On March 24, 2011 the United Nations released the "Guiding Principles for the Implementation of the UN Protect, Respect and Remedy Framework" (the "GP" or "Guiding Principles"), the culmination of the work of UN Special Representative on business and human rights, John Ruggie, and his team. The Guiding Principles were endorsed
by the U.N. Human Rights Council in June, 2011. “In an unprecedented
step, the United Nations Human Rights Council has endorsed a new set of
Guiding Principles for Business and Human Rights designed to provide
-for the first time- a global standard for preventing and addressing
the risk of adverse impacts on human rights linked to business
activity.” United
Nations Human Rights Council, News Release, New Guiding Principles on
Business and human rights endorsed by the UN Human Rights Council, 16 June 2011.
(From Responsibility to Protect, International Crisis Group)
The consideration of the Guiding Principles marks a great milestone in the development of frameworks of governance of economic actors outside of the framework of national law. This milestone can be understood as consisting of four great aspects. The Guiding Principles represents the first successful efforts to provide a governance framework that can be adopted into the national legal orders of adhering states. In this aspect it represents a critical effort in the harmonization of national law on the basis of global consensus. At the same time, the Guiding Principles also represents the first successful effort to provide a framework for the development of customary and conventional international law. In this aspect, the Guiding principles represent a critical effort in the harmonization of governance for an important transnational actor at the international level. Additionally, the Guiding Principles for the first time acknowledges the existence and importance of non-governmental sources of governance rules. The embrace of the importance of social norm systems of autonomous behavior rules for economic enterprises represents a critical acknowledgment of non-state actors as a source of norm making the authority of which is not dependent on states. Lastly, the Guidelines for the first time link remedial obligations to the state duty to remedy and the corporate responsibility to respect human rights in a way that both preserves the autonomy of human rights and their connection to both law and social norms systems.
The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").
In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010, the "DP" or "Draft Principles") to final form GP (March 2011) from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development that I will develop in a series of posting, divided along the conceptual lines within which the Guiding Principles were framed.
That analysis is divided into several parts:
The Guiding Principles will likely be significantly influential not just as a source of soft law principles at the international level, but as a basis for the evolution of common understanding of appropriate standards of corporate behavior for the development of social norms and eventually changes to the form of the domestic legal orders of states. It will be inevitable that as the Guidelines move toward approval and implementation after endorsement, all major stakeholders in the process will seek to mold the Guidelines to suit their interests. See, e.g., Stefan Marculewicz, U.N. Special Representative's Final Guiding Principles on Business and Human Rights: Policy Implications for Employers, Global Employment Law, March 29, 2011 ("We also believe these Guiding Principles, if not addressed proactively by companies, may create an opportunity for advocacy organizations (such as issue-specific non-governmental organizations and labor unions) to seek to define the parameters of the Guiding Principles on their own terms. "). These discussions will draw on the Guiding Principles themselves and their inevitable comparison with failed earlier efforts to provide a structure for the governance of business actions with human rights impacts. John Knox, The Human Rights Council Endorses “Guiding Principles” for Corporations ASIL Insights Aug. 1, 2011 ("In the wake of the debate over the Draft Norms, the appointment of John Ruggie was something of a gamble that he could bring consensus out of the controversy over the application of human rights principles to corporations. To a remarkable degree, he did so. The Human Rights Council’s endorsement of the Guiding Principles opens a new chapter in the continuing effort to bring human rights law to bear on corporations. It remains to be seen, however, how successful the Guiding Principles will eventually prove at curbing corporate abuses of human rights.").
In order to better understand the Guidelines, it may be useful to examine the context in which the Guiding Principles were developed and the development of the Guiding Principles from draft (in November 2010, the "DP" or "Draft Principles") to final form GP (March 2011) from a more neutral perspective. For this purpose I have provided my own thoughts about that context and development that I will develop in a series of posting, divided along the conceptual lines within which the Guiding Principles were framed.
That analysis is divided into several parts:
Part I: From Conception to Principle—The development of the Protect-Respect-Remedy Framework and the Drafting of the Guiding Principles (April 24, 2011);
Part II. The Draft Guiding Principles: Section by Section Analysis (April 30, 2011);
Part III. Justification and Legitimacy in the Introduction to the Guiding Principles Implementing the UN "Protect, Respect and Remedy" Framework.
Part IV. Section By Section Analysis, From Draft to Final Principles: Overall Structure and Capstone Principles.
Part V. Section By Section Analysis: The State Duty to Protect Principles.
Part VI. Section By Section Analysis: The Corporate Responsibility to Respect.
Part VII. Section By Section Analysis: The Obligation to Remedy.
Part VIII. The General Principles: A Preliminary Assessment.
(From Haley St. Dennis, The Elephant in the Room: Addressing International Investment Conditions to Improve Human Rights, Institute for Human Rights and Business, June 14, 2011 (Caption: "The SRSG’s Guiding Principles on Business and Human Rights call attention to some of the blind spots and problem areas of investment agreements. "))
This posting continues a section by
section consideration of the final
version of the Guiding Principles, focusing on the GP provisions
elaborating the state duty to protect.
The full analysis will be published as Backer, Larry Catá, From
Institutional Misalignment to Socially Sustainable Governance: The
Guiding Principles for the Implementation of the United Nation’s
'Protect, Respect and Remedy' and the Construction of Inter-Systemic
Global Governance (September 5, 2011). Pacific
McGeorge Global Business & Development Law Journal, 2011 and can be accessed here.
