- Access to Remedy
- General Questions
- The Corporate Responsibility to Respect
- The State Duty to Protect
The idea of human rights is as simple as it is powerful: that people have a right to be treated with dignity. Human rights are inherent in all human beings, whatever their nationality, place of residence, sex, national or ethnic origin,
color, religion, language, or any other status. Every individual is entitled to enjoy human rights without discrimination. These rights are all interrelated, interdependent and indivisible.
Human rights are often expressed and guaranteed by law, in the form of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations on
States to act in certain ways or to refrain from certain acts, so as to promote and protect the human rights and fundamental freedoms of individuals or groups.
Human rights standards
The 1948 Universal Declaration of Human Rights was drawn up by representatives of many nations to prevent a recurrence of the atrocities of the Second World War and is the cornerstone of modern human rights law. At the
World Conference on Human Rights in Vienna in 1993, all 171 participating countries reaffirmed their commitment to the aspirations expressed in the Universal Declaration.
The Universal Declaration is codified in international law through the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 1966. Collectively
all three documents are known as the International Bill of Human Rights. The two International Covenants are complemented by seven other “core” international human rights treaties.
By becoming parties to international treaties, States assume obligations under international law to respect, protect and fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. All States have ratified at least one of the nine core human rights treaties, and 80 percent of States have ratified four or more. Some fundamental human rights norms also enjoy universal protection by customary international law across all boundaries and civilizations.
All human rights—whether civil, cultural, economic, political or social—are indivisible, interrelated and interdependent. This means that improving one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects all the others.
What are labour rights?
Labour rights are the rights of workers, as enshrined in international labour standards drawn up by the International Labour Organization (ILO). In particular, its Declaration on Fundamental Principles and Rights at Work commits all its member States to four categories of principles and rights: freedom of association and the right to collective bargaining; the elimination of forced labour; the abolition of child labour; and the elimination of discrimination in respect of employment and occupation. These rights are covered by its eight core conventions.
It has long been recognized that business can have a profound impact on human rights. This impact can be positive, for example by delivering innovation and services that can improve living standards for people across the globe. It
can also be negative, for example where business activities destroy people’s livelihoods, exploit workers or displace communities. Companies can also be complicit in human rights abuses committed by others, including States—for
example, if they collude with security forces in violently suppressing protests or provide information on their customers to States that then use it to track down and punish dissidents.
However, international human rights treaties generally do not impose direct legal obligations on private actors, such as companies. Instead, States are responsible for enacting and enforcing national legislation that can have the effect of requiring companies to respect human rights—such as laws mandating a minimum working age. There are some exceptions in different areas of law, for example international humanitarian law also imposes obligations on private actors, including individuals and companies. However, human rights treaty obligations are generally understood as falling on States only. Given that companies do not have the same legal duties as States under international human rights law, there has been a long-standing debate about what responsibilities companies do have for human rights. The Guiding Principles on Business and Human Rights were developed to clarify the different roles and responsibilities that States and companies have to address business impact on human rights.
The Guiding Principles on Business and Human Rights: Implementing the “Protect, Respect and Remedy” Framework are a set of 31 principles directed at States and companies that clarify their duties and responsibilities to protect and respect human rights in the context of business activities and to ensure access to an effective remedy for individuals and groups affected by such activities. The Guiding Principles were developed by John Ruggie, professor at Harvard University and the United Nations Secretary-General’s Special Representative on the issue of human rights and transnational corporations and other business enterprises from 2005 to 2011. The mandate of the Special Representative was established by the United Nations Commission on Human Rights in 2005 in response to the growing concern about the impact of business activities on human rights and the lack of clarity about the human rights responsibilities of companies. The Commission requested the Secretary-General to appoint a special representative to clarify standards of responsibility and accountability for both business and States with regard to business and human rights.
The Special Representative subsequently initiated an ambitious research and consultation programme, putting particular emphasis on conducting multi-stakeholder consultations in all regions of the world, in order to ensure that his views and recommendations were informed by a broad range of perspectives and experiences. A total of 47 consultations and expert meetings were convened over the six-year period with all stakeholder groups, including representatives of governments, business, civil society and communities whose human rights have been affected by business activities. In addition, a global online consultation was conducted in 2010 on a set of draft guiding principles. This online consultation elicited thousands of responses from stakeholders in over 100 countries.
In 2008, on completion of his first three-year mandate, the Special Representative presented the “protect, respect and remedy” framework to the Human Rights Council. The framework clarified the State duty to protect against business-related human rights abuse, the responsibility of companies to respect human rights, and the need to strengthen access to appropriate and effective remedies for victims of business-related human rights abuse. The Council welcomed this framework and then extended the Special Representative’s mandate by a further three years and requested him to “operationalize” the framework. In June 2011, the Special Representative presented the United Nations Guiding Principles on Business and Human Rights to the Human Rights Council, which endorsed them.
The Guiding Principles provide a blueprint for action, defining parameters within which States and companies should develop policies, rules, and processes based on their respective roles and particular circumstances. They provide clarity to States on the implications of their existing duty to protect human rights against adverse impact caused by companies, including as it relates to ensuring that those affected by business activities have access to an effective remedy. They also provide practical guidance to companies about what steps they should take to ensure that they respect internationally recognized human rights and address any impact. By establishing a global framework, they create a common platform for action and accountability against which the conduct of both States and companies can be assessed.
The Guiding Principles on Business and Human Rights mirror the structure of the 2008 “protect, respect and remedy” framework and provide 31 principles for putting it into operation. According to the framework:
• All States have a duty to protect everyone within their jurisdiction from
human rights abuses committed by companies.
• Companies have a responsibility to respect human rights—i.e., avoid
infringing on the rights of others wherever they operate and whatever their
size or industry, and address any impact that does occur. This responsibility
exists independently of whether States fulfill their obligations.
• When abuses occur, victims must have access to an effective remedy, through
judicial and non-judicial grievance mechanisms.
Regardless of the context, States and companies retain these distinct but complementary responsibilities.
The State duty to protect
The Guiding Principles affirm that the State’s duty to protect individuals from human rights abuses committed by companies requires the State to take appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations, and adjudication. This duty derives both from existing human rights duties that States have taken on by ratifying one or more international human rights treaties and from strong policy rationales.
The business responsibility to respect
The Guiding Principles clarify that the standard of responsibility for business with regard to human rights is to respect human rights, and they elaborate on the steps that companies must take to “know and show” that they do so. This responsibility means companies must know their impact, avoid human rights infringements and address any potential or actual impact. If companies find that they have caused or contributed to the harm, they must provide for or participate in effective remedy processes.
