EVOLVING NORMS OF BUSINESS RESPONSIBILITY FOR

HUMAN RIGHTS 2016-2017 IV. Business Responsibilities: What’s in a Name?

MIDTERMS REVIEWER
INTRODUCTION
I. Introduction: The Nexus Between Corporate Activities
and Human Rights
1. Introduction to the course
2. Case studies on business entanglement
II. Understanding Human Rights in Business
1. Core Human Rights Standards
a. Universal Declaration on Human Rights
b. International Covenant on Civil and V.
Political Rights
c. International Covenant on Economic, VI.
Social and Cultural Rights
d. ILO Declaration on the Fundamental
Principles and Rights at Work
III. Paving the Way for the Recognition of Business Human
Rights Responsibilities
1. History of the Business and Human Rights Discourse
2. Historical Timeline 

a. UN Global Compact

b. 2003 – Norms on Transnational
Corporations and Human Rights
c. 2005 – Appointment of Prof. John Ruggie
as SR on Business and 
 Human Rights

d. UN Working Group on Business and
Human Rights 

1. The different concepts and studies of business
responsibilities:
a. Corporate Social Responsibility &
Corporate Social Accountability 

b. Corporate Governance 

c. “Business and Human Rights” 

d. Risk Management 

2. Systems of Corporate Liability

a. Vicarious liability or respondeat superior
b. Identification approach
c. Corporate Culture
Ruggie’s Framework and Guiding Principles
Corporate Human Rights Responsibilities for Specific
Sectors
1. Children’s Rights and Business Principles 

2. Women’s Empowerment Principles 

3. Indigenous People’s Rights (UNDRIP) 

4. Business and the Environment 


CORPORATE HUMAN RIGHTS RESPONSIBILITY

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 INTRODUCTION: THE NEXUS BETWEEN CORPORATE
ACTIVITES AND HUMAN RIGHTS
1. Milton Friedman, The Social Responsibility of Business is
to Increase Its Profits, NY TIMES (Sept. 13, 1970)
What does it mean to say that "business" has responsibilities? Only
people can have responsibilities. A corporation is an artificial person
and in this sense may have artificial responsibilities, but "business" as
a whole cannot be said to have responsibilities, even in this vague
sense. The first step toward clarity in examining the doctrine of the
social responsibility of business is to ask precisely what it implies
for whom.
 stockholders or the customers or the employees could separately
In a free-enterprise, private-property system, a corporate executive is
an employee of the owners of the business. He has direct
responsibility to his employers. That responsibility is to conduct the
business in accordance with their desires, which generally will
be to make as much money as possible while con-forming to the
basic rules of the society, both those embodied in law and those
embodied in ethical custom.
As a person, he may have many other responsibilities that he
recognizes or assumes voluntarily–to his family, his conscience, his
feelings of charity, his church, his clubs, his city, his country. He may
feel impelled by these responsibilities to devote part of his income to
causes he regards as worthy, to refuse to work for particular
corpo-rations, even to leave his job, for example, to join his country's
armed forces. But in these respects he is acting as a principal, not an
agent; he is spending his own money or time or energy, not the money
of his employers or the time or energy he has contracted to devote to
their purposes. If these are "social responsibilities," they are the social
responsibilities of individuals, not of business.
 
 What does it mean
to say that the corporate executive has a "social responsibility" in his
capacity as businessman? If this statement is not pure rhetoric, it
must mean that he is to act in some way that is not in the interest
of his employers. For example, that he is to refrain from increasing
the price of the product in order to contribute to the social objective of
preventing inflation, even though a price increase would be in the best
interests of the corporation. Or that he is to make expenditures on
reducing pollution beyond the amount that is in the best interests of
the corporation or that is required by law in order to contribute to the
social objective of improving the environment. Or that, at the expense
of corporate profits, he is to hire "hardcore" unemployed instead of
better qualified available workmen to contribute to the social objective
of reducing poverty.
 
 In each of these cases, the corporate
executive would be spending someone else's money for a general
social interest. Insofar as his actions in accord with his "social
responsibility" reduce returns to stockholders, he is spending their
money. Insofar as his actions raise the price to customers, he is
spending the customers' money. Insofar as his actions lower the
wages of some employees, he is spending their money.
 
 The
spend their own money on the particular action if they wished to do
so. The executive is exercising a distinct "social responsibility," rather
than serving as an agent of the stockholders or the customers or the
employees, only if he spends the money in a different way than they
would have spent it. But if he does this, he is in effect imposing taxes,
on the one hand, and deciding how the tax proceeds shall be spent,
on the other.
 
 This is the basic reason why the doctrine of
"social responsibility" involves the acceptance of the socialist
view that political mechanisms, not market mechanisms, are the
appropriate way to determine the allocation of scarce re-sources
to alternative uses.
 
 The difficulty of exercising "social
responsibility" illustrates, of course, the great virtue of private
competitive enterprise–it forces people to be responsible for
their own actions and makes it difficult for them to "exploit" other
people for either selfish or unselfish purposes. They can do
good–but only at their own expense.

In most of these cases, what is in effect involved is some stockholders
trying to get other stockholders (or customers or employees) to
contribute against their will to "social" causes favored by the activists.
Insofar as they succeed, they are again imposing taxes and spending
the proceeds.
 
 The situation of the individual proprietor is
somewhat different. If he acts to reduce the returns of his
enterprise in order to exercise his "social responsibility," he is
spending his own money, not someone else's. If he wishes to
spend his money on such purposes, that is his right, and I cannot see
that there is any objection to his doing so. In the process, he, too, may
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impose costs on employees and customers. However, because he is
far less likely than a large corporation or union to have mo-nopolistic
power, any such side effects will tend to be minor.
 
 The doctrine of
social responsibility is frequently a cloak for actions that are
justified on other grounds rather than a reason for those
actions.
 despoil the environent in the process.
The political principle that underlies the market mechanism is
unanimity. In an ideal free market resting on private property, no
individual can coerce any other, all cooperation is voluntary, all parties
to such cooperation benefit or they need not participate. There are no
values, no "social" responsibilities in any sense other than the shared
values and responsibilities of individuals. Society is a collection of
individuals and of the various groups they voluntarily form.
 
 The
political principle that underlies the political mechanism is conformity.
The individual must serve a more general social interest–whether that
be determined by a church or a dictator or a majority. The individual
may have a vote and say in what is to be done, but if he is overruled,
he must conform. It is appropriate for some to require others to
contribute to a general social purpose whether they wish to or
not.
 
 But the doctrine of "social responsibility" taken seriously
would extend the scope of the political mechanism to every
human activity. It does not differ in philosophy from the most explicitly
collectivist doctrine. It differs only by professing to believe that
collectivist ends can be attained without collectivist means called a
"fundamentally subversive doctrine" in a free society, and have
said that in such a society, "there is one and only one social
responsibility of business–to use it resources and engage in
activities designed to increase its profits so long as it stays
within the rules of the game, which is to say, engages in open
and free competition without deception or fraud."
2. Joseph Stiglitz, Keynote Address to UN World Forum on
Business and Human Rights (Dec. 3, 2013)
BACKGROUND:
The whole speech is about debunking one of the most fundamental
idea in economics which is Adam Smith’s invisible hand. It states that
the pursuit of self-interest would lead, as if by an invisible hand, to the
well-being of society. The idea proposes that as long as I make profit,
I am still doing God’s work – even if I abuse workers’ basic rights or
Stiglitz proposes that the reason why the invisible hand often seems
invisibe is because IT IS NOT THERE. The pursuit of self-interest
does not lead to the well-being of society because this fails to identify
the hard questions about moral values, including upholding basic
human rights. Trasngressors have often tried to defend their actions
by referring back to Smith, arguing that only through the stock market
value maximization will economic efficiency be reached. However,
research has shown that the idea that the stock market value
maximization would achieve efficiency – or a well-performing
economy and society – has been shown to be false. What each
business does affects its workers, the community, and society more
broadly. There is no intellectual basis for shareholder capitalism and
managerial capitalism. If we are to have an economy that functions
well, business must go beyond a narrow focus on shareholder value;
managers must go beyond what increases their incomes and the
value of their stock options.
3 Precepts for Business Policy
1. DO NO HARM – Businesses are doing a lot of damage. An
example would be when the actions of bankers, mostly in a
few capitals of finance, led to a global downturn. Doing no
harm is not enough. Corporations are a particularly effective
form of collective action – people working toward a common
end, producing goods and services that others need and
want. Basically, the whole is more than the sum of its parts;
and the power of these organizations can be harnessed for
broader social objectives.
2. EFFICIENCY WAGE THEORY – It is in the self-interest of
businesses to treat their workers well. But even if that were
not the case, basic human decency and a respect for the
dignity of others suggests that businesses ought to do what
they can to ensure that the workplace is as safe and pleasant
as possible. This is enshrined in the UN’s Guiding Principles
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 for Business and Human Rights, which admonishes
businesses to “Seek to prevent or mitigate adverse human
rights impact that are directly linked to their operations,
products or services by their business relationships, even if
they have not contributed to those impacts.
3. SOFT LAW – Some businesses have taken the view that it is
not their job to determine what is right or wrong; that is the
responsibility of the government. Their job is to maximize
profits. However, it is true that businesses have taken an
active role in setting the laws and regulations. An essential
aspect of corporate responsibility is not only not opposing
laws that enhance the protection of human rights, but also
publicly supporting such legislation.
Soft law is the establishment of norms of the kind reflected in
the Guiding Principles of Business and Human Rights.
Because of the difficulty of prosecuting abuses, there is a
need to move towards a binding international agreement
enshrining these norms. We need international cross-border
enforcement, including through broader and strengthened
laws, giving broader legal rights to bring actions, which can
hold companies that violate human rights accountable in their
home countries.
The reason why businesses should embrace corporate responsibility
is not selfish self-interest, but because it is the right thing to do.
3. M. J. Entine, The Contrarian: Are NGO’s Playing Both Sides
of the Human Rights Abuse Debate?, Ethical Corporation
(July 18, 2006)
 Harvard’s John Ruggie was tapped by UN secretary-general Kofi
Annan to examine corporate responsibility for human rights
violations, he promised to address “whether multinational firms
should be the direct bearer of international human rights
obligations – and, if so, what those standards should be”.
o In a rebuke of NGOs’ key position, Ruggie found no
precedent for “hard” international laws except for war
crimes.
o Most environmental exploitation, plundering militias,
and child labour have been blamed to
“transnationals”.
 Are the corporations really the bad guys?
o Not really. If NGOs have their way, it would be the
chief executives. This paradoxical NGO position
runs “counter to the general structure of international
law, which, for good reason, places the responsibility
for enduring good governance and respect for
human rights on states”
 NGOs vastly over estimate the independence and power of
multinationals. No states, particularly corrupt ones, are about
to allow corporations to enforce laws that they are loathe to
enforce themselves.
o As an example, the author points to the recent
appropriations of multinational energy operations in
Latin America. It began in Venezuela with a gradual
nationalisation process under leftwing populist
president Hugo Chávez. On 1 May, Bolivian president
Evo Morales nationalised the nation’s oil fields,
defiantly declaring: “Foreign companies will not be
able to steal from Bolivia Weeks later, Ecuador’s
Alfredo Palacio followed suit, seizing Occidental
Petroleum’s one-billion-euro oil operation, the
country’s largest foreign investment.
o This played well with but the reality is more
complicated. In communities where Oxy spent
millions of euros building schools, clinics, community
centres, and sanitation facilities, backed eco-tourism
projects, and provided grants for students and
teachers, the beer has not been flowing so freely. In
the long term, Ecuador will pay a price. Direct foreign
investments are on hold because the potential
rewards are too meagre to compensate for political
risks.
 What, then, is the responsibility of corporations?
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 o Corporations with a conscience that leave abusive
countries may do more harm than good. Some
corporations that resisted demands to leave South
Africa came to be considered heroes because they
guaranteed jobs and benefits to black workers in
defiance of the white government.
o In Burma, recently, Hilton Head bowed to
international pressure and abandoned its properties.
That has devastated its loyal workforce, raising
concerns whether their rights would have been better
protected by toughing it out.
 NGOs remain hopeful that, in his final report, Ruggie will call
for universally recognzsed standards and effective
accountability mechanisms. Addressing abuses requires an
inside and outside strategy.
 NGOs are advised to embrace the reality that corporations
are no substitute for civil stability. You can’t expect to bash
Corporate World, celebrate when populist leaders abrogate
treaties and free trade agreements, and yet demand that
these same corporations be held accountable for misdeeds
that flow directly from decades of government corruption.
4. Doe v. Unocal Corp., 2002 U.S. App. LEXIS 19263 (9th Cir.
2002)
FACTS:
During Unocal's construction of an oil pipeline in Myanmar, it hired
Myanmar's military for security while the pipeline was built. The
villagers in the area where the pipeline was being constructed alleged
the military forcefully evicted them, forced them to work on the project
and raped, murdered and tortured them.
Plaintiffs allege that the Myanmar Military forced them, under threat of
violence, to work on and serve as porters for the Project. Plaintiffs also
allege in furtherance of the forced labor program just described, the
Myanmar Military subjected them to acts of murder, rape, and torture.
For instance, Jane Doe I testified that after her husband, John Doe I,
attempted to escape the forced labor programs, he was shot by the
soldiers, and in retaliation for his attempted escape that she and her
baby were thrown into a fire resulting in injuries to her and the death
of the child. Other witnesses described the summary execution of
villagers who refused to participate in the forced labor program, or who
grew too weak to work effectively. Several Plaintiffs testified occurred
as part of the forced labor program. For instance, both Jane Does II
and III testified that while conscripted to work on pipeline-related
construction projects, they were raped at knife-point by Myanmar
soldiers who were members of a battalion that was supervising the
work. Plaintiffs finally allege that Unocal’s conduct gives rise to liability
for these abuses.
The plaintiffs subsequently brought two cases in the District Court in
California, both of which were decided in favor of Unocal through
summary judgment. The claimants appealed the decision.
ISSUE: Whether or not a non-state actor must engage in state
action for it to be liable under the Alien Tort Claims Act (ATCA)
HELD: NO.
Liability under ATCA does not require the rights violation to have been
committed through state action (by the state or as an extension of
state authority) if the violation was committed in furtherance of crimes
which themselves do not require state action to establish liability, such
as war crimes, genocide and slavery. The Court determined that
forced labor is a modern form of slavery, therefore individuals,
including corporations, such as Unocal, could be found liable under
ATCA. Consequently, the tribunal determined that Unocal could be
held liable under ATCA for aiding and abetting (or providing willing
support) to the Myanmar Military in establishing a system of forced
labor, murder and rape because it could be reasonably shown that
Unocal knew the military was carrying out the violations and provided
support. Evidence in the record did not support the same liability for
acts of torture. Based on these findings the Court found enough
evidence for the case to move forward to trial.
The Alien Tort Claims Act (ATCA) provides non-citizens of the United
States the opportunity to bring a civil suit in US courts for a tort (injury)
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committed in violation of the law of nations (international law). US
corporations, like individuals, can be liable under ATCA for complicity
in egregious human rights violations.
Enforcement of the Decision and Outcomes:
In 2005, before the jury trial began, the parties agreed to a settlement
and the case was dismissed with the requirement that it cannot be
brought to court again in the future.
Unocal agreed to compensate the 14 surviving plaintiffs for an
undisclosed amount and Earth Rights International, who was involved
in the case, has confirmed that this compensation has taken place and
that community programs to improve living conditions, health care and
education and protect the rights of people in the pipeline region are in
development. Shortly after the settlement, Unocal was acquired by
Chevron.
5. "Presbyterian Church of Sudan v. Talisman Energy, Inc., 453
F. Supp. 2d 633 (S.D.N.Y. 2006)"
Facts:
 A civil war between the primarily Muslim government and the
primarily non-Muslim population of Southern Sudan began in 1983,
causing great civilian deaths and suffering.
 When Talisman Energy, a Canadian corporation, began investing
in Sudan in an oil consortium co-owned by the Sudanese
government in 1998, the violence in Sudan was still on-going).
Talisman acquired 25 percent of the consortium’s operations.
 Because the consortiums’ operations took place amidst civil war,
security arrangements were made for Consortium personnel in
coordination with the Government and military forces. These
arrangements coincided with efforts from the Sudanese
government to create a ‘cordon sanitaire’ or buffer zone around the
oil fields to clear them for oil exploration. In the suit, the plaintiffs
allege that this resulted in the persecution of civilians living in or
near the oil concession areas.
 In November 2001, the Presbyterian Church of Sudan filed a
lawsuit against the Canadian oil and gas producer, Talisman
Energy, under the US Alien Tort Claims Act, which provides US
courts with original jurisdiction over certain tort claims filed by
aliens.
 In the suit, it was claimed that Talisman aided the Government of
Sudan in the commission of genocide, war crimes and crimes
against humanity.
 According to the claim, Talisman worked alongside the Sudanese
Government in the creation of buffer zones around certain oil fields,
which effectively assisted human rights violations and the
perpetration of international crimes in order to gain access to oil by
displacing the population living in the areas around the oil fields
and attacking their villages.
 The District Court of New York: DISMISSED the case.
 US Court of Appeals for the Second Circuit: AFFIRMED District
Court of NY.
 CA: Turning to international law, the Court held that purposefully
intending the violations, rather than knowledge of the violations
alone, was the applicable standard. So, in order to determine
liability under the Alien Tort Claims Act the plaintiffs must show that
“Talisman acted with the “purpose” to advance the Government’s
human rights abuses.” The Court held that the claimants had failed
to establish that Talisman “acted with the purpose to support the
Government’s offences”
Issue:
Whether or not Talisman Energy should be held liable? NO.
Held:
The Court of Appeals dismissed the appeal and affirmed the dismissal
of the District Court. The Court held that the plaintiffs did not establish
that Talisman provided substantial assistance to the Government of
the Sudan with the purpose of aiding its unlawful conduct.
The Court of Appeals agreed with Talisman that the Courts must look
to international law for the rules on aiding and abetting grave human
rights violations. It held that the principles articulated in the “Sosa v
Alvarez-Machain case and other precedent sends the courts to look
6
at international law to find the standard for accessorial liability”.
The Court of Appeals then considered which standard was applicable
to establishing aiding and abetting liability for human rights violations
under customary international law. Was this ‘knowingly giving
assistance’, as the plaintiffs claimed, or ‘shared purpose’, as the
defendants argued?
Looking at international law, it held that purpose, rather than
knowledge alone, was the applicable standard. It held that no
“consensus exists for imposing liability on individuals who knowingly
(but not purposefully) aid and abet a violation of international law”.
So, in order to determine liability under the Alien Tort Claims Act the
plaintiffs must show that “Talisman acted with the “purpose” to
advance the Government’s human rights abuses”
The Court upheld the exclusion of evidence related to the procurement
of arms, finding insufficient evidence to prove that Talisman directed
its royalty payments to the Government’s procurement of arms,
despite a jury finding that Talisman was aware that such payments
could be directed to that purpose.
The Court held that the plaintiffs failed to proffer facts showing that
Talisman specifically intended its acts of assistance to
contribute to genocide, war crimes, torture, and crimes against
humanity, and therefore dismissed the claim.
6. GMA News Online, Labor groups claim 99% of factories
around Kentex violate labor, safety standards (June 22, 2015)
 A labor coalition said that "99 percent" of the factories around
Kentex Manufacturing Corporation's plant in Barangay
Ugong, Valenzuela City violate basic labor laws and
occupational health and safety standards.
 TUCP + DOLE + NACP = Joint Onsite Inspection  42
establishments surrounding the burned-down slipper
factory
Problems that they found (LABOR LAW ASPECT)
1. Do not comply with the current mandated daily minimum wage
of P481.
2. Failure to remit their employees' Social Security System,
PhilHealth, and Pag-Ibig premiums.
3. Widespread Contractualization
4. Employees do not how to compute their overtime pay, night shift
differentials and holiday pay, among others.
5. Employees not aware of other benefits such as the service
incentive leave pay and maternity, paternity and solo parent
leave.
(Occupational Safety and Health Standard aspect),
1. Establishments did not comply with the minimum standards.
2. No fire exits or had obstructed fire exits.
Here is a complete list of the violations, according to the labor group:
1. No occupational safety and health policy and program in the
workplace
2. Poor housekeeping (unorganized materials and equipment)
3. Lack of Personal Protective Equipment (PPE)
4. No earplugs for noise pollution
5. No prescribed face masks for airborne contaminants
6. Poor workers’ toilet and washing facilities
7. No safety organization/committee in the workplace
8. No trained safety officer and first aider
9. Insufficient first aid kits and emergency medicines
10. Absence of fire exits
11. Obstructed fire exits
12. No fire drills conducted
13. No sprinklers
14. No hoist equipment permit for elevators
15. No electrical wiring inspection presented
16. No safety officer
17. No annual work accident and/or illness exposure data
18. No annual medical report
19. No workplace policies and guidelines for the prevention and
control of tuberculosis and HIV/AIDS
20. No machine guard
21. No welding goggles
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7. R. Galupo, Kentex viticms agree to P151,200 settlement, The
Philippine Star (June 23, 2015)
Families and representatives of at least 57 victims of the fire that razed
the Kentex Manufacturing Corp. slipper factory in Valenzuela last May
13 have agreed to a settlement with the company.
Lawyer Renato Paraiso, who represents Kentex management, said
the victims’ families have agreed to a total compensation package
worth P151,200 each. The amount includes P100,000 in death
benefits, P30,000 cash for the identification of the remains of the
victims, P10,000 burial assistance, P6,200 for funeral services, and
P5,000 travel assistance.
Paraiso said the settlement applies to all victims regardless of their
employment status.
He said the company would shoulder the medical expenses of regular
employees who were injured in the incident. They would also be
receiving their separation pay, he said.
He was mum, however, on the benefits of injured contractual
employees. Most victims of the fire were reportedly contractual
employees.
Paraiso said at least 10 more families were willing to settle within the
week “but there are those who would not budge” and were asking as
much as P4 million for settlement, “which the company cannot afford
at this point.”
He noted that the financial situation of Kentex has been spiraling
downwards and it had only managed to pay the settlement through
bank loans.
Lawyer Remigio Saladero Jr., who represents the victims’ families,
told The STAR that the settlement does not extinguish the criminal
liability of Kentex and its officials, but only the civil aspect of the case.
Saladero said criminal charges will still be filed.
But Paraiso stressed that those who agreed to settle have signed
quitclaims and waivers, releasing the company and its officials from
any liabilities.
“The execution of their quitclaims and waivers would constitute a
waiver of their right to file criminal, civil and administrative charges
against the company, its officers and directors,” he said.
“If they want to annul the waiver they would now have the duty to prove
that there was coercion in the execution of the documents,” he added.
He said families could still file charges against other people,
companies or government agencies who are possibly accountable for
the incident.
Strict compliance
Meanwhile, the national government vowed to strictly enforce the
compliance with fire safety requirements for all establishments
nationwide before they would be issued business permits and
licenses.
This was the directive issued by both President Aquino and
Department of the Interior and Local Government (DILG) Secretary
Manuel Roxas II, according to presidential spokesman Edwin
Lacierda, who quoted a text message from department Usec. Peter
Irving Corvera.
The Bureau of Fire Protection (BFP), which is under supervision of the
DILG, is currently conducting intensive inspections of industrial and
high-hazard establishments, following the Kentex fire that left 72
workers dead.
“The purpose of such inspections is primarily to ensure compliance by
all establishments with the Fire Code to avoid a repeat of the Kentex
incident and to expedite the issuance of FSICs to compliant
establishments,” the DILG official told Lacierda in a text message.
FSICs, or fire safety inspection certificates, are prerequisites to all
permits and licenses in establishments nationwide.
8
“The BFP expects to complete such inspections by next week, after
which the extensive inspections will be implemented in the rest of the
country,” Corvera added.

The national government also vowed to expedite the benefits and

financial assistance to be extended to the families of the victims as
laid out by the Department of Labor and Employment, according to
Presidential Communications Operations Office Secretary Herminio
Coloma Jr. – Delon Porcalla

9
 UNDERSTANDING HUMAN RIGHTS IN BUSINESS
1. Universal Declaration of Human Rights
UNIVERSAL DECLARATION OF HUMAN RIGHTS
PREAMBLE  Whereas recognition of the inherent
dignity and of the equal and inalienable
rights of all members of the human
family is the foundation of freedom,
justice and peace in the world,
 Whereas disregard and contempt for
human rights have resulted in
barbarous acts which have outraged
the conscience of mankind, and the
advent of a world in which human
beings shall enjoy freedom of speech
and belief and freedom from fear and
want has been proclaimed as the
highest aspiration of the common
people,
 Whereas it is essential, if man is not to
be compelled to have recourse, as a
last resort, to rebellion against tyranny
and oppression, that human rights
should be protected by the rule of law,
 Whereas it is essential to promote the
development of friendly relations
between nations,
 Whereas the peoples of the United
Nations have in the Charter reaffirmed
their faith in fundamental human rights,
in the dignity and worth of the human
person and in the equal rights of men
and women and have determined to
promote social progress and better
standards of life in larger freedom,
 Whereas Member States have pledged
themselves to achieve, in co-operation
with the United Nations, the promotion
of universal respect for and observance
of human rights and fundamental
freedoms,
 Whereas a common understanding of
these rights and freedoms is of the
greatest importance for the full
realization of this pledge,
ARTICLE 1  All human beings are born free and
(human dignity and equal in dignity and rights.
human rights)  They are endowed with reason and
conscience and should act towards one
another in a spirit of brotherhood.
ARTICLE 2  Everyone is entitled to all the rights and
(equality in rights freedoms set forth in this Declaration,
and freedom) without distinction of any kind, such as
race, colour, sex, language, religion,
political or other opinion, national or
social origin, property, birth or other
status.
 Furthermore, no distinction shall be
made on the basis of the political,
jurisdictional or international status of
the country or territory to which a
person belongs, whether it be
independent, trust, non-self-governing
or under any other limitation of
sovereignty.
ARTICLE 3 Everyone has the right to life, liberty and
(life, liberty, security) security of person.
ARTICLE 4 No one shall be held in slavery or servitude;
(slavery/servitude) slavery and the slave trade shall be
prohibited in all their forms.
ARTICLE 5 No one shall be subjected to torture or to
(inhumane cruel, inhuman or degrading treatment or
punishment) punishment.
ARTICLE 6 Everyone has the right to recognition
(recognition as a everywhere as a person before the law.
person)
10
 ARTICLE 7  All are equal before the law and are
(against entitled without any discrimination to
discrimination) equal protection of the law.
 All are entitled to equal protection
against any discrimination in violation of
this Declaration and against any
incitement to such discrimination.
ARTICLE 8 Everyone has the right to an effective
(effective remedies) remedy by the competent national tribunals
for acts violating the fundamental rights
granted him by the constitution or by law.
ARTICLE 9 No one shall be subjected to arbitrary
(arbitrary arrest, detention or exile.
arrest/detention/exile
) (2) This right may not be invoked in the case
ARTICLE 10 Everyone is entitled in full equality to a fair
(impartial tribunal) and public hearing by an independent and
impartial tribunal, in the determination of his
rights and obligations and of any criminal
charge against him.
ARTICLE 11 (1) Everyone charged with a penal offence
(presumption of has the right to be presumed innocent until
innocence) proved guilty according to law in a public
trial at which he has had all the guarantees
(ex post facto law) necessary for his defence.
(2) No one shall be held guilty of any penal
offence on account of any act or omission,
which did not constitute a penal offence,
under national or international law, at the
time when it was committed. Nor shall a
heavier penalty be imposed than the one
that was applicable at the time the penal
offence was committed.
ARTICLE 12  No one shall be subjected to arbitrary
(privacy) interference with his privacy, family,
home or correspondence, nor to
attacks upon his honour and reputation.
 Everyone has the right to the protection
of the law against such interference or
attacks.
ARTICLE 13 (1) Everyone has the right to freedom of
(movement; movement and residence within the borders
residence; travel) of each state.
(2) Everyone has the right to leave any
country, including his own, and to return to
his country.
ARTICLE 14 (1) Everyone has the right to seek and to
(asylum) enjoy in other countries asylum from
persecution.
of prosecutions genuinely arising from non-
political crimes or from acts contrary to the
purposes and principles of the United
Nations.
ARTICLE 15 (1) Everyone has the right to a nationality.
(nationality)
(2) No one shall be arbitrarily deprived of his
nationality nor denied the right to change
his nationality.
ARTICLE 16 (1) Men and women of full age, without any
(marriage) limitation due to race, nationality or religion,
have the right to marry and to found a
family. They are entitled to equal rights as
to marriage, during marriage and at its
dissolution.
(2) Marriage shall be entered into only with
the free and full consent of the intending
spouses.
(3) The family is the natural and
fundamental group unit of society and is
entitled to protection by society and the
State.
11
 ARTICLE 17 (1) Everyone has the right to own property
(property ownership) alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his
property.
ARTICLE 18 Everyone has the right to freedom of
(religion) thought, conscience and religion; this right
includes freedom to change his religion or
belief, and freedom, either alone or in
community with others and in public or
private, to manifest his religion or belief in
teaching, practice, worship and
observance.
ARTICLE 19 Everyone has the right to freedom of
(expression) opinion and expression; this right includes
freedom to hold opinions without
interference and to seek, receive and impart
information and ideas through any media
and regardless of frontiers.
ARTICLE 20 (1) Everyone has the right to freedom of
(assembly and peaceful assembly and association.
association)
(2) No one may be compelled to belong to
an association.
ARTICLE 21 (1) Everyone has the right to take part in the
(public office; access government of his country, directly or
to public service; through freely chosen representatives.
democracy)
(2) Everyone has the right of equal access
to public service in his country.
(3) The will of the people shall be the basis
of the authority of government; this will shall
be expressed in periodic and genuine
elections which shall be by universal and
equal suffrage and shall be held by secret
vote or by equivalent free voting
procedures.
ARTICLE 22 Everyone, as a member of society, has the
(social security) right to social security and is entitled to
realization, through national effort and
international co-operation and in
accordance with the organization and
resources of each State, of the economic,
social and cultural rights indispensable for
his dignity and the free development of his
personality.
ARTICLE 23 (1) Everyone has the right to work, to free
(employment; just choice of employment, to just and
wages; unions) favourable conditions of work and to
protection against unemployment.
(2) Everyone, without any discrimination,
has the right to equal pay for equal work.
(3) Everyone who works has the right to just
and favourable remuneration ensuring for
himself and his family an existence worthy
of human dignity, and supplemented, if
necessary, by other means of social
protection.
(4) Everyone has the right to form and to
join trade unions for the protection of his
interests.
ARTICLE 24 Everyone has the right to rest and leisure,
(rest and leisure) including reasonable limitation of working
hours and periodic holidays with pay.
ARTICLE 25 (1) Everyone has the right to a standard of
(standard of living) living adequate for the health and well-
being of himself and of his family, including
food, clothing, housing and medical care
and necessary social services, and the right
to security in the event of unemployment,
(motherhood; sickness, disability, widowhood, old age or
childhood) other lack of livelihood in circumstances
beyond his control.
(2) Motherhood and childhood are entitled
to special care and assistance. All children,
12
 whether born in or out of wedlock, shall
enjoy the same social protection.
ARTICLE 26 (1) Everyone has the right to education.
(education) Education shall be free, at least in the
elementary and fundamental stages.
Elementary education shall be compulsory.
Technical and professional education shall
be made generally available and higher
education shall be equally accessible to all
on the basis of merit.
(2) Education shall be directed to the full
development of the human personality and
to the strengthening of respect for human
rights and fundamental freedoms. It shall
promote understanding, tolerance and
friendship among all nations, racial or
religious groups, and shall further the
activities of the United Nations for the
maintenance of peace.
(3) Parents have a prior right to choose the
kind of education that shall be given to their
children.
ARTICLE 27 (1) Everyone has the right freely to
(cultural life) participate in the cultural life of the
community, to enjoy the arts and to share in
(intellectual scientific advancement and its benefits.
property) (2) Everyone has the right to the protection
of the moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author.
ARTICLE 28 Everyone is entitled to a social and
(social and international order in which the rights and
international order) freedoms set forth in this Declaration can be
fully realized.
ARTICLE 29 1) Everyone has duties to the community in
which alone the free and full development
of his personality is possible.
(2) In the exercise of his rights and
freedoms, everyone shall be subject only to
such limitations as are determined by law
solely for the purpose of securing due
recognition and respect for the rights and
freedoms of others and of meeting the just
requirements of morality, public order and
the general welfare in a democratic society.
(3) These rights and freedoms may in no
case be exercised contrary to the purposes
and principles of the United Nations.
ARTICLE 30 Nothing in this Declaration may be
interpreted as implying for any State, group
or person any right to engage in any activity
or to perform any act aimed at the
destruction of any of the rights and
freedoms set forth herein.
2. International Covenant on Civil and Political Rights
The ICCPR was entered into force on 23 March 1976. It is divided into
five parts:
Part I = Right to self-determination
Part II = State obligation, undertakings and derogation
Part III = Civil and Political Rights
Part IV = Human Rights Committee
Part V = Interpretation
Part VI = Signature, Ratification, Accession
Parts one to three are summarized below. The discussion is divided
into the article number, basic right involved, and how such right can
be achieved, manifested, exercised or restricted.
PART I
Article 1 All people have the right -by free determination of
(1) to self-determination. their political status
13

