UN Guiding Research Articles

Storm in an Ice Cream Cone: Was Ben & Jerry's Decision to End Ice Cream Sales in Israeli Settlements a Responsible Corporate Exit from Occupied Territories?

Abstract Ben & Jerry's – the famous ice cream brand known for its quirky flavours and social justice ethos – announced in 2021 that it would withdraw its products from Israeli settlements in the Occupied Palestinian Territory (OPT). This announcement sparked controversy, with an impact on the company and its parent, Unilever. While the UN Guiding Principles on Business and Human Rights (2011) (UNGP) have established themselves as the leading international governance framework for the social responsibilities of businesses, their application to conflict-affected areas lacks clarity. Questions remain, including when is a company legally complicit in violations of international humanitarian law (IHL), and when is a corporate exit from an area under military occupation the appropriate and responsible thing to do. This article uses Ben & Jerry's withdrawal from the OPT as the basis for investigating these questions. It finds that while it is unlikely that Ben & Jerry's would be exposed to any legal liability for violating IHL through its product sales in Israeli settlements in the OPT, its withdrawal aligns with its responsibilities under the UNGP as a reasonable and prudent corporate action in response to its activities being linked to enduring and severe IHL violations.

From Aspiration to Public Policy: Imprinting UNGP-Aligned Footprints of Corporate Responsibility and Accountability into the Shifting Sands of International Arbitration Practice

Abstract Endorsed more than a decade ago by the UN Human Rights Council, the UN Guiding Principles for Business and Human Rights (UNGPs) articulate the responsibilities of States and corporations for human rights. Since then, the issue of corporate responsibility for human rights, and also the environment, and how it ought to be recognized and enforced, has attracted increasing attention. In more recent years, States have promulgated a flurried storm of ESG regulations requiring disclosure of human rights or climate risks or mandating human rights due diligence across global supply chain networks, intensified their transition to greener economies, and continued to negotiate treaties infused with dreams of more sustainable investment and development. Against this backdrop, in October 2023, a UN Special Rapporteur presented a report that condemned the international arbitration system for prioritizing the protection of corporate property rights over the protection of international human rights and the environment. In tracing the development of a ‘soft law’ aspiration of corporate responsibility to inscriptions into ‘hard law’ international investment law treaty instruments and then considering how those inscriptions have been interpreted and applied by tribunals, this article finds that despite the nascent recognition of corporate responsibility for human rights and the environment, the enforcement of accountability for that responsibility in international arbitral practice is currently misaligned with the UNGPs and with other fundamental tenets of international law. This article subsequently explores the opportunity, and implications, for imprinting stronger footprints of responsibility and accountability in international arbitral practice, including through the potential recognition of new international public policy upholding corporate responsibility for human rights and the environment, and in doing so, highlights the need for greater cross-industry, multidisciplinary and multilateral dialogue on an issue of not only global significance, but with global impact.

Business and human rights in Japan: Progress and challenges of the Japanese government

Business and human rights in Japan: Progress and challenges of the Japanese government Professor Emi Sugawara from Osaka University of Economics and Law, Faculty of International Studies, discusses government’s efforts to respect human rights in the supply chain. If the ultimate goal of the business and human rights movement is to realise a sustainable society in which no one’s human rights are left behind, then the role of the state, along with businesses, is important. According to UN Guiding Principles on Business and Human Rights (UNGPs), states have a duty to protect human rights by creating an environment that enables businesses to respect human rights, and this environment can be created through a smart mix of policies that are consistent from the perspectives of business and human rights. Noted, so what about Japan?

Internally Displaced Persons: Rights, Implementation, and the Way Forward in Pakistan

Pakistan currently has one of the highest numbers of internally displaced persons in its territory. There are many reasons why more and more people are being displaced each year. This paper will discuss in detail the condition of those IDPs who attained such character because of violence or war. It further goes on to describe the legal framework for IDPs. Apart from UN Guiding Principles and constitutional guarantees, there is no specific law that deals with IDPs. The Study suggested that the authorities should provide them with all their basic needs and work tirelessly to make their return to their homelands possible. Furthermore, the paper will analyze the challenges faced by IDPs in accessing education and employment opportunities, which further hinder their ability to rebuild their lives. Additionally, it will explore the importance of international cooperation and humanitarian aid in addressing the needs of IDPs and finding durable solutions for their displacement.

