By Jeffrey M. Kaplan
On March 24, the United Nations published its Guiding Principles for Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, which, as described in an accompanying press release, offers “for the first time an authoritative global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity.”
The release also notes that the Guiding Principles is “the product of six years of research and extensive consultations, led by the Secretary-General’s Special Representative for Business and Human Rights, Harvard Professor John Ruggie, involving governments, companies, business associations, civil society, affected individuals and groups, investors and others around the world.” The U.N’s Human Rights Council will consider formal endorsement of the document at its June 2011 session.
Guiding Principles addresses the corporate responsibility to respect human rights (as well as the State duty to protect human rights and the need for greater access to remedy for victims of business-related abuse), and does so by providing what is in effect a compliance and ethics (“C&E”) program framework for companies to use to meet this responsibility. The document makes clear that while human rights C&E program expectations vary according to a number of factors, in general companies should have certain key C&E program functions addressed to preventing, detecting and mitigating human rights violations – including risk assessment, due diligence, formal policies, communications, grievance mechanisms, self-assessment and external reporting.
Overall, there is a strong emphasis in the Guiding Principles on C&E processes to support human rights compliance that are comprehensive, rigorous and well integrated into a company’s overall operations. Among other things, the C&E framework includes various leading edge C&E tools in support of human rights compliance, including a dynamic and granular approach to risk assessment and the use of “financial and other performance incentives for personnel” to support a company’s human rights policies.
Also, and to an extent not seen in most other C&E program frameworks, the Guiding Principles speak to the need for expertise in establishing and maintaining a human rights compliance program. For some C&E officers who are not experts in human right matters (as presumably most are not) this may suggest that they have no role to play in helping their respective companies meet this new – and extremely important – standard of accountability. However, such a reaction would be, I think, a mistake, as participation by members of the C&E community in this initiative may be essential for its success.
That is, as noted by former GE General Counsel Ben Heineman, Jr. in another context, C&E officers have considerable expertise in “embedding integrity processes deep into business operations,” which he correctly notes is “a central and vital job” for ensuring compliance with applicable legal and ethical standards generally. Indeed, this type of expertise may be especially central and vital to establishing human rights C&E programs, not only because of the expectations of rigorous processes found in the Guiding Principles but also because unlike many other risk areas addressed by C&E programs (such as corruption or competition law), this one lacks a strong enforcement-related underpinning to fuel the effort.
The General Principles set out an important – and, I believe, practical – framework for companies to use in respecting human rights. And, at least at some companies, C&E officers can play an indispensible role in turning the principles into practices.