Supplementary memorandum submitted by
the Corporate Responsibility (CORE) Coalition
THE CORPORATE RESPONSIBILITY (CORE) COALITION'S
PROPOSAL FOR A UK COMMISSION ON BUSINESS, HUMAN RIGHTS AND THE
ENVIRONMENT
THE ESSENTIALS[142]
Q. WHAT kind of body would the Commission
be?
A. An independent, non-departmental Commission
with statutory mandate.
Q. WHAT would the Commission do?
A. The Commission would have responsibilities
in four main areas:
(a) Clarifying and promoting appropriate standards
for UK companies to help them address and manage their human rights
impacts. Maintaining a "Centre of Excellence" for UK
companies as regards human rights "best practice". Providing
a hub of business and human rights expertise and resources that
can readily be accessed by UK companies.
(b) Providing a complaints mechanism accessible
by those whose human rights have been infringed as a result of
the activities of subsidiaries and contractors of UK companies
in other countries.
(c) Evaluating the effectiveness of existing
business and human rights measures supported by the UK government.
(d) Providing authoritative policy advice to
government. Bringing about greater coherency in UK government
response.
Q. WHO would it be regulating?
A. UK companies (ie companies incorporated
in the UK with the power to control or direct the activities of
foreign companies and contractors in other jurisdictions). No
legal obligations would be imposed on foreign entities directly.
Q. WHAT standards would it apply?
A. UK companies would be placed under a
general duty to supervise their foreign subsidiaries and contractors
so as to respect the human rights of all those that are, or may
be, affected by the operations of those foreign entities.
This general duty could then be amplified by
further standards and codes of conduct, derived from internationally
agreed standards and adopted from time to time by the Commission.
The intention is not to apply UK law to the
activities of foreign legal entities in other jurisdictions.
Instead, such standards and codes of conduct would focus on the
role of the UK parent company as ultimate "overseer"
of global corporate operations. As such, these standards would
be likely to cover matters such as:
(i) regular human rights auditing;
(ii) on-going human rights monitoring requirements;
(iii) consultation with local populations and
employees;
(iv) observance of local legal requirements;
(v) disclosure of human rights impacts, compliance
policies and activities;
(vi) appropriate remedial action.
Standards could be tailored for different sectors
and regions. And facilities could be provided for companies to
seek clarification of standards in relation to specific human
rights compliance problems and circumstances.
Q. WHAT powers would it have?
A. The Commission's legal powers would include:
(i) powers to commission and undertake research;
(ii) powers to promulgate standards and codes
of conduct;
(iii) powers to make recommendations to government;
(iv) powers to investigate complaints of non-compliance
with legal obligations (eg to compel production of documents,
and to require attendance at interviews);
(v) powers to obtain binding undertakings or
"action plans" from companies;
(vi) powers to make binding financial awards
(up to a specified limit);
(vii) appropriate sanctioning powers in the event
of non-compliance with the Commission's decisions;
(viii) powers to publish details of dispute resolution
outcomes; and
(ix) powers to consult and co-operate with human
rights institutions in other countries.
Q. HOW does the Commission's role differ from
that of other existing bodies?
A. The Commission would be administering
a UK regulatory initiative applicable to UK parent companies
with operations and interests overseas. The NCP, on the other
hand, is concerned with a non-binding code of conduct promulgated
by the OECD and addressed to multinational groups as a whole.
The standards administered by the Commission would be more detailed
than those used at present by the NCP. And the Commission's role
would be much wider, engaging with business on an ongoing basis
to consolidate and develop our understanding of "best practice".
Finally, and unlike the NCP, the Commission would have powers
to make remedial orders at the end of a dispute resolution process.
Unlike the UK's NHRIs, the Commission would
have a clear mandate in relation to human rights impacts of UK
business overseas. However, liaison between the two institutions
will clearly be necessary on UK business and human rights policy
generally.
Q. WHAT international law issues are raised
by this proposal?
A. This proposal is based on the "nationality"
jurisdiction that the UK enjoys over companies incorporated within
the UK. It is a "parent-based" form of regulation that,
provided it is exercised "reasonably", is permitted
under established international law principles relating to the
use of extraterritorial jurisdiction,[143]
Regulation that is based on internationally agreed human rights
standards, provided it is implemented sensitively and with
regard to the legitimate policy interests of other states,
ought to satisfy this "reasonableness" test.
142 The CORE Coalition supports co-operative efforts
within the EU and internationally towards greater accountability
of corporations as regards their international human rights impacts.
Additionally, national governments, especially the most significant
home states for multinationals, should be doing more to support
their companies in the development of "best human rights
practice", and to prevent abuse by their companies overseas.
This note sets out, in outline, some ideas as to how a UK Commission
on Business, Human Rights and the Environment could operate in
practice. Back
143
See Ruggie, Protect, Respect and Remedy: A Framework for Business
and Human Rights, Report of the Special Representative to
the Secretary-General on the issue of human rights and transnational
corporations and other enterprises, A/HRC/8/5 7 April
2008, para. 19. Back
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