This is a guest post by Elizabeth Boomer, an international law consultant in the Global Legal Research Directorate. Elizabeth has previously written for In Custodia Legis on Technology & the Law of Corporate Responsibility – The Impact of Blockchain, 30th Anniversary of the United Nations Convention on the Rights of the Child, United Nations Day – A Time to Reflect on the Potential Role of the International Court of Justice, and Facebook’s New “Supreme Court” – The Oversight Board and International Human Rights Law.
June 2021 marks 10 years since the United Nations (UN) Human Rights Council (HRC) unanimously endorsed the UN Guiding Principles on Business and Human Rights (Guiding Principles). Where did the Guiding Principles come from, what have they accomplished, and what is next in protecting individuals and remedying human rights violations caused by multinational corporations?
Background to the Guiding Principles
Prior to the development of the Guiding Principles (also known as the ‘Ruggie Principles’), the international community had made several attempts to establish binding international rules to govern the activities of multinational businesses. While the most famous initiative, the UN Draft Code of Conduct on Transnational Corporations, failed in the 1990s, soft law approaches to regulate the activity of business, with reference to human rights standards, such as the Organisation for Economic Co-operation and Development’s (OECD) 1976 Guidelines for Multinational Enterprises (most recently updated in 2011) and the International Labour Organization’s (ILO) 1977 Tripartite Declaration of Principles Concerning Multinational Enterprises (most recently updated in 2017), gained wider political support. In addition, the UN initiated the Global Compact in 2000 as a voluntary corporate responsibility initiative to engage companies and civil society in promoting and protecting human rights, labor standards, and environmental protection.
However, these soft law initiatives were largely insufficient to address the growing number of corporate human rights abuses, and in 1998, the UN established a working group on business and human rights, which produced the draft “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Draft Norms) in 2003. The Draft Norms, which recognized legal responsibility for transnational corporations and other business enterprises for violations of human rights within their “spheres of activity and influence”, were not endorsed by the UN Commission on Human Rights (the Commission, now the HRC).
It was within this context that the Commission asked the UN Secretary-General to appoint a Special Representative with the mandate to identify and clarify key concepts elaborated in the Draft Norms, like “corporate complicity” and “spheres of influence,” by looking at international standards and policies in relation to business and human rights. The Special Representative, John Ruggie, was appointed in July 2005.
The Framework for the Guiding Principles
After three years of research, including consultation with governments, business and civil society, as well as site visits and multi-stakeholder workshops, the Special Representative presented the “Protect, Respect and Remedy” (PRR) Framework to the Human Rights Council in June 2008. The PRR Framework identifies three pillars:
- the state duty to protect against human rights abuses by third parties, including businesses, through appropriate policies, regulation, and adjudication;
- the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and
- greater access by victims to effective remedy, both judicial and non-judicial.
While the PRR Framework was unanimously welcomed by the HRC, it extended the Special Representative’s mandate until 2011, with the mandate to operationalize and promote the framework.
The Guiding Principles and the Working Group on Business and Human Rights
The Guiding Principles were then developed to operationalize the PRR Framework, which would mark the “end of the beginning” in addressing the challenges of business and human rights by establishing a common global platform for action. They include foundational principles, operational principles, and commentary, but explicitly do not create any new international law obligations.
In unanimously endorsing the Guiding Principles, the HRC also established the Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group on Business and Human Rights), composed of five independent experts of balanced geographical representation, whose mandate was most recently renewed in 2020. The Working Group on Business and Human Rights has a wide-ranging mandate to promote the implementation of the Guiding Principles, to cooperate with other international organizations, and to guide the work of the Forum on Business and Human Rights. In addition, the HRC has also mandated that the Working Group on Business and Human Rights gives due consideration of the Guiding Principles in the context of the 2030 Agenda for Sustainable Development. Finally, the Working Group on Business and Human Rights provides recommendations on the development, implementation, and updating of National Action Plans (NAPs) on business and human rights. As of 2020, 25 states have published NAPs and 17 states were in the process of developing NAPs.
The Guiding Principles: What have they accomplished and what’s next?
Reflecting on 10 years of the Guiding Principles can offer insights into the opportunities and challenges of international lawmaking, including employing a multi-stakeholder approach. It can also improve our understanding regarding the continuing difficulties in holding multinational corporations accountable for their alleged violations of human rights, despite significant advances in NAPs incorporating the Guiding Principles over the past ten years, as well as increasing human rights litigation in national courts (e.g. the Shell lawsuit). In addition, it can lead to serious negotiations in several national jurisdictions (e.g. the German mandatory human rights due diligence law) and at the regional level (e.g. the proposed European Union due diligence law) to improve access to remedy. Finally, reflecting on 10 years of the Guiding Principles can inspire ideas for the next 10 years of progress in improving states’ protection of human rights, businesses’ respect for human rights, and victims’ access to remedies for human rights abuses.
Marking the 10th anniversary of the Guiding Principles, the Working Group on Business and Human Rights took stock of the implementation of the Guiding Principles to date, and developed a course of action for the next decade. The stocktaking report notes progress in “the expectation that businesses exercise human rights due diligence – morphing towards a legally binding standard of conduct,” which it describes as the Guiding Principles’ “most notable normative innovation.” The stocktaking report also acknowledges the gaps, challenges, and obstacles facing the implementation of the Guiding Principles, including a lack of policy coherence within states, among businesses, and in multilateral institutions and forums; barriers regarding access to remedy for victims of business-related impacts; and poor human rights performance data. Regarding the next steps in promoting the implementation of the Guiding Principles, the Working Group on Business and Human Rights will launch a roadmap for the next decade later in 2021.