Committee on Economic, Social and Cultural Rights
21 February 2017
The Committee on Economic, Social and Cultural Rights today held a full day of General Discussion on the draft General Comment on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.
In her introductory statement, Marta Maurás, Permanent Representative of Chile to the United Nations Office at Geneva, stated that there was much value in providing guidance to States on how to discharge their human rights obligations in respect of business activities. The business and human rights theme was cross-cutting and involved both the fundamental principles, as well as the rights and obligations articulated in the Covenant.
Presenting the draft General Comment, Olivier De Schutter, Committee Member and Co-Rapporteur, said that the draft General Comment under discussion today was going to guide the Committee’s dialogue with States parties and define minimal obligations that States were expected to comply with. The Committee looked forward to hearing views on the draft text presented for discussion, and hoped that consensus could be achieved at its June session.
Session 1 focused on the rational, context and scope of the General Comment. Discussants were Florence Simbiri-Jaoko (Global Alliance of National Human Rights Institutions), Sarah Zoen (Oxfam), and Christine Kaufmann (University of Zürich). Switzerland, Franciscans International, Mexico, ESCR Net Corporate Accountability Working Group, Landesa, Bolivia, International Service for Human Rights, the United States, Ecuador, Venezuela, and South Africa took part in the plenary discussion.
Session 2 discussed the issue of State obligations to respect, to protect and to fulfil. Janelle M. Diller (International Labour Organization), Salima Namusobya (Initiative for Economic and Social Rights in Uganda) and Makbule Sahan (International Trade Union Confederation) were panellists in the discussion in which the following organizations and States also took the floor: Global Initiative for Economic, Social and Cultural Rights, Global Coalition for Social Protection Floors, France, International Women’s Rights Action Watch Asia Pacific, the United Kingdom, Food, Human Rights and Corporations (FOHRC), the University of Connecticut, Conectas Human Rights, PODER, the International Disability Alliance, Habitat International Coalition, and Japan.
In Session 3, Peter Hall (International Organization of Employers) and Ashfaq Khalfan (Amnesty International) discussed extraterritorial dimensions. The following countries and organizations also took the floor: Norway, GANHRI Working Group on Business and Human Rights, Center for International Environmental Law, FIAN International, Ecole Normale Superieure, and the University of Liverpool. A number of other speakers took the floor in the interactive discussion which ensued.
Finally, Session 4 addressed the issue of access to remedies. Panelists were Lene Wendland (Office of the High Commissioner for Human Rights), Rae Lindsay (Clifford Chance) and Richard Meeran (Leigh Day). Amnesty International, International Corporate Accountability Roundtable, International Platform against Humanity, International Commission of Jurists, CETIM and Rotab participated in the plenary discussion. Several speakers posed questions to the panellists and the co-Rapporteurs.
In closing remarks, the Co-Rapporteurs Olivier De Schutter and Zdzislaw Kedzia stated that a number of interventions called for some clarifications, and it was hoped that the final text would be as clear and explicit as possible. The General Comment was meant to build upon what had already been achieved with the Guiding Principles.
The Committee will next meet in public on Friday, 24 February in the afternoon for the closing of its sixtieth session.
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, opened the meeting and welcomed the large number of participants.
MARTA MAURÁS, Ambassador and Permanent Representative of Chile, said that she had been personally involved in the elaboration, by the Committee on the Rights of the Child, of General Comment 16 on State obligations regarding the impact of the business sector on children’s rights. In light of that experience, she wanted to share a few thoughts that could be of help to the Committee on Economic, Social and Cultural Rights. There was much value in providing guidance to States on how to discharge their human rights obligations in respect of business activities. It could also help businesses operate in a different environment. The business and human rights theme was cross-cutting and involved both the fundamental principles, as well as the rights and obligations articulated in the Covenant. A holistic analysis was needed that would overcome thematic silos and enable integrated policies and measures. The process followed by the Committee in its elaboration of a General Comment, which had involved broad-based consultations, spoke to emerging good practices in the field. The Committee’s draft was addressing certain key issues that were arising in our age of economic interdependence and the globalization of economic activities. Another area of critical importance also addressed by the Committee was that of remedies, as impunity directly undermined the ideals that inspired the human rights project. Ms. Maurás congratulated the Committee for tackling one of today’s greatest challenges: the impact of business activities on human rights in the age of economic globalization.
