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PROTECT, RESPECT & REMEDY: A FRAMEWORK FOR BUSINESS AND HUMAN RIGHTS

 * February 2008
 * Innovations Technology Governance Globalization 3(2):189-212

DOI:10.1162/itgg.2008.3.2.189
 * Source
 * RePEc

Authors:
John Ruggie
 * Harvard University



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The international community is still in the early stages of adapting the human
rights regime to provide more effective protection to individuals and
communities
against corporaterelated human rights harm. This report to the Human Rights
Council presents a principles-based conceptual and policy framework intended to
help achieve this aim.
Business is the major source of investment and job creation, and markets can
be highly efficient means for allocating scarce resources. They constitute
powerful
forces capable of generating economic growth, reducing poverty, and increasing
demand for the rule of law, thereby contributing to the realization of a broad
spec-
trum of human rights. But markets work optimally only if they are embedded
within rules, customs, and institutions.Markets themselves require these to
survive
and thrive, while society needs them to manage the adverse effects of market
dynamics and produce the public goods that markets undersupply. Indeed, histo-
ry teaches us that markets pose the greatest risks—to society and business
itself—
when their scope and power far exceed the reach of the institutional underpin-
nings that allow them to function smoothly and ensure their political
sustainabil-
ity. This is such a time, and escalating charges of corporate-related human
rights
abuses are the canary in the coal mine, signalling that all is not well.
The root cause of the business and human rights predicament today lies in the
governance gaps created by globalization—between the scope and impact of eco-
nomic forces and actors, and the capacity of societies to manage their adverse
con-
sequences. These governance gaps provide the permissive environment for wrong-
ful acts by companies of all kinds without adequate sanctioning or reparation.
How to narrow and ultimately bridge the gaps in relation to human rights is our
fundamental challenge.
A publication of the United Nations; in the public domain.
innovations / spring 2008 189
John Ruggie
Protect, Respect and Remedy
A Framework for Business and Human Rights
Report of the Special Representative of the United
Nations Secretary-General on the issue of human rights
and transnational corporations and other business
enterprises.
John Ruggie is Kirkpatrick Professor of International Affairs and Director,
Mossavar-
Rahmani Center for Business and Government, Kennedy School of Government,
Harvard University; Affiliated Professor in International Legal Studies, Harvard
Law
School; and the United Nations Secretary-General’s Special Representative for
Business and Human Rights.



190 innovations / spring 2008
The Special Representative of the Secretary-General on the issue of human
rights and transnational corporations and other business enterprises was
appoint-
ed in July 2005. To meet the demanding requirements of the mandate he has, since
then, convened 14 multi-stakeholder consultations on five continents; conducted
more than two dozen research projects, some with the assistance of global law
firms and other legal experts, non-governmental organizations (NGOs), interna-
tional institutions, and committed individuals; produced more than 1,000 pages
of
documents; received some 20 submissions; and reported twice to the Commission
on Human Rights and the Human Rights Council. Previous reports have
responded to the mandate provisions asking the Special Representative to
identify,
clarify, and research key legal and policy dimensions of the business and human
rights agenda. The present report, together with its companion report and adden-
da, responds to the mandate’s invitation for him to submit views and recommen-
dations for the Council’s consideration. The mandate’s extensive, inclusive, and
transparent work programme has enabled the Special Representative to reflect on
the challenges, hear and learn from diverse perspectives, and develop ideas
about
how best to proceed.
The business and human rights debate currently lacks an authoritative focal
point. Claims and counter-claims proliferate, initiatives abound, and yet no
effort
reaches significant scale. Amid this confusing mix, laggards—States as well as
com-
panies—continue to fly below the radar.
Some stakeholders believe that the solution lies in a limited list of human
rights for which companies would have responsibility, while extending to compa-
nies, where they have influence, essentially the same range of responsibilities
as
States. For reasons this report spells out, the Special Representative has not
adopt-
ed this formula. Briefly, business can affect virtually all internationally
recognized
rights. Therefore, any limited list will almost certainly miss one or more
rights that
may turn out to be significant in a particular instance, thereby providing
mislead-
ing guidance. At the same time, as economic actors, companies have unique
responsibilities. If those responsibilities are entangled with State
obligations, it
makes it difficult if not impossible to tell who is responsible for what in
practice.
Hence, this report pursues the more promising path of addressing the specific
responsibilities of companies in relation to all rights they may impact.
There is no single silver bullet solution to the institutional misalignments in
the business and human rights domain. Instead, all social actors—States,
business-
es, and civil society—must learn to do many things differently. But those things
must cohere and become cumulative, which makes it critically important to get
the
foundation right.
Every stakeholder group, despite their other differences, has expressed the
urgent need for a common conceptual and policy framework, a foundation on
which thinking and action can build. Drawing on the mandate’s work in its first
two years, the Special Representative introduced the elements of a framework in
multi-stakeholder consultations during the autumn of 2007.
The framework rests on differentiated but complementary responsibilities. It
John Ruggie


Protect, Respect and Remedy
comprises three core principles: the State duty to protect against human rights
abuses by third parties, including business; the corporate responsibility to
respect
human rights; and the need for more effective access to remedies. Each principle
is
an essential component of the framework: the State duty to protect because it
lies
at the very core of the international human rights regime; the corporate
responsi-
bility to respect because it is the basic expectation society has of business;
and
access to remedy,because even the most concerted efforts cannot prevent all
abuse,
while access to judicial redress is often problematic, and non-judicial means
are
limited in number, scope, and effectiveness. The three principles form a comple-
mentary whole in that each supports the others in achieving sustainable
progress.
I. PROTECT, RESPECT AND REMEDY
The framing of policy challenges can have profound consequences for assigning
responsibilities to relevant actors and determining whether the combination is
capable of meeting the overall policy objectives. The business and human rights
agenda remains hampered because it has not yet been framed in a way that fully
reflects the complexities and dynamics of globalization and provides governments
and other social actors with effective guidance.
A. The Challenge
How should we frame today’s challenges in order to capture their essential
attrib-
utes? As noted at the outset, our focus should be on ways to reduce or
compensate
for the governance gaps created by globalization, because they permit corporate-
related human rights harm to occur even where none may be intended.
Take the case of transnational corporations. Their legal rights have been
expanded significantly over the past generation. This has encouraged investment
and trade flows, but it has also created instances of imbalances between firms
and
States that may be detrimental to human rights. The more than 2,500 bilateral
investment treaties currently in effect are a case in point. While providing
legiti-
mate protection to foreign investors, these treaties also permit those investors
to
take host States to binding international arbitration, including for alleged
damages
resulting from implementation of legislation to improve domestic social and
envi-
ronmental standards—even when the legislation applies uniformly to all business-
es, foreign and domestic. A European mining company operating in South Africa
recently challenged that country’s black economic empowerment laws on these
grounds.
At the same time, the legal framework regulating transnational corporations
operates much as it did long before the recent wave of globalization. A parent
com-
pany and its subsidiaries continue to be construed as distinct legal entities.
Therefore, the parent company is generally not liable for wrongs committed by a
subsidiary, even where it is the sole shareholder, unless the subsidiary is
under such
close operational control by the parent that it can be seen as its mere agent.
Furthermore, despite the transformative changes in the global economic landscape
innovations / spring 2008 191


192 innovations / spring 2008
generated by offshore sourcing, purchasing goods and services even from sole
sup-
pliers remains an unrelated party transaction. Factors such as these make it
exceed-
ingly difficult to hold the extended enterprise accountable for human rights
harm.
Each legally distinct corporate entity is subject to the laws of the countries
in
which it is based and operates. Yet States, particularly some developing
countries,
may lack the institutional capacity to enforce national laws and regulations
against
transnational firms doing business in their territory even when the will is
there, or
they may feel constrained from doing so by having to compete internationally for
investment. Home States of transnational firms may be reluctant to regulate
against overseas harm by these firms because the permissible scope of national
reg-
ulation with extraterritorial effect remains poorly understood, or out of
concern
that those firms might lose investment opportunities or relocate their headquar-
ters.
This dynamic is hardly limited to transnational corporations. To attract invest-
ments and promote exports, governments may exempt national firms from certain
legal and regulatory requirements or fail to adopt such standards in the first
place.
And what is the result? In his 2006 report, the Special Representative surveyed
allegations of the worst cases of corporate-related human rights harm. They
occurred, predictably, where governance challenges were greatest: disproportion-
ately in low income countries; in countries that often had just emerged from or
still
were in conflict; and in countries where the rule of law was weak and levels of
cor-
ruption high. A significant fraction of the allegations involved companies being
complicit in the acts of governments or armed factions. A recent study conducted
for the mandate by the Office of the United Nations High Commissioner for
Human Rights (OHCHR) confirms these findings but also shows that adverse
business impacts on human rights are not limited to these contexts.
B. The Framework
Insofar as governance gaps are at the root of the business and human rights
predicament, effective responses must aim to reduce those gaps. But individual
actions, whether by States or firms, may be too constrained by the competitive
dynamics just described. Therefore, more coherent and concerted approaches are
required. The framework of “protect, respect, and remedy” can assist all social
actors—governments, companies, and civil society—to reduce the adverse human
rights consequences of these misalignments.
Take first the State duty to protect. It has both legal and policy dimensions.
As
documented in the Special Representative’s 2007 report, international law
provides
that States have a duty to protect against human rights abuses by non-State
actors,
including by business, affecting persons within their territory or jurisdiction.
To
help States interpret how this duty applies under the core United Nations human
rights conventions, the treaty monitoring bodies generally recommend that States
take all necessary steps to protect against such abuse, including to prevent,
investi-
gate, and punish the abuse, and to provide access to redress. States have
discretion
John Ruggie


