Standards and guidance
The field of Human Rights and Business has received an increased focus in the years following the adoption of the United Nations Guiding Principles, influencing the elaboration of further standards and guidance by a number of organisations and stakeholders.
Below is a non-exhaustive selection of some of the relevant standards and guidance issued by European and International organisations.
United Nations Guiding Principles
The UN Guiding Principles on Business and Human Rights provided the first global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity, and they continue to provide the internationally-accepted framework for enhancing standards and practices with regard to business and human rights. Unanimously adopted by the Human Rights Council in June, they implement the "Protect, Respect, Remedy" framework with their "Three Pillar" structure:
- Pillar I: The State Duty to Respect
- Pillar II: The Business responsibility to Respect Human Rights
- Pillar III: Access to Remedy
Office of the High Commissioner for Human Rights
The Office of the UN High Commissioner for Human Rights (OHCHR) has numerous roles with respect to business and human rights.
The OHCHR has a mandate to lead the business and human rights agenda within the United Nations system, and, in collaboration with the Working Group on Business and Human Rights, to develop guidance and training relating to the dissemination and implementation of the UN Guiding Principles on Business and Human Rights.
Since 2014, the OHCHR has been conducting a major project, entitled the Accountability and Remedy Project, aimed at enhancing accountability and access to remedy in cases of business involvement in serious human rights abuse.
There are currently three phases of the Project:
- ARP I: Enhancing effectiveness of judicial mechanisms in cases of business-related human rights abuse
- ARP II: Enhancing effectiveness of State-based non-judicial mechanisms in cases of business-related human rights abuse
- ARP III: Enhancing effectiveness of non-State-based grievance mechanisms in cases of business-related human rights abuse
UN Working Group on Business and Human Rights
The Working Group on the issue of human rights and transnational corporations and other business enterprises (also referred to as the Working Group on Business and Human Rights) was established by the Human Rights Council in 2011. The Working Group is composed of five independent experts, of balanced geographical representation and has a mandate to:
- Promote the effective and comprehensive dissemination and implementation of the UN Guiding Principles on Business and Human Rights
- Identify, exchange and promote good practices and lessons learned on the implementation of the Guiding Principles
- Provide support for efforts to promote capacity-building and the use of the Guiding Principles
- Conduct Country visits
- Guide the work of the Forum on Business and Human Rights
Declaration of the Committee of Ministers on the UN Guiding Principles on business and human rights
In 2014 the Committee of Minisiters adopted the Declaration on the UN Guiding Principles on business and human rights, whereby it expressed its strong support for the implementation of the UN Guiding Principles by member States and called on them to:
- Take appropriate steps to protect against human rights abuses by business enterprises;
- Formulate and implement policies and measures to promote that all business enterprises respect human rights throughout their operations, within and beyond their national jurisdictions;
- Take appropriate steps to ensure that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy;
- Develop national action plans on the implementation of the UN Guiding Principles.
The Declaration was later followed by Recommendation (2016)3.
Recommendation CM/Rec (2016)3 of the Committee of Ministers to member states
The Recommendation CM/Rec(2016)3 of the Committee of Ministers to member states on Human Rights and Business aims to promote effective implementation of the UNGPs across the Council of Europe Region.
The Recommendation and its accompanying Explanatory memorandum provide guidance on measures that states should take to make human rights effective in the business sphere, and across relevant areas of government activity, such as company regulation, state owned enterprises and procurement, the court system, trade agreements, and investment promotion. The Recommendation also addresses measures to facilitate access to justice for victims of business related abuses via judicial and non-judicial remedy mechanisms. It further highlights additional steps required to protect the rights of specific groups including workers, human rights defenders, indigenous peoples, and children.
Key features of the Recommendation:
- Reaffirms the Committee of Ministers commitment to the effective implementation of the UNGP's at the European level.
- Calls on governments of member States to review their legislation and practice to ensure compliance with the Recommendation, and by reference the UNGPs.
- The appendix contains 70 paragraphs of further guidance and recommendations on implementing the UNGPs. This guidance pertains to each of the Pillars of the UNGPs alongside specific reference to the development of National Action plans.