Article 1 All people, for their own
(2) ends, freely dispose of
their natural wealth and
resources.
Article 1 State Parties to the
(3) ICCPR shall promote the
realization of the right to
self-determination, and
shall respect such right in
conformity with the UN
Charter.
PART II
Article 2 Each State Party to the
(1) ICCPR has the
undertaking to respect the
rights set in the ICCPR.
Article 2 The undertaking includes
(2) adopting laws and
measures as may be
necessary to give effect to
the rights recognized in
the ICCPR.
Article 2 Other undertakings
(3) include:
-by freely pursuing their
economic, social and
cultural development
-this is without prejudice
to any obligations
arising out of
international economic
cooperation
-in no case may a
person be deprived of
his/her own means of
subsistence
-the State Party has
responsibility towards
the rights of all
individuals within its
territory
-and without distinction
of any kind, e.g. race,
color, sex, language,
religion, political or other
opinion, national or
social origin, property,
birth or other status.
-the undertaking must
be in accordance with
the State’s constitutional
processes
a) To ensure effective
remedy to any person
whose rights are violated,
notwithstanding that the
violation has been
committed by a person
acting in an official
capacity;
b) To ensure that the right
being claimed above is
determined by competent
judicial, administrative or
legislative authorities; and
c) To ensure that the
competent authorities
shall enforce such
remedies when granted.
Article 3 State Parties shall ensure
the equal right of men and
women to the enjoyment
of all civil and political
rights.
Article 4 State Parties may take Subject to the following
(1) measures derogating from conditions:
their obligations under the -in time of public
ICCPR. emergency which
threatens the life of the
nation;
-the existence of such
emergency is officially
proclaimed;
-the derogation must
only be to the extent
strictly required by the
exigencies of the
situation;
-provided that the
measures to be used
are not inconsistent with
14

Article 4 Derogation is not allowed
(2) in Articles 6, 7, 8 (para. 1
and 2), 11, 15, 16 and 18.
Article 4 Any derogation must be
(3) immediately reported to
other State Parties
through the UN Secretary
General.
Article 5 Nothing in the ICCPR may
(1) be interpreted as implying
for any State or any group
to engage in the
destruction of any of the
rights or go beyond the
limitation provided in the
covenant.
Article 5 No restriction or
(2) derogation shall be
allowed on the pretext that
the ICCRP does not
recognize such rights or
that it recognizes them to
a lesser extent.
PART III
Article 6 Every human being has
(1) the inherent right to life.
No one shall be arbitrarily
deprived of his life.
the State’s other Article 6 Sentence of death may be
obligations under (2) imposed only subject to
international law; and the following conditions:
-the measures shall not 1) in countries which have
involve discrimination not abolished death
solely on the ground of penalty;
race, color, sex, 2) for the most serious
language, religion or crimes;
social origin. 3) in accordance with the
law in force at the time of
the commission of the
crime;
Other details that must 4) not contrary to the
be reported: ICCPR; and
-reasons for the 5) only carried out
derogation pursuant to a final
-termination of such judgment rendered by a
derogation competent court.
Article 6 When the deprivation of
(3) life constitutes genocide,
no derogation shall be
allowed from any
obligation assumed under
the Convention on the
Prevention and
Punishment of the Crime
of Genocide.
Article 6 Anyone sentenced to
(4) death shall have the right
to seek pardon or
commutation. Amnesty,
pardon or commutation of
sentence maybe granted
in all cases.
Article 6 No death sentence for
(5) persons below 18 y/o or
for pregnant women.
Article 6 Nothing in Article 6 shall
(6) be invoked to delay or
prevent the abolition of
15
 death penalty. (see -any work or service
Optional Protocol 2 to the which forms part of
ICCPR) normal civil obligations.
Article 7 No one shall be subjected Article 9 Everyone has the right to -no arbitrary arrest or
to (1) liberty and security of detention
-torture person. -deprivation of liberty
-cruel, inhuman or shall be based on such
degrading treatment or grounds and in
punishment accordance with such
-medical or scientific procedure as are
experimentation without established by law
the person’s free consent Article 9 Anyone arrested shall be
Article 8 No one shall be held in Slavery and slave-trade (2) informed, at the time of
(1) slavery. in all their forms shall be arrest, of the reasons for
prohibited. arrest and charges
Article 8 No one shall be held in against him.
(2) servitude. Article 9 Anyone arrested shall be
Article 8 No one shall be required Forced or compulsory (3) brought promptly before a
(3) to perform forced or labor shall not include: judge or other officer
compulsory labor. -imprisonment with hard authorized by law to
labor as part of the exercise judicial power,
punishment for a crime and shall be entitled to
(as sentenced by a trial.
competent court); Article 9 Anyone arrested shall be
-any work or service not (4) entitled to take
referred to above, but proceedings before a
normally required for a court.
person who is under Article 9 Anyone arrested due to an
detention in (5) unlawful arrest or
consequence of a lawful detention shall be
order of court; compensated.
-any service of a military Article 10 Those deprived of liberty
character; (1) shall be treated with
-any service exacted in humanity and dignity.
cases of emergency or Article 10 The accused shall be
calamity threatening the (2) segregated from convicted
life or well-being of the persons, save in
community; and exceptional
circumstances. They shall

16
 be treated appropriately
as unconvicted persons.
Accused juvenile persons
shall be separated from
adults and must be
brought speedily for
adjudication.
Article 10 The penitentiary system
(3) shall be for reformation
and social rehabilitation.
Article 11 No one shall be
imprisoned merely on the
ground that he failed to
fulfill a contractual
obligation.
Article 12 Everyone lawfully within
(1-4) the territory of a State
shall, within that territory,
have the right to liberty of
movement and freedom to
choose residence.
Everyone shall be free to
leave any country,
including his own. No one
shall be arbitrarily
deprived of the right to
enter his own country.
Article 13 An alien lawfully in the
territory of a State Party
maybe expelled only in
pursuant of a decision
reached in accordance
with law. Except for
compelling reasons of
national security, he shall
be allowed to submit the
reasons against his
expulsion.
Article 14 All persons shall be equal The right includes
(1-7) before the courts and -fair and public hearing
tribunals. by a competent,
independent and
impartial tribunal
established by law
-press and public may
be excluded for reasons
of morals, public order,
etc.
-judgment, however,
shall be made public
except where the
interest of juvenile
persons is involved
-to be presumed
Restrictions on this right innocent until proven
-shall be provided by guilty, etc.
law; Article 15 No one shall be held guilty
-are necessary to (1-2) of an offense which, at the
protect national security, time of such commission,
public order, public was not a criminal
health, morals or the offense. Nor a heavier
rights of others; penalty shall be imposed
-are consistent with the than the one that was
other rights recognized applicable at the time
in the ICCPR when the offense was
committed.
Article 16 Everyone shall have the
right to recognition
everywhere as a person
before the law.
Article 17 No one shall be subjected
(1-2) to arbitrary or unlawful
interference with his
privacy, family, home or
correspondence, nor to
unlawful attacks on his
honor and reputation.
17
Article 18 Everyone shall have the
(1-4) right to freedom of
thought, conscience and
religion.
Article 19 Everyone shall have the
(1-3) right to hold opinions
without interference.
Article 20 Any propaganda for war
(1-2) shall be prohibited by law.
Any advocacy of national,
racial or religious hatred
that constitutes incitement
to discrimination, hostility
or violence shall be
prohibited by law.
Article 21 The right of peaceful
assembly shall be
recognized.
-no one shall be subject -necessary in a
to coercion that would democratic society in
impair his freedom to the interests of national
have religion security or public safety,
-freedom to manifest public order and the
religion or beliefs may protection of health or
be subject only to such morals, and rights of
limitations as are others
prescribed by law and Article 22 Everyone shall have the Restrictions:
are necessary to protect (1-3_ right to freedom of -in conformity with the
public safety, order, association with others, law
health or morals or the including the right to form -necessary in a
fundamental rights and and join trade unions for democratic society in
freedoms of others the protection of his the interests of national
-respect liberty of interests. security or public safety,
parents to ensure the public order and the
religious and moral protection of health or
education of their morals, and rights of
children others
Subject to certain -lawful restrictions may
restrictions: be placed on members
-for the respect of the of the armed forces and
rights or reputations of police in their exercise
others of this right
-for the protection of Article 23 The right of men and Free and full consent of
national security or (1-4) women of marriageable the intending spouses is
public order, public age to marry and to found necessary.
health or morals a family shall be
recognized.
Article 24 Every child shall have, Right includes
(1-3) without any discrimination -immediate registration
as to race, color, sex, after birth
language, religion, -to acquire nationality
national or social origin,
property or birth, the right
to such measures of
Restrictions: protection as are required
-in conformity with the by his status as a minor,
law on the part of his family,
society and the State.
18
 Article 25 Right to take part in the treaty. Everyone is entitled to the same rights without discrimination of
conduct of public affairs, any kind.
directly or through freely
chosen representatives; to Article 3
vote and to be elected; to The States undertake to ensure the equal right of men and women to the
have access to public
enjoyment of all rights in this treaty.
service in his country, on
general terms of equality. Article 4
Article 26 All persons are equal
before the law and are Limitations may be placed on these rights only if compatible with the
entitled without any nature of these rights and solely for the purpose of promoting the general
discrimination to the equal welfare in a democratic society.
protection of the law.
Article 5
Article 27 In those States in which
ethnic, religious or No person, group or government has the right to destroy any of these
linguistic minorities exist, rights.
persons belonging to such
minorities shall not be Article 6
denied the right, in Everyone has the right to work, including the right to gain one's living at
community with the other
work that is freely chosen and accepted.
members of their group, to
enjoy their own culture, to Article 7
profess and practise their
own religion, or to use Everyone has the right to just conditions of work; fair wages ensuring a
their own language. decent living for himself and his family; equal pay for equal work; safe
and healthy working conditions; equal opportunity for everyone to be
3. International Covenant on Economic, Social and Cultural promoted; rest and leisure.
Rights
Article 8
Everyone has the right to form and join trade unions, the right to strike.
Article 1
No restrictions may be placed on the exercise of this right other than
All peoples have the right of self-determination, including the right to
those prescribed by law and which are necessary in a democratic society
determine their political status and freely pursue their economic, social
in the interests of national security or public order or for the protection
and cultural development.
of the rights and freedoms of others
Article 2
Article 9
Each State Party undertakes to take steps to the maximum of its available
Everyone has the right to social security, including social insurance.
resources to achieve progressively the full realization of the rights in this
Article 10

19
Protection and assistance should be accorded to the family.
Marriage must be entered into with the free consent of both spouses.
Special protection should be provided to mothers.
Special measures should be taken on behalf of children, without
discrimination. Children and youth should be protected from economic
exploitation.
Their employment in dangerous or harmful work should be prohibited.
There should be age limits below which child labor should be
prohibited.
Article 11
Everyone has the right to an adequate standard of living for himself and
his family, including adequate food, clothing and housing.
Everyone has the right to be free from hunger. As such countries will
take improve methods of production and distribution of food and insure
equitable distribution of world food supplies IN RELATION TO NEED.
Article 12
Everyone has the right to the enjoyment of the highest attainable
standard of physical and mental health.
As such there will be reduction of still birth rates, improvement of
INDUSTRIAL HYGIENE, prevention of occupational diseases and assure
medical services.
Article 13
Everyone has the right to education. Primary education should be
compulsory and free to all.
Secondary education in its different forms, including technical and
vocational secondary education, shall be made generally available
Higher education shall be made equally accessible to all
Article 14
Those States where compulsory, free primary education is not available
to all should work out a plan to provide such education.
Article 15
Everyone has the right to take part in cultural life; enjoy the benefits of
scientific progress. The right To enjoy the benefits of scientific progress
and its applications;
PART IV
Article 17
The States Parties to the present Covenant shall furnish their reports in
stages, in accordance with a programme to be established by the
Economic and Social Council within one year of the entry into force of
the present Covenant
Article 20
The States Parties to the present Covenant and the specialized agencies
concerned may submit comments to the Economic and Social Council on
any general recommendation
Article 22
The Economic and Social Council may bring to the attention of other
organs of the United Nations, any matters arising out of the reports
which may assist such bodies in deciding, each within its field of
competence, on the advisability of international measures likely to
contribute to the effective progressive implementation
Article 24
Nothing in the present Covenant shall be interpreted as impairing the
provisions of the Charter of the United Nations and of the constitutions
of the specialized agencies
20
Article 27
The present Covenant shall enter into force three months after the date
of the deposit with the Secretary-General of the United Nations
4. ILO Declaration on Fundamental Principles and Rights at
Work (1998)
BACKGROUND OF THE ILO DECLARATION
 Although globalization is a factor of economic growth, and
economic growth is a prerequisite for social progress, the fact
remains that it is not in itself enough to guarantee that progress. It
must be accompanied by a certain number of social ground
rules founded on common values to enable all those involved
to claim their fair share of the wealth they have helped to generate.
 The aim of the Declaration is to reconcile the desire to stimulate
national efforts to ensure that social progress goes hand in hand
with economic progress and the need to respect the diversity of
circumstances, possibilities and preferences of individual
countries.
ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND
RIGHTS AT WORK
Who are bound?
 All Members, even if they have not ratified the Conventions
in question, have an obligation, …, to respect, to promote and to
realize, in good faith …, the principles concerning the fundamental
rights.
What are the fundamental rights? [FACEd]
1. Freedom of association and the effective recognition of the
right to collective bargaining;
2. The elimination of all forms of forced or compulsory labor;
3. The effective abolition of child labor; and,
4. The elimination of discrimination in respect of employment
and occupation.
How is the Declaration given full effect?
 By promotional follow-up
FOLLOW-UP TO THE DECLARATION
What is the overall purpose of the follow-up?
 To encourage the efforts made by the Members of the
Organization to promote the fundamental principles and rights
enshrined in the Constitution of the ILO and the Declaration of
Philadelphia and reaffirmed in this Declaration
Nature of the objective?
 Strictly promotional
 Not a substitute for the established supervisory mechanisms
What are the two (2) aspects of the follow-up?
1. Annual follow-up, concerning non-ratified fundamental
Conventions
2. Global Report
ANNUAL FOLLOW-UP CONCERNING NON-RATIFIED
FUNDAMENTAL CONVENTIONS
What is the purpose of the annual follow-up?
 To provide an opportunity to review, each year, by means of
simplified procedures, the efforts made in accordance with the
Declaration by Members which have not yet ratified all the
fundamental Conventions
What is the scope of the annual follow-up?
 It will cover the four (4) categories of fundamental principles and
rights specified in the Declaration [FACEd]
What are the modalities?
 Report forms
o Drawn up so as to obtain information from governments
which have not ratified one or more of the fundamental
Conventions, on any changes which may have taken
place in their law and practice
o Compiled by the Office
o Reviewed by the Governing Body
21
 GLOBAL REPORT ON FUNDAMENTAL PRINCIPLES AND
RIGHTS AT WORK

What is the purpose and scope of the Global Report?

 To provide a dynamic global picture relating to the four
(4) categories of fundamental principles and rights at work
 To serve as a basis for assessing the effectiveness of the
assistance provided by the Organization
 To determine priorities for the following period
o In the form of ACTION PLANS for technical cooperation
designed in particular to mobilize the internal and external
resources necessary to carry them out

What are the modalities?

 Report forms
o Drawn up under the responsibility of the Director-General
on the basis of official information, or information gathered
and assessed in accordance with established procedures

States which have not ratified Members which have ratified

the fundamental Conventions the Conventions concerned
BASIS
Based on the findings of the Based on reports as dealt with
annual follow-up pursuant to article 22 of the
constitution

Will also refer to the experience

gained from technical
cooperation and other relevant
activities of the ILO

 Submitted to the Conference for a recurrent discussion on the

strategic objective of fundamental rights at work based on the
modalities agreed by the Governing Body
 Conference will then draw conclusions from the discussion on all
available ILO means of action

22
 PAVING THE WAY FOR THE RECOGNITION OF BUSINESS
HUMAN RIGHTS RESPONSIBILITIES
1. P. Redmond, Transnational Enterprise and Human Rights:
Options for Standard Setting and Compliance, The
International Lawyer, Vol. 37, No. 1
2. UN Global Compact: Introduction
UN GLOBAL COMPACT: INTRODUCTION
What is the UN Global Compact?
 UN initiative to encourage businesses to adopt sustainable and
socially responsible policies, and to report on their
implementation.
 It is a principle-based framework for business.
What areas are covered by the framework?
1. Human Rights
2. Labor
3. Environment
4. Anti-Corruption
Where are the Ten Principles derived from?
1. Universal Declaration of Human Rights
2. International Labour Organization’s Declaration on
Fundamental Principles and Rights at Work
3. Rio Declaration on Environment and Development
4. United Nations Convention Against Corruption
What are the Ten Principles?
Human Rights
Principle 1: Businesses should support and respect the protection of
internationally proclaimed human rights
 This means seeing the opportunity to take voluntary action to
make a positive contribution towards the protection and fulfillment
of human rights whether through core business, strategic social
investment/philanthropy, public policy engagement/advocacy,
and/or partnership and other collective action.
Principle 2: Make sure that they are not complicit in human rights
abuses
 The risk of an allegation of complicity is reduced if a company has
a systematic management approach to human rights, including
due diligence processes that cover the entity’s business
relationships.
Labour
Principle 3: Businesses should uphold the freedom of association and
the effective recognition of the right to collective bargaining
 To be able to make a free decision, workers need a climate free
of violence, pressure, fear and threats.
Principle 4: The elimination of all forms of forced and compulsory
labour
 By right, labour should be freely given and employees should be
free to leave in accordance with established rules.
Principle 5: The effective abolition of child labour
 Child labour should not be confused with youth employment or
student work.
 Child labour is a form of exploitation that is a violation of a human
right and it is recognized and defined by international instruments.
Principle 6: The elimination of discrimination in respect of employment
and occupation.
 Employees who experience discrimination at work are denied
opportunities and have their basic human rights infringed.
 Most commonly, discrimination is indirect and arises where rules
or practices have the appearance of neutrality but in fact lead to
exclusions.
Environment
Principle 7: Businesses should support a precautionary approach to
environmental challenges
 Precaution involves the systematic application of risk assessment,
risk management and risk communication.
Principle 8: Undertake initiatives to promote greater environmental
responsibility
 Business and industry should increase self-regulation, guided by
appropriate codes, charters and initiatives integrated into all
elements of business planning and decision-making, and fostering
openness and dialogue with employees and the public.
Principle 9: Encourage the development and diffusion of
environmentally friendly technologies
23
 Where production processes that do not use resources efficiently
generate residues and discharge wastes, environmentally sound
technologies can be applied to reduce day-to-day operating
inefficiencies, emissions of environmental contaminants, worker
exposure to hazardous materials and risks of environmental
disasters.
Anti-Corruption
Principle 10: Businesses should work against corruption in all its
forms, including extortion and bribery.
 Participants should not only avoid bribery, extortion and other
forms of corruption, but also to proactively develop policies and
concrete programmes to address corruption internally and within
their supply chains.
3. "Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to
Human Rights, U.N. Doc.E/CN.4/Sub.2/2003/12/Rev.2 (2003)"
 Aug. 13, 2003  The UN Sub-Commission on the Promotion and
Protection of Human Rights approved the “Norms on the
Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights. This
represents a landmark step in holding businesses accountable for
their human rights abuses.
o The Norms are the first non-voluntary initiative accepted
at the international level.
 Some corporations make real efforts to achieve international
standards by improving working conditions and raising local living
conditions.
 But some transnational corporations do not respect minimum
international human rights standards, and can thus be implicated
in abuses such as:
o Employing child laborers;
o Discriminating against certain groups of employees;
o Failing to provide safe and healthy working conditions;
o Attempting to repress independent trade unions;
o Discouraging the right to bargain collectively;
o Dumping toxic wastes; etc.
 Still, there is an increasing reason to believe that greater respect
for human rights by companies leads to greater sustainability in
emerging markets and better business performance. For
example:
o Observance of human rights aid business by protecting
and maintaining their corporate reputation and creating a
stable and peaceful society in which they can prosper and
attract the best and brightest employees;
o Consumers have demonstrated that they are willing to
pay attention to standards and practices used by a
business that observes human rights and may even
boycott products that are produced in violation of human
rights standards.
o A growing proportion of investors is seeking to purchase
shares in socially responsible companies.
Drafting History of the Norms
 In a Sub-Commission Resolution in 1997, El-Hadji Guissé was
asked to present a working document (in 1998) on the issue of
human rights and transnational corporations. In response to this
paper, the Sub-Commission decided "to establish, for a three-year
period, a sessional working group of the Sub-Commission,
composed of five of its members, taking into account the principle
of equitable geographic distribution, to examine the working
methods and activities of transnational corporations.
 In 1999, David Weissbrodt was asked to prepare a draft code of
conduct for transnational corporations.
 The three-year period had lapsed but the working group had not
completed its tasks. Thus, the Sub-Commission decided in 2001
to extend the mandate for another three years.
 In 2002, the new draft of the Norms consisted of eighteen
fundamental human rights principles with regard to the activities
of transnational corporations and other business enterprises,
including provisions on implementation and a section on
definitions. In the same year, the Sub-Commission asked that the
Norms and Commentary be disseminated as widely as possible,
so as to encourage governments, intergovernmental
organizations, nongovernmental organizations, transnational
corporations, other business enterprises, unions, and other
24
 interested parties to submit suggestions, observations, or
recommendations.
Issues Raised in Preparing the Human Rights Norms for
Businesses
 Several issues arose during the drafting process of the norms:
o How to define transnational corporations
o Whether to include domestic enterprises and, if so, how
to distinguish between domestic and international
businesses
o How to distinguish between larger and smaller
businesses so as to avoid a one-size-fits-all approach
o What human rights concepts to include
o How to characterize the legal status of the Norms after
their adoption by the Sub-Commission
Defining Transnational Corporation
 Generally, the term "transnational corporation" refers to a
corporation with affiliated business operations in more than one
country.
 A more specific definition deems an enterprise a transnational
corporation if it has a certain minimum size, if it owns or controls
production or service plants outside its home state and if it
incorporates these plants into a unified corporation strategy.
 A transnational corporation is "a cluster of corporations of diverse
nationality joined together by ties of common ownership and
responsive to a common management strategy.
 Another term commonly used to describe businesses that operate
in more than one country is "multinational enterprise" (MNE).
One author, in distinguishing between an MNE and a transnational
corporation, defines an MNE as an entity "composed of free-
standing units replicated in different countries," and a
transnational corporation as consisting of vertically integrated
units that produce goods and provide services in more than one
country.
 The draft UN Code of Conduct on Transnational Corporations
defines a transnational corporation as: an enterprise, whether
of public, private or mixed ownership, comprising entities in two or
more countries, regardless of the legal form and fields of activity
of these entities, which operates under a system of decision-
making, permitting coherent policies and a common strategy
through one or more decision-making centers, in which the entities
are so linked, by ownership or otherwise, that one or more of them
[may be able to] exercise a significant influence over the activities
of others, and, in particular, to share knowledge, resources and
responsibilities with the others.
 The Norms specifically define a "transnational corporation" as
"an economic entity operating in more than one country or a
cluster of economic entities operating in two or more countries-
whatever their legal form, whether in their home country or country
of activity, and whether taken individually or collectively.
o The Norms, however, do not limit their application to
transnational corporations but also include other
business enterprises.
Distinguishing Between Domestic and International Businesses
 Draft UN Code of Conduct on Transnational Corporations states
that the code was not intended to introduce differences
between domestic and international enterprises but that
"wherever the provisions are relevant to both, transnational
corporations and domestic enterprises should be subject to the
same expectations in regard to their conduct."
 Also, the ILO Tripartite Declaration contains a similar statement:
o The principles laid down in this Declaration do not aim at
introducing or maintaining inequalities of treatment
between multinational and national enterprises. They
reflect good practice for all. Multinational and national
enterprises, wherever the principles of this Declaration
are relevant to both, should be subject to the same
expectations in respect of their conduct in general and
their social practices in particular.
 The basic principle of the Norms is that they should be respected
by all businesses. Since all businesses are essentially competitors
in the global market, making distinctions between the standards
that should apply to transnational corporations and those that
should apply to smaller domestic firms could prove difficult.
Distinguishing Between Larger and Smaller Corporations
 The Norms establish a system of relative application based on the
strength, size, and other varying factors of a business that bear
25
 on its ability to affect human rights. This nuanced approach does
not lower the standards for any business; it simply ensures that
those with greater power and influence will also have greater
responsibilities.
 The degrees of responsibility suggest that principles for
businesses should not just address issues for which a business
assumes obvious direct responsibility, such as corporate labor
standards, but should also include areas in which it can assume
further responsibility, through practices such as outsourcing of
products and services. In addition, such principles should address
situations in which at least larger businesses can influence
governmental actions, through, for example, encouraging the
government to improve the human rights environment of a
community.
 The Norms recognize that the larger the resources of
transnational and other businesses, the more opportunities they
may have to assert influence. Accordingly, larger businesses,
which generally engage in broader activities and enjoy more
influence, have greater responsibility for promoting and
protecting human rights. Smaller enterprises may not be able to
exercise the same amount of influence as larger ones but can still
be accountable to similar human rights standards, especially
those directly affecting employees and local community
conditions. Hence, by taking a flexible approach that holds
businesses responsible according to their respective spheres of
activity and influence, and by including all businesses, the Norms
recognize that all can make a positive contribution through the
development, adoption, and implementation of human rights
principles.
Content of the Norms
 The Norms reflect and restate a wide range of human rights, labor,
humanitarian, environmental, consumer protection, and
anticorruption legal principles, but also incorporate best practices
for corporate social responsibility. Further, the Norms do not
endeavor to freeze standards by drawing on past drafting efforts
and present practices; they incorporate and encourage further
evolution.
 The Norms and Commentary provide for the right to equality of
opportunity and treatment; the right to security of persons; the
rights of workers, including a safe and healthy work environment
and the fight to collective bargaining; respect for international,
national, and local laws and the rule of law; a balanced approach
to intellectual property rights and responsibilities; transparency
and avoidance of corruption; respect for the right to health, as well
as other economic, social, and cultural rights; other civil and
political rights, such as freedom of movement; consumer
protection; and environmental protection.
The Non-voluntary Nature of the Guidelines
 The Norms as adopted are not a voluntary initiative of
corporate social responsibility. The many implementation
provisions show that they amount to more than aspirational
statements of desired conduct.
 The Sub-Commission's Resolution 2003/16 called for the creation
of a mechanism for NGOs and others to submit information about
businesses that are not meeting the minimum standards of the
Norms. The non-voluntary nature of the Norms therefore goes
beyond the voluntary guidelines found in the UN Global Compact,
the ILO Tripartite Declaration, and the OECD Guidelines for
Multinational Enterprises.
o Although not voluntary, the Norms are not a treaty,
either.
 The legal authority of the Norms derives principally from their
sources in treaties and customary international law, as a
restatement of international legal principles applicable to
companies.
o Hence, the legal authority of the Norms now derives
principally from their sources in international law as a
restatement of legal principles applicable to companies,
but they have room to become more binding in the future.
The level of adoption within the United Nations, further
refinement of implementation methods by the working
group, and increasingly broad acceptance of the Norms
will continue to play an important role in the development
of their binding nature.
Implementation
 Generally, the Norms first discuss how they can be implemented
by businesses themselves, and then move on to how
26
 intergovernmental bodies (such as the United Nations), states,
unions, and others can play a role in implementation.
Implementation of Business Enterprises
 It is recognized that human rights obligations will be most effective
if internalized as a matter of company policy and practice. The
Norms call upon businesses to adopt their substance as the
minimum standards for the companies' own codes of
conduct or internal rules of operation and to adopt
mechanisms for creating accountability within the company.
 Also, these adopted internal rules should be disseminated.
Dissemination requires businesses to ensure that the Norms are
communicated in a manner that enables all relevant stakeholders
to understand their meaning. They should train managers and
representatives in practices relevant to the Norms and inform all
persons and entities that may be affected by dangerous conditions
produced by the company.
 Moreover, the Norms also address implementation issues with
regard to each business’ supply chain:
o Businesses are to apply and incorporate the Norms into
contracts with their business partners, and to ensure that
they do business only with others who observe similar
standards.
o Business should conduct internal monitoring and to
ensure that monitoring is transparent by disclosing the
workplaces observed, remediation 
 efforts undertaken,
and other results of such scrutiny
o Implementing the Norms also requires making sure that
businesses establish legitimate and confidential avenues
for workers to file complaints regarding violations, and
that they refrain from retaliating against workers that do
make complaints.
o Businesses are called on to make periodic reports and to
take other measures to implement the Norms fully.
The United Nations
 The Norms can be used by human rights treaty bodies in the
creation of additional reporting requirements for states.
 They could also be used by most of the human rights treaty bodies
as the basis for their efforts to draft general comments and
recommendations relevant to the activities of business
enterprises.
 The treaty bodies could use such a general comment and thus the
Norms in preparing their country conclusions and
recommendations on states' compliance with already existing
treaty provisions.
 Special rapporteurs or other thematic mechanisms of the UN
Commission on Human Rights could use the Norms to raise
concerns about actions by business enterprises within their
respective mandates.
Other Intergovernmental Organizations
 Intergovernmental bodies like the ILO and the OECD may find the
Norms useful in developing, amplifying, or interpreting the
standards they apply to businesses.
 The World Bank and its constituent institutions have adopted
standards for loans relating to their impact on indigenous peoples,
the environment, the transfer of populations, sustainable
development, and gender equality. The Norms might be helpful in
amplifying and interpreting those standards, as well as in
encouraging the Bank to adopt additional standards.

