Introducing the UN Guiding Principles on Business and Human Rights

[*]

by Anthony Ewing
Lecturer, Columbia Law School
aewing@law.columbia.edu
Overview

The Guiding Principles on Business and Human Rights[1] are one of the most common topics in business and human rights courses today. Since state members of the United Nations Human Rights Council unanimously endorsed them in 2011,[2] the UN Guiding Principles have provided a conceptual framework and common language used by many stakeholders working at the intersection of business and human rights. A typical business and human rights course syllabus often covers most, if not all, of the principal issues addressed by the UN Guiding Principles.

The UN Guiding Principles detail how states and business enterprises can implement the “Protect, Respect and Remedy” Framework (2008).[3] Both the UN Framework and UN Guiding Principles were developed by John Ruggie, a Harvard University professor in human rights and international affairs who served from 2005 to 2011 as the UN Secretary General’s Special Representative on Business and Human Rights. During his six-year mandate, Ruggie is credited with forging a working consensus among governments, companies, and human rights advocates on key issues surrounding the human rights responsibilities of business enterprises. For many stakeholders, the UN Guiding Principles have become a global standard for preventing and addressing adverse impacts on human rights linked to business activity.[4]

Ruggie’s appointment as Special Representative followed an earlier UN effort by an expert body of the UN Commission on Human Rights (now the Human Rights Council) to apply binding human rights standards to companies. The Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) ,[5] which sought to hold companies directly responsible for human rights obligations under international law, while supported by civil society groups, met opposition from states and from the business sector, and were ultimately never acted upon by the UN Commission on Human Rights.

In 2005, the Commission established the mandate for an individual expert to “identify and clarify” existing human rights standards for businesses; elaborate the role of states regulating business conduct in relation to human rights; and research key concepts such as corporate complicity in human rights abuses.[6] During his mandate, Ruggie sought to move “beyond the mandatory-vs.-voluntary dichotomy to devise a smart mix of reinforcing policy measures that are capable over time of generating cumulative change and achieving large-scale success—including in the law.”[7] He has described the approach that produced the Framework and Guiding Principles as “principled pragmatism.”[8] The Special Representative conducted research, consulted with stakeholders and piloted specific principles.

The UN Framework, contained in the Special Representative’s 2008 report to the Human Rights Council, has three “pillars”:

1)   “The State duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication;

2)  “The corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved; and

3)  “The need for greater access by victims to effective remedy, both judicial and non-judicial.”[9]

The interrelated pillars of the “protect, respect and remedy” Framework, which reflect Ruggie’s view of the human rights responsibilities of both states and business enterprises under international law, highlight both the legal and policy dimensions of the state duty to prevent, investigate and punish human rights abuses by non-state actors. The Framework defines the corporate responsibility to respect human rights as a responsibility that goes beyond legal compliance, and that companies cannot satisfy through corporate philanthropy. This corporate responsibility is a social norm, or global expectation, that companies can meet by “knowing and showing” that they do not infringe on others’ rights. The scope of the responsibility to respect human rights includes all “internationally recognized human rights.”[10] The Principles state that nothing in them creates new international law obligations. (Nor are the Principles intended to limit the further development of international law.)

The Guiding Principles, published in 2011, build upon the topics introduced in the UN Framework by elaborating “the implications of existing standards and practices for states and businesses.” Thirty-one Guiding Principles, organized as “foundational“ and “operational” principles for each of the three pillars, are accompanied by commentaries clarifying the meaning and implications of each Principle. More detailed interpretation of each Principle, approved by the Special Representative, was subsequently published by the UN Office of the High Commissioner for Human Rights.[11]

While the Guiding Principles are considered to be “universally applicable” to all states and to all business enterprises, the Special Representative emphasizes that they are not an “off the shel” tool kit; means for their implementation will vary.

