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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). |
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The Chapter's conclusion provides a summary:
UNGP Principle 22 invests its very few words (it consists of 25 words in English) with a substantial amount of meaning, and some ambiguity across its translations. It is deeply encased in the 2nd Pillar corporate responsibility to respect human rights. At the same time it looks back toward the 1st Pillar State duty for aspects of remedy and for a good bit of its remedial mechanisms, At the same time, UNGP Principle 22 looks forward (numerically at least) to the much more detailed elaboration of remedy, and remediation, in the UNGP’s access to remedy 3rd Pillar. UNGP Principle 22 focuses directly on remediation (the centerpiece of UNGP Principles 25-31 (access to remedy)) but cannot avoid remedy—the scope of actions that may be taken pursuant to the process of remediation to cure the injury that triggered the process of remediation. As such UNGP 22’s focus on process (remediation as the process of action necessary for fashioning a remedy and then having the remedy be enforced) makes unavoidable its consideration of outcomes or solutions (the remedy that is tied both to the character and effect of adverse impact, and its relevance to the larger project of informing the enterprise of those efforts necessary to reduce the likelihood of producing further adverse impact). It follows that UNGP Principle 22’s serves as the pivot point for HRDD systems (though the data extraction that is necessary for tracking the way that adverse impacts are addressed (UNGP Principle 21) and for using that data to improve system performance and the effectiveness of consultation based interactions with stakeholders (UNGP Principles 21/22). It also serves as the pivot point for the fulfillment both of the corporate responsibility foundational objective (UNGP Principle 11) and that of the State Duty (UNGP Principles 1 and 2). Lastly its serves as the pivot point between regimes of public remedy—based on the connection between a legal basis for the establishment of a right and the allocation of liability for its breach and the essence of the operationalization of the State duty—and regimes of private law and societal/market expectation, grounded in normative principles and private law between parties that are themselves expressions of allocation of duty and liability but as the “law” of non-State actors. UNGP Principle 22 accomplishes this implicitly; UNGP Principle 25 Commentary makes the connection explicit.
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In this sense, but like remedy as a general proposition, UNGP Principle 22 sits comfortably within the 2nd Pillar and its centerpiece HRDD processes operationalizing the normative structures of the corporate responsibility to respect human rights as an autonomous expectation different from and autonomous of the State duty. At the same time, it is deeply intertwined with remedial measures arising through the legal architectures , the “smart mix of measures” States are expected to employ to meet their duty to protect, and also the elaboration of process and substantive elements that are expected to be built into the normative foundations and operational practices of remedial mechanisms. And it is deeply intertwined with the institutionalization of both the State duty (through law, policy and an institutional architecture to realize their objectives and specific direction, interdictions, and the like) and the corporate responsibility (through the constitution of HRDD systems and, at least for some, its projection into and through a general class of non-State grievance mechanisms.
To work with UNGP Principle 22, then, is to be in the middle of things. At the same time, UNGP Principle 22 also is significantly important for defining both the jurisprudential limits of the remediation expectation and the minimum nature of the enterprise’s cooperation expectation in remediaiton. It reinforces the limitations of the responsibility top respect—grounded in the establishment of a minimum connection between adverse impact and responsible enterprise. The “cause or contribute to” standard describes the core scope of responsibility. Beyond that there may be leverage and the encouragement to be more broadly responsible, but no more. The directly applicable expectation objective is remediation—the character of that expectation is “cooperation.” But as one comes to understand through a more focused study of the term, cooperation may merely reference the expectation that the enterprise must work with others to enable an outcome but not necessarily to fulfill a common goal, or more broadly it may refer to collaboration (perhaps the better term in light of the UNGP Principle 20 Commentary) in the sense of working together to achieve a common aim. Lastly, UNGP Principle 20 gives the enterprise the choice of cooperating but also of providing remediation. The provision of remediation becomes the subject of the 3rd Pillar, as does the elaboration of the nature and meaning of the factors necessary to build and evaluate the legitimacy of the process, especially with regard to UNGP Principle 31.
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15
The Corporate Responsibility to Respect Human Rights: Operational Principles—Policy Commitment (UNGP Principle ¶ 22)
15.1 Introduction
15.2 UNGP Principle 22 Text
15.3 UNGP Principle 22: Commentary on Text
15.4 UNGP Principle 22: Official Commentary
15.5 UNGP Principle 22: Authoritative Interpretation/Commentary
15.5.1 The 2010 Draft The Travaux Préparatoires and the 2010 Draft
15.5.2 The Travaux Préparatoires and the Pre-Mandate Text
15.6 Other Glosses
13.7 Conclusion
___________________
15.1 Introduction
Like Pillar 1, Pillar 2 elaborates multi-layered system of regulation and expectation that mimic each other in essentials is evidenced not merely in the organization of the principles in each Pillar—each divided between foundational and operational principles—but also in their internal structuring. The foundational principles themselves each starts with the declaration of the ordering premise of each Pillar. That is followed by a set of elaborating principles that together constitute the normative structures within which it is possible to appropriately manage the scope of possible variations in operationalization of duty (State) and (enterprise and other collectives).
The Foundational Principles of the UNGP’s Pillar 2 corporate responsibility to respect human rights[1] provide the conceptual framework around which the operational principles of human rights due diligence as the central structural element of Pillar 2 (UNGP Principles 16- 21)[2] are built, modified by principles of remediation (UNGP Principle 22) and context (UNGP Principles 23-24),[3] which then inform the means and prioritization of addressing adverse human rights impacts within the foundational premises of the 2nd Pillar. Together these create a deeply integrated framework in which fundamental normative principles inform the elaboration of an operational system (human rights due diligence, “HRDD”) that is meant to give it effect. These then are coupled with the broader system in which they form a part—one element of which is the State duty to protect human rights under and through law, and the other is the obligation to ensure that adverse impacts may be remedied, if not prevented or mitigated.
Pillar 2 rationalizes the norms, policies, and processes within and through which private markets are expected to operate—one in which the principle of economic welfare maximization, the autonomy of legal persons, and of individuals are respected, but now managed within a system grounded in a more vigorous compliance regime. The basis of compliance is built around the normative imperatives of human rights. The basis of compliance for non-State actors, enterprises within the UNGP framework, is undertaken through the set of market-embedded and private rule-based expectations elaborated in the UNGP’s Pillar 2. While the fundamental obligation of States is mandatory, grounded in the political-legal basis for the ordering of States and their operations, enterprises are not States and as such they cannot create public law—though they may develop private agreements through contract. They operate in economic (market) spaces, the operational language of which is transactional and the regulatory language of which is contract. States operate in political spaces the regulatory language of which is law. Non-public law space is liberating in the sense that the enterprise may choose to subject itself to a range of norms that may be substantially larger than those of any State.[4]
For States, those human rights foundations are tied to the public law international obligations of States,[5] obligations that can vary widely from State to State.[6] These binding obligations may be informed by the elaboration of norms and guidance from international public institutions but their mandatory effect is a creature of international law and the right of States to enter into or reject international obligations other than, perhaps, jus cogens and some aspects of customary international law (assuming a State recognizes such a field of law). These are elaborated in the UNGP’s Pillar 1.
