The Danish Institute for Human Rights has published a working paper on “The State Duty to Protect Against Business-Related Human Rights Abuses”, which provides an extensive analysis of all of the guiding principles under pillars 1 (The State Duty to Protect) and 3 (Access to Remedy) of the United Nations’ Guiding Principles (UNGPs) on Human Rights and Business. The paper considers state duties and state access to remedy in the following three parts: overall issues such as the state’s approach to its duty to protect, state regulatory and policy functions and the question of extraterritoriality (part 1); specific issues covered by the UNGPs such as state businesses, privatization and public procurement, conflict-affected areas and international economic agreements concluded by states (part 2); and finally state duties pertaining to access to remedy (part 3). Hence this working paper covers all the guiding principles under the UNGPs Pillar 1 as well as the relevant state principles under Pillar 3.
September 17, 2014 | Danish Institute for Human Rights
The State Duty to Protect Against Business-Related Human Rights Abuses. Unpacking Pillar 1 and 3 of the UN Guiding Principles on Human Rights and Business
Stéphanie Lagoutte
Global and multi-level governance approaches to the human rights and business field have yielded major achievements over the past decade. Broad multilateral soft law standards have been adopted, such as the OECD Guidelines for Multinational Enterprises or the ILO Declaration on Fundamental Principles and Rights at Work. Multi-stakeholders initiatives, such as the UN Global Compact in 2000, have been launched and supported by private companies, states, civil society organizations, labor organizations as well as several UN agencies. At the same time, sectorial guidelines and codes of conduct have been adopted and many multi-stakeholders initiatives have been launched on issues pertaining more or less directly to the human rights and business field. In March 2011 the United Nations’ Guiding Principles on Business and Human rights (UNGPs) were endorsed by the Human Rights Council (HRC). Subsequently a Working Group on the issue of human rights and transnational corporations and other business enterprises was established by a HRC resolution in June 2011.
The UNGPs build on extensive work by Professor John Ruggie during his mandate as Special Representative of the Secretary-General (SRSG) on the issue of human rights and transnational corporations and other business enterprises (2005-2011). The UNGPs take stock of existing human rights obligations, regulations and policies, multi-governance initiatives, good practices and challenges, and corporate social responsibility (CSR) developments within the field of human rights and business. They provide for a well-structured presentation of relevant issues in the form of guiding principles. Based on the “Protect, Respect and Remedy” Framework for business and human rights, they enhance and unpack the distinction that exists between the state duty to protect human rights and the corporate responsibility to respect human rights. They provide for a set of principles that states and businesses must apply, or ought to apply or consider applying (depending on the case) to prevent, mitigate or redress corporate-related human rights abuses. The work of John Ruggie on the Framework and the UNGPs has been closely scrutinized by all actors and has been abundantly commented upon by scholars. Their overall analysis – more or less tainted by criticism – is that wide-ranging consultations, a remarkable consensus-building process, strategic choices to keep away from controversial issues, and a very careful wording of the final document have resulted in the Framework and the UNGPs receiving the endorsement of the HRC and thereby the international community.
The UNGPs are presented, and to some extent seen, as a common reference point that provides a “sound basis” for new initiatives in the field of human rights and business. As SRSG, John Ruggie himself emphasized repeatedly that the UNGPs were only “the end of the beginning” and a “common foundation from which thinking and action of all stakeholders would generate cumulative progress over time.” There is a general expectation that an uptake of the UNGPs in the work of the UN, in global governance framework as well as at domestic and local level, will take place in the years to come. The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (UNWG) is to play a central role in this respect.
The state duty to protect defined by Pillar 1 of the UNGPs focuses on the traditional role of the state in safeguarding individuals’ human rights against abuses committed by non-state actors (NSAs). The human rights obligation of states with regard to business activities is to ensure that such enterprises do not indirectly infringe upon human rights. Where a state is unable or unwilling to protect individuals against human rights related abuses, another state (home state in the case of transnational business activities) or the business enterprise itself may have a responsibility to take action. Pillar 3 of the UNGPs, which addresses the roles of state and non-state actors in securing access to remedy, reiterates the international human rights duty that states have “to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy”.
The nature of the corporate responsibility to respect human rights is very different and has been detailed and discussed in many commentaries to the UNGPs. It is in any case certain that the UNGPs do not create any direct human rights obligation for companies under international law. An attempt to create such human rights obligations imposed directly on business enterprises failed in the past. Such an endeavor raised enormous conceptual, legal and practical challenges. There is today still very little shared understanding between the creators of international human rights law—the states—as to what steps they should take with regard to business enterprises. However, the discussion on the creation of a legally-binding UN treaty on human rights and business that would impose obligations on states (and business enterprises?) has been kept alive by non-government organizations (NGOs) and a group of states within the UN system. On the 26th of June 2014, the HRC voted for a resolution that represented a step towards a legally-binding instrument on business and human rights. According to this text, the Council decided to establish an open-ended intergovernmental working group to elaborate an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Nevertheless, the actual elaboration and adoption of such a convention continues to pose monumental foundational challenges.
