Putting the Protect, Respect, Remedy Framework into Practice

Last week, the latest report under my mandate as Special Representative of the U.N. Secretary General on business and human rights was released in advance of the June session of the U.N. Human Rights Council. This is my last interim report before I submit my final recommendations next year.

In 2008, the Council extended the mandate until 2011, with two main tasks: to “operationalize” the U.N. “Protect, Respect, Remedy” framework for business and human rights through concrete guidance and recommendations to States, businesses and other actors; and to “promote” the framework, coordinating with relevant international and regional organizations and other stakeholders.

My new report describes how the U.N. “Protect, Respect, Remedy” framework has already enjoyed considerable uptake, interacting with a range of processes well beyond the United Nations itself. These include the ISO26000 standard on social responsibility, the updating of the OECD guidelines for multinational enterprises, the International Finance Corporation revision of their Performance Standards, work with 19 leading law firms from around the world on how human rights considerations are addressed in corporate law across 40 jurisdictions, as well as road-testing of company-based grievance mechanisms by leading companies in China, Colombia, Russia, South Africa and Vietnam.

A significant part of the new report focuses on states - both in terms of their legal duties and policy rationales to protect against abuses committed by or involving business, and their role in ensuring effective access to judicial and non-judicial remedy. Current state practices exhibit substantial legal and policy incoherence that often entail significant consequences for victims, companies and for States themselves. Addressing these gaps will be a key to operationalizing the framework, and several governments have already taken concrete steps to adjust their policies in the past year. One principle seems clear: the closer an entity is to the State, or the more it relies on statutory authority or taxpayer support, the stronger is the State’s policy rationale for ensuring that the entity promotes respect for human rights.

I have set out several priority areas for states to better fulfill their duty to protect: (a) safeguarding their own ability to meet their human rights obligations; (b) considering human rights when they do business with business; (c) fostering corporate cultures respectful of rights at home and abroad; (d) devising innovative policies to guide companies operating in conflict-affected areas; and (e) examining the cross-cutting issue of extraterritorial jurisdiction.

I look forward to further discussions with governments on these and other related subjects in the weeks and months ahead.

At the same time, companies themselves have a responsibility to respect human rights, which exists independently of states. It begins with legal compliance even where the law is enforced poorly or not at all. And for a company to be able to demonstrate that it respects rights beyond legal requirements requires a human rights due diligence process. Human rights due diligence can be a game-changer for companies: from “naming and shaming” to “knowing and showing.” Naming and shaming is a response by external stakeholders to the failure of companies to respect human rights. Knowing and showing is the internalization of that respect by companies themselves through human rights due diligence.

Managing human rights risks requires meaningful engagement and dialogue with the communities and stakeholders that companies impact. And because a main purpose of human rights due diligence is enabling companies to demonstrate that they respect rights, ensuring a measure of transparency and accessibility to stakeholders will be required. My final recommendations in June 2011 will include a set of guiding principles for the operationalization of the framework’s distinct yet complementary and interactive elements and processes. And they will also include options for what might follow the mandate.

Beyond the area of labor standards, I and my small team have become the de facto global focal point for business and human rights; without strong government support, there will be a vacuum in terms of the leadership and guidance that is needed to bring the framework to life and prevent corporate-related human rights abuses, unless an effective follow-up process is constituted.

I continue to be grateful for the wide array of stakeholders who have engaged with and contributed to my mandate, and look forward to our continued collaboration in its last year -- to ensure that my final recommendations achieve their intended goals, and that we don’t lose the momentum and progress that we’ve all worked so hard to achieve.