Novita Putri Samira

B011191216

LEGAL PHILOSOPHY ON BUSINESS AND LEGAL ISSUES

Abstract

The issue of human rights is no longer a new conversation in the life of the world. Its
existence is increasingly needed as the strengthening of the will of individuals and legal
entities to live prosperously and develop their business to enlarge profits. Parallels with
unlimited will that human rights violations often follow. Human rights violations
committed by Multinational Corporations (MNCs) or Transnational Corporations (TNCs)
are not a concern, but have occurred real and threaten human rights. A study
conducted by the International Work Group for Indigenous Affairs (IWGIA) shows how
MNCs/TNCs operate and ignore human rights.

Keyword: UNGP , Philosophy of Law.

Introduction

The United Nations Guiding Principles Business and Human Rights (UNGP) is a
reference issued and endorsed by the UNITED NATIONS Human Rights Council to
countries and companies to integrate respect, protection, and restoration of human
rights in every business operating in the world. United Nations Guiding Principles
Business and Human Rights is moral principles and their justification is morally
philosophical.
 This principle was then accepted unanimously and adopted into UN Human Rights
Council Resolution No. 17/4 of 16 June 20111.

Basically, business and human rights issues have been started for a long time with
various initiatives carried out by various parties by issuing agreements that are
expected to be universally recognized.:2

a. UNGC (United Nation Global Compact);

b. OECD Guidelines for Multinational Corporations and Principles of Corporate

Governance;

c. The World Bank Policy on Indigenous Peoples and Draft Policy on Involuntary
Resettlement;

d. Amnesty International’s Human Rights Guidelines for Companies;

e. The Global Sullivan Principles;

f. The Australian Non- Government Organisations’ Principles for the Conduct of

Company Operations within the Minerals Industry; and

g. The German NGO network’s Principles forthe Conduct of Company

Operations within the Oil and Gas Industry.

Efforts to do so were then continued by a body under the United Nations in 1998 by
issuing a Draft Norm on Corporate Responsibility related to human rights. The draft was
published in 2003 titled "Norms on the Responsibilities of Transnational Corporations
and Other Business Enterprises with Regard to Human Rights," known as the Draft
Norms..3

1
Guiding Principles on Business and Human Rights, Implementing the United Nations.
2
Ibid
3
8IWGIA European Network On Indigenous Peoples, Business And Human Rights;Interpreting The Un Guiding
Principles For Indigenous Peoples; Report 16, 2014
 Debates have been brewing between human rights activists who supported the
draft and businesses who rejected it..4 The United Nations has not adopted the draft
when it themselves say that the draft is a useful element. After the debate that led to the
waste of the Draft Norms, Koffi Anan as un secretary general at the time appointed
John Ruggie to bring stakeholders back to discuss business development and human
rights from different approaches.

In the end John Ruggie was able to make a report to the UN Human Rights
Council in the form of guidelines on human rights principles called Guiding Principles on
Business and Human Rights, Implementing the United Nations "Protect, Respect, and
Remedy" Framework (UNGP) or better known as Ruggie's Principles5 adopted into UN
Human Rights Council Resolution 17/4 16 June 2011.UNGP underlies the guidelines
principles for business and human rights with three pillars, namely protection, respect
for, and the restoration of human rights as follows:

a. The obligation of states to protect, respect, and fulfill their rights

Human rights and basic freedoms.

b. The role of business enterprises as a special organ of society

perform special functions, so it must follow the rules

that applies and respects human rights.

c. The need for rights and obligations in accordance with the appropriate
remedies worthy and effective when violated.

Basically, the existence of these guidelines is to clarify various state and corporate
actions on what to do in running a business that is in harmony with human rights. These
guidelines are also used to classify any action or condition that is A form of inhibition of
respect, protection, and restoration of human rights.

