On 16 June 2011, the UN Human Rights Council (the "Council") endorsed the "Guiding Principles on Business and Human Rights" (the "Guiding Principles"). Whilst the Guiding Principles do not themselves create new international law obligations in the field of human rights, they do bring together and elaborate on the implications of existing human rights standards for business. They are already influencing other aspects of international commerce (such as the OECD Guidelines for Multinational Enterprises of May 2011), are likely to be seen and referred to by States, pressure groups and indeed businesses themselves as the benchmark for how businesses should approach and address the human rights impact of their operations, and are likely to form the basis of further developments in the area of human rights.

This bulletin explains the background to and gives a brief overview of some of the key elements within the Guiding Principles. It then makes some comments concerning the wider impact of the Guiding Principles, and possible future developments in this area.

Herbert Smith, in conjunction with the British Branch of the International Law Association, will be hosting a seminar on Business and International Human Rights on Thursday 7 July at which these issues will be discussed further. Please click here for further details.

Background

The Guiding Principles are the culmination of six years of work by Professor John Ruggie, who in 2005 was appointed Special Representative of the UN Secretary General "on the issue of human rights and transnational corporations and other business enterprises". In June 2008, following three years of research and consultations, Professor Ruggie proposed and the Council adopted the "Protect, Respect and Remedy" Framework (the "Framework"). The Framework is made up of three pillars, focussing on the State's responsibility to protect against third party abuses of human rights, businesses' responsibility to respect human rights, and the need for an adequate remedy for victims of human rights abuses.

The Council then extended Professor Ruggie's mandate for a further three years, asking him to "operationalise" the Framework – to provide practical recommendations for its implementation. Professor Ruggie's work has given rise to the Guiding Principles – entitled the "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework".

Structure and content of the Guiding Principles

The Guiding Principles are split into three sections, addressing each pillar of the "Protect, Respect and Remedy" framework in turn. Within each section, the Guiding Principles set out a small number of "Foundational Principles" before going on to provide a number of more practical "Operational Principles", in each case accompanied by detailed commentary. Whilst it is not possible in a short bulletin such as this to discuss all of the Principles, we highlight and discuss some of the significant Principles below.

  1. The State duty to protect human rights

With respect to the first part of the Framework, there are only two Foundational Principles. The first provides that States must protect against human rights abuses within their territory and/or jurisdiction by third parties, requiring States to take appropriate actions to prevent, investigate, punish and address abuses through effective policies, legislation, regulations and adjudication.

The second Foundational Principle is that States should set out clearly the expectation that all business enterprises domiciled in their territory and / or jurisdiction respect human rights throughout their operations. The commentary confirms that this includes the extraterritorial activities of those business enterprises – something many States have traditionally been slow or reluctant to address.

The Operational Principles under this head include principles addressing the State's general regulatory and policy functions, and the State-business nexus. States are to take additional steps to protect against human rights abuses by business enterprises that they own or control, or that receive substantial support and services from the State. There is also a particular focus on conflict – affected areas, with States being required to help ensure businesses operating in such contexts are not involved in human rights abuses.

States are to maintain adequate flexibility in domestic policy to enable them to meet their human rights obligations when pursuing business-related policy objectives with other States, for example through investment treaties or contracts.

  1. The corporate responsibility to respect human rights

With respect to businesses, the Guiding Principles contain five Foundational Principles, starting with the basic principle that businesses should respect "internationally recognised human rights", which the Guiding Principles state should be understood "at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights as set out in the International Labour Organization's Declaration on Fundamental Principles and Rights at Work".

The responsibility of businesses to respect human rights requires not only that businesses avoid causing or contributing to adverse human rights impacts through their own activities, but that they seek to prevent or mitigate such adverse impacts that are directly linked to their operations, even if they have not contributed to those impacts.

Businesses should have in place: (a) a policy commitment to meet their responsibility to respect human rights; (b) a human rights due-diligence process to identify, prevent, mitigate and account for their impacts on human rights; and (c) a process to enable remediation of any adverse human rights impacts they cause or contribute to.

