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The UNGPs on Business and Human Rights: State Duties and Business Responsibilities

Global and multi-level governance approaches to the human rights and business field have yielded major achievements over the past decade. Broad multilateral soft law standards have been adopted, such as the OECD Guidelines for Multinational Enterprises[1] [2] or the ILO Declaration on Fundamental Principles and Rights at

Work.7 Multi-stakeholder initiatives, such as the UN Global Compact in 2000, have been launched and supported by private companies, states, civil society organizations, labour organizations, and also several UN agencies. At the same time, sectorial guidelines and codes of conduct have been adopted8 and many multistakeholder initiatives have been launched on issues pertaining to the human rights and business field.9

The UNGPs take stock of existing human rights obligations, regulations and policies, multi-governance initiatives, good practices and challenges, and CSR developments within the field of human rights and business. They provide for a well-s tructured presentation of relevant issues in the form of guiding principles. Based on the ‘Protect, Respect, and Remedy’ Framework for business and human rights presented by Special Representative of the Secretary General (SRSG) Professor John Ruggie to the UN HRC,10 the UNGPs define and unpack the distinction that exists between the state duty to protect human rights and the corporate responsibility to respect human rights.n They provide for a set of principles that states and businesses must apply, should apply, or ought to consider applying (depending on the case) to prevent, mitigate, or redress human rights-related abuses by business enterprises. In March 2011, the UNGPs were endorsed by the HRC. Subsequently a Working Group on the issue of human rights and transnational corporations and other business enterprises was established by an HRC resolution in June 2011.12

The UNGPs are presented, and to some extent accepted, as a common reference point that provides a basis for new initiatives in the field of human rights and business. The author of the UNGPs, John Ruggie, has repeatedly emphasized that the UNGPs are only ‘the end of the beginning’ and a ‘common foundation from which thinking and action of all stakeholders would generate cumulative progress over far-reaching recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They have been revised several times since 1976.

  • 7 The Declaration adopted by the ILO in 1998 declares that all ILO members, even if they have not ratified the Conventions in question, have an obligation to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions (e.g. freedom of association, right to collective bargaining, elimination of forced or compulsory labour, abolition of child labour, elimination of discrimination).
  • 8 See e.g.: Voluntary Principles for Security and Human Rights (2000), which concern extractive sector companies, Code of Conduct for Private Security Service Providers (2010), the OECD Due Diligence Guidelines for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas (2011); The FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security (2012), etc.
  • 9 Such as the Extractive Industries Transparency Initiative—EITI (2003) or the Kimberley Process on conflict diamonds (2002).
  • 10 Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Protect, Respect and Remedy: A Framework for Business and Human Rights, 7 Apr. 2008 (A/HRC/8/5).
  • 11 Respectively GP 1 (state duty to protect human rights) and GP 11 and 12 (business responsibility to respect human rights).
  • 12 Resolution endorsing the UNGPs and establishing the Working Group on the issue of human rights and transnational corporations and other business enterprises, HRC, 17th session, 33rd meeting, 16 June 2011 (A/HRC/17/4).

time’.[3] [4] [5] There is a general expectation that an uptake of the UNGPs in the work of the UN, in a global governance framework as well as at the domestic and local level, will take place in the years to come. This has already been the case since June 2011.14 The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (UNWG) plays a central role in the uptake of the UNGPs.15

In terms of contents, the state’s duty to protect, defined by Pillar 1 of the UNGPs, focuses on the positive obligation of the state to safeguard individuals’ human rights against abuses committed by non-state actors. The human rights obligation of states with regard to business activities is to ensure that business enterprises do not indirectly infringe upon human rights. Where a state is unable or unwilling to protect individuals against human rights-related abuses, another state (the home state in the case of transnational business activities) or the business enterprise itself may have a responsibility to take action. Pillar 3 of the UNGPs, which addresses the roles of state and non-state actors in securing access to remedy, reiterates in Guiding Principle 5 the international human rights duty of states ‘to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or j urisdiction those affected have access to effective remedy’.

Pillar 2 prescribes the business enterprises’ responsibility to respect human rights and defines its central element: a due diligence obligation for business enterprises to address the human rights impacts of their activities at home and through their subsidiaries and other business relationships abroad. According to the UNGPs, business enterprises are expected to prevent and mitigate human rights impacts directly linked to their operations, products, and services as well as to provide remedies to potential victims. The main tools envisaged by Pillars 2 and 3 are human rights impact assessments, the integration of human rights policies into operations, human rights monitoring and auditing, as well as transparent reporting to relevant stakeholders and providing remedies to victims.