Protect, Respect and Remedy
to decide what measures to take, but the treaty bodies indicate that both
regulation
and adjudication of corporate activities vis-à-vis human rights are appropriate.
They also suggest that the duty applies to the activities of all types of
businesses—
national and transnational, large and small—and that it applies to all rights
private
parties are capable of impairing. Regional human rights systems have reached
sim-
ilar conclusions.
Experts disagree on whether international law requires home States to help
prevent human rights abuses abroad by corporations based within their territory.
There is greater consensus that those States are not prohibited from doing so
where
a recognized basis of jurisdiction exists, and the actions of the home State
meet an
overall reasonableness test, which includes non-intervention in the internal
affairs
of other States. Indeed, there is increasing encouragement at the international
level, including from the treaty bodies, for home States to take regulatory
action to
prevent abuse by their companies overseas.
The 2007 report also described the expanding web of potential corporate lia-
bility for international crimes, reflecting international standards but imposed
through national courts. As discussed in the next section, in some jurisdictions
innovations in regulation and adjudication are moving toward greater recognition
of the complex organizational forms characteristic of modern business enterpris-
es.
Further refinements of the legal understanding of the State duty to protect by
authoritative bodies at national and international levels are highly desirable.
But
even within existing legal principles, the policy dimensions of the duty to
protect
require increased attention and more imaginative approaches from States.
It is often stressed that governments are the appropriate entities to make the
difficult balancing decisions required to reconcile different societal needs.
However, the Special Representative’s work raises questions about whether
govern-
ments have got the balance right. His consultations and research, including a
ques-
tionnaire survey sent to all Member States, indicate that many governments take
a
narrow approach to managing the business and human rights agenda. It is often
segregated within its own conceptual and (typically weak) institutional box—kept
apart from, or heavily discounted in, other policy domains that shape business
practices, including commercial policy, investment policy, securities regulation
,and corporate governance. This inadequate domestic policy coherence is
replicat-
ed internationally. Governments should not assume they are helping business by
failing to provide adequate guidance for, or regulation of, the human rights
impact
of corporate activities. On the contrary, the less governments do, the more they
increase reputational and other risks to business. Section II below elaborates
on
these issues.
The corporate responsibility to respect human rights is the second principle. It
is recognized in such soft law instruments as the Tripartite Declaration of
Principles Concerning Multinational Enterprises and Social Policy, and the OECD
Guidelines for Multinational Enterprises. It is invoked by the largest global
busi-
ness organizations in their submission to the mandate, which states that compa-
innovations / spring 2008 193


194 innovations / spring 2008
nies “are expected to obey the law, even if it is not enforced, and to respect
the prin-
ciples of relevant international instruments where national law is absent.” It
is one
of the commitments companies undertake in joining the Global Compact.And the
Special Representative’s surveys document the fact that companies worldwide
increasingly claim they respect human rights.
To respect rights essentially means not to infringe on the rights of others—put
simply, to do no harm. Because companies can affect virtually all
internationally
recognized rights, they should consider the responsibility to respect in
relation to
all such rights, although some may require greater attention in particular
contexts.
There are situations in which companies may have additional responsibilities—for
example, where they perform certain public functions, or because they have
undertaken additional commitments voluntarily. But the responsibility to respect
is the baseline expectation for all companies in all situations.
Yet how do companies know they respect human rights? Do they have systems
in place enabling them to support the claim with any degree of confidence? Most
do not. What is required is due diligence—a process whereby companies not only
ensure compliance with national laws but also manage the risk of human rights
harm with a view to avoiding it. The scope of human rights related due diligence
is determined by the context in which a company is operating, its activities,
and the
relationships associated with those activities.
Access to remedy is the third principle. Even where institutions operate opti-
mally, disputes over the human rights impact of companies are likely to occur.
Currently, access to formal judicial systems is often most difficult where the
need
is greatest. And non-judicial mechanisms are seriously underdeveloped—from the
company level up through national and international levels. Section IV below
identifies criteria of effectiveness for grievance mechanisms and suggests ways
to
strengthen the current system.
II. THE STATE DUTY TO PROTECT
The general nature of the duty to protect is well understood by human rights
experts within governments and beyond. What seems less well internalized is the
diverse array of policy domains through which States may fulfil this duty with
respect to business activities, including how to foster a corporate culture
respect-
ful of human rights at home and abroad. This should be viewed as an urgent pol-
icy priority for governments—necessitated by the escalating exposure of people
and communities to corporate-related abuses, and the growing exposure of com-
panies to social risks they clearly cannot manage adequately on their own.
The following discussion is not intended to insist on specific legislative or
other policy actions, but to illustrate important issues and innovative
approaches
the Special Representative believes deserve serious consideration. Adjudication
is
addressed in Section IV below.
John Ruggie


Protect, Respect and Remedy
A. Corporate Culture
Governments are uniquely placed to foster corporate cultures in which respecting
rights is an integral part of doing business. This would reinforce steps
companies
themselves are asked to take to demonstrate their respect for rights, as
described in
Section III below. Two approaches are illustrated here.
First, governments can support and strengthen market pressures on compa-
nies to respect rights. Sustainability reporting can enable stakeholders to
compare
rights-related performance. Several States, subnational authorities, and stock
exchanges are calling for such disclosure. Sweden requires independently ensured
sustainability reports using Global Reporting Initiative guidelines for its
State-
owned enterprises, and China recently issued an advisory opinion on this
subject.
Some jurisdictions have gone further by redefining fiduciary duties. The
recently
revised United Kingdom Companies Act requires directors to “have regard” to
such matters as “the impact of the company’s operations on the community and
the environment,” and regulators are increasingly rejecting company attempts to
prevent shareholder proposals regarding human rights issues being considered at
annual general meetings.
Second, some States are beginning to use “corporate culture” in deciding cor-
porate criminal accountability. They examine a company’s policies, rules, and
practices to determine criminal liability and punishment, rather than basing
accountability on the individual acts of employees or officers. These principles
may be invoked at the liability stage, or during sentencing and in exercising
pros-
ecutorial discretion. Both incentivize companies to have appropriate compliance
systems.
In principle, inducing a rights-respecting corporate culture should be easier to
achieve in State-owned enterprises (SOEs). Senior management in SOEs is typical-
ly appointed by and reports to State entities. Indeed, the State itself may be
held
responsible under international law for the internationally wrongful acts of its
SOEs if they can be considered State organs or are acting on behalf, or under
the
orders, of the State. Beyond any legal obligations, human rights harm caused by
SOEs reflects directly on the State’s reputation,providing it with an incentive
in the
national interest to exercise greater oversight. Much the same is true of
sovereign
wealth funds and the human rights impacts of their investments.
B. Policy Alignment
The adverse effects of domestic policy incoherence were repeatedly raised at a
recent consultation held by the Special Representative: “vertical” incoherence,
where governments take on human rights commitments without regard to imple-
mentation; and “horizontal” incoherence, where departments—such as trade,
investment promotion, development, foreign affairs—work at cross purposes with
the State’s human rights obligations and the agencies charged with implementing
them. Consider two instances of this latter pattern: the first from host States,
the
second from home States.
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196 innovations / spring 2008
To attract foreign investment, host States offer protection through bilateral
investment treaties and host government agreements. They promise to treat
investors fairly, equitably, and without discrimination, and to make no
unilateral
changes to investment conditions. But investor protections have expanded with
lit-
tle regard to States’ duties to protect, skewing the balance between the two.
Consequently, host States can find it difficult to strengthen domestic social
and
environmental standards, including those related to human rights, without fear
of
foreign investor challenge, which can take place under binding international
arbi-
tration.
This imbalance creates potential difficulties for all types of countries.
Agreements between host governments and companies sometimes include prom-
ises to “freeze” the existing regulatory regime for the project’s duration,
which can
be a half-century for major infrastructure and extractive industries projects.
During the investment’s lifetime, even social and environmental regulatory
changes that are applied equally to domestic companies can be challenged by for-
eign investors claiming exemption or compensation.
The imbalance is particularly problematic for developing countries. A study
conducted jointly for this mandate and the International Finance Corporation
shows that contracts signed with non-OECD countries constrain the host State’s
regulatory powers significantly more than those signed with OECD countries—
and that country’s risk ratings alone do not seem to account for the variance.
Yet
it is precisely in developing countries that regulatory development may be most
needed.
When investment cases go to international arbitration they are generally treat-
ed as commercial disputes in which public interest considerations, including
human rights, play little if any role. Additionally, arbitration processes are
often
conducted in strict confidentiality so that the public in the country facing a
claim
may not even know of its existence. Where human rights and other public inter-
ests are concerned, transparency should be a governing principle, without preju-
dice to legitimate commercial confidentiality.
States, companies, the institutions supporting investments, and those design-
ing arbitration procedures should work towards developing better means to bal-
ance investor interests and the needs of host States to discharge their human
rights
obligations.
Now consider an example from the home State side. It concerns export credit
agencies (ECAs), which finance or guarantee exports and investments in regions
and sectors that may be too risky for the private sector alone. ECAs may be
State
agencies or privatized, but all are mandated by the State and perform a public
function. Despite this State nexus, however, relatively few ECAs explicitly
consider
human rights at any stage of their involvement; indeed, in informal discussions,
a
number indicate they might require specific authority from their government
overseers to do so.
On policy grounds alone, a strong case can be made that ECAs, representing
not only commercial interests but also the broader public interest, should
require
John Ruggie


