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ISBN 978-92-1-154207-3
e-ISBN 978-92-1-056839-5
© 2014 United Nations
CONTENTS
INTRODUCTION 1
Chapters
I. GENERAL QUESTIONS 3
Q 15. What is the Working Group on the issue of human rights and
transnational corporations and other business enterprises? 16
Q 16. What is the Forum on Business and Human Rights? 17
Q 17. Where can I find guidance on how to implement the Guiding
Principles? 18
INTRODUCTION
In June 2011, the Human Rights Council, the main United Nations
intergovernmental body responsible for the promotion and protection of human
rights, endorsed the Guiding Principles on Business and Human Rights. The
Guiding Principles had been developed by the then Special Representative
of the United Nations Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie.1
The endorsement marked a milestone in the decades-long debate about how
human rights apply to business. It established the Guiding Principles as the first
authoritative global framework to address business impact on all human rights,
applicable to both States and businesses, and clarified their respective duties
and responsibilities for tackling human rights risks related to business activities.
The Guiding Principles have also been endorsed by many companies, business
organizations, civil society organizations, trade unions, national and regional
institutions, and other stakeholder groups. This has further solidified their status
as the key global normative framework for business and human rights.
The Guiding Principles are based on six years of work by the Special
Representative, including in-depth research and extensive consultations with
companies, governments, civil society, affected individuals and communities,
lawyers, investors and other stakeholders, as well as practical road-testing.
rights treaties, and 80 per cent of States have ratified four or more. Some
fundamental human rights norms also enjoy universal protection by customary
international law across all boundaries and civilizations.
All human rights—whether civil, cultural, economic, political or social—are
indivisible, interrelated and interdependent. This means that improving one
right facilitates advancement of the others. Likewise, the deprivation of one
right adversely affects all the others.
To read more about human rights, the development of the international human rights
movement and human rights issues and mechanisms, visit the website of the Office of
the United Nations High Commissioner for Human Rights: www.ohchr.org.
To find out more about labour rights and international labour standards, including the
eight core ILO conventions, visit: www.ilo.org/global/standards/lang--en/index.
htm (accessed 28 August 2014).
provide information on their customers to States that then use it to track down
and punish dissidents.
However, international human rights treaties generally do not impose direct
legal obligations on private actors, such as companies. Instead, States are
responsible for enacting and enforcing national legislation that can have the
effect of requiring companies to respect human rights—such as laws mandating
a minimum working age. There are some exceptions in different areas of
law, for example international humanitarian law also imposes obligations on
private actors, including individuals and companies. However, human rights
treaty obligations are generally understood as falling on States only. Given that
companies do not have the same legal duties as States under international human
rights law, there has been a long-standing debate about what responsibilities
companies do have for human rights. The Guiding Principles on Business and
Human Rights were developed to clarify the different roles and responsibilities
that States and companies have to address business impact on human rights.
rights and address any impact. By establishing a global framework, they create
a common platform for action and accountability against which the conduct of
both States and companies can be assessed. The Guiding Principles constitute
a global standard that is also increasingly reflected in other international
governance frameworks (see annex II).
3
For in-depth information on the corporate responsibility to respect, see The Corporate
Responsibility to Respect Human Rights.
9
The Guiding Principles make clear that companies are subject to the laws of the
countries in which they operate; however, they also recognize that there may
be situations where a State lacks the institutional capacity to enforce national
laws and regulations against companies, in particular transnational ones, or
may be unwilling to do so. In some cases, the national legal environment may
conflict with international human rights standards, including the obligations
undertaken by the State. The Guiding Principles provide a framework for
States, companies and others to understand their distinct, but complementary
roles and the actions needed to effectively prevent and address adverse impact
linked to business activities.
and others have been using the United Nations “protect, respect and remedy”
framework, and later the Guiding Principles, on behalf of victims in this way.
For example, civil society organizations have used the Guiding Principles as
a framework for analysing human rights risks and responsibilities in specific
sectors, and then advocating for action and better standards. They have also
used the Guiding Principles to advocate for the establishment or improvement
of grievance mechanisms or to analyse the effectiveness of existing remedy
mechanisms. Other organizations have used the Guiding Principles to analyse
whether States are taking adequate steps to protect against business-related
abuses through legislation, policy measures and regulation.