OLIVIER DE SCHUTTER, Committee Member and Co-Rapporteur, stated that the Committee had been working on the issue of the role of States with respect to regulating corporate activities over a number of years. In 2011, the Committee had adopted a statement on the obligations of States parties with regard to corporate activities and economic, social and cultural rights. Weeks later, the Human Rights Council had endorsed the Guiding Principles on Business and Human Rights. The General Comment under discussion today was going to guide the Committee’s dialogue with States parties and define minimal obligations that States were expected to comply with. In preparing the General Comment, the Committee had been fully aware that non-State actors’ conduct could normally not be imputed to States parties, unless they were under States’ direct control and instruction. Where cooperations acted with impunity, this revealed the failure of States to put in place appropriate regulatory frameworks. The Committee looked forward to hearing views on the draft text presented for discussion, and hoped that consensus could be achieved at its June session. The level of interest in the process had been truly remarkable, concluded Mr. De Schutter.
Portugal, speaking on behalf of the Group of Friends of Economic, Social and Cultural Rights, stated that, as duty-bearers and primary addressees of the General Comments, States had a direct interest in engaging with the Committee. There were a number of other additional useful instruments on business and human rights, including legal instruments directed to States, which described States obligations under particular treaties. The Committee had been engaging with the issue of business and economic, social and cultural rights for many years, including through its States reporting process. The activities needed to be coherent with the 2030 Agenda on Sustainable Development. Partnership was one key aspect of the 2030 Agenda that could be reinforced, especially with private actors. It was an opportune time for the Committee to address that topic and to provide deeper guidance to States on their specific obligations.
Session 1: Rationale, Context and Scope of the General Comment
FLORENCE SIMBIRI-JAOKO, Global Alliance of National Human Rights Institutions, said that her organization had dedicated one of its biannual conferences to the issue of business and human rights. The Global Alliance was a network of more than 100 national human rights institutions established in accordance with the Paris Principles. Some of those institutions took human rights violations to their domestic courts; they also engaged with regional human rights mechanisms and reported to national parliaments. As bodies that engaged with human rights violations on a daily basis, the Global Alliance believed that General Comments were very useful because they could directly enhance the rights of citizens on the ground. General Comments could go a long way when used as a soft law at the national level. It was believed that international instruments, once agreed upon by the States, had to have meaning on the national level. States were the duty-bearers at the normative level and had the primary responsibility. The context was really important because greater focus was being placed on development; economic and social development could not happen outside of the context of compliance with human rights standards. Having a General Comment would bring clarity to States on tools they could develop, imply and monitor. There were States which were weaker than some businesses; was it possible to hold businesses accountable in such cases? Another big question was that of responsibility in different jurisdictions. Businesses ought to be held accountable, especially as they became ever more powerful. The General Comment needed to align itself with the Sustainable Development Goals, stressed Ms. Simbiri-Jaoko. Some regional mechanisms had established legal frameworks for the conduct of businesses, she noted. It was important to have a connection between national, regional and international levels; human rights were universal so any dichotomy should be avoided.
SARAH ZOEN, Oxfam-America, was pleased to see the proactive process run by the Committee. Oxfam believed the draft was a very strong document, as States were failing to protect citizens from business activities. There was an increased need on behalf of communities to evaluate the impact of business, and a lot of work needed to be done. How was compliance being addressed? Ms. Zoen also raised the issue of community due diligence. Oxfam had conducted a number of human rights impact assessments, many of them in the extractive sector, and was providing support to local communities, which often lacked capacity. Had businesses provided input on the draft General Comment? As the primary beneficiary of global inequality trends, the private sector was increasingly under pressure due to its role as a protagonist of the global economic system. While private sector profits were at an all-time high, trust in large corporations was at a historic low. Due diligence should be seen as a tool to improve business behaviour and provide rights holders’ access to justice; the cost of inaction impacted a company’s bottom line. Communities needed tools to evaluate and prioritize their vision of remedy and agency. Communities and affected stakeholders needed even more opportunity to present testimony and evidence. Ms. Zoen stressed the need for the existence of a due diligence fund supported by both home and host countries. Companies ought to be mandated to conduct and publish human rights impact assessments before investment decisions were made. Opportunities should also be explored to collaborate on joint public-private-people partnerships.
