A/HRC/11/13
page 7
rights requires protection by States against other social actors, including business, who impede or
negate those rights. Guidance from international human rights bodies suggests that the State duty
to protect applies to all recognized rights that private parties are capable of impairing, and to all
types of business enterprises.21
14. The State duty to protect is a standard of conduct, and not a standard of result. That is,
States are not held responsible for corporate-related human rights abuse per se, but may be
considered in breach of their obligations where they fail to take appropriate steps to prevent it
and to investigate, punish and redress it when it occurs.22 Within these parameters, States have
discretion as to how to fulfil their duty. The main human rights treaties generally contemplate
legislative, administrative and judicial measures. The treaty bodies have recommended to States
such measures as adopting anti-discrimination legislation governing employment practices;
consulting with communities before approving mining and logging projects; monitoring and
addressing the human rights impacts of such projects; and encouraging businesses to develop
codes of conduct that include human rights.
15. The extraterritorial dimension of the duty to protect remains unsettled in international law.
Current guidance from international human rights bodies suggests that States are not required to
regulate the extraterritorial activities of businesses incorporated in their jurisdiction, nor are they
generally prohibited from doing so provided there is a recognized jurisdictional basis, and that an
overall test of reasonableness is met. Within those parameters, some treaty bodies encourage
home States to take steps to prevent abuse abroad by corporations within their jurisdiction.23
16. There are also strong policy reasons for home States to encourage their companies to
respect rights abroad, especially if a State itself is involved in the business venture - whether as
owner, investor, insurer, procurer, or simply promoter. Such encouragement gets home States out
measures to “eliminate” abuse by private “enterprises”. The International Convention on the
Elimination of All Forms of Racial Discrimination requires that States parties “shall prohibit and
bring to an end … racial discrimination by any persons, group or organization”. The Convention
on the Elimination of All Forms of Discrimination against Women requires States parties “to
take all appropriate measures to eliminate discrimination against women by any person,
organization or enterprise”. In the International Covenant on Economic, Social and Cultural
Rights, States parties undertake “to take steps … achieving progressively the full realization of
rights”, while its rights-specific provisions, such as those dealing with labour, refer to States
“ensuring” those rights.
21
See A/HRC/8/5/Add.1 for a summary of the Special Representative’s research on the
United Nations human rights treaties and treaty body commentaries.
22
Corporate acts may be directly attributed to States in some circumstances, for example where
a State exercises such close control that the company is its mere agent.
23
E.g. CERD/C/USA/CO/6 (2008), para. 30; CESCR general comment 19 (2008), para. 54.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents