A/HRC/11/13
page 17
types of inclusive business models. These are worthy endeavours that may contribute to the
enjoyment of human rights. But what it is desirable for companies to do should not be confused
with what is required of them. Nor do such desirable activities offset a company’s failure to do
what is required, namely to respect human rights throughout its operations and relationships.
63. Operating conditions may impose additional requirements on companies, for example, the
need to protect employees in conflict affected areas, or from violence in the workplace. But this
is more appropriately considered a specific operationalization of the responsibility to respect, and
not a separate responsibility altogether.
64. More than respect may be required when companies perform certain public functions. For
example, the rights of prisoners do not diminish when prisons become privatized. Here,
additional corporate responsibilities may arise as a result of the specific functions the company is
performing. But it remains unclear what the full range of those responsibilities might be and how
they relate to the State’s ongoing obligation to ensure that the rights in question are not
diminished.
65. Beyond such situations, the picture becomes even murkier. A number of additional factors
have been proposed for attributing greater responsibilities to companies. They include power,
influence, capacity, and the notion that companies are “organs of society”. While such factors
may impose certain moral obligations on any person or entity, including business, they are
highly problematic bases for assigning responsibilities to companies beyond respecting all rights
at all times, for reasons the Special Representative elaborated in previous reports.45
International standards and national law
66. One of the toughest dilemmas companies face is where national law significantly
contradicts and does not offer the same level of protection as international human rights
standards. National authorities may demand compliance with the law, while other stakeholders
may advocate adherence to international standards, as might the company itself, for reasons of
principle or simple consistency of policy.
67. Where the country is under United Nations sanctions, or where the possibility exists of the
company becoming complicit in international crimes committed by others, a company’s own due
diligence should generate warning signs or even flashing red lights. But the majority of cases do
not fall into these categories, leaving companies caught in the middle unless they find ways to
honour the spirit of international standards without violating national law.
68. Companies have grappled with this dilemma in relation to freedom of association. Some
have encouraged workers to form their own representation within the company and facilitated
elections of workers’ representatives. Efforts have also been made to provide education on
labour rights and train local management on how to respond constructively to worker grievances.
45
See E/CN.4/2006/97, paras. 66-68, and A/HRC/8/5, paras. 65-72.
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