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Abstract
This article focuses on the state duty to protect human rights and to remedy violations, ie the so-called Pillar 1 and Pillar 3 of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The state duty consists of a ‘smart mix’ of legally binding obligations and soft law commitments. Taking as its starting point the extensive research undertaken in relation to developing a country visit template for the UN Working Group on human rights and business, this article provides a detailed account of the contents of the state’s regulatory and policy functions to which the UNGPs refer and attempts to untangle extraterritorial issues. The article broaches on points of misperception of the actual human rights obligations at stake and the weakness of international human rights law in this field. It also identifies the important roles and functions of the UN Working Group as well as proposing a number of prospective reflections on recent developments, inter alia, the first steps taken to create legally binding standards, in the field of human rights and business.
Notes
1 The OECD Guidelines for Multinational Enterprises are annexed to the OECD Declaration on International Investment and Multinational Enterprises first adopted in 1976. The Guidelines are far-reaching recommendations addressed by governments to multinational enterprises operating in or from adhering countries, and they have been revised several times since 1976.
2 The Declaration adopted by the ILO in 1998 declares that all ILO members, even if they have not ratified the Conventions in question, have an obligation to respect, promote, and realise, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.
3 For example, Voluntary Principles for Security and Human Rights (2000), which concern extractive sector companies, Code of Conduct for Private Security Service Providers (2010), the OECD Due Diligence Guidelines for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk Areas (2011); The FAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (2012), etc.
4 For example, the Extractive Industries Transparency Initiative – EITI (2003) or the Kimberley Process on Conflict Diamonds (2002).
5 UNGPs Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, Annex to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie (Human Rights Council, 17th session, Agenda item 3, Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Advance Edited Version Distr: General, 21 March 2011, Original: English, A/HRC/17/31).
6 Resolution establishing the Working Group on the issue of human rights and transnational corporations and other business enterprises, Human Rights Council, 17th session, 33rd meeting, 16 June 2011 (A/HRC/17/4).
7 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 (A/HRC/8/5).
8 See, among others, two recent anthologies: R Mares (ed), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (The Hague: Brill, 2012) and S Deva and D Bilchitz (eds), Human Rights Obligations of Business. Beyond the Corporate Responsibility to Respect? (Cambridge University Press, 2013).
9 See articles from K Buhmann, ‘Navigating from “train wreck” to being “welcomed”: negotiation strategies and argumentative patterns in the development of the UN Framework’, 29–57, C López, ‘The “Ruggie process”: from legal obligations to corporate social responsibility’, 58–77, and S Deva, ‘Treating human rights lightly: a critique of the consensus rhetoric and the language employed by the Guiding Principles’, 78–104, in Deva and Bilchitz (n 8).
10 This is already the case, for example, in the European Union (see the European Commission's ‘Renewed EU Strategy 2011–14 for Corporate Social Responsibility’, COM(2011), 681 final, 25 October 2011), within the framework of the OECD Guidelines for Multinational Enterprises (Recommendations for Responsible Business Conduct in a Global Context, 25 May 2011), or in the ISO 26000 on Social Responsibility. See also MK Addo, ‘The Reality of the United Nations Guiding Principles on Business and Human Rights’, (2014) 14 Human Rights Law Review 133–47, at 141–45.
11 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 25.
12 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 25, Guiding Principle 7.
13 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 25, Guiding Principle 2.
14 Guiding Principles on Business and Human Rights (n 5), Commentary under Guiding Principle 3.
15 Many studies and surveys were conducted during the six years of the Ruggie mandate (2005–2011) and subsequently to it, under the auspices of the UN working group on human rights and business. Results are published in reports annexed to the SRSG and the UNWG reports various UN organs. They are available on the website of the UN and of the business and human rights resource centre. This article refers below to several of these reports.
16 The various drafts of the Country Visit Template (CVT) were developed through consultations: a preliminary consultation draft was presented at the inaugural multi-stakeholder UN Annual Forum on human rights and business in Geneva in December 2012. In 2013, the CVT was further developed through formal and informal consultations with states and civil society groups (during state survey and civil society survey meetings in Copenhagen). Informal expert consultations were carried out at the end of 2013 and start of 2014. Several meetings took place with the UNWG on human rights and business in Geneva in 2013 and 2014 where both the CVT and states duties were discussed.
