The UN Guiding Principles on Business and Human Rights: What Lawyers Need to Know Delhi, India – 16 September 2016 www.a4id.org

The State Duty to Protect Human Rights: GPs 1 – 11 “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.” (GP 1) Does the State duty include a duty to regulate offshore activities of corporations? What is the obligation of States with regard to State-owned enterprises? The UN Guiding Principles on Business and Human Rights www.a4id.org

The State Duty to Protect Implementation Multi-State Initiatives OECD Guidelines for Multinational Enterprises (2011) International Finance Corporation Performance Standards (2012) European Union CSR Strategy and legislation regarding non-financial reporting and payments to governments EU non-financial reporting directive Council of Europe: Recommendation CM/Rec(2016)3 on human rights and business Council of the EU, Council Conclusions on Business and Human Rights (20 June 2016) Canada UNGC Network Launch (2013) Mandatory Reporting for Extractives Industry CSR Strategy United Kingdom Revised National Action Plan on Business and Human Rights 2016 Amendment to Companies Act 2006 to impose a human rights reporting requirement for listed companies (October 2013) Modern Slavery Act 2015 United States National Action Plan on Responsible Business in consultation Burma reporting requirements 2013 Forced labour legislation and conduct rules for contractors to the federal government SEC Conflict Minerals disclosure rules Canadian Extractive Sector Transparency Measures Act  Africa and Latin America Africa Regional Forum on B&HR (September 2014) Mauritius, Mozambique, Tanzania, Kenya – NAPs? Middle East and Asia and Asia Pacific Regional Dialogue on the National Implementation of B&HR Networks (April 2013) 2016 Regional Forum on Business and Human Rights, Qatar The UN Guiding Principles on Business and Human Rights www.a4id.org

The Corporate Responsibility to Respect GPs 11 – 24: Key Characteristics GP11: “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Applies to all internationally recognised human rights Not a legal obligation, but not optional Applies to all enterprises regardless of their size, sector, operational context, ownership and structure Exists over and above compliance with national laws and regulations protecting human rights CSR is not enough: commitments or activities which support and promote human rights do not offset a failure to respect human rights throughout an enterprise’s operations The UN Guiding Principles on Business and Human Rights

The Corporate Responsibility to Respect GPs 11 – 24 in practice: “Knowing and Showing” Respect for human rights means avoiding infringing on the human rights of others and addressing adverse human rights impacts with this which they are involved. The responsibility to respect human rights requires that business enterprises: a. Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; and b. Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. To meet their responsibility to respect human rights, business enterprises should: Implement a Human Rights Policy (GP 16) Conduct due diligence (GPs 17 -21) which includes taking appropriate action and reporting publicly Develop processes to remedy impacts which they have caused or contributed to GP 22 (also GPs 29 and 31) The UN Guiding Principles on Business and Human Rights www.a4id.org

The Corporate Responsibility to Respect Key Concept: Leverage “...Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.” GP 19(b) – “appropriate action will vary according to... The extent of [the business enterprise’s] leverage in addressing the adverse impact.” Adverse impact on human rights... ...Company is not directly causing it, but... ....is contributing to it or is linked to an impact. Leverage should be exercised when an institution contributes to a human rights impact, and where its operations, products or services are or may be directly linked to a human rights impact through its business relationships. Who? What? When? FORMAL vs INFORMAL The UN Guiding Principles on Business and Human Rights www.a4id.org

The Corporate Responsibility to Respect Human Rights Due Diligence Remediate Activities cause impact Take necessary steps to cease or prevent Take necessary steps to cease or prevent contribution Potential Human Rights Impacts Actual Activities contribute to impact Due Diligence Use leverage to mitigate any remaining impact Impacts are directly linked to operations, products or services by business relationship Appropriate action depending on existence of leverage, severity of abuse, importance of relationship Prevent or Mitigate The UN Guiding Principles on Business and Human Rights www.a4id.org The UN Guiding Principles on Business and Human Rights

Voluntary reporting and metrics The Corporate Responsibility to Respect Implementation – A race to the top? Policy adoption 340+ companies have publicly available policies (BRHCC website) Standard setting Equator Principles III, Voluntary Principles on Responsible Contracting, OECD Guidelines for Multinational Enterprises, ISO26000 Sector Focus Oil and Gas (IPIECA Guidance), AIPN Paper, Myanmar SWIA, Thun Paper for Financial Institutions, IBA Practical Guide on Business and Human Rights for Business Lawyers Corporate Human Rights Benchmark, Tullow Oil / Statoil voluntary disclosures on payments to governments, UN Global Compact, Reporting and Assurance Framework Initiative, GRI G4, Sustainability Reporting Guidelines Voluntary reporting and metrics The UN Guiding Principles on Business and Human Rights

Access to Remedy GPs 25 – 31 – “The Forgotten Pillar”? “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.” (GP 25) Companies should also have procedures in place to receive and respond to human rights grievances Access to remedy through judicial mechanism is limited by procedural and substantive barriers (e.g. Kiobel v. Royal Dutch Petroleum Co.) The UN Guiding Principles on Business and Human Rights www.a4id.org

Access to Remedy Implementation Consultation on problems and solutions with judicial remedies OHCHR Consultative Process on Domestic Law Remedies (see J. Zerk “Corporate Liability for gross human rights abuses”) Revision of existing standards providing non-judicial remedies OECD Guidelines on Multinational Enterprises includes Chapter IV: Human Rights Corporate Guidance and Practice on Operational Level Grievance Mechanisms Guidance IPIECA Operational Level Grievance Mechanisms (2012) Adidas Barrick Gold Corporation “Access” Website Revised or new grievance mechanisms Proposals for an international tribunal for business and human rights issues Review of the UK NCP OECD mechanism report: Obstacle course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises, February 2016 The UN Guiding Principles on Business and Human Rights