A/HRC/11/13
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36. As a next step, the Special Representative is exploring the feasibility of developing
guidance on “responsible contracting” for host Government agreements in relation to human
rights. As in the aforementioned Norwegian commentary concerning bilateral investment
treaties, such guidance would have to satisfy two equally important objectives, safeguarding the
host State’s ability to discharge its obligations, including those under international human rights
law, and giving investors confidence that the host State will not act in a discriminatory or
arbitrary manner or for non-bona fide purposes.
37. The Special Representative has not yet undertaken corresponding projects on trade. But he
continues to consult experts extensively on whether and how the trade regime may constrain or
facilitate the State duty to protect.37
C. International cooperation
38. The Human Rights Council asked the Special Representative to provide recommendations
regarding “international cooperation” in relation to the State duty to protect. As he understands
the term in the business and human rights context, this involves States working together through
awareness-raising, capacity-building and joint problem-solving. Several factors currently limit
the achievement of these aims.
39. First, States are not using existing forums as effectively as they could to enhance peer
learning with respect to the State duty to protect in the business context. These forums include
the treaty bodies, the Human Rights Council’s Universal Periodic Review, National Contact
Points under the OECD Guidelines, and regional human rights mechanisms. No serious
intergovernmental dialogue on these issues is evident in international trade and financial
institutions, with the exception of the IFC and OECD, in part reflecting the involvement of
private sector actors.
40. The Special Representative continues his outreach efforts within and beyond the
United Nations human rights mechanisms - to date, the treaty bodies and special procedures,
regional human rights entities, national human rights commissions, the World Bank,
UNCITRAL, OECD, the European Commission and Parliament, and national Governments. He
welcomes additional opportunities.
41. Beyond dialogue and learning lies State capacity-building. But business and human rights
is not high on the capacity-building agenda of most international and bilateral agencies. The ILO
is a notable exception regarding labour rights, and some bilateral development agencies support
CSR programmes in developing countries. OHCHR only within the past year has begun to
consider including business and human rights in its capacity-building work at the country level,
but this is not yet a priority.
37
The Committee on Economic, Social and Cultural Rights, for example, has expressed
concern about the potential adverse impact of trade agreements on Covenant obligations
(C.12/CRI/CO/4/CRP.1, para. 42).
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