_________________________________
I have suggested that a substantial amount of principled pragmatism stands between the “Protect, Respect, and Remedy” framework and the final version of the Guiding Principles. The Guiding Principles, as finally endorsed, represents a substantial aggregation of compromises and choices made to avoid the fate of the Norms in 2005. The Guiding Principles do not fully implement a broad reading of the “protect, Respect and Remedy” framework, but does it preserve the essence of that framework? The answer emerges from a consideration of the movement from draft to final version of the GP; and what emerges is a qualified yes. The GP preserves the essence of the “Protect, Respect, and Remedy” framework but at a price—shifting the center of gravity to the state duty to protect and recasting remedies as a consequential aspect of the state duty to protect. In the process, both the corporate responsibility to respect and the remedial pillar become more peripheral aspects. And thus the qualification: what remains preserves the structure of the “Protect, Respect and Remedy” framework. It leaves an opening, smaller than that suggested by the framework, but clear enough, from out of which corporations and other non-state stakeholders might rework the GP to more closely mirror the framework. This section considers the provisions of the General Principles in the form endorsed by the UN Human Rights Council in detail. Subsection A examines the definitions created under the DP and abandoned in the GP along with the capstone principles that inform interpretation of the GP as a whole. Subpart B then considers the GP Principles elaborating the state duty to protect human rights. Subpart C analyzes the GP touching on the corporate responsibility to respect human rights and subpart D considers the GP touching on the remedial obligations of states and business entities.
B. The Devil is in the Detail—Section By Section Analysis: The State Duty to Protect Principles.
1. The State Duty to Protect Human Rights: Foundational Principles. The ten GP touching on the state duty to protect human rights is divided into two sections, “Foundational Principles,”[1] and “Operational Principles” the later of which is subdivided into “General State Regulatory and Policy Functions,”[2] “The State-Business Nexus,”[3] “Supporting Business Respect for Human Rights in Conflict-Affected Areas,”[4] and “Ensuring Policy Coherence.”[5] These rearrange and modify the organization of the GP in the draft Guiding Principles, [6] principally by reinforcing the distinction between general principals which must be applied in the interpretation of the operational principles that follow (and both, of course, to be interpreted in light of the “General Principles” section applicable to all of the GP.
The state duty to protect human rights, the first pillar of the “Protect, Respect, and Remedy” framework, is distilled in GP 1 and 2. GP 1 describes the state duty to protect human rights. But GP 1 appears to reflect a duty that is secondary rather than primary: states do not have a duty to protect against human rights abuses, including their own abuses. Instead they merely have an obligation to protect against human rights abuses within their territories by third parties.[7] The Commentary, however, suggests a broader application than the black letter of the principle suggests.[8] The Commentary suggests that the duty to protect is a standard of conduct; that States are not responsible for the abuses of private parties; and that states do become liable as principles where the abuses can be attributed to them or where they fail to enforce against third party abuse in accordance with the standards of GP 1.[9] Inexplicably, the Commentary also reads into the black letter of the principle a state duty to “protect and promote the rule of law.”[10]
GP 2 then describes the means by which states comply with their duty in their regulation of business enterprises within their territory or jurisdiction.[11] It represents a combination of the extraterritoriality provision of the original DP with the “clear expectations” principle of the first part of DP 5.[12] The strategic reasons for the move remain unclear—perhaps as a means of softening the focus on extraterritoriality, a position that remained contested.
The principle focus of GP 2, though, is extraterritoriality. The Commentary to GP Principle 2 makes clear that is principle is meant as a rather lukewarm endorsement of extraterritoriality.[13] This is a substantial retreat from both language in the SRSG Reports and the DP.[14] The Commentary then suggests the policy reasons favoring Principle 2[15] and the approaches states have employed to implement the principle, including by resort to extraterritorial principles, a backhanded approach to the endorsement of extraterritoriality nowhere explicit in the Principle itself.[16] Gone are references to supply chain relationships and controlled entity concepts that were included in the draft Principles and that strengthened the case for extraterritoriality.[17]
The draft Guiding Principles reflected a somewhat different perspective in the elaboration of the fundamental provisions of the state duty to protect human rights. It is in those differences that one can discern the spaces between “Protect, Respect and Remedy” as a framework, the narrowing approach of the DP and the final product. Together they provide a more principled basis for reading the GP as ultimately endorsed. The foundational principles set the scope and nature of the state duty to protect human rights. Principle 1 is directed toward the state, rather than, as in the final version, the states’ duty as against third parties.[18] It describes the state’s obligations with respect to its incorporation of international human rights standards into its domestic legal order and to enforce that legal order against. The obligations of Principal 1 are mandatory. Principle 2 is directed outward. It describes the fundamental relationship between the state, and its law system, and businesses under its control. The obligations of Principle 2 are permissive—states are not required, they are encouraged to assert authority over businesses to the extent described in Principle 2. The remainder of the GP focused on the state duty to protect human rights then elaborate these two foundational principles, building on the mandatory principle of GP Principle 1 and the permissive principle of GP Principle 2 to frame the extent of the state duty to protect human rights at home and outside of its own territory.
