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The state duty to protect: connecting hard law and soft law?

As far as the UNGPs are concerned, a state human rights duty is both something the state must do and something the state should do. There is no distinct boundary between hard and soft law commitment. The first area of confusion concerns the actual lack of connection between Pillars 1 and 2 of the UNGPs.

As mentioned above, GP 1 restates the state obligation to protect against human rights abuses within their territory and/or jurisdiction by business enterprises through taking appropriate steps to prevent, investigate, punish, and redress such abuses via effective policies, legislation, regulations, and adjudication. Linking GP 1 to Pillar 2, one may deduce that states have an obligation to regulate the activities of business enterprises and thereby require that business enterprises assess, mitigate, report, and, if necessary, redress the human rights impacts that their activities may produce. In other words, voluntary CSR commitments would become compulsory requirements that states must adopt. These types of legal requirement are not unknown, as some states do require some form of non-financial reporting for certain types of company.[1] [2] According to the UNGPs, this is an avenue open to any state.

The commentary under GP 3 refers directly to due diligence and reporting and recommends states to ‘encourage, and where appropriate require, business enterprises to communicate how they address their human rights impacts’.167 More precisely, the UNGPs recommend that the state consider implementation of their pre-existing regulatory requirements on these matters, as well as the possible introduction of such requirements or the development of means to encourage companies to adopt due diligence and reporting processes on a voluntary basis.

The connection between GP 1 and Pillar 2 is not complete: passing laws requiring mandatory due diligence and reporting is a recommended option that international human rights law does not, however, impose on states. The drafters of a legally binding instrument on human rights and business, if they choose not to impose direct obligation on business enterprises, could design such a state obligation to regulate the human rights impacts of business enterprise activities.[3] [4]

  • [1] See e.g.: the German Corporate Governance Code or the Danish legislation on CSR. Accordingto a 2008 provision of the Danish Act on financial reporting, a large company or a financial institutionmust either give information on its CSR policy, its implementation, the results that have been achievedand the expectations for the future or expressly state that the company will not be engaging in CSR.In 2012 an amendment was adopted by the Danish Parliament to specifically include human rights(and climate policies) in this legal requirement (comply or explain) for reporting on CSR, available inDanish at: . Mandatoryimpact assessment is also known from comparable fields such as environment or health.
  • [2] GP 3, d.
  • [3] See section 6.
  • [4] D. Augenstein and D. Kinley, ‘When Human Rights Responsibilities Become Duties: The Extraterritorial Obligations of States that Bind Corporations?’, in Deva and Bilchitz (2013): 275.
 
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