Responsibilities to 'Protect' and to 'Respect': The Strengths and Weaknesses of the UN Guiding Principles on Business and Human Rights

The UN Guiding Principles on Business and Human Rights (UNGPs)—and the ‘protect, respect, remedy’ framework on which they are based—are explicitly framed as a consolidation and re-statement of existing international-legal responsibility standards. Despite this politically and practically sensible way of presenting the framework in order to generate consensus, the UNGPs actually contain elements that can be interpreted as innovative. In particular, they subtly push at the boundaries of what it has meant up until now in international practice to ‘protect’ and to ‘respect’ human rights. The responsibility to ‘protect’ human rights has been viewed as retrospective and third-party oriented. This can be seen in both the respect-protect-fulfil framework (developed in the 1980s in the context of practitioner work on the right to food) and in the more recently adopted ‘Responsibility to Protect’. The responsibility to ‘respect’ human rights has been understood as similarly retrospective, and as directly tied to the universal duty not to harm. By incorporating institutional elements into the duty to ‘protect’, and by incorporating a due diligence standard for corporate actors into the duty to ‘respect’, the UNGPs challenge both of these standard definitions. They do so in ways that may have progressive implications, and in ways that may be incorporated in the future into responsibility practices beyond business and human rights. The key weakness of the UNGPs is their lack of critical imagination when it comes to a re-interpretation of the meaning to ‘respect’ human rights. A responsibility to ‘respect’ people needs to mean much more than a responsibility to ‘do no harm’. Overall, the paper maps different ways that responsibility for human rights could be interpreted and put into practice, through the lens of an analysis of these strengths and weaknesses of the UNGPs.