United Nations Guiding Principles Research Articles

Establishing a Corporate Responsibility Ombudsman: Enhancing remedy through state-based non-judicial mechanisms?

This article assesses the efficiency of non-judicial grievance mechanisms in providing victims of corporate human rights violations with improved access to remedy. As no such mechanism is currently available, this article formulates a proposal for a new mechanism in the form of a corporate responsibility ombudsman, which would offer a great deal of flexibility as well as being an inexpensive, expeditious and informal manner of dealing with such issues. The article argues in favour of utilizing states’ regulatory arsenal to improve victims’ access to remedy extraterritorially. Based on recent international developments, I elaborate approaches to human rights due diligence regulation and export credit financing by means of two corporate responsibility ombudsman proposals. In relation to these proposals, I divide the effectiveness criteria of Principle 31 of the United Nations Guiding Principles into three main categories: empowerment, investigation and enforcement. Since obtaining sufficient evidence is of paramount to those seeking remedies for violations of corporate responsibility, states should bestow quasi-judicial powers on corporate responsibility ombudsmen to achieve efficiency, which could also create legitimacy. This article provides decision-makers and scholars with insights into how access to remedy could be synchronized with the momentum of human rights due diligence legislation in the European Union and beyond.

Professional responsibility and the defence of extractive corporations in transnational human rights and environmental litigation in Canadian courts

ABSTRACT Lawyers defending extractive corporations in transnational human rights and environmental cases tend to reflect the dominant ‘resolute advocacy’ model of litigation, which directs lawyers to aggressively pursue clients’ interests though all available means. Is a different vision of advocacy more appropriate in this context? In answering this question, we look to the rule of law foundation of the ‘resolute advocacy’ model and note the ways in which rationales for aggressive litigation behaviour are pragmatic, contextual and contingent. From this observation, we propose a model of ‘moderated resolute advocacy’. We ground this claim in the background context generated by the United Nations Guiding Principles on Business and Human Rights and the Sustainable Development Goals and in the barriers that plaintiffs face. The model we propose would not only emphasise existing obligations on lawyers not to generate unreasonable costs, create undue delay or advance unfounded legal claims but also promote an approach to litigation oriented towards the efficient determination of substantive claims on their merits. To operationalise this model, we propose a two-pronged approach that includes the development of a voluntary litigation code of conduct alongside legislative action to remove some of the legal obstacles for plaintiffs bringing these cases.

The Adverse Human Rights Impacts of Canadian Technology Companies: Reforming Export Control with the Introduction of Mandatory Human Rights Due Diligence

Netsweeper, a Canadian company, has produced and sold Internet-filtering technology to authoritarian regimes abroad. According to public research from the Citizen Lab, this technology has been used to censor religious content in Bahrain, information on Rohingya refugees in Myanmar and India, political campaign content in United Arab Emirates, and information on HIV/AIDS in Kuwait. This article considers how Canadian export control law deals with technologies that negatively impact human rights abroad and identifies a gap in the existing export control scheme. We suggest this gap could be closed by adopting a proactive human rights due diligence requirement on companies seeking to export products under Canadian law. There is existing precedent in other jurisdictions for imposing a human rights due diligence requirement on companies more broadly as a matter of law. A legislative amendment to Canada’s export regime would move Canada towards meaningful compliance with the United Nations Guiding Principles, reflect a growing normative acceptance that companies have a duty to respect human rights under international law, and potentially open avenues for legal remedy.

Applying the Un Guiding Principles on Business and Human Rights to Online Content Moderation

What do Rembrandt and social media platforms have in common? Light. Both judiciously use it to emphasize certain aspects and relegate others to obscurity, leveraging darkness to highlight flattering features. This article assesses the accountability of social media platforms with regards to content moderation. It probes voluntary measures like the Facebook Oversight Board and transparency reports for similarities with the chiaroscuro painting technique. These two self-governance initiatives shed light on fairly uncontroversial aspects of content moderation, obscuring more problematic areas in the process. In that sense, chiaroscuro and self-governance actually travel in opposite directions; chiaroscuro uses darkness to create light while self-governance uses light to create darkness. The United Nations Guiding Principles on Business and Human Rights (UNGP) could fill self-governance gaps by activating a clearer link between companies and user well-being. The notions of access to remedy and due diligence support the case for harmonizing accountability measures across moderation practices. External oversight should cover a broader array of moderation decisions, beyond individual content takedowns. It should also approach harms holistically, integrating privacy, equality and other human rights dimensions to the analysis. Transparency reports should provide more granular information about platforms’ informal collaboration with states.

