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

Memorandum submitted by Justice/International Commission of Jurists


  1.  The International Commission of Jurists is an international human rights organisation based in Geneva. Founded in 1952, the ICJ is dedicated to the primacy, coherence and implementation of international law and principles that advance human rights.

  2.  JUSTICE is the British Section of the ICJ. Founded in 1957, it a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law.

  3.  The ICJ and JUSTICE welcome the Joint Committee's inquiry on this issue. The field of business and human rights is an important and rapidly evolving area that is increasingly relevant for the enjoyment of human rights by many in the UK and in countries where UK companies operate.

  4.  This submission aims to provide an international perspective based on the current debates in international human rights forums, in particular within the United Nations, and on the ICJ's own work on the legal accountability of companies. We believe it is important to draw attention to the existing international human rights obligations binding upon the UK and to the legislation implementing those obligations. We hope that the Joints Committee's inquiry will identify not only gaps in the current law but also the areas for potential development. The emergence of global companies that operate across borders and by way of an increasingly complex web of subsidiaries, contractors, suppliers and joint ventures poses a critical challenge to the adequacy of national legal frameworks to protect human rights.

  5.  International law gives companies a significant degree of protection for their activities , (eg through bilateral investment treaties and trade agreements, access to international arbitration, etc) but requires little in terms of accountability. International efforts in recent years have yielded mixed results but there is nonetheless a growing consensus at the international level on the responsibilities that businesses have in respect of human rights. The current debate takes place mainly at two levels: (i) the clarification or development of substantive standards and (ii) the establishment, or improved effectiveness, of enforcement mechanisms.


  6.  Despite the hesitant progress made in relation to enforcement mechanisms, there is at least broad agreement within the international community that companies have a responsibility to respect all human rights. Nor is the requirement on companies to respect the full range of human rights (civil and political, economic social and cultural) limited to those areas in which grave violations occur or where government is weak: the obligation applies to companies in the richest and most developed countries as much as in the poorest.[477] The fact that the UN Human Rights Council widely supported the notion that corporations have the responsibility to respect all human rights makes clear the universality and global extent of the obligation. The corollary of this emphasis upon the universality of human rights in relation to businesses is the requirement of uniformity of approach: voluntary undertakings by businesses to protect human rights are no longer sufficient. Companies are under a duty to take positive action to respect human rights.

  7.  Central to this duty upon companies to respect human rights is the concept of due diligence. Just as under UK law, companies are required to undertake due diligence to, for example, determine whether a particular transaction exposes a company to unacceptable liabilities or risks, companies must be mindful of the risks and implications of their proposed actions for human rights. Just as businesses are required to act with prudence in their everyday commercial activities, they also must act with similar diligence in circumstances and jurisdictions where governance is weak or non-existence. However, although particular attention has been given to businesses acting in high-risk zones and the dilemmas and risks that companies face in those situations, and while those situations may require a particular degree of prudence, they are by no means the only situations in which a duty to be diligent is relevant.


  8.  A central problem for the legal accountability for businesses in the field of human rights is the fact that most trans-national companies operate through a web of subsidiaries, contractors, suppliers, business joint ventures and other arrangements. The opaque nature of these commercial structures have frequently made it difficult to establish clear lines of responsibility, especially where a parent company has been alleged to be complicit in abuses committed by subsidiaries or partners. In 2006, the ICJ established a special panel of eight legal experts to work to clarify the meaning of corporate complicity in law and policy. The final report of the Panel was released in September 2008. A copy of the three volumes is enclosed.

  9.  The ICJ report analysed three main areas: criminal law (especially international criminal law), civil remedies, and public policy. The report made recommendations concerning the kind of conduct a prudent company should ordinarily observe as well as the appropriate standards of prudence in situations of increased risk so to avoid the risk of liability for complicity. In particular, the report suggested a series of questions the management of a company should ask in the context of its operations.[478] The report placed particular emphasis on the concept of the "reasonable person". Just as the conception of the "reasonable person" plays a central role in the law of torts and of contract, the concept of the "reasonable person" also helps businesses to identify what is expected of a responsible, careful actor in the field of business and human rights. It is, of course, worth noting that those expectations have evolved over time: what was the norm of social expectations some years ago may no longer be the norm today and, consequently, many companies that set policies and practices under certain assumptions may fail to realize that they are lagging behind from what is expected today from them. What is expected from businesses today includes the respect to human rights as defined in such international instruments as the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights.

