United Nations Guiding Principles Research Articles

Forms of Law for the Anthropocene: Civil Liability Revisited

Abstract Rapid, unpredictable ecological changes and the resulting instability that are characteristic of the Anthropocene call for a re-examination of the role of law in governing interactions between humans and ecosystems and facilitating adaptation to ecological change. The scope and scale of environmental change we are experiencing seem to call for a regulatory approach, namely forms of law that are designed to pursue well-defined material objectives, often through instruction rules designed to guide behavior to line up with those objectives. Such forms of law have a crucial role to play. However, the negligence principle at the heart of civil liability law is also capable of absorbing and circulating information about environmental risk and means of addressing it, and of translating that information from empirical to normative terms. The grounding of negligence in domestic civil liability law could be a serious obstacle to its effectiveness given the global, Earth system-wide nature of environmental degradation. However, the negligence principle increasingly operates through networks that traverse jurisdictional boundaries, as well as the boundaries between social systems. I propose such a network approach to analyze interactions between the negligence principle and corporate due diligence obligations embedded in domestic legislation and international texts such as the United Nations Guiding Principles on Business and Human Rights (UNGPs). One important result would be the imposition of expanded epistemic obligations on firms, which would in turn require their serious engagement with domestic, international, and transnational environmental and sustainability norms.

Filling the Accountability Gap: Misleading Conduct Law in Business and Human Rights

Abstract This article examines the use of misleading conduct law to challenge false or deceptive business claims about their human rights practices and impacts. It does so in the context of recent developments in the field of business and human rights including the introduction of non-financial reporting, disclosure and human rights due diligence that have seen an increase in business communications about their human rights impacts. The article uses the Protect, Respect and Remedy framework of the United Nations Guiding Principles on Business and Human Rights to analyse the EU Directive on Unfair Commercial Practices (2005/29) and the Australian Consumer Law. Each prohibit misleading conduct by business. The article argues that, to differing extents, these legislations partially address the accountability gap that has emerged in the context of corporate human rights claims and practices.

Business and human rights as Swedish foreign policy: The soft implementation of international regulatory norms

AbstractThis article aims to explain why national governments choose soft policies in the domestication of international norms even when those norms may explicitly call for harder measures. The article achieves this aim by exploring domestic adoption of National Action Plans (NAPs) for implementing the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs are an international soft law instrument that calls for a mix of voluntary and mandatory policies to promote human rights due diligence, and NAPs are soft domestic policy instruments that lack the bindingness of mandatory due diligence legislation now found in several states. Most governments with NAPs have adopted them specifically as foreign policies, treating them not as regulatory initiatives but as tools for enhancing national reputations. Using a range of primary and secondary sources, the article constructs a case study of Sweden to explain why governments might opt for softer implementation of the UNGPs in the form of NAPs. It draws several conclusions: (1) governments may emulate the approach to domesticating international regulatory norms that is promoted by international organisations; (2) support from domestic actors motivates norm implementation, and the policy style selected is likely to reflect power constellations in the state and, under consensus‐based governance systems, the lowest common denominator of actor preferences; and (3) path dependency following institutional venue selection influences the type of policy developed and adopted. These findings shed new light on the reasons why international policy norms are implemented in ‘softer’ ways than perhaps intended by their architects.

A review of the legitimacy of FIFA’s participation in Qatar’s human rights governance

ABSTRACT Respecting and protecting human rights is one of the fundamental principles stipulated in the FIFA Charter. In the case of labour issues in Qatar, there is a legality issue with FIFA’s participation in Qatar’s human rights issues. FIFA has not clarified either its legal status or responsibilities in participating in human rights governance. FIFA claims that its involvement is based on the International Bill of Human Rights and the United Nations Guiding Principles on Business and Human Rights, but neither of these gives FIFA the right to directly intervene in the human rights affairs of other sovereign states. Therefore, it is necessary to review the legal insturments of the human rights sanctions imposed by FIFA in the Qatar case and deduce from various legal documents those activities in which FIFA is entitled to engage, and the role it had played and would play in human rights issues deduced from the FIFA’s practice in Qatar.

