• the Extractive Industries Transparency Initiative 5 (EITI) - launched in 2002 to address corruption and promote the transparency of revenue payments to States derived from the extractive industry, (for example: oil, gas and mining); and • The Equator Principles 6 - adopted in 2003 by financial institutions working with the World Bank Group’s International Finance Cooperation (IFC). The Principles address environmental and social risks in project financing and seek to avoid, mitigate and compensate for the negative consequences of such project. While such codes are laudable, they have their limitations. They are by definition voluntary, have limited application, often lack formal compliance mechanisms, and may often fail to reflect fully existing human rights obligations upon which they are purportedly based. Future Developments In 2005, the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie (the SRSG) was appointed with a mandate to identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights. Following three years of research and consultations, the SRSG’s report of April 2008 proposed a framework to address corporate responsibility for human rights. The framework is based on three overarching principles: • the State duty at international law to protect citizens from the violation of human rights by TNCs or other business enterprises; • the corporate responsibility to respect all human rights; and • the need for access to effective remedies, including through appropriate judicial or nonjudicial mechanisms. On 18 June 2008, the Human Rights Council endorsed the framework, extended the mandate of the SRSG, and requested he elaborate further on the framework outlined above. 7 In the absence of other mechanisms, the ACJ adopts the SRSG’s three-fold approach. In particular, it supports the interpretation that the responsibility of TNCs is not merely passive, but entails positive action. Such positive action might include, for example: implementing due diligence processes to ensure operations are human rights compliant; promoting a rights compliant corporate culture; implementing mechanisms to prevent, punish, investigate or redress violations (prevention); implementing grievance procedures for the resolution of human rights violations (accountability); and providing recourse to effective remedies. What are the State’s obligations to regulate transnational corporations with regard to human rights violations within its territorial jurisdiction? General Obligations As members of the United Nations, all States have pledged under Article 55 and 56 of the UN Charter to take joint and separate action to promote universal respect for, and observance of, human rights and fundamental freedoms, without distinction as to race, sex, language, or religion. 5 Available at: http://eitransparency.org/ 6 A financial industry benchmark for determining social and environmental risk in project financing, available at: http://www.equator-principles.com/documents/Equator_Principles.pdf 7 Protect, Respect and Remedy: a Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. A/HRC/8/5, 7 April 2008 -7-