GuidinG PrinciPles On Business And Human RiGHts

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Photos: shutterstock.comDesigned and printed by the Publishing Service, United Nations,Geneva — GE.11-46529 — January 2012 — 4 951 — HR/PUB/11/4Guiding Principleson Businessand Human RightsImplementingthe United Nations“Protect, Respect andRemedy” Framework

Guiding Principleson Businessand Human RightsImplementingthe United Nations“Protect, Respect andRemedy” FrameworkNew York and Geneva, 2011

NoteThe designations employed and the presentation of the material in this publication do not imply theexpression of any opinion whatsoever on the part of the Secretariat of the United Nations concerningthe legal status of any country, territory, city or area, or of its authorities, or concerning the delimitationof its frontiers or boundaries.Symbols of United Nations documents are composed of capital letters combined with figures. Mentionof such a figure indicates a reference to a United Nations document.HR/PUB/11/04 2011 United NationsAll worldwide rights reserved

iiiContentsI. THE STATE DUTY TO PROTECT HUMAN RIGHTS3A. Foundational principles3B. Operational principles4II. THE CORPORATE RESPONSIBILITY TO RESPECTHUMAN RIGHTS13A. Foundational principles13B. Operational principles16III. ACCESS TO REMEDY27A. Foundational principle27B. Operational principles28

ivThis publication contains the "Guiding Principles on Business and Human Rights:Implementing the United Nations ‘Protect, Respect and Remedy’ Framework", whichwere developed by the Special Representative of the Secretary-General on the issueof human rights and transnational corporations and other business enterprises. TheSpecial Representative annexed the Guiding Principles to his final report to theHuman Rights Council (A/HRC/17/31), which also includes an introduction to theGuiding Principles and an overview of the process that led to their development.The Human Rights Council endorsed the Guiding Principles in its resolution 17/4of 16 June 2011.

1General principlesThese Guiding Principles are grounded in recognition of:(a) States’ existing obligations to respect, protect and fulfil human rights andfundamental freedoms;(b) The role of business enterprises as specialized organs of society performingspecialized functions, required to comply with all applicable laws and torespect human rights;(c) The need for rights and obligations to be matched to appropriate andeffective remedies when breached.These Guiding Principles apply to all States and to all business enterprises, bothtransnational and others, regardless of their size, sector, location, ownership andstructure.These Guiding Principles should be understood as a coherent whole and should beread, individually and collectively, in terms of their objective of enhancing standardsand practices with regard to business and human rights so as to achieve tangibleresults for affected individuals and communities, and thereby also contributing to asocially sustainable globalization.Nothing in these Guiding Principles should be read as creating new internationallaw obligations, or as limiting or undermining any legal obligations a State mayhave undertaken or be subject to under international law with regard to humanrights.These Guiding Principles should be implemented in a non-discriminatory manner,with particular attention to the rights and needs of, as well as the challengesfaced by, individuals from groups or populations that may be at heightened riskof becoming vulnerable or marginalized, and with due regard to the different risksthat may be faced by women and men.

3I.The State duty to protect human rightsA.Foundational principles1. States must protect against human rights abuse within their territoryand/or jurisdiction by third parties, including business enterprises. Thisrequires taking appropriate steps to prevent, investigate, punish andredress such abuse through effective policies, legislation, regulationsand adjudication.CommentaryStates’ international human rights law obligations require that they respect,protect and fulfil the human rights of individuals within their territory and/or jurisdiction. This includes the duty to protect against human rights abuseby third parties, including business enterprises.The State duty to protect is a standard of conduct. Therefore, States are notper se responsible for human rights abuse by private actors. However, Statesmay breach their international human rights law obligations where suchabuse can be attributed to them, or where they fail to take appropriate stepsto prevent, investigate, punish and redress private actors’ abuse. WhileStates generally have discretion in deciding upon these steps, they shouldconsider the full range of permissible preventative and remedial measures,including policies, legislation, regulations and adjudication. States alsohave the duty to protect and promote the rule of law, including by takingmeasures to ensure equality before the law, fairness in its application, andby providing for adequate accountability, legal certainty, and proceduraland legal transparency.This chapter focuses on preventative measures while chapter III outlinesremedial measures.2. States should set out clearly the expectation that all business enterprisesdomiciled in their territory and/or jurisdiction respect human rightsthroughout their operations.CommentaryAt present States are not generally required under international human rightslaw to regulate the extraterritorial activities of businesses domiciled in their

