Memorandum submitted by War on Want
1. THE DUTY
OF THE
STATE TO
PROTECT HUMAN
RIGHTS
War on Want welcomes the opportunity to submit
evidence to this inquiry into business and human rights.
War on Want has long maintained a strong focus
on exposing the human rights abuses that UK corporations, both
directly and indirectly, commit across the world. These abuses
range from the shooting of innocent civilians by UK private military
and security companies (PMSCs) to labour rights abuses by companies
making goods for UK high street supermarkets.
The UN Committee on Economic, Social and Cultural
Rights has clarified that the obligation of the state to protect
human rights beyond borders includes a duty to prevent third parties
(including companies headquartered within their jurisdiction)
from abusing economic, social and cultural Rights in other countries.1
War on Want believes that the government needs
to play a much stronger role in enforcing human rights and ensuring
human rights abuses committed by UK corporations, anywhere in
the world, are addressed promptly and effectively.
We do not accept the government's approach to
business and human rights, which is based on the use of voluntary
initiatives and the promotion of corporate social responsibility
(CSR) rather than effective enforcement and redress for affected
individuals.
Research undertaken by War on Want and its partners
in the Corporate Responsibility (CORE) coalition reveals that
UK companies have committed or contributed to human rights abuses
in many countries and contexts.2
War on Want has itself gathered evidence from
our partners and through investigations on the ground in developing
countries highlighting human rights abuses committed by UK corporations.
Below is a list of reports War on Want has produced relating to
this issue:
— War on Want has published a report highlighting
the gross human rights abuses by PMSCs operating in conflict zones
such as Iraq.3 Yet despite the many human rights abuses that
PMSCs have committed and promises to regulate this sector, the
UK government has now proposed industry "self-regulation"
instead.4
— War on Want has published reports on
UK mining corporations operating in conflict zones overseas and
their complicity in human rights abuses.5 The abuses highlighted
include violence and intimidation of local people by paramilitaries
and police, arbitrary arrests, physical violence, extrajudicial
killings, destruction of houses and the forced displacement of
local communities.
— War on Want has recently published a
report on the UK banks' financing of the arms trade, highlighting
how many of our high street banks are supporting the arms industry
despite their claims to be acting responsibly.6 This includes
supporting companies making cluster munitions, which have been
condemned by the UN as "immoral"7 and are estimated
to have killed as many as 100,000 people.8
— War on Want has also published a report
highlighting the complicity of companies in human rights abuses
committed against the Palestinian people.9 These human rights
abuses include the destruction of Palestinian homes, schools,
orchards and olive groves and have resulted in the forced displacement
of Palestinian families and the loss of human lives.
— War on Want has produced a number of
reports highlighting the human rights abuses suffered by workers
supplying goods for well-known high street companies. These include
reports on garment workers, flower workers and wine workers from
overseas supplying UK supermarkets.10 The abuses concerned include
physical and verbal harassment, severe breaches of health and
safety standards, intimidation and imprisonment of trade unionists,
denial of the right to protest, excessive working hours and unfair
wages.
War on Want has also produced a number of alternative
company reports to compare and contrast the rhetoric of CSR with
the reality of companies' actual practices:
— War on Want's Anglo American report exposes
the company's complicity in extrajudicial killings and forced
displacement of local communities in Colombia and the Democratic
Republic of Congo, as well as other human rights abuses in Ghana,
Botswana, Mali, South Africa and the Philippines.11
— War on Want's Coca-Cola report exposes
the company's role in denying farmers and local communities in
India adequate water due to overextraction from local aquifers.
Coca-Cola has been accused of complicity in the intimidation and
torture of trade unionists in Turkey, as well as union-busting
activities in Pakistan, Guatemala, Nicaragua and Russia.12
— War on Want's Asda Wal-Mart report reveals
the company's violation of workers' rights and anti-trade union
activities in Canada, China, Honduras and the UK.13
— War on Want's Caterpillar report highlights
the use of Caterpillar bulldozers in Israel's occupation of Palestine.14
Caterpillar equipment has been used in the destruction of Palestinian
homes, schools, orchards and olive groves and the construction
of the Separation Wall, which Israel has built on illegally occupied
Palestinian land in the West Bank.