17 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, 14 March 2013, A/HRC/23/32, para 60: ‘the Working Group has adopted a systematic approach to its country visits and developed, in collaboration with the Danish Institute for Human Rights, a template to guide each country visit. The draft template was publicly presented and consulted on during the 2012 Forum on Business and Human Rights. The Working Group will continue to develop, refine and consult on the template throughout 2013 with a view to further strengthen its approach and generate interest, understanding and engagement with country visits.’
18 For a systematic unpacking of the UNGPs, see S Lagoutte, ‘The State Duty to Protect against Business-Related Human Rights Abuses – Unpacking Pillar 1 and 3 of the UN Guiding Principles on Business and Human Rights, Matters of Concern – Human Rights Research Papers’ No 2014/1 (Copenhagen: Danish Institute for Human Rights, 2014).
19 Attribution based on legal status of the business enterprises, the nature and context in which the activity, is carried out, and the degree of independence from the political authorities, see, Yershova v Russia, Judgment of 8 April 2010, Oesterreichischer Rundfunk v Austria, Judgment of 7 December 2006, Radio France & others v France, Admissibility Decision of 23 September 2003.
20 See abundant case law on human rights violations in the environmental sphere (arts 2, 8 and 1 P1 of the ECHR): See ECtHR factsheet on Environment-related cases, December 2012, http://www.echr.coe.int/Documents/FS_Environment_ENG.pdf. (All websites were last accessed on 31 March 2015.)
21 Inter-American Court of Human Rights, Sarayaku v Ecuador, Judgment of 25 July 2012. See also C Anicama, ‘State Responsibilities to Regulate and Adjudicate Corporate Activities under the Inter-American Human Rights System. Report on the American Convention on Human Rights’, April 2008 (prepared to inform the mandate of the Special Representative of the UN Secretary-General (SRSG) on Business and Human Rights, Professor John Ruggie).
22 ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations’ core human rights treaties: an overview of treaty body commentaries’, Addendum 1 to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises on Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, 13 February 2007 (A/HRC/4/35/Add.1).
23 See below on extraterritoriality.
24 Parliamentary Assembly of the Council of Europe (PACE), Committee on Legal Affairs and Human Rights: Report on Human rights and business, 27 September 2010, Doc 12361, para 24 that concerns the use of private security companies to fulfil traditional state functions in the United Kingdom.
25 This negative obligation must be distinguished from the positive obligation of the state to take all reasonable measures to regulate and control corporate activities to prevent the violation of Convention rights, and to take effective enforcement measures, that is, to investigate, adjudicate and redress violations of Convention rights when they occur. See, among other, Tatar v Romania (Judgment of 27 January 2009), Fadeyeva v Russia (Judgment of 9 June 2005), Oneryildiz v Turkey (Judgment of 30 November 2004), Guerra & Others v Italy (Judgment of 19 February 1998), Lopez Ostra v Spain (Judgment of 9 December 1994).
26 D Augenstein, State Responsibilities to Regulate and Adjudicate Corporate Activities under the European Convention on Human Rights, Submission to the Special Representative of the United Nations Secretary-General (SRSG) on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, April 2011, 8–9. This list of criteria is based on the judgment of the ECtHR in the case of Yershova v Russia, Judgment of 8 April 2010, para 55. In this case, the ECtHR found that ‘notwithstanding the company's status as a separate legal entity, the municipal authority, and hence the State, is to be held responsible under the Convention for its acts and omissions’ (para 62). The ECtHR focused on the company's strong institutional ties with the municipality and the public nature of its functions (main heating supplier in the town) (paras 57–58).
27 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 4.
28 Costello-Roberts v United Kingdom, Judgment of 25 March 1993, para 28. This case concerns corporal punishment in private schools in England. See also, Woś v Poland, Admissibility Decision of 1 March 2005, para 72: ‘The responsibility of the respondent State thus continues even after such a transfer’.
29 According to The Guidance on Social Care Procurement published by the Scottish Government (September 2010), human rights are incorporated into the service specifications, the selection, and award criteria and contractual clauses.
