Business responsibility in respecting, protecting and promoting human rights

Author:Alvera Cojocarescu
Pages:48-58
SUMMARY

Being in constant development, both human rights and business, have increased the state's efforts to act against human rights abuses. Businesses should be aware of new regulations in force on protecting, respecting and promoting human rights and apply them in order to exist a good cohabitation between business enterprises and human rights. The involvement of state is by sowing the enterprises how to respect human rights through corporate social responsibility and sustainable development.

 
CONTENT
48 ALVERA COJOCĂRESCU
BUSINESS RESPONSIBILITY IN RESPECTING,
PROTECTING AND PROMOTING HUMAN RIGHTS
Alvera COJOCRESCU
ABSTRACT
Being in constant development, both human rights and business, have increased the state's
efforts to act against human rights abuses. Businesses should be aware of new regulations in force on
protecting, respecting and promoting human rights and apply them in order to exist a good
cohabitation between business enterprises and human rights. The involvement of state is by sowing
the enterprises how to respect human rights through corporate social responsibility and sustainable
development.
Key-words: respect, protect, promote, guiding principles on business and human rights,
sustainable development.
JEL codes: K29, K33,K42
1. Responsibility of Businesses in Protecting Human Rights
1.1. Frame of reference
In 2005, it was created post of UN special envoy for human rights in relation to
multinationals, which Special Representative launched a comprehensive process
documentation and international consultation on the position of the parties in the
matter, the views of governments, organizations and international funds, on
regulations and best practices at national level on proposals or regulatory
approach for the future.
"The protection, respect and remedy1 the UN on business and human rights,
and document implementation of this framework were developed by John Ruggie
– Harvard professor, Special Representative of the Secretary-General of the United
Nations business and human rights – and they have been submitted to the UN
Council for human rights in June 2008, with a report focused on three pillars: the
PhD student, SNSPA, Legal counselor S.G.G.
1 Report of Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie, „Protect, Respect and
Remedy: a Framework for Business and Human Rights”, informaie preluat de pe site – ul
http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf
Law Review vol. VI, special issue, December 2016, p. 48-58
Business responsibility in respecting, protecting… 49
state's obligation to protect human rights, the responsibility of business to respect
human rights and access to effective remedies for human rights violations.
In 2011 it was adopted the Framework for Implementation Report of the
United Nations Guiding Principles on Business Environment and Human Rights.
The guiding principles approved by the United Nations, covering three different
levels, but independent: the state's obligation to act against human rights abuses by
third parties, including business, through appropriate policies and regulations, the
responsibility of business to respect human rights acting with caution to avoid
infringement of others and the need for greater access by victims to effective means
of remedy, judicial and non-judicial.
These principles establish clear expectations of what governments and firms
should do to ensure that human rights are not affected by business activities
(business).
On June 16, 2011, the UN Human Rights Council adopted Guiding Principles
on Business and Human Rights, in order to implement the "Framework for
protection, respect and remedy" of the UN, proposed by the Special Representative
of the UN John Ruggie.
Also on 17 June 2011, Commission Vice-President Antonio Tajani, approved
new principles of the United Nations on human rights and business, establishing
procedures to ensure that the activities of the State and organizations not affect
human rights.
Antonio Tajani made statements regarding new principles of the United
Nations' approval Hi UN principles on the rights of business directories and
human rights. Many European companies are world leaders in terms of human
rights and played a constructive role in the work of Professor John Ruggie. United
Nations principles is an important reference for its policy on corporate social
responsibility that we expect organizations to adopt this year. We look forward to
cooperating with businesses, Member States of the European Union and with
stakeholders and international partners in order to implement United Nations
principles in business and human rights. "
The European Commission has published two requests for technical advice for
developing a more detailed guide for companies and human rights prepared in
accordance with United Nations principles. The guide will be designed for small
and medium enterprises as well as 3 other industrial sectors will be identified in
2012.
