On March 24, 2011 the United Nations released the "Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework" (the "GP" or "Guiding Principles"), the culmination of the work of the UN Special Representative on business & human rights, John Ruggie, and his team.
(From Menschenrechtsleitlinien für Unternehmen: Sonderbeauftragter John Ruggie veröffentlicht Entwurf, Fair Unterwegs, 5 Jan. 2011).
The consideration of the Guiding Principles marks a great milestone in the development of frameworks of governance of economic actors outside of the framework of national law. This milestone can be understood as consisting of four great aspects. The Guiding Principles represents the first successful efforts to provide a governance framework that can be adopted into the national legal orders of adhering states. In this aspect it represents a critical effort in the harmonization of national law on the basis of global consensus. At the same time, the Guiding Principles also represents the first successful effort to provide a framework for the development of customary and conventional international law. In this aspect, the Guiding principles represent a critical effort in the harmonization of governance for an important transnational actor at the international level. Additionally, the Guiding Principles for the first time acknowledges the existence and importance of non-governmental sources of governance rules. The embrace of the importance of social norm systems of autonomous behavior rules for economic enterprises represents a critical acknowledgment of non-state actors as a source of norm making the authority of which is not dependent on states. Lastly, the Guidelines for the first time link remedial obligations to the state duty to remedy and the corporate responsibility to respect human rights in a way that both preserves the autonomy of human rights and their connection to both law and social norms systems.
The Guiding Principles were endorsed by the U.N. Human Rights Council in June, 2011. “In an unprecedented step, the United Nations Human Rights Council has endorsed a new set of Guiding Principles for Business and Human Rights designed to provide -for the first time- a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.” United Nations Human Rights Council, News Release, New Guiding Principles on Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.
The Guiding Principles were endorsed by the U.N. Human Rights Council in June, 2011. “In an unprecedented step, the United Nations Human Rights Council has endorsed a new set of Guiding Principles for Business and Human Rights designed to provide -for the first time- a global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity.” United Nations Human Rights Council, News Release, New Guiding Principles on Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.
(Unternehmen und Wirtschaft; Bild: Oliver J. Graf - Fotalia.com)
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, 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. "). 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, the "DP" or "Draft Principles") to final form GP (March 2011) from a more neutral perspective.
For this purpose I have provided my own thoughts about that context and development that I will develop in a series of posting, divided along the conceptual lines within which the Guiding Principles were framed.
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 begins the analysis of the Guiding Principles by reviewing the development and concepts that were developed in the "Protect, Respect, and Remedy" framework that serves as the foundation to the Guiding Principles.
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 & Development Law Journal, 2011 and can be accessed here.
This posting looks to a section by section analysis of the initial draft Guiding Principles. While there are differences, some of which are significant, between the initial draft and the final form (March 2011) of the Guiding Principles, the Draft Guiding Principles serves as an important source of interpretation of the Guiding Principles and a useful baseline for approaching interpretation of the final framework of the Guidelines, its focus and limits. For that purpose, a section by section analysis of the Draft Guiding Principles may be useful.
DRAFT GUIDING PRINCIPLES (Nov. 2020):
Section By Section Analysis.
Section By Section Analysis.
The GP are divided into two parts. The Principles themselves are found in Part A; Part B provides a very short section of definition. Part A itself is divided into four parts, an introduction and then a section devoted to each of the pillars of the framework: “The State Duty to Protect Human Rights,”[i] “The Corporate Responsibility to Respect Human Rights,”[ii] and “Access to Remedy.”[iii] The working language of the GP, at least in draft form, is English. That has caused some concern among none English speakers,[iv] both for reasons of access, and for fear that the failure to translate the draft into the official languages of the United Nations would substantially affect the meaning of terms that might acquire legal or otherwise binding normative effect.[v] This section first considers the definitions created under the GP. It ten turns to the context setting of the Introduction, followed by an analysis of the twenty nine principles of the GP.
1. Definitions. The GP provides definitions for only six terms.[vi] The GP attempts to avoid highly technical and precise definitional issues. This suggests a fundamentally different approach from prior efforts.[vii] Indeed, the definitions tend to stress the non-technical nature of the terms, rather than the use of the definitions section to provide technical precision. Thus for example, the GP stresses that the key term, “corporate” is “used in the non-technical sense, interchangeably with ‘business enterprises’, regardless of their form.”[viii] “Business Enterprise” is also given a broad but general definition: consisting of “all companies, both transnational and others, regardless of sector or country of domicile or operation, of any size, ownership form or structure.”[ix] This has been criticized on a number of grounds.[x]
Likewise, “human rights” is defined as the “”potential adverse impacts on human rights through a business enterprise’s activities or relationships. Identifying human rights risks comprises an assessment both of impacts and – where they have not occurred – of their likelihood.”[xi] On the other hand, “internationally recognized human rights” is more specifically defined.[xii]
The last set of definitions concerns grievance and grievance mechanisms. Again, the focus is on the general. “Grievance” is triggered by a “perceived injustice evoking an individual’s or group’s sense of entitlement.”[xiii] The intention was to avoid a definition that cabined grievance to either legal rights or the procedures of grievance resolution overseen by the state. Thus, entitlement to redrees of injustice “may be based on law, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities.”[xiv] The broadness is necessary because the governance regime of the GP touches on both legal rights and the conduct obligations of social-norms among communities of stakeholders. This balancing of multiple sources of obligations also affects the definition of grievance mechanism.[xv]
2. Introduction. The introduction provides a framing element to the substantive principles that follow. The Introduction has two principal purposes. The first is to set out the nature and character of the three fundamental substantive parts of the GP and the relationship between them. The second is to elaborate a set of interpretive principles that are meant to guide individuals and entities that will apply the GP as regulators or participants.
The Introduction describes the ordering relationships among the three systems that constitute the governance regime of human rights applied to business. It suggest the autonomy of the law-state system and the social-norm system,[xvi] but also suggests an unequal relationship between them. The GP is founded on the recognition of
a. States’ primary role in promoting and protecting all human rights and fundamental freedoms, including with regard to the operations of business enterprises;
b. The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and meet the societal expectation to not infringe on the human rights of others;
It also suggests the intimate connection between rights systems and remedies, as well as the central role of remedies in connecting the state duty to protect and the corporate responsibility to respect human rights.[xvii] Lastly, it suggests an unequal engagement in the development of the norm systems under which states and corporations operate. With respect to states, “[n]othing in these Guiding Principles limits or undermines any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.”[xviii] With respect to states, that is with respect to the state duty to protect human rights, then, the GP is understood as framework, as a set of organizing principles, but not as the development of law, understood in the traditional sense of either domestic or international law. But with respect to the social norm system under which corporations operate, that is, with respect to the corporate responsibility to respect human rights, there is no corresponding explicit limitation. That follows from the dual obligation of corporations—to follow applicable law and to meet their obligations under the social-norm system to which they are bound.[xix]
The interpretive principles described in the Introduction provide the roadmap for moving from theory to practice; they serve to manage the operationalization of the GP while setting out the borders within which the GP system is meant to work. To understand and apply these interpretive principles is to recognize both the form and function of the system the SRSG is putting into place. First, the GP introduces a unity principle as the foundational presumption of the GP. Though divide into twenty-nine principles in three sections, the GP are to be “understood as a coherent whole.”[xx] It also introduces two principles of construction. The first introduces a textual interpretive principle: “the GP “should be read, individually and collectively, in terms of their objective of enhancing standards and practices with regard to business and human rights so as to achieve tangible results for affected individuals and communities.”[xxi] This is an inward looking interpretive principle that seeks to manage the meaning of the principles as a comprehensive and coherent body of self-referential standards, substantially complete in themselves.[xxii] is internal to the GP themselves. The second introduces an effects-based interpretive principle: the GP should be read “to support the social sustainability of business enterprises and markets.”[xxiii] This is a functionalist interpretive principle, one that looks out from the principles as a coherent body to their effects on those they are meant to affect. It is augmented by another functional interpretive principal: that the GP “should be implemented in a non-discriminatory manner, with particular attention to the rights and needs of, and challenges faced by, vulnerable and marginalized groups, and with due regard to gender considerations.” [xxiv]
3. The State Duty to Protect Human Rights. The eleven GP touching on the state duty to protect human rights is divided into seven sections on “Foundational Principles,”[xxv] “Ensuring Coherence,”[xxvi] “Fostering Business Respect for Human Rights,”[xxvii] “The State-Business Nexus,”[xxviii] “Commercial Transactions and the State,”[xxix] “Supporting Business Respect for Human Rights in Conflict-Affected Areas,”[xxx] and “Multilateral Institutions.”[xxxi]
The foundational principles set the scope and nature of the state duty to protect human rights. Principle 1 is directed toward the state.[xxxii] It describes the state’s obligations with respect to its incorporation of international human rights standards into its domestic legal order and to enforce that legal order against. The obligations of Principal 1 are mandatory. Principle 2 is directed outward. It describes the fundamental relationship between the state, and its law system, and businesses under its control. The obligations of Principle 2 are permissive—states are not required, they are encouraged to assert authority over businesses to the extent described in Principle 2. The remainder of the GP focused on the state duty to protect human rights then elaborate these two foundational principles, building on the mandatory principle of GP Principle 1 and the permissive principle of GP Principle 2 to frame the extent of the state duty to protect human rights at home and outside of its own territory.
