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The International Bill of Human Rights comprises the Universal Declaration of Human Rights (adopted in 1948), the International Covenant on Civil and Political Rights, the International Covenant on Social and Cultural Rights (both from 1966) and its two Optional Protocols. Together, they represent the core of the International Human Rights Law.

The scope of application of these instruments is universal. The United Nations (UN) control the way in which States guarantee, respect and protect these rights through two different types of mechanisms: conventional mechanisms and extracoventional mechanisms.

Nonetheless, the UN has always been aware of the need to provide special protection to certain groups of people and/or rights. As a result, an important number of treaties aimed at protecting persons or groups in respect of certain forms of violations have been adopted. However, these instruments are only applicable in those States which have ratified them. Among them, the following should be highlighted: Convention on the Elimination of All Forms of Discrimination against Women (1979), Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989), International Convention on the Protection of All Migrant Workers and Members of their Families (1990) or the Convention on the Rights of Persons with Disabilities (2006). Each of these instruments has a Committee in charge of supervising their application.

In the present context, it is also important to refer to what the United Nations Guiding Principles for Business and Human Rights have identified as the minimum content of the human rights that businesses should respect. This content includes the principles concerning fundamental rights in the eight International Labour Organization conventions: Freedom of Association and Protection of the Right to Organise Covention, 1948 (nº87), Right to Organise and Collective Bargaining Covention, 1949  (nº98), Forced Labour Convention, 1930 (nº29), Abolition of Forced Labour Convention, 1957 (nº105), Minimum Age Covention, 1973 (nº138), Worst Forms of Child Labour Covention, 1999 (nº182), Equal Remuneration Convention, 1951 (nº100) and Discrimination (Employement and Occupation) Convention, 1958 (nº111).

Finally, it should be noted that besides the universal system of human rights protection, systems with specific characteristics have been developed at a regional level. These include the European regional system (which comprises the OECD’s protection system, the Council of Europe’s fundamental rights protection system and the European Union’s system of human rights protection), the Interamerican human rights system (which is based on the American Convention of Human Rights or San José Pact and on the work of the Commission and the Interamerican Court of Human Rights) and the African human rights system (which relies on the African Charter of Human and People’s Rights).

As the United Nations Guiding Principles for Business and Human Rights have acknowledged,  business enterprises’ operations can have impact on all internationally recognized human rights. In other words, businesses’ activities can interfere with the exercise of civil and political rights (for instance, the right to freedom of expression and association, the right to life or to not be subject to degrading, inhuman treatment and torture, the right not to suffer discrimination), but also with economic, social and cultural rights (right to work, to food, right to health, or right to cultural expression, among others).  Depending on the sector or place of the activity, specific rights or vulnerable groups such as women, children, or indigenous peoples can also be affected.

When we talk about “impacts” we do not refer exclusively to  to those produced within the context of the company (originating either from the relationship between management and workers or from the among workers) but also, and very importantly, to those derived from the company’s interaction with the community and environment where it operates. The enterprises’ responsibility to respect human rights comprises the dut not to infringe the rights of those communities wherever the activity takes place.

Additionally, those impacts can be linked to the company’s own activities (we talk about “direct impacts”) or to the activities of its subsidiary companies or business relationships (“indirect impacts”, which concern the value or supply chains or, in case of transnational corporations, subsidiaries, subcontractors, etc.)

The study area commonly referred to as “Business and Human Rights” deals with all the aforementioned issues, as well as the analysis of legal and political options to enhance human rights protection in this context. In Indago we prefer to talk about “Human Rights and Business”, since we believe that order is important when reffering to this issue. In this sense, we strongly believe that human rights, that stem from the human dignity, must prevail over other economic and political goals.

Respect for human rights matters applies to business enterprises of all size and types (including big, and small and medium enterprises, SMEs). It is nevertheless recognized that impacts linked to or caused by transnational corporations are of a special concern. These enterprises can be defined as companies that are domiciled in one State (“Home State”) and develop their activities in different countries (“Host States”) by means of a number of subsidiaries or other business relationships.

