The Accessibility of Human Rights as the Fourth Pillar of the United Nations Guiding Principles on Business and Human Rights

By Cesar Reyna Ugarriza

ABSTRACT:

This paper proposes the incorporation of “access to human rights” as the fourth general principle in the United Nations Guiding Principles on Business and Human Rights. This new principle would complement and enhance the effective realization and enjoyment of human rights, particularly in contexts where businesses play a crucial role. The study explores how the concept of “access” goes beyond mere information dissemination or reparatory mechanisms, advocating instead for the full exercise of fundamental rights. It highlights the critical role of private sector companies in ensuring the accessibility of these rights through employment generation, economic growth, and social development. The paper also discusses the limitations faced by states in fulfilling this role due to inefficiencies and structural challenges, emphasizing the need for a combined effort between states and businesses to truly guarantee the accessibility of human rights. The proposed principle of access aims to fill existing gaps in the current framework and ensure that human rights are not only protected, respected, and remedied but also fully accessible to all.

INTRODUCTION:

This document proposes the incorporation of “access to human rights” as a fourth principle in the United Nations Guiding Principles on Business and Human Rights. This new principle seeks to complement the existing ones of protecting, respecting, and remedying, and to ensure that human rights are effectively accessible.

The concept of “access” to rights is not limited to access to information requested or demanded by stakeholders in cases of human rights impacts, nor is it about access to due diligence or remedial mechanisms that companies must implement as part of their obligations. Rather, it refers to the full exercise of a set of fundamental or essential rights for the individual.

For example, in the labor sector, companies play a crucial role as generators of both skilled and unskilled employment, particularly in developed economies.

The Role of the Private Sector:

The private sector is a dynamic engine for employment generation, demanding labor through commercial relationships with other companies. This creates a virtuous circle that not only fosters employment but also satisfies essential needs, contributing to sustainable economic and social development.

In summary, the functions that would be fulfilled by incorporating the proposed principle of access to human rights are as follows:

1. Enable the effective exercise of a set of human rights.
2. Promote or guarantee access under minimum standards that allow the real enjoyment of rights.

Ensuring Access to Human Rights:

Ensuring or facilitating access to human rights is not only a task or obligation that falls on companies but also, and primarily, on the state, as well as other institutions and organizations within society. The state is constitutionally mandated to regulate or legislate on the matter and to supervise or monitor the performance of companies operating within its territory. The rest of society assumes the role of promoting, monitoring, and facilitating rights according to their competencies and capacities.

States must design appropriate, reasonable, and necessary policy and legal frameworks to ensure that access to rights, i.e., their full enjoyment, is complete and not merely partial or deficient. Furthermore, states must ensure that the quality of the exercise of rights does not deteriorate over time, as this could undermine living standards and lead to vulnerability and deprivation.

The Role of Companies:

In the specific case of companies, if they cannot establish themselves or grow stably, no country can practically guarantee any rights. Thus, the effective access to human rights cannot be separated from the creation, growth, evolution, and sophistication of companies, since they are the ones that establish the conditions for individuals, as holders of rights, to have the possibility to enjoy and exercise them — not only in the labor field but also in the economic, commercial, health, educational, and other fields.

The operation of companies allows people to enjoy and exercise their rights. By addressing universal needs, companies facilitate access to essential goods and services.

It is evident that satisfying the aforementioned needs and more generates well-being for individuals, and these services are not typically free. Companies usually demand financial compensation, i.e., a payment or remuneration under the terms set in contracts. The provision of services and the attention to human needs are always costly, as someone always has to cover the cost of fulfilling them. Even if states fully covered their citizens’ needs, they would need to obtain resources from third parties — individuals or legal entities (taxpayers) — to finance the public budget and its corresponding expenditures on public goods and services.

We are talking about the entirety of state expenditures required for the public services provided by the state, including health, education, public safety, telecommunications, infrastructure, basic sanitation, and more. Therefore, only a prosperous economy, with innovative, efficient, and responsible companies, can ensure the fulfillment of fundamental rights.

Free Market and Education:

A free market enables people to reach and develop their full potential. The essential requirement for entering this market is a good education. A good education is the key to taking advantage of labor and entrepreneurial opportunities, whether collective or individual, that arise. However, these opportunities are not provided by the state in most developing countries, which is why a large portion of social inequalities persists.

This shows that despite the state’s inexorable duty to protect, promote, and enshrine human rights, due to failures such as inefficiency, corruption, and instability, the state is the main generator and perpetuator of inequalities worldwide, as well as of poverty linked to the persistence of a poor educational system and the lack of economic freedoms.

Given this situation, the accessibility demanded of companies and the market will only be real when the state provides the necessary conditions to generate sufficient human capital — individuals truly qualified at a technical, professional, and academic level — to access the job opportunities offered by the private sector. Additionally, the expansion of the market with a larger base of workers, consumers, and formal entrepreneurs will, through their productive activities, stimulate the economy, increase state revenue, and generate more sustainable development.

This is what all advanced countries have achieved to maintain optimal living standards in the long term, which involves ensuring effective access to human rights.

What Do We Mean by the Effectiveness of Rights?

To define the concept of legal effectiveness, we turn to the Italian political scientist Norberto Bobbio (2000), who asserts that effectiveness consists of determining whether a legal norm is complied with or not by those to whom it is addressed. In this case, the recipients of the legal norm would be individuals or legal entities (rights holders in general). According to Bobbio, every legal norm must meet three evaluation criteria to be part of a legal framework or legal order:

1. Determine whether the norm in question is fair or unfair.
2. Analyze whether the legal precept is valid or invalid.
3. Determine whether it is effective or ineffective.

Bobbio points out that these rules or criteria are independent of each other since none needs the other to exist. According to Bobbio, “the problem of applying the norm (its effectiveness) consists in determining whether it is complied with by those to whom it is addressed and, if violated, ensuring it is enforced by the authority that imposed it.”

Similarly, the renowned German philosopher Jürgen Habermas argues that it is not enough for the legal norm to exist formally and be enforced upon its recipients (those obligated to comply with it), but it must fulfill the objectives or functions for which it was created. Thus, it is essential that norms can be applied materially or effectively. This implies that for human rights to exist and be guaranteed, it is not enough for the state to have institutions, procedures, and measures in place to sanction violations, but it must also provide the conditions for companies to carry out their activities responsibly and sustainably.

Conclusion:

We need an express provision stating that access to human rights constitutes a general principle or foundation within the United Nations Guiding Principles on Business and Human Rights, alongside the principles of protecting, respecting, and remedying.

Businesses must explicitly commit to facilitating, enabling, and guaranteeing access to the effective and real enjoyment of human rights. They must not only respect and remedy these rights but also ensure that more individuals can exercise and enjoy them through the responsible and sustainable development of their activities.

The mere access to human rights, whether by paying for their enjoyment or being provided for “free” by the state, places a person in a better position compared to their prior situation.

Exercising a right fully involves costs — not only in economic terms but also in terms of individual effort, sacrifices, and resilience. Therefore, to exercise rights as envisioned, certain basic conditions must be met.