Climate Litigation in Indonesia: Lessons from the Royal Dutch Shell Case

This article compares the concept of unlawful act in the Indonesian and Dutch Civil Codes, with specific attention to the notorious decision of the Milieudefensie et al v. Royal Dutch Shell Case. Therein, the Dutch Court applied unwritten law under Article 6:612 of the Dutch Civil Code, calling for reduction in carbon emissions through policy changes by the Shell group. The use of unwritten law allowed for a comprehensive assessment of legal bases, including international soft law instruments, such as the United Nations Guiding Principles on Business and Human Rights. Inspired by such a decision, this article aims to unveil the readiness of Article 1365 of the Indonesian Civil Code in entertaining a similar case. It compares the approach taken in the Milieudefensie et al. v. Royal Dutch Shell Case with pertinent decisions by the Indonesian court concerning the implementation of Article 1365 of the Indonesian Civil Code. Furthermore, it focuses on two prongs of civil liability that are necessary for establishment: 1) unwritten law; and 2) causality. By doing so, this article aims to contribute to the evolving realm of climate litigation, specifically within the framework of civil law.

The EU Directive on Corporate Sustainability Due Diligence (CSDDD): The Final Political Compromise

Abstract After the endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs) by the Human Rights Council on 16 June 2011, 15 March 2024 marked another milestone for transnational corporate governance. That day, a qualified majority of the member states of the European Union (EU) voted in favour of the Directive on Corporate Sustainability Due Diligence (CSDDD) setting human rights and environmental obligations for large companies in their global value chains.1 The CSDDD is the first region-wide due diligence legislation, yet it is also a political compromise among EU member states, which civil society and business have been watching closely. This piece explains the main elements of the CSDDD and outlines some of its implications beyond the EU.

Corporate Human Rights Responsibility in Illiberal Regimes: The Example of the Ukrainian Refugee Crisis in Hungary

Abstract Following the first-ever rule of law conditionality procedure in September 2022, a resolution was adopted by the European Parliament which declared that Hungary could no longer be considered a full democracy, as it had turned into a ‘hybrid regime of electoral autocracy’. Against this background, this article explains the business and human rights (BHR) gap in Hungary and presents its consequences for the Ukrainian refugee crisis. We first provide a general overview of the role of business in the development and consolidation of the Orbán regime over the past 13 years, highlighting how businesses are both agents and victims of legal and political developments. The paper distinguishes four types of ‘business’: multinational and foreign companies that are direct beneficiaries of the regime; local companies that are direct beneficiaries of the regime; multinational companies that are targets of restrictive and repressive populist rhetoric and economic policies; and the ‘rest’, the remainder that try to avoid becoming targets of oligarchic takeovers. The article also documents how the state and other stakeholders are failing to meet their commitments under the United Nations Guiding Principles on Business and Human Rights (UNGPs). The next part of the article assesses how companies are responding to the refugee crisis caused by the war in Ukraine, Hungary’s neighbour. If the government does not adopt Pillar I and Pillar III of the UNGPs, what room for manoeuvre do companies have? The focus here is on how companies, domestic and foreign, multinational enterprises (MNEs) and small and medium enterprises (SMEs), engage in humanitarian (and human rights) crisis management.

Free, Prior, and Informed Consent

Abstract Free, Prior, and Informed Consent (fpic) is crucial for the exercise of indigenous peoples’ right to self-determination, a binding human rights norm, as it provides them with the opportunity to determine how their lands and resources are developed. While numerous companies have committed to respecting fpic in their corporate policies, there continues to be a huge disconnect between public rhetoric and actions on the ground, and indigenous peoples generally struggle to have a meaningful voice in decision-making processes that concern them. Even if the United Nations Guiding Principles on Business and Human Rights (ungp, 2011) have compelled companies to gain ground with regards to their responsibility to respect human rights, the ‘do-no-harm’ principle does not require them to take positive actions towards fulfilling human rights. This approach is inconsistent with the moral foundation of human rights, which implies duties, and does not account for the substantial economic and political power that increases companies’ potential as guarantors of human rights. Based on the normative and moral legitimacy sustaining the narrative on corporate human rights obligations and the political, moral and legal imperative behind fpic, this article asserts that companies have a normative obligation to observe fpic, which they ought to operationalise in the context of heightened requirements regarding their human rights due diligence.