4
Ibid
5
Business & Human Rights Initiative (2010), “How to Do Business with Respect for Human Rights: A Guidance Tool
for Companies,” The Hague: Global Compact Network Netherlands. H. 21-22.
Discussion

1. General Principles of UNGP

a) The Obligation of States to Protect Human Rights

The principle of state responsibility is the first general principle to be included in ungp.
UNGP does not seek to shift the responsibility of the state as the main stakeholder of its
obligations in safeguarding human rights to the company. The state is still placed as the
party most responsible for safeguarding the human rights of its people.

There are two main guidelines in ungp that demand the obligation of states to protect
human rights. The first principle is:6

"States shall protect against human rights violations by third parties,

including business enterprises, within their territories and/or jurisdictions.
This requires taking appropriate steps to prevent, investigate, punish and
remedy such violations through effective policies, legislation, regulations
and the justice system.".7

The duty of the state to protect human rights is a standard of conduct, so the state is not
directly responsible for violations of human rights by the private sector, but the state can
be said to commit human rights violations when they do not carry out the functions of
prevention, enforcement, and recovery, with the authority owned by the state, the state
is charged with the obligation to formulate policies, legislation, laws and regulations that
accommodate the judicial system. human rights protection in the operation of the
business sector.

6
Lembaga Studi dan Advokasi Masyarakat (ELSAM), “Tanggung Jawab Perusahaan Untuk Menghormati Hak Asasi
Manusia”, Jakarta, 2014.
7
United Nation Guiding Principle on Business and Human Rights; Framework to Protect, Respect, and Remedy.
(Jakarta: 2012, ELSAM). h. 14
The Second Principle is:

“States shall express clearly the expectations or expectations that all

business enterprises domiciled within their territories and/jurisdictions
respect human rights throughout their operations..8

The point of emphasis of this guide is the obligation of the state to make
regulations that reach out to its country group companies operating in other countries.
Either in the form of a subsidiary company or any other form.

This guide hopes that the host investor country does not exploit human rights in
other countries for the benefit of the country and its country's companies only. This is in
line with the development of fourth generation human rights proposed by Karel Vasak,
the right to development that is considered by developed countries to developing
countries. This right requires developed countries and superpowers, to always respect
the existence of human rights above developing countries.

This is important considering that not all countries have fairly established rules
regarding respect and protection of human rights, due to the lack of awareness about
human rights in developing countries that are affected by the low quality of education
they receive. With this guide, developed countries (hosts) that are ensured to have high
awareness make their contribution to the promotion of human rights in the world by
requiring their state corporations operating in other countries that are minimal in the
regulation and implementation of human rights protections while maintaining and not
violating the human rights of the communities in which they operate.

This guide has been implemented by several countries that require their parent
companies that have an extraterritorial impact to provide reports on the global
operations of the entire company, create multilateral soft legal instruments such as the
Guidelines for Multinational Enterprises of the Organization for Economic Cooperation
and Development, and the required performance standards. by institutions that support
foreign investment. The implementation of the above guidelines even allows for

8
Ibid, h. 16
prosecution based on the 26 nationalities of the perpetrators of the crime regardless of
the location of the incident.

b. Corporate Responsibility to Respect Human Rights

9
The second general principle in UNGP is to place responsibility. company to respect
human rights wherever it is. Although the national law of the country in which it operates
does not make the issue of human rights a major issue, it reiterates that this guidance in
no way seeks to shift the burden of state accountability as a key stakeholder in human
rights protection. In terms of a company's responsibility to respect human rights, the
company is not only expected not to violate human rights, but is also expected to avoid
involvement in human rights violations committed by third parties with business
relationships with the company. Even if violations have occurred, then the company
must overcome the adverse human rights consequences. The company's involvement
in human rights violations can be done through 3 conditions, among others.:

a. Causing

This means that the company as a direct actor that causes human rights
violations. Such as by involving minors to work high hours, labor without wages,
and so on.

