Business-related Human Rights Research Articles

Investor Obligations: Transformative and Regressive Impacts of the Business and Human Rights Framework

Abstract The business and human rights (BHR) framework has regularly been considered the superior legal regime of corporate accountability for business-related human rights abuses, which must be both protected from and incorporated into investment treaties. However, investment treaties have surpassed the BHR framework in an important respect: certain investment treaties impose strict international legal obligations, including human rights-related obligations, directly on investors, thereby going beyond the normatively ambiguous corporate responsibility to respect. Investment treaty reform initiatives, including those seeking to align investment treaties with the BHR agenda, should, therefore, take care to avoid inadvertently undoing this advance towards investors’ legal accountability.

Making it right: socio-environmental conditionalities in regional industrial policies

This article discusses the need for heightened consideration of business-related human rights infringements in regional industrial policies. It discusses why human rights have been neglected in accounts of regional economic growth and proposes a novel policy agenda based on socio-environmental conditionalities. Policy-wise it also recommends that regions build new identities as socially and environmentally responsible places in order to attract investors.

Rightsholder-Driven Remedy for Business-Related Human Rights Abuse: Case of the Fair Food Program

AbstractThis paper investigates necessary conditions for developing a participatory, rightsholder-driven approach to remedy for business-related human rights abuses by analyzing findings from a case study with the Fair Food Program. With the inclusion of human rights into discussions of business ethics and CSR, scholars and practitioners have made calls for participatory approaches to remedy to address cases of human rights abuses. However, a gap remains in our understanding of how to operationalize participatory approaches in a manner that empowers rightsholders, particularly within contexts of severe power imbalances. The paper puts forth a rightsholder-driven theoretical framework for remedy, grounded on critical dialogic accountability principles and integrated with empirical analysis from the Fair Food Program case study. This framework defines remedy as a system comprising reinforcing aspects rather than standalone mechanisms. The critical dialogic accounting and accountability framework provides a theoretical framing of engagement that enables the inclusion of multiple, divergent voices and aims toward meaningful engagement with marginalized groups. The analysis of findings from the case study identifies enforcement and education as necessary conditions for effective and empowering rightsholder-driven approaches to remedy. The paper deconstructs these conditions to develop an understanding of the program’s unique approach to enforcement and education. The paper concludes by discussing the implications of rightsholder-driven remedy for Business and Human Rights and business accountability.

Some issues of human rights protection in the field of business within the framework of the UN

The article is devoted to the issue of human rights protection in the field of business within the framework of the UN. It was found that states have, in accordance with international human rights law, an obligation to protect everyone within their territory and/or jurisdiction from human rights violations committed by commercial enterprises. This obligation means that states must have effective laws and regulations to prevent and remedy business-related human rights violations and ensure access to effective remedies for those whose rights have been violated. Corporate responsibility for the observance of human rights exists regardless of the ability or willingness of states to fulfill their duty to protect human rights. Regardless of context, states and businesses retain these distinct but complementary responsibilities. When a business enterprise violates human rights, States must ensure that affected people have access to an effective remedy through the court system or other legitimate non-judicial process. For their part, companies are expected to establish effective grievance mechanisms for any individuals or communities affected by or involved in their activities. the main duty to protect human rights rests with the state. This is the main duty of the state not only according to the UN Convention, but also as stipulated by various human rights documents. The state must take measures that will allow to effectively guarantee and implement human rights and human rights standards in its countries. Furthermore, it is envisaged that this protection should extend to human rights violations committed by third parties, including businesses or corporate entities. By setting that the protection of human rights is a fundamental responsibility of the state, the Guiding Principles remain consistent with international law, as human rights treaties and conventions are binding on states and not on non­state actors. In addition, states should clearly state the expectation that all commercial enterprises located within their territory and/or jurisdiction respect human rights throughout their operations.