The state duty to protect against human rights abuse (Principles 1-10) requires states to take “appropriate steps to prevent, investigate, punish and redress” abuses by business enterprises “within their territory and/or jurisdiction.” While the Guiding Principles note that states are “not generally required under international human rights law” to regulate the extraterritorial activities of companies, they also emphasize that “nor are they generally prohibited from doing so.” The operational principles of Pillar 1 encourage states to: adopt a “smart mix of measures” to protect against abuses by business; address state-owned businesses and commercial business relationships; highlight the risks of human rights abuses in conflict-affected areas; and ensure policy coherence internally and externally.

Under the corporate responsibility to respect human rights (Principles 11 – 24), the Guiding Principles expand upon the Framework by calling on companies to “avoid causing or contributing to ‘adverse human rights impacts’ through their own activities” and to “seek to prevent or mitigate” those “directly linked to their operations, products or services by their business relationships.” To meet their responsibility, companies must “know and show that they respect human rights.” The operational principles of Pillar 2 detail steps companies should take: adopting a human rights policy that is embedded throughout the enterprise; conducting human rights due diligence, including assessing and acting to address actual and potential human rights impacts, and tracking and communicating what they have done; and remediating adverse impacts.

The Pillar 3 principles (Principles 25 – 31) describe ways that states must, and businesses can, ensure access to remedy for victims of human rights abuses, including judicial, non-judicial, and non-state-based grievance mechanisms; and provide effectiveness criteria for all non-judicial mechanisms.

Ruggie has described the endorsement of the UN Guiding Principles by the UN Human Rights Council as the “end of the beginning” – the Guiding Principles establish a “common platform for action” by the stakeholders at the intersection of business and human rights. Inter-governmental bodies have incorporated elements of the Guiding Principles in other international standards. Aspects of the UN Guiding Principles have been adopted by states in National Action Plans, by advocates in campaigns seeking corporate accountability, and by companies seeking to demonstrate respect for human rights. It remains to be seen what the long-term impact of the UN Guiding Principles will be, but they are already shaping the business and human rights agenda for practitioners and teachers alike.

Upon the endorsement of the Guiding Principles and the expiration of the Special Representative’s mandate in 2011, the UN Human Rights Council established a five-member UN Working Group on Business and Human Rights (renewed in 2015) to foster dissemination and implementation of the Guiding Principles.[12]

The UN Guiding Principles, their conceptual foundations, the process that produced them, and implementation efforts since, have also generated criticism from key business and human rights stakeholders. Critics, for example, consider international legally-binding standards as the most effective means to challenge corporate abuses, and see the UN Guiding Principles as an impediment to true accountability; argue that the Principles inaccurately characterize corporate and state obligations under international law; question the ability of corporate human rights due diligence to prevent human rights abuses or improve human rights conditions on the ground; and challenge the notion that companies should have any role providing a meaningful remedy to victims of human rights abuses connected to business activity. These criticisms have contributed to renewed efforts to draft an international business and human rights treaty, including an inter-governmental Working Group established by the UN Human Rights Council in 2014.[13]

Teaching Approaches

Each pillar of the UN Framework and Guiding Principles – from state measures to prevent human rights abuses by business enterprises under Pillar I, to the practical meaning of corporate respect for human rights under Pillar II, to judicial and non-judicial approaches to provide effective remedy to victims under Pillar III – contains sufficient thematic material to fill a business and human rights course syllabus. More detailed teaching notes for many of these topics will be included in this Handbook.

Because they cover so much ground, the Guiding Principles offer ample opportunities for an instructor to introduce both theoretical and practical business and human rights material in their teaching.

The Guiding Principles can be introduced as a brief module, or elaborated in detail throughout a business and human rights course. Some instructors of stand-alone courses organize their entire course syllabus consistent with the three pillars of the UN Framework and Guidelines, others refer to the Guiding Principles in relation to specific topics. One classroom technique, for example, when considering specific cases of companies connected to human rights impacts, is to ask students whether the company’s actions are consistent with the UN Framework and Guiding Principles. (For example: “Was Google’s 2010 decision to leave the Chinese market consistent with the UN Framework?) References to the Guiding Principles by civil society, by policymakers and by businesses present opportunities to discuss the relevance of the UN Guiding Principles for various stakeholders. (For example: “How do the United States reporting requirements for responsible investment in Burma reflect the UN Guiding Principles?”) Each criticism of the Guiding Principles can be an entry point to introduce and evaluate the content and impact of the UN Guiding Principles.

