Not Such a World Apart - From The United Nations, Geneva, Switzerland to Cork, Ireland
Drawing on her experience as a lawyer, lobbyist and lecturer, Mary Mayenfisch considers the intersection of business and human rights by observing the development of human rights standards of corporate responsibility and accountability, examining compliance with these national and international standards and questioning the role of the modern lawyer in all of this.
Mary Mayenfisch-Tobin, BCL (University College Dublin), LLM (University of Lausanne), Solicitor (Incorporated Law Society, Ireland) has been a lobbyist with the Swiss Amnesty International, Business and Human Rights group since 2005. Mayenfisch-Tobin has lectured and written widely on Business and Human Rights. She is a team member of the Robert F Kennedy, Human Rights Foundation, Switzerland.
One of the greatest ironies of this period in history is that, just as technology remakes our world, the need to maintain the human dimension of our work, and a company’s sense of its social responsibility, is growing at an equally rapid pace. Harmonising economic growth with the protection of human rights is one of the greatest challenges we face today.[1]
Mary Robinson, UN High Commissioner for Human Rights
The disaster which occurred in the Rana Plaza in Bangladesh, when a building collapsed and over 1,100 people working in the garment business perished, clearly illustrates the relationship of business beyond national borders to our everyday lives.[2] According to Irish lawyer Michael Bride the workers had been forced to work despite the known defects in the building.[3] There was a failure of government oversight, no trade union representation and western retailers and brands did not act responsibly. Many international clothing companies, including Irish companies, had work going on in the building and in the absence of basic workplace health and safety standards, these workers were the victims of systematic human rights violations.
Back in 1999, the United Nations Secretary-General, Kofi Annan, had called on business leaders to ‘give a human face to the global market’ and, in 2005, he appointed Harvard Professor John Ruggie, as UN Special Rapporteur on Business and Human Rights.[4] Professor Ruggie’s mandate was to identify and clarify human rights standards of corporate responsibility and accountability.[5] In 2011, after extensive consultations with business organisations, governments, trade union representatives and civil society, the United Nations Guiding Principles (UNGPs) were unanimously approved by the UN Human Rights Council in Geneva.[6] This, the first global framework outlining the duties and responsibilities of governments and business enterprises, was based on three pillars; the state duty to protect human rights, the corporate responsibility to respect human rights and access to remedy for victims of business-related abuses. That same year, the Working Group on Business and Human Rights was established to implement these principles and, in 2014, a UN resolution was enacted to elaborate an internationally legally binding instrument, urgent in these times of climate change, corporate irresponsibility and the excessive influence of multinational corporations.[7]
In 2017, the Committee on Economic, Social and Cultural Rights (CESCR) gave their recommendations to governments on UNGP Pillar 1 (State duty to Protect) and 3 (Access to Remedy). According to the General Comment the State duty to protect entails preventing infringements of economic, social and cultural rights in the context of business activities, adoption of legislative, administrative, educational, and other appropriate measures, and provision of effective remedies to victims of corporate abuses.[8] Clarity is given in the General Comment with regards to extraterritorial jurisdiction, with a reminder to governments of their duty to hold their companies to account legally in cases of human rights violations and to ensure remedies for abuses committed both locally and abroad.[9]The use by companies of the corporate veil to escape liability is addressed and the establishment of parent company or group liability is recommended.[10]
Lawyers, academics and human rights organisations in the Business and Human Rights (BHR) sphere are very aware of existing legal lacunes such as lack of class action mechanisms when large numbers of people are affected by corporate abuses, the lack of legal aid and financial support to fund cases, the difficulty of ensuring effective cross border judicial and law enforcement collaboration and the threat of defamation claims against those who raise concerns or highlight corporate abuses.[11] Countries routinely compete for business and the subject of tax evasion and avoidance and transfer pricing are regularly discussed at national and international levels.[12] Current government practices of lowering tax rates to attract investors is strongly discouraged in the General Comments.[13] This presents a challenge to the traditional idea of how business works in terms of national development for many governments. Recent developments (the Apple case in Ireland) and academic commentary illustrate the complexity of the struggle for countries seeking competitive advantage and local advantages when working with foreign business entities, this bears reflection in light of growing international regulations and risks.[14]
The increased awareness of the negative impacts of global business, and the ever-widening movement towards corporate accountability, thanks to the UNGPs and other international instruments, have impacted governments’ human rights strategy and policies and increased the publication of National Actions Plans (NAPs) on both Corporate Social Responsibility and Business and Human Rights in many countries.[15] Despite these advances, much work is still needed in terms of the accountability and transparency of business entities, their regulation at national government level and the relevant human rights education in legal and business schools.