DP Principle 1 can be understood made up of two parts. The first part sets out the extent of the duty: “States must protect against business-related human rights abuse within their territory and/or jurisdiction.”[19] The second part describes the methodology that is to be used to comply with this obligation: states are required to take “appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, regulation, and adjudication.”[20] The focus of Principle 1 is on the state’s duty to prevent abuses of human rights by business.[21] The Commentary narrows the scope of the state duty described in DP 1 by distinguishing the duty to protect from “other State duties usually associated with human rights, such as the duties to promote and fulfill.”[22] The duty to protect is understood as grounded in law and policy. The legal basis of the duty arises form the international law obligations of states,[23] and to some extent from the imperatives of their domestic constitutional orders. The Commentary suggests that the international law obligations of states can be understood as requiring states to control their own behavior and also the behavior of persons or entities over which they might have control.[24] However, while states might have an obligation to control the conduct of others within their territory with respect to compliance with applicable human rights norms, the Commentary suggests that states will not be directly liable for the consequences of human rights abuses by others (within their control).[25] Lastly, the framework structure of GP Principle does imply a substantial amount of potential legislative and policy obligations on the part of states. These are framed as housekeeping obligations—the need to ensure legal and policy coherence by conforming law and policymaking to the obligations the state has undertaken.[26]
If DP Principle 1 is directed inward—focusing on the legal obligations of states with respect to their domestic legal orders—GP Principle 2 is directed outward toward the policy obligations of states that flow from their legal obligation to protect human rights and attach to persons or entities where ever they operate.[27] The Commentary notes that issues of extraterritoriality are complex and sensitive, though it does not elaborate on either.[28] Though the Commentary appears to take a cautious approach to the encouragement of assertions of extra territorial jurisdiction, the approach is ambiguous enough to provide a cover for fairly aggressive interventions abroad.[29] That permission to project legislative power abroad, of course, is a function of the extent of a state’s control over domestically chartered business operating abroad. The effect, then, is to provide a policy cover for the continued use of the power of developed states to project their legislative agendas into less developed states, which tend to serve as host states for foreign business operations. More importantly, the Commentary suggests a connection between the permissive actions of DP Principle 2 with the mandatory provisions of GP Principal 1, where the state is acting both as a regulator (DP Principle 1) and a participant (DP Principle 2) in activities beyond its borders.[30]
Still, the Commentary seeks to soften the effects.[31] It is also possible to argue that within the context of DP, extraterritoriality should have no functional effect on the internal operations of the host state law system. In effect, extra territoriality is merely a transitory step toward the necessary harmonization of law and policy inherent in the International Bill of Rights, which should produce a functionally equivalent global set of domestic legal orders. But that conclusion is founded on a number of assumptions with respect to which there might not yet be consensus in either theory or action. First, all states have an obligation in equal measure to incorporate international law within its domestic legal orders. Second, that bundle of international obligations is identical as among all states. Third, all states understand the bundle of transposable obligations identically. Fourth, none of the obligations raises issues within the constitutional order of any state. Fifth, the bundle of international human rights obligations is consistent with all other international obligations of states (in effect, there exists a sufficiently well developed policy coherence at the international law level). Sixth, the process of incorporation of these obligations will produce differences in form and process but no substantial differences in function or effect on application in individual cases. And seventh, states will enforce these obligations, subject to the peculiarities of their domestic legal order, in a substantially harmonized (though not uniform) manner, as a matter of law (binding obligation) and policy (comity).
The difficulty with the extraterritoriality provisions of the Principles, whether in draft or final form, of course, is that each of these assumptions remains highly contested, and states continue to “game” the system to their own advantage. States may not have the same set of legal obligations under international law and may not interpret their obligations under that law in the same way.[32] With respect to conventional law, not all states have acceded to every convention, many states have treaty relationships with other states, and states may have included substantial reservations. States have very different understanding of the scope, applicability and the nature of obligations under customary international law. Moreover, beyond issues of legal effect, the legal effect of non-binding international norms remains highly contested—as a matter of international law and in its effect on the domestic legal order of a state.[33] Indeed, as recent cases form the United States have shown, the relationship between international legal or normative obligation and the strictures of a constitutionally derived domestic legal or work against the incorporation of international law or norms in a uniform or harmonized way, if it is incorporated at all.[34] Other states take a different approach.[35] The potential for law and policy incoherence grows. More importantly, it is clear that, even within the assumption of the GP framework, extraterritoriality can have a significant effect, especially for the transposition of developed state law through the instrumentalities of their chartered corporations operating in less developed host states.
2. The State Duty to Protect Human Rights: Operational Principles—General State and Regulatory Policy Functions. The Operational Principles comprise the bulk of the GP touching on the state duty to protect. Principle 3 (Draft Principle 5) considers the general regulatory and policy functions of states. It lists five categories of actions to be undertaken by states that mean to honor their obligations under Principle 1. Two involve the construction and enforcement of law,[36] one defines the guidance obligations of states (that slips in an extraterritorial element, [37] and the last frames the construction of corporate disclosure obligations.[38] The structure is meant to describe a universe of obligation that includes not merely legal obligations but policy commitments as well. Most interesting is the principle, set out in GP 3(a) that states have a due diligence obligation with respect to the adequacy of their domestic legal orders in complying with the law enforcement obligations of GP 2 and 3(a).[39]
The Commentary urges states to avoid being passive in fostering business respect for human rights, and counsels better enforcement of existing law, arguing that the failure to enforce has the effect of a legislative gap. [40] Most importantly, the Commentary takes direct aim at the conventional construction of corporate law—the shareholder welfare maximization basis of which may be inconsistent with the human rights privileging objectives of the GP.[41] The Commentary also suggests a number of soft law techniques for state guidance of business enterprises to respect human rights,[42] invites states to make better use of their national human rights institutions to meet their duty to protect,[43] and suggest the contours of appropriate disclosure regimes.[44] Lastly, the Commentary suggests changes in national and international accounting principles.[45] The Commentary does not focus attention on the principle’s invitation for home states to regulate corporate conduct down the supply chain, but does suggest the nature of such regulation through the corporate obligation to undertake human rights due diligence.[46] Taken as a whole, these suggestions are, at best, tall orders, and will require the concurrence of a number of stakeholders, many of which were not parties to the GP process, and whose interests may be adverse to the objectives of the GP.
