Need for human rights due diligence to curb sportswashing

by | Sep 30, 2020

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About Sriram Prasad and Ashish Mishra

Sriram Prasad is a penultimate year student pursuing B. A. LLB (Hons) at Maharashtra National Law University Mumbai. His interests lie in International Law, Human Rights Law, Constitutional Law and public policy.

The recent attempted takeover of an English Premier League (EPL) club backed by Saudi Arabia’s Public Investment Fund elicited allegations of sportswashing of Saudi Arabia’s dismal human rights record. Such allegations of sportswashing are not uncommon, when states try to use the glamour of sport as a public relations tool to improve their international image. Since sporting leagues are run as businesses, these ought to comply with the UN Guiding Principles on Business and Human Rights (UNGPBHR).

Sports-washing

According to Dr Ulrichsen, sportswashing is an application of soft power that results in the normalisation of states with poor human rights records within ordinary conversations. For example, people are likely to defend the owners of a football club they support, which is “an instinctive response and a tribal response” on their part. This, in turn, lends credible repute to states with dismal human rights who own football clubs, and thus adversely affects human rights by diverting focus from the state’s human rights violations.

When states of disrepute due to numerous human rights violations get positive international recognition, this, in turn, helps them cover up human rights abuse. Human Right Watch argues that “contributing to human rights harms… may include conferring reputational benefits that help cover up human rights abuses.” Sportswashing causes a direct adverse impact on human rights due to a business relationship between sporting leagues and states with dismal human rights records.

Since most states violate human rights in some form or the other, conducting due diligence to gauge the possible effects of a business relationship with a state entity on human rights becomes important, to prevent adverse impacts on human rights through sportswashing.

Obligations under the UN Guiding Principles on Business and Human Rights

Under UNGPBHR, businesses have a responsibility to respect human rights. This requires that businesses know and showthat they respect human rights. Businesses must know of their contribution or impact on human rights by conducting due diligence, and must show their respect for human rights by remediation, which includes both remedying of past adverse impacts and prevention of future adverse impacts. The principle of ‘know and show’ is reflected in UNGPBHR, Principle 11 (conducting due diligence to avoid infringing on the human rights of others), Principle 13 (avoiding causing or contributing to adverse human rights impacts through their own activities), Principle 17 (businesses should cover adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships). Principle 18 requires that due diligence must be conducted periodically throughout the life of an activity or relationship.

In cases of investment into sporting leagues which are run as businesses, the UNGPBHR requires sporting leagues to conduct human rights due diligence of all their business activities and business relationships. This must include human rights due diligence of investors and owners of clubs. Therefore, the EPL, as a business, must conduct human rights due diligence of its business relations. If the due diligence exercise reveals adverse harm towards human rights through sportswashing, then remediation of the harm becomes necessary, because merely conducting human rights due diligence does not absolve liability. This is because even when in compliance with the requirements under the UNGPBHR, a business may cause or contribute to an adverse human rights impact that was unforeseeable. In such cases, remediation is necessary as merely conducting due diligence would not absolve liability.

This does not mean that businesses cannot enter into relationships with states that are found to violate human rights. UNGPBHR Principle 19 recognizes that business relationships can be used to bring about a positive change, and hence puts the obligation on businesses to use the leverage of business relationships to try and bring about positive change after human rights due diligence. But regardless, the business cannot proceed with the business relationship if it has an adverse impact on human rights.

Even though UNGPBHR is a softlaw and considering non-binding, Ruggie writes that the Guiding Principles reflect international law obligations and propose no new ones. Further, businesses that operate in a state are required to follow state laws, which must be in consonance with international law obligations. Hence a breach of UNGPBHR would also mean breach of preexisting international law obligations, which must also be reflected in state laws.

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