Papers by Claire Methven O'Brien
National Action Plans (NAPs) on business and human rights are a burgeoning phenomenon. This short... more National Action Plans (NAPs) on business and human rights are a burgeoning phenomenon. This short article identifies NAPs as an important new business and human rights governance tool and presents a framework for evaluating their contribution to the advancement of respect for human rights in the business context. Section II of this article summarises NAPs developments to date and presents the pros and cons of NAPs. Section III evaluates published and in process NAPs according to six criteria: scope, content and priorities; baseline assessments; consulting stakeholders; transparency; accountability and resources. Concluding, Section IV highlights three elements that will be critical to the credibility of NAPs and their efficacy in promoting effective respect for human rights in the business context in the future. The article draws on the authors' development of influential guidance on NAPs published in 2014 and their experiences of supporting NAPs processes in a range of countries.
Abstract
Purpose – The purpose of this paper is to discuss a wide range of significant developmen... more Abstract
Purpose – The purpose of this paper is to discuss a wide range of significant developments that have emerged in the wake of the UNs endorsement of the Guiding Principles on Business and Human Rights (GPs) in June 2011. In particular, the paper offers a preliminary assessment of how the GPs’ corporate
responsibility to respect human rights has been interpreted and to what extent it has been operationalised through government action, business behaviour and the praxis of other social actors.
Design/methodology/approach – The paper provides a comprehensive assessment of a number of key developments related to Pillar 2 of the GPs – concerned with the corporate responsibility to respect human rights. More specifically, the paper considers a range of elements relating to corporate human rights due diligence, including: establishing a corporate human rights policy; the undertaking of human rights impact assessment; integrating findings of impact assessment, and; corporate human rights reporting.
Findings – Based on the assessment of recent developments and initiatives, the paper suggests that the corporate responsibility to respect human rights, as expressed in Pillar 2 of the GPs, embodies the culmination of significant progress in the sphere of corporate accountability. In doing so, the paper
documents a plethora of innovations in regulation and praxis, led by actors in government and the corporate sector, civil society organisations, labour unions and others, in the areas of human rights due diligence, impact assessment and reporting. Yet overall, change is slow and partial and the results
achieved are still unsatisfactory. Severe business-related human rights abuses remain endemic in many industry sectors and in many countries.
Research limitations/implications – The implementation of the GPs is at a key stage of development, with a multitude of initiatives and actors attempting to develop and influence new forms of corporate governance. This paper provides an overview and assessment of these key developments.
Originality/value – This paper provides an important assessment and synthesis of key developments related to corporate responsibility for human rights.
Keywords - Human rights, Supply chain, Impact assessment, Due diligence, Corporate accountability,
UN Guiding Principles on Business and Human Rights
Paper type - Conceptual paper
Human Rights Law Review, 2007
The dispersal of responsibility and procedural heterogeneity across a cohort of separate Committe... more The dispersal of responsibility and procedural heterogeneity across a cohort of separate Committees has been criticised as obstructing effective access and participation. 12 It has presented problems for civil society actors, such as non-governmental organisations (NGOs) operating at the ...
Drafts by Claire Methven O'Brien
The notion that states have extraterritorial human rights obligations is one basis upon which cal... more The notion that states have extraterritorial human rights obligations is one basis upon which calls are made for an international treaty on business and human rights. In particular, it has been claimed that “home” states of transnational corporations (TNCs) have a duty to protect against human rights abuses occurring on the territory of a “host” state that may be breached by a failure to regulate TNCs’ extraterritorial activities. At the same time, advocates of such a duty often criticise the UN Guiding Principles (UNGPs) for failing to reflect this obligation to its full extent.
This paper challenges the claim that such a home state duty to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist. Specifically, through a systematic analysis of principles and authorities relating to the various legal building blocks needed to get such a duty off the ground, it demonstrates that extraterritoriality advocates only appear to reach their desired conclusions because, at each step in their argument, the true position in existing international law is subtly misinterpreted or misrepresented. Incidentally, it is affirmed that the UNGPs’ evaluation of the status quo regarding states’ competence to regulate extraterritorially remains substantially a correct one.
The paper proceeds as follows. Section 2 summarises a sample of contributions by extraterritoriality advocates to convey the broad gist of their approach. Section 3 considers extraterritorial jurisdiction, its distinct meanings and foundations, firstly, in public international law, and secondly, in the norms and decisions of international and regional human rights regimes. Section 4 addresses principles of attribution and state responsibility in relation to the conduct of non-state actors. Section 5 considers the scope and limits of “positive obligations” to ensure the effective enjoyment of human rights, domestically and in the extraterritorial context, and as they may relate to the prevention of human rights abuses by transnational corporate actors. Section 6 concludes.
