HERRERA Ana Ruth, VORBECK Michael

Nowadays, it is clearer that the notion of “power” does not belong only to State authorities. Power, is understood as the ability to dispose of the means and to perform an action or interfere in the scope of another person; the degeneration of power, understood as the violation of the right of someone else, for example, by using physical, moral or economic force, which could be done by some enterprises.

In this regard, the United Nations Guiding Principles on Business and Human Rights(UNGPs) provide Human Rights Due Diligence by business. “Business enterprises should respect human rights” (Principle 11). However, in reality, there has been detected a lack of voluntary implementation, as exposed by the COVID-19 crisis where there were exposed once more the vulnerabilities in value chains, failures of global business operations and the weakness of corporate action operations in such matter. Or violations to the right to a family life, the rights of vulnerable groups such as indigenous communities, the right to a healthy environment, the right to safety, etc.

Rights could be affected by business because of their policies, practices, actions or omissions; so they should consider the risk of provoking or contributing to human rights violations, all this as a matter of compliance.

The UNGPs fundamental pillars are:

1. The State duty to protect human rights

2. The corporate responsibility to respect human rights

3. Access to remedy

What does it mean? Business should “avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur”; “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts”. Besides, business enterprises should comply with all applicable laws and respect internationally recognized human rights, wherever they operate.

Which business enterprises should respect human rights? All enterprises regardless of their size, sector, operational context, ownership and structure. Nevertheless, the scale and complexity of the means through which enterprises meet that responsibility may vary according to these factors and with the severity of the enterprise’s adverse human rights impacts. (Principle 14).

In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including  human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; and processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. The process should include assessing actual and potential human rights impacts. Business enterprises should track the effectiveness of their response based on appropriate qualitative and quantitative indicators.

In spite of the progress of UNGPs and other instruments such as the OECD Due Diligence Guidelines results are not even sufficient, and that is why several countries are anticipating mandatory human rights due diligence for business, with sanctions in this regard.

To be effective, it is advisable that such mandatory human rights due diligence goes beyond a mechanical tick box, it requires proactive meaningful engagement, transparency and disclosure, and effective liability provisions. There should be made a distinction between due diligence and auditors governed by standards of quality and integrity and legally liable for professional failures.

 States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.

Prevention is the best option, integrating into the corporate strategy the respect of human rights in a sustainable economy, which increases the confidence of investors and business partners, and reduces risks for all those involved in a global economy and the habitants of the world.