Corporate Responsibility to Respect Human Rights Defenders Under the UNGPs and Steps Towards Mandatory Due Diligence

Besides state actors, non-state actors and particularly private companies target human rights defenders (HRDs) and violate their rights to intimidate and stop them from challenging their interests. Despite the absence of responsibility of non-state actors in international human rights law, the United Nations Guiding Principles on Business and Human Rights (UNGPs) set out global standards and acknowledge the role of HRDs in the promotion of human rights, urging corporations to work closely with defenders. Considering the effectiveness of the UNGPs, the article explores the potential for protecting HRDs within the framework and concludes that the UNGPs could be utilised to enhance the protection of defenders in relation to business activities. It also suggests that current efforts of implementation would be strengthened by mandatory human rights due diligence laws at the national and regional levels, and emphasises that a clear inclusion of corporate responsibility to respect defenders is required, as it would be beneficial for both sides, defenders and business enterprises.

MELHOR DO QUE NADA? A IDEIA DE “JUSTIÇA POSSÍVEL” PARA A COMPENSAÇÃO INDIVIDUAL EM CASOS DE DESASTRES

Abstract When affecting a considerable number of victims, post-disaster remedy processes face significant obstacles related to assessing and measuring the exact extent of individual losses. Recent cases have adopted the concept of “rough justice”, a method also applied to the September 11th Victim Compensation Fund and in transitional justice contexts. While achieving full compensation may be difficult, time-consuming, and sometimes impossible, resorting to “rough justice” can serve as a theoretical framework to legitimize insufficient reparations and the perpetuation of rights abuses. The article examines the application of the “rough justice” paradigm and assesses the relevance of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in disaster cases. It focuses on holding companies accountable for compensating damages incurred by individuals. The conclusion emphasizes the necessity for any accepted parametrization to be rigorous, based on solid and transparent methods for assessing the losses of affected individuals and communities. The process should be guided by the needs of those affected and incorporate traditional knowledge, establishing minimum values while allowing for individual adjustments when possible. Furthermore, procedures should be open to review whenever new data arises regarding the impacts of the disaster or the evolving needs of the affected parties, especially considering ongoing and future losses.

Managing Religious Diversity in the Private Sphere in Post-Secular Societies: Lessons from Business and Human Rights

This article discusses managing religious diversity in post-secular societies by drawing lessons from business and human rights. Managing religious diversity has been traditionally played out in the realms of the state. A state’s primary obligation is to respect and protect religious diversity in its society. This article looks beyond the state by arguing that managing diversity is a two-way street. It submits that business and human rights standards are benchmarks by which state and corporations’ effective management of religious diversity should be measured and supervised. This article argues that business and human rights standards, such as the United Nations Guiding Principles on Business and Human Rights, establish the obligations of business and other private actors, such as religious communities, to respect and protect human rights in private relations. Businesses carry negative and positive obligations to employ a human-rights-based approach to managing religious diversity in their business operations. Religious communities, for their part, have to manage religious diversity to the extent their autonomy and self-governance allow for it. Equipped with this knowledge, this article concludes that business and human standards, including the United Nations Guiding Principles, represent the standards that business and religious communities should comply with in managing religious diversity in private relationships.