1.2. Fundamental concepts
1.2.1. Key concepts2
The actual impact of human rights refers to negative or positive impact of
human rights that has already taken place or will take place.
2 http://www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf.
50 ALVERA COJOCĂRESCU
The negative impact of human rights occurs when an action eliminates or
reduces an individual's ability to enjoy human rights.
Business relations refers to those relationships a business has with business
partners, entities in its value chain, and any other state or non-state entity directly
related to business operations, products or services. They include indirect business
relationships in its value chain, beyond the first level, and the majority and
minority positions in combination package.
Complicity has both legal and non-legal meanings. As a legal matter, most
national laws prohibit complicity in the commission of an offense, and a certain
number of enterprises allow criminal liability in such cases. Weight jurisprudence
in international criminal law and indicates that the relevant standard for aiding
and abetting "provision of practical assistance knowingly or encouragement that
has a substantial effect on the commission of an offense". Example of "complicity"
non-legal person may be situations where a business of a company is seen to
benefit from abuses by others, such as when the costs are reduced due to practices
of slavery in its supply chain or not to speak against abuse related to its own
operations, products or services, despite the fact that they have the main reasons
for it to do so. Even if companies have not yet found an accomplice of a court of
law for this type of involvement in abuses, public opinion sets the bar lower and
cause significant costs on them. Human rights due diligence process should
uncover risks of non-legal and legal complicity and generate appropriate
responses.
Due diligence represent background check due diligence has been defined as
"such a measure of prudence, activity or assiduity, as expected adequately to be,
and usually exercised in a reasonable and prudent [of a person] in the
circumstances, is not measured by any absolute standard, but depending on the
facts relative special case "0.4 in the context of the guiding principles, human rights
due comprises a management process underway, which prudent and reasonable
enterprise must take, depending on its circumstances (including sector, operating
context, size and similar factors) to meet their responsibility to respect human
rights.
Serious human rights abuses. There is no uniform definition of serious
violations of human rights in international law, but generally include the following
practices: genocide, slavery and practices similar to slavery, summary or arbitrary
executions, torture, enforced disappearances, arbitrary detention and prolonged,
systematic discrimination. Other violations of human rights, including economic,
social and cultural rights can also be considered as grave breaches if they are
serious and systematic, for example, violations that occur on a widespread or
targeted to particular groups population.
Human rights and international crimes. Some of the most serious violations of
human rights may constitute international crimes. International crimes defined by
the states under the Rome Statute of the International Criminal Court. They are
Business responsibility in respecting, protecting… 51
genocide ( "acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group "), crimes against humanity (systematic and
widespread attacks against civilians including murder, enslavement, torture, rape,
persecution, discrimination etc.), war crimes (as defined by international
humanitarian law) and crimes of aggression.
Human rights risk in a business enterprise refers to all those whose operations
could lead to one or more adverse effects on human rights. Therefore, they relate to
the potential impact on human rights. Traditionally, evaluation of risk factors in
both consequences of an event, severity and probability are considered. In this
context the predominant factor is severity. Probability can be relevant in order to
facilitate prioritization of the potential impact is addressed in certain circumstances
(see severe impact on human rights below). Risks human rights in a company are
those whose human rights are affected. These are different from whatever involve
risks that impact human rights to be raised, although they are closely related.
Leverage. Leverage is an advantage that gives power to influence. In the
context of the guiding principles, refers to a company's ability to perform change in
illicit practices of others that causes or contributes to an adverse impact on human
rights.
Mitigate the negative impact on human rights relates to actions taken to reduce
any residual impact development what then should be addressed. Mitigation
human rights relates to actions taken to reduce the likelihood of a certain negative
impact.
The provenance of negative impact on human rights relates to actions taken to
ensure that such impact does not occur.
Remedy/cure. Troubleshoot and remedy refers both to remedy assurance
processes for adverse impact of human rights and substantive outcomes that can
counteract, or improve the impact. These results can take several forms, such as an
apology, restitution, rehabilitation, compensation of financial or non-financial
sanctions repressive (either criminal or administrative, such as fines), and to
prevent harmful effects such as orders or guarantees of non-repetition.