GP Principle 1 can be understood made up of two parts. The first part sets out the extent of the duty: “States must protect against business-related human rights abuse within their territory and/or jurisdiction.”[xxxiii] The second part describes the methodology that is to be used to comply with this obligation: states are required to take “appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, regulation, and adjudication.”[xxxiv] The focus of Principle 1 is on the state’s duty to prevent abuses of human rights by business.[xxxv] The Commentary narrows the scope of the state duty described in GP 1 by distinguishing the duty to protect from “other State duties usually associated with human rights, such as the duties to promote and fulfill.”[xxxvi] The duty to protect is understood as grounded in law and policy. The legal basis of the duty arises form the international law obligations of states,[xxxvii] and to some extent from the imperatives of their domestic constitutional orders. The Commentary suggests that the international law obligations of states can be understood as requiring states to control their own behavior and also the behavior of persons or entities over which they might have control.[xxxviii] However, while states might have an obligation to control the conduct of others within their territory with respect to compliance with applicable human rights norms, the Commentary suggests that states will not be directly liable for the consequences of human rights abuses by others (within their control).[xxxix]
The mandatory obligation of GP Principle 1 can be realized by changing the way in which states approach the elaboration and operation of their domestic legal orders. The most important management technique is that of policy coherence, an issue well developed by the SRSG in his reports.[xl] These notions are expressed through GP Principle 3[xli] and GP Principle 4.[xlii] There are several aspects to these principles that are worth highlighting. First, CP Principle 3 looks inward, to the relationship of the state to its organs. GP Principle 3 suggests a hierarchy of policy that places human rights at or near the top of a state’s policy obligations.[xliii] Second, it reaches state practice at all levels of operation, irrespective of the division of power within a state. GP Principle 3 thus cuts across organizational structures from the division of authority between states and a federal government, to the powers reserves to regions under various incarnations of autonomy regimes.[xliv] It also reaches territory and law structures of semi sovereigns, like indigenous peoples. All of these subordinate or related governance units all subject to the overall obligations of GP Principle 1 whose own policy choices must be coordinated and subject to the hierarchy of values that privilege human rights. Third, the coherence principle of GP Principle 3 also suggests a need for coordination within each level of government.[xlv] Lastly, GP Principle 4 suggests that this coherence principle extends externally—to the relationships between the state and other states or businesses. The Commentary describes these as “[e]conomic agreements concluded by States, either with other States or with business enterprises, such as bilateral investment treaties, free-trade agreements or contracts for private investment projects, by definition affect the domestic policy space of governments.”[xlvi] Together, Principles 3 and 4 suggest the operational framework through which the mandatory obligation of GP Principle 1 is to be implemented by a government.
If GP Principle 1 is directed inward—focusing on the legal obligations of states with respect to their domestic legal orders—GP Principle 2 is directed outward toward the policy obligations of states that flow from their legal obligation to protect human rights and attach to persons or entities where ever they operate.[xlvii] The Commentary notes that issues of extraterritoriality are complex and sensitive, though it does not elaborate on either.[xlviii] Though the Commentary appears to take a cautious approach to the encouragement of assertions of extra territorial jurisdiction, the approach is ambiguous enough to provide a cover for fairly aggressive interventions abroad.[xlix] That permission to project legislative power abroad, of course, is a function of the extent of a state’s control over domestically chartered business operating abroad. The effect, then, is to provide a policy cover for the continued use of the power of developed states to project their legislative agendas into less developed states, which tend to serve as host states for foreign business operations. More importantly, the Commentary suggests a connection between the permissive actions of GP Principle 2 with the mandatory provisions of GP Principal 1, where the state is acting both as a regulator (GP Principle 1) and a participant (GP Principle 2) in activities beyond its borders.[l]
Still, the Commentary seeks to soften the effects.[li] It is also possible to argue that within the context of GP, extraterritoriality should have no functional effect on the internal operations of the host state law system. In effect, extra territoriality is merely a transitory step toward the necessary harmonization of law and policy inherent in the International Bill of Rights, which should produce a functionally equivalent global set of domestic legal orders. But that conclusion is founded on a number of assumptions with respect to which there might not yet be consensus in either theory or action. First, all states have an obligation in equal measure to incorporate international law within its domestic legal orders. Second, that bundle of international obligations is identical as among all states. Third, all states understand the bundle of transposable obligations identically. Fourth, none of the obligations raises issues within the constitutional order of any state. Fifth, the bundle of international human rights obligations is consistent with all other international obligations of states (in effect, there exists a sufficiently well developed policy coherence at the international law level). Sixth, the process of incorporation of these obligations will produce differences in form and process but no substantial differences in function or effect on application in individual cases. And seventh, states will enforce these obligations, subject to the peculiarities of their domestic legal order, in a substantially harmonized (though not uniform) manner, as a matter of law (binding obligation) and policy (comity).
The difficulty, of course, is that each of these assumptions remains highly contested, and states continue to “game” the system to their own advantage. States may not have the same set of legal obligations under international law and may not interpret their obligations under that law in the same way.[lii] With respect to conventional law, not all states have acceded to every convention, many states have treaty relationships with other states, and states may have included substantial reservations. States have very different understanding of the scope, applicability and the nature of obligations under customary international law. Moreover, beyond issues of legal effect, the legal effect of non-binding international norms remains highly contested—as a matter of international law and in its effect on the domestic legal order of a state.[liii] Indeed, as recent cases form the United States have shown, the relationship between international legal or normative obligation and the strictures of a constitutionally derived domestic legal or work against the incorporation of international law or norms in a uniform or harmonized way, if it is incorporated at all.[liv] Other states take a different approach.[lv] The potential for law and policy incoherence grows. More importantly, it is clear that, even within the assumption of the GP framework, extraterritoriality can have a significant effect, especially for the transposition of developed state law through the instrumentalities of their chartered corporations operating in less developed host states.
The logic of GP Principle 2 is elaborated further in GP Principles 5 and 6. GP Principle 5 sets out in more detail the methodologies of regulating business within the context of the duty to protect against human rights abuses. The basic principle is straightforward, and applicable to national regulation domestically and extraterritorially.[lvi] The requirements of GP Principle 5 can be divided into two distinct parts. The first is the requirement that States should set out their expectations. The second part requires States to take the necessary measures to “support, encourage, and require” compliance with these expectations. Four methods are identified as appropriate to meet these objectives. These methods reflect the fundamental division of the state duty to protect between law and policy that serves as the basic ordering framework of GP Principle 1. Law based methods included enforcing law and ensuring that relevant law does not impede corporate respect for human rights.[lvii] Policy based methods include providing guidance on how to respect human rights and how to communicate corporate human rights performance.[lviii]
These methodologies are grounded on a principle of state action (one consistent with GP Principle 1)—that “States should not assume that businesses invariably prefer, or benefit from, State inaction.”[lix] With respect to enforcement of law and direction of policy, the Commentary suggests the need to harmonize laws relating to business with the overarching principles of human rights law. This derives both from the SRSG’s emphasis on the need for policy and legal coherence and on the recognition that the current model of business regulation, grounded in shareholder or enterprise welfare maximization, might frustrate the enterprise of transposing human rights norms into the law and policy systems of states.[lx] The SRSG, at the same time, stresses the importance of practical applguidance on business respect for human rights “should indicate expected outcomes; advise on appropriate methods, including human rights due diligence; and help shape best practices.” The point of guidance, as part of the State duty to protect, then, is closely tied to the responsibilities of business to respect human rights.[lxi] But more than that, it suggests an institutional hierarchy, in which the state retains some authority, or at least obligation, to help shape and manage, the social norm system of corporate governance regimes. This form of connection between the state duty and corporate responsibility is made clear in the context of the obligation to encourage corporate communication on corporate human rights performance.[lxii]
GP Principle 6 focuses on the state owned enterprise. The basic approach is that such enterprises share the obligations under the state duty to protect and the corporate responsibility to respect human rights.[lxiii] The Commentary makes clear that though state owned enterprises are “subject independently to the corporate responsibility to respect human rights. . . States themselves should take appropriate steps to ensure that these enterprises respect human rights.”[lxiv]
The connections between the core duty of states to protect human rights, the corporate responsibility to respect human rights and the role of international public and private actors, is developed in GP Principles 7-11. These focus on the relationship of state law and policy to these other autonomous components of the international business and human rights system. GP Principle 7 treats the obligations of states with respect to business enterprises performing services that they outsource.[lxv] GP Principle 8 treats the obligations of states where states serve as vehicles for financing business activity.[lxvi] The Commentary encourages states to ensure that such enterprises comply with the responsibility to respect human rights, rather than imposing the state duty protect through this relationship.. As such, this is a bridge or linkage provision.[lxvii] GP Principle 9 focuses on respect for human rights by business enterprises when states engage in commercial transactions with them.[lxviii]
The last two general principles relating to the state duty to protect human rights deal with issues of law in conflict zones and on multilateral law making. Together, they mark the outer edges of two of the great foundations of the framework, at least as it touches on the current and conventional international system. The first, GP Principle 10, concedes the supremacy of the state as the great active agent of enforcing collective norms. This is the extension of the extraterritorial principle for the collective benefit of the state system itself. The second, GP Principle 11, looks toward the enlargement and deepening of international legal regimes founded on the dense network of international organizations managing the growing body of collective state law (that is, of international conventional and customary law) as an alternative, and perhaps as the more legitimate substitute, for the unilateralist extraterritoriality of GP Principles 2 and 10. In essence GP Principle 10 concedes the need for unilateral action by the dominant states, and their authority to provide governance in the absence of an indigenous government. In effect, the underlying principle of GP Principle 10 assumes the need for there to be a proper state for every territory in a world organized on the basis of states. But GP Principle 11 serves to remind that while unilateral action is permitted, collective action has greater legitimacy. The superiority of collective state action to the unilateral action of any single state (or group of powerful states), ought to be regarded as the better alternative, both for policing weak governance zones and for developing the set of duties to which states ought to be bound.
