Abstract
The Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the United Nations Human Rights Council in June 2011, following the six-year mandate of the Special Representative to the Secretary General (SRSG) on the issue of human rights and transnational corporations and other business enterprises. The SRSG developed a framework comprised of three pillars: (1) States have a duty to protect against human rights abuses committed by third parties, including business enterprises; (2) business enterprises have a responsibility to respect human rights; and (3) victims of business-related human rights abuses need access to effective remedies. In particular, guiding principle (GP) 11 provides that business enterprises should respect human rights, that is, they should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved. This article considers the implications of the Guiding Principles’ framework for business; the continuing role of conventional accountability mechanisms in providing access to remedy for victims under the third pillar of the framework; and developments in ‘hard law’, with a particular focus on the approach by the UK, since the introduction of the UNGPs, before turning, briefly, to the future for business and human rights.
Keywords: Business, human rights, due diligence, company liability, corporate responsibility, modern slavery
Introduction
THE PREAMBLE to the Universal Declaration of Human Rights (UDHR) calls on ‘every individual and every organ of society’ to promote and respect human rights. As Louis Henkin, a leading international scholar, commented on this preamble, making it clear how it applies to business: ‘every individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal Declaration applies to them all.’1 Of course, as many of the articles in this special issue make clear, the duty to protect and promote human rights lies with national governments. That said, in 2011 the UN Human Rights Council endorsed the ‘Guiding principles on business and human rights’ (UNGPs).2 The UNGPs make it clear that businesses have a responsibility to respect human rights.
However, as this article will explain, critics point out that there is still no international mechanism for victims of human rights abuses to bring complaints against companies. There are ongoing call for binding rules and strict enforcement around business and human rights, including the UK.
Human rights standards for corporations: the historical context
The endorsement of the UNGPs was a significant turning point for business and human rights. For several decades prior to 2011, there had been myriad failed attempts to create international standards to address adverse human rights abuses by transnational corporations. In particular, the ‘Draft norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’ (Draft Norms) had controversially sought to assert that state-based human rights instruments were binding on corporations. Consequently, the Draft Norms were not approved by the UN Commission on Human Rights, who said they had ‘no legal standing’.3
However, the question of the responsibilities of transnational corporations and related business enterprises with regard to human rights remained a priority, particularly given high-profile cases such as the Bhopal industrial disaster. The UNGPs were the answer to that question and were resoundingly welcomed by governments and corporations alike. The reaction of civil society was more tempered. While many NGOs welcomed the ‘protect, respect, remedy’ framework promulgated by the UNGPs, there remained a concern that the UNGPs were mere ‘soft’ law and did not sufficiently plug the ‘governance gap’.4
The UNGPs: a paradigm shift for business
The framework consists of three pillars; ‘the state duty to protect’, ‘the corporate responsibility to respect human rights’, and ‘effective access to remedies’. With respect to the second pillar of the framework, GP 11 provides that the responsibility of all private actors, including businesses to ‘respect’ human rights means that businesses ‘should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved’. Businesses can be involved in an adverse human rights impact in a number of ways, whether through their own operations or through a ‘business relationship’ (including with a supplier, joint venture partner, subsidiary or client).
The nature of this involvement will determine how a business is expected to respond. The commentary to GP 19 elaborates: (a) where a business causes an adverse human rights impact, it should take the necessary steps to cease or prevent the impact; (b) where a business contributes 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, and (c) where a business is only ‘directly linked’ to an adverse human rights impact through its business relationships, it should exercise leverage to prevent or mitigate the adverse impact.
GP22 adds that business should remediate victims where they have caused or contributed to harm. To identify whether and how they are involved in an actual or potential adverse human rights impact and determine the appropriate response, businesses should have in place ‘policies and processes appropriate to their size and circumstances’, including a human rights due diligence process whereby businesses identify, prevent, mitigate and account for how they address their adverse human rights impacts.5 This overlaps with the responsibility of a business to carry out human rights due diligence under various other sources of ‘soft’ law, including the ‘Voluntary principles on security and human rights’, the OECD ‘Guidelines for multinational enterprises’ and OECD ‘Guidance for responsible supply chains of minerals from conflict affected and high risk areas’. The SRSG has noted that ‘the concept “human rights due diligence”—which didn’t exist before—has entered into a variety of international and domesticpolicyarenas’.6
Ongoing use of conventional accountability mechanisms
As noted in the introduction, the primary duty under international human rights law is on the state and the UNGPs do not create any new international legal obligations. The ‘corporate responsibility to respect’ is said to be ‘extra-legal’ or ‘non-legal’. Accordingly, the UNGPs are often referred to as ‘soft’ law. However, this label can be misleading. A business which does not respect human rights exposes itself (and, in certain circumstances, its personnel) to potential legal liability as well as to adverse publicity and the risk of boycotts and divestment.
Most commonly, this liability will arise under the domestic law of the ‘territorial state’, that is, the state where the human rights impact takes place. This may be under specific human rights law or it may be under another area of the law which does not expressly refer to human rights, like non-discrimination provisions in employment law, privacy law, health and safety law or general tort law. Some states will exercise extra-territorial jurisdiction over certain adverse human rights impacts in order to provide rights holders with access to a remedy.7 For example, a UK domiciled parent company and its overseas subsidiary may be sued in the English courts for an extra-territorial human rights impact framed as a tort (or some other civil wrong). See, for example, the claim against Vedanta Resources plc and its Zambian subsidiary for injury allegedly caused by pollution from a copper mine in northern Zambia.8
Involvement in an adverse human rights impact may be framed as a crime (or, more commonly, complicity in a crime) under international law and prosecuted in the domestic courts of any state on the basis of universal jurisdiction, irrespective of where the crime took place. In addition, the International Criminal Court has expressed interest in prosecuting business executives associated with land grabs and large-scale environmental damage.9
Under the Alien Tort Claims Act (ATCA), US courts have civil jurisdiction over torts committed outside the United States in violation of the law of nations. This has been exercised to extend liability to corporations for complicity in torture, forced displacement and other war crimes. In 2018, the Supreme Court excluded jurisdiction over non-US companies under the ATCA, but there remains scope for liability for non-US executives and for US companies, which could include claims against US parent companies in relation to the activities of their non-US subsidiaries.10
http://www.mondaq.com/uk/x/826638/Human+Rights/What+Role+For+Human+Rights+In+Business