On 3 April 2014, 9 Bedford Row Chambers, in partnership with Middlesex University School of Law will hold their annual conference on international law. This year they have chosen 2 themes: “Human Rights in Post-Revolution States” and “Human Rights at Sea.” I will speak in the morning on “Corporate Accountability in Transitional States” and will look at how business and human rights issues are dealt with by transitional justice mechanisms, when they exist.
The conference will take place on board the HMS President on the Thames in the heart of London, a really great historical venue.
Tickets can be purchased here (6 hours CPD).
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I. Difficulties around the contents of a business and human rights treaty
In September 2013 Ecuador together with a group of states asked the UN Human Rights Council to consider drafting a binding business and human rights treaty, building on the UN Guiding Principles on Business and Human Rights. They have received support from a number of NGOs (see also this). They have also received advice to only go that route with great caution from the former UN Secretary-General Special Representative on Business and Human Rights, Prof. John Ruggie, the father of the Guiding Principles for all practical purposes.
It is unclear what Ecuador has in mind in terms of contents. If they want to simply list state obligations with regards to business activities on their territories, then arguably no further treaty is required as all existing human rights treaties encompass obligations to prevent violations by third parties, in this case businesses. The only added value of such a treaty would perhaps be the creation of a treaty body to monitor its implementation, following a well-established UN model. All things considered, this would not be very onerous.
But Ecuador and its allies on this may want to go further and include in the treaty a list of state obligations with regards to the extraterritorial activities of companies domiciled on their territories, hence clearly targeting western states which remain the leading capital-exporting countries. While a number of UN treaty bodies have suggested that states do indeed have obligations in this regard under existing human rights treaties (I presented on this at the Norwegian Centre for Human Rights in November 2013) the contours of such obligations are still unclear. For example, does that mean, as suggested in the Guiding Principles, that states “should set out clearly the expectation” that companies operating abroad should respect human rights? Or does that mean, going further, that states actually have an obligation to provide victims of violations with a remedy? A treaty would have to clarify this point, which is currently highly disputed.
Perhaps Ecuador wants to go even further and enter the minefield that is the recognition that companies have human rights obligations under international law. This route was essentially abandoned in 2004 after the failure of the UN Draft Norms, and it is an understatement to say that it is a vast area of academic debate. The most uncontroversial aspect of it, as John Ruggie highlighted it in his contribution, is the idea that corporations should not commit human rights violations amounting to international crimes. But for the vast majority of violations that fall short of international crimes, there is little agreement.
II. A proposed way out: focus on investment law
Given the complexity of the subject and the lack of consensus around many of its aspects, perhaps the way forward is not to shut the door to the very idea of a treaty, but to pursue a less ambitious goal. With this in mind, I suggest we focus our efforts on the international investment legal framework. International investment law is a solid branch of international law, with established rules and principles. Today there are over 3,000 bilateral investment treaties (BITs) in force, which clearly shows that states crave legal certainty in the area. Reviving the idea of a Multilateral Agreement on Investment (MAI) will undoubtedly sound rather scary to some, who may not be willing to awaken the beast. Negotiations for the MAI at the Organization for Economic Cooperation and Development (OECD) failed at the end of the 1990s, partly because of strong disagreements over the inclusion of human rights considerations in the text. Some have blamed “NGOs” for the failure of the treaty. Re-opening negotiations, therefore, may seem like a very bad idea.
However, I would argue that the context has significantly changed since then. The very idea of including human rights considerations in BITs is now more widely accepted. The US model BIT of 2012 contains labour clauses. The UK Action plan for the implementation of the UN Guiding Principles on Business and Human Rights lists among the new actions planned by the government that they will “ensure that agreements facilitating investment overseas by UK or EU companies incorporate the business responsibility to respect human rights, and do not undermine the host country’s ability to either meet its international human rights obligations or to impose the same environmental and social regulation on foreign investors as it does on domestic firms.”
Beyond these anecdotal changes, the formidable convergence around the UN Guiding Principles (reflected in official discourse of the OECD, the European Union and the International Finance Corporation to name but a few) is perhaps the stronger sign that things have changed and the thought that human rights now form part of the global discourse on business in general, and investments in particular, is not so incongruous. In this new context, it may be time to awaken the beast indeed and to re-open negotiations for a Multilateral Agreement on Investment, which would include both home and host state duties to protect human rights, the corporate duty to respect human rights and the principle that victims should have access to remedies in host or home states. In short, it would set the discussions on a “binding business and human rights treaty” within a clear, relatively self-contained framework.
