2013 is the year where everything seems to be happening in the business and human rights area. We now have a final decision in the Kiobel v Royal Dutch Petroleum Co saga before US Courts. And the much-awaited UK action plan implementing the 2011 UN Guiding Principles on Business and Human Rights is finally out. The government took its time to produce it and there was no shortness of consultations. In that context, expectations – at least my expectations – ran high.
The action plan document does not begin well. The first sentence opens with a reference to the dreaded “business case for respect for human rights”. I ought to write more about this at some point but it is still beyond me that anyone would consider it even remotely necessary to convince businesses that human rights should be respected. The message really ought to be that they have no say in the matter. By way of example, as an individual, do I have a say about whether or not to comply with the law and to refrain from harming other human beings? No. So why should businesses do? This is nonsensical.
Anyway. Beyond this initial disappointment, I have to be honest: while I am not impressed by this Action Plan, it contains some good ideas. One point caught my eye, the one about ensuring “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 in particular in the field of foreign investment.” Having spent the past weeks reading about investment arbitration, I can only be happy to read this. Sure, I would have preferred this to say that businesses have a legal obligation to respect human rights and that they would face prosecution, or administrative sanctions, or could be sued in tort if they don’t abide by this obligation, but even in my wildest dreams I knew this was not going to happen. So I will take this and I look forward to seeing this implemented in future Bilateral Investment Treaties.
Speaking of business activities overseas, one point is made crystal clear: the action plan supports “access to effective remedy for victims of human rights abuse involving business enterprises within UK jurisdiction,” but not outside the UK jurisdiction. While UK Courts are under an obligation to take on civil cases involving UK companies, no matter where the tort was committed, under the old Brussels I regulation (now in the process of being replaced by Regulation (EU) No. 1215/2012), this does not mean that victims will receive specific support to bring their case. In effect, it will continue to be a challenge, to say the least. This does not come as a surprise in the context of the recent legal aid reform but I think it is still worth mentioning.
The Action Plan is dense and I am sure I will get the opportunity to write about other aspects of it in the coming months, so watch this space.