The State Duty to Protect

There is a diverse array of policy domains through which the State may fulfill its duty to protect human rights with
respect to business.1 Below are four (4) priority areas.

A. Corporate Culture - Fostering corporate culture respectful of human rights

a. Two approaches by which the Government can foster corporate cultures with respecting rights as
an integral part of doing business:2
i. Strengthen market pressures on companies to respect rights, e.g. Sustainability
reporting can enable stakeholders to compare rights-related performance.
ii. Use “corporate culture” in deciding corporate criminal accountability, i.e. Examining
company policies/practices, not merely individual acts, to determine liability
b. Inducing a rights-respecting corporate culture is easier in State-owned Enterprises (SOEs). 3

B. Policy Alignment - Striving to achieve greater policy coherence across departments working with business
a. “Vertical Incoherence” – where governments take on human rights commitments without regard
to implementation;4 and
b. “Horizontal Incoherence” – where departments work at cross purposes with the State’s human
rights obligations and implementing agencies 5
i. For Host States: To attract foreign investment, States offer protection through bilateral
investment treaties, with little regard to States’ duties to protect, creating an imbalance
and difficulties especially for developing countries, e.g. “freezing” regulation for a
project’s duration.6
ii. When investment cases go to international arbitration they are generally treated as
commercial disputes in which human rights, play little role. 7
iii. For Home States: Only few Export Credit Agencies (ECAs), which finance exports in
regions too risky for the private sector alone and which are mandated by the State to
perform a public function, explicitly consider human rights. 8

C. International Level - Examining the cross-cutting issue of extraterritoriality

a. Int’l level support: Human rights treaty bodies can make recommendations to States. Special
procedures mandate holders can highlight relevant issues. OHCHR can provide technical advice. 9
b. Inter-State cooperation: States can share information about best practices; promote more
consistent approaches; increase their expectations of each other; facilitate peer learning; assist
in monitoring company compliance; provide technical and financial assistance. 10
c. Revision of OECD guidelines11

D. Conflict Zones - Devising innovative policies to guide companies operating in conflict-affected areas
a. A human rights regime could not function in the presence of violence, government breakdown,
and absence of the rule of law.12
b. State policies and practices are limited. States need to do more to “promote conflict-sensitive
practices in their business sectors.”13
c. Home States could identify indicators to trigger alerts with respect to companies in conflict
zones.14

1
John Ruggie, Protect, Respect and Remedy: a Framework for Business and Human Rights, 2008, p. 9.
2
Id., p. 10.
3
Id., p. 11.
4
Id.
5
Id.
6
Id.
7
Id., p. 12.
8
Id.
9
Id., p. 13.
10
Id.
11
Id.
12
Id.
13
Id., p. 14.
14
Id.,