 |
| Pix credit here |
I have been working on the production of a comprehensive commentary of the United Nations Guiding Principles for Business and Human Rights. This is a humbling task. It follows the production of both an official commentary, written in tandem with the UNGP itself, and a collective commentary of the UNGP undertaken by some of the most distinguished students of other fields of human rights, business, and its related fields of academic study ( The UN Guiding Principles on Business and Human Rights: A Commentary (Barnali Choudhury (ed); Edward Elgar, 2023).
I am at a point where I can start vetting portions of the draft. I hope to share those discussion drafts with a wider audience in hopes of getting feedback. In these posts I provide a short summary of the draft chapter and a link t access a 'pdf' version. All draft chapters may be found on my Coalition for Peace & Ethics Website website at UNGP Commentary Page HERE.
Part I (On the Making of the UNGP), organized in five chapters, introduced the reader to the background, context, and sources that contributed to the drafting and eventual endorsement of the UNGP. Parts II through V then consider in detail the text and interpretation of the substantive provisions of the UNGP. Part II considered the UNGP's General Principles; Part III examines the State duty to protect human rights (UNGP Principles 1-10); Part IV then addresses commentary to the corporate responsibility to respect human rights (UNGP Principles 11-24); and Part V considers the remedial principles (UNGP Principles 25-31). |
| Pix credit here |
UNGP Principles 11-15 set out the fundamental conceptual basis for elaborating a corporate responsibility to respect human rights beyond the legalities and political preferences of the State and deeply embedded in markets. The Foundational principles are set out logically to create a deeply self-referencing normative structuring of corporate responsibility within markets, the contents of which, of course, may be affected by States, singly, in groups, or through international instruments, as they projected public regulatory power onto the private law arrangements beyond their institutions.
UNGP Principle 11 sets put the “global standard of expected conduct for all business enterprises wherever they operate.” The global standard is simple and straightforward: “Business enterprises should respect human rights.” Everything that follows in UNGP Principles 12.-15 is an elaboration of that ordering premise. Several sub-premises apply to the entirety of the Pillar 2 foundational principles. The first is that these principles provide expectations rather than mandatory obligations. The State may produce mandatory obligations through its political-institutional public authority—at least to the ends of its jurisdiction. The enterprise operates in markets both within and beyond the State. The foundation of those foundation concepts in expectation represents the deep embedding of the normative framework of principled pragmatism in the heart of the UNGP Pillar 2 structures. Principled pragmatism starts with current practice, adds to it the nudging effects of the UNGP normative framework the practice of which produces a dialectic over repeated application that is meant to move expectation closer to realization by internalizing norms through iterative practice. The model is not for the impatient.
 |
| Pix credit here |
The meaning of this meaning of the corporate responsibility to respect human rights is then elaborated as a conceptual matter in UNGP Principles 12-15. UNGP Principle 12 identifies the international law and norms with respect to which the corporate responsibility arises. At its broadest to is limited to “internationally recognized human rights—a term that is itself elastic and subject to a variety of interpretations. UNGP Principle 12 also provides a minimum, the International Bill of Human Rights and the principles concerning human rights of the ILO’s Declaration on Fundamental Principles and the Right to Work. The Principle also emphasized detachment—a detachment from the legal or normative architecture of the responsibility to respect and the boundaries of a State’s duty to protect human rights. These two may overlap but neither controls the other with respect to scope or interpretation.
UNGP Principle 13 attaches the active principle of respect to the normative elaboration of UNGP Principle 12. UNGP Principle 13 divides the corporate responsibility into two parts. The first applies a “causing or contributing” standard to adverse human rights impacts. These ought to be avoided, and if avoidance is not possible, then addressed. Critical here is the way in which principles of principled pragmatism applies to the key terms—“causing and contributing”, “adverse impact” “through their own activities”, “avoid” and “address.” The focus first is on prevention; and if prevention is not possible then mitigation and then remediation. The second applies to adverse impacts “directly linked to their operations, products or services” by their “business relationships.” With respect to these, the expectation is to “seek to prevent or mitigate” any consequential adverse impacts, without regard to whether or not the enterprise contributed to those impacts. Within a production chain enterprises are responsible for the conduct of all others without regard to their contribution to the adverse impacts that must be addressed.
UNGP Principle 14 adds two critical elements to the conceptual framework of the corporate responsibility. The first introduces the notion that factors of scale and complexity may shape the “means through which enterprises meet” their Pillar 2 responsibilities. That introduces the notion of variability in the operationalization of Pillar 2 human rights due diligence—though not of the expectation of the responsibility to respect itself. Objectives remain constant; means vary from enterprise to enterprise. That produces a distinctive element in enterprise compliance that moves away from the one size fits all rigidity of law but is more suitable to the sensibilities and practices of the market (again principled pragmatism in system design). Specific factors that enter into the analysis are also identified: size, sector, operational context, and ownership and structure. Each of these is left undefined and thus amenable to development. The second introduces the concept of severity as a factor that shapes and limits the flexibility of adopting context specific means toward the realization of the responsibility to respect expectation. Severity, in turn “will be judged by their scale, scope and irremediable character.” Putting the two together produces the analytical matrix within which an enterprise can develop institutional structures for realizing the means of fulfilling their responsibility to respect, while severity adds temporal and transaction oriented limitation. Thus structures must be flexible enough to meet both the character of the enterprise and to respond to changing levels of severity of impact form transaction to transaction and over time.
Lastly UNGP Principle 15 serves as a bridge between the conceptual construction of the UNGP Pillar 2 responsibility to respect and the more precisely drawn operational principles built around human rights due diligence. The bridging is undertaken through the development of a conceptual basis for operationalization. That basis includes three elements. The first is based on the production of a useable enterprise policy commitment in a form that furthers the task of fulfillment. This will be elaborated in UNGP Principle 16. The second focuses on the essential role of human rights due diligence as the primary mechanism for realizing the Pillar 2 foundational principles in context. These will be elaborated in UNGP Principles 17-21. And the third focuses on the elaboration of a suitable remediation framework. These will be elaborated in UNGP Principles 22-24. Holding these together and emphasizing the important of the analytics framework of factor balancing in UNGP Principle 14 is the overarching referent against which these policies and processes are to be elaborated: an “appropriate to size and circumstances” standard. The foundational principles thus appear to make clear enough that while the UNGP describes a unitary normative standard, it “activates” that normative standard (e.g. addressing adverse human rights impacts measured against internationally recognized human rights), as well as a single framework for its fulfillment (human rights due diligence), it also provides substantial flexibility, which can differ from enterprise to enterprise, with respect to the means adopted to fulfill these expectations, and that even those means may be required to vary depending on the severity of individual cases of adverse impact
The Chapter 12 discussion draft may be accessed directly HERE (where revisions earlier chapters may also be accessed). The text of the draft of Chapter 12 as of the time of this posting also follows below along with its table of contents.
 |
| Pix credit here |
12
The Corporate Responsibility to Respect Human Rights: Foundational Principles (UNGP Principles ¶¶ 11-15)
12.1 Introduction
12.2 UNGP Principle 11
12.2.1. UNGP Principle 11: Text
12.2.2.UNGP Principle 11: Commentary on Text
12.2.3 UNGP Principle 11: Official Commentary
12.2.4 UNGP Principle 11: Authoritative Interpretation/Commentary
12.2.4.1 The 2010 Draft
12.2.4.2 The Travaux Préparatoires and the Pre-Mandate Text
12.2.5 Other Glosses
12.3 UNGP Principle 12
12.3.1. UNGP Principle 2: Text
12.3.2.UNGP Principle 2: Commentary on Text
12.3.3 UNGP Principle 2: Official Commentary
12.3.4 UNGP Principle 2: Authoritative Interpretation/Commentary
12.3.4.1 The 2010 Draft
12.3.4.2 The Travaux Préparatoires and the Pre-Mandate Text
12.3.5 Other Glosses
12.4 UNGP Principle 13
12.4.1. UNGP Principle 11: Text
12.4.2.UNGP Principle 11: Commentary on Text
12.4.3 UNGP Principle 11: Official Commentary
12.4.4 UNGP Principle 11: Authoritative Interpretation/Commentary
12.4.4.1 The 2010 Draft
12.4.4.2 The Travaux Préparatoires and the Pre-Mandate Text
12.4.5 Other Glosses
12.5 UNGP Principle 14
12.5.1. UNGP Principle 11: Text
12.5.2.UNGP Principle 11: Commentary on Text
12.5.3 UNGP Principle 11: Official Commentary
12.5.4 UNGP Principle 11: Authoritative Interpretation/Commentary
12.5.4.1 The 2010 Draft
12.5.4.2 The Travaux Préparatoires and the Pre-Mandate Text
12.5.5 Other Glosses
12.6 UNGP Principle 15
12.6.1. UNGP Principle 11: Text
12.6.2.UNGP Principle 11: Commentary on Text
12.6.3 UNGP Principle 11: Official Commentary
12.6.4 UNGP Principle 11: Authoritative Interpretation/Commentary
12.6.4.1 The 2010 Draft
12.6.4.2 The Travaux Préparatoires and the Pre-Mandate Text
12.6.5 Other Glosses
12.7 Conclusion
___________________
12.1 Introduction
It bears repeating that the UNGP are divided among one set of “General Principles,” which provides the overarching principles and objectives of the UNGP,[1] and the thirty one numbered substantive principles that follow. The substantive principles are themselves divided into three co-equal categories that reflect the categorical divisions in the Protect-Respect-Remedy Framework introduced in the 2008 SRSG Report 8/5 (Protect, Respect, Remedy)[2] and the premises that they were elaborated.[3] That Three Pillar Framework, and the SRSG’s 2008 Report were the basis on which the SRSG’s mandate was extended,[4] and the UNGP structure was organized. The “State Duty to Protect Human Rights” includes UNGP Principles 1-10;[5] the “Corporate Responsibility to Respect Human Rights” includes UNGP Principles 11-24;[6] and “Access to Remedy” includes UNGP Principles 25-31.[7]
The State duty to protect human rights focuses on the nature of State obligation with respect to the core objectives of the UNGP to prevent, mitigate, and remedy adverse human rights impacts. Its ten principles consists of a set of “Foundational Principles” (UNGP Principles 1-2), and four sets of functionally differentiated operational principles. These include “General State Regulatory and Policy Functions,” (UNGP Principle 3);[8] “The State-Business Nexus;” (UNGP Principles 4-6);[9] “Supporting Respect for Human Rights in Conflict-Affected Areas,” (UNGP Principle 7);[10] and “Ensuring Policy Coherence,” (UNGP Principles 8-10).[11] Its conceptual genesis was developed in two of the SRSG’s 2007 Reports.[12]
This Chapter is the first of several that considers the foundational principles to the UNGP’s Corporate responsibility to respect human rights. The UNGP Corporate Responsibility principles (Principles 11-24) are divided into a set of “Foundational Principles (UNGP 11-15) and four sets of functionally differentiated “Operational Principles” (UNGP Principles 16-24). These Operational Principles include “Policy Commitment” (UNGP Principle n16); “Human Rights Due Diligence” (UNGP Principles 17-21); “Remediation (UNGP Principle 22); and “Issues of Context” (UNGP Principles 23-24).
7.2 UNGP Principle 1
12.2.1. UNGP Principle 11: Text
Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
* * *
12.2.2.UNGP Principle 11: Commentary on Text
The simplicity of the text of UNGP Principle 11 belies its complexity. That complexity, in turn, serves both as a gateway to the corporate responsibility-based duties that follow, and produces ambiguity, or at least spaces where substantially different but plausible readings may be supported. The corporate duty to respect human rights also occupies a central space within the UNGP framework, connecting, in large respect, the State duty of Pillar 1 as the remedial obligation of Pillar 3. Like the State duty to protect, the corporate responsibility to respect is built largely on the articulation of expectations; those expectations, in turn, are meant to the driven by principles of principled pragmatism toward fulfillment to the core objective of the UNGP—to avoid adverse human rights impacts related to economic activity.[13]
Like UNGP Principle 1 does when setting out the essence of the State duty to protect human rights,[14] UNGP Principle 11 consists of two sentences. The first describes the corporate responsibility; the second seeks to define the corporate responsibility and then describe the way in which that duty is to be undertaken.
The exposition of the corporate responsibility consists of several key terms. Thy consist of the following: (1) business enterprises (2) should (3) respect (4) human rights. It is most usefully read against the State duty to protect human rights with which it differs in substantial respect.[15]
UNGP Principle 11 is addressed to business enterprises. It is not addressed to any entity other than business enterprises. The UNGP “General Principles” define business enterprises as “specialized organs of society performing specialized functions.”[16] They constitute only one subset of the much broader range of actors against the actions of which the State duty to protect human rights runs.[17] With respect to other organs of social collectives—including most importantly those intimately related to the business of human rights accountability (non-governmental organizations, public and private)—the State duty remains undiminished. With respect to those entities, the Second Pillar Principles do not necessarily apply. Nonetheless, noting in the UNGP prevents the State (through the use of its authority respecting the deployment of smart mixes of measures),[18] to extend all or some of the principles in the UNGP 2nd Pillar to these entities. The determination is almost entirely political, though one can only wonder why these principles ought not to apply to non-governmental entities and other non-profit enterprises. There is much space within which their potentially adverse human rights impacts converge—labor relations, property ownership, sustainable organizational practices, tax avoidance, human trafficking, racism, and the like.
The definition of a business enterprise is left to the imagination—and the dictionary.[19] It is useful, however, to parse the limits of its meaning (within reason) from the etymology of the term—a composite between enterprise from the Old French of the same spelling, referring to an undertaking,[20] plus the modifier (in English only) of “business,” from the Old English bisignes (Northumbrian), referencing care, anxiety, or occupation, and from the 18th century enlarged to include the sense of "trade, commercial engagements, mercantile pursuits collectively."[21] The Spanish language version of the UNGP carry over that composite meaning (and its narrowing of the breadth of the 2nd Pillar) by using the word “empresas”—referencing collectives of persons or capital organized to engage in commercial activities. The French version, “enterprise” is potentially broader in scope. It is a term that includes autonomous commercial entities, but also any project with a precise objective.[22] The point is not to suggest a difficulty with the term it has been clear since the start of this project in the 1970s that the core focus of this enterprise was on the institutionalized apparatus of commercial activity. Rather it is to underscore that while the commercial or business enterprise occupies the center of the meaning of the term, it by no means monopolizes it.[23] That becomes clearer when the core mandatory objective of the State duty to protect human rights abuses by third partes, including business enterprises (UNGP Principle 1) against the business enterprise focus of the 2nd Pillar. There is nothing in the UNGP that suggest that it ought not to be applied to enterprises that may not be commercial in nature, but that may be in business of some sort—defined as an occupation or a set of collective objectives. At its limit, it is applicable to the business of non-profit, eleemosynary, political, religious, or other enterprises engaged in business—in more ancient terms, engaged in an office or occupation.
It bears mention, and strong consideration, that the term “enterprise refers not just to an institution organized to pursue economic activity, but it also refers to the system of economic activity itself. Thus a business enterprise may serve as a reference to an entity—the corporation or other legally constituted institutional vessel through which business is undertaken. This is the core of the meaning of the term reinforced by its use in the UNGP General Principles discussed above. Yet the term “enterprise” itself is broader than its sense as the entity through which business is undertaken. More generally, it also refers to the activity itself, irrespective of the institutional apparatus through which it is undertaken. For example, it is understood in that sense when one references the provision of the transport of goods as a difficult enterprise. The reference is to the activity rather than to the institutional forms through which it is undertaken. It is in this second sense that the application of the UNGP’s second Pillar responsibility to respect might be far broader than as a mere analogue to the institutionally fixated analogue to the UNGP’s 1st Pillar fixation on States. That fixation in the 1st Pillar is of course necessary. The State system itself on or through which it is attached is fundamentally a system built around States. Markets—economic activity or the deployment of productive forces more generally—which is the essence of the 2nd Pillar is NOT built around institutions so much as it is organized around the activities undertaken in any institutional form. The rest are barnacles attached by historical, past scandals and contemporary politics and political culture, grounded in the now orthodox narratives around the “multi-“ or “trans-“ national enterprise and its naughty practices.[24] Viewed in this way, UNGP Principle 11 applies equally to the enterprise of economic activity, however undertaken, as well as to the entities through which it is undertaken.
UNGP Principle 11 sets forth an expectation or a recommendation rather than a mandatory respect obligation to respect human rights. States have a mandatory obligation to protect human rights (UNGP Principle 1). That is substantial the only principle written in the form of a mandatory obligation for States. The minimum scope of that mandatory obligation, so one surmises from the UNGP General Principles, extends no farther than the breadth of a State’s international binding legal obligations. The interpretation and application of those clusters of State binding international obligation may change with the times, and the predilections of those bodies constituted for the purpose of managing interpretation and generating additional human rights instruments with a mandatory legal character.[25] Yet the quantum of legal obligation does not change, however much some collectives might wish to make it so. Beyond that States are free to augment the breadth of the scope of their human rights obligations and to manage its mandatory character.
Beyond that, the UNGP speaks to expectation. The strength of that expectation is a function of the operation of principled,[26] and politics. While a State is legally compelled to protect human rights as a function of its international legal obligations, business enterprises are not obliged to respect human rights in the same way. Expectation is written into the foundations of UNGP Principle 11 by the use of the word “should” rather than “shall” or “must” in its text. Business enterprises should respect human rights. The term “should” is widely used throughout the UNGP.[27] Traditionally shall was the term associated with legal obligation; should was a subjunctive application (e.g. “ought to”) of moral or conditional obligation, sometimes used interchangeably with shall in an informal setting, but not in the context of legal drafting of text. In modern usage, at least in some jurisdictions, it has been suggested for clarity that the word “must” be substituted for “shall.”[28] U.S. federal agencies, for example the U.S. Justice Department, have on that basis offered guidance that suggests the use of “’must’ for an obligation, ‘must not’ for a prohibition; ‘may’ for a discretionary action, and ‘should’ for a recommendation.”[29]
This conclusion is in accord with the nature of the responsibility to respect as a fundamental concept. It is not, in its nature, a legal obligation. Rather it is the expression of market expectations, and better still social expectations. These social expectations are mandatory in the sense that the failure to meet expectations may produce consequences that are adverse to those who fail to meet expectations But all of this is undertaken in private rather than public venues. The closes they come to public is when these expectations are written into contract. In that case, expectations becomes the private law between contracting parties. States may, of course, transform these social expectations into legal and mandatory obligations—that is the essence of the possibilities contemplated within the scope of acceptable means for States to meet their own expectations to protect human rights.[30] One deals here with recommendations and expectations of the sort that may be consequential in social relations, but absent their legalization by States, are not legal obligations and mandatory in that sense.
