Memorandum submitted by Amnesty International
UK
Amnesty International is a worldwide movement
of people who campaign for internationally recognised human rights
to be respected and protected. Our vision is for every person
to enjoy all of the human rights enshrined in the Universal Declaration
of Human Rights and other international human rights standards.
Our mission is to conduct research and take action to prevent
and end grave abuses of all rights—civil, political, social,
cultural and economic. From freedom of expression and association
to physical and mental integrity, from discrimination to the right
to shelter—these rights are indivisible.
1. INTRODUCTION
Amnesty International UK welcomes the opportunity
to submit evidence to this enquiry into business and human rights,
whose terms of reference borrow from the framework of Professor
Ruggie, the UN Special Representative to the Secretary General
on Human Rights and transnational corporations and other business
enterprises.
Consistent with Amnesty International's work
as a global human rights organisation, this submission focuses
on the international impacts of business. In particular, we contend
that the UK state could and should play a greater role in the
governance of corporations so as to contribute to the protection
of human rights from corporate abuse, whether the abuse occurs
in the UK or abroad.
2. SUMMARY OF
RECOMMENDATIONS
Amnesty International recommends that far-reaching
reforms are implemented to the legal and institutional framework
in the UK to ensure enhanced governance over the extra-territorial
impacts of UK companies.
1. Establish a UK Commission on Business, Human
Rights and the Environment
2. Develop an overarching strategy on business
and human rights that is coherent across government departments
and other state bodies, consistent with the UK's international
obligations, including by:
(a)promoting stronger international frameworks
for governing the human rights impacts of companies through the
inter-governmental bodies of which UK is a member.
(b)amending the Act of Parliament governing ECGD
to include a "Duty of Care" clause with regard to the
human rights of those affected by ECGD-supported projects.
(c)requiring and empowering UK missions abroad
to keep a monitoring brief on the human rights impacts of UK companies.
(d)including corporate accountability in UK overseas
training programmes for jurists.
3. Initiate an independent review of the CSR
mechanisms that the UK promotes with regard to assessing their
effectiveness in preventing and ending human rights abuses by
UK companies abroad
4. Improve access to judicial remedies in the
UK for those claiming abuse by UK companies abroad.
3. THE DUTY
OF THE
STATE TO
PROTECT HUMAN
RIGHTS
3.1 Extra-territorial obligations under international
law
Under international law, there is absolute clarity
that the UK has a duty to protect human rights from corporate
abuse within the UK. However, there is much less clarity around
the state's duty in respect of activity occurring outside the
UK, but over which the UK may exercise jurisdiction. The main
point of reference for interpreting the meaning and scope of international
conventions to which UK is party comes from United Nations treaty
bodies.
UN treaty bodies have made recommendations to states
parties in relation to the need to ensure that companies are held
accountable for human rights abuses outside the state. For example,
in a Concluding Observation on the United States, the UN Committee
on the Elimination of Racial Discrimination raised concerns about
reports of the adverse effects of activities by transnational
corporations registered in the United States on the rights of
local communities, especially Indigenous peoples.1 The Committee
recommended that the US "take appropriate legislative or
administrative measures to prevent acts of transnational corporations
registered in the State party which negatively impact on the enjoyment
of rights of indigenous peoples in territories outside the United
States. In particular, the Committee recommends that the State
party explore ways to hold transnational corporations registered
in the United States accountable".
There are other statements of international treaty
bodies that provide useful guidance on extra-territorial obligations.
In its General Comment No 3, the UN Committee on Economic, Social
and Cultural Rights (CESCR) drew attention to the obligation of
all States parties to take steps, individually and through international
assistance and cooperation, especially economic and technical,
towards the full realization of the rights recognized in the Covenant.2 In
elaborating States' duties in relation to the right to health,
the CESCR commented that to comply with their international obligations,
States parties "must prevent third parties from violating
the right in other countries if they are able to influence these
third parties by way of legal or political means, in accordance
with the Charter of the United Nations and applicable international
law".3
Similarly, in relation to the rights to water
and social security, the CESCR has recommended that steps should
be taken by States parties to prevent their own citizens and companies
from violating these rights in other countries, and that "[w]here
States parties can take steps to influence other third parties
to respect the right, through legal or political means, such steps
should be taken in accordance with the Charter of the United Nations
and applicable international law".4
3.2 Impacts of UK businesses on human rights
Given the number and range of transnational
companies based in the UK and the capacity of these companies
to have significant impacts on human rights globally, the fact
that there is at present only sporadic regulation of the extra-territorial
impacts of corporate activity contributes to a serious regulatory
failure. There are some spheres of activity in which UK companies
are already subject to UK regulations that have extra-territorial
effect, such as bribery and corruption, financing of terrorism,
and anti-competitive activity. Currently, however, the UK has
not taken steps to regulate the extra-territorial human rights
impact of UK companies. Amnesty International believes that the
UK must strengthen its regulation of UK companies to ensure greater
protection of human rights globally. Moreover, failure to ensure
that UK companies respect human rights in all their operations
can leave the poorest and most vulnerable communities exposed
to serious and repeated human rights abuses.