CHRISTINE KAUFMANN, University of Zürich, stated that apart from the obvious consequences of climate change on farming, housing and migration, the human rights impact of renewable energies was of increasing concern in the context of business activities. Those challenges were already a part of reality in the business sector. Digitalization needed to be mentioned, as it could affect jobs and raised the issue of privacy. The General Comment did not operate in clinical isolation, but needed to be seen as one piece of the regulatory business and human rights puzzle. The General Comment should clearly aim at elaborating on existing State obligations under the Covenant in a business context. It should consider the Sustainable Development Goals as an important overreaching framework and emphasize the importance of a human rights based approach in their implementation. Some sections on international economic law needed updates with regard to recent developments, for instance on the role of competition law for intellectual property rights. Ideally, the General Comment would provide concrete guidance to States on how to implement their obligations under the Covenant in a business context. The credibility and acceptability of the General Comment depended highly on its conceptual rigor: it should not create new legal obligations for companies, but stick to its mandate to clarify State obligations. A lot of potential lay in a more systematic inclusion of the United Nations General Principles in terms of both concept and languages.
Switzerland had already sent its comments to the Committee. The draft General Comment provided recommendations to States parties which went beyond the Guiding Principles, and caused a number of concerns vis-à-vis economic freedoms. Some parts of the Comment were not applicable; the Committee was called upon to apply a constructive approach. The language of the draft General Comment was too negative towards economic activity and private participants in the economy. The Comment could have negative repercussions for Swiss companies, especially small and medium enterprises.
Franciscans International pointed out the timeliness of developing the General Comment. On the framework in which the Committee was developing the Comment, the Committee was commended for undertaking a broad approach. It was very important to explore State obligations to protect, but also to mobilize maximum available resources, including a corporate tax. The Committee was encouraged to keep the existing broad approach.
Mexico was very satisfied to see the draft General Comment. In order to enrich the General Comment, Mexico had already provided its input. Mexico believed that the General Comment should include a non-binding reference to the Global Compact, putting emphasis on accountability and transparency. Mexico felt that care was needed when referring to treaties on intellectual property and investment. It was important to observe guidelines of the Organization for Economic Cooperation and Development for multinational enterprises, which provided standards for multinational corporation conduct.
ESCR Net Corporate Accountability Working Group welcomed the clarifications on the obligations of States under the Covenant. There was a serious lack of information available to local communities on corporate activities. The importance of collecting and disseminating disaggregated data was emphasized. The undue influence of corporations over national institutions ought to be further looked into. Community manipulation, judicial interference, privatization of public security services and revolving door employment practices were among such practices.
Landesa believed that the draft General Comment should look at the scope of harm which could come from business activities. Most of the world’s poor lived in rural areas and lacked land rights. Women were particularly at risk when their land rights were undercut and had less access to alternative sources of livelihood. The Committee was urged to specifically address land grabs, and make a reference to women’s rights.
Bolivia said that some multinationals had larger budgets than certain States. Bolivia believed that the General Comment should not be impenetrable to the rights of those continuously marginalized, such as rural people and indigenous communities.
International Service for Human Rights stated that human rights defenders played a critical role in preventing violations committed through business activities. Defenders of land and environmental rights were recently singled out as particularly vulnerable. State obligations should cover the obligation to protect and include human rights defenders. The public participation of vulnerable and marginalized groups in decision-making ought to be ensured.
United States opined that the General Comment substantially departed from the United Nations Guiding Principles, which had long formed the basis of the international framework. The Comment should be consistent with the language of the United Nations Guiding Principles, which did not create any new international law obligations. The current language of the draft Comment was inconsistent with the United Nations Guiding Principles in the description of States’ obligations and duties to protect human rights. The United States looked forward to following the development of the General Comment as it moved ahead.
Ecuador believed that the topic chosen by the Committee was pertinent in today’s age. The General Comment focused on the need to use the national legislation, but it did not go any further, which would not do enough to combat violations by international corporations. Common parameters ought to be used when dealing with issues such as extraterritoriality. The lack of efficiency of remedies was one of the critical aspects; legal solutions were important and could not be replaced. An internationally legally binding solution was needed.
Venezuela noted that there was no mention of the Open-Ended Working Group on Transnational Enterprises, under Human Rights Council resolution 26/9 of 2014. Venezuela believed that the Committee should consider establishing a legally binding instrument which would fill the legal vacuum in the field of human rights and international enterprises.
