Obligations of states under the main UN Human Rights Instruments

Obligations of states

Each Member State Party to an instrument assumes the general obligation to respect, protect and fulfil the rights and freedoms concerned:

Obligation to respect : the state must refrain from interfering with or hindering or curtailing the exercise of such rights by individuals.
Obligation to protect : the state must protect individuals and groups against violations of their rights by others, including by private actors.
Obligation to fulfil or implement: the state must facilitate the exercise of such rights by all.

In deciding to subscribe to international Human Rights conventions, states commit to take appropriate measures of a legislative, judiciary, administrative or other nature to guarantee the exercise of the rights specified for all individuals falling within their jurisdiction. The maastricht Principles on extraterritorial Obligations of States in the area of economic, Social and cultural rights were adopted in 2011 by a group of legal experts. The United Nations Charter ¹ already specifies the obligation for a state not to undermine Human Rights in another country, obliges states to provide international assistance and cooperation to help others realise these Human Rights. The Universal Declaration of Human Rights (UDHR) and the InternationalCovenant on economic, Social and Cultural Rights ² (ICESCR) contain similar obligations. ICESCR also specifies that states must refrain from any activity liable to hinder the realisation of economic, social and cultural rights in another country.

Responsibility of states regarding acts committed by private actors

Although international instruments are only binding on the States Parties to discharge their international obligations, states must protect individuals not only against violations by their agents, but also against acts committed by private persons or entities – including therefore multinational corporations. If the state defaults on its obligation to protect, the acts concerned can be imputed to it, regardless of whether the private person can be prosecuted for the acts perpetrated.

At the moment, Human Rights instruments only deal with businesses indirectly as “organs of society”; there is currently no international convention directly dealing with the responsibility of non-state actors. However, an international consensus has emerged recognizing the responsibility of business enterprises to respect Human Rights.

The UN Draft Norms on the Responsibilities of Transnational Corporations and other Business enterprises with regard to Human Rights, elaborated in 2003 by the Sub-Commission on the Promotion and Protection of Human Rights, aimed at codifying the respective responsibilities of states and business enterprises. However, despite raising these important issues, the Norms were never adopted. In 2005, a new special procedure, the UN Secretary General Special Representative on the issue of Human Rights and Business was established to clarify the concepts and responsibilities of states and business entreprises. Mr John Ruggie, Special Representative, was charged with this question between 2005 and 2011.

In his 2008 report entitled “Protect, Respect and Remedy: a framework for Business and Human Rights”, John Ruggie proposed a Framework based on three pillars: The obligation of the state to protect, the corporate responsibility to respect and access to remedies for victims of Human Rights violations.

In June 2011, at the end of the mandate of the Special Representative, the UN Human Rights Council unanimously adopted the Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” framework. This text, which is not legally binding, aims at operationalizing the three pillars of the Framework ³ . At the same time, the Human Rights Council decided to establish a Working Group on the issue of Human Rights and transnational corporations and other business enterprises, consisting of five independent experts, of balanced geographical representation, for a period of three years ⁴ . In July 2020, the Human Rights Council decided to extend the Working Group’s mandate for a period of three years ⁵ . The Human Rights Council also decided to create a multistakeholder Forum on Business and Human Rights, to be held annually under the guidance of the Working Group.

The UN Guiding principles on business and Human Rights ⁶

Pillar I: State duty to protect

In the first pillar of the framework John Ruggie confirms the basic principle of international law that states have an obligation to protect Human Rights against actions of non-state actors, including corporations. States have to take measures to fulfil this obligation, including the enactment of legislation. States are also expected to hold non-state actors accountable if they commit Human Rights violations. States should take additional steps to make sure businesses that they control or with whom they contract respect Human Rights. States should ensure greater policy coherence of their trade and investment policies with their Human Rights obligations including when acting as members of multilateral institutions. The main point of debate relates to states’ extraterritorial obligations. In other words, the obligation of states where parent companies of multinational corporations are incorporated in their jurisdiction to regulate the activities of these corporations outside their territories and to eventually sanction them if found to be involved in Human Rights violations abroad.

Pillar II: Corporate responsibility to respect

Although the idea that international legal obligations can be directly imposed on companies is still controversial, the Guiding Principles clearly establish that business enterprises should, at all times, respect all Human Rights. According to John Ruggie, this derives not only from legal obligations but also from the necessity for corporations to obtain a social licence to operate. This means businesses should avoid infringing on the Human Rights of others and should address adverse Human Rights impacts in which they are involved. In order to do so, companies should conduct due diligence ⁷ to identify, prevent, mitigate and account for how they address adverse impacts on Human Rights.

Pillar III: Access to remedy

The Guiding Principles recognise that states must ensure that those affected have access to effective remedy. The Special Representative has been criticized by NGOs for his weak and ambiguous interpretation of the right to an effective remedy, and for focusing too much on non-judicial remedies, falling short of providing strong recommendations to bring justice and reparation to victims.

Towards an international binding instrument

On 26th June 2014, the Human Rights Council adopted a resolution ⁸ establishing an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to Human Rights, mandated to elaborate an international legally binding instrument to regulate, in international Human Rights law, the activities of transnational corporations and other business enterprises. The adoption of this resolution, tabled by Ecuador and South Africa, echoed a global call from over 600 civil society organisations and social movements in over 90 countries, ⁹ most of which continue to actively advocate for a binding treaty through the Treaty Alliance. 20 States voted in favour ¹⁰ , 14 States voted against ¹¹ and 13 States abstained ¹² . FIDH welcomed this initiative for the development of an international legal framework on business and Human Rights as a promising step towards corporate accountability, and actively participated in the annual sessions of the intergovernmental open-ended working group which have been held since July 2015 ¹³ . FIDH hopes this intergovernmental process can contribute to further clarifying and codifying existing obligations and ensure redress for corporate-related abuses ¹⁴ .