The most important human rights human rights of a business enterprise
involving exposure are most at risk. This typically varies by sector and operating
context. Guiding Principles clarify that an enterprise should not focus exclusively
on the most important issues on human rights and ignore others that may arise.
But the most important rights logically be those that focus its primary efforts.
Severe impact on human rights guiding principles defines severe impact of
human rights with reference to its scale, scope and character irreparably. This
means seriousness and number of persons who are or will be affected (eg., the
lagged effects of environmental damage) are both relevant considerations.
"Iremediabilitatea" is the third relevant factor used here to mark any
limitations regarding the ability to restore those affected by a situation at least as,
or equivalent to their situation before the impact. For these purposes, financial
compensation is only relevant insofar as it can provide such a restoration.
52 ALVERA COJOCĂRESCU
Stakeholder involvement/consultation. Stakeholder involvement or consultation
here refers to a continuous process of interaction and dialogue between a company
and stakeholders that may be affected, which enables the company to acknowledge,
understand and respond to the interests and concerns, including through
approaches collaboration.
A Value chain of the enterprise value chain includes activities that transform
inputs into finished items through value addition. This includes entities that have a
direct or indirect business relationship and provide products or services or supply
products or services that contribute to the company's own or receive products or
services from the company.
2. Guiding Principles on Business Environment and Human Rights
2.1. Interpretation and description of John Ruggie principles based on the
three pillars
Guiding Principles on Business and Human Rights Framework to implement
the "Protect, respect and remedy" of the United Nations are divided into three
pillars. In total it is a total of 31 guiding principles which Professor John Ruggie
presented and analyzed them in two works and "Guiding Principles on Business
and Human Rights" and "The Corporate Responsibility to Respect Human
Rights".3
According to Professor John Ruggie, the principles are grounded in
recognition on: The obligation to respect, protect and promote human rights and
fundamental freedoms role of business enterprises as specialized organs of society
fulfilling specialized functions which must comply with all applicable laws and to
respect human rights şiNecesitatea rights and obligations to be adapted to
appropriate and effective remedies when they have been violated
As shown, the principles are based on three pillars
The following will be presented in detail these principles, developing ideas
that tries to be implemented through them. Also to be shown their importance in
terms of the future "cohabitation" business and human rights. Not least, they will
propose ways that can be remedied certain shortcomings in the implementation of
these principles.
To them, the starting point is the very document produced by John Ruggie and
"Guiding Principles on Business and Human Rights". They will be listed and
depth, taking into account the specificities of each pillar.
3 Report of SRSG “Guiding principles on Business and Human Rights: implementing the U nited
Nations “Protect, Respect and Remedy Framework”, A/HRC/8/5, (7 april 2008), informaie preluat
de pe site-ul http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_
EN.pdf
Business responsibility in respecting, protecting… 53
2.2. State's obligation to protect human rights4
This pillar is composed of a total of ten principles divided into basic principles
and operational principles. Note that this pillar is based on the state's obligation to
promote, protect and respect human rights in the territory and/or jurisdiction of,
to protect them against abuses by third parties, including to business.
a) Fundamentals
1. States must protect against human rights abuses in the territory and/or
jurisdiction, by third parties, including businesses. This requires appropriate
measures to prevent, investigate, punish and remedy such abuses, through
policies, laws, regulations effective.
2. States should establish clearly the expectation that all enterprises established
in the territory and/or jurisdiction respect human rights throughout their
activities.
b) Operational Principles
3. In order to fulfill their duty to protect human rights, states should:
implement laws aimed or which may affect, requiring companies to respect human
rights, and periodically assess the adequacy of these laws and make known the
gaps, to ensure that laws and policies governing the creation and continued
operation of enterprises, such as corporate law, not constrain, but allow human
rights by businesses; provide guidance efficient businesses about how they respect
human rights throughout their activities, encourage, and where necessary to
require businesses/enterprises to communicate how they address and the impact
they have on human rights.