Creating an Effective Mediation Scheme for Business-Related Human Rights Abuses: The Case of Ukraine

Abstract Non-judicial remedies for corporate human rights abuses have a viable and complementary role to judicial remedies in mature jurisdictions, although in Ukraine the ‘bouquet’ of effective remedies is more of a still-life. The national mediation community is gaining momentum and the authors argue that mediation may take place within state-based non-judicial remedies when institutionalized by the office of the Ombudsman. The objective of this article is to scrutinize the rule of law, access to justice, and the effectiveness criteria of the UNGPs with regard to mediation. The authors conclude that mediation can meet all of the effectiveness criteria requirements and special effort should be devoted to addressing the challenges of power imbalances between parties, the confidential nature of mediation and the public demand for transparency, to ensure that mediation outcomes are in accord with internationally recognized human rights. Based on the findings, the authors suggest that a state-based business and human rights mediation scheme, in line with the UNGPs’ effectiveness criteria, should have its own three pillars, namely, accessibility, availability and awareness, with quality assurance as its cornerstone.

Reaching the limit: access to remedy through nonjudicial mechanisms for victims of business-related human rights abuses

ABSTRACT Due to barriers to remedy through national and international legal fora, nonjudicial mechanisms (NJMs) are very often the only options for victims of transnational business-related human rights abuses (TBHRA) to seek remedy, even for serious and gross violations. Yet, it has been well-established that NJMs have been largely ineffective in providing access to remedy. Based on an assumption that improving the effectiveness of NJMs will result in better remedy outcomes for rightsholders, a variety of prescriptions have been put forth to make NJMs more effective. However, through a two-step empirical analysis of cases involving serious instances of TBHRA handled by the National Contact Points for the Organisation for Economic Cooperation and Development, this article demonstrates that, even when operating effectively, NJMs are unequipped to provide certain forms of remedy and are particularly ill-suited to provide remedy proportional to serious instances of TBHRA. This article therefore advocates for a more nuanced understanding of the degrees of various forms of remedy and what NJMs are truly capable of providing, in order to better situate NJMs within the overall remedial architecture and to aid selection of the appropriate forum.

Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?

AbstractMandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.

Access to Judicial Remedies for Palm Oil Workers Under Poor Working Conditions in Indonesia

Most palm oil workers in Indonesia are employed as temporary daily workers. Their situations are prone to human rights violations ranging from the right to fair working conditions to the freedom of association. Under international law, palm oil workers should have the right to remedies for these human rights violations. The third pillar of the United Nations Guiding Principles on Business and Human Rights (UNGPs) provides that remedies for victims of business-related human rights violations can be accessed through judicial or non-judicial means. Under Indonesian Law, palm oil workers working under poor conditions can access their remedy through judicial mechanisms, such as the Industrial Relations Court, Civil Court or Criminal Court. However, current Indonesian Law does not provide adequate access to remedies for palm oil workers in Indonesia because the law does not provide the obligation to provide remedies under the UNGPs. Therefore, these palm oil workers do not have adequate access to a judicial remedy. Palm oil workers in remote areas face legal, procedural, and practical barriers in obtaining remedies. This article aims to find the judicial avenues these workers could use to access remedies and overcome their challenges.

Framing Social Sustainability in Infrastructure Theory and Practice: A Review of Two Road Projects in Mexico from a Business and Human Rights Lens

While it has been more than 30 years since sustainability appeared in the development agenda, it remains a fashionable concept with an underdeveloped social dimension and no common understanding. In infrastructure, social sustainability has been neglected or limited to positive social impacts without considering negative social impacts linked to the prevention and redress of business-related human rights abuses on workers, end-users and communities. Through a literature review, this paper explores how sustainability is framed in theory, particularly its social dimension in the context of infrastructure. Across a qualitative analysis of a socially sustainable road project—Necaxa—and a socially unsustainable—Paso Expres—it further explores the elements that frame social sustainability in Mexican practice of road infrastructure, including the role that businesses and human rights play.

Towards a new legal consensus on business and human rights: A 10th anniversary essay

The article takes stock of developments in domestic and international law concerning the regulation of adverse human rights impacts by global business enterprises, one decade after the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs) and the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights (Maastricht Principles). It discusses these soft-law instruments in the light of long-standing systemic obstacles to holding business enterprises legally accountable for their global human rights impacts. The article argues for a new legal consensus on business and human rights, grounded in the increasing recognition by States that corporate respect for human rights should be brought under the purview of (international) human rights law. This consensus builds on the gradual convergence between the regulatory models that underpin the UNGPs and the Maastricht Principles, such that States’ domestic regulation of business enterprises with extraterritorial effect becomes anchored in international legal obligations towards foreign victims of business-related human rights violations.

