FAQs about the Guiding Principles on Business and Human Rights

Photos: © shutterstock.com

FREQUENTLY ASKED QUESTIONS ABOUT THE GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS

Designed and Printed at United Nations, Geneva 1415472 (E) – October 2014 – 4,318 HR/PUB/14/3 United Nations Publication Sales No. E.14.XIV.6

ISBN: 978-92-1-154207-3

FREQUENTLY ASKED QUESTIONS ABOUT THE GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS

New York and Geneva, 2014

Note The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. * ** Symbols of United Nations documents are composed of capital letters combined with figures.

Mention of such a figure indicates a reference to a United Nations document.

HR/PUB/14/3 UNITED NATIONS PUBLICATION Sales No. E.14.XIV.6 ISBN 978-92-1-154207-3 e-ISBN 978-92-1-056839-5 Š 2014 United Nations All worldwide rights reserved

iii

CONTENTS INTRODUCTION

1

Chapters

I.

GENERAL QUESTIONS

3

Q 1.

What are human rights?

3

Q 2.

How are human rights relevant to business?

4

Q 3.

What are the Guiding Principles and how were they developed?

5

Q 4.

Why are the Guiding Principles important?

6

Q 5.

What do the Guiding Principles say?

7

Q 6.

What is the legal status of the Guiding Principles?

8

Q 7.

If the Guiding Principles are not a legal instrument, are they just voluntary?

9

Q 8.

How do the Guiding Principles address the relationship between the responsibilities of States and of companies?

9

Q 9.

How do the Guiding Principles relate to corporate social responsibility?

10

Q 10. Do the Guiding Principles prevent future legal developments?

11

Q 11. What do the Guiding Principles mean for victims of corporate human rights abuse?

11

Q 12. How do the Guiding Principles address groups that may be particularly vulnerable to adverse impact?

13

Q 13. The Guiding Principles focus on business and States – what is the role of other actors?

14

Q 14. How have the Guiding Principles informed other global standards on business and human rights?

15

iv

II.

III.

Q 15. What is the Working Group on the issue of human rights and transnational corporations and other business enterprises?

16

Q 16. What is the Forum on Business and Human Rights?

17

Q 17. Where can I find guidance on how to implement the Guiding Principles?

18

THE STATE DUTY TO PROTECT

19

Q 18. What is meant by “the State duty to protect”?

19

Q 19. Does the State duty to protect mostly just require more regulation?

20

Q 20. Should States impose human rights requirements on companies operating abroad?

21

Q 21. What is meant by “policy coherence” and what are the implications for States?

22

Q 22. What is different in conflict-affected areas?

23

Q 23. Are States required to develop national action plans to implement the Guiding Principles?

24

THE CORPORATE RESPONSIBILITY TO RESPECT

25

Q 24. What is the corporate responsibility to respect human rights?

25

Q 25. Where does this responsibility stem from?

26

Q 26. What are companies expected to do to respect human rights? 26 Q 27. Do the Guiding Principles in effect impose on companies the international human rights law obligations of States?

28

Q 28. Which human rights are relevant and why?

28

Q 29. Do companies also have to promote and fulfil human rights?

29

v

IV.

Q 30. How does the responsibility to respect relate to a company’s (sphere of) influence?

29

Q 31. Should companies merely be required to abide by domestic law?

30

Q 32. What is the difference between causing or contributing to an impact and an impact being “directly linked” to a company’s operations, products or services?

31

Q 33. Do the responsibilities of small and mid-size enterprises differ from those of big transnational ones?

32

ACCESS TO REMEDY

34

Q 34. What do the Guiding Principles say about access to remedy?

34

Q 35. Is it not up to the State to redress human rights abuse?

35

Q 36. What is a non-judicial grievance mechanism?

36

Q 37. What is the relationship between judicial and non-judicial remedy?

37

Q 38. When should companies provide for remediation?

38

Q 39. What is the role of operational-level grievance mechanisms?

38

Q 40. What features should a non-judicial grievance mechanism have to be effective?

39

Annexes I.

Key concepts in the Guiding Principles

41

II.