The nature of the state duties listed in the UNGPs is twofold: first, a reminder of international human rights obligations undertaken by states through previous international and regional treaties and conventions and, second, recommendations to take action in specific ways and regarding selected issues. Taking action means for example that states should be proactive in ensuring companies operating in conflict-affected areas do not become involved in human rights abuses,[6] or a reminder that states may regulate extraterritorial activities of companies domiciled or listed in their jurisdiction.![7] Accordingly, the state duty to protect consists of a ‘smart mix’![8] of legally binding obligations and soft law commitments. The nature of the corporate responsibility to respect human rights has been detailed and discussed in many commentaries to the UNGPs.1[9] It is in any case certain that the UNGPs do not create direct human rights obligations for companies under international law. An attempt to create such human rights obligations imposed directly on business enterprises has failed in the past,[10] [11] [12] [13] as such an endeavour raises enormous conceptual, legal, and practical challenges.21

Since the endorsement of the UNGPs by the HRC, the discussion surrounding the creation of a legally binding UN treaty on human rights and business that would impose obligations on states, and possibly also business enterprises, has been kept alive by non-governmental organizations and a group of states within the UN system.22 On 26 June 2014, the HRC voted in favour of a resolution that represents a step towards a legally binding instrument on business and human rights. The HRC resolution establishes an open-ended intergovernmental working group to elaborate an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights.23

  • [1] C. Chinkin, ‘Normative Development in the International Legal System’, in Commitmentand Compliance: The Role of Non-binding Norms in the International Legal System, ed. D. Shelton(Oxford: Oxford University Press, 2000): 21-42 at 42.
  • [2] The OECD Guidelines for Multinational Enterprises are annexed to the OECD Declaration onInternational Investment and Multinational Enterprises first adopted in 1976. The Guidelines are
  • [3] Report of the Special Representative of the Secretary-General on the issue of human rights andtransnational corporations and other business enterprises, J. Ruggie, 21 Mar. 2011, A/HRC/17/31, para. 13. See also: R. Mares, ‘Business and Human Rights after Ruggie: Foundations, the Art ofSimplification and the Imperative of Cumulative Progress’, in The UN Guiding Principles on Business andHuman Rights: Foundations and Implementation, ed. R. Mares (The Hague: Brill, 2012): 85—105 at 86.
  • [4] 14 European Commission’s ‘Renewed EU Strategy 2011—14 for Corporate Social Responsibility’,COM(2011), 681 final, 25 Oct. 2011: The Commission regards the UNGPs as providing authoritative guidance; OECD Guidelines for Multinational Enterprises, Recommendations for ResponsibleBusiness Conduct in a Global Context, 25 May 2011.
  • [5] HRC Resolution 17/4 of 16 June 2011 (A/HRC/17/4). In June 2014, the HRC, at its twenty-sixth session, decided to extend the Working Group’s mandate for a period of three years (A/HRC/26/22).
  • [6] GP 7. 17 GP 2. 18 Commentary under GP 3.
  • [7] 19 J. Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’, in Mares (2012): 51—
  • [8] 83; See also Part III The Nature and the Extent of Corporate Obligations (several contributions) in
  • [9] Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, ed. S. Deva and D.Bilchitz (Cambridge: Cambridge University Press, 2013), 191—268.
  • [10] Norms on the Responsibilities of Transnational Corporations and Other Business Enterpriseswith Regard to Human Rights, 2003, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2.
  • [11] Summed up in a 2005 Report of the UN High Commissioner on Human Rights on the responsibilities of transnational corporations and related business enterprises with regards to human rights, UNDoc. E/CN.4/ 2005/91. See also: J. Ruggie, ‘Business and Human Rights: The Evolving InternationalAgenda’, American Journal of International Law (2007): 822.
  • [12] Republic of Ecuador Government statement to the UN HRC: Statement on Behalf of a Groupof Countries at the 24th Session of the Human Rights, General Debate—Item 3 ‘TransnationalCorporations and Human Rights’, Geneva, Sept. 2013. See also; NGO Joint Statement: Call foran international legally binding instrument on human rights, transnational corporations and otherbusiness enterprises, authored by Treaty Alliance (CETIM, Dismantle Corporate Power Campaign,ESCR-Net, FIAN, FIDH, Franciscans Intl., Friends of the Earth Intl., Transnational Institute) andsigned by more than 500 organizations, 28 Apr. 2014. Both documents are available on the websiteof the Business and Human Rights Resource Centre (). Seealso: Issue Brief by J. Ruggie: A UN Business and Human Rights Treaty? Harvard Kennedy School, 28Jan. 2014.
  • [13] HRC Resolution L.22, A/HRC/26/L.22/Rev.1. The final vote was 20 in favour, 14 against, and13 abstentions.
 
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