Background

The United Nations Human Rights Council has endorsed the recommendations of the report of John Ruggie, the Special Representative of the United Nations (“UN”) Secretary-General on human rights and transnational business (United Nations Document A/HRC/17/31) – with significant implications for global human rights responsibilities of business.

The Report came out of the Special Representative’s comprehensive research and investigation of human rights issues over the course of six years. It is also based on extensive consultation with all stakeholder groups, including governments, business enterprises and associations, experts in law and policy, and individuals and communities directly affected by the activities of business enterprises in various parts of the world.

The Report has significant implications for global business practices as it represents a concerted effort to consolidate and codify international customary and legal expectations with respect to the human rights practices of business.

The guiding principles and the “Protect, respect and remedy” framework

The main purpose of the Guiding Principles is to determine ways in which businesses, governments and citizens can work within the “Protect, Respect and Remedy” Framework endorsed by the UN Human Rights Council in 2008. The Framework was designed to ensure that corporations and states comply with their human rights obligations in the context of transnational business.

The three pillars of the “Protect, Respect and Remedy” Framework are:

  1. The state’s duty to protect human rights;
  2. The corporate responsibility to protect human rights;
  3. The need for greater access to remedy for victims of business-related abuse.1 

The Guiding Principles are organized under these three pillars. The Guiding Principles perform three main functions. First, they dictate the steps that governments should take to foster corporate respect for human rights. Second, they provide a “blueprint” for companies to “know and show” that they respect human rights, and outline how businesses can reduce the risk of furthering human rights abuses. Third, they act as a set of benchmarks for all stakeholders to gauge business respect for human rights.2

Practically speaking

The Guiding Principles suggest practical ways in which human rights goals can be achieved. Though they do not create new international law obligations, the Guiding Principles do elaborate on, integrate and explain the implications of existing standards and practices for states and businesses in a cohesive set of rules. They contain detailed directions for both business enterprises and states to promote compliance with international human rights instruments.

Because states are the primary duty-bearers under international human rights law, the Guiding Principles put the onus on governments to enforce human rights obligations in the business realm. That being the case, the Guiding Principles also move beyond a focus on state obligations and emphasise the responsibilities of corporations to conduct diligence to ensure they are respecting human rights at home and abroad.

Implications for business

Some of the suggestions set out in the Guiding Principles for business enterprises to meet their human rights obligations include:

  • Business enterprises should avoiding infringing on internationally recognized human rights and should address adverse human rights impacts with which they are involved and which could violate the Universal Declaration of Human Rights (including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) or the International Labour Organization’s Declaration on the Fundamental Principles and Rights at Work;
  • Business enterprises should have in place a policy regarding human rights, approved by senior management, informed by expertise, communicated to personnel and business partners, and reflected in operational policies and procedures;
  • Business enterprises should have in place a human rights due-diligence process to prevent, mitigate and account for how they address their adverse human rights impacts;
  • Business enterprises should identify, assess, integrate findings, and track the effectiveness of responses to outcomes of any human rights due-diligence process;
  • Business enterprises should treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate;
  • Business enterprises should establish or participate in effective non-judicial, operational-level grievance mechanisms for individuals and communities who may be adversely impacted by their operations; and
  • Business enterprises employing non-judicial grievance mechanisms should ensure those mechanisms are: legitimate, accessible, predictable, equitable, transparent, rights-compatible, a source of continuous learning, and based on engagement and dialogue.

Implications for states and governments

Some of the rules for states and governments presented in the Guiding Principles include:

  • That governments must set out clearly the expectation that all businesses domiciled in their jurisdiction must respect human rights in their territory and abroad;
  • That states should legally regulate businesses more aggressively to ensure compliance with international human rights instruments (this could include reporting requirements for human rights similar to those in place under corporate or securities laws);
  • That human rights due-diligence requirements be put in place for any agency linked formally or informally to the state, including any corporation associated with or providing goods or services to government bodies or their affiliates;
  • That governments assess how their agencies can reinforce corporate compliance with human rights obligations; one effective enforcement mechanism may be to deny access to public support and services for a business enterprise that is involved with gross human rights abuses if the business refuses to address the situation; and
  • That governments incorporate human rights policies into investment treaties, free-trade agreements and contracts for investment projects.

Conclusion

With the endorsement of the Guiding Principles by the UNHRC, the international obligations of corporate actors in matters of human rights have been clarified. In light of this codification of best practices and customary and legal expectations,  it will become increasingly important for businesses to be aware of the human rights law provisions they must take into consideration when operating at home and abroad.  Human rights diligence should be part of legal compliance reviews for transnational business – from project financing to operational management. It will be imperative for companies with operations in more sensitive jurisdictions, such as conflict-affected areas, to include human rights considerations as part of their legal due diligence. Governments of all states are under increasing legal pressure to aggressively and scrupulously enforce international human rights instruments, which may involve legislating, regulating, monitoring or the use of “soft law” policies and guidelines on businesses to ensure compliance with their own obligations under international human rights law.  A proactive approach will help to avoid legal and reputational risks that can affect the viability of transnational business efforts.

The Ruggie Report can be found on the United Nations Website at:

http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf