International law's invisible hand and the future of corporate accountability for violations of human rights

In May 2011, the United Nations Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (SRSG), Professor John G Ruggie, submitted to the Human Rights Council his ‘Guiding Principles on Business and Human Rights’ aimed at implementing his ‘Protect, Respect and Remedy’ policy framework. The Council unanimously adopted the Guiding Principles at its June 2011 session. Ruggie's work has been both welcomed and criticised and his Guiding Principles are likely to remain controversial. Apart from the SRSG's recommendation to the HRC to develop a process to clarify the legal obligations of business entities not to commit international crimes, his work on this issue did not include a recommendation that the future development of binding international obligations should be one of the goals of his policy framework and guiding principles. This article argues that Ruggie's approach to addressing corporate human rights impunity was misconceived. For Ruggie, ‘[t]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization – between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences’. It is argued here, however, that to address corporate impunity effectively, one cannot simply deal with the governance gaps alone. One must also identify and address the root causes of those gaps. This article contends that corporate human rights impunity is deeply embedded in the international legal system. It seeks to demonstrate the problems with the SRSG's approach by arguing that, along with the interventions of international financial institutions in the economies of developing states, one of the most significant impediments to corporate human rights accountability is the structure of the international legal system itself. The validity of this assertion is explored through an examination of the critiques of the international legal system by Third World Approaches to International Law (TWAIL) scholars, as well as insights drawn from feminist critiques of international law. It is argued that powerful states have used international law and international institutions to create a globalised legal environment which protects and facilitates corporate activity and, although the SRSG identified symptoms of this reality during his tenure, he did not examine the deep structural aspects of this problem. This article demonstrates that such an examination would have revealed the crucial need for binding international human rights obligations for business entities in any adequate strategy aimed at addressing corporate impunity. It concludes with some recommendations for developing such obligations incrementally.

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