The public law basis of State duty and the private law and international normative basis of the corporate responsibility to respect are not entirely autonomous, but rather that meant to be intertwined. These inter-relationships serve as the foundation for the connection, and separation, between Pillars 1 and 2—what SRSG Ruggie referenced as polycentricity of interlocking systems of public and private power.[7] Polycentricity, essentially anarchic in the sense of imposing order without a center, revolves around alignment between spheres of public and private collective governance; beyond though dependent on societal constitutionalism,[8] more anarchic that a fully formed system of entangled legalities, or transnational legal ordering,[9] or as much as it is grounded in polycentric mimesis[10] by way of the ordering premise of business and human rights.[11]
For example, the fulfillment by States of their duty to protect human rights under Pillar 1 through smart mixes of public power directed to actors in private markets may operate transnationally and through production chains and affect the form and context in which an enterprise meets its duty to respect.[12] This is exemplified, for example, by the connection between UNGP Principle 3 (General State Regulatory and Policy Functions)[13] and UNGP Principle 16 (Policy Commitment). Both serve as bridging provisions. Each is focused on structuring the forms and trajectories of the operational expression of their respective foundational principles. UNGP Principle 3 creates the framework through which States may exercise their political authority (in and through law and policy) to fulfill their foundational duty (specified in UNGP Principles 1-2) “to foster business respect for human rights.”[14] UNGP Principle 16 provides the institutional and textual form within which an enterprise can “meet their responsibility to respect human rights”[15] elaborated in Pillar 2’s foundational principles (UNGP Principles 11-15), the development of the expectations for which is also vested in States under UNGP Principle 2 at least respecting enterprises domiciled in their territory.[16] Lastly, that parallel mimetic structuring is embedded within pathways to structural coupling—for example, human rights due diligence might be transposed from the Pillar 2 to Pillar 1 and reconstituted as a set of mandatory legal measures bounded by law, yet at the same time, the expectations built into the autonomous obligations of human rights due diligence, the normative basis of which is autonomous of national public legality, continues unabated.[17]
UNGP Principle 22—on remedy—is an exemplar of this complex bridging function. It appears simple and direct: a remedy must be provided for adverse human rights impacts that have been realized. But that is just its outer shell. The remedial principle bridges to the State duty—in this case to provide and to make accessible institutions for the provision of remedy “where they fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse . . . [with respect to which] they should consider the full range of permissible preventative and remedial measures” (UNGP Principle 1).[18] The remedial principle also link to the structures and attributes of remedial institutions and mechanisms elaborated in UNGP Principles 25-31. These speak to the mechanisms through which remedy is realized. Lastly, the remedial principle bridges back to HRDD—first as the form of “appropriate addressing” of adverse impact what has already produced harm; and second, as a form of data collection necessary for enterprises to undertake the identification, assessment and addressing functions for adverse impact risk more effectively.
15.2 UNGP Principle 22 Text
22. Where Business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.
* * *
15.3 UNGP Principle 22: Commentary on Text
UNGP Principle 22 is fairly straightforward. At the same time it is deeply interwoven into the body of the three Pillars of the UNGP. Indeed, in some respects, UNGP Principle 22 may be understood as the unifying center of the entire UNGP Project. That centrality is not a function of the role of remediation of adverse impacts, but because it is the baseline against which it is possible to elaborate a system—not for remediation, but for the identification, assessment and addressing of risks of adverse human rights impacts by States and enterprises (and potentially by other non-State collectives as well, including civil society and religious communities). At the same time UNGP Principle 22 also elaborates a foundational premise that makes it possible to build and apply an elaborate multi-layered system for remedy. That premise is simple—adverse human rights impacts can be valued; and their loss, so assessed and valued, may be compensated. More broadly, it suggests that the core of the business and human rights project—and its foundation—is intimately tied to tan essential set of concepts and ordering premises of tort (common law) and “extra-contractual liability” (civil law), the ancient délict: (1) that all harms can be measured, (2) and so measured they can be valued, (3) and so valued that value can be converted (transformed) into money or other things of value, and (4) the purpose of which is not to put the affected person back to where they were immediately before the harm but to make them whole in a different and equivalent way. Nonetheless, some involved in the work of crafting the UNGP had taken the position, early in the process, that the origin of remedial measures and their mechanisms might be sourced in public international practice.[19] Lastly, UNGP Principle 22 recognizes that remedy, and its mechanisms, is also an important source of data—data respecting the nature and characteristics of human rights impacts which may be essential to HRDD’s identification and assessment function.[20]
UNGP Principle 22 applies to “business enterprises.” The Principle does not apply to states or other entities. That situates it exclusively within the 2nd Pillar corporate responsibility to respect human rights. Nonetheless, there may be some inter-connection worth considering. First, States are always free within the limits written into their constitutional orders to develop, expand, or constrain remedial mechanisms and processes for addressing adverse human rights impacts. While they have a further constraint—remedies are tied to rights that in turn are tied to law—States can significantly affect the forms and scope of remedy available for parties within its jurisdiction. These are the principal premises that underlie the 3rd (remedial) Pillar of the UNGP. The private law remedies the construction and operation of which may be sourced in the enterprise tend to be overshadowed by the authority of the State, as a core manifestation of sovereign political authority, to provide mechanisms for remedy that are tied to and express that sovereign authority, and with it, the intimate connection between constitutional normative baselines, structuring in and through law, and the limitation of both cause and remedy to those provided for in or through law.[21] The connection becomes more intense the greater the desire to provide mechanisms for enforcement of grievance related non-State based remedy,[22] though it should be noted that not all remedy may require enforcement.[23]
The space left for private law remedial mechanisms, then, may be only as large as the State permits, and in many cases, subject to its permission. That permission may be provided indirectly and negatively. For example, the law of contract may permit non-State actors to arrange among themselves a private law of dispute resolution including their mechanisms for grievance, remedy, and enforcement, by leaving a large space for contractually based mechanisms through which parties may allocate risk and consequence and the means to protect both. These generally take the form of or may be subsumed within provisions permitting the private arbitration, mediation, or dispute resolution mechanism among consenting parties. Nonetheless, there are other ways that can move parties toward resolution of disputes that provide remedy, including high level negotiation, mediation, and resolution by external experts, among others.[24]