 Regional human rights commissions and courts should make use
of the Norms as well. For example, two decisions of the European
Court of Human Rights involving corporate environmental
pollution negatively affecting private and family life under Article 8
of the European Convention on Human Rights have found states
liable for not adopting regulations and pursuing inspections to
prevent the corporate misconduct.
o In such situations, regional courts could refer to the
Norms in determining states' obligations and thus
encourage states to monitor the conduct of businesses
within their borders.
Unions
 The Commentary encourages trade unions to use the Norms as a
basis for negotiating agreements with businesses and monitoring
compliance with them.
27
Nongovernmental Organizations
 It is encouraged that NGOs use the Norms as the basis for their
expectations of business conduct and for monitoring the
compliance of businesses.
Investors, Lenders, and Consumers
 Monitoring could be performed by using the Norms as the basis
for benchmarks of ethical investment initiatives and other
compliance benchmarks.
Business Groups or Trade Associations
 The Norms call on industry groups to include the Norms in their
monitoring. Industry groups might adopt the Norms or a suitable
modification of them as their own code of conduct for their
members.
 The Norms could also be used by a consortium of business
enterprises as a prerequisite to membership, or to underpin a
labeling system for products and services meeting specific
standards so that ethical purchasing patterns can be promoted.
States
 The Norms call upon states to participate in their implementation.
 States are asked to use the Norms to establish and reinforce the
necessary legal or administrative framework as regards the
activities of each company with a statutory seat in their country,
under whose law it was incorporated or formed, where it has its
central administration, where it has its principal place of business,
or where it is doing business.
 The Norms also encourage their application by national courts
in connection with the determination of damages and
criminal sanctions, and in other respects, as established by
national and international law.
4. Mandate of the Special Representative of the Secretary-
General on the issue of human rights and transnational
corporations and other business enterprises, UN Human
Rights Council Resolution 8/7 (2008)
Human Rights Council
Resolution 8/7
 The obligation and the primary responsibility to promote and
protect human rights and fundamental freedoms lie with the
State.
 Transnational corporations and other business
enterprises have a responsibility to respect human rights.
 Proper regulation, including through national legislation, of
transnational corporations and other business enterprises,
and their responsible operation can contribute to the
promotion, protection and fulfillment of and respect for human
rights and assist in channeling the benefits of business
towards contributing to the enjoyment of human rights and
fundamental freedoms.
 The Special Representative identified a framework based on
three overarching principles of
o the State duty to protect all human rights from abuses
by, or involving, transnational corporations and other
business enterprises,
o the corporate responsibility to respect all human
rights, and
o the need for access to effective remedies, including
through appropriate judicial or non-judicial
mechanisms
 The mandate of the Special Representative of the Secretary-
General on the issue of human rights and transnational
corporations and other business enterprises is extended for
a period of three years.
 The Special Representative is requested to:
o To provide recommendations to strengthen the
fulfilment of the duty of the State to protect,
including through international cooperation;
o To elaborate further on the scope and content of the
corporate responsibility and to provide concrete
guidance to business and other stakeholders;
o To make recommendations, at the national, regional
and international level, for enhancing access to
effective remedies;
o To integrate a gender perspective throughout his
work and to give special attention to persons
28
 belonging to vulnerable groups, in particular
children;
o Identify, exchange and promote best practices and
lessons learned, in coordination with the efforts of the
human rights working group of the Global
Compact;
o To work in close coordination with United Nations and
other relevant international bodies
o To promote the framework and to continue to
consult on the issues covered by the mandate on an
ongoing basis
o To report annually to the Council and the General
Assembly;
 The Office of the United Nations High Commissioner for
Human Rights is requested to organize, within the framework
of the Council, a two-day consultation bringing together the
Special Representative of the Secretary-General, States,
business representatives and all relevant stakeholders,
including non-governmental organizations and
representatives of victims of corporate abuse, in order to
discuss ways and means to operationalize the framework,
and to submit a report on the meeting to the Council, in
accordance with its programme of work;
5. UN Human Rights Council Res. 17/4, U.N. Doc. A/RES/17/4
(July 06, 2011)
The Human Rights Council:
I. Stresses:
 that the obligation and the primary responsibility to promote
and protect human rights and fundamental freedoms lie with
the State;
II. Emphasizes:
 that transnational corporations and other business
enterprises have a responsibility to respect human rights;
III. Recognizes:
 that proper regulation, including through national legislation,
of transnational corporations and other business enterprises
and their responsible operation can contribute to the
promotion, protection and fulfilment of and respect for human
rights and assist in channelling the benefits of business
towards contributing to the enjoyment of human rights and
fundamental freedoms;
 importance of building the capacity of all actors to better
manage challenges in the area of business and human rights
1. Welcomes the work and contributions of the Special Representative
of the Secretary-General on human rights and transnational
corporations and other business enterprises, and endorses the
Guiding Principles on Business and Human Rights: Implementing
the United Nations “Protect, Respect and Remedy” Framework,
as annexed to the report of the Special Representative
2. Commends the Special Representative for developing and raising
awareness about the Framework based on three overarching
principles of the duty of the State to protect against human rights
abuses by, or involving, transnational corporations and other business
enterprises, the corporate responsibility to respect all human rights,
and the need for access to effective remedies, including through
appropriate judicial or non-judicial mechanisms
3. Emphasizes the importance of multi-stakeholder dialogue and
analysis to maintain and build on the results achieved to date and to
inform further deliberations of the Human Rights Council on business
and human rights
4. Decides to establish a Working Group on the issue of human rights
and transnational corporations and other business enterprises,
consisting of five independent experts, of balanced geographical
representation, for a period of three years, to be appointed by the
Human Rights Council at its eighteenth session, and requests the
Working Group:
(a) To promote the effective and comprehensive
dissemination and implementation of the Guiding Principles;
(b) To identify, exchange and promote good practices and
lessons learned on the implementation of the Guiding Principles and
to assess and make recommendations thereon and, in that context, to
seek and receive information from all relevant sources, including
Governments, transnational corporations and other business
enterprises, national human rights institutions, civil society and rights-
holders;
29
 (c) To provide support for efforts to promote capacity-
building and the use of the Guiding Principles, as well as, upon
request, to provide advice and recommendations regarding the
development of domestic legislation and policies relating to
business and human rights;
(d) To conduct country visits and to respond promptly to
invitations from States;
(e) To continue to explore options and make
recommendations at the national, regional and international
levels for enhancing access to effective remedies available to those
whose human rights are affected by corporate activities, including
those in conflict areas;
(f) To integrate a gender perspective throughout the work of
the mandate and to give special attention to persons living in
vulnerable situations, in particular children;
(g) To work in close cooperation and coordination with
other relevant special procedures of the Human Rights Council,
relevant United Nations and other international bodies, the treaty
bodies and regional human rights organizations;
(h) To develop a regular dialogue and discuss possible
areas of cooperation with Governments and all relevant actors,
including relevant United Nations bodies, specialized agencies, funds
and programmes, in particular the Office of the United Nations High
Commissioner for Human Rights, the Global Compact, the
International Labour Organization, the World Bank and its
International Finance Corporation, the United Nations Development
Programme and the International Organization for Migration, as well
as transnational corporations and other business enterprises, national
human rights institutions, representatives of indigenous peoples, civil
society organizations and other regional and subregional international
organizations;
(i) To guide the work of the Forum on Business and Human
Rights established pursuant to paragraph 12 below;
(j) To report annually to the Human Rights Council and the
General Assembly;
7. Encourages all Governments, relevant United Nations agencies,
funds and programmes, treaty bodies, civil society actors, including
non-governmental organizations, as well as the private sector to
cooperate fully with the Working Group in the fulfilment of its
mandate by, inter alia, responding favourably to visit requests by the
Working Group;
8. Requests the Secretary-General to prepare a report on how the
United Nations system as a whole, including programmes and funds
and specialized agencies, can contribute to the advancement of the
business and human rights agenda and the dissemination and
implementation of the Guiding Principles, addressing in particular
how capacity-building of all relevant actors to this end can best be
addressed within the United Nations system, to be presented to the
Human Rights Council at its twenty-first session;
9. Decides to establish a Forum on Business and Human Rights
under the guidance of the Working Group to discuss trends and
challenges in the implementation of the Guiding Principles and
promote dialogue and cooperation on issues linked to business and
human rights, including challenges faced in particular sectors,
operational environments or in relation to specific rights or groups, as
well as identifying good practices;
10. Also decides that the Forum shall be open to the participation
of States, United Nations mechanisms, bodies and specialized
agencies, funds and programmes, intergovernmental organizations,
regional organizations and mechanisms in the field of human rights,
national human rights institutions and other relevant bodies,
transnational corporations and other business enterprises,
business associations, labour unions, academics and experts in the
field of business and human rights, representatives of indigenous
peoples and non-governmental organizations in consultative status
with the Economic and Social Council; the Forum shall also be open
to other non-governmental organizations whose aims and
purposes are in conformity with the spirit, purposes and principles
of the Charter of the United Nations, including affected individuals and
groups, based on arrangements, including Economic and Social
Council resolution 1996/31 of 25 July 1996, and practices observed
by the Commission on Human Rights, through an open and
transparent accreditation procedure in accordance with the Rules of
Procedure of the Human Rights Council
30
11. Requests the President of the Human Rights Council to appoint
for each session, on the basis of regional rotation, and in consultation
with regional groups, a chairperson of the Forum, nominated by
members and observers of the Council; the chairperson serving in
his/her personal capacity shall be responsible for the preparation of a
summary of the discussion of the Forum, to be made available to the
Working Group and all other participants of the Forum
12. Requests the Secretary-General and the High Commissioner to
provide all the necessary support to facilitate, in a transparent
manner, the convening of the Forum and the participation of relevant
stakeholders from all regions in its meetings, giving particular attention
to ensuring participation of affected individuals and communities
6. UN Human Rights Council Res. 26/L.1, UN. Doc. A/RES/26/L.1
(June 23, 2014)
Promotion and protection of all human rights, civil, political,
economic, social and cultural rights, including the right to
development
[UN. Doc. A/RES/26/L.1 (June 23, 2014)]
“Human rights and transnational corporations and other
business enterprises”
 There is an established an authoritative framework to prevent
and address adverse human rights risks and impacts of
business activities, based on the three pillars of the United
Nations “Protect, Respect and Remedy” framework.
 The obligation and the primary responsibility to promote and
protect human rights and fundamental freedoms lie with the
State. But, transnational corporations and other business
enterprises have a responsibility to respect human rights.
 Responsible operation by these corporations can contribute
to the promotion, protection and fulfilment of and respect for
human rights and assist in channelling the benefits of
business towards contributing to the enjoyment of human
rights and fundamental freedoms.
 There should be further rfforts to bridge governance gaps
because of weak national legislation and implementation
amidst the negative impact of globalization
 Civil Societies like NGOs have valuable role in promoting the
implementation of the Guiding Principles and accountability
for business-related human rights abuses and in raising
awareness of the human rights impacts and risks of some
business enterprises and activities.
 Working Group can:
1. Work on the issue of human rights and transnational
corporations and other business enterprises in the
fulfilment of its mandate, (eg. discuss challenges and
lessons learned from implementing the guidelines)
2. Build a database of national action plans and other
relevant data on global progress in the implementation of
the Guiding Principles
3. Develop guidance for the development and
implementation of effective national action plans.
4. Identify and promote best practices in the national
implementation of the Guiding Principles
5. Collaborate closely with relevant United Nations bodies,
including the treaty bodies and the special procedures.
 Stakeholder dialogue and analysis is important to maintain
and build on the results achieved to date and to prevent
abuses.
7. 2014 Report of the UN Working Group, U.N. Doc. A/HRC/26/25
(separate PDF)
31
8. M. Wright and A. Lehr, Business Recognition of Human
Rights: Global Patterns, Regional and Sectoral Variations
(2006)
Recognition of Labor Rights
● Labor rights enjoy greater business recognition than any other
human rights.
o The most widely recognized labor right is non-
discrimination – by 87 percent of the companies
included in the study. It is followed by the right to a
safe and healthy work environment, freedom of
association and the right to collective bargaining,
the prohibition on forced labor, and the prohibition
on child labor.
● European and North American businesses lead in their
recognition of labor rights. Companies in the Asia & Pacific
region follow closely behind the average. Latin American firms
trail in their recognition of almost all labor rights – the most
significant lags being in the areas of nondiscrimination, the
abolition of forced and child labor, and the right to family life.
● At a rate of 56 percent, Retail & Consumer Products firms lead
in their recognition of the right to a minimum wage, exceeding
the overall sample average by 20 percent.
● At 37 percent, Financial Service firms lead in recognizing the
right to a family life – a rate almost double that of many
sectors.
● Infrastructure and Utility companies lag in their recognition of
numerous rights: the prohibitions against forced and child
labor, the right to a minimum wage, the right to rest and leisure,
and the right to family life – with recognition reaching as low
as 11 percent for some rights.
● Financial Services significantly trail in their recognition of the
prohibitions against forced and child labor, at 20 percent less
than the average of other sectors.
Recognition of Non-Labor Rights
 Recognition of non-labor rights is less prevalent across the
board.
 At just under 20 percent, the right to privacy receives
the widest support by companies, followed by security
of the person, including freedom from torture and
cruel, inhuman, or degrading treatment.
 North American and European firms lead in their recognition
of the right to privacy and security of the person. By sector,
Extractives and Retail & Consumer Products firms recognize
security related rights at slightly higher rates than other
sectors. Information Technology (IT) and Retail companies
recognize the right to privacy more than other sectors, while
Extractives, Financial Services, and Pharmaceutical and
Chemical companies stand out for their recognition of the right
to development.
 Company policies exhibit greater concern for the right
to privacy than do the collective initiatives and SRI
indices.
 In part because of the sectors they represent, the
collective initiatives we examined place a greater
emphasis on freedom of movement and minority
rights to culture. The manufacturing industry
initiatives focus more on traditional labor rights,
whereas the extractive sector initiatives place greater
stress on indigenous rights and community relations.
 The SRI indices exhibit a particular concern for
indigenous rights, including the right to cultural life,
the benefits of scientific progress, and protection of
authorial interests. Some SRI indices also show
strong support for the right to development.
 Some rights, such as the right to freedom of thought,
conscience and religion, and the right to seek asylum, receive
little or no recognition from the company policies, collective
initiatives, or SRI indices.
 The companies strongly emphasize their philanthropic
contributions in areas covered by economic, social and
cultural rights. Many SRI indices use company philanthropic
activities as an investment screen. In contrast, the collective
32
 initiatives we examined have no requirements that companies
conduct philanthropic activities.
Accountability & External Engagement
 The company policies and practices, collective initiatives, and
SRI indices all address human rights in reporting. However,
the manner in which individual companies report varies
widely. In some cases the information is buried in complex
websites, thereby limiting the effectiveness of reporting for
internal as well as external purposes. Furthermore, the use of
external auditors or assurance processes to verify reported
information is strikingly low. Of the companies employing
external verification methods, most are European.
 The inclusion of some human rights standards in supply chain
management is a common feature of company policies,
collective initiatives, and SRI indices. Policies vary widely,
however. Some require the entire supply chain to comply with
the same broad range of human rights as the company itself.
Others only hold first tier suppliers to such standards. Some
only require suppliers to adopt a limited number of rights, most
often the prohibitions on child and forced labor.
 North American and European companies lead in their
inclusion of human rights standards in supply chain
management – two-thirds of the U.S. firms in the sample, and
roughly 60 percent of the Europeans. Asia & Pacific and Latin
American companies trail by more than 20 percent. Retail &
Consumer Products firms lead in this regard by as much as
35 percent over other sectors.
 The SRI indices all use community consultation and
engagement as a screening criterion, in contrast to fewer
company and collective initiative references to this process.
Human rights impact assessments also receive the greatest
support from the SRI indices.
 A large number of companies discuss anticorruption, with the
exception of Latin America, where only 21 percent of
companies report having anticorruption policies. Several of
the SRI indices also consider bribery and corruption issues.
In contrast, anticorruption is not a major emphasis of the
collective initiatives.
In sum, this report shows that certain human rights receive
substantial recognition by business, including companies, collective
initiatives and investors. The levels of support vary according to the
type of right, with labor rights ranking highest. In contrast, some non-
labor rights receive little or no attention. Variation in recognition also
results because different sectors recognize rights that seem more
directly relevant to their work. At the same time, the report
demonstrates inconsistencies and ambiguities in how business
entities translate human rights into policies, with some companies,
even within the same industry, translating a particular right narrowly
while others construe it more broadly.
Business recognition of human rights is indicative of what the
business community itself believes society expects with regard to such
standards.
While companies clearly recognize some responsibility for the
human rights impact of their operations, our study finds a widespread
lack of certainty regarding which rights pertain to corporations. Social
pressure and market mechanisms are sending signals to companies,
but they are insufficiently precise and consistent. Some companies will
always want to do more than others, but at the moment, beyond the
domain of labor rights, there appears to be only limited common
understanding of the range of human rights that apply to companies.
Beyond workplace issues companies similarly lack shared
understandings of any hierarchy of duties they may have and to whom
they may have them. Many of the policies they have adopted are
phrased in language that makes it difficult for the company itself, let
alone the public, to measure performance against commitments. As a
result, companies committed to human rights themselves often are the
losers. They may be unable adequately to monitor their performance,
defeating a primary purpose of their policy; and they may get little
external credit for admirable things they do.
33
 CORPORATE HUMAN RIGHTS RESPONSIBILITY
BUSINESS RESPONSIBILITIES: WHAT’S IN A NAME?
1. F. Wettstein, CSR and the Debate on Business and Human
Rights: Bridging the Great Divide, Business 2. Ethics
Quarterly, Vol. 22, Issue 4 (October 2012), pp. 739-770
INTRODUCTION
 Human rights have not played an overwhelmingly prominent
role in CSR in the past. (DEBATE 1)
 CSR has had relatively little influence on what is now called
the “business and human rights debate.” (DEBATE 2)
 This paper provides an extended focus on proactive company
involvement in the protection and realization of human rights.
 This changed because of the publication of the two reports of
UN Secretary-General’s Special Representative on business
and human rights (SRSG), John Ruggie, in 2008 have caught
the attention of scholars concerned with CSR and have led to
a noticeable increase in human rights related publications in
the field. The so-called “business and human rights debate”
 Includes a duty for corporations also to take pro-active and
positive steps toward the protection and realization of human
rights.
HUMAN RIGHTS AS MORAL RIGHTS
 Human rights are commonly associated with those important
documents that together constitute the International Bill of
Human Rights.
 Human rights must be understood as moral concepts and thus
as moral rights.
 When speaking of human rights in this article, the focus is not
on the specific list of rights laid down in te Universal
Declaration of Human Rights, but rather to their much broader
moral foundation or ethical justification.
 Human rights are moral rights of special importance; for moral
rights to qualify as human rights, the claims or entitlements
they address and thus the imperative deriving from them must
be of particularly fundamental nature
o They address claims that are directly connected to
the basic possibility of living a human life in dignity.
o All human rights, understood as moral rights, are by
definition universal and equal rights
o One cannot cease to be human and, accordingly, one
cannot sell, trade in, or voluntarily abstain from the
rights that constitute one’s humanity.
HUMAN RIGHTS MINIMALISM AS THE STATE OF THE ART IN
“BUSINESS AND HUMAN RIGHTS”
 The intersection between business and human rights has long
received relatively little academic attention. This started to
change in the wake of John Ruggie’s appointment as SRSG
in 2005.
 Ruggie introduced a tripartite framework consisting of a
corporate responsibility to respect human rights, the state
duty to protect human rights, and the need for more effective
access to remedy in cases of human rights abuse.
 State of the art in the debate on business and human rights
 Starting point is commonly dated to the mid-1990s;
companies predominantly in the extractive sector started to
be called out publicly, for example, for their role in human
rights violations committed by hired security forces or for their
collusion with repressive governments in violently putting
down demonstrations and protests.
o Shell in Nigeria for its role in the execution of
playwright and activist Ken Saro-Wiwa and the
assault by the Abacha government on the
fundamental rights especially of the Ogoni people in
the Niger Delta.
o Increasing number of NGOs such as the Business
Group of Amnesty International UK and Human
Rights Watch started to scrutinize multinational
companies’ human rights conduct more closely and
produced a steady stream of high profile reports on
the subject
o An increasing number of companies, among them
34
 also Shell, started to formally adopt human rights
policies during that time.
 While the case for business responsibility in the domain of
labor rights was relatively straight forward conceptually, the
extension of the focus on human rights beyond this particular
domain required a broader inquiry in the systematic relation
between business and human rights in general.
 Determining and conceptualizing this relation, then, has been
the principal aim at the core of what has come to be known as
the “business and human rights debate.”
 The accumulation of human rights questions and issues that
derived directly from business practices during the 1990s
was, of course, not a coincidence. Rather, it was the result of
the changing context of doing business in the post–Cold War
global economy
 Power relations in the global political economy. In this ongoing
process, states are said to be losing some of their power to
fully control social, economic and even political processes
both in the global as well as in the domestic realm. Against
this background, the effectiveness of the state as the sole
protector of people’s most basic rights had become
questionable and the call for extending human rights
responsibility to non-state actors in general and into the
private sphere in particular became louder
 Much of the question about the systematic relation between
business and human rights came to revolve, in one way or the
other, around the issue and adequacy of state-centrism or
exclusivity in matters of international human rights policy and
legislation.
 The debate that evolved around this question has addressed
this challenge in three distinct ways.
o First, it has focused on the extended reading and
reinterpretation of existing international human rights
legislation in order to include corporate responsibility
alongside traditional state obligations
o Second, it has contemplated ways to extend domestic
legislation in order to include corporations’ human
rights conduct abroad by exploring questions of
extraterritorial or universal
o Third
 “it is in this sphere that the legal development
of a binding duty to respect human rights will
first evolve”
 It has focused on the design of a “new
international normative regime”
 Possibility of new international codes or
legislation which would directly address
corporations’ human rights conduct.
 UN Sub-Commission on the Promotion and Protection of
Human Rights and its attempt to devise a set of “Norms on
the Responsibility of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights”
 UN Draft Norms were designed to apply to all corporations on
a non-voluntary basis—although, at least in a first instance,
not in a legally binding manner
 Symptomatically, also Ruggie’s tripartite framework defines
human rights obligations of corporations exclusively in
negative terms as duties to respect human rights, while
assigning all duties in the positive realm to the state alone.
 As Arnold’s (2010) “unpacking” of the SRSG’s tripartite
framework shows, corporate human rights obligations cannot
be convincingly defended and justified on the grounds of legal
and political conceptions of human rights alone.
HUMAN RIGHTS AS A BLIND SPOT IN CSR
 CSR is an “umbrella term” for all those debates that deal with
the “responsibilities of business and its role in society,”
 Umbrella term helps to identify and address what needs to be
debated.
 CSR is not in itself the core issue. The term itself has no other
function than to awaken sensitivity to a complex and multi-
dimensional debate challenging the role of business in
contemporary society.
 The concept of CSR deals with the very essence of what it
means to do and be a business, that is, with the very purpose
and ever-changing role of business within society.
 Human rights related contributions to the CSR literature can
be divided roughly in three overlapping waves with the first
one start- ing in the mid-1980s, the second one starting with
35
the sweatshop and child labor controversy in the early to mid-
1990s and the third wave starting with the creation of the
position of the SRSG in 2005.
o The first wave of human rights related contributions to
the CSR literature started to emerge in the mid-1980s
 Tended to focus rather narrowly on the
domain of labor rights and employment.
 This discussion too centered on the question
of workplace discrimination, but it
transcended the confines of traditional labor
issues insofar as it dealt with them in the
specific context of systematic human rights
abuses committed by host governments.
o Slow expansion of the focus beyond labor practices
accelerated in the second phase of contributions
 Focus of CSR perhaps more importantly, with
the still ongoing sweatshop and child labor
controversy that emerged around the same
time.
 Transcended the traditional context of labor
and employment in important ways.
 Question concerning the proper treatment of
workers was transforming from one of
predominantly internal to one of
predominantly external responsibility.
 Expanding focus was “institutionalized” with
the introduction of the UN Global Compact in
the year 2000. The UN Global Compact
explicitly distinguishes between general
human rights principles (principles 1 and 2)
and principles specifically addressing labor
practices (principles 3, 4, 5, and 6). As such,
it has done much to render human rights
relevant for corporations in their own right,
rather than merely as add-ons to labor
issues.
o It peaked in 2003 and led up to the creation of the
position of the SRSG in 2005 marks the transition into
the third phase.
 Both the UN Draft Norms as well as the
creation of the position of the SRSG
represented attempts to integrate business
more formally into the international human
rights regime, which contributed to the
widening of the gap between the debates on
business and human rights and on CSR.
 John Ruggie’s appointment as the SRSG in
2005, finally, heralded the third phase of
contributions. Especially the publication of his
“Protect, Respect and Remedy Framework”
 I propose a two-pronged explanation, which derives from two
different and opposing ways of how corporate social
responsibility has often been perceived—as either something
voluntary or as a moral obligation
 In the first case, the voluntariness assumption clashes with
the fundamental moral nature of human rights claims. I will call
this the problem of voluntariness.
 Second case the divide occurs between non-political, social
responsibility on the one side and political obligation on the
other. I will call this the problem of non-political responsibility.
 The problem of voluntariness: Corporate social
responsibility, as a concept, is often said to be dealing with
those responsibilities that corporations may (or may not)
adopt on a voluntary basis beyond their mere compliance with
legal laws and regulations
 Three different interpretations of voluntariness
 First, we may define voluntariness
legalistically, that is, as “non-coercion” or
simply as what is not mandated by law
o Alternatively, voluntariness may be
understood more fundamentally in a
moral sense, that is, as “moral
discretion.”
o Moral discretion in a more narrow
sense refers to acts which are
morally required in principle, but may
leave some room for judgment and
thus moral discretion or “latitude”
(Kant) in regard to how, when, and to
what extent they ought to be fulfilled.
36
 This is what Kant (1996: 31–32)
called imperfect obligations
o Understanding of CSR as voluntary
responsibility beyond the law would
systematically exclude human rights
as a subject that warrants particular
attention.
 Second, the very notion of an obligation as
“something we conceive as imposed upon
our inclinations, something we must do
whether we want to or not” conflicts sharply
with such interpretations of voluntariness.
 Third:
o Granted that imperfect obligations
are indeed ethical requirements and
thus, at least in principle, not a matter
of voluntariness or pure discretion,
but their ethical imperative is not
based on rights; rather, they are
commonly associated with the realm
of virtue and beneficence
o They all tend to elude the realm of
rights. The first interpretation of
voluntariness ascribes rights to the
legal domain while perceiving CSR
to be dealing with what is beyond the
law. The second interpretation
understands voluntariness
supererogation, which is at odds with
the very concept of moral obligation
as such. The third interpretation
understands voluntariness
latitude contained in imperfect
obligations, which does not per se
exclude moral obligation from the
realm of CSR, but limits them to
those which are not rights-based.
 The problem of non-political responsibility: Lack of a
comprehensive political and legal framework in the global
arena
INTEGRATING THE TWO DEBATES: POTENTIALS AND
COMPLEMENTARITIES
 Very reason why CSR is often perceived to be essentially
about proactive corporate engagement in social causes and
thus about corporate responsibilities beyond the (negative)
realm of doing no harm.
 Focus contrasts sharply with the more restrictive perspective
on wrongdoing that has characterized the business and
human rights debate.
 Question we are facing is how to define, normatively, the
space in which the two debates meet.
CAPABILITY AND MORAL OBLIGATION:
 AN EXTENDED VIEW
ON BUSINESS AND HUMAN RIGHTS
 Any human right, as Henry Shue argued in his seminal work
on “Basic Rights”
 Corresponds to a “tripartite typology of duties.” For each
right, as he argues, there are three types of correlating duties,
“all of which must be performed if the basic right is to be fully
honoured.”
o Duty to avoid depriving, the duty to protect from
deprivation, and the duty to aid the deprived
o STATED OTHERWISE: duty to respect human rights,
where our actions and life plans cross paths and
potentially conflict with the life scripts of other human
as beings,
o The duty to protect human rights, where they are
threatened by other human beings or institutions,
and,
as o The duty to realize human rights where they have
been violated or never been fulfilled.
 This does not imply that all agents have equally extensive
obligations in each one of them. As Shue notes, not all of
these duties “must be performed by the same individuals or
institutions,” there is “the possibility of distributing each of the
three kinds of duty somewhat differently.” Thus, the question
at the heart of the typology is how to adequately distribute the
duties among potential duty-bearers.
37
 Starts with the assumption that all those agents with
considerable power and unique and indispensible capabilities
must naturally and at the outset bear their fair share of
responsibility for finding solutions to prevailing human rights
problems.
 First, human rights are moral claims and imperatives at the
same time. In other words, the existence of a human right
always implies a counterpart obligation for that right to be
respected, protected, and realized. Second, while the
negative duty to respect applies to everyone individually and
equally and at all times, the positive duties to protect and to
realize are, in a first instance, collective duties.
 It should be undisputed that we, as a moral community,
cannot grant human rights to all members, without accepting
a collective obligation to strive toward their equal and
universal fulfilment. Thus, as a moral community, we are
obligated to create and maintain conditions and structures
which are conducive to the equal and universal protection and
realization of human rights.
 Each member, as a consequence, does not only have a duty
not to undermine the realization of human rights (i.e. a duty to
respect), but one to contribute to the collective task of
furthering them within the bounds of reasonableness and their
own capabilities
 Collective obligation which we bear as a moral community can
be fulfilled only through a concerted effort by all those with the
respective capabilities.
 A capability-based model to be different from what is
commonly called “noblesse oblige.” While noblesse oblige
tends to refer to a notion of private power deriving from wealth
or financial potency and thus to associate responsibility with
the realm of beneficence or charity, a capability-based model
refers to the structural importance of corporate capability for
the very constitution of today’s global society. As such, we are
dealing with public or political power and, correspondingly, not
with noble gestures, but with genuine political responsibility.
 “Fair share” (Santoro) of responsibility of each responsible
agent must be limited both in scope and extent.
 An agent’s human rights obligations, then, crucially depend
on its capabilities within the three categories of respecting,
protecting, and realizing human rights.
CORPORATE OBLIGATIONS TO RESPECT HUMAN RIGHTS
 Negative obligations to respect human rights command us not
to act in certain ways, that is, to refrain from actions that may
be harmful to other people.
CORPORATE OBLIGATIONS TO HELP PROTECT HUMAN
RIGHTS
 What we expect from corporations is that within the range of
their capabilities they use their leverage to put pressure on
suppliers and contractors to improve their working conditions
rather than merely to abandon them. In other words,
increasingly, what is expected of corporations in such
situations, is that they protect the workers of contractors from
the abuse, rather than to merely demonstrate their respect for
human rights by cutting their ties with the violators.
CORPORATE OBLIGATIONS TO REALIZE HUMAN RIGHTS
 The third category of corporate human rights obligations deals
with the realization of unfulfilled human rights claims and thus
typically with so-called second generation social and
economic human rights. The normative problem connected to
assigning responsibility for such rights is twofold. First, as
Henry Shue pointed out, they demand full coverage without,
however, giving rise to universal duties. Thus, they “need to
be divided up and assigned among bearers in some
reasonable way.”
 As such, their fulfillment by definition depends on
collaborative solutions involving a variety of different agents
and agencies. Second, the violation of socio-economic rights
often—although not always—is the result of complex systemic
interactions between a wide variety of different agents. This is
precisely what makes it difficult, if not impossible, to assign
remedial responsibility based on an agent’s involvement in
bringing the human rights problem about. When involvement
ceases to provide a reliable guide to allocate remedial
38
 responsibility, however, we must turn to capability.
 Ruggie’s subsequent limitation of corporate obligation to mere
non-violation—what I have called “human rights minimalism”
CONCLUSION
 In a 2007 publication, commenting on “future directions” of the
business and human rights debate, John Ruggie stated that
its focal point “needs to expand beyond establishing individual
corporate liability for wrongdoing.” “An individual liability
model alone,” as he went on to justify his claim, “cannot fix
larger imbalances in the system of global governance.”
 In the struggle to find common ground between different
cultural and moral traditions, the inter-subjective, universal
justifiability of human rights provides a platform which other
perspectives cannot, or only insufficiently, match. If nothing
else, human rights provide a basis on which the practical
discussion of global responsibilities effectively becomes
possible.
 It makes good sense for corporations to adopt the language
of human rights when deliberating such responsibilities. After
all, the requirement of universal justification does not only
create, but also limit corresponding moral obligations.
 Need to find ways to make proactive company engagement
plausible to business as genuine moral obligations, that is, as
requirements beyond voluntariness and moral discretion or
the mere prospect of economic gain.
 The best bet to do so for CSR is to start (re-)emphasizing the
question of purpose and mission of businesses. Positive
moral obligations are, at their core, grounded teleologically. In
other words, if positive obligations ought to matter to
business, they must be attached to and indeed become part
of their very purpose, of their vision and mission, that is, of the
very reason they are in business.
“It is the very identity of business that is at stake here. It is in this
particular aspect that the task before us transcends the question of
mere corporate responsibility; ultimately, achieving purpose in
business requires business leaders with a profes- sional identity, that
is, leaders with a sense of purpose and a professional ethos. They
must see it as a part of their agenda to better the conditions of those
in need and to make real contributions to a more sustainable
development of our global society. We, as scholars and teachers, can
make our biggest contribution through fostering and promoting such
professional identities in our MBA classrooms.”
2. L. Moir (2001), “What do we mean by corporate social
responsibility?”, Corporate Governance: The international
journal of business in society, Vol. 1, Issue 2, pp. 16-22 
 (no
one assigned to digest, see PDF file)
3. J. G. Ruggie, Business and Human Rights: The Evolving
International Agenda, The American Journal of International
Law, Vol. 101, No. 4 (October 2007), pp. 819-840
 The UN first attempted to establish binding international rules to
govern the activities of transnationals in the 1970s.
o That endeavor was initiated by developing countries as
part of a broader regulatory program with redistributive
aims known as the New International Economic Order.
Human rights did not feature in this initiative.
o The Soviet bloc supported it while most industrialized
countries were opposed.
 Soft law approaches enjoyed broader political appeal. In 1976, the
Organization of Economic Cooperation and Development (OECD)
adopted a set of Guidelines for Multinational Enterprises, and a
year later the International Labor Organization (ILO) adopted a
Tripartite Declaration of Principles concerning Multinational
Enterprises. Each was revised in 2000.
39
 o Both reference the Universal Declaration of Human
Rights (UDHR) and other international human rights
standards.
 Also in 2000, the United Nations Global Compact (GC) became
operational.
o It is a voluntary initiative engaging companies and civil
society, including labor, in promoting UN principles in the
areas of human rights, labor standards, environmental
protection and, since 2004, anti-corruption.
o Focused on norm diffusion and the dissemination of
practical know-how and tools, the GC has become the
world’s largest corporate social responsibility initiative,
with some 3,000 participating companies and forty
national networks.
 Fueled by escalating reports of corporate human rights abuses,
especially in the extractive sector and the footwear and apparel
industries, the UN Sub-Commission on the Promotion and
Protection of Human Rights (“Sub-Commission”), a subsidiary
expert body of the then Commission on Human Rights,
established a working group on business and human rights in
1998.
o It was tasked to “make recommendations and proposals
relating to the methods of work and activities of
transnational corporations in order to...promote the
enjoyment of economic, social and cultural rights and the
right to development, as well as of civil and political
rights.”
o In 2003, the working group produced the “Draft Norms on
the Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human
Rights”
 Written in treaty-like language, the text comprises
twenty-three articles setting out human rights
standards for companies in areas ranging from
international humanitarian law, through civil,
political, economic, social, and cultural rights, to
consumer protection and environmental
practices.
 Acknowledging that states are the primary duty
bearers in relation to human rights, it stipulates
that transnational firms and other business
enterprises, within their “spheres of activity and
influence,” have corresponding legal duties.
 It also requires that corporate compliance be
monitored by national and international agencies,
and victims provided with effective remedies..
 The main international human rights NGOs (non-governmental
organizations) endorsed the draft Norms, and began to refer to
them as the “UN Norms,” while the business community,
represented by the International Chamber of Commerce (ICC)
and the International Organization of Employers (IOE), was firmly
opposed.
o For its part, the Commission granted that the document
contained “useful elements and ideas,” but added that it
had not requested it and that, as a draft proposal, it had
no legal standing.
o The Sub-Commission was also instructed not to engage
in any monitoring of corporate activities.
 UN Secretary-General was requested to appoint a Special
Representative (SRSG), initially for a two-year term. On 25 July
2005, the UN Economic and Social Council approved the
Commission’s request, and three days later then Secretary-
General Kofi Annan appointed Ruggie to the post of SRSG.
 This article provides an overview of the SRSG mandate’s work to
date, and lays out the broad direction in which it is moving.
 The article is divided into three parts: a brief discussion of the
central conceptual flaws of the draft Norms; some problematic
factual claims made by Norms’ advocates coupled with a mapping
of standards, legal and otherwise, that currently govern the
activities of business in relation to human rights; and a concluding
section on the mandate’s future directions.
I. CONCEPTUAL CHALLENGES
 To minimize charges of bias against globalization and the
transnational corporations that are its most visible embodiment,
the Norms project came to include “other business enterprises,”
not only transnationals, within its remit. But it ended up exempting
nationally operating businesses if they had no connections to
transnational corporations, the impact of their activities was purely
local, and their activities involved no violations of the right to the
40
 security of the person.
 Transnational corporate networks pose a regulatory challenge to
the international legal system. To begin with, in legal terms
purchasing goods and services from unrelated suppliers generally
is considered an arms-length market exchange, not an intra-firm
transaction. Among related parties, a parent company and its
subsidiaries are distinct legal entities, and even large-scale
projects may be incorporated separately. Any one of them may be
engaged in joint ventures with other firms or governments. Due to
the doctrine of limited liability, a parent company generally is not
legally liable for wrongs committed by a subsidiary even where it
is the sole shareholder, unless the subsidiary is under such close
operational control by the parent that it can be seen as its mere
agent. Each legally distinct entity is subject to the laws of the
countries in which it operates, but the transnational corporate
group or network as a whole is not governed directly by
international law. It is this foundational fact that the move to
establish global legal standards for transnational corporations
seeks to alter. And it has begun to change.
 If international human rights obligations are to be attributed to
transnational corporations, on what basis shall this be done?
o It seems clear that long-standing doctrinal arguments
over whether such firms could be “subjects” of
international law are yielding to new realities on the
ground. For example, firms have acquired significant
rights under various types of bilateral investment treaties
and host government agreements, they set international
standards in several sectors, and certain corporate acts
are directly prohibited in a number of civil liability
conventions dealing with environmental pollution.
o Thus, at minimum transnational corporations have
become “participants” in the international legal system,
with the capacity to bear some rights and duties under
international law.
o Transnational corporations have greater power than
some states to affect the realization of rights, the
argument continued, and “with power should come
responsibility.” Therefore, these corporations must bear
responsibility for the rights they may impact. And because
some states are unable or unwilling to make them do so
under domestic law, there must be direct and uniform
corporate responsibilities under international law.
 The draft Norms enumerated rights that appeared to be
particularly relevant to business, including non-discrimination, the
security of the person, labor standards, and indigenous peoples’
rights. But the list included rights that states have not recognized
or are still debating at the global level, including consumer
protection, the “precautionary principle” for environmental
management, and the principle of “free, prior and informed
consent” of indigenous peoples and communities.
o At the same time, the draft allowed that not all recognized
rights pertain to business but provided no principled basis
for making that determination. In response to the criticism
that the list was overly inclusive, some Norms’ advocates
have suggested a shorter set of “core” rights said to enjoy
the most widespread support, and which business could
easily grasp.
 A far more serious problem concerns the draft Norms’ proposed
formula for attributing human rights duties to corporations. After
recognizing that states are the primary duty bearers, the General
Obligations article adds: “Within their respective spheres of
activity and influence, transnational corporations and other
business enterprises have the obligation to promote, secure the
fulfillment of, respect, ensure respect of and protect” nationally
and internationally recognized human rights.
o That is to say, within corporations’ “spheres of influence”
they would have exactly the same range of duties as
states – from respecting to fulfilling rights – the only
difference being that states’ duties would be primary and
corporations’ duties secondary. But the draft Norms
defined none of these terms.
o Therefore, the boundaries within which corporations’
secondary duties would take effect remain unknown. Nor
was the distinction between primary and secondary duties
elaborated. With scope and threshold conditions left
unspecified, it seems highly likely that the attribution of
corporate duties in practice would come to hinge on the
respective capacities of states and corporations in
particular situations – so that where states were unable or
unwilling to do their job, the pressure would be on
41
 companies to step in. This may be desirable in special
circumstances, but as a general proposition it is deeply
troubling on several grounds.
o If the only difference is that governments have a
comprehensive set of obligations, while those of
corporations are limited to their ‘spheres of
influence’...how are the latter [obligations] to be
delineated? Does Shell’s sphere of influence in the Niger
Delta not cover everything ranging from the right to health,
through the right to free speech, to the rights to physical
integrity and due process?
 This formula could undermine corporate
autonomy, risk- taking, and entrepreneurship,
asking: “what are the consequences of saddling
with all of the constraints, restrictions, and even
positive obligations which apply to
governments?”
 The formula’s possible impact on the roles and
responsibilities of governments is equally
troubling. Within the constraints of “progressive
realization,” the international human rights
regime recognizes the legitimate need of
governments to exercise discretion for making
trade-offs and balancing decisions, and
especially for determining how best to “secure the
fulfillment” of, precisely the economic, social, and
cultural rights on which corporations may have
greatest influence.
 Imposing the full range of duties on
transnational corporations directly under
international law by definition reduces
individual governments’ discretionary
space within the scope of those duties.