Protect, Respect and Remedy
clients to perform adequate due diligence on their potential human rights
impacts.
This would enable ECAs to flag up where serious human rights concerns would
require greater oversight—and possibly indicate where State support should not
proceed or continue.
Closer alignment between a State’s ECA and its official development agency is
also desirable. A development agency may view the arrival of an ECA-supported
private investment in a particular region of a country as reason to focus its
own
efforts elsewhere. But if the investment has a large physical and social
footprint,the
chances are that it will generate pressures that local authorities may need help
in
managing—and which the home country development agency might be able to
provide.
This is but a small sample of issues where more effective policy alignment by
States is required to support the business and human rights agenda.
C. The International Level
Effective guidance and support at the international level would help States
achieve
greater policy coherence. The human rights treaty bodies can play an important
role in making recommendations to States on implementing their obligations to
protect rights vis-à-vis corporate activities. Special procedures mandate
holders
can also highlight relevant issues. OHCHR can contribute to capacity-building in
States that may lack the necessary tools by providing technical advice.
States are encouraged to share information about challenges and best prac-
tices, thus promoting more consistent approaches and perhaps increasing their
expectations of each other for protecting rights against corporate abuse. Peer
learning would be facilitated by States including information about business in
their reports for the universal periodic review.
Where States lack the technical or financial resources to effectively regulate
companies and monitor their compliance, assistance from other States with the
relevant knowledge and experience offers an important means to strengthen the
enforcement of human rights standards. Such partnerships could be particularly
fruitful between States that have extensive trade and investment links, and
between
the home and host States of the same transnationals.
Finally, the OECD Guidelines are currently the most widely applicable set of
government-endorsed standards related to corporate responsibility and human
rights. Most recently updated in 2000, their current human rights provisions not
only lack specificity, but in key respects have fallen behind the voluntary
standards
of many companies and business organizations. A revision of the Guidelines
addressing these concerns would be timely.
D. Conflict Zones
It is well established that some of the most egregious human rights abuses,
includ-
ing those related to corporations, occur in conflict zones. The human rights
regime
cannot function as intended in the unique circumstances of sporadic or sustained
innovations / spring 2008 197


198 innovations / spring 2008
violence, governance breakdown, and absence of the rule of law. Specific policy
innovations are required to prevent corporate abuse, yet it seems that many
States
lag behind international institutions and responsible businesses in grappling
with
these difficult issues.
State policies and practices—where they exist at all—are limited, fragmented,
and mostly unilateral. The use of Security Council sanctions targeting certain
companies deemed to have contributed to conflicts in the Democratic Republic of
the Congo, Sierra Leone, and Liberia demonstrated a restraining effect. A recent
report by the Secretary-General recommends that this enforcement tool be contin-
ued and improved. But there is a need for more proactive policies to prevent
harm-
ful corporate involvement in conflict situations. As the Secretary-General
notes,
States need to do more to “promote conflict-sensitive practices in their
business
sectors”.
Home States could identify indicators to trigger alerts with respect to compa-
nies in conflict zones. They could then provide or facilitate access to
information
and advice—whether from home or their overseas embassies—to help businesses
address the heightened human rights risks and ensure they act appropriately when
engaging with local actors. There may be a point at which the home State would
withdraw its support altogether. None of this detracts from host State duties to
protect against all corporate abuse within their jurisdictions, including
conflict
zones.
E. Summing Up
The human rights regime rests upon the bedrock role of States. That is why the
duty to protect is a core principle of the business and human rights framework.
But meeting business and human rights challenges also requires the active
partic-
ipation of business directly. We now turn to the second principle.
III. THE CORPORATE RESPONSIBILITY TO RESPECT
When it comes to the role companies themselves must play, the main focus in the
debate has been on identifying a limited set of rights for which they may bear
responsibility. For example, the draft norms on the responsibilities of
transnation-
al corporations and other business enterprises with regard to human rights
gener-
ated intense discussions about whether its list of rights was too long or too
short,
and why some rights were included and others not. At the same time, the norms
would have extended to companies essentially the entire range of duties that
States
have, separated only by the undefined concepts of “primary” versus “secondary”
obligations and “corporate sphere of influence,” This formula emphasizes
precise-
ly the wrong side of the equation: defining a limited list of rights linked to
impre-
cise and expansive responsibilities, rather than defining the specific
responsibilities
of companies with regard to all rights.
The table below shows why any attempt to limit internationally recognized
rights is inherently problematic. Drawn from more than 300 reports of alleged
cor-
John Ruggie


Protect, Respect and Remedy
porate-related human rights abuses, it makes a critical point: there are few if
any
internationally recognized rights business cannot impact—or be perceived to
impact—in some manner. Therefore, companies should consider all such rights. It
may be useful for operational guidance purposes to map which rights companies
have tended to affect most often in particular sectors or situations.1It is also
help-
ful for companies to understand how human rights relate to their management
functions—for example, human resources, security of assets and personnel, sup-
ply chains, and community engagement.2Both means of developing guidance
should be pursued, but neither limits the rights companies should take into
account.
The more difficult question of what precise responsibilities companies have in
relation to rights has received far less attention. While corporations may be
con-
sidered “organs of society,” they are specialized economic organs, not
democratic
public interest institutions. As such, their responsibilities cannot and should
not
simply mirror the duties of States. Accordingly, the Special Representative has
focused on identifying the distinctive responsibilities of companies in relation
to
human rights.
A. Respecting Rights
In addition to compliance with national laws, the baseline responsibility of
com-
panies is to respect human rights. Failure to meet this responsibility can
subject
companies to the courts of public opinion—comprising employees, communities,
consumers, civil society, as well as investors—and occasionally to charges in
actu-
al courts. Whereas governments define the scope of legal compliance, the broader
scope of the responsibility to respect is defined by social expectations—as part
of
what is sometimes called a company’s social licence to operate.3
The corporate responsibility to respect exists independently of States’ duties.
Therefore, there is no need for the slippery distinction between “primary” State
and “secondary” corporate obligations—which in any event would invite endless
strategic gaming on the ground about who is responsible for what. Furthermore,
because the responsibility to respect is a baseline expectation, a company
cannot
compensate for human rights harm by performing good deeds elsewhere. Finally,
“doing no harm”is not merely a passive responsibility for firms but may entail
pos-
itive steps—for example, a workplace anti-discrimination policy might require
the
company to adopt specific recruitment and training programmes.
B. Due Diligence
To discharge the responsibility to respect requires due diligence. This concept
describes the steps a company must take to become aware of, prevent and address
adverse human rights impacts. Comparable processes are typically already embed-
ded in companies because in many countries they are legally required to have
information and control systems in place to assess and manage financial and
relat-
ed risks.4
innovations / spring 2008 199


200 innovations / spring 2008
John Ruggie
Source: This table is based on a study of 320 cases (from all regions and
sectors) of alleged corpo-
rate-related human rights abuse reported on the Business and Human Rights
Resource Centre web-
site from February 2005 to December 2007. Each case was coded for what right(s)
the alleged abuse
impacted, referencing the rights in the Universal Declaration of Human Rights,
International
Covenant on Civil and Political Rights, International Covenant on Economic,
Social and Cultural
Rights, and ILO core conventions. For the full study, including sources and
methodology, see
Addendum 2 of the United Nations version of this report.
Table 1b. Business Impact on Human Rights: Non-Labor Rights.
Table 1a. Business Impact on Human Rights: Labor Rights.


Protect, Respect and Remedy
If companies are to carry out due diligence, what is its scope? The process
inevitably will be inductive and fact-based, but the principles guiding it can
be
stated succinctly. Companies should consider three sets of factors. The first is
the
country contexts in which their business activities take place, to highlight any
spe-
cific human rights challenges they may pose. The second is what human rights
impacts their own activities may have within that context—for example, in their
capacity as producers, service providers, employers, and neighbors. The third is
whether they might contribute to abuse through the relationships connected to
their activities, such as with business partners, suppliers, State agencies, and
other
non-State actors. How far or how deep this process must go will depend on cir-
cumstances.
For the substantive content of the due diligence process, companies should
look, at a minimum, to the international bill of human rights and the core
conven-
tions of the ILO, because the principles they embody comprise the benchmarks
against which other social actors judge the human rights impacts of companies.
The Special Representative’s research and consultations indicate that a basic
human rights due diligence process should include the following.5
Policies
Companies need to adopt a human rights policy. Broad aspirational language may
be used to describe respect for human rights, but more detailed guidance in spe-
cific functional areas is necessary to give those commitments meaning.
Impact Assessments
Many corporate human rights issues arise because companies fail to consider the
potential implications of their activities before they begin. Companies must
take
proactive steps to understand how existing and proposed activities may affect
human rights. The scale of human rights impact assessments will depend on the
industry and national and local context.6While these assessments can be linked
with other processes like risk assessments or environmental and social impact
assessments, they should include explicit references to internationally
recognized
human rights. Based on the information uncovered, companies should refine their
plans to address and avoid potential negative human rights impacts on an ongo-
ing basis.
Integration
The integration of human rights policies throughout a company may be the
biggest challenge in fulfilling the corporate responsibility to respect. As is
true for
States, human rights considerations are often isolated within a company. That
can
lead to inconsistent or contradictory actions: product developers may not
consid-
er human rights implications; sales or procurement teams may not know the risks
of entering into relationships with certain parties; and company lobbying may
contradict commitments to human rights. Leadership from the top is essential to
innovations / spring 2008 201


