Brill has just published a new book entitled Natural Resources Grabbing:an International Law Perspective, edited by Francesca Romanin Jacur, Angelica Bonfanti and Francesco Seatzu. Dr Jérémie Gilbert and I have contributed a chapter on “Resources Grabbing and Human Rights: Building a Triangular Relationship between States, Indigenous Peoples and Corporations.”
The chapter explores the notion of permanent sovereignty over natural resources and outlines the ambiguous status of the right to freely dispose of natural resources as both a right of the state (under a number of UN General Assembly Resolutions) and a right of the peoples (under Article 1 of the two 1966 International Covenants). While the ambiguity remains under international law per se, developments in two distinct human rights areas shed some light on the issue.
First, the rise of indigenous peoples’ rights at the international level suggest that at least those peoples have some rights over resources found on the land they live on. Article 32(2) of the UN Declaration on the Rights of Indigenous Peoples exemplifies this. It establishes that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
Second, the UN Guiding Principles on Business and Human Rights, which the UN Human Rights Council endorsed in June 2011, establish a corporate responsibility to respect human rights. Under this framework, corporations are expected to ensure they do no harm, and they “should avoid infringing on the human rights of others” (Guiding Principle 11). Guiding Principle 12 states that the human rights covered include those listed in the International Bill of Human Rights (the Universal Declaration of Human Rights and both 1966 Covenants). The official commentary of Guiding Principle 12 further states that “business enterprises may need to consider additional standards” and refers to “United Nations instruments [that] have elaborated further on the rights of indigenous peoples.” In practice. this means that corporations are now expected to play a role in the realisation of human rights, which includes the right to freely dispose of natural resources, especially but not only, when the project is likely to impact indigenous peoples.
The chapter concludes on the idea that while the international human rights legal framework does not expressly outlaw resources grabbing, it clearly calls for dialogue between states, corporations and indigenous peoples to address the issue.
In June 2015 the African Commission on Human and Peoples’ Rights adopted a draft General Comment on Article 4 of the African Charter on Human and People’s Rights (Right to Life). Paragraph 10 of the document states that
Non-State entities such as private individuals and corporations, including private military and security companies, that are responsible for arbitrary deprivation of life should also be held accountable.
Treaty bodies such as the African Commission are tasked with monitoring the application of human rights instruments such as the African Charter. These instruments are theoretically applicable to states only. In their case law and when monitoring reports by states parties, treaty bodies have on many occasions mentioned the responsibility of states to prevent and redress human rights violations committed by businesses. For example, the African Commission noted in the 2001 case Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria that “contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil companies in particular, to devastatingly affect the well-being of the Ogonis” (para. 58).
Going further, United Nations treaty bodies have in recent years started to point to the responsibility of states, not only with regard to the activities of corporations on their territories, but also with regard to the activities of their corporate nationals abroad. I wrote here, here, here and here about this relatively recent extraterritoriality trend.
In 2013 the UN Committee on the Rights of the Child, in General Comment No 16 on State obligations regarding the impact of the business sector on children’s rights, suggested that Article 3(1) of the Convention on the Rights of the Child (on the best interests of the child), was “directly applicable to business enterprises that function as private or public social welfare bodies by providing any form of direct services for children, including care, foster care, health, education and the administration of detention facilities, among others.” The Committee, however, had not mentioned the direct responsibility of businesses that do not perform these types of functions.
Therefore, if the African Commission was to include paragraph 10 of the draft General Comment in the final version, it would be the first time, as far as I am aware, that a treaty body mentions the direct responsibility of corporations operating an entirely private business without performing state-like activities. This would be an important development and would further strengthen the corporate responsibility to respect human rights, in line with the UN Guiding Principles on Business and Human Rights.
The draft document is open for public consultations (more information here) and the deadline to send contributions is 1 September 2015.
Many thanks to my colleague Susan Scott-Hunt, Director of the Clinical Legal Education programme at Middlesex University London, for the info.
The Law Society of England and Wales has launched a Business and Human Rights programme to address increasing needs of their members and their clients in that area. About a year and a half ago the Law Society’s Business and Human Rights advisory group had recommended that business and human rights become part of legal training requirements and continued professional development. The new programme seems to have been launched in the same spirit and it is great to see that more is being done to educate legal professionals in business and human rights matters.
The Law Society have announced the following events and activities for 2015:
I am pleased to see that the Law Society has put together a strong consultancy team which includes Andrea Saldarriaga and Andrea Shemberg, who both co-lead the enlightening Investment and Human Rights Project at the London School of Economics.
For more information, you may contact the Law Society Human Rights and Rule of Law Policy Adviser, Sarah Smith (BHR@lawsociety.org.uk).
Last week I had the privilege to participate to a workshop on the proposed business and human rights treaty held at the Universidad Autónoma de Madrid in Spain and co-organised by that university and the Graduate School of Government and European Studies (Kranj, Slovenia).
The workshop brought together both supporters and opponents to the treaty from around the world, and perhaps more importantly given that the drafting process is clearly under way at this point, led to interesting discussions with regard to the contents of the future treaty. In my presentation, I chose to talk about the issues related to the possible inclusion of corporate criminal liability for international crimes in the future business and human rights treaty.
I aimed to answer three questions:
(1) Why including corporate criminal liability for international crimes in the future business and human rights treaty?
(2) How to do it?
(3) What are the main remaining questions that would have to be solved before proceeding?