Business and Human Rights: A P&O Ferries Case-Study

Business and Human Rights:A P&O Ferries Case-Study KD Ewing (bio) Quite by chance, I was completing a section of my Human Rights at Work course at King's College London. The section in question was on 'Business and Human Rights', and formed part of the Human Rights at Work (LLM) course. One of the themes covered in the latter section of the course is the obligation of businesses to comply with Human Rights obligations and the multiple sources of that obligation. And then came the P&O announcement like a bolt from the blue, once again raising big questions about the effectiveness of soft law instruments as a means of ensuring that big business behaves in a socially responsible way. Business enterprises 'should respect human rights' Pre-eminent amongst these sources are the UN General Principles on Business and Human Rights (UNGPs) approved in 2011 (the so-called 'Ruggie principles' after their author). These seek to impose obligations on governments to protect against human rights abuses; on corporations to respect internationally recognised human rights; and on States to 'ensure as part of their duty to protect against business-related human rights abuse' that those affected have access to an effective remedy. The principles require national governments to develop an action plan to promote their implementation, which the British government proudly claims to be the first to have done. This can be found on the BEIS website, with the government's implementation document claiming implausibly that 'the promotion of business, and the respect for human rights, go hand in hand'. Not only that: 'The 'golden thread' of safeguards in society that are good for human rights–democratic freedoms, the rule of law, good governance, transparency, property rights and civil society–also provide fertile conditions for private sector led growth'. The question that then arises is what is meant by human rights for this purpose? To which human rights do these obligations apply? The position could not be clearer or more expansive. According to the UNGPs, they apply to the 'international bill of rights' (meaning the UN Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), as well as the ILO Declaration on Fundamental Principles at Work. It is not necessary to go into these in great detail here; they are easily accessible on the web. So what are the obligations on the part of the government to comply with principles which have now been endorsed by the G7 as part of the currency of globalisation? First they have a duty to 'prevent, investigate, punish and redress' human rights abuses. Secondly they should set out 'an expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations'. Thirdly, they should enforce laws that are aimed at or have the effect of requiring business enterprises to respect human rights'. Special obligations arise specifically in relation to those businesses which are supported by the State or have contracts with the State. One other obligation which is worth noting in light of press reports that a Department of Transport was notified by P&O in advance of the announcement, yet did nothing to stop it, but on the contrary appeared to condone the company's decision. This is the principle that states should ensure that government departments that shape business practices are aware of and observe the State's human rights obligations when fulfilling their mandates. This includes providing relevant information, training and support, raising questions about the training and support of the DoT official, whose responsibility when circulating details of P&O's decision was to raise a red flag not to flash a green light. A duty to 'identify, prevent, mitigate, and account for' So far as the company itself is concerned, the Guiding Principles impose multiple human rights obligations. They must avoid causing adverse human rights impacts in their activities, and address such impacts when they occur, and in order to do so, they must take a number of prescribed steps. First they must have in place policies and processes, whereby they commit to meet their...

Business and human rights versus corporate social responsibility: Integration for victim remedies

It is a daunting task to discern between the several debates within and surrounding the corporate social responsibility and the business and human rights movements. At the basic level of objectives, for instance, questions arise as to which movement is substantively or comparatively broader in scope. In contributing to the debates, this article investigates their evolution and the intersections within the fields. It finds both movements to be inextricably-linked regulatory movements directed at establishing accountability for the impact of human rights violations. Using the human rights due diligence requirement elaborated by the influential United Nations Guiding Principles on Business and Human Rights as a springboard, the article integrates the shared objective of the two inseparable movements, describing for scholarship and practice, the ambit of a victim-centred accountability remedial framework for business-related human rights abuses.

