United Nations Guiding Principles on Business and Human Rights

History

The UNGPs came as a result of several decades of UN efforts to create global human rights standards for businesses. In the early 1970s, the United Nations Economic and Social Council requested that the Secretary General create a commission group to study the impact of transnational corporations (TNCs) on development processes and international relations. The UN created the Commission on Transnational Corporations in 1973, with the goal of formulating a corporate code of conduct for TNCs. The Commission’s work continued into the early 1990s, but the group was ultimately unable to ratify an agreeable code due to various disagreements between developed and developing countries. The group was dissolved in 1994.

In August 1998, the UN Sub-Commission on the Promotion and Protection of Human Rights established a Working Group on Transnational Corporations. The Working Group similarly attempted to create standards for corporations’ human rights obligations. By 2003 they completed the final draft of the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (the Norms). While the Norms received support from some NGO’s, such as the Europe-Third World Centre (CETIM) or Amnesty International, the document encountered significant opposition from the business sector, and the Commission on Human Rights ultimately determined in 2004 that the framework had no legal standing.

In an attempt to overcome the divisive debate regarding the human rights responsibilities of businesses, UN Secretary General Kofi Annan appointed Harvard professor John Ruggie as the UN Special Representative for Business and Human Rights in 2005. Three years later, Ruggie presented the United Nations Human Rights Council with the “Protect, Respect and Remedy” framework as a conceptual way to anchor the business and human rights debates. In a 2008 resolution, the Human Rights Council welcomed Ruggie’s report and extended his mandate for an additional three years. The Human Rights Council asked Ruggie to provide concrete recommendations on how the state could prevent abuses by the private sector, to elaborate on the scope of corporate responsibility, and to explore options for effective remedies available to those whose human rights are impacted by corporate activities.

Over the next three years, Ruggie held extensive consultations with stakeholder groups including governments, businesses, and NGOs. Ruggie intended to create "an authoritative focal point around which actors' expectations could converge—a framework that clarified the relevant actors' responsibilities, and provided the foundation which thinking and action could build over time". Ruggie's work resulted in the UN Guiding Principles on Business and Human Rights, which he presented to the Human Rights Council in June 2011. Ruggie stated,

The Guiding Principles' normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for states and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it could be improved.

The Human Rights Council unanimously endorsed the Guiding Principles, thereby creating the first global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity.

On June 16, 2011, the Human Rights Council established a working group to focus on the global dissemination and implementation of the Guiding Principles. OHCHR provides ongoing support and advice to the Working Group, which consists of five independent experts, of balanced regional representation, for a three-year period. Current Working Group Members are Michael Addo, Alexandra Guaqueta, Margaret Jungk, Puvan Selvanathan, and Pavel Sulyandziga. The first Forum on Business and Human Rights took place on December 4–5, 2012, in Geneva, Switzerland.

State duty to protect human rights

The first pillar of the Guiding Principles is the state’s duty to protect against human rights abuses by third parties, including business enterprises, through regulation, policymaking, investigation, and enforcement. This pillar reaffirms states’ existing obligations under international human rights law, as put forth in the 1948 Universal Declaration of Human Rights. While states are not responsible for human rights abuse by private actors, they may be in breach of their international human rights law obligations when they fail to take proper steps to prevent or punish abuses by the private sector (referred to as positive obligations). Under current law, states are not required to regulate the extraterritorial activities of businesses residing in their jurisdiction, however, the UNGP encourage states to set clear expectations that businesses respect human rights abroad. The UNGPs also note that the state should take additional care in monitoring and preventing human rights abuses by business enterprises owned, controlled, or supported by the state.

Corporate responsibility to respect

The corporate responsibility to respect human rights indicates that businesses must act with due diligence to avoid infringing on the rights of others and to address negative impacts with which they are involved. The second pillar offers a process for companies to both "know and show" that they are meeting this responsibility, by which they become aware of, prevent, and address their adverse human rights impacts. The UNGPs hold that companies have the power to affect virtually all of the internationally recognized rights. Therefore, there is a responsibility of both the state and the private sector to acknowledge their role in upholding and protecting human rights. In conducting due diligence, the UNGP encourage companies to conduct a Human Rights Impact Assessment through which they assess their actual and potential human rights impacts, to create a statement of commitment to respecting rights, and to integrate human rights across relevant internal functions and processes.

Access to remedy if these rights are not respected

The third pillar addresses both the state's responsibility to provide access to remedy through judicial, administrative, and legislative means, and the corporate responsibility to prevent and remediate any infringement of rights that they contribute to. Having effective grievance mechanisms in place is crucial in upholding the state's duty to protect and the corporate responsibility to respect. The UNGPs dictate that non-judicial mechanisms, whether state-based or independent, should be legitimate, accessible, predictable, rights-compatible, equitable, and transparent. Similarly, Company-level mechanisms are encouraged to operate through dialogue and engagement, rather than with the company acting as the adjudicator of its own actions.

Response and implementation

The UNGP have enjoyed widespread uptake and support from both the public and private sectors, and several companies have publicly stated their support for the Guiding Principles. For example, the Coca-Cola Company "strongly endorsed" the UNGPs, calling them "a foundation and flexible framework for companies like ours", and General Electric wrote that the UNGPs "helped to clarify the distinct interrelated roles and responsibilities of states and business entities in this area" and that they would "no doubt serve as a lasting beacon for businesses entities seeking (to) grow their service and product offerings while respecting human rights".

However, some stakeholders questioned whether the UNGPs set a sufficiently high standard for businesses, arguing that the private sector should have an "obligation" to realize rights, rather than simply a "responsibility". Others argued that the UNGPs needed an overarching accountability mechanism that could make the framework legally enforceable. Supporters, however, defend the UNGPs for creating far more consensus than any previous attempt at creating a global business-human rights standard.

The debate about the sufficiency of a voluntary soft-law approach that underlie the Guiding Principles, however, reopened in September 2013 when Ecuador, backed by 84 governments proposed a binding legal instrument for TNC operations in order “to provide appropriate protection, justice and remedy to the victims of human rights abuses directly resulting from or related to the activities of some transnational corporations and other business enterprises.” The call was backed by more than 530 civil society organisations (CSOs) and in June 2014 was backed by a majority of the UN Human Rights Council which agreed to establish an open-ended intergovernmental working group mandated to draft a binding instrument on human rights and transnational corporations.