Several organizations have produced guides for victims of corporate human
rights abuses and civil society organizations, including on how to use the
Guiding Principles in research and advocacy. (See annex IV for further details.)
The Guiding Principles themselves do not provide a grievance mechanism
or remedy for victims of business-related abuses. Such mechanisms must be
implemented by States and companies respectively in order for victims to be
assured access to effective remedy.
However, it is worth noting that, while the Guiding Principles do not come with a
dedicated accountability mechanism, there are other international mechanisms
that can consider concerns about business impact on human rights. For
example, the Guidelines for Multinational Enterprises of the Organisation for
Economic Co-operation and Development (OECD) provide for the establishment
in each adhering State of National Contact Points which can hear complaints
of corporate human rights abuse through the “specific instance” procedure.
These Guidelines apply to all OECD members and all other adherents to the
OECD Declaration on International Investment and Multinational Enterprises.
(See also Q 14.)
Civil society organizations, affected stakeholders and other interested parties
can also use the Guiding Principles in their submissions to United Nations
bodies. For example, some civil society organizations have made submissions
to the universal periodic review of the Human Rights Council on the role of
States in ensuring business respect for human rights in certain countries.4
For further information on this review and how to make submissions, see
4
The Guiding Principles have also informed other global standards relevant
to business and human rights. For example, the Performance Standards
on Environmental and Social Sustainability of the International Finance
Corporation, the private-sector lending arm of the World Bank, were updated
in 2011 and correspond in important aspects with the corporate responsibility
to respect set out in the Guiding Principles. The Guiding Principles are reflected
in relevant parts of the Voluntary Guidelines on the Responsible Governance
of Tenure of Land, Fisheries and Forests in the Context of National Food
Security of the Food and Agriculture Organization of the United Nations
(FAO). The United Nations Global Compact, a United Nations policy initiative
for responsible business, has stated that the Guiding Principles provide the
content of the first two principles of the Global Compact, informing the
commitment undertaken by its participants. The International Organization
for Standardization has included a human rights chapter in its Guidance on
social responsibility that is aligned with the United Nations “protect, respect
and remedy” framework.
5
See footnote 2.
19
more regulation per se, but rather focuses on having in place the right kind
of regulation that is adequate and effective in requiring companies to respect
human rights.
The Guiding Principles focus not only on regulation and enforcement. They also
recognize that States have a range of legal, policy and economic tools at their
disposal to ensure business respect for human rights. The principles on the
State duty to protect call for incentives as well as sanctions, with room for
guidance, support and capacity-building alongside regulatory and punitive
approaches, where needed. States should use a variety of measures in
combination, as relevant to ensure adequacy and effectiveness. This is what is
referred to as a smart mix of measures.
The Guiding Principles recognize that there can be strong policy reasons for
extraterritorial jurisdiction. For example, the Guiding Principles note that the
risk of gross human rights abuses is greatest in conflict-affected areas. In such
areas, the “host” State may not be able or willing to protect human rights, and
there may be no State control or authority over the area. In those situations,
“home” States have a particular role to play in providing advice, assistance
and guidance, and in requiring companies operating in these areas to ensure
that they are not involved in human rights abuses.
It is also recognized that this is an evolving area of international law, with some
human rights treaty bodies increasingly recommending that home States take
steps to prevent abuse abroad by companies within their jurisdiction.
The Human Rights Committee, the expert committee on the International Covenant on
Civil and Political Rights, has affirmed, in its concluding observations to State parties,
that a responsibility to set out clearly the expectation that companies domiciled in their
territory or jurisdiction should respect human rights throughout their operations can be
inferred from the human rights obligations under the Covenant. The Committee has
also encouraged States to ensure access to remedy for people whose human rights
have been violated by such companies operating abroad (CCPR/C/DEU/CO/6).