202 innovations / spring 2008
embed respect for human rights throughout a company, as is training to ensure
consistency, as well as capacity to respond appropriately when unforeseen situa-
tions arise.7
Tracking Performance
Monitoring and auditing processes permit a company to track ongoing develop-
ments. The procedures may vary across sectors and even among company depart-
ments, but regular updates of human rights impact and performance are crucial.
Tracking generates information needed to create appropriate incentives and
disin-
centives for employees and ensure continuous improvement. Confidential means
to report non-compliance, such as hotlines, can also provide useful feedback.
As companies adopt and refine due diligence practices, industry and multi-
stakeholder initiatives can promote sharing of information, improvement of
tools,
and standardization of metrics. The Global Compact is well-positioned to play
such a role, enjoying a United Nations platform and reaching widely into the
cor-
porate community, including in developing countries.
C. Sphere of Influence
The Special Representative’s mandate calls on him to research and clarify the
con-
cepts of corporate “sphere of influence” and “complicity.” His detailed analysis
is
presented in a separate report.8Here the concepts are addressed specifically in
rela-
tion to the corporate responsibility to respect human rights.
Sphere of influence was introduced into corporate social responsibility dis-
course by the Global Compact. It was intended as a spatial metaphor: the
“sphere”
was expressed in concentric circles with company operations at the core, moving
outward to suppliers, the community, and beyond, with the assumption that the
“influence”—and thus presumably the responsibility—of the company declines
from one circle to the next. The draft norms later proposed the concept as a
basis
for attributing legal obligations to companies, using it as though it were
analogous
to the jurisdiction of States.
Sphere of influence remains a useful metaphor for companies in thinking
about their human rights impacts beyond the workplace and in identifying oppor-
tunities to support human rights, which is what the Global Compact seeks to
achieve.9But a more rigorous approach is required to define the parameters of
the
responsibility to respect and its due diligence component.
To begin with, sphere of influence conflates two very different meanings of
influence: one is impact, where the company’s activities or relationships are
caus-
ing human rights harm; the other is whatever leverage a company may have over
actors that are causing harm. The first falls squarely within the responsibility
to
respect; the second may only do so in particular circumstances.
Anchoring corporate responsibility in the second meaning of influence
requires assuming, in moral philosophy terms, that “can implies ought.” But com-
panies cannot be held responsible for the human rights impacts of every entity
John Ruggie


Protect, Respect and Remedy
over which they may have some influence, because this would include cases in
which they were not a causal agent, direct or indirect, of the harm in question.
Nor
is it desirable to have companies act whenever they have influence, particularly
over governments. Asking companies to support human rights voluntarily where
they have influence is one thing, but attributing responsibility to them on that
basis alone is quite another.
Moreover, influence can only be defined in relation to someone or something.
Consequently, it is itself subject to influence: a government can deliberately
fail to
perform its duties in the hope or expectation that a company will yield to
social
pressures to promote or fulfil certain rights—again demonstrating why State
duties and corporate responsibilities must be defined independently of one
anoth-
er.
Finally, the emphasis on proximity in the sphere of influence model can be
misleading. Clearly, companies need to be concerned with their impact on work-
ers and surrounding communities. But their activities can equally affect the
rights
of people far away from the source—as, for example, violations of privacy rights
by Internet service providers can endanger dispersed end-users. Hence, it is not
proximity that determines whether or not a human rights impact falls within the
responsibility to respect, but rather the company’s web of activities and
relation-
ships.
In short, the scope of due diligence to meet the corporate responsibility to
respect human rights is not a fixed sphere, nor is it based on influence.
Rather, it
depends on the potential and actual human rights impacts resulting from a com-
pany’s business activities and the relationships connected to those activities.
D. Complicity
The corporate responsibility to respect human rights includes avoiding complici-
ty.The concept has legal and non-legal pedigrees, and the implications of both
are
important for companies. Complicity refers to indirect involvement by compa-
nies in human rights abuses—where the actual harm is committed by another
party, including governments and non-State actors. Due diligence can help a com-
pany avoid complicity.
The legal meaning of complicity has been spelled out most clearly in the area
of aiding and abetting international crimes, i.e. knowingly providing practical
assistance or encouragement that has a substantial effect on the commission of a
crime, as discussed in the 2007 report of the Special Representative.10 The
number
of domestic jurisdictions in which charges for international crimes can be
brought
against corporations is increasing, and companies may also incur non-criminal
lia-
bility for complicity in human rights abuses.
In non-legal contexts, corporate complicity has become an important bench-
mark for social actors, including public and private investors, the Global
Compact,
campaigning organizations, and companies themselves. Claims of complicity can
impose reputational costs and even lead to divestment, without legal liability
being
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204 innovations / spring 2008
established.11 In this context, allegations of complicity have included indirect
vio-
lations of the broad spectrum of human rights—political, civil, economic,
social,
and cultural.
Owing to the relatively limited case history, especially in relation to
companies
rather than individuals, and given the substantial variations in definitions of
com-
plicity within and between the legal and non-legal spheres, it is not possible
to
specify definitive tests for what constitutes complicity in any given context.
But
companies should bear in mind the considerations set out below.
Mere presence in a country, paying taxes, or silence in the face of abuses is
unlikely to amount to the practical assistance required for legal liability.
However,
acts of omission in narrow contexts have led to legal liability of individuals
when
the omission legitimized or encouraged the abuse.12 Moreover, under internation-
al criminal law standards, practical assistance or encouragement need neither
cause the actual abuse, nor be related temporally or physically to the abuse.
Similarly, deriving a benefit from a human rights abuse is not likely on its own
to bring legal liability. Nevertheless, benefiting from abuses may carry
negative
implications for companies in the public perception.
Legal interpretations of “having knowledge” vary. When applied to companies,
it might require that there be actual knowledge, or that the company “should
have
known,” that its actions or omissions would contribute to a human rights abuse.
Knowledge may be inferred from both direct and circumstantial facts. The “should
have known” standard is what a company could reasonably be expected to know
under the circumstances.
In international criminal law, complicity does not require knowledge of the
specific abuse or a desire for it to have occurred, as long as there was
knowledge of
the contribution. Therefore, it may not matter that the company was merely car-
rying out normal business activities if those activities contributed to the
abuse and
the company was aware or should have been aware of its contribution. The fact
that a company was following orders, fulfilling contractual obligations, or even
complying with national law will not, alone, guarantee it legal protection.
In short, the relationship between complicity and due diligence is clear and
compelling: companies can avoid complicity by employing the due diligence
processes described above—which, as noted, apply not only to their own
activities
but also to the relationships connected with them.
IV. ACCESS TO REMEDIES
Effective grievance mechanisms play an important role in the State duty to
protect,
in both its legal and policy dimensions, as well as in the corporate
responsibility to
respect. State regulation proscribing certain corporate conduct will have little
impact without accompanying mechanisms to investigate, punish, and redress
abuses. Equally, the corporate responsibility to respect requires a means for
those
who believe they have been harmed to bring this to the attention of the company
and seek remediation, without prejudice to legal channels available. Providing
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Protect, Respect and Remedy
access to remedy does not presume that all allegations represent real abuses or
bona fide complaints.
Expectations for States to take concrete steps to adjudicate corporate-related
human rights harm are expanding. Treaty bodies increasingly recommend that
States investigate and punish human rights abuse by corporations and provide
access to redress for such abuse when it affects persons within their
jurisdiction.13
Redress could include compensation, restitution, guarantees of non-repetition,
changes in relevant law, and public apologies. As discussed earlier, regulators
are
also using new tools to hold corporations accountable under both civil and crim-
inal law, focused on failures in organizational culture.
Non-judicial mechanisms play an important role alongside judicial processes.
They may be particularly significant in a country where courts are unable, for
whatever reason, to provide adequate and effective access to remedy. Yet they
are
also important in societies with well-functioning rule of law institutions,
where
they may provide a more immediate, accessible, affordable, and adaptable point
of
initial recourse.
State-based, non-judicial mechanisms include agencies with oversight of par-
ticular standards (for example, health and safety); publicly funded mediation
serv-
ices, such as those handling labour rights disputes in the United Kingdom and
South Africa; national human rights institutions; or mechanisms such as the
OECD’s National Contact Points.
Non-State mechanisms may be linked to industry-based or multi-industry
organizations; to multi-stakeholder initiatives ensuring member compliance with
standards; to project financiers requiring certain standards of clients; or to
partic-
ular companies or projects. Non-State mechanisms must not undermine the
strengthening of State institutions, particularly judicial mechanisms, but can
offer
additional opportunities for recourse and redress.
Yet this patchwork of mechanisms remains incomplete and flawed. It must be
improved in its parts and as a whole.
A. Judicial Mechanisms
Judicial mechanisms are often under-equipped to provide effective remedies for
victims of corporate abuse. Victims face particular challenges when seeking per-
sonal compensation or reparation as opposed to more general sanction of the cor-
poration through a fine or administrative remedies. They may lack a basis in
domestic law on which to found a claim. Even if they can bring a case,
political,
economic, or legal considerations may hamper enforcement.
Some complainants have sought remedy outside the State where the harm
occurred, particularly through home State courts, but have faced extensive
obsta-
cles. Costs may be prohibitive, especially without legal aid; non-citizens may
lack
legal standing; and claims may be barred by statutes of limitations. Matters are
fur-
ther complicated if the claimant is seeking redress from a parent corporation
for
actions by a foreign subsidiary. In common law countries, the court may dismiss
innovations / spring 2008 205


206 innovations / spring 2008
the case based on forum non conveniens grounds—essentially, that there is a more
appropriate forum for it. Even the most independent judiciaries may be
influenced
by governments arguing for dismissal based on various “matters of State.” These
obstacles may deter claims or leave the victim with a remedy that is difficult
to
enforce.
The law is slowly evolving in response to some of these obstacles. In some
jurisdictions, plaintiffs have brought cases against parent companies claiming
that
they should be held responsible for their own actions and omissions in relation
to
harm involving their foreign subsidiaries.14 Elsewhere it is getting somewhat
more
difficult for defendant companies to have cases alleging harm abroad dismissed
on the basis that there is a more appropriate forum.15 And foreign plaintiffs
are
using the United States Alien Tort Claims Act to sue even non-U.S. companies for
harm suffered abroad.16
States should strengthen judicial capacity to hear complaints and enforce
remedies against all corporations operating or based in their territory, while
also
protecting against frivolous claims. States should address obstacles to access
to jus-
tice, including for foreign plaintiffs—especially where alleged abuses reach the
level of widespread and systematic human rights violations.
B. Non-Judicial Grievance Mechanisms
Non-judicial mechanisms to address alleged breaches of human rights standards
should meet certain principles to be credible and effective. Based on a year of
multi-stakeholder and bilateral consultations related to the mandate,17 the
Special
Representative believes that, at a minimum, such mechanisms must be:
(a) Legitimate: a mechanism must have clear, transparent and sufficiently
independent governance structures to ensure that no party to a particular griev-
ance process can interfere with the fair conduct of that process;
(b) Accessible: a mechanism must be publicized to those who may wish to
access it and provide adequate assistance for aggrieved parties who may face
bar-
riers to access, including language, literacy, awareness, finance, distance, or
fear of
reprisal;
(c) Predictable: a mechanism must provide a clear and known procedure with
a time frame for each stage and clarity on the types of process and outcome it
can
(and cannot) offer, as well as a means of monitoring the implementation of any
outcome;
(d) Equitable: a mechanism must ensure that aggrieved parties have reasonable
access to sources of information, advice, and expertise necessary to engage in a
grievance process on fair and equitable terms;
(e) Rights-compatible: a mechanism must ensure that its outcomes and reme-
dies accord with internationally recognized human rights standards;
(f) Transparent: a mechanism must provide sufficient transparency of process
and outcome to meet the public interest concerns at stake and should presume
transparency wherever possible; non-State mechanisms in particular should be
John Ruggie