Although this blog is about business and human rights I have decided to make an exception. Yesterday Reverend Jesse Jackson, legendary civil rights activist and runner for Presidential nomination in the United States in 1984 and 1988, came to my home institution, Middlesex University, and addressed our students and my fellow staff members. In his 1-hour talk, he covered some of the historical moments of the civil rights movement in the United States including the assassination of Martin Luther King, which he witnessed. Those times were about freedom, he said, but now it is about equality.
On his UK tour which marks the 50th anniversary of King’s “I have a Dream” speech (this gives me goose bumps every single time!) he visited Oxford, Cambridge and Middlesex Universities. He praised Middlesex for being a diverse university, as opposed to its more prestigious counterparts.
His speech was powerful, witty and truly inspiring. He even had the audience recite parts of the “I am. Somebody” poem, just like he did with the children in the famous Sesame Street episode of 1971. I admit this is something I didn’t think I would ever get the chance to do!
The British Equality and Human Rights Commission, which is the National Human Rights Institution for Britain, has launched a project on recruitment and employment practices in the cleaning sector, building on their enlightening report on the meat and poultry processing sectors, published in 2010. They are calling for evidence from cleaners, employers and trade unions, and will conduct interviews in the coming months.
This is a sector where the human rights risks are important as the workforce is 60% female, 37% migrant workers, 59% part time and 22% aged over 54. It is also a sector most of us working in an office environment are users of, even though we may only rarely see cleaners as they work after or before office hours.
I really look forward to seeing the results of this and hope that it will bring about positive developments in the cleaning sector, as has happened in the meat and poultry processing sectors thanks to the Commission’s previous project.
After the University of the Witwatersrand (South Africa) and Harvard University, my research leave has now brought me to the Norwegian Centre for Human Rights in Oslo, where I am spending a few days as a visiting researcher.
On Tuesday I gave a presentation on the extraterritorial obligations of states in the area of business and human rights as part of the Centre’s “Human Rights and Development” research group lunch series. I reviewed the evolving positions of the UN treaty bodies on this question and commented on the latest developments. These are:
The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad. [para. 16]
2. General Comment No 16 of the Committee on the Rights of the Child on State obligations regarding the impact of the business sector on children’s rights, which I reviewed in a previous post, and were issued in March 2013.
3. The Human Rights Committee’s recently published list of issues in relation to the upcoming examination of Ireland in 2014, which contains the following paragraph:
Please provide information on how the Government addresses concerns regarding the activities of private businesses based in the State party that may lead to violations of the Covenant outside the territory of the State party.
This is a fast growing area within the business and human rights field and one with numerous opportunities for developments, which I will try to keep track of on this blog.
Three NGOs, the Open Society Justice Initiative, Conflict Awareness Project and TRIAL (Track Impunity Always) have joined forced to advance the fight against the looting of natural resources in conflict zones.
The “Stop Pillage” Campaign (#StopPillage on Twitter) seeks to hold perpetrators and accomplices of pillage around the world accountable by gathering reports, conducting investigations, building cases for criminal complaints, and raising global public awareness. They have put together a really good video which I highly recommend.
The difficulties in holding corporations and corporate leaders to account for this kind of behaviour are many. Often the crimes occur in areas of weak governance, where nothing can be expected from the local authorities. Another option is to initiate proceedings in the countries of incorporation of the parent companies, or of residence of the individuals but this raises often insurmountable jurisdictional issues, not to mention the costs that are prohibitive for disempowered victims living on the other side of the world. A final option is prosecution by the International Criminal Court, for example on the basis of the nationality of the offender (Article 12 ICC Statute). The problem is that since the Court is supposed to focus on the worst crimes and the worst perpetrators, this kind of accomplice liability is unlikely to be considered “grave enough” for the Court to look into it. Moreover the Court does not have jurisdiction over corporations, only individuals.
On 14 November 2013 the New York Times published an interesting article on this issue by James G. Stewart, an assistant professor of law at the University of British Columbia and formerly part of the office of the prosecutor of the International Criminal Tribunal for the Former Yugoslavia.
My article on extraterritoriality and business accountability for human rights violations, which was published in November 2012 in the online version of the Journal of Business Ethics (see blog post on this), was selected for publication in the latest completed journal issue. The exact references are: “Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?”, Journal of Business Ethics, October 2013, Volume 117, Issue 3, pp. 493-511.
The article can be viewed here.