South Africa stated that the draft General Comment ignored the situation of poor, weak countries faced with international corporations. South Africa noted inconsistencies between the draft Comment and the Committee’s 2011 statement on the same matter. The draft General Comment’s language was weaker than that of the 2011 statement. International Labour Organization legal instruments should be given more prominence.
Session 2: State Obligations to Respect, to Protect and to Fulfil
JANELLE M. DILLER, International Labour Organization (ILO), said that the ILO was working with Member States to set in place and operationalize working standards, which should ensure freedom from exploitation, while creating opportunities for decent growth. States were working with the ILO through tripartite partnerships, inter alia, addressing complaints. ILO provided technical assistance to its members, and monitored and gathered data on labour markets. The work of the ILO and its partners had resulted in a corpus of international legal obligations – binding conventions and recommendations providing guidance to Member States. The ILO Tripartite Declaration of Principles encouraged the positive contribution of enterprises. Rights guaranteed at the national level through workers’ associations should be included in the General Comment. ILO believed that the measures in the ILO standards ought to be reflected in the General Comment. States themselves were required to conduct due diligence, noted Ms. Diller. By the virtue of the application of the standards across sectors, those could be used to adjudicate and also resolve disputes. ILO was already working with Member States on the development of national standards; those could be used by the Committee to build on in its work on the General Comment.
SALIMA NAMUSOBYA, Initiative for Economic and Social Rights in Uganda, believed that the draft General Comment was very strong. The Comment should specifically mention situations where the State provided security to third parties involved in violations like illegally cordoning off areas for mining purposes without respecting the surface rights of the landowners. A key component of human rights due diligence was meaningful participation and consultation with affected communities, to ensure that potential adverse impacts were in advance of projects. Meaningful participation and consultation had to take into consideration all barriers to engagement, including marginalized groups and differing abilities and needs. Access to information was also integral to adequate meaningful participation. Yet the right to access information in some States only pertained to information held by the State. On the issue of privatization, which was brought up in the Comment, more reference should be made to public-private partnerships. In addition to affordability, other key elements which should be mentioned were accessibility, quality, discrimination, transparency and participation in decision-making. Ms. Namusobya encouraged the Committee to refer to the State’s obligation to ensure that its tax and financial services arrangements, both domestically and internationally, ensured that business paid their fair share of taxes.
MAKBULE SAHAN, International Trade Union Confederation, which represented 181 million workers in 163 countries, stressed that workers’ rights were frequently abused by private sector employers. The General Comment should highlight the need of States parties to protect workers and impose dissuasive sanctions against infractions. Governments were major economic actors procuring goods and services, and they should do so while respecting human rights. There was a need to undertake measures to eliminate precarious and informal employment. Only six per cent of workers employed by the 50 world’s largest companies were formally employed. The need to promote collective bargaining ought to be promoted as well, said Ms. Sahan. Investor protections under investment treaties or investment chapters of trade agreements had been used in the past to threaten the host States’ right to regulate. The General Comment should provide further details in relation to inspectorates in the area of working conditions; inspection should be public, and private audits ought to be under public oversight.
Global Initiative for Economic, Social and Cultural Rights noted the relevance of the United Nations Guiding Principles on Business and Human Rights, which were non-binding, but set a floor rather than a maximum standard. They did not replace or undermine the existing laws. The Committee’s legitimate endeavour was to provide States with further guidance, rather than align with the Guiding Principles. Privatized services ought to operate in line with the Covenant; in some cases, States needed to provide free services, such as in primary education.
Global Coalition for Social Protection Floors aimed to ensure that every human being was entitled to a basic income. More emphasis in the Comment ought to be placed on vulnerable groups and how business activities affected them. Measures by corporations to avoid taxes considerably affected States’ capacity to provide services to their nationals; stronger international cooperation in that regard was needed. Attention was drawn to the so-called investor-state dispute settlement mechanisms.
France noted that the obligations of States vis-à-vis corporations were very important. France, which had submitted written comments, believed that States needed to ratify the Optional Protocol to the Covenant. French individuals could submit their communications to the Committee if they felt that their rights had been infringed. At the national level, the National Assembly was today considering a draft law on due diligence of companies.
