UN Principles on Business and Human Rights

It has been more than a decade since the United Nations published what is today the primary reference on the immense potential impact on human rights caused by companies – directly and indirectly. It was not the first time the UN sought to address the issue. Still, this time, after a construction process that took several years and involved public consultations with the most diverse actors, including the private sector, an agreement and concrete result were reached.

The UN has endorsed a detailed set of responsibilities applicable to all businesses called the UN Guiding Principles on Business and Human Rights (UNGP). States are reminded of their duty to protect people from human rights abuses – including those committed by companies. As for companies, the responsibility to respect human rights has been placed in their direct and indirect operations, and a series of devices are proposed for this.

Today, the Principles are widely referenced in certification standards, audits, safeguards, and socio-environmental criteria of multilateral institutions, pacts, and initiatives aimed at companies, public policies, and national and regional legislation.

No large company can claim to be outside the UN's Guiding Principles. However, the recognition of the Principles and their implementation still needs to be well advanced.

We must recognize that the Principles brought advances and made the agenda of impacts on human rights gain concreteness and redesigned expectations about the behavior of companies. The Principles helped end the idea that philanthropy could be confused with a company's social responsibility and placed it within the framework of preventing, mitigating, and repairing impacts. As a result, companies can only look at their positive contributions if they look deeply into the adverse effects on their operations and supply chain.

Many huge and multinational companies have adopted the Principles and looked to reflect them in their public policies and commitments. However, when it came time to implement it in daily practices, this process needed to be improved. We also saw that there is a "double standard" in many cases, where the discourse and approach adopted in certain countries (generally in North America and Europe) is not the same as reproduced in other places. Large companies and multinationals in the global south have slowly adopted the Principles. In many countries, we see situations in which large companies do not follow them. Many multinationals do not assume the same standards as in their countries of origin, and sectors with exceptionally considerable risk for violations, such as agribusiness, mining, civil construction, and apparel, must be faster to incorporate the Principles.

Some highlights – What do the Principles say?

The UN Principles on Business and Human Rights bring several concepts and references and are robust and complex guidelines. But even so, we can highlight some of its aspects.

The Principles state that companies must have a human rights policy and a structured due diligence process to monitor and prevent risks. Furthermore, companies must "know and demonstrate" that they respect human rights (Principle 15). In response to these requirements posed by the UN Principles, many companies have published specific human rights policies and protocols detailing their due diligence process. In addition, large companies have shown the most critical human rights chains and risks present there and made specific commitments in relation to these situations.

The due diligence process must be understood as the study, analysis, and detailed evaluation of the operations, their supply chain, their risks, and the context in which they are inserted. It's not just about establishing supplier audits. Audits, especially surprise ones, can be essential to the monitoring process. But under no circumstances should they be through the entire due diligence process. As the OECD states in its guidelines on due diligence, this must be a preventive, dynamic, and continuous process, not punctual. Furthermore, both the Principles and the OECD are clear that the process must involve consultation with different stakeholders – for example, it is not enough to talk to fruit rights suppliers about working conditions. One must speak with trade unions and rural workers in the region, with inspection and the public ministry of labor.

The need to "know and show" and the due diligence process, as posed by the UN Principles, prevent the idea that companies can claim ignorance or lack of knowledge about their operations and supply chains concerning human rights impacts.

Another highlight of the Principles is the risk to the rights holder. When it comes to human rights and business change, they say risk analysis must go "beyond simply identifying and managing material risks to the business itself, it must include risks to rights-holders." That is, it is a question of considering the risk to people, those in a more vulnerable situation, and those operations can affect, such as, for example, rural workers, communities, and indigenous peoples.

It is from the consideration of the risks faced by these people that the due diligence process must be carried out and prevention, mitigation, and remedy established. The meaning of this is significant, as it dismisses contractual provisions with suppliers as sufficient action. After all, these only serve as a legal precaution for the company and do not change the lives of those at risk in any way.

The UN Principles also bring the dimension of collaboration. In this case, collaboration would concern those companies that are perceived as beneficiaries of abuses committed by others (Principle 17). The ISO 26000 standard detailed the concept of collaboration into three categories:

• Direct complicity: Occurs when an organization knowingly aids in a human rights violation.
• Beneficiary complicity: Involves an organization or subsidiaries benefiting directly from human rights abuses committed by another person. Examples include an organization that tolerates action by security forces to quell peaceful protests against its decisions and activities or use of repressive measures while guarding its premises or an organization that benefits economically from providers' abuse of fundamental rights at work.
• Silent complicity: This may involve an organization's failure to raise the issue of systematic or ongoing human rights violations with the appropriate authorities, such as failing to speak out against systematic discrimination in employment law against specific groups.

Another essential highlight concerns the so-called complaint mechanisms and reparation processes. The Principles state that where companies identify that impacts have been caused, they must contribute to the remediation processes or establish their procedures, provided they are legitimate (Principle 22). The question of legitimacy comes from the independence and inequality of power between the parties involved. An example is an ample multinational negotiating reparation directly with indigenous peoples in a process controlled and established by it. It would not be a legitimate process. The Principles also show the need to develop a grievance mechanism for operations. However, they show that this mechanism should not be passive but proactive and seek to identify situations or potential problematic situations. Such tools for denouncement and reparation must have their governance and processes publicized. Times and steps should be transparent.

As we can see, the Principles bring interesting and concrete provisions on the responsibility of companies in respecting human rights, and their impacts continue to affect the lives and human rights of people from the most vulnerable groups.

While its implementation does not accelerate, society's expectations about corporate responsibility are expanding, and issues such as inequality gain prominence, as well as regulatory solutions, such as responsibility laws in the production chain (such as those already approved in France, Germany, in England, for example) and the discussion on a specific treaty for the theme is still alive in the UN General Assembly.