4territory and/or jurisdiction. Nor are they generally prohibited from doing so,provided there is a recognized jurisdictional basis. Within these parameterssome human rights treaty bodies recommend that home States take steps toprevent abuse abroad by business enterprises within their jurisdiction.There are strong policy reasons for home States to set out clearly theexpectation that businesses respect human rights abroad, especially wherethe State itself is involved in or supports those businesses. The reasons includeensuring predictability for business enterprises by providing coherent andconsistent messages, and preserving the State’s own reputation.States have adopted a range of approaches in this regard. Some aredomestic measures with extraterritorial implications. Examples includerequirements on “parent” companies to report on the global operations ofthe entire enterprise; multilateral soft-law instruments such as the Guidelinesfor Multinational Enterprises of the Organisation for Economic Co-operationand Development; and performance standards required by institutionsthat support overseas investments. Other approaches amount to directextraterritorial legislation and enforcement. This includes criminal regimesthat allow for prosecutions based on the nationality of the perpetratorno matter where the offence occurs. Various factors may contribute tothe perceived and actual reasonableness of States’ actions, for examplewhether they are grounded in multilateral agreement.B.Operational principlesGeneral State regulatory and policy functions3.In meeting their duty to protect, States should:(a) Enforce laws that are aimed at, or have the effect of, requiringbusiness enterprises to respect human rights, and periodically toassess the adequacy of such laws and address any gaps;(b) Ensure that other laws and policies governing the creation andongoing operation of business enterprises, such as corporate law,do not constrain but enable business respect for human rights;(c) Provide effective guidance to business enterprises on how torespect human rights throughout their operations;(d) Encourage, and where appropriate require, business enterprisesto communicate how they address their human rights impacts.

5CommentaryStates should not assume that businesses invariably prefer, or benefit from,State inaction, and they should consider a smart mix of measures – nationaland international, mandatory and voluntary – to foster business respect forhuman rights.The failure to enforce existing laws that directly or indirectly regulatebusiness respect for human rights is often a significant legal gap in Statepractice. Such laws might range from non-discrimination and labour lawsto environmental, property, privacy and anti-bribery laws. Therefore, itis important for States to consider whether such laws are currently beingenforced effectively, and if not, why this is the case and what measures mayreasonably correct the situation.It is equally important for States to review whether these laws provide thenecessary coverage in light of evolving circumstances and whether, togetherwith relevant policies, they provide an environment conducive to businessrespect for human rights. For example, greater clarity in some areas of lawand policy, such as those governing access to land, including entitlementsin relation to ownership or use of land, is often necessary to protect bothrights-holders and business enterprises.Laws and policies that govern the creation and ongoing operation ofbusiness enterprises, such as corporate and securities laws, directly shapebusiness behaviour. Yet their implications for human rights remain poorlyunderstood. For example, there is a lack of clarity in corporate and securitieslaw regarding what companies and their officers are permitted, let alonerequired, to do regarding human rights. Laws and policies in this areashould provide sufficient guidance to enable enterprises to respect humanrights, with due regard to the role of existing governance structures such ascorporate boards.Guidance to business enterprises on respecting human rights shouldindicate expected outcomes and help share best practices. It should adviseon appropriate methods, including human rights due diligence, and how toconsider effectively issues of gender, vulnerability and/or marginalization,recognizing the specific challenges that may be faced by indigenouspeoples, women, national or ethnic minorities, religious and linguistic

6minorities, children, persons with disabilities, and migrant workers andtheir families.National human rights institutions that comply with the Paris Principles havean important role to play in helping States identify whether relevant lawsare aligned with their human rights obligations and are being effectivelyenforced, and in providing guidance on human rights also to businessenterprises and other non-State actors.Communication by business enterprises on how they address their humanrights impacts can range from informal engagement with affected stakeholdersto formal public reporting. State encouragement of, or where appropriaterequirements for, such communication are important in fostering respect forhuman rights by business enterprises. Incentives to communicate adequateinformation could include provisions to give weight to such self-reportingin the event of any judicial or administrative proceeding. A requirement tocommunicate can be particularly appropriate where the nature of businessoperations or operating contexts pose a significant risk to human rights.Policies or laws in this area can usefully clarify what and how businessesshould communicate, helping to ensure both the accessibility and accuracyof communications.Any stipulation of what would constitute adequate communication shouldtake into account risks that it may pose to the safety and security of individualsand facilities; legitimate requirements of commercial confidentiality; andvariations in companies’ size and structures.Financial reporting requirements should clarify that human rights impactsin some instances may be “material” or “significant” to the economicperformance of the business enterprise.The State-business nexus4. States should take additional steps to protect against human rightsabuses by business enterprises that are owned or controlled by theState, or that receive substantial support and services from Stateagencies such as export credit agencies and official investmentinsurance or guarantee agencies, including, where appropriate, byrequiring human rights due diligence.

7CommentaryStates individually are the primary duty-bearers under international humanrights law, and collectively they are the trustees of the international humanrights regime. Where a business enterprise is controlled by the State orwhere its acts can be attributed otherwise to the State, an abuse of humanrights by the business enterprise may entail a violation of the State’s owninternational law obligations. Moreover, the closer a business enterprise isto the State, or the more it relies on statutory authority or taxpayer support,the stronger the State’s policy rationale becomes for ensuring that theenterprise respects human rights.Where States own or control business enterprises, they have greatestmeans within their powers to ensure that relevant policies, legislationand regulations regarding respect for human rights are implemented.Senior management typically reports to State agencies, and associatedgovernment departments have greater scope for scrutiny and oversight,including ensuring that effective human rights due diligence is implemented.(These enterprises are also subject to the corporate responsibility to respecthuman rights, addressed in chapter II.)A range of agencies linked formally or informally to the State mayprovide support and services to business activities. These include exportcredit agencies, official investment insurance or guarantee agencies,development agencies and development finance institutions. Where theseagencies do not explicitly consider the actual and potential adverse impactson human rights of beneficiary enterprises, they put themselves at risk – inreputational, financial, political and potentially legal terms – for supportingany such harm, and they may add to the human rights challenges faced bythe recipient State.Given these risks, States should encourage and, where appropriate,require human rights due diligence by the agencies themselves and bythose business enterprises or projects receiving their support. A requirementfor human rights due diligence is most likely to be appropriate where thenature of business operations or operating contexts pose significant risk tohuman rights.

