Do Businesses Have Human Rights Responsibilities?

In international law, states have human rights obligations. These are things they have to do to respect, protect and fulfil your human rights.

The human rights obligations of states mean that they must pass and enforce national laws to regulate business and hold businesses accountable if their operations negatively impact human rights.

It is the state’s duty to protect anyone in its jurisdiction against human rights abuses by business.

This includes:

• Creating and enforcing national laws to prevent businesses from negatively impacting your rights.
• Investigating and punishing serious human rights abuses committed by businesses.
• Providing access to legal remedies for persons affected by business activities through the courts.

These obligations may also exist in national constitutional and public laws. These will be discussed in more detail in “Bringing Claims against Governments for a Failure to Regulate Corporations”.

Businesses’ human rights responsibilities are outlined in the UN Guiding Principles on Business and Human Rights (UNGPs).

• These are a set out guidelines for states and businesses on how to prevent, address and remedy corporate human rights abuses.
• They were endorsed by the UN Human Rights Council in June 2011.
• The UNGPs don’t create any legal obligations for businesses or any new obligations for states.

International standards relating to businesses’ human rights responsibilities are also found in the following sources:

• OECD Guidelines for Multinational Enterprises
• ILO Tripartite Declaration on Multinational Enterprises and Social Policy
• Voluntary Principles on Security and Human Rights (human rights guidelines specifically for extractive sector companies)
• UN Global Compact
• International Finance Corporation and its Human Rights Impact and Management tool

Watch This Space: A Binding Treaty on Business and Human Rights?
A proposal for a legally binding business and human rights treaty is currently before the UN Human Rights Council Open-ended Intergovernmental Working Group on Business and Human Rights (OEIGWG).

This could create new ways to hold businesses accountable for human rights abuses under national law.

Although standards like the UNGPs are not yet legally binding, they can be used in national courts to influence how judges interpret and understand national laws that relate to businesses.

Example: Using the UNGPs in Practice
An NGO coalition intervened in Lungowe v Vedanta (for more information see “How Can I Bring a Civil Claim Against a Business in a Foreign Court?”).

They set out key international standards concerning business and human rights, including the UNGPs and the UN Global Compact, to highlight that the UK government’s treaty obligations relevant to these standards and Vedanta’s support for them are relevant to the court deciding whether Vedanta owes a duty of care to the claimants under English national law.

The main business human rights responsibilities in the UNGPs are outlined below.

(a) Corporate Responsibility to Respect Human Rights

UNGPs Principle 11
“Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”

The core of businesses’ responsibility to respect human rights is that they should:

• Avoid causing or contributing to negative human rights impacts through the business’ own activities and address such impacts when they occur.
  • For example, a mining company that doesn’t conduct an environmental impact assessment and its operations later pollute the rivers of a local community.
• Prevent or reduce negative human rights impacts that are directly linked to the businesses’ operations, products or services by its business relationships, even if the business has not directly contributed to those impacts.
  • For example, when a clothes retailer purchases products that are produced by a supplier using child labour or an external security provider commits human rights abuses while protecting the business’ facilities.

(b) Human Rights Due Diligence

The main method for businesses to ensure they respect human rights is for them to develop a corporate human rights policy and to carry out “due diligence assessments” of human rights risks before they take action.

Human rights due diligence assessments are monitoring processes undertaken by a company to identify risks to and address negative impacts on human rights that are linked to the company’s operations and supply chains.

This means businesses have to think how their activities will impact human rights before they act.

Focus Area: Due Diligence in the UNGPs
According to the UNGPs Principle 17:

“In order to identify, prevent, mitigate and account for how they address their adverse human rights impacts, business enterprises should carry out human rights due diligence. The process should include assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed.

Human rights due diligence:

(a) Should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships;

(b) Will vary in complexity with the size of the business enterprise, the risk of severe human rights impacts, and the nature and context of its operations;

(c) Should be ongoing, recognizing that the human rights risks may change over time as the business enterprise’s operations and operating context evolve.”

Where a business undertakes a human rights due diligence assessment, it should identify risks to people’s human rights from its actions and create a plan to prevent these risks from becoming human rights abuses.

Practical Tip: How Can I Use the UNGPs?
The process of due diligence assessments should create an evidence trail that can help assess whether the assessment and its outcome is reasonable or whether it discloses failings and possible liabilities.

This evidence trail could be disclosable in national courts to show businesses violated other national laws. This can strengthen your case.

A business should carry out human rights due diligence of ALL its activities.

