John Ruggie responds to letter from Swiss business associations, raising concerns it misconstrues foundational elements of UNGPs
19 September 2019
...My concern is that [the] letter [from senior representatives of economiesuisse and SwissHoldings] misconstrues two foundational elements of the UN 'Protect, Respect and Remedy' framework and the UN Guiding Principles on Business and Human Rights (UNGPs), which operationalize it. I am the author of both...
First, the Framework makes clear and the UNGPs elaborate that while states have existing obligations under international human rights law, companies have a responsibility to respect internationally-recognized human rights that is independent of whether or not states meet their obligations...
Therefore, contrary to the letter's assertion, there is no inconsistency in states adopting measures that require businesses to meet their responsibility to respect human rights through legislation. States similarly may adopt legislative measures to encourage, support or incentivize businesses to do so. Indeed, Guiding Principle 3 and its extensive commentary emphasize that states are expected to adopt a mix of measures - voluntary and mandatory, national and international - to foster business respect for human rights in practice. By doing so they are not ''imposing direct liability [on] companies for states' obligations," as the letter claims. They are doing what we expect governments to do: to govern, and to govern in the public interest.
Second, the letter raises the issue of extraterritorial jurisdiction. This is a complex, sensitive, and not entirely settled matter... In short, Guiding Principle 2 provides that states should make clear that the responsibility to respect applies throughout a company's operations. The commentary to Principle 2 goes on to explain that under international human rights law states are not generally required to regulate the exterritorial activities of businesses domiciled in their jurisdiction, but nor are they generally prohibited from doing so provided there is a recognized jurisdictional basis. The commentary notes that states have adopted a range of approaches in this regard, specifically including domestic legislation that may have extraterritorial effects. In short, extraterritoriality is not per se ultra vires, as the letter seems to suggest, and the UNGPs make no such claim.
I fully understand and appreciate that there will always be legitimate differences in opinion about the appropriate role and most effective forms of legislation and other measures at national levels in implementing the UNGPs. But such debates need to be distinguished from assertions about what the UNGPs do or do not say - the text is there, 31 Principles with Commentaries.