  10.  The corollary of the above is that, since expectations evolve and include today the need to respect all human rights and certain standards of respect and protection for the environment, it is important that companies carry out periodic review of their policies, methods and practices in relation to human rights. In our view, consideration should be given to the question of whether UK law should explicitly require companies by way of legislation to undertake due diligence measures in relation to their activities in the field of human rights. In our view, this would be a major step forward in securing the compliance of businesses, particularly those which operate on a transnational basis, with fundamental human rights guarantees.


  11.  The responsibilities of businesses in the field of human rights are not simply negative duties to refrain from breaching human rights. Companies also have positive duties also, particularly when a company performs a function that is either explicitly public (eg operating a prison) or essentially of public nature (eg providing residential care for patients funded by a local authority). Even in cases where the state itself is not directly implicated, private companies must not be allowed to evade their own responsibilities in the field of human rights.

  12.  Companies are also generally required to be diligent in identifying the risks of human rights violations in their operations and take precautionary measures to avoid harm or mitigate the effects .[479] In this regard, they are required to take proactive steps to ensure that harm to others is avoided.


  13.  Article 2(3) of ICCPR requires States party to "(a) ensure that any person whose rights or freedoms …are violated (shall) have an effective remedy…", that "any person claiming such remedy (shall) have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop possibilities of judicial remedy", and "to ensure that the competent authorities shall enforce such remedies granted". Article 13 of the European Convention on Human Rights also requires that anyone whose rights and freedoms are violated shall "have an effective remedy before a national authority". Both treaties have been ratified by the United Kingdom.

  14.  The increasing complexity of corporate structures and operations worldwide poses an important challenge for victims seeking to obtain justice. There are a number of obstacles to access to justice in this field, including the application of statutes of limitation to bar claims, the application of the doctrine of separate legal personality, litigation costs and problems obtaining of legal aid.

  15.  These problems are exacerbated in situations where victims may not have access to justice in their own countries, due to reasons ranging from the instability of the system or lack of solid institutions to the lack of independence of the judiciary, lack of enforcement of decisions in practice or insecurity for the plaintiffs and their families. In such circumstances, the obstacles to seeking justice in the jurisdiction of the parent company become more relevant for victims when they cannot obtain justice in their own country. At the international level, neither the Global Compact nor the OECD system of National Contact Points provide an effective remedy in this regard.

  16.  In the view of ICJ and JUSTICE, the need to provide an effective remedy for victims of companies in such circumstances is one of the central challenges raised by the issue of business and human rights. As Canada Supreme Court Justice Ian Binnie stated recently, "You cannot have a functioning global economy with a dysfunctional global legal system. There has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress".[480] Proposals to improve the legal framework applicable to claims for corporate abuse occurring abroad or the accessibility of British courts or other mechanisms should be given serious consideration. The UK should also take a greater role in discussions at the international level concerning new bodies and new legal mechanisms to fill existing gaps.


  17.  The United Kingdom is an important player in the global economy and international politics. As home to some of the biggest transnational corporations, the United Kingdom can do much to ensure those corporations respect human rights wherever they operate. Action in this regard can be taken at the global level, within the United Nations, the OECD, the European Union and within the United Kingdom itself. The UK should:

    — promote the adoption of global human rights standards for corporations within the UN including a mechanism for monitoring compliance.

    — Promote the revision of the OECD Guidelines for Multinational Enterprises and support efforts to provide the Global Compact with a mechanism to ensure that member companies do comply with the principles.

    — The UN Working Group on the use of Mercenaries visited the UK in 2008. The report contains a series of recommendations to which the ICJ calls the Committee's attention, especially to those relating to the need for better regulation for private security and military companies domiciled in the UK. A parallel consultation process by the Foreign and Commonwealth Office is currently underway and the Committee should pay attention to any outcome of that process within the sphere of its competences.

    — The Joint Committee should include in its scrutiny of legislation the need to ensure the legal accountability of companies for their transnational activities, in particular the implementation of the Company Act 2006


May 2009

477   See eg the UN Human Rights Council's reception of the report of the UN Special Representative on Human Rights (U.N. Doc. A/HRC/6/5). Back

478   Report on Corporate complicity, vol. 3, p. 16 Back

479   Report on Corporate complicity vol. 3, p. 19 Back

480 Back

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Prepared 16 December 2009