The Unrealized Potential of National Human Rights Institutions in Business and Human Rights Regulation: Conditions for Effective Engagement and Proposal for Reform

While National Human Rights Institutions (NHRIs) are widely regarded as particularly promising tools in the emerging transnational regime for the regulation of business and human rights, we still know little about their potential and actual contribution to this field. This article bridges the gap between business and human rights research and NHRI scholarship, proceeding in three steps: Firstly, I analyze the structural conditions for NHRIs to tackle business-related human rights abuses effectively, focusing on the key conditions of legitimacy and competences. Secondly, I examine the envisaged role and functions of NHRIs in business and human rights regulation according to the Paris Principles and the UN Guiding Principles. Thirdly, I reconstruct and critically assess NHRIs’ mandates and powers to address corporate human rights abuse, based on the analysis of surveys and reports. I argue that there is a significant mismatch between the essential structural conditions for effective NHRI engagement with business and human rights, the expected contribution of NHRIs to the prevention and remedy of corporate human rights abuses, and the limitations of their mandates and powers in practice. To overcome that misalignment and unlock NHRIs’ full potential, this article proposes a reform of the Paris Principles which would provide these institutions with a robust source of international legitimacy and increase the pressure on state governments to extend their powers.

OECD National Contact Points as Sites of Effective Remedy: New Expressions of the Role and Rule of Law within Market Globalization?

AbstractNational Contact Points (NCPs), which support the OECD Guidelines for Multinational Enterprises, are often invoked as a reliable state-based mechanism for holding transnational corporations accountable for business-related human rights abuses. The objective of this article is to scrutinize the ability of NCPs to offer effective remedy through the lens of an often-quoted success story (the case of the post-colonial brewery Bralima-Heineken at the Dutch NCP) and through a few existing studies that examine factors that curtail or enhance the possibility of NCP mechanisms to deliver effective remedy. Based on these findings, we suggest specific ‘actions for effectiveness’ in the form of recommendations for improving NCPs as a tool to deliver effective remedy. Zooming out, we extend some general observations on how our findings illustrate that NCPs are expressions of a larger systemic problem surrounding the role of law within market globalization and the impact of economic liberalization on the making of norms, changing legal authority and basic fairness under conditions of stark power imbalance. Supporting this approach are historical factors which make the OECD Guidelines and NCPs ripe for such conceptualization.

Rise of Mandatory Human Rights Due Diligence: A Beacon of Hope or a Double-Edged Sword?

AbstractThis article discusses the evolution, current trends, limitations and controversies around the understanding and practice of human rights due diligence (HRDD), a concept developed in the course of the work of United Nations (UN)-mandate holder, John Ruggie, and enshrined in the UN Guiding Principles on Business and Human Rights. While the concept has gathered broad acceptance and a growing number of legislative proposals are seeking to entrench it in law, significant differences of opinion exist among stakeholders as to its nature, objectives and relationship, if any, with legal liability. These differing understandings are at play in a contest to shape future legislation. Some of these carry significant risks for rights-holders, notably the risk of outcome being superseded by process and superficial, compliance-oriented HRDD prevailing in the law or in its interpretation and practice. As legislative efforts continue, the authors warn against the risk of hollow laws which do little to change the status quo or, even worse, inadvertently provide a tool to further impunity for business-related human rights abuses.

The Future of Tort Litigation against Transnational Corporations in the English Courts: Is Forum [Non] Conveniens Back?

AbstractThis article examines private international law issues raised by civil liability cases commenced in the courts of home states against transnational corporations concerning their alleged involvement in the overseas human rights violations. These claims have been particularly successful in the United Kingdom, where in the last several years the framework of Brussels I Regulation (recast) and English common law rules made it appropriate for the English courts to assert jurisdiction over corporate defendants without the possibility of subjecting claims against the parent companies to forum non conveniens control. In 2019, however, the Supreme Court in a high-profile case Lungowe v Vedanta Resources plc expressed doubts as to whether England should always constitute a proper forum for litigating overseas wrongs arising from the operations of British multinationals. The article aims to assess how the search of the most appropriate forum to litigate the dispute might impact victims of business-related human rights abuses in the post-Brexit environment and propose avenues for legal change.

A regulação da transparência em direitos humanos e escravidão moderna nas cadeias de suprimentos corporativas

