Guest post: Why the Irish Government needs to consider other development concerns in the National Action Plan on Business and Human Rights

I am delighted to post this latest contribution by Gráinne Kilcullen to the blog series on Ireland’s National Plan on business and human rights. Gráinne is Programme Adviser on Governance and Human RIghts with Christian Aid Ireland.

Businesses are associated with economic progress, innovation, entrepreneurship and employment. That innovation and entrepreneurship has revolutionised our lifestyles (i.e. agricultural and domestic machinery, technology) and has brought about astounding change in how society has evolved over the centuries. However, without checks and balances, unregulated economic endeavour can lead to very harmful practises that have destructive effects on society.

When activists, human rights defenders, local leaders, communities and organisations demand more accountability, consultation and regulation for businesses, especially transnational corporations, they are often accused of being anti-progress. This is a baseless, contrary allegation against those wishing to ensure that plans will positively affect their lives rather than result in exploitation and poverty, or in some cases, deeper poverty.

Ireland’s recently launched National Action Plan on Business and Human Rights is a very welcome step in highlighting the role and responsibility of business in promoting human rights. It helps to keep the UN Guiding Principles on Business and Human Rights, endorsed in 2011, in the minds of government departments and agencies. It also demonstrates a commitment by the Irish government to build on existing policy and law to ‘ensure responsible and competitive business practice both in Ireland and internationally.’

I am not going to spend too much time here discussing the progressive or limiting aspects of the action plan, but I would like to mention one obvious drawback – the Irish government’s identification of the three most relevant SDGs to this area, namely:

  • SDG 1 end poverty in all its forms everywhere
  • SDG 5 achieve gender equality and empower all women and girls
  • SDG 8 Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all

The reason I am singling this point out is because it somehow demonstrates the government’s understanding of what aspects of human rights can benefit or be hindered by business practices. Unfortunately, these three SDGs, while important, do not represent the full picture. SDG 10 on reducing inequalities, SDG 13 on climate action and SDG 16 on Peace, Justice and Strong Institutions should also underpin the framing of the action plan and the proposed action points. Focusing only on ending poverty and promoting sustainable economic growth gives disproportionate weight to businesses role in the economy and not its wider role in reducing inequality, preventing climate change and building peace.

Although the action plan does touch lightly on these areas in section 2, Current legislative and Regulatory Framework, recognising the Irish government’s commitment to promoting equality, equal opportunities and eliminating discrimination; prioritising citizen’s right to enjoy a safe environment, including ‘the responsibility of businesses to comply with environmental protection legislation’; supporting EU-wide system for supply chain due diligence in supporting responsible sourcing practices to reduce the financing of armed groups and security forces through mineral proceeds.‘ However, the current unaccountable role of businesses in exacerbating global inequalities, contributing to climate change and profiteering from, perpetuating or being complicit in conflict are too significant to not be explicit, and not be a main focus for the Irish Government to ensure businesses respect international law.

However, the current unaccountable role of businesses in exacerbating global inequalities, contributing to climate change and profiteering from, perpetuating or being complicit in conflict are too significant to not be explicit, and not be a main focus for the Irish Government to ensure businesses respect international law.

It is within these three SDGs that I would like to share some examples of how businesses are not respecting human rights and negatively impacting the fight for social justice. Although all these examples do not directly refer to Irish companies, they nevertheless highlight the specific areas and reasons for the Irish government to guide and hold companies accountable for their actions. These examples should then inform how the proposed actions can include a focus on reducing inequalities, reducing carbon emissions and building peaceful nations.

SDG 10 – The prevailing international practice of tax avoidance and tax evasion (Ghana)

Tax revenue is a vital resource for countries all over the world to fulfil their human rights obligations, not only in the areas of providing health, education, water and sanitation and other vital services but also to ensure a well-functioning political and justice system. Transnational companies can often undermine this resource by avoiding paying tax and, as a result, perpetuate inequality by concentrating vast wealth among an elite few.

In Ghana, the mobile phone of choice is a Microsoft smart phone. However, Ghana does not benefit from taxing the profits made on the sales of these phones in their own country because Microsoft sends its profits back to a Microsoft company based in Ireland. Those profits are then sent to another related company in Malta in the form of royalty payments where they are subject to 0% tax. They also manage to avoid mapping any withholding taxes on those royalty payments leaving Ireland by virtue of the Ireland Malta tax agreement.