Research undertaken by Amnesty International 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.5 In some cases
the company is the primary agent of the abuse, while in other
cases it is the company's relationship with third parties, such
as governmental agencies and security forces, that has given rise
to the abuse.
Amnesty International has conducted research
into the activities of several companies operating in the Niger
Delta, including the Anglo-Dutch transnational, Royal Dutch Shell,
whose subsidiary is the main oil operator on land. Oil spills,
waste dumping, and gas flaring are endemic in the Niger Delta.
This pollution, which has affected the region for decades, has
damaged the soil, water and air quality. The human rights implications
are both serious and under-reported. According to the UN, more
than 60% of people in the Niger Delta region depend on the natural
environment for their livelihoods. Oil-related pollution, including
oil spills and waste dumping, has caused serious environmental
damage. This has undermined the right to an adequate standard
of living, including food and water, as water is polluted, fish
die and agricultural land is rendered less productive, or in some
cases unusable. The health implications of oil-related pollution
are the subject of serious concern.
Although Shell has operated in the Niger Delta
for decades, the company has not taken adequate steps to assess
and address the social and human rights impacts of its operations,
despite the evidence of harm and repeated calls from communities
and civil society to do so. According to the UN in Nigeria: "The
oil companies, particularly Shell Petroleum, have operated for
over 30 years with no appreciable control or environmental
regulation to guide their activities". The failure of the
Nigerian State to adequately regulate companies like Shell is,
Amnesty International believes, related to the importance of the
oil industry to Nigeria and the relationship between the industry
and the government. As a consequence the people of the Niger Delta
have been left exposed to human rights harms for which their government
cannot or will not hold companies to account. While the government
of Nigeria should act, there is also a clear role for home states
to require all companies to respect human rights, carry our adequate
corporate human rights due diligence and act to address human
rights and environmental problems that their operations cause.
4. FILLING THE
GOVERNANCE GAPS
Amnesty International supports the view of the
UN Special Representative that "the root cause of the
business and human rights predicament today lies in the governance
gaps created by globalization".6 The reality of
the current phase of globalisation is that while multinational
corporations today operate seamlessly across national boundaries,
the framework of laws, regulations and initiatives that govern
their activities remains piecemeal, fragmented and unequal to
the task of ensuring that such companies respect human rights.
Amnesty International considers that there are at
least four key means by which action by the UK would make a substantial
contribution to filling these governance gaps. First, Amnesty
International refers to the submission by the Corporate Responsibility
(CORE) coalition, and supports the call for an independent UK
Commission on Business, Human Rights and the Environment. Second,
we argue that an overarching cohesive government approach to human
rights must be implemented to prevent public agencies from taking
conflicting and at times counter-productive approaches to business
and human rights. Third, the UK should ensure clarity when discussing
human rights and should not conflate human rights with corporate
social responsibility (CSR). Fourth, it is argued that more can
and should be done to assist those whose human rights have been
abused by UK companies to gain access to effective remedies through
the UK courts. These initiatives are elaborated below.
4.1 UK Commission on Business, Human Rights
and the Environment
The most promising initiative of which Amnesty
International is aware is the proposal put forward by the Corporate
Responsibility (CORE) Coalition on the basis of a detailed review
of possible avenues for reforming existing systems.7 It proposes
that the Government should create a specialised Commission
for Business, Human Rights and the Environment, able to operate
as a hub in broader networks 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.
OECD Guidelines and NCP mechanism inadequate to safeguard
human rights
Amnesty International supports the need for
a specialised Commission over proposals to reform the National
Contact Point (NCP) for the OECD Guidelines for several reasons.
Case studies conducted by a number of NGOs have illustrated that
the structural weakness of the NCP mechanism have not been addressed
by the review and restructuring implemented by the Government
in 2006.8 At the heart of these weaknesses are the limited
investigatory capacity of the NCP and its inability to impose
penalties that would deter future breaches by the same company,
while also serving as a deterrent to other companies. Moreover,
neither the OECD Guidelines nor the NCP process was established
to ensure that a remedy is provided to those whose rights are
abused by corporations. These inherent problems are compounded
by the lack of independence of the NCP from the UK government,
and in particular from the department promoting UK trade and investment,
where the NCP is located. These weaknesses cannot be addressed
by procedural changes alone, which leads Amnesty International
to take the view that the NCP mechanism is too flawed for the
purpose of providing a non-judicial remedy that will benefit victims
of abuse. Putting additional resources into strengthening this
mechanism is therefore unlikely to be a productive avenue for
the UK government to pursue.