The Draft Principles took a similar path, though it also included discussion of policy coherence, eventually moved to GP Principle 2. DP Principle 5 sets out in more detail the methodologies of regulating business within the context of the duty to protect against human rights abuses. The basic principle is straightforward, and applicable to national regulation domestically and extraterritoriality.[47] The requirements of DP Principle 5 can be divided into two distinct parts. The first is the requirement that States should set out their expectations. The second part requires States to take the necessary measures to “support, encourage, and require” compliance with these expectations. Four methods are identified as appropriate to meet these objectives. These methods reflect the fundamental division of the state duty to protect between law and policy that serves as the basic ordering framework of DP Principle 1. Law based methods included enforcing law and ensuring that relevant law does not impede corporate respect for human rights.[48] Policy based methods include providing guidance on how to respect human rights and how to communicate corporate human rights performance.[49]
These methodologies are grounded on a principle of state action (one consistent with DP Principle 1, a focus now substantially lacking in the final version of GP Principle 1)—that “States should not assume that businesses invariably prefer, or benefit from, State inaction.”[50] With respect to enforcement of law and direction of policy, the Commentary suggests the need to harmonize laws relating to business with the overarching principles of human rights law. This derives both from the SRSG’s emphasis on the need for policy and legal coherence and on the recognition that the current model of business regulation, grounded in shareholder or enterprise welfare maximization, might frustrate the enterprise of transposing human rights norms into the law and policy systems of states.[51] The SRSG, at the same time, stresses the importance of practical guidance on business respect for human rights “should indicate expected outcomes; advise on appropriate methods, including human rights due diligence; and help shape best practices.” The point of guidance, as part of the State duty to protect, then, is closely tied to the responsibilities of business to respect human rights.[52] But more than that, it suggests an institutional hierarchy, in which the state retains some authority, or at least obligation, to help shape and manage, the social norm system of corporate governance regimes. This form of connection between the state duty and corporate responsibility is made clear in the context of the obligation to encourage corporate communication on corporate human rights performance.[53]
3. The State Duty to Protect Human Rights: Operational Principles—The State-Business Nexus. The connections between the core duty of states to protect human rights, the corporate responsibility to respect human rights and the role of international public and private actors, is developed in GP Principles 4-6. GP Principle 4 amalgamates the related DP Principles 6 and 8 without substantive change. GP Principle 4 focuses on enterprises that are either owned or controlled by a state, or that are the recipients of substantial state aid (whether or not state owned). In both cases, the state “should take additional steps to protect against human rights abuses”[54] These steps might include “where appropriate, by requiring human rights due diligence,”[55] steps that otherwise have a more compelling character in cases where enterprises are not state owned.[56]
The Commentary, though modified from its draft form in some respects, does not change the focus of discussion. The Commentary is careful, again, to assuage the sensibilities of states as occupying the top of the governance hierarchy in this system.[57] But state owned enterprises represent a nexus point for the state duty to protect and the corporate responsibility to respect human rights. Yet, given the change in GP Principle 1 from its draft version, it is easier to reconcile the two when incarnated in a state owned to state aided enterprise. GP Principle 1 reduces the state duty to one of protecting against human rights abuses committed buy others. The corporate responsibility to respect applies only to the corporate entity and not necessarily to its owners, especially where the owners are states. As such, it makes perfect sense within this structure for states to acquire nothing more than a reminder to enforce their laws, even against entities in which they have an ownership or control interest, or those which they subsidize. The Commentary then appears to state the obvious—the state obligation to enforce its law (GP Principle 1) is made easier because managers of state owned companies may have to report to state officials.[58]
On the other hand, the Commentary draws a stronger connection between the direct obligations of states, under legal and policy rationales, where the state subsidizes business enterprises. “Where these agencies do not explicitly consider the actual and potential adverse impacts on human rights of beneficiary enterprises, they put themselves at risk – in reputational, financial, political and potentially legal terms – for supporting any such harm, and they may add to the human rights challenges faced by the recipient State.”[59] It is in this context that the Commentary suggests that “human rights due diligence is most likely to be appropriate where the nature of business operations or operating contexts pose significant risk to human rights.”[60]
GP Principle 5 (DP Principle 7) focuses on obligations of states with respect to business enterprises performing services that they outsource.[61] The consequences of failure to comply are identified as both reputational and legal.[62] GP Principle 6 (DP Principle 9) focuses on respect for human rights by business enterprises when states engage in commercial transactions with them.[63] The only change from the draft Principles was the inclusion, in the Commentary, of a limiting provision of the state’s obligation—based on the particular obligation of a state under national and international law.[64]
4. The State Duty to Protect Human Rights: Operational Principles—Supporting Business Respect for Human Rights in Conflict Affected Areas. GP Principle 7 (DP Principles 10 with minor revisions) relates to the state duty to protect human rights in conflict zones. After its justificatory introduction,[65] CP Principle 7 provides that states should ensure that businesses operating in conflict zones avoid involvement with human rights abuses. It then offers four methods for achieving this result. These include early engagement with home state businesses to manage their operations in the conflict zone, assistance to business in identifying and assessing the form of heightened risks of human rights abuse, denying public support and services to uncooperative home state enterprises, and adjusting public policies and formal governance tools to enforce home state business compliance with conduct interdictions abroad. [66] “All these measures are in addition to States’ obligations under international humanitarian law in situations of armed conflict, and under international criminal law.”[67]
This principle marks one of the conceptual outer edges of the state duty and corporate responsibility pillars of the “Protect, Respect and Remedy” framework, at least as it touches on the current and conventional international system. GP Principle 7 concedes the supremacy of the state as the great active agent of enforcing collective norms. It also presumes the authority of the state to project its power through the business enterprises it controls. But it is not necessarily national power that is projected, but instead the projection of national power enforcing international norms. In essence GP Principle 7 concedes the need for unilateral action by the dominant states, and their authority to provide governance in the absence of an indigenous government. In effect, the underlying principle of GP Principle 7 assumes the need for there to be a proper state for every territory in a world organized on the basis of states. GP Principle 7 provides a specific application of the extraterritorial principle of GP Principle 2. The state duty to protect assumes a state assigned to every territory.[68] That implicates a related issue: which state ought to step in to supply law when a territory lacks a sufficient quantum of state power. The answer, of course, is implicit in GP Principle 2’s extraterritoriality principle. Thus, GP Principle 7 effectively vests the state duty to protect authority to the state that controls businesses operating in conflict or weak state zones.[69]