In many jurisdictions, 'core' public functions in such areas as criminal justice, healthcare, imm... more In many jurisdictions, 'core' public functions in such areas as criminal justice, healthcare, immigration and asylum, housing and social care are delivered by private or other non-state actors. This article argues that public procurement of such essential services, in particular through the mechanism of contracting-out or out-sourcing, lies within the scope of the state’s duty to protect human rights arising under international human rights instruments. The paper first argues for the relevance of human rights standards to public procurement, in particular the European Convention on Human Rights, with reference to jurisprudence of the European Court of Human Rights, and the UN Guiding Principles on Business and Human Rights. It then presents evidence of emerging recognition by human rights duty-bearers of their responsibilities in the area of public procurement in the form of measures taken by the Council of Europe and European Union on business and human rights, and national action plans on business and human rights developed by a number of European states. In closing, it highlights the need for consistency with this acknowledgment of states’ duties in the area of public procurement with regard to EU’s 2014 Public Procurement Directives, their implementation at national level in EU Member States, and the European Commission’s next policy on Corporate Social Responsibility.
Policy publications by Claire Methven O'Brien
SUBMISSION TO UN OPEN ENDED INTER-GOVERNMENTAL WORKING GROUP ON TRANSNATIONAL CORPORATIONS & OTHE... more SUBMISSION TO UN OPEN ENDED INTER-GOVERNMENTAL WORKING GROUP ON TRANSNATIONAL CORPORATIONS & OTHER BUSINESS ENTERPRISES WITH RESPECT TO HUMAN RIGHTS
This submission argues for a business and human rights framework convention, modelled after the WHO Framework Convention on Tobacco Control and focused on promoting progressive implementation of theUNGPs, including via National Action Plans on business and human rights (NAPs). The submission first outlines the positive factors favouring such an approach. Secondly, it provides a brief sketch of what such a business and human rights framework convention might look like. Finally, it highlights some of the drawbacks of alternative treaty models.
This tool provides guidance for companies on assessing their policies and processes as they relat... more This tool provides guidance for companies on assessing their policies and processes as they relate to the responsibility to respect and commitment to support children’s rights. It can be used to integrate child rights considerations into ongoing assessments of overall human rights impacts, as outlined in the United Nations Guiding Principles on Business and Human Rights. Specifically, it offers a number of criteria that companies can use both to review critical areas of potential or actual impact on children’s rights, and identify actions for improvement. Guidance on specific actions a company can take to address the identified risks to children is provided throughout the tool.
This report aims to support the development, implementation, and review of NAPs on business and h... more This report aims to support the development, implementation, and review of NAPs on business and human rights. It does so by providing a “NAPs Toolkit” that is intended to guide and assist governments and other actors in producing both National Baseline Assessments (NBAs) of current State implementation of the UNGPs and actual NAPs on business and human rights. It also presents a mapping and analysis of options at the international and regional levels for monitoring and review of NAPs once they are developed in order to optimize their value within and between countries as a means for improving governance, regulation, and, ultimately, respect for human rights
This report was written to serve as the Background Paper for the 14th Informal ASEM Seminar on Hu... more This report was written to serve as the Background Paper for the 14th Informal ASEM Seminar on Human Rights, organised by the Asia Europe Foundation, the Raoul Wallenberg Institute, the French Ministry of Foreign Affairs and International Development, the Philippine Department of Foreign Affairs and the Vietnamese Ministry of Foreign Affairs.
Its purpose is to give an overview of the topic of human rights and
business and to provide common foundations for discussion by participants during the 14th Informal ASEM Seminar on Human Rights.
Section 1 reflects on the evolution of the business and human rights field. Propelled by community mobilisation and networked social activism during the 1990s and 2000s, a proliferation of
transnational corporate accountability norms, standards and initiatives led ultimately to the endorsement of the UN Guiding Principles on Business and Human Rights in 2011. Section 1 then recalls some of the central principles and concepts of international human rights law most
relevant to area of business and human rights.
Section 2 relates developments with regard to business and human rights in the European and Asian regions respectively, including steps taken to implement the UN Guiding Principles specifically.