- It outlines specific protections for workers, children, indigenous peoples, and human rights defenders
Parliamentary Assembly of the Council of Europe
In 2010 the Parliamentary Assembly of the Council of Europe (PACE) address the topic of Business and Human Rights and adopted Resolution 1757 (2010), where it called for legal vacuum in this this field to be filled. It therefore called on member States to foster accountability for corporate human rights conduct, legislate to protect individuals from corporate abuses of rights enshrined in the European Convention on Human Rights and in the revised European Social Charter and raise awareness of the Council of Europe’s standards among businesses.
Additionally, in its Recommendation 1936 (2010) the Assembly addressed a number of recommendations to the Committee of Ministers to promote corporate responsibility in the area of human rights. This lead to the development and adoption of the Committee of Ministers Recommendation (2016) 3 to Member States on human rights and business.
The Assembly has also dealt with specific issues related to the field of business and human rights:
- Resolution 1993 (2014) on “Decent work for all” addressed a number of issues related to employment conditions, and stressed that member States should strengthen the implementation of the European Social Charter as well as corporate social responsibility and ethics.
- the Assembly reaffirmed its commitment to end trade in goods used for capital punishment, torture or inhuman or degrading treatment or punishment in its Recommendation 2123 (2018) on “Strengthening international regulations against trade in goods used for torture and the death penalty”.
The Assembly continues its work in this field with a follow up report and has adopted Resolution 2311 (2019) calling on Council of Europe member States to take all the necessary measures to implement the UNGPs and the CM/Rec (2016) 3, including developing and sharing National Action Plans, and reviewing national legislation, practice, and policies to ensure compliance with the requirements stemming from the UNGPs and CM/Rec (2016)3.
European Court of Human Rights
The European Court of Human Rights has addressed several elements concerning Business and Human Rights, in particular questions arising from access to remedy. Equally the doctrine of positive obligations of States to secure rights under the European Convention on Human Rights to individuals from abuses by non-state actors has been held to apply to State failure to prevent harms to human rights by corporations.
The Council of Europe Handbook on Business and Human Rights offers a detailed look at the jurisprudence of the Court in this field.
A number of factsheets are also available covering the Court's case-law on a variety of relevant themes:
European Social Charter
The European Social Charter is a Council of Europe treaty that guarantees fundamental social and economic rights as a counterpart to the European Convention on Human Rights, which refers to civil and political rights. It guarantees a broad range of everyday human rights related to employment, housing, health, education, social protection and welfare. The European Social Charter was adopted in 1961, and the Revised European Social Charter was adopted in 1996 consolidating developments in Europe since the initial charter and incorporating new rights and amendments.
The Charter lays specific emphasis on the protection of vulnerable persons such as elderly people, children, people with disabilities and migrants. It requires that enjoyment of the above mentioned rights be guaranteed without discrimination.
The honouring of commitments entered into by the States Parties is subject to the monitoring of the European Committee of Social Rights through two mechanisms:
- national reports drawn up by States Parties; and
- for those States that have accepted the procedure, through collective complaints lodged by the social partners and other non-governmental organisations.
The European Committee of Social Rights issues Decisions and Conclusions in relation to these mechanisms. The Committee of Ministers can subsequently adopt Resolutions and Recommendations to ensure the follow-up of the conclusions and decisions adopted by the European Committee of Social Rights.
High-Level Seminar on Business and Human Rights
In 2016 the Steering Committee for Human Rights organised a High-Level Seminar to raise awareness about Recommendation (2016)3 and to explore multi-stakeholder approaches towards implementation challenges.
It brought together speakers from International and European Institutions, national governments, civil society and academia to share their experiences and discuss the way forward over three sessions:
- Assessing the need for strengthening the existing legal framework
- The Council of Europe’s contribution to the international legal framework
- A multi-stakeholder approach towards implementation challenges
HELP course on Business and Human Rights
The Human Rights for Legal Professionals (HELP) programme of the Council of Europe provides high-quality and tailor-made training tools to all European legal professionals to enhance their capacity to apply the European Convention on Human Rights in their daily work.
HELP Courses cover a wide range of thematic areas, and are a free and comprehensive resource for legal professionals, designed with their specific needs and professional schedules in mind.
The HELP Course on Business and Human Rights introduces participants to the existing international legal framework relevant to business and human rights, following the 3 Pillar Structure of the UN Guiding Principles; and explores the applicable jurisprudence of the European Court of Human Rights.