The Commentary makes clear that the GP framework and the web of international norms it represents provides an exception to the principle of internal sovereignty of states where there is no strong or stable government apparatus.[70] It then suggests the contours of the obligations of states to project their power through the private market activities of corporations domiciled in their territories. [71] That state power can be projected through the parent of such corporations where local activity is carried on by a subsidiary or the obligation can be applied as well to all supply chain downstream entities, combining this GP Principle 7 with the insights of GP Principle 3(c)).[72] Such assistance can come with a sting: the Commentary suggests that States “attach appropriate consequences to any failure by enterprises to cooperate in these contexts, including by denying or withdrawing existing public support or services, or where that is not possible, denying their future provision.”[73] The conflict zone principle also serves another important purpose—the management of the state’s efforts to achieve internal and external policy coherence in line with the requirements of international human rights norms, an issue taken up explicitly in GP Principles 8-10.[74] The obligation to interpose itself in the territories of weak governance or conflict zones, then, is reconstituted as a part of the State duty to protect human rights. There is irony here, in deepening and extending the power of the State to protect human rights wherever there is a need, the GP contribute to a vertically ordered integration of states within a system in which intervention in the internal affairs of states is managed in those contexts in which it cannot or will not meet its international obligations. But those interventions are themselves bounded not by the individual interests of the intervening state but rather by the norms of international human rights. Extraterritoriality, then, as expressed in GP Principles 2 and 7, appear to strengthen states, but they actually serve to limit state authority to those norms having international authority.[75]
5. The State Duty to Protect Human Rights: Operational Principles—Ensuring Policy Coherence. Policy coherence was an important element of the “Protect, Respect and Remedy” framework.[76] The Guiding Principles devote fully three principles to this issue. Together, they are meant to provide a structure for the development of internal state policy (GP Principle 8); of external policy in the development of bi-lateral relationships between states and other actors (GP Principle 9); and in the multilateral relations of states (GP Principle 10).
GP Principle 8 (DP 3) looks to internal or horizontal policy coherence: “States should ensure that governmental departments, agencies and other State-based institutions that shape business practices are aware of and observe the State’s human rights obligations when fulfilling their respective mandates.”[77] This obligation can be effectuated in part by providing relevant governmental authorities with “relevant information, training and support.”[78] The Commentary elaborates, condensing the discussion of vertical and horizontal coherence developed in the SRSG’s Reports. In the process, the Commentary suggests both the realities of domestic law incoherence as a fundamental drag on the ability of a state to comply with even its indirect duty specified in GP Principle 1[79] and the failures of states to align their internal law systems to their international legal obligations.[80]
There are several aspects to these principles that are worth highlighting. First, GP Principle 8 looks inward, to the relationship of the state to its governance organs in a way that suggests a hierarchy of policy that places human rights at or near the top of a state’s policy obligations.[81] Second, it reaches state practice at all levels of operation, irrespective of the division of power within a state. GP Principle 8 thus cuts across organizational structures from the division of authority between states and a federal government, to the powers reserves to regions under various incarnations of autonomy regimes.[82] Third, it also reaches, on the same principle, into the territory and law structures of semi sovereigns, like indigenous peoples.[83] Fourth, all of these subordinate or related governance units are understood in the context of the overall obligations of GP Principle 1 the policy choices of which must be coordinated and subject to the hierarchy of values that privilege human rights.
GP Principle 9 (DP 4 without substantive change) focuses on the relationship of states with others in the context of implementing coherent policies. GP Principle 9 suggests that the coherence principles of CP Principle 8 extends externally—to the relationships between the state and other states or businesses. The Commentary describes these as “[e]conomic agreements concluded by States, either with other States or with business enterprises—such as bilateral investment treaties, free-trade agreements or contracts for private investment projects—create economic opportunities for States. But they can also affect the domestic policy space of governments,”[84] a policy space that has been complicated by the recognition of the need to protect investor rights.[85]
Lastly, the capstone provision of the Principles framing the state duty to protect human rights is elaborated in GP Principle 10. This principle looks toward the enlargement and deepening of international legal regimes founded on the dense network of international organizations managing the growing body of collective state law (that is, of international conventional and customary law) as an alternative, and perhaps as the more legitimate substitute, for the unilateralist extraterritoriality of GP Principles 2 and 7. But GP Principle 10 serves to remind that while unilateral action is permitted, collective action has greater legitimacy. The superiority of collective state action to the unilateral action of any single state (or group of powerful states), ought to be regarded as the better alternative, both for policing weak governance zones and for developing the set of duties to which states ought to be bound.
The effect might be to cabin the extraterritoriality impulse in CP Principles 2 and 10. The extraterritorial insight—that extraterritoriality bounded by international principles will tend to constrain rather than expand state discretionary authority, is made clear in GP Principle 10. But that impulse is also substantially constrained by the language of the principle itself. First, the vertical ordering itself is understood in the “passive voice”—it is both weak and consequential. The Principle applies only where states are acting as members of multilateral institutions that deal with business related issues. It neither compels states to enter into such arrangements nor does it limit or order the importance of policy and legal obligations that may be derived from the actions of these institutions. To the extent that this is implied, it is buried in the Commentary of other principles.[86] Second, it treats these multilateral organizations as lacking an autonomous mission beyond the desires of the states that contribute to their organization.[87] And third, it assumes a coercively organized state system in which international organizations are used instrumentally to coerce vertical harmonization at the instance of dominant states.[88] Multilateralism is privileged—but multilateralism guided by advanced states and impliedly coercively enforced against others. But there is also implied both an element of state power hierarchies of the need for the most “advanced” states to lead the others to a more developed internalization of norms that have been embraced by the leading states.