O presente artigo analisa alguns limites dos modelos de prestação de informações para avaliar se são ferramentas hábeis na identificação de riscos das atividades empresariais em matéria de direitos humanos, bem como para engajar as empresas em esforços colaborativos para defende-los. A Lei de Escravidão Moderna da Austrália (MSA, 2018, Commonwealth) é o mais recente exemplo global entre os modelos legislativos criados para estimular a ação corporativa nas operações de seus negócios e nas cadeias de suprimento diante desses riscos. Alguns desses modelos exigem a implementação de medidas de due diligence em direitos humanos (DDDH), como previsto pelos Princípios Orientadores sobre Empresas e Direitos Humanos da ONU, de 2011. Entretanto, o modelo do MSA é melhor descrito como um regime de transparência e de dever de informar. Esse tipo de regime não exige que as empresas tomem medidas de DDDH; ao invés, apenas exigem que elas reportem sobre as medidas que tomaram durante o período avaliado. Nesse artigo, analisamos algumas suposições subjacentes ao modelo desses modelos ou esquemas baseados em relatórios. Consideramos, para tanto, a prática usual das companhias ao investigar suas cadeias de suprimentos: a auditoria social. Alertamos, porém, contra o excesso de confiança nessa prática, que não é sinônimo de DDDH. Ela não necessariamente promove uma conformidade abrangente e não meramente cosmética, assim como não estimula ações corporativas perante riscos não evidentes no tema direitos humanos. Finalmente, oferecemos algumas abordagens alternativas para o aperfeiçoamento da eficácia dos mecanismos de percepção de riscos de direitos humanos especialmente nas cadeias produtivas.

Business-related human rights violations continue unabated in Indonesia without implementation of the UNGPs

Business-related human rights violations continue unabated in Indonesia without implementation of the UNGPs

Business actors and land restitution in the Colombian transition from armed conflict

ABSTRACT In the field of business and human rights, it is recognised that some of the worst human rights violations related to business actors occur in conflict-affected countries. Yet, little research adresses the potential of domestic transitional justice instruments to provide victims with access to remedy. This article seeks to better understand the functioning of such instruments by presenting a case study of the land restitution mechanism in Colombia. This mechanism constitutes a far-reaching remedy framework for cases of land dispossession, in which business actors appropriated the land of forcibly displaced persons, including extensive legal assistance measures, shifts and reductions in the burden of proof and a binding due diligence obligation for investors. However, its implementation has been rather weak. Drawing on qualitative interviews with experts involved in land restitution proceedings against business actors, the article identifies the main obstacles to these proceedings and develops recommendations on how to improve transitional justice instruments so as to redress victims of business-related human rights violations in post-conflict settings.

ПРО СИСТЕМУ ЗАСОБІВ ЗАХИСТУ ПРАВ У КОНТЕКСТІ КЕРІВНИХ ПРИНЦИПІВ ООН З ПИТАНЬ БІЗНЕСУ ТА ЛЮДИНИ

The presented paper, giving the reference to the 2030 Agenda for Sustainable Development aimed at transforming our world, underlines the internationally recognized foremost importance of human rights protection. The presently intensified economic globalization causes concerns in regard to responsibility of states and business entities to respect and safeguard human rights. Thus, the author presents the UN contribution into establishing the system of human rights remedies, that can and should be applied by states, subjects of economic activities and other stakeholders in order toensure the rights of individuals in case of the business-related abuses and violations. On the basis of the UN experience and the current international practices, being actively elaborated after the adoption of the UN Guiding Principles on Business and Human Rights of 2011, the author indicates the essence and the content of the legal phenomenon of the system of remedies for rights protection. In particular, the paper provides some specific characteristics of the State-based judicial, State-based non-judicial and non-State based non-judicial mechanisms for protecting human rights in business. The judicial remedies, being the basic, need to be more efficient; the international community calls for more profound development of the State-based non-judicial remedies, paying significant attention to the role of the national institutions for the promotion and protection of human rights, incl. Ombuds-institutions. The system of the non-State based non-judicial mechanisms is described as an evolving matter; business entities, especially transnational corporations, are to incorporate them into their policies and practice, to ensure their responsibility to respect human rights. The advantages and shortcomings of all the above mentioned mechanisms are described in general. The UN requirement towards states and businesses to provide a complex approach — "a bouquet of remedies" is presented, also as a recommendation for Ukraine. The suggested conclusions underline the importance of implementing in Ukraine the UN Guiding Principles on Business and Human Rights in the overall context of realization of the Sustainable Development Goals. This includes the necessity to integrate the UN Guiding Principles into the national policy, strategic and legal acts in a number ofareas, to establish a holistic and efficient system of remedies in cases of business-related human rights abuses and violations. The evident benefits for Ukraine and Ukrainians, provided the required international provisions are implemented, are identified.