30 For further recommendations regarding steps to be taken by public authorities in order to ensure that human rights are fully respected in connection to public procurement, see, for instance, Northern Ireland Human Rights Commission, Public Procurement and Human Rights in Northern Ireland, November 2013.
31 D Augenstein, State Responsibilities to Regulate and Adjudicate Corporate Activities under the European Convention on Human Rights, Submission to the Special Representative of the United Nations Secretary-General (SRSG) on the issue of Human Rights and Transnational Corporations and Other Business Enterprises, April 2011, para 42.
32 See below on remedies.
33 Guiding Principle 3 – Scrutinising State policies and regulations: in meeting their duty to protect, States should: (a) enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps; (b) ensure that other laws and policies governing the creation and ongoing 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 to respect human rights throughout their operations; and (d) encourage, and where appropriate require, business enterprises to communicate how they address their human rights impacts.
34 Section 8(2) of the 1996 Constitution of the Republic of South Africa provides for the Bill of Rights to bind both natural and juristic persons. In some countries, constitutional rights have been interpreted as having an horizontal effect, which make then legally binging on non-state actors, see the many examples in A Clapham (ed), Human Rights and Non-State Actors, (Elgar Research Collection, 2013), 235–337.
35 See below on extraterritoriality.
36 See below on reporting requirements.
37 Human Rights and Corporate Law: Trends and Observations from a Cross-National Study Conducted by the Special Representative, Addendum 2 to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 23 May 2011 (A/HRC/17/31/Add.2).
38 See, for instance, the National Action Plans of the United Kingdom (Foreign and Commonwealth Office: Good Business: Implementing the UN Guiding Principles on Business and Human Rights, 2013), Spain (Plan de empresa y derechos humanos, 2013), the Netherlands (National Action Plan on Business and Human Rights, 2013), and Denmark (Danish National Action Plan – Implementation of the UN Guiding Principles on Business and Human Rights, 2014).
39 Guiding Principles on Business and Human Rights (n 5), Pillar 2.
40 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 3, d.
41 See, for instance, the German Corporate Governance Code or the Danish legislation on CSR: according to a 2008 provision of the Danish Act on financial reporting, a large company or a financial institution must either give information on its CSR policy, its implementation, the results that have been achieved, and the expectations for the future or expressly state that the company will not be engaging in CSR. In 2012, an amendment was adopted by the Danish Parliament to specifically include human rights (and climate policies) into this legal requirement (comply or explain) for reporting on CSR, available in Danish at http://www.ft.dk/samling/20111/lovforslag/l125/html_som_vedtaget.htm.
42 For a definition and categorisation of stabilisation clauses, see A Shemberg, Investment Agreements and Human Rights: The Effects of Stabilization Clauses. Corporate and Social Responsibility Initiative Working Paper No 42 (Cambridge, MA: John F Kennedy School of Government, Harvard University, 2008), 4–9.
43 P-M Dupuy, E-U Petersmann, F Francioni, Human Rights in International Investment Law and Arbitration (Oxford University Press, 2009); M Jacob, International Investment Agreements and Human Rights. INEF Research paper series on human rights, Corporate Responsibility and Sustainable Development 03/2010 (Duisburg: Institute for Development and Peace, University of Duisburg-Essen, 2010); H Mann, International Investment Agreements, Business and Human Rights: Key Issues and Opportunities. Prepared for John Ruggie, International Institute for Sustainable Development, 2008. See also the learning lab on Investments and Human rights of London School of Economics, http://blogs.lse.ac.uk/investment-and-human-rights.
44 See for instance, the private investments contracts signed for the Baku-Tbilisi-Ceyhan BP cross-border pipeline project described, in A Shemberg (n 42), 1. The study by Shemberg covers 76 contracts.
45 Principles for Responsible Contracts: Integrating the Management of Human Rights Risks into State-Investor Contract Negotiations – Guidance for Negotiators. Addendum 3 to the Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 23 May 2011 (A/HRC/17/31/Add.3).
46 Guiding Principles on Business and Human Rights (n 5), Guiding Principles 26 and 27.
47 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 28.
