Business and Human Rights in Occupied
Territory: The UN Database of Business Activein Israel’s Settlements
Valentina AZAROVA*

Abstract
The law and practice concerning the responsibilities of businesses and the obligations of theirhome states in relation to private dealings in occupied territory are under-developed. The
establishment of a database by the United Nations (UN) Ofﬁce of the High Commissioner for
Human Rights to monitor the activities of corporate actors in the Occupied Palestinian Territory(OPT) is an opportunity to provide much-needed guidance on the scope of application of existing
international law in this paradigmatic case of a high-risk business environment. This article
engages with the contribution of this initiative to the regulation of transnational corporate
dealings through two normative issues: the structural characteristics and effects of the violations
taking place in certain business environments maintained in the OPT on the responsibilities ofbusiness and home states; and the various modes through which businesses become directly
linked with and contribute to the illicit property rights regime underpinning the existence ofsettlements and the serious human rights abuses perpetuated by their maintenance.
Keywords: belligerent occupation, home state regulation, immitigability, OHCHR, third state
responsibility

I. INTRODUCTION
On 22 March 2016, the Human Rights Council adopted Resolution 31/36, which requested
the Ofﬁce of the High Commissioner for Human Rights (OHCHR), in close consultation
with the United Nations Working Group on Business and Human Rights (UNWG), to‘produce a database’ of businesses that directly and indirectly enable, facilitate andproﬁt from the construction and growth of Israeli settlements in the Occupied Palestinian
Territory (OPT).1 The origin of the database, which is to be updated annually, was therecommendation by the independent international fact-ﬁnding mission on the implicationsof the settlements for the ability of the Palestinian people to enjoy their basic human rights,‘call[ing] upon all Member States to take appropriate measures to ensure that businessenterprises domiciled in their territory and/or under their jurisdiction, including those owned* Visiting Academic, Manchester International Law Centre; Postdoctoral Fellow, Centre for Global Public Law,
Koç University, Istanbul.
1
Human Rights Council, ‘Resolution 31/36 Israeli Settlements in the Occupied Palestinian Territory, Including East
Jerusalem, and in the Occupied Syrian Golan’, A/HRC/31/L.39 (22 March 2016), para 17.
Business and Human Rights Journal, 3 (2018), pp. 187–209
doi:10.1017/bhj.2018.14© Cambridge University Press

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or controlled by them, that conduct activities in or related to the settlements respect humanrights throughout their operations.’2 The OHCHR is thus tasked with mapping out businessactivities in the OPT and outlining the ways in which certain business dealings andtransactions contribute to the severity and frequency of the human rights abuses resulting
from the existence and maintenance of settlements.
Israel’s occupation of Palestinian territory is a paradigmatic case of a high-risk conﬂictaffected business environment – a 50-year-old military occupation, the longest in modern
time3 – but it is not the only contemporary situation of occupation to pursue the unlawful
acquisition of territory and the illegal exploitation of its natural resources.4 In producing thedatabase, the OHCHR might need to provide guidance to businesses and their home stateson their respective responsibilities/duties and expected standard of conduct in such operating
environments. The OHCHR should set out a normative framework for a decision to include
a business on the database by interpreting and applying existing international norms in theﬁeld of business and human rights to situations of unlawful foreign territorial control. A robust
normative framework is key to the mechanism’s legal integrity and political viability.
Guidance on the appropriate distribution of responsibilities between businesses andtheir home states under existing international law is lacking and much needed. The
database project could make a vital contribution to the implementation of the UN
Guiding Principles on Business and Human Rights (UNGP) in high-risk contexts wherebusinesses remain in the dark about the appropriate standard of conduct that is expectedof them under international law. The conventional assumption is that the standard
applicable to involvement by business in such contexts is that of individual-statecomplicity, but complicity involves a high threshold and does not capture the full rangeof circumstances in which businesses can abuse human rights. This article analyses thecondition of ‘proximity’ of a business to an illegal situation under the jurisdiction of thehost state, i.e. the illegally constituted rights and titles to property allocated to businesses
through transactions related to the settlements.5 The database project could also enhance
the understanding of businesses and states of the consequences of such business
operations under their domicile-country’s domestic laws.6 The database is an important
opportunity for the UN to draw out the normative linkages between home states’ duties
2‘Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli
Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the
Occupied Palestinian Territory, Including East Jerusalem’, A/HRC/22/63 (16 January 2013), para 117 (hereafter ‘UNfact-ﬁnding mission report on settlements’).
3
On the legal consequences of such illegal situations in international law, see Valentina Azarova, Israel’s Unlawfully
Prolonged Occupation: Consequences Under an Integrated Legal Framework (London: European Council on Foreign
Relations, 2017).
4
On business and human rights in occupied territory, see Yael Ronen, ‘Responsibility of Businesses Involved in the
Israeli Settlements in the West Bank’ (2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2594851 (accessed
9 June 2018); Eugene Kontorovitch, ‘Economic Dealings with Occupied Territories’ (2015) 53 Columbia Journal ofTransnational Law 584.
5
Such domestic law obligations align with the home state’s responsibility to ensure that its territory or exclusive
domain is not used to cause or further harm caused by others. On the principle of transboundary harm, see Trail Smelter
Arbitration (United States v Canada) (1938 and 1941) 3 R.I.A.A. 1905. See, for the application of the wrongfulomission standard, Commission of Inquiry on Burundi, ‘Final Detailed Report of the Commission of Inquiry on
Burundi’, A/HRC/36/CRP.1 (18 September 2017) paras 69–73 (in French).
6
Such bodies ‘brandish’ soft enforcement powers. Yuval Shany, ‘Sources and the Enforcement of International Law:
What Norms International Law-Enforcement Bodies Actually Invoke?’ in Samantha Besson and Jean D’Aspremont(eds.), Oxford Handbook on the Sources of International Law (Oxford: Oxford University Press, 2017) 789.

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under the UNGPs, and their obligations as third party states under general international
law to abstain from recognition as lawful of an illegal situation created throughviolations of peremptory norms of international law.7
By making more information available about businesses involved in settlements,
the database could contribute to the activation of businesses’ responsibilities inrelation to the illegal situation of settlements in the OPT.8 The database could also
facilitate informed decision-making by investors, procurers and consumers, andbolster private (horizontal) enforcement processes. By providing guidance on the
obligations of home states, the database could operationalize the latent responsibilitiesof domicile-countries as third states, which to a limited extent have already driven
moves by foreign companies to divest from activities in Israeli settlements.9 Thesetasks are fully within the purview of the UN, which is mandated to protect and promote
human rights.
The aim of this article is to contribute to the UN Human Rights Council’s efforts toestablish the database of businesses in Israeli settlements by engaging with the substantive
legal questions surrounding business and human rights in the OPT. This article is notconcerned with the database itself: rather, it is concerned with normative and legal questions(speciﬁcally the nature and consequences of business activities) that the database should
target. This article therefore begins in Section II by observing the structural and systemic
violations entailed by the establishment and maintenance of settlements in the OPT.
It then examines in Section III the responsibilities of business and their home states inrelation to such internationally illegal situations. Section IV analyses the direct and indirectways in which businesses come into possession of wrongfully created property rights
and thus contribute to the systemic human rights abuses that result from the maintenance ofthe settlements in the OPT. Finally, this article reﬂects on the potential contribution the
database could make to the regulation of business and the implementation of business andhuman rights norms in situations of occupation. As acknowledged in the OHCHR’s January
2018 report, procedural fairness is critical to the integrity and legitimacy of the database.
However, due to space constraints, this article does not engage with this issue.

II. SETTLEMENTS IN OCCUPIED TERRITORY: A CASE OF STRUCTURALVIOLATIONS AND SYSTEMIC WRONGSThe UN Human Rights Council Resolution 31/36 lists the number of ways in which‘business enterprises have, directly and indirectly, enabled, facilitated and proﬁted from7
On the scope of the obligation of non-recognition in international law, see Stefan Talmon, ‘The Duty Not to“Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens
Obligation: An Obligation without Real Substance?’ in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The
Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (The Hague: Martinus
Nijhoff, 2005) 103.
8
Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations“Protect, Respect and Remedy” Framework’ A/HRC/17/31 (21 March 2011), Principles 4–6. See also Nadia Bernaz,‘Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?’ (2013) 117
Journal of Business Ethics 493.
9
‘From Motorola to Ahava: The UN Blacklist of Companies Doing Business in Israeli Settlements’, Haaretz(26 October 2017).

