The Major Flaw of The UN Guiding Principles on Business and Human Rights

The UN Guiding Principles on Business and Human Rights (“UNGPs”), passed unanimously in June of 2011, are a set of guidelines for States and Companies to prevent, address, and remedy human rights abuses committed in business operations.[1] These guiding principles center around three pillars – the State’s duty to “protect” human rights, the Corporation’s duty to “respect” human rights, and access to “remedy” for victims of business-related abuses.[2] The UNGP “proposed a transparent and participatory due diligence process to identify, prevent, mitigate, cease, and account for actual and potential adverse human rights impacts in global operations, supply chains and business relationships of companies,”[3] and was a major achievement in combating business-related human rights abuse.

However, the lack of consequences for non-compliance continues to be a major obstacle to achieving the UNGPs desired goals.[4] Because the third pillar – remedy – is implemented by each State[5], the UNGPs “can only work if governments want them to.”[6] In countries “where corporate abuse often occurs, victims can face barriers associated with weak rule of law and corruption.”[7]

In 2021, the UN released the “UNGPs 10+” roadmap in an effort to bolster and strengthen the UNGPs.[8] The UNGPs 10+ “elaborates on the priority goals connected to each action area, setting out what needs to happen over the next decade to scale up UNGPs integration and implementation and corresponding supporting actions to be taken by States and businesses.”[9]

            However, the UNGPs 10+ does little to plug the issues with the third “remedy,” pillar. It initiates a single new “goal” for the “remedy” pillar.[10] This “goal” is a call for corporations, States, civil society organizations, and human rights defenders to continue to create and implement both judicial and non-judicial systems to achieve this third pillar.[11] Missing are concrete plans to enforce the UNGPs in areas of the world where the local government is either unable or unwilling to create and enforce these systems.

            One potential avenue to continue building the strength of the third “remedy” pillar of the UNGPs is to increase the UNGPs’ use by both judicial and quasi-judicial bodies on both international and national stages. Currently, the UNGP is rarely referenced in Courts. “However, the absence of direct references to the UNGPs by judicial and quasi-judicial bodies does not mean that the principles are being ignored.”[12] In fact, over the past several years, there has been a “growing use of UNGPs by international bodies and tribunals” and an “increasing number of complaints in which the UNGPs have been used as a reference point by applicants and courts.”[13] Increasing reference to and use of UNGPs in judicial and quasi-judicial bodies will further integrate and legitimize the UNGPs into the global community bloodstream. The more the UNGPs are integrated and legitimized by the majority of the world, the more pressure will come to bear on the pockets of the global community that do not enforce these guidelines. Therefore, international and national judicial and quasi-judicial bodies should continue to increase their use of the UNGPs.

Patrick Windels is a staff member of Fordham International Law Journal Volume XLVIII.

[1] UN Guiding Principles, Bus. & Hum. Rts. Res. Ctr. (Nov. 7, 2024), https://www.business-humanrights.org/en/big-issues/governing-business-human-rights/un-guiding-principles.

[2]  Id.

[3] Justice Delayed: 10 Years of UN Guiding Principles, Eur. Coal. for Corp. Just. (June 16, 2021), https://corporatejustice.org/news/justice-delayed-10-years-of-un-guiding-principles/.

[4] Id.

[5] Gwynne Skinner, Robert McCorquodale, & Olivier De Schutter, The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Business, Eur. Coal. for Corp. Just., at 5 (Dec. 2013).

[6] European Coalition for Corporate Justice, supra note 3.

[7] Id.

[8] UNGPs 10+ A Roadmap for the Next Decade of Business and Human Rights, UN Working Grp. on Bus. and Hum. Rts. (Nov. 2021), https://www.ohchr.org/sites/default/files/2021-12/ungps10plusroadmap.pdf.

[9] Id. at 1.

[10] Id. at 6.

[11] Id. at 30-34.

[12] Debevoise & Plimpton, UN Guiding Principles on Business and Human Rights at 10, 14 (last visited Nov. 7, 2024) https://www.debevoise.com/-/media/files/insights/publications/2021/06/full-report.pdf.

[13] Id. at 15.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.