 The draft Norms’ attempt to square the
circle by requiring companies also to
follow national laws and policy priorities –
and even “the most protective standards”
wherever those may be found – is no
solution.It merely adds layers of
conflicting prescriptions for firms to
follow.
 In addition, where governance is weak to
begin with, shifting obligations onto
corporations to protect and fulfill rights
beyond a carefully circumscribed set of
limits may further undermine domestic
capacity and incentives to make
governments more responsible to their
own citizenry, which surely is the most
effective way to realize rights.
o Finally, attributing the same range of duties to
corporations that currently apply to states, differentiated
only in degree within undefined corporate “spheres of
influence,” would generate endless strategic gaming and
legal wrangling on the part of governments and
companies alike.
 As illustrated by a recent Brazilian case where a
corporation and a government authority are
contesting who reneged on their legal obligations
to provide support to communities of indigenous
peoples, the rights of vulnerable groups and
individuals are not well served in such
circumstances.
 In sum, while it may be useful for some purposes to think of
corporations as “organs of society,” they are specialized
organs, performing specialized functions. The range of their
duties should reflect that fact.
o Recognizing an international personality “is certainly
not the same thing as saying that...its rights and
duties are the same as those of a state.” Imposing on
corporations the same range of duties as states for
all rights they may impact conflates the two spheres
and renders effective rulemaking itself highly
problematic.
II. MAPPING STANDARDS
 Ruggie’s first task was “to identify and clarify standards of
corporate responsibility and accountability for transnational
corporations and other business enterprises with regard to human
rights” – essentially, to “restate” existing standards and indicate
emerging trends.
42
 o The mapping was organized into five clusters starting with
the most deeply rooted international legal obligations and
ending with voluntary business standards:
 the state duty to protect against corporate
abuses;
 corporate responsibility and accountability for
international crimes;
 corporate responsibility for other human rights
violations under international law;
 soft law mechanisms; and
 self-regulation.
 General Comment 31 by the Human Rights Committee is
1. The State Duty to Protect
 All sides agree that the state is the primary duty bearer in relation
to human rights. But its duty to protect against third party abuses
of rights, including by business entities, had received relatively
little attention in the debate surrounding the draft Norms.
o The earlier UN human rights treaties, such as the
International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), the International
Covenant on Economic, Social and Cultural Rights
(ICESCR), and the International Covenant on Civil and
Political Rights (ICCPR), do not specifically address state
duties regarding business.
 They impose generalized obligations to ensure
the enjoyment of rights and prevent nonstate
abuse. Thus, ICERD requires each state party to
prohibit racial discrimination by “any persons,
group or organization”. And some of the treaties
recognize rights that are particularly relevant in
business contexts, including rights related to
employment, health, and indigenous
communities.
 Beginning with the Convention on the Elimination
of All Forms of Discrimination Against Women
(CEDAW and including the Convention on the
Rights of the Child (CRC) and the recently
adopted Convention on the Rights of Persons
with Disabilities, business is addressed more
directly and in greater detail.
 CEDAW, for example, requires states to
take all appropriate measures to
eliminate discrimination against women
by any “enterprise”, and within such
specific contexts as “bank loans,
mortgages and other forms of financial
credit”. The treaties generally give states
discretion regarding the modalities for
regulating and adjudicating nonstate
abuses.
o The treaty bodies elaborate upon the duty to protect.
one recent example. It confirms that under the ICCPR “the
positive obligations on states parties to ensure Covenant
rights will only be fully discharged if individuals are
protected by the state, not just against violations of
Covenant rights by its agents, but also against acts
committed by private persons or entities...”It further
explains that states could breach Covenant obligations
where they permit or fail “to take appropriate measures or
to exercise due diligence to prevent, punish, investigate
or redress the harm caused by such acts by private
persons or entities.”
 The Committees have not expressly interpreted the treaties as
requiring states to exercise extraterritorial jurisdiction over abuses
committed abroad by corporations domiciled in their territory.But
nor do they seem to regard the treaties as prohibiting such action,
and in some situations they have encouraged it.
 In general, international law permits a state to exercise
extraterritorial jurisdiction provided there is a recognized basis:
where the actor or victim is a national, where the acts have
substantial adverse effects on the state, or where specific
international crimes are involved.
o Extraterritorial jurisdiction must also meet an overall
reasonableness test, which includes non-intervention in
other states’ internal affairs. Debate continues over
precisely when the protection of human rights justifies
extraterritorial jurisdiction.
 The regional human rights systems also affirm the state duty to
protect against nonstate abuse and establish similar correlative
state requirements to regulate and adjudicate corporate acts.The
43
 increasing focus on protection against corporate abuse by the UN
treaty bodies and regional mechanisms indicates a growing
concern that states either do not fully understand or are not always
able or willing to fulfill this duty
2. Corporate Responsibility and Accountability for International
Crimes
 By far the most consequential legal development is the growing
potential for companies to be held liable for international crimes –
with responsibility imposed under domestic law but reflecting
international standards of individual responsibility, as codified by
the international ad hoc criminal tribunals and, especially, by the
ICC Statute.
o The number of jurisdictions in which charges for
international crimes may be brought against corporations
is increasing as countries ratify the ICC statute and
incorporate its definitions into domestic law.
o Where national legal systems already provide for criminal
punishment of companies the international standards for
individuals may be extended, thereby, to corporate
entities – as legal persons. And if those legal systems also
provide for extraterritorial jurisdiction with respect to
international crimes then those provisions, too, may be
extended to corporations.
 ICC ratification is not the only means by which such standards
may enter national legal systems.
o A significant though not the sole exception is the civil
cases brought under the US Alien Tort Claims Statute
(ATCA).
 Given this expanding jurisdictional web, simple laws of probability
alone suggest that corporations will be subject to increased
liability risks for international crimes in the future.
o They may face either criminal or civil liability depending
on whether international standards are incorporated into
a state’s criminal code or as a civil cause of action.
 Further, companies cannot be certain where claims will be brought
against them or what precise standards they may be held to. No
two national jurisdictions have identical evidentiary and other
procedural rules, and there is significant national variation in
modes of establishing a corporate “mind and will,” and in cases
involving corporate groups.
o Few companies may ever directly commit acts that
amount to international crimes. But there is greater risk of
their facing allegations of “complicity” in such crimes.
o With nuanced differences, most national legal systems
recognize complicity as a concept. The ad hoc
international tribunals have developed a fairly clear
standard for individual liability in such cases: knowingly
providing practical assistance, encouragement or moral
support that has a substantial effect on the commission of
the crime.
o Where national courts adopt this standard it is likely that
its application to corporations would closely track its
application to individuals, although the element of “moral
support” may pose specific challenges.
 A company trying in good faith to avoid
involvement in human rights abuses might have
difficulty knowing what counts as moral support
for legal purposes.
 Mere presence in a country and paying taxes are
unlikely to create liability. But deriving indirect
economic benefit from the wrongful conduct of
others may do so, depending on such facts as the
closeness of the company’s association with
those actors.
 However, even where a corporation did not intend
for a crime to occur it may be held liable if it knew,
or should have known, that it was providing
assistance that had a substantial effect on the
commission of the crime.
3. Corporate Responsibility for Other Human Rights Violations
under International Law
 The traditional view of international human rights instruments is
that they impose only “indirect” responsibilities on corporations –
provided under domestic law in accordance with states’
international obligations.
o In contrast, it was claimed that the draft Norms, which
imposed direct obligations on corporations under
international law, “derive legal authority from their sources
in treaties and customary international law.”
o Our mapping supports the traditional view as a matter of
44
 law, although social expectations of business activity
increasingly reflect or invoke some of the standards of
international instruments.
 There is ongoing debate over the precise requirements of
customary international law, but at minimum they include a
recognizable degree of uniform and consistent state practice
o There is insufficient evidence at this time to establish
direct corporate responsibilities under customary
international law.
o Many UDHR provisions have entered customary
international law. Most UDHR provisions have also been
incorporated in the Covenants and other UN human rights
treaties. But do these instruments establish direct legal
responsibilities for corporations?
 The treaties do not address the issue explicitly.
They do say that states have a duty to “ensure
respect” for and “ensure the enjoyment” of rights.
In theory, this could imply a direct legal obligation
for all actors, including corporations, to respect
those rights in the first place. But if so, the UN
treaty bodies have not yet expressed that view.
CESCR’s most recent General Comment on the
right to work, for example, recognizes that various
private actors, including national and
multinational enterprises, “have responsibilities
regarding the realization of the right to work” – for
instance, that they “have a particular role to play
in job creation, hiring policies and non-
discriminatory access to work.”
 But then, in the same Comment, the
Committee appears to reiterate the
traditional view that such enterprises are
“not bound” by the Covenant.
 Similarly, the Human Rights Committee’s most
recent General Comment concludes that the
treaty obligations “do not...have direct horizontal
effect as a matter of international law” – that is,
they take effect as between nonstate actors only
under domestic law.
 Nothing prevents states from imposing international legal
responsibilities for human rights directly on corporations. But the
evidence we reviewed does not indicate that they have already
done so to any appreciable extent.
o Nonetheless, the increased attention the UN and other
international human rights bodies are devoting to the
need to prevent corporate abuse acknowledges that
businesses are capable of both breaching human rights
and contributing to their protection.
o Moreover, even in the absence of direct international
legal obligations companies still may find themselves tried
in the court of public opinion by the standards of these
instruments.
4. Soft Law
 To address corporate responsibility and accountability for human
rights, governments utilize a variety of other international
mechanisms that have the force of “soft law”.
o The first is the traditional soft law standard-setting role of
intergovernmental organizations.
 To illustrate, the OECD Guidelines recommend
that firms “respect the human rights of those
affected by their activities consistent with the host
government’s [international] obligations and
commitments.”
 But this benchmarking of corporate conduct
leaves a sizable protection gap, because not all
countries have adopted all human rights treaties,
and even when they have they may be unable or
unwilling to enforce them.
 The problem is especially acute in what the
OECD calls “weak governance zones.”
 All companies have the same
responsibility in weak governance zones
as they do elsewhere. They are expected
to obey the law, even if it is not enforced,
and to respect the principles of relevant
international instruments where national
law is absent.If
o Second, several intergovernmental initiatives recently
have focused on ways to enhance accountability for
compliance.
45
  For example, due to civil society demands,
anyone can now bring a complaint against a
transnational firm operating within the OECD
Guidelines’ sphere to the attention of a National
Contact Point (NCP) – a non- judicial review
procedure.
 Moreover, the OECD Investment Committee has
expanded its oversight of the NCPs, providing
another opportunity to review their treatment of
complaints.
 For its part, the International Finance
Corporation (IFC) has adopted performance
standards that companies are required to meet in
return for IFC investment funds, which include
several human rights elements.
o Beyond the intergovernmental system, a third type of
initiative is emerging having the force of soft law and/or
involving partial legalization: a multi-stakeholder form that
engages corporations directly, along with states and civil
society organizations, in addressing sources of corporate-
related human rights abuses.
 Most prominent among them are the Voluntary
Principles on Security and Human Rights,
promoting corporate human rights risk
assessments and the training of security
providers in the extractive sector; the Kimberley
Process Certification Scheme to stem the flow of
conflict diamonds; and the Extractive Industries
Transparency Initiative (EITI), establishing a
degree of revenue transparency in the sums
companies pay to host governments.
 Each seeks to enhance the responsibility and
accountability of states and corporations alike by
means of operational standards and procedures
for firms, often together with regulatory action by
governments, both supported by transparency
mechanisms.
5. Self-regulation
 Finally, there is an expanding universe of self-regulation in the
business and human rights domain: individual company practices,
industry initiatives, and multi- stakeholder efforts. Although they
have no status in law, they may have legal consequences.
 Voluntary initiatives have expanded rapidly in recent years.
o Labor rights are the most widely recognized across all
regions and sectors, topped by nondiscrimination.
Recognition of other rights broadly tracks industry
sectors. The extractive industry, for example, ranks
community rights and the security of the person more
highly than other sectors, while financial services stress
privacy rights.
o In formulating their human rights policies, companies
typically draw on international instruments or initiatives.
But the language of the standards is rarely identical, and
in some instances it is so elastic that the standards lose
meaning, making it difficult for the company itself, let
alone the public, to assess performance against
commitments.
o There are also variations in the recognition of rights that
seem unrelated to expected sectoral differences,
appearing instead to reflect the political culture of
companies’ home countries: for example, European-
based firms tend to adopt a more comprehensive rights
agenda than others, including social and economic rights,
with US firms acknowledging only a narrower spectrum of
rights and rights holders.
 The Achilles heel of self-regulatory arrangements to date is
their underdeveloped accountability mechanisms. Company
initiatives increasingly include rudimentary forms of internal and
external reporting, as well as some form of supply chain
monitoring. But no universally – or even widely – accepted
standards yet exist for these practices
 The biggest challenge may be bringing such efforts to a scale
where they truly can move markets. For that to occur, it appears
that states will need to structure business incentives and
disincentives more proactively, while accountability practices
must become more deeply embedded within market mechanisms
themselves.
III. FUTURE DIRECTIONS
 First, any “grand strategy” needs to strengthen and build out
46
 from the existing capacity of states and the states system to
regulate and adjudicate harmful actions by corporations, not
undermine it.
o Currently, at the domestic level some governments may
be unable to take effective action on their own, whether
or not the will to do so is present. And in the international
arena states may compete for access to markets and
investments, as a result of which collective action
problems may restrict or impede their serving as the
international community’s “public authority.” This
observation drives the desire to impose direct obligations
on corporations under international law. But doing so can
itself have adverse effects on governance capacities, as
we have seen – leaving aside the question of any such
proposals’ current political feasibility and legal
enforceability.
o Therefore, it seems more promising in the first instance
to expand the international regime horizontally, by
seeking to further clarify and progressively codify the
duties of states to protect human rights against corporate
violations: individually, as host and home states, as well
as collectively through the “international cooperation”
requirement of several UN human rights treaties.
 Second, the focal point in the business and human rights
debate needs to expand beyond individual corporate liability
for wrongdoing.
o An individual liability model alone cannot fix larger
systemic imbalances in the global system of governance.
o Aim is to change structural processes by reforming
institutions or creating new ones that will better regulate
the processes to prevent harmful outcomes.
 Finally, many elements of an overall strategy lie beyond the
legal sphere altogether.
o Sny successful regime needs to motivate, activate, and
benefit from all of the moral, social, and economic
rationales that can affect the behavior of corporations.
This requires providing incentives as well as
punishments, identifying opportunities as well as risks,
and building social movements and political coalitions
that involve representation from all relevant sectors of
society, including business – much as has been
occurring in the environmental field.
o The human rights community has long urged a move
“beyond voluntarism” in the area of business and human
rights. Amaryta Sen’s advice suggests that this be
accompanied by willingness on their part also to look
“beyond compliance.”
In sum, international law has an important role to play in
constructing a global regime to govern business and human
rights. The effectiveness of its contributions will be maximized if
it is embedded within, and deployed in support of, an overall
strategy of increasing governance capacity in the face of
enormously complex and ever-changing forces of globalization.
4. Robinson, Allens Arthur, Corporate Culture as a Basis for the
Criminal Liability of Corporations (February 2008)
Changing Dimensions of Corporate Criminal Liability
In recent years there has been an increasing focus on the ways in
which corporate policies and conduct interact with the environment,
government and communities, as well as the lives and rights of
individuals. In particular, many States have examined whether, and
how, corporations can be held criminally liable for wrongful conduct.
States have tended to be most concerned about responding to
offences against occupational health and safety, labour, antitrust and
corruption laws, and about compliance with international treaties
requiring effective laws against bribery and terrorist financing.
However, consideration of the basis on which corporations may be
criminally liable is also relevant to other laws and norms, including
those protecting human rights.
The key conceptual problem of corporate criminal liability is forging a
coherent link between the corpus of criminal law — which has been
developed in the context of natural persons, and to reflect the
psychology of human beings — and the realities of the corporate form,
which is a complex fabric of human actors, on one hand, and corporate
hierarchies, structures, policies and attitudes on the other.
Corporations can only ever act through human beings, yet the actions
of human employees or agents always occur within the matrix of these
hierarchies, structures, policies and attitudes.
47
In a legal sense, the question is whether, and to what degree,
particular acts, necessarily committed by human beings, may
constitute crimes committed by the corporation.
The traditional approach to corporate criminal liability has focused on
the relation between the corporation and its employees and agents,
and developed a legal fiction that the state of mind of employees and
agents can be said to be the state of mind of the corporate entity.
There are two main variations to this approach. Under the
'identification' model that is used in, for example, the UK and Canada,
the corporation is held directly liable for wrongful conduct engaged in
by senior officers and employees on the basis that the state of mind
of the senior employee was the state of mind of the corporation. Under
the vicarious liability model that is used in the US, the corporation is
indirectly liable on the basis that the state of mind of the individual is,
in certain circumstances, imputed to the corporation.
There are several difficulties to the traditional approach from a
prosecutorial perspective. It provides for 'derivative' liability in the
sense that corporations can only be culpable if the liability of an
individual is established. From a practical perspective, it can be very
difficult to identify the employee who committed the wrongful act or
had the culpable state of mind. From a conceptual perspective, this
approach does not reflect the complex interactions between human
actors and the corporate matrix.
Recently, some jurisdictions have contemplated a new basis for
criminal liability – 'organisational liability' – that has the potential to
address this interaction more squarely. Australia, in particular, has
introduced provisions holding corporations directly liable for criminal
offences in circumstances where features of the organisation of a
corporation, including its 'corporate culture', directed, encouraged,
tolerated or led to the commission of the offence
48
Impetus for Changing Approaches
Changes to laws providing for corporate criminal liability have been
triggered by both domestic and international developments.
In the domestic sphere, particular accidents or disasters have focused
attention on the need for stronger regulation of corporations, and driven
legislative change. This is the case with, for example, the corporate
manslaughter laws in the UK and the Australian Capital Territory.
In the international sphere, one significant factor motivating the growth in
corporate criminal liability in civil law legal systems has been the increase
in international instruments requiring such provisions. A typical example
49
of this trend is the UN Convention against Transnational Organized Crime,
article 10(1) of which provides:
Each State Party shall adopt such measures as may be
necessary, consistent with its legal principles, to establish the
liability of legal persons for participation in serious crimes involving
an organized criminal group and for the offences established in
accordance with articles 5, 6, 8 and 23 of this Convention.
Similarly, the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions (OECD Bribery
Convention) requires States to establish the liability of legal persons.
Article 2(1) states:
Each Party shall take such measures as may be necessary, in
accordance with its legal principles, to establish the liability of legal
persons for the bribery of a foreign public official.
Two European instruments go beyond merely mandating the
implementation of corporate liability to require a specific method of
attribution. The operative language of article 18 of the Council of Europe's
Criminal Law Convention on Corruption 1999 and article 3 of the European
Union's Second Protocol to the EU Convention on the Protection of the
European Communities' Financial Interests 1997 is almost identical.
Parties and/or EU Member States are required to adopt measures to
ensure that legal persons can be held liable for [the relevant offences]
committed for their benefit by any [COE: natural] person, acting either
individually or as part of an organ of the legal person, who has a leading
position within the legal person, based on:
– a power of representation of the legal person; or
– an authority to take decisions on behalf of the legal person; or
– an authority to exercise control within the legal person;
as well as for involvement of such a [COE: natural] person as
accessory or instigator in [the relevant offences].
Additionally, signatories of the relevant Convention must take steps to
ensure that a legal person can be held liable where the lack of supervision
or control by a [COE: natural] person referred to in paragraph 1 has made
possible the commission of the criminal offences mentioned in paragraph
1 for the benefit of that legal person by a natural person under its authority.
Both Conventions then mandate what might be described as the
'expanded' identification approach which allows prosecution both for the
acts of leading persons and for a 'lack of supervision or control', albeit in
these formulations the lack of supervision or control must also be
attributable to leading persons. We do not consider, however, that the
requirements of either convention would prevent a party from taking a
broader approach to corporate criminal liability. It is likely the articles are
intended to set a minimum standard, rather than require a single uniform
approach.
One significant difference between the two treaties is that the Second
Protocol does not use the phrase ‘natural person’ in article 3. Potentially,
the decision not to use ‘natural person’ might be taken to indicate that the
article encompasses both legal and natural persons fitting the relevant
description, e.g. if a parent company is a ‘shadow director’ of a subsidiary.
It is unclear whether this is the case, however. The assumption that
‘person’ includes legal and natural persons is a statutory presumption in
most common law countries, which is not necessarily replicated in civil law
countries.
It should be observed, however, that none of these conventions go so far
as to mandate corporate criminal liability. In three cases, either explicitly
or implicitly, the convention seems to permit the signatory to implement
criminal, civil or administrative liability regimes for legal persons. Pieth, in
the context of the OECD Bribery Convention, suggests that there may be
a trend in international instruments in favour of corporate criminal liability.
He observes: [M]ore recent international legal sources are increasingly
moving towards a primary requirement of corporate criminal liability. See
for example the Revised Forty Recommendations of the [Financial Action
Task Force], which merely allow for administrative corporate liability on a
secondary level. Furthermore, evaluation task forces give those countries
favouring non-criminal liability a far more thorough screening, mainly
because corporate liability might not be pursued with the same rigour as
in criminal law. It may be assumed, therefore, that the pressure towards
criminal liability in public international law will only grow further in the years
ahead.
It remains to be seen, however, whether this view is proven correct. It is
worth noting that arguably the major international criminal instrument, the
Rome Statute of the International Criminal Court, does not allow for
corporate criminal liability.
Article 25 of the Rome Statute is headed ‘Individual Criminal
Responsibility’ and paragraph 1 provides ‘The Court shall have jurisdiction
over natural persons pursuant to this Statute.’ Ambos observes that the
50
principle of individual criminal responsibility in international criminal law
predates the Rome Statute and appears in the jurisprudence of the
Nuremburg Tribunal, where it was said:
Crimes against International Law are committed by men not by
abstract entities, and only by punishing individuals who permit
such crimes can the provisions of International Law be enforced.
Article 28 of the Rome Statute allows for the punishment of superiors for
the acts of subordinates, both military, art 28(a), and civilian, art 28(b).
Nothing in the text, however, seems to indicate that a corporation could be
considered a superior for the purposes of the article. As such, it appears
that a manager at a corporation could be held personally liable for offences
under the Rome Statute, but the corporation itself may not be punishable.
Corporate Criminal Liability in Particular Legal Systems
1. Australia
Australia is a federal system in which the Commonwealth, under the
Constitution, only has legislative power in respect of certain specified
matters. These matters do not include general criminal law. Accordingly,
most criminal law in Australia is State law, and federal criminal offences
are confined to those enacted in relation to matters in respect of which the
Commonwealth does have legislative power. State criminal law varies
across the jurisdictions: some Australian States have comprehensive
criminal codes and others rely upon a combination of statute and the
common law.
In Australia, Courts initially relied on principles of vicarious liability, but
have largely followed the identification approach since it was developed in
the UK in the 1940s. The most significant aspect of Australia's corporate
criminal liability regime is the statutory provisions providing for
organisational liability in relation to federal offences, including on the basis
of 'corporate culture'.
Operation of Organisational Liability Provisions
Under s12, where an employee, agent or officer of a body corporate, acting
within the actual or apparent scope of their employment, or within their
actual or apparent authority, commits the physical element of an offence,
the physical element of the offence must be attributed also to the body
corporate (s12.2).
If intention, knowledge or recklessness is a fault element in relation to a
physical element of an offence, that fault element must be attributed to the
body corporate if that body corporate 'expressly, tacitly or impliedly
authorised or permitted the commission of the offence' (s12.3).
Authorisation or permission for the commission of an offence may be
established on, inter alia, the four bases set out in s12.3(2):
• 'the body corporate's board of directors intentionally, knowingly
or recklessly carried out the relevant conduct, or expressly, tacitly
or impliedly authorised or permitted the commission of the
offence';
• 'a high managerial agent of the body corporate intentionally,
knowingly or recklessly engaged in the relevant conduct, or
expressly, tacitly or impliedly authorised or permitted the
commission of the offence';
• 'a corporate culture existed within the body corporate that
directed, encouraged, tolerated or led to non-compliance'; or
• 'the body corporate failed to create and maintain a corporate
culture that required compliance'.
Sections 12.3(2)(a) and (b) (regarding the conduct of a corporation's board
of directors or 'high managerial agents') essentially maintain the
'identification' approach (although the fact that the physical element of
offences committed by any employee, agent or officer, rather than only a
senior officer, is attributable to the corporation, is a departure from the
identification approach as applied in the UK). Sections 12.3(2)(c) and (d),
however, represent a new approach to corporate criminal liability, in that
they are founded on the corporation's own wrongdoing, in the form of
deficiencies in its 'corporate culture'.
'Corporate culture' is defined as 'an attitude, policy, rule, course of conduct
or practice existing within the body corporate generally or in the part of the
body corporate in which the relevant activities takes place'.
There are also specific provisions that apply where the fault element of an
offence is negligence. Essentially, that fault element is the same for a
corporation as it is for an individual. However, for the purposes of
assessing whether a corporation was negligent:
51
 • negligence may be evidenced by the fact that the commission of
the offence was substantially attributable to 'inadequate corporate
management, control or supervision of the conduct of one or more
of its employees, agents or officers', or 'failure to provide adequate
systems for conveying relevant information to relevant persons in
the body corporate' (s12.4(3)); and
• the corporation may be found to have the requisite fault element,
even though no one individual had that fault element, by viewing
the conduct of the corporation 'as a whole' (i.e., by 'aggregating
the conduct of any number of its employees, agents or officers')
(s12.4(2)).
2. UK
The United Kingdom has, since the 1940s, dealt with corporate criminal
liability on the basis of the doctrine of 'identification'.
The doctrine had its origins in a civil case, Lennard's Carrying Co Ltd v
Asiatic Petroleum Co Ltd, in which Viscount Haldane noted
[A] corporation is an abstraction … its active mind and directing
will must consequently be sought in the person … who is really …
the very ego and centre of the personality of the corporation.
Although the identification doctrine remains the cornerstone of corporate
criminal liability in the UK, the recently passed Corporate Manslaughter
and Corporate Homicide Act 2007 (UK) (Corporate Manslaughter Act)
provides for a form of organisational liability in relation to the offence of
manslaughter.
Relevantly, the effect of the Corporate Manslaughter Act is as follows:
• An organisation is guilty of the offence of 'corporate
manslaughter' ('corporate homicide' in Scotland) where:
• the way in which its activities are managed or organised
• causes the death of a person; and
• amounts to a gross breach of a relevant duty of care
owed to the deceased; and
• the way in which the organisation's activities are
managed or organised by its 'senior management' is a
'substantial element' of the gross breach of the relevant
duty of care.
A 'relevant duty of care' is defined in s2(1) as any one of a circumscribed
list of duties owed under the law of negligence (regardless of any statutory
schemes displacing liability in negligence, or any common law rules that
prevent a duty of care to persons engaged in joint unlawful conduct, or
who have accepted a risk of harm). These duties include:
(a) a duty owed to … employees or to other persons working for
the organisation or performing services for it;
(b) a duty owed as occupier of premises;
(c) a duty owed in connection with-
(i) the supply by the organisation of goods or services
(whether for consideration or not),
(ii) the carrying on by the organisation of any construction
or maintenance operations [further defined in s2(7)],
(iii) the carrying on by the organisation of any other activity
on a commercial basis, or
(iv) the use or keeping by the organisation of any plant,
vehicle or other thing;
A 'gross breach' of a duty of care arises if the conduct alleged 'falls far
below what can reasonably be expected of the organisation in the
circumstances'.
Section 8 provides that, where it is established that an organisation owed
a relevant duty of care to a person, and it falls to a jury to decide whether
there was a gross breach of that duty, the jury must consider whether the
evidence establishes that there was a failure to comply with any OHS
legislation that related to the alleged breach and, if so, how serious the
failure to comply was, and how much of a risk of death it posed. The jury
may also consider, among any other matters it considers relevant, any
health and safety guidance that relates to the alleged breach, and
'corporate culture' factors:
the extent to which the evidence shows that there were attitudes, policies,
systems or accepted practices within the organisation that were likely to
have encouraged any … failure [to comply with OHS legislation related to
the alleged breach], or to have produced tolerance of it[.]
'Senior management' is defined as: the persons who play significant roles
in:
(i) the making of decisions about how the whole or a substantial
part of its activities are to be managed or organised; or
(ii) the actual managing or organising of the whole or a substantial
part of those activities.
Interestingly, under s18, an individual cannot be guilty of aiding, abetting,
counselling or procuring the commission of an offence of corporate
manslaughter.
52
 3. Canada
Like Australia, Canada is a federal system, but unlike Australia and the
US, the criminal law is exclusively a federal responsibility (though
provincial legislatures do have power to enact penal provisions in order to
enforce provincial legislation).
Corporations are included within the definition of 'persons' who may
commit offences under the Canadian Criminal Code, but the actual
attribution of liability to corporations occurs on the basis of the identification
doctrine found in the UK.
Canadian criminal law distinguishes between 'mens rea' offences
(requiring a culpable state of mind), 'strict liability' offences (for which a
defendant will be liable unless it can be established that the defendant
used due diligence to avoid the commission of the offence) and 'absolute
liability' offences (for which a defendant will be liable regardless of their
state of mind).
In the case of absolute and strict liability offences, no question arises as
to the corporation's state of mind. Despite judicial statements that
corporate criminal liability under the identification approach is direct, rather
than vicarious, it seems that the physical element of these offences is
imputed on the basis of standard vicarious liability, such that commission
of the physical element of the offences by a corporation's employee or
agent will engage corporate criminal liability.
In the case of mens rea offences, the identification doctrine applies as it
would in the UK. However, the Canadian decisions may admit a wider
class of individuals as the 'directing mind and will' of the corporation. The
emphasis in Canada is less on the office held by the individual in question
than the question of whether the individual is the directing mind and will in
their particular area of responsibility. The Supreme Court has held that
[The] key factor which distinguishes directing minds from normal
employees is the capacity to exercise decision-making authority
on matters of corporate policy, rather than merely to give effect to
such policy.
There has been consideration in Canada of an approach based on
organisational liability, but the most recent reform of the criminal law
applying to corporations, in 2003, retained the basic identification
approach, while providing that liability could arise if the ‘directing mind and
will' of the corporation had failed to take proper steps to avoid the
commission of an offence.
4. US
Like Australia, the US has criminal law at both the state and federal level.
The majority of prosecutions are brought under State criminal laws.
The liability of corporations under federal criminal law is based on the
doctrine of respondeat superior, or vicarious liability.
Despite the relatively simple approach to corporate criminal liability at the
federal level, the US has advanced much further than Australia, the UK or
Canada in developing sentencing regimes that are adapted to corporate
defendants. Under the Federal Sentencing Guidelines Manual, 'corporate
culture' considerations are taken into account in assessment of the
appropriate fine and other orders to be imposed on corporate defendants.
However, the Department of Justice is increasingly relying on 'deferred
and non- prosecution agreements', which allow corporate defendants to
avoid indictment at all by taking a range of steps, which usually include
payment of a monetary penalty, and, more importantly for present
purposes, making changes to their corporate governance.
5. Switzerland
It has been possible for several years to punish corporations for tax
evasion and related offences under Swiss tax law, and to impose
administrative penalties directly on corporations whose activities have
resulted in the commission of an infraction, where an investigation to
identify the physical person responsible would require excessive
resources. However, prior to the 1980s, it had been assumed that the
Swiss system, heavily influenced by the principle societas delinquere non
potest, could not accommodate generalised criminal liability for
corporations.
In the 1980s, the Swiss Conseil fédéral considered introducing provision
for corporate criminal liability alongside provisions dealing with organised
crime, and reinforcing powers of confiscation in cases of money-
laundering. The introduction of criminal liability for corporations proved
controversial and was abandoned.
The advent of the Convention against Transnational Organized Crime, the
European Union's Convention on the Protection of the Environment
through Criminal Law and the OECD Bribery Convention, all of which
require States to introduce measures for the effective punishment of
corporations committing certain offences, forced Switzerland to reconsider
corporate criminal liability. The Conseil fédéral submitted to Parliament a
proposal for the introduction of provisions on corporate criminal liability, in
the context of a general revision of the Penal Code. The focus at this stage
was on the importance of providing for corporate criminal liability in cases
in which the physical persons responsible for the offence could not be
53
identified. This provision would become article 102(1) of the Swiss Penal
Code. The Conseil des Etats,99 influenced in part by the requirements of
the OECD Convention on Combating Bribery of Foreign Public Officials
added a provision that is now art 102(2), allowing a corporation to be
directly liable, regardless of whether particular physical persons could be
held liable, in relation to certain limited offences.
6. Finland
Finland’s Penal Code was created in 1889 and, like many civil law
countries, operated on the basis that only natural persons could be guilty
of offences. The first proposal for corporate criminal liability was made by
the Environmental Offences Committee in 1973, suggesting a chapter be
added to Code dealing with environmental offences including provisions
for corporate criminal liability. Under the proposal, corporations would be
liable on a strict liability basis.
In 1976, the Criminal Law Committee produced a report on the reform of
the entire Finnish Penal Code which recommended the introduction of a
chapter dealing exclusively with corporate criminal liability. This report set
the tone of the work done by the Penal Code Task Force, which made a
similar proposal in 1987. This proposal was commented on by the
Commission for the Examination of Legislation in 1990 and formed the
basis of Bill 95/1993.120 That bill did not pass, but an Act in seemingly
identical terms was passed as 743/1995. Aspects of Chapter 9 were
amended by Act 61/2003.
7. Japan
General criminal liability of corporations does not exist under Japanese
law. This situation arose from the historical origins of the modern
Japanese legal system, which was originally based on the French and
German Civil law systems and the notion that only natural persons can
commit crimes. As a result, the Japanese Penal Code of 1907 contained
no provisions for corporate criminal liability.
In 1932, however, the Act Preventing Escape of Capital to Foreign
Countries was passed. The Act introduced the ‘Ryobatsu-Kitei’ into
Japanese law. Ryobatsu-Kitei have subsequently appear in various
Japanese laws. Ryobatsu-Kitei is frequently translated as ‘double
punishment’, although Kyoto indicates that ‘[t]wo-sided or bilateral
punishment’ is a better translation. Essentially, Ryobatsu-Kitei are clauses
declaring that in the event of a natural person committing an offence, an
associated legal person may also be punished. An example of a
Ryobatsu-Kitei can be found in the Securities and Exchange Act (as at 1
April 2002), article 207:
In case where any representative of a juridical person (including a
non-incorporated association which has internal rules providing
for a representative or administrator; the same shall apply
hereinafter in this paragraph and the next paragraph), or agent,
employee, or other worker of a juridical or natural person,
conducted an act, in regard to business or property of such
juridical or natural person in violation of the provisions set forth in
each item below, the person who conducted such an act shall be
imposed a penalty; in addition, the juridical person shall be
imposed the penalty of fine set forth in each such item; and the
natural person shall also be imposed such fine as prescribed in
each applicable article … [article sets out fine amounts]
A second example is in article 164(1) of the Corporation Tax Act, which
provides:
In a case where a representative of a legal person, or an agent,
an employee, or a worker of other types, of a legal or a natural
person, violated regulations as provided in Art. 159, Para. 1 (crime
of tax evasion), Art. 160 (crime of non submitting final declaration),
or Art. 162 (crime of submitting deceptive intermediate
declaration) in the process of carrying out business pertaining to
the said legal or natural person, the primary actor shall be
punished. In addition, the said legal or natural person shall be
fined pursuant to the aforesaid articles.
A final example is article 22(1) of the Unfair Competition Prevention Act
(as at 1 November 2005)
When a representative of a juridical person, or an agent, employee
or any other [sic] of a juridical person or an individual has
committed a violation prescribed in any of the provisions of the
following items with regard to the business of said juridical person
or said individual, not only the offender but also said juridical
person shall be punished by the fine specified by the respective
items, or said individual shall be punished by the fine prescribed
in the relevant article: [article lists fines]133 Although the precise
wording differs, a common underlying form is discernible.134 On
proof that a relevant natural person committed the physical
elements of the offence, the legal person may be liable to a fine.
In the case of agents, it appears that no further attribution is
required. In the case of employees, it must be shown that there
54
 was negligence on the part of the legal person in appointing or
supervising the employee. Such negligence is, however,
presumed, unless rebutted.135 Commentators have suggested
that corporate criminal liability in Japan thus amounts to a form of
strict liability.
Situation of other countries with Corporate Criminal Liability statutes
(NOTE: the article just briefly stated the statutes of the ff countries):
Austria, Belgium, China, Denmark, Iceland, Ireland, India, Indonesia,
South Africa, South Korea, The Netherlands, New Zealand, Norway.
Impact of Corporate Culture Provisions
Corporate culture provisions are likely to have a significant impact on the
scope of criminal liability, by instituting a conceptual shift in the basis of
this liability and making it easier, as a practical matter, to find corporations
criminally liable, at least as compared to the identification approach
currently found in the UK. In the course of drafting the Australian corporate
culture provisions, the MCCOC observed that ‘the concept of “corporate
culture” casts a much more realistic net of responsibility over corporations
than the unrealistically narrow Tesco test.’ Taking corporate culture into
account at the liability stage increases the breadth of application of
corporate criminal liability substantially. In doing so, it increases the
incentives to improve internal controls as a failure to do so increases the
risk of prosecution.
The ways in which corporate culture provisions operate are complex and
varied. In Australia, for example, they are relevant at the liability stage, in
determining whether or not the corporation has liability at all, and do not
yet have a corresponding, formally codified role in the fixing of sentences.
In other countries whose regimes for corporate liability take into account
corporate culture factors, corporate culture is also generally taken into
account at the liability stage, though some aspects of corporate culture
may be relevant to sentencing.
The question of at what stage corporate culture provisions are likely to
have the greatest impact depends on both the theoretical rationales for the
criminal justice system and, assuming that at least one motivation for
introducing the provisions is to deter and prevent wrongdoing, whether
corporations and their officers are likely to be more influenced by the risk
of being found criminally responsible for wrongdoing, or by the magnitude
of potential fines.
Using corporate culture factors at the sentencing stage may pave the way
for the imposition of quite sophisticated remedial measures upon a
corporation (such as the adoption of compliance policies and staff
education, which may be ordered in the US). Such remedial measures
may be effective in both addressing existing breaches within corporations,
and setting an example for other corporations.
Moreover, taking corporate culture into account at the sentencing stage
may offer more flexibility in terms of responding to the varying degrees of
moral blameworthiness of corporate actors. Models of organisational
liability tend to require only that the corporation has failed to take
reasonable precautions to prevent the commission of an offence, which
can capture a broad spectrum of behaviours from mere oversight and
incompetence to a wilful disregard for human life. While sentencing
practices would, in any case, tend to differentiate between these different
levels of culpability, integrating corporate culture into sentencing
considerations would allow close attention to the organisational
deficiencies that actually permitted the relevant conduct to occur.
There is no reason why corporate culture considerations should not be
relevant, albeit in different ways, at both the liability and sentencing stages.
Designing Corporate Liability provisions
In designing corporate liability provisions, States must consider a range of
issues including the following:
• On whose fault is the corporate liability based?
• What standard of liability is adopted?
• Who must prove liability?
• Is liability general or specific?
• What relationship must exist between the physical actor and the
corporation sought to be held liable?
• What relationship must exist between the prosecution of the
corporation and the prosecution of the individual offender?
• What link needs to exist between the corporation and the subject-
matter of the offending?
Other issues may also need to be addressed in the course of designing a
corporate liability regime, for example, the kinds of corporate entity
covered, jurisdiction, sanctions and enforcement.
Analysis of Impact of Corporate Culture Provisions in Specific Areas
Piercing the corporate veil
55
One issue that arises in connection with the prosecution of corporations is Leaving aside difficulties with the attribution of physical acts, a question
the 'corporate veil', or the fact that the legal structure of corporate entities also arises as to the determination of the corporation's mental state. The
may effectively shield corporate decision-makers from liability. identification and expanded identification approaches require that a
At present, no corporate culture provisions appear to directly provide for member of the corporation's senior management have the direct intention
the corporate veil to be pierced. For example, under the Australian to commit the relevant offence (or to be complicit in, or aid and abet the
provisions, the physical element of an offence and the fault element must offence, if an accessorial liability argument is mounted). The vicarious
apparently both be attributable to the same legal person. liability model is, in a way, indifferent to the state of mind of the corporation:
However, on a conceptual basis, corporate culture provisions may pave once it can be established that an individual committed the offence, it will
the way for challenges to the corporate veil, in that they focus attention on be imputed to the corporation in most cases if it can be shown that it was
the actual process of decision-making and line of authority, rather than to intended at least in part to benefit the corporation. An organisational
the legal structure of corporate groups. It would be conceivable that the liability approach, by contrast, would focus on the aggregate corporate
corporate culture context could give rise to new understandings of the failings that permitted the contractor to commit the offence.
physical element of offences, and provide for physical elements to be
attributed to corporations that effectively ordered or required them to be
committed. Alternatively, a failure to adequately supervise corporate
subsidiaries could become an offence in its own right.
Liability for wrongdoing by contractors
Another issue that typically arises in connection with the prosecution of
corporations is the extent to which corporations may be held liable for the
acts of contractors and their staff, rather than the corporation's own
employees.

