Ruggie versus Ecuador: Will a human rights norm ever emerge regardless of Western support?

Normative Power Europe? Really? |

In September 2013, a number of countries issued a joint statement in favour of an international treaty on business and human rights. The statement was drafted by Ecuador and signed also by the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela and Peru. These countries believe that a legally binding treaty “would clarify the obligations of transnational corporations in the field of human rights” and “provide for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to prosecute effectively those companies”. More than 90 national groups, international NGOs and trade unions have expressed their support for this initiative.

On 28 January, John Ruggie, Professor of International Relations at Harvard University and UN Special Representative on Business and Human Rights between 2005 and 2011, released a response to the mentioned statement. Thereby he defends the “Protect, Respect and Remedy” framework developed during his mandate as Special Representative and praises the Guiding Principles on Business and Human Rights that he himself drafted and were endorsed by the UN Human Rights Council in June 2011. The Guiding Principles were severely criticised by several civil society organisations that deemed them overtly ineffective to regulate the human rights responsibilities of transnational companies. However, Professor Ruggie is pleased with his own framework and expresses in this way why he believes Ecuador and the NGOs are mistaken:

Even with the best of “political will”, the crux of the issue is that the category of business and human rights is not so discrete an issue-area as to lend itself to a single set of detailed treaty obligations. It includes complex clusters of different bodies of national and international law for starters, human rights law, labor law, anti-discrimination law, humanitarian law, investment law, trade law, consumer protection law, as well as corporate law and securities regulation. The point is not that these are unrelated, but that they embody such extensive problem diversity, institutional variations, and conflicting interests across and within states that any attempt to aggregate them into a general business and human rights treaty would have to be pitched at such a high level of abstraction that it is hard to imagine it providing a basis for meaningful legal action.

In other words, “Dear Ecuador, The Guidelines may not be good enough for you and many others, but they’re just the best thing you’ll get from us. Yours sincerely, The West”. Ruggie is not the UN expert anymore; the individual mandate was replaced by a working group in 2011. However, his words are likely to be very influential. He’s just spared Western countries the trouble of making up an excuse. In the next session of the UN Human Rights Council they’ll only have to refer to the “authoritative analysis made by Professor Ruggie on 28 January 2014” to oppose the Ecuadorian proposal, which at this point has serious chances of getting stored in a safe drawer forever and after.

As shown in Finnemore and Sikkink’s famous model (1998), States play a key role in the process of international norm diffusion when they choose to embrace and promote certain standards of adequate behaviour. Yet, not all countries are equally important. When it comes to human rights law, European States play a key role in drawing the line between acceptability and unacceptability. We can safely say that no human rights norm has settled so far in spite of the lack of support from Western Europe. At a time when Europe muddles through and new powers emerge from the Global South, it is time to ask: Will a human rights norm ever emerge regardless of Western support?

Koldo Casla