The UN Human Rights Council with its Resolution No. 17/4 of 16 June 2011 adopted the Guiding Principles of Business and Human Rights: implementation of “Protecting, Respecting, Remedy” the United Nations Framework (hereafter: the Guiding Principles). The Guiding Principles are the result of the multi-annual work of the Special Representative of the UN Secretary General for Human Rights, Transnational Corporations, and Enterprises. It consists of three sections. The first section refers to the State duty to protect human rights, the second to the corporate responsibility to respect the human rights, while the third section is related to the Judicial and extrajudicial legal protection of human rights.
In the first text devoted to this topic, we dealt with the obligations of states and legal protection, and in the second part, we are dealing with obligations of companies and corporations.
2. The corporate responsibility to respect human rights
2.1. Basic principles
Companies should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
The responsibility of companies to respect human rights requires that the companies:
(a) Avoid causing or contributing to adverse human rights impacts through their own activities, as well as to address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are directly related to their operations, products or services by their business relationships, even if they have not contributed to those impacts.
The responsibility of companies to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure. Of course, the scale and complexity of the means through which the companies meet that responsibility may vary according to these factors and with the severity of the company’s adverse human rights impacts.
In order to meet their responsibility to respect human rights, companies should have in place policies and processes appropriate to their size and circumstances, including:
(a) A policy commitment to meet their responsibility to respect human rights;
(b) Appropriate process to identify, prevent, mitigate and take responsibility for how they address their impacts on human rights;
(c) Processes, which enable the remediation of any adverse human rights impacts, they cause or to which they contribute.
2.2. Operational Principles
The first step, which companies need to do, is to express their commitment to respect human rights by adopting a program statement approved at the most senior level of governance. The statement should be made on the basis of appropriate knowledge of its own and/or external experts. In it, the company lists what kind of relationship to human rights awaits its employees, business partners and other actors directly related to its business, products or services. The statement should be made available to the public and forwarded to all employees, business partners and other relevant parties.
Companies should show due care of human rights in order to determine and prevent their own negative impacts on human rights, their mitigation and reporting on the way they are being removed. This process should include the assessment of actual and potential impacts on human rights, taking of appropriate measures based on results, and the assessment, monitoring of responses and reporting on the way they are removed.
Due attention to human rights:
a) It should refer to the negative impact on human rights that a company may or may contribute by its activities, or which may be directly related to its business, products or services due to its business relationship;
b) vary by complexity, depending on the size of the company, the danger of a serious negative impact on human rights and nature and context in which it operates;
c) It should be stable and keep in mind that the dangers of human rights can change over time, along with company’s activity changes and the context in which it operates.
In order to assess the risk to human rights, companies need to identify and evaluate all actual or potential negative impacts on human rights in which they may be involved due to their own activities or their business relationships. During this process, companies should rely on the expertise of their own and/or independent external human rights experts and to consult with groups that may be endangered and other relevant stakeholders.
In order to prevent and mitigate the negative impact on human rights, companies should integrate the findings of impact assessments into appropriate internal functions and procedures and take appropriate measures. Effective integration involves assigning responsibilities to employees at the appropriate level and functions in the company to eliminate this impact and the existence of an internal decision-making process, budgetary allocation and supervisory procedures necessary for effective response to this impact. Appropriate measures will depend on whether a company causes or contributes to a negative impact or its involvement stems solely from the fact that this impact is directly related to its production, products or services due to its business relationships, and from the leverage of the power, the company has to remove the negative impact.
Companies should monitor the effectiveness of the measures they have taken to ensure that the negative impact on human rights is removed. This monitoring should be based on appropriate qualitative and quantitative indicators and be based on feedback from both internal and external sources, including vulnerable stakeholders.
The responsibility of companies for removing their impact on human rights implies their willingness to present such information outside of the company, especially in cases where concern about such an impact is expressed by or on behalf of endangered parties. Companies whose business or the context in which they operate carry with them a risk of serious human rights impacts should formally report on the ways in which they are being disposed of.
When companies determine that they have caused or contributed to a negative impact, they should provide or cooperate in providing damage compensation using the procedures envisaged by law. Even a company with the best policy and practice can cause or contribute to a negative impact on human rights that has not been foreseen or prevented. When identifying such a situation, the company’s duty to respect human rights implies its active participation in the compensation procedure, either individually or in cooperation with other actors.
2.4. Context Question
Companies in all contexts should comply with all applicable laws and internationally recognized human rights wherever they operate, to seek ways to respect the principles of internationally recognized human rights in cases where they face controversial claims, and to treat the dangers which cause or contribute to grave injuries of human rights relations as regards the issue of respect for the law, regardless of where they operate.
When they need to prioritize measures to remove tangible and potential negative impacts on human rights, companies should initially try to prevent and mitigate the most adverse serious impacts or those that would be irreparable in the event of a subsequent reaction.
Author: Aleksandar Sajic
E-mail: [email protected]