Section 3 addresses the four working group themes:
1. State duty to protect against human rights abuses by businesses
2. Corporate responsibility and its contribution to human rights implementation
3. Monitoring, reporting and access to remedies
4. Multi-stakeholder cooperation
The paper concludes by highlighting emerging issues that may influence the business and human agenda in the future.
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Papers by Claire Methven O'Brien
Purpose – The purpose of this paper is to discuss a wide range of significant developments that have emerged in the wake of the UNs endorsement of the Guiding Principles on Business and Human Rights (GPs) in June 2011. In particular, the paper offers a preliminary assessment of how the GPs’ corporate
responsibility to respect human rights has been interpreted and to what extent it has been operationalised through government action, business behaviour and the praxis of other social actors.
Design/methodology/approach – The paper provides a comprehensive assessment of a number of key developments related to Pillar 2 of the GPs – concerned with the corporate responsibility to respect human rights. More specifically, the paper considers a range of elements relating to corporate human rights due diligence, including: establishing a corporate human rights policy; the undertaking of human rights impact assessment; integrating findings of impact assessment, and; corporate human rights reporting.
Findings – Based on the assessment of recent developments and initiatives, the paper suggests that the corporate responsibility to respect human rights, as expressed in Pillar 2 of the GPs, embodies the culmination of significant progress in the sphere of corporate accountability. In doing so, the paper
documents a plethora of innovations in regulation and praxis, led by actors in government and the corporate sector, civil society organisations, labour unions and others, in the areas of human rights due diligence, impact assessment and reporting. Yet overall, change is slow and partial and the results
achieved are still unsatisfactory. Severe business-related human rights abuses remain endemic in many industry sectors and in many countries.
Research limitations/implications – The implementation of the GPs is at a key stage of development, with a multitude of initiatives and actors attempting to develop and influence new forms of corporate governance. This paper provides an overview and assessment of these key developments.
Originality/value – This paper provides an important assessment and synthesis of key developments related to corporate responsibility for human rights.
Keywords - Human rights, Supply chain, Impact assessment, Due diligence, Corporate accountability,
UN Guiding Principles on Business and Human Rights
Paper type - Conceptual paper
Drafts by Claire Methven O'Brien
This paper challenges the claim that such a home state duty to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist. Specifically, through a systematic analysis of principles and authorities relating to the various legal building blocks needed to get such a duty off the ground, it demonstrates that extraterritoriality advocates only appear to reach their desired conclusions because, at each step in their argument, the true position in existing international law is subtly misinterpreted or misrepresented. Incidentally, it is affirmed that the UNGPs’ evaluation of the status quo regarding states’ competence to regulate extraterritorially remains substantially a correct one.
The paper proceeds as follows. Section 2 summarises a sample of contributions by extraterritoriality advocates to convey the broad gist of their approach. Section 3 considers extraterritorial jurisdiction, its distinct meanings and foundations, firstly, in public international law, and secondly, in the norms and decisions of international and regional human rights regimes. Section 4 addresses principles of attribution and state responsibility in relation to the conduct of non-state actors. Section 5 considers the scope and limits of “positive obligations” to ensure the effective enjoyment of human rights, domestically and in the extraterritorial context, and as they may relate to the prevention of human rights abuses by transnational corporate actors. Section 6 concludes.
Policy publications by Claire Methven O'Brien
This submission argues for a business and human rights framework convention, modelled after the WHO Framework Convention on Tobacco Control and focused on promoting progressive implementation of theUNGPs, including via National Action Plans on business and human rights (NAPs). The submission first outlines the positive factors favouring such an approach. Secondly, it provides a brief sketch of what such a business and human rights framework convention might look like. Finally, it highlights some of the drawbacks of alternative treaty models.
Its purpose is to give an overview of the topic of human rights and
business and to provide common foundations for discussion by participants during the 14th Informal ASEM Seminar on Human Rights.
Section 1 reflects on the evolution of the business and human rights field. Propelled by community mobilisation and networked social activism during the 1990s and 2000s, a proliferation of
transnational corporate accountability norms, standards and initiatives led ultimately to the endorsement of the UN Guiding Principles on Business and Human Rights in 2011. Section 1 then recalls some of the central principles and concepts of international human rights law most
relevant to area of business and human rights.
Section 2 relates developments with regard to business and human rights in the European and Asian regions respectively, including steps taken to implement the UN Guiding Principles specifically.
Section 3 addresses the four working group themes:
1. State duty to protect against human rights abuses by businesses
2. Corporate responsibility and its contribution to human rights implementation
3. Monitoring, reporting and access to remedies
4. Multi-stakeholder cooperation
The paper concludes by highlighting emerging issues that may influence the business and human agenda in the future.
