UNGPs Flashcards
Albin-Lackey
“Cannot actually require companies to do anything at all’
Albin-Lackey believed that the more voluntary initiatives there are, regulatory measures are crowded out
In recent years, governments around the world have passed increasingly tough laws that criminalize overseas corruption by their citizens and companies. Corruption is far trickier for
businesses to stay clear of than complicity in serious human rights abuses. Yet while
tougher anti-corruption laws may have made companies more honest, there is no real
evidence they have made them less competitive.
Surya Deva
“the 2020 Corporate Human Rights Benchmark, 46.2 per cent of 229 assessed corporations from five different sectors did not score any points for HRDD. Moreover, most of the corporations captured in the 2022 Benchmark ‘are taking a hands-off approach to human rights in their supply chains’, which is not in line with the UNGPs
Limited Transformation Potential: The UNGPs do not question the feasibility of respecting human rights in certain business models, such as tobacco and the gig economy
Justine Nolan
Soft law guideline that prize dialogue and consensus over ambition.
Historically when political leaders have spoken of pragmatism it has often been code for subordinating ideals to other strategic and geopolitical priorities.
Ruggie
Clarified the minimum iHRL standard states and companies must observe Int’l Bill of Rights and moved beyond voluntary-non-voluntary dichotomy:
ILO Core Conventions
UDHR, ICCPR, ICESCR
Ruggie: there was little agreement on int’l standards and HR that should be upheld/are applicable
Transplanted from corpo language, thus easier to understand and comply with
Positives of the UNGPs
First Internationally Recognized Accountability Model: Established the first internationally recognized framework for holding states and companies accountable for human rights violations through a three-pronged approach. Established broad consensus among stakeholders, particularly businesses and states, on applicable human rights norms, leading to increased adoption of UNGP standards.
Clarified Applicability of Human Rights to All Businesses: Provided clarity on international standards and identified that human rights are applicable to all businesses, not just multinational corporations, and their business relationships (Ruggie).
Introduced the Concept of Due Diligence: Encouraged companies to adopt a “know and show” approach, integrating due diligence processes to identify, prevent, and address human rights impacts.
Accessible Language for all: Used corporate language, making the guidelines easier for businesses to understand and implement. Also used the medical concept of ‘do no harm’ which is much more approachable
Shifted Discourse from CSR to Human Rights: Moved the focus from Corporate Social Responsibility (CSR), where responsibilities were voluntary and company-centered, to a human rights-centered narrative based on universally recognized principles that are non-negotiable and bottom-up.
Foundation for Legal Domestication: Served as a basis for legal frameworks focused on human rights due diligence, such as the UK’s Modern Slavery Act, France’s Loi de Vigilance, and the EU’s Corporate Sustainability Due Diligence Directive.
Corporate complicity
«…knowingly providing practical assistance or encouragement that has a substantial effect on the commission of a crime.»
J. Ruggie, «Protect, Respect and Remedy» Framework, April 2008
Bilchitz & S. Deva
Questioning the “business case” for human rights
“…compliance with human rights norms should be a non-negotiable precondition for doing business, rather than becoming a matter of expediency, only being relevant when it might impact (adversely or positively) the bottom line of companies.”
Negatives of the UNGPs
- Interpretation and implementation is ad-hoc; You have a set of guidelines but no prescription on how to do it properly
*Lack of sanctions, there is no legal consequence for upholding them or not
*Extraterritoriality Gap: The UNGPs do not provide legal clarification on how states should regulate companies that engage in human rights violations abroad and are domiciled in their jurisdiction. It says it isn’t impossible, but doesn’t clearly state that companies have a responsibility to provide remedy.
“At present States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.”
*Insufficient Development of Access to Remedy: The three-pronged approach (protect, respect, remedy) failed to adequately develop the access to remedy. By including it in a non-binding document, its status in customary international law was diluted【Albin-Lackey】.
*Ambiguity in ‘Respect’ Definition: The UNGPs do not clarify what ‘respect’ entails. Respect is framed primarily as a negative duty without a strong component for fulfilling and protecting human rights, limiting the transformative potential of globalization【Schutted】.
Chandler
“volunterism is not enough..someday we are going to need a binding instrument”
Direct references to the UNGPs by judicial and quasi-judicial bodies is still limited, but this will change.
a range of judicial and quasi-judicial bodies, as well as individual judges and the parties appearing before them, are already making reference to the UNGPs: for example, higher courts, lower courts, different adjudicatory bodies, civil society, nongovernmental organizations (“NGO(s)”) acting as amicus curiae, applicants and respondents. This shows widespread awareness of the UNGPs, their meaning, and their utility. As consciousness of the UNGPs expands, the UNGPs will be increasingly cited in support of efforts to seek a remedy against corporations.
References to the UNGPs in laws
There are a number of examples of recent and forthcoming domestic laws that expressly refer to the UNGPs as part of the rationale for their adoption, including the French Loi Relative au Devoir de Vigilance (“Loi de Vigilance”), and the Modern Slavery Acts in Australia and the UK. Both the CSRD and CSDDD reference the UN Guiding Principles on Business and Human Rights (UNGPs) and the OECD Guidelines for Multinational Enterprises (MNE Guidelines), defining “due diligence” as encompassing policies and management systems, assessing, addressing, monitoring, and reporting on sustainability impacts
González y otras v. México, Judgment
In 2009, the IACtHR found
that States must be held responsible for the actions of private entities when that State has
knowledge that the entity poses a real risk of an adverse human rights impact
NCPs
NCPs are established to implement the OECD Guidelines, which includes a human rights chapter aligned with the UNGPs
In Employees of Bralima v. Bralima and Heineken, the Dutch NCP referenced the UNGPs as part of a forward-looking recommendation, encouraging Heineken’s commitment to “continue working on an internal analysis of Heineken’s existing policies and processes in the light of the [OECD Guidelines] and the [UNGPs]”. The Dutch NCP highlighted in particular the need to integrate into the analysis the specific context in which Heineken
conducts operations
○ The Congolese subsidiary had dismissed the workers on mass, related to the armed conflict taking place in the DRC at the time ○ 1.1 million EUR monetary compensation (historic precedent) ○ Also important because of its review of grievances for previous abuses Held meetings in a way that was convenient for the complainants (held the session at the Dutch embassy in Uganda and then in France) and paid for their travel expenses
NHRIs
Using the UNGPs to make BHR NAPs - a number of states have included bhr chapters in their naps
* 26 NAPs launched since 2013 * About 30 more are in progress as of 2024
Latin America
The UNGPs have been referred to numerous times by a number of Latin American courts. The Colombian Constitutional Court, for instance, has explicitly referred to the UNGPs in at least six cases and considers the principles to be an “interpretive tool” in deciding BHR-related cases.