According to the Danish Institute on Human Rights (DIHR), an independent state funded institute, 25 States have published their NAPs to date, while for many other countries this is still work in progress.[16] Information, transparency and awareness building of these NAPs and the obligations of business with regards to BHR needs to be assured by governments as simply having an NAP is not proof of its effectiveness. At the 2020 United Nations Forum on Business and Human Rights the German National Action Plan received special praise from the DIHR because of their dynamic approach to their plan, and the number of stakeholders and government ministries involved in the discussion.[17] The fact that Germany has clearly stated their intention to enact mandatory legislation applicable to their companies in 2021, if business does not respect human rights in their operations, was applauded. Switzerland, on the other hand, published its second NAP in 2020 and it is considered by its critics to be ‘incomplete’.[18] According to diverse stakeholders ‘[i]t does not constitute a solid basis for respecting human rights abroad’.[19]
Despite the uneven success of the progress on BHR globally, thanks to the UNGPs, the Treaty on BHR, international instruments and the many actors in the Business and Human Rights sector, the understanding of the urgent need to regulate business entities is on the rise and legislation is being widely discussed globally.[20] In 2017, the French Corporate Duty of Vigilance law established a legally binding obligation for French parent companies to identify and prevent adverse human rights and environmental impacts resulting from their own activities, from activities of companies they control, and from activities of their subcontractors and suppliers with whom they have an established commercial relationship.[21] The law applies to the largest companies established in France and risks of serious harm to people and planet will be assessed and addressed by means of annual, transparent vigilance plans.
In the European Union (EU) resolutions on Business and Human Rights are under discussion and the urgent need for mandatory due diligence and corporate accountability mechanisms and regulations is understood.[22] The European Commissioner for Justice, Didier Reynders, announced in April 2020, that the EU plans ‘to develop a legislative proposal by 2021 requiring businesses to carry out due diligence in relation to the potential human rights and environmental impacts of their operations and supply chains’.[23] He further stated ‘that the draft law, once developed, is likely to be cross-sectoral and provide for sanctions in the event of non-compliance’.[24] A consultation and discussion on Corporate Governance is also underway with the aim of improving the EU regulatory framework on company law and corporate governance, to help companies manage sustainability-related matters in their own operations and supply chains particularly with regards to their human rights, climate change and environmental impacts. In a Covid-19 Resolution (April 2020) the European Parliament highlighted the importance of Human Rights and environmental due diligence, the responsibility of both governments and business enterprises in the current pandemic crisis.[25]
In Switzerland, the Responsible Business Initiative, with the support of a coalition of more than 100 Swiss organisations - human rights associations, religious and political leaders, trade unions and ethical investment groups - campaigned for the revision of the Swiss Constitution to ensure the incorporation of the respect for human rights and the environment by Swiss and Swiss-based companies wherever they operate.[26] Despite a majority of the popular vote in favour of this initiative in November 2020, the double majority legally required for such a revision was not obtained. Notwithstanding this setback, the 7-year long campaign has raised the public awareness of Swiss business conduct overseas, legal firms have now created BHR departments while some Swiss Universities are establishing new departments, courses, research and centres in this domain.[27]
Legislation has also been enacted or is underway in countries such as Finland, the Netherlands, and England and Wales.[28] It is clear that the future EU legislation, already mentioned, will have a major impact on all EU member states.
Cases concerning human rights violations are being heard in the home courts of business enterprises; evidence of a new willingness to allow access to justice to victims of human rights violations. The changing nature of the discussion on the responsibility of business entities is widespread, and longstanding legal arguments discussing the merit or lack of merit of extra-territoriality and looking to the US Alien Tort Claims Act, 1789 for guidance or solutions, are changing.[29] The current cases against Vedanta in England, Nevsun in Canada, and Shell in the Netherlands are proof of this sea change.[30] This is a path that will ensure justice for all people, no matter where the injustice occurred.
