FT: John Ruggie, UN special rapporteur on business and human rights, is due to present his final report to the Human Rights Council in June 2008. Some civil society groups criticised his preliminary report for being “too soft” on business. What is your opinion?

LA: I think it’s fair to say he’s been very instrumental in moving the debate from the logjam of the two rigid positions, on the one hand those advocating the development of binding norms – definite clear legal norms binding corporations – and on the other the corporate sector and others advocating just more voluntary compliance. [Instead, he’s addressed the question], even assuming that it would eventually become desirable or necessary to have binding norms, why don’t we look at what can be done in the meantime to either minimise damage or improve the situation?

I’m aware that some were sceptical the minute [Prof Ruggie’s] mandate was created, that it was a diversion from what the Sub-commission on Human Rights had proposed, which was a set of legal, eventually binding and enforceable norms and standards. So the mere fact that the mandate was created was viewed by many as a digression or diversion from that path. But when you look at the fact that it took two decades to get a Declaration on the Rights of Indigenous Peoples, any work that can be done on all fronts to advance human rights protection in an environment where multinational corporations are the dominant actors should be welcomed.

It would be frankly very ambitious to promote only binding norms considering how long this would take and how much damage could be done in the meantime. So if there is a way of enlisting the corporate sector towards some sort of voluntary – I’d call it some sort of voluntary-plus – compliance (purely voluntary with absolutely no downside risk, no monitoring, no exposure – frankly I find this a bit disappointing), this has to be encouraged while one continues to reflect on what these binding norms would actually look like. What kind of international legal framework are we seriously talking about to reach the corporate sector, above and beyond what national states can and should do within their own jurisdiction? So I think it’s probably the right approach to be very multifaceted as long as this does not become a distraction from the continued reflection on the need possibly for something a little more substantial.

FT: Your office’s website says that you’re supporting the Global Compact. Isn’t the Global Compact an example of what you’ve already said is rather disappointing, rules but no sanctions, no enforcement, no monitoring?

LA: The Global Compact now has about 5,000 participants, mostly from emerging economies. I have to say that they are overwhelmingly much more interested in labour standards – human rights protection in the labour force – than the much broader human rights agenda that we’re interested in. And of course the criticisms that have been voiced are valid, that not only does it have no monitoring mechanism but there is the danger that mere membership of the Global Compact may be used to overstate the level of compliance. So if you’re not ready to put in place appropriate monitoring mechanisms, there should be a clear disclaimer – there should be no false pretence or false advertising that membership carries any endorsement of the company’s compliance with human rights norms and standards. But one can only hope that, if this keeps taking hold, that it will move forward.

I have written a letter jointly with the head of the Global Compact, Georg Kell – we’ve sent a letter to all 5,000 Global Compact participants, including 3,600 businesses, alerting them to this one-year campaign to celebrate the 60th anniversary of the Universal Declaration and urging them to take initiatives. And I’m told that there’s been an amazingly high level of interest. I’m not surprised – anything that is promotional will generate more interest than anything that requires something more compliance-driven. But considering we have had virtually no interaction – the UN at large and the human rights sector in particular – with the private sector for so many years we should not be overly cynical about whether this will eventually come to something a little more robust.

FT: But what about the more serious criticism that emphasis on voluntary initiatives diverts or diffuses pressure for more binding rules?

LA: I think that’s a perfectly fair criticism. But I could say to you that all forms of philanthropy in the broad field of economic, social and cultural rights are a betrayal of a doctrine of entitlement. People who work in that area feel the dilemma on a daily basis. They’re relieving the state of its obligations to deliver basic social welfare by providing shelter for abused women, or food banks. And it’s true that by doing that they propagate the doctrine of charity as opposed to entitlement, which is what rights are all about. But at the same time, who are we to say we’ll close down all this and just mobilise, in a democracy, just start a political party that will be more supportive of a rights-based approach? In the meantime, what are these people going to do – starve? What one has to hope will emerge in things like the Global Compact, which I think you see in these NGOs that are very engaged in the delivery of housing rights, health issues, food and so on, is that they do both: they provide the immediate needs, the humanitarian attitude, but they are very strong advocates of their own extinction in favour of a state discharging its responsibilities. Now I don’t see that around the corner for the Global Compact – basically to say we shouldn’t have to do that voluntarily, the state should oblige us to do that or an international framework should oblige us to do that. But I think as we continue this slightly longer term debate . . . I can’t say there’s no harm in voluntary compliance, I think there is some, it distracts, it diffuses the political energy towards norms, it gives sometimes a false benefit to those who purport to comply at very little cost and in a very superficial way getting a lot of credit for it, so all this needs to be monitored and exposed to see whether at the end of the day these voluntary initiatives – on a kind of cost-benefit analysis – are doing some good or less so.

