UN Human Rights bodies upping the ante on business and human rights

United Nations human rights monitoring bodies have engaged to varying degrees with business and human rights issues in recent years. Readers of the blog may recall instances where Ireland was asked by members of the Human Rights Committee to elaborate on measures it was taking to ensure that Irish companies operating overseas were not implicated in violations of human rights. The Committee on the Rights of the Child also raised the issue of respect for the rights of children by Irish business when Ireland came before it earlier this year. The Committee expressed concern that the proposed national action plan on business and human rights lacked “any firm commitment to children’s right”.

Ireland is not alone in this respect, as UN human rights bodies now frequently call States to account on how they meet their duty to protect human rights from being violated by business enterprises, as set out in the United Nations Guiding Principles on business and human rights. With national implementation plan comprising the main vehicle by which States seek to put the Guiding Principles into practice, the recent concluding observations by the Committee on Economic, Social and Cultural Rights in relation to the United Kingdom are of some significance. The Committee welcomed the adoption of the UK’s Modern Slavery Act (2015) and the national action plan concerning business and human rights. However, it expressed its concern regarding “the lack of a regulatory framework to ensure that companies operating in the State party, as well as companies domiciled under its jurisdiction acting abroad, fully respect economic, social and cultural rights”. In this regard, the Committee recommended that the United Kingdom:

(a)    Establish a clear regulatory framework for companies operating in the State party to ensure that their activities do not negatively affect the enjoyment of economic, social and cultural human rights;

(b)    Adopt appropriate legislative and administrative measures to ensure legal liability of companies domiciled under the State party’s jurisdiction, regarding violations of economic, social and cultural rights in their projects abroad, committed directly by these companies or resulting from the activities of their subsidiaries; and

(c)    Conduct thorough risk assessments prior to granting licences for arms exports and refuse or suspend such licences when there is risk that arms could be used to violate human rights, including economic, social and cultural rights.

The Committee also made recommendations regarding the United Kingdom’s tax policies, including those that relate to corporate taxation. It expressed concern at the growing reduction in tax on corporate incomes (prior to George Osbourne mooting a further reduction in the United Kingdom’s corporate tax rate to 15%), and that “financial secrecy legislations and permissive rules on corporate tax are affecting the ability of the State party, as well other States to meet their obligation to mobilize the maximum available resources for the implementation of economic, social and cultural rights”. The Committee recommended a human rights impact assessment of recent changes in fiscal policy and stricter measures to tackle tax abuse, including in overseas territories and Crown dependencies.

The Committee on Economic, Social and Cultural Rights has been prominent in seeking to ensure that States parties to the Covenant ensure business respect for human rights. While accepting the value of national action plans for the UN Guiding Principles, it has insisted that States must ensure appropriate regulatory frameworks are in place when it comes to business and human rights. Its recent concluding observations on Sweden and France have also touched on such issues, in particular in the context of investments by the Swedish National Pension Fund and the proposed French legislation on the duty of care of parent companies. All in all, it is clear that States cannot simply adopt an advisory approach to companies when it comes to human rights issue, but must ensure that appropriate regulatory and administrative frameworks are in place to prevent abuses and to ensure remedies in the event that they do occur.

Thanks to Fiona Crowley of Amnesty International for bringing these latest developments to my attention.

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