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UN Forum blog series

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24 November 2017

Commentary: Why the business & human rights community needs to engage with the SDGs

Author: Uwe Gneiting, Cathrine Bloch Veiberg & Amol Mehra, Business and Human Rights Journal

[B]usiness’ elevated position within the 2030 Agenda represents both a potential opportunity and a challenge: an opportunity as it brings into the spotlight the actions and impact of business and creates openings for a renewed push of making the human rights responsibilities of business core to the SDGs. A challenge because, if not understood correctly, business’s engagement in the SDGs will risk sidelining human rights, including processes like human rights due diligence.

Seeing the SDGs as an avenue to make advances on human rights represents a key opportunity for the business and human rights community... We offer international standards for accountability,;... create visibility for instances of negative human rights impacts of business... and elevate voices and grievances of rights holders; ... bring into focus the role of governments as duty bearers of human rights and thus as drivers of the SDGs; ... [and] help ensure that the SDGs’ ambition of leaving no one behind applies to marginalized and discriminated groups.

By engaging with key actors to the Agenda 2030 (e.g. aid agencies, financial institutions and development NGOs), [the Business and Human Rights community] can foster and expand the recognition and understanding for our cause and thus ensure that Business and Human Rights becomes a cornerstone of sustainable development.

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27 November 2017

Commentary: Access to remedy should also address impacts of non-violative corporate acts

Author: David Birchall, Business and Human Rights Journal

"Access to Remedy and Corporate Human Rights Impacts", 27 Nov 2017

...Access to remedy is a rapidly improving, though still fundamentally weak, area of business of human rights (BHR) regulation. This post highlights the rights impacts of non-violative corporate acts, an area for which both remedy and regulation is frequently lacking...The [UN] Working Group contrasts access to remedy...and access to justice...The former consists generally of violations constituting overt wrongdoing, the latter refers to structural injustices such as global poverty and famine, for which no single actor is reasonably culpable.

...Between the violation and structural issues lie non-violative corporate acts with repercussive rights impacts. Herein, we can trace a particular harm to a specific corporate act, yet the act itself was not a human rights violation. Particularly common are corporate acts which risk serious regressions under the International Covenant on Economic, Social and Cultural Rights (ICESCR)...Such issues are generally not considered human rights violations. They are permitted, market-driven decisions, which may only present human rights issues when performed en masse...

...[I]f the [BHR] movement seeks to humanize business in a holistic sense, we may need to go beyond relational violations, and look more closely at the full range of human rights impacts presented by corporations. [refers to Google]

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27 November 2017

Commentary: Arbitration as a method of resolving disputes around human rights abuses by businesses

Author: Alison Berthet, Business and Human Rights Journal

“Arbitration: a new forum for business and human rights disputes?”, 20 Nov 2017

 …In line with this shifting focus by the international community on [access to remedy,] the third pillar of the UN Guiding Principles on Business and Human Rights (UNGPs), a working group of international law specialists published [“International Arbitration of Business and Human Rights Disputes,”] a proposal to use arbitration to resolve disputes that arise out of human rights abuses involving businesses (BHR disputes)…[T]he Working Group followed up with the publication of a “Questions & Answers” paper addressing key issues raised by consulted stakeholders.

According to the proposal, arbitration could be adapted for use in BHR disputes either…[b]y victims of human rights violations who wish to bring claims against businesses…[or to] resolve disputes involving human rights-related claims between commercial parties (for example, where a supplier fails to comply with certain contractually-imposed human rights obligations)…

…According to the working group, international arbitration “holds great promise” as a method of resolving BHR disputes, which often occur in regions where national courts are “dysfunctional, corrupt, politically influenced or simply unqualified”…

…The working group acknowledges that existing procedural arbitration rules are inadequate for dealing with BHR disputes, and that tailored arbitration rules should be developed…The working group is in the process of convening a drafting committee for this purpose…

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27 November 2017

Commentary: GBI & BHRRC share insights on effective remedy through multi-stakeholder engagement

Author: Jo Reyes, GBI & Christen Dobson, BHRRC, Business and Human Rights Journal

"Effective Remedy: The power and pitfalls of multi-stakeholder engagement", 25 Nov 2017

Over the past few years, the Global Business Initiative on Human Rights [GBI] and the Business and Human Rights Resource Centre [BHRRC], with the support of the UN Working Group on Business and Human Rights...have organised a series of panels at the UN Annual Forum (Forum) bringing together affected communities, civil society, business representatives and government officials to explore implementation of the UN Guiding Principles (UNGPs) on the ground...

