un guiding principles on business and human rights: weaknesses and way forward xii international...
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UN Guiding Principles on Business and Human Rights: Weaknesses and Way Forward
XII International Human Rights Colloquium, Sao Paulo, 14 October 2012
Phebe Mavungu Clement Legal Adviser – ICJ Africa Programme
Main question:Can the GP adequately and effectively be used for corporate human rights accountability? What its weaknesses are and what can be the way forward?
Presentation Outline
1.Introduction2.UN Guiding Principles:
Content, Rationale and Usefulness
3.Weaknesses of GPs4.Way forward5.Conclusion
UN Guiding Principles: Content, Rationale and Usefulness Prof. John Ruggie: Special Representative appointed by
UN Human Rights Council to investigate Business and Human Rights in 2005 in light of failure of Norms
Considered a number of submissions and consultations Produced a Framework in 2008 with three prongs Part I: State duty to protect individuals from
corporate violations at international law Improve legal framework and create monitoring
mechanisms Drive to improve domestic regulation of human
rights
UN Guiding Principles: Content, Rationale and Usefulness Part II: Corporate obligations to respect
human rights: DO NO HARM May require positive steps like instituting anti-
discrimination policy May in some instances require positive duties
of companies where they are sole provider of services and where context requires provision of health, education
Involves all rights recognised at international level
UN Guiding Principles: Content, Rationale and Usefulness
Due diligence framework: to ensure that activities do not cause harm Does not only involve compliance with
legislation Anticipate and Manage risks to ensure that
business avoids infringing rights: Context of operations and possible risks Impact of activities on human rights in context Extent to which can contribute to abuse through
relationships with others (with states, other business partners)
UN Guiding Principles: Content, Rationale and Usefulness Part III: Access to Remedies
Investigation and punishment where wrong-doing Judicial and Non-Judicial mechanisms proposed Grievance mechanisms within company: hotlines,
advisory services for complainants, mediators Identify potential violations early Should not impact on ability to access other forms of
redress through courts. Ruggie has succeeded in getting support of many
businesses and governments; large number of NGO’s in support.
UN Guiding Principles: Content, Rationale and Usefulness
Grosso modo:oClarification of State HR obligations in respect of corporate activitiesoCorporate responsibility (to respect) extends to their business relationshipsoFairly Good Starting Point for a more robust frameworkoTheoretical and Practical: Operational PrinciplesoUniversal consensusoPossibility of global convergence around the standards set by GPs.
Critique of UN Guiding Principles
Legal nature of GPs: Non binding. Looks like a wish list for states and corporations;
No enforcement mechanism for the standards set or defined by GPs;
Corporations only have largely ‘negative obligations’ : DO NO HARM. Why not some positive obligations to facilitate access to rights in their sphere of activities.
Corporate responsibility to respect lies on State duty to protect: What when State fails? The Kilwa Incident in DR Congo
Corporate responsibility to respect depends on State implementation of its duty to protect: May developing are not able or willing to regulate or confront transnationals that bring investment.
Critique of UN Guiding Principles
While GPs are premised on existing Int’l Law, they are soft regarding State extraterritorial obligations vis a vis business activities of corporations operating abroad (Control and influence).
ETOs are certain obligations binding on states to observe human rights of persons outside of their territorial scope.
Regulation and accountability of Transnationals operating in the South more effective if done by home states.
UN Guiding Principles: Way Forward Using the “little” that we have. Mainstreaming Principles into existing
initiatives (domestically and regionally). Nothing stops states to incorporate GPs
into legislations. GPs can be a basis for development of
corporate human rights policies and standards
GPs can be a good tool for advocacy with states and corporations
UN Guiding Principles: Way Forward
GPs could be a good authoritative reference for developing of a progressive jurisprudence.
Can be taken forward by similar initiatives at the regional level: OECD, Working Group of ACHPR on Extractives Industries.
On the road to a binding instrument on the accountability of PSMCs for HR violations.
Resorting to, and import GPs into, opportunities which domestic laws and remedies currently offer: See ICJ Access to Justice Studies, US ATCA, SA PSMC Act, Alternative mechanisms.
Thanks!Merci!
Obrigado!Gracias!Asante!
The End.