The Guiding Principles and other international frameworks

46

III. United Nations system – sources of further guidance

47

IV. Sources of external guidance

49

1

INTRODUCTION In June 2011, the Human Rights Council, the main United Nations intergovernmental body responsible for the promotion and protection of human rights, endorsed the Guiding Principles on Business and Human Rights. The Guiding Principles had been developed by the then Special Representative of the United Nations Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie.1 The endorsement marked a milestone in the decades-long debate about how human rights apply to business. It established the Guiding Principles as the first authoritative global framework to address business impact on all human rights, applicable to both States and businesses, and clarified their respective duties and responsibilities for tackling human rights risks related to business activities.

The Guiding Principles have also been endorsed by many companies, business organizations, civil society organizations, trade unions, national and regional institutions, and other stakeholder groups. This has further solidified their status as the key global normative framework for business and human rights.

The Guiding Principles are based on six years of work by the Special Representative, including in-depth research and extensive consultations with companies, governments, civil society, affected individuals and communities, lawyers, investors and other stakeholders, as well as practical road-testing.

Frequently asked questions about the Guiding Principles This publication with frequently asked questions (FAQs) aims to explain the background and the contents of the Guiding Principles and how they relate to the broader human rights system and other frameworks.

It is not intended as operational guidance, but does list such guidance and other resources to support practical implementation in its annexes III and IV. In addition, the Office of the United Nations High Commissioner for Human Rights (OHCHR) has produced an interpretive guide on the corporate responsibility to respect human rights, explaining the meaning, intent and “Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie” (A/HRC/17/31). See also Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (United Nations publication, Sales No. 13.XIV.5).

1

2

implications of those Guiding Principles that are directed at companies.2 The present publication with FAQs is intended as a companion to the Guiding Principles and the Interpretive Guide. It is hoped that it will help both practitioners and newcomers to navigate the Guiding Principles and improve their understanding of the Guiding Principles by placing these in context.

It is addressed to a broad audience, from human rights practitioners, governments, civil society, trade unions and companies to members of the general public with an interest in understanding this important framework for managing human rights risks related to business activities.

This publication covers many issues that were the subject of extensive consultations during the development of the Guiding Principles and answers questions that were raised by stakeholders both before and after their endorsement by the Human Rights Council. The publication does not in any way change or add to the provisions of the Guiding Principles or to the expectations that they set for States and businesses.

A number of organizations with particular sector- or issue-based focus also provide tools and guidance to boost the dissemination and implementation of the Guiding Principles. Some of these are listed in annexes III and IV below.

The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (United Nations publication, Sales No. 13.XIV.4).

2

3

I.

GENERAL QUESTIONS

Q 1.What are hum

Question 1. What are human rights?

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, colour, 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 fulfil 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 fulfil 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

4

rights treaties, and 80 per cent 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.

To read more about human rights, the development of the international human rights movement and human rights issues and mechanisms, visit the website of the Office of the United Nations High Commissioner for Human Rights: www.ohchr.org.

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.

To find out more about labour rights and international labour standards, including the eight core ILO conventions, visit: www.ilo.org/global/standards/lang--en/index. htm (accessed 28 August 2014).

Q 2.

How are human rights relevant to business?

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

5

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.

Q 3.

What are the Guiding Principles and how were they developed?

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

6

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 businessrelated 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.

Q 4.

Why are the Guiding Principles important?

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

7

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 constitute a global standard that is also increasingly reflected in other international governance frameworks (see annex II).

Q 5.

What do the Guiding Principles say?

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 fulfil their obligations.

•

When abuses occur, victims must have access to 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 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. (See also chapter II).

8

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 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 fulfil their duty to protect human rights.3 (See also chapter III.) 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 harm, companies are expected to establish or participate in effective operational-level grievance mechanisms for individuals and communities that may be adversely affected. (See also chapter IV.) Q 6.

What is the legal status of the Guiding Principles?

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.

3 For in-depth information on the corporate responsibility to respect, see The Corporate Responsibility to Respect Human Rights.

9

Q 7.