FT: Do companies already have obligations under international human rights law or are there only obligations to comply with national laws?

LA: Currently they have very few enforceable obligations directly arising from international law. But on the other hand the ones that they have exist probably where it matters the most, and these are the obligations they have under the emerging field of international criminal law. Personal criminal accountability for war crimes, crimes against humanity, genocide, has a limited but important bite into the private sector – it can bite anywhere and this is a kind of responsibility, one that has enforceability mechanisms (although in reality they’re still pretty modest in their reach), that arises directly from international law. You don’t need a national actor to validate these obligations. It’s relatively recent and it’s very limited. But the reason I say it’s possibly where it matters the most is because this kind of framework of personal criminal accountability can be activated when there’s virtually no state present. We’re not all that worried when you have robust national mechanisms specifically for oversight of corporate financial markets, corporate activities. Where of course there are real problems are when corporations act essentially in a totally unregulated manner because the states in which they operate are non-existent, or extremely corrupt, and have virtually no capacity to take them on – witness John Ruggie’s work regarding the extractive industries operating in developing countries where there’s just no real capacity, certainly no political will, for any of these states to take on in a non-corrupt purely legal way the responsibilities of the corporate sector. At least there, the possible reach of international criminal law for these extremely gross types of behaviour is a beginning. But that’s just about all there is.

FT: But most of the things that corporations do in those circumstances would perhaps not fall within the definition of international crimes.

LA: Well, crimes against humanity are not necessarily related to armed conflict, when we talk about widespread or systematic behaviour.

FT: would evictions count?

LA: Well, again, there’s so little jurisprudence but we have a legal framework, we’re very new to this process and there are very few fora within which to have this jurisprudence developed, but again the literature, the analysis, is being put in place and if you look at the framework of crimes against humanity you have extermination, murder, rape, torture, deportation, so whether evictions would amount to deportation as understood within that framework, all that needs to be explored. It’s the outer reach of the extremely unconscionable type of conduct.

FT: Some NGOs have advocated that home countries regulate the behaviour of corporations abroad. Is that a potential way forward or does it raise more problems (such as extra-territoriality) than it solves?

LA: It’s of the same genre as international criminal law, which is based on the fundamental premise that wherever these crimes are committed (take Milosevic, which is a pretty egregious example – it’s obvious that if you are the head of state or one of the political or military leaders of a country you’re not going to prosecute yourself). That’s where both universal jurisdiction, where any state can prosecute, and then the creation of international tribunals, came to remedy or bypass this absolutely flagrant deficiency. So one can imagine exactly the same thing – the use of universal jurisdiction for serious human rights violations, that’s already established now for torture, certain genocides, so one’s got to think of the most egregious, you know, violations of the right to life basically, an expansion of domestic jurisdiction is not an unthinkable proposition.

FT: And that would work by prosecuting individuals in companies that violated human rights?

LA: There are two big obstacles. The fundamental concept of criminal law is territorial, the jurisdiction of the state in which the crime is committed, so already you have to overcome resistance to reaching outside, which is both a theoretical and a practical one. It’s a lot harder to collect evidence and investigate crimes committed outside your territory. The second obstacle is that even in relation to territorial crimes the criminal responsibility of corporations has been slow to take root, even if we can see them as moral persons capable of incurring liability. Certainly in the area of workplace safety, for example, criminal negligence is very rarely successfully visited on corporate leaderships. So overcoming these two obstacles to reach outside the territory is going to be slow in coming.

FT: And possibly not the best way forward in that case?

LA: Again, in all this the roots have to be explored to see what is right and it’s the same in international criminal law. We have the International Criminal Court and also a certain level of activity in domestic courts – starting with Pinochet, which made the field theoretically explode in terms of the possibilities that it can use. Now, ten or twenty years down the road, which will be the dominant form? Is it going to be the International Criminal Court? Or is it going to be more and more recourse to national courts extending their reach under the torture convention and so on? In a sense that’s more promising. Under globalisation where people travel and so on, if you have national capacity it’s probably less costly than engaging an international tribunal. But it’s too early to tell. I think it’s important to encourage all kinds of initiatives on a trial basis to see where the market will settle.

FT: If you were thinking about binding international rules for corporations, where would you see the priorities? One of the criticisms of the draft UN norms was that some rights, such as the right to development, were not defined or justifiable.