The United Nations Guiding Principles on Business and Human Rights, resulting from the work of John Ruggie and his team, largely depend on state action and corporate good will for their implementation. One increasingly popular way for states to prevent and redress violations of human rights committed by companies outside their country of registration is to adopt measures with extraterritorial implications, some of which are presented in the article, or to assert direct extraterritorial jurisdiction in specific instances. Some United Nations human rights bodies and non-governmental organisations are clearly supporting the use of extraterritoriality and have argued that international human rights law places an obligation on states to embrace extraterritoriality so as to better control the activities of companies registered on their territories. In this context, the article aims to determine whether extraterritoriality is the magic potion that will help enhance corporate accountability for human rights violations committed overseas. The article explores whether such obligation exists and, beyond this, whether extraterritoriality should be further encouraged.
Today I gave a talk at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) of the University of Johannesburg on “Multinational Corporations and the Apartheid Regime.” The Institute is located on Constitution Hill, in the Old Fort where Nelson Mandela was briefly imprisoned in the 1950s. What a fantastic place to talk about human rights!
We had a great discussion with the participants and I think it was the perfect way to end my short stay in South Africa. Sadly, I am leaving tomorrow.
SAIFAC is doing work in the area of business and human rights and the Director of the Institute, Prof. David Bilchitz, has co-edited a book on Human Rights Obligations of Business which came out this year and was published by Cambridge University Press. I look forward to engaging more with the Institute in the future.
For the next two weeks I am based at the University of the Witwatersrand in Johannesburg as a visiting researcher. South Africa and its extraordinary transformation from Apartheid to democracy is of course of great interest to a human rights scholar. I spent the week end immersing myself into the country’s troubled past and visited the highly recommended Apartheid Museum, as well as the famous township of Soweto.
On Wednesday 16 October I will deliver a lecture entitled “Should Multinational Corporations be Held Liable for Having Done Business with the Apartheid Regime?” The question is undoubtedly controversial and has been specifically looked at in two separate and prestigious forums: the South African Truth and Reconciliation Commission (TRC) and US Federal Courts. I wrote about the proceedings before US Courts in a previous blog post.
The issue of liability is of both a moral and legal nature. Establishing liability in law necessarily implies a strict chain of causation, and as demonstrated by the Apartheid litigation in the United States, complex jurisdictional questions arise that can stand in the way and prevent the case from being considered on the merits. By contrast, if one phrases the question as a purely moral one, it is much easier to establish links between global business and rogue regimes, such as the Apartheid regime. The TRC adopted the latter approach and although it is more cautious in other parts of the report it eventually concluded, quite bluntly, that
Business was central to the economy that sustained the South African state during the apartheid years. Certain businesses, especially the mining industry, were involved in helping to design and implement apartheid policies. Other businesses benefited from co-operating with the security structures of the former state. Most businesses benefited from operating in a racially structured context. [TRC Report, Vol IV, Chapter 2, para. 161].
What is particularly interesting in the South African example is that room was made for the question of liability to be approached from both moral and legal angles, arguably allowing for a better and perhaps more balanced understanding of the issues.
Today I am spending the day at the beautiful Cumberland Lodge in Windsor’s Great Park, where an expert meeting on business and human rights indicators is being held. The meeting is convened by an Organizing Committee of four PhD students, all working in the business and human rights field. They, and a research team of junior and senior experts, drafted an initial working document on business and human rights indicators which forms the basis of our discussions for the day. I contributed to the process by providing some comments on an earlier draft a few weeks ago.
The very idea that one can translate human rights abuses into numbers, which can then be compared, is controversial and there are numerous challenges associated with the development of meaningful indicators. Among many other difficulties, there’s fear that the human dimension can be lost if violations are expressed using numbers, as opposed to narratives. There’s also fear that companies would satisfy themselves with simply being better than their competitors, as opposed to strive for a 100% human rights compliant record. This last point is particularly contentious as the basic premise of human rights is that each violation (and each victim) matters. Thus for human rights defenders the fact that despite some violations a company could still get a relatively good score is hard to swallow. Another challenge has to do with who would make the evaluation and would come up with eventual figures: NGOs, “independent” experts, businesses themselves, consultants, a multi stakeholder group, etc. ?
Despite these challenges I am keen on the idea of developing indicators. I think indicators could be a useful complement to other ways to measure corporate responsibility to respect human rights, such as drafting NGO reports.
The reality is that some business and human rights indicators already exist and are being used, for example by institutional investors. Therefore, the question is not whether it can be done, but how to do it as well as possible. In a nutshell, the argument really is that we need to occupy that space, otherwise others will. Also, we don’t need a comprehensive framework that would measure compliance with all rights by all companies. In fact this is probably impossible to do, as today’s discussions have illustrated. Rather my view is that we need to initiate the process, perhaps by focusing on just a few rights in selected sectors, for example the right to health in the mining sector.