The Guiding Principles clarify that the corporate responsibility to respect human rights is independent of States’ ability or willingness to fulfill their duty to protect human rights.
Access to remedy for victims
As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure that those affected can access an effective remedy through the court system or other appropriate non-judicial or administrative means.
In addition to providing for remediation through legitimate processes if they find that they have caused or contributed to the harm, companies are expected to establish or participate in effective operational-level grievance mechanisms for individuals and communities that may be adversely affected.
The Guiding Principles do not constitute an international instrument that can be ratified by States, nor do they create new legal obligations. Instead, they clarify and elaborate on the implications of relevant provisions of existing international human rights standards, some of which are legally binding on States, and provide guidance on how to put them into operation. The Guiding Principles refer to and derive from States’ existing obligations under international law. National legislation will often exist or may be required to ensure that these obligations are effectively implemented and enforced. This, in turn, means that elements of the Guiding Principles may be reflected in domestic law regulating business activities.
No. Protecting human rights against business-related abuse is expected of all States, and in most cases is a legal obligation through their ratification of legally binding international human rights treaties containing provisions to this effect. The State duty to protect in the Guiding Principles is derived from these obligations.
The responsibility to respect human rights is a minimum expectation of all companies. In many States, it is refected—fully or partly—in domestic law or regulations on companies. Companies are bound by such domestic law. The responsibility to respect human rights may also be incorporated in binding contractual requirements between companies and their corporate and private clients and suppliers. Such requirements can in most cases be enforced through judicial means. The Guiding Principles state that companies should always treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue.
Furthermore, while human rights due diligence and the remediation of harm may not always be legally required, they are necessary if a company is to know and show that it is meeting its responsibility to respect human rights. Failure to do so can subject companies to the “court of public opinion”—comprising employees, communities, consumers, civil society, as well as investors. So there can be legal, financial and reputational consequences if companies fail to respect human rights as set out in the Guiding Principles.
The Guiding Principles reflect the differentiated, but complementary roles of States and companies with regard to human rights. They clarify that ensuring corporate respect for human rights requires not only that companies themselves take action, but also that States provide an appropriate policy and regulatory environment to foster business respect for human rights and accountability for adverse impact.
The Guiding Principles make clear that companies are subject to the laws of the countries in which they operate; however, they also recognize that there may be situations where a State lacks the institutional capacity to enforce national laws and regulations against companies, in particular, transnational ones, or maybe unwilling to do so. In some cases, the national legal environment may conflict with international human rights standards, including the obligations undertaken by the State. The Guiding Principles provide a framework for States, companies, and others to understand their distinct, but complementary roles and the actions needed to effectively prevent and address adverse impact linked to business activities.
Corporate social responsibility (CSR) is understood in different ways. The traditional understanding has focused on companies’ voluntary contributions to community development, charity, and other social and environmental efforts. While such efforts may be relevant to, align with or support the implementation of the Guiding Principles, the fundamental difference between this traditional understanding of CSR and the Guiding Principles is that implementation of the latter is a global expectation of all companies rather than a voluntary effort a company may decide to engage in subject to its other objectives and priorities and/or as part of its social or legal license to operate in particular situations.
The Guiding Principles explicitly recognize that companies may undertake commitments or activities to support and promote human rights, which may contribute to the enjoyment of these rights. But doing so does not offset a failure to respect human rights through their operations.
In recent years, a different understanding of CSR has emerged, one that is focused on the corporate responsibility to understand and address the business impact on society, to avoid adverse impact and maximize the benefits. This is the definition of CSR used by the European Union, among others. Such a definition can encompass the corporate responsibility to respect human rights as set out in the Guiding Principles. The corporate responsibility to respect human rights as set out in the Guiding Principles also provides conceptual and operational clarity on the first two principles of the United Nations Global Compact, which call on companies to commit to respecting (and supporting) human rights and avoiding complicity in human rights abuses.
The Guiding Principles do not prevent any future normative or legal developments. Their preamble states that nothing in the Principles should be read as limiting or undermining any legal obligations that a State is subject to under international human rights law. The Guiding Principles also note that “States should not assume that businesses invariably prefer, or benefit from, State inaction, and they should consider a smart mix of measures—national and international, mandatory and voluntary—to foster business respect for human rights.”
The Guiding Principles furthermore stipulate that States should periodically assess the adequacy of national laws that are aimed at or have the effect of, requiring companies to respect human rights and “address any gaps” (Guiding Principle 3). This means that where there are no relevant laws in place or where these are ineffective to ensure business respect for human rights, States are expected to address such regulatory gaps or deficiencies.
There is, consequently, nothing in the Guiding Principles that precludes any further relevant normative or legal developments by the international community to strengthen protection and respect for human rights in the context of business activities.
The Guiding Principles expect States to take appropriate steps, in line with their human rights obligations, to ensure that those affected by business-related human rights abuse have access to effective remedy, through judicial or appropriate non-judicial means. They also stipulate that where companies identify that they have caused or contributed to an adverse human rights impact, they should provide for or cooperate in its remediation through legitimate processes. The Guiding Principles furthermore establish criteria for what constitutes an effective grievance mechanism and provide guidance on how to overcome obstacles to accessing such remedy.
These provisions constitute a framework against which civil society and victims and their representatives can measure whether both States and companies have taken the steps necessary to ensure respect for human rights and provided victims with access to effective remedy. Since 2008, civil society organizations and others have been using the United Nations “protect, respect and remedy” framework, and later the Guiding Principles, on behalf of victims in this way. For example, civil society organizations have used the Guiding Principles as a framework for analyzing human rights risks and responsibilities in specific sectors, and then advocating for action and better standards. They have also used the Guiding Principles to advocate for the establishment or improvement of grievance mechanisms or to analyze the effectiveness of existing remedy mechanisms. Other organizations have used the Guiding Principles to analyze whether States are taking adequate steps to protect against business-related abuses through legislation, policy measures, and regulation. Several organizations have produced guides for victims of corporate human rights abuses and civil society organizations, including on how to use the Guiding Principles in research and advocacy.
The Guiding Principles themselves do not provide a grievance mechanism or remedy for victims of business-related abuses. Such mechanisms must be implemented by States and companies respectively in order for victims to be assured access to an effective remedy.
