence jurisprudence to establish a more carefully grounded responsibility to act applicable to core companies. The analysis concludes with implications for the legal institutionalisation of the responsibility to respect in the wake of the SRSG mandate