The major question in such cases is whether the physical acts of

contractors can be attributed to the corporation. In the identification and
expanded identification approaches, the individual offender must be so
closely identified with the corporation that this is unlikely. The vicarious
liability model can attribute liability to the corporation for the acts of an
agent, which potentially extends to contractors. On the organisational
liability model as it exists in Australia, a physical act must still be committed
by 'an employee, agent or officer'. It is not clear whether this extends to
independent contractors. However, there is no conceptual reason why an
organisational liability model could not extend to physical acts committed
by contractors as agents of corporations.
Moreover, depending upon the body of criminal law in question, it may be
possible for corporations to be complicit in, or have some other form of
accessorial liability for, the acts of their contractors. In such
circumstances, the assistance or complicity may be constituted by acts of
employees of the corporation that can be attributed relatively easily to the
corporation itself.

56
57
 RUGGIE’S FRAMEWORK AND GUIDING PRINCIPLES
1. J. Ruggie, Interim Report of the Special Representative (2006)
On 22 February 2006, the Special Representative of the Secretary-
General on the Issue of Human Rights and Transnational Corpora-
tions and Other Business Enter- prises, John G. Ruggie, submitted his
interim report to the Commission on Human Rights at its sixty- second
session.
Who is John Ruggie?
Ruggie is one of the main architects of the UN Global
Compact, served as the Special Advisor to the Secretary General on
this initiative and had in this function played, inter alia, an important
role in the development of the Global Compact’s new gov- ernance
structure until July 2005.
Objective:
To strengthen the promotion and protection of human rights
in relation to transnational corporations and other business
enterprises but that governments bear principal responsibility for the
vindication of those rights.
Three broad contextual factors frame the Special
Representative’s analysis of the rapidly evolving business and
human rights
A. The institutional features of globalization
B. Overall patterns in alleged corporate abuses and their
correlates
C. The characteristic strengths and weaknesses of existing
responses established to deal with human rights challenges.
GLOBALIZATION
Three distinct drivers are behind the increased attention on
transnational corporations:
1. The successful accumulation of power by one type of social
actor will induce efforts by others with different interests or
aims to organize countervailing power.
2. Some companies have made themselves and even their
entire industries targets by committing serious harm to human
rights, labor standards, environmental protection, and other
social concerns. This has generated increased demands for
greater corporate responsibility and accountability, often
supported by companies wishing to avoid similar problems or
to turn their own good practices into a competitive advantage
3. The sheer fact that it has global reach and capacity and that
it is capable of acting at a pace and scale that neither
Governments nor international agencies can match
ABUSES AND CORRELATES
There being no global repository of comprehensive, consistent and
impartial information, we cannot say with certainty whether abuses in
relation to the corporate sector are increasing or decreasing over time,
only that they are reported more extensively because more actors
track them and transparency is greater than in the past.
Thus quite apart from bad judgments or acts of malfeasance by
corporate officials, these distinctive institutional features of
transnational corporations, if left unattended, increase the probability
that “the company” in some manifestation will run afoul of its own
corporate principles or community expectations of responsible
corporate behaviour. The core challenge of business and human
rights, then, lies in devising instruments of corporate and public
governance to contain and reduce these tendencies.
To provide an illustrative profile of alleged corporate human rights
abuses and their correlates, the Special Representative of the
Secretary-General surveyed 65 instances recently reported by NGOs.
The extractive sector - oil, gas and mining - utterly dominates this
sample of reported abuses with two thirds of the total. The food and
beverages industry is a distant second, followed by apparel and
footwear and the information and communication technology sector.
The extractive industries also account for most allegations of the worst
abuses, up to and including complicity in crimes against humanity.
58
These are typically for acts committed by public and private security
forces protecting company assets and property; large-scale
corruption; violations of labour rights; and a broad array of abuses in
relation to local communities, especially indigenous people.
This brief profile suggests two implications for the design of policy
responses: First, significant differences exist among various industry
sectors in terms of the types and magnitude of human rights
challenges. Second, there is clearly a negative symbiosis between the
worst corporate-related human rights abuses and host countries that
are characterized by a combination of relatively low national income,
current or recent conflict exposure, and weak or corrupt governance.
Existing Responses
Instituting effective policies and practices to deal with human rights
challenges has been on the agenda of civil society actors,
corporations and Governments for some time
The United Nations Global Compact is by far the world’s largest
corporate social responsibility initiative, with more than 2,300
participating companies.
 Its human rights principles introduced the
concepts of “complicity” and “spheres of influence” into corporate
social responsibility discourse, where they have taken on a life of their
own. In essence, the Global Compact is a learning network, sharing
and disseminating good practices.
The ILO has had responsibility for labour standards since 1919. Its
1998 Declaration on Fundamental Principles and Rights at Work is
widely referenced by other initiatives including the Global Compact,
and its Tripartite Declaration of Principles Concerning Multinational
Enterprises, most recently revised in 2000, constitutes an important
normative statement with formal implementation procedures involving
all three social sectors.
The Fair Labor Association (FLA) dopt a programme of workplace
standards implementation, monitoring and remediation in order to
bring some 4,000 manufacturing sites into compliance with FLA
standards, which go beyond the ILO’s. The recent FLA experience
with monitoring may have wider implications for corporate
responsibility and accountability in relation to human rights.
The Kimberley Process Certification Scheme (KPCS) was launched in
2002 to stem the flow of conflict diamonds, the trade in which has
fuelled devastating conflicts and human suffering in Africa.
The Voluntary Principles on Security and Human Rights (VPs),
adopted in 2000, address the critical nexus between the legitimate
security needs of companies in the extractive sector and the human
rights of people in surrounding communities, which can and often have
been abused by security forces.

In short, fragments of collaborative governance are emerging in a
variety of sectors, specifically tailored for the characteristic dilemma
situations in each.
Strategic Directions
Principle Pragmatism
The role of States in relation to human rights is not only primary but
also critical. The debate about business and human rights would be
far less pressing if all Governments faithfully executed their own laws
and fulfilled their international obligations.
Finally, ways must be found to engage State-owned enterprises in
addressing human rights challenges in their spheres of operation.
They are becoming increasingly important players in some of the most
troubling industry sectors yet appear to operate beyond many of the
external sources of scrutiny to which commercial firms are subject.
2. J. Ruggie, Clarifying the [Concepts] of “Sphere of Influence”
..., U.N. Doc. A/HRC/8/16 (May 15, 2008)
INTRODUCTION
What is it about?
59
  It is about the issue of Human Rights and Transnational
Corporations and other Business Enterprises specifically
paragraph 1 (c) to “research and clarify the implications
for transnational corporations and other business
enterprises of concepts such as ‘complicity’ and ‘sphere
of influence’”.
What are the objectives of the present report?
1. The corporate responsibility to respect human rights.
2. To respect rights essentially means not to infringe on the
rights of others, put simply, to do no harm.
What are the Three (3) Core principles of his Strategy
Framework?
1. The State duty to protect against human rights abuses
by third parties, including business;
2. The corporate responsibility to respect human rights; and
3. The need for more effective access to remedies.
But how do companies know they respect human rights? Do
they have systems in place enabling them to support the
claim with any degree of confidence?
 Most do not. What is required, therefore, is due
diligence, a process whereby companies not only ensure
compliance with national laws but also manage the risk of
human rights harm with a view to avoiding it.
 Hence, the concepts of sphere of influence and complicity
have potential implications for the scope of due diligence
- the range of factors and actors a company needs to
consider as it exercises its due diligence
SPHERE OF INFLUENCE AND BEYOND
 The sphere of influence concept combines too many
different dimensions to serve as the basis for defining
the scope of due diligence, and that influence by itself
is an inappropriate basis for assigning corporate
responsibility.
 This section on sphere of influence is organized in
three parts.
1. The first summarizes the origins and current
usage of the concept, acknowledging that it has
been a helpful metaphor for companies to use in
conceptualizing human rights responsibilities and
opportunities outside the workplace.
2. The second part notes that the field of business
and human rights has advanced rapidly since the
concept was first introduced, and that greater rigor
is necessary today to provide companies with
sufficient guidance in identifying specific actions
they need to take to respect human rights.
3. The third part briefly outlines an alternative
approach to defining the scope of due diligence.
A. Origins and current usage of sphere of
influence
 The United Nations Global Compact first
introduced the concept of sphere of influence into
corporate social responsibility discourse.
PURPOSE: It was intended to help companies “support
and respect the protection of internationally proclaimed
human rights” within and beyond their workplaces.
COMPOSITION: It consists of a set of concentric circles,
mapping stakeholders in a company’s value chain:
1. with employees in the innermost circle, then moving
outward
2. to suppliers,
3. the marketplace,
4. the community, and
5. governments.
60
The model made the implicit assumption that the “influence”, and
thus presumably the responsibility, of a company declines as one
moves outward from the centre. This model has helped companies
to consider their roles in society beyond the workplace, and what to
respect and support human rights.
B. Limitations of the concept for today’s business
and human rights agenda
 When the United Nations draft norms on the responsibilities
of transnational corporations and other business
enterprises sought to employ the concept of sphere of
influence to demarcate legal obligations of companies,
using the concept as though it were a functional
equivalent to a State’s jurisdiction.
 Imprecision and ambiguity in the concept stem from a
number of sources, above all the fact that the concentric
circles model does not differentiate stakeholders whose
rights could be affected negatively by a company’s
practices, such as communities, from actors over whose
actions the company might have some degree of
influence, whether suppliers, communities, or
Governments.
 Two very different meanings of “influence”.
o One is “impact”, where the company’s
activities or relationships are causing human
rights harm. Impact falls squarely within the
responsibility to respect
o The other is whatever “leverage” a company
may have over actors that are causing harm or
could prevent harm. leverage may only do so in
particular circumstances.
 “The sphere of influence concept implies that the
more control, authority or influence a business has
over a situation giving rise to human rights abuses
(or the means to improve respect for human rights),
the greater the business responsibility to act.”
 GR: Influence as a basis for assigning
responsibility invites manipulation.
o This is so because influence can only be
defined in relation to someone or something.
Thus, it is itself subject to influence.
E xa mpl e: A Government can deliberately fail to perform
its duties in the hope or expectation that a company will
yield to social pressures to promote or fulfil certain rights,
demonstrating why State duties and corporate
responsibilities must be defined independently of one
another.
 When the concept of sphere of influence has been
operationalized further, it has been through the term
proximity: “The ‘sphere of influence’ of a business
entity tends to include the individuals to whom it
has a certain political, contractual, economic or
geographic proximity.
 GR: Every business entity, whatever its size, will
have a sphere of influence; the larger it is, the larger
the sphere of influence is likely to be.”  But the
61
 precise meaning of proximity remains unclear. In short, while sphere of influence remains a useful metaphor for
companies to think broadly about their human rights responsibilities
What is an example of “political proximity”? and opportunities beyond the workplace, it is of limited utility in
 Violations of privacy rights by Internet service clarifying the specific parameters of their responsibility to respect
providers can endanger dispersed end-users. Hence, human rights.
it is not proximity that determines whether or not a
human rights impact falls within the responsibility to
respect, but rather the company’s web of activities and
relationships.
 Clearly, companies need to be concerned with their
impact on workers and surrounding communities, but
their activities can equally affect the rights of people
far away from the source, as, for example,

Raffy: PLEASE CLARIFY THE CONCEPT OF SPHERE OF

INFLUENCE, beshie hindi ko siya gets…

Special Representative: O k a y . W e w i l l explore the possibility of

redefining corporate “influence” in terms of “control” or “causation”.
However, those concepts, in turn, may be too restrictive for
companies that seek to not only respect rights but also to voluntarily
“support” them, as, for example, in the context of the Global Compact.