85. States should exercise adequate oversight in order to meet theirinternational human rights obligations when they contract with, orlegislate for, business enterprises to provide services that may impactupon the enjoyment of human rights.CommentaryStates do not relinquish their international human rights law obligationswhen they privatize the delivery of services that may impact upon theenjoyment of human rights. Failure by States to ensure that businessenterprises performing such services operate in a manner consistent withthe State’s human rights obligations may entail both reputational and legalconsequences for the State itself. As a necessary step, the relevant servicecontracts or enabling legislation should clarify the State’s expectations thatthese enterprises respect human rights. States should ensure that they caneffectively oversee the enterprises’ activities, including through the provisionof adequate independent monitoring and accountability mechanisms.6. States should promote respect for human rights by business enterpriseswith which they conduct commercial transactions.CommentaryStates conduct a variety of commercial transactions with businessenterprises, not least through their procurement activities. This providesStates – individually and collectively – with unique opportunities to promoteawareness of and respect for human rights by those enterprises, includingthrough the terms of contracts, with due regard to States’ relevant obligationsunder national and international law. Supporting business respect for human rights in conflictaffected areas7. Because the risk of gross human rights abuses is heightened in conflictaffected areas, States should help ensure that business enterprisesoperating in those contexts are not involved with such abuses, includingby:(a) Engaging at the earliest stage possible with business enterprises tohelp them identify, prevent and mitigate the human rights-relatedrisks of their activities and business relationships;

9(b) Providing adequate assistance to business enterprises to assessand address the heightened risks of abuses, paying specialattention to both gender-based and sexual violence;(c) Denying access to public support and services for a businessenterprise that is involved with gross human rights abuses andrefuses to cooperate in addressing the situation;(d) Ensuring that their current policies, legislation, regulations andenforcement measures are effective in addressing the risk ofbusiness involvement in gross human rights abuses.CommentarySome of the worst human rights abuses involving business occur amidconflict over the control of territory, resources or a Government itself –where the human rights regime cannot be expected to function as intended.Responsible businesses increasingly seek guidance from States abouthow to avoid contributing to human rights harm in these difficult contexts.Innovative and practical approaches are needed. In particular, it is importantto pay attention to the risk of sexual and gender-based violence, which isespecially prevalent during times of conflict.It is important for all States to address issues early before situations onthe ground deteriorate. In conflict-affected areas, the “host” State maybe unable to protect human rights adequately due to a lack of effectivecontrol. Where transnational corporations are involved, their “home” Statestherefore have roles to play in assisting both those corporations and hostStates to ensure that businesses are not involved with human rights abuse,while neighboring States can provide important additional support.To achieve greater policy coherence and assist business enterprisesadequately in such situations, home States should foster closer cooperationamong their development assistance agencies, foreign and trade ministries,and export finance institutions in their capitals and within their embassies,as well as between these agencies and host Government actors; developearly-warning indicators to alert government agencies and businessenterprises to problems; and attach appropriate consequences to anyfailure by enterprises to cooperate in these contexts, including by denyingor withdrawing existing public support or services, or where that is notpossible, denying their future provision.

10States should warn business enterprises of the heightened risk of beinginvolved with gross abuses of human rights in conflict-affected areas.They should review whether their policies, legislation, regulations andenforcement measures effectively address this heightened risk, includingthrough provisions for human rights due diligence by business. Wherethey identify gaps, States should take appropriate steps to address them.This may include exploring civil, administrative or criminal liability forenterprises domiciled or operating in their territory and/or jurisdiction thatcommit or contribute to gross human rights abuses. Moreover, States shouldconsider multilateral approaches to prevent and address such acts, as wellas support effective collective initiatives.All these measures are in addition to States’ obligations under internationalhumanitarian law in situations of armed conflict, and under internationalcriminal law.Ensuring policy coherence8. States should ensure that governmental departments, agencies andother State-based institutions that shape business practices are awareof and observe the State’s human rights obligations when fulfillingtheir respective mandates, including by providing them with relevantinformation, training and support.CommentaryThere is no inevitable tension between States’ human rights obligationsand the laws and policies they put in place that shape business practices.However, at times, States have to make difficult ba

business-related human rights abuses when they do occur, the State duty to protect can be rendered weak or even meaningless. Access to effective remedy has both procedural and substantive aspects. The remedies provided by the grievance mechanisms discussed in this section may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human .

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