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

Memorandum submitted by Amarjit Singh

  I am a final-year PhD candidate at the London School of Economics, Law Department where my research concerns the identification of human rights compliance requirements. As part of my thesis I have designed a framework specifying or identifying human rights compliance requirements. In this submission I present that framework, which is helpful in addressing various issues in the business and human rights context but specifically in relation to the following elements notified in the call for evidence:

    1. How can the UK Government provide adequate guidance to UK businesses to allow them to understand and support the human rights obligations on the UK?

    2. How should UK businesses take into account the human rights impact of their activities?

    3. How can a culture of respect for human rights in business be encouraged?

  The following presents the framework.


  Human rights advocates want businesses to be accountable for the human rights impacts of their operations. Businesses have risen to this challenge for instance, by pledging allegiance to respecting the human rights set out in the Universal Declaration on Human Rights (UDHR) within the framework of the United Nations Global Compact. However, businesses and human rights advocates can find it difficult to reasonably, rationally and clearly identify what a business must do in order to comply with a human rights standard. A framework is proposed in this submission for specifying human rights compliance requirements and is explained in terms of their implications for the operational reality of companies.

  While offering specific guidance to businesses improves the efficiency with which human rights compliant conduct can be put into practice, it is important that the guidance is tailored to the operational and strategic realities of companies. In fact, the operational environment of the duty-bearer is a key consideration in international and national human rights frameworks for defining their compliance requirements. The actor's context matters not only so that appropriate interventions can be designed but also for there to be the requisite "buy in" so that such interventions are taken up. Context especially matters with non-state actors like multinational corporations having operations in various jurisdictions involving sometimes vastly different operational realities. Taking the actor's operational environment into account also helps reduce duplicated and potentially competing processes within the organisation. In addition, wedding human rights interventions to the strategic vision of the firm can help with the intra-organisational diffusion of human rights compliant practices. Lastly, relating interventions for human rights compliance to the operational reality of actors helps identify and build upon existing compliant conduct.

  The Compliance Assessment Framework[176] (CAF) presented here is both an operational and conceptual tool. It is designed to help the user to think through what his organisation ought to do in order to be human rights compliant within a framework that also allows him to see what the operationalisation of the ideas he has generated may look like. It is emphasised that the CAF is to be used by being taken up and adapted to needs of the individual actor. The elements of the CAF are derived from international human rights law, encompassing the European Convention on Human Rights and the Human Rights Act 1998, which recognise for instance, through the margin of appreciation doctrine, that there will be variation in implementation and compliance among actors. There are human rights standards to guide the actor but these can be rudimentary. By taking up and using the CAF or like tools, the actor participates in clarifying and developing those standards. The whole process is iterative and feedbacks on itself; the actor takes up and uses the CAF referring to existing standards, thus those standards are developed and an improved understanding of the standards guides the further use of the CAF.


  The CAF has three main components representing structural, process and outcome aspects of the actor's operational or institutional organisation. The CAF components are inter-related and so can have an effect on one another. Thus, for instance, a problem identified at the process or outcome level may actually have to do with an issue at the structural level, which is where a decision-maker would seek to make an adjustment. Also, lessons learnt at one level may have implications for improving other levels of the CAF.

Figure 1


Benchmarks for assessment of the level of realisation of the human rights concerned Set by duty-holders, rights-holders, and other stakeholders, eg monitoring bodies

OutcomeEffect of the law/policy adopted on the level of realisation of the human rights concerned Effect of the law/policy adopted on the level of realisation of other human rights
ProcessLaw and policy implementation Rights holders' practiceEnvironmental, socio-economic and institutional effects
StructureLaws/ policies
—  Level of law/policy
—  Type of law/policy
—  Level of mechanism
—  Type of mechanism
Institutional environment and human rights capacity
—  Compliance review
—  Monitoring and oversight capacity
—  Human rights training provided
—  Level of human rights awareness
Context and baseline measures—  Social, political and economic environment
—  Level of social systems development
—  Baseline measures of the level of realisation of human rights
Human rights norms of concern Interpretation of provisions and standards in global rights instruments

  A key observation relating to the use of the CAF concerns the principle of the interdependence of human rights, which holds that the protection of one human right must not be achieved at the expense of the enjoyment of other human rights. This is an important consideration so as to avoid an intervention that on the face of it improves human rights in one area but actually negatively affects other rights. The issue of interdependence recurs throughout the CAF, as does that of ensuring that any strategy for human rights compliance is inclusive and non-discriminatory. The norm of non-discrimination is a fundamental human rights norm whose consideration is demanded of any measure aimed at improving human rights compliance. Decision-makers can ensure the non-discriminatory nature of the measures undertaken for instance by ensuring data tracking the impact of any intervention is disaggregated according to the relevant categories, race and sex being among the most likely.