Within the 2nd Pillar framework within which this Principle is placed, however, the expectation elaborated in UNGP Principle 20 applies onto to adverse impacts which enterprise’s “identify that they have caused or contributed.” Several points here might be emphasized. The first is that remediation expectations in UNGP Principle 20 apply only to adverse impacts. The second is that, at its narrowest, the Principle applies only to adverse impacts that the enterprise has “identified.” That connects UNGP Principle 20 to UNGP Principle 18’s elaboration of the identification and assessment function of human rights due diligence (HRDD).[25] However, UNGP Principle 18’s elaboration of a key function in HRDD may not limit the overall expectation of enterprises to avoid adverse impacts (UNGP Principle 11) and to create systems and mechanisms to identify and address all such adverse impacts (UNGP Principles 15 and 16),[26] through the appropriate and effective operation of HRDD systems (UNGP Principle 17).[27] The third is that the remediation of identified adverse impacts arises only with respect to such adverse impacts that the enterprise caused or contributed to. That limitation, in turn, draws a strong connection between the 2nd Pillar remediation principle (UNGP Principle 20), and the normative division in expectation between adverse impacts caused or contributed to by the enterprises as against those that are directly linked to the enterprise’s operations, products or services by their business relationships (UNGP Principle 13),[28] the difference between which is described in UNGP Principle 15(b),[29] and is built into the remediation or leverage approaches of UNGP Principle 19.[30]
Lastly, the text of UNGP Principle 20 does NOT create an expectation of remediation in itself as the only consequence of the events that give rise to expectation. Instead, UNGP Principle 20 describes the expectation that in the context of identified adverse impacts that the enterprise may have caused or contributed to, the enterprise “should provide for or cooperate in their remediation through legitimate processes.” The enterprise need not itself provide processes for remediation. Enterprises, instead, may cooperate in remediation that may be pursued by other means. The only limitation is that, whether the enterprise “provides or cooperates” in remediation, the processes through which remediation is undertaken must be “legitimate.” The concept of legitimacy invokes the principles that form the 3rd Pillar remedy section of the UNGP. In that context legitimacy is a function of process expectations (UNGP Principle 31),[31] described as “enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes” (UNGP Principle 31(a)) with particular application to those remedial processes provided by the enterprise, but not entirely. The word “legitimate” in this case might be given its ordinary meanings (in context), of a state or condition of being as intended or presented, but also as being accordant with law or established forms and processes, or conforming to recognized principles or standards.[32] That accords with the French[33] and Spanish versions[34] as well.
But also important is the way one approaches the term “cooperate.” It is a term that is made more ambiguous when one compares it to the Spanish (“contribuir”) and French (“collaborer”) versions of UNGP Principle 22. The French term “collaborer” suggests working with or working together on something; since the middle of the last century it also carries the connotation of betrayal, as in collaborating with the enemy. In this sense it suggests cooperation, but perhaps with a little more positive or active engagement toward a particular effect, as in engaging in a joint enterprise.[35] The closer translation to the English term used in UNGP Principle 20 might have been the French term “coopérer” almost literally to cooperate (to act in concert with others). Yet that word was not used. The difference may be important. Collaboration suggests a common goal shared among all participants; cooperation suggests that each party engages in actions that support the goals of the other even if the goals are not precisely shared but for mutual benefit.[36] The Spanish version drives home this difference: the Spanish definition of the word “contribuir” is quite close to that of the French “contribuer.” In the case of the Spanish the meaning includes the act of helping or aiding others to attain a common ends;[37] in the French, to do one’s part in achieving a common ends.[38]
Taken together one encounters similar words but that suggest what might be potentially quite different expectations. The English version permits a greater latitude to the enterprise to deviate from the goals of stakeholders in seeking remedy for adverse human rights impacts. At its most narrow and formal sense, the meaning may suggest that the enterprise must cooperate at least to the extent required by law but also, beyond that, to the extent necessary to ensure the effective operation of the HRDD system from which under UNGP Principle 18 an adverse human rights impact was identified and assessed. It is perhaps in the expectation of sharing that information in the course of the operation of remediation mechanisms that one might situate “cooperation.” And yet there is also an element there of retaining for the enterprise its own rights—including its rights to protect its own interest against adverse impacts where, for example, the enterprise might challenge the adversely impacted person’s assertion of causation, or of the extent of damages to be remedies, or of the form of remedy sought. The French and Spanish versions on the other hand come closer to suggesting that “cooperation” is in really an expectation of collaboration toward the common ends of remediation in which the interest of the enterprise merges with that of the adversely affected individual. In any case the level of cooperation may be a function of the form of remediation undertaken—State based and non-State based processes may produce different lenses for assessing expected cooperation.[39] As such, what the text of UNGP Principle 20 provides is this: remediation is an end result of an HRDD process that seeks to identify and assess adverse human rights impacts. Where the adverse impact has not occurred then the HRDD risk based assessment processes are undertaken as a predicate for determining appropriate addressing of the risk, and where the risk is ongoing, on mitigating risk going forward. Where the adverse impact has been realized, the only appropriate action that may be undertaken is remediation. In cases of remediation, then UNGP Principle 20 provides the standard of “provide for or cooperate in” their remediation. That applies only to adverse impacts that were caused by the enterprise or to which the enterprise contributed. But that also suggests that information about the adverse impact, even where realized, is an importance element under UNGP Principle 20, for tracking and assessing system effectiveness—especially with respect to the effectiveness of risk based identification procedures and for modifying economic activity to account for procedures r actions that could neither be prevented nor mitigated. The actual processes for remediation are treated in the 3rd Pillar principles. But UNGP Principle 20 includes, as well, an overall standard that such processes, either provided or with respect to which the enterprise is expected to cooperate, are legitimate.