GP Principle 10 provides a specific application of the extraterritorial principle of GP Principle 2. The state duty to protect assumes a state assigned to every territory.[lxix] That brings up of the issue of which state ought to step in to supply law when a territory lacks a sufficient quantum of state power. The answer, of course, is implicit in GP Principle 2’s extraterritoriality principle. Thus, GP Principle 10 the duty to protect authority to the state that controls businesses operating in conflict or weak state zones.[lxx] The principle provides for methods for compliance: identification and mitigation of human rights related risks; assistance in assessing and addressing heightened risks of abuse; reducing state assistance to businesses involved in gross human rights violations; and ensuring that domestic legal order can reach businesses engaged in situations that could produce the commission of international crimes.[lxxi] For this enterprise the overtones of GP Principles 3 and 4 are also invoked—extraterritorial application of home state power in conflict zones or where host states are weak are to be implemented with a mind to the requirements of vertical and horizontal policy coherence.[lxxii]
The Commentary makes clear that the GP framework and the web of international norms it represents provides an exception to the principle of internal sovereignty of states where there is no strong or stable government apparatus.[lxxiii] It then suggests the contours of the obligations of states to project their power through the private market activities of corporations domiciled in their territories (or the parent of such corporations where local activity is carried on by a subsidiary or supply chain downstream entity). Home states “have specific roles to play in assisting both their transnational corporations and host States in this regard, while neighboring states can provide important additional support.”[lxxiv] Such assistance can come with a sting: the Commentary suggests that States “attach appropriate consequences to business’ failure to cooperate in these contexts, including by denying or suspending public support or services.”[lxxv] The obligation to interpose itself in the territories of weak governance or conflict zones, then, is reconstituted as a part of the State duty to protect human rights. There is irony here, in deepening and extending the power of the State to protect human rights where ever there is a need, the GP contribute to the subordinate of the state in those contexts in which it cannot or will not meet its international obligations. Extraterritoriality, then, as expressed in GP Principles 2 and 10, appear to strengthen states, but they actually serve to limit state authority to those norms having international authority.
This insight is made clear in the last of the state directed GP, GP Principle 11. This Principle is meant to fold the project of human rights back to the international level through the contributions of states, as members of the community of nations, to the development of the international legal framework which each is then bound to incorporate into their domestic legal orders. It is divided into three distinct sets of obligations. The first is to preserve upward vertical policy coherence—now extended to international institutions through which the norms constituting the substantive obligations of the State duty to protect are developed.[lxxvi] The second is to ensure downward vertical policy coherence, that international institutions promote the work of states in guarding against business related abuse (though not, it seems, of state related abuse except perhaps when undertaken through enterprises of some sort).[lxxvii] Lastly, that the Protect, Respect and Remedy framework itself serve as the basis of substantive innovation.[lxxviii] Multilateralism is privileged—but a multilateralism guided by advanced states and impliedly coercively enforced against others—“Collective action through multilateral institutions can help level the playing field with regard to business respect for human rights, but it should do so by raising the performance of laggards.”[lxxix] But there is also implied both an element of state power hierarchies of the need for the most “advanced” states to lead the others to a more developed internalization of norms that have been embraced by the leading states.[lxxx]
4. The Corporate Responsibility to Respect Human Rights. If the first eleven General Principles touching on the state duty to protect are grounded in the language of regulatory and political primacy and broadly sketched role in the domestication of collective, the General Principles take on an altogether different tone. Now focusing on the corporate responsibility to respect human rights, the principles acknowledge a subordinated regulatory role for the corporation, but one in which the obligations of the corporation are much more specifically detailed. The General Principles move here from the language of political discourse and governance, to the social norm discourse of surveillance, monitoring, disclosure and mediation, and all under the eye of the state. The state duty is couched in the language of law and policy. The corporate responsibility to respect is grounded in the language of due diligence. Because the responsibility of corporations does not flow entirely from states, the legal arrangements enacted by states do not serve to shield corporations from their autonomous obligations, yet the extent of that obligation is bounded by the law through which the state duty to protect is itself framed. The corporate responsibility to respect human rights suggests a potent innovation in governance, and takes only a few steps toward an innovative institutionalization within the framework of international law. It suggests the importance of an autonomous basis for human rights enforcement, but remains substantially tied to the state and its remedial mechanics.
GP Principle 12 develops the three distinct components that make up the fundamental obligation of corporations: the respect standard itself, the definition of “respect” and the application of the standard within the context of business and human rights.. The standard is simple, “Business enterprises should respect human rights.”[lxxxi] The standard is then defined: respecting human rights “means to avoid infringing on the human rights of others and to address adverse human rights impacts they may cause or contribute to.”[lxxxii] The scope of the standard, thus defined, is then outlined: it is meant to refer to all human rights but at a minimum to the International Bill of Human Rights[lxxxiii] and the eight ILO core conventions,[lxxxiv] it applies to the enterprise’s entire supply chain irrespective of the nature of the relationships of the elements of that supply chain,[lxxxv] and it applies to all enterprises irrespective of their organization or the protections such organization may enjoy through the law of home or host states.[lxxxvi]
The definition of the “responsibility to respect” standard of GP Principle 12 is particularly important in a number of respects. First, the standard is constructed in a way that emphasizes the autonomy of the rule standards for the corporate responsibility, especially from the law-based system of states. The corporate responsibility consists of its own normative system, one that may interact and overlap with the law system of states (and the international system) but one that remains separate form them as to sources of rules, the community that makes up the governance regimes subject to this autonomous responsibility, and the implementation of those governance norms. This is expressed in a number of ways. First, the normative standards that make up the core of the corporate responsibility are identified. This specific definition of the rule universe applicable to corporations (irrespective of the law systems in which they may operate) stands in strong contrast to the construction of the state duty to protect. While the state duty to protect is defined by human rights rules generally, it is assumed to be constrained by the legal obligations of states under international law. The extent of a state’s duty is in large measure determined by the legal obligations of states under international law as applicable, in turn, under the substantive rules of the constitutional order of a particular state. No such limitations apply to the corporate duty.[lxxxvii] The binding nature of an international norm is irrelevant to the identification of that norm as binding on the corporation within the social norm system within which corporations operate. Second, there is an element of direct interaction between international norms and the identification of the social norm rules applicable to corporations. This suggests that international political consensus, reflected in international norms, accurately reflects the norm framework for corporate behavior. More importantly, it also assumes that international norms (whether or not considered “law” within or by states) stand at the head of a hierarchy of norm creation applicable to corporations. While the community of corporate actors and their stakeholders may also develop social norms that control or affect their behavior, the articulation of those norms by public international actors tends to be presumed the most authoritative expression of those norms. Thus while the normative rule universe of corporate responsibility is autonomous of state law systems, it is assumed to interact directly with international actors for the production (or at least the articulation) of the norms making up the responsibility to respect. And third, there is an explicit understanding hat the standards applicable to conduct under legal governance regimes may be different from those under the social norm regimes of the corporate responsibility. This is particularly apparent in the context of complicity. Here norm rule autonomy is emphasized by a recognition that complicity may be triggered both under the legal standard developing under domestic and international law regimes and otherwise under notions of corporate social norm frameworks.[lxxxviii]
Second, autonomy of the corporate responsibility is also built into the scope of application rules of GP Principle 12. The responsibility applies “across a business enterprise’s activities and through its relationships with third parties associated with those activities”[lxxxix] The validity of this scope is problematic, at best, under the rules of the domestic legal orders of most states. It disregards the complex and deeply embedded legal protections accorded to entities separately constituted as legal persons. It would ignore principles of asset segregate built into the legal regimes of corporate limited liability. It ignores rules for piercing the corporate veil. It also converts contract law into governance relationships, especially to the extent it a seeks to impose obligations to control behavior on the entity in the superior position within supply or value chains. Activity rather than legal relationships form the touchstone of the scope of the responsibility to protect.[xc] None of this is necessarily bad; but all of it suggests a basis in legitimacy well outside the construct of the law system rules of domestic legal orders.[xci] The essence of corporate personality and the character of its relationships with others is grounded in substantially different standards outside the law state system than within it. GP Principle 12 is built on the recognition of that distinction.
Third, autonomy is also built into the construction of GP Principle 12’s application to “all enterprises regardless of their size and ownership structure and of how they distribute responsibilities internally or between entities of which they are constituted.”[xcii] This portion of the standard effectively ignores the rules of legal personality on which the law of corporations in virtually every state is based. The standard collapses corporate personality into single enterprises the legal consequences of the actions of any portions of which triggers the responsibility to respect within the entire enterprise. This is impossible under the domestic law of most states, which for example, would impose strict fiduciary duty rules on the boards of distinct corporations making up an enterprise. The GP suggests that while the obligations corporations may be grounded on the basis of particular standards according to the laws of the states in which they are domiciled or operate, the responsibility to respect human rights is not limited by those legal rules.
Fourth, the basis of the responsibility to respect appears to be functional rather than formal. It is to some extent grounded in principles of power relationships. If a corporation has power over another in the context of their relationship, that corporation has a responsibility to respect human rights within the context of that power.[xciii] Importantly, protection from legal liability does not follow from compliance with the autonomous obligations derived from the corporate responsibility to respect.[xciv] Thus, compliance with corporate responsibility rules does not insulate a corporation form liability under the law based rules of the states in which it is domiciled or operates.
