Should a company operate or sell its products in a country with a poor human rights record? Even if the company itself does not directly violate human rights? The debate on business and human rights focused for quite a while on the idea of complicity. The UN Global Compact, for example, urges businesses to “make sure that they are not complicit in human rights abuses”. What does this mean? Complicity can be interpreted broadly, in a moral or ethical sense, to cover a wide range of ways in which companies can be implicated in violations committed by States, other companies or individuals. In a legal sense, it tends to be construed more narrowly, and usually covers the knowing and substantial contribution to a particular wrong done by another party.
The establishment last year of the Ireland Saudi Arabia Business Council raises this very idea of complicity for Irish companies, given that Saudi Arabia has such a notoriously bad human rights record. According to the US State Department, common violations include:
citizens’ lack of the right and legal means to change their government; pervasive restrictions on universal rights such as freedom of expression, including on the Internet, and freedom of assembly, association, movement, and religion; and a lack of equal rights for women and children, as well as for workers.
It doesn’t stop there:
torture and other abuses, poor prison and detention center conditions, holding political prisoners and detainees, denial of due process and arbitrary arrest and detention, and arbitrary interference with privacy, home, and correspondence. Violence against women, trafficking in persons, and discrimination on the basis of gender, religion, sect, race, and ethnicity were common.
Just this week, seven Saudi men were executed for their part in an armed robbery. Several of them were under the age of eighteen at the time the crime was committed. The official news agency reports that all seven were beheaded, although death by firing squad seems to have been the method used.
Saudi Arabia is seen by the Irish Government as “a priority market with significant potential for Irish companies”. Trade missions have been undertaken by the Department of Jobs, Enterprise, and Innovation and the Government has voiced its strong support for the setting up of the independent Ireland Saudi Arabia Business Council. The Council aims to promote trade and business between the two countries and their companies.
It is not just a case of selling Irish products in Saudi Arabia. The Irish Times reports that Irish members of the Council “hoping to profit from the alliance” include the engineering businesses Sepam and Mercury, as well as the Royal College of Surgeons in Ireland and Athlone Institute of Technology. Can these companies and institutions operate in a country where discrimination, for example, is so embedded without becoming complicit in it? While employment equality is a legal obligation in Ireland, Irish companies that operate overseas and conduct themselves in accordance with local laws, may be a party to discriminatory practices, something which they would doubtlessly reject at home.
The Irish Government has been questioned in this context by political representatives on human rights in Saudi Arabia, especially the rights of women, and asked if it would raise these matters with the Saudi Government. Minister for Foreign Affairs Eamon Gilmore deferred to the EU: “Ireland and our EU partners have an active discussion with Saudi Arabia within the framework of the EU-Gulf co-operation council on a wide range of issues, including human rights”. Deputy Seán Crowe asked whether there was any “set of principles” guiding this, such as the McBride Principles that had been used in Northern Ireland. Gilmore didn’t say, but claimed that the “building of trade relations gives us an enhanced opportunity to engage on human rights with the countries concerned”. Deputy Clare Daly concluded that:
The Minister’s answer is disappointing. It is heavily loaded in favour of the money with very little adherence to the concerns raised about human rights and the systematic discrimination experienced by women in particular and the Shia minority, and the stifling of peaceful protest by the regime. Clearly the Saudi regime benefits enormously from its export and import relationship with Ireland.
The EU has occasionally voiced concerns regarding human rights issues in those countries with which its members trade, but concrete action affecting trade relations only tends to arise when sanctions are imposed. There are no sanctions on trade with Saudi Arabia.
For individual States and companies, guidance on dealing with repressive governments can be found in the United Nations Guiding Principles on business and human rights. These recommend that “States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations”. As the Irish Government has not done this, companies themselves would be advised to heed the following advice in the Guiding Principles:
Conducting appropriate human rights due diligence should help business enterprises address the risk of legal claims against them by showing that they took every reasonable step to avoid involvement with an alleged human rights abuse.
Due diligence is seen as a way of avoiding complicity in human rights abuses for States and companies.
After the fall of apartheid, the South African Truth and Reconciliation Commission examined the complicity of business in the apartheid system. It found three types of complicity. First, there were those companies, such as mining corporations, who helped “to design and implement apartheid policies”. Second were the businesses who gained from their cooperation with the security structures of the apartheid state. Most businesses, the Commission found, fell into the third category of having “benefited from operating in a racially structured context”.
Companies that do business in repressive countries like Saudi Arabia might ‘benefit’ in various ways, from restrictions on trade unions to low wages for workers. Media restrictions make it difficult to assess the exact level of complicity of those Irish companies that have “set sights on Saudi cash”. Trade relations with Saudi Arabia provide a stark example of the failure of the Irish government to adopt a comprehensive human rights policy in the context of business and trade. Such a policy should at the very least require due diligence, a human rights impact assessment by the companies involved and reporting on their compliance with relevant standards. Or is that too high a price to ask?