These sessions were intentionally constructed to be multi-stakeholder in composition, reflecting the critical need for all parties involved to build trust, engage in dialogue, and listen to the voices of those affected...[T]his year’s Forum agenda will once again include two multi-stakeholder case-based sessions: one exploring an independent problem-solving service for communities affected by mining operations in South Africa, and one on community-driven and -involved approaches to access to remedy in the Thilawa Special Economic Zone in Myanmar.

Shared below are high-level observations and insights from previous panels and background research...

...For most organisations (states and civil society, as well as companies), effective implementation of Pillar III may necessitate organizational change...to ensure that many different voices are heard, and for affected communities to propose their own approaches and solutions so that remedial mechanisms best respond to actual needs and realize remedy regarded as effective by victims harmed by business activities.

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27 November 2017

Commentary: OHCHR to discuss findings from Accountability & Remedy Project at UN Forum

Author: Elisabeth Andvig, OHCHR, Business and Human Rights Journal

"Finding a way through the A2R maze: OHCHR's Accountability and Remedy Project", 24 Nov 2017

...[I]naccessibility of remedies in business and human rights cases is a serious and, in some respects, worsening problem...OHCHR’s Accountability and Remedy Project has been developed to respond to these concerns...[L]aunched in November 2014, [the project] has one key aim - to help States strengthen their implementation of Pillar III of the UNGPs...

...[T]he first phase of work (“ARP I”) was devoted to issues related to the use of judicial mechanisms in business and human rights cases and prioritised six key themes: (i) clarifying domestic liability concepts under domestic regimes, (ii) cross-border challenges, (iii) overcoming financial obstacles, (iv) “effective” remedies in criminal cases, (v) “effective” remedies in civil cases and (vi) supporting domestic law enforcement agencies. The conclusions drawn from this research...were formally presented to the Human Rights Council by way of a written report in June 2016.

...OHCHR is now well into the second phase of its work (“ARP II”) which...is concerned with the role of State-based non-judicial mechanisms. Three papers have been published so far: a preliminary scoping paper, a sector study on issues arising in “high-risk” sectors and...a discussion paper...

...The research and conclusions from both phases of the OHCHR Accountability and Remedy Project will be discussed during two sessions at the [UN] Forum [on Business and Human Rights], both taking place on 28th November...

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27 November 2017

Commentary: Real-time, comprehensive approach is key to remedy for child labor & trafficking in global supply chains

Author: Nina Smith, GoodWeave International, Business and Human Rights Journal

"Remedy to Children Toiling in Global Supply Chains", 24 Nov 2017

...The key is to respond to child labor and trafficking cases in real-time, and to follow tested, legal guidelines to help the victim separate from exploitative circumstances without exposure to danger or risk. This intervention must be followed with services that help them to recover, and to remain protected from exploitation going forward...Yet most supply chain auditing programs never reach children...[I]f they do, then the protocol is usually to issue a “corrective action report” requiring the employer to resolve the issue...[E]fforts to audit production and account for worker legitimacy and welfare are limited to factories...[M]ost exploitation is in the sub-contracted tiers of labor down to homeworkers...

...The other half of the successful equation in delivering remedy, is for companies to adopt actionable remediation policies and strategies, partner with local NGOs, and train their compliance staff to deploy appropriate responses...[H]aving a proper mapping and verification process combined with remedy can be the difference between complying with the law and solving the root causes of child labor...A comprehensive program will be country-specific and sensitive to the local context...[and] must include: 1) Removal of children from the work place...2) Counselling and care; 3) Advocacy of child rights; 4) Education; 5) Rehabilitation into community/family; 6) Ongoing support; 7) Follow up and tracking; and 8) Prevention through awareness raising and community-based interventions...[refers to C&A and Monsoon]

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27 November 2017

Commentary: States should provide financial resources to local communities to strengthen access to remedy

Author: Irit Tamir, Oxfam America, Business and Human Rights Journal

"Empowering Communities as a Strategy for Holding Corporates Accountable", 25 Nov 2017

...[A]nother strategy for gaining access to remedy is to empower affected communities by providing more financial resources and requiring the participation in human rights due diligence laws. Local communities are at the forefront of investment projects but too often face a power imbalance with the key stakeholders: companies and government...At the same time, focus is often on companies with an expectation for them to engage in due diligence processes. But companies face several constraints, such as time and lack of cultural knowledge that limit their ability to conduct meaningful consultations with local communities and marginalized groups.