However, it is worth noting that, while the Guiding Principles do not come with a dedicated accountability mechanism, there are other international mechanisms that can consider concerns about business impact on human rights. For example, the Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development (OECD) provide for the establishment in each adhering State of National Contact Points which can hear complaints of corporate human rights abuse through the “specific instance” procedure. These Guidelines apply to all OECD members and all other adherents to the OECD Declaration on International Investment and Multinational Enterprises.
Civil society organizations, affected stakeholders and other interested parties can also use the Guiding Principles in their submissions to United Nations bodies. For example, some civil society organizations have made submissions to the universal periodic review of the Human Rights Council on the role of States in ensuring business respect for human rights in certain countries.
Some groups may face increased risks of negative impact from business activities. In particular, those that are already marginalized or excluded in society, as is often the case for women, minorities, migrants, persons with disabilities or indigenous peoples, may be more vulnerable to adverse impact or may experience impact differently. Other groups, such as children, may also be vulnerable in certain circumstances and require different protections. The Guiding Principles explicitly state that the principles should be implemented in a non-discriminatory manner, with particular attention given to the rights and needs of individuals from such groups.
The State duty to protect against the adverse human rights impact of business activities extends to the full range of a State’s human rights obligations, including in relation to women’s rights and gender and to the principle of non-discrimination more generally. The Guiding Principles particularly stress the importance of addressing the risk of gender-based and sexual violence in confict-affected areas. They also highlight that the State’s duty to ensure access to remedy involves taking steps to reduce or remove barriers to judicial remedy mechanisms, including where particular groups, such as indigenous peoples or migrants, may face obstacles when accessing courts.
The corporate responsibility to respect involves assessing potential or actual impact on human rights, paying special attention to impact on individuals from groups or populations that may be at heightened risk of vulnerability and marginalization. More specifically, the Guiding Principles stipulate that companies should respect the rights of specific groups or populations that may require particular attention. This means that companies may need to consider additional human rights standards and instruments, such as those relating to indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families. Companies should also consider how men and women may face different risks or experience impact differently.
A range of organizations and groups, including investors, industry associations, multi-stakeholder organizations, national human rights institutions, trade unions, and civil society organizations, can—and many already do—use the Guiding Principles to develop their own business and human rights policies and processes, including lobbying and advocacy work. For example, many national human rights institutions disseminate information on business and human rights or advocate for the development of national action plans to implement the Guiding Principles, and some even have a mandate to provide a grievance mechanism for business-related human rights complaints. Annexes III and IV provide information on relevant initiatives and guidance, for instance from United Nations agencies, regional organizations, national human rights institutions, trade union networks, and civil society organizations. Question 14, below, provides examples of action by other international and regional organizations to support the implementation of the Guiding Principles.
Collective action through multilateral institutions can help ensure more uniform adherence by all States to the measures necessary to require and encourage business respect for human rights. In July 2012, the Secretary-General presented a report to the Human Rights Council on how the Guiding Principles may be effectively integrated in United Nations programmes and activities (A/HRC/21/21).
In particular, the Secretary-General recommended that the Guiding Principles should be embedded in existing system-wide coordination and policy structures. United Nations Resident Coordinators, the Secretary- General’s designated representatives in a country who coordinate operational activities of the United Nations there, and United Nations country teams were encouraged to take the lead, in collaboration with OHCHR, to ensure the integration of the Guiding Principles into planning and advocacy efforts at the national level. The Human Rights Council has given OHCHR a mandate to take the lead within the United Nations system to mainstream the Guiding Principles into relevant mechanisms and programmes.
The Guiding Principles have been endorsed by United Nations Member States and are based on fundamental United Nations human rights and labour standards. They are thus not simply another voluntary standard. Indeed, their normative value has been demonstrated by the fact that global standards and initiatives on or relevant to business and human rights have converged around the Guiding Principles and continue to do so.
For example, the Guiding Principles have been integrated into the 2011 update of the OECD Guidelines for Multinational Enterprises, a set of guidelines that is applicable to all States that adhere to the OECD Declaration on International Investment and Multinational Enterprises. The update includes a new chapter on human rights that is consistent with the Guiding Principles. It also applies the due diligence process, central to the Guiding Principles, to all the areas covered by the Guidelines. All adhering States undertake to recommend to companies operating in or from their territories that they should apply the Guidelines. Under the Guidelines, States also undertake to establish National Contact Points, which promote the understanding and application of the Guidelines by business and provide a mediation and conciliation platform in specific instances where companies are alleged to not observe the Guidelines.
Regional organizations, including the Council of Europe, the European Union (EU) and the Organization of American States (OAS), have expressed support for the Guiding Principles and have called for their implementation. The European Commission, the executive body of the European Union, has adopted a strategy on corporate social responsibility that reflects the Guiding Principles. The Council of Europe and the European Commission have both asked their member States to develop national action plans to implement the Guiding Principles, and the Council of Europe has initiated a process to draft a non-binding instrument based on the Guiding Principles. The Association of Southeast Asian Nations (ASEAN) and the African Union have both started exploring ways of aligning their business and human rights agendas with the Guiding Principles.
The Guiding Principles have also informed other global standards relevant to business and human rights. For example, the Performance Standards on Environmental and Social Sustainability of the International Finance Corporation, the private-sector lending arm of the World Bank, were updated in 2011 and correspond in important aspects with the corporate responsibility to respect set out in the Guiding Principles. The Guiding Principles are reflected in relevant parts of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security of the Food and Agriculture Organization of the United Nations (FAO).
The United Nations Global Compact, a United Nations policy initiative for responsible business, has stated that the Guiding Principles provide the content of the first two principles of the Global Compact, informing the commitment undertaken by its participants. The International Organization for Standardization has included a human rights chapter in its Guidance on social responsibility that is aligned with the United Nations “protect, respect and remedy” framework.
When the Human Rights Council endorsed the Guiding Principles on 16 June 2011, it also decided to appoint a Working Group on the issue of human rights and transnational corporations and other business enterprises to promote their dissemination and implementation across the world. The Working Group consists of five independent experts and is geographically balanced. The experts can serve for a maximum period of six years. The Working Group is part of the Human Rights Council’s system of special procedures.
The Working Group is, moreover, mandated to consult with all relevant stakeholders, and to identify and promote “good practices” and lessons learned. It also has a mandate to promote capacity-building, issue recommendations on legislation and policies related to business and human rights, and conduct official country visits at the invitation of States. The Working Group is further mandated to integrate a gender perspective in all its work and pay special attention to potentially vulnerable groups such as indigenous peoples and children. As with other Human Rights Council special procedure mandates, the Working Group can receive information from affected individuals or their representatives, and issue communications to States and other stakeholders to enquire about human rights concerns related to its mandate.