The current state of corporate human rights disclosure of the global top 500 business enterprises: Measurement and determinants

This study contributes to the ongoing debate on business and human rights by providing insight into the current state and determinants of corporate human rights disclosures among the top 500 largest business enterprises worldwide. To do so, we use a 13-item human rights disclosure score to evaluate disclosure in two dimensions: scope and quality. Overall, the measured global level of corporate human rights disclosure is low, with business enterprises scoring on average only 3.72 out of 13 points. This indicates a lack of transparency, awareness, and sensitivity regarding corporate responsibility to respect human rights as described in the United Nations Guiding Principles on Business and Human Rights. However, there are considerable differences across countries. The higher-scoring business enterprises are predominantly based in Australia and Europe. Multivariate analyses reveal that corporate visibility, sector sensitivity in terms of higher litigation risk, and institutional pressure in the form of soft law are positively associated with corporate human rights disclosure levels. However, we find that current forms of national mandatory regulation do not achieve the desired impact on high-quality corporate human rights disclosure, which suggests more targeted and concrete reporting requirements as well as better enforcement may be necessary to improve corporate human rights disclosures.

Business and human rights in Japan: Rights holders’ perspectives

Business and human rights in Japan: Rights holders’ perspectives Emi Sugawara, Osaka University of Economics and Law, examines business and human rights issues in Japan with a focus on the priority issues from rights holders’ perspectives. The United Nations Working Group on Business and Human Rights conducted a research visit to Japan from 24 July to 4 August. Japan was the eighteenth country to be visited by the working group under its mandate to disseminate, promote and implement the United Nations Guiding Principles on Business & Human Rights. The working group is also mandated to exchange and promote good practices and lessons learned from the implementation of the guiding principles and assess and make recommendations thereon. One purpose of the working group’s visit to Japan was to examine business and human rights issues in the country. During the visit, the working group travelled all over Japan to Tokyo, Osaka, Aichi, Hokkaido and Fukushima, and engaged with the government and business sectors, civil society and various rights holders.

Human Rights Due Diligence and the Climate Change Dimension: Implications for Investor Responsibility in International Investment Law

Abstract The concept of human rights due diligence (hrdd) of businesses under the United Nations Guiding Principles on Business and Human Rights (ungps) is an important milestone in the standards of business conduct. The responsibility of businesses to conduct hrdd is focused on the human rights risks to, or impacts on, communities from business activities. Recent developments highlight the increasing convergence and integration between the ungps’ framework of hrdd and climate change. This synergy contrasts starkly with the state of the international investment regime, which has traditionally been characterized as operating in isolation from other fields in international law, notably human rights and environmental law. Given that international investment law is now increasingly featuring the human rights responsibility of foreign investors – in particular with respect to the ungps’ framework of hrdd or its public-interest aspect – the intersection of human rights and international investment law serves as a potential pathway to advancing investor responsibility for the climate-related harm that investment activities may cause.

Business and human rights in Japan: An overview

Business and human rights in Japan: An overview Professor Emi Sugawara from Osaka University of Economics and Law, Faculty of International Studies, walks us through the critical development of Japan’s policies concerning business and human rights. Recently, policy trends related to business and human rights have been characterised by their rapid and overwhelming nature. Since the United Nations Guiding Principles on Business and Human Rights (UNGPs) was endorsed in 2011, 26 countries, including Japan, have formulated a national action plan on business and human rights (NAP). As national legislations have emerged to mandate human rights due diligence and information disclosure, the EU’s proposal on the Directive on Corporate Sustainability Due Diligence draws attention. The effective abolition of forced labour in global supply chains was also discussed at this year’s G7 summit hosted by Japan.(1) Additionally, the crackdown against the opposition to military rule in Myanmar, Russia’s aggression against Ukraine, and a just transition to climate change are also important issues in the context of business and human rights.

Downstream Human Rights Due Diligence: Informing Debate Through Insights from Business Practice

Abstract The United Nations Guiding Principles on Business and Human Rights conceive of human rights due diligence (HRDD) as covering potential impacts across value chains, including downstream. The proposed EU Corporate Sustainability Due Diligence Directive and the revision process of the OECD Guidelines for Multinational Enterprises have sparked renewed discussion on how and whether companies should conduct HRDD downstream to identify and prevent or mitigate adverse human rights impacts. Whilst some debate has occurred previously on downstream HRDD, this has predominantly centred on specific sectors, products and services where the links to egregious human rights harms may be more readily identifiable. This piece seeks to inform the current debate by broadening the examples of sectors, products and services and current business practice which demonstrate the critical need for, and ability of, companies to consider human rights risks downstream.