48 For instance, the Committee on the Rights of the Child has stated that states parties must ‘give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives’ and that such procedures should include ‘access to independent complaints procedures and to the courts with necessary legal and other assistance’, Committee on the Rights of the Child, GC No 5 (2003), CRC/GC/2003/5, para 24. See also GC No 8 and No 9.
49 Concerning domestic law remedies for corporate gross human rights abuses: Zerk (n 79 below).
50 See below on extraterritoriality.
51 For a detailed analysis of corporate criminal liability at both domestic and international level, see RC Slye, ‘Corporations, Veils, and International Criminal Liability’, (2008) 33 Brooklyn J of Int Law, 2008, 955–73. See also Zerk (n 79 below).
52 J Ruggie, A UN Business and Human Rights Treaty? An Issues Brief by John G Ruggie, Harvard Kennedy School, 28 January 2014.
53 Guiding Principles on Business and Human Rights (n 5), Guiding Principle 26.
54 Guiding Principles on Business and Human Rights (n 5), Commentary to Guiding Principle 26, 29.
55 See Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted in December 2012 by the United Nations General Assembly, Resolution A/RES/67/187.
56 See R Meeran, ‘Access to Remedy: the United Kingdom Experience of MNC Tort Litigation for Human Rights Violations’, in Deva and Bilchitz (n 8), 378–402 at 395–96.
57 Ie, sharing of the damages awarded to the claimant.
58 Irish Centre for Human Rights: Business and Human Rights in Ireland. Context, International Standards and Recommendations, Irish Centre for Human Rights, April 2012, 45.
59 See Meeran (n 56 above), 395.
60 Irish Centre for Human Rights, Business and Human Rights in Ireland. Context, International Standards and Recommendations, Irish Centre for Human Rights, April 2012, 44–45.
61 Guiding Principles on Business and Human Rights (n 5), see commentary to Guiding Principle 31, which contains guidance for both state and non-state actors. For a detailed comments on these effectiveness criteria: S Lagoutte, The State Duty to Protect against Business-Related Human Rights Abuses – Unpacking Pillar 1 and 3 of the UN Guiding Principles on Business and Human Rights, Matters of Concern – Human Rights Research Papers No 2014/1 (Copenhagen: Danish Institute for Human Rights, 2014), 41.
62 D Augenstein and D Kinley, ‘When Human Rights Responsibilities become Duties: the Extra-Territorial Obligations of States that Bind Corporations?’, n Deva and Bilchitz (n 8), 275.
63 See main conclusion in O de Schutter: Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, background paper to the seminar organised in collaboration with the Office of the UN High Commissioner for Human Rights in Brussels on 3–4 November 2006, December 2006 and Guiding Principles on Business and Human Rights (n 5), Commentary to Guiding Principle 2.
64 GC 31 on the nature of the general legal obligation on states parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (2004), para 10.
65 For example, Al-Skeini and others v United Kingdom (no 55721/07), Judgment of 7 July 2011; Medvedyev and others v France (no 3394/03), Judgment of 29 March 2010; Al Saadoon and Mufdhi v United Kingdom (no 61498/08), Judgment of 30 June 2009; Bankovic and others v Belgium and 16 other Contracting States (no 52207/99), Decision of 12 December 2001.
66 See above at 2.1.
67 Paragraph 33 of general comment 15 on the right to water (E/C.12/2002/11). See also CESCR general comments 14 on the right to the highest attainable standard of health (E/C.12/2000/4), at para 39 for similar comments to general comment 15, para 33 in relation to influencing third party actions abroad.
68 Article 3(1) of the Optional Protocol on sale of children, child prostitution and child pornography requires that such offences be criminalised, whether they are committed ‘domestically or transnationally or on an individual or organized basis’. Optional Protocol on sale of children, child prostitution and child pornography (General Assembly resolution A/RES/54/263 of 25 May 2000), see also arts 3.2, 4.2 and 4.3. See also the 2000 International Convention for the Suppression of the Financing of Terrorism, which relies heavily on states establishing extraterritorial jurisdiction. On this point see the 2000 International Convention for the Suppression of the Financing of Terrorism. For references to several other standards, see O De Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, December 2006 (background paper to the seminar organized in collaboration with the Office of the UN High Commissioner for Human Rights in Brussels on 3–4 November 2006).