The nature of state duties listed in the UNGPs are two-fold: (1) a reminder of international human rights obligations undertaken by states through previous international and regional treaties and conventions and (2) a number of recommendations to take action in specific ways and matters (for example that states should be proactive in ensuring companies operating in conflict-affected areas do not become involved in human rights abuses, or a reminder that states may regulate extraterritorial activities of companies domiciled or listed in their jurisdiction). Accordingly, the state duty to protect consists of a “smart mix” of hard law commitments being recalled (i.e. legally-binding obligations) and soft law commitment of the same non-binding nature as the responsibilities of business enterprises.
The nature and content of state obligations in the field of human rights and business are best exemplified by the jurisprudence of the European Court of Human Rights (ECtHR). According to well-established case law of the ECtHR, states have both a negative obligation to protect individuals’ rights against violations by business enterprises acting as state agents, and a positive obligation to protect individuals against violations by business enterprises as third parties. In the former, the abusive acts of the private actor (the business enterprises) are attributed to the state so that the state is considered to directly interfere with the right(s) at stake. In the latter, the human rights violation is constituted by the state’s failure to take reasonable measures to protect individuals against corporate abuse.
Augenstein correctly distinguishes three types of state obligations in the case law of the ECtHR:
1. Substantive obligations to regulate and control corporate activities including the licensing, setting up, operation, security, and supervision of dangerous activities, and the provision of essential information about dangerous activities to the general public;
2. Procedural obligations to enable public participation and ensure an informed decision-making process that involves investigations, studies, and environmental impact assessments;
3. Obligations pertaining to law enforcement and judicial process, including the proper administration of justice and the provision of effective remedies.
In the same way as the European human rights system, the Inter-American Court and Commission for Human Rights have elaborated jurisprudence that pertains directly to the field of human rights and business. Based on articles 1.1 and 2 of the American Convention on Human Rights, the state has an overall obligation to act with due diligence to prevent human rights violation. This implies that the state must regulate and adjudicate activities of non-state actors – including business enterprises.
More specifically, the Inter-American Court and Commission have considered the rights of indigenous people linked to their natural resources. In 2012, the Court ruled that indigenous communities throughout the Americas must be consulted before their governments approve investment projects that affect their use and enjoyment of their traditional lands.
The UN human rights treaty bodies also participate in defining the international human rights obligations of states in the field of human rights and business, through the promulgation of soft law norms, non-binding reports and analyses. A series of reports on each of the UN treaty bodies prepared on behalf of the SRSG mapped the obligations of states to regulate and adjudicate corporate activities under the UN core human rights treaties. This role of the state is considered as being part of its duty to protect against abuse by third parties. The reports identify “a trend towards increasing pressure on States to fulfill this duty in relation to corporate activities” within its territorial jurisdiction, regardless of whether the entities in question are privately or publicly-owned or controlled. The situation is different concerning extraterritorial corporate activities.
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Many initiatives have been launched following the endorsement of the UNGPs by the HRC and there is a need to ensure that they all address consistently relevant issues under the UNGPs.
Taking as a starting point extensive research work done in relation to working on a country visit template on the UNGPs, this working paper sets out to unpack more specifically the State duties under Pillars 1 and 3. The idea here is to systematically identify actual human rights obligations, recommendations, challenges, good practice, lessons learned and opportunities to advance the understanding and thereby the dissemination and implementation of the UNGPs regarding the state duty to protect. Hence the working paper builds on previous and extensive work by the former SRSG on human rights and transnational corporations and other business enterprises, and his team, as well as contributions made to the field by scholars and analysts from states and civil society.
In doing so, this working paper respects the careful choice of language that is implemented throughout the UNGPs concerning the human rights duties of states in relation to business enterprises’ activities. As mentioned above, the UNGPs do not create new international law obligations: as far as the duty of the state is concerned, the UNGPs reiterate two pre-existing international human rights law obligations:
- States must protect against human rights abuse within their territory and/or jurisdiction by third parties (GP 1);
- States must provide individuals access to remedy for human rights abuses. This obligation includes investigation into allegations of abuse, the possibility to establish legal responsibility, an effective and independent mechanism, fair trial, sanctions and reparation (GP 25).
In addition, the UNGPs elaborate the implications of existing standards and practices for states in the form of recommendations (in a broad sense) on what states should do, or more specifically are encouraged to do, in various domains including procurement, privatization and international trade agreement.
The working paper "The State Duty to Protect Against Business-Related Human Rights Abuses. Unpacking Pillar 1 and 3 of the UN Guiding Principles on Human Rights and Business" can be found here.