Microsoft are benefitting at each step, not only in the profits from a large market available in Ghana (and many other countries besides) but also from an educated workforce, communications systems, dependable judicial system and health service in Ireland without making what most people would consider to be a fair contribution to either economy.

SDG 13 The environmental effects of unregulated and unaccountable industries (Zimbabwe)

In Gwanda District, south Zimbabwe a study by the Open University of Zimbabwe concluded that mining activities in the area have altered the ecosystem through air and water pollution, land pollution and land degradation. Caledonia Mining Company, a South African company, bought Blanket Gold Mine in the area in 2006. Owing to lack of implementation of environmental laws as well as accompanying monitoring and evaluation of the company’s parties, the environmental impact on the area has been devastating on the lives and health of the local people. These effects include a high prevalence of diseases and respiratory problems mainly due to the leaking and spilling of dangerous chemicals into water sources, air and the soil.

Although there was an acknowledgement by the local communities of the benefits of employment, the mining industry was nevertheless causing lasting negative socio-economic effects on their health, wellbeing and land use. Without regulation and accountability mechanisms, both from the company’s host government, South Africa, as well as the resource government, Zimbabwe, the effects on the environment go unchecked and the abuses of rights such as health, livelihood, clean and safe environment continue, potentially leading to even greater problems in the future such as displacement and conflict.

SDG 16 – The lives and security of Human Rights Defenders (Colombia)

The work and struggle of human rights defenders, activists and local leaders is vital for ensuring human rights are intertwined with peace processes because without such a focus, peace processes will be mere agreements without any hope of sustainability. Just recently, on 26th November 2017, a key community leader in Urabá central Colombia was killed outside his home before his wife and children. Mario Castaño was an active defender of the right to land restitution in his local area, Largo Tumarado. One of the elements of his fight is against a multinational company, AngloGold Ashanti that was awarded a license by the government in 2013 to mine copper, silver and gold. The license covers approximately 800 hectares and was awarded without any prior consultations with the communities affected. Mario and his community have been calling for a nullification of the license, highlighting the involvement of businessmen in the illegal dispossession of land and the control exercised by the paramilitary group AGC. Although it is not clear who is responsible for his murder, he is the fourth leader involved in land restitution rights to be killed this year in the region.

The role of businesses in such a vulnerable context where paramilitaries are controlling large areas of land for profit through violence and corruption without regulation and accountability as well as assessment of impact, exacerbate this situation and not only feed the pockets of the paramilitaries but also inadvertently sends a threatening message that those trying to participate in implementing the peace agreement signed in 2016 face fatal risks. Without local leaders, human rights defenders and activists involved, the process of peacebuilding is impossible.

Recommendations

It is reassuring to know that the national action plan is designed as a living document that can be updated regularly. Therefore, drawing from the above examples, the following aspects need to be considered in the proposed actions, namely:

  1. The baseline assessment of the legislative and regulatory framework should also include:
  • the tax legislation and regulation and how it is currently affecting the respect for human rights at a national and global level. (A recent Christian Aid report has highlighted how Irish tax policy is facilitating tax avoidance and undermining the development of countries of the global south). While the government insists that the parallel process taking place at the OECD will address the issue of tax avoidance, it is already clear (see Christian Aid report), that the OECD BEPS process will not address all of the peculiarly Irish tax elements that allow for large scale tax avoidance.
  • the impact of trade agreements with countries that are either affected by violence, in transition from violence to peace and/or making efforts to establish sustainable peace
  • how current environmental legislation and policy is ensuring Irish based businesses are contributing to reducing carbon emissions and minimising effects on the climate both at a national and international level
  1. Substantiate the terms of reference for the Business and Human Rights implementation group to outline objectives, actions and indicators that not only guide implementation and measure progress against the SDGs, (including the ones outlined here) and the UN Guiding Principles but also to clearly guide government departments in their responsibilities and timeline for implementation and evaluation of these actions.
  2. While ensuring coherence between Ireland’s new trading strategy: ‘Ireland Connected: trading and investing in a dynamic world’, and the National Plan on Business and Human Rights, go further than providing information to staff and overseas trade missions but
  • first ensure human rights are central to trade agreements and investment treaties and are not signed or ratified without addressing all human rights concerns
  • then guarantee systematic support to embassies in upholding human rights principles while advising businesses and ensuring compliance with international human rights law and international humanitarian law.

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