Rights as Usual

This post is by Carlos Portugal Gouvêa, Associate Professor at the University of São Paulo Law School.

In 2008, John Ruggie introduced the “Protect, Respect, and Remedy” framework (hereinafter “BHR Framework”), a significant contribution to the Business and Human Rights (BHR) discourse. However, its efficacy has proven to be limited, as it has struggled to foster regulation capable of successfully tackling systemic human rights violations. I attribute this impediment to two main limitations of this framework: the adoption of a “best practices” approach and the divide between public and private. This post revisits the BHR Framework to highlight the shortcomings of this framework and proposes a new approach to address persistent challenges in BHR. My argument here is that to fully address systemic human rights abuses, first, a new paradigm for BHR needs to recognize the role of non-profits, breaking from the simplistic public-private divide adopted in the BHR Framework and Principles. Second, the “best practices” approach should be abandoned in favor of a regulatory approach that only commends practices if major human rights violations are eliminated. In summary, human rights violations represent such egregious acts that best efforts cannot be regarded as success, and regulatory efforts aiming to successfully prevent such acts must consider the role of non-profits and other monitoring bodies. 

The limits of the BHR Framework and Principles

The public and private divide

The late 1990s and early 2000s saw intensified UN discussions on corporate human rights responsibilities, culminating in 2003 with draft norms stating that companies bear obligations similar to what states have under international human rights treaties. To further investigate this topic, in 2005, Kofi Annan appointed John Ruggie as the Special Representative on human rights and transnational corporations. Seeking common ground among stakeholders, Ruggie developed the BHR Framework, which emphasized the following:

1. State Duty to Protect: States must protect against human rights abuses from corporate entities through policies, regulation, and adjudication.
2. Corporate Responsibility to Respect: Companies should avoid infringing on human rights and address adverse impacts.
3. Access to Remedy: Victims should have access to effective judicial and non-judicial remedies.

Nevertheless, the BHR framework fails to transcend the liberal public-private divide, as it replicates this traditional distinction in its three-pillar paradigm. This model positions states and corporations as actors with different responsibilities for upholding human rights, while insufficiently acknowledging the crucial monitoring role of civil society organizations in contemporary societies. In classic liberal thinking, such as in Hobbes or Locke, civil society is regarded as a unified body, which is controlled by and limits the government’s power. However, in modern societies, while on the one hand it is not possible to deny the political power of traditional corporations, superseding many nations in terms of budget, access to information, and technology, it also cannot be denied that non-profit organizations, particularly those focused on human rights and social justice, have risen to prominence and achieved levels of influence that are only equivalent historically to the influence of religious organizations.

Since the endorsement of the BHR Principles, there has been a rise in discussions on global governance and the interplay between governments, companies, and stakeholders. Contributing to these discussions, John Ruggie introduced his polycentric governance approach, recognizing that corporate conduct is shaped by three spheres of governance – public law and government, corporate governance, and civil governance involving stakeholders affected by business. However, this model links the civil society governance system to the BHR Framework’s third pillar, focused on victims seeking remedy. Thus, it does not properly encompass the contribution of non-profit organizations with a broader scope of action, not directly or solely linked to the victims. It also puts civil society organizations in the passenger seat, since the “remedy” pillar is highly dependent on governments to actually provide the legal remedies that can be used by victims. Moreover, it still falls short in considering a more active role of civil society, not only acting in a consulting role or merely seeking remedy for violations, but also acting as a monitoring tool. 

Similarly, Melish and Meidinger identify an accountability gap in Ruggie’s model. Pointing out the variety of ways in which civil society organizations play a crucial role in holding businesses accountable, they suggest a fourth pillar called “Participate”. Still, this pillar does not accurately convey the potential of civil society organizations in a BHR paradigm.  Mere participation puts civil society in a limited position since participation of civil society is usually understood as also having a merely consultative status. Following the old saying that power is not given, it is taken, the fourth pillar shall focus on a power that civil society organizations have independently from any space given by governments or companies for their “participation”.

David Kennedy has already clarified that the view of the human rights movement as “powerless” is incorrect. Large international non-profit organizations exercise substantial power doing what they do best, which is to keep their independence from governments and companies to monitor human rights violations in detail, and speaking when others cannot. Recognizing this role and its importance may create the conditions for other human rights organizations with similar independence to also flourish in developing countries, since, currently, most such organizations originate exclusively from developed countries. The “monitor” pillar should also highlight the protection of human rights activists in developing countries, where the exercise of the “monitoring” function also means that they are putting their lives at risk.

On the one hand, the pillar to “monitor” violations would recognize a power that civil society organizations took over the last decades. On the other hand, the idea that such organizations would have the right to “participate” would encompass the risk of capture of such organizations by governments and corporations, since they would inherently lose their independence if they were called to “participate” in certain projects and approve them, without the actual political or economic power to actually determine the outcome of such projects. The monitoring role of these organizations, which I propose to highlight, better represents the position of such organizations as an external actor responsible for pressuring and holding businesses and governments accountable, as protagonists and leaders of such accountability processes, not mere participants in them.

