of their commitments in the area of human rights. The Guiding Principles on Business and Human
Rights56 set out a requirement that business enterprises respect human rights, which includes an
expectation that companies act with due diligence: corporations, the Guiding Principles state, should
"act with due diligence to avoid infringing on the rights of others and to address adverse impacts with
which they are involved".57 This means that they should put in place "a human rights due-diligence
process to identify, prevent, mitigate and account for how they address their impacts on human rights".58
The OECD Guidelines for Multinational Enterprises, following their revision in 2011 to insert a human
rights chapter (chapter IV), also include due diligence in the definition of the responsibility of business
enterprises to respect human rights.
Such due diligence obligations require from companies that they take measures to ensure that their
clients do not evade their duties to pay taxes in the jurisdictions in which they reside. This interpretation
is confirmed by Principle 17 of the Guiding Principles on Business and Human Rights, which provides
that human rights due diligence should cover "adverse human rights impacts that the business enterprise
may cause or contribute to through its own activities, or which may be directly linked to its operations,
products or services by its business relationships". Similarly, the OECD Guidelines for Multinational
Enterprises provide that business enterprises domiciled in OECD should "seek ways to prevent or
mitigate adverse human rights impacts that are directly linked to their business operations, products or
services by a business relationship, even if they do not contribute to those impacts." As explained in the
Commentary to these Guidelines (in para. 43), this implies an expectation that
an enterprise, acting alone or in co-operation with other entities, as appropriate, ... use its leverage
to influence the entity causing the adverse human rights impact to prevent or mitigate that impact.
‘Business relationships’ include relationships with business partners, entities in its supply chain,
and any other non-State or State entity directly linked to its business operations, products or
services. Among the factors that will enter into the determination of the appropriate action in such
situations are the enterprise's leverage over the entity concerned, how crucial the relationship is
to the enterprise, the severity of the impact, and whether terminating the relationship with the
entity itself would have adverse human rights impacts.
The OECD Guidelines on Multinational Enterprises also provide that companies "encourage, where
practicable, business partners, including suppliers and sub-contractors, to apply principles of responsible
business conduct compatible with the Guidelines."59
The responsibilities of banks and other financial institutions to ensure that they support, rather than
undermine, the efforts of governments to combat tax evasion, follows from the simple fact that without
a mechanism to launder the money, economic actors will be less tempted to violate their tax obligations.
Yet, Global Witness and others have warned that many regulations aimed at combating laundering were
ignored or circumvented by financial actors.60 This comes at a considerable price for developing
countries: in 2015, the United Nations Office on Drugs and Crime estimated that the amount of the
56
A/HRC/17/4 (and, for the text of the Guiding Principles on Business and Human Rights, A/HRC/17/31). The Guiding
Principles on Business and Human Rights were approved by the Human Rights Council at its seventeenth session on 16 June
2011. They clarify the content of the "Protect, Respect, Remedy" framework defining the respective obligations of States and
corporations. On the Guiding Principles on Business and Human Rights, see, inter alia, Surya Deva and David Bilchitz (eds),
Human Rights Obligations of Business. Beyond the Corporate Responsibility to Respect? (Cambridge Univ. Press, 2013); on
the due diligence component of the responsibility to respect human rights, see Olivier De Schutter, Anita Ramasastry, Mark
Taylor and Robert Thompson, Human Rights Due Diligence: The Role of States (International Corporate Accountability
Roundtable, European Coalition for Corporate Justice and Canadian Network on Corporate Accountability, 2012).
57 A/HRC/17/31, para. 6.
58 See, for a more detailed description of what this entails, Principle 17 of the Guiding Principles on Business and Human
Rights.
59 OECD Guidelines on Multinational Enterprises (as revised on 25 May 2011), II. General Policies, para. 13.
60 Global Witness, Undue Diligence. How banks do business with corrupt regimes (2009), available at:
http://www.u4.no/recommended-reading/undue-diligence-how-banks-do-business-with-corrupt-regimes/ (last consulted on 28
Feb. 2016).
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CRIDHO Working Paper 2017/1