 Furthermore, the concepts of control or causation could

wrongly limit the baseline responsibility of companies to
respect rights.
 The responsibility to respect requires that companies
exercise due diligence
a. to identify,
b. prevent and
c. address adverse human rights impacts related to
their activities.

Raf f y: If the scope of due diligence were defined by control and

causation this could imply what will you give us an example..
Special Representative: that companies will not be required to
consider the human rights impacts of suppliers they do not legally
control, or situations where their own actions might not directly cause
harm but indirectly contribute to abuse.

62
3. 2008 Report of the Special Representative – Protect, Respect and Remedy: a Framework for Business and Human Rights, U.N. Doc.
A/HRC/8/5 (April 07, 2008)

Introduction

 adapting the human rights regime to provide more effective protection to individuals and communities against
Aim corporate-related human rights harm through principles-based conceptual and policy framework intended to help
achieve this aim.

Problem  markets pose the greatest risks - to society and business itself - when their scope and power far exceed the reach of
the institutional underpinnings that allow them to function smoothly and ensure their political sustainability. This
is such a time and escalating charges of corporate-related human rights abuses are the canary in the coal mine,
signalling that all is not well.

Root cause of the  governance gaps created by globalization - between the scope and impact of economic forces and actors, and the
business and human capacity of societies to manage their adverse consequences.
rights predicament  gaps provide the permissive environment for wrongful acts by companies of all kinds without adequate sanctioning
or reparation.

Suggested framework by  creation of a limited list of human rights for which companies would have responsibility, while extending to
other stakeholders companies, where they have influence, essentially the same range of responsibilities as States.

Problem:

 business can affect virtually all internationally recognized rights, which will not be on the list
 as economic actors, companies have unique responsibilities. If those responsibilities are entangled with State
obligations, it makes it difficult if not impossible to tell who is responsible for what in practice.

Suggested framework by  the State duty to protect against human rights abuses by third parties, including business;
this REPORT  the corporate responsibility to respect human rights; and
 the need for more effective access to remedies

State Duty to Protect

 recognized by international law
 Challenge: diverse array of policy domains through which States may fulfil this duty with respect to business activities

63

Corporate  foster corporate cultures in which
Culture respecting rights is an integral part of
doing business
 governments can support and strengthen
market pressures on companies to
respect rights.
Policy 1. Vertical incoherence
Alignment 2. Horizontal Incoherence
International  Effective guidance and support at the
Level international level would help States
achieve greater policy coherence.
 Peer learning
 partnerships could be particularly
fruitful between States that have
extensive trade and investment links,
and between the home and host States of
the same transnationals.
Conflict Zone  egregious human rights abuses, including
those related to corporations, occur in
conflict zones
 Home States could identify indicators to
trigger alerts with respect to companies
ILLUSTRATION CHALLENGE
some States are beginning to use
“corporate culture” in deciding corporate
criminal accountability.
 They examine a company’s policies,
rules and practices to determine
criminal liability and punishment,
rather than basing accountability on
the individual acts of employees or
officers
Imbalance of Interest
 Human rights is of a public
concerns but the prevailing
norm is to treat human
rights related abuses as a
commercial concern
 Bilateral treaties
 ECAs (export credit
agencies)
Human rights treaty bodies
States lacking technical and financial
assistance
the OECD Guidelines are currently the
most widely applicable set of government-
endorsed standards related to corporate
responsibility and human rights.
The human rights regime cannot  State policies and practices -
function as intended in the unique where they exist at all - are
circumstances of sporadic or sustained limited, fragmented and
violence, governance breakdown, and mostly unilateral
absence of the rule of law
64
 in conflict zones. Then, withdraw State
support
 The use of Security Council sanctions
targeting certain companies deemed to
have contributed to conflicts in the
Democratic Republic of the Congo,
Sierra Leone and Liberia demonstrated a
restraining effect.
The human rights regime rests upon the bedrock role of States. That is why the duty to protect is a core principle of the business and human rights
framework. But meeting business and human rights challenges also requires the active participation of business directly. We now turn to the second
principle.
Respecting human rights
Respecting  the baseline responsibility of companies
Rights is to respect human rights.
 corporate responsibility to respect exists
independently of States’ duties.
 “doing no harm” is not merely a passive
responsibility for firms but may entail
positive steps
Due  required in order to discharge this
diligence corporate responsibility to respect
human rights
 This concept describes the steps a
company must take to become aware of,
prevent and address adverse human
rights impacts.
many States lag behind international
institutions and responsible businesses in
grappling with these difficult issues
ILLUSTRATION
Scope as defined by the government,
through legal compliance of national
laws
Scope as defined by social
expectations - as part of what is
sometimes called a company’s social
license to operate.
Scope, 3 factors to consider
 The first is the country contexts
in which their business
activities take place, to
highlight any specific human
rights challenges they may pose.
 The second is what human
rights impacts their own
activities may have within that
context - for example, in their
capacity as producers, service
 there is a need for more
proactive policies to prevent
harmful corporate
involvement in conflict
situations.
 States need to do more to
“promote conflict-sensitive
practices”
CHALLENGE
Basic human rights due
diligence process should include
the following:
1. Policies
 adopt a human rights policy
 Broad aspirational language may
be used to describe respect for
human rights
 More detailed guidelines in
specific functional areas
2. Impact assessments
65
 providers, employers, and
neighbours.
 The third is whether they
might contribute to abuse
through the relationships
connected to their activities,
such as with business partners,
suppliers, State agencies, and
other non-State actors.
 Companies must take proactive
steps to understand how existing
and proposed activities may
affect human rights. Integration
 should include explicit
references to internationally
recognized human rights.
3. Integration
 integration of human rights
policies throughout a company
may be the biggest challenge in
fulfilling the corporate
responsibility to respect.
 As is true for States, human
rights considerations are often
isolated within a company. That
can lead to inconsistent or
contradictory actions: product
developers may not consider
human rights implications
 Leadership from the top is
essential to embed respect for
human rights throughout a
company, as is training to ensure
consistency, as well as capacity
to respond appropriately when
unforeseen situations arise
4. Tracking performance
 Monitoring and auditing
processes
 permit a company to track
ongoing developments
 needed to create appropriate
incentives and disincentives for
66

Sphere of  spatial metaphor: the “sphere” was
Influence expressed in concentric circles with
company operations at the core, moving
outward to suppliers, the community,
and beyond, with the assumption that
the “influence” - and thus presumably
the responsibility - of the company
declines from one circle to the next.
 Used as a basis for attributing legal
obligations to companies, using it as
though it were analogous to the
jurisdiction of States.
 a useful metaphor for companies in
thinking about their human rights
impacts beyond the workplace and in
identifying opportunities to support
human rights, which is what the Global
Compact seeks to achieve
Complicity  indirect involvement by companies in
human rights abuses - where the actual
harm is committed by another party,
including governments and non-State
actors.
International criminal law:
Conflates two very different meanings of
influence:
1. impact, where the company’s
activities or relationships are
causing human rights harm
(falls squarely within the
responsibility to respect)
2. whatever leverage a company
may have over actors that are causing
harm
 activities.
Legal
 the area of aiding and abetting
international crimes, i.e.
knowingly providing practical
assistance or encouragement
that has a substantial effect on
the commission of a crime
employees and ensure
continuous improvement
 regular updates of human rights
impact and performance are
crucial
 initiatives can promote sharing
of information, improvement of
tools, and standardization of
metrics
In relation to due diligence
 the scope of due diligence to
meet the corporate
responsibility to respect human
rights cannot be not a fixed
sphere, nor is it based on
influence.
 it depends on the potential and
actual human rights impacts
resulting from a company’s
business activities and the
relationships connected to those
In relation to due diligence:
 Due diligence can help a
company avoid complicity.
Relationship between complicity and due
diligence is clear and compelling:
67
  complicity does not require knowledge
of the specific abuse or a desire for it to
have occurred, as long as there was
knowledge of the contribution.
 If company activities contributed to the
abuse and the company was aware or
should have been aware of its
contribution
“having knowledge”
 Not only actual knowledge, but apply
the “should have known standard”
Judicial  States should strengthen judicial capacity to
Mechanism hear complaints and enforce remedies
against all corporations operating or based
in their territory, while also protecting
against frivolous claims. States should
address obstacles to access to justice,
including for foreign plaintiffs - especially
where alleged abuses reach the level of
widespread and systematic human rights
violations.
Non-legal
 corporate complicity has
become an important
benchmark for social actors
 can impose reputational costs
and even lead to divestment,
without legal liability being
established.
 allegations of complicity have
included indirect violations of
the broad spectrum of human
rights - political, civil,
economic, social, and cultural
 Example: deriving a benefit
from a human rights abuse is
not likely on its own to bring
legal liability, but benefiting
from abuses may carry negative
implications for companies in
the public perception.
ACCESS TO REMEDIES
ILLUSTRATION
Problem
 Judicial mechanisms are often under-
 companies can avoid complicity
by employing the due diligence
processes to both own activities
and to relationships connected
with them
Problem
 it is not possible to specify
definitive tests for what
constitutes complicity in any
given context.
CHALLENGE
equipped to provide effective
remedies for victims of corporate
abuse. Victims face particular
challenges when seeking personal
compensation or reparation as
opposed to more general sanction of
the corporation through a fine or
administrative remedies.
68
Non- judicial Criteria to be credible and effective: (LAPERT)  If company directly involved,
grievance problem as to fairness and
mechanism (a) Legitimate: a mechanism must have clear, impartiality may arise if the company
transparent and sufficiently independent stands as both defendant and judge
governance structures to ensure that no party to a
particular grievance process can interfere with the
fair conduct of that process;

(b) Accessible: a mechanism must be publicized to

those who may wish to access it and provide
adequate assistance for aggrieved parties who may
face barriers to access, including language, literacy,
awareness, finance, distance, or fear of reprisal;

(c) Predictable: a mechanism must provide a clear

and known procedure with a time frame for each
stage and clarity on the types of process and
outcome it can (and cannot) offer, as well as a means
of monitoring the implementation of any outcome;

(d) Equitable: a mechanism must ensure that

aggrieved parties have reasonable access to sources
of information, advice and expertise necessary to
engage in a grievance process on fair and equitable
terms;

(e) Rights-compatible: a mechanism must ensure

that its outcomes and remedies accord with
internationally recognized human rights standards;

(f) Transparent: a mechanism must provide sufficient

transparency of process and outcome to meet the
public interest concerns at stake and should presume
transparency wherever possible; non-State

69
 mechanisms in particular should be transparent
about the receipt of complaints and the key
elements of their outcomes.

Company-level  An effective grievance mechanism is part of

grievance the corporate responsibility to respect.
mechanism  could include the use of external resources -
possibly shared with other companies -
such as hotlines for raising complaints,
advisory services for complainants, or
expert mediators. Or it may involve a
wholly external mechanism
 only limit: must comply with same criteria
as set for non-judicial grievance mechanism
(LAPERT) plus engagement and dialogue
State-based  in the form of national human rights
non-judicial institutions (NHRIs)
mechanisms  NHRIs are particularly well-positioned to
provide processes - whether adjudicative or
mediation-based - that are culturally
appropriate, accessible, and expeditious.
Even where they cannot themselves handle
grievances, they can provide information
and advice on other avenues of recourse to
those seeking remedy.
Multi-  Grievance mechanism provides for an Questions as to credibility of initiations and
stakeholder or important check on performance institutions
industry  the Voluntary Principles on Security
initiatives and and Human Rights recently faced this
financiers challenge, and the Special
Representative knows of calls for
other initiatives, including the
Equator Principles, to develop a
grievance process.

70
  while many of these mechanisms
require their corporate members or
clients to have their own grievance
processes as a first port of call, few set
clear process standards for them.
 This risks encouraging tokenistic
rather than effective processes at the
operational level.
Gaps in access  Present: only a patchwork of grievance Suggestions:
mechanisms at different levels of the creation of a global
international system, with different ombudsman (could receive
constituencies and processes and handle all complaints)
 lack access  need to provide
 lack of awareness (as to what mechanisms ready access
are there, how and where) without becoming
 limitations in the competence and coverage a first port of call
of existing mechanisms  offer effective
 processes without
undermining the
development of
national
mechanisms
 provide timely
responses while
likely being located
far from
participants, and
 furnish while
appropriate
solutions dealing
with different
sectors, cultures
and political
context

71
Conclusion
 Many countries, including in the developing world, have been able to take advantage of this new economic landscape to increase prosperity and
reduce poverty. But, rapid development has posed governance gaps between the scope of economic activities and actors, and the capacity of
political institutions to manage their adverse consequences
 Progress has been made by various efforts, our fundamental problem is that there are too few of them, none has reached a scale commensurate
with the challenges at hand, there is little cross-learning, and they do not cohere as parts of a more systemic response with cumulative effects.
 That is what needs fixing. And that is what the framework of “protect, respect and remedy” is intended to help achieve.

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4. Guiding Principles on Business and Human Rights:
Implementing the United Nations ‘Protect, Respect and
Remedy’ Framework, U.N. Doc. A/HRC/17/31 (2011)
UN GUIDING PRINCIPLES ON BUSINESS HUMAN RIGHTS
GENERAL  These Guiding Principles are
PRINCIPLES grounded in recognition of:
(a) States’ existing obligations to
respect, protect and fulfill human
rights and fundamental freedoms;
(b) role of business enterprises as
specialized organs of society
performing specialized functions,
required to comply with all
applicable laws and to respect
human rights;
(c) need for rights and obligations to
be matched to appropriate and
effective remedies when
breached.
 These Guiding Principles:
o apply to all States and to all
business enterprises, both
transnational and others,
regardless of their size, sector,
location, ownership and
structure.
o should be understood as a whole
and should be read, individually
and collectively, in terms of their
objective of enhancing standards
and practices with regard to
business and human rights
o do not create new international
law obligations, or as limiting or
undermining any legal obligations
a State may have undertaken or
be subject to under international
law with regard to human rights.
o should be implemented in a non-
discriminatory manner
I. STATE DUTY TO PROTECT HUMAN RIGHTS
A. FOUNDATIONAL PRINCIPLES
1. States must  States’ international human rights law
protect against obligations require that they respect,
human rights abuse protect and fulfill the human rights of
within their territory individuals within their territory and/ or
and/or jurisdiction by jurisdiction, including the duty to
third parties, protect against human rights abuse
including business by third parties, including business
enterprises. enterprises.
 The State duty to protect is a standard
This requires taking of conduct.
appropriate steps to  States are not per se responsible for
prevent, investigate, human rights abuse by private actors,
punish and redress but States may breach their
such abuse through international human rights law
effective policies, obligations where such abuse can be
legislation, attributed to them, or where they fail
regulations and to take appropriate steps to prevent
adjudication. private actors’ abuse through
preventative and remedial measures,
including policies, legislation,
regulations and adjudication.
 The measures should ensure equality
before the law, fairness in its
application, and should provide
adequate accountability, legal
certainty, and procedural and legal
transparency.
2. States should set  States are not generally required to
out clearly the regulate the extraterritorial activities
expectation that all of businesses domiciled in their
business enterprises territory and/or jurisdiction, nor
domiciled in their generally prohibited from doing so,
territory and/or provided there is a recognized
jurisdiction respect jurisdictional basis.
human rights  There are strong policy reasons for
throughout their
73
operations. home States to set out clearly the duty to protect, businesses invariably prefer, or
expectation that businesses respect States should: benefit from, State inaction, and they
human rights abroad. This is to should consider a smart mix of
ensure predictability for business (a) Enforce laws that measures – national and
enterprises by providing coherent and are aimed at, or have international, mandatory and
consistent messages, and preserving the effect of, voluntary – to foster business respect
the State’s own reputation. requiring business for human rights.
 Some of the domestic measures have enterprises to  The failure to enforce existing laws
extraterritorial implications: respect human that directly or indirectly regulate
o include requirements on rights, and business respect for human rights is
“parent” companies to report periodically to often a significant legal gap in State
on the global operations of assess the adequacy practice. (e.g. non-discrimination and
the entire enterprise; of such laws and labor laws to environmental, property,
o multilateral soft-law address any gaps; privacy and anti-bribery laws)
instruments such as the  It is important for States:
Guidelines for Multinational (b) Ensure that other o to consider whether such
Enterprises of the laws and policies laws are currently being
Organization for Economic governing the enforced effectively, and if
Co-operation and creation and ongoing not, why this is the case and
Development; and operation of what measures may
o performance standards business reasonably correct the
required by institutions that enterprises, such as situation
support overseas corporate law, do not o to review whether these laws
investments. constrain but enable provide an environment
 Other approaches amount to direct business respect for conducive to business
extraterritorial legislation and human rights; respect for human rights
enforcement.  Laws and policies that govern
o criminal regimes that allow (c) Provide effective business enterprises, such as
for prosecutions based on the guidance to corporate and securities laws, directly
nationality of the perpetrator business enterprises shape business behavior, but their
no matter where the offence on how to respect implications for human rights remain
occurs. Various factors may human rights poorly understood.
contribute to the perceived throughout their o Example: lack of clarity in
and actual reasonableness of operations; corporate and securities law
States’ actions, for example regarding what companies
whether they are grounded in (d) Encourage, and and their officers are
multilateral agreement. where appropriate permitted, let alone required,
B. OPERATIONAL PRINCIPLES require, business to do regarding human rights.
GENERAL STATE REGULATORY AND POLICY FUNCTIONS enterprises to Laws and policies in this area
3. In meeting their  States should not assume that communicate how should provide sufficient

74
they address their guidance to enable business enterprises.
human rights enterprises to respect human o Incentives to communicate
impacts. rights, with due regard to the adequate information could
role of existing governance include provisions to give
structures such as corporate weight to such self-reporting
boards. in the event of any judicial or
 Guidance to business enterprises on administrative proceeding.
respecting human rights: o adequate communication
o should indicate expected should take into account risks
outcomes that it may pose to the safety
o help share best practices, and security of individuals
appropriate methods, and facilities; legitimate
including human rights due requirements of commercial
diligence, and how to confidentiality; and variations
consider effectively issues of in companies’ size and
gender, vulnerability and/or structures..
marginalization, recognizing THE STATE-BUSINESS NEXUS
the specific challenges that 4. States should take  States individually are the primary
may be faced by different additional steps to duty-bearers under international
vulnerable sectors of society. protect against human rights law, and collectively
 National human rights institutions that human rights abuses they are the trustees of the
comply with the Paris Principles have by business international human rights regime.
an important role to play in helping enterprises that are  Where a business enterprise is
States identify whether relevant laws owned or controlled controlled by the State or where its
are aligned with their human rights by the State, or that acts can be attributed otherwise to the
obligations and are being effectively receive substantial State:
enforced, and in providing guidance support and services o an abuse of human rights by
on human rights also to business from State agencies the business enterprise may
enterprises and other non-State such as export credit entail a violation of the
actors. agencies and official State’s own international law
 Communication by business investment obligations
enterprises on how they address their insurance or o there is a stronger the State’s
human rights impacts can range from guarantee agencies, policy rationale becomes for
informal engagement with affected including, where ensuring that the enterprise
stakeholders to formal public appropriate, by respects human rights
reporting. requiring human o they have greatest means to
 State encouragement of, or where rights due diligence. ensure that relevant policies,
appropriate requirements for, such legislation and regulations
communication are important in regarding respect for human
fostering respect for human rights by rights are implemented.

75
 Senior management typically of human rights. State’s expectations that these
reports to State agencies, enterprises respect human rights.
and associated government 6. States should  The conduct of commercial
departments have greater promote respect for transactions of States with business
scope for scrutiny and human rights by enterprises provides States with
oversight, including ensuring business enterprises unique opportunities to promote
that effective human rights with which they awareness of and respect for human
due diligence is conduct commercial rights by those enterprises, with due
implemented. transactions. regard to States’ relevant obligations
o agencies linked formally or under national and international law.
informally to the State may SUPPORTING BUSINESS RESPECT FOR HUMAN RIGHTS IN
provide support and services CONFLICT- AFFECTED AREAS
to business activities, 7. Because the risk of  Some of the worst human rights
including: export credit gross human rights abuses involving business occur amid
agencies, official investment abuses is heightened conflict over the control of territory,
insurance or guarantee in conflict- affected resources or a Government itself –
agencies, development areas, States should where the human rights regime
agencies and development help ensure that cannot be expected to function as
finance institutions. business enterprises intended.
 States should encourage and, where operating in those  In conflict-affected areas, the “host”
appropriate, require human rights due contexts are not State may be unable to protect
diligence (i.e., where the nature of involved with such human rights adequately due to a lack
business operations or operating abuses, including of effective control. Where
contexts pose significant risk to by: transnational corporations are
human rights), by the agencies involved, their “home” States have
themselves and by those business (a) Engaging at the roles to play in assisting both those
enterprises or projects receiving their earliest stage corporations and host States to
support. possible with ensure that businesses are not
5. States should  States do not relinquish their business enterprises involved with human rights abuse,
exercise adequate international human rights law to help them identify, while neighboring States can provide
oversight in order to obligations when they privatize the prevent and mitigate important additional support.
meet their delivery of services that may impact the human rights-  It is important to pay attention to the
international human upon the enjoyment of human rights. related risks of their risk of sexual and gender-based
rights obligations  Failure by States to ensure that activities and violence, which is especially
when they contract business enterprises respect human business prevalent during times of conflict.
with, or legislate for, rights may entail both reputational relationships;  To achieve greater policy coherence
business enterprises and legal consequences for the State and assist business enterprises
to provide services itself. (b) Providing adequately in such situations, home
that may impact  Thus, relevant service contracts or adequate assistance States should:
upon the enjoyment enabling legislation should clarify the to business o foster closer cooperation

76
enterprises to among their development commit or contribute
assess and address assistance agencies, foreign to gross human
the heightened risks and trade ministries, and rights abuses.
of abuses, paying export finance institutions in o consider multilateral
special attention to their capitals and within their approaches to prevent and
both gender-based embassies, as well as address such acts and
and sexual violence; between these agencies and support effective collective
host Government actors; initiatives
(c) Denying access o develop early-warning  All these measures are in addition to
to public support and indicators to alert States’ obligations under international
services for a government agencies and humanitarian law in situations of
business enterprise business enterprises to armed conflict, and under
that is involved with problems; and international criminal law.
gross human rights o attach appropriate ENSURING POLICY COHERENCE
abuses and refuses consequences to any failure 8. States should  States have to make difficult
to cooperate in by enterprises to cooperate in ensure that balancing decisions to reconcile
addressing the these contexts governmental different societal needs, through
situation; o warn business enterprises of departments, taking a broad approach to managing
the heightened risk of being agencies and other the business and human rights
(d) Ensuring that involved with gross abuses of State-based agenda, aimed at ensuring both
their current policies, human rights in conflict- institutions that vertical and horizontal domestic
legislation, affected areas. shape business policy coherence.
regulations and o review whether their policies, practices are aware  Vertical policy coherence entails
enforcement legislation, regulations and of and observe the States having the necessary policies,
measures are enforcement measures State’s human rights laws and processes to implement
effective in effectively address this obligations when their international human rights law
addressing the risk heightened risk, including fulfilling their obligations.
of business through provisions for human respective  Horizontal policy coherence means
involvement in gross rights due diligence by mandates, including supporting and equipping
human rights business. by providing them departments and agencies, at both
abuses. o take appropriate steps to with relevant the national and subnational levels,
address the gaps information, training that shape business practices –
 Example: civil, and support. including those responsible for
administrative or corporate law and securities
criminal liability for regulation, investment, export credit
enterprises and insurance, trade and labor – to be
domiciled or informed of and act in a manner
operating in their compatible with the Governments’
territory and/or human rights obligations.
jurisdiction that 9. States should  Economic agreements concluded by

77
maintain adequate States, either with other States or with their respective more consistent approaches
domestic policy business enterprises (e.g. bilateral mandates and o collective action through
space to meet their investment treaties, free trade capacities, to multilateral institutions can
human rights agreements or contracts for promote business help States level the playing
obligations when investment projects), create respect for human field with regard to business
pursuing business- economic opportunities for States, but rights and, where respect for human rights, but
related policy they can also affect the domestic requested, to help it should do so by raising the
objectives with other policy space of Governments. States meet their performance of laggards.
States or business  Thus, States should ensure the duty to protect o cooperation between States,
enterprises, for protection of human rights under the against human rights multilateral institutions and
instance through terms of such agreements, while abuse by business other stakeholders
investment treaties providing the necessary investor enterprises,
or contracts. protection as well. including through
 Example: the terms of international technical assistance,
investment agreements may capacity-building
constrain States from fully and awareness-
implementing new human rights raising;
legislation, or put them at risk of
binding international arbitration if they (c) Draw on these
do so. Guiding Principles to
10. States, when  Greater policy coherence is needed promote shared
acting as members at the international level, including understanding and
of multilateral where States participate in advance
institutions that deal multilateral institutions that deal with international
with business- business- related issues, such as cooperation in the
related issues, international trade and financial management of
should: institutions. These Guiding Principles business and human
(a) Seek to ensure provide a common reference point in rights challenges.
that those this regard. II. THE CORPORATE RESPONSIBILITY TO
institutions neither  States retain their international RESPECT HUMAN RIGHTS
restrain the ability of human rights law obligations when A. FOUNDATIONAL PRINCIPLES
their member States they participate in such institutions. 11. Business  The responsibility to respect human
to meet their duty to  Ways in promoting the States’ duty to enterprises should rights:
protect nor hinder protect: respect human o is a global standard of
business enterprises o capacity-building and rights. This means expected conduct for all
from respecting awareness-raising through that they should business enterprises
human rights; such institutions, enabling the avoid infringing on wherever they operate.
sharing of information about the human rights of o exists independently of
(b) Encourage those challenges and best others and should States’ abilities and/or
institutions, within practices, thus promoting address adverse willingness to fulfill their own

78
human rights human rights obligations, and enterprises to respect human rights is
impacts with which does not diminish those distinct from issues of legal liability
they are involved. obligations and enforcement, which remain
o exists over and above defined largely by national law
compliance with national provisions.
laws and regulations  Depending on circumstances,
protecting human rights. business enterprises may need to
 Addressing adverse human rights consider additional standards,
impacts requires taking adequate especially involving individuals from
measures for their prevention, the vulnerable or marginalized
mitigation and, where appropriate, sectors of society. United Nations
remediation. instruments have elaborated further
 Business enterprises may also on the rights of: indigenous peoples;
support and promote human right, but women; national or ethnic, religious
this does not offset a failure to respect and linguistic minorities; children;
human rights throughout their persons with disabilities; and migrant
operations. workers and their families; in
12. The  Because business enterprises can situations of armed conflict,
responsibility of have an impact on all internationally international humanitarian law should
business enterprises recognized human rights, their be respected.
to respect human responsibility to respect applies to all 13. The  Business enterprises may be involved
rights refers to such rights. But since situations may responsibility to with adverse human rights impacts
internationally change, all human rights should be respect human rights either through their own activities or
recognized human the subject of periodic review. requires that as a result of their business
rights – understood,  An authoritative list of the core business relationships with other parties.
at a minimum, as internationally recognized human enterprises:  Guiding Principle 19 elaborates
those expressed in rights is contained in the International further on the implications for how
the International Bill Bill of Human Rights (a) Avoid causing or business enterprises should address
of Human Rights and (1) Universal Declaration of contributing to these situations.
the principles Human Rights adverse human  A business enterprise’s “activities”
concerning (2) International Covenant on rights impacts are understood to include both
fundamental rights Civil and Political Rights through their own actions and omissions; and its
set out in the (3) International Covenant on activities, and “business relationships” are
International Labour Economic, Social and address such understood to include relationships
Organization’s Cultural Rights, impacts when they with business partners, entities in its
Declaration on (4) Eight ILO core conventions occur; value chain, and any other non-State
Fundamental as set out in the Declaration or State entity directly linked to its
Principles and on Fundamental Principles (b) Seek to prevent or business operations, products or
Rights at Work. and Rights at Work mitigate adverse services.
 The responsibility of business human rights

79
impacts that are appropriate to their
directly linked to size and
their operations, circumstances,
products or services including:
by their business
relationships, even if (a) A policy
they have not commitment to meet
contributed to those their responsibility to
impacts. respect human
14. The  The means through which a business rights;
responsibility of enterprise meets its responsibility to
business enterprises respect human rights will be (b) A human rights
to respect human proportional to, among other factors, due diligence
rights applies to all its size. process to identify,
enterprises  Severity of impacts will be judged by prevent, mitigate and
regardless of their their scale, scope and irremediable account for how they
size, sector, character. address their
operational context,  The means through which a business impacts on human
ownership and enterprise meets its responsibility to rights;
structure. respect human rights may also vary
Nevertheless, the depending on whether, and the extent (c) Processes to
scale and complexity to which, it conducts business enable the
of the means through through a corporate group or remediation of any
which enterprises individually. adverse human
meet that rights impacts they
responsibility may cause or to which
vary according to they contribute.
these factors and B. OPERATIONAL PRINCIPLES
with the severity of POLICY COMMITMENT
the enterprise’s 16. As the basis for  The term “statement”:
adverse human embedding their o is used generically, to
rights impacts. responsibility to describe whatever means an
15. In order to meet  Principles 16 to 24 elaborate further respect human enterprise employs to set out
their responsibility to on these. rights, business publicly its responsibilities,
respect human enterprises should commitments, and
rights, business express their expectations, depending on
enterprises should commitment to meet the complexity of the
have in place this responsibility business enterprise’s
policies and through a statement operations
processes of policy that: o should be publicly available