This brings one to the last part of the text of UNGP Principle 22 that may merit some consideration, at least as a prequel to the more extensive discussion in the 3rd Pillar principles, is the reference to “remediation” (réparation in the French version and similarly reparación in the Spanish version). The term remediation (or more generally remedy) and its French and Spanish versions has multiple meanings. All of these meanings may be relevant to the notion of remediation or reparation/reparación in the UNGP. Principle among these are the distinct senses of this term in their legal and in their societal senses. That is, that remediation bridges its conceptualization within the 1st Pillar State duty, especially with respect to its application under law and in judicial institutions, on the one hand, and its much broader societal conceptualization in markets and with respect to social relations between he enterprise, its stakeholders and other who may be affected by adverse impacts. The UNGP tales a similar approach with respect to other significant terms—for example “complicity” in UNGP Principle 17, which, its Commentary explains, “has both non-legal and legal meanings.”[40]
Remedy, and remediation may be understood in both their legal and their societal senses. Both are elaborated in the Commentary to Principle 25, in the form of the substantive and procedural aspects of remedy,[41] and thereafter elaborated further in UNGP Principle 26-31.[42] In its legal sense, remediation is understood as the range of remedy permitted under the laws and regulations of a domestic legal order of States. They may also include State-based non-judicial mechanisms the support or enforcement of the work of which has been permitted by law directly, or thorough policy that has a legal basis. Remedy in the legal sense is rules based, formal, and deeply embedded in the constitutional and political structures of a State. It is also constrained by those legalities as well as the limitations of the reach of those remedies, confined to the jurisdictional limits of State power, a matter treated to some extent in UNGP Principles 2,[43] and UNGP Principle 23.[44] This may be understood, in part, as corresponding to the French notion of réparation civile.[45]
In its societal sense, remediation is a much broader concept. As described in UNGP Principe 25 Commentary, with respect to non-State based grievance mechanisms, “may take a range of substantive forms the aim of which, generally speaking, will be to counteract or make good any human rights harms that have occurred.[46] Remediation in this sense is a very broad and informal mechanism that is meant to cover the entire spectrum of action that may produce satisfactory resolution of grievance among parties. That sense is nicely captured in the definition of reparación in the Spanish version of the UNGP.[47] In this societal sense the term draws more closely to its etymological roots in the Latin word remedium—in its medical sense of curing a malady or injury that restores health.[48]
Legal remedy is created by law—either the domestic law of States or international legal obligations creation rights that are transposed into a domestic legal order by States. Remediation as a social expectation is at its most formal an expression of private law, expressed in contract, or social/market expectations that suggests the socially expected modalities for curing an injury that is otherwise not contemplated in law or that supplements (or sometimes may waive) legal remedy. Legal remedy is bounded by the law which may be applied within a State. Remediation is bound by law, rule and norms irrespective of its legal or legally binding effect. The State duty to protect human rights is constrained by legality (UNGP General Principles and UNGP Principle 1). The corporate responsibility to respect human rights is bound by a much broader scope of law, rules, norms, customs, and other expectations that can be substantially more extensive than the (legal) scope of the State duty (UNGP Principles 11-12). That difference defines the differences and scope between what can be manifested as a remedies architecture with respect to a State duty, and the manifestation and scope of a corporate responsibility.
The rest follows. Legal remedy is effectuated through state organs—centering on a judiciary but including any institution so designated within the lawful authority of States to create. Remediation may be undertaken informally or through the crafting of mechanisms and rules through which these may be realized. The broadest scope of remediation is a creature of the corporate responsibility and measures that manifest appropriate addressing of adverse impacts in a flexible way. Except as permitted by the law of a State, it may not substitute for legal measures in state based or state approved organs. It follows, then, that remedies and the scope of remediation
While the UNGP speaks to the remediation responsibility of enterprises as an integral part of the 2nd Pillar responsibility to respect human rights, the UNGP invokes the term “remedy” only in the text and official commentary to the 3rd Pillar “Access to remedy” principles.[49] Remediation appears as a core element of the 2nd Pillar, and is the object of the process grounded principles in the “Remedy” 3rd Pillar that are attached to non-State based grievance mechanisms. The term remediation does not appear in any of the 1st Pillar principles (UNGP Principles 1-10). In the 2nd Pillar, the term appears first in the Commentary to UNGP Principle 11 (reference to consequential obligation of responsibility to respect—to take appropriate measures for the prevention, mitigation, and where appropriate remediation of adverse impacts).[50] That is then referenced in the text of UNGP Principle 15( c), which speaks to the need to have in place processes to enable remediation with cross reference in the Commentary to UNGP Principle 22.[51] Its core elaboration is in UNGP Principle 22. In the 3rd Pillar, the term remediation appears only in the context of non-State based grievance mechanisms. First, it appears in the Commentary to UNGP Principle 28 in the context of a discussion of the value of non-State based grievance mechanisms for offering speedy access and remediation to rights holders. Lastly, the term appears in the Commentary to UNGP Principle 29 , with respect to the value of non-State based grievance mechanisms established by enterprises for both stakeholders and also enterprises within an HRDD framework.[52]
Taken together, then, UNGP Principle 20 provides both an ending point for HRDD with respect to adverse impacts already realized, and also the starting point for “curing” the damage resulting from this adverse impact to those affected, at least where the enterprise caused or contributed to the adverse impact. It also provides a principle of “cooperation”—a term that appears to be both elastic and perhaps with a slightly different emphasis among the English Spanish, and French versions of the UNGP. The essence of the expectation remains substantially the same—to “actively engage” in the remediation of those adverse impacts directly linked to the enterprise through its business relationships. Lastly with respect to HRDD processes, it provides data that may be valuable beyond the “appropriate action” expectation of enterprises in the face of realized adverse Impacts which they caused or contributed to. In that sense, the remediation expectation is the end point of UNGP Principle 19 analysis, but also the starting point for the HRDD systemic analysis and tracking function of UNGP Principle 20, and the communication expectation of UNGP Principle 21. The essence of remediation—its forms and processes triggered under UNGP Principle 22, however, are elaborated elsewhere—in the 3rd Pillar “Access to Remedy” principles especially those respecting non-State based grievance mechanisms, which also relate back to HRDD process.[53]
15.4 UNGP Principle 22: Official Commentary
The Official Commentary adds detail—and intention—to the text of UNGP Principle 22, some of which may aid in clarifying the ambiguity of the text itself.
First, the UNGP Principle 22 Commentary suggests that the word “cooperate” in the text of the Principle be read more in conformity with its sense of collaboration. It suggests the that the term “cooperation” suggests an expectation of “active engagement in remediation “by itself or in cooperation with other actors.” It then ties that notion with the provision of operational level grievance mechanisms (UNGP Principles 28-30),[54] grounded in the normative expectations set out in UNGP Principle 31.[55]
Second, the UNGP Principle 22 Commentary underscores the different routing for adverse impacts caused or contributed to by the enterprise and those directly linked to its operations, products or services by a business relationship. In the latter case, the enterprise has a choice. It might provide remediation or cooperate in the remediation process.[56] Of course, the Commentary notes, the enterprise must always cooperate with judicial process—especially “where crimes are alleged.” As for the rest, the UNGP Principle 2 Commentary directs the reader to the text and Commentary at UNGP Principles 25-31.[57]
What the Commentary appears to emphasize is that the remediation principle is a dependent expectation. Remediation depends, in the first instance, on the appropriate functioning if HRDD’s UNGP Principle 18 (identification and assessment), and then the appropriate routing of realized adverse impact through the processes the structures of the elaboration of which were encoded in UNGP Principle 19. It depend, as well, on the appropriate venues for the realization of remedy as developed in the 3rd Pillar Access to Remedy principles. Though UNGP Principle 20 underscores the relationship between HRDD, the remedial principle of UNGP Principle 22, and the non-State based Grievance mechanisms of UNGP Principles 28-30, it does not suggest prioritization or hierarchies of remedies as between those the institutional basis of which is provided by the State to fulfill, in art, its duty to protect human rights (UNGP Principles 26-27), and those that are provided by enterprises as perhaps the manifestation of the “tail end” of the HRDD process. Remediation, then stands at the center of an arc that extends from the initiation of measures the purpose of which is to identify and assess impact, to those the purpose of which is to prevent, mitigate, or where that is not possible, to remedy those impacts which are adverse (not to the enterprise but to others) the operational basis of which may be manifested in State and non-State based remedial mechanisms.