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the construction and growth of the settlements’ compiled by the UN fact-ﬁnding mission
on settlements.10 This list of activities is indicative of the ways in which companies
contribute to the continuous unlawful acts that underpin the existence of settlements in
the OPT and to the human rights abuses that their maintenance generates. However, it isneither an exhaustive list nor a normative basis for determining the wrongful character ofa particular transactional relationship. Nor does it deﬁne the scope and nature of thesubstantive international law violations that arise from the existence and maintenance ofsettlements, or clarify the ways in which businesses can ‘enable, facilitate, and proﬁt
from’ these violations and hence contribute to the likelihood, frequency and severity ofhuman rights abuses.
The internationally unlawful acts committed by Israeli authorities through theestablishment and maintenance of settlements for Israeli civilians in the OPT ‘encompass
all physical and non-physical structures and processes that constitute, enable and support
the establishment, expansion and maintenance of Israeli residential communities beyond
the Green Line of 1949 in the Occupied Palestinian Territory’, as the UNWG has pointed
out.11 The non-physical infrastructure of the settlements includes the legal andadministrative acts that enable the establishment and maintenance of settlement-based
entities, and that absorb the settlements into the economy, and social and political life in
Israel proper.12
The key element in the establishment of a settlement, and thus the sine qua non of
public and private entities’ activities there, is the act of appropriation of Palestinian
public and private land by the Israeli military commander.13 The most common methodof appropriation is the issuance of a ‘state land’ declaration under Israeli Military OrderNo. 59 regarding Government Property of 1967.14 Such declarations place the land
under the authority of the Military Custodian, who is authorized to administer theland ‘as he sees ﬁt’, including by leasing the land for development by private bodies and
10

UN settlements fact-ﬁnding mission report, note 2, para 97.
UN settlements fact-ﬁnding mission report, note 2, para 4. See also Working Group on the issue of human rights andtransnational corporations and other business enterprises, ‘Statement on the Implications of the Guiding Principles on
Business and Human Rights in the Context of Israeli Settlements in the Occupied Palestinian Territory’ (6 June 2014),
http://www.ohchr.org/Documents/Issues/Business/OPTStatement6June2014.pdf (accessed 10 January 2018).
12
On the peculiar character and consequences of Israel’s occupation under international law, see Eyal Benvenisti,
Legal Dualism: The Absorption of the Occupied Territories into Israel (Jerusalem: West Bank Data Base Project, 1986);
Aeyal Gross, The Writing on the Wall: Rethinking the Law of Occupation (Cambridge: Cambridge University Press,
2017). See also Azarova, note 3.
13
UN settlements fact-ﬁnding mission report, note 2. Although the appropriation of private land is no longer
sanctioned by the Israeli authorities, ‘outposts’ on private land have been de facto authorized. Yesh Din, ‘From
Occupation to Annexation: The Silent Adoption of the Levy Report on Retroactive Authorization of Illegal
Construction in the West Bank’ (February 2016), https://s3-eu-west-1.amazonaws.com/ﬁles.yesh-din.org/‫מכיבוש‬‫לסיפוח‬+/From+Occupation+to+Annexation+English+Yesh+Din.pdf (accessed 9 June 2018). There are recent efforts
to formalize the status of settlements on private land. Yotam Berger, ‘Israel Presents: How to Legalize West Bank
Settlements Built on Private Palestinian Land’, Haaretz (4 May 2018), https://www.haaretz.com/israel-news/.premiumisrael-presents-how-to-legalize-west-bank-settlements-1.6054412 (accessed 7 May 2018).
14
Military Order No. 59, Order Concerning State Property (Judea & Samaria) (1967). B’Tselem – The
Israeli Information Center for Human Rights in the Occupied Territories, ‘Under the Guise of Legality: Israel’s
Declarations of State Land in the West Bank’ (February 2012), https://www.btselem.org/download/
201203_under_the_guise_of_legality_eng.pdf (accessed 9 June 2018). According to the Civil Administration’s data
as of 2012, Israel has declared about 913,000 dunums of land in the West Bank as state land: B’Tselem, ‘By Hook and
By Crook: Israeli Settlement Policy in the West Bank’ (July 2012) 24, https://www.btselem.org/download/
201007_by_hook_and_by_crook_eng.pdf (accessed 9 June 2018).
11

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granting them the right to develop the land for use as residences for Israeli citizens.15 Largeswathes of Palestinian public land have been allocated in this way to development
companies for the construction of settlements on the basis of a decision by the government
secretariat to establish or expand a settlement.16 In the Mitzpe Shalem settlement, forinstance, the Israeli Dead Sea cosmetics company Ahava17 operates a production facility on
the basis of a license granted to it by the Custodian, who signed a permit agreement anddevelopment contract with the World Zionist Organization (WZO) for the establishment of asettlement on 2,410 dunums (241 hectares) of land, for a period of 69 years.18 Although theCustodian can also allocate land for use by Palestinians, in practice almost all land isallocated for the development of settlements. Since the beginning of the occupation in 1967,
the Civil Administration – a branch of the military – has allocated only 0.7 per cent of stateland in the West Bank (860 hectares) to Palestinians.19
These acts of unlawful appropriation of land and allocation of property rights and theunlawful transfer of the nationals of the occupying power to occupied territory violate thecore of the occupying power’s obligations: to protect the well-being and property of thelocal population, and to abstain from acts that alter the international status, legal andpolitical order, and demographic character of the territory. Israel’s unlawful appropriationand destruction of Palestinian private and public property is extensive, and carried out not
for reasons of military necessity but in order to facilitate the unlawful transfer of Israeli
civilians into the OPT.20 The diversion of land and other natural resources such as water
for the beneﬁt of Israeli civilians constitutes the usufruct rule,21 which requires that therevenues from resource extraction are used only for the beneﬁt of the local population or
to defray the costs of maintaining a legitimate military occupation. When this is not thecase, such extraction activities may attract liability for the crime of pillage.22
15
The Custodian allocates land to settlements based on a decision by the Government Secretariat (the Cabinet) toestablish or expand a settlement. It then concludes a development agreement with the World Zionist Organization(WZO) (and company) transferring the rights in the land to the company within a year. The private developer company
undertakes the preparation of the plans for the development of the settlement in coordination with the WZO Settlement
Division and Israeli domestic line ministries such as the Ministry of Construction and Housing, the Ministry of Industry
and Trade, and the Ministry of Agriculture. B’Tselem, note 14.
16
Ibid.
17
Who Proﬁts, ‘Ahava: Tracking the Trade Trail of Settlement Products’ (May 2012), https://www.whoproﬁts.org/
sites/default/ﬁles/ahava_report_ﬁnal.pdf (accessed 9 June 2018).
18‘Mitzpe Shalem’ entry in the ‘Brigadier General Spiegel Database of West Bank Settlements and Outposts,
Developed by Israel’s Ministry of Defense’ (on ﬁle with author).
19
B’Tselem, Acting the Landlord: Israel’s Policy in Area C, the West Bank (June 2013), http://www.btselem.org/
download/201306_area_c_report_eng.pdf (accessed 10 January 2018). Kerem Navot, Closed Garden: Declaration of
Closed Areas in the West Bank (2015), http://media.wix.com/ugd/cdb1a7_5d1ee4627ac84dca83419aebf4fad17d.pdf(accessed 10 January 2018).
20
Articles 53 and 55, Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex:
Regulations Concerning the Laws and Customs of War on Land (18 October 1907); Articles 34 and 57, Geneva
Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) (Fourth Geneva
Convention); Rule 50, Destruction and Seizure of Property of an Adversary, International Committee of the Red Cross(ICRC), Customary International Humanitarian Law, https://ihl-databases.icrc.org/customary-ihl/eng/docs/
v1_rul_rule50 (accessed 10 January 2018).
21
Rule 51, Public and Private Property in Occupied Territory, ICRC, Customary International Humanitarian Law,
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule51 (accessed 9 June 2018).
22
James G Stewart, Corporate War Crimes: Prosecuting the Pillage of Natural Resources (New York: Open Society
Foundations, 2011). On the criminal consequences of land appropriation by corporate actors, see International Criminal
Court Ofﬁce of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) 5.

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An occupying power is prohibited from absolving itself of its obligations underinternational humanitarian law (IHL) or depriving protected persons of their inviolable
rights through changes to the legal status of any part of the occupied territory or its
demographic characteristics.23 However, the unlawful transfer of Israeli civilians into
the OPT,24 along with the protection of their presence in that territory and theirconstitutional rights under Israeli domestic law, has eroded the special protection afforded
by IHL to the Palestinian population. Israel’s sweeping legal and institutional reforms
violate the occupying power’s obligation to ensure normal life in the occupied territory.25
The UNGPs explicitly include IHL as standards that business should respect when
operating in conﬂict-affected areas, consistent with the view that IHL protects individual
rights and coincides with the protections enshrined in international human rights law(IHRL). The settlements regime in the OPT [which includes not just land appropriation but
also the establishment of checkpoints, restricted roads and prohibited areas and activities(for Palestinians)], entails violations of the rights to work and livelihood, given their effecton access to agricultural land and other resources such as water,26 and to the freedom of
movement, to health, education and family life, by creating impediments to the exercise of
these fundamental rights, given their location and infrastructure.27 The International Courtof Justice held that the maintenance of settlements results in continuous and systematic
violations of Palestinian rights in breach of Israel’s extraterritorial obligations under
IHRL.28
The Israeli military commander is charged – under Israeli military laws – with theprotection of settlers’ rights as well as the rights of Palestinians. Following a rationale
approved by Israel’s High Court of Justice,29 the military commander has purported to
fulﬁl his responsibilities in a way that facilitates the settlements’ expansion, under thepretext that Palestinians pose a security threat to the settlements that calls for restrictions
on Palestinian communities’ freedom of movement. In addition, the military has
imposed severe restrictions on Palestinian planning and building, and has purported tojustify demolitions of homes, workshops, electricity lines, solar panels and agricultural
infrastructure like water wells, pipes and access roads on the basis that they lacked
permits that are in practice nearly impossible for Palestinians to obtain from the Israeli
military. Some of the measures imposed have led to the involuntary relocation of
23

Article 47, Fourth Geneva Convention, note 18. The Israeli authorities rely on the Interim Agreements with thePalestine Liberation Organization (PLO) to claim full control in military and civil affairs in the so-called Area C (over
60% of the West Bank where all settlements are located), in violation of Articles 7 and 8, Fourth Geneva Convention,note 18.
24
Article 49(6), Fourth Geneva Convention, note 20; International Court of Justice (ICJ), ‘Advisory Opinion
Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ (9 July 2004),
paras 115–122; International Committee of the Red Cross, ‘What Does the Law Say About the Establishment of
Settlements in Occupied Territory?’ (5 October 2010), https://www.icrc.org/eng/resources/documents/faq/occupationfaq-051010.htm (accessed 7 May 2018).
25
Article 43, Hague Regulations, note 20. Article 64, Fourth Geneva Convention, note 20.
26
On the way settlements exploit mineral extraction and fertile agricultural lands, denying Palestinians access to theirnatural resources, see UN settlements fact-ﬁnding mission report, note 2, para 36.
27
Ibid, paras 105, 109.
28
ICJ Wall Opinion, note 24.
29
On Israel’s Supreme Court’s jurisprudence on the settlements, see David Kretzmer, ‘The Law of Belligerent
Occupation in the Supreme Court of Israel’ (2012) 94 International Review of the Red Cross 207.