Some States have taken action in this regard by, for instance, requiring
companies that use raw materials or commodities that might originate in
conflict-affected areas (for example, so-called conflict minerals) to disclose
their sourcing and use of such materials. Others issue specific guidance and
warnings to business about human rights risks in a particular conflict zone.
6
See footnote 2.
26
Remediation
If companies identify that they have caused or contributed to adverse impact, they
should provide for or cooperate in remediation through legitimate processes. In
some cases, remediation may be best achieved through judicial mechanisms,
in which case the company should cooperate with these processes. In other
cases, dialogue, mediation, arbitration or other non-judicial mechanisms may
be best suited to provide effective remedy. The appropriate form of remedy
28
will depend largely on the wishes of those affected. (For more information, see
chapter IV.)
In practice, companies will often run a greater risk of impact on some human
rights than on others in particular industries or contexts. However, this does not
change the fact that the responsibility to respect applies across all rights.
of options to prevent or mitigate the impact, but it does not affect the scope of
the responsibility itself.
Where national law is enacted and enforced in such a way that it requires
companies to respect all internationally recognized human rights, respecting
human rights will be a legal duty. But the corporate responsibility to respect
human rights exists above and beyond the need to comply with national laws
and regulations protecting human rights. It applies equally where relevant
domestic law is weak, absent or not enforced. Typically, some of the most
challenging situations for companies arise when national law directly conflicts
with international human rights standards or does not fully comply with them.
For example, a State’s national legislation may not provide for equal rights of
men and women or may restrict the rights to freedom of expression and freedom
of association. If the national legislative environment makes it impossible for a
company to fully meet its responsibility to respect human rights, the company
is expected to seek ways to honour the principles of internationally recognized
human rights and to continually demonstrate its efforts to do so. This could
mean, for example, protesting against government demands, seeking to
enter into a dialogue with the government on human rights issues, or seeking
exemptions from legal provisions that could result in adverse human rights
impact. But if over time the national context makes it impossible to prevent
or mitigate adverse human rights impact, the company may need to consider
ending its operations there, taking into account credible assessments about the
human rights impact of doing so.
7
For more details, see The Corporate Responsibility to Respect Human Rights.
31
Examples
A company may cause an adverse impact if it denies workers the right to organize
themselves. A company may contribute to an adverse impact if it provides financing
to a construction project that will entail forced evictions or agrees a purchasing order
with a supplier whose timeline for completion makes it impossible for the supplier
to adhere to international labour standards. A company’s operations, products or
services may be directly linked to an adverse impact through a business relationship if
one of its suppliers subcontracts work, without its prior knowledge, to contractors that
use forced labour. In this last example, the company has not caused or contributed
to the issue, but once made aware of it, it still has a responsibility to act to seek to
prevent and/or mitigate it.
These different types of involvement in adverse human rights impact will require
different responses. A company assesses the nature of its involvement in an
adverse human rights impact, i.e., whether it falls within (a) or (b) above,
through a process of human rights due diligence. If a company causes or
may cause an adverse human rights impact, it should take the necessary
steps to cease or prevent the impact. If it contributes or may contribute to an
adverse human rights impact, it should take the necessary steps to cease or
prevent its contribution and use its leverage to mitigate any remaining impact
to the greatest extent possible. If a human rights impact is directly linked to its
operations, products or services through a business relationship, it should seek
to prevent or mitigate such an impact even if it has not contributed to it.
32
The term “direct link” refers to the linkage between the harm and the company’s
products, services and operations through another company (the business
relationship). Causality between the activities of a company and the adverse
impact is not a factor in determining the scope of application of this part of the
Guiding Principles.
A company’s “business relationships” is defined broadly to encompass
relationships with business partners, entities in its value chain and any other
State or non-State entity directly linked to its business operations, products
or services. This includes entities in its supply chain beyond the first tier and
indirect as well as direct business relationships.8
with few employees may often not need very comprehensive systems, size
should never be the determining factor for the nature and scale of the processes
necessary to address human rights risk—this should always be guided by the
risk that the company’s operations, products, services and business relationship
pose to human rights.
