Seven Questions to Help Determine When a Company Should Remedy Human Rights Harm under the UNGPs

Authors

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  Jonathan Drimmer

  Senior Advisor, BSR

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  Jonathan Drimmer

  Senior Advisor, BSR

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  Jonathan Drimmer is a partner in the Washington, D.C. office of Paul Hastings LLP, where he focuses on cross-border compliance, enforcement and disputes. He is a recognized international expert in anti-corruption compliance as well as business and human rights.

  He most recently was the deputy general counsel and chief compliance officer at Barrick Gold Corporation, the world’s largest gold mining company, where he helped oversee the company’s anti-corruption and human rights programs, global investigations, and major disputes. Before Barrick, he was a partner at Steptoe & Johnson LLP and was deputy director in the U.S. Justice Department’s Office of Special Investigations. 

  He is a former Bristow Fellow in the Office of the U.S. Solicitor General and a former judicial clerk on the U.S Court of Appeals for the Ninth Circuit. He has testified twice before the U.S. Congress, and for the past 19 years, he has taught courses related to international humanitarian law at Georgetown University Law Center. He is a strategic advisor to the Secretariat of the Voluntary Principles on Security and Human Rights and an advisor to the ISR Committee of the Mining Association of Canada. He serves on the boards of directors of the UN Global Compact’s Canada Network, Transparency International Canada, Fund for Peace, and the TRACE Foundation. He is on the steering committee of the UN Global Compact Business for Peace Initiative, on the expert advisory board for the US OECD National Contact Point, on the faculty of Competent Boards, and he is a subject matter expert at Canada’s Centre for Excellence on Anti-Corruption. 

  Among his awards and recognitions are the Charles Fahy Award for teaching at Georgetown and the first U.S. Department of Justice Assistant Attorney General Award for Human Rights Law Enforcement. He has repeatedly been recognized by Ethisphere Magazine as one of the world’s leading attorneys in Ethics and Compliance, has been identified by the National Law Journal as a Regulatory and Compliance Trailblazer, was named by The Law 500 as one of the 100 most influential in-house counsel in both the United States and in Canada, and was recognized as one of the top 100 in-house counsel in the world by Legal Era.  He graduated from Stanford University and UCLA Law School.

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Peter Nestor, Head of Human Rights, Novartis

How far must a company go to address adverse human rights impacts with which they are involved?

The actions that a company must take to prevent, mitigate, and remedy adverse human rights impacts—what the UN Guiding Principles on Business and Human Rights (UNGPs) call “appropriate actions”—depend on the company’s connection to that impact. The UNGPs provide a framework for assessing this, often called the cause/contribute/directly linked framework. According to the UNGPs, the appropriate actions that companies must take to prevent and mitigate human rights abuses will vary according to “[w]hether the business enterprise causes or contributes to an adverse impact, or whether it is involved solely because the impact is directly linked to its operations, products or services by a business relationship.” The determination of appropriate actions also varies according to “the extent of [the company’s] leverage in addressing the adverse impact,” as indicated by Principle 19.

Assessing attribution—that is, whether the business has caused, contributed, or is directly linked to an adverse impact through their business relationships—is the first step toward determining appropriate actions to prevent and mitigate human rights abuses and provide remedy where relevant. In fact, the forward-looking nature of human rights assessments, followed by appropriate actions to prevent and mitigate human rights abuses, is one of the most powerful tools companies have available to ensure respect for human rights.

Practically speaking, how can companies determine whether they have caused, contributed, or are directly linked to an adverse impact through their business relationships? A new white paper from BSR Senior Advisor Jonathan Drimmer and Novartis Head of Human Rights and former BSR Human Rights Director Peter Nestor explores seven questions to help companies determine their connection to negative impacts and how to reframe these questions to identify appropriate actions to prevent and mitigate potential adverse human rights impacts that may occur in the future.