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Palestinian communities, which may amount to unlawful acts of forcible transfer.30 The
structure, systemic nature and coherence of this host of violations – in their aggregate
effect – may attract the individual criminal responsibility of Israeli military and politicalofﬁcials for war crimes and crimes against humanity.31
The violations of IHL and IHRL caused by Israel’s settlement activity in the OPT areabundantly documented. Less attention is paid to the fact that these violations are a
product of Israel’s actions in violation of the law on the interstate use of force and its
prohibition on the acquisition of territory by force ( jus ad bellum). As the existence ofthe settlements amounts to the de facto annexation of large parts of the territory byIsrael,32 the situation has the effect of ﬂagrantly denying the Palestinian people’sinternationally recognized right to self-determination.
Nevertheless, judicially imposed penalties for the severity and frequency of the humanrights abuses that result from such instances of use of force are a rarity. The Human
Rights Committee’s current draft General Comment on the right to life (Article 6 of theCovenant) maintains that ‘States parties engaged in acts of aggression contrary to theUnited Nations Charter violate ipso facto article 6.’33 However, the serious nature ofhuman rights violations that result from the maintenance of an illegal situation predicatedon the use of force was condemned by the European Court of Human Rights for the ﬁrst
time in its interstate award judgment in Cyprus v Turkey. The Court ordered Turkey
to pay Cyprus a sum total of EUR90 million for serious human rights violations inNorthern Cyprus since 1974,34 and Judge Pinto de Albuquerque’s ruling contained
a strong message: ‘those member States that wage war, invade or support foreign
armed intervention in other member States must pay for their unlawful actions and theconsequences of their actions.’35

III. IMMITIGABLE HARM TO HUMAN RIGHTS AND HOME STATE REGULATION
The involvement of business in conﬂict-affected environments can increase thelongevity of conﬂict as well as the severity, frequency and likelihood of the humanrights and other violations of international law. Businesses play a prominent role not
only in Israel’s settlement enterprise, but also in other ongoing occupations that pursue
30
UN Ofﬁce for the Coordination of Humanitarian Affairs (OCHA), Under Threat: Demolition Orders in Area C of
the West Bank (September 2015), http://data.ochaopt.org/demolitionos/demolition_orders_in_area_c_of_the_west_bank_en.pdf (accessed 10 January 2018).
31
Article 8(2)(b)(viii), Rome Statute of the International Criminal Court (ICC) (17 July 1998). Settlement activities
are under examination by the ICC. Ofﬁce of the Prosecutor, ‘Report on Preliminary Examination Activities 2017’(4 December 2017), para 59. See also Michael Kearney, ‘On the Situation in Palestine and the War Crime of Transfer ofCivilians into Occupied Territory’ (2016) 28:1 Criminal Law Forum 1.
32
Human Rights Council Resolution, ‘Israeli settlements in the Occupied Palestinian Territory, Including East
Jerusalem, and in the Occupied Syrian Golan’, A/HRC/34/L.41/Rev.1 (16 March 2017). para 7; Azarova, note 3; Omar
Dajani, ‘Israel’s Creeping Annexation’ (2017) 111 American Journal of International Law Unbound 51.
33
Human Rights Committee, ‘General Comment No. 36 on Article 6 of the International Covenant on Civil andPolitical Rights, on the Right to Life’, para 71 http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/
GCArticle6_EN.pdf (accessed 10 January 2018).
34
Cyprus v Turkey, Application No. 25781/94, Just Satisfaction Award, 20 May 2014, para 4.
35
Ibid, para 24.

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the displacement of the local population and engage in the appropriation of their property
and the conveyance of its possession to the nationals of the occupying state.36 In suchenvironments, businesses contribute to the economy of settlements, further the
expansion of settlement industrial zones and production facilities (including farms),
and contribute to the diversion of land and other natural resources such as water for the
beneﬁt of Israeli civilians and Israel’s market economy.37 A considerable amount ofsettlement’s agricultural and industrial products are meant for export, including to theEuropean Union (EU) and North America.38 But what standard of conduct arebusinesses that operate in settlements held to in international law? Who shoulders theobligation to regulate such activities? This section addresses the responsibilities ofbusinesses and the obligations of their home states under the UNGPs in relation toactivities in or related to settlements in the OPT.

A. The Limits of Businesses’ Due Diligence Responsibilities
The immitigability of the adverse human rights effects of a business’s involvement in theillegal situation maintained by the settlements arises from the contribution of a businessto the wrongdoing through its transactional proximity to the illegal situation in thesettlements. That is, businesses engaged in transactions in relation to the settlements
come into possession of titles and rights to property illegally constituted under theadministrative and legal order that is implemented in the OPT by the occupying state.
This includes the property rights allocated to the business, and the revenues and potential
gains it becomes entitled to by virtue of its contractual relations. Business transactions
with entities in the settlements not only consolidate the legal claims that the Israeli
authorities seek to further through their maintenance, but beneﬁt from the illegal rights tocontrol and use property that are created under the Israeli laws applicable to thesettlements and allocated to businesses.
In cases of occupations, the occupying state acts as the host state for foreignbusinesses. Occupying states that seek annexation bring the occupied territory under
their domestic jurisdiction by either unlawfully extending their domestic laws into theoccupied territory or adopting military laws that protect the habitual residence of theirnationals in the occupied territory. For instance, Israeli law is extended to all activities
related to settlement-based entities and activities. Compliance with the host state’s laws
in such instances, as the UNWG noted in June 2014, does not shield business fromtheir due diligence responsibilities under the UNGPs:… due diligence is also particularly important in a situation where the occupying power,
exercising obligations equivalent to those of a ‘host State’, may be unable or unwilling

Pal Wrange, ‘Occupation/Annexation of a Territory: Respect for International Humanitarian Law and Human
Rights and Consistent EU Policy’ (Brussels: European Parliament Think Tank, 2015). Eugene Kontorovich, ‘Unsettled:
A Global Study of Settlements in Occupied Territories’ (2017) 9 The Journal of Legal Analysis 285.
37
For documentation on over 500 Israeli and foreign companies involved in the settlement, see ‘Who Proﬁts from the
Occupation’, https://whoproﬁts.org/ (accessed 10 January 2018).
38
International Federation for Human Rights (FIDH) and others, ‘Trading Away Peace: How Europe Helps Sustain
Illegal Israeli Settlements’ (October 2012) https://www.ﬁdh.org/IMG/pdf/trading_away_peace_-_embargoed_copy_
of_designed_report.pdf (accessed 10 January 2018).
36

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effectively to protect human rights or may itself be implicated in human rights abuses. In
this regard, even if businesses in the settlements are operating in compliance with Israeli
laws, the corporate responsibility to respect human rights ‘exists over and above
compliance with national laws and regulations’.39

This logic resonates in the OHCHR’s report on the establishment of the database,released in January 2018:
The scale, scope and immitigability of the human rights impacts caused by settlements must
be taken into consideration as part of businesses’ enhanced due diligence exercises. The
Guiding Principles do not explicitly require companies to terminate operations where they
are involved in human rights abuses; they do stipulate, however, that such companies
should be prepared to ‘accept any consequences – reputational, ﬁnancial or legal – of thecontinuing connection.’… considering the weight of the international legal consensus concerning the illegal natureof the settlements themselves, and the systemic and pervasive nature of the negative humanrights impact caused by them, it is difﬁcult to imagine a scenario in which a company could
engage in listed activities in a way that is consistent with the Guiding Principles andinternational law. This view was reinforced in Human Rights Council resolution 34/31 on
the Israeli settlements, in which the Council referred to the immitigable nature of theadverse impact of businesses’ activities on human rights.40

