UN Guiding Principles on
Business and Human Rights:
Weaknesses and Way Forward
XII International Human Rights Colloquium,
Sao Paulo, 14 October 2012
Phebe Mavungu Clement
Legal Adviser – ICJ Africa Programme
clement.mavungu@icj.org
Main question:
Can the GP adequately and effectively be used for
corporate human rights accountability? What its
weaknesses are and what can be the way forward?
Presentation Outline
1.Introduction
2.UN Guiding Principles:
Content, Rationale and
Usefulness
3.Weaknesses of GPs
4.Way forward
5.Conclusion
UN Guiding Principles: Content,
Rationale and Usefulness
 Prof. John Ruggie: Special Representative appointed by
UN Human Rights Council to investigate Business and
Human Rights in 2005 in light of failure of Norms
 Considered a number of submissions and consultations
 Produced a Framework in 2008 with three prongs
 Part I: State duty to protect individuals from
corporate violations at international law
 Improve legal framework and create monitoring
mechanisms
 Drive to improve domestic regulation of human
rights
UN Guiding Principles: Content,
Rationale and Usefulness
 Part II: Corporate obligations to respect
human rights:
 DO NO HARM
 May require positive steps like instituting antidiscrimination policy
 May in some instances require positive duties
of companies where they are sole provider of
services and where context requires provision
of health, education
 Involves all rights recognised at international
level
UN Guiding Principles: Content,
Rationale and Usefulness
 Due diligence framework: to ensure that
activities do not cause harm
 Does not only involve compliance with
legislation
 Anticipate and Manage risks to ensure that
business avoids infringing rights:
 Context of operations and possible risks
 Impact of activities on human rights in context
 Extent to which can contribute to abuse through
relationships with others (with states, other
business partners)
UN Guiding Principles: Content,
Rationale and Usefulness
 Part III: Access to Remedies
 Investigation and punishment where wrong-doing
 Judicial and Non-Judicial mechanisms proposed
 Grievance mechanisms within company: hotlines,
advisory services for complainants, mediators
 Identify potential violations early
 Should not impact on ability to access other forms of
redress through courts.
 Ruggie has succeeded in getting support of many
businesses and governments; large number of NGO’s in
support.
UN Guiding Principles: Content,
Rationale and Usefulness
Grosso modo:
o Clarification of State HR obligations in
respect of corporate activities
o Corporate responsibility (to respect)
extends to their business relationships
o Fairly Good Starting Point for a more
robust framework
o Theoretical and Practical: Operational
Principles
o Universal consensus
o Possibility of global convergence around
the standards set by GPs.
Critique of UN Guiding
Principles
 Legal nature of GPs: Non binding. Looks like a wish
list for states and corporations;
 No enforcement mechanism for the standards set or
defined by GPs;
 Corporations only have largely ‘negative obligations’ :
DO NO HARM. Why not some positive obligations to
facilitate access to rights in their sphere of activities.
 Corporate responsibility to respect lies on State duty
to protect: What when State fails? The Kilwa Incident
in DR Congo
 Corporate responsibility to respect depends on State
implementation of its duty to protect: May developing
are not able or willing to regulate or confront
transnationals that bring investment.
Critique of UN Guiding
Principles
 While GPs are premised on existing Int’l
Law, they are soft regarding State
extraterritorial obligations vis a vis business
activities of corporations operating abroad
(Control and influence).
ETOs are certain obligations binding on states
to observe human rights of persons outside of
their territorial scope.
 Regulation and accountability of
Transnationals operating in the South more
effective if done by home states.
UN Guiding Principles: Way
Forward
 Using the “little” that we have.
 Mainstreaming Principles into existing
initiatives (domestically and regionally).
 Nothing stops states to incorporate GPs
into legislations.
 GPs can be a basis for development of
corporate human rights policies and
standards
 GPs can be a good tool for advocacy with
states and corporations
UN Guiding Principles: Way
Forward
 GPs could be a good authoritative reference
for developing of a progressive jurisprudence.
 Can be taken forward by similar initiatives at
the regional level: OECD, Working Group of
ACHPR on Extractives Industries.
 On the road to a binding instrument on the
accountability of PSMCs for HR violations.
 Resorting to, and import GPs into,
opportunities which domestic laws and
remedies currently offer: See ICJ Access to
Justice Studies, US ATCA, SA PSMC Act,
Alternative mechanisms.
The End.
Thanks!
Merci!
Obrigado!
Gracias!
Asante!