A/HRC/44/57 discrimination under international human rights law and provides actionable guidelines for practical implementation of these laws. Private corporations, and the United Nations and other multilateral bodies 59. Although international human rights law is only directly legally binding on States, in order to discharge their legal obligations in this regard, States are required to ensure effective remedies for racial discrimination attributable to private actors, including corporations.122 Under the International Convention on the Elimination of All Forms of Racial Discrimination, States must enact special measures to achieve and protect racial equality throughout the public and private spheres.123 This should include close regulatory oversight of companies involved in emerging digital technologies. 60. As articulated in the Guiding Principles on Business and Human Rights, private companies bear a responsibility to respect human rights, including through human rights due diligence. Human rights due diligence requires: assessing actual and potential human rights impacts; integrating and acting upon the findings; tracking responses; and communicating how these impacts are addressed. 124 As highlighted in the Business and Human Rights in Technology Project (B-Tech Project), which applies the Guiding Principles to digital technologies, due diligence should apply to the conceptualization, design and testing phases of new products – as well as the underlying data sets and algorithms that support them. 125 The Toronto Declaration identifies three core elements or steps for corporate human rights diligence for machine learning systems: (a) identification of potential discriminatory outcomes; (b) prevention and mitigation of discrimination and tracking of responses; and (c) transparency regarding efforts to identify, prevent and mitigate discrimination. As highlighted in a recent report, preventive human rights due diligence approaches must be built “in multi-disciplinary teams that can identify blind-spots in AI and find systemic biases in context-specific environments along all lifecycle stages, starting in product development”.126 61. States must ensure that human rights ethical frameworks for corporations involved in emerging digital technologies are linked with and informed by binding international human rights law obligations, including on equality and nondiscrimination. There is a genuine risk that corporations will reference human rights liberally for the public relations benefits of being seen to be ethical, even in the absence of meaningful interventions to operationalize human rights principles. Although references to human rights, and even to equality and non-discrimination, proliferate in corporate governance documents,127 these references alone do not ensure accountability. Similarly, implementation of the framework of Guiding Principles on Business and Human Rights, including through initiatives such as the B-Tech Project, must incorporate legally binding obligations to prohibit – and provide effective remedies for – racial discrimination. 62. An inherent problem with the ethics-based approaches that are promulgated by technology companies is that ethical commitments have little measurable effect on software development practices if they are not directly tied to structures of accountability in the 122 123 124 125 126 127 18 See, e.g., Human Rights Committee, general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 8. Committee on the Elimination of Racial Discrimination, general recommendation No. 32, para. 23. See also Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009) on non-discrimination in economic, social and cultural rights, para. 11; and Committee on the Elimination of Racial Discrimination, general recommendation No. 29 (2002) on descent in the context of article 1 (1) of the Convention, sect. 7. A/HRC/17/31, annex, principle 17. See www.ohchr.org/Documents/Issues/Business/B-Tech/B_%20Tech_Project_ revised_scoping_final.pdf. See www.institut-fuer-menschenrechte.de/fileadmin/user_upload/Publikationen/ANALYSE/ Analysis_Business_and_Human_Rights_in_the_Data_Economy.pdf. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3518482.