Observance of Labor rights in wartime through the lens of the UN Guiding Principles on Business and Human Rights: problems and prospects for improvement

The article focuses on the issue of observance of labor rights in wartime, in particular, through the prism of the UN Guiding Principles on Business and Human Rights. This document is the main basis for achieving a positive result in the implementation of labor relations, which requires a detailed analysis and study of its specific features.
 It is noted that labor relations are controlled by the State and represented by the government on the basis of national and international legislation. The UN Guiding Principles on Business and Human Rights is a significant achievement of the international community in the field of effective and lawful functioning of labor relations and regulates the key principles of business entities in those states that have implemented this document.
 The author identifies problematic aspects of compliance with the UN Guiding Principles on Business and Human Rights. It is noted that the main factor behind the violation of labor rights is the armed conflict, which contributed to the restriction of the labor rights of citizens provided for by the Constitution. The russian federation's armed aggression has resulted in the illegal dismissal of a significant number of citizens and violations of labor legislation, which is a violation of the UN Guiding Principles. The ineffectiveness of the existing legal framework under martial law can be observed, as the norms do not provide for state action in such a special period.
 Considering the real state of affairs in the state, it is necessary to update the regulatory acts in accordance with the challenges of our time. The author suggests options for avoiding and preventing violations of the labor rights of citizens under martial law. Priority areas for addressing such problematic issues include constant monitoring of the regulatory framework in accordance with urgent needs; avoidance of gender-based and sexual violence; strategy of actions in case of a business entity's defection to the enemy; development of state initiative programs in the field of business; international cooperation; and adoption of foreign experience.

National Action Plans on Business and Human Rights and Protecting Displaced Populations through Human Rights Due Diligence

Abstract In 2020, Taiwan released its National Action Plan on Business and Human Rights (NAP) to implement the UN Guiding Principles on Business and Human Rights, with the government committing to release a revised plan by the end of 2024. In parallel was the release of Taiwan’s first National Human Rights Action Plan (NHRAP) in 2022, where refugee protection was expressed as a priority. In this, the government commits to codify legal mechanisms for asylum and clarify application procedures. These developments on business and human rights, on the one hand, and refugee protection, on the other, are significant for the Asia-Pacific because the region hosts the highest number of displaced persons and is the global manufacturing hub. This article examines the nexus between business, human rights and protection for displaced individuals. It provides recommendations on how Taiwan’s next NAP can address refugee protection in line with its human rights protection commitment.

In Search of A Just And Equitable Agricultural Land Dispute Settlement In Indonesia

Agricultural land dispute is commonly resolved by a non-judicial settlement. It however experienced silent conflict and a just and due process of law due to multiple interests involved. Responding to these salient disputes, in 2021 the International Institute for Unification of Private Law (UNIDROIT) established a legal guide to assist developing countries to draft a more sustainable and responsible agricultural land investment contract (ALIC). In Liew to the UN Guiding Principle on Business and Human Rights (2011), the state and enterprises shall exercise adequate oversight to protect the breach of human rights including the customary land rights. The research aims at assessing the agricultural land dispute settlement pursuant to ALIC. It was found that land dispute settlement was dependent upon the maintenance of social control consisting of a dynamic mixture of informal and formal systems. This type of social control enabled creating a balance between disputants, minimizing transactional costs and promoting effective law enforcement. The article elaborated land dispute settlement in two different cases in Indonesia and discusses non-litigation hybrid model of land dispute resolution to promote a better strategy for resolving a land dispute in Indonesia. At the same time, this model may serve as a potential method to provide a better strategy to promote private rulemaking to prevent further disputes as a transition to the application of ALIC.