This Principle is meant to create a particularly focused set of incentives for the folding of the project of human rights back to the international level through the contributions of states, as members of the community of nations, to the development of the international legal framework which each is then bound to incorporate into their domestic legal orders. But it does this in a way that would avoid offending states in the sense of the extent of their own sovereignty. It provides a three-part structure for multilateral efforts. The first is to preserve upward vertical policy coherence—now extended to international institutions through which the norms constituting the substantive obligations of the State duty to protect are developed.[89] The second is to ensure downward vertical policy coherence, that international institutions promote the work of states in guarding against business related abuse (though not, it seems, of state related abuse except perhaps when undertaken through enterprises of some sort).[90] Lastly, that the “Protect, Respect and Remedy” framework itself serve as the basis of substantive innovation.[91] The GP themselves, then, serve its highest purpose as the nexus point for horizontal and vertical coherence of law and policy. [92]
(From The Revolution Will Not be Telephoned, The Laws of Rule, June 3, 2011 ("So, when a government tells a phone company to deny customers mobile service, or an internet service provider to pull the plug, or a software company to design a programme to block certain web sites, those businesses have no option but to comply. . . . this week there emerged a new case from Egypt, when Egyptians expressed anger at a decision by the country’s High Administrative Court to let companies off the hook for the widespread shut-down of telephone and internet communications during the 25 January revolution. For their part, the companies say they had no choice, referring to Egyptian telecommunications law giving the government the right to cut the lines for reasons of national security. ")).
[1] GP Principles 1-2.
[2] GP Principles 3.
[3] GP Principles 4-6.
[4] GP Principle 7.
[5] GP Principle 8-10.
[6] The rearranging reflects both the shift in emphasis of the General Principles reflected in the first section, discussed above, and drafting refinement.
[7] “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.” GP, Principle 1.
[8] “States’ international human rights law obligations require that they respect, protect and fulfill the human rights of individuals within their territory and/or jurisdiction. This includes the duty to protect against human rights abuse by third parties, including business enterprises.” GP, Principle 1 Commentary. It is not clear how the Commentary can be reconciled with the narrower language of the principle itself.
[9] Id.
[10] While these principles could be read into the “Protect, Respect and Remedy” Framework, it is hard to extract such a duty from the language of Principle 1. In any case, this obligation is understood to include a principle of equality before the law, fairness in application of law, and accountability, legal certainty and procedural and legal transparency. Id.
[11] “States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.” GP, Principle 2.
[12] See discussion below. The rationale for the clear expectaitons part of GP 2 remain unchanmged from the draft—“ ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation.” GP Principle 2 Commentary.
[13] “At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis. Within these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by business enterprises within their jurisdiction.” GP Principle 2 Commentary.
[14] See discussion, infra.
[15] The Commentary highlights predictability for business (and thus the preservation of a favorable business climate) and the reputational benefits to states . GP Principle 2 Commentary.
[16] Indeed, the Commentary in its third paragraph appears to upend the implications of the first paragraph of the Commentary by seeking to make the case for aggressive use of extraterritorial regulation in the guise of speaking to approaches that might be used to clarify the expectations of business behavior.
[17] See discussion, infra.
[18] DP Principle 1 (“States must protect against business-related human rights abuse within their territory and/or jurisdiction by taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, regulation, and adjudication.”).
[19] DP Principle 1.
[20] DP Principle 1.
[21] DP Principle 1 Commentary.
[22] DP Principle 1 Commentary.
[23] DP Principle 1 Commentary. “The legal foundation of the State duty to protect against business-related human rights abuse is grounded in international human rights law. ” Id.
[24] DP Principle 1 Commentary (“The specific language in the main United Nations human rights treaties varies, but all include two sets of obligations for States Parties: first, to refrain, themselves, from violating the enumerated rights of persons within their territory and/or jurisdiction, generally known as the State duty to respect human rights; second, to “ensure” (or some functionally equivalent verb) the enjoyment or realization of those rights.” Id.).
[25] States, however, might be liable for breach of their obligations under international law where their failure to ensure compliance by others within their control is itself a breach of the relevant treaty. DP Principle 1 Commentary.
[26] See GP Principles 8-10 and discussion infra.
[27] DP Principle 2: “States should encourage business enterprises domiciled in their territory and/or jurisdiction to respect human rights throughout their global operations, including those conducted by their subsidiaries and other related legal entities.” Id.
[28] The issue, however, was thoroughly vetted in the years leading to the production of the DP. See, e.g., Jennifer A. Zerk, Extraterritorial Jurisdiction: Lessons for Business and Human Rights Sphere from Six Regulatory Areas, Report for the Harvard Corporate Social Responsibility Initiative to Help Inform the Mandate of the UNSG’s Special Representative on Business and Human Rights Working Paper No. 59 (June 2010).
[29] The Commentary is a study in ambiguity:
States are not at present generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction, nor are they generally prohibited from doing so provided there is a recognized jurisdictional basis, and that the exercise of jurisdiction is reasonable. Various factors may contribute to perceived and actual reasonableness of States’ actions, including whether they are grounded in multilateral agreement.
DP Principle 2 Commentary.
[30] DP Principle 2 Commentary (“Indeed, strong policy reasons exist for home States to encourage businesses domiciled in their territory and/or jurisdiction to respect human rights abroad, especially if the State is involved in the business venture.”).
[31] Id.
Furthermore, the exercise of extraterritorial jurisdiction is not a binary matter but comprises a range of measures, not all equally controversial under all circumstances. The permissible options which may be available range from domestic measures with extraterritorial implications, such as requirements on “parent” companies to report on their operations at home and abroad, to direct extraterritorial jurisdiction such as criminal regimes which rely on the nationality of the perpetrator no matter where the offense occurs.
[32] Cf. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion 2004 July 9 General List No. 131 (July 9, 2004) (available http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm).
