INTRODUCTION Contributed by: Brian W. Burkett, Claudia Feldkamp and Chris Pigott, Fasken
The Global Evolution of Business and Human Rights Law The modern history of “business and human rights” began in 2005 when then-Secretary General of the United Nations (UN) Kofi Annan appointed Professor John Ruggie, of Harvard University as the UN’s special representative on business and human rights. With this appoint - ment, the UN tasked Professor Ruggie, with identifying and elaborating standards for multi - national corporations and other business entities concerning human right issues, as well as with clarifying businesses’ role vis-à-vis governments in protecting against and remedying human rights abuses. In essence, the UN had asked Ruggie, to develop – from the ground up – a new global framework for addressing human rights in the context of international business. The 2008 “Protect, Respect, and Remedy” framework that Professor Ruggie, ultimately developed, and then operationalised in the 2011 UN Guiding Principles on Business and Human Rights (the “UNGPs”), is now well established globally and a foundation for most of the legal and other initiatives related to corporate con - duct that implicates human rights. At the same time, the UNGPs did not “freeze” the principles, standards, and processes of the business and human rights landscape in place. On the contrary, the UNGPs were a launchpad from which a wide range of legal and other initia - tives concerning businesses’ human rights obli - gations have sprung. Alongside these develop - ments, we have witnessed a gradual evolution from an overriding reliance on voluntary human rights principles and related enforcement pro - cesses (“soft law”) to a greater place for the legal application and enforcement of human rights obligations on businesses around the world. These initiatives – both domestic and interna -
tional – now make up an increasingly important body of law and best practices that compel greater business respect and action when it comes to addressing the human rights impacts of their operations. International framework To date, neither the UN nor any other interna - tional organisation has put in place a treaty or other legal instrument of general application that imposes legal obligations concerning human rights matters on businesses. Instead, the inter - national framework consists of several interna - tional standards that set out voluntary principles and standards. UNGPs The most important of these international stand - ards are the UNGPs. The UNGPs were unani - mously adopted by the UN Human Rights council in June 2011. They are a body of principles that identify governments’ and businesses’ respec - tive obligations to prevent, address and remedy human rights impacts associated with business activity. The UNGPs apply to businesses of all sizes and structures, regardless of whether they are multinational in nature or operate in a single jurisdiction. The UNGPs are based on the three pillars of the “Protect, Respect, and Remedy” framework, as follows. • Under Pillar One (Protect), governments are responsible for passing laws and taking other actions to ensure that individuals and com - munities are protected against human rights abuses. • Under Pillar Two (Respect), businesses are required to ensure that they (and their agents) respect human rights in the course of their business activities. To do so, businesses
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