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 part of the text devoted to this topic, we are addressing the issue of the State duty to protect human rights, while in the second part we will address the issue of the responsibility of business enterprises and corporations.
2.The State duty to protect human rights
States have an obligation to enable human rights protection by third parties, including business enterprises and corporations. This understands undertaking appropriate steps to prevent, investigate, punish and finally compensate any damage. States are obliged to protect and enhance the rule of law, to ensure equality of citizens, legal certainty and clear procedural laws.
In addition, States should clearly set the expectation that all business enterprises domiciled in their territory respect human rights throughout their operations.
In meeting their duty to protect human rights, States should:
a) Enforce laws aimed at or have the effect of requiring business enterprises to respect human rights;
b) Ensure that other laws and policies governing the creation and ongoing operation of business enterprises, do not constrain but enable respect of human rights;
c) Provide effective guidance to business enterprises on how to respect human rights throughout their operations;
d) Encourage, and where appropriate to require business enterprises to communicate how they address the negative impact on human rights.
States should undertake further steps to protect individuals from violation of their human rights by state-owned or state-controlled business enterprises or business enterprises that receive significant support from state agencies (eg export credit agencies or insurance and/or a guarantee of investments), including imposing an obligation to respect the principle of due care and care for the rights of the individuals.
States should conduct adequate supervision in order to fulfil international obligations in the field of human rights when concluding contracts with business enterprises or adopting laws on their provision of services that may affect human rights.
In addition, States should promote respect of human rights by business enterprises with which they have business transactions.
Given the more considerable risk of serious human rights violations in areas affected by conflicts, States should assist business enterprises operating in these areas not to take part in the commission of such violations.
States should ensure that state bodies, agencies and other state institutions are introduced with the obligations of States in relation to human rights and respect it when they exercise their mandates, including the provision of relevant information, training and support.
States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises (such as bilateral investment treaties, free trade agreements, investment contracts, etc.).
States, when acting as members of multilateral institutions that deal with business-related issues, should:
a) Seek to ensure that those institutions do not restrain the ability of their member States to carry out their duty to protect human rights;
b) Encourage those institutions to promote business respect for human rights and where requested, to assist States to comply with their duty to protect against human rights abuse by business enterprises, including through technical assistance, capacity building and awareness-raising;
c) Draw on these Guiding Principles to promote shared understanding and advance international cooperation in the management of business and human rights challenges.
3.Protection of rights
In the framework of their duty to provide protection against human rights violations by business enterprises, States should take appropriate steps within their territory and/or jurisdiction, with the assistance of judicial, administrative, legislative and other appropriate mechanisms, to ensure the access to effective mechanisms of legal protection to those whose rights are threatened.
States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms for reviewing human rights violations committed by business enterprises and at the same time should consider ways to reduce legal, practical and other relevant barriers that could lead to the denial of access to legal protection.
In parallel with judicial remedy mechanisms, States should provide effective and appropriate non-judicial mechanisms as part of a State-based system for the remedy of human rights abuse.
In addition, States should consider ways to facilitate access to effective non-State based remedy mechanisms dealing with business-related human rights abuse. In order to consider appeals at an early stage and immediate redress, business enterprises need to establish or participate in effective remedy mechanisms at the operational level focused on individuals and communities that may be negatively affected. All multi-stakeholder initiatives, which are based on respect for human rights standards, should ensure the availability of effective complaint mechanisms.
Author: Aleksandar Sajic
E-mail: [email protected]