Any of our business? Human Rights and the UK private sector

Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by Paul Harpur, Associate Lecturer, Queensland University of Technology

I would like to thank the Joint Committee for inviting submissions and commend them for engaging in this extremely important topic. My submission will respond to the question:

How do activities of UK businesses engage the human rights obligations of the UK?

INTRODUCTION

Human rights documents require States to take steps to ensure human rights are protected by laws and policies. This means if UK corporations breach human rights then the UK has an obligation to ensure there are sufficient regulatory vehicles to prohibit this conduct and provide a remedy. A very good example of such a law is the Disability Discrimination Act 1995 (UK). Where the corporation is engaging in human rights violations outside the UK's geographical jurisdiction then the extent of the human rights duties imposed the UK to regulate such conduct is unclear. This submission seeks to focus upon the responsibility upon the UK to regulate corporations' exterritorial conduct.

DUTIES UPON CORPORATIONS

The imposition of human rights obligations upon corporations has been developing for a considerable period of time. One of the most substantial statements of corporation's human rights obligations can be found in the United Nations Global Compact (UNGC).

The UN General Assembly has accepted the complicity principle and provided direction where a person will be complicit. The UNGC Principles state in Principles 1 and 2:

1. Corporations should support and respect the protection of internationally proclaimed human rights … within their sphere of influence

2. Corporations should make sure that they are not complicit in human rights' abuses.

Clapham and Jerbi explain that these first two principles impose duties upon corporations firstly to ensure corporations do not abuse human rights in their operations and secondly, take reasonably practicable steps to ensure corporations are not complicit in others' human rights' violations.[4] When introducing the UNGC to business leaders, Kofi Annan explained:

You can uphold human rights and decent labour and environmental standards directly, by your own conduct of your own business … You can at least make sure your own employees, and those of your subcontractors, enjoy those rights.[5]

On the basis the UNGC principles are based on the UDHR, the principles which are reflected in the UNGC, in effect, re-state existing international law obligations. As a result, Principles 1 and 2 effectively re-state corporations' existing obligations under the horizontal conceptualisation of international human rights law.

What obligations does the UK have to ensure corporations subject to their jurisdiction satisfy the complicity principle?

Arguably corporations have a moral obligation to take reasonably practicable steps to ensure they are not directly, indirectly or silently complicit in human rights' abuse within their domestic and international spheres of influence. Does the imposition of duties upon corporations create any additional obligations upon States? Paust has observed that one of the issues surrounding corporations' obligations under international human rights law is how the extension of obligations over corporations will impact on "public responsibility".[6] The imposition of human rights' obligations over corporations to ensure they are not complicit in human rights' abuses means corporations have human rights' obligations which were previously exclusively the province of States. The fact that human rights' obligations have been imposed over corporations does not mean States' human rights' obligations have decreased because corporations also have obligations to ensure the same rights. Clapham and Jerbi explain:

The boundaries of what is expected from business, and what a State is obliged to do under international law, cannot be neatly drawn. It must be stressed, however, that governments do still possess wide powers over—and primary responsibility for—the well-being of their citizens and for the protection of human rights.[7]

The fact States horizontally impose obligations upon corporations under international law arguably does not mean States have their obligations under vertical international law reduced. States impose obligations on corporations to enable States to discharge their human rights' obligations. Where the operation of horizontal rights ensures the protection of human rights, then States have discharged their obligations. Conversely, if the imposition of horizontal rights fails to ensure rights, then States will be liable to find alternative means to ensure those human rights are protected. Ruggie concludes:

[T]he State duty to protect against non—State abuses is part of the international human rights regime's very foundation. The duty requires States to play a key role in regulating and adjudicating abuse by business enterprises or risk breaching their international obligations.[8]

As a result it is argued that the operation of horizontal rights assists States to discharge their human rights' obligations, but it does not enable States to avoid their human rights' obligations.[9]

It is submitted that as States remain the paramount actors under international law and thus all corporations' rights and obligations flow through States. Rather than reducing States' obligations, the operation of imposing horizontal obligations upon corporations may actually increase States' obligations. Generally, States' human rights' obligations are limited to territory the State controls. For example, article 2 of the ICCPR provides that through ratification, all States undertake "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant".[10] Article 2(2) requires Australia to introduce laws to ensure the rights contained in the ICCPR are protected and article 2(3) requires Australia to ensure there is a judicial remedy if such a right is breached. These obligations upon States have been read widely to include some exterritorial obligations. The International Court of Justice has read article 2 widely. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (Advisory Opinion) the court advised:

This provision can be interpreted as covering only individuals who are both present within a State's territory and subject to that State's jurisdiction. It can also be construed as covering both individuals present within a State's territory and those outside that territory but subject to that State's jurisdiction.[11]

The UN Committee has supported the concept that States have extraterritorial human rights' obligations.[12] Kamchibekova has concluded that "[i]t seems that human rights bodies have accepted the possibility of extraterritorial state responsibility". The extraterritorial obligations of States under international law can be further evinced by the "effects doctrine". The "effects doctrine" extends a State's extraterritorial obligation to any conduct which is performed outside the State which is intended to have an impact within the State.[13] Further evidence of the extraterritorial obligations of States can be demonstrated by the International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts.[14]The Draft Articles on Responsibility of States for Internationally Wrongful Acts do not impose any territorial limitation upon States' obligations.[15]It is clear States' legal obligations under international human rights law are not restricted to the State's own geographical territories.

