Friday, September 02, 2011

An Analysis of the U.N. Protect, Respect and Remedy Framework Guiding Principles, Part IV--Section By Section Analysis, From Draft to Final Principles: Overall Structure and Capstone Principles

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 and human rights, John Ruggie, and his team. 

 (From Guiding Principles for Business and Human Rights' published, CAFOD ("Miners in DRC look for gold. Will Professor Ruggie's 'Guiding Principles' benefit them? "))

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 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 will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").

 In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010, 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:

(From Shared Responsibility for Implementing the UN Guiding Principles,, June 24, 2011 ("t is true that the Guiding Principles do not carry the same weight as a Treaty or a Convention, which are legally binding instruments. But we do know that at a minimum, the bar has been set. Ambiguity has been erased and with the GPs in place, states can be pursued to ensure laws and protective measures to respect human rights are in place (or chased for falling short on their obligations). Shareholders, Board Directors and company employees will be expected to know what it means to respect human rights and to become rights-informed. "))

This posting continues a section by section consideration of the final version of the Guiding Principles, focusing on the GP capstone 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 and Development Law Journal, 2011 and can be accessed here.

I have suggested that a substantial amount of principled pragmatism stands between the “Protect, Respect, and Remedy” framework and the final version of the Guiding Principles.  The Guiding Principles, as finally endorsed, represents a substantial aggregation of compromises and choices made to avoid the fate of the Norms in 2005.  The Guiding Principles do not fully implement a broad reading of the “protect, Respect and Remedy” framework, but does it preserve the essence of that framework?  The answer emerges from a consideration of the movement from draft to final version of the GP; and what emerges is a qualified yes.  The GP preserves the essence of the “Protect, Respect, and Remedy” framework but at a price—shifting the center of gravity to the state duty to protect and recasting remedies as a consequential aspect of the state duty to protect.  In the process, both the corporate responsibility to respect and the remedial pillar become more peripheral aspects.  And thus the qualification: what remains preserves the structure of the “Protect, Respect and Remedy” framework.  It leaves an opening, smaller than that suggested by the framework, but clear enough, from out of which corporations and other non-state stakeholders might rework the GP to more closely mirror the framework.  This section considers the provisions of the General Principles in the form endorsed by the UN Human Rights Council in detail.  Subsection A examines the definitions created under the DP and abandoned in the GP along with the capstone principles that inform interpretation of the GP as a whole. Subpart B then considers the GP Principles elaborating the state duty to protect human rights.  Subpart C analyzes the GP touching on the corporate responsibility to respect human rights and subpart D considers the GP touching on the remedial obligations of states and business entities.      

A. The Devil is in the Detail—Section By Section Analysis—From Draft to Final Principles: Overall Structure and Capstone Principles. 

1.  Overall Structure of the GP.  The DP originally divided the Principles into two parts.  The twenty-nine Principles themselves were placed in Part A; Part B provided a very short section of definitions.   Part A itself was 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,”[1] “The Corporate Responsibility to Respect Human Rights,”[2] and “Access to Remedy.”[3] The working language of the GP, at least in draft form, was English.  That has caused some concern among none English speakers,[4] 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.[5]
   The GP abandoned this structure in favor of a simpler one.  It eliminates the Definition section and increases the number of Principles to thirty-one.  The introduction is renamed “General Principles.”  But appearing to borrow from the toolbox of the German Pandectists and German legal science,[6] it continues to serve, now more explicitly, as the general principles of the GP—that is, these now provide the interpretive framework for the thirty-one principles that followThe remainder is devoted to each of the pillars of the framework:  “The State Duty to Protect Human Rights,”[7] “The Corporate Responsibility to Respect Human Rights,”[8] and “Access to Remedy.”[9]  Each is divided between foundational and organization principles.  The idea appears to be to create an internally cohesive interpretive structure within the Principles.  The Principles of the broadest general applicability are contained in the opening section, “General Principles.”  The Operational Principles in each section are to be interpreted first in light of these “General Principles” and then, more specifically, in light of the “Foundational Principles” of each section.  The Foundational Principles of each section, in turn, are to be interpreted in light of the “General Principles.” This system, familiar to civil lawyers in the interpretation of unified codes, will likely be less comprehensible to lawyers and policymakers from Common Law states.

