Influencing regulation on corporate responsibility for human rights impacts
Professor Robert McCorquodale's research on the responsibilities of corporations for human rights impacts has helped to create a field which did not previously exist in law. He identified an area of law which was an intersection of matters of public international law, international human rights law, private international law, company law, torts law, criminal law and environmental law, and which also drew on business management and international relations.
His research first clarified this intersection, and the issues concerning the roles of non-state actors in public international law and their human rights responsibilities, prior to 2000. It was only in about 2011 that the field began to have the particular identity of "business and human rights".
His research in the past 10 years has drawn on these developments and helped to clarify key elements of the field. These include the extent of state's legal obligations for the provision of judicial remedies for corporate activities which cause human rights impacts (The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business (2013)); clarification of the corporate responsibility to respect human rights ('Human Rights Responsibilities in the Oil and Gas Sector: Applying the UN Guiding Principles' (2013)); and the extent to which there is access to remedies for victims ('The Soft Law Nature of the OECD Guidelines: An Impediment for Access to Remedy?' (2018)).
He has also undertaken both conceptual research, which sought to offer a sound theory basis for the core term of human rights due diligence ('The Concept of "Due Diligence" in the UN Guiding Principles on Business and Human Rights' (2017) and 'Pluralism, Global Law and Human Rights' (2013)), and quantitative and qualitative empirical research ('Human Rights Due Diligence in Law and Practice: Good Practices and Challenges of Business Enterprises' (2017) and 'Responsible Business Conduct and State Laws: Addressing Human Rights Conflicts' (forthcoming 2020)).
He has also been able to place some of these developments within the context of wider changes in public international law (‘Sources and the “Subjects” of International Law: A Plurality of Law-Making Participants’ 2017)), and in the development of an international rule of law (‘Rule of Law in Business and Finance: Development and Human Rights Issues’ (2015) and 'Defining the International Rule of Law: Defying Gravity?' (2016)). This ensures that the developments in business and human rights are included within the understanding of contemporary public international law.
His work has been used to assist in the development of global standards ('Human Rights, Responsibilities and Due Diligence: Key Issues for a Treaty' (2017)). He was appointed in 2014 (and been renewed each year since) as an Independent Special Advisor for the United Nations Open-Ended Working Group on Drafting a Legally Binding Instrument on Business and Human Rights. This has required him to comment publicly and privately on aspects of the development of this treaty, as well as to discuss with diplomats, corporations and civil society about aspects of the draft treaty. Some of his comments have had clear impacts as they have been directly included in new drafts. He was even once called on to facilitate a negotiation between two senior diplomats.
His co-authorship of a major study for the European Commission (Study on Due Diligence in the Supply Chain (2020)) had further impact. On 29 April 2020, the European Commissioner for Justice in a public statement referred directly (and at length) to this study, and then stated that he would begin a process to draft legislation in the EU for mandatory human rights due diligence.
He has also been engaged in working with governments to deal with domestic legislation in this area. He was appointed Special Advisor to the UK Parliament’s Joint Committee on Human Rights for its Inquiry into Corporations Responsibility and Accountability for Human Rights, 2016-2017), partly due to his authorship of the Survey of the Provision in the United Kingdom of Access to Remedies for Victims of Human Rights Harms by Business Enterprises (2015). In his role as Special Advisor he had a crucial role in summarising the written evidence and the key issues for the Committee, in the determination of those who would give oral evidence before the Committee, and in the drafting of the Report. The Report was published as Human Rights and Business 2017: Promoting Responsibility and Ensuring Accountability. He has also regularly provided training to government departments on business and human rights issues.
He has worked closely with corporations and with civil society on the development of standards and practices to ensure the protection of human rights. These include publications arising from engagement with corporations (see above), as well as giving seminars for general counsels of corporations and others.
His work with civil society has included acting as a legal practitioner in drafting the Intervention to assist the court in the key case on parent company duty of care to come before the UK Supreme Court: Vedanta v Lungowe (2019). This case directly affects both victims of human rights impacts due to corporate activity and assists corporations in the clarification of their responsibilities in this area. He has also provided training to academics, civil society and government officials around the world, including in Australia, China, Qatar and Sudan, to enhance capacity building worldwide.
Professor McCorquodale continues to research, teach and practice in business and human rights, to assist in clarifying and drawing the contours of this new area of law.