One manifestation of States' extraterritorial duties concerns the conduct of corporations. It could be argued that States have a moral obligation to ensure corporations operating within their jurisdiction are not directly, indirectly or silently complicit in human rights' abuse. The extension of corporations' human rights duties has resulted in an increase in States' moral obligations. States have increasingly imposed human rights' obligations over how corporations manage their international supply chains.[16] While corporations cannot impact upon the vertical conceptualisation of human rights and bind States, States, through extending corporations' obligations, may in turn extend States' obligations. The horizontal imposition of human rights' obligations upon corporations effectively extends the obligations of States, to all the international and national activities of corporations operating in their jurisdiction.[17] Through imposing non-binding extraterritorial human rights' obligations over corporations, it could be argued that States have effectively extended their own obligations.

A number of jurisdictions have acted to regulate the exterritorial affairs of corporations within their jurisdictions. Examples of this can be found in Europe and in the USA. The European Parliament has recognised that European States have a responsibility to regulate for European-based corporations dealing in developing States. In 1999, the European Parliament passed a resolution calling for a legally-binding framework for regulating European transnational corporations operating in developing countries. While the European Commission has not adopted this mandatory model,[18]the European Commission has adopted a voluntary code and individual European nations have developed voluntary regulatory frameworks to encourage corporations to engage in ethical conduct.[19]

The USA has recognised it has an obligation to attempt to prevent its corporations from using sweatshops.[20] In 1997, the Clinton administration reached an agreement with the Apparel Industry Partnership for an industry-wide code, aimed at preventing child labour and sweatshop conditions generally in supply chains.[21] The most recent USA government involvement in international supply chain regulation has occurred through the Sweatfree Procurement movement. This movement was started by the City of Maine, and requires all corporations which supply products to the public bodies associated with the City of Maine, not to have acquired those products from domestic or international sweatshops.[22] Similar laws have now been introduced in other states, including California,[23]Pennsylvania,[24]Portland,[25] New Jersey[26]and San Francisco.[27]

CONCLUSION

This submission has argued that the operation of the imposition of human rights obligations upon States, such as through the United Nations Global Compact, have increased the human rights of the UK to ensure corporations are respecting human rights within those corporations' spheres of influence. Due to the 2500 word length I was unfortunately unable to discuss possible regulatory vehicles which could assist the UK to discharge this extended human rights obligation.

If the Committee would be interested in further submissions or comments I would be honoured to oblige them.

Paul Harpur

BBus (HRM), LLB (Hons), LLM, PhD (under examination), Attorney of Law, Associate Lecturer with the Queensland University of Technology

March 2009

4 Andrew Clapham and Scott Jerbi, "Categories of Corporate Complicity in Human Rights Abuses" (2001) 24 Hastings International and Comparative Law Review 339, 341. Back

5 Secretary-General Proposes Global Compact on Human Rights, Labour, Environment, in address to World Economic Forum in Davos" (1999) UN Press Release SG/SM/6881. Back

6 Jordan Paust, "The Significance and Determination of Customary International Human Rights Law: the Complex Nature, Sources and Evidences of Customary Human Rights" (1995) 25 Georgia Journal of International and Comparative Law, 147, 162; See a further discussion in: Jordan Paust, "The Other Side of Right: Private Duties Under Human Rights Law" (1992) 5 Harvard Human Rights Journal 51. Back

7 Andrew Clapham and Scott Jerbi, "Categories of Corporate Complicity in Human Rights Abuses" (2001) 24 Hastings International and Comparative Law Review 339. Back

8 John Ruggie, Interim Report (The Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, U.N. Doc. E/CN.4/2006/97, 2006); John Ruggie, "Business and Human Rights: the evolving international Agenda" (2007) 101 American Journal of International Law 819; John Ruggie, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts' (Report of the Special Representative of the United Nations Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 2007); John Ruggie, Protect, Respect and Remedy: a Framework for Business and Human Rights (Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises to the Human Rights Council Eighth session, 7 April 2008) 27-50. Back

9 Peter Newell and Jedrzej George Frynas,"Beyond CSR? Business, Poverty and Social Justice: an Introduction" (2007) 28 Third World Quarterly 4, 669. Back

10 See for general discussion: Sarah Joseph, Jenny Schultz and Melissa Castan, International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2004) 679 and 752. Back

11 [2004] ICJ 136, 178-79. Back