UNGP Principle 11 speaks to respect not to duty. Respect is a peculiar word, though one perhaps suitable to a standard the expectations around which are not grounded in law except indirectly. Its etymology reminds one of the origins of the term in the Latin word respicere—to regard, consider or look back on.[31] That is, the notion of respect arises from relationships of compliance of the international legal obligations of States by enterprises not directly bound by them, but with respect to which the international legal obligations have been converted into usages or expectations in the course of business or commercial activities—that is one must "treat with deferential esteem, regard with some degree of reverence”[32] human rights abuses avoiding custom and behavior norms rather than comply with law.
Human Rights are the object of respect under UNGP Principle 1I. UNGP Principle 11 declares an expectation that business enterprises respect human rights. That object of respect—human rights-- is undefined in UNGP Principle 11. The UNGP General Principles remind us that, unless States broaden the scope of their mandatory obligations, States are bound only by the international legal obligations to which they have adopted or to which they are subject.[33] The General Principles do limit its application to human rights. But it is not clear where one draws the line—at its broadest virtually every instrument of international law will have direct or indirect impact on or connection with human rights. In the absence of legal obligation, which are clear, the minimum extent of the provisions that give rise to a respect expectation are d they are identified in UNGP Principle ¶ 12.[34] It is important to note that unlike UNGP Principle 1 in which the duty to protect is triggered by the abuse of human rights, in UNGP Principle 11, the trigger for respect is human rights itself. The specification of the list of core human rights that ought to be the object of corporate respect is a distillation of the general principle for determining relevant human rights that are specified in the second sentence of UNGP Principle 11, which offers an explanation and definition of the responsibility to respect.
The second sentence of UNGP Principle 11 (“This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”) introduces two important concepts. The first is the alignment between the concept of respect and the act of infringing the human rights of others. The second is the functional relationship between the risk of infringement and the responsibility to take steps to “address adverse human rights impacts,” such infringements, one which aligns with UNGP Principle 1’s direction to “prevent, investigate, punish, and redress abuse.” Each is discussed in turn.
First is the “should avoid infringing the human rights of others” concept. Respecting human rights in the context of the activities of business enterprises is grounded in avoiding infringing the human rights of others. There are four key terms here that are worth considering: avoid, infringing, human rights, and “of others.”
The first active element of the responsibility to respect is to “avoid.” Its etymology reminds us of the root of that term in the Anglicized Old French term esvuider, which denotes an emptying out, escaping, evading, or ridding oneself of.[35] In contemporary English the word includes an active and reflexive meaning: both to stay away from and to stop oneself from doing something. It also includes the sense of preventing something from happening or to stay away from something or some result.[36] The French version of the UNGP uses the term “éviter,” which like the English term speaks to avoidance or shunning, dodging, or of leaving off of something or someone. In contrast to both the English and French versions, the Spanish version does not use the Spanish word “evitar”[37] but instead uses the reflexive term “abstenerse”—to restrain oneself from doing or not doing something, to abstain from doing something or acting in some way. All of these usages are built around a core: a focus on the institutional element of stopping oneself from doing something. Yet also embedded in the notion of refraining from doing something by someone is the idea that it is not just an institution that ought to avoid (the reflexive part) but also that the avoidance—the emptying of the thing that is the object of avoidance—also falls the objects, processes or activities. The issue is especially important in the reading of the Spanish text.
To infringe is to violate something—in the form of damaging, interfering, or breaking it—that belongs to another. That thing can be tangible or intangible, but it must be capable of discernment, even if it is personal to the person. Yet it bears remembering that the UNGP include within the meaning of the concept of infringement both the enterprise that might infringe as well as the process or activities that might process infringements. Thus, infringement can be structural to an industry and its practices, or it may be personal to a specific institutional enterprise or group of enterprises within a field of economic activity. The action or activity that must be avoided, then, is any act, action, condition, process, action or the like, that infringes.
The thing that is infringed is human rights. That, in turn, makes it more important to have a sense of which human rights are capable of infringement for the purpose of meeting the expectation or recommendation that a business enterprise respect human rights. Certainly, one might reasonably read the scope of human rights to which the responsibility to respect applies ought at a minimum to attach to those that align with the international legal obligations of those States within the jurisdiction of which the business enterprise operates. Alternatively, the human rights to which responsibility to respect attaches may be at a minimum those described in UNGP Principle 12. Together they form the two halves of a minimalist whole—the extent of a State’s duty marking the minimal extent of legal compliance, the smallest extent of the scope of a responsibility may be as set out in UNGP Principle 12. The two minima may not perfectly align.[38] Yet precisely because business enterprise (here understood as the enterprise of business rather than the institutional form which that enterprise takes) includes both the activity and the institutional forms through which it is undertaken, that the approach to the scope of the objects covered may be broader than that specified in UNGP Principle 1. UNGP Principle 11 speaks to the responsibilities of enterprise—either as an activity or as an entity; UNGP Principle 1 looks solely to the State as the object of a duty.
The infringement of human rights that must be avoided must belong to some “other.” The scope of the persons—legal or natural—covered by the word “other” is undefined in the text of the Principle. Certainly it means anyone or anything other than the entity causing the infringement. A straightforward way to manage the meaning of “other” in this context is to limit it to rights bearers. Yet that may well be the subject of variation among States as each might reserve to itself the power to determine the definition of rights bearers within their own territory to jurisdiction. It could be determined by a more universal definition of rights bearers. It is possible that rights bearers are traditionally limited to individuals; though in some places social groups may also be rights bearers. It may be possible to consider that not all rights bearers bear the same rights. Thus for example, the constitutional rights of corporate entities in the United States is narrower than the constitutional (human) rights of individuals. At the same time communities may have distinct standing to bear rights as an aggregated social collective. Certainly indigenous people may collectively bear such rights; but the extent and form of the availability of such rights may be constrained or at least defined by law. In this sense, then, there is a connection between the scope of the expression of the State duty and that of the operation of the corporate responsibility to respect human rights.
The four concepts do not exit autonomously. They form a system of causal linkages; there must be an alignment between the violation (infringement) and human rights which could not be avoided and which negatively impacted the rights of others. These linkages suggest chains of causation which may be fundamental to the responsibility to respect. But causation, in turn, is a function of an ability to discern an infringement (likely through its damage—and thus the connection between the word infringement and its roots in the notion of something being broken) that is connected in some palpable way to human rights. That is the thing that is broken or violated must fall within the concept of human rights, the evidence of which must be manifested in some damage. It also suggests a connection between avoidance and infringement—that is, that the avoidance must be connected to a violation of rights that have been infringed. Lastly, there must be a connection between the infringement and the rights of the other whose rights have been infringed. Those rights must be human rights, and the rights must “belong” to the “other” who has been harmed by the infringement.
Second is the concept of “addressing adverse human rights impacts with which they are involved” concept. The second half of the second sentence of UNGP Principle 11 describes what must be undertaken (the obligation of responsibility) where an un-avoided infringement of the human rights of others occurs. The manifestation of business enterprise responsibility to respect in this respect mimics that of the State duty to protect human rights. In both cases, respect and protect is manifested by behaviors that prevent, mitigate, and remedy abuses of human rights connected with their respective activities or jurisdiction. For business enterprises that is centered on the responsibility to “address adverse human rights impacts.” The consequential responsibility can be divided into three distinct parts. First the nature of the obligation—to “address” an event or condition or effect. Second is the thing to be addressed, “adverse human rights impacts” (which recall the object of the State duty to protect). And lastly, business enterprises should address at a minimum only these adverse impacts “with which they were involved.”
While the English version of UNGP Principle 11 speaks to addressing adverse impacts, the French version provides that business enterprise should “remédier aux incidences négatives,” while the Spanish version expects that such enterprises “hacer frente a las consecuencias negativas.” The three different versions might be deemed to speak to different expectations, at least at their margins. The English version speaks to the act of giving attention to or dealing with a matter or problem,[39] in this case the adverse human rights impacts with which they are involved. It does not speak to remedy, or to the extent to which the manner of addressing is to be undertaken,. That is left to later UNGP Piller 2 Principles. The French version speaks to remedy (remédier), something that at its broadest could be comprehensive restoration against damage. The Spanish language version is neither remediar (to mirror the French version) or dirigirse or enfrentar (to mirror the English version). Instead, the term used is hacer frente, which colloquially at least suggests tackling or facing up (to a problem or issue). It is clear that the responsibility to respect creates an expectation for a business enterprise to confront adverse human rights impacts in which they are involved, at least when they have otherwise filed to avoid infringing. Yet it the nature of that confronting—in English to address the impacts, in French to remedy them, and in Spanish to deal with them that makes for some ambiguity across languages with distinctly different approaches. The English and Spanish language version suggests only a response and not a specific conclusion; the French version suggests that any confrontation of the impacts results in its remedy. The difference, in the absence of any harmonizing mandatory obligation imposed by States under the “smart mix of measures” expectation in UNGP Principle 3,[40] can be quite different. Nonetheless the three different approaches to the text here suggests a range of interpretive possibility. Those range from the English version, in which impacts must be addressed (leaving the nature and consequences of that addressing open ended), to the Spanish version that suggests a confrontation with the adverse impact suggesting the need for a resolution that reduces adverse effects, to the French version that starts from the expectation of remedy in the face f adverse impact. The choice of approach is both textual and also bound up in policy (from the State and public law perspective of the 1st Pillar) to cultural and based on practice in the marketplace (from the business enterprise and private law perspective of the 2nd Pillar). Lastly, the choice might affect the target—and again it ought to be emphasized that the text suggests two distinct targets—the first is the institutional apparatus of a business enterprise, the second is the enterprise of that business in whatever form(s) it is undertaken.
The consequence, event, or object that must be addressed are “adverse human rights impacts.” Adverse impacts are measured as a function of infringement. However the actual measure of impact remains undefined- Principled pragmatism might suggest a range of methods for measuring impact, most of them incompatible with each other, but aligned with the conditions, systems, and expectations within the group of stakeholders around which the issue is relevant.[41] That is to say, the choice of impact measure can be a function of practice or law, and it can vary by local context, culture, practice or expectations. The extent of that flexibility lies at the heart of the rationalization of the State duty to respect human rights principles.[42]The principles around the responsibility to respect human rights, centered on the business enterprise—and the enterprise of business—also suggests an autonomous space for action and expectation that exists simultaneously with and autonomous of whatever may be undertaken as and within the ambit of the State and its international legal obligations. The fundamental consequences is the acceptance of a reality of human rights polycentricity[43]—that is of human rights systems that may be united only in the diversity of their recognition and application beyond a fairly narrow core.[44] Indeed, the development of the autonomous but deeply intertwined systems of State duty to protect and business enterprise responsibility to respect can be understood to represent an application of the fundamental insights of polycentric governance that posits its operation as the aggregation of complex political and social processes.[45]
Measuring adverse human rights impacts as the predicate for triggering responsibility to respect suggests that the measure is unidirectional. That is, that the responsibility of business enterprises under the principle of responsibility to respect is driven solely (at least with respect to the construction of the expectation in UNGP Principle 11) by a focus on adverse impact; as a consequence, the UNGP is indifferent, with respect to the responsibility to respect, with any identification of measure of positive human rights impact. It follows that the measure of adverse impact suggests no expectation or obligation to augment the positive impacts of human rights. Human rights impact neutrality, then, appears to be the minimum expectation built into UNGP Principle 11. While both the travaux préparatoire, and the political or social expectation of stakeholders, may suggest that the creation or development of mandatory obligations or expectations of positive obligations of business enterprises with respect to human rights, UNGP Principle 11 neither creates that expectation nor does it forbid its creation.
Lastly, and again, the fundamental importance of causation is emphasized in this sentence of UNGP Principle 11. The expectation to address adverse human rights impacts applies only with respect to such impacts “with which they were involved.” While the phrase is broad it is not limitless. Both the French and Spanish language versions provide clues about those limits. In the French version, the text speaks refers to “lesquelles elles ont une part;” in the Spanish language version, the text speaks to those adverse impacts “en las que tengan alguna participación.” The French version, then, suggests that re responsibility attaches at its core to those activities in which the business enterprise had a role, contributed to, or played a part; in the Spanish language version the suggestion is a trigger grounded in participation in actions that gave rise to impact. Thus UNGP Principle 11 suggests a standard of involvement, participation, or contribution. These can be read broadly to include any connection in form or action that might have directed, facilitated, contributed to, or otherwise suggested an involvement in the acts or decisions that cause the adverse human rights impact. It is not clear, however, whether the standard includes a “materiality test.”[46] Materiality has formed part of systems of private reporting in the field.[47] There is nothing in the UNGP Principle 11 that suggests that materiality may not be considered; and recent legislative action from the European Union suggests that materiality tests can form part of mandatory legal standards with respect to human rights and sustainability regulations.
Taken together, the text of UNGP Principle 11 sets out a core expectation of business enterprise to respect human rights. That core expectation is not mandatory in the sense of a legally binding mandatory obligation. Nor is the expectation applicable only to institutionalized entities through which economic activity is undertaken; instead it applies equally to the entities undertaking economic activities and to the organized process of economic activity itself (business enterprise in its dual senses). Nor does it define human rights (though that is undertaken later in UNGP Principle 12); whatever the scope of human rights applicable to UNGP Principle 11, it is not the same as, aligned with, or limited to, the human rights that bind the State with respect to its duty to protect human rights (minimally those international obligations that bind States or by which States are bound). The expectation to respect human rights is further described as an expectation that business enterprise (entity and system or process) avoid infringing human rights. It does not extend to a responsibility to fulfill human rights (in contrast to the State duty to fulfill its mandatory legally binding international human rights obligations); though it does not prohibit the extension of the responsibility to respect to include positive obligations to fulfill as well as to avoid infringing human rights. However, the responsibility to respect does include a positive obligation to address (remédier, or hacer frente) adverse human rights impacts (however measured). That expectation to address adverse impacts, though, extends only to those adverse impacts where there is involvement (participation or contribution) by the entity or in the activity itself.
12.2.3 UNGP Principle 11: Official Commentary
The Official Commentary adds a little bit of nuance to a reading of the text, and offers guidance about preferences for reading and applying UNGP Principle 11. Much of the Commentary restates the text of the Principle. Nonetheless, the Commentary adds some important guidance in the restating.
Perhaps the central point of the Commentary is to frame the focus of the entirety of the responsibility to respect as a single and perhaps universal “global standard of expected conduct.”[48] That global standard extends to all business enterprises (the entity through which the enterprise of business is undertaken). It also covers all physical and virtual spaces in which the operations of the business enterprise occur. That description effectively describes the jurisdiction of the business enterprise (and the enterprise of economic activity) by reference to the reach of its operations (activities) rather than by reference to the legal systems within some or all of those operations may share space. In this way there is emphasized a detachment between the scope of the business enterprise (and its human rights responsibilities) from that of the (or any) State and their duty to protect human rights within their own jurisdictional boundaries. The Official Commentary emphasizes the autonomy of UNGP Principle 11 from the duties of States described elsewhere in the UNGP.[49] The responsibility to respect human rights It also emphasizes that the respective duties and responsibilities of States (within the ambit of their operations) and business enterprises (within theirs) are not diminished by the effectiveness compliance by either. That is, the actions or failures to act of States does not diminish the extent or character of the expectations built into the responsibility to respect human rights—and vice versa.[50]
The reverse is not necessarily true. States may augment the nature and character of the responsibility to respect human rights applied to business enterprises or systems, and certainly so within the scope of their jurisdictional authority.[51] At the same time, business entities are cautioned not to use the State’s own legalities against them. The Official Commentary reads into the broad text of UNGP Principle 11 an additional expectation to help States fulfill their own policy choices and core principles of their governance apparatus. That relational expectation appears to read some sort of fiduciary element into the responsibility to respect when enterprises engage with the State and its institutions—one that would appear to require the enterprise to put the interests of the State (and their apparatus) ahead of their own interests when engaging with the State. “Business enterprises should not undermine States’ abilities to meet their own human rights obligations, including by actions that might weaken the integrity of judicial processes.”[52] The key elements of this interpretation—“undermine,” weaken,” “integrity”—are not defined and may be subject to broad and varied interpretation. They also give rise to conundrums if literally applied—for example where a State’s judicial system is itself a source of adverse human rights impacts the undermining of which produces a n amelioration of adverse impact under the human rights standards applicable to the business entity but perhaps not part of the State’s binding international legal obligations. And so on. The limitations on this broad assertion may be found in the State duty itself,[53] and also in the development of the remedial Pillar.[54]
The Official Commentary also addressed the concept of adverse human rights impacts. It suggests that the text of the second sentence of UNGP Principle 11 ought to be read to define impacts as a function of risk rather than of effect. “Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.”[55] That reading of the nature of addressing impacts as a function of risk would align the risk driven approach of the State duty with that of the expectations around the responsibility to respect human rights.[56] Given the focus in the State duty on policy and practice coherence, the reading is reasonable and might extend to virtually all aspects of the linked operation of State duty and enterprise responsibility where they touch on the same activity. The other ambiguities in the text of UNGP Principle 11 go unremarked.
Lastly, the Official Commentary also addresses the connection between the negative expectations written into the text of UNGP Principle 11 and the space available for the exercise of a positive responsibility to fulfill human rights. Yet it does so in the form of a caution rather than as an encouragement to broaden the scope of the responsibility to respect. The Official Comment states: “Business enterprises may undertake other commitments or activities to support and promote human rights, which may contribute to the enjoyment of rights. But this does not offset a failure to respect human rights throughout their operations.”[57] The caution, then, takes at least two principle forms. The first is that whatever the extent or choices respecting the engagement in fulfilling human rights, these cannot be used to offset the adverse impacts of infringement with respect to other human rights to which the responsibility to respect applies.[58]
12.2.4 UNGP Principle 1: Other Authoritative Interpretation/Commentary
12.2.4.1 The 2010 Draft. The draft version of UNGP Principle 11, circulated from the end of 2010,[59] diverged from the final text in important respects. These differences may shed light on the meaning and plausible interpretation of text, or at least limit the scope of the plausibility of textual interpretation and application.