Fifth, the functional element of the responsibility to respect, and its autonomy from law, is emphasized in the description of the governance universe that makes up the substantive element of the responsibility to respect. “Depending on circumstances, companies may need to consider additional standards: for instance, they should also respect international humanitarian law in conflict-affected areas; and those rights specific to vulnerable and/or marginalized groups, such as indigenous peoples, women, ethnic and religious minorities, and children.”[xcv]
Lastly, the scope rules of the responsibility to respect human rights includes a strong caution against a conventional approach to its effectuation, grounded in notions of risk assessment common to financial reporting. The Commentary makes clear that a risk assessment approach should not be undertaken, especially one in which the costs of compliance are balanced against the benefits accruing to a failure to respect human rights. Likewise companies may not balance the benefits of respecting human rights in one instance against their failures to respect human rights in others.[xcvi] With these caveats, though, some room for incorporation within the risk management functions of corporate operations is permitted.[xcvii]
GP Principle 13 moves from standard and methodology to application—the heart of the general principles relating to the corporate responsibility to respect. The focus of GP Principle 13 is on the policies and processes that corporations must embrace to operationalize the standard and methodologies announced in GP Principle 12.[xcviii] “These include a statement of policy to respect human rights that is embedded throughout the enterprise; human rights due diligence; and remediation.”[xcix] These echo provisions in the securities law reforms of the United States of the early 21st century, particularly some of the provisions of the Sarbanes Oxley Act of 2001.[c] The complexity and formality of the policy and process requirements will depend on the size and complexity of the operations of the entity.[ci]
GP Principle 14 then focuses on the specifics of implementation. It specifies the so-called policy commitments of corporations, understood as built on the development of a policy statement with a fixed form and content.[cii] It described the five key elements of a corporate policy the embodies the responsibility to respect human rights.[ciii] These include policy approval at the most senior level of the business enterprise; consultation with relevant internal and external expertise; a clear expression of the enterprise’s expectations of personnel and business partners; effective communication of the policy internally and externally to all personnel, business partners and relevant stakeholders; and incorporation within appropriate operational policies and procedures to embed it throughout the business enterprise.[civ] These are not unusual and reflect an emerging set of practices already well incorporated into the global operation of the largest enterprises.[cv] They are meant to embody, within the context of the corporate responsibility to protect, the principles of policy coherence[cvi] and disclosure[cvii] that also form part of the state duty to protect human rights.
Yet it is with GP Principles 15-19 that one reaches the operational heart of the principles framing the corporate responsibility to respect human rights. A corporation’s commitment to human rights grounded in the GP framework is evidenced by and measured against a set of requirements identified as human rights due diligence. These detail the obligations of corporate human rights due diligence as the central operational feature of the corporate responsibility to respect. Human rights due diligence has three broad objectives, to “identify and prevent or mitigate any adverse human rights impacts that its activities and associated relationships may have on individuals and communities.”[cviii] It is also meant to provide a basis for outside assessment of corporate performance.[cix] Human rights due diligence must be directed to three principles functions: “assessing actual and potential human rights impacts, integrating and acting upon the findings, and tracking as well as communicating their performance.”[cx] The scope of human rights due diligence is grounded in the fundamental scope rules of the corporate responsibility as a whole. These limitations touch on issues of complexity, severity (proportionality) and context,[cxi] on the time horizon of due diligence,[cxii] and reach to the farthest extent of corporate responsibility as an autonomous set of governance rules.[cxiii] Curiously, despite the earlier emphasis on avoiding risk management or cost benefit approaches to the human rights responsibilities of corporations, the Commentary suggests something like a proportionality rule with respect to its obligation to ensure compliance down its value chain.[cxiv] Yet it takes a somewhat different, and more broad application, to notions of human rights complicity built into the human rights due diligence standard that suggests that both the legal standard of complicity (grounded in the development of the substantive provisions under the state duty pillar) and the social norm standard (grounded in the autonomous rule system of the corporate responsibility pillar) apply to assessments of inclusion within human rights due diligence programs.[cxv]
The specific contents of human rights due diligence are then elaborated in GP Principles 16-19. GP Principle 16 specifies the outputs of human rights due diligence. It elaborates issues of identification and assessment in human rights due diligence programs.[cxvi] Assessment should be done in advance of action that might have a negative impact on human rights, should identify those potentially affected and the issues the proposed action raises, should be aware of the relevant substantive standards that might be applied, and undertake to understand the specific nature of the adverse human rights impact.[cxvii] The GP explains that for that purpose, such systems should utilize internal or external human rights experts and other resources, and seek to engage meaningfully with potentially affected groups and other relevant stakeholders.[cxviii] Assessment is required periodically and when there is a material change in operations,[cxix] a standard similar to those triggering disclosure under the U.S. federal securities laws.[cxx]
GP Principle 17 moves from outputs to action, identifying the outlines of the obligation to mitigate. It speaks to the integration of assessment and identification.[cxxi] The object is to prevent and mitigate potential adverse human rights effects of corporate activity.[cxxii] It defines “effective” integration as requiring assignment of responsibility for addressing assessment to the appropriate place within the corporate organization,[cxxiii] and requiring horizontal operational coherence.[cxxiv] The Principle makes a distinction between impacts to which the company (or its supply chain) have directly contributed and those where the connection is more indirect. Remediation (or prevention) is required for the former,[cxxv] but a more nuanced approach is permitted in the latter case.[cxxvi]
GP Principles 18-19 move from action to accountability—data gathering, processing and reporting. The incorporation of human rights due diligence in GP Principle 17 is augmented in GP Principle 18’s verification requirement.[cxxvii] The characteristics of appropriate verification include appropriate qualitative and quantitative metrics, feed-back from both internal and external stakeholders and a commitment to use information and experience to improve systems.[cxxviii] The Principles understand verification as serving an important surveillance function—tracking and analysis.[cxxix] There is an expectation that data will be harvested from all phases of the human rights due diligence process and contact with affected individuals.[cxxx]
The surveillance obligations of human rights due diligence elaborated in CP Principle 18 lead to the disclosure and transparency requirements set forth in GP Principle 19.[cxxxi] Reporting should be regular,[cxxxii] much like periodic reporting under the 1934 Securities Act.[cxxxiii] The frequency and form of disclose is a function of the enterprise’s human rights risk profile and the need to protect safety and commercial confidential communications.[cxxxiv] Likewise the form of communication is determined contextually.[cxxxv] Third party monitoring and reporting is encouraged.[cxxxvi]
GP Principle 20 then picks up the strand of human rights due diligence that targets mitigation, that is the scope and nature of the remediation obligation.[cxxxvii] It articulates a simple liability standard for failures to respect human rights. The obligation to remediate is tied to the principal human rights due diligence obligation, though not limited by it. [cxxxviii] The liability standard is not grounded in the law of any state. Nor is it dependent on the operation of a particular domestic legal order either to determine liability or to calculate the measure of damages. As a functional part of the autonomous responsibility to respect, these obligations flow directly from the autonomous imposition of responsibility of the second pillar. Yet the processes of remediation are substantially meant to be tethered to the state apparatus, at least when injury is substantial.[cxxxix] The reason is simple and directed stated—a fear that in the absence of “vouching” by the organs of the state the processes for remediation would be illegitimate.[cxl]
The treatment of the corporate responsibility to respect human rights ends where it started—concentrating on issues of context. GP Principle 21 speaks to issues of operationalization standards for the human rights due diligence framework grounded in two action vectors—first the size of the enterprise and second the severity of human rights impacts.[cxli] These identify baseline rules for the implementation of context specific action principles. The baseline includes four factors. The first touches on the heightened obligation to substitute for the host state with respect to the observation of internationally recognized human rights in weak states.[cxlii] This parallels the state duty to project government into weak states or conflict zones.[cxliii] The second obligates companies to “honor” human rights principles “where domestic legal compliance may undermine their responsibility to respect.” [cxliv] The third reminds entities that the responsibility applies in conflict zones.[cxlv] And the fourth suggests that issues of human rights compliance are transformed into more conventional issues of legal compliance (under international law or the law of the relevant domestic legal order) where the conduct risks or causes or contributes to international crimes.[cxlvi]
Finally, GP Principle 22 provides basic rules of prioritization. Where priority is necessary, the “business enterprises should first seek to prevent and mitigate those that are most severe or where delayed response would make them irremediable.”[cxlvii] The context for prioritization is simultaneity,[cxlviii] but it applies only where specific legal guidance is unavailable, or better perhaps, unavailing.[cxlix] And context is privileged; the severity of human rights is not measured against absolute values.[cl]
5. The Obligation to Remedy. The General Principles describing the remedial obligations of states and corporations present perhaps the most dynamic element of the GP framework.[cli] Reflecting the fundamental postulate of the primacy of states within the construct, the remedial prong of the Protect, Respect and Remedy framework tends to filter substantially all remedial mechanics through the state. Though corporations are accorded a limited space fore remedial programs,[clii] the subordination of those programs to the remedial power of states remains quite evident. States, under this framework, remain the paramount legitimating source and force for resolving disputes, settling claims and determining rights. Corporations may mediate harm, and may anticipate and remediate problems before they rise to the level of justiciable injury, but their role is clearly secondary.
The tone of the remedial pillar is set quite clearly in GP 23.
As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure that when such abuses occur within their territory and/or jurisdiction, those affected have access to effective remedy through judicial, administrative, legislative or other appropriate means.