Defining the Relationships: “Cause, Contribute, and Directly Linked to” in the UN Guiding Principles on Business and Human Rights

According to the United Nations Guiding Principles on Business and Human Rights, business owe remediation when they “cause” or “contribute to” a human rights impact, but not when they are only “directly linked to” it. These terms determine when a victim is entitled to seek remediation from a business, but they have largely been ignored in existing scholarship. This article investigates the meaning of “cause, contribute, and directly linked to”, revealing confusion and uncertainty before proposing a new system, built on existing authoritative guidance, for interpreting the terms and determining when businesses owe remediation for their human rights impacts.

POLYCENTRICITY AND POLYPHONY IN INTERNATIONAL LAW: INTERPRETING THE CORPORATE RESPONSIBILITY TO RESPECT HUMAN RIGHTS

AbstractComplex multi-actors and multi-level governance structures have emerged in areas that were traditionally exclusively the preserve of the State and treaty-making. The adoption of the United Nations Guiding Principles on Business and Human Rights (UNGP) affirmed a corporate responsibility to respect human rights to be implemented through human rights due diligence (HRDD), ie via management processes. The open-ended character of the UNGP generated the emergence of other soft instruments offering guidance to corporations in structuring HRDD. This contribution conceptualises the UNGP from the perspective of regulation as a principles-based exercise in polycentric governance reliant on regulatory intermediaries for interpretation. It then assesses the role of various sui generis normative instruments in providing interpretation to the UNGP and, how the presence of an additional layer of interpretative material contributes to the institutionalisation of responsible corporate conduct. The analysis of instruments drafted by international, non-governmental and business organisations reveals both a decentralising tension between different intermediaries due to disagreements and divergence concerning the precise extent of corporate human rights responsibilities, as well as attempts to centralise the interpretation of the UNGP. The article concludes by recommending some caution towards the employment of polycentric governance regimes and their lack of centralised interpretive authority in this domain of international law and suggests possible ways to formally establish centralised interpretation.

Towards a European Economic Criminal Law of Human Rights

The work proposes the emergence of a new sector within economic criminal law whose objective would be the protection of human rights and the sanctioning of multinational companies. This new sector should be promoted by the EU, which in recent years and from various sources, has been enacting a set of directives and regulations that affect this area. The economic criminal law of human rights would complement the possibilities already offered by international criminal law to sanction these conducts. The basis of the new incriminations found in this work connects with the obligations to establish compliance measures (due diligence) that have been established in the United Nations Guiding Principles for Multinational Enterprises and also with the new duties of transparency linked to non-financial information.

The Climate Change Dimension of Business and Human Rights: The Gradual Consolidation of a Concept of ‘Climate Due Diligence’

AbstractThis article makes the case for a ‘holistic’ approach to human rights due diligence, arguing that such a standard must be interpreted in the light of mutually reinforcing principles of environmental law, climate law and human rights law. Through a review of emerging climate change-related litigation, it shows how a concept of ‘climate due diligence’ is gradually consolidating. Building on the United Nations Guiding Principles on Business and Human Rights, the article explores climate due diligence both as a standard of conduct and as a business process, presenting its main features. It argues that corporations should integrate climate due diligence into their processes and policies to be best prepared for likely regulatory and judicial developments, such as the upcoming European Union’s regulation on human rights and environmental due diligence.

Conceptualizing Corporate Accountability in International Law: Models for a Business and Human Rights Treaty

This article conceptualizes corporate accountability under international law and introduces an analytical framework translating corporate accountability into seven core elements. Using this analytical framework, it then systematically assesses four models that could be used in a future business and human rights (BHR) treaty: the United Nations Guiding Principles on Business and Human Rights model, the Universal Declaration of Human Rights model, the progressive model, and the transformative model. It aims to contribute to the BHR treaty negotiation process by clarifying different options and possible trade-offs between them, while taking into account political realities. Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporate accountability, which combines ambitious development of international law with realistic prospects of state support.

Corporate Responsibility for Human Rights in Assam Tea Plantations - A Business and Human Rights Approach

This paper explores how UK-based companies deal with their responsibility to respect the human rights of Assam (India) tea plantations workers. Using publicly available corporate reports and other documents, it investigates how companies approach, and communicate on, their potential human rights impacts. It highlights the gap between well-documented human rights issues on the ground and corporate reports on these issues. It aims to answer the following research question: in a context where the existence of human rights violations at the end of the supply chain is well-documented, how do companies reconcile their possible connection with those violations and the corporate responsibility to respect human rights under the United Nations Guiding Principles on Business and Human Rights? The paper reveals the weakness of the current CSR approach from the perspective of rights-holders. It supports a business and human rights approach, one that places the protection of human rights at its core.