These reports clearly illustrate how UK corporations
operating across different sectors can commit or be complicit
in a broad range of human rights abuses, including abuses of economic,
social and cultural rights. We believe that it is essential that
the Joint Committee consider the full range of human rights—as
was also acknowledged by Professor Ruggie, UN Special Representative
on Human Rights and Transnational Corporations, when developing
his framework for business and human rights. This reinforces the
UN Special Representative's view that the human rights issues
confronting companies are wide-ranging and far-reaching.15
CSR is not an acceptable mechanism for enforcing
human rights
War on Want believes that companies must be
made accountable for their complicity in human rights abuses if
there is to be any possibility of preventing further abuses in
future. Rather than calling British companies to account, however,
the UK government continues to offer companies support in developing
countries, irrespective of the harm which may be caused to local
communities as a result of their operations.
This support for UK corporations is complemented
by the government's promotion of the voluntary approach of CSR.
The British government has consistently championed voluntary codes
of conduct for industry, and opposed the introduction of international
frameworks of regulation on the grounds that these "may divert
attention and energy away from encouraging corporate social responsibility
and towards legal processes".16 War on Want has repeatedly
challenged the government's promotion of voluntary codes and other
CSR initiatives, seeing as these have been manufactured as a deliberate
and open attempt to avoid the introduction of binding rules which
would offer genuine corporate accountability.
In a review of the effectiveness of CSR by the
Department for International Development (DFID), many of the existing
voluntary initiatives were found not to be integrated into the
operations of corporations.17 For example, with respect to the
UN Voluntary Principles on Security and Human Rights, DFID found
only a few companies had attempted to integrate these principles
into their own operations, let alone include them in contracts
with their suppliers.
The failings of this approach have been spelled
out clearly by Professor John Ruggie in his February 2007 report
to the UN Human Rights Council. Having surveyed existing instruments
of corporate accountability in national and international law,
Ruggie drew attention to the "large protection gap for victims"
which exists as a result of the international community's reliance
on voluntary initiatives. He concluded: "This misalignment
creates the permissive environment within which blameworthy acts
by corporations may occur without adequate sanctioning or reparation.
For the sake of the victims of abuse, and to sustain globalization
as a positive force, this must be fixed."18
Limitations of the UK Equality and Human Rights
Commission
The UK Equality and Human Rights Commission
(EHRC) is able to investigate suspected breaches of human rights
law by UK corporations. For example, the EHRC commissioned an
inquiry into the UK meat processing industry within the UK and
its potential impact on issues of discrimination and inequality.19
However, its powers of investigation only extend to suspected
breaches of specific UK "equality and human rights enactments"
and not to the operations of UK companies abroad.20 The ECHR also
lacks the legal power to recommend new human rights laws. If the
UK were to address the extra-territorial impacts of its companies
on human rights, even in very selective circumstances, then this
would almost certainly require the enactment of new UK legislation.
2. THE RESPONSIBILITY
OF BUSINESS
TO RESPECT
HUMAN RIGHTS
While governments as signatories to UN Conventions
covering human rights are primarily responsible for ensuring they
are respected and enforced, corporations themselves are not exempt
from ensuring they actively promote and enforce human rights wherever
their sphere of influence reaches.
Sphere of influence
Modern corporations are integrated into the
global economy through their extensive supply chains, with a varying
degree of control over companies and businesses within those chains.
It is also well known that corporations often deliberately structure
their operations so that their subsidiaries are legally separate
entities, in order to protect themselves from future legal and
financial liabilities.21
War on Want believes UK corporations must be
required to ensure that human rights of individuals and local
communities are respected wherever they operate or have influence
over a business within their supply chain.
Corporate complicity
War on Want's experience of working with partner
organisations in conflict zones reveals that corporations may
not always be directly involved in human rights abuses but can
still be complicit in these abuses. Human rights lawyers have
distinguished between three types of corporate complicity in such
abuses.
