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Transcription
The United Nations has developed guiding principles to ensure that businesses and states protect human rights. These principles include the duty to protect human rights, the responsibility of businesses to respect human rights, and the need for access to remedy for victims of business-related abuse. The concepts of human rights impact, complicity, and gross human rights abuses are also discussed. The principles emphasize the importance of due diligence, prevention, and remediation. Additionally, various international conventions and declarations address specific human rights issues. The responsibility of businesses is to avoid causing or contributing to adverse human rights impacts and to address them when they occur. Hello and welcome to this new episode of the Diary of a Lawyer and today I want to just briefly talk about business and human rights and this is a subject that has been widely looked into by the United Nations and it's a subject that has been thoroughly addressed and it's very obvious that there's a need to balance both its businesses but also to ensure that there are human rights protection. Now this is an overarching subject and we can't cover it here in totality, however we are going to be looking at the key concepts, the key issues and the overriding principles. So the United Nations set out around six years of work guiding principles through which businesses and states should ensure that human rights are protected and this was a collaboration of governments, civil society, affected individuals, communities, lawyers, investors and other stakeholders and the road testing of proposals was also done and they were developed according to Operation Protect, Respect and Remedy Framework presented by the then special representatives in 2008 and essentially there are three pillars. One is the set duty to protect human rights, the corporate responsibility to respect human rights and the need for greater access to remedy for victims of business related abuse and this according to the special commission of human rights was an apparent appealing is that this provided for the new and clear benchmark and represent an important milestone in the evolving of understanding human rights in societies and they also give clarity to the best learning expectations of businesses with regard to human rights in a first important step towards developing appropriate and effective responses to such problems. Those were some of the language and the guiding principles, they are set out as I said by the United Nations and they help to sort of provide a roadmap towards ensuring that human rights are protected but behind those guidelines are the key concepts which we are going to go through in brief and so first among those was the actual human rights impact. In other words, has the actual human rights impact been put in place or assessed? In other words, the impact, the adverse impact has already occurred or it is occurring and the adverse human rights impact occurs when actions remove or reduce the ability of an individual to enjoy his or her human rights and the business relationships refer to the relationships where business has with business partners, entities in its value chain and any other state or state entity that is directly linked to its business operations, products or services and this could include indirect business relationships, its value chain, products and services which are beyond the first tier and minority as well as majority shareholding positions in joint ventures and there is another concept which is characterised as complicity and complicity has both legal and non-legal meaning and as a legal matter most national legislation prohibits complicity in the commission of a crime and the numbers allow for the minimum for criminal ambiguity of business enterprises on such basis and the procedure explains that the weight of international criminal law jurisprudence indicates that the relevant standard for aiding and abetting is knowingly, quote unquote, knowingly providing practical assistance and encouragement that has a substantial impact on the commission of the crime and some of the examples listed regarding complicity could be situations where a business enterprise is seen to benefit from abuses committed by others such as when it reduces costs because of slave-like practices in its supply chain or fails to stick out in the face of abuse related to its operations, products, services despite there being principled reasons for it to do so. Even though enterprises have not yet been found complicit by a court of law for this kind of involvement in abuses, public opinion sets the bar slightly lower and can inflict significant reputation damage especially in this age of social media and instant communication around the world. Furthermore, the human rights due diligence process should uncover the risks of non-legal or perceived, quote unquote, complicity as well as legal complicity and also trigger appropriate responses and in this case, in terms of the principles here, due diligence is of course self-evident but it's been defined as the measure of prudence, activity or assiduity that is properly to be expected from an ordinarily exercised, well-reasonable and appropriate pattern and the particular circumstances. I mean that's very straightforward. The other concept is the concept of gross human rights abuses and that should be self-evident. However, for purposes of completeness, the UN document doesn't say that there is a uniform definition of gross human rights violations in international law but it lists some practices that generally include such as genocide, slavery and slave life practices, summary or arbitral executions, torture, forced disappearances, obituary and prolonged detention and systemic discrimination. Other kinds of human rights violations include economic and social cultural rights which can also count as gross violations if they are systemic. For example, violations taking place on a large scale or targeted on a particular population or groups. However, for the individual, although it may not be classed as systemic, for the individual it can potentially or a group of individuals can obviously be a serious impact. The key concepts listed include things like the risks that a business enterprise and its operation may lead to in terms of a vast impact. The other concept is one of leverage which is an advantage that gives power to influence in terms of influence. And in the context of the guiding principles, it refers to the ability of a business enterprise to make change in the wrongful practice of another party that's causing or contributing a vast human rights impact. Then there's the concept of mitigation which again is self-evident but actions to reduce the extent or any residual impact that requires mitigation or any potential human rights impact can be classified as an impact that may occur but has not yet done so. Prevention again is a key, it's very clear, it's self-evident, action needs to be taken so that violation doesn't occur and remediation or remedy again refers to processes that provide a remedy for that vast human rights impact. And the potential substantive outcomes that can counteract or make a vast impact. There are other concepts which I'll just briefly