The Commentary stresses the obligation of states to “investigate, punish, and redress business-related human rights abuses when they do occur, the State duty to protect can be rendered weak or even meaningless.”[cliii] It follows conventional Western thinking by dividing the remedial provision into two parts—a procedural element and a substantive one. But both the procedural and the substantive element produce a potential tension with the fundamental proposition, that the remedial element is a core obligation encompassed within the domestic legal orders of states. The procedural element contemplates administration by a host of organs and using a variety of methods,[cliv] some of which may not be legitimate within the particular domestic legal order of a state.[clv] The substantive element prescribes a flexible range of remedies[clvi] that, again, may include choices unavailable under the laws of a state to which the duty applies.[clvii] Of course, the Commentary to Principle 23 may be read as purely descriptive, rather than proscriptive, that is, that it describes the potential possible ranges of process and substantive approaches, with the provision that the actual availability of any of the suggestions is dependent on the domestic legal order of the state in which the remedy is sought (or is available). But there is a sense that a proscriptive approach is favored. Thus, for example, the Commentary presumes the possibility of positive obligations with respect to remedies.[clviii]
But there is an oddity about GP Principle 23. Having devoted a substantial amount of effort in constructing a state based remedial framework with perhaps a hint of supra-national bases for the outer bounds of remedial authority, the Commentary then hints that the system itself is part of a larger polycentric system of remediation in which the state plays a role but not necessarily the only role. While non-state based remedies are no where to be found in the blackletter of the principle itself, the Commentary provides that “State-based judicial and non-judicial mechanisms should form the foundation of a wider system of remedy for business-related human rights abuse.”[clix] This tension, between what appears to be the privileging of the state in the remedial pillar, with a nod toward non-state remedial regimes popping up at the margins, provides a disconcerting dissonance in the exposition of the remedial power.
Having laid the foundation in GP Principle 23, GP Principles 24-26 flesh out the parameters of state based remedies, including the paramount state obligation to oversee non-judicial remedial systems. GP Principle 24 considers state based judicial remedies. It describes a principle of effectiveness: “States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms.”[clx] Effectiveness is measured in terms of reductions of barriers of access to remedy before the judicial organs of a state.[clxi] The Commentary suggests the hortatory element of the principle,[clxii] an element that that also emphasizes the tension between the Principle fully applied, and the constraints of the domestic legal orders of powerful, and powerfully influential states.[clxiii] The suggestions for legfal and policy changes are grounded in the fundamental obligaitons of the state duty to protect in its legal and policy dimensions.[clxiv] Yet the objectives as described in the Commentary appear to serve as a substantially intrusive set of changes to the domestic legal orders of many states, and also appear to suggest that the Principles themselves trump the democratic process within states for the setting of policy.[clxv] This would not be unreasonable; the GP Principles tale as their starting point the presumption that international law and normative structures already serve to constrain the power of states (and their polities) to deviate. But many states have not accepted that sorting of the hierarchy between domestic and international governance orders. And that will set up a tension between states and GP that may work to the disadvantage of the latter. Because the GP place their greatest reliance of state based remedial organs, the ability of individuals affected by human rights abuses have a smaller range of legitimate alternatives where states fail in their duty. And that is to be regretted. Strengthening the autonomous authority of non state based remedial alternatives might both strengthen the second pillar obligations of corporations directly and also provide a method of expanding the remedial universe of those affected by human rights breaches. Indeed, to the extent that the Principle appears to advocate substantial changes to fundamental rules of a domestic legal order,[clxvi] it ironically weakens the remedial element by privileging systems that are recognized to fall fundamentally short of the description of the character of the duty.
Though the bedrock of the remedial right are state based remedies, the GP recognize that non judicial state based remedies “playa n essential role in complementing and supplementing judicial mechanisms.”[clxvii] GP Principle 25 provides that “States should provide effective and appropriate non-judicial grievance mechanisms alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights.”[clxviii] The role of non-judicially State based remedies is principally as a gap filler., both in terms of the availability of remedy and to make appropriate accommodation for the idiosyncrasies of culture.[clxix]
Finally, GP 26 makes it clear that the state duty to protect human rights in its remedial role extends to the oversight of non-state based grievance mechanisms. “States should consider ways to facilitate access to non-state based mechanisms dealing with business-related human rights grievances.” [clxx] The commentary provides a listing of appropriate forms of such grievance mechanisms.
The two GP that follow turn to the obligations of companies in the construction and operation of non-state based non-judicial mechanisms. GP Principle 27 speaks to the placement of the grievance mechanism within the corporate structure and to the timing of access to the non-judicial remedy made available.[clxxi] The Commentary describes these mechanisms as existing independent of the remedies available by the State and can be quite flexibly constructed—the focus is on functional effectiveness within the context of the company’s operations.[clxxii] In addition, the Commentary suggests two important functions of these mechanisms that tie remedies to the corporate responsibility to respect human rights: the first is to support the monitoring function of human rights due diligence, and the second is to provide for early remediation of grievances before harms are compounded.[clxxiii] GP Principle 28 suggests the value of industry or multi-stakeholder initiatives as a mechanism for effective grievance mechanisms.[clxxiv] “Such collaborative initiatives should ensure the availability of effective mechanisms through which affected parties or their legitimate representatives can raise concerns when they believe the commitments in question have not been met.”[clxxv]
The last of the Principles, GP Principle 29, ties all of the non-judicial remedial provisions together. It sets out a list of legitimating characteristics of non-judicial grievance mechanisms., though it is not clear why these characteristics ought not also to apply to state based judicial remedial mechanisms. The characteristics include: legitimacy,[clxxvi] accessibility,[clxxvii] predictability,[clxxviii] equity,[clxxix] rights-compatibility,[clxxx] and transparency.[clxxxi] A special additional characteristic is specified for operational level mechanisms: dialogue and engagement.[clxxxii] “These criteria provide a benchmark for designing, revising or assessing a non-judicial grievance mechanism to help ensure that it is effective in practice.”[clxxxiii]
(From Amol Mehra, Ruggie Releases Draft Guiding Principles on Business and Human Rights, RightsRespect, Dec. 6, 2010).
[i] GP Principles 1-11.
[ii] GP Principles 12-22.
[iii] GP Principles 23-29.
[iv] “This forum is a consultation of the global North, mainly. Most peoples in the global South are excluded from this forum and have no access to the Draft, because they do not speak English.” Special Representative of the United Nations Secretary-General for business & human rights, Draft Guiding Principles (GPs) for implementation of the U.N. "Protect, Respect and Remedy" Framework, Home » Introduction to the Guiding Principles >> Introduction, available http://www.srsgconsultation.org/index.php/main/discussion?discussion_id=1 (Comment of R. Grabosch, Jan. 27, 2011).
[v] Thsi point was made forcefully by the French Human Rights Commission:
The problem we note is the fact that the English text of the Guiding Principles has not been translated into the other official languages of the United Nations, notably French, despite the fact that French is one of the UN’s working languages. In addition to being a matter of principle which applies to all reports presented to the Human Rights Council, this problem is exacerbated by the fact that the document uses some ambiguous terms, meaning that ‘official’ translation is vital in order to fully grasp their legal implications. In the first instance, the fact that the English is the only version restricts the degree to which other legal systems are taken into consideration, as well as imposing a dominant viewpoint, even though globalisation is in crisis. It also restricts the scope of the consultations, especially within the French-speaking world, thus working against the document’s own stated aim. In the second instance, this adds to the uncertainty over the fundamental legal concepts relating to ‘international responsibility.“
Special Representative of the United Nations Secretary-General for business & human rights, Draft Guiding Principles (GPs) for implementation of the U.N. "Protect, Respect and Remedy" Framework, Home » Introduction to the Guiding Principles >> Introduction, available http://www.srsgconsultation.org/index.php/main/discussion?discussion_id=1 (Comment of French Human Rights Commission, Jan. 27, 2011). It should be noted, however, that many of the SRSG’s consultations and meetings were conducted in a way that permitted participation by non-English speakers, and documents were informally translated for use by stakeholders. See, e.g., CITE.
[vi] In practical terms, only three terms are defined, the first dealing with what constitutes an Enterprise, the second concerning the meaning of human rights, and the third defining grievance and grievance mechanisms. See, GP Definitions.
[vii] On the use of definitions in the Norms, see, Larry Catá Backer, Multinational Corporations, Transnational Law: The United Nation’s Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility as International Law, 37 Columbia Human Rights Law Review 287 (2006).
[viii] GP Definitions.
[ix] GP Definitions.
[x] Thius, for example, the French Human Rights Commission has faulted this definition for failure “to specify that the concept of ‘enterprise’ covers all social and economic activities, including services; that it relates to both public and private sector enterprises and that it expressly refers not only to parent companies but also to their subsidiaries, subcontractors and contracting parties.” Special Representative of the United Nations Secretary-General for business & human rights, Draft Guiding Principles (GPs) for implementation of the U.N. "Protect, Respect and Remedy" Framework, Home » Definitions >> Definitions, (Comments of French Human Rights Commission, Jan. 27, 2011), available http://www.srsgconsultation.org/index.php/main/discussion?discussion_id=20. Another commentator suggested that the term business enterprise be extended to specifically include institutional investors, such as pension funds. Id. (Comment of N.A. Taylor, Dec. 14, 2010).
[xi] GOP Definitions.
[xii] The term specifically “refers at a minimum to the principles contained in the International Bill of Human Rights (consisting of the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural rights), coupled with the eight ILO core conventions that form the basis of the Declaration on Fundamental Principles and Rights at Work.” GP Definitions.
[xiii] GP Definitions.
[xiv] GP Definitions.
