Whose business are human rights?

The following post is a revised and slightly longer version of a piece that appeared yesterday on the RTÉ Brainstorm website.

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During a hearing of the public inquiry into the Grenfell Tower fire last year, the Irish insulation manufacturing firm Kingspan was accused of being “seminally causative” in the fire which saw 72 people killed. At around the same time, a large group of states, business representatives, civil society organisations and experts were gathered at the United Nations in Geneva with a view to developing an international treaty to regulate the activities of transnational corporations and other business enterprises as they relate to human rights. The prevailing rationale underpinning this and other effort is that human rights are not only the business of states.

There is abundant evidence that it is not only states that can harm or deny the enjoyment of human rights, but that the private sector has and continues to play a significant part. Historic examples abound, such as the transatlantic slave trade and the pillage of colonies by entities such as the British and Dutch East India companies.  More recently, we have supply chains for Western clothing brands that are often deadly, exemplified by the Rana Plaza factory collapse, privacy and concerns for democratic processes associated with Silicon Valley, the widespread use of tax havens which drain states of necessary resources, and of course harmful environmental practice, such as open-cast coal mining, which contribute to the climate catastrophe.

Treaty efforts

Given the unprecedented growth in size, power and reach of multinational corporations over recent decades, the relationship between business and human rights has forced its way on to the agenda of key international organisations. The current UN efforts to develop a business and human rights treaty have been ongoing since 2014, but have been hampered by the opposition of key powerful states, often the home countries of the largest multinational firms.

The UN High Commissioner for Human Rights, Michelle Bachelet, described the business and human rights treaty process as “challenging and complex”, but also as “potentially crucial to the lives and livelihoods of millions of people”. The considerable support for a binding instrument on business and human rights on the part of civil society organisations stands inversely to the generally unenthusiastic stance of business representative organisations.

Ireland, like its European Union counterparts, has largely stood on the side-lines of the treaty negotiations, having initially voted against the resolution of the Human Rights Council resolution which set the process in train. While successive drafts of the proposed treaty have addressed key concerns raised by the EU, the strong preference of Ireland and other Global North countries is for efforts to remain focused on the implementation of the UN Guiding Principles on business and human rights, a non-binding policy framework endorsed by the Human Rights Council in 2011.

The UN Guiding Principles emphasise a state’s duty to protect human rights, a corporate responsibility to respect human rights and the need to ensure access to remedy for victims. States are encouraged to implement the Guiding Principles through the development of national action plans, but are not required to. Only around twenty states have done so thus far, which is disappointingly low.

Ireland’s National Plan on Business and Human Rights 2017-2020 has taken a largely voluntarist approach to the question of business responsibility for human rights, by placing the emphasis on encouraging companies to respect human rights. This approach has not succeeded and the National Plan has remained relatively unknown beyond a small group of Government officials, politicians, industry groups and human rights organisations.

The eschewing of a legislative approach in the National Plan has meant that there has been little in the way of incentives or indeed penalties for businesses that fail to incorporate respect for human rights into their operations. A report launched in November by the Centre for Social Innovation at Trinity College Dublin analysed 50 of the largest companies in Ireland, as well as the 10 biggest state-owned enterprises, and found that there remains “a long road to travel to complete fulfilment of the Guiding Principles by the selected companies”. Over half the companies scored less than 20%.

Due Diligence

On the matter of human rights due diligence, a preventive process that is at the heart of the the UN Guiding Principles, the report found that the uptake by companies was “severely lacking”. The authors thus recommended in the clearest terms that the Irish Government “bring forward mandatory human rights due diligence legislation”.

The call for companies to exercise due diligence as to how their activities or business relationships might harm human rights echoes that which has been made by civil society organisations, parliamentarians and a growing number of companies and investors, not only in Ireland, but globally.

An independent study commissioned by the Department of Foreign Affairs and Trade pursuant to the National Plan also recommended legislation on human rights due diligence, given the shortcomings of the existing voluntary regime, while also stressing the need to take into account differences between large companies and SMEs.

While Ireland has not made any commitment to developing due diligence laws, the European Union recently announced legislative efforts towards human rights due diligence for companies. The Irish government is unlikely to legislate in the absence of a European directive to do so, although countries such as France have already developed such laws, thus acclimatising companies to their growing human rights responsibilities and opening up potential avenues for victims.

Renewing Ireland’s committments

Ireland’s National Plan on Business and Human Rights is due for revision under the Programme for Government and it is past time that the Irish Government moved beyond its outdated approach which stresses voluntarism, corporate social responsibility and appealing to a company’s better senses. Committing to legislation on human rights due diligence would be a valuable first step. Engaging with the ongoing treaty process in a more meaningful manner would signal a genuine commitment to advancing the business and human rights agenda.

A treaty on business and human rights will not be a silver bullet, and nor will legislation on mandatory human rights due diligence guarantee a harmonious relationship between business enterprises and society at large. That relationship is complex, multi-faceted, often mutually rewarding and at times extremely harmful. A business-as-usual approach, however, inevitably rewards the powerful and perpetuates the status quo. Such an approach has proven harmful to human rights on far too many occasions, and catastrophic for the environment.

While issues of business and human rights may have become more prominent in recent years, sufficient regulation has proven elusive, and efforts to expand the rights of private corporations at the international level have continued. The ability of corporations to sue national governments under investor-state dispute mechanisms lies at the heart of the current controversy over a Dáil vote on the EU-Canada free trade agreement.

Ireland’s has loudly and proudly stated its commitment to human rights, including as a core foreign policy objective, which was harnessed in the successful bid to join the United Nations Security Council as a non-permanent member. But actions, of course, speak louder than words, and the Irish government’s activities on business and human rights have fallen well short of what is needed to ensure business respect for human rights and remedies for victims.

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