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Academic

: Law at the End of the Day

Business and Human Rights Part XVII--Implementation: Prioritizing

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This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. The Ruminations Series in 2009 produced a month long series of aphoristic (?????????) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions.

For 2010, this site introduces a new series--Business and Human Rights. The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum
The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.
New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation. My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation framework.

Part XVII: Human Rights Due Diligence--Implementation: Prioritizing. IN PROGRESS

One of the oldest problems bedeviling states has centered on implementation/enforcement. While the process of law formulation and enactment has always presented its own difficulties--even within tyrannies--the ability to substantially enforce rules has always eludes states. States have come closest to the ideal of perfect enforcement/implementation when it has had the smallest role to play in that enterprise--that is, when the objects of enforcement become their most diligent prosecutors. On the other hand, when positive law meets strong popular disapproval, even the most technologically advanced regime will encounter significant difficulties with enforcement. The problem of drug control has proven nearly impossible to do more than manage in virtually every state. On the other hand, the American Republic (in contrast. for example to states like Italy) for having a high level of self enforcement of its tax paying obligations. No state has the resources to perfectly implement even the most ll received political norm. To manage imperfect enforcement or even implementation of legislative or other legal commands, states have developed a number of techniques. Within the criminal law, the concept of prosecutorial discretion has played a large role in managing the limited resources of a prosecutor's office. But management tools are as capable of generating abuse as it is capable of successfully managing limited resources. See, Daniel D. Ntanda Nsereko, Prosecutorial Discretion Before National and International Tribunals.

A similar issue is said to attach to the obligations of corporations to respect human rights.

Companies that have global operations, large physical footprints, a diverse range of businesses, or complex supply chains could affect the entire spectrum of internationally recognized human rights.
While the corporate responsibility to respect requires respecting all rights, it is unlikely that all issues can be addressed simultaneously. Consequently, guidance may be needed on how to prioritize potential and actual impacts on human rights.

United Nations Special Representative of the Secretary-General on Business & Human Rights, Implementation, Prioritizing. The SRSG has asked, "What guidance can be given on how to prioritize potential and actual company impacts on human rights?" Id.

It might be useful, in thinking through issues of priority, to consider a set of guiding principles and actions--(1) consistency across operations; (2) development and circulation of a corporate Human Rights Priority Policy; (3) stakeholder involvement in formulation of any prioitization policy; (4) minimization of administrative complexity; (5) articulation of principled rationale for choices among enforcement alternatives; (6) development of procedures for and principles through which deviation from priority policy is possible; and (7) balance among the kinds of rights enforced.

Full post as published by Law at the End of the Day on February 19, 2010 (boomark / email).