The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").
In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010) to final form (March 2011, the DP or "Draft Principles") from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development. That analysis is divided into several parts:
Part I: From Conception to Principle—The development of the Protect-Respect-Remedy Framework and the Drafting of the Guiding Principles (April 24, 2011);
Part II. The Draft Guiding Principles: Section by Section Analysis (April 30, 2011);
Part III. Justification and Legitimacy in the Introduction to the Guiding Principles Implementing the UN "Protect, Respect and Remedy" Framework.
Part IV. Section By Section Analysis, From Draft to Final Principles: Overall Structure and Capstone Principles.
Part V. Section By Section Analysis: The State Duty to Protect Principles.
Part VI. Section By Section Analysis: The Corporate Responsibility to Respect.
Part VII. Section By Section Analysis: The Obligation to Remedy.
Part VIII. The General Principles: A Preliminary Assessment.
This posting continues a section by section consideration of the final version of the Guiding Principles, focusing on the GP provisions elaborating the access to remedy.
The full analysis will be published as
Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business and Development Law Journal, 2011 and can be accessed here.
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