A Project of the American Enterprise Institute and the Federalist Society

Letter from NGO Coalition to UN John Ruggie

Global Policy Forum

18 May 2006

Dear Professor Ruggie,

We are writing in response to the interim report you prepared in your capacity as the Special Representative of the UN Secretary General on business and human rights. In opening we would like to reaffirm our appreciation of your substantial and continuing efforts to consider business and human rights issues. It is a matter of record that the concerned NGOs fully supported the creation of the Special Representative's mandate as a means of advancing and deepening the discussion about corporate responsibility and accountability. We believe that the goal of strengthening standards of corporate accountability, a key aspect of the Special Representative's mandate, should be met through the adoption of universal standards on business and human rights. We look forward to the final outcome of your study, which, in our view, should make a significant contribution towards realizing this objective. We therefore respectfully call on you, as the Special Representative, to make recommendations to the international community as to the most appropriate and effective means for developing clear international human rights standards for business. To this end, and in a spirit of constructive engagement, we would like to take this opportunity to comment on a few aspects of the interim report and to offer our views on how best to secure the key goal of your mandate: namely to strengthen the protection and promotion of human rights in relation to business.

As your report correctly observes, some businesses, through their acts or omissions have caused serious harm in relation to human rights. Existing initiatives to provide standards for company behaviour have afforded insufficient guarantees for the protection of human rights. It would be worthwhile also to acknowledge that businesses have been involved in human rights abuses in both developed and developing countries. While recognizing the serious gaps in the protection of human rights and, ultimately, in measures to hold business entities accountable for involvement in human rights abuses, we agree with your assessment that a central challenge is to ensure that all companies consistently respect and protect human rights. We believe this objective can only be achieved through the establishment of clear, global standards of corporate responsibility and of effective mechanisms for holding companies to account. Global standards should reflect the responsibilities of business and should be derived from international human rights and humanitarian law and other internationally recognized principles. These universal standards should apply to all companies, irrespective of the nature of the activities in which they engage, the location of their headquarters, or the countries in which they are incorporated or conduct their operations.

The report of the High Commissioner for Human Rights on the responsibilities of business with regard to human rights and the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights enumerated many of the human rights principles at issue. This work constitutes important steps in the ongoing process of developing a shared understanding of the human rights responsibilities of business. The NGOs take the view that in your role as the Special Representative, you could usefully draw on many elements that have been identified through the work of other UN bodies. To the extent that you are seeking to find areas of consensus, we hope that you will aim to build awareness of and support for meaningful international human rights standards for business and will avoid the pitfall of reaching agreements that merely reflect the "lowest common denominator".

We share your concern about the lack of effective legal regimes and institutions for holding companies accountable. We therefore urge you to explore ways of expanding or strengthening the existing legal mechanisms as well as of examining the potential for developing new legal approaches. We note the inclusion in the interim report of an initial exploration of the state of international human rights and international humanitarian law as it may apply to corporations. While states are the primary duty-holders under international law, including human rights and humanitarian law, it should not be forgotten that businesses also have responsibilities under these legal regimes. Indeed, as part of their obligation to protect human rights under their jurisdiction, states are under a duty to ensure that businesses act accordingly. We encourage you to expand your analysis of legal issues and consider developments in international law since the adoption of the Universal Declaration of Human Rights and the increasing relevance of human rights and humanitarian law to non-state actors. We strongly encourage you to take into consideration the growing body of legal jurisprudence and doctrine concerning the direct applicability of international law to private actors.

In your interim report, you have also addressed the evolving nature of the law and the potential for states to expand the current reach of the law in so far as it concerns the human rights practices of business. In this respect the "due diligence" obligations of governments to ensure that private parties do not commit human rights abuse is of particular relevance. We would also like to remind you of the importance we attach to the part of your mandate that calls on you to offer recommendations as to how states can effectively regulate transnational businesses with regards to human rights, including through international cooperation.

We respectfully call on you, as you embark on the next phase of your mandate, to build on existing efforts and to move beyond existing frameworks and the status quo. In particular we hope you will give further consideration to the question of "what the law should be," and we hope that you will not hesitate to make recommendations about the means by which appropriate legal standards might be elaborated, adopted and, eventually, implemented.

Ultimately we believe that a universal normative framework must both include a clear outline of the human rights obligations of states to ensure business does not infringe human rights and also identify the direct obligations of business with respect to human rights. This framework should provide clear, common standards that apply to all types of business and in all countries.

We recognise the fact that you have carried out a number of consultations and made several field visits in order to reach out to a wide range of stakeholders. We would encourage you to pay as many visits as possible to communities that are directly affected by various types of corporate activity, as well as to consult with national and local non-governmental organizations working with them.

The Special Representative should take full advantage of the burgeoning body of information and documentation regarding business and human rights from a range of sources including NGOs, academics, trade unions and journalists so as to develop a comprehensive information base. As regards further consultations, we would find it helpful if you could set out your plans and the issues you intend to cover, as well as ways for ensuring that the results of these consultations are widely shared. We are pleased that the report of the Johannesburg consultation has recently been circulated.

We welcome your decision to engage with a wide range of experts who can contribute perspectives from all regions and legal traditions to the legal issues relevant to your mandate and the interest you have shown in the International Commission of Jurists' complicity project.

Finally we would like to reaffirm our willingness and determination to continue our constructive engagement with you in your capacity as Special Representative and to work with you in the fulfillment of your important and challenging mandate.

Yours sincerely,