2.  Definitions. The DP provided definitions of only six terms.[10]  The DP attempted to avoid highly technical and precise definitional issues.  This suggests a fundamentally different approach from prior efforts.[11]  Indeed, the definitions tended 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 DP stressed that the key term, “corporate” was “used in the non-technical sense, interchangeably with ‘business enterprises’, regardless of their form.”[12]  “Business Enterprise” was 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.”[13]  This has been criticized on a number of grounds.[14] 

Likewise, “human rights” was 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.”[15]  On the other hand, “internationally recognized human rights” was more specifically defined.[16]

The last set of definitions concerned 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.”[17]  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 redress of injustice “may be based on law, explicit or implicit promises, customary practice, or general notions of fairness of aggrieved communities.”[18]  The broadness is necessary because the governance regime of the DP touched 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.[19]

The GP eliminated the definition section.  This is perhaps a result of the criticisms received that the terms chosen to defined were both over and under inclusive.  Moreover, substantial objections were made to some of the definitions themselves.  Those criticisms reflected unease both about the definitions themselves, and their interpretive consequences, and fundamental differences in the knowledge bases and perspectives of laws and non-lawyer policymakers.  By eliminating the definitions, the GP now provide a larger breadth of possible interpretation of key terms in the GP. On the other hand, broader interpretive possibility also permits both deviation among those subject to the principles and implementation incoherence.  This is particularly the case with respect to the definition of applicable human rights norms which now find themselves described in GP 12 but are nowhere defined for purposes of the state duty to protect human rights.  The response, of course, is found in GP 1--that states have no obligation to protect human rights other than those to which they have bound themselves as a matter of law--but that is disingenuous, given the important policy role played by key human rights instruments that are technically non-binding. 

3.  Introduction (DP) and General Principles (GP).  In the draft Principles, the introduction provided 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 to the draft principles described the ordering relationships among the three systems that constitute the governance regime of human rights applied to business.  It suggests the autonomy of the law-state system and the social-norm system,[20] but also suggested an unequal relationship between them.  The GP is founded on the recognition of the “States’ primary role in promoting and protecting all human rights and fundamental freedoms, including with regard to the operations of business enterprises.[21]  It also specified that the principles be interpreted in light of the fundamental dual “role of business enterprises as specialized organs of society performing specialized functions.”[22] In this dual role business enterprises are understood to be required “to comply with all applicable laws and meet the societal expectation to not infringe on the human rights of others.”[23] The 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.[24]  Lastly, it suggested 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.”[25]  With respect to states, that is with respect to the state duty to protect human rights, then, the GP was 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.[26]  

The interpretive principles described in the Introduction was to provide the roadmap for moving from theory to practice; 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 divided into twenty-nine principles in three sections, the GP are to be “understood as a coherent whole.”[27]  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.”[28] 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.[29] The second introduces an effects-based interpretive principle: the GP should be read “to support the social sustainability of business enterprises and markets.”[30]  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.” [31] 

The final version keeps the form and general objectives of the DP’s Introduction, but in their final form were substantially reoriented to emphasize the primacy of the state role in human rights and a substantial reduction on the scope of that obligation.  Moreover it now recasts the corporate social norm systems as autonomous bases of governance norms in a more marginal role.  First, the state no longer has a role in promoting and respecting all human rights; instead it role is reduced to obligation.  Specifically, the Guiding Principles now recognize merely the “State’s obligations to respect, protect and fulfill human rights and fundamental freedoms.[32]   The political scientist or sociologist might say that the formal changes in language do not necessarily affect the scope and character of the state’s obligations in effect.  The lawyer might suggest that the changes indicate a positive intention to reduce the scope of state obligation—not all human rights and fundamental freedoms, but only “existing obligations to respect, protect and fulfill” human rights.

Second, the obligations of business enterprises were changed in one quite significant respect—no longer required to “meet the societal expectations not to infringe on the human rights of others,”[33] such enterprises are required now only to “comply with all applicable law.”[34]   The GP, then, effectively seeks to eliminate reference to the great innovative aspect of the “Protect, Respect, and Remedy” framework—the autonomous obligations of business organizations to comply with global social norms in the business.[35]  The tag reference to the additional obligation to “respect human rights” is likely meant to preserve a wisp of the polycentric principle in the “Protect, Respect and Remedy” framework.  But that is an interpretive stretch at best.  Moreover, the GP retain a potentially important lacuna—the omission of non-state actors that are organized but not in business.  Still, with the definition section omitted, it might be possible to extend the definition of business enterprise to include businesses that are not profit making organizations, like Amnesty International to the extent that they operate like businesses, hiring employees, owning property and engaging in transactions.

As thus reduced in scope, the General Principles of the GP articulate the assumption that had been written into the Special Representative’s Reports since 2008—that the GP apply to all states and all business enterprises.  The Principles of coherence and sustainability remain substantially unchanged in the final version of the GP.  However, in line with the substantial change to the description of the fundamental character of the State duty to protect human rights, the final version substantially extends the limitations on the effects of the GP, both at the time of enactment and, importantly, as an ongoing enterprise.  The GP broadens the DP’s Principle that the GP would not be read to limit or undermine the legal obligations of states under international law and substitutes a much broader limitation:  “Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights.”[36]  The GP, then, must be read within the nexus of state obligation in the context in which human rights activity occurs.  It may not serve as a basis for moving customary practice along.  It becomes invisible.[37]

