7
Commentary
States individually are the primary duty-bearers under international human
rights law, and collectively they are the trustees of the international human
rights regime. Where a business enterprise is controlled by the State or
where its acts can be attributed otherwise to the State, an abuse of human
rights by the business enterprise may entail a violation of the State’s own
international law obligations. Moreover, the closer a business enterprise is
to the State, or the more it relies on statutory authority or taxpayer support,
the stronger the State’s policy rationale becomes for ensuring that the
enterprise respects human rights.
Where States own or control business enterprises, they have greatest
means within their powers to ensure that relevant policies, legislation
and regulations regarding respect for human rights are implemented.
Senior management typically reports to State agencies, and associated
government departments have greater scope for scrutiny and oversight,
including ensuring that effective human rights due diligence is implemented.
(These enterprises are also subject to the corporate responsibility to respect
human rights, addressed in chapter II.)
A range of agencies linked formally or informally to the State may
provide support and services to business activities. These include export
credit agencies, official investment insurance or guarantee agencies,
development agencies and development finance institutions. Where these
agencies do not explicitly consider the actual and potential adverse impacts
on human rights of beneficiary enterprises, they put themselves at risk – in
reputational, financial, political and potentially legal terms – for supporting
any such harm, and they may add to the human rights challenges faced by
the recipient State.
Given these risks, States should encourage and, where appropriate,
require human rights due diligence by the agencies themselves and by
those business enterprises or projects receiving their support. A requirement
for human rights due diligence is most likely to be appropriate where the
nature of business operations or operating contexts pose significant risk to
human rights.