A/HRC/14/27
what is unique to human rights, the “protect, respect and remedy” framework lays out the
basic parameters of human rights due diligence. Because the process is a means for
companies to address their responsibility to respect human rights, it must go beyond simply
identifying and managing material risks to the company itself to include the risks a
company’s activities and associated relationships may pose to the rights of affected
individuals and communities.
82.
But one size does not fit all in a world of 80,000 transnational corporations, 10 times
as many subsidiaries and countless national firms, many of which are small- and mediumsized enterprises. The Special Representative’s aim is to provide companies with
universally applicable guiding principles for meeting their responsibility to respect human
rights, recognizing that the complexity of tools and processes companies employ, will
necessarily vary with circumstances.
83.
Considered in that spirit, human rights due diligence comprises four components: a
statement of policy articulating the company’s commitment to respect human rights;
periodic assessment of actual and potential human rights impacts of company activities and
relationships; integrating these commitments and assessments into internal control and
oversight systems; and tracking and reporting performance. Company-level grievance
mechanisms perform two functions: under the tracking and reporting component of due
diligence, they provide the company with feedback that helps identify risks and avoid
escalation of disputes; they can also provide remedy, as discussed in section IV. Each of
these components is essential. Without them, a company cannot know and show that it is
meeting its responsibility to respect rights.
84.
Merely having a set of components in place, however, is no guarantee that the
system will work. Accordingly, the Special Representative is also developing guidance
points for their implementation. One example is that companies must understand that the
responsibility to respect human rights is not a one-time transactional activity, but is ongoing
and dynamic. Another is for companies to accept that, because human rights concern
affected individuals and communities, managing human rights risks needs to involve
meaningful engagement and dialogue with them. A third is that, because a main purpose of
human rights due diligence is enabling companies to demonstrate that they respect rights, a
measure of transparency and accessibility to stakeholders will be required. The Special
Representative’s online consultation is exploring how to elaborate these components and
processes.
85.
This discussion of due diligence concludes with two provisos. One might be
described as “the dilemma of normalization”. Making human rights a standard part of
enterprise risk management should reduce the incidence of corporate-related human rights
harm. However, it could also give companies a false sense of security that they are
respecting rights if they lose sight of what makes rights unique. Human rights risk
management differs from commercial, technical and even political risk management in that
it involves rights-holders. Therefore, it is an inherently dialogical process that involves
engagement and communication, not simply calculating probabilities.
86.
The second proviso concerns the limits on what companies should expect to gain
from human rights due diligence in legal terms. Conducting due diligence enables
companies to identify and prevent adverse human rights impacts. Doing so also should
provide corporate boards with strong protection against mismanagement claims by
shareholders. In Alien Tort Statute and similar suits, proof that the company took every
reasonable step to avoid involvement in the alleged violation can only count in its favour.
However, the Special Representative would not support proposals that conducting human
GE.10-12629
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