Business and human rights: will the Guiding Principles work?

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Masked protestor marching to protect labour rights in Mexico

Businesses can have an impact on almost all human rights. That was one of the key findings of John Ruggie, the UN Special Representative to the Secretary General on Business and Human Rights. After more than six years’ work his mandate has now finished and his Guiding Principles for implementing the Protect, Respect and Remedy Framework have been adopted by the Human Rights Council. John Ruggie recognised in his analysis that rapid globalisation had created “governance gaps” – companies’ operations and economic and political influence reach across national borders but international human rights law has failed to keep pace.

CAFOD partner organisations and local communities in the countries where they work such as Mexico, Peru, Colombia, the Philippines and Democratic Republic of Congo would certainly agree with that analysis. What’s not yet clear to them is how the last six years of work at the UN will improve their lives and mean that abuses of human rights by companies become a thing of the past.

The Guiding Principles are not international legal obligations as John Ruggie is at pains to set out. We are now in the stage of implementation – their value and effectiveness on the ground depends on concrete actions from states and companies.

That is why CAFOD, with the other CIDSE Catholic development agencies, has stressed that this next stage should not be just about sharing the Guiding Principles but also looking at evidence of how they are being used and gauging the impact that they have on human rights abuses by transnational companies and other enterprises. For CAFOD the value of the Guiding Principles will be the extent to which they change the behaviour of states and companies for the better.

For example, are governments protecting against human rights abuses by taking steps “to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”? How are businesses meeting their responsibility to respect human rights with a “due-diligence process to identify, prevent, mitigate and account for how their address their impacts on human rights”? The new UN Working Group which will be appointed in September needs to evaluate the Guiding Principles impact in practice, as well as identifying any gaps or areas for improvement.

Commitment versus action: access to justice

Along with the United States and Canada, the UK was one of the countries which urged the Human Rights Council to focus the new Working Group’s mandate primarily on disseminating and implementing the Guiding Principles. Yet one of the first tests of how the UK itself plans to do this came just last week with the first reading of the new Ministry of Justice bill. The second reading of the Bill is today.

John Ruggie’s Guiding Principle 26 sets out that:

“States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing human rights-related claims against business, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.”

But the new MOJ bill seems to take us off in exactly the opposite direction. Never mind taking action to make it easier for those harmed by the operations of transnational companies to seek redress, the Jackson proposals if incorporated into law would make it almost impossible for claimants to bring cases against multinational companies in the UK. This would represent a huge step backwards. Leigh Day, the internationally respected law firm which has represented plaintiffs from developing countries in emblematic cases such as Lubbe & ORS v Cape PLC (claims by 7,500 South African asbestos miners) and Motto & ORS v Trafigura (claims by 30,000 Ivory Coast citizens arising from toxic waste dumping), has outlined that such work would not be financially viable under the new system. Civil society groups wrote to the MOJ in February asking for an exemption for these kind of cases. John Ruggie himself wrote to the Government in May. The Bill as published last week does not yet address these concerns.

It’s just two weeks since the Human Rights Council adopted the Guiding Principles. How states and companies choose to use and interpret them will determine their ultimate value as tools for change. Here in the UK, the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill will be the first important test of the impact of the Guiding Principles in practice.

For more details on CAFOD’s work at UN level over the last six years with the other CIDSE development agencies see: http://www.cidse.org/Area_of_work/BusinessAndHumanRights/?id=1315

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