Last night I had the pleasure to participate to one of the Guardian Sustainable Business Quarterly events on “Business & human rights – Implementing principles and solving dilemmas”. The event started with a panel discussion between Hans Daems (Head of public affairs at Hitachi), Faris Natour (Human rights director at BSR), Susanne Stormer (Vice President of corporate sustainability at Novo Nordisk) and Ola-Jo Tandre (Director of corporate responsibility at Telenor). By and large it was a good, high-level discussion. While some of the things said made me shiver (like “Human rights is the new black”) the conversation was interesting in many ways, especially when the panelists moved beyond PR talk and explained where exactly their business may impact human rights, and the various ways they have attempted to address the issues. I particularly enjoyed Susanne Stormer’s straightforward style. One of the stories she shared was her discussion with one of their suppliers during which she asked them whether they had children working in their supply chain. Offended, the suppliers replied: “How dare you ask this to us? And by the way we don’t have the slightest idea about whether we do or no”. Typical, I guess!
After that we moved on to the roundtable discussion. I chaired a discussion on a “community relocation” business and human rights dilemma. My fellow panellists were professionals with a good mix of backgrounds and working in various sectors (banking; an extractive company; an ethical fashion company; a law firm; academia; a consultancy; a News company). It was really interesting to see how everyone approached the dilemma and suggested how the company facing this hypothetical dilemma should react. In the end we came up with 3 recommendations, all in line with the UN Guiding Principles.
It was a pleasant and informative evening, so thank you to The Guardian Sustainable Business for organising it and inviting me.
A special thank you to Dr. Olga Martin-Ortega for the info about the adoption of the General Comment.
On 15 March 2013, the UN Committee on the Rights of the Child adopted General Comment No 16 on State obligations regarding the impact of the business sector on children’s rights. The comment has emerged from the realisation that “business can be an essential driver for societies and economies to advance in ways that strengthen the realisation of children’s rights through, for example, technological advances, investment and the generation of decent work. However, the realisation of children’s rights is not an automatic consequence of economic growth and business enterprises can also negatively impact children’s rights” [para. 1].
The link between this General Comment and the adoption of the UN Guiding Principles on Business and Human Rights in 2011 is clear. Using the now famous “protect, respect, remedy” terminology, the Committee highlights that “the General Comment aims to provide States with guidance on how they should: ensure that the activities and operations of business enterprises do not adversely impact on children’s rights [protect]; create an enabling and supportive environment for business enterprises to respect children’s rights including across any business relationships linked to their operations, products or services and across their global operations [respect]; and ensure access to effective remedy for children whose rights have been infringed by a business enterprise acting as a private party or as a State agent [remedy]” [para 5].
Other relevant texts are also mentioned, such as the OECD Guidelines for Multinational Enterprises, the Global Compact and several ILO Conventions.
The General Comment is divided in 4 main parts.
I. General principles of the Convention as They Relate to Business Activities
Taking the text of the 1989 Convention on the Rights of the Child as a starting point, the Committee focuses on four principles/rights and points to specific action States should take to ensure that businesses do not violate them. These principles/rights are: the right to non-discrimination (Article 2 CRC); the principle of the best interests of the child (Article 3(1) CRC); the right to life, survival and development (Article 6 CRC); and the right of the child to be heard (Article 12 CRC).
With regards to the right to non discrimination, the recommended State actions include, for example, the collection of “statistical data that is appropriately disaggregated and other information to identify discrimination against children in the context of business activities and operations” and the establishment of “mechanisms (…) to monitor and investigate discriminatory practices within the business sector” [para 13].
Concerning the principle of the best interests of the child, “States must ensure that the best interests of the child are central to the development of legislation and policies that shape business activities and operations such as those relating to employment, taxation, corruption, privatisation, transport and other general economic, trade or financial issues” [para. 15]. Moreover, and crucially, the Committee makes clear that “Article 3(1) is also 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.” [para. 16]
In relation to the right to life, survival and development, the Committee recommends effective regulation to address, among other things, “environmental degradation and contamination arising from business activities can compromise children’s rights to health, food security and access to safe drinking water and sanitation” [para 19].
Finally, regarding the right of the child to be heard, the Committee recommends that States ensure that children are not left out and can be heard when “business consults with communities that may be affected by a potential business project” [para 23].