If the Guiding Principles are not a legal instrument, are they just voluntary?

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 reflected—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.

Q 8.

How do the Guiding Principles address the relationship between the responsibilities of States and of companies?

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.

10

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 may be 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.

Q 9.

How do the Guiding Principles relate to corporate social responsibility?

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 licence 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 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.

41

ANNEXES ANNEX I.

KEY CONCEPTS IN THE GUIDING PRINCIPLES

Adverse human rights impact In the context of the Guiding Principles, an “adverse human rights impact” occurs when an action removes or reduces the ability of an individual to enjoy his or her human rights.

Business relationships Business relationships refer to those relationships a business enterprise has with business partners, entities in its value chain and any other non-State or State entity directly linked to its business operations, products or services.

They include indirect business relationships in its value chain, beyond the first tier, and minority as well as majority shareholding positions in joint ventures.

Complicity Complicity has both legal and non-legal meanings. As a legal matter, most national legislations prohibit complicity in the commission of a crime, and a number allow for the criminal liability of business enterprises in such cases.

The weight of international criminal law jurisprudence indicates that the relevant standard for aiding and abetting is “knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime”.

Examples of non-legal “complicity” could be situations where a business enterprise is seen to benefit from abuses committed by others, such as when it reduces costs because of slave-like practices in its supply chain or fails to speak out in the face of abuse related to its own operations, products or services, despite there being principled reasons for it to do so. Even though enterprises have not yet been found complicit by a court of law for this kind of involvement in abuses, public opinion sets the bar lower and can inflict significant costs on them.

The human rights due diligence process should uncover risks of non-legal (or perceived) as well as legal complicity and generate appropriate responses.

42

Due diligence Due diligence has been defined as “such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case”.a9In the context of the Guiding Principles, human rights due diligence comprises an ongoing management process that a reasonable and prudent enterprise needs to undertake, in the light of its circumstances (including sector, operating context, size and similar factors) to meet its responsibility to respect human rights.

Gross human rights violations There is no uniform definition of gross human rights violations in international law, but the following practices would generally be included: genocide, slavery and slavery-like practices, summary or arbitrary executions, torture, enforced disappearances, arbitrary and prolonged detention, and systematic discrimination. Other kinds of human rights violations, including of economic, social and cultural rights, can also count as gross violations if they are grave and systematic, for example violations taking place on a large scale or targeted at particular population groups.

Human rights and international crimes Some of the most serious human rights violations may constitute international crimes. International crimes have been defined by States under the Rome Statute of the International Criminal Court. They are genocide (“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”), crimes against humanity (widespread and systematic attacks against civilians that include murder, enslavement, torture, rape, discriminatory persecution, etc.), war crimes (as defined by international humanitarian law) and the crime of aggression.

a

Black’s Law Dictionary, 6th ed. (St. Paul, Minnesota, West, 1990).

43

Human rights abuses v. human rights violations In the Guiding Principles, the term “human rights abuse” is used about adverse human rights impact that is caused by non-State actors—in this context, business enterprises. The term “violations” is normally applied to adverse human rights impact committed by the State—in violation of its obligations to protect, respect and fulfil human rights. Because non-State actors generally do not have the same obligations under international human rights law, the Guiding Principles use “abuses” for such impact rather than “violations”.

Human rights risks A business enterprise’s human rights risks are any risks that its operations may lead to one or more adverse human rights impacts. They therefore relate to its potential human rights impact. In traditional risk assessment, risk factors in both the consequences of an event (its severity) and its probability. In the context of human rights risk, severity is the predominant factor. Probability may be relevant in helping prioritize the order in which potential impacts are addressed in some circumstances (see “severe human rights impact” below).

Importantly, an enterprise’s human rights risks are the risks that its operations pose to human rights. This is separate from any risks that involvement in human rights abuse may pose to the enterprise (for example, legal liability or reputational damage), although the two are frequently related (for example, legal liability or operational costs resulting from the company’s involvement in the abuse).

Leverage Leverage is an advantage that gives power to influence. In the context of the Guiding Principles, it refers to the ability of a business enterprise to effect change in the wrongful practices of another party that is causing or contributing to an adverse human rights impact.