A gold trading company with 20 employees buying gold from countries affected by
conflict and where human rights abuses are linked to minerals or are prevalent will
have a significant risk of its products, operations or services being linked to adverse
human rights impact through its business relationships. Its policies and processes to
ensure that it is not involved in such abuses will need to be proportionate to this risk.
This may necessitate comprehensive and formal systems. The company may also, for
example, need to bring in external expertise in human rights and human rights due
diligence processes, as it may not have such expertise in-house.
For resources specifically for small and mid-size companies, see annex IV.
34
However, the duty to ensure access to effective remedy does not simply mean
that States should strengthen their legal framework and court systems. They
should also ensure that effective non-judicial remedies are available to hear
and adjudicate business-related human rights complaints where appropriate.
Administrative, legislative and other non-judicial mechanisms play an essential
role in complementing and supplementing judicial mechanisms. Non-judicial
35
ANNEXES
ANNEX I. KEY CONCEPTS IN THE GUIDING PRINCIPLES
Business relationships
Business relationships refer to those relationships a business enterprise has
with business partners, entities in its value chain and any other non-State or
State entity directly linked to its business operations, products or services.
They include indirect business relationships in its value chain, beyond the
first tier, and minority as well as majority shareholding positions in joint
ventures.
Complicity
Complicity has both legal and non-legal meanings. As a legal matter, most
national legislations prohibit complicity in the commission of a crime, and a
number allow for the criminal liability of business enterprises in such cases.
The weight of international criminal law jurisprudence indicates that the
relevant standard for aiding and abetting is “knowingly providing practical
assistance or encouragement that has a substantial effect on the commission
of a crime”.
Examples of non-legal “complicity” could be situations where a business
enterprise is seen to benefit from abuses committed by others, such as when it
reduces costs because of slave-like practices in its supply chain or fails to speak
out in the face of abuse related to its own operations, products or services,
despite there being principled reasons for it to do so. Even though enterprises
have not yet been found complicit by a court of law for this kind of involvement
in abuses, public opinion sets the bar lower and can inflict significant costs on
them.
The human rights due diligence process should uncover risks of non-legal (or
perceived) as well as legal complicity and generate appropriate responses.
42
Due diligence
Due diligence has been defined as “such a measure of prudence, activity, or
assiduity, as is properly to be expected from, and ordinarily exercised by,
a reasonable and prudent [person] under the particular circumstances; not
measured by any absolute standard, but depending on the relative facts of
the special case”.a9In the context of the Guiding Principles, human rights due
diligence comprises an ongoing management process that a reasonable and
prudent enterprise needs to undertake, in the light of its circumstances (including
sector, operating context, size and similar factors) to meet its responsibility to
respect human rights.
Black’s Law Dictionary, 6th ed. (St. Paul, Minnesota, West, 1990).
a
43
Leverage
Leverage is an advantage that gives power to influence. In the context of the
Guiding Principles, it refers to the ability of a business enterprise to effect
change in the wrongful practices of another party that is causing or contributing
to an adverse human rights impact.
Mitigation
The mitigation of adverse human rights impact refers to actions taken to reduce
its extent, with any residual impact then requiring remediation. The mitigation
of human rights risks refers to actions taken to reduce the likelihood of a certain
adverse impact occurring.
44
Policy coherence
Policy coherence applies in the context of the State’s duty to protect human
rights. Policy coherence refers to consistency between policies and regulations
across different State departments, agencies and institutions. All institutions
that shape business conduct—for example, the departments responsible for
employment and labour conditions, business registration, export promotion,
international trade, environmental protection, and State-based export credit
agencies, while very different in their mandates, should all be aware of and
observe the State’s human rights obligations with respect to protecting against
negative impact from business activities.
Prevention
The prevention of adverse human rights impact refers to actions taken to ensure
such impact does not occur.
Remediation/remedy
Remediation and remedy refer to both the processes of providing remedy for an
adverse human rights impact and the substantive outcomes that can counteract,
or make good, the adverse impact. These outcomes may take a range of
forms, such as apologies, restitution, rehabilitation, financial or non-financial
compensation, and punitive sanctions (whether criminal or administrative, such
as fines), as well as the prevention of harm through, for example, injunctions or
guarantees of non-repetition.
