Any Act, Any Harm, To Anyone: The Transformative Potential of 'Human Rights Impacts' Under the UN Guiding Principles on Business and Human Rights

David Birchall

doi:10.2139/ssrn.3425733

Abstract

The concept of ‘adverse human rights impacts’ introduced by the UN Guiding Principles on Business and Human Rights is frequently used in institutional, activist and scholarly discourse. However, the term is under-explored and usually equated with ‘human rights violation’, occluding its transformative potential. This article demonstrates its expansiveness and rationale: ‘impacts’ cover any business act which removes or reduces an individual’s enjoyment of human rights. The formula is designed to capture business acts that are not paradigmatically understood as human rights violations but that nonetheless cause harmful outcomes. This can encompass, inter alia, acts which reduce market access to essential goods, harm caused by business-related tax abuse, and business contributions to climate change. The extra-legal concept provides an authoritative argumentative framework through which social understandings of business-related harm can evolve and can underlie a transformative shift in the business-society relationship.

Highlights

The UNGPs introduce the concept of ‘human rights impacts’ in Principle 13, which Ruggie describes as ‘the central Guiding Principle regarding the corporate responsibility to respect human rights’. 4 Businesses are responsible for those adverse impacts they cause, contribute to, or are ‘directly linked to... by their business relationships’. 5 Firms should proactively investigate their own impacts through a process of human rights due diligence (HRDD)
The notion of ‘reducing’ rights enjoyment is important for socio-economic rights, where corporate acts may quantitatively reduce access to a right through legal and ostensibly legitimate business practices. One such example is provided by the UN Special Rapporteur (UNSR) on the right to housing
The conceptualization of HRDD as a risk management process applies to causal and contributory impacts. This does not function as a defence and ‘[b]usinesses have a strict – or no fault – responsibility for their own adverse human rights impacts.’ This ‘establishes a clear line of accountability for remediation to victims under Guiding Principle 22’. Ruggie and Sherman, in reply, argue that this ‘falls short’ of the UNGPs. Responsibility is contingent solely on the impact itself, suggesting that strict responsibility applies in all situations, with the distinction being that for linked harms leverage over the other actor should be used, rather than incurring direct remedial responsibility

Summary

Introduction

The UN Guiding Principles on Business and Human Rights (UNGPs) were endorsed by the UN Human Rights Council in 2011. 1 They implement the ‘Protect, Respect, Remedy’ Framework designed by John Ruggie in 2008, under which states have a duty to protect human rights, corporations have a responsibility to respect human rights, and both parties have differentiated responsibilities to provide access to a remedy in case of breach. 2 They have since been incorporated into various international and domestic instruments and are described as having ‘definitively changed the lingua franca’ of business and human rights (BHR). The UNGPs introduce the concept of ‘human rights impacts’ in Principle 13, which Ruggie describes as ‘the central Guiding Principle regarding the corporate responsibility to respect human rights’. 4 Businesses are responsible for those adverse impacts they cause, contribute to, or are ‘directly linked to... by their business relationships’. 5 Firms should proactively investigate their own impacts through a process of human rights due diligence (HRDD).. The notion of ‘reducing’ rights enjoyment is important for socio-economic rights, where corporate acts may quantitatively reduce access to a right through legal and ostensibly legitimate business practices One such example is provided by the UN Special Rapporteur (UNSR) on the right to housing.. A corporation investing in housing is not, by most definitions of the term, violating the human rights of individuals in that community Where they are furthering extreme price inflation, as occurs in Hong Kong and London, and targeting lowerincome individuals, as the investment company Blackstone is accused of doing, they would appear to meet the definition of an adverse impact in that they are ‘reducing’ the ability of those individuals to enjoy the right to housing. There is an evident trend towards using the ‘impacts’ framework to capture a wider range of business harms, OHCHR, ‘The Corporate Responsibility to Respect Human Rights - An Interpretative Guide’ (2012) HR/PUB/12/02 5. I discuss the role of impacts as an argumentative framework, and highlight the transformative potential of the term in capturing structural harm, power, and socio-economic justice, before concluding

Strict Responsibility for Human Rights Impacts

The Contemporary Understanding

Reading Ruggie

Impacts as an Argumentative Framework

Findings

Conclusion