Protect, Respect and Remedy
transparent about the receipt of complaints and the key elements of their out-
comes.
C. Company-Level Grievance Mechanisms
Currently, the primary means through which grievances against companies play
out are litigation and public campaigns. For a company to take a bet on winning
lawsuits or successfully countering hostile campaigns is at best optimistic risk
management. Companies should identify and address grievances early, before they
escalate. An effective grievance mechanism is part of the corporate
responsibility
to respect.
A company can provide a grievance mechanism directly and be integrally
involved in its administration. This could include the use of external
resources—
possibly shared with other companies—such as hotlines for raising complaints,
advisory services for complainants, or expert mediators. Or it may involve a
whol-
ly external mechanism. Whatever the form, the company should ensure that the
process abides by the principles outlined above.
Where a company is directly involved in administering a mechanism, problems
may arise if it acts as both defendant and judge. Therefore, the mechanism
should
focus on direct or mediated dialogue. It should be designed and overseen jointly
with representatives of the groups who may need to access it. Care should be
taken
to redress imbalances in information and expertise between parties, enabling
effec-
tive dialogue and sustainable solutions. These mechanisms should not negatively
impact opportunities for complainants to seek recourse through State-based
mechanisms, including the courts.
D. State-Based Non-Judicial Mechanisms
According to the research carried out under the mandate, of the 85 recognized
national human rights institutions (NHRIs) at least 40 are able to handle griev-
ances related to the human rights performance of companies. Of these, 31 are
accredited under the Paris Principles.18 Some are limited to human rights abuses
alleged against State-owned enterprises or private companies providing public
services. Others can address grievances against any kind of company, but only
with
regard to specific kinds of human rights related grievances, often
discrimination.
A third group—notably in Africa—admits grievances against all companies with
regard to any human rights issue.19
The actual and potential importance of these institutions cannot be overstat-
ed. Where NHRIs are able to address grievances involving companies, they can
provide a means to hold business accountable. NHRIs are particularly well-posi-
tioned to provide processes—whether adjudicative or mediation-based—that are
culturally appropriate, accessible, and expeditious. Even where they cannot
them-
selves handle grievances, they can provide information and advice on other
avenues of recourse to those seeking remedy. Through increased interchange of
information, they could act as lynchpins within the wider system of grievance
innovations / spring 2008 207


208 innovations / spring 2008
mechanisms, linking local, national, and international levels across countries
and
regions. NHRIs that do not currently publicize information about their business-
related work should do so. The Special Representative welcomes plans on the part
of the International Coordinating Committee of NHRIs, supported by OHCHR,
to address the issue of how this work might be further strengthened.
The 40 States adhering to the OECD Guidelines for Multinational Enterprises
must provide a National Contact Point (NCP) whose tasks include handling griev-
ances. OECD provides procedural guidance, with individual NCPs having flexibil-
ity in the application of the Guidelines. The NCPs are potentially an important
vehicle for providing remedy. However, with a few exceptions, experience
suggests
that in practice they have too often failed to meet this potential. The housing
of
some NCPs primarily or wholly within government departments tasked with pro-
moting business, trade, and investment raises questions about conflicts of
interest.
NCPs often lack the resources to undertake adequate investigation of complaints
and the training to provide effective mediation. There are typically no time
frames
for the commencement or completion of the process, and outcomes are often not
publicly reported. In sum, many NCP processes appear to come up short when
measured against the minimum principles set out above.
Certain NCPs, recognizing such shortfalls, have sought innovative solutions.
Several have involved multiple government departments and created multi-stake-
holder advisory groups. Perhaps most interesting is the decision of the Dutch
gov-
ernment to reorganize its NCP such that a four-person multi-stakeholder group
handles grievances independent of, though supported administratively by,the gov-
ernment. Alternative suggestions have included placing NCPs under the
legislative
branch or within a NHRI. OECD and adhering States should consider these and
other options for addressing current deficits, while preserving the important
role
of governments in raising awareness of the Guidelines and providing incentives
for
corporate compliance and learning.
E. Multi-Stakeholder or Industry Initiatives and Financiers
For multi-stakeholder or industry initiatives aiming to advance human rights
stan-
dards in the practices of their corporate members, a grievance mechanism pro-
vides an important check on performance. The same is true for financial institu-
tions seeking to ensure compliance with human rights standards in the conduct of
the projects they support. In the absence of an effective grievance mechanism,
the
credibility of such initiatives and institutions may be questioned. The
Voluntary
Principles on Security and Human Rights recently faced this challenge, and the
Special Representative knows of calls for other initiatives, including the
Equator
Principles, to develop a grievance process. Furthermore, while many of these
mechanisms require their corporate members or clients to have their own griev-
ance processes as a first port of call, few set clear process standards for
them. This
risks encouraging tokenistic rather than effective processes at the operational
level.
As the number of initiatives aimed at promoting standards increases, collabo-
rative models for their grievance mechanisms will likely become more important.
John Ruggie


Protect, Respect and Remedy
These could facilitate access for complainants by providing a single avenue for
recourse to multiple organizations; marshal the collective leverage of
organizations
and their members to achieve solutions; and reduce the resource implications for
the individual entities involved.The organizations concerned must remain respon-
sible for ensuring that any such mechanism meets the minimum principles
described above.
F. Gaps in Access
The foregoing describes a patchwork of grievance mechanisms at different levels
of
the international system, with different constituencies and processes. Yet
consider-
able numbers of individuals whose human rights are impacted by corporations
lack access to any functioning mechanism that could provide remedy. This is due
in part to a lack of awareness as to where these mechanisms are located, how
they
function, and what supporting resources exist. NHRIs, NGOs, academic institu-
tions, governments and other actors could address this gap through improved
information flows.
Yet this is not solely about a lack of information. It also reflects intended
and
unintended limitations in the competence and coverage of existing mechanisms.
Consequently, some actors have proposed the creation of a global ombudsman
function that could receive and handle complaints. Such a mechanism would need
to provide ready access without becoming a first port of call; offer effective
processes without undermining the development of national mechanisms; provide
timely responses while likely being located far from participants; and furnish
appropriate solutions while dealing with different sectors, cultures, and
political
contexts. It would need to show some early successes if faith in its capacity
were
not quickly to be undermined. To perform these tasks any such function would
need to be well-resourced. Careful consideration should go into whether these
cri-
teria actually can and would be met before moving in this direction.
V. CONCLUSION
The current debate on the business and human rights agenda originated in the
1990s, as liberalization, technology, and innovations in corporate structure
com-
bined to expand prior limits on where and how businesses could operate globally.
Many countries, including in the developing world, have been able to take advan-
tage of this new economic landscape to increase prosperity and reduce poverty.
But
as has happened throughout history, rapid market expansion has also created gov-
ernance gaps in numerous policy domains: gaps between the scope of economic
activities and actors, and the capacity of political institutions to manage
their
adverse consequences. The area of business and human rights is one such domain.
In fact, progress has been made in the past decade, at least in some industries
and by growing numbers of firms. The Special Representative’s 2007 report
detailed novel multi-stakeholder initiatives, public-private hybrids combining
mandatory with voluntary measures, and industry and company self-regulation.
innovations / spring 2008 209