[xv] “The term grievance mechanism is used to indicate any routinized, state-based or non-state-based, judicial or non-judicial process through which grievances related to business abuse of human rights can be raised and remedy can be sought.” GP Definitions.
[xvi] “While companies may take on additional responsibilities voluntarily, and operational conditions may dictate them in specific circumstances, the corporate responsibility to respect human rights is the baseline responsibility of all companies in all situations. It exists independently of States’ duties or capacity.” United Nations Global Compact, The UN Protect, Respect and Remedy Framework for Business and Human rights: Relationship to UN Global Compact Commitments May 2010, available http://www.unglobalcompact.org/docs/issues_doc/human_rights/Resources/UNGC_SRSGBHR_Note.pdf. See also U.N. Global Compact, The Special Representative of the UN Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, available http://www.unglobalcompact.org/Issues/human_rights/The_UN_SRSG_and_the_UN_Global_Compact.html. Recall also the discussion of the autonomy of the law-state system and the social norm system developed by the SRSG in his reports. See, especially, CITE (Teubner, Backer).
[xvii] The Introduction refers to the “reality that rights and obligations have little meaning unless they are matched to appropriate and effective remedies when breached.” GP, Introduction.
[xviii] GP Introduction
[xix] The SRSG has emphasized the contextual and operational conditions that may affect both the extent and character of the baseline obligation of corporations under the social norm system to which they are bound. See, CITE. But the absence of limits does not suggest an open ended substantive effect of the GP on corporate responsibility. The corporate responsibility is, to some extent, also bounded by the growing network of norms that reflect an emerging global consensus about corporate behavior with respect to human rights. The SRSG has noted the strong connection between the substance of the corporate responsibility to respect and the UN Global Compact. “In this regard, the UN Protect, Respect and Remedy framework provides further operational clarity for the two human rights principles championed by the Global Compact. Principle 1 calls upon companies to respect and support the protection of internationally proclaimed human rights; and Principle 2 calls upon them to ensure that they are not complicit in human rights abuses.” The UN Protect, Respect and Remedy Framework for Business and Human Rights: Relationship to UN Global Compact Commitments (May 2010) available http://www.unglobalcompact.org/docs/issues_doc/human_rights/Resources/UNGC_SRSGBHR_Note.pdf (“Other guidance materials that can help with implementation of the responsibility to respect (and the voluntary commitment to support) human rights can be found at:
[xx] GP Introduction.
[xxi] GP Introduction.
[xxii] See Teubner, CIRTE.
[xxiii] GP Introduction.
[xxiv] GP Introduction.
[xxv] GP Principles 1-2.
[xxvi] GP Principles 3-4.
[xxvii] GP Principle 5.
[xxviii] GP Principles 6-8.
[xxix] GP Principle 9.
[xxx] GP Principle 10.
[xxxi] GP Principle 11.
[xxxii] GP Prionciple 1 (“States must protect against business-related human rights abuse within their territory and/or jurisdiction by taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, regulation, and adjudication.”).
[xxxiii] GP Principle 1.
[xxxiv] GP Principle 1.
[xxxv] GP Principle 1 Commentary.
[xxxvi] GP Principle 1 Commentary.
[xxxvii] GP Principle 1 Commentary. “The legal foundation of the State duty to protect against business-related human rights abuse is grounded in international human rights law. ” Id.
[xxxviii] GP Principle 1 Commentary (“The specific language in the main United Nations human rights treaties varies, but all include two sets of obligations for States Parties: first, to refrain, themselves, from violating the enumerated rights of persons within their territory and/or jurisdiction, generally known as the State duty to respect human rights; second, to “ensure” (or some functionally equivalent verb) the enjoyment or realization of those rights.” Id.).
[xxxix] States, however, might be liable for breach of their obligations under international law where their failure to ensure compliance by oithers within their control is itself a breach of the relevanrt treaty. GP Principle 1 Commentary.
[xl] For a discussion of policy coherence and its importance in the development of state legal systems sensitive to human rights, see, CITE SRSG REPORTS.
[xli] GP Principle 3 provides:
“States should ensure that governmental departments, agencies and other State-based institutions that shape business practices, at both the national and sub-national levels, are aware of and observe the State’s human rights obligations in fulfilling their respective mandates, including by providing them with relevant information, training and support.”
[xlii] GP Principle 4 provides:
States should maintain adequate domestic policy space to meet their international human rights obligations when pursuing business-related policy objectives with other States or business enterprises, particularly when they enter into investment treaties or contracts.
[xliii] That hardwiring of policy balancing in favor of a state’s human rights obligations is implicit through the application of GP Principle 1. In many cases, it is also a necessary consequence of the application of the policy ordering implicit in the constitutional systems of the state. This would be the case, for example, in Germany, with its emphasis on human dignity. See Grundgezetz art. 1.
[xliv] The Commentary groups these issues as part of what it describes a vertical coherence. Though its focus is on the coherence of policy between the state and internaitonal community, it reaches downward as well. “Vertical policy coherence entails States having the necessary policies, laws and processes to implement their international human rights obligations.” GP Principle 3 Commentary.
[xlv] The Commentary describes this as horizontal coherence.
“Horizontal policy coherence means supporting and equipping departments and agencies that shape business practices – including corporate law and securities regulation, investment, export credit and insurance, and trade - to be informed of and act in a manner compatible with their governments’ own human rights obligations.”
GP Principle 3 Commentary.
[xlvi] GP Principle 4 (“When entering into such agreements, therefore, States should ensure that they retain their policy and regulatory ability to protect human rights while providing the necessary investor protection.”).
[xlvii] GP Principle 2: “States should encourage business enterprises domiciled in their territory and/or jurisdiction to respect human rights throughout their global operations, including those conducted by their subsidiaries and other related legal entities.” Id.
[xlviii] The issue, however, was thoroughly vetted in the years leading ot the production of the GP. See, e.g., Jennifer A. Zerk, Extraterritorial Jurisdiction: Lessons for Business and Human Rights Sphere from Six Regulatory Areas, Report for the Harvard Corporate Social Responisbility Initiative to Help Inform the Mandate of the UNSG’s Special Representative onBusiness andHuman Rights Working Paper No. 59 (June 2010).
[xlix] The Commentary is a study in ambiguity:
States are not at present generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction, nor are they generally prohibited from doing so provided there is a recognized jurisdictional basis, and that the exercise of jurisdiction is reasonable. Various factors may contribute to perceived and actual reasonableness of States’ actions, including whether they are grounded in multilateral agreement.
GP Principle 2 Commentary.
[l] GP Principle 2 Commentary (“Indeed, strong policy reasons exist for home States to encourage businesses domiciled in their territory and/or jurisdiction to respect human rights abroad, especially if the State is involved in the business venture.”).
Furthermore, the exercise of extraterritorial jurisdiction is not a binary matter but comprises a range of measures, not all equally controversial under all circumstances. The permissible options which may be available range from domestic measures with extraterritorial implications, such as requirements on “parent” companies to report on their operations at home and abroad, to direct extraterritorial jurisdiction such as criminal regimes which rely on the nationality of the perpetrator no matter where the offense occurs.
[lii] Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion 2004 July 9 General List No. 131 (July 9, 2004) (available http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm).
[liii] Cf. Inter-American Court of Human Rights, Advisory Opinion OC-18/03 (Sept. 17, 2003) Juridical Condition and Rights of Undocumented Migrants (United Mexican States) (http://www.corteidh.or.cr/opiniones.cfm?idOpinion=24).
[liv] Cf. MEDELLÍN, Petitioner, v. TEXAS, 128 S.Ct. 1346 (2008).
[lv] State v. T. Makwanyane and M. Mchunu, Case No. CCT/3/94 (1995); http://law.gsu.edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane.htm.
[lvi] GP Principle 5 (“States should set out clearly their expectation for all business enterprises operating or domiciled in their territory and/or jurisdiction to respect human rights, and take the necessary steps to support, encourage and where appropriate require them to do so”).
[lvii] GP Principle 5 (a) and (b).
[lviii] GP Principles 5 ( c) and (d)
[lix] GP Principle 5 Commentary. True to the fundamental embrace of multiple sources of governance regimes, the Commentary suggests a “Smart mix of measures.” Id. These are founded on naitonal law, the legal and policy transposuition of international law, and the advancement of voluntary measures, this last a nod in the direction of non-state social norm governance systems. Id.
[lx] For a critical discussion of these efforts and assumptions, see, Larry Catá Backer, Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights Under the UN SRSG Mandate, Law at the End of the Day, Jan. 14, 2010.
[lxi] GP Principle 12-22.
[lxii] GP Principle 5(d) and Commentary last two paragraphs.
[lxiii] GP Principle 6. The Commentary stresses that “the closer a business Enterprise is to the State, or the more it relies on statutory authority or taxpayer support, the stronger the State’s policy rationale becomes for ensuring that the Enterprise respects human rights, quite apart from any legal obligations State may have in certain circumstances.” Id.
[lxiv] GP Principle 6 Commentary.
[lxv] The Commentary emphasizes that form may not matter with respect to the human rights obligations of states. States do not avoid their duty to project human rights merely by exercising state functions through business enterprises, either state owned or outsourced. “States should ensure that they can effectively oversee the enterprises’ activities, including through the provision of adequate independent monitoring and accountability mechanisms.” GP Principle 7 Commentary.
[lxvi] When the state serves as a financing agent, either in a principle or regulatory capacity, the foundational obligations of the state duty apply to those activities as well. The obligation is both legal and policy oriented. GP Principle 8 Commentary. “Yet these agencies themselves risk exposure to reputational, financial, political and potentially legal implications where a business whose activities or relationships they support contributes to human rights abuses abroad.” Id.
