Wednesday, June 01, 2011

The Protect-Respect-Remedy Framework for Business and Human Rights Moves Closer to Consideration by U.N. Human Rights Council

John Ruggie, the Special Representative of the Secretary General for Business and Human Rights has been proceeding with the production of the final set of documents that elaborate the framework for the regulation of business and human rights that he has overseen since his appointment as SRSG.  For those following the progress of the development of the framework and its incarnation as Guidelines and supporting documents, the following material may be useful for study.  

What follows was taken from the Business and Human Rights Resource Center, U.N. Secretary General's Special Representative for Business and Human Rights, Report to U.N. Human Rights Cuncil 2011:  

On 30 May 2011, Special Representative Ruggie presented his final report to the UN Human Rights Council:
- text of presentation to UN Human Rights Council [PDF]
- press release re presentation: "Business & human rights: Guiding Principles for a socially sustainable globalization" [DOC]

Following the presentation, several States on the Council commented during the period of interactive dialogue. See "Council holds dialogue with Experts on summary executions, independence of judges and lawyers, transnational corporations" [scroll to paragraph beginning "With regards to the issue of human rights and transnational corporations..."]

Special Representative Ruggie previously issued "Recommendations on follow-up to the mandate" [PDF], in February 2011.

Final report to UN Human Rights Council, with Guiding Principles
Addenda to final report to Human Rights Council
Statements to Human Rights Council
Press re presentation to Human Rights Council

Final report to UN Human Rights Council, with Guiding Principles

In March 2011, Special Representative Ruggie published his final report to the UN Human Rights Council, which included Guiding Principles for the implementation of the UN "Protect, Respect and Remedy" Framework that he had proposed to the Council in 2008 and that the Council had unanimously approved:

"Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie - Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" [PDF], 21 March 2011

- official translations: Arabic [DOC] - Chinese [PDF] - French [PDF] - Russian [PDF] - Spanish [DOC]

Addenda to final report to Human Rights Council

Addendum 1: Piloting principles for effective company/stakeholder grievance mechanisms: A report of lessons learned [PDF], 24 May 2011

Addendum 2: Human rights and corporate law: trends and observations from a cross-national study conducted by the Special Representative [PDF], 23 May 2011

Addendum 3: Principles for responsible contracts: integrating the management of human rights into State-investor contract negotiations: guidance for negotiators [PDF], 25 May 2011

Companion report: Business and human rights in conflict-affected regions: challenges and options towards State responses [PDF], 27 May 2011

Statements to Human Rights Council

This page includes statements to the UN Human Rights Council regarding the Special Representative's 2011 report and the Guiding Principles. Please send any statements that do not appear here to Greg Regaignon,

Association for Progressive Communications: Oral Statement to the Human Rights Council, 30 May 2011

FIAN International & 27 other NGOs: Statement to the Human Rights Council [PDF], 30 May 2011
- en español: Declaración Dirigida a las Delegaciones del Consejo de Derechos Humanos [PDF], 30 mayo 2011

Intl. Org. of Employers, Intl. Chamber of Commerce, Business & Industry Advisory Committee to the OECD: Joint Statement on Business and Human Rights to the United Nations Human Rights Council [PDF], 30 May 2011

CIDSE: Briefing for the 17th Session of the UN Human Rights Council [PDF], 20 May 2011
- en français : Note d’information en vue de la 17ème session du Conseil des droits de l’homme de l’ONU [PDF], mai 2011

ActionAid, Amnesty International, ESCR-Net, FIDH, Human Rights Watch, International Commission of Jurists, Rights & Accountability in Development & 48 other NGOs: Advancing the global business and human rights agenda: Follow-up to the work of the Special Representative of the Secretary-General [PDF], May 2011

For other commentaries on the Guiding Principles, click here (latest commentaries: ASEAN Intergovernmental Commission on Human Rights; CIVICUS; Foley Hoag; Intl. Bar Association; Intl. Council on Mining & Metals; Intl. Trade Union Confed.; companies Cerrejón, Coca-Cola, Flextronics, JSL)

What is emerging is a framework structured in pyramidal form.  At the top of the pyramid are the set of Guiding Principles, designed to express in the broadest general terms the overarching framework within which the obligations and rights of critical parties are specified.  These are then augmented by a set of more detailed glosses that add context and advice, principally to corporations, on the manner and form of compliance. These, in turn, are supplemented by a more detailed set of supporting documents that serve both as justification and as a set of potential best practice standards beyond the core of the principles expressed through the Guidelines. The resulting complex of documents spiral out from generality to specificity, from principal to practice, and from formal governance code to informal guide.