International Women’s Rights Action Watch Asia Pacific stressed the need of the General Comment to focus on the negative impact that business activities had on women, especially rural women, who had lost their livelihoods due to major projects. Migrant workers, domestic workers and women in precarious jobs were all groups of concern. The privatization of services could also affect women, noted the speaker. Violence perpetrated against women who challenged corporate power was a serious concern.
United Kingdom was concerned that the current draft did not take into account fully the International Law Commission’s own commentary on corporate entities, which were considered to be separate. The International Law Commission’s view was that States could only exceptionally be held accountable for actions or non-actions of enterprises. Article 14 of the Convention was the only mentioning of the territorial scope; there should be no assumption or acceptance of the extraterritorial application of the Convention.
Food, Human Rights and Corporations was interested in potentially harmful practices of enterprises on health and nutrition. More explicit links in the General Comment were needed to the United Nations Guiding Principles. Attention was drawn to the reporting framework, a potentially useful tool for businesses to guide their human rights due diligence processes. The risk of human rights abuses in the agricultural sector ought to be emphasized.
University of Connecticut noted that a reference should be made to measures that States parties could take either by themselves or in cooperation with other actors to mitigate climate change. The Paris Agreement made a reference to the way climate change was connected to the need to protect and promote human rights.
Conectas Human Rights stated that general standards promoting progressive taxation and redistribution of income ought to be promoted. The General Comment should invite States to evaluate the best policy choices when privatizing services. The Committee should reinforce the principles of accountability, transparency and non-discrimination. A reference ought to be included on the need to conduct investment human rights impact assessment.
PODER suggested that paragraph 15 on State obligations should include a reference to free trade agreements, which ought to mention human rights obligations. Through human rights impact assessments, negative impacts for potentially affected communities could be prevented. The General Comment should be taken as a baseline for the implementation and monitoring of national implementation plans for the Guiding Principles.
International Disability Alliance said that persons with disabilities were a historically discriminated group that represented as many as 15 per cent of the global population. The profile of affected populations and civil society ought to be increased in the decision-making process. Reasonable accommodation ought to be mentioned in the part dealing with non-discrimination. Public procurement frameworks should also include accessibility provisions.
Habitat International Coalition stated that non-discrimination formed only one of seven principles for the States parties’ implementation; without all of them, the realization of the Covenant’s rights would be impossible. States parties needed to ensure the principles of the self-determination of peoples, gender equality, rule of law, etc. The overriding principle of international cooperation provided a necessary frame which was both organic and indispensable.
Japan referred to draft paragraph 18, which asked for criminal sanctions and administrative penalties by States parties. Japan believed that such penalties ought to be proportionate and appropriate, either administrative or criminal in nature.
OLIVIER DE SCHUTTER, Committee Member and Co-Rapporteur, explained that the International Organization of Employers had submitted written comments. The Organization for Economic Cooperation and Development and the International Chamber of Commerce had also been approached. Regarding the relationship between the draft General Comment and the Guiding Principles, Mr. De Schutter emphasized the difference between policy instruments and the duty that States had under the Covenant on Economic, Social and Cultural Rights. The Guiding Principles were not meant to be the end of the ongoing effort by the international community to improve the contribution of businesses to human rights and mitigate their negative consequences. The Guiding Principles were not an authoritative interpretation of international law. The obligations proposed in the draft General Comment would not endanger the private sector, stressed Mr. De Schutter. The true problem was that today market mechanisms did not penalize enterprises negatively affecting human rights.
Session 3: Extraterritorial Dimensions
PETER HALL, International Organisation of Employees, stated that the draft General Comment focused too much on extraterritorial jurisdiction instead of supporting States to improve access to remedy at the domestic and local level. The shortcomings of extraterritorial jurisdiction were ignored, including the tremendously high costs involved in pursuing remedies in foreign courts and the challenges presented to foreign courts when they had to rule according to foreign legal principles. Businesses could encourage subsidiaries, suppliers, contractors or investors to comply with the requirements under the Covenant, but they could not ensure that. The General Comment should not undermine the well-established norms for allocating responsibility to enterprises and should not create new legal liabilities for companies for social standards along the global supply chain. The approach in the draft General Comment to the topic of extraterritorial obligations was not consistent with the existing state of international human rights law. “Universal civil jurisdiction” had already been disputed by a number of States. On the issue of human rights due diligence, Mr. Hall said that the wording throughout the draft General Comment went far beyond the United Nations Guiding Principles. Mr. Hall concluded that it was difficult to see how the current draft General Comment would help lead to increased accountability and access to effective remedy.