15.5 UNGP Principle 22: Authoritative Interpretation/Commentary
15.5.1 The 2010 Draft UNGP
What became UNGP Principle 22 in its final form was circulated in the Draft UNGP as its Principle 20.[58] The final form of UNGP Principle 22 diverged from its draft form in minor respects.
The most significant deviation between the 2010 Draft Principle 20 and UNGP Principle 22 was the inclusion of language reflecting the different expectations of enterprises where they cause or contribute, on the one hand, and where the adverse impacts are directly linked to its operations, products, or services by a business relationship. The language of the 2010 Draft Principle 20 might have been read to include a remedial responsibility with respect to both. The final version UNGP Principle 22 limited the minimum expectation to “cause or contribute” adverse impacts retaining in the Commentary the discretion to “take a role” in “directly linked “ remediation.
It should be noted that some of the language of the 2010 Draft Principle 20 Commentary was moved to the 3rd Pillar UNGP Principle 29 on non-State based grievance mechanisms.[59] In that way UNGP Principle 22 could be understood to be reduced to a statement of the general principle of the expectation of remediation and its relationship to HRDD in corporate responsibility frameworks, leaving the foundational and operational principles of remediation to the 3rd Pillar Principles.
15.5.2 Travaux Préparatoire and Pre-Mandate Text
The interpretation of UNGP 22 might be best understood against the backdrop of the SRSG’s extension of mandate by the UN Human Rights Council[60] and several of the SRSG’s Reports to the Human Rights Council.[61] The SRSG’s 2008 Reports provide a useful background on the remedial authority and its categorizations within a State duty and a corporate responsibility context.[62] Addendum 1 to the SRSG 2009 principal report provides useful background on the State duty to make remedy accessible.[63] The SRSG 2010 Report provides further discussion and background on the organization and elaboration of a remediation facility.[64]
15.5.3 Other Glosses
In interpreting other UNGP Principles, one must 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 do not go to the meaning or understanding of the UNGP itself but rather to debates about its application in specific times, places, and spaces. It is with that in mind that it is worth exploring what others have contributed to the meaning of Text and Commentary. This is not to fault such efforts—they represent the manifestation of the sort of engagement that moves both principle and pragmatism forward, shaping the UNGP as groups engage in debates and shape their practice in desired ways that hep (re)shape the expectations at the foundation of the UNGP, especially but not entirely focused on the 2nd Pillar responsibility to respect. While that seems to be an important element in post UNGP endorsement work, these efforts are not included in this Commentary.[65] Beyond that some glosses have been produced that may prove useful for approaching the meaning of the UNGP.
The OHCHR Interpretive Guide[66] includes guidance on the corporate responsibility to respect human rights that adds a layer of interpretive context because it was prepared shortly after the endorsement of the UNGP and was undertaken with the involvement of SRSG Ruggie. “The Guide’s content was the subject of numerous consultations during the six years of Professor Ruggie’s mandate and was reflected in his many public reports and speeches, but has not previously been brought together.”[67] In its preface, SRSG Ruggie explained that the Interpretive Guide was intended to provide “further explanation” of the UNGP as they relate to the corporate responsibility to respect human rights.[68] To those ends, the Interpretive Guide was structured in question and answer format. It was intended to complement the guidance provided in the UNGP Text and its official commentary. “The questions and answers provided here go beyond that commentary to provide additional detail and assistance in understanding the Guiding Principles. As such, they complement the commentary but do not replace or supersede it.”[69] The Interpretive Guide was meant to be forward looking—to help guide decisions about the appropriate construction and application of UNGP principles as States and enterprises attempt to transpose Principles and guidance into contextually relevant and temporally dynamic processes and structures, framed within the “original meaning and intent” of the UNGP. [70]
The Interpretive Guide’s commentary on UNGP Principle 22[71] starts by connecting responsibility to remedy. That embeds the overarching principles of the UNGP (UNGP General Principles)[72] within the context of the corporate responsibility in general and HRDD mechanisms in particular. At the same it, the Interpretive Guide also underscore the consequential and “last alternative” nature of remediation within the premises and schema of HRDD—“ Having systems in place to enable the remediation of such impact in no way implies that the enterprise does not intend to respect human rights. On the contrary, it demonstrates a recognition that impact may occur despite its best efforts.”[73]
Nevertheless, the Interpretive Guide also underscore the limitations both of remediation, and of the enterprise’s expectation of cooperation: the expectation of remediation is “limited to situations where the enterprise itself recognizes that it has caused or contributed to an adverse human rights impact.”[74] The object is broader than to state the obvious. It also intimately links back to HRDD and its identification/assessment processes. The object of UNGP Principle 22, then, is not as a stand-alone principle, but one as deeply embedded in HRDD as other forms of appropriate action elaborated in UNGP Principle 19 with respect to responses to risks of adverse impact where prevention and mitigation measures are foregrounded.[75] The Interpretive Guide also offers some guidance on how this assessment of cause or contribution is to be achieved: not just through its application of its UNGP Principle 18 identification/assessment measures, but also as a function of the proceedings in its own internal processes of assessment, its grievance mechanisms “or the impact may be brought to its attention by other sources and confirmed by its own investigations.”[76]
The Interpretive Guide offers guidance respecting the expectation to provide directly for remediation.[77] Here the Interpretive Guide first suggests that, assuming enterprise agreement that it caused or contributed to an adverse impact, that the enterprise would be in the best position to direct remedy within the broad scope of non-legal, that is societal, remedy. The Interpretive Guide, following the Commentary to UNGP Principle 25[78] emphasizes that remedy may take a broad variety of forms.[79] More importantly, perhaps, the Interpretive Guide also emphasizes that effectives is to be measured as against the satisfaction of those who suffered the adverse impact rather than from the enterprise’s own point of view. Nonetheless, it also notes that there may be circumstances in which ore formal, legally based, remedy may be appropriate, focusing on criminal matters.[80] It is as important to note that as national human rights due diligence legal frameworks become operative, those too will draw remediation from the sole or principal space of the 2nd Pillar and its HRDD processes, to those of law and State remedial mechanisms. Finally, the Interpretive Guide suggests that in the context of leverage (where the connection to the adverse impact arises from a direct link grounded in business relationships) or where the enterprise contributed to the adverse impact by another enterprise bears the primary responsibility, then the enterprise ought to defer in the first instance to the remediation and other efforts of the enterprise with primary responsibility. That, in turn, suggests that, especially in the context of production chains, HRDD processes implicitly suggest the need to map the adverse impact and establish a hierarchy of responsibility in order to rationalize appropriate action responses under both UNGP Principle 19 and UNGP Principle 22.
