Interview with Mr. Michel Doucin

Ambassador of France for corporate social responsability and bioethics

The "United Nations Human Rights Council Guiding Principles on Business and  Human Rights" adopted by the United Nations on June 17, 2011 carry the imprint of American business law while affirming the role of the States

By Michel Doucin, Ambassador of France for corporate social responsibility and bioethics

It took 18 years for the United Nations Human Rights Council to adopt the Guiding Principles on Business and Human Rights.  After several successive attempts since the World Conference on Human Rights of Vienna in 1993, which were essentially numerous confrontations between the "soft law" and written law approaches, in 2005, the Human Rights Council elected Professor John Ruggie, a special representative of the Secretary-General of the UN for human rights, transnational corporations and other enterprises, and six years later  it is the product of his efforts that has been adopted.

This is a "soft law" instrument.  However, very similar versions of this text having been reiterated in three other international standards documents that were simultaneously negotiated, its legal effects are potentially greater than that of the usual "soft law" instruments: the ISO 26000 [Guidance on social responsibility] (September 2010 ), the revised OECD Guidelines for  Multinational Enterprises  (May 2011) and the revised Policy and Performance Standards on Social and Environmental Sustainability (May 2011) are in fact  directly inspired  it, the latter two being replete with verification mechanisms, meaning  respectively, the National Contact Points and the procedure for granting loans.  

However, one can discern from, the Principles six broad notions that are distinct from the traditional CSR approach:

- reaffirming the central role of the State in the regulation of  Corporate Social Responsibility (“CSR”):  the State plays a fundamental role in human rights issues, assert the Principles.  The State must, in particular, use all economic means at its disposal, such as public contracts, loans and guarantees to ensure that businesses respect human rights. The State could also consider economic policy considerations in its international agreements. 

However, the theory of  CSR  stresses  on "voluntarism.” 

- priority given to a risk-based approach: Whereas for 60 years the  doctrine concerning CSR has  been built on the idea that companies are citizen-actors invited to contribute positively to the realization of common wellbeing and (more recently) of sustainable development, this text limits the companies’ responsibility to the prevention of violations.   By so doing, it reduces this responsibility to mere legal compliance.  This approach is paradoxical, considering that among the foundations defined by the same text, the UN’s International Covenant on Economic, Social and Cultural Rights defines rights as involving an essential affirmative role for companies..

- a key tool: "due diligence"  Companies should  manage their risks by “due diligence”, a notion arising under the American legal system, and thus American law.  Companies are invited to make an exhaustive inventory of the risks they face, and relate them to all their stakeholders, and to issue a “statement of commitment “of their objectives and set up internal protocols for managing these risks. 

- all of the supply chains are involved:  All commercial ties, whether  direct or indirect, should be the subject of a "due diligence" examination and consider the available "flexibility" (the French plea for the concept of influence having been rejected). 

 -  CSR includes mandatory elements:  Risk, for companies, is also legal in nature because of certain national laws that concern extraterritorial matters, but also because of fundamental international standards:  the Human Rights Charter consisting of the Universal Declaration of Human Rights of 1948 and of the two Covenants of 1966, as well as the eight fundamental  labor standards identified in the ILO Declaration on Fundamental Principles and Rights at Work of 1998[A3] .  If certain countries do not recognize these texts, the companies will be judged (by public opinion, intergovernmental mechanisms, and even national courts) on their efforts to prioritize these important matters. Incidentally, the boundary between human rights and labor is blurred. 

- CSR henceforth  rests on 4 pillars from now on: human rights are now on integrated into CSR, so that it now has a fourth pillar, alongside the the environmental, social, and economic governance .  The issue is their harmonious inclusion with the concept of sustainable development, which is not limited to risk management. 

Immediately following the adoption of Principles the text, it was decided to install a mechanism for monitoring their  implementation.  It will consist of a committee of five experts representing the five continents, responsible for observing how the Principles will be adhered to and for proposing interpretations of the incertitudes they contain, in particular responsibilities with regard to the supply chain, the boundary between mandatory and voluntary, etc. 

This may be an opportunity for European law professionals to play a role in a field from which they were largely excluded.  The question will arise, for example, as to how the European courts will handle information submitted by companies on the "due diligence" mechanisms that they have implemented and how they will interact with their American court counterparts addressing dealing with similar matters.