The evolution and importance of concepts such as Business and Human Rights (BHR), Corporate Responsibility (CR) and Corporate Social Responsibility (CSR) may not yet be taught in law schools; this is shortsighted. Globalisation and the new awareness of business risk and responsibility has changed the way the world works. Business enterprises, both multinational corporations and smaller companies often operate beyond country borders, notwithstanding their size. Lawyers need to understand the risks of such operations and advise clients in accordance with current and future legislation and jurisprudence.
Harking back to the Rana Plaza case, could a newly qualified lawyer advise a business client wisely on the weight of their CR policy if the procurement decisions in the company are made by people who base their decisions on price, with no thought given to the health and safety issues of their workers in their supply chain?
Today, legal practitioners understanding of the Corporate Responsibility of business is critical as the legal risk for companies operating outside their national boundaries is very real. Clear advice on human rights due diligence, human rights impact assessments, adequate company policies, codes of practice, the careful choice of suppliers and partners, and an understanding of the United Nations Guiding Principles and other important international guidelines is crucial.[31] The world has changed, business has changed, so must we.[32] This requires reflection and understanding of the difference between mere compliance with national or international minimum standards, the organised prevention of future disasters and the protection of corporate and country reputation.
[1] ‘Business and Human Rights: A Progress Report’ (Office of the United Nations High Commissioner for Human Rights, January 2000)<https://www.ohchr.org/Documents/Publications/BusinessHRen.pdf> accessed 2 February 2021.
[2] ‘The Rana Plaza Accident and Its Aftermath’ (International Labour Organisation, 21 December 2017) <https://www.ilo.org/global/topics/geip/WCMS_614394/lang--en/index.htm> accessed 2 February 2021.
[3] Mary Mayenfisch-Tobin, ‘Are Lawyers an Obstacle to Progress on Corporate Social Responsibility and Sustainability?’ (The BSL Blog, 23 July 2013) <https://bsl-blog.org/2013/07/23/are-lawyers-an-obstacle-to-progress-on-corporate-responsibility-and-sustainability/> accessed 2 February 2021.
[4] ‘Secretary-General Proposes Global Compact on Human Rights, Labour, Environment, in Address to World Economic Forum in Davos – Press Release SG/SM/6881/Rev.1’ (United Nations, 1 February 1999) <https://www.un.org/press/en/1999/19990201.sgsm6881.r1.html> accessed 2 February 2021.
[5] ‘Annan Appoints Ruggie Special Representative on Rights, Corporations, Businesses’ (United Nations News, 29 July 2005) <https://news.un.org/en/story/2005/07/146922-annan-appoints-ruggie-special-representative-rights-corporations-businesses> accessed 2 February 2021.
[6] ‘Guiding Principles for Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (Office of the United Nations High Commissioner for Human Rights, 2011) <https://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf> accessed 2 February 2021.
[7] This group, since 2012, organises the yearly UN Forum on Business and Human Rights. The UN Human Rights Council in Geneva adopted a resolution, drafted by Ecuador and South Africa, to elaborate an international legally binding instrument on multinational corporations and other business enterprises on human rights. Following this work, in 2020, the second revised draft of the proposed treaty was published; UN Human Rights Council, ‘Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights’ (14 July 2014) UN Doc A/HRC/RES/26/9.
[8] Committee on Economic, Social and Cultural Rights, ‘General Comment No.24 (2017) on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ (United Nations Economic and Social Council, 10 August 2017); General Comments provide orientation for the practical implementation of human rights and form a set of criteria for evaluating the progress of states in their implementation of these rights. General Comments are not treaties and do not need ratification by treaty parties. While strictly speaking General Comments are not legally binding, they are authoritative interpretations of legally binding commitments.
[9] ibid para 30.
[10] ibid para 44.
[11] ‘Business and Human Rights’ (Office of the United Nations High Commissioner for Human Rights) <https://www.ohchr.org/EN/Issues/Business/Pages/BusinessIndex.aspx> accessed 2 February 2021; Peter Frankental and Frances House, ‘Human Rights: Is It Any of Your Business?’ (Amnesty International and The Prince of Wales Business Leaders Forum, 2 September 2013) <https://www.amnesty.org/download/Documents/HRELibrary/sec010222008eng.pdf> accessed 2 February 2021.