"Silent complicity" is held to exist
where companies fail to speak out against clear patterns of human
rights violation in their areas where they are operating. "Beneficial
complicity" pertains when companies are the beneficiaries
of human rights abuses committed by state forces—as in many
of the cases described in our two reports Fanning the Flames
and Fuelling Fear.22 "Direct complicity" occurs
when a company provides assistance to a body which then commits
a human rights violation, even if the company itself did not wish
the violation to happen: "it is enough if the corporation
or its agents knew of the likely effects of their assistance".23
Supply chains
War on Want believes that corporations must
be required to take responsibility for human rights within their
supply chains. Companies routinely use their contractual relationships
with suppliers to ensure that products and services purchased
meet certain technical and quality standards. Failure to comply
with these standards can lead to penalties and ultimately the
cancellation of contracts.
War on Want's experience is that voluntary initiatives
which are put forward to ensure "socially responsible"
behaviour are typically ignored or downplayed, while other factors
such as purchasing practices and profits are afforded more importance.
One well documented example is that of high street retailers that
have signed up to a voluntary initiative to ensure ethical labour
practices in their supply chain when sourcing garments from overseas.24
The failure of this approach was highlighted
by a shareholder resolution put forward at Tesco's Annual General
Meeting in 2007. The resolution requested the company appoint
independent auditors to ensure that workers in its supplier factories
and farms are guaranteed "decent working conditions, a
living wage, job security" and the right to join a trade
union of their choice.25 Tesco opposed the resolution, even though
it only called on the company to abide by the ethical labour practices
Tesco claimed its suppliers were already signed up to.26
3. EFFECTIVE
ACCESS TO
REMEDIES
While there are numerous voluntary initiatives
and codes of practice promoting "socially responsible"
behaviour for corporations there are no administrative bodies
or procedures that offer effective redress or remedies for victims
of abuse committed by UK companies overseas.27 The best known
international mechanism for allowing victims of corporate abuse
to challenge poor corporate practice is the OECD Guidelines for
Multinational Enterprises.
The limitations of existing mechanisms
Under the Guidelines, National Contact Points
(NCPs) were established in OECD countries to investigate potential
breaches of the Guidelines brought forward by complainants. Yet
the NCP can only provide mediation and adjudication with respect
to disputes between parties, and it has limited investigative
capacity and no enforcement powers. Case studies conducted by
a number of NGOs have illustrated that the structural weaknesses
of the NCP mechanism have not been addressed by the review and
restructuring implemented by the government in 2006.28 At the
heart of these weaknesses is the inability of the NCP to impose
penalties on companies or award compensation to victims.
These weaknesses cannot be addressed by procedural
changes, so putting additional resources into strengthening this
mechanism is unlikely to be a productive avenue for the UK government
to pursue.
Barriers to redress in host countries
Clearly, when abuses of rights occur it is the
duty of governments to ensure the provision of effective mechanisms
of legal redress. Where there are concerns around insufficient
capacity within countries hosting foreign companies, the UK can
provide support for capacity building to help to promote effective
human rights protection.
However, studies and years of experience amassed
by War on Want partners in developing countries show that there
are systemic barriers to effective redress.29 Often these are
not legal barriers but practical and financial barriers to accessing
avenues of redress; capacity barriers with respect to regulatory
authorities and judicial systems; and motivational barriers arising
from governments' subordination of the protection of rights to
other private or public goals.
The systemic nature of barriers to redress in
developing countries suggests that the strengthening of local
systems of redress would be an insufficient approach to protecting
the human rights of workers and communities affected by the business
activities of UK companies abroad.30
Proposal for a UK Commission on Business, Human
Rights and the Environment
On the basis of a detailed review of possible
avenues for reforming existing systems, the Corporate Responsibility
(CORE) coalition has proposed the creation a new body to address
the human rights responsibilities of companies when operating
abroad.31 It proposes that the government should create a specialised
Commission for Business, Human Rights and the Environment
able to operate as a hub for a broader network of actors working
in the UK and abroad. The Commission would have coordinating,
capacity building and informational roles, while also operating
as a dispute resolution body with a mandate to receive, investigate
and settle complaints against UK parent companies relating to
abuse in other countries.
War on Want supports such a body, which it believes
could make a significant difference to addressing the human rights
abuses committed by UK companies operating overseas and, importantly,
help victims of such abuse to seek legal redress.