b. Contributing

The point is that the company does not act as a direct actor in the occurrence of
human rights violators, but contributes through instruction or pressure to the
causative company,

c. Link In,

Although the company does not cause and does not contribute to the detrimental
impact of human rights, it can be said to do so through the company's business
relationships with other companies whose status as causing and contributing

9
Tulisan kata Tanggung Jawab dipisah sesuai dengan yang ada dalam Kamus Besar Bahasa Indonesia (KBBI) yaitu
tang-gung ja-wab atau Tanggung Jawab tanpa adanya tanda (–) ditengah dua kata tersebut. 41United Nations H
. c) Access to Recovery

Recovery is the core of resolving human rights violations that have 2 important aspects,
namely procedural and substantial. Substantially, the recovery aims to eliminate or
resolve human rights losses that have occurred. Recovery can be done judicially,
amisnistratively, legislatively, or in the form of concrete actions such as apology,
restitution, rehabilitation, financial or non-financial compensation, and punitive
sanctions. While procedurally, the provisions of the procedure of recovery must be
impartial, protected from politics, corruption, and any attempt to prevent it..10

In the ruggie's principle access to remedy mechanism, there are 3 mechanisms

in human rights recovery, namely:11

a. State-Based Legal Mechanisms. This mechanism is provided by the

state as a step for the recovery of human rights violations through domestic legal
channels such as judicial bodies, or commissions. The state is also obliged to
ensure that this mechanism runs effectively with no obstacles.

b. State-Based Non-Legal Complaint Mechanism. This is in the form of a

mediation-based, adjudicative, or following other means in accordance with the
culture and matches the rights or involves some combination of them depending
on the relevant issues, any public interest involved, and the potential needs of
the parties. In this mechanism, national human rights institutions have a very
important role.

c. Non-State-Based Complaint Mechanism. One category of non-state-

based complaint mechanism includes all that is governed by a business
enterprise itself or with a related party, by an industry association or a group of
related parties. These mechanisms are non-legal, but may use adjudicative
processes, dialogues, or others in accordance with culture and in accordance

10
4Asep Mulyana, Jurnal HAM, Vol 8, Mengintegrasikan HAM ke Dalam Kebijakan danPraktik Perusahaan”,
(Yogyakarta: FH UGM, 2012), h. 265-281
11
United Nation Guiding Principle on Business and Human Rights; Framework toProtect, Respect, and Remedy.
(Jakarta: 2012, ELSAM). H. 70-76.
 with rights. These mechanisms can offer benefits such as speed of access and
recovery, reducing costs.

Background to the Current UN Draft Treaty

The current proposal to create a legally binding Treaty is not ground zero, it has come
out of a significant amount of work undertaken by the UN Human Rights Council to
clarify and improve the level of corporate accountability on human rights, over the last
thirteen years. During that time, there have been several mandates on this.8 In 2003, a
UN sub-commission on the promotion and protection of human rights approved a set of
“Norms on the Responsibilities of Transnational Corporations and Other Business
Enterprises with Regard to Human Rights” (UN Resolution 2003/16).

These were rejected by the Commission in April 2004, on grounds that they had no
legal standing (see UN Decision 2004/116).

In July 2005, Kofi Annan appointed Professor Ruggie as Special Representative on

business and human rights, to identify and clarify the issues at stake, with a view to
creating a policy framework. This was issued in 2008 under the title “Protect, Respect
and Remedy” Framework – as a summary of its three pillars: the state duty to protect
against human rights abuses by third parties (including businesses) through appropriate
policies, regulation, and adjudication; the corporate responsibility to respect human
rights, through due diligence to avoid infringing the rights of others; and greater access
for victims to effective remedy, both judicial and non-judicial.