69 US Foreign Corrupt Practice Act of 1977. See also UK Bribery Act of 2010.
70 US Dodd-Franck Act of 2010, s 1502 on conflict free minerals.
71 On the corporate criminal liability see, for instance, the survey of the USA and European countries in G Skinner, R McCorquodale and O De Schutter, ‘The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business’, ICAR, CORE and ECCJ, 2013, 32–33. See also RC Slye, ‘Corporations, Veils, and International Criminal Liability’, (2008) 33 Brooklyn J of Int Law 955–73.
72 Adopted in Rome on 17 July 1998 and entered into force on 1 July 2002.
73 O De Schutter, Extraterritorial Jurisdiction as a Tool for Improving the Human Rights Accountability of Transnational Corporations, December 2006 (background paper to the seminar organized in collaboration with the Office of the UN High Commissioner for Human Rights in Brussels on 3–4 November 2006), 2006, 6.
74 Esther Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
75 Esther Kiobel v Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), 14.
76 Al Shimari, et al, v CACI Premier Tech., Inc., 2014 WL 2922840 (4th Cir, 30 June 2014); Cardona et al. v Chiquita Brands International, No 12–14898 (11th Cir, 24 July 2014), J Martin, dissenting.
77 R Meeran, ‘Access to Remedy: The United Kingdom Experience of MNC Tort Litigation for Human Rights Violation’, in Deva and Bilchitz (n 8), 378–402. See also, for example, the list of tort cases litigated in the UK at 388.
78 See for instance, the Quebec Superior Court of Justice in the Anvil Judgment of 27 April 2011: the court dismissed a motion to strike down the claim brought by Anvil based on absence of jurisdiction. In doing so, the court left the door open to extraterritorial human rights claims against Canadian corporations in Quebec courts. The Quebec Court of Appeal ultimately overturned that decision and dismissed the case, but not on the basis of a lack of jurisdiction. See also the judgment against Royal Dutch Shell and its subsidiary SPDC, District Court of The Hague, 30 January 2013.
79 Idem. See also, J Zerk, Corporate Liability for Gross Human Rights Abuses. Towards a Fairer and More Effective System of Domestic Law remedies, a study prepared for the Office of the UN High Commissioner for Human Rights, 2014.
80 Guiding Principles on Business and Human Rights (n 5), Commentary to Guiding Principle 3.
81 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, 2003, UN Doc E/CN.4/Sub.2/2003/12/Rev.2.
82 Republic of Ecuador Government statement to the UN Human Rights Council: Statement on behalf of a Group of Countries at the 24th Session of the Human Rights, General Debate – Item 3 ‘Transnational Corporations and Human Rights’, Geneva, September 2013. See also NGO Joint Statement: Call for an international legally binding instrument on human rights, transnational corporations and other business enterprises, authored by Treaty Alliance (CETIM, Dismantle Corporate Power Campaign, ESCR-Net, FIAN, FIDH, Franciscans Intl, Friends of the Earth Intl, Transnational Institute) and signed by more than 500 organisations, 28 April 2014. Both documents are available on the website of the Business and Human Rights Resource Centre (www.business-humanrights.org).
83 HRC Resolution L.22, A/HRC/26/L.22/Rev.1. The final vote was 20 in favour, 14 against and 13 abstentions.
84 Issue Brief by JG Ruggie: A UN Business and Human Rights Treaty? (Harvard Kennedy School, 28 January 2014).
85 Issue Brief by JG Ruggie: A UN Business and Human Rights Treaty? (Harvard Kennedy School, 28 January 2014).
86 HRC resolution 17/4 of 16 June 2011 (A/HRC/17/4). In June 2014, the HRC, at its 26th session, decided to extend the Working Group’s mandate for a period of three years (A/HRC/26/22).
87 The Danish Institute for Human Rights (DIHR) and The International Corporate Accountability Roundtable (ICAR): National Action Plans on Business and Human Rights. A Toolkit for the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks, June 2014, at http://www.humanrights.dk/publications/national-action-plans-business-human-rights.