LA: Some of the fundamental human rights norms such as non-discrimination are a pretty simple proposition. But even there some corporations would say well, how can you hold us to an international standard that is violated in the country in which we operate, for example, there’s gender discrimination that we can’t overcome, because then we’d be in violation of national law. So there’s that kind of problematique, where the corporation could be caught between an international standard and a national one that is in violation of the international requirement. But certainly I would have thought that non-discrimination, protection of the right to life, liberty of the person, a lot of the things that are reflected in ILO conventions, labour requirements, you can not have child labour, slavery or forced labour. It seems to me that one could start with the most uncontentious areas where the conduct is clearly unacceptable.

FT: In recent years there have been attempts by your Office and others to raise the profile of economic, social and cultural rights, but civil and political rights still seem to have more prominence and provoke more emotion.

LA: This is one thing that I hope this year of work on the 60th anniversary of the Universal Declaration of Human Rights should focus on because if you look at the Universal Declaration there is no distinction, all the rights are there. This was Roosevelt’s “Freedom from fear and freedom from want”. It was after the Declaration that it was basically broken into two, with civil and political rights going to one covenant and economic, social and cultural rights to the other. And then, in a pure reflection of the Cold War, you saw the alignment – the Western world became the champion of civil and political rights and essentially lost economic, social and cultural rights. It did not view them as rights in the same way and left them to the marketplace. The assumption was that prosperity will look after the right to health and education, which I think is a completely misguided view of what human rights are about. There’s no reason to assume that prosperity will transform itself naturally into any form of social justice, let alone ensuring that the most vulnerable – those who in appearance contribute the least to economic growth – still by the reason of their very humanity get some benefit out of it, at the least their survival with dignity. So this was very misguided and courts, even courts that were very sympathetic to the enforcement of human rights, again were extremely wary of entering into that whole area of budgeting and government expenditure, as though the protection of civil and political rights was free while the right to health and the right to education cost money. Which is again a complete fallacy. All the fair trial rights, the right to be tried within a reasonable time, when seriously enforced by courts, cost a lot of money. You have to build more court rooms and appoint more judges and more lawyers. Why aren’t we prepared to say the same thing about building more hospitals and paying doctors better? So there was a mental block in Western countries and of course the developing world has seized upon that to say: “The West is not honest on the human rights agenda, it’s a political ideological conditionality framework to impose a kind of democracy, free market view of the world on us, and they’re not interested in what we really care about, which is economic, social and cultural rights.” Now this is also a bit disingenuous, a lot of them don’t care about any rights, but in the context of celebrating the 60th anniversary I think we’ll have to look at the theme of universality but also the theme of indivisibility and try to rally and regroup. Certainly in legal theory I’ve never been persuaded that there’s any reason to be so distant from the enforceability and justifiability of economic and social rights, and yet there are not a lot of Western courts that are willing to seriously engage on these issues. There are some common law jurisdictions that have – India, South Africa have very progressive jurisprudence on that – but our more traditional Western based/common law courts have been very slow to engage in that area and I think we have to challenge them on that. Again, in the Human Rights Council it’s palpable, the extent to which this is seen as real hypocrisy in those who advance themselves as champions of human rights and yet the fact that not a single Western country has ratified the Convention on the Rights of Migrant Workers is very telling.

FT: Are we going backwards or forwards on human rights?

LA: September 11 [2001] has had two big casualties in the human rights environment. One is that we were at that point poised, I think, to make considerable progress on economic and social rights and what are often called “third generation” rights – environmental rights, the stuff that many emerging democracies are also interested in, protection of the environment – we were getting there, that’s where the discourse was going. And then after September 11 the counter-terrorism machinery has been a frontal attack on civil and political rights, so has frozen the debate on economic and social rights and third generation or “green” rights and so on, because we had to run and try to safeguard at least the gains that were made under the torture convention, arbitrary arrest and detention. So one has lost that agenda and there’s no question that on the civil and political rights front there’s been a lot of erosion of norms that we thought were clear, never mind a lot of slippage in compliance – very severe non-compliance. So in that sense we’ve gone through a pretty rocky period. On the other hand, international institutions are growing quite nicely – if you look at the Office of the High Commissioner for Human Rights, and where it’s situated in the UN system, from 1993 when it was created, for at least a decade where it remained a very normative office, not field-based, not operational, we start looking at where we are today, there are some very promising signs that the commitment to the pursuit of human rights now has roots that are very solid that can withstand a couple of hurricanes. I’m not sure if a mega-tsunami like September 11, I’m not sure how many of them we could really survive.