FEATURE
A Decade on from the Guiding Principles on Business and Human Rights (UNGPs): Is consensus still lacking? RAFFAELE PICCOLO, HUMAN RIGHTS COMMITTEE
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his year marks 10 years since the release of the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (UNGPs).1 While but another example of “soft law”,2 the UNGPs remain a significant instrument in efforts to address the impact of business activity on human rights. First, the UNGPs created an “authoritative focal point” that had otherwise been lacking in this area of concern.3 And secondly, the release of the UNGPs heralded an outbreak in activity (“a wave of lawmaking and standardsetting”) in efforts to address the impact of business activity on human rights.4 Notable among the wave of lawmaking are the various state legislative initiatives which impose “human rights due diligence” obligations upon business entities.5 These legislative initiatives typically require business entities to report and disclose efforts made (if any) to address the impact of business activity on human rights. The “indirect” aim of such legislative initiatives is to cause business entities to take action to address those impacts.6 Examples include the Modern Slavery Act 2015 (UK), the Duty of Vigilance Law (France), and the Modern Slavery Act 2018 (Cth). This article will briefly consider the background to the release of the UNGPs, before outlining the notable legislative initiatives that states have adopted in furtherance of the UNGPs. This article concludes that a decade on from the UNGPs, consensus is still lacking on how to effectively address the impact of business activity on human rights.
PROTECT, RESPECT AND REMEDY: A FRAMEWORK FOR BUSINESS AND HUMAN RIGHTS The origin of the UNGPs is the work of the Special Representative of the
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Secretary-General on the issue of human rights and transnational corporations and other business enterprises (SpecialRepresentative). In 2009 the Special Representative proposed “a common conceptual and policy framework, a foundation on which thinking and action can build” to address the impact of business activity and human rights.7 The framework developed, referred to as “protect, respect, and remedy”, comprised of three core principles: 1. the State duty to protect against human rights abuses by third parties, including business; 2. the corporate responsibility to respect human rights; and 3. the need for more effective access to remedies. The three core principles were described as complementary to each other; each principle supported each other principle in achieving sustainable progress.8 Release of the UNGPs At the request of the Human Rights Council of the United Nations (‘Human Rights Council’), the Special Representative was then tasked with operationalising the framework.9 The UNGPs are the culmination of that task.10 In June 2011, the Human Rights Council endorsed the UNGPs.11 The UNGPs clarified that business entities have a responsibility to respect human rights, and that this responsibility requires business entities to exercise “human rights due diligence”. In this regard, “human rights due diligence” refers to the processes undertaken to identify, account, prevent and mitigate the impacts of business activity on human rights.12 The more notable examples of states implementing such “human rights due diligence” are considered in turn below.
CALIFORNIA TRANSPARENCY IN SUPPLY CHAINS ACT OF 2010 13 It is unclear whether the California Transparency in Supply Chains Act of 2010 (CTSCA) formed part of the wave of lawmaking that succeeded the UNGPs; the CTSCA was developed and adopted in the intervening period between the announcement of the framework (“protect, respect, and remedy”) in 2009, and the release of the UNGPs in 2011. Nevertheless, the significance of the CTSCA cannot be overlooked in the activity of the past decade. The CTSCA set a precedent, upon which others have drawn, in the implementation of the UNGPs.14 Commencing in 2012, a business entity (retailers and manufacturers) doing business in the state of California, which has annual worldwide gross receipts that exceed US$100 million, must report on the efforts of the business entity to eradicate slavery and human trafficking from the direct supply chain of the business entity for tangible goods offered for sale. Reports must be made on an annual basis. A business entity must disclose the extent to which the business entity engages in verifications and audits of suppliers, the internal control mechanisms in place, and training offered to staff. The exclusive remedy for non-compliance with the obligation to report and disclose is for the Attorney-General to seek injunctive relief.
NON-FINANCIAL REPORTING DIRECTIVE (EUROPEAN UNION)15 Adopted in December, 2014, a business entity (referred to as “Large undertakings which are public-interest entities”) that has on average in excess of 500 employees during the financial year must include in the management report of the business