First, as originally drafted what became UNGP Principle 11 was drafted as the chapeau text of draft Principle 12, which was then modified by a series of three sets of considerations and interpretive principles. In the final version of the UNGP, these considerations and interpretive principles were stripped from the statement of the core responsibility to respect principle and set in the final version as UNGP Principles 12, 13, and 14, but modified in some substantial respect.[60]
Second, the draft text of what became UNGP Principle 11 differed from that final text in one significant ways in what emerged as the second sentence of the final version. Where the final version provided for addressing human rights impacts by business enterprises “with which they are involved,”[61] the draft version provided that the responsibility to respect was triggered by adverse impacts the business enterprise “may cause or contribute to.”[62] The language of the final version appears substantially broader than that of the draft version. However, the breadth of either version must be read against the more detailed foundational specifications that in the final version are set out in UNGP Principles 12-15, and in the draft version appear as Draft Principle 12(a)-( c). The first sets out a set of human rights that may be understood as forming the core set of international expectations guiding the application of the normative principle in Draft Principle 12 (final version UNGP now Principle 11). These are meant to correspond to that minimum core of legal obligations against which the State duty is measured as set out in the UNGP General Principles (which were not included in the 2010 draft).[63]
It ought to be noted that the Commentary to draft Principle 12 spoke of the “corporate responsibility to respect human rights constitutes a standard of expected conduct for all business enterprises.”[64] In the final version what had been “a standard” became “global standard” to be applied “wherever they operate.” The effect (if not the intent) was to broaden the scope of the meaning of the text in at least two respects.
First, the additions and modifications reinforced the notion that one speaks here of a single overall standard of operation. That is to say that, unlike the State duty that is tied to the legal order of each State, the responsibility to respect human rights applies in equal measure to all business enterprises (at its foundational core) irrespective of the State in which such enterprise occurs. This universal standard of conduct is to be matched with a universal normative standard. That normative standard is specified in the core human rights instruments (law and norms) which at a minimum define the scope of the responsibility to respect[65]—in the way that a State’s international legal obligations[66] define the core scope of the State duty to protect human rights.[67]
Second, the reference to “wherever they operate” is meant to connect the autonomous responsibility under the 2nd Pillar to the principle in the State duty pillar that touches on extraterritorial application (UNGP Principle 2)[68] of a State’s “smart mix of measures”(UNGP Principle 3).[69] The language is not the same. UNGP Principle 2 uses the term “throughout their operations,” UNGP Principle 11 Commentary speaks to application “wherever they operate.” They are close but not identical textual usages. UNGP Principle 2 may be understood as speaking about systems and in a more linear way (the production or supply chain and the like); the Commentary to the final version of UNGP Principle 11 speaks to territorial co-location—those physical places where a State and business activity occupy the same space.
7.2.4.2 The Travaux Préparatoires and Pre-Mandate Text. UNGP Principles 11 were written against and in the shadow of nearly a generation of efforts to manage international economic activity,[70] but was principally directed as a key element that distinguished the approach of the UNGP from its failed predecessor, the Norms.[71] UNGP Principle 11 is deeply tied to the development of what SRSG Ruggie would later describe as his journey toward an embrace of the concept of polycentricity, drawn from economic theory and then transposed to governance, which he spoke of as “multiperspectival framing” and its manifestation as legal and social norms, the first the province of the law-state, the second that of the markets and private ordering.[72] That approach lay at the foundations of the three pillar framework as set out in the SRSG’s 2008 Reports,[73] and which served as the basis for the UNHRC’s extension of the SRSG’s mandate to reduce that three pillar framework to a set of principles.[74]
7.2.5 Other Glosses
Some commentators have advanced quite decided views about what the UNGP should or must mean in a variety of contexts. That is precisely what the SRSG hoped might happen as governing collectives continued to adjust whatever might pass for (temporary) consensus in ways that align (more or less) with the tenor of the times and the influence of those driving particular instances of convergence of opinion about what the UNGP is or ought to be or ought to be used for. Well after UNGP endorsement, SRSG Ruggie noted with approval César Rodríguez Garavito’s suggestion that the UNGP not be approaches as static text but rather “in their dynamic dimension (such as their capacity to push the development of new norm and practices that go beyond the initial content.”[75] This Commentary notes the this sort of scholarship, and its importance for the application of the UNGP from time to time, and perhaps, as a time limited step toward more fundamental transformations.[76] That is the essence of the SRSG’s principled pragmatism.[77] Nonetheless, that literature provides less value as a means of understanding the UNGP itself. Rather this important work goes to the politics of aligning collective acceptance of the application of the UNGP at one point along a spectrum of plausibly justifiable approaches. It does not go to the meaning or understanding of the UNGP itself; “such debates need to be distinguished from assertions about what the UNGPs do or do not say—the text is there, 31 Principles with Commentaries.”[78] That, then, certainly was the intent of the SRSG when he noted in response to an assertion about the meaning of the UNGP in a particular context.[79]
The UNGP 2nd Pillar Principles (including the foundational Principles 11-14) were transposed to the OECD Guidelines for Multinational Enterprises,[80] the International Labor Organization 2017 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy,[81] the International Standardization Organization (ISO) 26,000 social responsibility standard,[82] and within the interpretive galaxy of the UN Global Compact.[83] Almost from the time of endorsement, the UNGP 2nd Pillar has been the object of substantial efforts at formal regulation within the domestic legal orders of States[84] as well as an effort to transform its autonomous and social norm basis into the basis of a legally binding instrument of international law (and thus coming within the core minimum obligations of the State duty under the UNGP General Principles). Each of these represent a valuable source of application of the 2nd Pillar principles, including UNGP Principle 11, and in that sense may inform a reading of the UNGP’s text. They are, however, instances of the application of the expectation of UNGP Principles 8 and 10 in ways that the UNGP framework itself would permit but not compel. In that sense they represent political and policy choices for interpretation that are plausible but neither nece4ssary nor uniquely correct or the best way of reading or applying the UNGP. Politics drives those interpretations and applications as the underlying Principle of principled pragmatism would suggest, the politics around the development of the UNGP themselves were developed in Chapter 4 and the issues around which were developed in Chapter 5. Thus for example, at the time of its enactment the EU’s Corporate Sustainability Due Diligence Directive it was sometimes suggested that “ CSDDD rejects voluntary industry initiatives and translates international standards in the UN Guiding Principles on Business and Human Rights (UNGPs), UN Global Compact, and OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2011, 2023) into mandatory and enforceable due diligence rules for big business.”[85]
Sara L. Seck has provided a gloss on UNGP Principle 11.[86] She starts y situating the core principle articulated in UNGP Principle 11 with those that then modify and elaborate the fundamental principle of responsibility to respect set out in UNGP Principles 12-15.[87] That aligns with the trajectory of the development of the final text of the UNGP foundational principles for Pillar 2 which, in its initial draft form, grouped all five foundational principles in one.[88]
Seck begins by noting that the legal nature of the corporate responsibility to respect is contested by a group of academics active at the time and civil society elements that had long objected to the institutionalization of markets based social norm mechanisms rather than the wholly legal standard approach.[89] That contestation is art of an ongoing debate of long duration over the connection between non-state actors, especially those vested with legal personality, and international law. Seck notes both the relevance of that debate and the possible scope of trajectories of evolution toward some sort of resolution.[90] Seck is also sensitive to the semiotics of the use of the term enterprise, rather than the originally or colloquially used term “corporation” in much of the discussion leading up to the finalization of the draft Principles.
For Seck the use of the term expands the scope of liability from out of the narrowing confines of corporate law principles and their focus on asset (and risk) partitioning to embrace (as a matter of policy if not law) the notion of joint undertaking that better aligns with classical economic and sociological perspectives on economic activity through chains of production, as well as the approach taken by the OECD since the 1970s.[91] Seck, however, might not extend the reach of the concept of enterprise to system and process rather than to its organizational aspects—that is, enterprise remains grounded in its organizational rather than its process elements. Seck notes as well that some courts have taken up an application of UNGP Principles within their own domestic legal orders.[92]
Seck also focuses on the interpretation of the expectation to avoid infringing human rights.[93] Seck draws on the UNGP General Principle’s characterization of business enterprises as functionally differentiated social organs to distinguish these enterprises from States respecting their subjectivity under international law. Seck notes the criticism of that position among commentators who also see in UNGP Principle 11 the affirmation of a negative expectation (do no harm) but not a positive expectation (do good). Indeed, Seck notes the difference between the language of UNGP 11 and that of the Global Compact that also speaks to supporting the protection of human rights.[94] Seck notes that much of the work on guidance and interpretation has been devoted to the methods and norms respecting avoidance of infringement. These efforts at interpretation are the subject of much of the rest of the 2nd Pillar Principles, in respect of which the soft jurisprudence of the OECD National contact points[95] and the guidance functions (and with it the policy and political choices made in furtherance thereof) by the UN Working Group on Business and Human Rights[96] are important.[97]
Lastly Seck focuses on UNGP Principle 11’s expectation to address adverse human rights impacts.[98] Seck notes the alignment of the expectation of addressing, and the need to take adequate measures reduce risk, for that purposes transposing the risk aversion principles of preventing, mitigating and remedying adverse impacts to the autonomous space in which business enterprises responsibility to respect operates.[99] Seck also notes that this foundational principle is further elaborated in the operational principles of the 2nd Pillar, and in the case of the application of the prevent-mitigate-remedy principle UNGP Principle 22.[100] Seck is sensitive to the issues of interference by business enterprises with the judicial process with the object of ensuring appropriate addressing of adverse impacts.[101] Unstated but operating in parallel are the equivalent obligations, and with respect to States duty, to avoid interference in the context of their own engagement with human rights connected to business activity.[102] The issue becomes more complicated where courts are also used as a forum for political action.[103] Seck suggests the complications that may proceed from a broad reading of the judicial interference caution—especially with respect to the ethical obligations of lawyers and their duty to effectively represent clients, or by resort to alternative and friendlier venues, for example international investment dispute settlement mechanisms.[104] These cautions have become lively issues in the academic debates but as Seck suggests, they are issues of policy and policy/regulatory coherence that lies at the heart of the State duty.[105]
12.3 UNGP Principle 12
12.3.1. UNGP Principle 12: Text
The responsibility of business enterprises to respect human rights refers to internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.
* * *
12.3.2.UNGP Principle 12: Commentary on Text
While UNGP Principle 11 sets out the general foundational expectation that business enterprises have a responsibility to respect human rights, UNGP Principles 12-15 elaborate that core principle and point to its parameters and fulfillment. The first of these, UNGP Principle 12 connects the expectation of UNGP Principle 11 responsibility to respect to a normative baseline. That normative baseline, like that developed under the State duty to protect human rights, is grounded in international law and norms. But there is a significant difference. The State duty to protect human rights is tied, at a minimum, to a State’s “existing obligation to respect, protect, and fulfill” the “legal obligations a State may have undertaken or be subject to under international law with regard to human rights.”[106] The corresponding set of normative obligations expected of business enterprises are not limited to legal duties but include normative principles as well—principles that may not be. Strictly speaking, part of any legally binding obligation on States or anything (anyone) else. Conceptually, that makes sense. The duties generated by and around States are necessarily elaborated using the techniques and forms of State action, the highest and most binding forms of which are legal. In contrast, in the realms of private law and relations, social norms play a significant role. That certainly was the thrust of the SRSG’s work leading to the 2008 Reports.[107] It was also a way of distinguishing the UNGP from the failed Norms project.[108]
The fundamental purpose of UNGP 12, then, is to describe the core normative framework within which the enterprise responsibility to respect is expected to operate. That raises a number of interpretive and conceptual challenges that touch on the relationship between the State duty and the business enterprise responsibility pillars, as well as the normative character of law and norms in the international sphere and the different ways in which they are conceived and applied as among States, on the one hand, and non-state actors on the other.
First, UNGP Principle 12 describes the normative basis around which the fulfillment of the expectation of the responsibility of business enterprises to respect human rights “refers to” internationally recognized human rights. The etymology of the term “refer” derives from the Latin (through Old French) word referre, literally to carry back, as for example to a first cause or origin; and since the 16th century as a direction to a source (for example of information).[109] Of course, it might have been easier to directly state that the term “human rights” as used in the 2nd Pillar is defined as internationally recognized human rights. The difficulty with the more direct approach, and the reluctance to draft the text of UNGP Principle 12 in that way, related back to a debate, functionally unresolved, around the definition of human rights and its textualization in the UNGP Principles that carried over from the Norms project and SRSG Ruggie’s criticism of its effort to define human rights.[110] Instead of a definition, what is offered is a reference, in the sense of a direction to a source found elsewhere. And the reference is left open ended.
Second, just as the definition of internationally recognized human rights is left open ended, so too is the meaning of each of its terms. The term was not created out of whole cloth. It appears in other contemporaneous international instruments, for example in the Rome Statute.[111] In that context, the term has become an issue of appropriate jurisprudential interpretation.[112] It was also a term referenced in the United Nations Millenium Declaration.[113] The meaning of the term internationally recognized human rights is ambiguous—in large part because of the nature of the State system and its relation to the effect of its collective products, especially in terms of their normative, and more specifically binding, effects. Perhaps it might be more accurate to describe the term “internationally recognized human rights” as intimately contextual and itself the conclusion to be drawn within a matrix of principles and expectations that are themselves at th3e heart of contemporary international law/norms.[114] At its narrowest, the term might be restricted to internationally recognized human rights law.[115] Sometimes States use this as a baseline for its own analysis of compliance.[116] However the UNGP text is quite clear when it seeks to refer to legal obligations rather than normative ones.[117] That broader context has produced efforts to list internationally recognized human rights as they might exist from time to time, which can vary substantially.[118] That variation was precisely what cautioned the SRSG against an effort to list human rights, which together with a rejection of a legalist approach to rights, at least as related to the social norm context in which non-state actors operate, militated in favor of the more ambiguous and open-ended textual approach adopted. At the same time, the inevitability of listing provided the alternative adopted in UNGP Principle 12—to construct a list of basic rights (legal and social norms) and then leave it to States in the legal sphere and business enterprises in the social sphere to fill in the rest in accordance with the principles further elaborated in the 2nd Pillar.
Third, UNGP Principle 12 attempts to provide a baseline referent for the term “internationally recognized human rights” that is more precise. To that end, UNGP Principle 12 establishes a minimally applicable core of rights which are to be understood as relevant to the business enterprise’s responsibility to respect: “those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.” The concept of the International Bill of Human Rights enjoys a contentious and contested history.[119] These contentions—to some components of human rights or to the idea of a singular universal human rights order--have not been entirely resolved. Moreover, at least with respect to its application in the application and interpretation of legal structures, substantial variation in its character and application have been made possible through application of legal doctrine such as that of the European Court of Human Right’s margin of appreciation.[120] None of this is unexpected, nor does it affect the principal purpose of UNGP 12—to specify the list, not to manage its application.
Fourth, the baseline set of internationally recognized human rights to which the responsibility to respect refers is only a minimum. That raises the question, answered in the 2nd Pillar foundational Principles that follow, about how the business enterprise ought to seek to go beyond the minimum. One answer is that it is not obliged but only expected to do so by applying the principles further elaborated in the UNGP and discussed in this Chapter. Another is that a business enterprise can be obliged to include any number of human rights (either legally binding or not on the State) to the extent that the State insists, through the smart mix of measures which are available to it under the 1st Pillar UNGP Principle 3,[121] and limited only by those expectations further elaborated in UNGP Principles 4-10. Another answer would read into UNGP 12 an expectation to apply all contextually relevant rights under the conditions specified in UNGP Principle 11 as part of the expectation to avoid infringing human rights and then to address such infringements when they occur. Any one of these approaches might be consistent with the text of UNGP Principle 12. Nonetheless, it is clear from the text that it cannot be read as excluding the application of human rights other than those identified as the minimum core. The questions left unsettled go to which human rights, under what circumstances, and to what extent are business enterprises expected to consider in respecting human rights, avoiding infringement and addressing negative impact. Some approaches to these questions may be extracted from the Official Commentary; the rest may be approached through an application of the remaining foundational principles of the 2nd Pillar. The substance of the answer is dynamic—it is a function of context, of the immediacy and severity of impact, and of the likelihood of infringement. There is a substantial amount of “margin of appreciation” around each of these.
Fifth, UNGP Principle 12 mediates but does not resolve the tension between two opposing sets of starting points for describing the universe of “rights”—legal, mandatory, moral, social, economic, religious—which makes up the universe of rights, norms, interests, expectations with respect to which the responsibility to respect applies and adverse impacts measures, and responses assessed. These reflect deep divisions in approaches to understanding the scope and character of human rights, the relationship between mandatory or legally obligatory rights, on the one hand, and public, private, religious, social, community or identity group declarations, principles, hopes, understandings, programs, ideological stances, and pronouncements, on the other. At a deeper level it also marks the tension between the approach of the Norms project,[122] its criticism and abandonment by SRSG Ruggie,[123] and the need to provide some sort of clarity to economic enterprises.[124] That core difficulty—between a State duty grounded, at a minimum on a State’s binding international legal obligations[125] which were fairly easy to list, and an amorphous cluster of legal, normative, social, economic, and other expectations in markets, within social relations, and through mandatory compliance regimes manifested through the State’s exercise of its power to manage its own “smart mix of measures,” made any formulation of the sentiment encased within the text of UNGP Principle 12 difficult to tease out to its edges. Nonetheless perfect parallelism is impossible between the State and the market sectors; the impossibility is not merely a function of the profound differences between their regulatory ideologies and powers, practices and reach. They are also a function of fundamentally extra-geal character of activity across (legal) borders and the differences in the quality of expectation between legal and “private” compliance systems. Perhaps, one might be tempted to suggest, that appears to be the point of a text that must account for polycentric regulatory systems of differing characteristics all of which are dynamic in the sense of constantly evolving and increasingly difficult to perfectly align.
12.3.3 UNGP Principle 12: Official Commentary
The Official Commentary focuses almost exclusively on the tensions and issues embedded in the text of UNGP Principle 12. It starts with a characterization of the impacts (nonjudgmental in the sense that impact here might be understood as positive, negative, and neutral) as large, if not larger than the impact of the State and its apparatus on the lives of all those legal and natural persons it touches. It follows that there ought to be an alignment between the range of impact of economic activity as a whole, and the scope of the responsibility to respect human rights. In the language of UNGP Principle 12 Commentary: “Because business enterprises can have an impact on virtually the entire spectrum of internationally recognized human rights, their responsibility to respect applies to all such rights.”
