Business & Human Rights
Business and Human Rights
There is a pressing need to harmonize economies, ecologies and the respect for human rights and inherent human dignity. Environmental catastrophe, displacement of communities and the decimation of their cultural ways of living and being, cruel, degrading and inhumane working conditions and the exploitation of the most vulnerable including women and children, the suspension of the enjoyment of fundamental human rights including the right to development and social and economic rights underscores the centrality of the often times vexed relations between business and human rights. While states have the primary obligation of protecting, preserving and promoting human rights, the state is but a partial and an insipient element in this kaleidoscope. Businesses too must take the responsibility of preventing human rights violations and providing remedy to victims of human rights violations. There is a growing recognition that infraction of human rights is bad for business precisely because of the reputational risks and damage.
UN Guiding Principles, which are a non-binding set of guidelines for businesses, provides a significant framework for the state, business enterprises and national human rights institutions and CSOs to constructively engage in protecting, preserving and promoting human rights. The UN Guidelines underscore:
- The State duty to protect human rights against abuse by third parties, including business, through appropriate policies, legislation, regulations and adjudication;
- The corporate responsibility to respect human rights, meaning to act with due diligence to avoid infringing on the rights of others and address adverse impacts with which they are involved;
- The need for greater access to effective remedy, both judicial and non-judicial, for victims of business-related human rights abuse.
Plight of Pacific Seasonal Workers – Key Issues
Some of the grievances highlighted in the media including allegations of:
- Mistreatment (including verbal abuse by supervisors), exploitation and underpayment
- Denial of access to medical care
- Underfed
- Unable to move freely in the community including visiting family members
- Refusal of work breaks
- Denial of right to practice religion
- Constrained from practicing their culture
- Harsh and repressive working conditions
- Expensive accommodation
- Little knowledge of workers visa status
Strategies to strengthen relationship between businesses human rights institutions and state to promote human rights: What can each stakeholder do:
National Human Rights Commissions can play a critical role in encouraging the state to develop a strategy and a plan for the national implementation of the UN Guiding Principles on Business and Human Rights (“National Action Plan”) outlining the key human rights obligations of
(a) the state:
enforcement of laws that require business enterprises to respect human rights, to periodically assess the adequacy of such laws, and address any gaps
ensure consistency of corporate laws with human rights obligations
effective guidance to business enterprises on how to respect human rights throughout their operations,
encourage and require where appropriate business enterprises to communicate how they address the human rights impact of their operations.
(b) the business enterprises:
Business enterprises need to develop an understanding of the core human rights values encapsulated in the UDHR and ILO Convention and examine how their own activities may adversely impact human rights whether it be their employees or the wider community and how to ensure that they prevent or mitigate the risk of adverse impacts.
Consider whether additional human rights standards are required in order to ensure the respect for human rights who are deemed vulnerable
Distinction between respect for human rights from philanthropy and corporate social responsibility
Business enterprises need to develop an understanding of the core human rights values encapsulated in the UDHR and ILO Convention and examine how their own activities may adversely impact human rights whether it be their employees or the wider community and how to ensure that they prevent or mitigate the risk of adverse impacts.
Consider whether additional human rights standards are required in order to ensure the respect for human rights who are deemed vulnerable
Distinction between respect for human rights from philanthropy and corporate social responsibility
CSOs and NHRIs can play and an integral role in raising awareness about what the UN Guiding Principles are, why they should be implemented, and mapping the key stakeholders for the successful implementation of the guiding principles including the jurisdictional implications of implementing the guidelines. Will this require a regional strategy in the case of seasonal workers for instance? What are the legal implications? Who are the enforcement agencies?
An equally compelling case needs to be made about the economic costs of human rights violations, i.e. human rights violations are bad for business because it exposes business enterprises to reputational risks and possibility of litigation proceedings. This would create the conditions of possibility for the development of internal accountability systems within businesses to monitor human rights abuses by making a policy commitment to respect human rights, develop a system of identifying, preventing and mitigating human rights abuses including a recourse to remedies the uphold the following principles in consonance with the criteria set out in the UN Guidelines for non-judicial grievance mechanisms: (a) legitimate (b) accessible (c) predictable (d) equitable (e) transparent (f) rights compatible (g) encourages continuous learning to strengthen mechanisms for prevention of future human rights violations.
This must be supplemented by robust human rights education and advocacy with the key state agencies, business sector, judiciary and the wider public in that the responsibility to respect human rights is distinct from social investment or philanthropic activities- abuse of corporate social responsibility to exonerate business enterprises from any complicity in gross violations of human rights. In particular NHRIs can help examine the relationship between the principles of equality and non-discrimination prescribed in the Bill of Rights (prohibited grounds of discrimination- race, religion, ethnicity, sexual orientation, gender identity and or expression, pregnancy, marital status, disability) and the right to a safe work environment, child labour, forced labour, trafficked labour or slavery, freedom of association and the right to take part in collective bargaining, the right to privacy, freedom from torture and cruel and degrading treatment, right to an adequate standard of living and social security and attendant civil and political rights.
National Human Rights Institutions have an important constitutional mandate of monitoring compliance with human rights law. As part of this mandate, NHRIs can work with the state, statutory bodies and the business sector in developing a checklist of minimum standards required by all businesses regardless of their size, sector, operational context, ownership and structure. These should include the provision of written contracts, labour requirements and protections clearly articulated and that all workers must receive copies of these contracts. Contracts must be explained in a language that the worker understands.
NHRIs can also play an active role in facilitating discussions between the state, businesses and the wider community including potentially affected groups and other relevant stakeholders to assess human rights impact (including environment and social impact assessment- sexual harassment accentuated by gender inequality) of specific business ventures. The national framework and the implementation of the guidelines will be an important precursor for these discussions.
Given that the UN Guidelines encourage states to provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive state-based system for the remedy of business-related human rights abuse, NHRIs can use their mandate of carrying out independent investigations to encourage affected workers to lodge complaints. (e.g. HRADC in 2016 investigated the case of human trafficking in relation to Pilipino workers in Fiji whose passports were held by the employer for two years). The constitutional safeguards against human trafficking must be supplemented by an anti-trafficking policy as well as specific corporate strategies to prevent human rights abuses particularly of women and children. NHRIs can also facilitate access to remedies available in the event on an infraction of human rights including mediation or litigation proceedings.
It is imperative that government departments, agencies and statutory bodies that shape business practices are fully aware of and observe the states human rights obligations. NHRIs can encourage states to develop specific national legislation to ensure that they meet their human rights obligations as they pursue their economic objectives with businesses by including relevant human rights provisions in business or investment treaties and contracts.