ASHFAW KHALFAN, Amnesty International, suggested that the Committee should further elaborate on the legal basis for extraterritorial obligations to respect, protect and fulfil the Covenant. Article 2 of the Covenant backed up the extraterritorial obligation to respect and protect economic, social and cultural rights in two ways: there was an obligation to undertake international assistance and cooperation to realise rights in all countries; there was no territorial limitation of those obligations or any limitation in relation to the issue of to whom those duties were owed. States had to protect rights in all those area where international law allowed them to do so. Clarity and consistency between the Committee and other treaty bodies were really important, stressed Mr. Khalfan. When the Human Rights Council had endorsed the Guiding Principles, the resolution had been amended to say that further progress could be made on them. The Human Rights Council had also adopted the Principles on Extreme Poverty and Human Rights, which explicitly recognized extraterritorial obligations to protect rights. It was worth noting that the General Assembly had asked bodies dealing with similar human rights questions to respect the General Comments.
Norway stated that it was necessary to describe more precisely conditions under which a State would be held responsible for actions of an entity under its control. As for the extraterritorial scope of the Covenant, Norway believed that the Committee was going too far in that regard. At present, States were not required to regulate the activities of multinational companies domiciled in their jurisdictions. When the Committee used “should” instead of “shall”, was it making a recommendation?
GANHRI Working Group on Business and Human Rights considered that the draft General Comment represented a bridge between the Guiding Principles and the Covenant. It was proposed that a section be added to encourage national human rights institutions to establish platforms for discussing and dealing with complaints. The General Comment should standardise, to the degree possible, procedures for handling complaints. Mutual legal assistance between States should be used in that regard.
Centre for International Environmental Law said that, given the current reality of globalization, the draft General Comment rightly placed emphasis on extraterritorial obligations. The draft General Comment should not forget when businesses had significant impact on the environment across national boundaries. There were growing voices signalling the lack of accountability of both enterprises and governments in the implementation of public-private partnerships. The lack of a definition on proper functioning of markets ought to be corrected.
FIAN International believed that the General Comment was very timely and would contribute to continuing the construction of the human rights architecture. States should comply with the Covenant in good faith; the Committee should redefine the draft paragraph 33, and better specify under which conditions extraterritorial obligations could arise. States could impose obligations on companies which were domiciled on their territories, even if it referred to abuses committed abroad.
Ecole Normale Superieure said that the draft French law under discussion in the Parliament required that transnational corporations show vigilance, so that subsidiaries also comply with human rights obligations. Their foreign subcontractors needed to comply with a number of standards and ensure that fundamental rights were respected. Better light ought to be shed on those obligations, which should be made simpler.
University of Liverpool believed that paragraph 34 should be expanded and strengthened. Norway did not specifically object to that paragraph, the speaker noted. Attention should be paid to particular negotiating positions of States and other entities, such as the European Union. The Committee should pay attention to international policy processes and soft laws, including the Sustainable Development Goals and financing for development.
In a dialogue which ensued, CETIM, which brought together more than 200 organizations worldwide, drew attention to the fact that the main source for the General Comment was the Covenant and not the Guiding Principles. It was not true that extraterritorial obligations could not be codified internationally. Another speaker asked about impact assessment conducted by companies; would it not be better to have such assessment conducted by States? International Commission of Jurists agreed about a well-founded concern to keep coherence between different international documents. The Committee, as well as other treaty bodies, had previously expressed positions in support of extraterritorial obligations. A speaker raised the issue of due diligence, which was a tool to either prevent abuse or mitigate harm; it should be understood and used in the former sense, she stressed.
ASHFAW KHALFAN, Amnesty International, said that it seemed that the Committee often used “shall” and “should” interchangeably, and that no rushed conclusions should be drawn from it.
SALIMA NAMUSOBYA, Initiative for Economic and Social Rights in Uganda, said that when a human rights impact assessment was conducted by companies, their consultants tended to serve the companies that hired them, and the results of their work often remained only with the companies. The language of prevention should be used rather than the language of both prevention and mitigation.