Human rights - 17-04-2009 - 10:49).

Professor Ruggie's presentation to the U.N. Human Rights Council is reproduced here and provides substantial and valuable insight into the process and final product:

Mr. President, Excellencies, Ladies and Gentlemen,
In this, my final presentation as Special Representative, I am pleased to report that multilateralism works. Human Rights Council Special Procedures can make a significant difference even where discord and contention once prevailed.
My mandate on business and human rights began in 2005 amidst divisive debates among stakeholders and little consensus among States. In contrast, just three years later this Council was unanimous in welcoming the “Protect, Respect and Remedy” Framework I had developed, and which stakeholder groups fully supported. It consists of the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation and adjudication; the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others, and to address adverse impacts that occur; and greater access for victims to effective remedy, both judicial and non-judicial.
The Framework addressed the “what” question: what do States and business enterprises need to do to ensure business respect for human rights. Today, at your request, you have before you a set of Guiding Principles that address the “how” question: how we move from concept to practical, positive results on the ground.
Permit me to summarize the main features of the Guiding Principles, describe the current state of play, and then offer some thoughts on possible next steps.
The Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and practices for States and businesses; integrating them within a single, logically coherent and comprehensive template; and identifying where the current regime falls short and how it should be improved. They do so under each of the Framework’s three pillars: Protect, Respect and Remedy.
The Guiding Principles indicate the general regulatory and policy means by which States should foster business enterprises’ respect for human rights throughout their operations; additional steps States should take where they own enterprises or provide them with substantial support and services; the role of States in assisting enterprises to assess and address the heightened risk of involvement in human rights abuses in conflict affected areas, but also taking stronger measures as the situation may demand; and the need for States to consider their human rights obligations when entering into international economic arrangements such as investment agreements, which can subject States to binding international arbitration.
For business enterprises, the Guiding Principles outline a human rights due diligence process. This entails assessing actual and potential human rights impacts; integrating and acting upon the findings; tracking the effectiveness of responses; and communicating how impacts are addressed. Human rights due diligence is meant to include dealings with third parties linked to the business enterprise.
The Guiding Principles also address ways to ensure greater access to effective remedy by those whose human rights are adversely affected by business enterprises. They underline the need to address legal and practical barriers that victims face in accessing judicial remedy; and they recommend steps for strengthening State- based non-judicial mechanisms, as well as for enterprises to create or cooperate in effective operational-level grievance mechanisms.
In short, the Guiding Principles provide comprehensive recommendations addressed to States as well as business enterprises, comprising prevention as well as redress, and they constitute a set of benchmarks for all stakeholders.
Mr. President,
This Council recognized the need for a coherent set of ground rules in the area of business and human rights. And now we are witnessing significant global convergence around a UN initiative.
Just last week, Ministers from the 42 countries that adhere to the OECD Guidelines for Multinational Enterprises adopted an update that for the first time includes a human rights chapter. The OECD Secretary-General stated: “The new human rights recommendations benefitted greatly from the work of the UN Special Representative on business and human rights and are in line with the Guiding Principles on Business and Human Rights.”
Earlier this month, the Board of Directors of the International Finance Corporation approved an update of the IFC’s Sustainability Framework, which includes performance standards for clients in managing their social and environmental risks. For the first time, the IFC specifically references the business responsibility to respect human rights. IFC policy affects not only its own investments and advisory services, but also forms the basis of the Equator Principles, a benchmark used by 72 other financial institutions worldwide.
Late last year, the International Organization of Standards adopted a new social responsibility standard, ISO26000, which includes a human rights chapter. Here, too, the mandate has been described as playing a decisive role in establishing the baseline responsibility of organizations to respect human rights, and introducing human rights due diligence as the appropriate means for organizations to know and show that they respect rights. The new
standard was adopted with the support of 94 percent of ISO national member bodies.
In addition, scores of individual companies, corporate law firms and institutional investors have taken the unusual step of issuing public statements of support for the Guiding Principles and encouraging the Council to endorse them. The many countries represented range from Brazil and Colombia to India, Malaysia and South Africa; from France and the United Kingdom to the Russian Federation and the United States of America.