The Interpretive Guide also provides guidance with respect to the relationship between he remediation principle of UNGP Principle 22 and the provision of non-State grievance mechanisms elaborated in UNGP Principles 28-29.[81] It starts by emphasizing the UNGP Principle 22 Commentary text on the effectiveness of direct provision of remedy from the perspective of adversely affected individuals. However, the Interpretive Guide counsels against reliance solely on ad hoc processes, and also on formalized processes for specific forms of adverse impact.[82] In both cases, it suggests systemic ineffectiveness, either because of internal dispute or inability to deal with unforeseeable impacts reduces effectives. Instead, the Interpretive Gide expresses a preference for “greed processes for the remediation of adverse human rights impact arising in any area of operations, even if this requires more than one type of process.”[83] More generally, the Interpretive Guide suggests that an integrated operational level grievance mechanism may be best optimal form of mechanism.[84] It is important to note, however, that what the Interpretive Guide calls an operational grievance mechanism operates, in effect, is described effectively as a form of undertaking that subsumes the entirety of the functions of an HRDD system. In that sense, the preferences of the Interpretive Guide would appear to undercut the broad flexibility in contextual construction of HRDD systems that are emphasized in UNGP Principles 17-19.[85] Still the guidance on the need to consciously align the mechanisms of HRDD with the mechanisms for remediation is important. The Interpretive Guide does offer guidance on alternatives, including international remedial mechanisms;[86] but it is important to recall that these may not be universally available and may of them require the active intervention and participation of third party civil society organs. As such, the Interpretive Guide counsels seeking expert advice and cautions that all remedial mechanisms will have to be assessed with respect to their ability to actually perform the remedial function within the scope intended in the UNGP.[87]
The Interpretive Guide’s guidance where an enterprise and affected stakeholders are unable to reach agreement on remedy reflects the state of remedy in general across multiple jurisdictions. It offers the suggestion of mediation or other forms of alternative dispute resolution—to the extent they are available and all parties (1) agree to use them and (2) agree to be bound where that is possible given the nature of the mechanism chosen.[88] The Interpretive Guide notes that sometimes, State based mechanisms and the courts may be available—but there, of course, a legal basis for access must be asserted. In the absence of domestic substantive rights that may only be possible by asserting a claim grounded in tort or contract rather than on human rights based adverse impact. In any case, the Interpretive Guide offers to enterprises the counsel that they are well advised to cooperate with efforts to resolute disputes around responsibility for adverse impact asserted by rights holders.[89]
Florencia S. Wegher Osci has also provided a gloss on UNGP Principle 22.[90] Wegher Osci starts by framing the commentary around the concept of positive cooperation within UNGP Principle 22.[91] Wegher Osci centers the UNGP’s foundational connection between impact and remedy within the context of the UNGP as a whole.[92] Wegher Osci then turns to remedy. Wegher Osci notes the flexibility of the UNGP with respect to remedial mechanisms—the choice of which is contextually driven.[93] With respect to remedy, Wegher Osci counsels something like a smart mix of remedy[94] in a way that draws comparison with the discussion of “smart mix of measures” in UNGP Principle 3 Commentary.[95] To those ends Wegher Osci draws on the Interpretive Guide.[96] Drawing on the work of the UN Working Group for Business and Human Rights,[97] Wegher Osci also underscores that the process, especially with respect to the interactions of enterprises must be grounded in good faith, be proactive and dialogue facilitative, embedding effective stakeholder consultation, and a willingness to comply with the determination of remedial mechanisms.[98] While Wegher Osci notes the common connection between remedy and State judicial organs. And therefore between HRDD in the 2nd Pillar and the mechanisms for the operationalization of the State duty to protect human rights,[99] there is as well an acknowledgment of the context related issues around effective remedial mechanism and, as well, the possible utility of international facilities for both identification/ assessment and remedy—corresponding to the Interpretive Guide’s preference for a “one stop shop” for HRDD, grounded in some sort of mechanism with at least a partial public law face.[100]
Wegher Osci then offers guidance with respect to group sensitive and gender responsive approaches both to remedy and its remediation mechanisms.[101] These carry forward the fundamental ordering of the UNG through its General Principles,[102] into the remediation context of UNGP Principle 22. To those ends Wegher Osci highlights the “suffering” element of rights holders adversely impacted to ensure that remedy is right holder based rather than undertaken through the lens of the enterprise. That focus provides the basis for guidance that shape the way the enterprise approaches active engagement in remediation processes.[103] It also affects the shaping of effective remedy through the stakeholder lens. That foundation is essential for the further shaping of both engagement and remedy in the context of group sensitive and gender responsive mechanisms.[104] For Wegher Osci effectiveness is embedded in “comprehensive, gender transforming and group sensitive remediation processes” which offer not just preventive and curative remedy, but also “dissuasive reparations.”[105] These touch on incorporating enterprises in efforts to challenge specific and systematic abuses and that address as well intersectional discrimination.[106] Here the guidance is one that deeply embeds the notion of joint and singular purpose into the language or remedial cooperation in UNGP Principle 20.