summarise such as salient human rights and in the context of the business enterprise that stand out as being at most risk which will typically occur according to the sector, it's very sector specific and obviously to be taken into an operational context. But the important point is that the guiding principles make it clear that an enterprise should not focus exclusively on the most salient human rights issues and ignore others that might arise. And then obviously the severe human rights impact is self-evident and the aforementioned stakeholders and the value chain, I think the value chain here in terms of this context is one action that encounters according to UN activities that convert input into output by adding value. And it includes entities which have a direct or indirect business relationship with either a supply product or services or receive products or services from the enterprise. So, just to summarise some of the foundational principles, the business enterprise should respect human rights and they should avoid infringing on the human rights of others and should address the vast human rights impacts which they're involved. And the other aspect of the guiding principle is that the responsibility of business enterprise to respect human rights refers to internationally recognised human rights, understood at a minimum as those as expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization Declaration. So, those are some of the fundamental principles addressed at work, I mean those are sort of some of the key guiding principles but I'll just quickly summarise the addition of human rights. So, frameworks that may be relevant in this context. So, we have the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of All Forms of Discrimination Against Women, the Rights of the Child, the Protection of the Rights of All Migrant Workers and Members of their Families, the Convention on the Rights of Persons with Disabilities, the United Nations Declaration on the Rights of Indigenous Peoples, the Declaration on the Rights of Persons Belonging to National Ethnic, Religious and Linguistic Minorities and generally in many, in sort of most instances, these rights, the rights in this instrument are associated with individuals in the specific groups they address. The, however, the United Nations Declaration on the Rights of Indigenous Peoples addresses both the human rights of indigenous individuals and the collective rights of indigenous rights peoples. I mean that's a very important point to make. One of the other guiding principles, which I'll summarise quickly, is that the responsibility for respect to human rights requires that businesses, enterprises avoid causing or contributing to adverse human rights impacts through their own activities and address such impacts when they occur. B, they seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. And so the key points here are causation, contribution, not contribution but there's a link, and so those are sort of the key responsibilities of the business to, in terms of addressing any potential human rights. Violations or abuses, whether salient or not salient, and as we've sort of seen from the United Nations document, this covers a number of areas, ranging from disability, indigenous peoples, practices that may not be necessarily direct but are also linked either through input, or value chain, and so on and so forth, and so that is it, in a nutshell, in terms of some of the key core principles of relating to business and human rights. I mean, it's a very sort of wide subject, which we can't cover here in one go, but it's a subject, nevertheless, that is very, that is very On sequential and present, especially in today's globalized world, where products are made and services are made in different countries, consumed in a different country, and where there's this divide between the global north and global south, where some are the producers and others are the consumers, and where the links between, and the quality of life and the human rights between those who produce the products and those who consume them, are equally protected. And so, just in the context of all this, the businesses should comply with all applicable laws and respect international human rights wherever they operate, they must seek ways to honor the principles of international human rights when faced with conflict requirements, and they need to treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue wherever they operate. I think that is very clear. In other words, they are sort of a long-arm jurisdiction in terms of the compliance of the rights between businesses and human rights, ensuring that businesses observe human rights protections. And also, some of the key questions set out, just to leave you with, what a business should ask themselves. One is that, is there a need to sequence responses to any adverse human rights impacts that the business has identified, or are they such that they can address them in parallel? I mean, that's self-evident. And the other thing is, if there is a need to prioritize in order to sequence our responses, is there a need of assessing the severity of the impact? The other question is, are there systems that exist to assess the severity of the impact, to take into account scope, scale, and the possibility of remedial action? And do they reflect any potential impacts in terms of severity and how it should be a priority for action, regardless of its possibility? Is there at least attention paid to individuals belonging to vulnerable groups who may suffer the most severe human rights impacts? Do they identify situations where there is a delay in responding to an actual impact, which may make it harder to remedy? And once the most severe human rights impacts have been assessed, are there systems that automatically move on to the next most severe impacts once those have been addressed? So, those are some of the key points that the businesses should be asking themselves in terms of their human rights duties, especially in this day and age where the issues around environment, human rights protections, in terms of freedom of association, the slavery issues, the liberty and security of the person, the human treatment, imprisonment for contractual obligations, the right to freedom of movement, the due process when facing severe state expulsion, for example, fair trial, you know, free from retractive criminal law. It's a long list that is sort of is listed in the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social and Cultural Rights, and also some of the conventions related to the international labor organization or labor-related issues, such as the right of association and the right to organize, collective bargaining, forced labor conventions, the renumeration conventions, enumeration conventions, minimum age convention, child labor, and so on and so forth. So, I mean, there we shall leave it on this episode of the Diary of a Lawyer. I hope that this gives us an initial overview of the relationship between business and human rights and the responsibility of businesses towards human rights protection in the context of work by the chain, access to services, the benefits thereof, and their impacts on human rights. So, there we shall leave it on this episode of the Diary of a Lawyer, and we will speak again. Thank you.
