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The UN Guiding Principles on Business and Human Rights and conflict-affected areas: state obligations and business responsibilities

Published online by Cambridge University Press:  10 October 2013

Rachel Davis
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Abstract

The UN Guiding Principles on Business and Human Rights provide authoritative guidance for states and businesses on how to prevent and address business-related human rights harms, including in conflict-affected areas. States need to explore a more innovative range of policy and regulatory options in such situations, whether they are engaging with cooperating companies or dealing with uncooperative ones. Companies need to be able to know and show that they can operate with integrity – and avoid being involved in gross abuses of human rights – and that their risk assessment, mitigation, and remediation processes take full account of the potential risks to affected stakeholders, not just risks to the business.

Keywords

UN Guiding Principlesbusiness and human rightsconflictresponsibilitiesrisk assessmentProtectRespect and Remedy Framework
Type
Business and the law – in armed conflict and other situations of violence
Information
International Review of the Red Cross , Volume 94 , Issue 887: Business, violence and conflict , September 2012 , pp. 961 - 979
Copyright
Copyright © International Committee of the Red Cross 2013 

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References

1 See UN Doc. A/HRC/17/31, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, 21 March 2011, unanimously endorsed by the United Nations Human Rights Council on 16 June 2011. The Council also created a new expert Working Group on business and human rights to take forward the dissemination and implementation of the Guiding Principles.

2 See OECD, OECD Guidelines for Multinational Enterprises, 25 May 2011 (updated), available at: www.oecd.org/daf/internationalinvestment/guidelinesformultinationalenterprises/oecdguidelinesformultinationalenterprises.htm.

3 See International Organization for Standardization, ISO 26000 Guidance on Social Responsibility, 2010Google Scholar, available at: www.iso.org/iso/iso_catalogue/management_standards/iso26000.

4 See International Finance Corporation, IFC Sustainability Framework and IFC Performance Standards on Environmental and Social Sustainability, 1 January 2012, available at: www1.ifc.org/wps/wcm/connect/Topics_Ext_Content/IFC_External_Corporate_Site/IFC+Sustainability/Sustainability+Framework.

5 See European Commission, A Renewed EU strategy 2011–14 for Corporate Social Responsibility, 25 October 2011, available at: http://ec.europa.eu/enterprise/policies/sustainable-business/corporate-social-responsibility/index_en.htm.

6 The Guiding Principles focus on the implications of international human rights law for states, while acknowledging that international humanitarian law exists as lex specialis that must be adhered to by states whenever it applies.

7 See Business and Human Rights in Conflict-Affected Regions: Challenges and Options for State Responses, UN Doc. A/HRC/17/32, 27 May 2011. The report on the workshops was included as one of the four addenda to the report containing the Guiding Principles in 2011.

8 The workshops addressed three scenarios: where business enterprises are physically present in conflict situations; where businesses are involved in foreign investment and trade activities that extend to conflict situations; and states’ individual and collective roles in responding where companies refuse to constructively engage. Each scenario assumed conflict situations involving escalating or changing patterns of violence.

9 See above note 7, para. 16.

10 Ibid., para. 17.

11 Ibid., para. 18.

12 Ibid., para. 21.

13 UN Human Rights Council, ‘Recommendations on follow-up to the mandate’, note presented to the UN Human Rights Council, 11 February 2011, available at: www.business-humanrights.org/media/documents/ruggie/ruggie-special-mandate-follow-up-11-feb-2011.pdf.

14 Ibid., pp. 4–5.

15 Although international human rights instruments generally do not currently impose this obligation directly on businesses (hence the term ‘responsibility’ rather than ‘duty’), elements of it are often reflected in domestic laws. However, the responsibility to respect exists apart from national laws.

16 See above note 1, Guiding Principle 12, Commentary. The Interpretive Guide referenced in note 24 below specifically cites the ICRC's publication in this regard: see ICRC, Business and International Humanitarian Law: an Introduction to the Rights and Obligations of Business Enterprises under International Humanitarian Law, ICRC, Geneva, December 2006Google Scholar. See also above note 6 regarding states’ obligations.

17 See above note 1, Guiding Principle 15; Guiding Principles 17–21 address human rights due diligence in detail.

18 Ibid., Guiding Principle 24, Commentary.

19 Goldman Sachs Global Investment Research, ‘Top 190 projects to change the world’, April 2008.

20 See UN Doc. A/HRC/14/27, Business and Human Rights: Further Steps Towards the Operationalisation of the ‘Protect, Respect and Remedy’ Framework, 9 April 2010, para. 72.

21 Rachel Davis and Daniel Franks, ‘The costs of conflict with local communities in the extractive industry’, paper presented at the First International Seminar on Social Responsibility in Mining, Santiago, Chile, 19–21 October 2011, available at: www.shiftproject.org/publication/costs-conflict-local-communities-extractive-industry. The research drew on over 40 confidential interviews, including with industry representatives, and an analysis of 25 cases, to focus on the costs incurred by companies in such instances of conflict.

22 For example, the work being conducted by the OECD on responsible supply chains of minerals from conflict-affected areas. See OECD, OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, 25 May 2011, available at: www.oecd.org/fr/daf/investissementinternational/principesdirecteurspourlesentreprisesmultinationales/mining.htm. This work is now referenced in the new implementation guidelines developed by the US Securities and Exchange Commission for the implementation of Dodd-Frank Section 1502.

23 See, for example, Public–Private Alliance for Responsible Minerals Trade (www.resolv.org/site-ppa/, last visited February 2013) and Solutions for Hope (http://solutions-network.org/site-solutionsforhope/).

24 Office of the High Commissioner for Human Rights, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, November 2011, para. 8.5, available at: www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf.

25 Ibid., para. 14.2.

26 See Voluntary Principles on Security and Human Rights, available at: http://www.voluntaryprinciples.org/files/voluntary_principles_english.pdf.

27 The Interpretive Guide makes this clear: see Office of the High Commissioner for Human Rights, above note 24, para. 14.4.

28 See above note 1, General Principles.

29 Sherman, John, ‘The UN Guiding Principles: practical implications for business lawyers’, in In-House Defense Quarterly, Winter 2013, p. 55Google Scholar, available at: http://shiftproject.org/sites/default/files/Practical%20Implications%20for%20Business%20Lawyers.pdf.

30 See International Alert, Conflict-Sensitive Business Practice: Guidance for Extractives Industries, London, March 2005Google Scholar, available at: www.international-alert.org/sites/default/files/publications/conflict_sensitive_business_practice_all.pdf; and UN Global Compact and Principles for Responsible Investment, Guidance on Responsible Business in Conflict-Affected and High Risk Areas: A Resource for Companies and Investors, 2010Google Scholar, available at: www.unglobalcompact.org/docs/issues_doc/Peace_and_Business/Guidance_RB.pdf.

31 See Shift and IFC, ‘Collaborating with the IFC on guidance for high-risk contexts’, available at: www.shiftproject.org/project/collaborating-ifc-guidance-high-risk-contexts.

32 See The Foreign and Commonwealth Office, Business and Human Rights Toolkit: How UK Overseas Missions can Promote Good Conduct by UK Companies, 2009Google Scholar, available at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/35451/business-toolkit.pdf.