Mitigation The mitigation of adverse human rights impact refers to actions taken to reduce its extent, with any residual impact then requiring remediation. The mitigation of human rights risks refers to actions taken to reduce the likelihood of a certain adverse impact occurring.

44

Policy coherence Policy coherence applies in the context of the State’s duty to protect human rights. Policy coherence refers to consistency between policies and regulations across different State departments, agencies and institutions. All institutions that shape business conduct—for example, the departments responsible for employment and labour conditions, business registration, export promotion, international trade, environmental protection, and State-based export credit agencies, while very different in their mandates, should all be aware of and observe the State’s human rights obligations with respect to protecting against negative impact from business activities.

Potential human rights impact A “potential human rights impact” is an adverse impact that may occur but has not yet done so.

Prevention The prevention of adverse human rights impact refers to actions taken to ensure such impact does not occur.

Remediation/remedy Remediation and remedy refer to both the processes of providing remedy for an adverse human rights impact and the substantive outcomes that can counteract, or make good, the adverse impact. These outcomes may take a range of forms, such as apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.

Salient human rights The most salient human rights for a business enterprise are those that stand out as being most at risk. This will typically vary according to its sector and operating context. The Guiding Principles make clear that an enterprise should not focus exclusively on the most salient human rights issues and ignore others that might arise. But the most salient rights will logically be the ones on which it concentrates its primary efforts.

45

Severe human rights impact The commentary to the Guiding Principles defines severe human rights impact with reference to its scale, scope and irremediable character. This means that its gravity and the number of individuals that are or will be affected (for instance, from the delayed effects of environmental harm) will both be relevant considerations. “Irremediability” is the third relevant factor, used here to mean any limits on the ability to restore those affected to a situation at least the same as, or equivalent to, their situation before the adverse impact.

Stakeholder/affected stakeholder A stakeholder refers to any individual who may affect or be affected by an organization’s activities. An affected stakeholder refers here specifically to an individual whose human rights have been affected by an enterprise’s operations, products or services.

Stakeholder engagement/consultation Stakeholder engagement or consultation refers here to an ongoing process of interaction and dialogue between an enterprise and its potentially affected stakeholders that enables the enterprise to hear, understand and respond to their interests and concerns, including through collaborative approaches.

Value chain A business enterprise’s value chain encompasses the activities that convert input into output by adding value. It includes entities with which it has a direct or indirect business relationship and which either (a) supply products or services that contribute to the enterprise’s own products or services, or (b) receive products or services from the enterprise.

46

ANNEX II.

THE GUIDING PRINCIPLES AND OTHER INTERNATIONAL FRAMEWORKS

ISO 26000 The ISO 26000 guidance on social responsibility is a voluntary standard for both public and private organizations. It contains guidance on seven “core issues” related to social responsibility, including human rights. The ISO 26000 standard is separate from the Special Representative’s work. Nevertheless, the chapter on human rights builds explicitly on the “protect, respect and remedy” framework, and reflects the core content of the corporate responsibility to respect human rights. www.iso.org/iso/home/standards/iso26000.htm OECD Guidelines The Organisation for Economic Co-operation and Development (OECD) has issued Guidelines for Multinational Enterprises (revised 2011). The 2011 edition includes a chapter on human rights that is in alignment with the Guiding Principles. The Guidelines also apply the due diligence concept of the Guiding Principles to all aspects of corporate responsibility.

The OECD Guidelines provide for the establishment of National Contact Points that can hear complaints of corporate violations of the Guidelines. www.oecd.org/daf/inv/mne/ The United Nations Global Compact The Global Compact is a voluntary initiative of the United Nations SecretaryGeneral asking business to support and respect human rights as part of 10 principles that companies commit to when they sign up to the Global Compact.

The Guiding Principles provide the substantive content for the two broadly framed human rights principles championed by the Global Compact. The Guiding Principles also reinforce the expectation by the Global Compact that participating companies put in place robust policies and procedures and communicate on an annual basis with their own stakeholders about their progress. The Global Compact has produced an extensive range of tools and guidance for companies. www.unglobalcompact.org

Protect,

47

ANNEX III.