To access the course follow the link below and create a free HELP account.
Handbook for Legal Practitioners
Published in 2019, the handbook provides an introduction to the regional and international standards and mechanisms relevant to addressing business and human rights issues in Europe. It is intended to serve as a resource for legal practitioners, and others, across government, business, civil society, the media and in independent bodies, such as ombudsmen and national human rights institutions.
It follows the “3 Pillar” structure of the UN Guiding Principles, examining each pillar and related topics, and draws on Council of Europe instruments, jurisprudence of the European Court of Human Rights, and materials concerning international and other European regional standards, such as those of the United Nations and the European Union.
Additional Council of Europe Standards on Thematic Issues
Freedom of expression and internet policy:
- Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries
- Recommendation CM/Rec(2016)5 of the Committee of Ministers to member States on Internet freedom
- Recommendation CM/Rec(2016)1 of the Committee of Ministers to member States on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality
- Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users
- Recommendation CM/Rec(2012)4 of the Committee of Ministers to member states on the protection of human rights with regard to social networking services
- Recommendation CM/Rec(2012)3 of the Committee of Ministers to member states on the protection of human rights with regard to search engines
- Declaration by the Committee of Ministers on the manipulative capabilities of algorithmic processes, adopted 13 February 2019
- Declaration of the Committee of Ministers on ICANN, human rights and the rule of law, adopted on 3 June 2015
- Declaration of the Committee of Ministers on Risks to Fundamental Rights stemming from Digital Tracking and other Surveillance Technologies, adopted on 11 June 2013
- Declaration of the Committee of Ministers on the protection of freedom of expression and freedom of assembly and association with regard to privately operated Internet platforms and online service providers, adopted on 7 December 2011
- Declaration by the Committee of Ministers on the protection of freedom of expression and information and freedom of assembly and association with regard to Internet domain names and name strings, adopted on 21 September 2011
- Human Rights guidelines for Internet service providers and online games designers and publishers
Privacy and data protection:
- Convention 108+ Modernised Convention for the Protection of Individuals with Regard to the Processing of Personal Data
- Recommendation CM/Rec(2016)8 of the Committee of Ministers to the member States on the processing of personal health-related data for insurance purposes, including data resulting from genetic tests;
- Recommendation CM/Rec(2015)5 of the Committee of Ministers to member States on the processing of personal data in the context of employment and Explanatory memorandum;
- Recommendation CM/Rec(2010)13 of the Committee of Ministers to member states on the protection of individuals with regard to automatic processing of personal data in the context of profiling and Explanatory memorandum
- Recommendation No.R(2002) 9 on the protection of personal data collected and processed for insurance purposes and Explanatory memorandum
- Further guidelines of the Consultative Committee developed under the remit of Convention 108.
A Renewed EU Strategy 2011-14 for Corporate Social Responsibility
In 2011, the EU Commission adopted a renewed Strategy for Corporate Social Responsibility (CSR), which combined horizontal approaches to promote CSR with more specific approaches for individual sectors or policy areas such as environmental and trade policies, transparency reporting, public procurement, and a specific chapter on Business and Human Rights. Notably it also put forward a new definition of CSR as “the responsibility of enterprises for their impacts on society”, and contained an agenda for action comprising commitments from the Commission itself, as well as suggestions for enterprises, Member States, and other stakeholder groups.
Following up on its strategy, the Commission published a staff working document in March 2019 alongside a progress overview brochure, providing an overview of the Commission's and the European External Action Service's (EEAS) progress implementing CSR/RBC and business and human rights.
Non-Financial Reporting Directive
The non-financial reporting Directive (2014/95/EU) requires large public interest entities with over 500 employees (listed companies, banks, and insurance companies) to publish reports on the policies they implement in relation to:
- environmental protection
- social responsibility and treatment of employees
- respect for human rights
- anti-corruption and bribery
- diversity on company boards (in terms of age, gender, educational and professional background)
The Commission has further published non-binding guidelines to help companies disclose relevant non-financial information in a more consistent and more comparable manner, alongside supplemental guidelines on reporting climate-related information.