Holding corporations liable for human rights abuses committed in Africa: the need for strengthening domestic remedies

It has been two decades since the African Commission on Human and Peoples’ Rights (Commission) rendered its landmark decision in SERAC and CESR v Nigeria. In this landmark judgment, and later in IHRDA and Others v DRC, the Commission explicitly affirmed states’ obligation to investigate, prosecute and redress corporate human right abuses as part of the obligation ‘to adopt legislative or other measures’ under article 1 of the African Charter on Human and Peoples Rights (AfricanCharter). Similarly, states’ obligation to ensure a remedy for corporate human rights abuses is also one of the issues clarified under the ‘Third Pillar’ of the UN Guiding Principles on Business and Human Rights. However, as this obligation is not adequately translated into practice at the national level, corporate human rights abuses committed in Africa continue to be met with impunity and lack of access to effective remedy. Over the last several years, African victims who are denied justice in their domestic jurisdictions have increasingly been turning to home states of corporations to seek remedies. Victims’ access to home state remedies has, however, been significantly restricted in recent years due to various legal barriers, particularly jurisdictional challenges. The article therefore aims to highlight the increasing restriction on African victims’ access to home state remedies and show the need for strengthening domestic remedies in Africa

Expanding and Contracting the UN Guiding Principles: an Analysis of Recent Inter-American Human Rights Court Decisions

Abstract In 2021, the Inter-American Court of Human Rights (IACtHR) decided two cases for advancing the increasing jurisprudence on the implementation of human rights and business standards, yet there is still a gap to fill. Despite the important development with regards to the State obligation to supervise business operations, the decisions do not introduce further definitions of companies’ responsibilities on human rights nor the potential of creating mandatory remedies standards for private agents. Through the analysis of the 2021 case law, this article concludes that the IACtHR has been increasingly using the UN Guiding Principles to argue for its rulings but has missed the opportunity to generate greater accountability for companies and private actors in its decision-making.

Prospective directions of investment of pension assets as a factor of economic development of Ukraine

It is indicated that both economic and social reforms have been stalled in Ukraine for a long time. For example, 25 years have passed since the adoption of the Fundamentals of Legislation on Mandatory State Social Insurance, 19 years since the Law of Ukraine "On Mandatory State Pension Insurance" and the Law of Ukraine "On Non-State Pension Insurance" partially entered into force. However, the situation in the field of pension provision has not fundamentally changed. We are proud of the diversity of types of social security, but the size of many of them does not meet the requirements of the Law of Ukraine "On State Social Standards and Guarantees", the European Social Charter, the Convention on Minimum Norms of Social Security and other normative acts. One of the reasons is populism in the adoption of laws in the field of social security, lack of economic analysis of the state's ability to fulfill its positive obligations. The negative effects of this approach for the legal system have been repeatedly pointed out by both domestic and foreign scientists, for example Cass Sunstein in the well-known publication "Against positive rights".
 The idea of investing pension assets in land certificates did not materialize. However, investing in agricultural holdings is quite promising. The majority of Ukrainians are still against land reform and the open land market, as they fear that it will be used to steal land resources. If the population were sure that their savings would really be invested in the land business and they would receive their investment income from the results of economic activity in the agrarian sphere, then the emphasis of public opinion could be shifted in the direction of land reform.
 These are only separate and far from exhaustive areas of potential investment. But the full implementation of the above-mentioned ideas requires the real completion of social insurance reforms and, in particular, the pension reform. For its legislative completion, it is necessary to cancel individual clauses of the transitional provisions of the Law of Ukraine "On Mandatory State Pension Insurance", make changes to the "guarantees" section and immediately put them into effect together with a new well-thought-out economic strategy. At the same time, investment of pension assets in highly profitable sectors of the economy should be carried out in clear correlation with the UN Guiding Principles on Business and Human Rights and the European Green Course.