4.2 State coherence on business and human
rights
There is at present no overarching UK strategy on
business and human rights. Individual Government departments have
their own separate CSR strategies that lack coherence with each
other in the sphere of human rights, and with the UK's international
obligations, in so far as these have extra-territorial reach.9 Responsibilities
are fragmented in a way that hinders effectiveness. Fundamental
business and human rights issues that cut across Government departments
and other state entities are not addressed at all.10
Need for greater "due diligence" on human
rights by ECGD
The UK Export Credits Guarantee Department (ECGD)
provides a prime example of where the UK has failed to promote
the need to respect and protect human rights in the context of
business activity. The ECGD is a governmental body accountable
to the Department for Business, Enterprise and Regulatory Reform
(BERR). While it does not operate projects itself, it has facilitated
corporate activities that have resulted in human rights abuses
abroad through the provision of financial guarantees.11 Currently
the ECGD's consideration of human rights is not sufficient to
ensure against such breaches.
Some of the most pervasive abuses of human rights
occur in the context of extractive and infrastructure projects
such as the construction of dams, roads, pipelines and mines.
Such projects are often associated with forced evictions, loss
of livelihoods, adverse impacts on health, and abuses by security
forces. One way that companies can avoid contributing to human
rights abuses in the context of such projects is to ensure they
undertake due diligence, including a Human Rights Impact Assessment
(HRIA).
Amnesty International concurs with the view
of the UN Special Representative that "Many corporate
human rights abuses arise because companies fail to consider the
potential implications of their activities before they begin.
Companies must take proactive steps to understand how existing
and proposed activities may affect human rights."12 At
the very least, Amnesty International considers that the ECGD
should require all its corporate clients to undertake a comprehensive
human rights impact assessment, for the purpose of determining
whether or not the proposed activity might interfere with human
rights. This requires not just improved screening procedures but
also the embodiment of human rights considerations into the mission
and governance of ECGD. This would require an amendment to the
Act of Parliament that created ECGD.13
UK role in strengthening capacity within countries
hosting investment
When abuses of rights occur, the duties of governments
to protect internationally recognised human rights require the
provision of effective and legitimate mechanisms of redress. Strengthened
capacity within countries hosting investment remains a necessary
condition for effective human rights protection. Greater UK support
for capacity building within host countries can help to promote
this, including training of the judiciary and administrative bodies.
Incorporating training on business and human rights issues into
existing capacity building activities undertaken with the support
of DFID and other state bodies would be consistent with the obligation
to protect human rights through international cooperation.
UK missions abroad also have an important role
to play in ensuring that their promotion of UK business interests
is contingent on adequate human right safeguards being adopted
by the companies concerned. UK missions should be required and
empowered to keep a monitoring brief on the human rights impacts
of UK businesses.
Existing UK bodies ignore extra-territorial impacts
The UK appears to be lagging behind on an issue
that is now being addressed at inter-governmental level on the
role of National Human Rights Institutions (NHRIs) in holding
corporations accountable for their extra-territorial activities.14 Amnesty
International is concerned about the weaknesses of existing UK
institutional mechanisms for addressing the gaps in accountability
of UK companies for their extra-territorial impacts on human rights.
The UK Equality and Human Rights Commission (EHRC), the Health
and Safety Executive, and the Environment Agency are severely
restricted in their ability to consider the adverse impacts of
UK companies overseas and have rarely done so. The EHRC does not
have a mandate to investigate suspected breaches of human rights
law in other countries. Its powers of investigation only extend
to suspected breaches of specific UK "equality and human
rights enactments".15 The EHRC also lacks the legal
power to recommend new human rights laws.16
Need for UK leadership within inter-governmental
bodies
Amnesty International also considers that in
its inter-governmental activities, the UK should be promoting
stronger frameworks for governing the human rights impacts of
companies. As a member of the EU, UN Human Rights Council, OECD,
and World Bank, the UK is well placed to influence and encourage
greater protection of human rights in the context of business
activity. While the UK has a strong track record in promoting
multi-stakeholder initiatives such as the Kimberley Process and
the Extractive Industries Transparency Initiative, the UK has
not exercised leadership in embedding higher standards of corporate
behaviour into inter-governmental institutional processes where
opportunities lie to improve business impacts on human rights.