REFERENCES
1 See the UN Committee on Economic, Social and
Cultural Rights, General Comment No.14, para 39 and General
Comment No.15, para 33.
2 Corporate Responsibility (CORE) Coalition and
London School of Economics (LSE), The reality of rights: Barriers
to accessing remedies when business operates beyond borders,
April 2009.
3 War on Want, Corporate Mercenaries: The
threat of private military and security companies, November
2006.
4 J Hilary, "Miliband and the Mercenaries",
Guardian, 28 April 2009.
5 War on Want, Fanning the Flames: The role
of British mining companies in conflict and the violation of human
rights, November 2007; War on Want, Anglo American: The
alternative report, August 2007.
6 War on Want, Banking on Bloodshed: UK high
street banks' complicity in the arms trade, October 2008.
7 R Norton-Taylor, P Walker and agencies, "Cluster
Bomb Treaty: Signing Begins to Bring Ban on Production",
Guardian, 3 November 2008.
8 Handcap International, Circle of Impact:
The Fatal Footprint of Cluster Munitions on People and Communities,
May 2007.
9 War on Want, Profiting from the Occupation:
Corporate complicity in Israel's crimes against the Palestinian
people, July 2006.
10 War on Want, Sour Grapes: South African
wine workers and British supermarket power, February 2009;
War on Want, Fashion Victims II: How UK clothing retailers
are keeping workers in poverty, December 2008; War on Want,
Growing Pains: The human cost of cut flowers in UK supermarkets,
March 2007.
11 War on Want, Anglo American: The alternative
report, August 2007.
12 War on Want, Coca-Cola: The alternative
report, March 2006.
13 War on Want, Asda Wal-Mart: The alternative
report, September 2005.
14 War on Want, Caterpillar: The alternative
report, March 2005.
15 Report of John Ruggie, Special Representative
of the UN Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, to the UN Human Rights
Council, 7 April 2008, para 52.
16 DFID, DFID and corporate social responsibility,
2003.
17 Business & Human Rights Associates, Corporate
Responsibility and its Impact on Poverty, October 2007
18 Business and Human Rights: Mapping International
Standards of Responsibility and Accountability for Corporate Acts,
Report of the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and
other business enterprises, UN document A/HRC/4/035, 9 February
2007.
19 Equality and Human Rights Commission media
release, "Commission announces independent inquiry into the
treatment of workers in the meat processing industry", 17 October
2008.
20 See the list of enactments in section 33 of
the Equality Act 2006.
21 H Ward, "Corporate accountability in
search of a treaty? Some insights from foreign direct liability",
Briefing Paper No 4, The Royal Institute of International Affairs
Sustainable Development Programme, May 2002.
22 War on Want, Fanning the Flames: The role
of British mining companies in conflict and the violation of human
rights, November 2007; War on Want, Fuelling Fear: The
human cost of biofuels in Colombia, May 2008.
23 A Clapham and S Jerbi, "Categories of
Corporate Complicity in Human Rights Abuses", in Hastings
International Comparative Law Journal, vol 24, 2001,pp339-349;
this three-fold typology has been adopted by the Office of the
UN High Commissioner for Human Rights in its online Human Rights
and Business course, which argues that examples of direct rather
than simply beneficial complicity could include cases "where
a company provides information, funding or equipment to a government
that it knows will be used to violate human rights"; see
www.unssc.org
24 War on Want, Fashion Victims II: How UK
clothing retailers are keeping workers in poverty, December
2008.
25 J Finch, "Investor forces ethics onto
Tesco agenda", Guardian, 14 May 2007.
26 R Wray, "Tesco execs on the rack at AGM",
Guardian, 29 June 2007.
27 Corporate Responsibility (CORE) coalition,
Filling the Gap: A new body to investigate, sanction and provide
remedies for abuses committed by UK companies abroad, 2008.
28 Rights and Accountability in Development (RAID),
Fit for Purpose? A Review of the UK National Contact Point
(NCP) for the Organisation for Economic Co-operation and Development
(OECD) Guidelines for Multinational Enterprises, 2008.
29 CORE and LSE, The reality of rights: Barriers
to accessing remedies when business operates beyond borders,
April 2009.
30 Ibid.
31 Ibid, pp41-43.
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