The continuous violations underpinning the establishment of settlements and thesystemic human rights abuses entailed by their regular maintenance pose a challenge tobusinesses looking to respect their responsibilities under the UNGPs by ensuring that
their activities do not have an adverse impact on human rights. The ﬁrst challenge ﬂows
from the fact that businesses that operate in settlements invariably contribute toviolations of IHRL and IHL, including the unlawful appropriation of land (not for
military necessity), and the wrongful allocation of property rights by the militarycommander for the development of settlements. Such activities not only entrench thewrongful enjoyment of property rights described above, but contribute to the generationof revenue from their use. These circumstances preclude businesses from operating insettlements with due diligence and without infringing on their responsibilities to respecthuman rights.41
The unlawful appropriation and routine creation of unlawfully constituted rights topossess, use and control land is enabled by Israel’s extension of its domestic legal
jurisdiction to business activity in or related to settlements, such as the protection of
Israeli domestic laws, courts and law enforcement, as well as the Israeli banking system,
government beneﬁts and foreign investment.42 As a matter of international law, the laws
in force in the occupied territory before it was occupied continue to apply. Thus, theWorking Group, ‘Statement on the Implications of the Guiding Principles on Business and Human Rights’, note
11, 11.
40
United Nations Ofﬁce of High Commissioner for Human Rights (OHCHR), ‘Database of All Business Enterprises
Involved in the Activities Detailed in Paragraph 96 of the Report of the Independent International Fact-Finding Mission
to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural rights of
the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem’, A/HRC/37/39(1 February 2018) (‘OHCHR report on the database’) paras 40–41.
41Compare Ronen, note 4.
42
All foreign and Israeli companies that operate in Israel and the settlements are registered in Israel’s Companies
Registrar based at the Israeli Ministry of Justice, under the Israeli Business Licensing Law 1968.
39

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occupying state is obligated to keep them in force, and permit the institutions that enforce
them to operate, barring limitations based on imperative security concerns. Israel’s
settlements is a case in point for business being unable to lawfully submit to thePalestinian laws, as the laws applicable in the territory from the perspective ofinternational law are not those that Israel is applying, since local law has not been
amended in line with the narrow restrictions for such revisions in international law.
What is more, an occupying power is absolutely prohibited from extending its
domestic laws, and its public bodies’ administrative jurisdiction to the occupied territory,
as is the case with the application of Israeli law in Palestinian territory.43 Indeed, Israeli
businesses cannot but operate in settlements insofar as Israeli law prohibits them from‘discriminating’ against settlements.44 In doing so, they must liaise with Israeli publicbodies, pay taxes to Israeli authorities, and thus exclusively beneﬁt the Israeli market
economy; contributing to violations of the occupying power’s obligations not to exploit
the resources of the occupied territory for its national beneﬁt.45 Israeli law also offers
private individuals and businesses a range of ﬁnancial beneﬁts that incentivize theirtransfer into occupied territory, including grants and subsidies to cover start-up costs,
rent payments and operational costs.46
Some activities undertaken by the Israeli authorities with the purpose of expanding ormaintaining the settlements may mean that businesses with whom they contract are
making a direct contribution to a violation of international law such as the destruction ofproperty without military necessity for the purpose of expanding settlement units orconstructing settlement infrastructure. Other activities engaged in by businesses inrelation to the settlements are in large part mundane transactions such as the rental orpurchase of property, or the sale, purchase or provision of services, products or ﬁnancial
capital to projects in the settlements. Such activities also contribute to the frequency andseverity of the rights abuses that result from the conversion of property rights into
revenues, often with access to wrongfully utilized assets such as state beneﬁts forsettlements.47
As all settlement-based or related business transactions beneﬁt from the wrongfulproperty rights regime underpinning the settlements, they contribute to the likelihood,
Association for Civil Rights in Israel, ‘One Rule, Two Systems: Israel’s Regime of Law in the West Bank’ (2014)19, https://www.acri.org.il/en/wp-content/uploads/2015/02/Two-Systems-of-Law-English-FINAL.pdf (accessed 9
June 2018). See also Michael Karayyani, Conﬂicts in A Conﬂict: A Conﬂict of Laws Case Study on Israel and thePalestinian Territories (Oxford: Oxford University Press, 2014). On the application of Israeli labour laws to theoccupied territory, see Amir Paz-Fuchz and Yael Ronen, ‘Occupational Hazards’ (2012) 30 Berkeley Journal ofInternational Law 580.
44
See, e.g., Human Rights Watch, ‘Israeli Law and Banking in West Bank Settlements’ (12 September 2017), https://www.hrw.org/news/2017/09/12/israeli-law-and-banking-west-bank-settlements (accessed 14 June 2018).
45
Article 55, Hague Regulations 1907, note 20. On the consequences of such transgressions, see Stewart, note 22.
46
Who Proﬁts, ‘Financing Land Grab: The cDirect Involvement of Israeli Banks in the Israeli Settlement Enterprise’(February 2017), https://whoproﬁts.org/content/ﬁnancing-land-grab-direct-involvement-israeli-banks-israeli-settlemententerprise (accessed 10 January 2018).
47
On the activities of G4S Israel in Israeli prisons, see Diakonia International Humanitarian Law Resource Center,‘Securing Injustice: Legal Analysis of G4S Israel Operations in Occupied Palestinian Territory’ (2013) 15, https://www.
diakonia.se/globalassets/documents/ihl/ihl-resources-center/securing-injustice-legal-analysis-of-g4s-operations-inoccupied-palestinian-territory.pdf (accessed 9 June 2018); Who Proﬁts, ‘The Case of G4S: Private Security Companies
and the Israeli Occupation’ (March 2011), https://whoproﬁts.org/sites/default/ﬁles/WhoProﬁts-PrivateSecurity-G4S.
pdf (accessed 9 June 2018).
43

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frequency and severity of human rights violations that are perpetuated by theirmaintenance. While required to respect Israeli law, businesses active in the settlements
become constrained, from the perspective of international law, to mitigate in any
meaningful way the adverse impact their transactions with settlement-based entities haveon human rights. The systemic nature of the human rights abuses that result from theestablishment of settlements and their maintenance is such that all business operations inor related to the settlements contribute to the continuous abuses of human rights resulting
from the settlements.48 These contributions may be impalpable and unintended, often
falling short of the standard of complicity, but nonetheless entail the conversion ofwrongful rights and titles into ﬁnancial gains.
The fact that the violations in question are integral to the business environment in thesettlements means that businesses must abstain from undertaking activities in suchcontexts to guarantee their ability to align their operations with their responsibilities
under the UNGPs.49 In a situation where businesses cannot ensure that their operations
do not have an adverse impact on human rights, as they cannot conceivably be expected
to inﬂuence an entire legal and political regime such as that which underpins the creationand maintenance of settlements in occupied territory, the business cannot avoid
becoming involved in the situation maintained by continuous violations.50 Being in factmandated by the host state’s legal order to contribute to illicit revenue ﬂows, businesses
engaged in settlement-related activity lack the means to redress or alleviate the harms.51
All businesses’ ability to operate diligently in this context therefore is inhibited ab initio,
by virtue of the particular characteristics of the violations of international law entailed by
the existence and maintenance of the settlements, and by the particular mode of
perpetration of these violations – which are premeditated, organized and sanctioned by
the host state’s laws and policies.
While there is no explicit mention of the notion of an ‘immitigable situation’ in which
all business activity would contribute to human rights in the UNGPs, Principle 17 statesthat ‘business enterprises conducting such due diligence should not assume that, byitself, this will automatically and fully absolve them from liability for causing orcontributing to human rights abuses.’ This standard was upheld by the Human Rights
Council Resolution 31/36 of March 2016 establishing the database, which stated that all
businesses must terminate all activities in Israel’s settlements.52 Moreover, the integral
Human Rights Watch, ‘Occupation Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian
Rights’ (19 January 2016), https://www.hrw.org/news/2016/01/19/occupation-inc-how-settlement-businessescontribute-israels-violations-palestinian (accessed 14 June 2018).
49
On the regulation of corporate wrongs in high-risk business environments, see Shift, ‘Due Diligence in High Risk
Circumstances’ (March 2015), https://www.shiftproject.org/resources/publications/human-rights-due-diligence-highrisk-circumstances/ (accessed 10 January 2018); SOMO – Centre for Research on Multinational Corporations,‘Multinationals and Conﬂict’ (2014), https://www.somo.nl/multinationals-and-conﬂict/ (accessed 9 June 2018); Danish
Institute for Human Rights, ‘Doing Business in High-Risk Human Rights Environments’ (2010), http://nhri.ohchr.org/
EN/Themes/BusinessHR/DocumentsPage/Highrisk_Environments_ENG.pdf (accessed 9 June 2018). See also
Valentina Azarova, ‘The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs’ inEkaterina Yahyaoui (ed.), Human Rights and Power in Times of Globalization (The Hague: Brill, 2017) 248.
50
Human Rights Council, ‘Clarifying the Concepts of “Sphere of inﬂuence” and “Complicity”’, A/HRC/8/16(15 May 2008) 4–5.
51
See Commentary on Principle 19, UNGPs, note 8.
52
Human Rights Council, ‘Resolution 31/36 Israeli Settlements in the Occupied Palestinian Territory’, note 1,
para 13(b).
48

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nature of the Israeli and settlements economies means that Israeli or foreign businesses
that operate in Israel assume a high risk of becoming involved in settlement-relatedtransactions. They must therefore take ‘enhanced due diligence measures’ to ensure thatthey do not entrench and consolidate the internationally unlawful claims to titles andrights being furthered by the occupying state.53 The inability of most business to operate
in line with their UNGPs responsibilities in this kind of business environment, as we
consider next, emboldens the regulatory role of home states with the aim of protecting
domestic subjects from their harmful effects.