UNITED NATIONS SYSTEM – SOURCES OF FURTHER GUIDANCE

•

The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, is available in the six official languages of the United Nations.

•

Further OHCHR guidance and introductory presentations of the Guiding Principles in English, French and Spanish are available from www.ohchr. org/EN/Issues/Business/Pages/BusinessIndex.aspx (accessed 28 August 2014).

•

The Working Group on Business and Human Rights has produced a short, unofficial introduction to the Guiding Principles on Business and Human Rights. It is available from www.ohchr.org/Documents/Issues/Business/ Intro_Guiding_PrinciplesBusinessHR.pdf (accessed 28 August 2014).

•

Working with the United Nations Human Rights Programme: A Handbook for Civil Society provides information to civil society organizations on how to engage with OHCHR and the United Nations human rights bodies, including the mechanisms of the Human Rights Council.

•

The United Nations Global Compact is the United Nations platform for engaging the business sector (www.unglobalcompact.org).

•

Key Global Compact tools are available from www.unglobalcompact.org/ AboutTheGC/tools_resources/index.html (accessed 28 August 2014).

•

The Global Compact, the United Nations Children’s Fund (UNICEF) and Save the Children have produced a set of voluntary principles for children’s rights and business: Children’s Rights and Business Principles. Available from www.unglobalcompact.org/Issues/human_rights/childrens_principles.html (accessed 28 August 2014).

•

Guidance from the International Labour Organization is available from www.ilo.org/global/standards/lang--en/index.htm www.ilo.org/ilc/ILCSessions/lang--en/index.htm.

•

Food and Agriculture Organization of the United Nations, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security. Available from www. fao.org/nr/tenure/voluntary-guidelines/en/ (accessed 28 August 2014).

48

•

The International Finance Corporation revised its Sustainability Framework (2012). Available from www.ifc.org/sustainabilityframework (accessed 28 August 2014).

•

The Working Group on the issue of human rights and transnational corporations and other business enterprises has developed a repository of national action plans and other relevant information on State implementation of the Guiding Principles, see www.ohchr.org/EN/Issues/ Business/Pages/NationalActionPlans.aspx (accessed 28 August 2014).

49

ANNEX IV.

SOURCES OF EXTERNAL GUIDANCE

This list provides a non-exhaustive overview of potential sources of further guidance on business and human rights. Inclusion on this list should not be taken as OHCHR endorsement and OHCHR accepts no responsibility for the accuracy of external sources.

National human rights institutions OHCHR maintains a list of accredited national human rights institutions (NHRIs) around the world: www.ohchr.org/Documents/Countries/NHRI/ Chart_Status_NIs.pdf (accessed 28 August 2014).

The Edinburgh Declaration on the role of NHRIs in addressing business and human rights (2010) is available from www.ohchr.org/Documents/AboutUs/ NHRI/Edinburgh_Declaration_en.pdf (accessed 28 August 2014).

The Working Group on Business and Human Rights of the International Coordinating Committee for the Promotion and Protection of Human Rights has produced an e-learning tool and handbook for national human rights institutions, which is available from www.humanrightsbusiness.org/guidebook+and+elearning+for+nhris (accessed 28 August 2014).

Other intergovernmental mechanisms, tools and guidance The European Commission’s guide to human rights for small and mediumsized enterprises, “My business and human rights”, is available from http:// ec.europa.eu/enterprise/policies/sustainable-business/files/csr-sme/humanrights-sme-guide-final_en.pdf (accessed 28 August 2014).

The European Commission’s strategy on corporate social responsibility (2011). http://ec.europa.eu/enterprise/policies/sustainable-business/corporatesocial-responsibility/index_en.htm (accessed 28 August 2014).

The European Commission’s sector guides on business and human rights for: employment and recruitment agencies; information and communication technology; and oil and gas are available from http://ec.europa.eu/ enterprise/policies/sustainable-business/documents/corporate-socialresponsibility/index_en.htm (accessed 28 August 2014).