PETER HALL, International Organisation of Employees, stressed that due diligence was asserted quite a lot, but still some uncertainties remained. The Guiding Principles were a key text in that field, and General Comments were not considered as authoritative. Coherence in the implementation of the Guiding Principles ought to be ensured. The “sphere of influence” was a too broad and too ambiguous term.
One of the purposes of the United Nations was the fulfilment of human rights across the world, and it was specified as such in the Charter, commented a speaker.
SARAH ZOEN, Oxfam, said that sustainability needed to be part of the core business and not something to be done on the side lines.
Session 4: Access to Remedies
LENE WENDLAND, Office of High Commissioner for Human Rights, said that the Accountability and Remedy Project had been launched to enhance the effectiveness of domestic judicial systems in accountability in trans-border cases. As a two-year inclusive consultative process, the Project had six priority areas, including civil law remedies. Two reports had been presented to the Human Rights Council, accompanied by a paper with illustrative examples from more than 60 jurisdictions. A key finding was that there were very few domestic legal regimes which were sufficiently clear and detailed to provide enough guidance to companies and, at the same time, present sufficient deterrence from abuses. There was a worrying lack of understanding by many actors, including governments, what due diligence actually entailed. Companies needed to know what was expected of them in practice, stressed Ms. Wendland. At present, public law sanctions were too limited and unimaginative, and did little to help victims. States were called upon to consult with victims on remedies on the ground. States should diversify the sources of legal funding, and a collective address mechanism was an absolute key for reducing the costs for victims. The adequacy of laws ought to be regularly reviewed. On extraterritorial obligations, Ms. Wendland said that there was a need for practical arrangements to be put in place for them to work at a practical level. Lack of clarity in a number of domestic regimes was at the heart of many risk minimization strategies undertaken by many companies. The allocation of burden of proof should not be arbitrary, but properly thought through.
RAE LINDSAY, Clifford Chance, in her personal comments, said that it was important to be candid and precise on what exactly State obligations were. The Guiding Principles at the time had been reflective of international positions on extraterritorial business conduct. The content of the rest of the draft General Comment necessarily played in the part on remedies. On draft paragraphs 45 and 46, Ms. Lindsay said that there was imbalance with the focus on international abuse. It was not clear to which extent companies could be held accountable for the acts committed by subsidiaries. There were manifold structural issues which had risen internationally over time, and which required analysis of how they might be a barrier and how best to deal with them. An ideal outcome for a victim of a human rights abuse would be to have recourse against a parent corporation, but the victim would often need to go through a court process in an unfamiliar location faraway. In the United Kingdom, subsidiaries were sometimes brought to courts through parent companies. A two-track system of justice for victims of human rights abuses could be created, depending on whether the abuse had been committed by a multinational corporation or a State-owned company. The Guiding Principles had a holistic approach which ought to be supported.
RICHARD MEERAN, Leigh Day, stated that human rights abuse cases were taken seriously by multinational companies and their lawyers. Briefing notes had been developed to instruct companies on how to avoid liabilities. Redress for victims and deterrence against future violations were of paramount importance. Even in a fairly developed legal system in South Africa, it had taken 11 years to get a settlement for miners, said Mr. Meeran. The Guiding Principles referred to human rights due diligence duty, which was a very positive concept. One had to prove that there was a breach of a duty, which required access to internal company documents. Even in the United States, where disclosure rules were quite strong, getting that kind of information was quite difficult. Class action mechanisms were one option. Under the Rome II regulations, a higher level of damages were given in developed than in developing countries. The ability of victims to get legal representation was not always a given; for the victims to get any justice, they needed to receive proper representation. The victims then often needed to rely on lawyers who would take up their cases on a contingency basis – lawyers got paid only if they won the case. In terms of incentives, lawyers needed to get paid in order to represent victims; for that, appropriate measures needed to be in place.
Amnesty International referred to barriers to justice and said a lot of relevant information was often in the hands of implicated companies. A number of measures to address those barriers were mentioned expressly in the draft General Comment. There was a need for legal aid, which should also be addressed in the Comment. States needed to make judicial remedies accessible and available, an aspect which had to be further emphasized in the draft.
International Corporate Accountability Roundtable said that the language on remedies ought to be strengthened. The draft Comment should recognize that State-based judicial mechanisms were at the basis of the recourse to remedy. The Committee should use specific language encouraging States to prosecute violations and to adopt appropriate laws which would allow for criminal prosecutions.