Stakeholder/affected stakeholder
A stakeholder refers to any individual who may affect or be affected by an
organization’s activities. An affected stakeholder refers here specifically
to an individual whose human rights have been affected by an enterprise’s
operations, products or services.
Stakeholder engagement/consultation
Stakeholder engagement or consultation refers here to an ongoing process
of interaction and dialogue between an enterprise and its potentially affected
stakeholders that enables the enterprise to hear, understand and respond to
their interests and concerns, including through collaborative approaches.
Value chain
A business enterprise’s value chain encompasses the activities that convert input
into output by adding value. It includes entities with which it has a direct or
indirect business relationship and which either (a) supply products or services
that contribute to the enterprise’s own products or services, or (b) receive
products or services from the enterprise.
46
ISO 26000
The ISO 26000 guidance on social responsibility is a voluntary standard for
both public and private organizations. It contains guidance on seven “core
issues” related to social responsibility, including human rights. The ISO 26000
standard is separate from the Special Representative’s work. Nevertheless,
the chapter on human rights builds explicitly on the “protect, respect and
remedy” framework, and reflects the core content of the corporate responsibility
to respect human rights. www.iso.org/iso/home/standards/iso26000.htm
OECD Guidelines
The Organisation for Economic Co-operation and Development (OECD)
has issued Guidelines for Multinational Enterprises (revised 2011). The
2011 edition includes a chapter on human rights that is in alignment
with the Guiding Principles. The Guidelines also apply the due diligence
concept of the Guiding Principles to all aspects of corporate responsibility.
The OECD Guidelines provide for the establishment of National Contact
Points that can hear complaints of corporate violations of the Guidelines.
www.oecd.org/daf/inv/mne/
The Institute for Human Rights and Business (IHRB) produced Investing the Rights
Way: A Guide for Investors on Business and Human Rights in collaboration
with Calvert Investments and the Interfaith Center on Corporate Responsibility.
Available from www.ihrb.org/publications/reports/investing-the-rights-way.
html (accessed 28 August 2014).
CSR Europe has a Management of Complaints Assessment (MOC-A) Service
and produced a report on Assessing the Effectiveness of Company Grievance
Mechanisms (2013). Available from www.csreurope.org/management-
complaints-assessment-service-available-all-members and www.csreurope.org/
company_mechanisms_for_addressing_human_rights_complaints.html
(accessed 28 August 2014).
Oxfam has produced a series of guides and tools on corporate accountability: www.
oxfam.org.au/explore/corporate-accountability/ (accessed 28 August 2014).
The Equator Principles, a risk management framework adopted by financial
institutions for determining, assessing and managing environmental and
social risk in projects-based finance, which refer to the Guiding Principles,
are available from www.equator-principles.com/index.php/about-ep/about-ep
(accessed 28 August 2014).
The Voluntary Principles on Security and Human Rights are available from
www.voluntaryprinciples.org/.
The International Code of Conduct for Private Security Service Providers is
available from www.icoc-psp.org/.
Relevant information about the Extractive Industries Transparency Initiative is
available from http://eiti.org/.
Relevant information about the Ethical Trading Initiative is available from www.
ethicaltrade.org/.
Relevant information about the Fair Labor Association is available from www.
fairlabor.org/.
Relevant information about Social Accountability International and Social
Accountability Accreditation Services is available from www.sa-intl.org/ and
www.saasaccreditation.org/, respectively.
52
IPIECA, the global oil and gas industry association for environmental and social
issues, has produced a human rights training toolkit. It is available from www.
ipieca.org/good-practice/human-rights-training-toolkit (accessed 28 August 2014).
The International Council on Mining and Metals, an industry association
for sustainability in the mining and metals industry, has produced several
publications on human rights in the mining and metals sectors, including a guide
to operational-level grievance mechanisms. It is available from www.icmm.
com/page/14809/human-rights-in-the-mining-and-metals-industry-overview-
management-approach-and-issues (accessed 28 August 2014).
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ISBN: 978-92-1-154207-3
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HR/PUB/14/3