[33] Cf. Inter-American Court of Human Rights, Advisory Opinion OC-18/03 (Sept. 17, 2003) Juridical Condition and Rights of Undocumented Migrants (United Mexican States) (http://www.corteidh.or.cr/opiniones.cfm?idOpinion=24).
[34] Cf. MEDELLÍN, Petitioner, v. TEXAS, 128 S.Ct. 1346 (2008).
[35] State v. T. Makwanyane and M. Mchunu, Case No. CCT/3/94 (1995); http://law.gsu.edu/ccunningham/fall03/DeathPenalty-SouthAfrica-Makwanyane.htm.
[36] States should enforce laws that are aimed at or have the effect of requiring business to respect human rights, and states should also periodically assess the effectiveness of these laws and correct deficiencies. GP, Principle 3(a). In addition, states should ensure that the other parts of its domestic legal order, and especially its corporate law, not constrain business respect for human rights. GP Principle 3(b).
[37] States should provide effective guidance to businesses on how to respect human rights “throughout their operations.” GP Principle 3(c). This is in addition to GP Principle 2’s requirement that states set out clear expectations about respecting human rights. The reference to operations seems to focus interest on the supply chain operations of a business, but the Commentary fails to take this up, focusing instead on the effects of supply chain operations rather than identify them directly.
[38] States should encourage and might compel businesses to communicate how they address human rights impacts. GP Principle 3(d).
[39] Thsi is described as an obligation to “periodically . . .assess the adequacy of such laws and address any gaps.” GP 3(a).
[40] GP Principle 2 Commentary.
[41] The Commentary strengthens the suggestion made in the DG Commentary that there is a certain amount of flexibility, perhaps more than is warranted by the history of the application of law in many states, in the construction and interpretation of the shareholder welfare maximization principles of corporate law. See, Larry Catá Backer, Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights Under the UN SRSG Mandate, Law at the End of the Day, Jan. 14, 2010, available http://lcbackerblog.blogspot.com/2010/01/using-corporate-law-to-encourage.html.
[42]
States “should
consider a smart mix of measures – national and international, mandatory and
voluntary – to foster business respect for human rights.” G.P. Principal 3
Commentary.
[43]
“National human
rights institutions that comply with the Paris Principles have an important
role to play in helping States identify whether relevant laws are aligned with
their human rights obligations and are being effectively enforced, and in
providing guidance on human rights also to business enterprises and other
non-State actors.” G.P. Principle 3 Commentary.
[44] States “should
consider a smart mix of measures – national and international, mandatory and
voluntary – to foster business respect for human rights.” Id.
[45] “Financial reporting requirements should clarify that human rights impacts in some instances may be “material” or “significant” to the economic performance of the business enterprise.” GP Principle 3 Commentary.
[46] “It should advise on appropriate methods, including human rights due diligence, and how to consider effectively issues of gender, vulnerability and/or marginalization, recognizing the specific challenges that may be faced by indigenous peoples, women, national or ethnic minorities, religious and linguistic minorities, children, persons with disabilities, and migrant workers and their families.” GP Principle 3 Commentary. In the draft principles supply chain issues are discussed elsewhere.
[47] GP Principle 5 (“States should set out clearly their expectation for all business enterprises operating or domiciled in their territory and/or jurisdiction to respect human rights, and take the necessary steps to support, encourage and where appropriate require them to do so”).
[48] DP Principle 5 (a) and (b).
[49] DP Principles 5 ( c) and (d)
[50] DP Principle 5 Commentary. True to the fundamental embrace of multiple sources of governance regimes, the Commentary suggests a “Smart mix of measures.” Id. These are founded on naitonal law, the legal and policy transposuition of international law, and the advancement of voluntary measures, this last a nod in the direction of non-state social norm governance systems. Id.
[51] For a critical discussion of these efforts and assumptions, see, Larry Catá Backer, Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights Under the UN SRSG Mandate, Law at the End of the Day, Jan. 14, 2010.
[52] GP Principle 12-22.
[53] GP Principle 5(d) and Commentary last two paragraphs.
[54] GP Principle 4.
[55] Id.
[56] See GP Principle 11, discussed infra.
[57] Indeed, the Commentary do esa nice job of suggesting the hierarchical ordering of governance roles between states and business enterprises in the context of the GP normative framework.
States individually are the primary duty-bearers under international human rights law, and collectively they are the trustees of the international human rights regime. Where a business enterprise is controlled by the State or where its acts can be attributed otherwise to the State, an abuse of human rights by the business enterprise may entail a violation of the State’s own international law obligations. Moreover, the closer a business enterprise is to the State, or the more it relies on statutory authority or taxpayer support, the stronger the State’s policy rationale becomes for ensuring that the enterprise respects human rights.
GP Principle 4 Commentary.
[58] The Commentary puts it this way:
Where States own or control business enterprises, they have greatest means within their powers to ensure that relevant policies, legislation and regulations regarding respect for human rights are implemented. Senior management typically reports to State agencies, and associated government departments have greater scope for scrutiny and oversight, including ensuring that effective human rights due diligence is implemented.
GP Principle 4 Commentary.
[59] GP Principle 4 Commentary.
[60] Id.
[61] FGP Principle 5 provides: “States should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights.”
[62] GP Principle 5 Commentary. The means to avoid these consequences are to give effect GP Principle 2. “As a necessary step, the relevant service contracts or enabling legislation should clarify the State’s expectations that these enterprises respect human rights. States should ensure that they can effectively oversee the enterprises’ activities, including through the provision of adequate independent monitoring and accountability mechanisms.” GP Principle 5 Commentary.
[63] “States should seek to ensure respect for human rights by business enterprises when they conduct commercial transactions with them.” GP Principle 6. This obligation is described as a set of “unique opportunities to promote awareness of and respect for human rights by those enterprises” with which the state engages in transactions. CP Principle 6 Commentary.