To overcome these challenges, it is crucial to empower communities to enable them to participate in decisions affecting their lives...[T]o talk about meaningful consultation, a key element must be in place: communities need capacity and resources to engage in such a consultation...A fund should be established to support community-based organizations working directly with local communities. This fund would be used to develop local capacities in terms of human rights and business...[and] allow the implementation of consultation processes that would be both inclusive and meaningful. Funds could be established nationally, by sectors and globally...

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27 November 2017

Commentary: UK: Court ruling expands scope of parent company liability for human rights impacts of foreign subsidiaries

Author: Peter Hood & Julianne Hughes-Jennett, Business and Human Rights Journal

"How Should English Domiciled Multinationals Manage their Human Rights Risk in Light of the Judgment in Lungowe v Vedanta?", 26 Nov 2017

...[T]he doctrines of separate corporate personality and forum non conveniens insulated English domiciled parent companies from liability for the actions of their foreign subsidiaries.  However, developments in English and European law have progressively undermined the foundations of these doctrines...Last week, the Court of Appeal handed down its judgment in Lungowe and Ors. v Vedanta Resources Plc and Konkola Copper Mines Plc. This will come to be seen as a landmark case in relation to parent company liability and jurisdiction and has deep significance for how English domiciled multinationals manage their human rights risk.

...The Court confirmed that a parent company does not automatically owe a duty of care to someone affected by the actions of its subsidiary. The Claimant must do more to prove that a duty of care arises... The Court expressly confirmed that the law has developed so that a parent company’s duty of care can extend to non-employees affected by the operations of the subsidiary. Together, this expands the scope of parent company liability and will likely encourage more claims of this kind. 

...In order to fulfil their responsibilities under [...] the UN Guiding Principles, they [English domiciled multinationals] are required to take responsibility for human rights risks throughout their group and supply chain... [Pushing] responsibility for human rights due diligence down to the operating subsidiary level [...] will likely be more effective in reducing the risk of an adverse human rights impact in the first place.

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27 November 2017

UN Forum on Business & Human Rights - Day One Recap

Author: Michael Quayle, Thomas Voland & Emily Holland, Freshfields Bruckhaus Deringer

[Note: This piece was also published as part of the UN Forum blog series here.]

The focus of this year’s forum is the so-called “forgotten pillar,” or Pillar III of the UNGP, which addresses the need for states and business to ensure access to effective remedy for human rights abuses...

Select takeaways from today’s sessions are as follows:

Increasing interaction between Legal and CSR teams [...]

Transparency is critical [...]

Responsible advertising [...]

Focus on complaints procedures [...]

Access to remedy in the digital age [...]

Proposed “Geneva digital convention”

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28 November 2017

Commentary: Aligning National Contact Point processes with the UN Guiding Principles on Business & Human Rights

Author: UN Working Group on Business & Human Rights, Business and Human Rights Journal

"The National Contact Point (NCP) System - Aligning NCP Processes with the UN Guiding Principles on Business and Human Rights", 28 Nov 2017

[T]he Guiding Principles [...] call on States (in UNGP27) to “provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.” Among different State-based non-judicial mechanisms in the business and human rights field, the National Contact Point (NCP) system of the OECD Guidelines on Multinational Enterprises has received a great deal of attention... Some NCPs have struggled to be perceived as impartial and retain confidence of social partners and other stakeholders for many decades, as also shown in some UN Working Group country reports... A comprehensive improvement of the effectiveness of the NCP system would be a significant contribution toward strengthening implementation of the Guiding Principles across a number of countries. The Guiding Principles provide a useful and clear baseline for assessing NCPs and also a roadmap for reform. We look forward to continuing the dialogue on how – at the 2017 UN Forum and beyond.

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