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 and be communicated for how they address essential components.
(a) Is approved at the actively to entities with which their adverse human  Human rights risks are the business
most senior level of the enterprise has rights impacts, enterprise’s potential adverse human
the business contractual relationships; business enterprises rights impacts.
enterprise; others directly linked to its should carry out  Human rights due diligence:
operations, which may human rights due o can be included within
(b) Is informed by include State security forces; diligence. The broader enterprise risk-
relevant internal investors; and, in the case of process should management systems,
and/or external operations with significant include assessing provided that it goes
expertise; human rights risks, to the actual and potential beyond simply identifying
potentially affected human rights and managing material
(c) Stipulates the stakeholders impacts, integrating risks to the company
enterprise’s human  Examples: and acting upon the itself, to include risks to
rights expectations o policies and procedures that findings, tracking rights-holders;
of personnel, set financial and other responses, and o should be initiated as
business partners performance incentives for communicating how early as possible in the
and other parties personnel; impacts are development of a new
directly linked to its o procurement practices; and addressed. Human activity or relationship,
operations, products o lobbying activities where rights due diligence: given that human rights
or services; human rights are at stake. risks can be increased or
(a) Should cover mitigated already at the
(d) Is publicly adverse human stage of structuring
available and rights impacts that contracts or other
communicated the business agreements, and may be
internally and enterprise may inherited through
externally to all cause or contribute mergers or acquisitions.
personnel, business to through its own  Where business enterprises have
partners and other activities, or which large numbers of entities in their value
relevant parties; may be directly chains, business enterprises should
linked to its identify general areas where the risk
(e) Is reflected in operations, products of adverse human rights impacts is
operational policies or services by its most significant, and prioritize these
and procedures business for human rights due diligence.
necessary to embed relationships;  Questions of complicity may arise
it throughout the when a business enterprise
business enterprise. (b) Will vary in contributes to, or is seen as
HUMAN RIGHTS DUE DILIGENCE complexity with the contributing to, adverse human rights
17. In order to  This Principle defines the parameters size of the business impacts caused by other parties.
identify, prevent, for human rights due diligence, while enterprise, the risk of  Complicity has both non-legal and
mitigate and account Principles 18 through 21 elaborate its severe human rights legal meanings:

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impacts, and the o As a non- legal matter, business should identify and potential adverse human rights
nature and context of enterprises may be perceived as assess any actual or impacts with which a business
its operations; being “complicit” in the acts of potential adverse enterprise may be involved to
another party where, for example, human rights understand the specific impacts on
(c) Should be they are seen to benefit from an impacts with which specific people, given a specific
ongoing, recognizing abuse committed by that party; they may be involved context of operations.
that the human rights o As a legal matter, most national either through their  Examples: assessing the human
risks may change jurisdictions prohibit complicity in own activities or as a rights context prior to a proposed
over time as the the commission of a crime, and a result of their business activity, where possible;
business number allow for criminal liability business identifying who may be affected;
enterprise’s of business enterprises in such relationships. This cataloguing the relevant human rights
operations and cases. process should: standards and issues; and projecting
operating context  Civil actions can also be (a) Draw on internal how the proposed activity and
evolve. based on an enterprise’s and/or independent associated business relationships
alleged contribution to a external human could have adverse human rights
harm, although these rights expertise; impacts on those identified.
may not be framed in  Business enterprises should pay
human rights terms. (b) Involve special attention to any particular
 International criminal law meaningful human rights impacts on individuals
jurisprudence indicates consultation with from groups or populations that may
that the relevant potentially affected be at heightened risk of vulnerability
standard for aiding and groups and other or marginalization.
abetting is knowingly relevant  Assessing human rights impacts
providing practical stakeholders, as should include all internationally
assistance or appropriate to the recognized human rights as a
encouragement that has size of the business reference point.
a substantial effect on the enterprise and the  Assessments of human rights
commission of a crime. nature and context of impacts should be undertaken at
 Conducting appropriate human rights the operation. regular intervals:
due diligence should help business o prior to a new activity or
enterprises address the risk of legal relationship;
claims against them by showing that o prior to major decisions
they took every reasonable step to or changes in the
avoid involvement with an alleged operation (e.g. market
human rights abuse, but this will not entry, product launch,
always automatically and fully policy change, or wider
absolve them. changes to the
18. In order to gauge  The initial step in conducting human business);
human rights risks, rights due diligence is to identify and o in response to or
business enterprises assess the nature of the actual and anticipation of changes in

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 the operating is assigned entity, the situation is more complex.
environment (e.g. rising to the Factors in determining in such
social tensions); and appropriate situations:
o periodically throughout level and o the enterprise’s leverage
the life of an activity or function over the entity concerned
relationship. within the o how crucial the relationship is
 To assess their human rights impacts business to the enterprise
accurately, business enterprises enterprise; o the severity of the abuse
should consult them directly, taking 21 o whether terminating the
into account language and other (ii) Internal relationship with the entity
potential barriers to effective decision- itself would have adverse
engagement, but where such making, human rights consequences.
consultation is not possible, business budget  The more complex the situation and
enterprises should consider allocations its implications for human rights, the
reasonable alternatives such as and stronger is the case for the enterprise
consulting credible, independent oversight to draw on independent expert advice
expert resources, including human processes in deciding how to respond.
rights defenders. enable  If the business enterprise has
19. In order to  In assessing human rights impacts, effective leverage to prevent or mitigate the
prevent and mitigate business enterprises will have looked responses to adverse impact, it should exercise it.
adverse human for both actual and potential adverse such Leverage may be increased by, for
rights impacts, impacts. impacts. example, offering capacity-building or
business enterprises  Potential impacts should be other incentives to the related entity,
should integrate the prevented or mitigated through the (b) Appropriate or collaborating with other actors.
findings from their horizontal integration of findings action will vary  Where the enterprise lacks the
impact assessments across the business enterprise. according to: leverage to prevent or mitigate
across relevant Actual impacts—those that have adverse impacts and is unable to
internal functions already occurred – should be a (i) Whether the increase its leverage, the enterprise
and processes, and subject for remediation (Principle 22). business should consider ending the
take appropriate  Where a business enterprise causes enterprise causes relationship, taking into account
action. or may cause, contributes or may or contributes to credible assessments of potential
contribute to an adverse human rights an adverse impact, adverse human rights impacts of
(a) Effective impact, it should take the necessary or whether it is doing so.
integration requires steps to cease or prevent it. involved solely  A relationship could be deemed as
that:  Where a business enterprise has not because the crucial if it provides a product or
(i) contributed to an adverse human impact is directly service that is essential to the
Responsibilit rights impact, but that impact is linked to its enterprise’s business, and for which
y for nevertheless directly linked to its operations, no reasonable alternative source
addressing operations, products or services by its products or exists. The more severe the human
such impacts business relationship with another services by a rights abuse, the more quickly the

83
 business enterprise will need to see change (see Principle 29).
relationship; before it takes a decision on whether 21. In order to  The responsibility to respect human
it should end the relationship. account for how they rights requires that business
(ii) The extent of its  As long as the abuse continues and address their human enterprises have in place policies and
leverage in the enterprise remains in the rights impacts, processes through which they can
addressing the relationship, it should be able to business enterprises both know and show that they respect
adverse impact. demonstrate its own ongoing efforts should be prepared human rights in practice.
to mitigate the impact and be to communicate this  Examples: communication, providing
prepared to accept any externally, a measure of transparency and
consequences – reputational, particularly when accountability to individuals or groups
financial or legal – of the continuing concerns are raised who may be impacted and to other
connection. by or on behalf of relevant stakeholders, including
20. In order to verify  Tracking: affected investors.
whether adverse o necessary in order for a stakeholders.  Communication can take a variety of
human rights business enterprise to know if Business enterprises forms, including in-person meetings,
impacts are being its human rights policies are whose operations or online dialogues, consultation with
addressed, business being implemented optimally, operating contexts affected stakeholders, and formal
enterprises should whether it has responded pose risks of severe public reports.
track the effectively to the identified human rights  Formal reporting by enterprises:
effectiveness of their human rights impacts, and to impacts should o are expected where risks
response. Tracking drive continuous report formally on of severe human rights
should: improvement, especially how they address impacts exist, whether
involving people at them. In all this is due to the nature of
(a) Be based on heightened risk of instances, the business operations
appropriate vulnerability or communications or operating contexts;
qualitative and marginalization should: o are evolving, from
quantitative o should be integrated into traditional annual reports
indicators; relevant internal reporting (a) Be of a form and and corporate
processes frequency that reflect responsibility/sustainabili
(b) Draw on feedback o can include performance an enterprise’s ty reports, to include
from both internal contracts and reviews as well human rights online updates and
and external as surveys and audits, using impacts and that are integrated financial and
sources, including gender-disaggregated data accessible to its non-financial reports;
affected where relevant. intended audiences; o should cover topics and
stakeholders.  Operational-level grievance indicators concerning
mechanisms can also provide (b) Provide how enterprises identify
important feedback on the information that is and address adverse
effectiveness of the business sufficient to evaluate impacts on human rights.
enterprise’s human rights due the adequacy of an  Independent verification of human
diligence from those directly affected enterprise’s rights reporting can strengthen its

84
response to the content and credibility. ISSUES OF CONTEXT
particular human  Sector-specific indicators can provide 23. In all contexts,  Although particular country and local
rights impact helpful additional detail. business enterprises contexts may affect the human rights
involved; should: risks of an enterprise’s activities and
business relationships, all business
(c) In turn not pose (a) Comply with all enterprises have the same
risks to affected applicable laws and responsibility to respect human rights
stakeholders, respect wherever they operate. They are
personnel or to internationally always expected to respect the
legitimate recognized human principles of internationally
requirements of rights, wherever they recognized human rights to the
commercial operate; greatest extent possible in the
confidentiality. circumstances.
REMEDIATION (b) Seek ways to  Some operating environments, such
22. Where business  A business enterprise may cause or honour the as conflict-affected areas, may
enterprises identify contribute to an adverse human rights principles of increase the risks of enterprises being
that they have impact that it has not foreseen or internationally complicit in gross human rights
caused or been able to prevent. recognized human abuses committed by other actors
contributed to  Where a business enterprise rights when faced (e.g. security forces)
adverse impacts, identifies such a situation, whether with conflicting  Business enterprises should treat this
they should provide through its human rights due requirements; risk as a legal compliance issue,
for or cooperate in diligence process or other means, its given the expanding web of potential
their remediation responsibility to respect human rights (c) Treat the risk of corporate legal liability arising from
through legitimate requires active engagement in causing or extraterritorial civil claims, and from
processes. remediation, by itself or in contributing to gross the incorporation of the provisions of
cooperation with other actors (e.g. human rights abuses the Rome Statute of the International
operational-level grievance as a legal Criminal Court in jurisdictions that
mechanisms, as set out in Principle compliance issue provide for corporate2criminal
31). wherever they responsibility. Also, corporate
 Where business enterprise has not operate. directors, officers and employees
caused or contributed to the human may be subject to individual liability
rights impact, but which are directly for acts that amount to gross human
linked to its operations, products or rights abuses.
services by a business relationship, Business enterprises should not only
the enterprise is not required by itself have cross-functional consultation
to provide for remediation, though it within the enterprise, but also to
may take a role in doing so. consult externally with credible,
 But where crimes are alleged, it independent experts, including from
requires cooperation with judicial Governments, civil society, national
mechanisms. human rights institutions and relevant

85
 multi-stakeholder initiatives.  Grievance
24. Where it is  While business enterprises should o a perceived injustice evoking
necessary to address all their adverse human an individual’s or a group’s
prioritize actions to rights impacts, business enterprises sense of entitlement, which
address actual and should begin with those human rights may be based on law,
potential adverse impacts that would be most severe, contract, explicit or implicit
human rights recognizing that a delayed response promises, customary
impacts, business may affect remediability. practice, or general notions of
enterprises should fairness of aggrieved
first seek to prevent communities.
and mitigate those o indicate any routinized,
that are most severe State-based or non-State-
or where delayed based, judicial or non-judicial
response would process through which
make them grievances concerning
irremediable. business-related human
III. ACCESS TO REMEDY rights abuse can be raised
A. FOUNDATIONAL PRINCIPLE and remedy can be sought.
25. As part of their  Unless States take appropriate steps  State-based grievance
duty to protect to investigate, punish and redress mechanisms:
against business- business-related human rights o may be administered by a
related human rights abuses when they do occur, the State branch or agency of the
abuse, States must duty to protect can be rendered State, or by an independent
take appropriate meaningless. body on a statutory or
steps to ensure,  Access to effective remedy has both constitutional basis.
through judicial, procedural and substantive aspects. o may be judicial or non-judicial
o in some mechanisms, those
administrative,  The remedies provided by the
legislative or other grievance mechanisms have affected are directly involved
appropriate means, substantive forms which aim to in seeking remed
that when such o in others, an intermediary
resolve human rights harms that have
abuses occur within seeks remedy on their behalf.
occurred.
their territory and/or  Remedy may include apologies,  Examples: the courts (for both
jurisdiction those criminal and civil actions), labour
restitution, rehabilitation, financial or
affected have access tribunals, national human rights
non-financial compensation and
to effective remedy. institutions, National Contact Points
punitive sanctions (whether criminal
or administrative, such as fines), as under the Guidelines for Multinational
well as the prevention of harm Enterprises of the Organisation for
through, for example, injunctions or Economic Co-operation and
Development, many ombudsperson
guarantees of non-repetition.
offices, and Government-run

86
 complaints offices. o that the legitimate and
States should facilitate public peaceful activities of human
awareness and understanding of rights defenders are not
these mechanisms, how they can be obstructed
accessed, and any support (financial  Examples of legal barriers that can
or expert) for doing so. prevent legitimate cases involving
 System of remedies in addressing business-related human rights abuse
business-related human rights from being addressed:
abuses: o a corporate group under
(1) State-based judicial and non- domestic criminal and civil
judicial grievance mechanisms laws facilitates the avoidance
(2) Operational-level grievance of appropriate accountability;
mechanisms can provide early o access home State courts
stage recourse and resolution; regardless of the merits of the
(3) Collaborative initiatives and claim;
international and regional human o excluded from the same
rights mechanisms level of legal protection of
B. OPERATIONAL PRINCIPLES their human rights that
STATE-BASED JUDICIAL MECHANISMS applies to the wider
26. States should  Effective judicial mechanisms are at population. 
 Practical and
take appropriate the core of ensuring access to procedural barriers to
steps to ensure the remedy. Their ability to address accessing judicial remedy
effectiveness of business-related human rights can arise where, for example:
domestic judicial abuses depends on their impartiality,  to unmeritorious
mechanisms when integrity and ability to accord due cases and/or cannot
addressing process. be reduced to
business-related  States should ensure: reasonable levels
human rights o that there are no barriers to through Government
abuses, including prevent legitimate cases from support, "market-
considering ways to being brought before the based" mechanisms
reduce legal, courts where alternative (such as litigation
practical and other sources of effective remedy insurance and legal
relevant barriers that are unavailable. fee structures), or
could lead to a denial o that there is no corruption in other means;
of access to remedy. the judicial process,  a lack of resources or
o that the courts are of other incentives
independent of economic or for lawyers to advise
political pressures from other claimants in this
State agents and from area;
business actors,  representative

87
 proceedings (such omediation-based,
as class actions and adjudicative or follow other
other collective culturally appropriate and
action procedures), rights-compatible processes
and this prevents – or involve some
effective remedy for combination of these –
individual claimants; depending on the issues
 meet the State’s own concerned, any public
obligations to interest involved, and the
investigate individual potential needs of the parties.
and business  To ensure their effectiveness, they
involvement in should meet the criteria set out in
human rights-related Principle 31.
crimes. 
  National human rights institutions
 Many of these barriers are the result have a particularly important role to
of, or compounded by, the frequent play in this regard.
imbalances between the parties to  As with judicial mechanisms, States
business-related human rights should address imbalances between
claims, such as in their financial the parties to business-related human
resources, access to information and rights claims, especially involving the
expertise. vulnerable and marginalized sectors
 Particular attention should be given to of society.
the rights and specific needs of such NON-STATE-BASED GRIEVANCE MECHANISMS
groups or populations at each stage 28. States should  Types of non-state based grievance
of the remedial process: access, consider ways to mechanisms:
procedures and outcome. facilitate access to (1) Administered by a business
STATE-BASED NON-JUDICIAL GRIEVANCE MECHANISMS effective non-State- enterprise alone or with
27. States should  Administrative, legislative and other based grievance stakeholders, by an industry
provide effective and non-judicial mechanisms play an mechanisms dealing association or a multi-stakeholder
appropriate non- essential role in complementing and with business- group
judicial grievance supplementing judicial mechanisms. related human rights o non-judicial, but may use
mechanisms, Judicial remedy is not always harms. adjudicative, dialogue-based
alongside judicial required; nor is it always the favored or other culturally appropriate
mechanisms, as part approach for all claimants. and rights-compatible
of a comprehensive  Gaps in the provision of remedy for processes.
State-based system business-related human rights o advantages: speed of access
for the remedy of abuses could be filled, where and remediation, reduced
business-related appropriate, by expanding the costs and/or transnational
human rights abuse. mandates of existing non-judicial reach.
mechanisms: (2) Regional and international

88
 human rights bodies. escalating. 

o dealt with alleged violations o are accessible directly to
by States of their obligations individuals and communities who
to respect human rights or may be adversely impacted by a
failure of a State to meet its business enterprise;
duty to protect against human o are typically administered by
rights abuse by business enterprises, alone or in
enterprises collaboration with others,
29. To make it  Operational-level grievance including relevant stakeholders;
possible for mechanisms: o may also be provided through
grievances to be o perform two key functions on the recourse to a mutually
addressed early and responsibility of business acceptable external expert or
remediated directly, enterprises to respect human body;
business enterprises rights: o do not require that those bringing
should establish or (1) They support the a complaint first access other
participate in identification of adverse means of recourse;
effective operational- human rights impacts as o can engage the business
level grievance an enterprise’s ongoing enterprise directly in assessing
mechanisms for human rights due the issues;
individuals and diligence. o do not require that a complaint or
communities who  by providing a grievance amount to an alleged
may be adversely channel to raise human rights abuse before it can
impacted. concerns be raised
 by analyzing o aim to identify any legitimate
trends and concerns of those who may be
patterns in adversely impacted.
complaints, o should reflect certain criteria to
business ensure their effectiveness in
enterprises practice (Principle 31)
(2) These mechanisms o can be important complement to
make it possible for wider stakeholder engagement
grievances to be and collective bargaining
addressed and for processes, but cannot substitute
adverse impacts to be for either.
remediated early and o should not undermine the role of
directly by the business legitimate trade unions in
enterprise, thereby addressing labor-related
preventing harms from disputes, nor to preclude access
compounding and to judicial or other non-judicial
grievances from grievance mechanisms

89
30. Industry, multi- 
Human rights-related standards are
stakeholder and increasingly reflected in commitments (b) Accessible: being (b) Accessible: Barriers to access may
other collaborative undertaken by industry bodies, multi- known to all include a lack of awareness of the
initiatives that are stakeholder and other collaborative stakeholder groups mechanism, language, literacy,
based on respect for initiatives, through codes of conduct, for whose use they costs, physical location and fears
human rights-related performance standards, global are intended, and of reprisal;
standards should framework agreements between providing adequate
ensure that effective trade unions and transnational assistance for those (c) Predictable: The mechanism
grievance corporations, and similar who may face should provide public information
mechanisms are undertakings. particular barriers to about the procedure it offers,
available.  These ensure the availability of access; including time frames for each
effective mechanisms through where stage.
affected parties can raise concerns. (c) Predictable:
The mechanisms could be at the level providing a clear and (d) Equitable: In grievances or
of individual members, of the known procedure disputes between business
collaborative initiative, or both. These with an indicative enterprises and affected
should provide accountability and time frame for each stakeholders, the latter frequently
remediation of adverse human rights stage, and clarity on have much less access to
impacts. the types of process information and expert resources,
EFFECTIVENESS CRITERIA FOR NON-JUDICIAL GRIEVANCE and outcome and often lack the financial
MECHANISMS available and means resources to pay for them. There
31. In order to ensure  The following is a benchmark for of monitoring should be a balance and fair
their effectiveness, designing a non-judicial grievance implementation; process among the parties.
non-judicial mechanism to help ensure that it is
grievance effective in practice. The first seven (d) Equitable: (e) Transparent: The following can
mechanisms, both (7) criteria apply to any State-based seeking to ensure increase or retain the confidence in
State-based and non- or non-State-based, adjudicative or that aggrieved the mechanism: communicating
State-based, should dialogue-based mechanism. The parties have regularly with parties about the
be: eighth (8th) criterion is specific to reasonable access to individual grievances and providing
operational-level mechanisms that sources of transparency through statistics,
(a) Legitimate: business enterprises help administer. information, advice case studies or more detailed
enabling trust from and expertise information about the handling of
the stakeholder (a) Legitimate: Stakeholders for whose necessary to engage certain cases. But confidentiality of
groups for whose use a mechanism is intended must in a grievance the dialogue between parties and
use they are trust it if they are to choose to use process on fair, of individuals’ identities should also
intended, and being it. Accountability for ensuring that informed and be respected.
accountable for the the parties to a grievance process respectful terms;
fair conduct of cannot interfere with its fair conduct (f) Rights-compatible: Grievances
grievance is typically one important factor in (e) Transparent: should be framed in terms of
processes; building stakeholder trust; keeping parties to a human rights and should raise

90
grievance informed human rights concerns. use they are
about its progress, intended on their
and providing (g) A source of continuous learning: design and
sufficient There must be a regular analysis of performance, and
information about the frequency, patterns and causes focusing on dialogue
the mechanism’s of grievances to enable the as the means to
performance to build institution administering the address and resolve
confidence in its mechanism to identify and grievances.
effectiveness and influence policies, procedures or
meet any public practices that should be altered to 5. J. Ruggie and J. Sherman III, Adding Human Rights Punch to
interest at stake; prevent future harm; the New Lex Mercatoria: The Impact of the UN Guiding
Principles on Business and Human Rights on Commercial
(f) Rights- (h) Based on engagement and Legal Practice
compatible: ensuring dialogue: Engaging with affected
that outcomes and stakeholder groups about its Note: This article highlights the second pillar of the UNGPs. It also
remedies accord design and performance can help focuses on the role of corporate lawyers and law firms in the shaping
with internationally to ensure that it meets their needs of business objectives that are aligned with internationally recognized
recognized human and that they will use it in practice. human rights. The lawyers’ role is so important that this article posits
rights; The mechanisms should focus on that law firms are business enterprises within the meaning of the
 reaching agreed solutions through UNGPs, and thus, must make references to the UNGPs in the conduct
(g) A source of dialogue. Where adjudication is of their activities, such as giving of advice to clients and crafting of
continuous learning: needed, this should be provided by private contracts.
drawing on relevant a legitimate, independent third-
measures to identify party mechanism. The UN Guiding Principles on Business and HR is a product of nearly
lessons for 50 international consultations, research reports and pilot projects,
improving the spanning six years of work. The UNGPs are based on three
mechanism and interdependent pillars: State duty to protect HR (based on existing
preventing future international law); corporate responsibility to respect HR (which is
grievances and based on minimum global expectations of businesses everywhere);
harms; and need for greater access to remedy. According to UN High
 Commissioner for HR, the UNGPs are “the global authoritative
Operational-level standard, providing a blue print for the steps all states and businesses
mechanisms should should take to uphold HR.”
also be:
With regard to the second pillar—the corporate responsibility to
(h) Based on respect human rights— the GPs do not impose new legal obligations
engagement and on businesses. But they do not exist in a law free zone either.
dialogue: consulting Domestic laws of many States already require businesses to respect
the stakeholder HR in numerous cases, e.g. privacy, discrimination, workplace and
groups for whose

91
public safety, labor and employment, and environmental protection.
However, domestic laws many not adequately protect all HR.
Corporate lawyers were closely involved in the shaping of the UNGPs,
and are now involved in their practical implementation. Within the
corporate bar, general counsels are typically on the front line when
companies seek advice on the UNGPs. Whether or not law firms have
done so, they are business enterprises within the meaning of the
UNGPs, with their own independent responsibility to respect HR,
subject to their professional responsibilities as organizations of
lawyers.
However, some lawyers find it difficult to advice their clients on the
issues of human rights because of their complexity. The article,
nevertheless, points out that States, for a variety of reasons, have
turned to soft law instruments to deal with complex global problems in
the past years. The UNGP, not being a treaty, is a soft law. Because
of this, lawyers should not stick to rigid rules, and refuse to recognize
evolving norms in the international sphere. “The path towards
demystifying the UNGPs for corporate lawyers, xxx, is to recognize
that human rights issues arise across a wide array of governance,
commercial and legal areas and that a respect for HR needs to be
embedded across all aspects of a business… By focusing on the HR
aspects of things like supply chains, labor, taxation, data protection
and privacy, transactional due diligence, M&A, dispute resolution and
enterprise risk management, lawyers will see that HR issues are just
one additional aspect of the ‘familiar’ issues they are already
responsible for managing.”
2) Independent research has shown that top-down compliance audits
by buyers of their supplies are not effective, on their own, in ensuring
sustainable improvements in respect for workers’ HR.
From this, it appears that a more holistic, less traditional, non-tick-box
approach is required to fully understand the implications of the UNGPs
for lawyers who negotiate contracts and structure transactions for their
business clients. A good example is integrating the management of
HR risks into State-investor contract negotiations. These contracts
provide guidance: the need to identify HR risks arising from the
contract; the need to build proper expectations regarding HR
performance prior to entering into the contract; negotiating language
in the contract that properly incentivizes behavior that respects HR
and disincentives behavior that does not; and managing HR
performance effectively throughout the life of the contract.
Before, lawyers may have a hard time figuring out which HR principles
to include in negotiations, but with the UNGPs, incorporating HR
principles into commercial practice becomes smoother.

The question now is: how should a lawyer advise a company that
expects its supplies to abide by the UNGPs? Problems to keep in
mind:
1) Supply chain contract terms specifying HR standards “are often
extensive pro-forma documents with boilerplate language that
supplies must sign in order to secure the business. Rarely does a
dialogue between company and supplier take place around these
supplier codes, and some company leaders question whether they are
even read by supplies.

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 CORPORATE HUMAN RIGHTS RESPONSIBILITIES FOR harmful to physical and mental development. This also
SPECIFIC SECTORS involves focus on the gender dimensions of child labour
in light of the more likely engagement of girls in
1. Children’s Rights and Business Principles (2012)
activities such as domestic work and sexual exploitation.
c. child participation – one of the four core principles of
Children’s Rights and Business Principles
the Convention on the Rights of the Child, this includes
I. The Children’s Rights and Business Principles set out
processes that encourage and enable children to
business actions to respect and support children’s rights. In
articulate and convey their views on issues that affect
this document, the phrase ‘children’s rights’ is synonymous
them
with the ‘human rights of children’.
d. child or children – article 1 of the Convention on the
Rights of the Child defines children as every human
For the purposes of these Principles, actions for all business include:
being under 18 years old unless, under the law applicable
to the child, majority is attained earlier
a. THE CORPORATE RESPONSIBILITY TO RESPECT -- avoiding
e. human rights due diligence – a business’s ongoing
any infringement of the human rights of others, including
processes for assessing its actual and potential human
children, and addressing any adverse human rights impact with
rights impact, including on children’s rights, integrating
which the business is involved. The corporate responsibility to
and acting upon its findings, tracking its responses and
respect applies to the business’s own activities and to its business
communicating how its impact is addressed
relationships, linked to its operations, products or services.
f. young worker – a child who is above the minimum legal
working age and engaged in economic activity
b. THE CORPORATE COMMITMENT TO SUPPORT -- in
addition to respecting human rights, voluntary actions that seek
III. To carry out human rights due diligence, all business should:
to advance human rights, including children’s rights, through
a. Identify and assess any actual or potential adverse impact
core business activities, strategic social investments and
on children’s rights
philanthropy, advocacy and public policy engagement, and
b. Integrate the findings from their impact assessments
working in partnership and other collective action.
across relevant internal functions and processes and take
appropriate action
II. Definitions
c. Monitor and track the effectiveness of the business’s
a. business relationship – those relationships a business has
responses in order to verify whether the adverse impact
with business partners, entities in its value chain, and
on children’s rights is being addressed
any other State or non-state (government or non-
d. Be prepared to communicate externally on its efforts to
governmental) entity directly linked to its business
address the impact of business on children’s rights in a
operations, products or services.
form and frequency
b. child labour – work that deprives children of their
childhood, their potential and their dignity, and that is
IV. All business should

93
1. Meet their responsibility to respect children’s rights and
commit to supporting the human rights of children
a. Policy Commitment: a statement that sets out
the business’s responsibility to respect rights
b. Human Rights Due Diligence: a business’s
ongoing processes for assessing its actual and
potential human rights impact, including on
children’s rights, integrating and acting upon its
findings, tracking its responses and
communicating how its impact is addressed.
c. Becoming a champion for children’s rights
2. Contribute to the elimination of child labour, including
in all business activities and business relationships
a. Eliminating child labour
b. Preventing, identifying and mitigating harm to
young workers and protecting them from work
that is prohibited for workers under 18 years old
or beyond their physical and psychological
capacity
c. Working with governments, social partners and
others to promote education and sustainable
solutions to the root causes of child labour
3. Provide decent work for young workers, parents and
caregivers
a. Being responsive to the vulnerability of young
workers above the minimum age for work
4. Ensure the protection and safety of children in all
business activities and facilities
a. Developing and implementing a child
protection code of conduct
5. Ensure that products and services are safe, and seek to
support children’s rights through them
a. Ensuring that testing and research of products
and services likely to be used or consumed by
children is conducted in line with relevant
national and international standards.
b. Taking all reasonable steps to eliminate
discrimination against any child or group of
children in the provision of products and
services.
c. Seeking to prevent and eliminate the risk that
products and services could be used to abuse,
exploit or otherwise harm children in any way
6. Use marketing and advertising that respect and support
children’s rights
a. Marketing should not reinforce discrimination.
Product labelling and information should be
clear, accurate and complete, and empower
parents and children to make informed
decisions
7. Respect and support children’s rights in relation to the
environment and to land acquisition and use
a. Supporting children’s rights in relationship to
the environment where future generations will
live and grow
b. Take measures to progressively reduce the
emission of greenhouse gases from company
operations and promote resource use that is
sustainable
8. Respect and support children’s rights in security
arrangements
a. Supporting children’s rights in security
arrangements All business is encouraged to
apply evolving best practices in the
management of security services provided by
private contractors or public security forces
9. Help protect children affected by emergencies
94
 a. Make a positive contribution to sustainable
peace and development
b. Where needed and requested, and in
accordance with best practices, support
authorities and humanitarian agencies in
emergency response

10. Reinforce community and government efforts to protect

and fulfil children’s rights
a. Not undermining government efforts to protect
and fulfil children’s rights Recognize that
respect for the rule of law and the use of
responsible business practices, including the
payment of taxes to generate revenues
b. Contribute to existing programmes or plan and
implement social investment programmes in
cooperation with governments, civil society and
children.