50

Non-governmental mechanisms, tools and guidance (non-exhaustive list) on the Guiding Principles The Business and Human Rights Resource Centre has portals on the United Nations Guiding Principles and on the Working Group: www.business-humanrights. org and www.business-humanrights.org/UNGuidingPrinciplesPortal/Home (accessed 28 August 2014).

The Shift Project’s Business Learning Programme publishes guidance and reports on the implementation of the Guiding Principles by business: www. shiftproject.org/resources (accessed 28 August 2014).

The Centre for Research on Multinational Corporations (SOMO), the Center for Human Rights and Environment (CEDHA) and Cividep have produced How to Use the UN Guiding Principles on Business and Human Rights in Company Research and Advocacy: A Guide for Civil Society Organisations (2012).

Available from http://somo.nl/publications-en/Publication_3899 (accessed 28 August 2014).

The International Corporate Accountability Roundtable has produced guidance on national action plans for implementing the Guiding Principles, and research on access to remedy, among other resources (http://accountabilityroundtable.org/).

The International Organisation of Employers (IOE) has produced an employers’ guide to the Guiding Principles on Business and Human Rights (2012). It is available from www.ioe-emp.org/fileadmin/ioe_documents/publications/ Policy%20Areas/business_and_human_rights/EN/_2012-02__UN_Guiding_ Principles_on_Business_and_Human_Rights_-_Employers__Guide.pdf (accessed 28 August 2014).

Non-governmental mechanisms, tools and guidance (nonexhaustive list) on business and human rights The International Federation for Human Rights International Federation for Human Rights International Federation for Human Rights International Federation for Human Rights International Federation for Human Rights (FIDH) has produced a guide to corporate accountability mechanisms for victims and non-governmental organizations, Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms, available from www.fidh.org/ Updated-version-Corporate-8258 (accessed 28 August 2014).

51

The Institute for Human Rights and Business (IHRB) produced Investing the Rights Way: A Guide for Investors on Business and Human Rights in collaboration with Calvert Investments and the Interfaith Center on Corporate Responsibility.

Available from www.ihrb.org/publications/reports/investing-the-rights-way. html (accessed 28 August 2014).

CSR Europe has a Management of Complaints Assessment (MOC-A) Service and produced a report on Assessing the Effectiveness of Company Grievance Mechanisms (2013). Available from www.csreurope.org/managementcomplaints-assessment-service-available-all-members and www.csreurope.org/ company_mechanisms_for_addressing_human_rights_complaints.html (accessed 28 August 2014).

Oxfam has produced a series of guides and tools on corporate accountability: www. oxfam.org.au/explore/corporate-accountability/ (accessed 28 August 2014).

The Equator Principles, a risk management framework adopted by financial institutions for determining, assessing and managing environmental and social risk in projects-based finance, which refer to the Guiding Principles, are available from www.equator-principles.com/index.php/about-ep/about-ep (accessed 28 August 2014).

The Voluntary Principles on Security and Human Rights are available from www.voluntaryprinciples.org/.

The International Code of Conduct for Private Security Service Providers is available from www.icoc-psp.org/.

Relevant information about the Extractive Industries Transparency Initiative is available from http://eiti.org/.

Relevant information about the Ethical Trading Initiative is available from www. ethicaltrade.org/.

Relevant information about the Fair Labor Association is available from www. fairlabor.org/.

Relevant information about Social Accountability International and Social Accountability Accreditation Services is available from www.sa-intl.org/ and www.saasaccreditation.org/, respectively.

52

IPIECA, the global oil and gas industry association for environmental and social issues, has produced a human rights training toolkit. It is available from www. ipieca.org/good-practice/human-rights-training-toolkit (accessed 28Â August 2014).

The International Council on Mining and Metals, an industry association for sustainability in the mining and metals industry, has produced several publications on human rights in the mining and metals sectors, including a guide to operational-level grievance mechanisms. It is available from www.icmm. com/page/14809/human-rights-in-the-mining-and-metals-industry-overviewmanagement-approach-and-issues (accessed 28Â August 2014).