[lxviii] “States should seek to ensure respect for human rights by business enterprises when they conduct commercial transactions with them.” GP Principle 9. This obligation is described as a set of “unique opportunities to promote awareness of and respect for human rights by those businesses” with which the state engages in transactions. CP Principle 9 Commentary.
[lxix] This, of course, is thje basic assumption of the state system on which national and international public law regimes are currently based. See, CITE.
[lxx] “Because the risk of gross human rights abuses is heightened in conflict- affected areas, States should help ensure that business enterprises operating in those contexts do not commit or contribute to such abuse” GP Principle 10. The COmmentary explains: “Responsible businesses increasingly seek guidance from States about how to avoid contributing to human rights harm in these difficult contexts. Innovative and practical approaches are needed.” GP Principle 10 Commentary.
[lxxi] GP Principle 10.
[lxxii] “To ensure greater policy coherence and adequately asist business in such situations , States should Foster closer cooperation among home State development assistance agencies, foreign and trade ministries, and export finance institutions in their capitals and within their embassies, as well as between these agencies and host government actors.” GP Prinbciple 10 Commentary.
[lxxiii] “The worst business-related human rights abuses occur amid armed conflict over the control of territory, resources, or a government itself –where the human rights regime cannot be expected to function as intended.” GP Principle 11 Commentary.
[lxxiv] GP Principle 10 Commentary.
[lxxvi] GP Principle 11 Commentary (“Seek to ensure that those institutions neither restrain the ability of their member States to meet their duty to protect nor hinder business enterprises from respecting human rights”).
[lxxvii] Id. (“Encourage those institutions, within their respective mandates and capacities, to promote business respect for human rights and to help States meet their duty to protect against business-related abuse, including through technical assistance, capacity building and awareness-raising”).
[lxxviii] Id. (“Draw on the “Protect, Respect and Remedy” Framework to promote shared understanding and advance international cooperation in the management of business and human rights challenges”).
[lxxix] GP Principle 11 Commentary.
[lxxx] The language iused is that of capacvity building theouth multilateralñism. “Capacity-building and awareness-raising through such institutions can play a vital role in helping all States to fulfill their duty to protect, including by enabling the sharing of information about challenges and best practices, thus promoting more consistent approaches.” GP Principle 11 Commentary.
[lxxxi] GP Principle 12.
[lxxxii] GP Principle 12.
[lxxxiii] GP Principle 12 (“Refers to internationally-recognized human rights, understood, at a minimum, as the principles expressed in the International Bill of Human Rights and in the eight International Labor Organization core conventions”).
[lxxxv] Id. (“Applies across a business enterprise’s activities and through its relationships with third parties associated with those activities”).
[lxxxvi] Id. (“Applies to all enterprises regardless of their size and ownership structure and of how they distribute responsibilities internally or between entities of which they are constituted”).
[lxxxvii] The Commentary emphasizes that “those rights are the core standards against which other social actors hold enterprises to account for their adverse impacts. This is distinct from the question of legal liability, which remains defined largely by national law provisions in relevant jurisdictions.” GP Principle 12 Commentary.
[lxxxviii] GP Principle 15 Commentary. It explains: “Many jurisdictions prohibit knowingly providing assistance to the commission of a crime and a number allow for criminal liability of legal entities in such cases. . . . In relation to complicity in international crimes, the weight of international legal opinion indicates that the relevant standard for aiding and abetting such crimes is knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime. Of course, business enterprises may be perceived as being 'complicit' in the acts of another entity whether or not they can be held legally responsible, for example, where they are seen to benefit from an abuse.” Id.
[lxxxix] GP Principle 12.
[xc] The Commentary emphasizes that “The scope of the corporate responsibility to respect human rights extends across a business enterprise’s own activities and through its relationships with other parties, such as business partners, entities in its value chain, other non- State actors and State agents. Particular country and local contexts may affect the human rights risks of an enterprise’s activities and relationships.” GP Principle 12 Commentary.
[xci] See, e.g., Larry Catf distinct corporaitons making up an enterprise, would ich for example, would impose strict fiduciary duty rules on the boards oa Backer, CITE TO ILSA Journal Art.
[xcii] GP Principle 12.
[xciii] The Commentary, in an important section, groujnds these ideas in notions of influence. It explains: “‘Influence’, where defined as ‘leverage’, is not a basis for attributing responsibility to business enterprises for adverse human rights impacts. Rather, a business enterprise’s leverage over third parties becomes relevant in identifying what it can reasonably do to prevent and mitigate its potential human rights impacts or help remediate any actual impacts for which it is responsible.” GP Principle 12 Commentary.
[xciv] The Commentary makes that point explicitly:
Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse. However, business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.
GP Principle 15 Commentary.
[xcv] GPPrinciple 12 Commentary.
[xcvi] “The responsibility to respect does not preclude business enterprises from undertaking additional commitments or activities to support and promote human rights. But such desirable activities cannot offset an enterprise’s failure to respect human rights throughout its operations and relationships.” GP Principle 12 Commentary.
[xcvii] “Human rights due diligence can be included within broader enterprise risk management systems provided that it goes beyond simply identifying and managing material risks to the company itself to include the risks a company’s activities and associated relationships may pose to the rights of affected individuals and communities.” GP Principle 15 Commentary.
[xcviii] “In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances that enable them to identify, prevent, mitigate and remediate any adverse human rights impacts they cause or contribute to through their activities and relationships, and to account for their human rights performance.” GP Principle 13.
[xcix] GP Principle 13 Commentary.
[c] CITE TO BACKER SOX ARTICLE ST JOHNS.
[ci] The Commentary explains: “Small and medium-sized enterprises may have less capacity as well as more informal processes and management structures than larger companies, so their respective policies and processes will take on different forms. But some small and medium sized enterprises can have significant human rights impacts, which will require corresponding measures regardless of their size.” GP Principle 13 Commentary.
[cii] “As the foundation for embedding their responsibility to respect human rights, business enterprises should express their commitment through a statement of policy” GP Principle 14.
[ciii] GP Principle 14.
[civ] GP Principle 14.
[cv] For a discussion in the context fo the operations of WalMart, see, Larry Catá Backer CITE WALMART PIECE.
[cvi] “Just as States should work towards policy coherence, so business enterprises need to provide for coherence between their responsibility to respect human rights and policies and procedures that govern their wider activities and relationships. Such policies and procedures should be aligned with their public human rights commitment so as to enable its effective implementation.” GP Principle 14 Commentary.
[cvii] “The term ‘statement’ is used generically, to describe whatever means an enterprise employs to set out publicly its responsibilities, commitments, and expectations.” GP Principle 14 Commentary.
[cviii] GP Principle 15 Commentary.
[cix] GP Principle 15 (“to account for their performance”).
[cx] GP Principle 15.
[cxi] It is expected that the actual organization of human rights due diligence for any company will “vary in scope and complexity with the size of the business enterprise, the severity of its human rights risks, and the context of its operations.” GP Principle 15.
[cxii] Like conventional financial disclosure, human rights due dilienge is meant to be continuous and on-going, a routine part of the assessemnt operation of internal corporate management. GP Principle 15 (“Must be on-going, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve”). The mitigation element of thsi obligation affects due diligence timing: “Due diligence should be initiated as early as possible in the development of a new activity or relationship.” GP Principle 15 Commentary.
[cxiii] Thus, they “Should extend beyond a business enterprise’s own activities to include relationships with business partners, suppliers, and other non-State and State entities that are associated with the enterprise’s activities.” GP Principle 15 Commentary.
[cxiv] “Where business enterprises have large numbers of suppliers, this may render it impossible to conduct human rights due diligence with regard to them all. Ifso, they should identify general areas of heightened human rights risk, whether due to certain suppliers’ operating context, the particular products or services involved, or other relevant considerations, and prioritize those suppliers for human rights due diligence.” GP Principle 15 Commentary.
[cxv] GP Principle 15 Commentary (“Questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by third parties. Complicity has both legal and non-legal meanings.”).
[cxvi] “In order to become aware of human rights risks generated through their activities and relationships, business enterprises should identify and assess the actual and potential adverse human rights impacts of those activities and associated relationships.” GP Principle 16.
[cxvii] GP Principle 16 Commentary.
[cxviii] GP Principle 16.
[cxix] The Commentary explains
Because human rights situations are dynamic, assessments of human rights impacts should be undertaken at regular intervals: prior to a new activity or relationship; prior to major decisions or changes in the operation (e.g. market entry, product launch, policy change, or wider changes to the business); in response to or anticipation of changes in the operating environment (e.g. rising social tensions); and periodically throughout the life of an activity or relationship.
GP Principle 16 Commentary.
[cxx] See, CITE.
[cxxi] Companies “should integrate the findings from their impact assessments across relevant internal functions and processes and take appropriate action.” GP Principle 17.
[cxxiii] “Responsibility for addressing such impacts is assigned to the appropriate level and function.” GP Principle 17a.
[cxxiv] “Internal decision-making, budget allocations and oversight processes enable effective responses to such impacts.” GP Principle 17b.
[cxxv] “Where a business enterprise identifies that it has contributed through its own actions or decisions to acts by a supplier that harm human rights, it should take steps avoid or mitigate the continuation of those contributions.” GP Principle 17 Commentary.