[64] CP Principle 6 Commentary. The result, of course, is the potential loss of policy coherence, as the legal obligations of states under national and international law vary widely, and vary more widely still in their interpretations of even similar legal obligations.
[65] “Because the risk of gross human rights abuses is heightened in conflict-affected areas” GP Principle 7.
[66] GP Principals 7(a)-(d).
[67] GP Principle 7 Commentary.
[68] This, of course, is the basic assumption of the state system on which national and international public law regimes are currently based. See, CITE.
[69] “Responsible businesses increasingly seek guidance from States about how to avoid contributing to human rights harm in these difficult contexts.” GP Principle 10 Commentary.
[70] “Some of the worst human rights abuses involving business occur amid conflict over the control of territory, resources or a Government itself – where the human rights regime cannot be expected to function as intended.” GP Principle 7 Commentary.
[71] “n conflict-affected areas, the “host” State may be unable to protect human rights adequately due to a lack of effective control. Where transnational corporations are involved, their “home” States therefore have roles to play in assisting both those corporations and host States to ensure that businesses are not involved with human rights abuse, while neighboring States can provide important additional support.” Id.
[72] “In conflict-affected areas, the “host” State may be unable to protect human rights adequately due to a lack of effective control. Where transnational corporations are involved, their “home” States therefore have roles to play in assisting both those corporations and host States to ensure that businesses are not involved with human rights abuse, while neighboring States can provide important additional support.” Id.
[73] Id. The Commentary also amplifies the obligations of states in the management of their home state corporations abroad. “States should warn business enterprises of the heightened risk of being involved with gross abuses of human rights in conflict-affected areas. They should review whether their policies, legislation, regulations and enforcement measures effectively address this heightened risk, including through provisions for human rights due diligence by business.” Id. Thus there is a strong legislative component as well here, one that mirrors the legislative obligations of states under GP Principle 3(b).
[74] For example, the Commentary suggests “To achieve greater policy coherence and assist business enterprises adequately in such situations, home States should foster closer cooperation among their development assistance agencies, foreign and trade ministries, and export finance institutions in their capitals and within their embassies, as well as between these agencies and host Government actors.” Id.
[75] “States should consider multilateral approaches to prevent and address such acts, as well as support effective collective initiatives,” GP Principle 7 Commentary.
[76] See, e.g., Larry Catá Backer, On the Evolution of the United Nations’ “Protect-Respect-Remedy” Project: The State, the Corporation and Human Rights in a Global Governance Context, supra note 43, at 71.
[77] GP Principle 8. The Commentary defines policy coherence in terms of the obligations of states: “Horizontal policy coherence means supporting and equipping departments and agencies, at both the national and sub- national levels, that shape business practices – including those responsible for corporate law and securities regulation, investment, export credit and insurance, trade and labour – to be informed of and act in a manner compatible with the Governments’ human rights obligations.” GP Principle 8 Commentary.
[78] Id.
[79] “There is no inevitable tension between States’ human rights obligations and the laws and policies they put in place that shape business practices. However, at times, States have to make difficult balancing decisions to reconcile different societal needs.” GP Principle 8 Commentary.
[80] “Vertical policy coherence entails States having the necessary policies, laws and processes to implement their international human rights law obligations.” Id.
[81] That hard wiring of policy balancing in favor of a state’s human rights obligations is implicit through the application of GP Principle 1. In many cases, it is also a necessary consequence of the application of the policy ordering implicit in the constitutional systems of the state. This might be the case, for example, in Germany, with its emphasis on human dignity. See Grundgesetz art. 1.
[82] The Commentary speaks to the obligations of coherence as extending to “both the national and sub- national levels.” GP Principle 8 Commentary. It is also understood as an element of vertical coherence. Though its focus is on the coherence of policy between the state and international community, it reaches downward as well. “Vertical policy coherence entails States having the necessary policies, laws and processes to implement their international human rights obligations.” GP Principle 8 Commentary.
[83] This requires combining the breadth of CP Principle 8 with in the overall framework principles discussed above.
[84] GP Principle 9 (“Therefore, States should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection.”
[85] The Commentary for GP Principle 9 differs from its draft form in one important respect—it includes an obligation to balance the human rights effects of policy and law against the need to protect investors. That has wider implications, of course, including those that touch on a state’s duty to revise its corporate laws to attain policy convergence in the context of human rights. See GP Principle 3(b) discussed supra.
[86] See, e.g., the last paragraph of GP Principle 7 Commentary, a broader interpretation of which is discussed above.
[87] “States retain their international human rights law obligations when they participate in such institutions.” GP Principle 10 Commentary. The flow through nature of these organizations is emphasized further in the Commentary. “Capacity-building and awareness-raising through such institutions can play a vital role in helping all States to fulfill their duty to protect, including by enabling the sharing of information about challenges and best practices, thus promoting more consistent approaches.” Id.
[88] “Collective action through multilateral institutions can help States level the playing field with regard to business respect for human rights, but it should do so by raising the performance of laggards. Cooperation between States, multilateral institutions and other stakeholders can also play an important role.” Id.
[89] GP Principle 10(a) provides that states should “Seek to ensure that those institutions neither restrain the ability of their member States to meet their duty to protect nor hinder business enterprises from respecting human rights.”
[90] GP Principle 10(b) provides that states should “Encourage those institutions, within their respective mandates and capacities, to promote business respect for human rights and, where requested, to help States meet their duty to protect against human rights abuse by business enterprises, including through technical assistance, capacity-building and awareness-raising.” Id.
[91] Id. at 10(c) (“Draw on the “Protect, Respect and Remedy” Framework to promote shared understanding and advance international cooperation in the management of business and human rights challenges”).
[92] The Commentary makes this point explicit. “These Guiding Principles provide a common reference point in this regard, and could serve as a useful basis for building a cumulative positive effect that takes into account the respective roles and responsibilities of all relevant stakeholders.” GP Principle 10 Commentary.
