Use of the Guiding Principles on business and human rights by the U.N. human rights machinery

I spoke in early November at the Department of Foreign Affairs and Trade annual NGO Human Rights Forum, the theme of which was ‘Business and Human Rights: Implementing the United Nations Guiding Principles’. I have reproduced my brief remarks below, which were made as part of a panel regarding challenges and prospects for the UN Guiding Principles.

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Thanks to the Department for the invitation to participate. I am very pleased that the Department has decided to focus this year’s Forum on the subject of business and human rights, and I hope that it marks the beginning of greater engagement in the area of business and human rights. While Ireland may have a reputation as the best country in the world for ease of doing business, and a strong record of adherence to international human rights standards, the two have not been adequately discussed together to date.

The purpose of this panel is to look at the progress and challenges for the implementation of the UN Framework and Guiding Principles. One of the challenges has been to have States take them seriously – to engage with them meaningfully, and give effect to them in national law and policy. This is critical because it has a knock-on effect on the actions of companies. A recent study has shown that there is a very real ignorance of the Guiding Principles amongst business (<½% of MNCs have a human rights policy), and that this primarily “stems from the lack of education by governments”. Only a handful of States have produced national action plans on business and human rights to date.

Photo from DFAT Human Rights Unit on Twitter @humanrightsIrl

Photo from DFAT Human Rights Unit on Twitter @humanrightsIrl

One criticism of the Guiding Principles – bearing in mind that they are of course not a silver bullet – is that they lack any enforcement mechanism, that they are not legally binding but merely provide advice to States and companies, and like any advice, those to whom it is directed, can essentially take it or leave it. The Guiding Principles themselves make it clear that they do not create “new international law obligations”.

However, in relation to the State’s duty to protect human rights – the first pillar – the Principles draw on on existing human rights standards and established obligations. In this regard I would like to discuss some findings of a research project underway at the Irish Centre for Human Rights which looks at business and human rights, and more specifically the use of the Guiding Principles, by the United Nations human rights mechanisms. We see that it is increasingly the case that States are being confronted in Geneva with questions concerning their implementation of the Guiding Principles, although it would be going too far to say they have been ‘mainstreamed’.

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This student research project has looked at the treaty-monitoring bodies, the Universal Periodic Review mechanism of the Human Rights Council, and also the work of the various special rapporteurs. All had addressed business and human rights prior to the adoption of the Guiding Principles, but, since 2011, there has been noticeably more discussion.

Beginning with the Treaty monitoring bodies, the Human Rights Committee has not to date cited the Guiding Principles but has asked countries, such as Ireland, how they address the extraterritorial activities of companies that may violate the Covenant. Using the language of the Principles, Germany was encouraged by the Committee to make it clear to business enterprises that they are expected to respect human rights throughout their operations, and to ensure adequate remedies.

The Committee on Economic, Social and Cultural Rights has said it will devote “special attention” to States obligations concerning corporate responsibilities, and has frequently addressed the issue of extraterritorial activities – having gone beyond the Guiding Principles on this matter. Although the Committee has noted the UN framework, it has not drawn on the Guiding Principles in its concluding observations. Similar practice is observable at the Committees on the Elimination of Racial Discrimination and Discrimination against Women.

The Committee on the Rights of the Child stands apart – it frequently asks States parties about measures to address child labour, sale of children etc., and whether legal persons can be held liable for such. It has relied on the Guiding Principles in over 30 of its Concluding Observations since 2011 – around 50%, often making very general recommendations that States take measures to ensure that business respect human rights. The issue is high on the Committee’s agenda, having issued a General Comment on children and business in 2013 (which recognised the relevance of the Guiding Principles), and many Concluding Observations contain a specific section on children and business.

The various Committees are clearly constrained by their respective treaties, but will show little hesitancy in address rights violations by third parties where the State fails in its duty to protect. For some there may be a hesitancy to address standards beyond the treaty, a lack of awareness regarding developments such as the Guiding Principles, or a mistaken belief that they are addressed to business only. The role of civil society is especially important, in bringing these issues to the attention of the treaty monitoring bodies by way of submissions and shadow reports.

Turning to the Universal Periodic Review mechanism of the Human Rights Council, the Guiding Principles have not been relied upon that frequently – a handful of primarily developed States have referenced them in their national reports, while references also crop up in the stakeholder reports prepared by the OHCHR (including documents of the treaty monitoring bodies). In the past year or so, there have been a greater number of references, including in the Working Group reports, but overall reliance has been sparse.

With regard to the special procedures, the Special Rapporteurs in particular, well over a dozen have drawn upon the Guiding Principles in their reports when addressing situations where companies actions negatively impact on human rights. In a joint statement, eight rapporteurs referred to the Guiding Principles as included within “international human rights standards”. The Special Rapporteur on the Occupied Palestinian Territories has addressed issues of corporate complicity in great detail, and drawn heavily on the Guiding Principles.

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In looking at the special procedures, we also came across pointed criticism of the Guiding Principles, from the outgoing Special Rapporteur on the Right to Health, Anand Grover (India). He considered that the state obligation to protect human rights has been ineffective against multinationals, that incentivising compliance by companies did not foster respect for rights in and of themselves, and that the Guiding Principles did not adequately take into consideration the influence that corporations may exert on developing countries. Non-binding responsibilities have not prevented abuse and he articulated his support for “calls for an international instrument on the matter”.

The calls for an international treaty on business and human rights, or at least to give some greater legal underpinning to the Guiding Principles, demonstrates continued dissatisfaction with the lack of enforcement of human rights standards in this context, and with the Guiding Principles themselves. The two, I would conclude, need not be mutually exclusive, although it is being presented by some as an either/or scenario. For the moment, the existing human rights mechanisms can be a vehicle for pressuring States to take appropriate action in the area of business and human rights. The role of civil society is critical, and the evidence to date is that the mechanisms will respond as much as they can, if a persuasive case is put to them.

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