UN Guiding Principles on Business and Human Rights: Weaknesses and Way Forward XII International Human Rights Colloquium, Sao Paulo, 14 October 2012 Phebe Mavungu Clement Legal Adviser – ICJ Africa Programme [email protected]

Main question: Can the GP adequately and effectively be used for corporate human rights accountability? What its weaknesses are and what can be the way forward?

Presentation Outline

1.

Introduction

2.

UN Guiding Principles: Content, Rationale and Usefulness

3.

Weaknesses of GPs

4.

Way forward

5.

Conclusion

UN Guiding Principles: Content, Rationale and Usefulness     Prof. John Ruggie: Special Representative appointed by UN Human Rights Council to investigate Business and Human Rights in 2005 in light of failure of Norms Considered a number of submissions and consultations Produced a Framework in 2008 with three prongs Part I: State duty to protect individuals from corporate violations at international law   Improve legal framework and create monitoring mechanisms Drive to improve domestic regulation of human rights

UN Guiding Principles: Content, Rationale and Usefulness     

Part II: Corporate obligations to respect

human rights: DO NO HARM May require positive steps like instituting anti discrimination policy May in some instances require positive duties of companies where they are sole provider of services and where context requires provision of health, education Involves all rights recognised at international level

UN Guiding Principles: Content, Rationale and Usefulness  Due diligence framework: to ensure that activities do not cause harm   Does not only involve compliance with legislation Anticipate and Manage risks to ensure that business avoids infringing rights:  Context of operations and possible risks  Impact of activities on human rights in context  Extent to which can contribute to abuse through relationships with others (with states, other business partners)

UN Guiding Principles: Content, Rationale and Usefulness  

Part III: Access to Remedies

 Investigation and punishment where wrong-doing  Judicial and Non-Judicial mechanisms proposed   Grievance mechanisms within company: hotlines, advisory services for complainants, mediators Identify potential violations early  Should not impact on ability to access other forms of redress through courts.

Ruggie has succeeded in getting support of many businesses and governments; large number of NGO’s in support.

UN Guiding Principles: Content, Rationale and Usefulness Grosso modo: o o o o o o Clarification of State HR obligations in respect of corporate activities Corporate responsibility (to respect) extends to their business relationships Fairly Good Starting Point for a more robust framework Theoretical and Practical: Operational Principles Universal consensus Possibility of global convergence around the standards set by GPs.

Critique of UN Guiding Principles      Legal nature of GPs: Non binding. Looks like a wish list for states and corporations; No enforcement mechanism for the standards set or defined by GPs; Corporations only have largely ‘negative obligations’ : DO NO HARM. Why not some positive obligations to facilitate access to rights in their sphere of activities.

Corporate responsibility to respect lies on State duty to protect: What when State fails? The Kilwa Incident in DR Congo Corporate responsibility to respect depends on State implementation of its duty to protect: May developing are not able or willing to regulate or confront transnationals that bring investment.

Critique of UN Guiding Principles  While GPs are premised on existing Int’l Law, they are soft regarding State extraterritorial obligations vis a vis business activities of corporations operating abroad (Control and influence).

ETOs are certain obligations binding on states to observe human rights of persons outside of their territorial scope.

 Regulation and accountability of Transnationals operating in the South more effective if done by home states.

UN Guiding Principles: Way Forward      Using the “little” that we have.

Mainstreaming Principles into existing initiatives (domestically and regionally).

Nothing stops states to incorporate GPs into legislations.

GPs can be a basis for development of corporate human rights policies and standards GPs can be a good tool for advocacy with states and corporations

UN Guiding Principles: Way Forward     GPs could be a good authoritative reference for developing of a progressive jurisprudence.

Can be taken forward by similar initiatives at the regional level: OECD, Working Group of ACHPR on Extractives Industries.

On the road to a binding instrument on the accountability of PSMCs for HR violations. Resorting to, and import GPs into, opportunities which domestic laws and remedies currently offer: See ICJ Access to Justice Studies, US ATCA, SA PSMC Act, Alternative mechanisms.

The End. Thanks!

Merci!

Obrigado!

Gracias!

Asante!