210 innovations / spring 2008
All have their strengths and shortcomings, but few would have been conceivable a
mere decade ago. Likewise, there is an expanding web of potential corporate
liabil-
ity for international crimes, reflecting international standards but imposed
through national courts. Governments have adopted a variety of measures, albeit
gingerly to date, to promote a corporate culture respectful of human rights.
Fragments of international institutional provisions exist with similar aims.
Without in any manner disparaging these steps, our fundamental problem is
that there are too few of them, none has reached a scale commensurate with the
challenges at hand, there is little cross-learning, and they do not cohere as
parts of
a more systemic response with cumulative effects. That is what needs fixing. And
that is what the framework of “protect, respect and remedy” is intended to help
achieve.
The United Nations is not a centralized command-and-control system that can
impose its will on the world—indeed it has no “will” apart from that with which
Member States endow it. But it can and must lead intellectually and by setting
expectations and aspirations. The Human Rights Council can make a singular con-
tribution to closing the governance gaps in business and human rights by
support-
ing this framework, inviting its further elaboration, and fostering its uptake
by all
relevant social actors.
1. The mandate is contained in Commission on Human Rights resolution 2005/69.
All documen-
tation produced by and for the mandate is posted on the Business and Human
Rights Resource
Centre’s website: http://www.business-humanrights.org/Gettingstarted/
UNSpecialRepresentative. The Special Representative thanks all those who
contributed to the
mandate.
2. E/CN.4/2006/97; A/HRC/4/35 and addenda 1-4; A/HRC/4/74.
3. A/HRC/8/5/Add.1 and 2 and A/HRC/8/16.
4. Each of these consultations was co-convened with a non-governmental
organization (NGO).
5. The duty to protect is well established in international law and must not be
confused with the
concept of the “responsibility to protect” in the humanitarian intervention
debate.
6. Piero Foresti, Laura De Carli and others v. Republic of South Africa
(International Centre for
Settlement of Investment Disputes, case No. ARB (AF)/07/1).
7. E/CN.4/2006/97
8. See Addendum 2 to this report.
9. Multi-stakeholder initiatives like the Kimberley Process reflect elements of
all three principles;
they were discussed at length in last year’s report (A/HRC/4/35, paras. 52-61).
10. A/HRC/4/35 and A/HRC/4/35/Add.1. Some States hold that this duty is limited
to protecting
persons who are both within their territory and jurisdiction.
11. A/HRC/4/35/Add.1.
12. Recognized bases include where the actor or victim is a national, where the
acts have substan-
tial adverse effects on the State, or where specific international crimes are
involved. See
A/HRC/4/35/Add.2.
13. The entire human rights regime may be seen to challenge the classical view
of noninterven-
tion, but the debate here hinges on what is considered coercive.
14. For instance, the Committee on the Elimination of Racial Discrimination
recently encouraged
a State party to “take appropriate legislative or administrative measures” to
prevent adverse
impacts on the rights of indigenous peoples in other countries from the
activities of corpora-
tions registered in the State party (CERD/C/CAN/CO/18, para. 17).
15. A/HRC/4/35, paras. 19-32.
John Ruggie


Protect, Respect and Remedy
16. A/HRC/4/35/Add.3.
17. ILO Official Bulletin, Series A, No. 3 (2000).
18. See Organisation for Economic Co-operation and Development,
DAFFE/IME/WPG(2000)15/
FINAL.
19. International Organisation of Employers, International Chamber of Commerce,
Business and
Industry Advisory Committee to the Organisation for Economic Co-operation and
Development (OECD), “Business and Human Rights: The Role of Government in Weak
Governance Zones”, December 2006, paragraph 15, http://www.reports-and-
materials.org/Role-of-Business-in-Weak Governance-Zones-Dec-2006.pdf.
20. See
http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/humanRights.html.
21. A/HRC/4/35/Add.3, A/HRC/4/35/Add.4 and “Human Rights Policies of Chinese
Companies:
Results from a Survey”, available at
http://www.business-humanrights.org/Documents/Ruggie-
China-survey-Sep-2007.pdf.
22. A traditional definition of due diligence is “the diligence reasonably
expected from, and ordi-
narily exercised by, a person who seeks to satisfy a legal requirement or
discharge an obliga-
tion”. Black’s Law Dictionary, 8th edition (2006).
23. Among other examples, the Johannesburg Securities Exchange mandates
sustainability report-
ing, as does France’s law on new economic regulations.
24. “Guidelines for external reporting by Swedish State-owned companies”,
adopted 29 November
2007, available at http://www.sweden.gov.se/sb/d/8194/a/93506; and “Instructing
opinions
about central State-owned enterprises fulfilling social responsibility”, issued
by China’s State-
owned Asset Supervision and Administration Commission of the State Council, 4
January
2008.
25 Section 172 (1) (d) of the United Kingdom Companies Act (2006), which came
into effect 1
October 2007.
26. “Trends in the use of corporate law and shareholder activism to increase
corporate responsibil-
ity and accountability for human rights” prepared for the Special Representative
by the law
firm Fried Frank, available at
http://www.business-humanrights.org/Documents/Fried-Frank-
Memo-Dec-2007.pdf.
27. “Corporate culture as a basis for the criminal liability of corporations”
prepared for the Special
Representative by the law firm Allens Arthur Robinson, available at
http://www.reports-and-
materials.org/Allens-Arthur-Robinson-Corporate-Culture-paper-for-Ruggie-Feb-2008.pdf.
28. For examples of the former, see section 12.3 of Australia’s Criminal Code
Act 1995 (Cth) and
article 102 of the Swiss Penal Code. For an example of the latter, see chapter 8
of the United
States Federal Sentencing Guidelines Manual: (2006) §8C2.5(b)(1).
29 See Addendum 1 to this report.
30. See “Stabilization clauses and human rights”, available at
http://www.reports-and-
materials.org/Stabilization-Clauses-and-Human-Rights-11-Mar-2008.pdf.
31. Similar concerns have been raised regarding international and regional trade
agreements,
specifically about the State’s ability to ensure access to essential services
and protect the right to
health. The Special Representative has not had the opportunity to conduct
independent
research on these trade-related issues.
32. In June 2007, the Special Representative met with treaty body
representatives to discuss their
emerging guidance.
33. In June 2007, the Special Representative met with other human rights mandate
holders to
share experiences.
34. To explore these issues, the Special Representative held a consultation in
collaboration with
Global Witness; see Addendum 1 to this report.
35 S/2008/18, particularly paragraphs 16-18. In some instances, the lists
identifying individuals
and companies for sanctions has been criticized on due process grounds.
36. Ibid, para. 20.
37. For example, the International Council on Mining and Metals conducted a
study of 38 cases of
allegations of human rights or related abuses involving mining companies in
order to uncover
innovations / spring 2008 211


212 innovations / spring 2008
patterns of human rights impacts. Second submission to the Special
Representative, October
2006, available at http://www.icmm.com/newsdetail.php?rcd=119.
38. The companies in the Business Leaders Initiative on Human Rights (BLIHR) are
developing
this approach. See http://www.blihr.org.
39. There are situations where national laws and international standards
conflict. Further guidance
for companies needs to be developed, but companies serious about seeking to
resolve the
dilemma are finding ways to honour the spirit of international standards.
40. “There are due diligence processes that a corporation must undertake to meet
its general legal
obligations that either accommodate or are at least amenable to consideration of
human rights
laws or standards”. Allens Arthur Robinson,“Corporate duty and human rights
under
Australian law”, prepared for the Special Representative, p. 1, available at
http://www.busi-
nesshumanrights.org/Updates/Archive/SpecialRepPapers.
41. The principles are the same for all companies, although specific procedures
may differ in small
and medium-sized enterprises.
42. The Special Representative submitted a separate report on this subject in
2007 (A/HRC/4/74).
43. BLIHR, OHCHR, and the Global Compact, A Guide for Integrating Human Rights
into
Business Management, available at www.ohchr.org/Documents/Publications/
GuideHRBusinessen.pdf.
44. A/HRC/8/16.
45. See http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/index.html.
46. A/HRC/4/35, paras. 22-32.
47. The Norwegian Government pension fund excludes and has divested from
companies, includ-
ing Wal-Mart, for complicity in human rights violations. Council on Ethics for
the
Government Pension Fund, annual reports 2006 and 2007, available at
http://www.regjeringen.
no/en/sub/Styrer-rad-utvalg/ethics_council/annual-reports.html?id=458699.
48. For example, International Criminal Tribunal for the former Yugoslavia,
Trial Chamber judge-
ment Kvocka et al (IT-98-30/1-T), 2 November 2001, paras. 257-261.
49. For instance, the Committee on the Rights of the Child increasingly
recommends that States
parties comply with article 3 (4) of the Optional Protocol to the Convention on
the Rights of
the Child on the sale of children, child prostitution and child pornography,
which requires
them to take measures, where appropriate and, subject to national law, to
establish criminal,
civil or administrative liability of legal persons for treaty offences. See
A/HRC/4/35/Add.1,
para. 64.
50. For example, Connelly v. RTZ Corporation plc and others [1998] AC 854, and
Lubbe v. Cape
plc [2000] 4 All ER 268 (House of Lords, United Kingdom).
51. The European Court of Justice has confirmed that national courts in an EU
member State may
not dismiss actions against companies domiciled in that State on forum non
conveniens
grounds. Owusu v. Jackson [2005] ECR-I-1283. And in Australia, defendants must
now prove
that the forum is “clearly inappropriate”. Voth v. Manildra Flour Mills Pty.
Ltd. (1990) 171
C.L.R. 538 (H.C.A.).
52. More than 40 cases have been brought against companies under this statute
since 1993, when
the first was filed.
53. The process involved experts from all stakeholder groups and regions. These
principles, based
on more specific guidance developed for companies, apply across non-judicial
mechanisms of
different kinds. See
http://www.business-humanrights.org/Links/Repository/308254/
link_page_view.
54. The Paris Principles relate to the status of national human rights
institutions (NHRIs) and
establish criteria for their composition, guarantees of independence and
pluralism, compe-
tence, responsibilities and methods of operation. See
http://www.nhri.net/default.asp?PID=312&DID=0.
55. “Business and Human Rights: A Survey of NHRI Practices”, at
http://www.businesshuman-
rights.org/Gettingstarted/UNSpecialRepresentative.
John Ruggie



CITATIONS (315)


REFERENCES (12)




... Under the framework, business organizations should prove their corporate
citizenship. Under BHR, businesses are expected to provide evidence that they do
not violate the rights of other stakeholders during their operations ( [30], p.
14). If they do, they pay for the damage caused and therefore should remedy the
situation in line with access to remedies for corporate-related abuse ( [30], p.
22). ...
... Under BHR, businesses are expected to provide evidence that they do not
violate the rights of other stakeholders during their operations ( [30], p. 14).
If they do, they pay for the damage caused and therefore should remedy the
situation in line with access to remedies for corporate-related abuse ( [30], p.
22). 11 The Principles are the most authoritative international statement to
date regarding the responsibilities of business with respect to human rights.
...
... The UNGPs came as a result of the BHR movement. Under it, businesses are
expected to provide evidence that they do not violate the rights of other
stakeholders during their operations ( [30], p. 14). If they do, they pay for
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Challenges of CSR in Africa: Assessing the Practice under the Voluntary and
Mandatory Provisions
Chapter
Full-text available
 * Jun 2024

