The American professor John Ruggie, unfortunately deceased this September, was the author, together with a group of experts, of the United Nations Guiding Principles for Business and Human Rights, approved in 2011.
These Principles, no one doubts, were a relevant advance to establish standards of behavior for companies and, above all, for transnationals, wherever they operate. But, yes, by referring to the states their compliance with regulations, as well as the surveillance and sanction instruments, they take them to the framework of Corporate Social Responsibility and voluntariness.
It was the Secretary-General of the United Nations, Kofi Annan, who commissioned the Harvard professor to develop these Principles in 2005, after several previous failures, and it was in April 2008 that Professor Ruggie made public his proposal to fix elements of respect for human rights internationally that are recognized by companies. The discussions and approaches, the search for consensus by governments and economic actors took another 3 years. The achievement of these Principles is not only due to the establishment of responsibilities and correct business behavior, but also to the inclusion in the same text of the claim to ‘mitigate’ and ‘repair’ the damage potentially caused. To do this, they allude to a necessary and prior due diligence that helps with investment decisions and business operation.
From this same propositional tree come, without a doubt, the OECD Guidelines for Multinational Enterprises, assumed by 42 countries (more than its current partners) and the review in 2017 of the Declaration on Multinational Enterprises of the International Labor Organization which, in principle, enjoys a more universal character.
Both in the OECD Lines, as in the updated ILO Declaration, there is an element that expands the operational capacity of the Principles by creating mechanisms according to which an interested party can request mediation or denounce an alleged misconduct of a company –fixed in the Lines or Declaration- before an administrative body, located in the country where the company’s registered office is located.
This represents a clear advance in the face of impunity for those companies that operate in countries with governments with limited capacity to control and punish these alleged misbehaviors or in which an adequate functioning of the human rights regime cannot be expected. But, let’s not forget, the only mechanisms currently operating, those of the OECD, through the National Contact Points (PNC) – in Spain dependent on the Ministry of Industry, Commerce and Tourism-, they are still volunteers. Therefore, the defendant company, in the best of cases, for alleged malpractices, and depending on its ability to lobby a non-independent body, may be affected, if at all, in that there are some lines written in a report that it will be in some corner of the digital cloud and where those affected try to point out these bad corporate practices without receiving any mitigation or reparation for the damage suffered.
Let’s think about the indigenous Guatemalans impoverished among five dams built by Cobra (ACS) that were not consulted, or the palestinians defenseless before the Israeli power that has contracted CAF, GMV and TYCSA to facilitate the transfer and mobility of settlers in the Palestinian Occupied Territories. By the way, Israel is a member of an OECD that claims to uphold international law.
On a certain occasion, and in the OECD itself, we had the opportunity to ask Professor Ruggie, in the framework of a meeting of the TUAC (Trade Union Advisory Committee of the OECD) why it was not included in its Principles (and in the text, then not approved , of the Lines) no reference contrary to business practices of tax avoidance in tax havens, misnamed paradises. He confessed to us that, for the Principles (and the next OECD Guidelines) to see the light, concessions had to be made to governments, even if they publicly stated that they want the best of all worlds. Many of them are co-opted by those big companies.
For all these reasons, noting that the voluntary nature of accessing mediation and following non-mandatory recommendations has a limited path in the face of companies that consciously want to profit from their bad practices, various States, initially Ecuador and South Africa, promoted, listening to the claims of multiple organizations, a binding treaty that, this time, had a complaint mechanism that could oblige, where appropriate, to mitigate and repair the victims for bad business behavior. Such a treatise would be the culmination of Professor Ruggie’s work.
Now, in October, the third draft of a binding Treaty will be discussed within the United Nations Human Rights Council. Since the beginning of the debates on this document, Western governments have opposed it, have tried to dilute it or even question the mandate for its preparation or the one that has effective control and enforcement mechanisms with respect to allegedly infringing companies.
Spain, reluctant to intervene when it has been a member of the Council, has the opportunity to build, together with the other members of the European Union, a coherent norm that strengthens governance in accordance with the Sustainable Development Goals, which are both claimed as the basis of its performance.