The Working Group also guides the Forum on Business and Human Rights, which meets yearly in Geneva.
The Working Group reports on its activities to the Human Rights Council and the United Nations General Assembly every year.
Information on its full mandate, composition, activities, and reports can be found on the OHCHR website.
The Forum on Business and Human Rights was established in 2011 by Human Rights Council resolution 17/4. The Forum’s mandate includes discussing trends and challenges in the implementation of the Guiding Principles, promoting dialogue and cooperation, exploring challenges faced in particular sectors or operational environments or in relation to particular groups, and identifying good practices. The Working Group on the issue of human rights and transnational corporations and other business enterprises guides the Forum.
The Forum is open to the participation of all relevant stakeholders, including States, other United Nations bodies, international organizations, national human rights institutions, companies, business associations, labour unions, academics and non-governmental organizations. Each year the President of the Human Rights Council appoints a chairperson of the Forum, on the basis of regional rotation. The chairperson prepares a report of the Forum’s discussions.
The Forum is held annually over two working days. Information on its full mandate and past and upcoming sessions can be found on the OHCHR website.
OHCHR has issued an interpretive guide specifically on the corporate responsibility to respect human rights, based on the research conducted during the mandate of the former Special Representative of the Secretary-General, John Ruggie.5
A number of organizations have issued their own guidance on how to implement the Guiding Principles in specific sectors, such as the extractive sector, or in relation to specific issues, such as the rights of indigenous peoples. Such guidance has been particularly directed at companies. However, some organizations and initiatives have also developed guidance for States, for example on how to develop national action plans for the implementation of the Guiding Principles. Annex IV contains a non-exhaustive list of sources of further guidance.
The first pillar of the Guiding Principles addresses the State duty to protect. Its foundational principles affirm that, under existing international human rights law, States must protect against human rights abuses by private actors, including companies. This means States must prevent, investigate, punish and redress human rights abuses that take place in domestic business operations. They also stipulate that States should set clear expectations that companies domiciled in their territory and/or jurisdiction should respect human rights throughout their operations, that is, in every country and context in which they operate.
In addition to the foundational principles of this first pillar, there are five operational principles with concrete actions for States to meet their duty to protect human rights in the context of business operations. These cover a wide spectrum of law and policy divided into the following broad categories:
1. General State regulatory and policy functions. This includes enacting and
enforcing laws that require companies to respect human rights; creating
a regulatory environment that facilitates business respect for human
rights; and providing guidance to companies on their responsibilities.
2. The State-business nexus. This includes situations where a State owns
or controls a company, or where it contracts or otherwise engages with
companies to provide services that may have an impact on the enjoyment
of human rights. Finally, it covers States’ commercial transactions,
3. Supporting business respect for human rights in conflict-affected
areas. As conflict-affected areas pose heightened risks of gross human
rights abuses, including by companies, the Guiding Principles include
provisions for States (home and host) to provide guidance, assistance
and enforcement mechanisms to ensure that companies are not involved
in abuses in conflict-affected areas.
4. Ensuring policy coherence. This includes ensuring that policies are
coherent across government departments and functions and when acting as members of multilateral institutions, and that external cooperation agreements and treaties (such as bilateral investment treaties) are
aligned with their human rights obligations.
What does the State duty to protect mean in practice?
Establishing health and safety standards for factories is one example of enacting legislation and regulations that have the effect of requiring companies to respect human rights. Such standards protect workers against conditions that can put their lives or health in danger. States can enforce this legislation for instance by establishing oversight bodies, such as labour inspectorates, that can monitor compliance at factories and issue sanctions when companies fall short of the standards. Many States also provide comprehensive guidance to companies on how to meet the standards. States can require companies to conduct due diligence of their business relationships, such as overseas suppliers, by, for example, requiring them to report globally on how they ensure compliance with labour standards in their supply chain, or by making due diligence a condition for receiving certain types of State support, such as export credit.
Appropriate regulation, legislation and enforcement are important and necessary parts of the State duty to protect against abuse of human rights by third parties, including companies. The Guiding Principles explicitly call for States to take “appropriate steps to prevent, investigate, punish and redress” business-related human rights abuses (Guiding Principle 1) and clarify that this means enforcing appropriate legislation and regulations that require companies to respect human rights. Enforcement can take place through administrative action as well as through adjudication, as appropriate.
The commentary to Guiding Principle 3 makes clear that States should review whether their laws and regulations provide the necessary coverage to prevent and protect against business-related abuses, taking into account
“evolving circumstances”, and ensure a policy, legislative and regulatory environment conducive to business respect for human rights. If legislation does not adequately protect human rights, it may require revision or new legislation may be needed. In other words, the State duty to protect does not just require more regulation per se, but rather focuses on having in place the right kind
of regulation that is adequate and effective in requiring companies to respect
The Guiding Principles focus not only on regulation and enforcement. They also recognize that States have a range of legal, policy and economic tools at their disposal to ensure business respect for human rights. The principles on the State duty to protect call for incentives as well as sanctions, with room for guidance, support and capacity-building alongside regulatory and punitive approaches, where needed. States should use a variety of measures in combination, as relevant to ensure adequacy and effectiveness.
This is what is referred to as a smart mix of measures.
Some States require companies—in particular, larger multinational ones—to report publicly on their social and environmental performance worldwide. By requiring such reporting, States drive transparency and enable official and public scrutiny
of a company’s performance. This can be one of a mix of measures to ensure that companies respect human rights—and that they communicate their efforts to do so.
The Guiding Principles stipulate that States should set out clearly the expectation that all companies domiciled in their territory and/or jurisdiction respect human rights throughout their operations. They note that, at present, States are not generally required under international human rights law to regulate the extraterritorial activities of companies domiciled in their territory and/or jurisdiction, but nor are they generally prohibited from doing so, as long as there is a recognized “jurisdictional basis” and the exercise of jurisdiction is reasonable (see Guiding Principle 2).
Given the smart mix of measures called for by the Guiding Principles, States have a range of policy, regulation and enforcement options regarding both direct extraterritorial jurisdiction (asserting jurisdiction over a company for conduct abroad) and domestic measures with extraterritorial implications (domestic measures that have the effect of discouraging, incentivizing or otherwise affecting a company’s global conduct).
The Guiding Principles recognize that there can be strong policy reasons for extraterritorial jurisdiction. For example, the Guiding Principles note that the risk of gross human rights abuses is greatest in conflict-affected areas. In such areas, the “host” State may not be able or willing to protect human rights, and there may be no State control or authority over the area. In those situations, “home” States have a particular role to play in providing advice, assistance and guidance, and in requiring companies operating in these areas to ensure that they are not involved in human rights abuses.
