PHM-Exch> Act for human rights in the context of business!

Mon Jan 17 23:38:27 PST 2011

From: Sofia Monsalve monsalve at fian.org

There is an urgent need to position yourself and/or your organisation on
states obligations under human rights in the context of big business:

There is no need to alert you to the importance of states’ obligations to
individually and jointly regulate business, including agribusiness, banks
etc. and that this regulation has to be based on the economic, social and
cultural rights of the people.
There has been resistance by many corporations and by the governments close
to them. The UN Secretary Generals have been soft peddling on the issue,
whereas human rights people at the UN have used (fairly) clear language.

On November 22, John Ruggie, the UN Secretary General’s special
representative on business and human rights put his “Guiding Principles for
the implementation of the Protect, Respect, Remedy framework” online for
consultation under http://www.srsgconsultation.org. This consultation forum,
intended to gather views from a broad range of stakeholders, will remain
open until 31 January 2011. John Ruggie’s plan is to ask the Human Rights
Council in June to vote on these Guiding Principles.

The Ruggie draft tends to undermine rather than strengthen people’s
protection by international human rights law. For this matter, FIAN
International - in cooperation with other concerned organizations - prepared
two public statements (on two separate subjects) which we ask you to sign in
order to clearly signal that civil society organizations and individuals
working in the field reject this tendency.

Please let us know asap whether you can support one or both of these
statements.

Please sign, and send your feedback on or before January 20 to
kuennemann at fian.org.

*****************************************
* *

*States’ obligations to respect and protect human rights abroad*

*Comments on John Ruggie’s Draft GPs*

The „Draft Guiding Principles for the Implementation of the UN `protect,
respect and remedy framework`” (henceforth: the draft) in their introductory
part emphasise: “Nothing in these Guiding Principles limits or undermines
any legal obligations a State may have undertaken or be subject to under
international law with regard to human rights.”

The following observations show, on the contrary, that the draft tends to
undermine obligations of states under international human rights law. The
observations refer to two Principles of human rights law which are affected
by the deliberations of the draft:

*1. States carry a legal duty under international human rights law to
respect human rights abroad.*

The draft is quiet on any legal ET obligation to respect. If a company is
owned by the state all that is
mentioned[1]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn1>is
that there are “sound policy rationales” for the state to ensure that
this company respects the enjoyment of human rights abroad. A legal duty is
not mentioned. Acts of such a company, however, are attributable to the
state, which in turn is under a legal obligation to respect human rights
abroad.[2]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn2>

The position taken in the draft also contradicts the clear and consistent
view of the UN Committee on Economic, Social and Cultural Rights (CESCR)
that states must respect human rights
abroad.[3]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn3>

*2. States are required under international human rights law to regulate the
extraterritorial activities of businesses domiciled in their territory
and/or jurisdiction to the extent that such regulation does not infringe on
the rights of other states to protect and fulfil human rights in their
territories.*

The draft claims[4]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn4>:
“At present, States are not generally required under international human
rights law to regulate the extraterritorial activities of businesses
domiciled in their territory and/or jurisdiction.” This is not correct in
the current context: The realisation of human rights (as the raison d’etre
of all human rights law) requires that states take preventative, protective
and punitive measures against corporate abuses whenever their resources –
and the rights of host states to protect and fulfil – permit. Moreover such
a duty to protect - unless it’s implementation is feasible unilaterally –
has to be met through international
cooperation[5]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn5>.
The regulation of domiciled businesses is a minimum of international
cooperation for addressing abuses by such businesses.

Under human rights law states have the obligation to protect. In the
International Covenant on Economic, Social and Cultural Rights (ICESCR),
this duty does not carry a restriction on territory or jurisdiction. If
jurisdictional aspects are to be considered this has to be done with a view
to the object and purpose of human rights treaties – the protection and
promotion of human rights. This means that extraterritorial human rights
jurisdiction is only limited by the rights of other states under the purpose
of the Covenant – i.e.: States acting extra-territorially to protect human
rights must not interfere with the implementation of human rights
obligations of the victims’ state. This, however, is well-understood and
does not merit the sweeping statements of the draft.

