An evolving international framework on Business and Human Rights

1. An evolving international framework on Business and Human Rights Regional Strategy Meeting | 27 January 2012 Shiwei Ye, FIDH sye@fidh.org 3 3

2. Business and Human Rights : Business- and investment-related impacts on Human Rights • Extractive industries / rights of ethnic minorities • Environmental impact • Corruption and siphoning off of state funds to the detriment of basic health and social services • Land grabbing/ right to food • IPR and access to essential medicines • Hiring of private/government security forces for protection; fueling local conflicts • Denial of justice for victims of toxic waste (UK, NL, France, Côte d'Ivoire) • IT companies complicit in surveillance and censorship

3. Limited responsibility ? Universal Declaration of Human Rights (1948) : « every organ of society (…) shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance ».   International human rights law is developed by States and for States : Not directly binding on non-state actors. States have a duty to ensure other actors also respect of human rights Governance gaps : • Host States are not willing or able to ensure respect of their national legislation by multinational corporations • Legal structure of multinational corporations help them escape liability for human rights abuses. • States not willing or able to exercise extraterritorial obligations to protect/fulfill human rights A permissive environment for wrongful acts by companies

4. Business responsibility Limited accountability Parent Company control profit limited liability Inequality of arms Subsidiary/ Business partner communities 3rd country Independence of the judiciary Suppliers/ subcontractors

5. Development of Soft Law Towards Recognition of Business' Responsibilities with Regard to Human Rights • ILO Tripartite Declaration • OECD Guidelines for Multinational Entreprises + policy paper on rights-based approach to development • UN Global Compact • Multi-stakeholder initiatives (extractives, supply chains...) • Company-created CSR policies

6. THE UN NORMS Aim : clarifying the respective responsibilities of States and business enterprises as per international human rights law. Norms rejected by business and States: - using the same wording for business and states' responsibilities- transposing to business the duties of the States? UNDraft Norms on the Responsibilities of Transnational Corporations and other Business Entreprises with regard to Human Rights 2003

7. THE UN FRAMEWORK • « Principled pragmatism » • Mobilisation of NGOs • Main achievement: broad consensus around 3 key principles The UN SRSG (2005-2011) 2005 Special Representative of the UN Secretary General Mr John Ruggie

8. THE UN FRAMEWORK PROTECT, RESPECT, REMEDY 1. State duty to protect International law principle: States have a duty to protect against human rights abuses by non-State actors including by businerss affecting persons within their territory or jurisdiction. 2. Corporate responsibility to respect Companies have a minimum responsibility to respect human rights independently of states' duty through exercising due diligence 3. Rights of victims to access an effective remedy Through judicial and non-judicial mechanisms. 2008 2011 GUIDING PRINCIPLES on Business and Human Rights to « operationalize the framework »

9. 1. The State Duty to Protect Protect against human rights abuses within their territory and/or jurisdiction by business entreprises. Set out the expectations that business entreprises domiciled in their territory and/or jurisdiction respect human rights. • Adopt regulations and policies : a « smart mix of measures » Enforce laws, provide guidance, encourage business to communicate.. • State-business nexus ( SOE, ECAs, public procurement, privatization of public functions...) • Human Rights in Conflict-areas • Policy coherence (trade and investment, multilateral institutions)

10. 1. The State duty to protect The Challenge : Extra-territorial Application of the State Duty to Protect Governance Gaps not addressed by the Guiding Principles « At present States are not generally required under international human rights law to regulate the extra-territorial activities of businesses domiciled in their territory or jurisdiction »

11. 1. The State duty to protect Extraterritorial application: few lawsuits, no convictions • USA: invoking the Alien Tort Claim Act, the civil case against Unocal ended in out-of-court settlement • Belgium: invoking the 1993 Universal Jurisdiction Act and the 1999 Belgian Corporate Criminal Liability Act, the 2002 criminal case brought against Total by Burmese refugees for its complicity in ‘crimes against humanity’ was dismissed in 2008 after the UJ Act was repealed in 2003 • France: a criminal case brought in 2002 against Total for its complicity in forced labor in Burma ended in settlements in 2005.

12. 2. The Corporate Responsibility to Respect Who ? All types of business entreprises wherever they operate What ? All Human Rights International Bill of Human Rights, ILO fundamental rights at work+ other where relevant « Avoid infringing on human rights of others and address adverse human rights impacts » How ? Due diligence

13. 2. The Corporate Responsibility to Respect Policy Commitment Due Diligence process - identify and assess impacts - prevent and mitigate adverse impacts - track and account Remediation

14. 2. The Corporate Responsibility to Respect Challenges: • Meaningful consultation / stakeholder engagement • Interpretation of the concepts?

15. 3. Access to Remedy State-based judicial mechanisms State-based non-judicial mechanisms • Mediation, ombudsman • National human rights institutions • Administrative complaint mechanisms Non-State based grievance mechanisms • UN treaty bodies and special procedures • Company-based mechanisms

16. 3. Access to Remedy Challenges : - Barriers to access to justice Lack of guidance how to address legal and practical barriers on access to justice in home states - Non-judicial remedies : Definition of an effective remedy ? Right to reparation ?

17. Status of the GPs Ruggie : “the end of the beginning” Normative contribution: • no creation of new international law obligations •  ”elaborating the implications of existing standards and practices for States and business” Does not foreclose future normative developments, in particular with regard to gross HR abuses. Nevertheless no normative process engaged at the time being. ASEAN: AICHR CSR thematic study???

18. The UN Working Group on business and human rights 5 « independent » experts appointed for 3 years. Mandate : (a)To promote dissemination and implementation of the Guiding Principles (b) To identify, exchange and promote good practices and lessons learned on the implementation of the Guiding Principles and to assess and make recommendations thereon and, in that context, to seek and receive information from all relevant sources (c) To provide support for efforts to promote capacity-building and the use of the Guiding Principles, as well as, upon request, to provide advice and recommendations regarding the development of domestic legislation and policies relating to business and human rights ; (d) To conduct country visits (...) ; (e) To continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies(...) (i) To guide the work of the annual Forum on Business and Human Rights. Aim of the forum : discuss trends and challenges in the implementation of the GPs, challenges faced in particular sectors, operational environments or in relation to specific rights or groups.

19. Implementation at EU level « CSR » in the European Union A « modern understanding » of CSR : public authorities to support CSR through a smart mix of voluntary and regulatory measures : • Mandatory social and environmental reporting in 2012 • Policy coherence : HR in trade and investment policies • Expects companies to respect Human Rights • EU Member States to develop action plans for the implementation of GPs by end of 2012 • 2013 report on implementation of the UN framework But no concrete steps on parent company liability or to improve access to justice

20. CONCLUSION • Substantive progress : 3 pillars to build on • Victims still awaiting remedies and corporations not legally accountable Needs : • further normative developments at international level • policy and regulatory measures at national level in particular in home states of MNEs  (e.g. US Dodd-Frank Act disclosure requirements) • Support and challenge UN Working Group

21. Business and HR in Burma: how to move forward 1. State duty to protect: advocacy for substantive democratic reforms must incorporate business and human rights concerns, including adequate regulatory framework. Negative role played by emerging powers (China, India, Brazil, etc) must be subject to scrutiny and exposed. 2. Corporate responsibility to respect: mapping and monitoring of development of regulations and of sectors and industries that are involved or complicit in human rights violations or where the conditions are conducive to abuses. 3. Remedy: lack of and obstacles to access to remedies at the local level for victims of human rights violations will likely continue in the absence of genuine reforms, and despite the creation of the dubious NHRC. Need to pursue and strengthen extraterritorial application of the State duty to protect

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