It is also recognized that this is an evolving area of international law, with some human rights treaty bodies increasingly recommending that home States take steps to prevent abuse abroad by companies within their jurisdiction.
The Human Rights Committee, the expert committee on the International Covenant on Civil and Political Rights, has affirmed, in its concluding observations to State parties, that a responsibility to set out clearly the expectation that companies domiciled in their territory or jurisdiction should respect human rights throughout their operations can be inferred from the human rights obligations under the Covenant. The Committee has also encouraged States to ensure access to remedy for people whose human rights have been violated by such companies operating abroad (CCPR/C/DEU/CO/6).
The Guiding Principles refer to the concept of “policy coherence” in the context of the State duty to protect. In any given State there will be a range of governmental departments, agencies and other institutions involved in shaping business conduct. These may be labour departments, agencies tasked with overseeing corporate law or securities regulation, investment, export credit and insurance agencies, trade bodies, and so on. States should ensure that all are aware of and observe the State’s human rights obligations when fulfilling their respective mandates, including by providing them with relevant information, training and support.
At times, States also have to strike a difficult balance between different societal needs—in these situations, States should ensure that they achieve policy coherence to enable them to meet their human rights obligations.
In practice, policy coherence entails ensuring that departments that regulate the establishment and operation of companies do not inadvertently constrain business respect for human rights. For example, corporate law usually does not incentivize corporate managers to consider human rights issues; however, States can create incentives and requirements to respect human rights through changes to corporate law. Another example is export promotion agencies, which should be aware of the responsibility of the State to set out clearly the expectation that companies domiciled in its territory or jurisdiction should respect human rights throughout their operations. This implies taking appropriate steps to ensure that business operations or projects that receive credit or support have proactively identified and mitigated human rights risks arising from the project.
The risk of business involvement in gross—i.e., large-scale, severe or systematic— human rights abuse is particularly high in areas affected by conflict. In such a situation, the human rights regime rarely functions as intended—for example, because the State lacks effective control over the area or is not able or willing to protect or respect human rights, or because the area is under the de facto control of armed groups. Indeed, gross human rights abuses are often an indicator of actual or potential conflict.
This increased risk requires heightened due diligence from a company operating in such an area, as well as particular attention from States to help ensure that companies do not commit or contribute to such abuses. This may pose particular challenges where there are no effective government institutions or legal protection, as is often the case in conflict-affected areas. While the
“host” State (the operating country) maintains a duty to protect human rights even in situations of conflict, as stated above it is often unable to do so.
In such situations, the “home” State (the State where a company is incorporated or has its headquarters or primary seat) has responsibilities to engage with such companies to help them identify, prevent and mitigate human rights risks, including from their activities and their business relationships. States should also deny access to public support or services for companies that are involved in gross human rights abuses and refuse to address those situations.
Some States have taken action in this regard by, for instance, requiring companies that use raw materials or commodities that might originate in conflict-affected areas (for example, so-called conflict minerals) to disclose their sourcing and use of such materials. Others issue specific guidance and warnings to business about human rights risks in a particular conflict zone.
The Guiding Principles do not specify how States should implement them. However, several international and regional mechanisms have recommended that States should develop national action plans on business and human rights to ensure implementation of the Guiding Principles. National action plans can be a means for States to improve coordination among the different government departments relevant to the implementation of the Guiding Principles, and can provide a vehicle for national-level multi-stakeholder discussions. National action plans are also said to offer a flexible, yet structured means for identifying national policy and regulatory options, creating transparency and reviewing progress. For example, the Working Group on business and human rights has recommended that States should develop such plans. The European Commission has invited all European Union member States to develop national action plans, and the Council of Europe has called upon its members to do the same.
There are many ways in which States can implement the Guiding Principles, and activities to do so can take place under existing initiatives (for example, some States are integrating initiatives to implement the Guiding Principles in their general national action plans on human rights) or may not be coordinated in one single effort. The overarching principle is that States must fulfill their international human rights obligations by taking the necessary steps to ensure that they effectively prevent, investigate and punish human rights abuses by companies. States may find it necessary and useful to develop an overall plan for their efforts to ensure that they do so effectively, and to communicate their intentions and measures to companies and other stakeholders.
A number of States have taken action to implement the Guiding Principles nationally. Several have done this through national strategies or action plans that set out how they intend to implement the different elements of the Guiding Principles. More information on States’ national action plans can be found on the OHCHR website (www.ohchr.org).
The second pillar of the Guiding Principles sets out the corporate responsibility to respect human rights. According to the Guiding Principles, this means avoiding infringing on the rights of others and addressing adverse human rights impact that does occur. In other words, a company must operate in a way that does not interfere with or have an adverse impact on the human rights of others, be they employees, community members, consumers or others. This responsibility has been affirmed by the Human Rights Council, and has also been recognized by bodies such as the International Labour Organization, the Organisation for Economic Co-operation and Development, and the United Nations Global Compact, and is increasingly reflected in the statements of companies themselves, too.
The responsibility to respect human rights requires companies to have policies and processes in place to prevent and mitigate any risk of causing or contributing to adverse human rights impact. If companies identify that they have nevertheless caused or contributed to adverse impact, they should provide for or cooperate in remediation. Companies should also seek to prevent or mitigate any adverse impact that is directly linked to their operations, products or services through their business relationships. The responsibility to respect applies, at a minimum, to all internationally recognized human rights expressed in the International Bill of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work, though a company may also need to consider additional international human rights standards, depending on the context. While the actions companies take to meet the responsibility to respect will depend on their scale and complexity, the responsibility itself applies to all companies—regardless of size, sector or location.
In 2012, OHCHR published an interpretive guide on the corporate responsibility to respect,6 which provides detailed guidance on the meaning and intent of the Guiding Principles that apply to companies. It provides detailed information on the corporate responsibility to respect human rights and also elaborates on many of the questions found in this chapter.
The Universal Declaration of Human Rights calls on “every organ” of society to contribute to realizing human rights for all. At the international level, the corporate responsibility to respect human rights is a standard of expected conduct that is acknowledged in virtually every voluntary and soft-law instrument related to corporate responsibility. With the endorsement of the Guiding Principles by the Human Rights Council, this responsibility has been affirmed by United Nations Member States.
