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.
This past week I participated in a Conference on “Natural Resources Grabbing: Erosion or Legitimate Exercise of State Sovereignty” organised by the University of Cagliari, in Sardinia. The joint paper my colleague Dr Jérémie Gilbert from the University of East London and I presented there is on “Resources Grabbing and Human Rights: Building a Triangular Relationship between States, Indigenous Peoples and Corporations”.
The starting point of the paper is the idea that under international law, two potentially contradictory rights co-exist: permanent sovereignty over natural resources, which is a right of the state; and the right of peoples to freely dispose of their natural resources. The right of peoples to dispose of their natural resources is guaranteed under Article 1 of the two main United Nations Human Rights Treaties, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Despite this prominent place under international human rights law (first article, present in both treaties), this right, as a right of peoples, was essentially dormant until the UN Human Rights Committee, the body monitoring the implementation of the ICCPR, started to ask states to comply with it in relation to indigenous communities. In parallel indigenous peoples rights were gaining significant international attention with for example the adoption of the UN Declaration on the Rights of Indigenous Peoples in 2007.
The paper then looks at the UN Guiding Principles on Business and Human Rights. By affirming the existence of a corporate responsibility to protect human rights, and by indicating in Guiding Principle 12 that “human rights” include both Covenants, the UN Guiding Principles actually require corporations not to violate the right of peoples to freely dispose of their natural resources. In practice, this means at a minimum a right of peoples, indigenous and non-indigenous alike, to consent (and therefore to say no) to operations affecting their access to resources. It may also mean that peoples should be given a seat at the negotiation table together with state authorities and international investors, so that these peoples can secure a share of the benefits the investment will bring.
In sum, the paper argues that the development of a legal framework on indigenous peoples under international human rights law, as well as the adoption of the UN Guiding Principles by the UN Human Rights Council in 2011, have somewhat revived the otherwise neglected right of peoples to freely dispose of their natural resources. This right holds great potential in the business and human rights field.