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2. Women Empowerment Principles (2011)

WOMEN’S EMPOWERMENT PRINCIPLES: EQUALITY MEANS BUSINESS

INTRODUCTION
 Why is it essential to empower women to participate fully in economic life?
o To build strong economies;
o To establish more stable and just societies;
o To achieve internationally-agreed goals for development, sustainability, and human rights;
o To improve quality of life for women, men, families, and communities;
o To propel businesses’ operations and goals
 The Women’s empowerment Principles, forged through an international multi-stakeholder consultative process, provide a “gender lens” through
which business can survey and analyze current practices, benchmarks and reporting practices.
 The Principles help companies tailor existing policies and programmes—or establish needed new ones—to realize women’s empowerment.

WOMEN’S EMPOWERMENT PRINCIPLES (LEE-TECH)

1. Leadership Promotes Gender Equality
2. Equal Opportunity, Inclusion, and Nondiscrimination
3. Health, Safety, and Freedom from Violence
4. Education and Training
5. Enterprise Development, Supply Chain and Marketing Practices
6. Community Leadership and Engagement
7. Transparency, Measuring, and Reporting

NOTE: See tables below for more discussion and examples

96
 WOMEN’S EMPOWERMENT PRINCIPLES, COMPANY PRACTICES, AND CONSIDERATIONS: SUMMARY

1. LEADERSHIP 2. EQUAL OPPORTUNITY, 3. HEALTH, SAFETY, 4. EDUCATION AND

PROMOTES GENDER INCLUSION, AND AND FREEDOM TRAINING
EQUALITY NONDISCRIMINATION FROM VIOLENCE
PRINCIPLES  Affirm high-level  Pay equal remuneration,  Taking into account  Invest in workplace
support and direct top- including benefits, for work differential impacts on policies and
level policies for gender of equal value and strive to women and men, programmes that open
equality and human pay a living wage to all provide safe working avenues for
rights. women and men. conditions and advancement of
 Establish company-  Ensure that workplace protection from women at all levels
wide goals and targets policies and practices are exposure to and across all
for gender equality and free from gender-based hazardous materials business areas, and
include progress as a discrimination. and disclose potential encourage women to
factor in managers’  Implement gender-sensitive risks, including to enter nontraditional job
performance reviews. recruitment and retention reproductive health. fields.
 Engage internal and practices and proactively  Establish a zero-  Ensure equal access
external stakeholders recruit and appoint women tolerance policy to all company-
in the development of to managerial and executive towards all forms of supported education
company policies, positions and to the violence at work, and training
programmes and corporate board of directors. including verbal and/or programmes, including
implementation plans  Assure sufficient physical abuse and literacy classes,
that advance equality. participation of women – prevent sexual vocational and
 Ensure that all policies 30% or greater– in decision- harassment. information technology
are gender-sensitive – making and governance at  Strive to offer health training.
identifying factors that all levels and across all insurance or other  Provide equal
impact women and men business areas. needed services – opportunities for
differently – and that  Offer flexible work options, including for survivors formal and informal
corporate culture leave and re-entry of domestic violence – networking and
advances equality and opportunities to positions of and ensure equal mentoring.
inclusion. equal pay and status. access for all  Articulate the
 Support access to child and employees. company’s business
dependent care by  Respect women and case for women’s
providing services, men workers’ rights to empowerment and the
resources and information time off for medical positive impact of
to both women and men. care and counseling inclusion for men as
for themselves and well as women.
their dependents.
 In consultation with
employees, identify

97
 and address security
issues, including the
safety of women
traveling to and from
work and on company-
related business.
 Train security staff and
managers to
recognize signs of
violence against
women and
understand laws and
company policies on
human trafficking,
labour and sexual
exploitation.
COMPANY  An international mining  To retain and attract more  Building on a  To open opportunities
PRACTICE/S group headquartered in qualified women, an eastern company- initiated for women’s career
the UK, commissioned European microfinance study to determine the advancement in IT
a resource guide on group initiated a broad- economic benefits to fields, a US-based
how to engage women based data collection and companies of multinational
and community groups analysis exercise, followed employee health technology company
as a major policy up with recommendations awareness, a large maintains strategic
directive of its business on the treatment of its apparel company partnerships with
operations. female employees. partners with health women’s
 A company  In an effort to close gender- education organizations in many
assessment at the based pay gaps, a global professionals to offer of the countries where
highest level by a global insurance group dedicated trainings to employees it operates,
 to
accounting and 1.25 million euros over three on reproductive and promote education
consulting firm years. maternal health, and training and
determined that the  A large financial services disease prevention recognize women’s
company was losing company in Australia offers and access to care. accomplishments in it.
out on business by a parental leave policy that  Recognizing the need  A large European
failing to attract and provides a total of two years to support working airline company
retain highly skilled parental leave for the parents,
 a Kenyan reaches out to youth
female professionals primary care giver, which communications through education
and, on the basis of can be taken flexibly, rather company offers free projects to break down
these findings, worked than on a full-time basis. on-site day care and the barriers that
to change company  To support diversity and an in-house physician, traditionally limit
culture and policies inclusion, a multinational in addition to women to certain jobs

98
 through leadership and steel company established comprehensive in the industry and
board involvement. a special committee medical coverage that men to others. 

 The leadership of an comprised of management includes pre- and post-  A large financial
east Asian apparel and women workers that natal care. services company in
manufacturer identifies concerns of  Two Spanish Australia offers
implemented an female employees and in companies offer numerous initiatives
integrated, response organizes victims of domestic aimed at supporting
comprehensive trainings and programmes. violence job women in business,
approach to women’s placement services including an online
empowerment through specifically tailored to platform 
 to help
programmes their needs to ease Australian women
recognizing female transition to the connect with other
employees’ workplace. women in business
accomplishments and  A Sri Lankan apparel internationally to share
supporting women’s manufacturer information, research
advancement in the demonstrates
 its and career advice. 

company through wide- commitment to  A Chinese
ranging education, creating 
 and international transport
training and safety maintaining a safe and company established
initiatives. healthy work special employee
environment – and committees to identify
recognition of the and design
differential needs of its programmes and
female and
 male information tailored to
employees – the distinct needs and
through
 a range of interests of female
targeted policies
 and workers. 

programmes,
including special care
for pregnant
employees, and
systematic risk
assessments and
monitoring
 of its
plants, processes and
equipment.
HOW TO MAKE  Define clearly  Prominently publicize an  Prominently publicize  Train and educate
AND MEASURE company’s strategic explicit company statement the company's zero employees,
PROGRESS case for advancing that prohibits gender-based tolerance policy and particularly male staff,
gender equality within discrimination in hiring, on the company’s

99
 the organization and in retention policies, provide ongoing business case for
its field. promotion, salaries and training. women’s
 Establish a high-level benefits.  Undertake a gender- empowerment.
task force to identify  Design recruitment sensitive inventory of  Offer career clinics and
priority areas, establish initiatives that reach out to health and safety mentoring
benchmarks and more women. conditions. programmes for
monitor company  Review and analyze  Survey employees to women’s career
progress. remuneration of all elicit the views of development at all
 Include company-wide employees by gender, women and men on stages.
goals for progress employee category and job health, safety and  Promote training
towards gender title. security issues. programmes tailored
equality in job  Ensure equal opportunities  Tailor company health for women.
descriptions and for women to lead on and safety policies to
performance reviews. important assignments and serve the distinctive
task forces. concerns and needs of
 Survey employees to elicit women and men,
the views of women and including pregnant
men towards company women, people with
policies on equal HIV/AIDS, people with
opportunity, inclusion, disabilities and other
nondiscrimination and vulnerable groups and
retention. provide the resources
 Establish and implement a to implement them.
confidential grievance policy
and procedure for incidents
of discrimination, sexual
harassment and gender-
based violence.
CONSIDERATIONS 3. Is the stated 7. Is there a gender 14. Is safety and other 18. What is the distribution
commitment to breakdown of the equipment the between women and
advancing equality and company’s board of appropriate size for men of training and
promoting directors and top both women and men? professional
nondiscrimination and management? 15. Are there separate development
fairness prominently 8. Does the company track toilets and, if opportunities?
featured on the and analyze promotions by necessary, changing 19. How many hours of
company’s website, in gender, employee category facilities for both training do women and
company recruiting and title? women and men? men participate in
materials and corporate 16. Are company grounds annually, analyzed by
sustainability reports? adequately lit? job category and title?



100
 4. Is there a designated 9. Are fair pay reviews 17. Are female health care 20. Are the demands of
board-level individual professionals employees’ family
conducted on a regular
who champions the available in company- roles considered when
basis?
organization’s gender provided health scheduling trainings
equality policies and 10. Are sufficient numbers of services? and education
plans? 
 women – 30 percent or programmes?
5. Are there trainings, greater – being recruited
including for male and interviewed? Do
leaders, on the interview panels have
importance of women’s sufficient numbers of
participation and women participating?
inclusion? 
 11. What is the retention rate for
6. Does the company’s female employees by
annual report or employee category and job
sustainability report title compared to male
include leadership employees?
statements on reaching 12. Has the company designed
gender equality goals? flexible work options that

 incorporate the specific and
different needs of women
and men?
13. Are there accessible
channels for filing
grievances on gender-
based discrimination,
harassment and violence?

5. ENTERPRISE DEVELOPMENT, 6. COMMUNITY LEADERSHIP 7. TRANSPARENCY,

SUPPLY CHAIN AND MARKETING AND ENGAGEMENT MEASURING, AND
PRACTICES REPORTING
PRINCIPLES  Expand business relationships with  Lead by example – showcase  Make public the company
women-owned enterprises, including company commitment to policies and implementation plan
small businesses, and women gender equality and women’s for promoting gender equality.
entrepreneurs empowerment

101
  Support gender-sensitive solutions to  Leverage influence, alone or in
credit and lending barriers. partnership, to advocate for
 Ask business partners and peers to gender equality and collaborate
respect the company’s commitment to with business partners,
advancing equality and inclusion. suppliers and community
 Respect the dignity of women in all leaders to promote inclusion.
marketing and other company  Work with community
materials. stakeholders, officials and
 Ensure that company products, others to eliminate
services and facilities are not used for discrimination and exploitation
human trafficking and/ or labour or and open opportunities for
sexual exploitation. women and girls.
 Promote and recognize
women’s leadership in, and
contributions to, their
communities and ensure
sufficient representation of
women in any community
consultation.
 Use philanthropy and grants
programmes to support
company commitment to
inclusion, equality and human
rights.
COMPANY  Recognizing the expanding
 role of  A large international cosmetics
EXAMPLES women entrepreneurs, a large UK- company launched and sold
based bank launched specialized products to raise funds for
financial services, microfinance community-based
opportunities 
 and business loans organizations working to end
and also provides an online resource domestic violence around the
center for women entrepreneurs world.
running small and medium- sized  A multinational mining company
enterprises. with operations in Ghana
 A Swedish manufacturer helps implemented a gender
women producers of raw materials in mainstreaming programme to
developing countries to trade directly encourage female employees
with the manufacturer, thus improving to assume greater responsibility
their income by reducing the number within the mine and connect to
of intermediaries in the supply chain. the local community.
 Establish benchmarks that
quantify inclusion of women at all
levels.
 Measure and report on progress,
both internally and externally,
using data disaggregated by sex.
 Incorporate gender markers into
ongoing reporting obligations.
 A mid-sized Israeli fashion
company became the first of
 its
size in Israel to voluntarily
publicize a Social and
environmental Responsibility
Report reflecting its commitment
to gender equality.
 A Spanish financial institution
publicizes its commitment to
equal opportunity and inclusion
on its website and regularly
undergoes external equality
diagnostics validated by an
autonomous government body.
 A South African mining company
includes a detailed breakdown of
102
  To make the scope of violence
against women visible to an
international public, a global
advertising company partnered with a
UN organization to develop a public
awareness campaign using television
and the internet.
HOW TO MAKE AND  Prominently publicize an executive
MEASURE level policy statement on the
PROGRESS organization’s support for gender
equality practices
 in its supply chain.
 Identify a ‘women’s enterprise
champion’ within the organization to
target women-owned enterprises and
help develop their capacity to become
quality suppliers.
 Request information from current and
potential suppliers on their gender
and diversity policies
 and include
these in criteria for business
selection.
CONSIDERATIONS  Does the company perform analyses
of its existing supply chain to establish
the baseline number of suppliers that
are women-owned enterprises?
 How many of the company’s suppliers
have gender equality policies and
programmes?
 What is the ratio of women- owned
enterprises compared to other
suppliers?
 How does the company record
complaints regarding its portrayal of
women and girls in marketing and
other public materials, and how does
it act on these concerns?
 A US-based multinational
apparel manufacturer awards
grants to community-based
organizations working to
empower women in localities
where it does business.
 Define company community
engagement initiatives that
empower women and girls.
 Encourage company
executives to undertake
community consultations with
local leaders –women and
men—to establish strong ties
and programmes that benefit all
community members.
 Craft a community impact
analysis that marks the specific
impacts on women and girls
when establishing or expanding
presence in a community.
 What initiatives are supported
by the company to promote
equality in the community and
how many women and girls,
men and boys do they reach?
 Does the company survey
participants through focus
groups or written comments for
feedback?
 Does the company review its
criteria and policies that
determine community
engagement activities against
results and community
feedback?
employment by gender and race
per occupational level in its
sustainability reporting.
 Two Australian companies—one
banking, one consulting—
 use
the seven Women’s
empowerment Principles as a
gender equality report guide.
 Report annually, by department,
on company gender equality
plans and policies, using
established benchmarks.
 Publicize findings on company
efforts towards inclusion and
advancing women through all
appropriate channels and pre-
existing reporting obligations.
 Include monitoring and
evaluation of company gender
equality goals into ongoing
performance indicators.
 Does tracking along the
benchmarks for advancing
women demonstrate that the
company is moving positively?
 What opportunities exist
throughout the company for
review, analysis and discussion
of performance?
103
 Are women’s contributions to
their communities recognized
and publicized?

104
3. UN Declaration on the Rights of Indigenous Peoples
4. Joe W. Pitts III, Business, Human Rights & the Environment:
The Role of the Lawyer in CSR & Ethical Globalization,
Berkeley Journal of International Law, Vol. 6 Issue 2 (2008)
 Proposed model for “Corporate Social Responsibility (CSR)
Lawyering” that responds not only to social imperatives, but also
to opportunities to build value and competitive advantages for
business enterprises.
 Recurrent financial instability in global markets, threats to the
sustainability of global capitalism and governance, pressures on
international human rights and the rule of law itself, and global
climate change, all combine to make it imperative that legal
professional advising and engaging in various ways with global
business incorporate this larger practical and ethical context
The Demand for CSR
 The call for common and effective global norms and actions to
address the increasingly global major problems comes in the
wake of the hostility levied by the Bush administration.
 Common theme has been failure on the part of the powerful to
recognize the practical and ethical benefits of accepting sensible
cooperative limits on the exercise of power.
 US SC Justice Sandra Day O’Connor on the enhanced relevance
of international law: International law is no longer an issue only for
diplomat and trade lawyers. With increasing globalization,
international law affects business and litigation decisions across
the board.
 Justice Stephen Breyer: business is international; of course law is
more and more international; and of course, human rights, too, are
more and more international.
o Places an onus on lawyers to know at least about the
broad patterns and basics of international law, of
common and civil law systems, the continued
differences as well as the increasingly shared human
rights values underlying the legal systems, and the
major role played by transnational corporations in
shaping those laws and values.
CSR’s Influence and Potential: One Lawyer’s Experience
 Globalization brought on the integration of transactional matters
for corporations and human rights.
o JC Penney: what to do about Guatemalan protesters
clamoring outside its corporate offices about
sweatshop conditions.
o American Airlines: maximizing the brand benefits
from its philanthropic programs through various
global trademark and intellectual programs through
various global trademark and intellectual property
strategies.
 When Amnesty International, nascent socially responsible
investors and others asked about Nokia’s commitment to
responsible conduct, the CEO asked to add global corporate
citizenship to portfolio.
o Because Nokia arose in the Artic Circle—where
cooperation, human solidarity, and respect for the
environment were not just laudable values but
essential survival techniques—these efforts enjoyed
a supportive reception among Nokia’s executives,
employees, and other stakeholders.
CSR’s Increasing Ubiquity and New Opportunities for Lawyers
 Despite speed bumps like the stalled Doha Round of multilateral
trade talks, the pace and penetration of globalization has only
accelerated in the last decade, as have CSR norms.
 China, of all places, amended its 2006 Company Law to explicitly
provide that companies shall “bear social responsibilities.”
o The Chinese Securities Regulatory Commissions’
Corporate Governance Code confirms a stakeholder
view, as opposed to merely a shareholder view, for
listed companies.
 CSR developments are happening so quickly today that business
seems ahead of states.
105
 Lawyers are in the frontline in dealing with these issues both for
corporations and for the other stakeholders affected by corporate
conduct.
o No lawyer interfacing with corporations, or working
within one, can afford to be ignorant of CSR’s basic
context, principles and processes or the variety of
existing soft and hard law instruments that can either
cause problems and/or offer solutions when CSR
issues and dilemmas arise.
 Environmental and human rights issues are now increasingly
standard in due diligence for mergers and acquisitions.
 CSR reports from public corporations are increasingly
commonplace.
 Human rights and environmental impact assessments are being
used—and should be considered for broader use—in major
investment and other corporate decisions across the board.
 Entire new legal careers are arising as a result of these
developments.
CSR Transcends the False Dichotomy between Legal and
“Voluntary”
 CSR is increasingly recognized as directly or indirectly “legal” in
its implications and effects.
 But even formally “voluntary” duties are rarely purely voluntary,
and lawyers therefor cannot afford to ignore them.
 “Voluntary” commitments made by corporations, no less than
individuals, are still commitments that in many ways can take on
the character of “law” viewed more expansively.
 Sanctions of various sorts accompany such commitments, often
lending them equal or greater normative force than law as a
practical matter.
 Companies tend not to make great distinctions in their CSR
reports as to whether the standards they are complying with are
“voluntary” or “mandatory,” or a matter of law or ethics.
 The commitment may thus be mainly “market” based (e.g. to avoid
risk and attract socially responsibly or other investment funds) or
“ethical,” but its violation may be immense practical
consequences, up to and including losses in stock price and brand
value that would dwarf any likely legal penalty imaginable.
o The violation of trust can even have the existential
consequence of the enterprise ceasing to exist.
 However, some nominally “voluntary” commitments have the
greater weight of authority that comes from government
involvement,
 Voluntary commitments can form the standard of care legally
expected (and litigable), especially if those commitments are
broadly similar across a large number of individual corporate
codes as well as industry codes.
 Many “voluntary” standards incorporate binding law (e.g. as with
parts of the UN Norms)
 The well-known role for voluntary and “soft law” instruments in
paving the way for hard law makes it only prudent for lawyers and
businesspeople to be aware of such instruments and take them
into account.
 The voluntary standards both reflect social expectations and
corresponding commitments and serve as signposts pointing
toward where the “harder” law domestic and international
standards are headed.
 The voluntary/mandatory distinction also vanishes when so-called
voluntary standards are incorporated within binding contracts,
thus forming a private law regime between the parties, and
sometimes even a public law regime.
o Example: when voluntary standards are referenced in
agreements between large multinationals and their
suppliers, or when they are referenced in host
agreements that actually become a “prevailing legal
regime” binding upon the parties—even being ratified
as binding treaties among the governments involved.
 CSR standards are also frequently incorporated in other
agreements between mining and forestry companies and host
governments so as to become part of the binding and enforceable
legal regime.
 By their daily actions, lawyers around the world working in myriad
capacities help create such private and public legal regimes
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 through the cumulative effect of their bottom-up structuring,
drafting, negotiation, advocacy, dispute resolution, and institution-
building activities.
o These bottom-up processes actually form the main
drivers in the creation of law.
 While there has been a concerted effort to label CSR as strictly
“voluntary,” that effort is not increasingly seen as inaccurate,
outdated, futile and irrelevant.
 Responsible conduct begins with minimum legal compliance, but
it just as surely transcends this minimum to encompass areas of
action that are not easily or wisely pigeonholed as “merely
voluntary.”
 Legal regimes at various levels setting forth norm of
environmental and social protection—ranging from
nondiscrimination to prohibitions on false advertising—provide a
background and context for business decisions and action that
lawyers must consider when counseling and litigating.
 Rather than a merely voluntary regime, what we are seeing
emerging is in essence a new customary global law for
responsible business action—“global” rather than “international”
because it involves not just nations but non-state actors.
 Professor Ralph Steinhardt: identified elements of this
phenomenon when he described the currents feeding into a new
“lex mercatoria” or law of merchant akin to that applying to
medieval guilds and bodies corporate.
 It would be a mistake to describe this body of norms as merely
“optional” when noncompliance could result in penalties in fact up
to and including losing the corporate license to operate, and more
practical sanctions such as the public humiliation of the
corporation’s executives.
CSR and the Lawyer’s Ethical Duties
 These new realities recommend ethical, socially conscious and
environmentally aware lawyering, with the lawyer advocating
business actions that make sense both for the business client or
counterparty and for the long-term, best interests of society and
the environment.
 In recent years that role has expanded to recognize a more explicit
role in protecting the brand and good name of the corporation.
o This reputation-assurance function may require an
even more expansive vision of the law that
encompasses the realities described, the emerging
trends in the law, and even the “spirit” of the law.
 What is emerging is a greater leadership role for lawyers in
guiding ethical decision-making and ensuring an ethical culture.
 Given the enhanced levels of global scrutiny prevailing, such a
culture amounts to a “basic competitive requirement” for all
successful businesses.
o Also a competitive advantage for many.
 An ethical duty arises from the enhanced power of transnational
corporations globally and that of lawyers advising them.
 Transnational corporations now have the power—under regional
and bilateral investment treaties for example—to appear directly
as private parties before supranational dispute resolution
enforcement tribunals dealing with trade, investment, and
intellectual property matters.
o No corresponding right to effective dispute resolution
of this sort generally exists for victims of human rights
violations or environmental degradation.
 The initial moral development models applicable to individuals
have now been improved by our enhanced understanding of
gender differences and insights from neuroscience about the role
of emotion in learning and reasoning.
 Clients and objective situations drive the roles that lawyers play,
and any given lawyer will shift between these roles from time to
time, even on a given matter.
 Is the classic professional duty of “zealous representation” an
insuperable obstacle to such lawyering? NO.
 The notion of lawyers giving up their basic humanity and ethics
just because of their professional status is both wrongheaded and
dangerous.
 A concern for justice inevitably implicates ethics, environmental
responsibility, domestic civil liberties, international human rights,
and international law.
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 In representing clients in whatever role, therefore, lawyers are
obligated to keep those concerns in mind.
 This also requires lawyers to render “independent” judgment and
“candid” advice—duty that explicitly allows the lawyer to bring in
moral and political considerations (including those relevant to
human rights or the environment) to bear on legal problems.
 Such judgment and advice should always be given keeping in
mind the right answer to the question “who is the client”: not
the management or directors seeking the counsel—even if
they may have power over the lawyer’s advancement within the
corporation or even remaining employed—but the extended
enterprise that constitutes the corporation itself.
o The very pressing temptation to give answers that
may satisfy the executive asking the question, or the
manager whom an in-house counsel often works with,
should be resisted if those answers may work against
the long-term interests of the client properly defined.
 There are other legal ethics rules relevant, including the
requirement to escalate knowledge of conduct that may
result in legal violations likely to cause substantial injury to
the corporation (unless the lawyer believes this is not the best
interests of the organization).
o This allows the lawyer to take a view of the
corporation as an extended enterprise, including its
stakeholders, to protect the entity from risks and
liabilities.
 Another rule is allowing laywers to reveal even privileged
information if necessary to prevent reasonably certain death
or substantial bodily harm, a crime or fraud, and in other
limited circumstances.
o There is significant room to take a truly broad ethical
view in the larger interests of the corporation and
society.
CSR in Legal Practice
 The question becomes how to raise these issues effectively.
 Lawyers are part of society no less than the businesses they deal
with or represent.
 They want to facilitate deals that are good for the company and
society, but challenge deals that could harm the company or
others.
 International lawyer Elihu Root: The client never wants to be told
he can’t do what he wants to do; he wants to be told how to do it,
and it is the lawyer’s business to tell him how.
 “How” should include ethical and CSR considerations.
 Dean Harold Koh of Yale Law School: Once one comes to
understand the process by which international human rights
norms can be generated and internalized into domestic legal
systems, one acquires a concomitant duty…to try to influence that
process, to try to change the feelings of the body politic to promote
greater obedience with international human rights norms.
 Requests, demands, legal proposals, or laws that are unrealistic
even for responsible businesses are not sustainable and simply
won’t succeed.
 Creatively deploying the “business case” arguments relevant to
the issue, assuming they apply genuinely and forcefully, is the
foundation for incorporating CSR.
 Continual attention to the specific business benefits in the relevant
context is difficult, because although CSR frequently saves costs,
sometimes CSR involves short-term costs or even longer-term
costs, and ultimately the case is moral.
o How to do this: begin with highlighting risks not
otherwise perceived or sufficiently appreciated, but at
its best it proceeds on to identify new opportunities to
add value or competitive advantage via CSR.
 Unfortunately, many lawyers still hinder the application of CSR
principles and rob their companies of significant value by favoring
the negative, risk-management side of this dynamic.
 As such, they often represent the greatest obstacle within
corporations to a more enlightened approach that puts the
business on an energized path to seizing the advantages and
opportunities available from an authentic CSR commitment.
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 Although risk management remains a core legal competency,
sometimes taking more risks and being more entrepreneurial in
the direction of CSR principles—such as respecting and trusting
stakeholders, being open and transparent, investing in joint
understanding and action or creative monitoring or auditing
solutions—can actually accomplish desired objectives through
better routes, and produce ancillary “business case” benefits like
more engaged and highly motivated employees and other
stakeholders.
 The risks of liability are often overstated, and the benefits of
openness, ethical culture, honest and fair dealing understated.
 The best risk management device, the best way to seem good is
in fact to be good.
CSR Legal Skills
 “Basic competitive requirements” of good CSR lawyering: general
good lawyering + more global and comparative knowledge of all
such subjects, specifically including at least some familiarity with
international human rights and environmental law and the leading
CSR standards and tools globally and in relevant sectors.
 “Critical success factors:” vision, empathy, imagination.
o Allow both rational and emotional understanding of
values, positions of other parties, and trends affecting
the wide variety of corporate stakeholders.
 The skilled CSR lawyer takes the additional time to deeply
consider longer-term, collaborative possibilities, both good and
bad, in a rich expanded view that includes not only worst-case
scenarios, but also positive potential.
 Ethical sensibility: involves a willingness to take responsibility and
be accountable.
 The truth is that we are a storytelling species, and the ability both
to shape and to truly listen with empathy to compelling and
authentic narratives that tie together human experiences can be
as or more important than the ability to draft a contract or
complaint.
 When combined with emotional intelligence, strong interpersonal
skills, and the ethical sensibility, these higher rhetorical abilities
allow the sort of collective reasoning that can not only resolve
disputes but proactively anticipate and avoid them.
 Imagining what a given harm would feel like can be a powerful
heart, mind, and eye-opener.
 Lawyers must exercise their ethical muscles by consciously
looking for ways in their various roles to regularly engage in and
encourage ethical reasoning and capacity building—reasoning
that respects stakeholders and nominal “opponents” and the
arguments made by these parties, uses empathy, examines
alternatives modes of decision, and recalls the instinct for justice
that is all too often somehow lost in law school.
 The lawyer’s role should not be reduced to a mere “balancing” of
values: these functions require judgment and leadership, because
they pertain to the questions of “who we are” and who we will
become.
 “Competitive advantages” for CSR lawyers:
o Diverse background and/or genuine passion for
diversity and inclusion—of culture, religion, national
origin, ethnicity, language and other factors—which
can be an invaluable guide to better information,
allowing higher quality decisions.
o Language abilities serve as windows into whole new
worlds of thought and feeling.
o Expertise in CSR principles and instruments, and
their application, can also serve as a competitive
advantage for both lawyers and their clients.
 Lawyers can be vital intermediaries in helping other corporate
executives understand the new context and respond effectively.
 “Zealous advocate” approach to lawyering (AKA Legal
Enabler) assumes that lawyers will defer to management’s pursuit
of short-term profits, without raising issues of long-term business
or reputational impact or ethics of human rights.
o Legal Enablers pass no judgment on corporate acts
and take no position on the wisdom of business
decisions.
o They provide morally neutral risk analysis.
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 o Their stock in trade is not legal judgment; it is legal and child and forced labor issues facing the footwear
rationalization. and apparel industry.
 Lawyers as enforcers of public interest approach: has the potential  Lawyers play a crucial facilitator role in creating and advancing
vice of turning lawyers into instruments of the state and more effective global legal frameworks—like the UN Norms yet
jeopardizing the lawyer’s role as trusted client counselor, inverting more concrete, practical, and actionable—to remedy this
the responsibility for decisions, and potentially putting the lawyer collective action problem and level the playing field by a
into an adversarial relationship with the client. combination of rationalized standards and enhanced
 BETTER MODEL: “CSR Lawyering” enforcement.
o Embraces the special role that lawyers have in  Final difficult but cardinal virtue for CSR lawyering is thus courage:
society to promote justice, human rights, protection of courage to stand up for one’s convictions, bring the ethical
the environment and other aspects of the public considerations and CSR standards to bear, and raise issues of
interest—emphasizing the special obligation to good public policy, even forcefully if necessary, in ways that might
affirmatively raise such issues and proactively initiate even threaten one’s career and position.
discussions of them—while acknowledging that these
duties obtain within the context of concrete duties to
the client.
 The “business case’ for CSR—emphasizing that what’s good for
society can also be good for shareholders—brings together duties
to the client and to the public interest that may otherwise
sometimes be in tension.
 The lawyer’s role—whether formally “in-house” or “outside”—
partakes of moral leadership.
o Such a role resembles that of “rights-aware”
businesspeople promoted by the UN and BLIHR.
o Also analogous to the role of corporate directors and
other leaders in promoting the broader and long-term
interests of the corporation seen from the standpoint
of all stakeholders, not merely shareholders.
 Business leadership, when reinforced by CSR lawyering, has
yielded mutual learning and the emergence of creative new
approaches and solutions.
o This has happened to some extent regarding the
global health problems involving HIV/AIDS and the
pharmaceutical companies, issues confronting the
extractive industries in emerging economies in places
like Chand and Nigeria, conflict situations involving
mining companies in places like Congo and Sudan,

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