Corporate Responsibility for Human Rights in Assam Tea Plantations: A Business and Human Rights Approach

This paper explores how UK-based companies deal with their responsibility to respect the human rights of Assam (India) tea plantation workers. Through qualitative content analysis of publicly available corporate reports and other documents, it investigates how companies approach and communicate their potential human rights impacts. It highlights the gap between well-documented human rights issues on the ground and corporate reports on these issues. It aims to answer the following research question: in a context where the existence of human rights violations at the end of the supply chain is well-documented, how do companies reconcile their possible connection with those violations and the corporate responsibility to respect human rights under the United Nations Guiding Principles on Business and Human Rights? This paper reveals the weakness of the current corporate social responsibility (CSR) approach from the perspective of rights-holders. It supports a business and human rights approach, one that places the protection of human rights at its core.

UNGP: Importance of Policy Coherence in Addressing Resource Conflicts

India has committed to develop the Nation Action Plan on Business and Human Rights as required under the United Nations Guiding Principles on Business and Human Rights. The guiding principles require states to achieve policy coherence between international human rights obligations and national legal and policy frameworks, as well as between different arms of the State to ensure that the laws and policies are applied in accordance with their objectives. Over the years, India has developed a framework of laws that protect the rights of forest dwellers affected by mining projects. At the same time, the government is actively trying to undermine the safeguards that are embedded in these laws, putting the rights of forest dwellers at risk. This lack of policy coherence at the horizontal level is contributing to conflicts between the State and the people affected by such projects. The Indian State has to give serious attention to this lack of policy coherence; otherwise, the national action plan on business and human rights would be a meaningless exercise.

Obstacles to implementing the UN Guiding Principles on Business and Human Rights in Southeast Asia

In June 2011, the United Nations Human Rights Council (UNHRC) unanimously passed the United Nations Guiding Principles on Business and Human Rights (UNGPs), amidst an atmosphere of cautious optimism. These principles provided a new set of global standards for preventing and addressing adverse human rights impacts associated with business activity, and have been described as ‘the single most important innovation in the human rights and business field in the last 25 years’. Indonesia, Malaysia and Thailand—members of the UNHRC at the time the UNGPs were adopted—all voted in support of the framework, and several governments in the region subsequently indicated a potential willingness to develop National Action Plans to guide implementation. Nonetheless, almost ten years since the endorsement of the UNGPs, their implementation within Southeast Asia has remained slow and uneven.

Contemporary responses to Businesses’ negative Human Rights impact

The article provides a panoramic overview of the factual and legal problems created by transnational business activities that negatively impact human rights around the world, and critically analyzes the strengths and gaps of the various international initiatives created in order to address businesses impact on human rights. The main three international initiatives analyzed are the United Nations Guiding Principles on Business and Human Rights, National Action Plans on Business and Human Rights, and the Draft Treaty on Business and Human Rights. The article intends to organize the vast literature on BHR, serve as a departure point for those interested in researching on this sub-area of international human rights law, and to provide critical analysis of the international legal responses created to address these contemporary human rights

Community-Related Voluntary Standards

Businesses have long been called upon to comply with a range of formal laws and regulations in various areas related to sustainability-related responsibilities including laws and regulations pertaining to the environmental impact of their operations, the employment relationship, working conditions and health and safety standards. However, apart from satisfying the requirements of local governments with respect to permits and licenses necessary for engaging in certain activities in the community, businesses generally are not heavily constrained by legal guidelines with respect to their community involvement and development activities. This is an area in which voluntary standards have played an important role in providing business with ideas for objectives for their community involvement. Although voluntary standards focusing specifically on the relationship of businesses and the communities in which they operate are still evolving, lessons can be drawn from many widely recognized normative frameworks, principles and guidelines such as the United Nations Sustainable Development Goals, the United Nations Global Compact, the OECD Guidelines for Multinational Enterprises, the United Nations Guiding Principles on Business and Human Rights and the Future-Fit Business Framework. Specialized standards can be used as reference points for support of sustainability-related initiatives in local communities, such as requiring that recipients of grants and other investments for sustainable sourcing and agricultural activities adhere to the guidance developed by the Sustainable Agriculture Initiative Platform. Additional guidance comes from guidelines established for companies engaged in extractive activities where the potential for adverse impact on local communities is especially high (e.g., Equitable Origin). The ISO 26000 Guidance on Social Responsibility includes community involvement and development among its core subjects and businesses and other organizations will also be impacted by relevant standards on their key stakeholders, particularly investors, that require attention to responsible actions toward local communities (e.g., Principles for Responsible Investment and IFC Performance Standards on Environmental and Social Sustainability) Impacts on local communities are also required by various voluntary sustainability reporting frameworks.