B. The Regulatory Duties of Home States
The UNGPs maintain that the responsibilities of business and duties of states as regards
situations of corporate abuses are complementary.54 They also place the business in theposition of determining the content of appropriate due diligence measures, and expect
states (including home states) to at least encourage the adoption and monitoring of theeffectiveness of such measures.55 The home state’s responsibility for the actions of its
businesses abroad may either ﬂow from the potential attribution of such conduct to thestate, in the case of state-owned companies or delegated authority,56 or from the state’s
obligation to act with due diligence to regulate the (horizontal) rights abuses of private
actors.57
The home state’s responsibility is secondary and residual only up to the point that abusiness is either unwilling or unable to guarantee that it conducts its business operations
diligently, due either to its own choices or to the lack of choice given the nature of thelegal and administrative regime of the host state.58 At that point, it is only right that theregulatory burden shift to the home state in line with the broader logic that ‘no State has
the right to use or permit the use of its territory in such a manner as to cause injury byfumes in or to the territory of another or the properties or persons therein’.59 Home states
are obligated to inform their businesses of the risks that certain business activities could
entail under international law, but also the consequences certain activity will incur underdomestic laws. In a recent opinion, the Inter-American Court on Human Rights held that
53

Commentary on Principle 17, UNGPs, note 8 (‘business enterprises conducting such due diligence should notassume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to humanrights abuses.’).
54
See Rachel Davis, ‘The UN Guiding Principles on Business and Human Rights and Conﬂict-Affected Areas: State
Obligations and Business Responsibilities’ (2012) 94 International Review of the Red Cross 961.
55
On due diligence measures in national action plans, see International Corporate Accountability Roundtable
and Danish Institute for Human Rights, ‘National Action Plan Toolkit and National Baseline Assessment’(29 November 2017).
56
Article 11, International Law Commission Articles on the Responsibility of States for Internationally Wrongful
Acts 2001.
57
Antal Berkes, ‘Extraterritorial Responsibility of the Home States for MNCs Violations of Human Rights’ inYannick Radi (ed.), Research Handbook on Human Rights and Investment (Cheltenham: Edward Elgar Publishers,2018) (forthcoming).
58
Sara L Seck, ‘Conceptualizing the Home State Duty to Protect Human Rights’ in Karin Buhman, Mette Morsing
and Lynn Roseberry (eds.), Corporate Social and Human Rights Responsibilities: Global Legal and Management
Perspectives (London: Palgrave Macmillan, 2011) 40.
59
Trail Smelter Case (United States, Canada) (1938, 1941) III UNRIAA 1905, 1965; in the same sense: Corfu
Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22. See also Sigrun Skogly, ‘Extraterritorial Obligations andthe Obligation to Protect’ (2016) Netherlands Yearbook of International Law 217.

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the state’s control over domestic activities with extraterritorial effect can substantiate
an extraterritorial jurisdictional nexus.60 Neither the UNGPs nor the OHCHR’s reporton the database engage in detail with questions concerning the nature and extent of
the extraterritorial reach of home states’ human rights responsibilities. Nor has
the scope and content of domestic measures with extraterritorial effect, performed
within a state’s territory but with effect beyond its borders, been extrapolated beyond acursory discussion in the lead up to the UNGPs, as a separate category of regulatory
measures.61
This under-explored approach to the regulation of transnational corporate activity
would, however, align with the responsibility of home states as third states forinternationally wrongful acts engaged in by host states under the general internationallaw. In cases of occupation that pursue the annexation of the territory, the principal
wrongs constitute serious breaches of peremptory norms of international law.62 Thus, allstates are under an obligation not to aid, assist or recognize as lawful, including in theirdomestic legal orders, violations of the peremptory norms of international law by otherstates and international actors. In the settlements, these breaches include foremost theviolations of intransgressible rules of IHL, such as the prohibition on the ‘extensive
destruction and appropriation of property not justiﬁed by military necessity and carriedout unlawfully and wantonly’.63 The maintenance of settlements also entails
transgressions of the right to self-determination of people and the prohibition on theuse of force against the territorial integrity and political independence of another state,e.g., by seeking to acquire territory.64
The obligation of third states not to recognize, aid or assist the ‘maintenance of anillegal situation’ created by serious breaches of peremptory norms is a customary rulewith roots in general principles of law that was codiﬁed by the International Law
Commission in Article 41 of its Draft Articles on the Responsibility of States forInternationally Wrongful Acts 2001. This non-recognition obligation of third statescodiﬁed in the Draft Articles was upheld by the Security Council in relation to the
OPT on two occasions: resolution 465 (1980) called on states ‘not to provide Israelwith any assistance to be used speciﬁcally in connection with settlements in theoccupied territories’,65 and resolution 2334 (2016) called on states to distinguishbetween Israeli and Palestinian territory in their dealings with Israel and Israeli
entities.66 A third state whose domestic legal order gives effect to the illegal situation,
60
Inter-American Court of Human Rights, ‘The Environment and Human Rights’, Advisory Opinion, OC-23/17(15 November 2017). See also Antal Berkes, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’,
EJIL:Talk! (28 March 2018).
61
Human Rights Council, ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect,
Respect and Remedy” Framework’, A/HRC/14/27 (9 April 2010) para 49. See also Berkes, note 57.
62
Articles 40 and 41, International Law Commission Articles on the Responsibility of States for InternationallyWrongful Acts 2001.
63
Rule 50, Destruction and Seizure of Property of an Adversary, note 20.
64
Commentary on Chapter III, Articles 40–41, International Law Commission Draft Articles on the Responsibility ofStates for Internationally Wrongful Acts 2001.
65
Security Council Resolution 465 (1 March 1980). The Norwegian authorities used Resolution 465 as a benchmark
for assessing the charitable nature of activities under Norwegian law. Norwegian People’s Aid, ‘No More Tax
Deductibles for Funding Settlements in Occupied Territory’ (2012) https://www.npaid.org/News/News-archive/2012/
No-more-tax-deductibles-for-funding-settlements-in-occupied-territory (accessed 10 January 2018).

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including the rights, titles and entitlements that it purports to create would be liable
for wrongfully recognizing as lawful the proceeds of a serious breach of a peremptory
norm of international law. While the extent to which international norms on the
responsibility of third states cover private dealings remains unclear, the very idea ofhome state regulation supposes the creation of consequences for corporate nationals
that would protect the domestic legal order and dis-incentivize certain transnational
activities.
To ensure the non-admission of unlawfully obtained rights and titles under thenational system, home states should ensure that domestic regulatory authorities are able
to address restrictive measures to its corporate nationals. Home states of businesses
should examine the consequences of their companies’ enjoyment of illicit rights andtitles to property obtained in the OPT. This entails calibrating the application of laws
related to taxation, ﬁnancial regulation, procurement and consumer protection tothese titles and rights in view of their invalidity as a matter of international law.67 Withextension of home states’ civil and private laws extraterritorially, a domestic legal
practice consistent with international law would ensure that such extraterritorialsituations do not generate negative legal and ﬁnancial consequences for procurers,
investors and consumers.68
In March 2014, Human Rights Council Resolution 25/28 urged all states to notify theirbusinesses of the legal liabilities entailed by settlement-related activities and follow
through with concrete domestic regulatory measures. Less than a year earlier, the reportof the UN fact-ﬁnding mission on settlements equally emphasized the role of home statesin ‘ensur[ing] that business enterprises domiciled in their territory and/or under theirjurisdiction […] respect human rights throughout their operations’, but without offering
any further guidance on the matter.69
Since 2013, 18 European governments have issued advisories that address theirbusiness communities and alert them to the reputational, economic and legal risks that
may arise from operating under the particular legal regime that Israel maintains in thesettlements. The UK government’s advisory, like most others, provides:
There are therefore clear risks related to economic and ﬁnancial activities in the settlements,
and we do not encourage or offer support to such activity. Financial transactions,investments, purchases, procurements as well as other economic activities (including inservices like tourism) in Israeli settlements or beneﬁting Israeli settlements, entail legal andeconomic risks stemming from the fact that the Israeli settlements, according tointernational law, are built on occupied land and are not recognised as a legitimate part ofIsrael’s territory. This may result in disputed titles to the land, water, mineral or othernatural resources which might be the subject of purchase or investment.70

66

Security Council Resolution 2334 (26 December 2016), para 5.
On public law coherence and home state responsibility, see Karin Buhmann, ‘Juridifying Corporate Social
Responsibility Through Public Law: Assessing Coherence and Inconsistencies Against UN Guidance on Business andHuman Rights’ (2016) 11:3 International and Comparative Corporate Law Journal 194.
68
On this logic of ‘legal necessity’ for consistency, see Krassimir Nikolov, ‘Ashton’s Second Hat: The European
Union’s Funding Guidelines on Israel as a Post-Lisbon Instrument of Foreign Policy Making’ (2014) 1 Diplomacy 167.
69
UN settlements fact-ﬁnding mission report, note 2, para 117.
70
UK Foreign and Commonwealth Ofﬁce, ‘Overseas Business Risk – Israel, Settlements’, https://www.gov.uk/
government/publications/overseas-business-risk-israel/overseas-business-risk-israel–3 (accessed 10 January 2018).
67

