Background to Business and Human Rights

“Now, therefore,

The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction”.- The United Nations Declaration on Human Rights (UDHR).

With this declaration and the subsequent outline of human rights in the UDHR, the ball was set rolling on the realisation of these rights by all individuals in the world. This was in further consolidation of the objectives of the United Nations as founded in 1945. The UDHR has further been embedded in binding international human rights instruments covering a wide spectrum of human rights principles and standards. Together with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the three documents have come to be identified as the international bill of rights. Other international instruments have been adopted to address special interest groups such as women (CEDAW), Children (CRC), Persons with Disabilities (CRPD) and also to address thematic human rights issues such as labour and racial discrimination among others.

Whereas not all human rights issues of international concern have been codified in internationally binding instruments, the nature of human rights is such that all human rights issues find expression in the UDHR and its facilitating binding international instruments. The principles of human rights such as interdependence, indivisibility and non-discrimination ensure unlimited interpretation and application of human rights in all spheres of life.

Business and Human Rights

Though the State is the primary duty bearer as far as realisation of human rights is concerned, businesses as specialised organs in society are called upon to ensure respect for human rights. In the preamble of the UDHR, all organs of society are called upon to keep in mind the contents of the Declaration in order to ensure the realisation of human rights. Even though International human rights treaties do not impose direct legal human rights obligations on businesses per se through national laws, they are bound to observe human rights.

Businesses have both positive and negative human rights impacts and hence they are key players in the human rights arena. For example businesses contribute to the realisation of key human rights such as the right to health, food, education among others. These rights are realised through employment creation, generation of taxes for governments, CSR activities etc. On the other hand, businesses can cause of contribute to adverse human rights impacts such as infringement of labour standards, child labour, political instability, armed conflicts, environmental degradation, displacement of people and many others.

Concerns about businesses impacts on human rights gained prominence in the 1970s after the International Telegraph and Telephone Corporation was involved in the coup in Chile that led to the death of President Salvador Allende. Further investigations by the U.S Congressional Committee revealed cases of bribery scandals by businesses especially in the developing countries. Prior to these findings, the US government had been hostile to any development of a code of Conduct for businesses by the United Nations. However Developing Countries, mainly from Latin America, began to demand for reshaping of the international economic order especially the role and influence of Foreign Direct Investments. These countries held the view that Transnational Corporations symbolised exploitation and dependence, hence their urge to the UN to take action to ensure that TNCs better met their needs.

In response to the demands by the developing countries, the UN Economic and Social Council (ECOSOC) in 1973 appointed a Group of Eminent Persons to study the impact of TNCs on economic development and international relations, and to advise the UN. 1974 the eminent persons present their report with recommendations to the UN to establish a permanent Commission and a Centre on TNCs (United Nations Centre on TNCS- UNCTC) to assist the UN and national governments on matters pertaining to TNCs and FDI and the UNCTC to assess the feasibility of having multilateral agreement on TNCs of possibly establish a code of conduct for the TNCs.

The UN set up the UNCTC which then engaged on three key activities:

• Providing information
• Analysing policy
• Providing advisory services.

• The UNCTC was disbanded in 1993 and its functions subsumed by United Nations Conference on Trade and Development (UNCTAD). In 1999, UN Secretary-General Kofi Annan launched the Global Compact, a voluntary pact that embraces ten principles of good international corporate practice.  The pact covers the following areas and has ten principles spread across the 4 broad areas:

1.  Human rights

• Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and
• Principle 2: make sure that they are not complicit in human rights abuses

2. Labour

• Principle 3:Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;
• Principle 4: the elimination of all forms of forced and compulsory labour;
• Principle 5: the effective abolition of child labour; and
• Principle 6: the elimination of discrimination in respect of employment and occupation.

3. Environment

Principle 7: Businesses should support a precautionary approach to environmental challenges;

Principle 8: undertake initiatives to promote greater environmental responsibility; and

Principle 9: encourage the development and diffusion of environmentally friendly technologies.

4. Anti-corruption.

Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery

The Global Compact has a growing membership of corporations that are willing to comply with these principles. Read More: https://www.unglobalcompact.org

In pursuit of higher standards for holding businesses accountable, the UN Commission on Human Rights adopted resolution mandating Secretary-General to “appoint a special representative on the issue of human rights and transnational corporations and other business enterprises”
. The resolution mandated the Special Representative[1]:

1. To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights;
2. To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation;
3. To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”;
4. To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises;
5. To compile a compendium of best practices of States and transnational corporations and other business enterprises.

After three years of wide consultations across the world and actors, the special representative gave his report, with a framework for operationalising these findings. The framework had three pillars:

• Pillar 1: The State duty to Protect against human rights violations,
• Pillar 2: The business responsibility to Respect human rights
• Pillar 3: Access to Remedy where violations have occurred

The Human Rights Council Unanimously accepted the framework and through another resolution added the Special Representative time to operationalize the Protect, Respect and Remedy Framework and specifically:

• To provide views and recommendations on ways to strengthen the fulfilment of the duty of the State to protect all human rights from abuses by transnational corporations and other business enterprises, including through international cooperation;
• To elaborate further on the scope and content of the corporate responsibility to respect all human rights and to provide concrete guidance to business and other stakeholders;
• To explore options and make recommendations, at the national, regional and international levels, for enhancing access to effective remedies available to those whose human rights are impacted by corporate activities;
• To integrate a gender perspective throughout his work and to give special attention to persons belonging to vulnerable groups, in particular children;
• To liaise closely with the efforts of the human rights working group of the Global Compact in order to identify, exchange and promote best practices and lessons learned on the issue of transnational corporations and other business enterprises;
• To work in close coordination with United Nations and other relevant international bodies, offices, departments and specialized agencies, and in particular with other special procedures of the Council;
• To continue to consult on the issues covered by the mandate on an ongoing basis with all stakeholders, including States, national human rights institutions, international and regional organizations, transnational corporations and other business enterprises, and civil society, including academics, employers’ organizations, workers’ organizations, indigenous and other affected communities and non-governmental organizations, including through joint meetings;
• To report annually to the Council and the General Assembly.

In 2011, the HRC again unanimously accepted the Guiding Principles on Business and Human Rights. The principles hence achieved a great milestone as the first international standard to guide the conduct of business in order to address the risks and impacts caused by businesses. In order to enhance the implementation of the guiding principles and human rights, the HRC established the UN Working Group on Business and Human Rights (UNWG) through a resolution. Among its key tasks was to ensure that they built the capacity of the states and all other stakeholders to implement the guiding principles and to organise the forum on business and human rights where stakeholders can engage in dialogue and exchange ideas and challenges faced in the course of implementing the guiding principles.

The working group has advised states to develop National Action plans on Business and human rights as part of their dissemination and implementation of the guiding principles. Several countries from around the world have developed NAPs on BHR. However in Africa, Kenya is the first country to initiate the development of NAP on BHR.

Public inquiry on insecurity and its impact on the enjoyment of fundamental human rights in the North Rift Region of Kenya KNCHR work on Business and Human Rights