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Focus: Latest UN report provides guidance on human rights for business

4 May 2010

In brief: In April 2010, the United Nations Special Representative on Business and Human Rights, Professor John Ruggie, released a report providing concrete guidance and recommendations on the UN's framework on business and human rights. Partner Annette Hughes , Senior Associate Rachel Nicolson and Lawyer Catie Shavin report.

How does it affect you?

  • The 9 April 2010 UN report (the report) provides guidance on the practical meaning and implementation of the UN framework on business and human rights, which is increasingly being referenced by governments, business, international organisations and other stakeholders.
  • The recommendations proposed in the report may impact on the legal and policy standards with which businesses are required to comply. Significantly, these recommendations include that businesses undertake comprehensive human rights due diligence.
  • The report gives an indication of the issues and recommendations likely to feature in the Special Representative's third report in 2011, which will probably have a substantial impact on the development of international and domestic law and policy.

Background

Appointed to the role in 2005, the UN Special Representative's performance of his initial three-year mandate, which focused on identifying expectations and obligations business faces in respect of human rights, resulted in the 'protect, respect and remedy' framework (the UN framework).1 The UN framework, which addresses the governance gaps between the impact of corporations on human rights and the management by states, business and societies of the consequences of those impacts, was unanimously endorsed by the Human Rights Council in 2008. It rests on three pillars:

  • the state duty to protect against human rights violations within their jurisdiction, including those involving corporations;
  • the corporate responsibility to respect human rights; and
  • access by victims to effective remedies (both judicial and non-judicial).

In 2008, the Special Representative's mandate was extended for a further three years, during which period he is tasked with 'operationalising' and 'promoting' the framework.

The third report: progress towards operationalizing and promoting the framework

The latest report, released by the UN Special Representative on 9 April 2010, details the progress he has made in operationalizing this framework, and in doing so, provides further guidance to corporations on the steps that can be taken to meet their responsibility to respect human rights.

As reported, the Special Representative's efforts over the past 12 months have included working to map corporate law and securities regulation relevant to human rights in more than 40 jurisdictions (for Allens Arthur Robinsons' contributions to these reports, see: Australia, New Zealand, Papua New Guinea, Hong Kong, China and Indonesia2), considering the due diligence contents of the corporate responsibility to respect human rights, and further developing and testing the framework's principles on company-based grievance mechanisms.

The report outlines its findings on each pillar of the framework made by the Special Representative's work to date.

The state duty to protect

The report identifies five priority areas to be addressed by states to achieve greater policy coherence and effectiveness. They comprise:

  • safeguarding the state's ability to meet its human rights obligations;
  • considering human rights when they engage with business;
  • fostering corporate cultures respectful of human rights;
  • devising innovative policies to guide companies operating in conflict-affected areas; and
  • examining extraterritorial jurisdiction in respect of corporate impacts on human rights overseas.

The Special Representative has studied the impact of bilateral investment treaties and host government agreements, and notes the potential risk that states may, through these agreements, limit their ability to meet their own obligations. He encourages states to ensure that such agreements combine robust investor protections with adequate allowances for public interest measures, including human rights. Professor Ruggie also notes that few export credit agencies explicitly consider the human rights impacts of ventures they support, even though such risks may be high.

The Special Representative proposes that corporate culture be addressed through corporate social responsibility (CSR) policies, reporting requirements, the statutory content of directors' duties, and reform of criminal law and process to expressly recognise the concept of 'corporate culture' as a factor at the prosecuting and/or sentencing stage. Professor Ruggie has also convened a group of states in informal brainstorming sessions to generate innovative and practical approaches to addressing the impact of corporate activity in conflict-affected areas.

The corporate responsibility to respect

The Special Representative notes that companies often lack a strategic concept for addressing human rights systematically, preferring ad hoc CSR initiatives that are typically detached from their internal control and oversight systems.

In this report, Professor Ruggie provides guidance as to the scope of the corporate responsibility to respect human rights, indicating that it is determined with reference to the direct and indirect impacts of the company. He recommends that companies look to the International Bill of Human Rights3 and the International Labour Organisation core conventions4 as the baseline reference for human rights that may be relevant to their operations.

The Special Representative confirms that various elements of the corporate responsibility to respect human rights will be required under domestic law, depending on the jurisdiction of operation. In consideration of this legal variance, the Special Representative recommends that companies should adopt a high-water mark compliance approach to human rights violations, even where precise legal standards are not fully defined or enforced, such as when operating in weak governance zones and where there is a risk of corporate complicity in international crime.

Professor Ruggie has identified the exercise of human rights due diligence as a process that may provide an appropriate approach to the corporate responsibility to respect human rights and management of the associated risks. He notes that human rights due diligence comprises several components:

  • a statement of policy;
  • periodic assessment of actual and potential human rights impacts of the company's activities and relationships;
  • integration of these commitments and assessments into internal control and oversight systems; and
  • performance tracking and reporting.

Access to remedy

The Special Representative has focused on three types of grievance mechanisms, company-level mechanisms and judicial and non-judicial state-based mechanisms, and has considered ways in which these can be complemented by initiatives undertaken by other stakeholders.

At the company level, Professor Ruggie has identified principles with which all non-judicial grievance mechanisms should comply to ensure credibility and effectiveness. These include legitimacy, accessibility, predictability, equitability, rights-compatibility and transparency. In this report, he suggests that company-level mechanisms should preference dialogue and engagement over adjudication.

The Special Representative notes that non-judicial state-based mechanisms are often overlooked, and that national human rights institutions and national contact points (which address complaints under the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises) may facilitate achievement of these objectives.

The Special Representative also considered the challenges presented by corporate human rights impacts to the effective operation of judicial systems. He notes that these challenges include the attribution of responsibility among members of a corporate group, jurisdictional issues relating to foreign operations of multinational corporations, and the resources and expertise required for investigation of large companies. He also discusses the practical obstacles restricting access to these remedies, which include costs, issues related to bringing representative and aggregated claims and disincentives to providing assistance to victims.

The Special Representative has established the online resource, BASESwiki,5 which supports information-sharing, learning and expertise in the pursuit of more effective grievance mechanisms across the world. He is also conducting a feasibility study of the potential of new international networked mediation arrangements to enhance access to sustainable dispute resolution in business and human rights.

Conclusion

The third report of the Special Representative makes progress towards operationalising and promoting the United Nations Framework, gives guidance about, and clarification of the scope of, the corporate responsibility to respect human rights, and provides a useful discussion of a number of issues concerning business and human rights that have emerged from the Special Representative's work.

This report therefore provides valuable guidance as to the likely direction of legal and policy developments, both domestically and internationally, and the possible impact on corporations of these developments. It also provides guidance as to the standard of conduct that corporations are, and may in future be, expected to meet.

Further guidance can be expected in the Special Representative's final report, which is due to be presented to the United Nations Human Rights Council in 2011. We will alert you to the contents of that report when it is released.

Footnotes
  1. Proposed in 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 April 2008, which can be found at http://baseswiki.org/.
  2. http://www.business-humanrights.org/.
  3. Consisting of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
  4. The ILO has identified eight 'core' conventions, available at http://www.ilo.org/global/.
  5. http://baseswiki.org/en/Main_Page.

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