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Both the presentation and implementation of these advisories leave much to be
desired. These advisories neither specify the potential regulatory consequencesbusinesses may face in their domicile country for claiming to enjoy titles and rightsthat were wrongfully constituted and obtained, nor sets out the types of risks thatbusiness could expect to incur. The dissemination of the advice was also inconsistent.
With the EU deciding not to issue an EU-wide advisory, some member states like theNetherlands undertook a more ad hoc, softer communications strategy dubbed as‘discouragement policy’71 to engage in dialogue with speciﬁc businesses, like theDutch engineering ﬁrm Royal Haskoning, in order to let them ‘understand that future
involvement in the project [in occupied East Jerusalem] could be in violation ofinternational law.’72 In January 2014, the second largest Dutch pension fund, Stichting
Pensioenfonds Zorg en Welzijn (PGGM), divested from ﬁve Israeli banks, due to thelatter’s operations in the settlements, including through contribution to theirconstruction.73
The growing awareness of the consequences of dealings in or related to Israel’s
settlements under both international law and domestic law had resulted over the last
decade in an increasing number of engineering, telecommunications and retailcompanies, ﬁnancial institutions and pension funds, reviewing and terminating theirrelations in the settlements.74 This apparent wave of divestment decisions received anotable boost from developments at the level of EU–Israeli privileged bilateral dealings,
and in particular the EU’s realization that its own dealings with Israel had been
misconstrued in that it was treating as lawful rights and titles constituted by Israeli
unlawful acts under EU law.75
While the basis for these decisions varied considerably, at least in the way they were
publicly communicated, it is fair to say that they were all driven by the understanding thatrights and titles created in such circumstances will likely attract consequences underinternational and domestic law. This legal reasoning was adopted in December 2016 andFebruary 2018 when the Court of Justice of the European Union upheld the invalidity ofcertain EU–Morocco agreements insofar as they were being extended to Western Sahara
under Morocco’s auspices without explicit consent from the Sahrawi people under the law
71
Noah Browning, ‘Major Dutch Pension Firm Divests from Israeli Banks over Settlements’, Reuters (8 January2014), https://www.reuters.com/article/netherlands-israel-divestment/major-dutch-pension-ﬁrm-divests-from-israelibanks-over-settlements-idUSL6N0KI1N220140108 (accessed 14 June 2018).
72
Royal Haskoning DHV, ‘Royal Haskoning DHV Terminates its Involvement in the Wastewater Treatment Plant inEast Jerusalem’ (September 2013), http://www.royalhaskoningdhv.com/en/news/royal-haskoningdhv-terminates-itsinvolvement-in-the-wastewater-treatment-plant-in-east-jerusalem/727 (accessed 10 January 2018).
73
Who Proﬁts, ‘Financing Land Grab: The Direct Involvement of Israeli Banks in the Israeli Settlements Enterprise’(February 2017) https://whoproﬁts.org/content/ﬁnancing-land-grab-direct-involvement-israeli-banks-israeli-settlemententerprise (accessed 10 January 2018).
74
See, for example, Diakonia IHL Resource Centre, ‘The Unsettling Business of Settlement Business’ (May 2015),
https://www.diakonia.se/globalassets/documents/ihl/ihl-in-opt/briefs/the-unsettling-business-of-settlememt-business.
pdf (accessed 10 January 2018); United Methodist Church, ‘Wespath Human Rights Guidelines and Management ofExcessive Sustainability Risk’, https://www.wespath.org/gbphb-human-rights-guidelines-and-management-ofexcessive-sustainability-risk/ (accessed 10 January 2018); Peter Beaumont, ‘Orange says it Plans to Terminate
Contract with Brand Partner in Israel’, The Guardian (4 June 2015), https://www.theguardian.com/world/2015/jun/04/
orange-says-it-plans-to-terminate-contract-with-brand-partner-in-israel (accessed 14 June 2018).
75
See, e.g., Nikolov, note 69; Patrick Mueller and Peter Smolinski, ‘The Role of Law in EU Foreign Policy-making’(2016) Journal of Common Market Studies 1. See also Hugh Lovatt and Matteo Toaldo, EU Differentiation and Israeli
Settlements (European Council for Foreign Relations, June 2015).

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of treaties.76 The South African High Court in February 2018 enforced the automatic
invalidity of the phosphate cargo titles granted to shipping companies by the Moroccan
authorities in Western Sahara.77 This shows that both the legal consequences of certain
activities under existing positive international law and the incipient practice of states andbusinesses in line with these normative standards are in need of substantiation.

IV. FROM COMPLICITY TO PROXIMITY: THE NORMATIVE AND FACTUAL BASIS FORCONTRIBUTION TO HUMAN RIGHTS ABUSES
To make determinations concerning the inclusion of businesses on the database, the
OHCHR should operate this mechanism under a robust normative framework that
captures the legal consequences of different modalities of business transactions that‘enable, facilitate and proﬁt, directly or indirectly’ from the existence and maintenance ofthe settlements. The database is not an adjudicative mechanism, as the OHCHR reportrightly notes.78 However, the OHCHR can, and is indeed expected by civil society, to takeon the role of monitoring, fact-ﬁnding and analysis of activity that entails transgressions of
the business and states responsibilities under existing international law.79
In compiling an annual list of companies, the OHCHR needs to be able to justify andsubstantiate its decisions to include a business on the database with a clear set ofthresholds. It must elaborate on the types of transactions and business relations that
contribute to the maintenance of the settlements and are not too ‘minimal or remote’.80
Considering that all business transactions related to the settlements contribute to rights
abuses resulting from their maintenance, the appropriate approach to such assessments, asconsidered below, will be relying on a hard factual test of the direct link that is maintained
between the business and entities or activities in the settlements.

A. Proximity to an Illegal Situation
A 2008 report of the former Special Representative of the Secretary General on Businessand Human Rights (SRSG) states: ‘Avoiding complicity is part and parcel of the
responsibility to respect human rights, and entails acting with due diligence to avoid
knowingly contributing to human rights abuses, whether or not there is a risk of legal
liability.’81 Although considerable ambiguity exists about the criteria for establishingcriminal or civil complicity, the most common test for accomplice liability demands that abusiness be in control of the wrongful act, and have the speciﬁc intent to cause the harm that76

Council of the European Union v Polisario Front, Judgement, C-104/16 (21 December 2016), para 106. See
also Western Sahara Campaign et al v Commissioners for Her Majesty’s Revenue and Customs, C-266/16(27 February 2018).
77
The Sahrawi Arab Democratic Republic and Polisario Front v NM Shipping High Court of South Africa, C-1487/
2017 (23 February 2018, http://wsrw.org/ﬁles/dated/2018-02-23/20180223_south_africa_ruling.pdf (accessed
7 May 2018).
78
UN report on the database, note 40, para 8.
79
See, e.g., Amnesty International and others, ‘Joint NGO Statement in Support of the UN Human Rights Database on
Business Activities Related to Settlements in the Occupied Palestinian Territory’ (20 November 2017) https://www.
amnesty.org/download/Documents/MDE1575212017ENGLISH.pdf (accessed 9 June 2018).
80
UN report on the database, note 40, para 13.
81
Human Rights Council, ‘Clarifying the Concepts of “Sphere of inﬂuence”’, note 50, para 71.

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is aided and abetted by its business activity.82 As complicity is preoccupied with acts thatcause and produce harm, it does not capture the incidental ways in which business come topossess and use illicit property rights in the illegal situation maintained by the settlements,
which thereby results in their contributing or being directly linked to human rights harms.83
Whereas complicity is most often used as an adjudicative standard by judicial bodies,proximity to an illegal situation of the settlements, and the illicit property rights regime
that underpins it, accounts for the wrongful gains and rights generated by suchsituations.84 Business that come into possession of such illicit rights and titles do notcause or enable the appropriation of land, but rather contribute to the chain of custody ofthe illicit ﬁnancial ﬂows generated by the settlements economy.85 In so doing, they
consolidate and sustain the continuous violations of international law that underpin themaintenance of the settlements.
The term ‘proximity’ has been used in the corporate accountability debate to refer to arange of circumstances, not limited to legal relationships, that demonstrate the business’
closeness to the wrongs in a manner that enables it to inﬂuence them.86 The UNGPs do
not use the concept of proximity. Principle 13(b) of the UNGPs provides that businesses
should ‘seek to prevent or mitigate human rights impacts that are directly linked to theiroperations, products or services by their business relationships, even if they have notcontributed to those impacts.’ It perhaps assumes a logic of proximity as a standard for
determining the ‘degree of directness’ and the contribution of the business’ product orservice to an adverse impact on human rights.87 As all products and services destined forthe settlements contribute to the human rights abuses that result from the settlements’maintenance, each and every transaction with a settlement-based entity (and not theparticular characteristics of the product or service it is intended to provide) would
factually link the business’ activities with adverse impact on human rights.
The logic of contribution through a direct link or proximity does not, unlike theconcept of complicity, operate as a mode of liability for holding corporate ofﬁcials andcompanies accountable. Rather, it is a form of fault for wrongful enjoyment of property
rights, which pertains not only to business activities that for instance directly contributeto the construction and securitization of settlements, but also to those that provide
82