Principle makes for pretty text speech. The Commentary, however, drawing on the fundamental organizing principle of principled pragmatism[126] to peel back the principle to its pragmatic possibilities. To that ends, the Commentary is used to introduce the element of risk as an organizing principle for business activity related human rights scoping,[127] and time.[128] That brings the Commentary to its confrontation with the problematic element of the “list.” There was no possible way that any possible compilation would include everything. That had been a significant criticism leveled by the SGSG against the Norms project that preceded that his own mandate.[129] And yet pragmatism appeared to require something. That something was grounded in mimesis—the repetition of a pattern of drafting and expectation that runs through the UNGP. In this case that mimetic device was the establishment of a minimum—a floor—of expectation against which the responsibility to respect can be solidified[130] and from which the universe of expectation can be expanded. While the listing of the minimum applies to all economic activity (and thus can be identified and listed); everything else is contextual. And context is driven both by operations and time.
And thus the Commentary first describes the authoritative lust already set out in the blackletter text of UNGP Principle 12,[131] and its character as consisting of expectations, only some of which may have a legal dimension.[132] The Commentary invites comparison with the narrower scope of the State duty to protect human rights—and its national variability. It then emphasizes the intimately contextual nature of application of human rights instruments (legal or otherwise) and their connection to the determination of impact (with respect to which only those which are adverse requires a response under the 2nd Pillar).[133] All of this, of course, is subject to the earlier observation that context and application “should be the subject of periodic review”[134] and grounded in measures based on risk of adverse impact.
The Commentary then suggests both the categories around which additional norms, law, rules, expectations, and policy nudging should be undertaken, as well as suggesting what ought to drive the articulation of standards to be applied on those contexts. With respect to the former, the Commentary identifies what at the time of its endorsement constituted significant points of policy attention and of particular attention to civil society at the time and the institutional organs to which their concerns were manifested: “For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them.”[135] With respect to the latter, enterprises ought to look to international organizations and their law/norm/expectation/policy guidance and leadership.[136] In certain specialized context, international law might be a guide.[137] Enterprises, then, are to international organizations as States are to their international binding obligations.
12.3.4 UNGP Principle 13: Other Authoritative Interpretation/Commentary
12.3.4.1 The 2010 Draft. Draft UNGP Principle 12, circulated from the end of 2010,[138] diverged from the final text in some important respects. These differences may shed light on the meaning and plausible interpretation of text, or at least limit the scope of the plausibility of textual interpretation and application. The principal difference in this case is that, as originally drafted, what became UNGP Principle 12 was more tersely drafted as draft Principle 10(a) part of the core principle that business respect human rights.[139]
UNGP Principle 12’s Commentary was also modified from its 2010 Draft Commentary version. The core substance of the Commentary remained substantially unchanged, but the text around some of this core suggested a shift of emphasis. What became the initial paragraph of the Commentary in final form appears substantially unchanged from its draft form. The three fundamental concepts—impact as the basis of expectation analysis, a risk based context analysis in application, and periodic review of context and applicable expectations—retain their form from draft to final versions.
The authoritative list of core internationally recognized human rights (whether or not legally binding on anyone or anything) is unchanged as well. Nonetheless, where the Draft Commentary emphasized that these core internationally recognized human rights do not impose direct legal obligations in enterprises or their economic activity, they can serve as a measure of adverse impact against which the social expectations of the 2nd Pillar can be measured. Drawing on the nature of social expectations in markets developed by the SRSG from the 2008 Reports to the Human Rights Council,[140] the Draft Commentary explains 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.”[141] As endorse, UNGP Principle 12 Commentary spoke instead to the constitution of these international normative and legal standards as benchmarks. The move from “core standard” to “benchmark” underscored the fundamental textual understanding that the UNGP were not to be read as creating new legal or normative obligations, and thus preserving the structural basis of the UNGP as compared to the Norms emphasized by the SRSG in his early reports.[142] That reading is emphasized in the Spanish (Estas son
las referencias que usan otros agentes sociales) and French (“Tels sont les indicateurs en fonction desquels
d’autres acteurs sociaux évaluent”) versions of the final form Commentary. Here the emphasis is on descriptive observation grounded in the SRSG investigations as reported in his 2006-2007 Reports[143] as of the time of the endorsement. The expectation that these might change was built into the idea, also in the Commentary (draft and final) of periodic review. Likewise the essential character of the Draft Commentary on consideration of additional standards and on drawing on humanitarian law in conflict zones is expanded in the final version but its essence is unchanged.
12.3.4.2 The Travaux Préparatoires and the Pre-Mandate Text. Most relevant for a gloss on UNGP Principle 12 are the studies prepared for the SRSG relating to corporate behaviors within globalized environments conducted between 2005 and 2007 as the fact based foundations of the conceptualizations that follow. [144] The SRSG has intent on reframing the direction of the linkage between responsibility and its object by rejecting prior approaches that were grounded in an equation “defining a limited list of rights linked to imprecise and expansive responsibilities, rather than defining the specific responsibilities of companies with regard to all rights.”[145] The insights were reflected in the Travaux Préparatoire.[146]
12.3.5 Other Glosses.
One must again distinguish between glosses on the UNGP, and efforts to argue for one or another best reading among the range of plausible approaches to an interpretation and application of the UNGP. Arguments toward a “best” or “sound” interpretation does not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. As the SRSG noted: “such debates need to be distinguished from assertions about what the UNGPs do or do not say—the text is there, 31 Principles with Commentaries.”[147] That, then, certainly was the intent of the SRSG when he noted in response to an assertion about the meaning of the UNGP in a particular context.[148]
Sarah Joseph has provided a gloss on UNGP Principle 12.[149] Joseph first describes what UNGP Principle 12 provides before considering what might not be provided and issues of application.[150] First, Jospeh raises the question of alignment between the rights identified in UNGP Principle 12 and those with respect to which the State has its own duty under UNGP Principle 1. To those ends, Joseph considers the possible range of meaning of the notion of inter-Pillar independence. The issue has pragmatic consequences for enterprises operating across a number of States whose own legal relationship to International Bill of Human Rights and ILO Standards may vary significantly and in ways that cannot be reconciled across borders. One way of approaching the issue is grounded in compliance with local law as the starting point of corporate responsibility—an approach that aligns with some forms of Marxist-Leninist approaches in the first third of the 21st Century.[151] Joseph suggests that a perhaps preferred reading would emphasize the social expectations built into the foundations of the 2nd Pillar to suggest that UNGP Principle 12 creates a social (but not legal) expectation to conform its behavior to the standards in UNGP Principle 12 irrespective of the legal structures of the States in which they operate. There is no expectation of alignment between the expectations for State legal compliance and corporate social compliance.[152]
Joseph notes what are labelled “neglected rights” as well.[153] Joseph notes that the approach taken offers the possibility of focusing on rights that tend to garner little attention.[154] The operative mechanism is the risk based context analysis and periodic review.[155] These salience issues produce a cocktail of risk, impact and norm that will produce substantial variation among enterprises. Joseph notes that in the absence of a lively jurisprudence that fleshes out the nature of the social responsibility (in contrast to that in the context of the State’s legal duty), one might expect deviation between the two forms of expectations.[156] Of importance in that respect is what Joseph notes as what might be a fundamental difference in the character of States and enterprises. The former apply their obligations as a function of public objectives and in the service of the public interest generally. Enterprises operate for their own benefit and seek to further their own self-interest. The consequences, Joseph notes, are significant: “the inherent capacity for a business to be permitted to be more ‘selfish’ than a State must give it more scope than a State to act (or not act) with regard to a right without transgressing its associated responsibility.”[157] The limiting factor, though, would be the measure of adverse impact of an enterprise’s operation—that goes to effect but not to purpose. Joseph notes that the difference may be small in some cases but not always. Lastly, listing and application, especially at the margins remains subject to ambiguity as the legal and normative obligations of States do not align with the social obligations of enterprises in UNGP Principle 12.
Joseph explains that Much of this remains to be fleshed out. Yet that is precisely what the UNGP framework envisions. Rights are sourced in international (as well as national) law and norms. Law and norms are both dynamic, changing to suit the times and meet contextually relevant challenges, the changing content of which lies outside the UNGP.[158] The Travaux Préparatoire emphasized, especially in the early SRSG Reports, emphasized the fundamental characteristic of the framing structure of the UNGP, a consequence of which was to create a division between the production of rules and norms (left to the State, private, and international public sectors) and the structures for implementing a system for the prevention, mitigation, and remedy of adverse human rights impacts in and as the UNGP.[159] At the same time the UNGP envisioned an active role for State and other public actors in the process of both elaborating a rules based content for human rights, and the imposition of specified rules in human rights due diligence, through legal measures.[160] It is in this sense that one can understand the way that national measures that both create legal obligations to undertake human rights due diligence, and also specify those “rights” that are incorporated or must be given effect in those mandatory human rights due diligence measures. In this context the substantial regulatory project of the EU Green Deal regulations,[161] including CS3D and the Corporate Sustainability Reporting Directive,[162] provides an important example. The United States, on the other hand, has, to the extent its policy furthers national legislation as part of its “smart mix of measures,” opted to embed legislative measures as part of its international sanctions policies.[163]
12.4 UNGP Principle 13
12.4.1. UNGP Principle 13: Text
13. The responsibility to respect human rights requires that business enterprises:
(a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
* * *
12.4.2.UNGP Principle 13: Commentary on Text
While UNGP Principle 11 sets out the general foundational expectation that business enterprises have a responsibility to respect human rights, UNGP Principles 12-15 elaborate that core principle and point to its parameters and fulfillment. Together, they form the foundational principles for the operationalization of the corporate responsibility to respect human rights is elaborated around the core premise of (1)avoiding adverse impacts and (2) where unavoidable addressing the effects of adverse impacts in which they are involved. The first of these elaborations, UNGP Principle 12, connects the foundational and structuring expectation of UNGP Principle 11’s responsibility to respect to a normative baseline, one that is grounded in international law and norms rather than national constitutional principle. The second of these, UNGP Principle 13, focuses on the concept of impact. Not every impact comes within the interpretive ambit of the principle—UNGP Principle 13 focuses on the expectations of responsible entities around adverse impacts. That connects UNGP Principle 13 to the overarching mandate of Pillar 1’s State duty to “protect against human rights abuse.”[164] It is around impact that the responsibility to respect is elaborated and the rest of the fundamental principles around that responsibility developed. UNGP Principle 13 elaborates a distinction between adverse impacts of the activities of the responsible entity and those that are directly linked to their operations .
The fundamental purpose of UNGP 13, then, is to elaborate the meaning of “avoiding” and “addressing” those “adverse impacts” with which an enterprise” is involved.” But first, there is a word that jars in the blackletter of UNGP Principle 13. It provides that the responsibility to respect “requires” enterprises to conform their behavior to the textual directions given in UNGP Principles 13(a) and (b). Requires is a command term—a demand that something be done, usually as of right-- derived from the Latin require—in the sense of an intensified command to seek or ask with respect to an action or object.[165] The Spanish version of UNGP Principle 13 does not use the Spanish variation of require—requiere—but instead uses the stronger word exige. Exige suggests a stronger command—a demand. The same word is used in the French version—exige. In both versions the word suggests a demand, public in character, of a thing of value, figuratively in an imperious manner. The word play here suggests that responsibility is a phenomenological term—in the sense that its meaning is derived from clusters of actions that together constitute responsibility. The mimetic iterative effect is then used to strengthen each of the concepts. Responsibility to respect is understood as the action of the enterprise in avoiding and addressing as elaborated in UNGP Principle 13. Avoiding and addressing, conversely, comprise the essential meaning of responsibility to respect. One cannot be understood in the absence of the other. It remains only to understand the meaning of avoiding and addressing for purposes of defining responsibility to respect.
One points may be worth emphasizing. Like many of the provisions of Pillar 2’s corporate responsibility to respect human rights, UNGP Principle 13 is drafted to emphasize that as the enterprise is allocated the responsibility in the first instance, the enterprise also bears the initial responsibility to interpret and, in good faith, apply the principles in the context in which it is to be applied. That accords with the notion of expectation built into UNGP Pillar 2, as well as the fundamental premises of principled pragmatism.[166] The iterative amalgamation of individual interpretative and operational choices will, together and over time produce both a collective sense of the meaning of expectation, and a better sense of what sorts of interpretations and operationalization fall outside the ordinary practice. That aggregation is dynamic in both time and place. And it is dependent on markets for discipline (with the State exercising its overall duty at the outer boundaries (at a minimum). Markets include all market actors including civil society, financial and consumer and labor markets, each of which can respond and in responding nudge enterprises toward conformity within acceptable ranges of expected interpretation and action—or to justify convincingly deviation in time and context. Nonetheless, it is with the enterprise, in the first instance, that interpretation and application apply.
Avoiding and Addressing. UNGP Principle 13(a) states that the responsibility to respect requires business enterprises to “avoid” (1) causing or (2) contributing (3) to adverse (4) human rights impacts (5) through their own activities and (6) address such impacts (7) when they occur. It is worth foregrounding a few nuances of the definition.
First, the requirement embedded in the definition of responsibility to respect is avoidance. To avoid suggests in its etymology acts of shunning (persons or objects) or refraining from doing something. The action involves a dissociation either before or after the triggering event or knowledge of a condition that triggers dissociation.
Second, what the enterprise is required to avoid is “causing” or “contributing” to something. Causation and contribution are “big tent” words in the sense that they each have the capacity to be understood and applied in quite distinct ways. Causation and contribution in law may be understood and applied quite differently than either term in social, economic, or cultural relations, and yet embed cultural, social, or economic presumptions.[167] Complicating this basic division is the reality that causation and contribution may also be understood and applied in different ways within different domestic legal orders, even when these legal orders form part of the same “legal family.”[168] Similar ambiguities and contextual meaning challenges apply to the notion of contribution. Legal notions of contribution are ancient and sometimes intimately tied to other legal concepts—particularly that of joint and several liability and indemnity in common law states.[169] More broadly, it is connected to notions of fairness—that all who caused a harm ought to contribute an amount that reflects fairly their fair share of loss from harm. It refers to responsibility for a loss incurred by someone to whom one owes some duty. Here the duty is grounded in expectation (Pillar 2) and the customs of the market; but legal regimes (Pillar 1) can also transpose market expectations into legal obligations.
Third, the requirement of avoidance of causing or contributing is a function of adverse human rights impacts. There is no expectation of avoiding or causing or contributing to positive human rights impacts. UNGP Principle 13 might be read as encouraging positive impact, and its structures might facilitate the realization fo such expectations, but the focus is on avoidance rather than on facilitation. The terms impacts and human rights are deeply embedded within the entire framework of the UNGP.[170] The expectation ought to be that one reads those terms consistently throughout the UNGP. It is possible however to read the UNGP as permitting contextually relevant variations in definition.
Fourth, UNGP 13 repeats a jurisdictional limitation within the “through their own activities” standard un both UNGP Principle 13 (defining responsibility to respect as a function of conduct) and also in UNGP Principle 18 (gauging human rights risks). The concept can be read narrowly or broadly. At its narrowest it refers to the direct activities of an enterprise. At its most broad it references all of the activities of an enterprise directly undertaken and undertaken through others with respect to which the enterprise has an ownership, control, or contract relationship. Beyond that, tracing the attenuating lines of causation could lead as well to all of those enterprises and persons who contribute to the relationship between the responsible enterprise and those with whom the enterprise shares a direct relationship. The limiting concept could be tied to notions of farness (contribution) or causation (as that concept is understood as a legal or market expectation term). The point is that there is a substantial amount of room for broadening or narrowing the term. But there are limits on that limitation as well built into the UNGP. These are built into UNGP Principle 13(b).
Fifth, where adverse impacts caused by or contributed to by an enterprise through their own activities occurs, the responsibility to respect, as an action concept, then requires that such adverse impacts be addressed. The time when these adverse impacts should be addressed is when they occur. The etymology of “address” from the vulgar Latin addirectiare connotes the idea of setting something straight or making something right.[171] It is activated after the occurrence of the adverse impact. That is, the notion of addressing an adverse impact is triggered only where an adverse impact that an enterprise was expected to avoid, was not avoided for whatever reason.
Preventing and mitigating. If UNGP Principle 13(a) defined the responsibility to respect human rights as a function of avoiding and addressing adverse human rights impacts that enterprises caused or contributed to through their own activities, UNGP Principle 13(b) defines the responsibility to respect human rights as a function of preventing or mitigating adverse human rights impacts. There are a number of interpretive points worth considering.
First, the obligation of the responsibility to respect touching on prevention and mitigation apply a “seek to” standard. That term carries with it the notion of making an attempt to do or deal with something. The Spanish language version identifies this as a “tratar” Standard; the French version uses the word “s’efforcent.” The French word sometimes carries with it the notion of trying hard to do something; the Spanish language version carries with it the notion of “dealing with” or “addressing” something. In all three versions the meaning appears to suggest attempting or trying. It does not mandate either that prevention or mitigation actually occur or occur in a particular way. The provision, then, embraces the notion that there may be failure to successfully attempt prevention or mitigation.
Second, the responsibility to attempt (“seek to”) prevent or mitigate applies to adverse human rights impacts[172] that are “directly linked;” the term in the Spanish language version is “directamente relacionadas” and in the French it is “directment liées.” All three, then, speak to a relationship of linkage that is “direct”. To be directly linked, under normal English usage would be to exhibit a relationship either without intervening factors or intermediaries—that is with nothing between the linked objects, actions or conditions. In this case, the “negative impact” must be linked without any intervening factor etc.
Third, the thing or condition to which they must be linked are one of three corporate activities or conditions or actions: that is, their “operations, products or services by their business relationships.” Again, the question arises as to the limits of each of these terms. For example, it is possible to suggest that the direct link may include the work or working conditions of gatekeepers hired by the enterprise to perform auditing, legal, financial or other services, but perhaps only to the extent that they relate to those services—a question that may become complicated. Likewise, the direct link to services may also include work subcontracted by a business with which the enterprise has a business relationship. Direct link via products may include the operations of entities with whom the enterprise contracts out for warranty or repair services. At the same time the product or service itself may generate or guarantee compliance with human rights the failure of which might trigger the expectations of Pillar 2.
12.4.3 UNGP Principle 13: Official Commentary
The Official Commentary focuses principally on the further elaboration of three key elements of text that might require further development to reduce ambiguity. Again, it might be borne in mind that the process of reducing ambiguity does not suggest that the UNGP text is meant to be precisely clear—rather, in line with the approach of principled pragmatism, the text ought to guide ambiguity within the principled parameters of the UNGP itself. It follows that the object of textual reading is to manage and guide rather than to resolve ambiguity—the resolution of which is meant to be undertaken in context. And that is perhaps, the fundamental point of Pillar 2. The three describe the reach and the direction of HRDD, and the third further describes key terms toward those ends.
