The starting point of most discussions on business and human rights as an academic field is the acknowledgment that there exists no international judicial mechanism equipped to deal with gross human rights violations committed by businesses in the course of their operations. Indeed, the recently adopted United Nations Guiding Principles on Business and Human Rights, resulting from the remarkable work of John Ruggie and his team, do not provide for the establishment of any court or body which could deal with claims by victims of corporate abuse. The UN Working Group which is now continuing Ruggie’s work has been working on the implementation of the Guiding Principles but there seems to be no plan to set up an international judicial (or even non-judicial) mechanism in the near future.
Thus, the Guiding Principles largely depend on state action and corporate good will for their implementation. One example of state action to prevent and redress violations of human rights committed by companies outside their country of registration is the adoption of measures with extraterritorial implications, such as selective purchasing laws (i.e. procurement policies including human rights conditionality) or the assertion of direct extraterritorial jurisdiction in specific instances.
Extraterritoriality, which is the generic term used to cover these measures of prevention as well as proper judicial remedies for victims of corporate abuse, has therefore become a key word in the business and human rights discourse. Some United Nations human rights treaty bodies, such as the UN Committee against Racial Discrimination, and non-governmental organisations are clearly supporting the use of extraterritoriality and have even 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.
Because it may provide remedies for victims and it does address issues that are otherwise ignored, extraterritoriality is sometimes almost presented as a sort of magic potion that will help enhance corporate accountability for human rights violations committed overseas. I have looked into this in my recently published piece in the Journal of Business Ethics and unsurprisingly, have concluded that there is nothing magic about extraterritoriality. The concept, however, holds great potential not only to redress violations through court cases but, perhaps even more importantly, to prevent violations before they occur. There is a great deal that governments could do to influence the way companies operate and to foster a corporate culture that puts respect of human rights at the centre of its ethos: through strengthened reporting requirements and human rights-informed export credit and procurement policies to name but a few.
Yesterday I was fortunate to spend the day at a conference on the business and human rights challenges posed by mining in Colombia and Latin America organised by ABColumbia and the Human Rights Consortium, School of Advanced Studies, University of London.
With the first panel bringing representatives of indigenous communities of Colombia and the Colombian Ambassador to the UK at the same table to discuss the positive and negative impacts of mining, this won’t come as a surprise: no consensus was reached. That said, the first panel managed to shed light on the interests at stake: on the one hand the government sees it as an absolute necessity for Colombia to attract foreign investment. On the other hand certain mining projects have had devastating consequences on local populations, indigenous or simply rural, and as a result the affected communities can become hostile to all mining projects. No matter what one thinks about such positions, it is clear that proposed solutions overlooking any of these two points of view are bound to fail. Moreover, Colombia is currently in the process of negotiating an end to its 50-year conflict with the Revolutionary Armed Forces of Colombia (FARC). The context in Colombia is therefore not only the exploitation of resources by mining companies, sometimes to the detriment of local populations, but also widespread violence of paramilitary groups fueled by drug trafficking and prevalent corruption.
The second panel looked into the debated question of development and brought together a variety of people from industry and civil society. The third panel, which I chaired, was about the implementation of the UN Guiding Principles and what remains to be done, by both governments and businesses, to make them a reality. Speakers agreed that the Guiding Principles are really just a starting point for additional work in the area.
The last panel focused on “due diligence” and remedies, and also included a presentation on the bribery legislation in the UK, and its extraterritorial reach. One of the points that was made in the course of the discussions was that conducting human rights impact assessments, which is part of the due diligence requirements in the Guiding Principles, is not enough to avoid situations that can bring human rights violations and ensuing litigation. Andy Whitmore, from Indigenous Peoples Links, who is also a PhD candidate at Middlesex, spoke about the requirement of Free, Prior, and Informed Consent (FPIC) of indigenous peoples to projects that affect them as being a human right. He elaborated on the challenges to operationalising FPIC, both in general and in Colombia.