The International Finance Corporation’s Guide to Human Rights Impact Assessment and Management sets out the steps a business should take when assessing its human rights impacts for individual projects:

1. Businesses must engage with people that could be affected by their activities.
2. The assessment must identify key human rights risks to people in the country of operation.
3. The assessment must identify human rights risks of key business relationships, including companies they work with and those in the value chain.
4. The assessment must identify human rights risks and impacts relating to the business activity itself. This must include cumulative, long-term and unintended consequences of the activity.
5. The assessment must identify the people that could be affected by the business activity.
6. The assessment must identify the nature and level of the risks and impacts, at different key stages of the project’s life cycle (e.g. design, construction, operation, decommissioning and closure etc).
7. The assessment must identify the root causes/perpetrators of the risks and impacts (e.g. the business activity itself, a possible contractor, supplier and/or government involvement etc).
8. The assessment must involve all human rights.

These criteria may be helpful when assessing a business’ human rights due diligence approach.

• If any of these steps have not been met, it may be that the business’ human rights due diligence assessment has not met international standards.

Practical Tip: How Can I Use the UNGPs?
Although the UNGPs aren’t legally binding, a business’s failure to perform human rights due diligence may create issues of liability.

For example, evidence that a business has not undertaken a proper human rights due diligence assessment can be useful evidence in holding businesses accountable for breaches of national laws.

Where a business says it has a human rights due diligence process but fails to carry it out, or carry it out effectively, and a foreseeable human rights abuse occurs, this could be used to prove that the company has negligently impacted human rights.

(c) Access to Remedies

UNGPs Principle 22
“Where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.”

Where a business negatively impacts human rights, it should provide a remedy for impacted individuals.

• For example, if a business damages the environment, it should clean up the pollution and compensate people who have suffered.

(d) The Size of a Business and Its Human Rights Responsibilities

Businesses are expected to respect human rights regardless of the size of the business and geographical scope of its operations.

UN Guiding Principles on Business and Human Rights, Principle 14
“The responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure. Nevertheless, the scale and complexity of the means through which enterprises meet that responsibility may vary according to these factors and with the severity of the enterprise’s adverse human rights impacts.”

The bottom line is that ALL BUSINESSES can impact your rights and have human rights responsibilities. But, different obstacles exist for different types of businesses.

As part of their human rights obligations, states must create national laws which can then be enforced directly against businesses.

• This results in businesses having legal obligations under national law that relate to human rights.

Laws protecting your human rights from business activities don’t need to be called human rights laws.

• Businesses can be held accountable for human rights abuses using a variety of areas of national law.

Due Diligence Laws

In some countries, the human rights due diligence responsibility in the UNGPs has been made into a legal obligation for businesses in some contexts. This obligation can be enforced against the business in national courts.

Example: France Devoir de Vigilance Law
This law requires large companies that are registered or incorporated in France to produce, publish and carry out an annual “plan de vigilance” to identify and prevent serious harm to human rights, the environment and health and safety issues.

The plan must cover the company’s operations and subsidiaries, and subcontractors and suppliers where there is an established commercial relationship.

Anyone harmed by the activities of a company bound by the law can bring a civil (tort) action in the French courts and claim a remedy if the company’s vigilance plan would have prevented the harm, even if the harm occurs in another country.

Example: Dutch Child Labour Due Diligence Law
This law requires companies registered in The Netherlands (as well as foreign companies that deliver products or services to the Dutch market over twice a year) to submit a statement declaring that they have carried out due diligence to prevent child labour in their supply chains.

Companies that fail to submit a statement, carry out the investigation, or set up an action plan can be fined and the company’s responsible director could be imprisoned.

Anyone can file a complaint with the regulator if they have concrete evidence that the company’s products or services were produced with child labour.

Example: UK Modern Slavery Act 2015
This law makes slavery, servitude, forced labour and human trafficking criminal offences when committed by businesses.

Big businesses in the UK have to prepare an annual slavery and human trafficking statement that includes the steps taken to ensure slavery and human trafficking are not taking place in their supply chain or operations.

If businesses fail to do this, the government can take civil cases against them. Businesses can also be criminally prosecuted under the act and victims can receive compensation.

Check if there is a mandatory due diligence law in the country where the business that has negatively impacted your human rights is based or has operations.

Watch This Space:
Civil society, trade unions and political committees are calling for national law reform to require businesses to carry out mandatory human rights due diligence. Check the Business and Human Rights Resource Centre portals for updates.