More specifically, the first underscores that the reach of the responsibility, and the measure of adverse impacts extends beyond their own activities to those produced by the activities (as defined in UNGP Principle 13) of their business relationships with other parties. Those other parties need not only be corporations, but can be any natural or legal person or entity capable of contractual relations with which the enterprise deals. The second, and quite important, elaboration is in the form of a direction signal. It aligns the foundational principles of the 2d Pillar with its operational manifestation. Here the Commentary offers UNGP Principle 19 as the basis for interpretation of the text of UNGP Principle 13. The two, then, are to be read together. Third, the Commentary offers elaborations of two key terms. The first is “activities in UNGP Principle 13(a). “For the purpose of these Guiding Principles a business enterprise’s “activities” are understood to include both actions and omissions.” The second offers guidance on the sort of business relationships meant to be brought within the expectations of UNGP Principle 13: the business enterprise’s “’business relationships’ are understood to include relationships with business partners, entities in its value chain, and any other non-State or State entity directly linked to its business operations, products or services.” The guidance in the Commentary to UNGP Principle 13 makes clear that business relationships are to be read quite broadly.
12.4.4 UNGP Principle 13: Other Authoritative Interpretation/Commentary
12.4.4.1 The 2010 Draft. Draft UNGP Principle 13, circulated from the end of 2010,[173] diverged from the final text in some important respects. These differences may shed light on the meaning and plausible interpretation of text, or at least limit the scope of the plausibility of textual interpretation and application. The principal difference in this case is that, as originally drafted, what became UNGP Principle 13 was parsed among the Draft UNGP’s foundational and operational principles.
UNGP Principle 13’s various parts may be found connected to other foundational principles. The “causing or contributing” principles first appears in the text of the UNGP in Draft UNGP Principle 21, in the context of issues of scale and complexity and with respect to international crimes.[174] It first appears in HRDD in Commentary to Draft UNGP Principle 15, as a warning that conducting HRDD will not “automatically and fully absolve them from liability.”[175] The distinction between causing and contributing through the concept of “directly linked” may be found in the Draft UNGP Commentary to Principle 12. These touch on scope
UNGP Principle 13’s Commentary was also extracted, sharpened and modified from its 2010 Draft Commentary version. The Draft UNGP Principle 12 Commentary fleshed out what became UNGP Principle 13 and its Commentary but with an emphasis on “influence” and “leverage”. Draft UNGP Principle 12 Commentary starts with the elaboration of the meaning of scope of responsibility as including both direct and indirect elements in ways that suggest what becomes the language of UNGP Principle 13. It starts from the premise that there is no distinction between adverse impacts directly caused by the responsible enterprise and those caused by others within “its value chain, other non-State actors and State agents.”[176] That premise then may be overcome or affect the nature and context of response by reference to other identified factors or context related to risk. While the concept of “influence” is rejected as a basis for attributing responsibility for adverse impacts along supply chains, the concept of “leverage” is understood as a factor in risk assessment and the approaches to addressing adverse human rights impacts.[177] Much of this reflects the SRSG’s approach elaborated in the 2008 SRSG Reports.[178] The concept of leverage (and influence) however, are transposed to the final version of UNGP 19, along with the debate about the meaning of leverage and its relationship to influence.[179]
12.4.4.2 The Travaux Préparatoires and the Pre-Mandate Text. Most relevant for a gloss on UNGP Principle 13 are embedded in the key reports of the SRSG produced to mark the end of his initial mandate in 2008. These were meant to produce not just the framework within which a coordinated system of Guiding Principles could be developed; they were also meant to frame that development within a set of core premises that would guide the language, structure and boundaries of those principles as a whole.[180] And, indeed, the issue was deeply embedded in the initial mandate itself, one which directed the SRSG to “research and clarify the implications for transnational corporations and other business enterprises of concepts such as ‘complicity’ and ‘sphere of influence’.”[181] To that end, the SRSG produced a specifically responsive report,[182] one of three [183]that embellished the principal report setting out the Protect-Respect-Remedy Framework.[184] The SRSG traced the history of the use of the term “sphere of influence” in the context of business and human rights, and then aligned it with the work of the UN Global Compact.[185] The concept, however, SRSG Ruggie then argued, was too imprecise and ambiguous to be useful under the proposed Protect-Respect-Remedy framework.[186] Instead, SRSG Ruggie argued that in place of “influence” the notion of “impact” and “leverage” ought to be used. These were meant to describe the relationship of the responsible entity and human rights harms in two distinct categories.
One is “impact”, where the company’s activities or relationships are causing human rights harm. The other is whatever “leverage” a company may have over actors that are causing harm or could prevent harm. Impact falls squarely within the responsibility to respect; leverage may only do so in particular circumstances.[187]
From that conceptual distinction it is possible to make a further distinction—that is between actions directly undertaken by a responsible entity which causes adverse impacts that are expected to be addressed under HRDD principles, and those caused by entities with which the responsible entity has relations of ownership, control, or contract. The latter relationships produce the sort of “leverage” that the UNGP captures un UNGP Principle 19. But it also serves as the basis for producing the elaboration of the “particular circumstances” elaborated in UNGP Principle 13(b) under the “directly linked” standard. In this context the nature of the responsibility is to prevent or mitigate. The former then can be elaborated under the “causes or contributes” standard of what becomes UNGP Principle 13(a). In these circumstances the expectation is to avoid.
12.4.5 Other Glosses.
One must again distinguish between glosses on the UNGP, and efforts to argue for one or another best reading among the range of plausible approaches to an interpretation and application of the UNGP. Arguments toward a “best” or “sound” interpretation does not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. As the SRSG noted: “such debates need to be distinguished from assertions about what the UNGPs do or do not say—the text is there, 31 Principles with Commentaries.”[188] That, then, certainly was the intent of the SRSG when he noted in response to an assertion about the meaning of the UNGP in a particular context.[189]
Kishanthi Parella has provided a gloss on UNGP Principle 13.[190] Parella observes that the intention of UNGP 13 is to elaborate the nature of the corporate responsibility to respect as a function of the UNGP’s expectation that business organize its operational systems to prevent, mitigate and remedy adverse human rights impacts that fall within its sphere of responsibility.[191] What concerns Parella are the two challenges this form of the Principle might produce; the first respecting the substantive requirements of that expectation and the second the pathways toward creating incentives toward corporate compliance.[192]
Parella starts with a consideration of the negative impacts standard that triggers response under the responsibility to respect framework: first the “remove or reduce” the ability of a rights holder to enjoy those rights, whether that impact is actual or potential. Left unsaid, of course, is the limitation implicit in that triggering standard of UNGO Principle 12—that though the expectation applies to” all internationally recognized human rights,” the interpretation of those rights and their application in context is left to the actors with respect to which the State duty and corporate responsibility apply. That is the context that frames Parella’s observation that the breadth of UNGP 13, as well as its subjectivity, “can expose companies to legal and reputational risk and can also increase regulatory scrutiny in the three identified contexts: causing or contributing to negative impacts, or directly linked to business conduct causing or contributing to negative human rights impacts.[193]
Parella also notes that incentivization becomes a challenge where UNGP Principle 13 describes expectations which do not otherwise create in themselves a legal obligation to comply. Parella doubts that this will produce the sort of compliance that a legal mandate could extract from business conduct.[194] The doubt is explored in the context of market approaches,[195] and in transparency laws.[196] With respect to the first, Parella notes that, to be effective, market-based conduct respecting human rights must provide market participants with a means of evaluating companies based on their human rights performance. That raises two distinct problems, of course. One relates the construction and application of standards that are robust and uniform. The other relates to the availability of data and the scope of human rights to be assessed. Comparison is difficult where different measures are used to evaluate performance depending on region, basket of human rights to be assessed and the like. The UNGP does not require that uniformity, though it encourages States to develop them.[197] At best one might be able to look to measurement of compliance in context, but comparison remains a challenge, one that national legislation can only make worse where States develop and deploy different approaches to the scope of the expectations around corporate responsibility to respect human rights—even as between national and transnational enterprises,[198] or between enterprises based on size or other similar distinguishing measures.[199] In that respect Parella notes the similar conclusion of the UN Working Group in its 2018 Report to the UN General Assembly.[200] Parella notes this gap with respect to an effective compliance analytics.[201]
With respect to the second, Parella suggests that transparency laws would enhance markets driven incentives toward compliance with the expectations described in UNGP 13. These would not mandate compliance with the standards of UNGP Principle 13 but instead “would improve information flows between companies and various stakeholders.”[202] Offered as examples are the California Transparency and Supply Chains Act of 2012 and the UK Modern Slavery Act 2015.[203] Panella then offers a critique of these mandatory transparency approaches. The first touches on compliance by enterprises. The second touches on gaps in policy effectiveness reporting. The third touch on perceived gaps in the scope of reporting that some have argued might make the reputational risk of non-compliance more effective. The last touches on the absence of effective legal sanctions for non-compliance.[204]
It is worth noting with respect to these arguments that John Ruggie was well aware of the critique and of the risk that critique underscored. However, in the context of multiple and overlapping risks which cut in a variety of different directions he consciously chose to avoid the debates about legalization which, he believed, had paralyzed and perhaps doomed earlier efforts.[205] “The UNGPs sidestepped that issue by stating that businesses should look to the core set of international human rights instruments as an authoritative enumeration, not of international law.”[206]
12.5 UNGP Principle 14
12.5.1. UNGP Principle 14: Text
14. The responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure. Nevertheless, the scale and complexity of the means through which enterprises meet that responsibility may
vary according to these factors and with the severity of the enterprise’s adverse human rights impacts.
* * *
12.5.2.UNGP Principle 14: Commentary on Text
While UNGP Principle 11 sets out the general foundational expectation that business enterprises have a responsibility to respect human rights, UNGP Principles 12-15 elaborate that core principle and point to its parameters and fulfillment. Together, they form the foundational principles around which the operationalization of the corporate responsibility to respect human rights is elaborated. The first of these, UNGP Principle 12 connects the foundational and structuring expectation of UNGP Principle 11’s responsibility to respect to a normative baseline, one that is grounded in international law and norms rather than national constitutional principle. The second of these, UNGP Principle 13, focuses on the concept of impact and expectation for addressing adverse impacts, making a distinction between adverse impacts of the activities of the responsible entity and those that are directly linked to their operations. If UNGP Principle 13 looks outward at the scope and nature of the responsibility in the face of adverse impact, UNGP Principle 14 looks inward to the interrelationship between a responsible enterprise’s circumstances and the nature of the adverse impact it is expected to address. In this way UNGP Principle 14 introduces a sort of alignment, balancing perhaps, among the circumstances of the enterprise, the scale and complexity of the resources and capacity of the enterprise to meet its responsibilities and the severity of the adverse impact to be addressed. That is, both UNGP Principles 12 and 13 elaborate macro premises around the nature of human rights responsibilities; UNGP Principle 14, on the other hand, considers the micro-implications of these macro premises on an individual enterprise in the context in which it operates. At the same time, the contextual distinction created within UNGP Principle 14 also creates the inevitability of multi-tracking the forms and manifestations of the corporate responsibility to respect human rights now driven by differentiation among business enterprises by reference to their organization, operation, capacity and other circumstances.
The fundamental purpose of UNGP 14, then, is to elaborate a way of understanding the connect ion between the means an enterprise may have to meet its expectations respecting addressing adverse impacts and the intensity of that adverse impact. It starts with a general principle of applications, and then elaborates the standards under which that general principle may be avoided and the extent to which that avoidance may be utilized. At its core is the fundamental notion, one that might merit underscoring, that in the context of the Pillar 2 private rules based responsibility to respect, there are no singular or particularly specified ways in which any specific enterprise may go about meeting their responsibility to address adverse impacts, or to prevent them. Instead there are only circumstances and factors that must somehow be rationalized within the overarching framework of the fundamental premise in UNGP Principle 11 respecting the two elements of the expectation to respect human rights—to avoid or address adverse impacts. Everything else is circumstances based. .It is in this respect that the approach of the UNGP differ at its most fundamental level from the sensibilities and approaches of a law or rule based system, which would insist, given its own logic, on a leveling of obligation in the face of the law.
The central premise of UNGP Principle 14 is straightforward. That premise allocates the responsibility to respect human rights to “all enterprises regardless of their size, sector, operational context,
ownership and structure.”[207] That premise, however, was controversial. The initial focus of the work that was to be undertaken was focused on transnational corporations, and the shorthand term “business and human rights” referenced transnational corporations and their responsibilities.[208] Indeed, the predecessor project on the project that produced a draft of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (the Norms).[209] In that sense, and drawing on the historical context within which the business and human rights project had been undertaken since the 1960s, the initial focus had been tied to notions of national political and economic sovereignty in the face of two movements that sometimes were not aligned. The first was the post-colonial movement with its focus on independence and cultural/political/economic detachment from colonial pasts. The second was the rapidly emerging forms and practices of what would become markets driven economic globalization with its focus on increasingly integrated global production chains animated by a converging set of supra-national norms and expectations.[210] This is an idea that carried over to other international efforts, for example the work on a treaty for business and human rights with its focus on transnational corporations and other business enterprises.[211]
All enterprises is a quite broad descriptor. It is clear that it encompasses all business enterprises. Yet it is interesting to note that while the English version of UNGP 143 refers to “business enterprises”, both the Spanish and French versions refer only to “empresas” and “enterprises” respectively. That suggests that the term “enterprise in English is broader than the term “empresa” and “enterprise” in Spanish and French and thus requires the limiting term “business.” And yet the meaning of the French, Spanish, and English language terms are quite close and broader, at their limits, to strictly business enterprises. In all three cases, however, the term ought to be referenced back to the description that comes closest to a definition in the UNGP’s General Principles.[212] At the same time, the term can be broad enough to include all forms of business activity—including those undertaken by individuals, States and other actors.
The focus, then, is not on the form of the enterprise (now used a verb) but its character as directed toward economic activity. [213] That is made clearer by the description of the scope of the responsibility. The economic focus of the enterprise remains constant even as the “size, sector, operational context, ownership and structure” (UNGP Principle 14) becomes the focus of inclusion. The first sentence of UNGP Principle 14, then, appears to shift the emphasis from the character of the enterprise to the character of the activity from which adverse human rights impacts may occur. It manages this by presuming that all economic activity that produces or has the capacity to produce adverse human rights effects falls within the scope of the 2nd Pillar. It then makes clear that the organization of that economic activity does not affect either the expectation or the responsibility by reason of the character of the way that this economic activity is organized.
The second sentence of UNGP Principle 14 provides the exception to that presumption. Nonetheless, it is a peculiar exception. It does not overcome the premise that all enterprises engaging in economic activity must respect human rights in the form and manner specified in the 2nd Pillar (bounded by the other foundational principles of the 2nd Pillar). Instead the exception creates a matrix of sorts against which any enterprise can gauge its compliance obligations to either prevent or address adverse human rights consequences as specified in UNGP Principles 12 and 13. The matrix requires the initial assessment of two conditions. The first is the “scale and complexity of the means through which enterprises meet” their 2nd Pillar responsibility. That assessment is to n undertaken against an assessment of the enterprise’s “ size, sector, operational context, ownership and structure.” The second touches on an assessment of the “severity of the enterprise’s adverse human rights impacts.”
Taken together, UNGP Principle 14 provides a basis for transposing the more abstract macro concepts of UNGP Principles 11-13 into the circumstances of any enterprise. That is a critical element of the role of UNGP Principle 14 that ought to be underscored. The grand and overarching foundational Principles of UNGP Principles 11-13 provide the meta-framework and its equally “meta” elaboration. Nonetheless structures only provide the space, in contemporary terminology the platform, within which actors engage; and every actor and every situation is different. It is to mediate between the necessary flattening of overarching principles and the peculiarities of specific situations on the ground, that UNGP Principle 14 appears to have as its focus. The general principles remain unchanging—a responsibility to respect human rights grounded in an expectation of prevention, and if not prevention, then mitigation or remediation of adverse human rights impacts caused or contributed to, directly or indirectly by an enterprise operating within its chains of production and economic value creation. The specific application of those rules to a particular context then may be realized only where an enterprise develops structures that aid in the alignment of its own characteristics (“size, sector, operational context, ownership and structure”), with the characteristics of the adverse human rights impacts (“severity” of impact) that the enterprise is expected either to avoid, and if avoidance is not possible, then to address (“scale and complexity” of enterprise means to address impacts). One speaks here of an embedded principle of Ibid., pp grounded in alignment of factors that must be balanced against each other and which must, in the end be wholly responsive to the overall objective of the responsibility to respect human rights—to avoid or address adverse human rights impacts.
12.5.3 UNGP Principle 14 Official Commentary
The Official Commentary of UNGP Principle 14 reinforces the role of that principle within the architecture of the foundational principles of the corporate responsibility to respect human rights. It starts with an emphasis of the fundamental character of UNGP Principle 14 as embedded in a general principle of proportionality.[214] The Commentary then provides an example, distinguishing between the character and capacity of small and medium sized enterprises with that of larger companies, “so their respective policies and processes will take on different forms.” The Commentary is in this way linked to an emerging taxonomy of enterprise characteristics grounded in size (that is the notion that size serves as a proxy for capacity) and in this way adds a further connection between national[215] and international[216] normative and descriptive standards and their utility to the application of the UNGP Principles but in a way that leaves open a space for further development in the absence of countervailing international or national law.
The Commentary then turns to the concept of severity. The concept of severity is developed in its operational forms in UNGP Principle 19 (“preventing and mitigating under conditions of HRDD)[217] and UNGP Principle 24 (prioritization of responses to adverse impacts).[218] Severity analysis serves as the limiting factor for enterprise variability in shaping their human rights due diligence and response systems. “But some
small and medium-sized enterprises can have severe human rights impacts, which will require corresponding measures regardless of their size.”[219] UNGP Principle 14’s Commentary, then suggests the factors central to a severity analysis: defined by reference to the “scale, scope and irremediable character” of the adverse impacts.[220] That sets up a two sector matrix. On the one side are the characteristics and capacities of an enterprise, all of which when weighed and balanced against a contextually relevant standard may shape the reasonableness or appropriateness of the enterprise’s approach to meeting its responsibilities. On the other side are the factors contributing to an analysis of severity. The calculus of the form and approach to response will be determined by where in this matrix a particular situation falls. To those ends, UNGP Principles 19 and 24 will play a significant role in determining the way in which factors are identified and assessed.