These range from the EU's Procurement Directives to the World
Bank's Disclosure Policies and its Performance Standards on Social
and Environmental Sustainability for the private sector.
4.3 Regulatory framework that does not conflate
human rights with CSR
The UK appears to believe that the promotion of CSR
is a sufficient measure to give effect to its international obligations.
In its 5th periodic report to the UN Committee on Economic, Social
and Cultural Rights, the UK referred to its support for five initiatives—the
UN Global Compact, the Voluntary Principles on Security and Human
Rights, the OECD Guidelines for Multinational Enterprises, the
Extractive Industries Transparency Initiative and The Kimberley
Process Certification Scheme.17
Amnesty International believes that the UK has failed
to grasp that a human rights framework is different from a CSR
framework. A CSR framework is determined by commitments that companies
agree to enter into voluntarily. In contrast, protection of human
rights requires the state to institute mandatory standards to
ensure that human rights are respected, protected and promoted,
that abuses are remedied, that violations are identified through
investigation, and that reparations are available to victims.
The test of all voluntary initiatives and codes
of conduct should be whether they have the effect of protecting
human rights on the ground. The pertinent questions to ask are
whether a code imposes clear rules that prevent business and their
financial backers from contributing to human rights abuses; whether
there are credible mechanisms for testing if these rules are being
adhered to; whether there are appropriate levels of transparency
and disclosure to satisfy third parties that this is the case;
whether there is action against a company for breaches of the
code, and whether a remedy is available. The UK should initiate
an independent review of the CSR mechanisms that it promotes with
regard to assessing their effectiveness in preventing and ending
human rights abuses by UK companies abroad.
Amnesty International believes that the UK's
overarching emphasis on CSR as the primary means of ensuring that
companies operate to acceptable standards abroad, undermines its
duty to protect rights. Amnesty International is calling for action
by home countries to regulate the human rights impacts of companies,
particularly those whose operations are highly invasive and frequently
associated with human rights abuses and environmental damage—such
as extractive industries—when they operate abroad. Home
states such as the UK should set and enforce some minimum standards
for protection of human rights, including requiring the assessment
and public disclosure of human rights impacts and how these will
be mitigated. Such assessment must involve the informed participation
of communities.
4.4 Access to effective remedies
Amnesty International concurs with the view
of the UN Special Representative that "States should strengthen
judicial capacity to hear complaints and enforce remedies against
all corporations operating or based in their territory"
and "address obstacles to access to justice, including for
foreign plaintiffs".18
The structural nature of barriers to redress in developing
countries suggests that while strengthening of local systems of
redress is important, it is currently insufficient for ensuring
remedies are available to the human rights of workers and communities
affected by the business activities of UK companies abroad.19 This
is why Amnesty International believes that home states, as part
of their duty to protect rights, should offer access to justice
to foreign plaintiffs.
Gaining access to UK judicial mechanisms presents
an insurmountable hurdle for the vast majority of those whose
human rights have been abused by the activities of UK companies
abroad. There are many barriers that they face—financial,
jurisdictional, procedural. One of the most significant obstacles
is the lack of representation available to them. There are few
public interest law firms in the UK prepared to take on such cases.
The significant barriers to accessing judicial remedies in the
UK further support the need for the proposal to create a Commission
on Business, Human Rights and the Environment, with an ombudsman
function to investigate and adjudicate on claims of abuse, and
to offer some form of non-judicial redress. As stated previously,
the NCP mechanism under the OECD Guidelines does not provide a
remedial focus.
Even when UK courts are prepared to hear such
cases, the scope of parent company liability for the acts of subsidiaries
and contractors abroad is unclear under English Tort law. It is
not known, for instance, to what extent a parent company owes
a "duty of care" to those potentially affected by the
activities of its subsidiaries. The existence of a "duty
of care" is fundamental to a finding that a company has been
negligent, but so far all the UK cases that raise this point have
either been settled or dismissed.20 In principle, it would
be possible to clarify by legislation the circumstances under
which a parent company would, and would not be liable. A further
difficulty for claimants is proving the kinds of management and
supervisory failures necessary for a finding of negligence. A
possible solution to this would be to adopt a "due diligence"
approach that would require companies with a significant interest
or influence over a related company, as well as the related company
itself, to demonstrate that it had taken all reasonable steps
to anticipate potential human rights impacts, and prevent the
human rights abuse occurring.21
REFERENCES1. Consideration
of Reports Submitted by States Parties Under Article 9 of
the Convention, Concluding Observations of the Committee on the
Elimination of Racial Discrimination: United States Of America,
UN Doc. CERD/C/USA/CO/6 (February 2008).
