도서출판 세창출판사

As the process of globalization has accelerated in the 1990s, the international community has increasingly preoccupied itself with the negative impacts that those fast-paced globalizing processes have had on the enjoyment of human rights. Considering that one distinctive feature of globalization is the exponential growth of corporate power that has far-reaching implications for human rights, it has every reason to pay increased attention to the need to address the impacts of corporate activities on the enjoyment of human rights, in particular those negative ones. As such, the international community has responded to such a need focusing its attention on how not only to clarify the Statc obligations to respect, protect and fulfil human rights in relation to business activities, but also to clarify the content of the Corporate responsibility and/or to establish the Corporate obligation to respect human rights at the international level, notably that of transnational corporations that have been increasingly implicated in human rights violations.'

-서문중에서

Introduction_13

Part 1: _Fundamentals of the “State Obligation” to Respect, Protect and Fulfil
Human Rights in Relation to Business Activities and the “Corporate
Responsibility” to Respect Human Rights_19

Chapter 1: Legal Bases_19
A. Legal Bases _27
I. International Human Rights Norms and Standards_27
1. The Universal Declaration of Human Rights_29
2. International Treaties_33
a. International Covenant on Economic, Social and Cultural Rights_35
b. International Covenant on Civil and Political Rights_39
c. Other Conventions_41
3. Customary International Law_43
4. Ius Cogens_46
5. General Principles of International Law_47
6. _Standards (Combination/Zebra Standards) on
Business and Human Rights_49
B. Interim Conclusions_52

Chapter 2: Dichotomy Between Obligation and Responsibility_57
A. The State Obligation to Protect_58
I. Treaty Provisions_60
II. Required Measures_64
1. Monitoring_64
2. Regulation_66
3. Adjudication_67
a. Investigation_68
b. Prosecution_68
c. The right to remedy_69
d. Reparation_70
4. Promotional Measures_70
B. The Corporate Responsibility to Respect_71
I. The Definition_73
II. Human Rights Due Diligence_74
C. Interim Conclusions_84

Part 2: Interpretative Guidance by UN Treaty Bodies_89

Chapter 3: Interpretative Guidance of Various Treaty Bodies_89
A. Main Functions of Treaty Bodies_89
B. General Comments_93
C. Concluding Observations_108
D. Interim Conclusions_112

Chapter 4: _General Comments on State Obligations under the International
Covenant on Economic, Social and Cultural Rights in the Context
of Business Activities_115
A. State Obligations_121
I. Obligations of Non-discrimination_121
II. _Specific Obligations Linked to Business Activities, Including
Extraterritorial Obligation_123
1. Obligation to respect_125
2. Obligation to protect_128
3. Obligation to fulfil_134
B. Remedies _135
I. General Principles_136
II. Types of remedies_138
C. Interim Conclusions_141

Part 3: Voluntary vs. Legally Binding Approach_148

Chapter 5: _Existing International Voluntary Guidelines on Business and
Human Rights_148
A. OECD Guidelines for Multinational Enterprises_151
I. Main content_153
II. Enforcement mechanisms_155
B. _ILO Tripartite Declaration of Principles Concerning Multinational
Enterprises and Social Policy_160
I. Main content_162
II. Enforcement mechanisms_166
C. The UN Guiding Principles on Business and Human Rights_168
I. The State Duty to Protect_175
1. Foundational Principles_175
2. Operational Principles_177
II. The Corporate Responsibility to Respect_178
1. Foundational Principles_179
2. Operational Principles_181
III. Access to Remedy_182
1. Foundational Principle_182
2. Operational Principles_183
a. State-based judicial mechanisms_183
b. State-based non-judicial grievance mechanisms_184
c. Non-state-based grievance mechanisms_184
d. Effectiveness criteria_185
D. Interim Conclusions_187

Chapter 6: _Global Efforts to Impose Direct Obligation on Companies to Respect
Human Rights_194
A. The Norms on Human Rights Responsibilities of Companies_194
I. General and Specific Obligations_196
II. General Provisions of Implementation_199
B. The United Nations Human Rights Council Treaty-Making Process_200
I. The Evolutionary Trajectory_200
1. Business Enterprises as Subject of International Law_207
II. _The UN Human Rights Council Open-Ended Intergovernmental
Working Group on Transnational Corporations and Other Business
Enterprises with Respect to Human Rights_213
1. Scope of Application_217
a. Transnational Corporations vs. All Businesses_217
b. Extraterritorial Obligation_221
c. Direct Obligation_226
2. Form and Content _231
a. An Overarching General Framework Convention_231
b. _Thematically focused Individual Conventions or an Optional
Protocol to an Existing Human Rights Agreement_233
3. Possible Elements_234
a. Definition of Legal Responsibilities_238
b. Human Rights Due Diligence_239
c. Monitoring and Implementation Mechanisms_241
d. Extraterritorial Obligation_243
e. _Relationship Between the Future Treaty and Trade and
Investment Agreements_244
4. The Added-Value_247
a. Codification and Clarification_247
b. Establishment of International-level Enforcement Mechanisms_248
C. Interim Conclusions_249

Part 4: _Human Rights Council Mechanisms Relevant to Business and Human Rights_255

Chapter 7: Human Rights Council Mechanisms_255
A. _The Working Group on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises_256
I. The Mandate and Working Methods_256
II. _Operationalization of the UN Guiding Principles on Business and
Human Rights_262
B. The Annual Forum on Business and Human Rights_276
I. Main Activities and Outcomes_276
C. The Special Procedures_278
D. The Universal Periodic Review_280
E. Interim Conclusions_282

Part 5: Strengthening National Human Rights Protection Mechanisms_286

Chapter 8: _Strengthening the State Obligation to Protect from Corporate
Human Rights Abuse and the Corporate Responsibility to Respect
Human Rights_286
A. Legislative Measures_288
I. Human Rights Due Diligence Law_288
II. Mandatory Human Rights Due Diligence Law: Emerging Examples_291
III. Extraterritorial Jurisdiction_308
B. Policy Measures_310
I. Action Plan on Business and Human Rights_311
C. Judicial Measures_314
I. Judicial Remedies Against Corporate Human Rights Abuse_314
II. Inter-State Judicial Cooperation_323
D. Interim Conclusions_326

Part 6: Conclusion_332

Chapter 9: Combination/Zebra Standards on Business and Human Rights_332

Bibliography_362

Index_387

Jong-Gil WOO holds an LL.B. and a Master of Law from Korea University in the Republic of Korea, obtained in 1992 and 1994 respectively, as well as an LL.M. from Harvard Law School in 1995. He was called to the NY State Bar in 2006. The thesis makes extensive use of official UN publications, including public resolutions, reports, general comments, and other guidance documents, such as those from treaty bodies, the Human Rights Council, and the UN Guiding Principles on Business and Human Rights. However, the views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.