Civil society, academics and legal scholars are addressing some of the main problems related to this question:

• The obstacles to regulate the activities of transnational corporations and guarantee corporate accountability which derive from their complex structure. Such structure hinders the allocation of parent companies’ responsibility for acts committed by their subsidiaries or business partners.
• The absence of a common international framework defining standards applicable to corporations that solves the different playing fields regarding human rights protection in the countries where companies operate. For instance, a transnational corporation would have to grant their workers in Spain a better treatment than those it may employ in Bangladesh. The same applies to required environmental standards.
• The additional difficulty brought in by the globalization of supply and production chains. These global chains hamper products’ traceability and has diluted companies’ accountability for human rights violations.
• The almost insurmountable obstacles that victims of corporate abuses committed out of the parent companies’ Host State find when seeking justice. This is crucial when States where the harm occurs don’t provide an effective remedy due to a lack of political will, complicity, omission by the State authorities or to an absence of the appropriate domestic legal mechanisms.

United Nations’ interest on the topic Business and Human Rights can be traced back to the 70s, when, as a result of the emergence of multinational corporations as international economic actors, a legal gap was identified: business activity was not regulated and its negative impacts didn’t entail consequences.

Some countries raised their voices against this situation before the UN, who answered by creating the Commission on Transnational Corporations (intergovernmental organ) and the United Nations Centre on Transnational Corporations (administrative organ of experts). These two organs were tasked with the development of a Code of Conduct that established a binding international framework where the responsibilities of multinationals were clearly defined. In doing so, the aim was to achieve a higher level of transparency which would avoid tax evasion and anticompetitive conducts such as price manipulation.

The lack of agreement between industrialised countries (home States of the big corporations) and developing countries impeded the adoption of this Code.

After this first failed attempt to adopt an international binding regulation on this issue, in the early 80s, the business sector’s position, based on Corporate Social Responsibility (CSR), gains momentum. This results in the emergence of Codes of Conduct elaborated either by the same corporations or by international institutions, Declarations and other non-binding soft law instruments. Among them, the following may be highlighted: the International Labour Organization Tripartite Declaration concerning Multinational Enterprises and Social Policy (1977) or the OECD Guidelines for Multinationals (1976).

In 1999, following a series of reports commissioned by the United Nations Human Rights Commission on the topic of Transnational Corporations and Human Rights, another attempt to introduce hard-law into this topic was carried out: a Working Group was established with the purpose of developing a binding legal framework was established.

In 2003, the Sub-Commission on Human Rights (subsidiary of the aforementioned Commission) presented its Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The sub-Commission adopted the text and submitted it to the Commission. The Norms recognised human rights obligations both for States (who had to guarantee that businesses respected human rights) and for business enterprises. This was contested by a part of the business sector and by some of the corporations’ host States.

The aforementioned proposal was presented three years after the adoption of the Global Compact, a voluntary instrument driven by business leaders with the support of Kofi Annan, at the time Secretary-General of the United Nations. In joining this voluntary initiative, the enterprise commits itself to progressively implement Social Responsibility in its organisation. The progress achieved should be periodically published through a Sustainability Report.

Be that as it may, the UN Human Rights Commission refused to follow up the cited Draft Norms. The motivations behind this decision may range from the inadequacy of the moment chosen to present this proposal (which coincided with the implementation of the Global Compact and which may have hindered its achievements) to the fact that it represented a normative project which threatened the business sector’s interests.

Instead, in 2005, the Commission requested the Secretary-General of the UN, to appoint a Special Rapporteur on Transnational Corporations and Human Rights. The position was offered to Harvard University Professor John Ruggie. Ruggie had been the architect of the Global Compact and had coined the idea of a “global governance based more on cooperation with than regulation of the business sector”. Among other things, Ruggie was tasked with the identification and clarification of the responsibility standards. During his mandate, the United Nations Guiding Principles on Business and Human Rights (Guiding Principles) were adopted. These Principles establish the State’s “duty” to protect human rights and the business’ “responsibility” to respect them.