(1) The main reason for including corporate criminal liability for international crimes in the treaty is that arguably it is a less controversial area than that of the existence of corporate obligations for “simple” human rights violations. Therefore it could be a relatively easier way to move the discussions forward and to avoid a possible dead end.
(2) I see three main ways of doing it: (a) Following the model of the UN Convention against Torture, the treaty could provide for a state obligation to prosecute, at the domestic level, corporations suspected of international crimes; (b) Following the model of the 1948 Genocide Convention, the business and human rights treaty could set up a system to refer cases to the ICC (c) A third option is that no business and human rights treaty is created, but the statute of the ICC is amended anyway.
(3) The pressing questions that would have to be solved have to do with the required mental element with regard to complicity liability under international criminal law, an area which has given rise to great uncertainty in recent years in the context of Alien Tort Statute litigation in the United States. Another pressing question would be related to the links between the treaty and the International Criminal Court Statute.
My article on corporate criminal liability was just published in the latest issue of the Journal of International Criminal Justice. It is based on the New TV S.A.L. and Akhbar Beirut S.A.L. contempt cases at the Special Tribunal for Lebanon. I have discussed the cases on this blog here, here and here.
Here is the abstract:
Relying on the Tribunal’s inherent powers, the Appeals Panel of the Special Tribunal for Lebanon decided in two cases, New TV S.A.L. and Akhbar Beirut S.A.L., that the Tribunal has jurisdiction over corporations for the offence of contempt. They decided so despite the absence of a clear provision explicitly granting such jurisdiction. This is the first time an international criminal tribunal asserts jurisdiction over legal persons. The article critically presents the Appeals Panel’s findings and places them in their historical and international context. Although limited in scope, the decisions are of great significance as business and human rights developments at the international level have emphasized the need for enhanced corporate accountability.
In its 2015 manifesto the UK Conservative Party pledged to “scrap the Human Rights Act” (p. 60). Having won a clear majority in the recent election, David Cameron and his new conservative government are now in a position to do just that. Repealing the Human Rights Act would mean less government accountability and would negatively affect the daily lives of millions of British people. Some have also warned against the risks of contagion to other countries, including Putin’s Russia, putting millions of others in an even more vulnerable position .
The Human Rights Act is the landmark piece of legislation, adopted by Parliament, that has incorporated the European Convention on Human Rights into UK law. Section 6(1) of the Human Rights Act provides that “it is unlawful for a public authority to act in a way which is incompatible with a [European] Convention [on Human Rights] right”. It is a guarantee against arbitrary decisions as it ensures that the government respects the rule of law and human rights at all times, in everything they do. At first glance, therefore, repealing the Human Rights Act would not have any direct impact on the field of business and human rights. After all, the Act requires public authorities, and not companies, to respect human rights.
However, I see four main ways in which the repeal of the Human Rights Act would impact the field of business and human rights.
1. It would set a bad example for companies
The UK prides itself on having been the first country to come up with an Action Plan implementing the 2011 UN Guiding Principles on Business and Human Rights (discussed in this blog here). On paper it is determined to ensure that British companies do no harm when operating abroad. It has also adopted legislation to force large companies to report on their human rights performance. Both initiatives, though limited in scope, are nevertheless of important symbolic significance. The problem with the UK repealing the Human Rights Act, therefore, is that the government’s authority in the human rights area would be greatly diminished. To put it bluntly: who would want to listen to human rights recommendations emanating from a government who disregards human rights? It looks to me like a clear case of “do as I say, not as I do”.
The consequences of this should not be overlooked, especially because it is clear that leadership plays a great role in the business and human rights area. It is about creating the right circumstances for a virtuous corporate culture to develop. But why should businesses bother when those in power don’t?
2. It would deny victims of corporate abuse the possibility to get remedies in the UK
Although there has not been any clear business and human rights cases before the European Court of Human Rights, the Court has held before that states are under an obligation to prevent human rights violations committed by non-state entities, such as corporations. In the landmark 1994 Lopez Ostra case, the Court held that Spain had violated the right of the applicant under Article 8 (right to private life) by failing to prevent a company from polluting the environment, which had negatively affected the applicant’s quality of life.
If the Human Rights Act was to be repealed, victims of similar abuses in the UK would not be able to use Article 8 against the UK authorities before domestic courts should the authorities fail to protect the victims’ rights against corporate abuse. The only way to pursue a human rights claim on the basis of the Convention would be for victims to go before the European Court of Human Rights directly, assuming of course that the new government won’t pull out of the Convention altogether.
3. It would create specific accountability gaps for victims of abuses by companies carrying out public functions such as running prisons or care homes
A number of private companies in the UK run detention centres and care homes, functions that were traditionally carried out by the state. There has been uncertainty over whether the Human Rights Act applies to these situations, or whether it is actually acceptable for the government to ‘contract out its human rights obligations’ (UK Parliament, Report of the Joint Committee, 2009, para. 134). Repealing the Human Rights Act would settle the issue in a highly dangerous way: potential victims, such as vulnerable elderly people, would be placed in a position where their rights would not be adequately protected.
4. It would deny companies, and not only individuals, the protection of the Convention
Finally, I think it’s worth mentioning that business and human rights is also about the ‘human rights’ of businesses. Companies may suffer from violations of their rights, as exemplified by some key cases of the European Court of Human Rights brought by news companies in relation to the right to freedom of expression (Observer and Guardian v UK, 1991). As for individuals, repealing the Human Rights Act would mean going back to the pre-Human Rights Act situation in which human rights cases had to be brought directly to Strasbourg, which is much more complicated, long and uncertain. Surely, this is not in the interests of any business.