See, e.g., Richardson et al v Director of Public [2014] UKSC 8, para 17. See also International Commission ofJurists (ICJ), Expert Legal Panel on Corporate Complicity in International Crimes: Corporate Complicity & Legal
Accountability (Geneva: ICJ, 2008).
83
For the deﬁnition of ‘contribution’ and ‘direct link’, see Debevoise Business Integrity Group and Enodo Rights,‘Discussion Draft 8: Practical Deﬁnitions of Cause, Contribute, and Directly Linked’ (Debevoise & Plimpton, 2017)
7–8,
https://www.business-humanrights.org/sites/default/ﬁles/documents/Debevoise-Enodo-Practical-Meaning-ofInvolvement-Draft-2017-02-09.pdf (accessed 9 June 2018).
84
On objective illegality and invalidity of wrongful titles and rights, see James Crawford, Brownlie’s Principles of
Public International Law (Cambridge: Cambridge University Press, 2012) 608.
85
On the ‘ﬁnancialization’ of land, see Tomaso Ferrando, ‘Land Rights at the Time of Global Production: Leveraging
Multi-Spatiality and “Legal Chokeholds”’ (2017) 2 Business and Human Rights Journal 275.
86
ICJ Expert Legal Panel Report, note 83, 25–26. See also Human Rights Council, ‘Clarifying the Concepts of“Sphere of inﬂuence”’, note 50, para 15.
87
Thun Group of Banks, ‘Paper on the Implication of UN Guiding Principles 13b and 17 in a Corporate andInvestment Banking Context’ (December 2017) https://www.business-humanrights.org/sites/default/ﬁles/documents/
2017_12_Thun%20Group%20of%20Banks_Paper_UNGPs%2013b%20and%2017.pdf (accessed 9 June 2018).
However, see John Ruggie, ‘Comments on Thun Group of Banks Discussion Paper on the Implications of UN
Guiding Principles 13 and 17 in a Corporate and Investment Banking Context’ (21 February 2017), https://www.
business-humanrights.org/sites/default/ﬁles/documents/Thun%20Final.pdf (accessed 14 June 2018).

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products to settlements that do not necessarily have any pernicious characteristics. In
essence, the notion of proximity accounts for a lower threshold of harm.
The unit of analysis for determining a harmful contribution in the case ofbusiness active in the settlements is the transaction itself. In other cases, the degree ofproximity to the wrongful acts and the rights claims they make would dependon the speciﬁc nature of a company’s contractual relations with an entity based in or
operating in the settlements: the business should be servicing, selling or buying
goods to or from a settlement-based entity itself or through a business partner, while
undertaking such activities as part of a continuous contract or through a recurrent set oftransactions. It is through such transactions that the business wrongfully comes topossess and enjoy rights and titles, and thus to contribute to the generation of revenues
based on the original wrongs (as well as consolidate the legal claims made through thewrongdoer’s actions).
Although the inclusion of a business on the database is expected to affect a business’
reputation, the mandate of the database is not to adjudicate the liability of businesses
involved in the settlements. It is therefore appropriate to think of the database as amechanism for monitoring, analysing and disseminating information about businesses
and their activities that contribute to and beneﬁt from serious human rights abuses in ahigh-risk business environment such as the OPT. Such a process should enable otherbusinesses and their home states to comply with their respective responsibilities andduties under existing international law.
As all forms of businesses that maintain transactions in relation to the settlements arecontributing to the severity and frequency of the human rights abuses that result from thevery maintenance of settlements, it is appropriate that the test for determining theinclusion of a business on the database for its harmful contribution to the illegal situation
is a factual one related to the directness of the link between its activities and thesettlements.88 The typology of degrees of proximity that follows below takes thisnormative standard as its starting point.

B. Differentiated Proximities
The most common forms of relationships that businesses maintain with entities that areeither based or operate in settlements can be classiﬁed into three categories,
distinguished by the degree of proximity of the business to the illegal situation andthus the contribution to human rights abuses. The organizing principle for thisclassiﬁcation is the directness of the link that a given business maintains with thesettlements-based activity which seeks to generate revenues from wrongfully enjoyedproperty rights. Thus, proximity is a basis for substantiating the contribution that abusiness’s activities make to the frequency and severity of the human rights abuses
resulting from the existence and maintenance of the settlements. The difference indegrees of proximity accounts for the business’s knowledge of the legal nature of its
activities and for its ability to make adjustments in its or its partner’s operations.

88

ICJ Expert Panel Report, note 83, 23.

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First-degree proximity results either from the business being based in a settlement,
including through a branch or franchise, or from its having entered into a contractual
relationship with a settlement-based entity. This category of proximity is applicablemainly to the activities of the corporate nationals of the occupying state, but it also
includes foreign parent companies with subsidiaries in Israel or the settlements, andfranchise grantors with franchisees based in the settlements.89 Where prima facie
evidence demonstrates that a business is based in and operates out of a settlement, inwhole or in part, that business would be deemed in ‘direct’ proximity to the human rights
harms resulting from the maintenance of settlements.
Second-degree proximity is made up of companies that regularly transact withsettlement-based entities and entails the ‘indirect’ proximity of business to the harmful
activities. Such dealings include those of Israeli and foreign companies that buy or
supply products, equipment and services to or from settlement-based entities, such ascompanies based in Israel with direct distribution contracts with entities based in thesettlements or service providers that operate in settlements.90 It further includes Israeli
and foreign purchasers of services and products from settlement-based producers andwholesalers,91 such as foreign importers and wholesalers that contract directly with asettlement-based manufacturer of agricultural or industrial products. This category
also encompasses businesses that contract with Israeli public bodies for the
implementation of illegal policies, such as a business that supplies demolition
services for the Jerusalem municipality in occupied East Jerusalem, or that contracts
with Israeli government bodies for the development of housing or infrastructure or theprovision of other services to entities based or regularly operating settlements. It could
also include an Israeli or foreign parent company that maintains operations insettlements, or is a principal ﬁnancier of a project that is being implemented in thesettlements.92
Lastly, third-degree proximity consists of businesses that become ‘indirectly’
involved in settlement-based operations through a business partner that itself is likely
to be included in the second-degree proximity category. This includes businesses thatprovide services to another business based in Israel or abroad, such as a contractor,
distributor or service provider, which in turn regularly engages settlement-based entities,
or businesses that maintain an ongoing contractual relationship or regularly contract for
89
See, e.g., the multi-national real estate company Remax who has franchisees in settlements and includes settlement
properties on its global database, Human Rights Watch, note 48. Telecommunications giant Orange, who had a brandlicensing agreement with an Israeli company Partner which regularly operated in settlements. International Federationfor Human Rights (FIDH) and others, ‘Dangerous Liaisons in Israeli Settlements: Orange and its Shareholder the French
State’ (6 May 2015) https://www.ﬁdh.org/en/issues/globalisation-human-rights/business-and-human-rights/dangerousliaisons-in-israeli-settlements-orange-and-its-shareholder-17609 (accessed 9 June 2018).
90
See, e.g., Israeli telecommunications companies that service settlements. Who Proﬁts, ‘Bezeq – The Israeli
Telecommunications Corporation’ https://whoproﬁts.org/company/bezeq-israeli-telecommunication-corporation(accessed 10 January 2018). The French company Veolia operates a landﬁll that services settlements. Human Rights
Watch, note 48.
91
See, e.g., Israeli supermarkets that buy settlement agricultural products from settlement farms, and Israeli wholesale
and export companies that contract with settlement-based manufacturers.
92
See, e.g., a foreign company that owns shares in an Israeli company that operates in settlements. John Mulligan,‘CRH Sells Controversial Stake in Israel’s Only Cement Firm Mashav’, The Independent (8 January 2016), https://www.independent.ie/business/crh-sells-controversial-stake-in-israels-only-cement-ﬁrm-mashav-34345981.html(accessed 14 June 2018).

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the provision of products or services to the settlements. These may be manufacturers that
supply wholesalers or distributors who in turn either maintain contractual relations or
regularly contract with settlement-based entities;93 foreign companies that buy
settlement products from Israeli exporters of settlement products (most of which are
based inside Israel) or from subsidiaries of settlement-based companies;94 or ﬁnancial
institutions that invest in companies that conduct some of their operations in thesettlements.95 It is not unreasonable to assume that such businesses are in a position to
gain knowledge of their partners’ activities and hence should with proof to this effect beconsidered to be knowingly engaged in such transgressions that directly link theiroperations with the adverse impacts on human rights caused by the maintenance of thesettlements.
Perhaps wisely, the OHCHR report does not intend the database to cover the thirddegree category of proximity. Most of the sectors enumerated in the OHCHR report on
the establishment of the database contribute to the economic integration of thesettlements within Israel.96 The report notes that companies that responded toallegations of their involvement in the settlements by maintaining that they have nocontrol over their partners’ activities, are nevertheless required by Principle 13 of the
UNGPs to ‘actively identify and assess any actual or potential adverse human rights
impacts made as a result of business relationships.’97 The report further maintains that
relations that are ‘remote and minimal’ will not result in a business’s inclusion on the
database, but does not provide any further guidance on the relation between thisexclusionary criterion and the ‘strict liability’ standard consonant with the seriousness
and structural character of the violations that underpin the business environment in thesettlements.