An integrated approach to corporate due diligence from a human rights, environmental, and TWAIL perspective

AbstractTen years since the adoption of the UN Guiding Principles on Business and Human Rights, we have witnessed an increasing trend in Europe toward the adoption of mandatory human rights and environmental due diligence. Focusing on due diligence legislation from France, Germany, Norway, and the EU, this article examines the extent to which these laws are laying the foundations for the articulation of an integrated, comprehensive, and robust framework that effectively fosters corporate accountability through preventing, addressing, and remedying corporate‐related human rights and environmental harms. In this examination, we draw on international human rights and environmental standards and Third World Approaches to International Law, to identify the lessons learned from current approaches and that ought to be considered in future frameworks.

Conditionalities in International Organization Accession Processes: Spreading Business and Human Rights Norms in Central and Eastern Europe?

AbstractGovernments sometimes adopt policies that are not aligned with their preferences or have not come onto their agendas when doing so is linked to a reward. International organizations can therefore set conditions for coveted membership that include adopting new human rights and regulatory policies. As international organizations increasingly converge around the UN Guiding Principles on Business and Human Rights, how might they promote national uptake of these guidelines? This article considers the prospects of accession conditionality in answering this question. The focus of the article is on European Union and Organization for Economic Cooperation and Development (OECD) expansion in Central and Eastern Europe, where uptake of business and human rights policies remains comparatively low. The article argues that while these organizations increasingly include business and human rights conditionalities in accession negotiations, there remains significantly greater scope for promoting the Guiding Principles.

Beyond Human Rights Due Diligence: What Else Do We Need?

After the unanimous endorsement of the UN Guiding Principles on Business and Human Rights (UNGPs) by the Human Rights Council in June 2011, human rights due diligence (HRDD) has become a common currency widely embraced among stakeholders operating in the business and human rights (BHR) field. The UNGPs envisage HRDD to be the primary tool for businesses to identify, prevent, mitigate and account for adverse impacts of their activities on internationally recognized human rights.

Heightened Human Rights Due Diligence in Practice: Prohibiting or Facilitating Investment in Conflict Affected Areas?

Abstract Companies operating or seeking to invest in conflict-affected areas are expected to carry out a heightened human rights due diligence (HRDD) process to identify, address and mitigate their impact on human rights and the conflict. The heightened HRDD process put forward in the UN Guiding Principles on Business and Human Rights and clarified by the UN Working Group constitutes best practice but raises questions regarding implementation. This article explains what heightened HRDD in conflict means in practice. It examines how heightened HRDD expands the business responsibility from identifying and mitigating the impact of its operations on human rights to the impact on the conflict itself. This article draws on lessons from Myanmar, where a military coup in February 2021 caused prominent businesses to leave the country. Would a heightened HRDD process have identified additional risks and discouraged initial investment? Or would it have legitimized investment with a public rights-based, conflict sensitive HRDD process that included a clear exit strategy?

Business and Human Rights in Central and Eastern Europe: Constitutional Law as a Driver for the International Human Rights Law

Abstract This paper analyses five constitutional developments in Central and Eastern Europe that can impact the domestic implementation of the UN Guiding Principles on Business and Human Rights (UNGPs). Using Czechia, Poland and Slovenia as examples, the paper highlights four potential drivers, namely: (1) the process of constitutionalizing human rights; (2) the proliferation of the doctrine of horizontal effect of constitutional rights; (3) the constitutional legitimacy of state intervention in the free market economy; and (4) the mechanism of judicial review. Furthermore, the author underlines the most significant challenge, which is increasing resistance to international norms in some countries, e.g., Poland. The paper concludes that the jurisprudence of the constitutional courts can facilitate the domestic implementation of the UNGPs, particularly Pillars I (State duty to protect human rights) and III (access to remedy).

Business and Human Rights in a Changing World Order: Beyond the Ethics of Disembedded Liberalism

AbstractThe UN Guiding Principles (UNGPs) and their concept of human rights due diligence (HRDD) cannot succeed in their current form, because they reify neoliberalism’s public/private divide. This article establishes this argument across historical, theoretical, and normative dimensions, and charts a new way forward. The UNGPs’ separation of the ‘state duty to protect’ from the ‘corporate responsibility to respect’ reflects a contestable conception of companies as private actors: free to act/transact in any way that is not harmful. This is a problem because harm is often invisible, even when taking an active due-diligence approach. To resolve this, HRDD practices must also be based on the positive value of equality. However, businesses are more than mere agents; they also coordinate production and enable social connections. These structural features reveal a ‘missing fourth pillar’ of the UNGPs: a collective political responsibility to challenge and change our current world order.

