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Davis, Rachel --- "Protect, Respect and Remedy': Working to Integrate the Rights and Concerns of Indigenous Peoples into a New UN Framework on Business and Human Rights" [2009] IndigLawB 30; (2009) 7(13) Indigenous Law Bulletin 21

‘Protect, Respect and Remedy’: Working to Integrate the Rights and Concerns of Indigenous Peoples into a New UN Framework on Business and Human Rights

By Rachel Davis.

The potentially negative, as well as positive, human rights impacts of companies on individuals and communities are well-known by those who have experienced them directly. The last few decades have witnessed an increasing number of efforts aimed at ensuring that business and markets thrive, but in a socially sustainable way. This short article looks at the most recent development at the international level, the mandate of the UN Special Representative on Business and Human Rights, which is gradually encouraging a shared determination among all key stakeholders – states, companies and civil society – to move forward in addressing the challenges inherent in the ‘business and human rights’ sphere using a common framework. In particular, it explores ongoing efforts to integrate the rights and experiences of Indigenous peoples into this framework, and the recent interaction between the Special Representative’s mandate and the UN Permanent Forum on Indigenous Issues.

A UN Mandate on Business and Human Rights
In 2005, the UN Commission on Human Rights asked Secretary-General Kofi Annan to appoint a Special Representative on the issue of business and human rights. Annan asked John Ruggie, a Professor at Harvard Kennedy School and former UN Assistant Secretary-General, to take up the post. Professor Ruggie’s appointment has continued under the current Secretary-General, Ban Ki-Moon.[1]

From his first report in 2006 onwards,[2] the Special Representative has argued that the governance gaps created by globalisation – between the scope and impact of economic forces and actors on the one hand, and the capacity of societies to manage their adverse consequences on the other – have led to a permissive environment in which companies can negatively impact human rights without adequate sanction or reparation. In his third report in June 2008, he proposed a conceptual and policy framework to advance the business and human rights agenda.[3] The framework rests on three pillars:

• first, the state duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication;
• second, the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing on the rights of others; and
• third, greater access to effective remedy, both judicial and non-judicial, for affected individuals and communities.

The Human Rights Council (which succeeded the Commission on Human Rights) unanimously welcomed the ‘protect, respect and remedy’ framework – the first time that a UN intergovernmental body has endorsed a substantive policy position on this issue. Leading international human rights organisations such as Amnesty International reacted positively to the framework, and it was welcomed by the major international business associations, including the International Organisation of Employers and International Chamber of Commerce, and by industry groups like the International Council of Mining and Metals.[4]

A number of states also responded positively at the national level to the new UN framework. In Australia, a Senate motion took note of the ‘protect, respect and remedy’ framework and called on the Australian Government to ‘encourage Australian companies to respect the rights of members of the communities in which they operate and to develop rights-compliant grievance mechanisms, whether acting in Australia or overseas’.[5]

The Human Rights Council extended the Special Representative’s mandate for another three years until June 2011, tasking him with ‘operationalising’ the framework to provide ‘practical recommendations’ and ‘concrete guidance’ to states, businesses and other social actors. I work as part of a team of advisors supporting the Special Representative in his ongoing efforts to develop guiding principles in the business and human rights realm.

The Three Pillars of the ‘Protect, Respect and Remedy’ Framework
The first pillar of the new UN framework – the state duty to protect – is grounded in international human rights law. Most states have adopted core human rights standards, but there is still considerable domestic legal and policy incoherence as governments continue to confine issues, including human rights, within individual departments or bureaucratic ‘silos’, disconnected from other relevant policy areas. Not surprisingly, this incoherence is then replicated at the international level at the UN, and various international financial and trade institutions. The Special Representative has urged governments to drive the business and human rights agenda into those domestic policy areas that most directly shape business practices, including corporate law, export credit and insurance, and investment and trade agreements.[6]

At the international level, he has called for enhanced cooperation between so-called ‘home states’ (where companies are headquartered) and ‘host states’ (where companies operate) to better protect rights, including in challenging environments like conflict affected areas. The Special Representative has pointed out that governments need to reconsider the assumption that companies invariably prefer, or benefit from, state inaction rather than action. Where companies are facing difficult, politically charged situations (not only those involving open conflict), they are even more in need of governmental guidance to manage the risks involved.[7]