  The structural aspects of the framework refer to requirements as to whether or not key structures and systems relating to a particular human right are in place.

  Laws and policies—Human rights frameworks requires actors to have measures in place in terms of laws or policies that protect and respect human rights. Most multinationals have human rights policies whereas smaller firms may not. In addition to checking if such policies are present and cover all relevant aspects of the actor's operations, stakeholders and decision-makers should assess if existing policies in the company unfairly restrict the enjoyment of human rights or are discriminatory.

  Mechanisms—In addition to laws and policies, there is also a requirement for mechanisms that facilitate the relevant human rights. It is necessary to assess laws and policies distinctly from their associated mechanisms because lack of human rights compliance may lie with issues relating to the mechanisms employed rather than the law or policy adopted. The mechanism may be contractual in nature as when firms seek a commitment to their human rights policies from suppliers. On-site visits with suppliers would be another example of a mechanism designed to ensure human rights compliance.

  Monitoring, capacity building and knowledge—Actors are expected to undertake their human rights commitments effectively and in good faith, implying that some system for monitoring policy implementation and a schedule for assessment should be in place covering all aspects of the CAF. Such a monitoring system should be well-resourced and effective. In order for such review systems to fulfil their objectives, it is necessary for the staffs and officials concerned to have an adequate understanding of the human rights provisions and standards to be complied with. The availability of human rights education is thus a key structural consideration. Human rights awareness is also matter of organisational culture, an area for capacity-building in order to ensure measures aimed at human rights compliance are sustained and enhanced.


  Thus the process level of the CAF is key as it provides information regarding the manner in which institutional arrangements for realising human rights are functioning in practice. Many organisations may have the appropriate structures but it is in putting them into practice that human rights policies fail or that mistake or oversights occur. For example, it is important to identify whether a policy for increasing human rights-based participation in the implementation stage of a development project is not effective because it is poorly worded (structural issue) or because decision-makers at the local level are contravening the policy. The process level aspects of the CAF help capture any such failures or oversight. An appropriate response can then be produced in the context of how it might influence the structural and other process aspects of increasing rights-based participation in project implementation as well as the outcomes themselves. There are three requirements for human rights compliance at the process level.

  Assessing laws, policies and mechanisms in practice—In assessing how the laws, policies and mechanisms relating to human rights function in practice, such assessment ought to be framed around the rights-holders' perspective. For firms, in many cases, this involves assessing how their human rights policies and mechanisms are working within branches or subsidiaries. As mentioned earlier, as context varies, so local practices can be expected to be different. By highlighting variations in practice, the CAF offers the opportunity for different parts/units of a company to learn from one another.

  Assessing rights-holders' practice—The CAF requires an assessment of whether rights-holders are making use of measures and mechanisms created by the company as part of its human rights policy. For instance, although the company may have provided the appropriate institutional arrangements for facilitating human rights, the individuals concerned might not be using them. It is necessary to identify such instances and make adjustments if needed. In many cases, the non-adaptation of policies and mechanisms to local culture or circumstances may be the issue. By helping to identify problems here, the CAF helps the user to make necessary adjustments to a company's human rights system.

  Assessing the effect of human rights compliance on the operational environment—The implementation of measures relating to the respect and protection for human rights may result in changes to living, work and physical activity environments. These changes may have an impact on the lives of people that could be an impediment on the enjoyment of other human rights. Thus, the principle of the interdependence of rights requires that human rights measures undertaken by a company be assessed in terms of any negative impact they might have at the implementation stage on the enjoyment of other human rights. By making this assessment, companies can avoid or mitigate a scenario involving unintended, negative human rights consequences.


  Human rights compliance also requires assessment of the outcome of a company's human rights policies and measures:

    — To assess that the aims of the company's human rights policy have been met.

    — To assess how meeting those aims measure against the overall aims of the human rights framework in relation to the human rights concerned (this aspect relates to the issue of benchmarks, which I address below).