The Commentary ends with a consideration of the application of UNGP Principle 14 where the enterprise subject to the responsibility to respect is part of a corporate group. In that respect, UNGP Principle 13’s scope rules will apply to the capacity/severity matrix of UNGP Principle 14. At the same time, this matrix is deeply embedded in what SRSG Ruggie referred to as the fundamental polycentricity of both the UNGP and the globalized economic order in which it was meant to operate; in this case serving as the marker of regulatory fragmentation in a context analysis.[221] At the same time it invokes the capstone principle of UNGP Principle 11 which sets out the expectation that all business enterprises “address adverse human rights impacts with which they are involved.”[222] However, the foundational principles make clear that the application of principles and the standards they identify requires a balancing of a number of factors that are, in virtually all instances, quite precisely context specific—and that context itself is a factor in approaching the incorporation in corporate action of the overarching principle set out on UNGP Principle 11. . it is clear that
12.5.4 UNGP Principle 14: Other Authoritative Interpretation/Commentary
12.5.4.1 The 2010 Draft. Draft UNGP Principle 12(c ) contains, in truncated form, what ultimately emerged in its final form as UNGP Principle 14.[223] As originally drafted the provision that became UNGP Principle 14’s focus on context appeared in the Official Commentary to Draft UNGP Principle 12.
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.[224]
Draft UNGP Principle 13 included much of the language that became a part of the final version of UNGP Principle 14. Draft UNGP Principle 13 spoke to the means through which an enterprise might meet its responsibility to respect through “policies and processes appropriate to their size and circumstances.” The sufficiency of that contextual application is to be assessed as a function of their effectiveness in enabling the enterprise “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.”[225] The Commentary to Draft UNGP Principle 13 describes this contextual analysis as a function of a proportionality analysis that takes into account both the capacity of the enterprise and what would, in the final version, be termed issues of severity.[226] The Commentary also emphasized that what is subject to proportionality/severity analysis are the forms of response rather than the extent of their responsibility to prevent, mitigate or remedy adverse human rights impacts.[227] This carries over in more refined form in the final version of UNGP 14 where it is distilled and emphasized within its own free standing Principle.
12.5.4.2 The Travaux Préparatoires and the Pre-Mandate Text. Most relevant for a gloss on UNGP Principle 14 are embedded in the key reports of the SRSG.[228] Of particular interest ought to be the 2007 SRSG Report 4/74 (Mapping Human Rights Impacts Assessments),[229] the 2008 SRSG Report 8/16 (Clarifying Concepts),[230] and the 2009 SRSG Report 11/13 (Operationalizing the UNGP).[231] The critical challenge in the period leading to the formulation first of the Protect, Respect, Remedy Framework, and then the specific text that would become the UNGP Principles remained constant—the practical challenges of a “one size fits all” approach to engaging in human rights due diligence and then addressing adverse human rights impacts where both the severity of impact and the capacity of the responsible enterprise can vary in significant ways. There is little that can be done to hard wire a mandatory approach. The situation requires factor analysis and balancing—not with respect to the fundamental responsibility but with respect to the means by which that responsibility is to be undertaken within the spirit of the UNGP. In this sense UNGP Principle 14’s approach represents one of the pronounced applications of SRSG Ruggie’s foundational principle of principled pragmatism.[232] In this case principled pragmatism directed the UNGP away from a rule to a formula, from a command and singular expectation, to contextual analytics that embraces the notion that while the objective remains unchanged the routes to compliance may vary, and perhaps vary considerably.
12.5.5 Other Glosses.
One must again distinguish between glosses on the UNGP, and efforts to argue for one or another best reading among the range of plausible approaches to an interpretation and application of the UNGP. Arguments toward a “best” or “sound” interpretation does not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. As the SRSG noted: “such debates need to be distinguished from assertions about what the UNGPs do or do not say—the text is there, 31 Principles with Commentaries.”[233] That, then, certainly was the intent of the SRSG when he noted in response to an assertion about the meaning of the UNGP in a particular context.[234]
Kishanthi Parella has provided a gloss on UNGP Principle 14.[235] Parella elaborates what UNGP Principle 14 provides in the form of the dual vector functional analysis of capacity and severity. Parella emphasizes the rule of proportionality described in UNGP Principle 14 Commentary, noting its importance in the preparation of U.N. capacity building materials.[236] Parella then considers the context-severity matrix in light of the proportionality principle.
First Parella considers UNGP Principle 14’s “size of business” factor analysis embedded in UNGP Principle 14 as a function of the overarching proportionality principle that lies at the heart of UNGP Principle 14. The key elements, Parella first focuses on issues on sizes as a function of scale and complexity.[237] Parella teases out the implications—focusing on size and proportionality: small company size tied to high human rights risk provides the limiting case. On the other hand, there is no necessary correlation between size of enterprise and capacity.[238] The problem with the analysis presented by Parella, and ultimately by functionaries at the United Nations,[239] flow not from the presumption that smaller businesses can be assumed to have proportionally diminished capacity, but that this premise becomes an avatar excusing analysis of context. And yet it is precisely context that is the touchstone of the analysis that is to be undertaken in UNGP Principle 14. [240] Parella approaches that from a different angle. Parella first notes that reputational incentives may not operate in the same way for small as for large companies. Parella then suggests cram down strategies as a means of capacity building, if only to protect against small company large risk scenarios, relying on larger and compliance rich companies along a supply chain to undertake the supervision and capacity building of the smaller enterprises down the supply chains in which they participate.[241] On the other hand, Parella also suggests that perhaps larger capacity may not be necessary because small size operations may be easier to monitor internally and therefore may produce more compliance with less.[242]
Parella then considers sector, operational context, ownership, and structure issues.[243] Operational context and sector “are useful in helping [companies to] determine the human rights that are at greatest risk from its operations,”[244] aligning UNGP Principle 12’s scope of responsibility focus with UNGP Principle 14’s means expectations. Ownership factors may be relevant respecting both capacity and the scope of responsibility, especially where the enterprise is State owned, Parella suggests. Lastly operational structure might become relevant with respect to the specific means used to address adverse human rights impacts. And indeed, means analysis through the analytical lens of the UNGP Principle 14 context-severity matrix is both the alpha and omega of the expectations at the core of that UNGP Principle.
With respect to severity, Parella draws on the UNGP Principle 14 Commentary to emphasize the critical analytical factors for impacts analysis: scale, scope and irremediable character.[245] Parella offers guidance with respect to each. Parella offers that scale is to be “assessed in light of [an impact’s] gravity” and scope is to be assed “in terms of the number of individuals that are or will be affected.”[246] Parella notes that irremediability is significantly affected by time to remedy as well as its inherent character as the difficulty of bringing a rights holder back to their condition immediately before the adverse impact.[247]
12.6 UNGP Principle 15
12.6.1. UNGP Principle 15: Text
15. 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, including:
(a) A policy commitment to meet their responsibility to respect human rights;
(b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights;
(c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute.
* * *
12.6.2.UNGP Principle 15: Commentary on Text
While UNGP Principle 11 sets out the general foundational expectation that business enterprises have a responsibility to respect human rights, UNGP Principles 12-15 elaborate that core principle and point to its parameters and fulfillment. Together, they form the foundational principles around which the operationalization of the corporate responsibility to respect human rights is elaborated. The first of these, UNGP Principle 12 connects the foundational and structuring expectation of UNGP Principle 11’s responsibility to respect to a normative baseline, one that is grounded in international law and norms rather than national constitutional principle. The second of these, UNGP Principle 13, focuses on the concept of impact and expectation for addressing adverse impacts, making a distinction between adverse impacts of the activities of the responsible entity and those that are directly linked to their operations. If UNGP Principle 13 looks outward at the scope and nature of the responsibility in the face of adverse impact, UNGP Principle 14 looks inward to the interrelationship between a responsible enterprise’s circumstances and the nature of the adverse impact it is expected to address. In this way UNGP Principle 14 introduces a sort of alignment, balancing perhaps, among the circumstances of the enterprise, the scale and complexity of the resources and capacity of the enterprise to meet its responsibilities and the severity of the adverse impact to be addressed. That is, both UNGP Principles 12 and 13 elaborate macro premises around the nature of human rights responsibilities; UNGP Principle 14, on the other hand, considers the micro-implications of these macro premises on an individual enterprise in the context in which it operates. UNGP Principle 15 then draws the foundational principles together and describes the bridging mechanism that is to be created to realize the abstract expectations of UNGP Principles 11-14 within the operational context of human rights Due Diligence in UNGP Principles 16-21.
The fundamental purpose of UNGP 15, then, is to bridge the scope and trajectories of the UNGP Pillar 2 Foundational Principles with the operational principles of UNGP Principles 16-21, and then with the scope and timing principles, UNGP Principles 22-24. That bridge consists of policies and processes, which are the heart of the operational principles that follow. UNGP Principle 15 starts with a textual expression of the core expectation of the UNGP Pillar 2 Foundational Principles—that expectation requires action by the responsible enterprise in three respects. First, the enterprise must produce a “policy commitment.” Second, the enterprise must implement and properly operate a human rights due diligence process. Third, the enterprise must also implement and properly operate processes of remediation. Appropriate action with respect to these three requirements is the necessary and minimum action that ought to be taken for an enterprise to “meet their responsibility to respect human rights.”
However, the importance of UNGP Principle 14 is also emphasized. The complying enterprise’s expectation to create and apply the policies and processes identified in the body of UNGP Principle 15 is to be undertaken within the context-severity matrix of UNGP Principle 14. This is underscored in the text by modifying the policies/processes expectation by the contextualizing their development and operationalization in ways that are “appropriate to their size and circumstances.” UNGP Principle 15 starts, then, from the presumption against a one size fits all policies/process apparatus in favor of one that will be contextually differentiated. That differentiation is then to be assessed an “appropriate” standard. And appropriateness is to be judged against size and circumstances.
With that as the conceptual foundation of UNGP Principle 15, the three forms around which the policy/process expectation is to be met are then identified. The first is a “policy commitment to meet their responsibility to respect human rights.”[248] The policy to which an enterprise commits includes the expectations elaborated in UNGP Pronciples 11-14. It is not clear how that policy commitment is to be expressed. At first blush it might be reasonable to assume that this policy commitment ought to be expressed in the manner and within the forms already used by an enterprise for the elaboration and distribution of policy of like importance. That suggests a high tolerance for variation limited only by the size/circumstances standard for appropriateness. It also suggests a limitation grounded in effectiveness, of course in contextually appropriate ways. What that suggests is that the policy might be set out in a writing and distributed on paper, or it may be uploaded to a website that includes other equally significant company policies. But it may also mean that the policy appear in languages accessible to those to whom it is directed or to whom it is to be applied. It may also mean that the policy may need to be accessible for people with no reading ability, with no access to traditional means of communication and distribution of policies, or for people with respect to whom other forms of accommodation may be necessary and contextually/size appropriate. These rules and expectations are elaborated at greater length at UNGP Principle 16.[249]
The second references a “human rights due diligence process to identify, prevent, mitigate, and account for how they address their impacts on human rights.”[250] This provision looks both back to the foundational principles and forward to the elaboration of expectations in the implementation and operation of a human rights due diligence system. It looks back to the foundational principles for the overall normative structures within which a human rights due diligence process s to be conceptualized and structured. It looks forward to the elaboration of those structures as set out in UNGP Principles 17-21.[251] What UNGP Principle 15 adds is the expectation that the processes to which it refers include all of the elements of human rights due diligence. That suggests, in turn, that while UNGP Principles 14 and 15 provide substantial leeway with respect to means of addressing adverse human rights impacts, that leeway does not permit omission of any of the key elements of a properly constituted human rights due diligence process, all of which are identified in UNGP 15.
The third references a set of processes that are to be distinguished from the processes of human rights due diligence.[252] These touch on processes that “enable the remediation of any adverse human rights impacts” the enterprise “causes or which they contribute.” These, in turn, touch on three distinct elements of remediation. The first are those that create an expectation of remediation cooperation and process within UNGP Pillar 2.[253] He second touches on the elaboration of issues of context that were introduced as a foundational matter in UNGP Principle 14. These include legal context and compliance,[254] and prioritization of remedy in UNGP Principle 24.[255]
Taken together, then, UNGP Principle 15 wraps the aggregation of Foundational Principles into a consolidated maas to be articulated first as a structuring policy and then from that structuring into the processes that are themselves the application of the Foundational principles into the operational life the enterprise. What UNGP Principle 15 contributes then is an expectation that both foundational and operational principles will be embedded within the regulatory framework and working life of every responsible enterprise, each expressed in a contextually relevant way. That is UNGP Principle 15’s primary purpose—to create the expectation of enterprise engagement in the enterprise of responsibility by delegating regulatory obligation to each enterprise operating in markets and engaged in activities that bear the risk of producing negative human rights impacts. In that was Pillar 2 may be distinguished in a fundamental way from Pillar 1.[256] In Pillar 1 the UNGP elaborated a duty from out of but also within the operational parameters of the State system expressed through its own ideological structures (the supremacy of political power, territoriality, rule of law, democratic engagement, international legality and normative frameworks and the like).[257] In Pillar 2 of the UNGP the elaboration is undertaken against the operational parameters of markets expressed through its own ideological structures (autonomous actors directing the scope, shape and character of transactions, individual responsibility subject to regulatory constraints by States undertaken through the management of systems of allocating liability for the adverse impacts of risk taking through tort, contract, and other law). While the deviation of State approaches may tolerate a little margin of appreciation,[258] the variation of autonomous market actors requires a distinctive approach. Within the lawful spheres of their actions enterprises exercise a measure of internal governance.[259] In order to internalize Pillar 2 structures and normative frameworks it is necessary to transpose its requirements from the space of international public normativity to that of the autonomous self-regulation of the enterprise itself.[260]
12.6.3 UNGP Principle 15 Official Commentary
The Official Commentary of UNGP Principle 15 is quite brief. It makes one point only—that the intention of UNGP Principle 15 is to underscore the need to embed human rights risk responsibility within the structures of corporate operation. “Business enterprises need to know and show that they respect human rights. They cannot do so unless they have certain policies and processes in place.”[261] The “need to know” references the foundational principles to be embedded internally. The “need to show” projects that internal embedding out through the operations of the enterprise. And it is the latter that are elaborated in the rest of the Principles of UNGP Pillar 2.[262]
12.6.4 UNGP Principle 14: Other Authoritative Interpretation/Commentary
12.6.4.1 The 2010 Draft. Draft UNGP Principle 13 contains, in truncated form, what ultimately emerged in its final form as UNGP Principle 15.[263] As originally drafted the provision that became UNGP Principle 15 set out what became the chapeaux of UNGP Principle 15 in final form. That is Draft UNGP Principle 13 included the final version’s expectation that companies have in place policies and processes appropriate to the size and circumstances of the enterprise. It then included the identification of the processes that eventually found their way to UNGP Principles 15(b) and ( c). It omitted the reference to the policy statement that appeared in the 2010 Draft UNCP Draft at Principle 14. The Commentary to Draft UNGP 13 included the “know and show” language carried over to the final version of the UNGP Principle 15 Commentary. But it also included language defining the framework for the expectation of the construction and dissemination of the policy commitment now absent from UNGP Principle 15 Commentary,[264] the substance of which was moved to UNGP Principle 16 Commentary and also to UNGP Principle 14 (with respect to context/severity considerations).[265]
12.6.4.2 The Travaux Préparatoires and the Pre-Mandate Text. Most relevant for a gloss on UNGP Principle 14 are embedded in the key reports of the SRSG.[266]
12.6.5 Other Glosses.
One must again distinguish between glosses on the UNGP, and efforts to argue for one or another best reading among the range of plausible approaches to an interpretation and application of the UNGP. Arguments toward a “best” or “sound” interpretation does not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. As the SRSG noted: “such debates need to be distinguished from assertions about what the UNGPs do or do not say—the text is there, 31 Principles with Commentaries.”[267] That, then, certainly was the intent of the SRSG when he noted in response to an assertion about the meaning of the UNGP in a particular context.[268]
Kishanthi Parella has provided a gloss on UNGP Principle 15.[269] Parella suggests that UNGP Principle 15 “provides substantive content to the corporate responsibility to respect identified in Principle 13.”[270] I have suggested a broader reading. For Parella, however, the “challenge is incentives.”[271] Parella identifies the flexibility built into UNGP Principle 15 derived from the flexibility of the Foundational Principles themselves. But where one might understand this flexibility as a positive, Parella suggests the opposite: that mandatory measures are required to manage discretion to avoid abuse.
In that context, Parella discusses the of stakeholders[272] and investors.[273] With respect to the former, Parella worries that UNGP Principle 15 will create an environment in which stakeholders, including consumers, are satisfied with policy with less attention focused on process and operationalization. It may also create incentives toward strategic use of disclosure (up playing positive developments and marginalizing failures or challenges). This might be regulated through transparency laws. And in that sense aligns the challenges of UNGP Principle 15 with the possibilities of Pillar 1’s “smart mix of measures” through State action.[274]
With respect to investors, Parella suggests that investors have incentives to demand not just policy but also reports. Evidence also suggests a willingness to seek reports on specific matters of interest to investor groups with clout.[275] Investors also have the power to shape compliance through the exercise of their shareholder power. This parallels the approach of certain sovereign wealth funds, notably the Norwegian Pension Fund Global, whose compliance apparatus has sought to compel enterprises to conform their compliance in ways that align with the UNGP among other instruments.[276]
Parella draws on some of the work of the UN Working Group.[277] The Working Group concluded that by 2018 companies covered by assessment for the most part did not demonstrate practices that meet the Working Group’s view of what constitutes UNGP compliance. This despite the structures of UNGP Principle 15. The view of these glossators is to some extent a product or consequence of the foundational premise that markets are not suitable for the elaboration of a system of human rights due diligence of the sort they might prefer.
12.7 Conclusion
UNGP Principles 11-15 set out the fundamental conceptual basis for elaborating a corporate responsibility to respect human rights beyond the legalities and political preferences of the State and deeply embedded in markets. The Foundational principles are set out logically to create a deeply self-referencing normative structuring of corporate responsibility within markets, the contents of which, of course, may be affected by States, singly, in groups, or through international instruments, as they projected public regulatory power onto the private law arrangements beyond their institutions.