4. States should take additional measures to protect against human rights
abuses by enterprises that are owned or controlled by the state or who receive
substantial support and service from state agencies such as export credit agencies
and investment insurance agencies or agencies guarantors, including where
appropriate, by requiring human rights through diligence.
5. States should exercise appropriate supervision in order to fulfill
international obligations on human rights when contracting with or legislate for,
business enterprise to provide services that can have impact on the exercise of
human rights.
6. States should promote respect for human rights among enterprises
performing commercial transactions.
7. Because the risk of serious human rights abuses is heightened in
conflict-affected areas, states should help ensure that companies operating in these
contexts are not involved in such abuses, including: employment as early as
possible together with businesses to help them identify, prevent and mitigate risks
4 Report of SRSG “Guiding principles on Business and Human Rights: implementing the U nited
Nations “Protect, Respect and Remedy Framework”, A/HRC/8/5, (7 april 2008), informaie preluat
de pe site-ul http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_
EN.pdf
54 ALVERA COJOCĂRESCU
related to human rights activities and their business relationships; providing
appropriate assistance to businesses to assess and address the increased risk of
abuses, paying special attention to both sexual violence and gender-based violence;
denial of access to public support and services, a company that is involved in
serious abuses of human rights and refusing to cooperate in resolving the situation;
ensuring that current policies, legislation, regulations and enforcement measures
are effective in addressing business risk of involvement in human rights abuses.
8. Member States should ensure that government departments, agencies and
other basic state institutions forming business practices are aware, though notes in
her area of human rights obligations of the State, in fulfilling mandates, including
by providing relevant training and support.
9. States should maintain adequate domestic policy space to meet their
obligations in human rights when doing business policy objectives with other
countries and companies, for example through investment treaties or contracts.
10. States when acting as members of multilateral institutions dealing with
issues related to business should be: to ensure that these institutions nor restrict
their ability of Member States to fulfill their duty to protect nor prevent enterprises
to respect human rights; to encourage these institutions, within their respective
mandates and respective capacities, to respect the business environment for
human rights and, where appropriate, to help States to fulfill their duty to protect
abuses enterprises, to human rights, including through technical assistance,
capacity building and raising their insist on these guiding principles to promote
common understanding and international cooperation advanced business
management and human rights challenges in her area.
Romania has felt the need for regulations to develop and boost private
initiative by legislation drafted immediately after 1990 with the passage of the
arrangement form of socialist capitalist economy based on market principles. By
Law no. 26/1990 was set up the National Trade Registry Office as the single record
of economic and adoption in the same year the Law no. 31 make possible the
establishment of companies and the establishment of a true single market
principles of supply and demand autoguveranate. The subsequent emergence of
cooperatives complement regulations Law that creates the legal framework of
economic development by introducing new forms of organization of capital.
Although covering the relevant legislation can not anticipate all situations that
may arise in litigious nature market, but trade in a role it has determined contract
value of law of the parties. Commercial type contracts have become common
practice both between operators and between companies and the beneficiary
population.
Disputes arising from the implementation of these trade agreements are
decided by panels of commercial law. Labor disputes also exist specialized sections
who strive to maintain the balance human rights relative to the business
environment and the impact that they might have in the business.
Business responsibility in respecting, protecting… 55
2.3. The responsibility of business to respect human rights5
This pillar is composed of a set of 14 principles, further divided into basic
principles and operational principles. Responsibility of business to respect human
rights, Professor John Ruggie gives an interpretative guide in developing each
principle so that after deepening guide these principles can be applied accordingly.
a) Fundamentals
11. Companies should respect human rights. This means that they should
avoid violation of human rights of others and should address adverse human
rights with which they are involved.