 * Achille Gildas Ndong Ntoutoume

This chapter discusses the concept of Corporate Social Responsibility (CSR)
under the voluntary and mandatory provisions covering the practice in Africa.
The study aims to assess how the concept can overcome the challenges of CSR,
through legislation. CSR originated in the West as voluntary, where Northern
businesses have prioritized shareholders’ interests, overlooking stakeholders.
The arrival of some Northern multinationals in Africa has revealed corporate
governance deficits, pushing some African governments to regulate the practice
whose voluntary approach was no longer tenable. Past CSR projects have been
deemed as a failure due to the development of a pyramid whose implementation in
Africa remains problematic. All this provides challenges to the practice and
hence the assessment of the practice. Previous studies have assessed CSR but
mostly under the voluntary dimension, which remains common. This study looks
further at the issue with existing provisions, which seem to be part of the
major developments by African organizations on CSR. Key findings reveal that
national action plans developed by some countries using the voluntary approach
to conduct their CSR are unproductive, while the mandatory approach seems to be
the desirable step, looking at countries with legislation. A qualitative inquiry
provides recommendations.
View
Show abstract
... Photos are commonly used to convey good feelings such as happiness, security
and mutual support, which aids in the development of visual rhetoric and IM
(Zeng et al., 2022). McPhail and Adams (2016) assess the operationalisation of
human rights disclosure by conducting a critical discourse analysis of large
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Reporting Initiative (GRI) standards and Ruggie's (2008) framework. The findings
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Exploring influences on child labour disclosure: the role of sustainability
policies and stakeholder engagement
Article
 * Nov 2024

 * Michele Rubino
 * Ilaria Mastrorocco
 * Elisa Gerbasi

Purpose Child labour abolition is one of the four essential human rights
identified by the International Labour Organisation and sustainable development
goals. Although public organisations and governments have implemented a variety
of actions to control business activity and protect children’s rights, cases of
child labour adoption continue to be documented. This paper aims to establish
multinational companies’ disclosure procedures regarding child labour and to
identify some potential determining factors. Design/methodology/approach A
content analysis approach is used on sustainability reports from multinational
companies throughout the world to assess the overall amount of disclosure
concerning child labour adoption and to generate a child labour disclosure (CLD)
score. In addition, to better understand this issue, an empirical investigation
was conducted on a sample of 85 multinational companies to identify the factors
that influence CLD. Findings The findings show that there is a low degree of
disclosure on this issue throughout the world and that stakeholder engagement
has a positive impact on disclosure levels. In contrast, the existence of a
corporate social responsibility (CSR) committee and a CSR-based compensation
policy has a negative influence on CLD. Originality/value The statistical
results provide a unique viewpoint as they illustrate the amount of CLD using
impression management theory, confirming the notion of negative event omission
and text manipulation in developing the business image. These findings have
important implications for literature development, as well as for managers,
policymakers and stakeholder groups.
View
Show abstract
... The relevant government institutions must establish legal and regulatory
frameworks with adequate incentives to facilitate sector stakeholders to engage
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that the interests and well-being of the public are adequately protected. To
operationalize the legal and regulatory frameworks there will be a need for
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Enhancing Agricultural Sustainability and Food Security in Somalia: Addressing
Climate Change Challenges
Article
Full-text available
 * Oct 2024

 * Ahmed Abdi Hassan

The agriculture industry in Somalia employs more than a third of the working
force and generates more than 60% of the country's output. For many years,
Somalia has been known for its production and notable agriculture, which is the
key sector that fuels the country's economy. Due to decades of civil conflict,
poor administration, neglect, and a string of natural calamities, the Somali
agricultural industry has suffered significant damage. The irrigation systems in
Juba and Shabelle, the two major rivers, have failed and deteriorated. Crop
output has decreased because of a combination of ongoing drought, poor
agricultural techniques, and desertification, as well as the exodus of rural
people to neighboring nations. With pandemic levels of hunger and malnutrition
brought on by climate change, Somalia has become one of the world's most
food-insecure countries. Additionally, there is strong evidence that climate
change, particularly in Somalia and other East African nations, has exacerbated
civil wars across Africa. El Nino/Southern Oscillation, which causes drier and
warmer weather in the continental tropics, may have contributed to 21% of all
civil wars since 1950, according to research. A one-degree Celsius increase in
temperature is also thought to raise the risk of internal armed conflict in
sub-Saharan African nations by 4.5% in the same year and 0.9% in the subsequent
year. This chapter examines Somalia's present extension programs, lists the
challenges the nation's agricultural industry faces, and discusses the effects
of climate change. Improvement measures are advised based on the analysis
presented in the Chapter. This chapter's major goals are to highlight the
serious challenge that Somali farmers face and to offer potential solutions for
achieving sustainable agriculture and food security through the worst of the
climate change. Farmers, legislators, decision-makers, and academics may find
the material in this chapter useful in developing credible plans, policies, and
in establishing research and extension programs. With improved extension
systems, management, encouraging public investments, and an enabling climate,
Somalia's agricultural industry can increase its resilience, the quality of life
for its population, the safety and added value of its goods. Offshore and
coastal fisheries can both make greater contributions to sector growth, and it
can return to and surpass its amazing pre-war output and export levels
View
Show abstract
... It necessitates consensus among UN member states with diverse interests and
substantive engagement with civil society organisations, affected communities,
and businesses. Deliberations on the treaty's scope, content, and enforcement
mechanisms require careful consideration of competing 53 UNGA '2005 World Summit
Outcomes' (24 October 2005) UN Doc A/RES/60/1 54 Ruggie (2008). 55 Karp (2015).
...

Addressing Corporate Human Rights Violations and Environmental Harm: Advancing a
Holistic Remedial Framework through Tort Law and the EU Corporate Sustainability
Due Diligence Directive (CSDDD)
Article
 * Jun 2024

 * Emmanuel kojo Nartey

This research investigates solutions for instances of corporate human rights
violations and environmental harm, with a focus on applying the ‘Eggshell Skull
Rule’. It suggests a three-step method for determining liability and stresses
the importance of restoring victims to their pre-violation condition. The study
examines legal remedies, emphasising the significance of aggravated and
exemplary damages in addressing corporate wrongdoing. It supports the use of
exemplary damages to penalise misconduct and prevent future offences, addressing
challenges in applying legal frameworks to corporate behaviour. Furthermore, it
assesses the difficulties and debates surrounding exemplary damages in civil
cases. This study contributes to discussions on corporate accountability and
aligns with the EU Corporate Sustainability Due Diligence Directive by
advocating for a comprehensive remedy structure. It underlines the necessity of
both compensatory and punitive measures to maintain accountability and fairness
in cases of corporate misconduct. Keywords: Human Rights Violations; Corporate
Accountability; Remedy; Human Rights; Tort Law.
View
Show abstract
Islamic State
Chapter
 * Nov 2024

 * Hussein Solomon

Islamic State had its origins in Al Qaeda in Iraq in 2002 following the US
toppling of Saddam Hussein in Baghdad (Khan, Estrada and Arturo, Quality &
Quantity, 2015). Taking advantage of the chaos in Syria following the Arab
Spring, they moved the centre of their activities towards Syria and broke away
from their parent body—Al Qaeda. Islamic State in Iraq and Greater Syria (ISIS)
was the renamed organization’s name. Here they “governed” vast territories,
using oil revenues as well as the proceeds of various criminal enterprises, such
as kidnapping, to fund their malevolent rule over hapless residents.
View
Show abstract
Aligning multinational corporate strategies with Sustainable Development Goals :
A case study of an Italian energy firm's initiatives in developing markets
Article
 * Mar 2024

 * Luigi Nasta
 * Veronica Cundari

This paper investigates the strategic role of multinational corporations (MNCs)
in realizing the United Nations Sustainable Development Goals (SDGs) through the
lens of creating shared value (CSV) strategies. It presents a comprehensive case
study of a prominent Italian multinational energy corporation, demonstrating its
application in the energy sector. The paper explores the nuances of CSV
implementation, particularly in developing markets like Chile, Brazil, and
Colombia, guided by Institutional and Stakeholder theories. It examines the
corporation's responsive adaptation to local needs and challenges, and its
alignment of business operations with sustainable development objectives. The
findings underscore the significance of local stakeholder engagement and the
critical role of leadership in fostering a culture of sustainability within the
organization. This study expands on previous literature by offering insights
into the practical implementation of CSV strategies by MNCs in developing
markets. It sheds light on the complexities of integrating global sustainability
standards with local institutional dynamics and stakeholder collaboration,
enriching the understanding of how MNCs can contribute meaningfully to the SDGs.
View
Show abstract
What should communities stipulate in their (macro)social contract with business?
Updated CSR commandments for corporations
Article
Full-text available
 * Aug 2024
 * Bus Soc Rev

 * Ciprian Radavoi

This article relies on two major business ethics books to propose a decalogue of
corporate behavior. Notably, both Donaldson and Dunfee's Ties That Bind (1999)
and Kerr et al.'s CSR: A Legal Analysis (2009) tried to avoid the sinuous and
inconclusive normative quest for hyper-norms of business social responsibility:
the former proposed an integrated social contract between business and
community, while the latter adopted a positivist approach, looking at existing
law of all sorts, national and international, to decant eight principles of CSR.
Using a methodological tool from the first book, namely, the macrosocial
contract between business and communities , this article updates the list
proposed in the second book. As societal expectations evolve in time, emerging
principles are included in the amended list, such as meeting tax obligations,
refraining from taking advantage of disaster-struck communities, and
prioritizing the human in the age of artificial intelligence. The mixed approach
(ethical, contractarian, and positivist) allows introducing the 10 principles as
"commandments": initial reasonable content of a macrosocial for business,
informed by undisputed ethical principles (hypernorms) and potentially
implemented through positive law.
View
Show abstract
Human Rights Policies, Guidelines, and Standards in The Private Security
Industry: A Scoping Review
Article
 * Jul 2024