Purpose – The purpose of this paper is to discuss a wide range of significant developments that have emerged in the wake of the UNs endorsement of the Guiding Principles on Business and Human Rights (GPs) in June 2011. In particular, the paper offers a preliminary assessment of how the GPs’ corporate
responsibility to respect human rights has been interpreted and to what extent it has been operationalised through government action, business behaviour and the praxis of other social actors.
Design/methodology/approach – The paper provides a comprehensive assessment of a number of key developments related to Pillar 2 of the GPs – concerned with the corporate responsibility to respect human rights. More specifically, the paper considers a range of elements relating to corporate human rights due diligence, including: establishing a corporate human rights policy; the undertaking of human rights impact assessment; integrating findings of impact assessment, and; corporate human rights reporting.
Findings – Based on the assessment of recent developments and initiatives, the paper suggests that the corporate responsibility to respect human rights, as expressed in Pillar 2 of the GPs, embodies the culmination of significant progress in the sphere of corporate accountability. In doing so, the paper
documents a plethora of innovations in regulation and praxis, led by actors in government and the corporate sector, civil society organisations, labour unions and others, in the areas of human rights due diligence, impact assessment and reporting. Yet overall, change is slow and partial and the results
achieved are still unsatisfactory. Severe business-related human rights abuses remain endemic in many industry sectors and in many countries.
Research limitations/implications – The implementation of the GPs is at a key stage of development, with a multitude of initiatives and actors attempting to develop and influence new forms of corporate governance. This paper provides an overview and assessment of these key developments.
Originality/value – This paper provides an important assessment and synthesis of key developments related to corporate responsibility for human rights.
Keywords - Human rights, Supply chain, Impact assessment, Due diligence, Corporate accountability,
UN Guiding Principles on Business and Human Rights
Paper type - Conceptual paper
This paper challenges the claim that such a home state duty to regulate TNCs’ extraterritorial human rights impacts can be said currently to exist. Specifically, through a systematic analysis of principles and authorities relating to the various legal building blocks needed to get such a duty off the ground, it demonstrates that extraterritoriality advocates only appear to reach their desired conclusions because, at each step in their argument, the true position in existing international law is subtly misinterpreted or misrepresented. Incidentally, it is affirmed that the UNGPs’ evaluation of the status quo regarding states’ competence to regulate extraterritorially remains substantially a correct one.
The paper proceeds as follows. Section 2 summarises a sample of contributions by extraterritoriality advocates to convey the broad gist of their approach. Section 3 considers extraterritorial jurisdiction, its distinct meanings and foundations, firstly, in public international law, and secondly, in the norms and decisions of international and regional human rights regimes. Section 4 addresses principles of attribution and state responsibility in relation to the conduct of non-state actors. Section 5 considers the scope and limits of “positive obligations” to ensure the effective enjoyment of human rights, domestically and in the extraterritorial context, and as they may relate to the prevention of human rights abuses by transnational corporate actors. Section 6 concludes.
This submission argues for a business and human rights framework convention, modelled after the WHO Framework Convention on Tobacco Control and focused on promoting progressive implementation of theUNGPs, including via National Action Plans on business and human rights (NAPs). The submission first outlines the positive factors favouring such an approach. Secondly, it provides a brief sketch of what such a business and human rights framework convention might look like. Finally, it highlights some of the drawbacks of alternative treaty models.
Its purpose is to give an overview of the topic of human rights and
business and to provide common foundations for discussion by participants during the 14th Informal ASEM Seminar on Human Rights.
Section 1 reflects on the evolution of the business and human rights field. Propelled by community mobilisation and networked social activism during the 1990s and 2000s, a proliferation of
transnational corporate accountability norms, standards and initiatives led ultimately to the endorsement of the UN Guiding Principles on Business and Human Rights in 2011. Section 1 then recalls some of the central principles and concepts of international human rights law most
relevant to area of business and human rights.
Section 2 relates developments with regard to business and human rights in the European and Asian regions respectively, including steps taken to implement the UN Guiding Principles specifically.
Section 3 addresses the four working group themes:
1. State duty to protect against human rights abuses by businesses
2. Corporate responsibility and its contribution to human rights implementation
3. Monitoring, reporting and access to remedies
4. Multi-stakeholder cooperation
The paper concludes by highlighting emerging issues that may influence the business and human agenda in the future.