Professor Robert McCorquodale
Summary by Sophie Sklar
On October 26th 2023, as part of the Nathanson Center’s annual Or Emet Lecture, Osgoode Hall was pleased to host Professor Robert McCorquodale.
Professor McCorquodale brought to the lecture his expertise and experience as part of the United Nations Working Group on Business and Human Rights. This working group is made of five independent experts who have assisted businesses and civil societies around the world in a variety of issues related to business and human rights.
Through this lens, Professor McCorquodale provided a discussion on the development and enactment of the United Nations Guiding Principles on Business and Human Rights (“Guiding Principles”) and how this key document transformed the global understanding of business and human rights. Professor McCorquodale provided both a high-level overview of the state of business and human rights globally, as well as specific analysis pertaining to the Guiding Principles and their impacts.
Understanding the Guiding Principles
The beginning of the discussion centered around whether the Guiding Principles are law and defining the framework within which they operate. Professor McCorquodale discussed the mix of legislation, regulation, and corporate activity that governs business and human rights worldwide. He noted that the Guiding Principles are not international law, but rather that they are a coherent collection of existing principles. However, as Professor McCorquodale pointed out, state practice is beginning to follow the Guiding Principles and state policies are referring to them which demonstrates an understanding of the Guiding Principles within state actions.
Professor McCorquodale also highlighted the increasing expanding duties of states when attempting to enforce business and human rights protections globally. As he noted, “the state can only control the business that is domiciled in its territory, but if that business’ actives/subsidiaries are elsewhere … states can pass laws that impact these activities”. He continued that the expansion of previous sovereignty limitations demonstrates that we are seeing, “business and human rights pushing away from the traditional international human rights law tradition.”
How the Guiding Principles Have Evolved and Changed States’ Duties
Professor McCorquodale’s talk further discussed how the Guiding Principleshave placed increased obligations on both states and businesses to prevent human rights abuses happening both within their operational structure, and their larger supply chains. As he observed, the Guiding Principleshave developed a “global movement” of new regulations and developments of existing regulations surrounding business and human rights. This includes the promotion of human rights due diligence.
Human rights due diligence entails the active prevention, mitigation and remediation of risks of human rights abuses, as well as consultation with stakeholders, he explained. He further stated: “Human rights due diligence is about the human rights risks, that’s where you look, and then the consequence to your business… they can seem the same, but remember the human part of it. Remember the rights-holder impact is crucial.”
Following the discussion of human rights due diligence stemming from the Guiding Principles, Professor McCorquodale presented a number of case studies to demonstrate the increased access to remedies for human rights abuses within the business sphere. This includes the more recently recognized obligation that parent companies have a duty of care for human rights and climate change abuses that occur in their subsidiaries. It is clear, he observed, that even though not formal law, the Guiding Principles have had a large impact on the development of business and human rights frameworks.
What Does this Mean for Canada?
Professor McCorquodale concluded with a discussion of how these developments can impact Canadian companies. He highlighted that EU laws, such as the forthcoming Corporate Sustainability Due Diligence Directive which was inspired by the Guiding Principles, will apply to Canadian companies operating outside Canada. Moreover, he commented that the trend towards corporate disclosure would be insufficient after the Guiding Principles. Professor McCorquodale argued that directors of Canadian corporations should do more than just report – they should have a duty of care to actively prevent human rights abuses within their corporate structure and supply chain.
It is evident from Professor McCorquodale’s discussion that the Guiding Principles have had and will continue to have a great impact on the development of business and human rights regulation. Their impact globally can already be seen by the numerous countries – from France to Japan – adopting their own form of human rights due diligence initiatives. What is unclear is whether Canada will embrace the impact of the Guiding Principles or continue to resist them.