    — To assess that in meeting the aims regarding the human rights at issue, there has not been a negative impact on other human rights (required by the principle of the interdependence of human rights).

  While the reasons why human rights compliance requires the assessment of the outcomes of human rights interventions are clear, assessing those outcomes involves several complexities. The range of actors and factors that potentially influence human rights and socio-political outcomes make it difficult to determine the extent to which those outcomes are directly attributable to any specific actor, policy or process. Additionally, some outcomes may be evident immediately while others could take much longer to develop. Finding appropriate methods to assess outcomes can be difficult and assessment may involve considerable time and resources. Despite these difficulties and limitations, it is still important that outcome level effects be monitored and assessed. It is important for company officials to understand the effect of their policies, in relation to human rights as much as in relation to any other aspect of the business. Identifying negative outcomes is in fact a key component of the duties to respect human rights and to act with due diligence. Whether the outcomes are found to be negative or positive, important lessons are learnt that otherwise might not have been.


  Outcome measures can be used to assess progress over time towards achieving defined human rights targets or benchmarks. It is important that these benchmarks are set with other stakeholders, especially rights-holders' representatives, both so that they are relevant to the rights-holders and to avoid setting them too low. In setting these benchmarks, companies can avail themselves of the wealth of indicators and benchmarks they already use as well as work to produce new ones. It is important to emphasise here that as with developing standards through the use of the CAF, companies can also avail themselves of the CAF as the basis for collaboration with concerned stakeholders to develop benchmarks and best practices not only with regards to the outcome level but also for each individual element of the CAF.

  Two requirements for human rights compliance however have to be borne in mind in using these benchmarks. First, is the requirement for disaggregating the measures used to ensure compliance with the human rights norm of non-discrimination. Second, is the recognition that the goal of respecting or protecting human rights is not time-bound but an ongoing effort. As such benchmarks are not targets to be met and set aside or maintained as status quo but instead ought more accurately be understood as milestones in need of recalibration as the actor's and indeed society's capacities, contexts and circumstances evolve.


  Before concluding I wish to highlight some uses for the CAF:

    — The CAF can help managers think through how best to map their company's human rights policies and systems onto other aspects of its operations.

    — Managers and other interested parties can use the CAF to identify which requirements for human rights compliance already exist within the company.

    — The CAF provides a basis on which strategic planning of programs and policies can be conducted, in order to meet the goals of the human rights standards.

    — The CAF can be used to identify the methods that are needed to assess or measure the duty-holder's compliance with the various requirements set out in it, and to identify instances where new methods must be developed and tested.

    — The CAF can be used to assess how the duty-holder's internal governance and practice is being changed, or not changed, as a result of lessons learnt, thus aiding compliance review in broader terms than with only specific project or case reviews.

    — The CAF can be used as part of a company's risk management and risk mitigation strategy.


  Companies seeking to comply with human rights standards, even if only to manage their human rights risks, need to know what to do in order to comply with those standards. The CAF can help meet that need. In conceptualising its human rights compliance requirements in terms of structure, process and outcomes, while bearing in mind that human rights are interdependent, decision-makers may be helped to identify and plan to meet very concrete human rights compliance requirements. In doing so, a business will likely find that existing policies and procedures already satisfy human rights standards but also identify gaps to be addressed. The CAF also represents a conceptual framework to think through the theoretical and legal aspects of corporate responsibility. To this end, one of the interesting potentials for the CAF is in its service as a template for discussions among various stakeholders[177] as to the development of future standards, policies or best practices in the business and human rights fields. Such discussions will likely be multidisciplinary in order to address the complexity of issues involved and the framework offers a systematic means of organising inputs from various disciplines.

176   Amarjit Singh, Draft PhD thesis, London School of Economics and Political Science, 2009. The CAF has also been presented at International Centre for Corporate Social Responsibility, University of Nottingham, November 2008 and at the International Finance Corporation-Novartis, Business and Human Rights workshop, Zurich, July 2006. Back

177   The stakeholders concerned could include the company's board, management and shareholders, home or host governments, individuals whose interests are affected by the operations of the business, the broader community or society, non-governmental and other civic organisations and potential investors in the business who are interested in the human rights conduct of the business either because they are motivated by ethical considerations in their investment decisions or because the company's positive or negative impact affects its market value. Back

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