The Operational Principles expand on the requirement for a policy commitment (which is to be approved at the most senior level of the business enterprise) and human rights due diligence.

The introduction of the concept of human rights due diligence is perhaps the most significant development in the Guiding Principles, and, if applied in the way that the Guiding Principles propose, is likely to have a significant impact on the way many businesses' processes work. Businesses are required to carry out human rights due diligence to assess the actual and potential human rights impacts of their operations, covering both impacts which their own activities cause or contribute to, and impacts which may be directly linked to their operations. Although it will vary according to the complexity and size of the business, the risks associated with it, and the nature and context of its operations, the human rights due diligence is to be ongoing, recognising that human rights risks may change over time, and is to involve meaningful consultation with potentially affected groups and stakeholders. The findings from the human rights due diligence are to be integrated across relevant internal functions and processes, with responsibilities allocated and appropriate action taken. Businesses are to track the effectiveness of their response.

The commentary recognises that even with the best policies and practices, a business may cause or contribute to an adverse human rights impact it has not foreseen or been able to prevent, and the Guiding Principles include that a business should provide for or cooperate in the remediation of such impacts. The Guiding Principles require that businesses should treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue.

  1. Access to a remedy

Under the third pillar of the Framework, there is only one Foundational Principal – that States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when abuses occur within their territory, those affected have access to effective remedy.

The Operational Principles then address in turn State-based judicial mechanisms, State-based non-judicial grievance mechanisms, and non-State-based grievance mechanisms. The latter will be of most interest to business, with the Guiding Principles suggesting that business enterprises should establish or participate in effective operational-level grievance mechanisms. The Operational Principles set out criteria by which the effectiveness of such non-judicial grievance mechanisms might be judged – including that the mechanisms should be legitimate, accessible, predictable, equitable, transparent, rights compatible, a source of continuous learning, and (with respect to operational mechanisms) based upon engagement and dialogue with stakeholder groups.

Implications of the Guiding Principles

What, then, is the significance of the Guiding Principles? Professor Ruggie's own report which accompanies the Guiding Principles acknowledges that they do not create new international law obligations. Instead, the report considers that their normative contribution will be "in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved…"

The UK government, which co-sponsored the resolution adopting the Guiding Principles, also made clear in a comment at the meeting of the Human Rights Council that it was doing so subject to the understanding that the Guiding Principles "do not all necessarily reflect the current state of international law". The UK also commented that "while certain treaty obligations contain a 'due diligence' standard, this is not a general provision".

Professor Ruggie's work, and the Guiding Principles, are nevertheless already having an impact. The May 2011 OECD Guidelines for Multinational Enterprises contain an important new chapter on human rights, with the OECD Secretary – General stating that the new human rights recommendations "benefitted greatly from the work of [Professor Ruggie] and are in line with the [Guiding Principles]". The Guiding Principles are likely to be taken up by NGOs wishing to champion a human rights agenda, and may, for example, have an impact on the next round of updates to the Equator Principles, which are due to take place in the latter part of 2011 - for more details on this process, see our e-bulletin available here. Companies, particularly multinational corporations, will come under pressure to reflect the Guiding Principles in their internal corporate policies.

In this respect, it is the requirement to carry out human rights due diligence that is perhaps the most significant. In many fields businesses will already carry out impact assessments, possibly as part of satisfying requirements imposed by lenders or other stakeholders in order to obtain permission or funding for a particular project. However, bringing the concept of due diligence into the human rights sphere is likely to broaden both the uptake of or requirement for such assessments, including within companies' own internal corporate policies, and the breadth or scope of such assessments or due diligence when carried out.

The Future

In addition to endorsing the Guiding Principles, the Human Rights Council also established a Working Group to promote the effective and comprehensive dissemination and implementation of the Guiding Principles. It therefore seems clear that the Guiding Principles will form an important focus for development in this area in coming years.

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