As explored in chapter II, States have the primary obligation to enact and enforce laws and policies that have the effect of requiring companies to respect human rights. If a State is implementing and enforcing its human rights obligations, including the duty to protect against human rights abuses by companies, respecting human rights is generally a question of legal compliance. However, the Guiding Principles make clear that the responsibility to respect human rights applies even where such legislation is lacking or not effectively enforced. Thus, the corporate responsibility to respect human rights exists independently of the State duty to protect human rights under the first pillar.
Companies need to know and show that they respect human rights. They cannot do so unless they have certain policies and processes in place. First, companies must institute a policy commitment to meet the responsibility to respect human rights. Second, they must undertake ongoing human rights due diligence to identify, prevent, mitigate and account for their human rights impact. Finally, they must have processes in place to enable remediation for any adverse human rights impact they cause or contribute to.
Human rights policy statement
As a basis for embedding their responsibility to respect human rights, companies should express their commitment in a publicly available policy statement. Such a statement should be approved at the most senior level of the company and set out its expectations of personnel, business partners and other parties directly linked to its operations, products or services. It does not necessarily need to be a stand-alone statement, but could be integrated into existing corporate statements and business partner codes of conduct. The statement must be embedded from the top of the company through all its functions, and be reflected in operational policies and processes as necessary.
Human rights due diligence
“Human rights due diligence” refers to the continuous process of identifying and addressing the human rights impact of a company across its operations and products, and throughout its supplier and business partner networks. Human rights due diligence should include assessments of internal procedures and systems, as well as external engagement with groups potentially affected by its operations.
The Guiding Principles state that companies should integrate the findings of their human rights due diligence processes into policies and procedures at the appropriate level, with resources and authority assigned accordingly. The objective is to identify, prevent and mitigate the company’s negative human rights impact, and companies should track their effectiveness in achieving this. Finally, companies should be prepared to communicate their commitment and actions externally, including to those groups likely to be affected by their operations. As operations, context and impact may change, a company should periodically reassess its potential or actual impact on all human rights as part of its due diligence processes.
If companies identify that they have caused or contributed to adverse impact, they should provide for or cooperate in remediation through legitimate processes. In some cases, remediation may be best achieved through judicial mechanisms, in which case the company should cooperate with these processes. In other cases, dialogue, mediation, arbitration or other non-judicial mechanisms may be best suited to provide effective remedy. The appropriate form of remedy will depend largely on the wishes of those affected.
No. The term “responsibility” to respect, rather than “duty”, indicates that respecting rights is not an obligation that current international human rights law generally imposes directly on companies, although elements of this responsibility will often be reflected in domestic laws. The Guiding Principles reflect the different, but complementary responsibilities of States and companies when it comes to preventing and addressing business impact on human rights. As has been explored in chapter II, international human rights law obligates States to take adequate steps to protect human rights against adverse impact by companies. By contrast, any legal duties on companies relating to the corporate responsibility to respect human rights is generally imposed by States at the national level, in some cases as a result of States’ human rights obligations. The Guiding Principles do, however, stipulate that, regardless of whether States are meeting their own obligations to protect human rights, companies have an independent responsibility to respect human rights.
Because companies can have an impact on virtually the entire spectrum of internationally recognized human rights, their responsibility to respect applies to all such rights. At a minimum, this means the rights enshrined in the Universal Declaration of Human Rights; in the two International Covenants on civil and political and on economic, social and cultural rights; and in the ILO Declaration on Fundamental Principles and Rights at Work, which covers the eight core ILO conventions. Depending on the context, including where companies pose risks to individuals belonging to specific groups or populations that require particular attention, they may need to consider additional international human rights standards. For example, companies that may have an impact on the rights of children should also look to the specific rights enshrined in the Convention on the Rights of the Child.
In practice, companies will often run a greater risk of impact on some human rights than on others in particular industries or contexts. However, this does not change the fact that the responsibility to respect applies across all rights.
No. International human rights law imposes legal obligations on States to promote and fulfill human rights. The corporate responsibility to respect human rights requires companies not to infringe on human rights, but does not require them to go beyond that to promote and fulfill human rights.
This is not to discourage companies from also promoting and helping to fulfill human rights, where they can and choose to do so. Such activities may be voluntary commitments or required of them by contract in some circumstances. But such additional activities are not part of the universal baseline responsibility that all companies have to respect human rights, and they cannot be used to offset or compensate for a failure to meet this responsibility. Nevertheless, many companies choose to support human rights. Signatories to the Global Compact commit to “support and respect” human rights, as stated in the frst of the ten Global Compact principles. For examples on how business can support human rights, see the United Nations Global Compact’s website: www.unglobalcompact.org.
The concept of a company’s sphere of influence is sometimes used to define the boundaries of its social responsibility, but it is not used in the Guiding Principles. The concept can be useful when considering how a company can promote human rights or support other social goals. But in the Guiding Principles infuence is not a basis for attributing responsibility to a company for human rights harm. Instead, responsibility is determined by the human rights impact of its activities: whether it causes or contributes to an adverse impact, or its operations, products or services are directly linked to adverse impact through a business relationship. Its influence—here understood as leverage— then becomes relevant in identifying what it can reasonably do to address that impact and will normally vary in these contexts. If a company has not caused the impact itself, the leverage it has over the perpetrator will shape its range of options to prevent or mitigate the impact, but it does not affect the scope of the responsibility itself.
If it is necessary to prioritize actions to address human rights risks, companies should be guided by the severity of the potential or actual impact identified, including whether a delayed response may make the impact irremediable.
Where national law is enacted and enforced in such a way that it requires companies to respect all internationally recognized human rights, respecting human rights will be a legal duty. But the corporate responsibility to respect human rights exists above and beyond the need to comply with national laws and regulations protecting human rights. It applies equally where relevant domestic law is weak, absent or not enforced. Typically, some of the most challenging situations for companies arise when national law directly conflicts with international human rights standards or does not fully comply with them. For example, a State’s national legislation may not provide for equal rights of men and women or may restrict the rights to freedom of expression and freedom of association. If the national legislative environment makes it impossible for a company to fully meet its responsibility to respect human rights, the company is expected to seek ways to honor the principles of internationally recognized human rights and to continually demonstrate its efforts to do so. This could mean, for example, protesting against government demands, seeking to enter into a dialogue with the government on human rights issues, or seeking exemptions from legal provisions that could result in adverse human rights impact. But if over time the national context makes it impossible to prevent or mitigate adverse human rights impact, the company may need to consider ending its operations there, taking into account credible assessments about the human rights impact of doing so.