UNGP Principle 11 sets put the “global standard of expected conduct for all business enterprises wherever they operate.”[278] The global standard is simple and straightforward: “Business enterprises should respect human rights”[279] Everything that follows in UNGP Principles 12.-15 is an elaboration of that ordering premise. Several sub-premises apply to the entirety of the Pillar 2 foundational principles. The first is that these principles provide expectations rather than mandatory obligations. The State may produce mandatory obligations through its political-institutional public authority—at least to the ends of its jurisdiction. The enterprise operates in markets both within and beyond the State. The foundation of those foundation concepts in expectation represents the deep embedding of the normative framework of principled pragmatism in the heart of the UNGP Pillar 2 structures. Principled pragmatism starts with current practice, adds to it the nudging effects of the UNGP normative framework the practice of which produces a dialectic over repeated application that is meant to move expectation closer to realization by internalizing norms through iterative practice. The model is not for the impatient.
The expectation of the core premise of the corporate responsibility to respect human rights is given a meaning: the expectation that enterprises ought to avoid infringing of the human rights of others, and should address adverse human rights impacts with respect to which the UNGP assigns them responsibility. Nonetheless the core of the principle is unwavering—the enterprise may have a responsibility, but its character is that of expectation, and expectations are social collective norms that may be quite severe in their effects but lie beyond the reach of the legal structures that define the relationship between States and their subjects. States, of course may, to the extent of their political will and for so long as that will is deemed worthy of manifestation, transform social expectation into mandatory legal duty. Yet that duty can extend no farther than the reach of their jurisdiction and may be checked by the habits, will and legal authority of other States, all subject to sometimes superior claims of authority in international law.
The meaning of this meaning of the corporate responsibility to respect human rights is then elaborated as a conceptual matter in UNGP Principles 12-15. UNGP Principle 12 identifies the international law and norms with respect to which the corporate responsibility arises. At its broadest to is limited to “internationally recognized human rights—a term that is itself elastic and subject to a variety of interpretations. UNGP Principle 12 also provides a minimum, the International Bill of Human Rights and the principles concerning human rights of the ILO’s Declaration on Fundamental Principles and the Right to Work. The Principle also emphasized detachment—a detachment from the legal or normative architecture of the responsibility to respect and the boundaries of a State’s duty to protect human rights. These two may overlap but neither controls the other with respect to scope or interpretation.
UNGP Principle 13 attaches the active principle of respect to the normative elaboration of UNGP Principle 12. UNGP Principle 13 divides the corporate responsibility into two parts. The first applies a “causing or contributing” standard to adverse human rights impacts. These ought to be avoided, and if avoidance is not possible, then addressed. Critical here is the way in which principles of principled pragmatism applies to the key terms—“causing and contributing”, “adverse impact” “through their own activities”, “avoid” and “address.” The focus first is on prevention; and if prevention is not possible then mitigation and then remediation. The second applies to adverse impacts “directly linked to their operations, products or services” by their “business relationships.” With respect to these, the expectation is to “seek to prevent or mitigate” any consequential adverse impacts, without regard to whether or not the enterprise contributed to those impacts. Within a production chain enterprises are responsible for the conduct of all others without regard to their contribution to the adverse impacts that must be addressed.
UNGP Principle 14 adds two critical elements to the conceptual framework of the corporate responsibility. The first introduces the notion that factors of scale and complexity may shape the “means through which enterprises meet” their Pillar 2 responsibilities. That introduces the notion of variability in the operationalization of Pillar 2 human rights due diligence—though not of the expectation of the responsibility to respect itself. Objectives remain constant; means vary from enterprise to enterprise. That produces a distinctive element in enterprise compliance that moves away from the one size fits all rigidity of law but is more suitable to the sensibilities and practices of the market (again principled pragmatism in system design). Specific factors that enter into the analysis are also identified: size, sector, operational context, and ownership and structure. Each of these is left undefined and thus amenable to development. The second introduces the concept of severity as a factor that shapes and limits the flexibility of adopting context specific means toward the realization of the responsibility to respect expectation. Severity, in turn “will be judged by their scale, scope and irremediable character.” Putting the two together produces the analytical matrix within which an enterprise can develop institutional structures for realizing the means of fulfilling their responsibility to respect, while severity adds temporal and transaction oriented limitation. Thus structures must be flexible enough to meet both the character of the enterprise and to respond to changing levels of severity of impact form transaction to transaction and over time.
Lastly UNGP Principle 15 serves as a bridge between the conceptual construction of the UNGP Pillar 2 responsibility to respect and the more precisely drawn operational principles built around human rights due diligence. The bridging is undertaken through the development of a conceptual basis for operationalization. That basis includes three elements. The first is based on the production of a useable enterprise policy commitment in a form that furthers the task of fulfillment. This will be elaborated in UNGP Principle 16. The second focuses on the essential role of human rights due diligence as the primary mechanism for realizing the Pillar 2 foundational principles in context. These will be elaborated in UNGP Principles 17-21. And the third focuses on the elaboration of a suitable remediation framework. These will be elaborated in UNGP Principles 22-24. Holding these together and emphasizing the important of the analytics framework of factor balancing in UNGP Principle 14 is the overarching referent against which these policies and processes are to be elaborated: an “appropriate to size and circumstances” standard. The foundational principles thus appear to make clear enough that while the UNGP describes a unitary normative standard, it “activates” that normative standard (e.g. addressing adverse human rights impacts measured against internationally recognized human rights), as well as a single framework for its fulfillment (human rights due diligence), it also provides substantial flexibility, which can differ from enterprise to enterprise, with respect to the means adopted to fulfill these expectations, and that even those means may be required to vary depending on the severity of individual cases of adverse impact
[1] Discussed Chapter 6.1.
[2] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights A/HRC/8/5 (7 April 2008); available [https://undocs.org/en/A/HRC/8/5]; last accessed 25 February 2024.
[3] Discussed Chapter 3.2.4.2.
[4] Human Rights Council, Mandate of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, A/HRC/Res/8/7 (18 June 2008) [https://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_8_7.pdf] (hereafter the UNHRC 2008 Resolution). Discussed Chapter 3.3.2.
[5] Discussed Chapters 7-11.
[6] Discussed Chapters 12-16.
[7] Discussed Chapters 17-21.
[8] Discussed in Chapter 8.
[9] Discussed in Chapter 9.
[10] Discussed Chapter 10.
[11] Discussed Chapter 11.
[12] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Business and human rights: mapping international standards of responsibility and accountability for corporate acts, A/HRC/4/35 (19 February 2007); available [https://undocs.org/en/A/HRC/4/35]; last accessed 25 February 2024; 2007 SRSG Report Mapping 4/35 Addendum 1-- Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Human rights impact assessments - resolving key methodological questions Addendum 1: State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries A/HRC/4/35/Add.1
(13 February 2007); available [https://undocs.org/en/A/HRC/4/35/Add.1]; last accessed 25 February 2024. Both are discussed at Chapter 3.2.3.
[13] Discussed Chapter 5.2.
[14] Discussed Chapter 7.2.2.
[15] UNGP Principle 1 is set out at Chater 7.1.1 (“States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”).
[16] Discussed Chapter 6.
[17] Discussed Chapter 7.2.
[18] Discussed Chapter 8.
[19] See, e.g., Merriam-Webster, enterprise, available [https://www.merriam-webster.com/dictionary/enterprise], last accessed 12 December 2024.
[20] Etymology Online, enterprise, available [https://www.etymonline.com/word/enterprise], last accessed 1 December 2024.
[21] Etymology Online, business, available [https://www.etymonline.com/search?q=business], last accessed 1 December 2024.
[22] La langue française, Enterprise, available [https://www.lalanguefrancaise.com/dictionnaire/definition/entreprise], last accessed 1 December 2024.
[23] That is the essence of the “General Principles” discussed Chapter 6.
[24] Peter T. Muchlinski, Multinational Enterprises and the Law (2nd ed., OUP, 2021), pp. 3-31.
[25] A recent example of the convergence of interpretation and politics in the area of human rights from 2024 might be seen in the efforts of the State of Ireland to re-imagine the legal definition of genocide to be better in accord with its political determination that whatever it was that the Republic of Ireland assumed the State of Israel did or did not do in Gaza was a better definition of the term. ‘ICJ asked to broaden definition of genocide over 'collective punishment' in Gaza,’ Sky News (12 December 2024); available [https://news.sky.com/story/icj-asked-to-broaden-definition-of-genocide-over-collective-punishment-in-gaza-13271874], last accessed 13 December 2024..
[26] Discussed Chapters 3.1, and 5.2.
[27] See discussion in Chapters 7-11.
[28] See, Plain Writing Act of 2010, Public Law 111–274 111th (U.S.).
[29] Federal Plain Language Guidelines (March 2011; Revision 1, May 201); available [https://www.plainlanguage.gov/guidelines/?_gl=1*ri2fe6*_ga*NjE0MTM2MTU0LjE3MzQ1NTg4Nzc.*_ga_HBYXWFP794*MTczNDU1ODg3Ni4xLjAuMTczNDU1ODg3Ni4wLjAuMA..], last accessed 12 December 2024, p. 25.
[30] Discussed Chapter 7-11.
[31] Etymology Online, respect, available [https://www.etymonline.com/word/respect], last accessed 11 December 2024.
[32] Ibid.
[33] Discussed Chapter 6.
[34] Discussed Chapter 12.3.
[35] Etymology Online, avoid, available [https://www.etymonline.com/word/avoid], last accessed 12 December 2024.
[36] Cambridge Dictionary, available [https://dictionary.cambridge.org/us/dictionary/english/avoid], last accessed 12 December 2024.
[37] The term evitar is defined in the Spanish as avoiding a particular place, danger or inconvenience; but also as a moving away from or shunning an object, person or activity. Cambridge Dictionary Spanish-English, available [https://dictionary.cambridge.org/dictionary/spanish-english/evitar], last accessed 13 December 2024.
[38] Discussed Chapter 12.3.
[39] Cambridge Dictionary, available [https://dictionary.cambridge.org/us/dictionary/english/address], last accessed 12 December 2024.
[40] Discussed Chapter 8.
[41] Discussed Chapter 3.1.
[42] Discussed Chapters 7-11.
[43] Considered for example in Mark B. Taylor, ‘The Ruggie Framework: Polycentric regulation and the implications for corporate social responsibility,’ (2011) 5(1) Etikk i Praksis: Nordic Journal of Applied Ethics 9-30 (drawing on the travaux Préparatoire); Elinor Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems (2010) 100(3) The American Economic Review 641-672;
[44] Discussed Chapter 3 in the context of the SRSG’s travaux préparatoires.
[45] Tiffany H. Morrison, Örjan Bodin, Graeme S. Cumming, Mark Lubell, Ralf Seppelt, Tim Seppelt, and Christopher M. Weible, ‘Building Blocks of Polycentric Governance,’ (2023) 51(3) Policy Studies Journal 475-499.
[46] For example from the U.S. and its securities transaction regulations, see TSC Industries v. Northway, 426 U.S. 438, 449 (1976) (a fact is material “if there is a substantial likelihood that a reasonable shareholder would consider it important” in making an investment decision or if it “would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available” to the shareholder). See generally David A. Katz and Laura A. McIntosh, ‘Corporate Governance Update: “Materiality” in America and Abroad,’ Harvard Law School Forum on Corporate Governance (1 May 2021); available [https://corpgov.law.harvard.edu/2021/05/01/corporate-governance-update-materiality-in-america-and-abroad/], last accessed 1 December 2024.
[47] Nuria Padilla-Garrido, Francisco Aguado-Correa, Inmaculada Rabadán-Martín, José María López-Jiménez, Juan José de la Vega-Jiménez, and Ignacio Peletier-Ribera, ‘Materiality analysis in sustainability reporting: Insights from large Spanish companies,’ (2024) 31(6) Corporate Social Responsibility and Environmental Management 5391-5412.
[48] UNGP Principle 11 Official Comment.
[49] Ibid. “It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations.”
[50] Ibid. (it “does not diminish those obligations”).
[51] Discussed Chapters 7-11.
[52] UNGP Principle 11 Official Commentary.
[53] Discussed Chapter 7.3 and Chapter 8.
[54] UNGP Principles 25-31.
[55] UNGP Principle 11 Official Commentary.
[56] The challenges as linkage issues are discussed Chapter 5.4.
[57] Ibid.
[58] See, Radu Mares, ‘Securing Human Rights Through Risk Management Methods: Breakthrough or Misalignment?,” (2019) 32(3) Leiden Journal of International Law 517-535; Melissa Checker, ‘Double Jeopardy: Carbon Offsets and Human Rights Abuses,’ (2010) 51 Synthesis/Regeneration 18-21.
[59] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[60] Discussed Chapters 12.3-12.5.
[61] 2010 Draft UNGP Principle 12.
[62] Ibid.
[63] Discussed Chapter 6.
[64] 2010 Draft Principle 12 Commentary.
[65] Discussed Chapter 5.3.
[66] Discussed Chapter 6.
[67] Discussed Chapter 7.2.
[68] Discussed Chapter 7.3
[69] Discussed Chapter 8.
[70] Chapter 4.
[71] Sub-Commission on the Promotion and Protection of Human Rights, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) See, David Weissbrodt and Maria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ American Journal of International Law 97 (2003) 901-922; available <https://scholarship.law.umn.edu/faculty_articles/243> accessed 15 February 2022.
[72] John G. Ruggie, The Social Construction of the UN Guiding Principles on Business & Human Rights, Harvard Kennedy School of Government Faculty Research Working Paper Series RWP17-010 (August 2017), pp. 12-16.
[73] Discussed Chapter 3.2.4.
[74] Discussed Chapter 3.3.
[75] César Rodríguez-Garavito (ed.), Business and Human Rights: Beyond the End of the Beginning (Cambridge UP 2017), p. 11, quoted with approval in John G. Ruggie, The Social Construction of the UN Guiding Principles on Business & Human Rights, supra, p. 15.
[76] SRSG Ruggie was fond of noting the hope that “they would trigger an iterative process of interaction among the three global governance systems, producing cumulative change over time.” John G. Ruggie, The Social Construction of the UN Guiding Principles on Business & Human Rights, supra, p. 15.
[77] Discussed Chapter 3.1, 5.2.
[78] “Letter from John Ruggie to Saskia Wilks and Johannes Blanenbach’ (19 September 2019), available [https://media.business-humanrights.org/media/documents/files/], last accessed 15 May 2024.
documents/19092019_Letter_John_Ruggie.pdf (accessed 9 March 2021).
[79] See Discussion Chapter 1.1.
[80] Organization for Economic Cooperation and Development (OECD), OECD Guidelines for Multinational Enterprises (Paris: OECD, 2023).
[81] International Labor Organization 2017 Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (Geneva: ILO, adopted in 1977, revised in 2000, 2006 and 2017 (2022 printing), General Policies, ¶ 10 (“The Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011) outline the respective duties and responsibilities of States and enterprises on human rights.”).
[82] International Organization for Standardization, ‘International Standard on Social Responsibility ISO 26000’, (ISO, 1 January 2010); available [https://www.iso.org/iso-26000-social-responsibility.html], last accessed 20 September 2024.
[83] The UN Guiding Principles on Business and Human Rights: Relationship to UN Global Compact Commitments
July 2011 (Updated June 2014); available [https://d306pr3pise04h.cloudfront.net/docs/issues_doc%2Fhuman_rights%2FResources%2FGPs_GC+note.pdf], last accessed 20 December 2024 (“They reinforce the Global Compact and provide an authoritative framework for participants on the policies and processes they should implement in order to ensure that they meet their responsibility to respect human rights.” Ibid., p. 2).
[84] See, e.g., Directive (EU) 2024/1760 of the European Parliament and of the Council of 13 June 2024 on corporate sustainability due diligence and amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859; available [https://eur-lex.europa.eu/eli/dir/2024/1760/oj], last accessed 20 December 2024.
[85] Jennifer Kwao (with Audrey Changoe), The EU’s Corporate Sustainability Due Diligence Directive Explained, (Brussels: Public Action Network (CAN), 2024), p. 3.
[86] Sara L. Seck, ‘Guiding Principle 11: The Responsibility of Business Enterprises to Respect Human Rights,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 85-91.
[87] Ibid., p. 85
[88] Discussed Chapter 12.2.4.1.
[89] Seck, Guiding Principle 11, supra, p. 86-87.
[90] Ibid.
[91] Ibid., pp. 87-88.
[92] Ibid., p. 88.
[93] Ibid., pp. 88-90.
[94] Ibid., p. 90.
[95] For a discussion see Larry Catá Backer, ‘Rights and Accountability in Development v DAS Air and Global Witness v Afrimex: Small Steps towards an Autonomous Transnational Legal System for the Regulation of Multinational Corporations,’ (2009) 13 Melb J lInt Law 258.
[96] The origins and functions of the UN Working Group are discussed Chapter 2.2.
[97] Seck, Guiding Principle 11, supra, p. 89-90.
[98] Ibid., pp. 90-91.
[99] Ibid., 90.
[100] Ibid. UNGP Principle 22 is discussed at Chapter 15.
[101] Seck, Guiding Principle 11, supra, p. 90.
[102] Javier Couso, ‘Sine Qua Non: On the Role of Judicial Independence for the Protection of Human Rights in Latin America,’ (2015) 33(2) Netherlands Quarterly of Human Rights 251-259; discussed Chapter 17.
[103] Cf., Mark V. Tushnet, ‘The Role of Courts in Social Change: Looking Forward?,’ (2006) 54 Drake Law Review 909-922; Larry Catá Backer, ‘Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process,’ (2000) 20(2) Boston College Third World Law Journal 291-343.
[104] Seck, Guiding Principle 11, supra, pp. 90-91.
[105] Ibid.; discussed Chapter 11.
[106] UNGP General Principles, discussed Chapter 6.
[107] Discussed Chapter 3.2.
[108] Discussed Chapters 3.2.2. and 4.2.
[109] Etymology Online, refer, available [https://www.etymonline.com/word/refer], last accessed 12 December 2024.
[110] Discussed Chapters 3.2, 4.2, and 5.3.
[111] Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, 17 July 1998,
Art. 21(3) [Rome Statute]; see, Daniel Sheppard, ‘The International Criminal Court and “Internationally Recognized Human Rights”: Understanding Article 21(3) of the Rome Statute,’ (2010) 10 International Criminal Law Review 43-71.
[112] Ibid., see also Sergii Masol, The Content of Internationally Recognized Human Rights Under the Rome Statute of the International Criminal Court (Routledge, 2020).
[113] United Nations Millennium Declaration (adopted 08 September 2000), General Assembly resolution 55/2; available [https://www.ohchr.org/en/instruments-mechanisms/instruments/united-nations-millennium-declaration], last accessed 20 December 2024; ¶24 (“We will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development”).
[114] Cf., Theodore Meron, “Norm Making and Supervision in International Human Rights: Reflections on Institutional Order”, (1982) 76 American Journal of International Law 754.