The second pillar of the framework, the corporate responsibility to respect rights, is based on the near-universal social recognition that companies should not infringe on the rights of others. This responsibility is the baseline norm for all companies in all situations, and it applies to the entire spectrum of internationally recognised rights (to the extent that they are capable of application between private actors). The Special Representative has recommended that companies should put in place a process of ongoing ‘human rights due diligence’ to become aware of, prevent, and mitigate adverse human rights impacts.[8] This due diligence process has four core elements:

• the company should have a human rights policy in place;
• it should conduct ‘human rights impact assessments’ in relation to planned and ongoing activities, which should include engagement with affected stakeholders;
• the company should integrate those values and findings into its corporate culture and its management systems; and
• it should track and report on performance against identified human rights criteria.

Without access to effective remedy, which is the framework’s third pillar, the rights of affected individuals and communities would be rendered weak or even meaningless. For states, this means enforcing and encouraging corporate compliance with relevant laws and standards and ensuring that there is a robust and accessible system of state-supported judicial and non-judicial remedies in place for affected individuals and communities to turn to. However, significant legal and practical barriers to accessing effective judicial remedies persist, especially for foreign claimants, and the Special Representative is identifying those that are particularly salient for victims of corporate-related human rights abuses, as well as strategies to reduce them.

As part of their responsibility to respect, companies need to put in place, or ensure that there is access to, effective grievance mechanisms at the operational level to help resolve problems before they escalate. The Special Representative has proposed a set of principles for effective company grievance mechanisms, which are currently being piloted with a number of major companies, including two projects in the extractive sector: the Shell Sakhalin II project in Russia, and Cerrejon Coal – a joint venture between AngloAmerican, BHP Billiton and Xstrata – in Colombia. There is an ongoing need for further improvement, shared learning and innovation in this area. The Special Representative has launched a global ‘wiki’ – an interactive online forum for sharing information about non-judicial mechanisms that address disputes between companies and their external stakeholders – which he hopes will contribute to this process.[9]

Integrating the Rights and Concerns of Indigenous Peoples
In May this year, the UN Permanent Forum on Indigenous Issues convened for two weeks at UN Headquarters in New York for its eighth annual session. I delivered a statement on behalf of the Special Representative on the first day of the Forum to an audience of about 1,000 assembled representatives of Indigenous peoples, states, NGOs, UN agencies and other interested observers.[10]

The statement made clear that, in operationalising the three pillars of the ‘protect, respect and remedy’ framework, the Special Representative considers it important to better understand the particular position and experiences of Indigenous peoples. In relation to the first pillar, states have clear duties to protect their rights under regional and international human rights treaties. In a series of reports to the Human Rights Council, the Special Representative reviewed guidance provided by the relevant human rights treaty bodies, commissions and courts about how these state duties may operate in the context of corporate-related human rights abuse.[11] He has also referred to other key international instruments that specifically address Indigenous peoples, including the Indigenous and Tribal Peoples Convention (ILO Convention No 169) and of course the recent UN Declaration on the Rights of Indigenous Peoples – which many Indigenous individuals and groups worked so hard to see come to pass.[12]

In relation to the corporate responsibility to respect, the Special Representative has consistently said that in projects affecting Indigenous peoples, companies should consider additional standards that are specific to those communities. In 2007, he held a consultation in Colombia focused on how companies can maintain their social license to operate with regard to local communities, particularly Indigenous peoples. He has been following the ongoing work of the Permanent Forum on these issues,[13] as well as that of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples, Professor James Anaya, and related UN initiatives.[14]

In his ongoing work on access to remedy, the Special Representative is considering how the failure to adequately protect the rights of Indigenous peoples in national laws can impact upon their ability to access remedy for corporate-related abuse. He also hopes to explore, with expert input, successful approaches to dispute resolution between Indigenous communities and companies, encompassing both judicial and non-judicial elements.