International Platform against Impunity referred to the duty of a State to guarantee the access of victims to justice. In the case of indigenous communities, the scales of justice were not balanced; many times there were not even translators in courts to help indigenous claimants. The General Comment should strengthen State obligations to prevent and eradicate such abuses. Reparations should be accompanied by social and psychosocial measures.
International Commission of Jurists, in a joint statement with the Colombian Commission of Jurists, was satisfied that there was enough emphasis on the extraterritorial application of justice. In order to be effective, legal decisions on reparations had to be applied in reality. The Committee should encourage States parties to ensure the implementation of legal vigilance. It was pertinent to have courts operating quickly; many times victims would have already deceased by the time decision was made.
CETIM drew the attention of the Committee to the ambiguous wording in the draft General Comment on judicial proceedings being subordinate to extrajudicial remedies. The existing procedures had their shortcomings and did not allow victims to get justice. The possibility of criminal proceedings should not be overlooked. “Affected communities” was a term used by some victims themselves.
Rotab, as a grassroots organization interested in transparency of contracts and their implementation, was very much aware that there were no institutions to monitor such issues. The law in many countries was not respected, and those countries did not have the possibility to monitor the implementation of contracts. Civil society activists needed to be empowered and supported.
A speaker said that there was a lot of hypocrisy on the part of businesses, which were very adamant about the protection of their own rights, but disregarded human rights. How could the capacities of developing States be best supported? Another speaker asked about the compulsory human rights due diligence, and suggested it was a good approach to level the playing field.
RAE LINDSAY, Clifford Chance, explained that there were all kinds of structural reasons for the current situation. Certain issues ought to be prioritized; it was vital to have the private sector involved in those discussions, as it would be inevitably affected.
LENE WENDLAND, Office of High Commissioner for Human Rights, said that she would not be against mandatory due diligence. The field of law was very wide, and legal regimes functioned at different levels. Having mandatory due diligence across all of those legal regimes could be too ambitious. It needed to be ensured that what was required of companies was clear and unambiguous.
RICHARD MEERAN, Leigh Day, stated that responsible companies dealing under different legal standards should operate under the more stringent set of rules. In some cases, it was clear that a parent company had responsibility for the operations of its subsidiaries, but in other cases the situation was not so clear-cut. What was unfair about holding the parent company responsible in its domicile location if the victims could not get justice in their home country?
OLIVIER DE SCHUTTER, Committee Member and Co-Rapporteur, said that the discussion allowed the Co-Rapporteurs to learn about very specific challenges and problems. A number of interventions called for some clarifications, and it was hoped that the final text would be as clear and explicit as possible, while taking in the account different comments expressed. On granting remedies in transnational cases, Mr. De Schutter said that if there were situations when a parent company was held accountable for the operations of a subsidiary in another country, it was a strong incentive for the country where the violation had occurred to do more to assure the investors. It needed to be clarified how the relations of the two States should be clarified. It was not the intention of the draft General Comment to hold States responsible for the conduct of corporations where they were based, but rather to reveal the possible failure of State organs in discharging their duty to protect. Imposing mandatory due diligence was not necessarily imposing obligations on companies to guarantee that there would never be human rights violations. If a company could prove that it had put into place an appropriate system, it might not be held liable for a possible violation. Mandatory due diligence process could help companies protect their violations.
ZDZISLAW KEDZIA, Committee Member and Co-Rapporteur, stressed the importance of cooperation on the draft General Comment. Each General Comment by the Committee was an attempt to interpret the Covenant. The Committee had to keep the General Comment under 10 pages, which was a reason why not all inputs could be included. Both the Guiding Principles and the General Comment ought to be seen as complimentary efforts of the international community to promote and ensure protection to those exposed to hazards. Those were not competitive processes, but rather complimentary and mutually enriching processes. The General Comment would build upon what had already been achieved with the Guiding Principles. Mr. Kedzia stated that the Covenant was a living instrument; it was very difficult to make a strict division between the content of the obligations and the interpretation of the obligations. It was a challenging intellectual and legal exercise, concluded Mr. Kedzia.
MARIA VIRGINIA BRAS GOMES, Committee Chairperson, thanked everyone for their contributions, written and oral.
For use of the information media; not an official record
Follow UNIS Geneva on: