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contracts or other formal agreements can play an important role in requiring or
creating incentives for those other parties to respect human rights. Moreover, if
these provisions have been put in place, the ability of the enterprise to leverage
appropriate behaviour by that other party is increased.
Indeed, if a new activity or project will be governed by a negotiated contract
with external parties, early communication between the staff that draw up the
contract, those departments that will be involved in its execution and those
that have oversight of human rights issues, can help to prevent problems later
on. If a contract locks in terms that increase human rights risks or constrain the
enterprise’s ability to address them, the enterprise places in jeopardy its own
capacity to meet its responsibility to respect human rights.
That said, concluding terms of contract that require or incentivize respect for
human rights when, in fact, there is no reasonable evidence that the other party
is both willing and able to meet the requirements renders this less meaningful
both as a preventive mechanism and in terms of leverage, and leaves the
enterprise exposed to human rights risks. (See box 4 for more on Principles for
Responsible Contracts with regard to State-investor contracts.)
Q 46. What kinds of action need to be considered in response
to human rights risks that are identified?
As the commentary to Guiding Principle 19 explains, “where a business
enterprise causes or may cause an adverse human rights impact, it should take
the necessary steps to cease or prevent the impact”. Where it contributes or
may contribute to such an impact, it should similarly take action to cease or
prevent the contribution, and also use its leverage to mitigate any remaining
impact (by other parties involved) to the greatest extent possible. In this context,
“leverage” means the ability to effect change in the wrongful practices of the
party that is causing or contributing to the impact (see box 6). In both these
cases, additional action will be required to enable remediation, which is
addressed under Guiding Principle 22.
The more complex situation is where an enterprise identifies a risk of adverse
human rights impact linked to its operations, products or services and caused by
a party with which it has a business relationship. In this situation, the enterprise
has the least direct control or influence over whether that impact occurs.
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