A/HRC/11/13
page 8
of the untenable position of being associated with possible overseas corporate abuse. And it can
provide much-needed support to host States that lack the capacity to implement fully an effective
regulatory environment on their own.
17. States have long been aware of the range of measures required of them in relation to abuse
by State agents. Moreover, most States have adopted measures and established institutions in
certain core areas of business and human rights, such as labour standards and workplace
non-discrimination. But beyond that, the business and human rights domain exhibits
considerable legal and policy incoherence, as discussed in the Special Representative’s 2008
report.
18. There is “vertical” incoherence, where Governments sign on to human rights obligations
but then fail to adopt policies, laws, and processes to implement them. Even more widespread is
“horizontal” incoherence, where economic or business-focused departments and agencies that
directly shape business practices - including trade, investment, export credit and insurance,
corporate law, and securities regulation - conduct their work in isolation from and largely
uninformed by their Government’s human rights agencies and obligations.
19. Domestic policy incoherence is reproduced at the international level. This results in
ambiguous and mixed messages to business from Governments and international organizations.
20. Recent legal and policy developments begin to address some of the challenges. In previous
reports, the Special Representative noted four significant legal developments: the growing
international harmonization of standards for international crimes that apply to corporations under
domestic law, largely as a by-product of converging standards applicable to individuals; an
emerging standard of corporate complicity in human rights abuses; the consideration by some
States of “corporate culture” in deciding criminal responsibility or punishment; and an increase
in civil cases brought against parent companies for their acts and omissions in relation to harm
involving their foreign subsidiaries.24
21. In the policy realm, a growing number of States are adopting corporate social
responsibility (CSR) policies.25 They vary in content and form, but generally encourage
responsible business practices, including fostering business understanding of and respect for
human rights. In some cases, access to official assistance, such as export credit or investment
insurance, may be linked to companies having a CSR policy, participating in the United Nations
Global Compact, or confirming their awareness of the OECD Guidelines.
22. The Special Representative considers it important for all stakeholders, including
Governments, to learn more about these policy developments and how they may contribute to
24
25
A/HRC/4/35, paras. 19-32; A/HRC/8/5, paras. 31 and 90; A/HRC/8/16.
Many OECD countries have such policies. Elements can also be found in Brazil, China,
Indonesia and elsewhere.
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