In its General Comment (GC) 14, the Committee on Economic, Social and
Cultural Rights (CESCR) stresses such an obligation: “States parties have to
respect the enjoyment of the right to health in other countries, and to
prevent third parties from violating the right in other countries, if they
are able to influence these third parties by way of legal or political
means, in accordance with the Charter of the United Nations and applicable
international law. The CESCR in GC 15.33 (and similarly in GC12.36, GC19.54)
says that states should “take steps to prevent their own citizens and
companies from violating the right to water of individuals and communities
in other countries.”

The draft however, in principle 2, says that states should “encourage
domiciled business” to respect human rights abroad. According to the draft
the step to be taken is to encourage business to respect – rather than to
prevent business from abusing. This tends to undermine the standards already
set out by the CESCR.

*Conclusion:*

The draft claims[6]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn6>that
there is a “global movement of sorts in support of a successful
mandate”. The mandate can hardly be seen as successful if it tends to
undermine basic legal features of international human rights law, and the
authoritative interpretations of treaty bodies. Moreover persons
participating in consultations cannot be subsumed as a “movement”.

*Business enterprises carry a legal respect-obligation under international
human rights law.*

Comment on John Ruggie’s „Draft Guiding Principles for the Implementation of
the UN protect, respect and remedy framework`”

* *

* *

The draft fails to mention that business enterprises carry a legal
respect-obligation under international human rights
law.[7]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn7>The
legal quality of this respect-obligation is an immediate consequence
of
the states’ duties to protect which is a legal duty under international
human rights law. This duty requires states to protect persons against
measures of business enterprises which fail to respect the persons’
enjoyment of human rights. If the respect-obligation under international
human rights law was not legal, but only moral, the legal duty to protect
could not be implemented. Insisting on such legal duties of businesses in
international human rights law does not elevate businesses to become
subjects of international law, of course. The language for such breaches
should therefore be “abuse” rather than violation (as in the case of states
breaching their obligations). Ignoring the legal quality of the
respect-obligation of business in international human rights law and making
it a responsibility in the sense of a mere “expectation of society” (as in
para.11)[8]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftn8>tends
to undermine the states obligation to protect.

------------------------------

[1]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref1>Para
8, similarly in the commentary to principle 2,

[2]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref2>cf.
ILC Article 8 on State Responsibility; Any alternative view would give
rise to absurd consequences. If a government wants to violate human rights
abroad, it could just form its own corporation to do it with impunity.

[3]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref3>GC
12§36; GC 14§39; GC 15§31; GC 19§53. Principle 6 of the draft
formulates
only that states “should” take steps to require human rights compliance by
state-owned companies, whereas the CESCR formulates a clear requirement for
states to respect. Similarly in principle 8.

[4]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref4>Para.
7, similarly in the commentary to principle 2.

[5]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref5>
UN
Charter art 1.3, 56

[6]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref6>Para
15

[7]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref7>Principle
12 formulates “Business enterprises should respect human rights …”
The comment sees this merely as a standard of “expected conduct”. This
approach undermines the legal obligation to respect and has absurd
consequences: Whereas a person whose human rights are not respected by a
state may take legal action in international human rights law, the same
person suffering the same abuse would not have such legal remedies, if the
abuse was committed by a business enterprise. In the commentary to principle
12 the draft makes the point that human rights instruments “do not impose
direct legal obligations on business enterprises” and that “legal liability
… remains defined largely by national law provisions in relevant
jurisdictions”.  This overlooks that these instruments include the states’
legal duty to protect as a duty under international law which presupposes
legal obligations of other actors to respect. Persecuting other actors’
breaches is not an option for states - but a duty. Therefore the illegality
of such breaches is a necessity. This is also obvious from principle 23
which formulates that victims have to find effective remedy through
“appropriate means” including judicial means. Judicial means, however, are
not available if the legal nature of business enterprises’ obligation to
respect is not acknowledged.

[8]<https://mail.google.com/mail/?ui=2&view=js&name=main,tlist&ver=4NGb8kRDZ_0.en.&am=!U8qYy82zslH7BT6irnU2Wog4WXuu9sV28pbjdTb0Dag8S88CwZ-BeCE&fri#12d940747bece98a__ftnref8>In
principle 5 business’ respect for human rights is a mere „expectation“
of
states and becomes a requirement only “where appropriate”. States with such
attitudes fail to implement their legal obligation to protect.
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