The interpretive stage is now set for the thirty-one principles to follow twenty-nine in the DP).  First the GP are to be read in light of the existing obligations of states as they might way from state to state.  Second, the subsidiary position of business enterprises within states is affirmed as “specialized organs of society performing specialized functions”[38] whose principal obligation is derivative.  The GP are to be interpreted through the fundamental principle that business enterprises must obey the law of the state that apply.  Third, rights and obligations are to be matched with “appropriate and effective” remedies, but oddly, to be triggered “when breached.”[39] Fourth, the GP apply to all states and business enterprises.  Fifth, the interpretation of the GP are to be guided by the overarching principles of coherence, tangibility, and sustainability.  Sixth, the GP cannot be read either as a the creation of new international law, nor, potentially, as the place from which such international law might arise, nor may it limit or undermine the legal obligations of states, even where these obligations are incompatible with human rights obligations.  And Seventh, the GP impose a principle of non-discrimination, not to be applied for the benefit of states but rather for the benefit of individuals.        

[1] DP Principles 1-11.
[2] DP Principles 12-22.
[3] DP Principles 23-29.
[4] “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 (Comment of R. Grabosch, Jan. 27, 2011).
[5] This 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 (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.
[6] See, e.g., Konrad Zweigert & Hein Kotz, Introduction To Comparative Law, 105, 144-56 (Tony Weir trans., 3d rev. ed. 1998). and generally Mathias Reimann, Nineteenth-Century German Legal Science, Boston College Law Review 31 ( 1990),
[7] GP Principles 1-10.  Principles 1-2 are grouped under the subsection “Foundational Principles”; Principles 3-10  are grouped under the subsection “Operational Principles.”
[8] GP Principles 11-24.  Like the Principles describing the State duty to protect, the principles covering the corporate responsibility are grouped under the subsections “Foundational Principles” (Principles 11-15) and “Operational Principles” (Principles 16-24).
[9] GP Principles 24-31.  Like the Principles describing the State duty to protect and the corporate responsibility to respect, the principles covering the remedial obligation are grouped under the subsections “Foundational Principles” (Principle 25) and “Operational Principles” (Principles 26-31).
[10] 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.
[11] 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).
[12] GP Definitions.
[13] GP Definitions.
[14] Thus, 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 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).  
[15] GOP Definitions.
[16] 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.
[17] GP Definitions.
[18]  GP Definitions.
[19] “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.

[20] “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 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 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, Larry Catá Backer, Governance Without Government:  An Overview, in Beyond Territoriality:  Transnational Legal Authority In An Age Of Globalization (Günther Handl and Joachim Zekoll Editors, Leiden, Netherlands & Boston, MA: Brill Academic Publishers, forthcoming 2011); Gunther Teubner, The Corporate Codes of Multinationals: Company Constitutions Beyond Corporate Governance and Co-Determination,” in Conflict of Laws and Laws of Conflict in Europe and beyond: Patterns of Supranational and Transnational Juridification (R. Nickel, ed., Oxford: Hart Publishing, 2009). But see Peter Goodrich Anti-Teubner: Autopoiesis, Paradox, and the Theory of Law, 13(2) Social Epistemology 197 – 214 (1999).
[21] DP, Introduction (a).
[22] Id., at (b)
[23] Id.
[24] The Introduction refers to the “reality that rights and obligations have little meaning unless they are matched to appropriate and effective remedies when breached.”  DP, Introduction.
[25] DP Introduction
[26] 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 DP 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  (“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:
[27] DP Introduction.
[28] DP Introduction.
[29] See generally, essays in Gunther Teubner (ed.), Autopoietic law: a new approach to law and society (Berlin: Walter de Gruyter, 1988).  
[30] DP Introduction.
[31] DP Introduction.
[32] GP, General Principles.
[33] DP Introduction.
[34] GP General Principles.
[35] See, e.g., 2008 Report at P. 49.
[36] GP General Principles.
[37] The “no creation” principle can be understood narrowly as stating the obvious—the GP are not law binding on states, but it can be understood as soft law with a potential effect on behavior leading to changes in international conventional or customary law.  On the other hand, it can be read broadly to suggest that actions under the GP cannot be applied to effectively create international law or custom. 
[38] GP, General Principles (b).  Here the original broad understanding could be easily turned on its head—now as specialized social organs with specialized functions, the General Principles can as easily lend it self to affirm the subordinate place of business enterprises within states as it can lend itself to the affirmation of business enterprises as social organs that exist within and outside of states, a position suggested in the SRSG’s 2008 and 2008 Reports.
[39] GP, General Principles (c).  It is not clear what this means. It can as easily suggest ex post as ex ante triggers for the remedial right.  If the former, that would substantially decrease the scope of the Principles in framing preventative measures.  With respect to the state duty, of course, that might be appropriate; with respect to the corporate obligation, that would seem at odds with the focus of human rights due diligence.  On the other hand, this turn of phrase might also suggest a separation between the remedial function and the preventative one.

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