Confronting Challenges to Substantive Remedy for Victims: Opportunities for OECD National Contact Points under a Due Diligence Regime Involving Civil Liability

Abstract This article examines the under-researched, inter-connected issues of substantive remedy and a role for Organization for Economic Cooperation and Development (OECD) National Contact Points (NCPs) to complement judicial remedy regimes involving civil liability for companies in home-state jurisdictions. Even where access to judicial procedural remedy exists, it need not ensure substantive remedy. Legal and economic resource-based power-disparities between parties can reduce victims’ opportunities to present and argue their case; and courts offer limited substantive remedy options compared with the types listed by the United Nations Guiding Principles on Business and Human Rights. The article argues that combining access to NCPs and judicial remedy offers important opportunities to address well-recognized challenges for victims’ access to substantive remedy, especially with strong NCPs. NCPs can operate in ways that courts normally cannot, to help give victims voice and a choice of substantive outcome. The European Union’s Corporate Sustainability Due Diligence Directive (CSDDD) proposal serves as a cue for the analysis. However, the issue is relevant for any OECD member or the OECD Guidelines adherent state.

How Australian fashion brands implement human rights due diligence

ABSTRACT The United Nations Guiding Principles on Business and Human Rights suggests a human rights due diligence (HRDD) framework that businesses should follow to avoid causing or contributing to adverse human rights impacts such as those common within fashion supply chains. The Modern Slavery Act 2018 (Cth) requires entities earning over $100 million annually to report on their implementation of steps two to four and six of the framework. These steps are: assessing actual and potential human rights impacts; preventing and mitigating adverse human rights impacts; verifying whether adverse human rights impacts are being addressed; and remediating adverse human rights impacts. However, businesses earning below $100 million annually rarely receive government or academic attention on their HRDD implementation. Semi-structured interviews were conducted with Australian fashion brands earning below $100 million annually to determine their understanding and implementation of steps two to four of the HRDD framework. Whilst all brands implemented HRDD initiatives, they predominantly implemented process based initiatives which did not place rights holders, such as supply chain workers, at their centre. This study will assist fashion brands, the government, and industry organisations in improving their understanding of HRDD and identifying mechanisms to better support HRDD implementation within the Australian fashion industry.

Mandatory Human Rights Due Diligence Laws: Blurring the Lines between State Duty to Protect and Corporate Responsibility to Respect?

ABSTRACT This paper assesses mandatory human rights laws for companies in light of the public–private divide in international human rights law. It asks whether and to what extent these laws contribute to the blurring of the private–public divide by reducing or even eliminating the boundaries between the obligations of public and private entities. The paper also assesses whether maintaining the divide is normatively desirable from the perspective of international human rights law. It first explains the public–private divide in international human rights law by recalling its doctrinal basis, reflecting on attempts to create binding obligations for companies in international human rights law, and assessing the United Nations Guiding Principles on Business and Human Rights within this framework. Next, it analyses existing and proposed domestic laws and legal instruments aimed at establishing human rights obligations for companies. It highlights the difference between approaches directly binding companies to human rights and laws requiring human rights due diligence. Based on this, the paper concludes that the public–private divide remains a useful analytical framework for international human rights law even though the boundaries between public and private are increasingly blurred in practice.

Policy recommendations for Japan towards achieving labour CRS/ RBC

Policy recommendations for Japan towards achieving labour CRS/ RBC The government's current policy can be improved. Therefore, it is an urgent task to create an overarching policy vision to help Japan on its journey towards Labour CSR/RBC. The study “Policy recommendations for Japan towards achieving the labour dimension of corporate social responsibility: Japan's national policy concerning business and human rights” (co-authors Prof. Emi Sugawara, Osaka University of Economics and Law and Ryusuke Tanaka, ILO Tokyo) analyses the norms developed in the context of international instruments, such as the United Nations Guiding Principles on Business and Human Rights (UNGPs), and the dynamism of normative development led by diverse actors' implementation of those norms.(1)