Law courses can use the Guiding Principles to explore the human rights responsibilities of states and of business enterprises under international law, to illuminate specific human rights case studies, to evaluate litigation strategies, and even to consider their relevance in domestic corporate law. Research materials produced during the Special Representative’s mandate, such as the report on Mapping International Standards of Responsibility and Accountability for Corporate Acts[14] and Human Rights and Corporate Law,[15] are particularly useful for law teachers. The Guiding Principles are often contrasted with the Draft Norms that preceded them, or the renewed business and human rights treaty process that has followed them, to prompt discussion of the merits of voluntary versus mandatory, or “hard law” versus “soft law” approaches to corporate human rights accountability. At the University of Maastricht, for example, Professor Jan Eijsbouts teaches the Guiding Principles, in a class on CSR in the Globalisation and Law Masters program, as the normative basis of international frameworks dealing with the “people” aspects of CSR, together with the ILO Core Conventions, the UN Global Compact and the OECD Guidelines for Multinationals.[16]

Business courses can consider the Guiding Principles as a one definition of “corporate responsibility” in discussions of corporate ethics, and explore the practical implications for business managers of implementing the corporate responsibility to respect human rights in business operations. Specific disciplines, such as supply chain or human resource management, can use related elements of the Guiding Principles to illustrate particular topics or business practices. In his course on business and human rights at the New York University Stern School of Business, for example, Professor Michael Posner covers the Guiding Principles among standard-setting efforts to define business’ responsibility to respect human rights.[17]

Policy courses can consider state regulation of corporate conduct through the lens of the state duty to protect human rights in the first pillar of the Guiding Principles, or use the Guiding Principles to discuss systems of global governance more broadly. In a graduate course at Harvard’s Kennedy School, for example, Professor Ruggie has presented the Guiding Principles “as the lens through which to view the emergence and evolution of business and human rights as the latest frontier in the postwar human rights revolution.”[18]

Learning objectives for students in courses that introduce the UN Guiding Principles may include:

  • Understanding the historical context that led to the development of the Guiding Principles
  • Understanding the content and scope of the Guiding Principles
  • Applying the Principles to specific cases and actors
  • Critically assessing the strengths and weaknesses of the Guiding Principles
  • Explaining how both states and businesses can implement the Guiding Principles
  • Identifying areas for further research
Key Questions

General

  • What are the pillars of the UN Framework?
  • What are the sources of international human rights standards?
  • Which elements of the UN Framework/Guiding Principles are binding? On whom?
  • What does the “responsibility to respect” human rights mean? What should it mean?
  • What is the scope of the UN Framework/Guiding Principles? Which human rights must companies respect?
  • How can companies promote human rights? Do they have a responsibility to do so?
  • What are the strengths and weaknesses of the UN Guiding Principles?
  • What are the advantages and disadvantages of an international business and human rights treaty?
  • How are business enterprises implementing the UN Guiding Principles?
  • What is the difference between judicial and non-judicial remedies?

For business students:

  • How does the UN Framework define corporate responsibility?
  • What is the business impact on human rights? Which ones?
  • How can a company meet the responsibility to respect human rights?
  • What does human rights due diligence look like?
  • How should companies consider business relationships when conducting due diligence?
  • What do company-level grievance mechanisms look like?
  • What are the elements of an effective corporate human rights program, consistent with the UN Guiding Principles?

For law students:

  • What role do non-state actors like businesses play within international law?
  • Do corporations have any human rights responsibilities under international law?
  • How would you explain the UN Framework/Guiding Principles to corporate general counsel?
  • What is the role of domestic law in the Guiding Principles?
  • How does Ruggie treat the concept of “sphere of influence”?
  • How do the UN Framework/Guiding Principles treat complicity under international law?
  • Must states regulate extra-territorial conduct?
  • Are the UN Framework/Guiding Principles consistent with international law?
  • Do the UN Guiding Principles create any new legal obligations?
  • How do the UN Guiding Principles differ from the Transnational Norms?
  • Do the Guiding Principles overcome perceived deficiencies of the Norms?
  • What is the value of international binding obligations?

