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Human Rights Obligations of Business
Refine List. Actions for selected content:. Send content to. Please be advised that item s you selected are not available. What Ruggie says here can be likened to the positive duties a state would have to protect individuals against the abuse of their rights by third parties.
A binding treaty on business and human rights? Still a way to go. - Lexology
Take, for instance, its obligations in relation to the right to freedom and security of the person. In fulfilling this right, the state would be required, amongst others things, to protect individuals against violent criminal activity. This would entail the state setting up proper enforcement agencies, seeking to understand the causes of crime and addressing these through carefully designed policies. The state could also be required to educate its citizens about ways of avoiding criminal activity as well as to provide advice on how to avoid becoming the victim of crime.
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His conflation of these two duties within the responsibility to respect framework is likely to lead to confusion given the different taxonomy in human rights law. Given his views on this matter, it would have been desirable thus to recognise explicitly that corporate responsibilities include both duties to respect and protect as they are conceived of currently in human rights law. His claim that corporations have only a responsibility to respect reflects this attempt to capture the particular role they should play in relation to fundamental rights. The argument here is of central importance in determining the role that corporations should play in realising fundamental rights.
It is uncontroversial that the state and the corporation are distinctive entities with differing roles in the social order. In order to understand the nature of the obligations that corporations should have in relation to fundamental rights, we need a normative theory that is capable of relating the distinctive nature of the corporation to the forms of obligation that they should be subject to.
I shall now attempt to provide a brief outline of such a theory which provides support for the view that corporate obligations are not confined to the responsibility to respect but also include positive obligations to promote and fulfil fundamental rights. Businesses are conducted through a range of legal forms: however, the dominant structure in the modern world has been the corporation.
These legal benefits clearly were developed to attain a number of social advantages: they encourage people to take more risk, stimulate innovation and provide a catalyst for greater competition. It is clear therefore that corporations are essentially entities created and regulated through law in order to attain a number of social and individual benefits that flow from their separate legal personality.
Since every individual must have his or her rights respected and the corporate form could function as a method through which responsibility for such violations could be avoided, it is of critical importance to ensure that corporations are required at least to avoid harming such fundamental rights. However, once we conceive of the aim of providing corporations with separate legal personality as being the creation of certain social advantages, the question is why we need to confine our conception of such benefits to the traditional ones outlined above.
If corporations may be able to attain these benefits and yet be capable of contributing to other social goods of vital importance, why should we not require that they actively promote such goods as well? It is or should be a central norm of the international legal order as well as the national legal systems in which corporations are registered.
It plays such an important role in legal systems for a very good reason: fundamental rights are about the protection of the most vital interests of individuals, without which the possibility of living a decent life becomes meaningless. Ultimately, the social role he has articulated for the corporation is a limited one focused on the benefits of having an entity oriented towards profit maximisation without creating strong social harms. The rules of the game for Ruggie would go further than those envisaged by Friedman and involve respecting human rights.
However, it is unclear what grounds of principle we have for limiting the rules within which corporations are required to operate only to negative obligations. The harms individuals may suffer are not limited to ones where their rights are actively violated by corporations: indeed, lack of access to food, water, health-care, and legal representation may severely impact upon the lives of individuals.
SUR file on Millennium Development Goals
If the point of enabling corporations to function as separate legal persons through law is to create certain social benefits, then it seems that corporations may be required to play their part in helping to fulfil these important social goods. Most societies do not seem to consider it illegitimate for states to tax corporations on the basis of their activities for wider social purposes, and, indeed, Ruggie at no point appears to question the validity of taxation.
When as a society we grant a company the license to operate, it is not simply a license to create as much wealth for its shareholders as possible. It can also involve the requirement that the company actively assist in the fulfilment of the fundamental rights of individuals. Understanding the social context in which corporations operate shows that they cannot be considered in purely individualistic terms but need to be considered as part of a co-operative social order. Yet, does this not confuse the social roles of the corporation and that of the state?