The Council welcomed this framework and extended Ruggie’s mandate for
another three years, to allow him to focus on operationalizing the framework, i.e. to
provide concrete practical guidance for its implementation. This work led to the UN
Guiding Principles, consisting of 31 tenets, which were endorsed by the Human Rights
Council in 2011. The latter provide practical recommendations and concrete guidance to
states, businesses and other social actors on the implementation of the PRR
framework.
 At that point, Ruggie reached the 6-year maximum term limit for any mandate-
holder, and an expert working group was appointed to oversee the next phase (Ruggie
2013, pp. xlviiixlix). This is the stage at which we are now, with an Open-ended
Intergovernmental Working Group (OEIGWG) having had several meetings and
consultations over the last five years, aimed to help elaborate an international Treaty,
which would be legally binding.

A brief note about the extensive consultation around the proposed Treaty, to help
deal with the criticism regarding the universality of the human rights at the core of it.
Multiple nonWestern voices have participated in the five annual sessions of the Working
Group that have taken place so far in Geneva, and several others submitted comments
on the draft Elements and the Zero Draft (see Appendix 1 for details). This proves that a
global ethic is not only possible, but it may have already been achieved, to a large
extent.

Human Rights, Beyond Theory V. Practice

As indicated in the introductory section, our main focus in this paper is on the role
of morality (vis-à-vis legislation) in advancing the business and human rights agenda; in
turn, this raises Philosophy of Management (2021) 20:167–200 173 the issue of how we
can bridge theory and practice, given the gap that exists between purely normative
accounts and those that practitioners usually concern themselves with e.g. legal or
socio-economic aspects related to the business and human rights agenda.

At a normative level, this twofold enquiry amounts to an attempt to overcome the

traditional divide between consequences v. principles as a guide to normative
reasoning. This, given the practical focus of the debate, amounts to overcoming the
purely normative reasoning itself, in an attempt to reach what we call an ethics beyond
cognition – one that allows us to take other, pre-rational (or non-rational) aspects into
consideration, such as idiosyncratic preferences and emotions, in our debate. Such an
ethics would utilise a different type of argumentation – which is neither consequentialist,
nor guided by universal principles.
Conclusion

The aim of this paper was to consider some key philosophical aspects of the current
debate on business and human rights, by focusing on two conceptual divides – theory v.
practice and law v. morality – and seeking to understand how these might be overcome.

As a legally binding instrument, the proposed Treaty marks a shift from voluntary
guidance to a purely legal approach – which may be seen as long overdue, at
international level. However, it does not exclude collaboration with non-judicial
initiatives. In fact, its best sections – on rights of victims, prevention, legal assistance,
and international cooperation – are focused on the practical implementation of moral
principles, rather than a reactive approach to crime, and they explicitly include other,
non-legalistic initiatives.
 BIBLIOGRAPHY

Journals

European Network On Indigenous Peoples, Business And Human Rights;Interpreting

The Un Guiding Principles For Indigenous Peoples; Report 16, 2014

Lembaga Studi dan Advokasi Masyarakat (ELSAM), “Tanggung Jawab Perusahaan

Untuk Menghormati Hak Asasi Manusia”, Jakarta, 2014.

1
United Nation Guiding Principle on Business and Human Rights; Framework to Protect,
Respect, and Remedy. (Jakarta: 2012, ELSAM). h. 14

Kamus Besar Bahasa Indonesia (KBBI) yaitu tang-gung ja-wab atau Tanggung Jawab,

Asep Mulyana, Jurnal HAM, Vol 8, Mengintegrasikan HAM ke Dalam Kebijakan

danPraktik Perusahaan”, (Yogyakarta: FH UGM, 2012), h. 265-281

United Nation Guiding Principle on Business and Human Rights; Framework toProtect,
Respect, and Remedy. (Jakarta: 2012, ELSAM). H. 70-76.

Ana-Maria Pascal , Business and Human Rights, from Theory to Practice and Law to
Morality: Taking a Philosophical Look at the Proposed UN Treaty
https://link.springer.com/article/10.1007/s40926-020-00150-0

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