15.6 Conclusion
UNGP Principle 22 invests its very few words (it consists of 25 words in English) with a substantial amount of meaning, and some ambiguity across its translations. It is deeply encased in the 2nd Pillar corporate responsibility to respect human rights. At the same time it looks back toward the 1st Pillar State duty for aspects of remedy and for a good bit of its remedial mechanisms, At the same time, UNGP Principle 22 looks forward (numerically at least) to the much more detailed elaboration of remedy, and remediation, in the UNGP’s access to remedy 3rd Pillar. UNGP Principle 22 focuses directly on remediation (the centerpiece of UNGP Principles 25-31 (access to remedy)) but cannot avoid remedy—the scope of actions that may be taken pursuant to the process of remediation to cure the injury that triggered the process of remediation. As such UNGP 22’s focus on process (remediation as the process of action necessary for fashioning a remedy and then having the remedy be enforced) makes unavoidable its consideration of outcomes or solutions (the remedy that is tied both to the character and effect of adverse impact, and its relevance to the larger project of informing the enterprise of those efforts necessary to reduce the likelihood of producing further adverse impact). It follows that UNGP Principle 22’s serves as the pivot point for HRDD systems (though the data extraction that is necessary for tracking the way that adverse impacts are addressed (UNGP Principle 21) and for using that data to improve system performance and the effectiveness of consultation based interactions with stakeholders (UNGP Principles 21/22). It also serves as the pivot point for the fulfillment both of the corporate responsibility foundational objective (UNGP Principle 11) and that of the State Duty (UNGP Principles 1 and 2). Lastly its serves as the pivot point between regimes of public remedy—based on the connection between a legal basis for the establishment of a right and the allocation of liability for its breach and the essence of the operationalization of the State duty—and regimes of private law and societal/market expectation, grounded in normative principles and private law between parties that are themselves expressions of allocation of duty and liability but as the “law” of non-State actors. UNGP Principle 22 accomplishes this implicitly; UNGP Principle 25 Commentary makes the connection explicit.[107]
In this sense, but like remedy as a general proposition, UNGP Principle 22 sits comfortably within the 2nd Pillar and its centerpiece HRDD processes operationalizing the normative structures of the corporate responsibility to respect human rights as an autonomous expectation different from and autonomous of the State duty.[108] At the same time, it is deeply intertwined with remedial measures arising through the legal architectures , the “smart mix of measures” States are expected to employ to meet their duty to protect, and also the elaboration of process and substantive elements that are expected to be built into the normative foundations and operational practices of remedial mechanisms. And it is deeply intertwined with the institutionalization of both the State duty (through law, policy and an institutional architecture to realize their objectives and specific direction, interdictions, and the like) and the corporate responsibility (through the constitution of HRDD systems and, at least for some, its projection into and through a general class of non-State grievance mechanisms.
To work with UNGP Principle 22, then, is to be in the middle of things. At the same time, UNGP Principle 22 also is significantly important for defining both the jurisprudential limits of the remediation expectation and the minimum nature of the enterprise’s cooperation expectation in remediaiton. It reinforces the limitations of the responsibility top respect—grounded in the establishment of a minimum connection between adverse impact and responsible enterprise. The “cause or contribute to” standard describes the core scope of responsibility. Beyond that there may be leverage and the encouragement to be more broadly responsible, but no more. The directly applicable expectation objective is remediation—the character of that expectation is “cooperation.” But as one comes to understand through a more focused study of the term, cooperation may merely reference the expectation that the enterprise must work with others to enable an outcome but not necessarily to fulfill a common goal, or more broadly it may refer to collaboration (perhaps the better term in light of the UNGP Principle 20 Commentary) in the sense of working together to achieve a common aim. Lastly, UNGP Principle 20 gives the enterprise the choice of cooperating but also of providing remediation. The provision of remediation becomes the subject of the 3rd Pillar, as does the elaboration of the nature and meaning of the factors necessary to build and evaluate the legitimacy of the process, especially with regard to UNGP Principle 31.[109]
[1] Discussed Chapter 7.
[2] Discussed Chapters 13-14.
[3] Discussed Chapter 16.
[4] Compare UNGP General Principles and UNGP Principle 1 with UNGP Principle12, discussed chapters 6-7 and 12.
[5] Discussed Chapter 7.
[6] Discussed Chapter 6.
[7] Concept discussed at Chapter 3.2; see also Enrico Partiti, ‘Polycentricity and Polyphony in International Law: Interpreting the Corporate Responsibility to Respect Human Rights,’ (2021) 70(1) International and Comparative Law Quarterly 133-164; Larry Catá Backer, ‘The Structural Characteristics of Global Law for the 21st Century: Fracture, Fluidity, Permeability, and Polycentricity,’ (2012) 17(2) Tilburg Law Review 177-199.
[8] See Gunther Teubner, ‘Societal Constitutionalism: Nine Variations on a Theme by David Sciulli,’ in Paul Blokker and Chris Thornhill (eds), Sociological Constitutionalism (CUP. 2017) 313-340.
[9] See Nico Krisch, ‘Entangled Legalities in Postnational Space,’ (2022) 20(1) International Journal of Constitutional Law 476-506.
[10] The focus here is on imitation or representation sourced in distinct, multiple network of autonomous but decentralized entities. Cf., Larry Catá Backer, ‘ The Soulful Machine, the Virtual Person, and the “Human” Condition: An Encounter with Jan M. Broekman, Knowledge in Change: The Semiotics of Cognition and Conversion (Cham, Switzerland: Springer Nature, 2023),’ (2024) 37 International Journal for the Semiotics of Law 969-1083.
[11] Larry Catá Backer, ‘Transnational Corporations' Outward Expression of Inward Self-Constitution: The Enforcement of Human Rights by Apple, Inc.,’ (2013) 20(2) Indiana Journal of Global Legal Studies 805-879.
[12] Discussed Chapters 6-9.
[13] Discussed Chapter 8.
[14] UNGP Principle 3 Commentary.
[15] UNGP Principle 15; discussed Chapter 12.
[16] Discussed Chapter 7.
[17] Compare the Commentary of Chapters 6-7, with Chapter 12.
[18] Discussed Chapter 7.
[19] Caroline Rees et al., Rights-Compatible Grievance Mechanisms A Guidance Tool for Companies and their Stakeholders (Corporate Social Responsibility Initiative, John F. Kennedy School of Government, Harvard University, January 2008) (“The concept of ‘rights-based approaches’ emerged first in the context of development assistance where it was realised that aid activities could have unintended negative consequences on the human rights of some individuals or groups if human rights thinking was not integrated into development policies and procedures.” Ibid., p. 8, Box 1, citing Benefits-Harms Guidebook (© 2001)).
Cooperative for Assistance and Relief Everywhere, Inc.
(CARE).
[20] Discussed Chapter 12.
[21] See, Rees, Rights-Compatible Grievance Mechanisms, p. 21 (“Given the primary responsibility of the state to protect the human rights of citizens, including through domestic legislation and an effective judiciary, the company must ensure it does nothing to undermine these processes and institutions”).
[22] Reinmar Wolff, New York Convention: Article-by-Article Commentary (2nd ed, Klewar, 2019).
[23] Discussed Chapters 17 et seq.
[24] Discussed Chapter 20.
[25] Discussed Chapter 14.
[26] Discussed chapters 13-14.
[27] Discussed Chapter 14.
[28] Discussed Chapter 12.
[29] Ibid.
[30] Discussed Chapter 19.
[31] Discussed Chapter 20.
[32] Merriam-Webster Dictionary Online, “legitimate”, available https://www.merriam-webster.com/dictionary/legitimate, last accessed 2 December 2025.
[33] Larousse Online, légitime, available https://www.larousse.fr/dictionnaires/francais/l%C3%A9gitime/46591, last accessed 12 December 2025 (“Qui a les qualités requises par la loi, le droit; Qui est fondé en raison, en justice, en équité”).