The Concept of Human Rights Protection and the UN Guiding Principles on Business and Human Rights
Whilst the state should be under no illusion concerning its responsibility to realise the rights of individuals, I have attempted to show in the argument presented above that the reasons underlying the creation of the corporation in law do not provide any strong justification for excluding positive obligation being placed upon corporations actively to contribute to the realisation of fundamental rights. This does not mean that corporations must assume the same range of responsibilities as the state in realizing fundamental rights: we thus need some principled basis upon which to determine the allocation of responsibilities between corporations and the state.
Henry Shue provides a plausible account of what the criteria should be for determining who should be the bearers of positive obligations. In his view, two factors must be considered in this regard: first, means-end reasoning must establish what needs to be done in order for a right to be fulfilled and, in light of this, it must be determined who best can perform those tasks SHUE, , p. In relation to the first factor, it is clear that, in many instances, corporations will be able to play an important role in helping to realise fundamental rights.
The second factor identified by Shue provides a justification for limiting the role of corporations in this regard: it would require, for instance, that the burden of positive obligations be spread equally amongst corporations and require that corporations still be able to realise their economic goals. The second factor does not, however, provide any general reason in principle why corporations cannot have positive obligations for the realisation of rights.
No doubt it will be important for these factors to be developed so as to specify the guiding principles that will determine the positive obligation that corporations have in particular circumstances. Ruggie has successfully highlighted a number of the inadequacies of this notion and done much to try and disentangle various elements of the concept. Nevertheless, the absence of a fully worked out theory in this regard does not mean we can reach the conclusion that there are no general positive obligations that corporations have for the realisation of fundamental rights.
Nor does it provide a justification for omitting such obligations from an international framework that is designed to be the point of reference for determining the ambit of corporate obligations. As has been argued, there are in fact strong reasons to recognise the existence of such positive obligations even if we do not as yet have a full understanding of their exact scope.
It also forecloses the possibility of achieving an adequate allocation of legal duties to fulfil fundamental rights by creating a general exclusion for corporations in relation to these obligations. Given the large capacity that corporations have in our current world to help states realise fundamental rights, this exclusion can be seen seriously to undermine the possibility of realising a wide range of human rights.
In particular, this is of great importance in the developing world, where placing positive obligations upon corporations has the potential to assist these societies to meet the fundamental interests of individuals living therein. The example in question concerns whether pharmaceutical companies have obligations to make anti-retroviral drugs available at affordable prices to those suffering with HIV. According to United Nations statistics, at the end of there were Due to a range of initiatives, the price of these drugs has come down and, these drugs have become more accessible within a wider range of developing countries SLEAP, , p.
It is important to analyse what the nature of any such obligation would be. Yet, this framework effectively fails to address the most pressing and relevant question in this context which concerns whether a corporation that produces life-saving medication such as anti-retroviral drugs and has a patent covering such medication actively has a duty to help ensure that individuals are able to have access to it at an affordable rate. It is important to recognise, as has been argued above, that pharmaceutical companies are allowed to operate and make profits for the purpose of creating certain social benefits: the traditional argument is that the possibilities of financial reward would lead to innovation and large investment in the production of new and more effective drugs which will ultimately make all individuals better off.
The existence of the drug may benefit humanity in the abstract sense that a treatment to a life-threatening illness is available; however, a large number of people who cannot afford the drug may be in no better position than if the drug had not existed at all. Given the critical nature of these interests and the capacity of corporations to impact upon such interests, there is a strong reason to impose positive obligations upon corporations operating within this industry to ensure that life-saving medication is made available to individuals at a reasonable rate.
The example provided demonstrates the large number of people whose lives may be improved through positive obligations being placed upon corporations for the realisation of fundamental rights. During , for instance, 39 pharmaceutical companies took the South African government to court for adopting legal measures that would have increased the availability of anti-retroviral drugs and reduced the price thereof. To ensure that individual rights are realised, it would be entirely ineffective to rely on the contingencies of social pressure or corporate good-will.
It is thus of great importance that the international framework governing corporate responsibility for human rights allow for the recognition of binding positive obligations that can render corporations obligated to ensure the availability and affordability of life-saving medicines that they develop.