Currently, these voluntary Principles represent the UN legal framework which is being relied upon to develop regional and domestic regulations. However, it is important to highlight that in 2014, the Human Rights Council adopted a resolution for the creation of an international binding instrument on transnational corporations and other business enterprises with regard to human rights. This resolution was launched by Ecuador and South Africa and has resulted in the establishment of an open-ended intergovernmental working group to present a draft instrument. This initiative is supported by countries from all regions and by more than 1200 organizations and social actors.

The European Union (EU) is bound by its Charter of Fundamental Rights. It is also obliged to shape and implement its foreign policy, including the celebration of economic agreements with third countries, in accordance with the principles of universality and indivisibility of human rights and fundamental freedoms.

In the scope of business responsibility to respect human rights, the EU has mainly stood up for a voluntarism approach. EU institutions have generally opted for the promotion of corporate social responsibility by means of non-binding measures and incentives, while avoiding the adoption of legally binding rules. The European Commission (EC) openly gives priority to voluntary political initiatives that, “when necessary”, are complemented with additional regulation. This “smart mix approach”, enshrined in its 2011 Corporate Social Responsibility (CSR) Strategy, marks the spirit of the EU action in this field.

The Commission has therefore expressed its support to the main CSR international instruments). In particular, the institution has committed itself to contribute to foster the UN Guiding Principles on Business and Human Rights latter, as well as to implement a EU foreign policy coherent with its commitment to respect and promote human rights (Strategic Framework of the EU for Human Rights and Democracy, 2012; Communication on Trade, Growth and Development, 2012).

CSR initiatives have also been promoted in specific sectors such as the garment industry. The aftermath of the Rana Plaza scandal (the collapse of a building in Bangladesh housing factories that provided for European brands, with more than 1000 people killed) led to the signature of a “Sustainability Compact” to improve working conditions in Bangladesh, together with a similar project in Burma. The EC is currently working in a “flagship initiative” for textile supply chains.

Apart from numerous declaratory instruments, the EU has been so far reluctant to adopt legal measures that impose legally binding rules on corporations and that may be enforced by accountability mechanisms guaranteeing access to justice for victims of abuses. Some areas where steps have been taken include:

Transparency: The Non-Financial Reporting Directive was approved in 2014. It requires big European-based corporations to disclose information about their environmental, social and human rights risks among others, and about the preventive measures adopted. The Directive has been questioned for its limited scope due to factors such as only covering the biggest enterprises or not including a specific obligation to inform about the company’s subsidiaries or supply chains. A country-by-country Directive was passed the previous year, imposing extractive and logging companies to inform about payments made to governments.

State-business nexus: The Public Procurement Directive was adopted in 2014. It requires states to take measures to ensure that economic operators in public contracts comply with obligations in the fields of environmental, social and labour law established by EU law, national law, collective agreements or by international laws listed in the Annex (it nevertheless only includes ILO Covenants and environmental law. No specific reference to human rights instruments is made).

Supply Chains: After several years of negotiation, the Commission, the Parliament and the European Council reached in 2017 an agreement for a Regulation on the responsible sourcing of minerals originating from conflict and high-risk areas. The proposed instrument intends to tackle the problem of international trade of certain minerals used to manufacture electronic products, fuelling armed conflicts and human rights violations in countries such as the Democratic Republic of Congo or the Central African Republic. The future Regulation will only nevertheless impose such due diligence obligations only to importers of big quantities of these raw materials (tin, tantalum and tungsten and gold).

Additionally, the 2010 Timber Regulation sets the prohibition to import to the EU illegally harvested timber or products containing illegally harvested timber. The norm also requires importers of these materials and products to develop a due diligence system to guarantee that the timber has been logged according to the laws of the country of origin.