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.
BUSINESS AND
HUMAN RIGHTS:
A FRAMEWORK FOR
IDENTIFYING HUMAN
RIGHTS COMPLIANCE
REQUIREMENTS
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 COMPLIANCE
ASSESSMENT FRAMEWORK
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
HUMAN RIGHTS COMPLIANCE ASSESSMENT FRAMEWORK
(CAF)
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| 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
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|
| Outcome | Effect 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
| |
| Process | Law and policy implementation
| Rights holders' practice | Environmental, socio-economic and institutional effects
|
| Structure | Laws/ policies
— Level of law/policy
— Type of law/policy
| Mechanisms
— 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
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| 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
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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.
Structure
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.
Process
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.
Outcome
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.
BENCHMARKS
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.
USES OF
THE CAF
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.
CONCLUSION
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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