This summer, the European Commission published industry-specific guidelines on the implementation of the UN Guiding Principles on Business and Human Rights. These guidelines, directed at the information and communication technology industry, employment and recruitment agencies, and the gas and oil industry, mark a further step towards the greater integration of business in safeguarding of human rights.
The UN Guiding Principles themselves, published in 2011, are a non-binding set of guidelines for businesses. They employ a “protect-respect-remedy” framework, which combines the state’s existing duty to protect human rights with a requirement for businesses to respect human rights by complying with applicable domestic and international human rights laws.
Highlighting businesses’ role in human rights protection stems from the increasing awareness of the power that large companies wield. Large, multi-national corporations now have a very visible global presence, and when combined with their need to protect their international reputation, this creates powerful incentives to ensure that their operations do not contribute to human rights abuses. Further, there are increasing opportunities for corporations to expand into states which have a poor history of human rights protection. Earlier this year, the EU lifted sanctions on Burma, allowing foreign investment in the former military dictatorship for the first time since they were imposed in 1990. In such cases, where the state itself may be permitting, or even causing, human rights abuses, there is a clear role for businesses to take the initiative in remedying such situations. One example of this is The Naypyidaw Accord for Effective Development Cooperation, signed by the Burmese government, aid organisations and international banks in January 2013. This agreement sets out non-binding obligations on Burma’s authorities to respect the rule of law and human rights.
Companies are also uniquely placed to monitor the human rights situation on the ground. The Guiding Principles recommend that corporations carry out “human rights due diligence,” which involves the identification of actual and potential human rights abuses during their operations. They are able to monitor their human rights impact at a localised level, leading to much more efficient human rights protection.
However, the Guiding Principles do recognise that businesses are subject to constraints that do not apply to states, in terms of their resources and duties to shareholders. As a result, principle 14 requires that businesses “should have in place policies and processes appropriate to their size and circumstances.” Further, the creation of industry-specific guidelines demonstrates that the risks of human rights abuses may differ according to the nature of the business. As the guidelines note, “no one size fits all when it comes to putting respect for human rights into practice.”
It may be argued that the trend towards shifting responsibility for human rights protection from states alone, and onto a multiplicity of actors, is misguided. If states are responsible for human rights violations, then the responsibility for remedying such violations should lie with them alone. However, this is an unduly blinkered view of the responsibility to protect human rights. First, businesses investing in high-risk countries affect the human rights situation in a multitude of ways, some of which may not be immediately apparent, and may have therefore previously been ignored. For instance, their operations may have an impact on the local environment or on traditional livelihoods, as in the case of the Myitsone Dam in Burma, which has destroyed local agricultural communities. Secondly, to link the responsibility to protect human rights to a concept of fault or causation is too narrow. By broadening this responsibility, and encouraging those who are able to make an impact, such as big businesses, to integrate respect for human rights into their operations, the protection of the rights of individuals will be much more secure. Finally, it is wrong to suggest that protecting human rights is inimical to a successful business. The guidelines point out that businesses that respect human rights see benefits such as “strong health and safety performance, reduced environmental effects from their operations, and sustainable relationships with local communities that benefit from their presence.”
Increased awareness of the role that business can play in safeguarding human rights has the potential to greatly facilitate their implementation. This is particularly so in states where human rights protection is weakest; in such cases, the protection offered by businesses operating in these areas may be the main or only means of upholding individuals’ rights.
Claire Overman has just completed the BCL at the University of Oxford and is a regular contributor to the OxHRH Blog.