V. CONCLUDING REMARKS: THE DATABASE IN CONTEXTIn the Israeli–Palestinian context, the turn to corporate accountability by human rights
advocates coincided with the invocation of the international obligations of third states
not to recognize as lawful, aid or assist an illegal situation created and maintained
through serious – continuous and systemic – breaches of peremptory norms.98 It has
naturally been combined with appeals to all states and international actors such as theEU, to exercise their erga omnes obligation to engage in international cooperation to93

See, e.g., a foreign construction equipment company that supplies an Israeli distributor who in turn contracts with asettlement-based municipality or development companies. Who Proﬁts, ‘Facts on the Ground: Heavy Engineering
Machinery and the Israeli Occupation’ (July 2014), https://whoproﬁts.org/bulldozers (accessed 14 June 2018).
94
See, e.g., foreign importers that buy agricultural produce from exporters that source their products from settlement
farms, and foreign retailers or wholesalers who buy from European subsidiaries of an Israeli exporter of settlement
agricultural products.
95
See, e.g., banks or pension funds that invest in a company with operations in the settlements. VBDO, ‘Dutch Institutional
Investors and Investments related to the Occupation of the Palestinian Territories’ (February 2014), https://businesshumanrights.org/sites/default/ﬁles/media/vbdo_dutch_institutional_investors_7.pdf (accessed 10 January 2018).
96
OHCHR report on the database, note 40, para 47.
97
Ibid, para 59.
98
James Crawford, ‘Third Party Obligations with Respect to Israeli Settlements in the Occupied Palestinian Territories,
Expert Opinion’ (24 January 2012) https://www.tuc.org.uk/sites/default/ﬁles/tucﬁles/LegalOpinionIsraeliSettlements.
pdf (accessed 7 May 2018).

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bring such illegal situations and the violations that maintain them to an end.99 In view ofthe scale of ongoing foreign corporate involvement in Israel’s settlements, suchobligations appear at ﬁrst blush to ring hollow.
The establishment of a database of businesses active in the settlements cancontribute to mending the critical knowledge gaps and to the resolution of some of theindeterminacies concerning the scope and content of corporate and state responsibilities
in existing international law in relation to such activities. Neither the incipient practice of
the EU and its member states to ensure the correct territorial application of bilateralagreements in line with the EU’s internal laws and policies,100 nor the decisions ofbusiness to terminate or revise settlement-related dealings provide a clear picture of thefull range of legal consequences of such business activities as a matter of international
law.101 In the business and human rights context, there is a notable shortage of guidance
about the type of business environments that entail systemic rights abuses either within
the territory of the host state or beyond its borders, and may thus require a stricter
standard of due diligence of businesses, and hence a more proactive regulatory role on
the part of their home states.
The institutional role of the UN is to address contemporary challenges and assist states
to understand the consequences of their actions in international law. The database is thus
expected to function as an implementing mechanism for existing business and humanrights norms; one that offers interpretative guidance on the consequences of suchbusiness activities for the role of home states, and on the due diligence standard thatbusinesses are expected to follow. Settlements – established and maintained in occupied
territory with the aim of enabling the unlawful transfer of the population of the occupying
state and displacing that which is indigenous to the occupied state – are but one
emblematic business environment where the full remedial potential of existing
international law norms in regulating corporate actors’ transnational dealings can betranslated into practice.
It is against this background that the development of a database for business involved insettlements becomes a signiﬁcant milestone. The normative framework and regulatorymodel that the OHCHR would develop for this database could also be transposed to otherongoing cases of occupation where property rights are generated and allocated on the basisof unlawful legislative reforms in the occupied territory and in a manner that issystematically (positively) discriminatory against the occupying state and its nationals:102
Armenian-occupied Nagorno Karabakh,103 Moroccan-annexed Western Sahara,
99
Francois Dubuisson, The International Obligations of the European Union and Its Member States with regard to
Economic Relations with Israeli Settlements, Expert Opinion (Centre de Droit International, Brussels Free University,
11.11.11. and FIDH February 2014).
100
Patrick Mueller and Peter Slominski, ‘The Role of Law in EU Foreign Policy-Making: Legal Integrity, Legal
Spillover, and the EU Policy of Differentiation towards Israel’ (2016) 55:4 Journal of Common Market Studies 1.
101‘Legal Opinion on Third Party Obligations with Respect to Illegal Economic and Other Activities in the
Occupied Territories of Azerbaijan’, Annex to the letter dated 10 April 2017 from the Permanent Representative ofAzerbaijan to the United Nations addressed to the Secretary-General, A/71/880–S/2017/316 (26 April 2017).
102
On the inconsistent application of international law to business in occupied territory, see Kontorovich, note 4. On
the inconsistent enforcement of international law to settlements, see Kontorovich, note 36.
103
Ministry of Foreign Affairs of the Republic of Azerbaijan, ‘Illegal Economic and Other Activities in the
Occupied Territories of Azerbaijan’ (2016), http://mfa.gov.az/ﬁles/ﬁle/MFA_Report_on_the_occupied_territories_
March_2016_1.pdf (accessed 10 January 2018).

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Russian-occupied Crimea,104 Abkhazia and South Ossetia,105 Transnistria,106 and Turkishoccupied Northern Cyprus.107
Notwithstanding the exigency of the task at hand, the political climate surrounding thecreation of the UN database has been predominantly hostile: Israeli politicians and their
US allies have criticized the UN for singling out Israel through its exceptional treatment
by creating a new mechanism intended to speciﬁcally address its actions. Israeli ofﬁcials
maintain that the list is ‘non-binding and insigniﬁcant’,108 and have managed to subject
the UN to intense political pressure through threats to its ﬁnancial integrity.109 Politicalnarratives in the US, the UK and France have assimilated the database with ‘boycotts’
against Israel, which are prohibited under their respective domestic laws.110 The
misconceived view of the purpose of this initiative as one that is intended to politicallyisolate and bully Israel has fuelled state and business hostility towards it.
The OHCHR report on the establishment of the database begins to dispel thesemisconceived views by setting out its work methods and providing an initial sketch of its
normative framework.111 These are important ﬁrst notes towards a decision-making
process that can explain and raise awareness amongst businesses of the consequences ofactivities in settlements in occupied territories. Two critical issues should be elaborated
upon to clarify when a business active in settlements would contribute to rights abusessuch that it would be included on the database: the wrongful acts that underpin the illicit
property regime in Israel’s settlements and hence all commercial activity taking place
there; and the types of transactions that would be deemed as contributing to this regime.
Ultimately, the likelihood of this much-needed regulatory initiative properly conceived tosucceed hinges on the ability of the UN to demonstrate the database’s added value for bothbusiness and home states. In particular, this initiative has the potential to further
understanding and application of the existing obligations of home states as third states in
the law of state responsibility, in relation to their corporate nationals’ transnational dealings;
namely, how a home state could and should protect its domestic legal order and domestic
subjects from contributions to illicit proceeds and ﬁnancial ﬂows in transnational contexts.112
104
See, e.g., European Union External Action (EEAS), ‘EU Restrictive Measures in Response to the Crisisin Ukraine’ (16 March 2017). EEAS, ‘The EU non-recognition policy for Crimea and Sevastopol: Fact Sheet’(12 December 2017).
105
Government of Georgia, ‘Occupied Territories of Georgia’, http://gov.ge/index.php?lang_id=ENG&
sec_id=220 (accessed 10 January 2018).
106
See, e.g., Mozer v The Republic of Moldova and Russia, Application No. 11138/10 (23 February 2016).
107
Cyprus Ministry of Foreign Affairs, ‘Greek Cypriot Properties Under Turkish Military Occupation’, http://www.
mfa.gov.cy/mfa/mfa2016.nsf/mfa12_en/mfa12_en?OpenDocument (accessed 10 January 2018).
108
Barak Ravid, ‘Israel to the West: Don’t Honor UN Human Rights Council’s Vote to Blacklist Settlement-Linked
Firms’, Haaretz (25 March 2016), https://www.haaretz.com/israel-news/.premium-israel-to-the-west-don-t-honorunhrc-vote-1.5422459 (accessed14 June 2018).
109‘US Threatens to Cut UN Funding Over Settlement ‘Blacklist’ – Report’, Times of Israel (30 August 2017), https://www.timesoﬁsrael.com/us-threatens-to-cut-un-funding-over-settlement-blacklist-report/ (accessed 14 June 2018).
110
See, e.g., Amir Tibon, ‘US Legislators, AIPAC Push Anti-BDS Bill After UN Letter Warns Companies Against
Operating in Settlements’, Haaretz (28 September 2017), https://www.haaretz.com/us-news/.premium-u-s-legislatorsaipac-push-anti-bds-bill-in-light-of-un-blacklist-1.5454314 (accessed 14 June 2018).
111
UN report on the database, note 40, 3–6.
112
On domestic regulatory agencies as international law-applying and enforcing actors, see Benedict Kingsbury,‘The Concept of Compliance as a Function of Competing Conceptions of International Law’ (1998) 19 Michigan
Journal of International Law 345.See alsoCatherine Redgewell, ‘National Implementation’ in Daniel Bodansky et al(eds.), Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007).

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To this end, the database’s proponents should arguably prioritize the need to secure thesupport of states and businesses for this initiative. This support will be crucial in overcoming
institutional hurdles (e.g., budgetary and staff allocation) and ensuring that states do not lose
sight or render into disrepute their commitment to the UNGPs and their existing obligations
under other international law, while leaving their businesses to unwittingly perpetuate andproﬁt from some of the most egregious cases of human suffering.

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