The corporate responsibility to respect requires a company to:
(a) Avoid causing or contributing to any adverse human rights impact
through its own activities, and address any impact when it does occur;
(b) Seek to mitigate or prevent any impact that is directly linked to its
operations, products and services through its business relationships.
A company may cause an adverse impact if it denies workers the right to organize themselves. A company may contribute to an adverse impact if it provides fnancing to a construction project that will entail forced evictions or agrees a purchasing order with a supplier whose timeline for completion makes it impossible for the supplier to adhere to international labour standards. A company’s operations, products or services may be directly linked to an adverse impact through a business relationship if one of its supplier’s subcontracts work, without its prior knowledge, to contractors that use forced labour. In this last example, the company has not caused or contributed to the issue, but once made aware of it, it still has a responsibility to act to seek to prevent and/or mitigate it.
These different types of involvement in adverse human rights impact will require different responses. A company assesses the nature of its involvement in an adverse human rights impact, i.e., whether it falls within (a) or (b) above, through a process of human rights due diligence. If a company causes or may cause an adverse human rights impact, it should take the necessary steps to cease or prevent the impact. If it contributes or may contribute to an adverse human rights impact, it should take the necessary steps to cease or prevent its contribution and use its leverage to mitigate any remaining impact to the greatest extent possible. If a human rights impact is directly linked to its operations, products or services through a business relationship, it should seek to prevent or mitigate such an impact even if it has not contributed to it.
The term “direct link” refers to the linkage between the harm and the company’s products, services and operations through another company (the business relationship). Causality between the activities of a company and the adverse impact is not a factor in determining the scope of application of this part of the Guiding Principles.
A company’s “business relationships” is defined broadly to encompass relationships with business partners, entities in its value chain and any other State or non-State entity directly linked to its business operations, products or services. This includes entities in its supply chain beyond the frst tier and indirect as well as direct business relationships.
No, the responsibility to respect human rights is a baseline expectation for all companies, regardless of size, operating context, sector or industry. It should not be assumed that a smaller company necessarily has less potential or actual impact on human rights than a larger entity. However, a company’s size will often influence the kinds of approaches it takes to meet its responsibility. Larger companies will likely be engaged in a wider range of activities, and have more business relationships and longer and more complex supply chains than small companies. Large companies are also likely to have more complex procedures and systems in place for decision-making, and communications, control and oversight. Thus, the policies and processes that large companies need in order to ensure that they both know and show that they respect human rights will have to refect all these factors. In most cases, large companies will need more formal and comprehensive systems in place to effectively integrate respect for human rights throughout their operations and activities. Smaller companies may have less formal modes of communication, fewer employees and less formal management structures. Internal systems and oversight may therefore also be less formalized and complex. However, while a company with few employees may often not need very comprehensive systems, size should never be the determining factor for the nature and scale of the processes necessary to address human rights risk—this should always be guided by the risk that the company’s operations, products, services and business relationship pose to human rights.
A gold trading company with 20 employees buying gold from countries affected by conflict and where human rights abuses are linked to minerals or are prevalent will have a significant risk of its products, operations or services being linked to adverse human rights impact through its business relationships. Its policies and processes to ensure that it is not involved in such abuses will need to be proportionate to this risk. This may necessitate comprehensive and formal systems. The company may also, for example, need to bring in external expertise in human rights and human rights due diligence processes, as it may not have such expertise in-house.
One of the fundamental principles of the international human rights system is that victims must have access to an effective remedy when their rights have been violated. Remedy for human rights harm refers to both the processes of providing remedy for an adverse human rights impact and the substantive outcomes that can counteract, or make good, the impact. The Guiding Principles affirm that the State duty to protect rights includes ensuring that, if companies abuse human rights, States will provide a robust and appropriate remedy to those affected, through judicial, administrative, legislative or other appropriate means, when such abuses occur within their territory and/or jurisdiction. Effective judicial mechanisms are at the core of ensuring access to remedy; the State duty to provide access to effective remedy includes taking appropriate steps to ensure that State-based domestic judicial mechanisms are empowered to address business-related human rights abuses. This implies taking steps to remove legal, practical or other barriers (such as administrative fees or language barriers) that may prevent victims from presenting their cases.
Barriers to accessing domestic courts
Minority communities or indigenous communities may not speak the language of the linguistic majority. If courts, even in the minority or indigenous district, use only the majority language, this may prevent victims from taking their grievances to court. In such cases, the State duty to ensure access to judicial remedy may imply hiring interpreters that make it possible for minority groups to understand the court process, set out their grievances in their own language and argue their case before the court.
However, the duty to ensure access to effective remedy does not simply mean that States should strengthen their legal framework and court systems. They should also ensure that effective non-judicial remedies are available to hear and adjudicate business-related human rights complaints where appropriate. Administrative, legislative and other non-judicial mechanisms play an essential role in complementing and supplementing judicial mechanisms. Non-judicial mechanisms may be ombudspersons, labour and employment mechanisms with mandates to review cases and issue sanctions, and national human rights institutions. They can have adjudicative powers—for example, some national human rights institutions primarily offer mediation between parties, whereas others have a mandate to hear cases and issue adjudications and determine sanctions and other forms of remedy.
The principles regarding access to remedy apply not only to States. They also stipulate that companies should collaborate with judicial mechanisms, and provide for or collaborate with operational-level mechanisms for fielding and addressing grievances from individuals and communities that may be adversely affected by their operations. However, operational-level grievance mechanisms should not be used to undermine the role of legitimate trade unions in addressing labour-related disputes, or to preclude access to judicial or other non-judicial grievance mechanisms. Multi-stakeholder and other collaborative initiatives based on human rights-related standards should also make available effective grievance mechanisms.
The Guiding Principles set out a list of effectiveness criteria for State and non-State non-judicial grievance mechanisms. These criteria stipulate that effective non-judicial grievance mechanisms should be legitimate, accessible, predictable, equitable, transparent and rights-compatible. Simply put, they must provide genuine avenues for effective remedies to victims of human rights abuses by companies and must not amount merely to a public relations exercise. Operational-level mechanisms should also be based on engagement and dialogue with the stakeholder groups whose grievances they seek to remedy.
It is part of the State’s duty to protect human rights to ensure that when human rights abuses occur within its jurisdiction, those affected have access to effective remedy through judicial, administrative, legislative or other appropriate means. The Guiding Principles spell this out. State-based judicial and non- judicial mechanisms should form the foundation of a wider system of remedy for business-related human rights abuse.