Torn between Legal Claiming and Privatized Remedy: Rights Mobilization against Gold Mining in Chile

ABSTRACTMany academic authors, policy makers, NGOs, and corporations have focused on top-down human rights global norm-making, such as the United Nations Guiding Principles for Business and Human Rights (UNGPs). What is often missing are contextual and substantive analyses that interrogate rights mobilization and linkages between voluntary transnational rules and domestic governance. Deploying a socio-legal approach and using a combination of longitudinal field and archival data, this article investigates how a local, indigenous community in Northern Chile mobilized their rights over a period of almost two decades. We found that rights mobilization was largely shaped by tensions between the different logics of legality and the business organization. In our case, the UNGP implementation process has been ineffective in giving rightsholders access to genuine remedy. On the contrary, it has led to weakened rights mobilization, dividing the local community. We conclude that greater attention to rights mobilization and domestic governance dynamics should be given in the business and human rights debate.

The Role of Transnational Private Regulation in Mitigating Artificial Intelligence Risks

The paper explores the role of transnational private regulation like certification in addressing human rights challenges posed by artificial intelligence (AI). It first explores the human rights challenges AI may pose. It analyses to which extent and under which conditions transnational private regulation may be effective in addressing human rights risks in general. It then turns to the role of transnational private regulation in connection with AI. It emerges compliance with human rights should partly be embedded in AI and partly be shaped through external risk management when developing and deploying AI. Transnational private regulation may play a role in both. For example, it may indicate which aspects of human rights compliance should be embedded (and provide tools to realize this) and which aspects should be implemented through external risk management. In connection with the latter it is observed human rights due diligence as incorporated in the United Nations Guiding Principles on Business Human Rights (UNGP) or OECD Guidelines for Multinational Enterprises may provide guidance to support external risk management.

Introduction: Communication Rights in the Digital Age

Introduction: Communication Rights in the Digital Age

The Theorized Relationship between Organizational (Non)Compliance with the United Nations Guiding Principles on Human Rights and Desired Employee Workplace Outcomes

Despite the presence of guiding legislation such as the United Nations Guiding Principles, respect for human rights is subject to the conscience of organizational actors. Given that some transnational corporations are more powerful than nation states, they play an important role in the economies in which they operate, often with far-reaching impact on the labor conditions and human rights protections within these countries. In the current global context, respect for human rights may be undermined when organizational decision-makers are tempted to ignore unethical practices due to considerations such as competition and short-term financial incentives. We propose that the higher standards to which younger generations increasingly hold corporations provide a compelling and “business case” incentive for the protection of human rights of external stakeholders by organizational decision-makers. Drawing on related research on corporate social responsibility and on projections regarding demographical changes in the workplace worldwide, we make the case for a bottom-line advantage to respecting human rights in attracting and retaining top talent in work organizations. We conclude by highlighting the theoretical and practical implications of our theorizing.

Don’t forget the Geneva Conventions: achieving responsible business conduct in conflict-affected areas through adherence to international humanitarian law

ABSTRACT This article examines the question of how a business operating in a conflict-affected area can uphold human rights. It contends that a crucial yet often overlooked element is a business’s commitment to embedding the fundamental standards of international humanitarian law (IHL) (as distinct from international human rights law) into its policies and practices. The United Nations Guiding Principles on Business and Human Rights state that companies doing business in conflict-affected areas should respect IHL—the law of armed conflict. However, businesses are often unfamiliar with IHL and its relevance to their operations; it both provides legal protections and represents potential risks and liabilities. Similarly, the scholarly discourse around business and human rights (BHR) tends to overlook the relevance of IHL. The absence of IHL from the scope of the draft BHR treaty currently being negotiated at the United Nations is indicative of this. While some businesses operate with greater conflict sensitivity than others, in most cases they do not use an IHL lens to do so. The article outlines the significance of IHL for business and provides an affirmative case for greater integration of IHL into the BHR project, including its governance instruments and practical tools, to help realise the goal of responsible business conduct in conflict-affected areas.