[115] E.g., Statute of the International Court of Justice, 26 June 1945, Art. 38(1) [ICJ Statute].
[116] United States Department of State, Country Reports on Human Rights Practices; available [https://www.state.gov/reports-bureau-of-democracy-human-rights-and-labor/country-reports-on-human-rights-practices/], last accessed 20 December 2024 (“The annual Country Reports on Human Rights Practices, also known as the Human Rights Reports, cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and other international agreements.” Ibid.).
[117] For example UNGP General Principles and the reference to legally binding obligations under international law. Discussed Chapter 6. See discussion Chapter 12.3.3.
[118] Georges Enderle, Corporate Responsibility for Wealth Creation and Human Rights (CUP, 2021), chapter 11 (describing 30 internationally recognized human rights are listed and deemed necessary for a human life with dignity); Data project ranks how well countries around the globe protect human rights (24 December 2024; available [https://www.binghamton.edu/news/story/4059/data-project-ranks-how-well-countries-around-the-globe-protect-human-rights], last accessed 25 December 2024) (“The 72 internationally recognized rights in CIRIGHTS’ database include those related to physical integrity, such as those prohibiting torture and extrajudicial killings; workers’ rights, such as fair working conditions and the right to unionize; the political rights of women and Indigenous people; and the right to a fair trial.”)
[119] Christopher N.J. Roberts, The Contentious History of the International Bill of Human Rights (CUP, 2015).
[120] Frederic Megret, ‘Lost in Translation?: Bill 21, International Human Rights, and the Margin of Appreciation,’ (2020) 66(1) McGill Law Journal 213-252; Larry Catá Backer, ‘Inscribing Judicial Preferences into Our Fundamental Law: On the European Principle of Margins of Appreciation as Constitutional Jurisprudence in the U.S.,’ (1999) 7(2) Tulsa Journal of Comparative & International Law 327-373.
[121] Discussed Chapter 8.
[122] Sub-Commission on the Promotion and Protection of Human Rights, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) See, David Weissbrodt and Maria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ American Journal of International Law 97 (2003) 901-922; available <https://scholarship.law.umn.edu/faculty_articles/243> accessed 15 February 2022. Discussed Chapter 4.
[123] Discussed Chapter 3.2
[124] Discussed Chapter 5.3.
[125] Discussed Chapter 6.
[126] Discussed Chapter 3.1.
[127] UNGP Principle 12 Commentary (“In practice, some human rights may be at greater risk than others in particular industries or contexts, and therefore will be the focus of heightened attention.”).
[128] Ibid. (“However, situations may change, so all human rights should be the subject of periodic review.”).
[129] Discussed Chapters 3.2, 4.3, and 5.2
[130] UNGP Principle 12 Commentary (“These are the benchmarks against which other social actors assess the human rights impacts of business enterprises.”).
[131] Ibid. (“An authoritative list of the core internationally recognized human rights
is 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 principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work.”).
[132] Ibid. (“The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions.”).
[133] Ibid. (“Depending on circumstances, business enterprises may need to consider additional standards.”).
[134] Ibid.
[135] Ibid. Discussed Chapter 5.4.
[136] UNGP Principle 12 Commentary (“In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families.”).
[137] Ibid. (“in situations of armed conflict enterprises should respect the standards of international humanitarian law.”).
[138] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[139] As originally drafted the provision that became UNGP Principle 12 provided that the responsibility to respect human rights “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.” Draft Principle 12(a).
[140] Discussed Chapter 3.2.
[141] Draft UNGP Principle 12(a) Commentary.
[142] Discussed Chapter 3.1-3-3, Chapter 4.
[143] Discussed Chapter 3.2 and Chapter 5.
[144] John G. Ruggie, ‘Protect, Respect, and Remedy: The UN Framework for Business and Human Rights,’ International Human Rights Law (chapter 27) 519-538, 528-529; available [https://scholar.harvard.edu/files/john-ruggie/files/protect_respect_remedy_the_un_framework_book_0.pdf], last accessed 20 January 2025.
[145] Ibid., p. 528.
[146] Discussed Chapter 3, 4.3.
[147] “Letter from John Ruggie to Saskia Wilks and Johannes Blanenbach’ (19 September 2019), available [https://media.business-humanrights.org/media/documents/files/], last accessed 15 May 2024.
documents/19092019_Letter_John_Ruggie.pdf (accessed 9 March 2021).
[148] See Discussion Chapter 1.1.
[149] Sarah Joseph, ‘Guiding Principle 12: Minimum Human Rights Standards for Pillar II,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 92-100.
[150] Ibid., pp. 92-93, 95-96, 98.
[151] Larry Catá Backer, Chinese State-Owned Companies and Investment in Latin America and Europe, in Human Rights and Environmental Sustainability in State-Owned Enterprises in Latin America and Europe 147-191 (Judith Schonsteiner and Markus Krajewski, eds., Routledge, 2024).
[152] Joseph, pp. 93-94.
[153] Ibid. p. 94.
[154] Ibid.
[155] Bid., p. 95.
[156] Ibid., pp. 96-97.
[157] Ibid., p. 97.
[158] UNGP General Principles, discussed Chapter 6.
[159] Discussed Chapter 3.
[160] Discussed Chapter 7.
[161] EU Commission, The European Green Deal: Striving to be the First Climate Neutral Continent,” available https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/european-green-deal_en, last accessed 9 June 2025.
[162] Directive (EU) 2022/2464 of the European Parliament and of the Council of 14 December 2022 amending Regulation (EU) No. 537/2014, Directive 2004/109/EC and Directive 2013/34/EU, as Regards to Corporate Sustainability Reporting OJ L 322/15 (16 December 2022) .
[163] U.S. Department of State, United States Government National Action Plan on Responsible Business Conduct (Washington, D.C., 2024)
[164] UNGP Principle1; see also UNGP Principle 4 Commentary and discussion Chapters 7 and 9.
[165] Etymology Online, require, available [https://www.etymonline.com/word/require], last accessed 15 January 2025.
[166] Discussed Chapter 3.1.
[167] Martha Chamallas and Jennifer B. Wriggins, The Measure of Injury : Race, Gender, and Tort Law (NYU Press 2010); Tobias Gerstenberg and Thomas Icard, Expectations Affect Physical Causation Judgments, (2020) 149(3) Journal of Experimental Psychology: General 599-607.
[168] Marta Infantino, and Eleni Zervogianni, Unravelling Causation in European Tort Laws: Three Commonplaces through the Lens of Comparative Law, Rabels Zeitschrift für ausländisches und internationales Privatrecht / The Rabel Journal of Comparative and International Private Law, Bd. 83, H. 2, Mit den Beiträgen des Symposiums: Juristische Methodenlehre (April 2019), pp. 241-287; Francesco Parisi Ram Singh, The Efficiency of Comparative Causation, (2010) 6(2) Review of Law & Economics 219- 245.
[169] The Law of Contribution, (1869) American Register 449-461; available [https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=2345&context=penn_law_review], last accessed 12 January 2025.
[170] Discussed Chapters 7, 8, and 9.
[171] Etymology Online, address; available [https://www.etymonline.com/word/address], last accessed 12 January 2025.
[172] Discussed among other places Chapter 7.
[173] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[174] Draft UNGP Principle 21 (“Treat the risk of causing or contributing to international crimes as though it were a legal compliance issue”).
[175] Draft UNGP Principle 15 Commentary.
[176] Draft UNGP Principle 12 Commentary.
[177] Ibid. (“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.”).
[178] Discussed Chapter 3.2. See especially Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Clarifying the Concepts of “Sphere of influence” and “Complicity” A/HRC/8/16 (15 May 2008); available [https://undocs.org/en/A/HRC/8/16]; last accessed 25 February 2024.
[179] Discussed Chapter 14.
[180] Discussed Chapter 3.2.
[181] United Nations Commission on Human Rights, Human Rights Resolution: 2005/69, E/CN.4/RES/2005/69 (20 April 2005); available [https://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2005-69.doc], last accessed 1 March 2024. See discussion Chapter 3.3.
[182] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Clarifying the Concepts of “Sphere of influence” and “Complicity” A/HRC/8/16 (15 May 2008); available [https://undocs.org/en/A/HRC/8/16]; last accessed 25 February 2024 (2008 SRSG Report 8/16 Clarifying Concepts).
[183] Discussed Chapter 3.2.
[184] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Protect, Respect and Remedy: a Framework for Business and Human Rights A/HRC/8/5 (7 April 2008); available [https://undocs.org/en/A/HRC/8/5]; last accessed 25 February 2024.
[185] 2008 SRSG Report 8/16 Clarifying Concepts §§ 5-9.
[186] Ibid., §§10-18.
[187] Ibid。， § 12.
[188] “Letter from John Ruggie to Saskia Wilks and Johannes Blanenbach’ (19 September 2019), available [https://media.business-humanrights.org/media/documents/files/], last accessed 15 May 2024.
documents/19092019_Letter_John_Ruggie.pdf (accessed 9 March 2021).
[189] See Discussion Chapter 1.1.
[190] Kishanthi Parella, ‘Guiding Principle 13: Guiding Principle 13: Responsibility of the Business Sector,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 101-108.
[191] Parella, supra., p. 101
[192] Ibid.
[193] Ibid., p. 102 (with reference to the scope of indirect causation expectation under the “contribute to the impact” standard. See also discussion Chapter 6.
[194] Ibid., p. 103.
[195] Ibid., pp. 103-104
[196] Ibid., pp. 104-107.
[197] Discussed Chapter 11.
[198] This has been a significant issue respecting negotiation over the scope of the proposed draft Treaty on Business and Human Rights. See, Zgjim Mikullovci, Overview of the Proposed Binding Treaty on Business and Human Rights, Georgetown Center on Transnational Business and the Law Blog (9 March 2023), available https://www.law.georgetown.edu/ctbl/blog/an-overview-of-the-proposed-legally-binding-instrument-to-regulate-in-international-human-rights-law-the-activities-of-transnational-corporations-and-other-business-enterprises/.
[199] This distinction was built into the E.U. Corporate Sustainability Due Diligence Directive, Directive (EU) 2024/1760 of the European Parliament and of the Council (13 June 2024) on Corporate Sustainability Due Diligence and Amending Directive (EU) 2019/1937 and Regulation (EU) 2023/2859, OJ L/2024/1760, Art. 2(2).
[200] Parella, p. 104; United Nations General Assembly, Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises—Note to Secretary General (2018) A/73/163, 11.
[201] Ibid., p. 107 (requiring standardized aggregation, measurement, contextualization, evaluation and recommendation criteria).
[202] Parella, p. 104.
[203] Ibid., pp. 105-106.
[204] Ibid., pp. 106-107.
[205] John G. Ruggie, Corporate Globalization and the Legal Order: Disembedding and Reembedding Governing Norms, in Peter J. Katzenstein and Jonathan Kirshner (eds.), The Downfall of the American Order?: Liberalism’s end? (Cornell University Press, 2022), pp. 144-164.
[206] Ibid., p. 161.
[207] UNGP Principle 14.
[208] U.N. Economic and Social Council, Sub-Commission on the Promotion and Protection of Human Rights, Report of the United Nations High Commissioner on Human Rights on the responsibilities of transnational corporations and related
business enterprises with regard to human rights E/CN.4/2005(91 (15 Feb, 2005), ¶¶ 1-2.
[209] Sub-Commission on the Promotion and Protection of Human Rights, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) See, David Weissbrodt and Maria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ American Journal of International Law 97 (2003) 901-922; available <https://scholarship.law.umn.edu/faculty_articles/243> accessed 15 February 2022. Discussed Chapter 4.2.
[210] Discussed in 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, (2006) 37 Columbia Human Rights Law Review 287.
[211] U.N. Human Rights Council, Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, RES 26/9 (14 July 2014).
[212] Discussed Chapter 6.
[213] See discussion of the term enterprise in Chapters 6 and 7.
[214] UNGP Principle 14 Commentary (“The means through which a business enterprise meets its responsibility to
respect human rights will be proportional to, among other factors, its size.”).
[215] See, e.g., U.S. Small Business Administration, Small Business Size Regulation, 61 F.R. 3286 (31 Jan. 1996); Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (notified under document number C(2003) 1422) (OJ L 124, 20.5.2003, pp. 36–41).
[216] See, e.g., World Bank, International Financial Corporation, “IFC’s Definitions of Targeted Sectors, available https://www.ifc.org/en/what-we-do/sector-expertise/financial-institutions/definitions-of-targeted-sectors last visited 30 August 2025.
[217] Discussed Chapter 14.
[218] Discussed Chapter 16.
[219] UNGP Principle 14 Commentary.
[220] Ibid.
[221] John G. Ruggie, Global Governance and "New Governance Theory": Lessons from Business and Human Rights, (2014) 20(1) Leiden Law Review 5-17.
[222] Discussed Chapter 12.2.
[223] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[224] 2010 Draft UNGP Principle 12 Commentary.
[225] Draft UNGP Principle 13.
[226] Ibid., Commentary (“he means through which a business enterprise meets its responsibility will be proportional to its size and the gravity or scale of its human rights impacts.”).
[227] Ibid.
[228] Discussed Chapter 3
[229] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Human rights impact assessments - resolving key methodological questions Addendum 2: Corporate responsibility under international law and issues in extraterritorial regulation: summary of legal workshops A/HRC/4/35/Add.2 (15 February 2007); available [https://undocs.org/en/A/HRC/4/35/Add.2]; last accessed 25 February 2024
[230] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Clarifying the Concepts of “Sphere of influence” and “Complicity” A/HRC/8/16 (15 May 2008); available [https://undocs.org/en/A/HRC/8/16]; last accessed 25 February 2024.
[231] Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Business and human rights: Towards operationalizing the “protect, respect and remedy” framework A/HRC/11/13 (22 April 2009); available [https://undocs.org/en/A/HRC/11/13]; last accessed 25 February 2024.
[232] Discussed Chapter 3.
[233] “Letter from John Ruggie to Saskia Wilks and Johannes Blanenbach’ (19 September 2019), available [https://media.business-humanrights.org/media/documents/files/], last accessed 15 May 2024.
documents/19092019_Letter_John_Ruggie.pdf (accessed 9 March 2021).
[234] See Discussion Chapter 1.1.
[235] Kishanthi Parella, ‘Guiding Principle 14:Nature and Size of the Business Enterprise,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 109-112.
[236] Ibid., pp. 109-110; citing United Nations Human Rights Office of the High Commissioner, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (2021) UN Doc. HR/PUB/12/02, 19.
[237] Ibid., pp. 109-110.
[238] Ibid., ¶14.04.
[239] United Nations Human Rights Office of the High Commissioner, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (2021) UN Doc. HR/PUB/12/02, 20.
[240] See as well to the altogether too easy construction of a fixed reality from this premise (no longer presumption) that size corresponds to lack of knowledge also embraced by the UN Working Group as it attends to its political and normative work of applying its preferred application of the UNGPs to its own agendas. See UN General Assembly, The Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (2018) UN Doc A/73/163, 9, cited by Parella at p. 110.
[241] Ibid.
[242] Ibid., pp. 110-111.
[243] Ibid., p. 111.
[244] Ibid.
[245] Ibid. Further elaborated in INGP Principle 19, discussed at Chapter 14.
[246] Parella, p. 111.
[247] Ibid., p. 112.
[248] UNGP Principle 15(a).
[249] See Chapter 13.
[250] UNGP Principle 15(b).
[251] Discussed Chapter 14.
[252] UNGP Principle 15( c).
[253] UNGP Principle 22. Discussed Chapter 15.
[254] UNGP Principle 23, discussed Chapter 16. Enterprise specific context and size issues, along with severity are the subject of UNGP Principle 19 discussed Chapter 14.3.
[255] Discussed Chapter 16.
[256] These carry over the fundamental distinctions between State and private collectives elaborated in the UNGP’s general principles discussed in Chapter 6.
[257] Discussed Chapters 7-11.
[258] See Gunther Teubner, Self-Constitutionalizing TNCs? On the Linkage of "Private" and "Public" Corporate Codes of Conduct, (2011) 18 Indiana Journal of Global Legal Studies 617-638.
[259] Larry Catá Backer, Economic Globalization and the Rise of Efficient Systems of Private Law Making: Wal-Mart as a Global Legislator, (2007) 39(4) Connecticut Law Review 1739-1784.
[260] Jørgen Grønnegård Christensen, 2011. "Competing Theories of Regulatory Governance: Reconsidering Public Interest Theory of Regulation," in: David Levi-Faur (ed.), Handbook on the Politics of Regulation, (Edward Elgar Publishing, 2011), pp. 96-110.
[261] UNGP Principle 15 Commentary.
[262] Ibid.
[263] Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John G. Ruggie, Draft Guiding Principles for the Implementation of United Nations “Protect, Respect, and Remedy” Framework, A/HRC/--- (N.D. circulated from November 2010) available [https://media.business-humanrights.org/media/documents/files/reports-and-materials/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf‘; or “https://menschenrechte-durchsetzen.dgvn.de/fileadmin/user_upload/menschenr_durchsetzen/bilder/Menschenrechtsdokumente/Ruggie-UN-draft-Guiding-Principles-22-Nov-2010.pdf], last accessed 25 February 2024. Discussed Chapter 2.3.4.
[264] Draft UNGP Principle 13 Commentary (“These include a statement of policy to respect human rights that is embedded throughout the enterprise; human rights due diligence; and remediation.”).
[265] UNGP Principle 16 discussed Chapter 13; UNGP Principle 14 discussed Chapter 12.5.
[266] Discussed Chapter 3
[267] “Letter from John Ruggie to Saskia Wilks and Johannes Blanenbach’ (19 September 2019), available [https://media.business-humanrights.org/media/documents/files/], last accessed 15 May 2024.
documents/19092019_Letter_John_Ruggie.pdf (accessed 9 March 2021).
[268] See Discussion Chapter 1.1.
[269] Kishanthi Parella, ‘Guiding Principle 15: Businesses Implementing Policies and Practices,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 113-117.
[270] Ibid., p. 113.
[271] Ibid., p. 114.
[272] Ibid., pp. 114-115
[273] Ibid., pp. 115-116.
[274] Discussed Chapter 8.
[275] Parella, p. 116
[276] See, Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Rule of Law Building: The Norwegian Sovereign Wealth Fund in Global Markets, (2013) 29(1) American University International Law Review 1-122.
[277] UN Human Rights Council, Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Corporate Human Rights Due Diligence (2018) UN Doc A/73/163, 8.
[278] UNGP Principle 11 Commentary.
[279] UNGP Principle 11.
No comments:
Post a Comment