But it is also appropriate for companies to provide remedy, either directly or through cooperation with other State-based or non-State remedy mechanisms, when they identify that they have caused or contributed to an adverse human rights impact. This forms part of their own accountability: a company cannot, by definition, meet its responsibility to respect human rights if it identifies that it has caused or contributed to a negative human rights impact and then fails to enable its remediation. In many cases, the company may also be the best placed to provide for remediation, especially if the impact can be identified and remedied early on.
While judicial mechanisms are at the core of ensuring access to remedy, State-based and non-State-based non-judicial mechanisms can play an essential role in complementing and supplementing judicial mechanisms. In some cases, the affected person may prefer a non-judicial mechanism over a judicial mechanism. The term non-judicial grievance mechanism (sometimes just referred to as a “grievance mechanism”) is used in the Guiding Principles to cover a broad range of mechanisms that address complaints or disputes involving companies or their stakeholders. A non-judicial grievance mechanism can be any procedure or process through which affected persons can bring their complaint against the company and have their complaint heard, and that has a process for settling the complaint. Such mechanisms may be mediation-based, adjudicative or follow other culturally appropriate and rights-compatible processes—or a combination of these—depending on the context, the issues concerned, any public interest involved and the potential needs of the parties.
An operational-level grievance mechanism is a non-judicial grievance mechanism established or provided for by a company, or otherwise linked to it, and present locally at the level of its operations.
All State-based and non-State-based non-judicial grievance mechanisms should meet the effectiveness criteria set out in Guiding Principle 31.
Effective judicial mechanisms are at the core of ensuring access to remedy, and ensuring that victims have effective access to remedy through the court system is a central duty of the State. Non-judicial remedy may not be appropriate in all circumstances. Some human rights abuses, such as those that give rise to potential criminal liability and/or amount to gross human rights abuses, should be remedied through judicial mechanisms wherever possible. In other cases, for example if a court process is underway, it may be more appropriate to defer to that process rather than pursue remediation through non-judicial mechanisms.
However, in some cases, victims may themselves prefer a non-judicial process. This could be because it may be faster and potentially less costly, or because the nature of the grievance lends itself to being remedied without going through a court procedure (e.g., providing prompt resolution of minor grievances that may not in themselves amount to human rights abuses). But it can also be for other reasons, for instance if the affected persons perceive that they will benefit the most from engaging in a dialogue-based process with the company. Companies cannot provide for a functioning judicial system—in some cases, the judicial system may be weak or perceived as biased by the victims, who do not think they have any realistic expectation of remedy through it. Non- judicial mechanisms then offer an important alternative, even potentially for more severe violations.
Judicial and non-judicial remedy mechanisms are not mutually exclusive. Sometimes victims may first seek remedy through a non-judicial mechanism, but if they are not able to obtain satisfaction, they could take their grievance to a court at a later stage. Judicial and non-judicial processes can also be pursued simultaneously. Some non-judicial mechanisms have a judicial “escalation” option, such as the ability to have their outcomes enforced by the courts. The Guiding Principles point towards the need for all avenues for remedy to be better developed, more effective, and known and accessible to their potential users. Wherever possible, those affected should have the opportunity to make an informed decision about how they wish to proceed based on a clear understanding of the alternatives. As mentioned above (see Q 34), the Guiding Principles also clarify that non-judicial mechanisms should not be used to undermine the role of legitimate trade unions in addressing labour-related disputes, or to preclude access to judicial or other non-judicial grievance mechanisms.
If a company has caused or contributed to an adverse human rights impact, it should provide for or cooperate in remediation. The company may be able to play a direct role in providing timely and effective remedy. Depending on the specifc harm, remedy may take a number of forms including an apology, compensation (fnancial or otherwise), the cessation of a particular activity or relationship, arrangements to ensure the harm cannot recur, or another form agreed upon by the parties and which meets the effectiveness criteria set out in Guiding Principle 31. In other circumstances, remediation may be provided by an entity other than the company. For example, if criminal charges are involved, the company should defer to judicial or State-based proceedings rather than pursue direct remediation.
An operational-level grievance mechanism is a formalized means, established or provided for by a company, through which individuals or groups can raise concerns about the impact a company has on them—including, but not exclusively, any impact on their human rights. In the Guiding Principles, the term operational-level grievance mechanism encompasses both company- level mechanisms and site- or project-level mechanisms. An operational- level grievance mechanism should be directly accessible to individuals and communities that may be adversely affected by a company. They are typically administered by or on behalf of the company, alone or in cooperation with others, including relevant external stakeholders. An operational-level grievance mechanism enables affected persons to engage the company directly in assessing the issue and seeking remediation of any harm.
The primary purpose of operational-level grievance mechanisms is to provide an early point of recourse to identify and address the concerns of affected stakeholders before any negative impact escalates or leads to harm. Operational-level grievance mechanisms can thus function as early warning systems. Affected stakeholders benefit from having the option of bringing their concerns to the attention of the company before problems compound and escalate into major disputes and human rights abuses. For all parties, this can help build more robust and sustainable relationships. However, such mechanisms are not a substitute for meaningful stakeholder engagement or collective bargaining agreements, nor should they be used to undermine access to judicial remedy through the courts.
Operational-level grievance mechanisms can also play an important role in tracking the effectiveness of a company’s response to adverse human rights impact. Such a mechanism can provide a channel for feedback on whether the human rights impact is being addressed effectively from the perspective of the affected stakeholders.
In all cases, operational-level grievance mechanisms should meet the effectiveness criteria set out in Guiding Principle 31.
It is essential that both State-based and operational-level grievance mechanisms should be well designed and administered so as not to distort assessments of how well human rights risks are being managed. The Guiding Principles recommend that an effective grievance mechanism should be: legitimate, accessible, predictable, equitable, transparent, rights-compatible, and a source of continuous learning and improvement.
Operational-level grievance mechanisms, i.e., mechanisms established by companies, should also be based on engagement and dialogue. These criteria aim to ensure that stakeholders are able to have confidence that non-judicial mechanisms are effective in providing remedies in accordance with internationally recognized human rights. A mechanism that meets only some of these criteria may not be able to deliver appropriate remedies—if a grievance mechanism, regardless of whether its processes are transparent, predictable and equitable, does not deliver rights- compatible outcomes, it cannot be truly effective in providing remedy for a harm that has occurred. Likewise, an otherwise effective operational-level mechanism that does not serve as a source of continuous learning—that is, where the claims and cases that go through the mechanism do not inform the company’s future approaches to managing human rights risk—will over time not be truly effective. All the criteria are therefore interdependent and mutually reinforcing, and should be implemented as a whole.