In its final report, the Permanent Forum gave its support to the ‘protect, respect and remedy’ framework.[15] It also supported the Special Representative’s broader efforts to urge states to integrate human rights into those areas that most affect business practices, and to encourage companies to adopt meaningful human rights due diligence processes.[16] The Permanent Forum agreed that, in order to ensure access to remedy, states and companies need to take the kinds of measures noted above, and supported the Special Representative’s work in seeking to identify, and propose ways to address, continuing legal and practical barriers.[17]

Over the course of his mandate, the Special Representative has sought to adopt an evidence-based, consultative approach. He has welcomed submissions on his work from civil society, and benefited from the constructive involvement of a wide range of participants in multi-stakeholder consultations on five continents, including representatives of Indigenous communities.[18] He continues to welcome such input, including from those most directly affected by corporate-related harm. I invite interested ILB readers to explore his website[19] or to contact me directly about these issues.

Going Forwards: Practical Recommendations and Concrete Guidance
The Special Representative recently made a submission to the Australian National Human Rights Consultation in which he observed that successfully addressing business and human rights challenges ‘requires all actors to rethink long-held assumptions which are at best outdated and at worst plain wrong’, particularly in light of the current financial and economic crisis. He stressed the general need ‘for a smarter mix of measures—national and international, mandatory and voluntary, if all actors are to get on with the practical problem solving needed’[20] in this sphere.

The international community is still in the early phases of adapting the human rights regime to provide more effective protection to individuals and communities against corporate-related harm. The ‘protect, respect and remedy’ framework proposed by the Special Representative and endorsed by the Human Rights Council provides a common platform for advancing the business and human rights agenda. States, companies, and broader society – including, of course, Indigenous peoples – all have an important role to play in making this happen.

Rachel Davis is a Legal Advisor to the Special Representative of the UN Secretary-General on Business and Human Rights and a Research Fellow at the Corporate Social Responsibility Initiative at Harvard Kennedy School. She holds a BA/LLB from UNSW and LLM from Harvard Law School. She can be reached at


[1] Materials relating to the SRSG’s mandate are available on his website,
<> .
[2] See SRSG, Interim Report (2006), UN Doc No E/CN.4/2006/97,
<> .
[3] See SRSG, Protect, Respect and Remedy: A Framework for Business and Human Rights (2008), UN Doc No A/HRC/8/5, available at <> .
[4] See SRSG, Business and Human Rights: Towards Operationalizing the ‘Protect, Respect and Remedy’ Framework (2009), UN Doc No A/HRC/11/13, paras 3-5,
<> .
[5] Commonwealth, Senate Official Hansard (No. 6 2008) 23 June 2008, 3037-3038: <> .
[6] SRSG, above n 3, paras 33-42.
[7] Ibid, paras 43-49.
[8] Ibid, paras 56-64.
[9] Business and Society Exploring Solutions – A Dispute Resolution Community at <>. It is currently available with English, French, Spanish, Chinese, Korean, Japanese and Russian portals; Arabic is under development.
[10] SRSG, Statement to the United Nations Permanent Forum on Indigenous Issues (2009), available at
<> .
[11] See the SRSG’s collection of UN Treaty Body reports at
<> .
[12] See SRSG, State Obligations to Provide Access to Remedy for Human Rights Abuses by Third Parties, Including Business: An Overview of International and Regional Provisions, Commentary and Decisions (Addendum to 2009 Report) (2009), UN Doc No A/HRC/11/13/Add.1, paras 60-63,
<> .
[13] Such as the recent International Expert Group Meeting on Extractive Industries, Indigenous Peoples’ Rights and Corporate Social Responsibility in Manila, Philippines, 27-29 March 2009.
[14] Such as the International Workshop on Natural Resource Companies, Indigenous Peoples and Human Rights convened by the Office of the High Commissioner for Human Rights in Moscow, Russia, 3-4 December 2008.
[15] Permanent Forum on Indigenous Issues, Report on the Eighth Session (2009), UN Doc No E/2009/43, para 12.
[16] Ibid, paras 13-15.
[17] Ibid, para 16.
[18] Reports in English on each of these consultations are available on the SRSG’s website: see SRSG, above n 1.
[19] Ibid.
[20] SRSG, Submission to Australian National Human Rights Consultation Committee (2009), <> .

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