The International Trade Union Confederation has written that the 2008 Framework “changed the entire discussion on human rights and business in a positive way. We see the Guiding Principles as the next important step at the international level.”That view is shared by the world’s largest international business associations, including the International Organization of Employers and International Chamber of Commerce. In a joint statement, they ask the Human Rights Council “to endorse the Guiding Principles as the basis for the ongoing and progressive implementation of the UN [Protect, Respect and Remedy] Framework.”
For their part, leading international human rights organizations have submitted a statement to the Council in which they “recognize the progress” the mandate has achieved; and many are actively using the Framework and Guiding Principles in their own reporting and advocacy. Finally, several Human Rights Council Special Procedures and other UN entities have drawn on both the substance and methodology of this mandate in conducting their own work.
Mr. President,
On the challenging journey that started in 2005, and which now nears a destination I could not then imagine, I have had many partners and been welcomed in many places. We would not be where we are today without their generosity of spirit and their commitment.
A special thanks goes to the mandate’s co-sponsors— Argentina, India, Nigeria, Norway and the Russian Federation—for their steadfast leadership and support.
With help from all stakeholder groups, the mandate convened 47 international consultations, on every continent. Members of my team and I made more than 20 site visits to business operations and communities, learning from the diverse experiences of affected individuals and groups, local leaders, civil society and company representatives. Expert volunteers provided analyses and advice from all regions. More than two dozen law firms from around the world conducted pro bono research for the mandate. Several companies undertook extensive pilot projects involving workers and communities to inform the mandate’s recommendations on grievance mechanisms; others tested the workability of the human rights due diligence requirements. Government officials in capitals hosted bilateral visits. Finally, the draft Guiding Principles I released last November were thoroughly vetted by governments in an informal Council consultation and in written submissions, while an online consultation attracted comments and suggestions from individuals and institutions in more than 120 countries.
In sum, the process of generating these Guiding Principles has been intensely consultative and rigorously evidence-based, not driven by doctrinal preferences. That is how we got here. Now the attention shifts to the next phase.
The matter of how best to follow up on this mandate is in your good hands. But before I conclude, may I be permitted to make three observations based on lessons learned along the way.
First, capacity building should be a central component of any follow-up activity. Currently there is no dedicated mechanism in the United Nations for providing systematic advice and on-the-ground assistance on business and human rights. Such an effort is needed,
and it should focus in particular on the particular challenges faced by developing countries and small and medium-sized enterprises.
Second, any follow-up activity should retain a meaningful multi-stakeholder dimension. The magnitude and complexity of the challenge requires it. In the case of my mandate, multi-stakeholder engagement also provided enormous benefits in mutual learning and in the broad range of ownership and support the Guiding Principles now enjoy. The same will be true going forward.
Third, some are advocating that the next phase should include a binding international legal instrument. I agree that the law must continue to evolve and keep pace with—indeed to guide—socio- economic changes and normative aspirations. Nevertheless, I fear that any attempt to squeeze all elements of business and human rights into an all-encompassing international legal instrument would quickly take us back to the contentious pre-2005 days, and thus be counterproductive.
However, a multilateral approach to providing greater legal clarification may be warranted in response to the diverging national interpretations of the applicability to business enterprises of international standards prohibiting ‘gross’ human rights abuses, possibly amounting to the level of international crimes. Such abuses tend to occur most frequently in areas where the human rights regime cannot be expected to function as intended, such as armed conflict or other situations of heightened risk. Diverging national interpretations can only lead to increasing uncertainty for victims and businesses alike, while posing difficult dilemmas for States themselves, including the potential for jurisdictional conflicts.
Mr. President, Excellencies, Ladies and Gentlemen,
I am under no illusion that the conclusion of my mandate will bring all business and human rights challenges to an end. But Council endorsement of the Guiding Principles will mark the end of
the beginning. Therefore, I very much hope that the Council seizes the opportunity provided by the remarkable consensus and convergence of approaches that has been achieved, endorse the Guiding Principles, and then build on this solid foundation, step by step, in the years ahead.
Human rights are at stake—and so, too, is the social sustainability of enterprises and markets as we know them.
It has been an honor to serve you—and this critically important cause—for the past six years.
Thank you.
John G. Ruggie is Berthold Beitz Professor in Human Rights and International Affairs at Harvard University’s John F. Kennedy School of Government and Affiliated Professor in International Legal Studies at Harvard Law School. A former Assistant Secretary- General of the United Nations, he serves as Special Representative of the Secretary- General for Business & Human Rights.

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