II. Nature and scope of State obligations
The Committee then proceeds to spell out what the obligations of states to respect, protect, fulfil and provide remedies may be when it comes to addressing the impact of the business sector on children’s rights. Respecting such rights entails that “a State should not engage in, support or condone abuses of children’s rights when it has a business role itself or conducts business with private enterprises. For example, States must take steps to ensure that public procurement contracts are awarded to bidders that are committed to respecting children’s rights” [para. 27].
The obligation to protect “means that States must take all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights. Such measures can encompass the passing of law and regulation, their monitoring and enforcement, and policy adoption that frame how business enterprises can impact on children’s rights” [para. 28].
The obligation to fulfil, “requires States to take positive action to facilitate, promote and provide for the enjoyment of children’s rights (…). To meet this obligation, States should provide stable and predictable legal and regulatory environments which enable business enterprises to respect children’s rights” [para. 29].
The obligation to provide remedies means that states have “in place child-sensitive mechanisms -criminal, civil or administrative- that are known by children and their representatives, that are prompt, genuinely available and accessible and that provide adequate reparation for harm suffered” [para. 30].
III. State obligations in specific contexts
Next, the Committee lists specific contexts in which “the impact of business enterprises can be significant and where States’ legal and institutional frameworks are often insufficient, ineffective or are under pressure”. These are: 1/ business’ provision of services for the enjoyment of children’s rights; 2/ the informal economy; 3/ the consequences of the global operations of business, with responsibilities being shared among a number of business entities (parent company, subsidiary, contractor, supplier, etc) operating in different countries which can lead to difficulties of a jurisdictional nature; 4/ the adverse impact of policies imposed by certain international organisations. 5/ Emergency and conflict situations.
The third element listed is particularly interesting to me as the Committee clearly embraces extraterritoriality as a way to enhance corporate accountability for human rights violations, wherever they may have occurred, a point I wrote about in a previous blog post and an article in the Journal of Business Ethics. The 2011 Guiding Principles recognised that States may act extraterritorially to protect human rights, but without mentioning an obligation to do so. In this General Comment, the Committee on the Rights of the Child clearly goes one step further and talk about state “obligations to respect, protect and fulfil children’s rights in the context of businesses’ extra-territorial activities and operations provided that there is a reasonable link between the State and the conduct concerned. A reasonable link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned” [Para. 43]. There, the Committee on the Rights of the Child is adopting the position other UN treaty bodies have adopted before (e.g.: Committee on Economic, Social and Cultural Rights, General Comments No. 14, No. 15 and No. 19 ; Committee on the Elimination of Racial Discrimination, Concluding observations on Canada).
IV. Framework for Implementation
The General Comment then moves on to the framework for implementation that includes legislation, regulation, and other types of measures and actions.
The General Comment is to be welcomed, if only because one more UN treaty body has now embraced the idea that states have extraterritorial obligations when it comes to regulating business to avoid human rights violations committed abroad. It also shows that mainstreaming of the UN Guiding Principles within the UN Human Rights mechanisms is under way, two positive developments.
Last night John Ruggie, former UN Secretary-General Special Representative on Business and Human Rights, was in London to launch his new book, Just Business: Multinational Corporations and Human Rights. Professor Ruggie, from the Kennedy School of Government at Harvard University, was the driving force behind the ‘Protect, Respect, Remedy’ Framework and subsequent Guiding Principles on Business and Human Rights, endorsed by the UN Human Rights Council in June 2011.
It was a great evening of celebration hosted by the Institute for Human Rights and Business at the Royal Society, at a stone’s throw from Trafalgar Square. Three speakers took the floor before him, representing the three main groups of stakeholders in the Business and Human Rights field: governments, business and the non-governmental sector.
Vijay Rangarajan, from the UK Foreign and Commonwealth Office, insisted on the formidable accomplishment the Guiding Principles represent. He said that anyone who works in foreign affairs should measure the extent to which the adoption of the Guiding Principles constitutes a diplomatic tour de force. Sir Mark Moody Stuart, Vice Chairman of the UN Global Compact Board, gave the business perspective on the process by which the Guiding Principles were elaborated and emphasized the importance of now having Guiding Principles when there was previously no common standard. He compared the task John Ruggie was faced with at the start of his mandate to one of a general faced with a devastated battlefield from the First World War, i.e. hopeless, with no movement. Peter Frankental from Amnesty International UK acknowledged the fact that the Guiding Principles constitute a great achievement but also insisted on the numerous remaining challenges in the field of business and human rights.