The European Union Agency for Fundamental Rights
FRA Opinion: Improving access to remedy in the area of business and human rights at the EU level (2017)
The European Union Agency for Fundamental Rights (FRA) was requested by the Council of the European Union for an expert opinion looking at possible avenues to lower barriers for access to remedy at the EU level.
The 2017 FRA Opinion covers the areas of judicial and non-judicial remedies, as well as issues related to their effective implementation. Based on the analysis of these three areas, 21 specific opinions are clustered under six headings:
- Lowering barriers to make judicial remedies more accessible
- Enhancing the effectiveness of judicial remedies – especially in extraterritorial situations
- Ensuring effective remedies through criminal justice
- Ensuring effective non-judicial remedies – state based and non-state based
- Implementing access to remedy – transparency and data collection
- Implementing access to remedy – action plans, coordination and due diligence
FRA's work in this area is being followed with a further study of corporate level grievance mechanisms.
Focus Paper: Business-related human rights abuse reported in the EU and available remedies (2019)
This focus paper presents preliminary findings from the first phase of FRA's research into access to effective remedies, which will be elaborated further in 2020. It gives an overview of select examples of business-related human rights abuse identified through the desk research, referring to the types of industry sectors involved and complaints mechanisms used.
The findings presented are linked to FRA’s previous work in this area, in particular its 2017 Opinion. The findings from the second phase of FRA’s research (interview based fieldwork) will be presented in 2020 in a separate report, which will be combined with results from the first phase.
The paper covers the following topics:
- Legal and policy context
- Incidents of business-related human rights abuse in EU Member States
- Summary and next steps
Guidelines for Multinational Enterprises
The OECD Guidelines for Multinational Enterprises are recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards.
The Guidelines were last updated in 2011 to include:
- A new human rights chapter, which is consistent with the UN Guiding Principles on Business and Human Rights.
- A new and comprehensive approach to due diligence and responsible supply chain management representing significant progress relative to earlier approaches.
National Contact Point system
Governments adhering to the OECD Guidelines are obliged to set up National Contact Points (NCPs) whose main role is to further the effectiveness of the Guidelines by:
- undertaking promotional activities to raise awareness of the Guidelines.
- handling enquiries about the Guidelines.
- Providing a grievance mechanism to resolve cases (known as "specific instances") arising from alleged non-observance of the Guidelines. This specific instances mechanism requires NCPs to provide a platform for discussion and assistance to stakeholders to help find a resolution for issues arising from the alleged non-observance of the Guidelines.
Due Diligence Guidance for Responsible Business Conduct
The OECD Due Diligence Guidance for Responsible Business Conduct provides practical support to enterprises on the implementation of the OECD Guidelines for Multinational Enterprises by providing plain language explanations of its due diligence recommendations and associated provisions.
Implementing these recommendations can help enterprises avoid and address adverse impacts related to workers, human rights, the environment, bribery, consumers and corporate governance that may be associated with their operations, supply chains and other business relationships. The Guidance includes additional explanations, tips and illustrative examples of due diligence.
The Guidance also seeks to promote a common understanding among governments and stakeholders on due diligence for responsible business conduct.
Due Diligence: Sector specific guidance
In order to promote the effective observance of the Guidelines, the OECD has developed sectoral guidance which helps enterprises identify and address risks to people, the environment and society associated with business operations, products or services in particular sectors. The sectoral guidance establishes a common understanding among governments, business, civil society and workers on due diligence for responsible business conduct, and can enable business to build supply chain resilience, manage uncertainty and drive long-term value.
Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy
The Tripartite declaration of principles concerning multinational enterprises and social policy (MNE Declaration) provides direct guidance to enterprises on social policy and inclusive, responsible and sustainable workplace practices.
Its principles are addressed to Multi National Enterprises, governments of home and host countries, and employers’ and workers’ organizations and cover areas such as employment, training, conditions of work and life, and industrial relations as well as general policies.
The Tripartite declaration was adopted in 1977 amended in 2017 to reflect new economic realities and to take into account developments, notably the adoption of the UN Guiding Principles
An self guided e-learning module module "Business and Decent Work: an introduction to the MNE Declaration" provides an overview of the principles of the MNE Declaration and includes real cases of how they can be put into practice to address a range of labour and employment issues in different contexts. It also provides a description of how the MNE Declaration relates to other international instruments such as the UN Guiding Principles.