Draft Guiding Principles on Business and Human Rights

A number of authors on this blog have followed the progress of the human rights and business agenda at the United Nations over the past few years (e.g. here and here).  The work of the UN Special Representative on Business and Human Rights is coming to a culmination as his mandate expires in 2011.  With this in mind, the Special Representative has published draft Guiding Principles for the United Nations Protect, Respect and Remedy Framework for consultation.  The draft guiding principles build upon the work of the Special Representative so far and they seek to substantiate the basic protect, respect and remedy framework that has been developed.  There are a number of innovative aspects of the Guidelines which will be highlighted below.
State Duty to Protect
The first guiding principle provides that States must protect against business-related human rights abuses within their territory and/or jurisdiction.  This is a restatement of existing human rights law which imposes a clear obligation on states. However, the guiding principles then go further by calling upon states to also encourage businesses domiciled in their territory to respect human rights throughout their global operations.  This principle is drafted not as a hard obligation.  Nevertheless, it is an important extension of a states responsibility to promote human rights at the international level.  Further content is given to this principle in subsequent principles which encourage states to set out their expectations for businesses operating in or from their territory and to provide effective guidance to business enterprises on how to respect human rights.  In other words, the responsibility to protect human rights in business operations is shared by states and businesses.  States cannot simply say that they have nothing to do with companies who are based in their territory but which are operating overseas.  The guiding principles emphasise that states should take an interest and work with businesses to promote human rights, wherever they operate.
Many states already take on this kind of role and the OECD Guidelines on Multinational Enterprises, which are currently under revision, are one way in which this can be done.  Guiding principle eight is also important in that it suggests that states should take appropriate steps to ensure that businesses which receive support from the state, i.e. through investment insurance schemes, are required to respect human rights in their operations.  This is already done at the international level by the World Bank’s Multilateral Investment Guarantee Agency and the experience of this institution can be built upon at the national level in order to ensure best practice.
A final aspect of the state duty to protect worth emphasising is the recognition that economic instruments entered into by states can have an impact on human rights.  Thus, the fourth guiding principle encourages states to maintain adequate policy space to implement human rights when negotiating international instruments, such as investment treaties and investment contracts.  The precise relationship between international investment law and international human rights law is the subject of a large, and growing, literature and it is not always clear when and where tensions may arise.  In his last report, the Special Rapporteur said that he was exploring the possibility of issuing guidance for states on responsible contracting.  This kind of guidance would be particularly helpful and model treaty and contract clauses could be developed in order to assist states in implementing this guiding principle.
Corporate Responsibility to Respect
The corporate responsibility to respect is perhaps the most innovative aspect of the Protect, Respect and Remedy Framework.  The Guiding Principles give a basic definition of the responsibility to respect and then call for particular action to be taken by businesses.  They encourage businesses to put in place a policy on human rights (Guiding Principle 13) and to undertake human rights impact assessments and monitoring (due diligence) when planning new activities (Guiding Principle 15).  The Guiding Principles recognise that what is required will depend on the size of the business and the type of activity they are carrying out.  However, the Guiding Principles must be seen in the context of the large number of examples and case studies that have been produced by or on behalf of the Special Representative over the past few years.  Taken together, these provide helpful hints as to best practice in this area.  What might be useful is the establishment of some sort of clearing house mechanism so that interested actors can continue to communicate on the implementation of the Guiding Principles, even after the mandate of the Special Rapporteur has expired, thus sharing best practice as it develops.
Remedy
The final aspect of the framework is the need for effective remedies.  Remedies are broadly defined to include legal processes as well as soft enforcement through other forms of complaint mechanisms.  This aspect of the Guiding Principles also emphasises partnership between business and government who should work together to promote effective remedies.  The OECD Guidelines on Multinational Enterprises are again a good example of this approach in practice and the procedures put in place by states to monitor implementation of the Guidelines is likely to be one of the key issues that will be prominent in the revision of the Guidelines.  The Guiding Principles reproduce the effectiveness criteria for non-judicial grievance mechanisms which were outlined in a previous report of the Special Rapporteur and they provide a useful benchmark for judging whether or not states and businesses are living up to their responsibilities in this regard.
As noted above, the Guiding Principles are currently in draft form and anyone can take part in the consultation by going to the website http://www.srsgconsultation.org/
The consultation is consistent with the approach of the Special Representative so far which has tried to promote inclusivity as far as possible, in recognition of the fact that the end product will only be successful if it is embraced by the business and human rights communities, as well as those states which sit on the UN Human Rights Council.