 For policy students:

  • What policy tools are available to states to protect against corporate human rights violations by business enterprises?
  • How would you characterize the Guiding Principles as a model of global governance?
  • How is the UN well- or poorly-equipped to address issues related to business?
  • Why did the UN Guiding Principles gain traction among distinct constituencies?
  • What is “principled pragmatism”?
  • How do the three pillars of the UN Framework and Guiding Principles interact?
  • Will the Framework and Principles necessarily bring convergence or will 
longstanding legal challenges continue to plague normative development?
Teaching Resources
Notes

[*] This Teaching Note may be cited as:

Anthony P. Ewing, “Teaching Note: Introducing the UN Guiding Principles on Business and Human Rights,” in Teaching Business and Human Rights Handbook (Teaching Business and Human Rights Forum, 2016), https://teachbhr.org/resources/teaching-bhr-handbook/teaching-notes/introducing-the-un-guiding-principles-on-business-and-human-rights-2/.

[1] “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework,” Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises,” UN doc. A/HRC/17/31 (21 March 2011), available at http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (“UN Guiding Principles”).

[2] Resolution adopted by the United Nations Human Rights Council, “Human rights and transnational corporations and other business enterprises,” 6 July 2011 (UN doc. A/HRC/RES/17/4).

[3] “Protect, Respect and Remedy: A Framework for Business and Human Rights,” Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises,” UN doc. A/HRC/8/5 (7 April 2008), available at http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework (“UN Framework”).

[4] See, e.g., “Contribution of the United Nations system as a whole to the advancement of the business and human rights agenda and the dissemination and implementation of the Guiding Principles on Business and Human Rights, Report of the Secretary-General,” U.N. Doc. A/HRC/21/21 (2 July 2012), para. 2.

[5] Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).

[6] UN Commission on Human Rights, Resolution 2005/69 (2005).

[7] John Gerard Ruggie, Just Business: Multinational Corporations and Human Rights, 1 edition (New York: W. W. Norton & Company, 2013), xxiii.

[8] Ibid.

[9] UN Guiding Principles, para. 6.

[10] Internationally-recognized human rights are understood, at a minimum, as those expressed in the International Bill of Human Rights and the International Labour Organization’s Declaration of Fundamental Principles and Rights at Work. UN Guiding Principles, Principle 12 and Commentary.

[11] UN Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, UN Doc. HR/PUB/12/02 (2012) (available at http://www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf)

[12] U.N. Human Rights Council, 17th Sess., Resolution U.N. Doc. A/HRC/RES/17/4 (July 6, 2011). The Working Group has convened an annual UN Forum on Business and Human Rights since 2012 for representatives and practitioners from civil society, business, government, international organizations and affected stakeholders to take stock of challenges and discuss ways to move forward on putting into practice the UN Guiding Principles.

[13] Human Rights Council, ‘Elaboration of an internationally legally binding instrument on transnational corporations and other business enterprises with respect to human rights’ A/HRC/26/L.22/Rev.1 (25 June 2014).

[14] John Ruggie, “Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts (Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises)” UN doc. A/HRC/4/035 (9 Feb. 2007).

[15] “Human Rights and Corporate Law,” UN doc. A/HRC/17/31/Add.2 (23 May 2011).

[16] Prof. Jan Eijsbouts, Course Book, “Corporate Social Responsibility” (2013-14), on file with the Teaching Business and Human Rights Forum Syllabi Bank.

[17] Prof. Michael Posner, Syllabus, “Course on Business and Human Rights” (Spring 2015), on file with the Teaching Business and Human Rights Forum Syllabi Bank.

[18] Prof. John Ruggie, Syllabus, “Business and Human Rights,” (Spring 2013), on file with the Teaching Business and Human Rights Forum Syllabi Bank.

The Teaching Business and Human Rights Forum maintains a Syllabi Bank for business and human rights courses or modules taught by Forum members. The syllabi contained there were consulted as background in the preparation of this Teaching Note.