The limits of the “best practices” approach

Going back to the original BHR Framework, it aimed to integrate human rights into business practices, establishing social norms for companies beyond legal compliance. This framework presents practices, not rules, based on existing standards and initiatives. Later, Ruggie used a similar strategy in his BHR Principles, offering companies a set of recommendations based on “best practices,” blending the human rights discourse with efforts to improve corporate practices post-financial crises of the 2000s. This approach allowed the BHR Principles to be better accepted by the business community, as they were grounded in actual practices of global businesses that suffered reputational damages in the past and responded by creating programs to prevent this kind of exposure from happening again. However, the logic behind these recommended practices was that companies were participating in human rights violations due to the lack of knowledge from all stakeholders of such violations. In reality, many violations occur with full knowledge of companies, investors, governments, and consumers, indicating collusive behavior. Hence, the main issue is neither to implement due diligence of supply chains or create mechanisms for customers and workers to denounce such violations, nor the lack of commitment to human rights. Even companies and governments that have committed to it struggle to implement the BHR Principles in a way that effectively prevents human rights violations.

The limits of the BHR Framework and Principles are clear in cases in which, after one particular trend of human rights violations is well known, well documented, both governments and corporations reach a level of inaction that results in the recognition that all actors tolerate such levels of violation. At such a point, these human rights violations are regarded as systemic. One example of such systemic human rights violations is the pervasiveness of child labor in the cocoa industry in West Africa. On September 19, 2001, representatives of the Chocolate Manufacturers Association and the World Cocoa Foundation signed a protocol as a response to an investigation on the matter by the U.S. Congress. Two decades later, the deadlines proposed by the protocol to reduce the problem were not met and no alternative arrangement was reached. According to the U.S. Department of Labor, “Côte d’Ivoire and Ghana, together, produce nearly 60% of the world’s cocoa each year, but the latest estimates found that 1.56 million children are engaged in child labor on cocoa farms in these two countries”. We do not need any due diligence or mechanisms for governments in consumer markets to better understand the problem. There is no “best practice” to be implemented since there is no asymmetry of information and there is no individual action by a single company or government that may actually solve the problem. The problem has been known for decades. What is lacking is an actual solution, which would necessarily involve several governments, of the largest producing and consuming countries, and the companies that intermediate such markets. Situations like that, in which there is no “best practice” to be followed, despite the fact that problems are very well known, are what I describe as “systemic failures”, because not only corporations failed, but also governments, and their respective “stakeholders”, as consumers or citizens.

A New Paradigm for Business and Human Rights: The Monitoring Pillar

To address these limitations, it is crucial to consider a new model incorporating four pillars:

• Protect: Both states and corporations must safeguard against human rights abuses through comprehensive policies, regulations, and judicial processes.
• Respect: Beyond legal compliance, companies must avoid negative impacts on human rights.
• Remedy: Effective judicial and non-judicial mechanisms must address and rectify human rights abuses.
• Monitor: Strengthening the role of non-profits and other monitoring bodies ensures transparency and accountability.

Integrating these pillars aims to create a more holistic and effective BHR framework, addressing systemic failures comprehensively. This approach aligns with contemporary regulatory theories advocating for shared responsibility in crisis prevention and ensuring that governments, businesses, and civil society organizations contribute to human rights protection. By expressly acknowledging the contribution of non-profit organizations and distinguishing their monitoring activity from affected individuals and communities seeking remedy, this fourth pillar expands Ruggie’s conception of a civil governance system. Moreover, the idea of “Monitor”, rather than Melish and Meidinger’s “Participate”, better expresses the role civil society organizations play.

More specifically, the monitoring pillar recognizes the system’s tendency toward systemic violations and the need for a critical component to denounce failures and propose alternatives. Organized civil society is historically best suited for this role, as the experience after WWII shows that effective human rights protection requires strong, professional, and independent organizations capable of monitoring, documenting violations, and coordinating political action.

Thus, adding this fourth pillar elevates the traditional framework by formally incorporating the role of civil society organizations as a foundational element in holding businesses accountable and ensuring transparency beyond mere compliance. In this new paradigm, civil society organizations are positioned as watchdogs tasked with continuously assessing business policies, practices, and impacts. This new paradigm also recognizes that civil society organizations – drawing on their experience, expertise, and independence – can play a vital and active role in shaping policies. Rather than merely participating as consultants, these organizations can intermediate joint actions between companies and governments to effectively address systemic human rights violations. As mentioned before, another important aspect of the “monitor” pillar is to recognize the work that organizations actually do on the ground, and the price they pay for such important work. One of the potential reasons why human rights organizations thrive in developed countries and struggle in developing ones might not only be related to the relative wealth of their societies. It might also be due to the fact that human rights organizations that operate very close to the place where violations occur more often are also persecuted.

However, monitoring activities must also be subject to regulation to avoid becoming part of systemic failures themselves. As Carolei and Bernaz point out, in the face of the professionalization and proliferation of civil society organizations and their increased importance in holding governments and businesses accountable, there is a growing demand for greater NGO accountability. It is crucial to identify organizations that fail to comply with their monitoring responsibilities, being co-opted by governments or corporations. Hence, not all organizations would be entitled to a seat at the table, only those independent enough to responsibly exercise their monitoring role.

Conclusion

The evolution of BHR requires continuous reevaluation and adaptation. By acknowledging the limitations of existing frameworks and proposing more robust, integrated models, we can better address the persistent systemic failures in protecting human rights within business operations. In summary, this post highlighted two of these limitations and presented a new model incorporating a monitoring pillar that considers the active role of civil society, breaking from the public-private divide, and that helps to ensure companies are indeed implementing effective measures to prevent human rights violations and not merely following existing practices of minimal human rights standards.