 * Brian R Johnson
 * Jennifer Marson-Reed
 * Christopher A. Kierkus
 * Adrian Copeland

View
Advocating for the EU Corporate Sustainability Due Diligence Directive Against
the Odds: Strategies and Legitimation
Article
 * Jun 2024

 * Morgane Thorens
 * Nadia Bernaz
 * Otto Hospes

Developing legislation to counter the negative impacts of businesses'
transnational activities on human rights and the environment is a recent trend.
Supporters of such legislation have campaigned to convince policy‐makers to
adopt strong law, but this legitimation process has not been theorised. Using
Vaara et al.'s theoretical framework, we uncover the six discursive legitimation
strategies used by the proponents of the European Union (EU) Corporate
Sustainability Due Diligence Directive (CSDDD) to legitimise its creation. Based
on interviews with proponents, we offer two main findings. First, the
directive's supporters seek to reverse the narrative that legislation with
extraterritorial implications is neo‐colonial by arguing instead that the
neoliberal status quo exemplifies neo‐colonial exploitation. Second,
non‐governmental organisations (NGOs) can convince businesses of the directive's
advantages by using playing down, mimicry and rationalisation as discursive
legitimation strategies. These findings have major implications for debates on
how to make the CSDDD effective in regulating business operations in the Global
South.
View
Show abstract
Die fragwürdige Rolle der Experten in der globalen Ordnungspolitik: Auf dem Weg
zu einem demokratischeren Ansatz
Chapter
 * Jun 2024

 * Marcin Kilanowski

View
Show more

The UN as a Human Rights Violator? Some Reflections on the United Nations
Changing Human Rights Responsibilities
Article
Full-text available
 * Dec 2008
 * HUM RIGHTS QUART

 * Frédéric Mégret
 * Florian F. Hoffmann

This article attempts to explore how changes in the UN's mission may force it to
rethink its responsibilities in terms of human rights. Until recently, the UN
had never thought of itself as actually capable of violating human rights. But a
number of evolutions have made this a possibility. Starting with peace
operations and culminating with the international administration of entire
territories, the UN is increasingly taking on sovereign-like functions. This
evolution may be seen as a larger metaphor for what the UN is becoming, from a
traditional inter-governmental organization to one increasingly entrusted with
tasks of global governance. With these new powers, it would seem, come new
responsibilities.
View
Show abstract
Confronting the Impunity of Non-State Actors: New Fields for the Promotion of
Human Rights
Article
 * Feb 1999
 * HUM RIGHTS QUART

 * Chris Jochnick

Human Rights Quarterly 21.1 (1999) 56-79 The end of the Cold War represented a
seminal moment for the human rights movement. In less than three decades of
active campaigning, non-governmental advocates had made human rights a common
and powerful language and could claim no small part in the widespread attention
to civil liberties and democratic reforms in countries throughout Latin America,
Africa, Asia, and Eastern Europe. But if the expansion of freedom and democracy
represented a victory for human rights, it also underscores the dangers of
equating civil and political rights with human dignity. The enduring and
pervasive poverty suffered by well over a billion people across the globe stands
as an inescapable rebuke to those ready to celebrate the "age of rights." The
human rights movement has much to offer the struggle against poverty, but it
must first move beyond its unnecessarily narrow vision of human rights. The
domination of Western nongovernmental organizations (NGOs) and governments has
produced a model of human rights advocacy that is limited to civil liberties and
state action. While the narrow focus on civil liberties has been widely
criticized and an increasing number of NGOs are now addressing economic, social,
and cultural rights (ESCR), the singular focus on state action endures. This
focus fails to address the roots of many violations -- particularly violations
of ESCR -- that increasingly lie beyond national borders. This article suggests
a fuller interpretation of human rights obligations, making them more relevant
and truer to international realities. Moving human rights beyond its
state-centric paradigm will potentially serve two purposes. First, it will
challenge the reigning neo-liberal extremism that infects much of the public
discourse about development and poverty, providing a rhetoric and vision to
suggest that entrenched poverty is neither inevitable nor acceptable. Second, it
will provide a legal framework with which to begin holding the most influential
non-state actors -- corporations, financial institutions, and third-party states
--more accountable for their role in creating and sustaining poverty. This
article will outline the role of these sectors in ESCR violations and the extent
to which they are governed by human rights instruments. The focus on impact and
accountability is meant to demonstrate the importance of, and the legal basis
for, broadening human rights advocacy to address additional actors. Some years
ago, the Center for Economic and Social Rights (CESR) undertook an investigation
of the impact of oil development on humans in the Ecuadorian Amazon. The
investigation initially focused on the government's human rights obligations
despite the fact that a private company, Texaco, was responsible for the brunt
of the damage. For decades, the affected Amazon communities had suffered
Texaco's abuses largely in silence, having been repeatedly told, both explicitly
and implicitly, that they had no rights against the oil company and that the
damage was a natural and inevitable price to pay for the country's development.
Human rights offered these communities a rare alternative to the dominant
discourse, guaranteeing them a right to a healthy environment that was clearly
being violated by Texaco's regular dumping of toxic wastes into their water
supplies. When CESR met with these communities, there was little sympathy for
the legal nuance that private companies are technically immune to human rights
claims, that they do not sign covenants guaranteeing human rights, and that only
the state is responsible for ensuring these rights. In the communities' eyes,
Texaco was the villain. Texaco had operated for years in the Amazon as
practically a state unto itself, with annual global earnings four times the size
of Ecuador's GNP and the active support of the US government. Even if the
Ecuadorian government had been disposed to control the company, few believed it
could. Under these circumstances, CESR's intended approach risked the
uncomfortable prospect of doing more harm than good. Insisting solely on
governmental obligations would obscure the true nature of the violation,
reinforce Texaco's impunity, and, most importantly, detract from the
communities' long-overdue sense of injustice and resolve.
View
Show abstract
Responsibility Beyond Borders: State Responsibility for Extraterritorial
Violations by Corporations of International Human Rights Law
Article
 * Jul 2007
 * Mod Law Rev

 * Robert McCorquodale
 * Penelope Simons

States routinely provide support and assistance to their corporate nationals in
their global trade and investment ventures. While states may not intend to allow
corporate nationals to violate human rights in their extraterritorial
operations, by their actions or omissions, states may facilitate, or otherwise
contribute to, a situation in which such violations by a corporation occur. This
article investigates the extent to which the extraterritorial activities of
transnational corporations (TNCs) that violate international human rights law
can give rise to home state responsibility. The analysis shows that home states
of TNCs have obligations under international law in certain situations to
regulate the extraterritorial activities of corporate nationals or the latter's
foreign subsidiaries and can incur international responsibility where they fail
to do so.
View
Show abstract
A Voice Not an Echo: Universal Periodic Review and the UN Treaty Body System
Article
 * Feb 2007

 * Felice D. Gaer

View
The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and
Symbolic Dimensions of the Turn to Rights in International Law
Article
 * Nov 2008

 * Jochen von Bernstorff

The article explores the genesis of the Universal Declaration of Human Rights
and the turn to rights in international law. To this end, it focuses on how
international lawyers have received the Declaration in their contemporary
doctrinal and political contexts. The fact that the political and moral
importance of the Declaration from the very beginning outweighed its concrete
legal significance invited intriguing scholarly reflections on the symbolic
dimension of the document. Despite early sceptical voices about its legal and
moral value, international lawyers welcomed and reaffirmed its significance
during the 1960s and 1970s. While attention turned to human rights treaty law in
the 1980s, the Declaration embodied the hope for a new era of human rights
protection after the end of the Cold War. Throughout the 1990s a new scholarly
defence of the universal character of the Declaration could be observed, later
being accompanied by new insecurity and soul-searching in the face of
institutional limitations. In general, the Declaration became synonymous with
the turn to individual rights in international law, and whenever there was a
sense of crisis because of institutional blockades or challenged foundations,
the Declaration received new and increased attention. It symbolized unity in an
increasingly fragmented and contentious institutional and political environment
for international human rights protection. The story of its scholarly reception
is therefore also a story of the failed and perhaps unattainable attempt fully
to institutionalize international human rights in a cosmopolitan legal order.
View
Show abstract
RTZ Corporation plc and others [1998] AC 854, and Lubbe v. Cape plc
 * Jan 2000
 * 4

 * For Example
 * Connelly V

For example, Connelly v. RTZ Corporation plc and others [1998] AC 854, and Lubbe
v. Cape plc [2000] 4

Stabilization clauses and human rights " , available at
http://www.reports-andmaterials .org/Stabilization-Clauses-and-Human-Rights-11
 * Apr 2008

 * See

See " Stabilization clauses and human rights ", available at
http://www.reports-andmaterials.org/Stabilization-Clauses-and-Human-Rights-11-Mar-2008.pdf.

Add.1. Some States hold that this duty is limited to protecting persons who are
both within their territory and jurisdiction

 * A Hrc

A/HRC/4/35 and A/HRC/4/35/Add.1. Some States hold that this duty is limited to
protecting persons who are both within their territory and jurisdiction.

Republic of South Africa (International Centre for Settlement of Investment
Disputes

 * Piero Foresti
 * Laura De Carli

Piero Foresti, Laura De Carli and others v. Republic of South Africa
(International Centre for Settlement of Investment Disputes, case No. ARB
(AF)/07/1).

A Guide for Integrating Human Rights into Business Management, available at
www.ohchr.org/Documents/Publications/ GuideHRBusinessen

 * Ohchr Blihr
 * Compact

BLIHR, OHCHR, and the Global Compact, A Guide for Integrating Human Rights into
Business Management, available at www.ohchr.org/Documents/Publications/
GuideHRBusinessen.pdf.

Show more




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