Finally, John Ruggie himself said a few words about his mandate and the journey that led to the adoption of the Guiding Principles, before proceeding to sign copies of his book for the guests. I was one of the first persons to have my copy signed and when I left one hour later, he was still signing away. The publishers even ran out of copies!
A truly pleasant and inspirational evening.
In his own words, “the blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland”. While the focus is on Ireland, he “hope[s] to bring an international perspective on business and human rights, and draw on developments taking place at the United Nations and other international organisations, as well as regionally and in national contexts”.
Welcome to the blogging world!
Yesterday the UN Special Rapporteur on Extreme Poverty and Human Rights, Dr Magdalena Sepulveda Carmona, spoke at Middlesex University’s debate on “Does Austerity Harm our Human Rights?”. She was joined on the panel by Professor Joshua Castellino, Dean of the School of Law and member of the UN Sustainable Development Solutions Network and Dr Elvira Dominguez Redondo, Senior Lecturer in Law.
She highlighted the growing view that governments who adopt austerity measures (essentially, cuts) are not doing the right thing and that economists around the world are now questioning these kinds of policies. To her these measures have two main human rights consequences. First, the process by which they came to be implemented lacks the elements that are traditionally associated with the human rights approach, participation, transparency, and access to information. She also pointed out the fact that no impact assessments were carried out prior to the adoption of these damaging policies. Second, she talked extensively about the adverse impact these measures have had on the poor, especially on women and children, who are the most affected.
I certainly agree with her that poverty is a human rights issue even though it is sometimes difficult in Western countries to present it in that way. This is linked to a much wider question which Professor Castellino addressed in his presentation. He questioned whether human rights, in particular international human rights law, provide an adequate framework to tackle the problem. He recalled that human rights have been shaped around civil and political rights, for example at the United Nations, and that it has been difficult to get out of this mindset. For example, he argued that the official discourse of the UN is now centred around the indivisibility of human rights, in other words the fact that human rights include all rights from civil and political to economic, social and cultural rights. Therefore at the institutional level, economic, social and cultural rights are now considered on the same level as civil and political rights. Nevertheless, he said, things have not changed at the international level where, for example, an organisation like the World Trade Organisation produces norms that are based on the assumption that developing countries should remain the playground of multinational corporations. He referred to Paul Collier’s seminal book, The Bottom Billion, in which the author speaks about the one billion people in the world who are beyond the reach of the law and for whom human rights, at present, provide no valuable solution. Professor Castellino used the metaphor of a person dying on the street after being hit by a car, who sees a ray of hope when an ambulance arrives, only to see two dentists coming out of the ambulance starting to argue about the state of the dying person’s dental hygiene. So, do human rights provide solutions that no one, or at least not the poor, really needs?
Dr Sepulveda Carmona acknowledged that the human rights movement has played virtually no role against poverty as such but she further argued that the human rights discourse is useful and valid as a mobilisation tool and should not be overlooked. Incidentally, she mentioned the fact that when her mandate was created in the 1990s, it was on “the question of human rights and extreme poverty”, as if governments were not sure there was a link between the two ideas and needed some expert to explore the issue further. Now her mandate is “extreme poverty and human rights”, showing some form of realisation by governments that there is a link and that it’s real.
Dr Sepulveda Carmona concluded with two main points. First, she forcefully stated that human rights are not about charity, but entitlements. They should be an empowerment tool, not a tool to keep people in the vulnerable position they are in. Second, she remarked that the adverse effects of structural adjustment policies imposed on Latin American and other countries for several decades have been well documented. Nevertheless, she said, the fact that poverty is now spreading in Europe due to the same kinds of policies has opened a window of opportunity to really question these policies. Indeed, poverty is now touching the population of states who thought they were immune from this. The crisis has changed the deal and now that they are faced with these problems at home, Western governments may be more willing to deal with them.