[cxxvi] The Commentary suggests careful assessment of “what appropriate action to take going forward, based on a combination of what leverage it possesses to change the wrongful practices of the supplier, how crucial that supplier is to its business, and the implications for human rights of any course of action.” GP Principle 17 Commentary. The standard does not require legal precisión precisely because no legal standard is invoked. Thus concepts of “levereage” play onto the calculus here in ways that might not have been appropriate either under the first pillar state duty to protect or even wioth respect to the extent of the corporate responsibility beyond the corporattion itself. See discussion of GP Principle 12, supara.
[cxxvii] “In order to verify whether adverse human rights impacts are being effectively addressed, business enterprises should track their performance.” GP Principle 18.
[cxxviii] GP Principle 18 a-c.
[cxxix] “Tracking performance is necessary in order for a business enterprise to know if its human rights policies are being implemented optimally, whether it has responded effectively to the identified human rights impacts, and to drive continuous improvement.” GP Principle 18 Commentary. The tracking element is particulay important with respect to groups most likely to suffer adverse human rights impacts form corporate activity. “Business enterprises should make particular efforts to track their human rights performance with regard to vulnerable and/or marginalized groups, such as indigenous peoples; women; national, ethnic and religious minorities; and children.” Id.
[cxxx] “Business enterprises might employ tools they already use to track their performance on other issues, including performance contracts, reviews, surveys and audits. Operational-level grievance mechanisms can also provide important feedback on the business enterprise’s human rights performance from those directly affected.” GP Principle 18 Commentary.
[cxxxi] “In order to account for their human rights performance, business enterprises should be prepared to communicate publicly on their response to actual and potential human rights impacts when faced with concerns of relevant stakeholders.” GP Principle 19.
[cxxxii] “Periodic public reporting is expected of those business enterprises whose activities pose significant risks to human rights.” GP Principle 19 Commentary.
[cxxxiii] See, CITE.
[cxxxiv] See GP Principle 19 Commentary.
[cxxxv] “Communication can take a varuiety oif fiorms, such as reports, online dialogues, in-person meetings, and stakeholder review panels.” GP Principle 19 Commentary.
[cxxxvii] “Where business enterprises identify that they have been responsible for adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.” GP Principle 20.
[cxxxviii] “Where a business enterprise identifies such a situation, whether through its human rights due diligence process or other means, its responsibility to respect human rights requires that it should help ensure that the impact can be remediated.” GP Principle 20 Commentary.
[cxxxix] “Business enterprises should have procedures in place to respond to such situations directly, where appropriate, and where possible should address problems before they escalate” GP Principle 20 Commentary.
[cxl] That vouching is effected through the third pillar principles covering the remedial right to be treated belw. “Operational-level grievance mechanisms for those potentially impacted by the business enterprise’s activities can be an effective means of providing for such procedures when they meet certain core criteria, as set out in Principle 29.”GP Principle 20 Commentary.
[cxli] GP Principle 21 speaks to “the scale and complexity of policies and processes for ensuring that business enterprises respect human rights will vary according to the enterprises’ size and the severity of their human rights impacts.”
[cxlii] GP Principle 21(a) (“Observe internationally recognized human rights also where national law is weak, absent or not enforced”).
[cxliii] See GP Principle 10 and discussion, supra, at text and notes ---.
[cxliv] GP Principle 21(b). The Commentary notes: “Where legal compliance with domestic law puts the business enterprise in the position of potentially being involved in gross abuses such as international crimes, it should consider whether or how it can continue to operate with integrity in such circumstances.” GP Principle 21 Commentary.
[cxlv] GP Principle 21( c). The Commentary hreminds entities of their potential exposure to action under international criminal law in such situations where they are not careful.
Some operating environments, such as conflict affected areas, may increase the risks of enterprises contributing to, or being complicit in, international crimes committed by other actors (for example, war crimes by security forces). Prudence suggests that companies should treat this risk as a legal compliance issue, given the expanding web of potential corporate legal liability arising from extraterritorial civil claims, and in the criminal sphere from the incorporation of the provisions of the Rome Statute of the International Criminal Court in jurisdictions that provide for corporate criminal responsibility.
GP Principle 21 Commentary.
[cxlvi] GP Principle 21(d). The Commentary suggests consultation with experts, and defines them broadly to include civil society actors. GP Principle 21 Commentary.
[cxlvii] GP Principle 22.
[cxlviii] “It may not always be possible for business enterprises to address simultaneously all adverse human rights impacts their activities and relationships may generate.” GP Principle 22 Commentary.
[cxlix] “In the absence of specific legal guidance, if prioritization is necessary, business enterprises should begin with those human rights impacts that would be most severe, or where the risk of irremediable impact is high.” GP Principle 22 Commentary.
[cl] “Severity is not an absolute concept in this context, but is relative to the other human rights impacts the business enterprise has identified.” GP Principle 22 Commentary.
[cli] See GP Principles 23-29.
[clii] See GP Principles 26-28, all of which are closely tied to GP Principle 20
[cliii] GP Principle 23 Commentary. The Commentary also seeks to make the case that such a duty is bound up in the international obligaitons of states under conventional law. Id.
[cliv] “State-based grievance mechanisms may be administered by a branch or agency of the State, or by an independent body on a statutory basis. They may be judicial or non-judicial. Examples include the courts, labor tribunals, national human rights institutions, National Contact Points under the OECD Guidelines for Multinational Enterprises, many ombudsperson offices, and government-run complaints offices.” GP Principle 23 Commentary.
[clvi] “The remedies provided by the grievance mechanisms discussed in this section may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human rights harms that have occurred. Remedy may include apologies, guarantees of non-repetition, restitution of property, financial or non-financial compensation and punitive sanctions (whether criminal or administrative, such as fines).” GP Principle 23 Commentary.
[clviii] “Ensuring access to remedy for business-related human rights abuses requires also that States facilitate public awareness and understanding of these mechanisms, how they can be accessed and any support (financial or expert) for doing so.” GP Principle 23 Commentary.
[clix] GP Principle 23 Commentary. “Within such a system, operational-level grievance mechanisms can provide early- stage recourse and possible resolution. State and operational-level mechanisms, in turn, can be supplemented or enhanced by the remedial functions of collaborative initiatives as well as those of international and regional human rights mechanisms.” Id.
[clx] GP Principle 24.
[clxi] Id. (“considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy”).
[clxii] The Commentary speaks of legal and practical barriers, as well as barriers grounded in the marginalizing of vulnerable groups. GP Principle 24 Commentary.
[clxiii] Thsi is particularly true, for example, with respect to the United States. See, e.g., CITE AVENA CASE.
[clxiv] Discussed above ar text and notes ---, supra.
[clxv] The Commentary explains:
Practical and procedural barriers to accessing judicial remedy can arise where, for example:
␣ State prosecutors lack adequate resources, expertise and support to meet the State’s own obligations to investigate individual and corporate involvement in human rights-related crimes;
␣ the costs of bringing claims go beyond being an appropriate deterrent to unmeritorious cases and/or cannot be reduced to reasonable levels through government support, “market-driven” mechanisms (such as litigation insurance and legal fee structures), or other means;
␣ claimants experience difficulty in securing legal representation, due to a lack of resources or of other incentives for lawyers to advise claimants in this area;
␣ there are inadequate options for aggregating claims or enabling representative proceedings (such as class actions and other collective action procedures), thereby preventing effective remedy for individual claimants.
GP Principle 24 Commentary.
[clxvi] The Comentary explains:
Legal barriers that can prevent legitimate claimants from accessing judicial remedy for business-related human rights abuse can arise where, for example:
␣ the way in which legal responsibility is attributed among members of a corporate group under domestic criminal and civil laws facilitates the avoidance of appropriate accountability;
␣ where claimants face a denial of access to effective remedy in a host State and cannot access home state courts regardless of the merits of the claim.
GP Principle 24 Commentary.
[clxvii] GP Principle 25 Commentary.
[clxviii] GP Principle 25.
[clxix] GP Principle 25 Commentary
[clxx] GP Prionciple 26.
[clxxi] “To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective, operational-level grievance mechanisms for individuals and communities who may be adversely impacted.” GP Principle 27.
[clxxii] GP Principle 27 Commentary.
[clxxiv] “Collaborative industry or multi-stakeholder initiatives in this domain should also provide for effective grievance mechanisms.” GP Principle 28 Commentary.
[clxxv] GP Principle 28 Commentary.
[clxxvi] GP Principle 29(a) (“having a clear, transparent and sufficiently independent governance structure to ensure that no party to a particular grievance process can interfere with the fair conduct of that process”).
[clxxvii] GP Principle 29(b) (“being publicized to those who may wish to access it and provide adequate assistance for aggrieved parties who may face barriers to access, including language, literacy, awareness, finance, distance, or fear of reprisal”).
[clxxviii] GP Principle 29( c) (“providing a clear and known procedure with a time frame for each stage and clarity on the types of process and outcome it can (and cannot) offer, as well as a means of monitoring the implementation of any outcome”).
[clxxix] GP Principle 29(d) (“ensuring that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair and equitable terms”).
[clxxx] GP Principle 29(e) (“ensuring that its outcomes and remedies accord with internationally recognized human rights standards”).
[clxxxi] GFP Principle 29(f) (“providing sufficient transparency of process and outcome to meet the public interest concerns at stake and presuming transparency wherever possible; non-State mechanisms in particular should be transparent about the receipt of complaints and the key elements of their outcomes”).
[clxxxii] GP Principle 29(g) (“focusing on processes of direct and/or mediated dialogue to seek agreed solutions, and leaving adjudication to independent third-party mechanisms, whether judicial or non-judicial”).
[clxxxiii] GP Principle 29 Commentary.