THE NEW GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS’ CONTRIBUTION IN ENDING THE DIVISIVE DEBATE OVER HUMAN RIGHTS RESPONSIBILITIES OF COMPANIES: IS IT TIME FOR AN ICJ ADVISORY OPINION?
ABSTRACT: In March 2011, John Ruggie, the UN Secretary General Special Representative on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (“SRSG”) released his final report on Guiding Principles on Business and Human Rights. The new standards proposed by the SRSG are based on three pillars: the state duty to protect, the corporate responsibility to respect and the access to remedy principle. This report was ordered in 2005 by the then UN Commission on Human Rights (now Human Rights Council) in order to “ to move beyond what had been a long-standing and deeply divisive debate over the human rights responsibilities of companies”. This paper argues that while the work of the SRSG has made a significant contribution to the debate on the issue of human rights violations by transnational corporations and other business enterprises, it has done little to offer an “authoritative global standard” solution to the long-standing and deeply divisive debate over the human rights responsibilities of companies. By siding with the traditional view that existing international human rights instruments do not impose direct legal obligations on corporations, and by further stressing that it is not even worth considering adopting new human rights instruments binding on business corporations, his conclusions offered a partial answer that dismisses and closes the doors on views of both those who still see international human rights as containing some hard law provisions that can be used in holding business corporations accountable of their human rights violations, and those who see international law as dynamic and therefore capable to be adapted in order to respond to the growing need to make the respect of human rights by business corporation a “duty” rather than a just a “responsibility”. This paper argues further that limiting the enforcement of the corporate responsibility to respect human rights to general social norms and market expectations, as the SRSG’s work has so far advocated, is not sustainable and offers little to the victims of corporate human rights violations. Until the question of whether international human rights law directly impose legal obligations on business corporations has been authoritatively answered, the divisive debate over the human rights responsibilities of companies is unlikely to end. It is in search for the authoritative global answer that this paper argues for an advisory opinion by the International Court of Justice (“ICJ”) to address this fundamental question of international law.
Jean-Marie Kamatali. "THE NEW GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS’ CONTRIBUTION IN ENDING THE DIVISIVE DEBATE OVER HUMAN RIGHTS RESPONSIBILITIES OF COMPANIES: IS IT TIME FOR AN ICJ ADVISORY OPINION?" Cardozo Journal of International and Comparative Law 20.2 (2012): 437-463.
Available at: http://works.bepress.com/jean-marie_kamatali/1