2. The Nature of States Parties Obligations (Art
2, par 1) 14/12/90. CESCR General comment 3.
3. UN CESCR, General Comment No 14, para 39.
4. General Comment No.15, para 33. See also General
Comment No 19, par 54.
5. Corporate Responsibility (CORE) Coalition
and LSE, The reality of rights: Barriers to accessing remedies
when business operates beyond borders, 2009.
6. Report of John Ruggie, Special Representative
of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, to Human Rights Council,
7 April 2008, para 3.
7. Corporate Responsibility (CORE) Coalition,
Filling the gap: A new body to investigate, sanction and provide
remedies for abuses committed by UK companies abroad, Jennifer
Zerk, 2008.
8. 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:
http://www.corporate-responsibility.org/module_images/NCP_report_2008.pdf
9. See Corporate Social Responsibility (CSR):
An FCO Strategy, 2007-08:
http://www.fco.gov.uk/resources/en/pdf/pdf16/fco_csr_strategy_papers
See DFID's Private Sector Development Strategy
Prosperity for all: making markets work, 2009:
http://www.dfid.gov.uk/pubs/files/Private-Sector-development-strategy.pdf
See BERR's Corporate Responsibility Report, 2009:
http://www.berr.gov.uk/whatwedo/sectors/lowcarbon/cr-sd-wp/page50437.html
10. For example, the human rights implications
of the UK's Bilateral Investment Treaties (BITs) have not been
addressed by the UK despite evidence that BIT's may come into
conflict with the international human rights law obligations of
states. See Rights & Democracy's Report, "Human Rights
and Bilateral Investment Treaties", Luke Peterson, 2009:
http://www.dd-rd.ca/site/_PDF/publications/globalization/HIRA-volume3-ENG.pdf
11. Amnesty International publications featuring
projects facilitated by ECGD where human rights abuses have been
documented include:
Amnesty International, India: The "Enron
Project" in Maharashtra: protests suppressed in the name
of development; Index ASA 20/031/1997; http://www.amnesty.org/en/library/info/ASA20/031/1997
Amnesty International UK, Human Rights on the
Line- the Baku-Tbilisi-Ceylan pipeline project; 2003,
http://www.amnestyusa.org/business/humanrightsontheline.pdf
Amnesty International, Urgent Action 228/96: Excessive
use of force/Fear for safety (Lesotho), Index: AFR 33/02/96,
http://www.amnesty.org/fr/library/asset/AFR33/002/1996/en/dom-AFR330021996en.html
Amnesty International, UK and EU Arms Used in
East Timor as Review of Arms Exports Code Begins in Secret, Index:
IOR 61/01/99,
http://www.amnesty.org/en/library/asset/IOR61/001/1999/en/1c034d51-e01b-11dd-adf6-a1bae6c1ea26/ior610011999en.html
Amnesty International, Nigeria: Ten years on—Injustice
and Violence Haunt the Oil Delta, Index AFR 44/022/2005, http://www.amnesty.org/en/library/asset/AFR44/022/2005/en/dom-AFR440222005en.html
12. Report of John Ruggie, Special Representative
of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, to Human Rights Council,
7 April 2008, para 61.
13. Export and Investment Guarantees Act, 1991:
http://www.opsi.gov.uk/Acts/acts1991/ukpga_19910067_en_1
14. The NHRI Steering Group on Business and Human
Rights have recommended that NHRIs establish a Working Group on
Business and Human Rights:
http://www.reports-and-materials.org/NHRI-Working-Group-Mar-2009.pdf
15. See the list of enactments in section 33 of
the Equality Act 2006.
16. Under section 11 of the Equality Act,
the EHRC is charged with "monitoring the effectiveness
of the law". While it may recommend amendments, repeals,
consolidation or replications of existing human rights enactments,
the Equality Act says nothing about the EHRC proposing new laws.
17. http://www.justice.gov.uk/publications/docs/ICESCR-whole-report.pdf,
para 70.
18. Ibid, para 91.
19. Corporate Responsibility (CORE) Coalition
and LSE, The reality of rights: Barriers to accessing remedies
when business operates beyond borders, 2009.
20. Corporate Responsibility (CORE) Coalition,
Corporate Abuse in 2007: A discussion paper on what changes
in the law need to happen, Jennifer Zerk, 2007, p16:
http://jenniferzerkconsulting.com/publications/corporateabuse2007.pdf
21. Ibid p16; as well as Extraterritorial
Jurisdiction as a tool for improving the Human Rights Accountability
of Transnational Corporations, Olivier De Schutter, 2006,
p35-45.
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