12. Corporate social responsibility to respect human rights refers to
internationally recognized human rights - understood, at least as shown in the
International Bill of Human Rights and the principles concerning fundamental
rights enshrined in the Declaration on Principles and International Labour Rights
fundamental at Work.
13. The responsibility to respect human rights requires businesses: avoid
causing or contributing to the impact they have negative effects on human rights
through their own activities, and announce such impacts when they occur; and try
to prevent or mitigate the impacts they have negative effects on human rights,
which are directly linked to their operations, their products or services by their
business relationships, even if they have not contributed to those impacts.
14. Corporate social responsibility to respect human rights applies to all
businesses, whatever their size, sector, operational context, ownership and
structure. However, scale and complexity of the means by which companies meet
their responsibilities may vary depending on these factors and the severity of the
negative impact of businesses on human rights.
15. In order to fulfill the responsibility to respect human rights, enterprises
should implement policies and procedures appropriate to their size and
circumstances, including: a political commitment to meet the responsibility to
respect human rights; a human rights process to identify, prevent, reduce and
account for how they address their impact on human rights; processes to remedy
any adverse impact on human rights that could cause or contribute.
b) Operational Principles
16. As a basis for the integration of their responsibility to respect human rights,
enterprises should express their commitment to fulfill their responsibility through
a policy statement that: it is approved at the highest level of the enterprise, it is
informed by expertise relevant internal and/or external; provides expectations of
the human rights of company staff, business partners and other parties directly
related to operations, products or services, is publicly available and communicated
5 Report of SRSG “Guiding principles on Business and Human Rights: implementing the U nited
Nations “Protect, Respect and Remedy Framework”, A/HRC/8/5, (7 april 2008), informaie preluat
de pe site-ul http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_
EN.pdf
56 ALVERA COJOCĂRESCU
internally and externally to all personnel at partners of business and other relevant
parties; reflected in the policies and operational procedures necessary to embed it
throughout the business enterprise.
17. In order to identify, prevent, or reduce how they address their negative
impact on human rights, enterprises should carry out human rights due diligence.
The process should include assessing actual and potential human rights impacts,
integrating and acting results, following responsibilities and communicating how
impacts are addressed. Human rights checked beforehand: should cover the
negative effects on human rights, which the business enterprise may cause or
contribute to through its own activities or that may have a direct connection with
operations, products or services through relationships its business will vary in
complexity with the size of the enterprise, risk severe impact on human rights in
the context of its operations, should be ongoing, recognizing that the risks of
human rights can change over time as why the company operations and operating
context evolve.
18. In order to assess the risks to human rights, companies should identify and
assess any actual or potential negative impact on human rights to which they may
be involved either by its own activities or as a result of their business relationships.
This percentage should: rely on the expertise of internal and/or external
independent human rights; to involve meaningful consultation with potentially
affected groups and other relevant stakeholders, depending on company size, and
the nature and context of the operation.
19. In order to prevent and mitigate adverse human rights impacts, enterprises
should integrate the results of their evaluations on relevant internal functions and
processes and take appropriate measures: effective understanding which involves:
- responsibility for addressing such impacts is assigned to an appropriate level
and function within the enterprise and internal decision making, budget
allocations and oversight processes enable effective responses to such impact.
Appropriate measures for this prevention will vary depending on:
i) whether the business enterprise causes or contributes to the negative impact,
or if involved only because the impact is directly related to operations, products or
services of a business relationship;
ii) its degree of influence in addressing negative impacts.
20. In order to verify the adverse effects of human rights are addressed,
enterprises should follow the effectiveness of their response. Tracking should: be
based on qualitative and quantitative appropriate, to rely on sources both internal
and external sources, including affected parties concerned.
21. In order to take account of their impact approach to human rights, business
enterprise should be prepared to communicate this externally, particularly when
concerns are raised by or on behalf of affected stakeholders. Businesses whose
operations or operating contexts pose a risk of serious human rights should report
formally on how they solve. In all cases, the communications would sport must be
Business responsibility in respecting, protecting… 57
a form and frequency that reflect the company's impact on human rights and be
accessible to the public desired, to provide information that is sufficient to assess
the adequacy of the response undertaking impact on human rights involved to not
pose risks to affected stakeholders, personnel or to legitimate requirements of
commercial confidentiality.