Industry groups in international governance: a framework for reform

The Sustainable Development Goals and the UN Guiding Principles on Business and Human Rights encourage engaging with businesses as partners in important global governance agendas. Indeed, many international organizations are now partnering with business groups to secure funding and private sector engagement. At the same time, reforms at the World Health Organization, Food and Agriculture Organization and others seek to restrain the dangers of mission distortion and capture by business groups. Shareholders at major multinational oil and gas companies also recognize these dangers and seek to rein in lobbying that is at odds with the goals of the Paris Climate Agreement. Despite these tensions, little scholarly attention has been paid to the regulations that govern how industry and trade groups may participate in the work of international organizations. Specifically, little attention has been devoted to how those regulations could best capture the potential benefits of business engagement while restraining the potential harms. This article offers a history of engagement between international organizations and industry and trade associations, reviews arguments for embracing or restraining their participation, and develops a framework for regulations to govern their access.

Corporate Human Rights in the Context of Corporate Social Responsibility: Relationship with Firm Performance in Extractive Industry

Keywords: 
 corporate social responsibility, corporate human rights, firm performance 
 
 Paper type: 
 Research 
 In this study, corporate human rights (CHR) performance is evaluated within the framework of corporate social responsibility (CSR). The emergence and development of corporate human rights (CHR) and the benchmarks prepared on the basis of the UN Guiding Principles on Business and Human Rights established within the Office of the United Nations High Commissioner for Human Rights (OHCHR) is evaluated. The CHR performances of multinational enterprises operating in the oil, gas and mineral mining (extractives) sector all over the world in 2019 examined. 54 multinational extractive corporations included in the analysis. The relationship between the financial performances and CHR scores is examined by correlation analysis, and significant relationships found between CHR and total revenue, total assets, EBITDA, price to book and net profit margin.

Evaluating the Polish NAPs: Lessons for the Future Implementation of the UN Guiding Principles on Business and Human Rights

Abstract Since their adoption, the UN Guiding Principles on Business and Human Rights have become crucial to intensify actions to protect human rights in the context of business conduct. Numerous countries, including Poland, have adopted National Action Plans (NAPs). Taking into account the years that have passed, it is worth assessing the implementation of their goals. Guidelines for the preparation of NAPs on business and human rights of the United Nations Working Group on Business and Human Rights (UNWG) are helpful in assessing the Polish NAPs. This Development in the Field piece concludes that every NAP should begin with an assessment that would help identify areas where there is a need to implement necessary policies. Such an assessment could be used to compare the initial stage with future achievements. It should rely on clear milestones mentioned in NAPs, and on key performance indicators to assess effectiveness while also relying on inclusive decision-making processes. Unfortunately, this was not the case with the two Polish NAPs.

Business Strategy as Human Rights Risk: the Case of Private Equity

In this article, we apply the UN Guiding Principles on Business and Human Rights to the private equity (PE) business model. PE firms often adopt a controversial, ‘value extractive’, business model based on high debt and extreme cost-cutting to generate investor returns. PE firms own large numbers of companies, including in many rights-related sectors. The model is linked to increased human rights risks to workers, housing tenants, and in privatized health and social care. We map these risks and analyse the human rights responsibilities of PE firms. Our analysis has major implications for understandings of human rights responsibility. We argue that value extractive methods are the root cause of eventual harm to human rights, even though they may not harm rights directly. To respect human rights, PE firms must mitigate the risks of these value extractive methods. We define how human rights due diligence (HRDD) could achieve this and argue that given the extent of harm and the lack of a business case for adopting such a view of human rights responsibility, business strategy level HRDD should be a core component of forthcoming HRDD laws.