[34] Diccionario de la lengua española, legítimo, available https://dle.rae.es/l%C3%ADcito#9zpsL1V last accessed 12 December 2025 (“conforme a las leyes; lícito”).
[35] Cambridge Dictionary Online, collaborer, available https://dictionary.cambridge.org/us/dictionary/french-english/collaborer.
[36] Merriam-Webster Dictionary Online, cooperate, available https://www.merriam-webster.com/dictionary/cooperate, last accessed 12 December 2025.
[37] Diccionario de la lengua Española. Contribuir, available https://dle.rae.es/contribuir, last accessed 10 December 2025 (“Ayudar y concurrir con otros al logro de algún fin”).
[38] Larousse Online, contribuer, available https://www.larousse.fr/dictionnaires/francais/contribuer/18921, last accessed 12 December 2025 (“Apporter sa part à une œuvre commune”).
[39] Discussed Chapters 25-31.
[40] Discussed Chapter 12. See also in the traveaux préparatoire, 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.
[41] Discussed Chapter 17.
[42] Discussed Chapters 18-20.
[43] Discussed Chapter 7.
[44] Discussed Chapter 16.
[45] Larouuse, réparation, available https://www.larousse.fr/dictionnaires/francais/r%c3%a9paration/68319, last accessed 3 December 2025 (“Dédommagement d'un préjudice par la personne qui en est responsable, soit par le rétablissement de la situation antérieure, soit par le versement d'une somme d'argent, c'est-à-dire de dommages-intérêts.”)
[46] Discussed further at Chapter 17.
[47] Diccionario de la lengua española, reparación, available https://dle.rae.es/reparaci%C3%B3n?m=form, last accessed 12 December 2025 (“desagravio, satisfacción completa de una ofensa, daño o injuria”).
[48] Etymology Online, remedy, available https://www.etymonline.com/word/remedy. Further discussion at Chapter 17.
[49] Discussed Chapters 17-20. The only exception is the cross reference in UNGP Principle 22 itself to the principles in the “Access to Remedy” Pillar.
[50] Discussed Chapter 12.
[51] Ibid.
[52] Discussed Chapter 19.
[53] UNGP Principle 28-29, discussed Chapter 19.
[54] Discussed Chapter 19.
[55] Discussed Chapter 20 (UNGP Principle 20 Commentary notes: “Operational-level grievance mechanisms for those potentially impacted by the business enterprise’s activities can be one effective means of enabling remediation when they meet certain core criteria, as set out in Principle 31.”).
[56] UNGP Principle 20 Commentary (“does not require that the enterprise itself provide for remediation, though it may take a role in doing so.”).
[57] Discussed Chapters 18-20.
[58] 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.
[59] Discussed Chapter 19.
[60] UNHRC Resolution 8/7 2008--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 at Chapter 3.3.2.
[61] Discussed Chapters 13.3 and 13.4.
[62] Discussed Chapter 3; see also Chapter 5.
[63] Discussed Chapter 3; see also, 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, Addendum: State obligations to provide access to remedy for human rights abuses by third parties, including business: an overview of international and regional provisions, commentary and decisions A/HRC/11/13/Add.1 (15 May 2009); available [https://undocs.org/en/A/HRC/11/13/Add.1]; last accessed 25 February 2024.
[64] Discussed Chapter 3; see also, Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, Business and human rights: further steps toward the operationalization of the “protect, respect and remedy” framework A/HRC/14/27 (9 April 2010); available [https://undocs.org/en/A/HRC/14/27]; last accessed 25 February 2024.
[65] Discussed Chapter 1.
[66] OHCHR, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (Geneva & NY, 2012).
[67] Ibid., p. 3.
[68] John Ruggie, ‘Preface to Interpretive Guide,’ in OHCHR, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, p. iv.
[69] Interpretive Guide, p. 4
[70] John Ruggie, ‘Preface to Interpretive Guide,’ p. iv (“As work continues to elaborate the implications of this responsibility for different sectors, issues and situations, I hope that this Guide will help ground those efforts soundly and squarely on the original meaning and intent of the Guiding Principles themselves.”).
[71] Interpretive Guide, pp. 63-67.
[72] Discussed Chapter 6.
[73] Interpretive Guide, p. 63.
[74] Ibid.
[75] Discussed Chapter 14.
[76] Interpretive Guide, p. 63.
[77] Ibid., p. 64.
[78] Discussed Chapter 17.
[79] Interpretive Guide, p. 64 (“This may be an apology, provisions to ensure the harm cannot recur, compensation (financial or other) for the harm, cessation of a particular activity or relationship, or some other form of remedy agreed by the parties.”; compare UNGP Principle 25 Commentary).
[80] Ibid.
[81] Ibid. UNGP Principles 28-29 are discussed Chapter 19.
[82] Interpretive Guide pp. 64-65.
[83] Ibid., p. 65.
[84] Ibid., also cross referencing UNGP Principles 29 and 31.
[85] Discussed Chapter 14.
[86] Interpretive Guide, p. 66.
[87] Ibid. (“likely to be able to perform this role in practice, free of corruption or manipulation, and with sufficient credibility in the eyes of complainants for outcomes to be sustainable.”).
[88] Ibid., p. 66.
[89] Ibid., pp 66-67.
[90] Florencia S. Wegher Osci, ‘Guiding Principle 22: Remediation,’ in Barnali Choudhury (ed), The UN Guiding Principles on Business and Human Rights: A Commentary (Cheltenham, UK: Edward Elgar, 2023), pp 171-177.
[91] Ibid., pp. 171-172.
[92] Ibid., pp. 172-173.
[93] Ibid., p. 173, citing Human Rights Council, ‘Improving Accountability and Access to remedy for victims of business-related human rights abuse,’ (10 May 2016) UN Doc A/HRC/32/19 and Gwynne L. Skinner, Transnational Corporations and Human Rights: Overcoming Barriers to Judicial Remedy (CUP, 2020).
[94] Ibid.
[95] Discussed Chapter 8.
[96] Wegher Osci, p. 173-174, drawing on the Interpretive Guide, p. 7.
[97] United Nations General Assembly, Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises,’ (2018) UN Doc A/73/163 ¶40.
[98] Wegher Osci, p. 174.
[99] Ibid.
[100] Ibid., pp. 174-175.
[101] Ibid., pp. 175-177.
[102] Discussed Chapter 6.
[103] Wegher Osci, p. 175.
[104] Ibid., p. 176.
[105] Ibid.
[106] Ibid.
[107] Discussed Chapter 17.
[108] Discussed Chapter 14 (especially on the effect of mandatory HRDD measures under state or international law and its effect on 2nd Pillar expectations and HRDD).
[109] Discussed Chapter 20.
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