22. If the business now realizes that caused or contributed to the negative
impacts, should provide or cooperate in their remediation through legitimate
processes.
23. In all contexts, enterprises should: comply with all applicable laws and
internationally recognized human rights wherever they operate, to seek ways to
honor the principles of internationally recognized human rights when faced with
conflicting demands; treat risk of causing or contributing to human rights abuses
as a matter of legal compliance, regardless of where they operate.
24. Where it is necessary to prioritize actions to eliminate actual and potential
negative effects on human rights, businesses should seek primarily to prevent and
mitigate the most severe or if a late response they would do irreparable.
The issue of business responsibility to respect human rights reflected through
with the consequences in labor relations, regulations concerning the security,
health and consumer protection aspects are dealt with in a more developed.
2.4. Access to means of remedying human rights violations6
And this pillar, like those that preceded them, is composed of core principles
and operational principles, in total seven.
In this part, Professor John Ruggie analyzes as announced title, ways and
means to protect against human rights abuses, measures that can be taken in this
regard on a legal, judicial or administrative, or any other appropriate ways to stop
this phenomenon.
a) Fundamentals
25. As part of their duty to protect against business abuses of human rights,
states should take appropriate measures to ensure, by means Juridical
administrative, legislative or otherwise, that when such abuses occur within
and/or their jurisdiction those affected have access to effective remedies.
b) Operational Principles
26. States should take appropriate measures to ensure the effectiveness of
domestic judicial mechanisms when addressing human rights violations by
businesses including considering ways to reduce legal obstacles, practical and
relevant others that may lead to a denial access to remedy.
6 Report of SRSG “Guiding principles on Business and Human Rights: implementing the U nited
Nations “Protect, Respect and Remedy Framework”, A/HRC/8/5, (7 april 2008), informaie preluat
de pe site-ul http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_
EN.pdf
58 ALVERA COJOCĂRESCU
27. States should ensure non-judicial mechanisms effective and appropriate
grievance alongside judicial mechanisms, as part of a complete system based on
the state to address human rights abuses caused by businesses.
28. States should consider ways to facilitate access to effective mechanisms for
claiming non- member dealing with the harmful effects it has on the human rights
business.
29. To make it possible for grievances to be addressed early and remediated
directly, enterprises should establish or participate in effective grievance
mechanisms at operational level for individuals and communities who may be
affected adversely.
30. Industry and other interested happen more collective initiatives that are
based on human rights standards should ensure that effective grievance
mechanisms are available.
31. To ensure their effectiveness, non-judicial grievance mechanisms, both
state-based and those that are not based on states, should be: legitimate – enabling
trust from stakeholder groups to whose use intended and is responsible for the
proper conduct of grievance processes; available – is known to all stakeholder
groups for whose use intended, and providing adequate assistance to those who
may face special barriers of access predictable – delivering the one clear and
known, with a time frame indicated for each stage and being clear about the types
of process and outcome available and means of monitoring implementation, fair –
trying to ensure that aggrieved parties have reasonable access to sources of
information, advice and expertise to engage in a process of grievance fair, deferent
and informed, transparent – keeping the parties informed on a complaint, on
advancement and providing sufficient information to perform at the mechanism,
to build confidence in its effectiveness and to perform any public interest in the
game, compatible with the right – ensuring some results and remedies in
accordance with international acknowledged human rights; a source of lifelong
learning – based on relevant measures to identify lessons for improving the
mechanism and prevent future complaints or injury;
Mechanisms at operational level should be also based on commitment and
dialogue – in consultation with stakeholder groups for whose use are designed in
their design, and focusing on dialogue as a means to address and resolve
grievances.