[12] Committee on Economic, Social and Cultural Rights (n 9) para 37; Mary Mayenfisch-Tobin and Gabriela Quijano, ‘Corporate Accountability and Access to Remedy for Victims of Human Rights Abuses – The Way Forward!’ (Reconnecting With Commonsense, 8 July 2017) <https://reconnectingwithcommonsense.wordpress.com/2017/07/08/corporate-accountability-and-access-to-remedy-for-victims-of-human-rights-abuses-the-way-forward/> accessed 2 February 2021.
[13] Committee on Economic, Social and Cultural Rights (n 9) para 37.
[14] Silvia Amaro, ‘EU Appeals Against Apple Ruling in $15 Billion Tax Battle’ (CNBC, 25 September 2020) <https://www.cnbc.com/2020/09/25/eu-appeals-against-apple-ruling-in-15-billion-tax-battle.html> accessed 2 February 2021; Shane Darcy, ‘“The Elephant in the Room”: Corporate Tax Avoidance & Business and Human Rights’ (2017) 2(1) Business and Human Rights Journal 1.
[15] ‘Corporate Social Responsibility (CSR)’ (State Secretariat for Economic Affairs SECO) <https://www.seco.admin.ch/seco/en/home/Aussenwirtschaftspolitik_Wirtschaftliche_Zusammenarbeit/Wirtschaftsbeziehungen/Gesellschaftliche_Verantwortung_der_Unternehmen.html> accessed 2 February 2021; ‘State National Action Plans on Business and Human Rights’ (Office of the United Nations High Commissioner for Human Rights) <https://www.ohchr.org/en/issues/business/pages/nationalactionplans.aspx> accessed 2 February 2021.
[16] National Action Plans on Business and Human Rights <https://globalnaps.org/> accessed 2 February 2021.
[17] ‘9th Annual Forum on Business and Human Rights’ (Office of the United Nations High Commissioner for Human Rights) <https://www.ohchr.org/EN/Issues/Business/Forum/Pages/2020ForumBHR.aspx> accessed 2 February 2021; ‘Germany’ (National Action Plans on Business and Human Rights) <https://globalnaps.org/country/germany/> accessed 2 February 2021.
[18] Laurent Matile, ‘Switzerland’s New Yet Incomplete Action Plan’ (Alliance Sud, 11 February 2020) <https://www.alliancesud.ch/en/politics/business-and-development/switzerlands-new-yet-incomplete-action-plan> accessed 2 February 2021.
[19] ibid.
[20] Organisation for Economic Cooperation and Development (OECD), OECD Guidelines for Multinational Enterprises (OECD Publishing, 2011); Mary Mayenfisch-Tobin, ‘Business and Human Rights, the UN Guiding Principles – Explanations and Actors’ (Reconnecting With Commonsense, 4 January 2018) <https://reconnectingwithcommonsense.wordpress.com/2018/01/04/business-and-human-rights-the-un-guiding-principles-explanations-and-actors/> accessed 2 February 2021; Elise Groulx Diggs, Milton C Regan and Beatrice Parance, ‘Business and Human Rights as a Galaxy of Norms’ (2019) 50(2) Georgetown Journal of International Law 309.
[21] Loi n° 2017-399 du 27 mars 2017.
[22] European Commission, Study on Due Diligence Requirements Through the Supply Chain (Publications Office of the European Union 2020) <https://op.europa.eu/en/publication-detail/-/publication/8ba0a8fd-4c83-11ea-b8b7-01aa75ed71a1/language-en> accessed 2 February 2021.
[23] Didier Reynders, ‘European Commission Promises Mandatory Due Diligence Legislation in 2021’ (European Parliament Working Group on Responsible Business Conduct, 29 April 2020) <https://responsiblebusinessconduct.eu/wp/2020/04/30/european-commission-promises-mandatory-due-diligence-legislation-in-2021/> accessed 2 February 2021.
[24] ibid.
[25] ibid.
[26] Nils Muižnieks, ‘Multinationals Often Seem Too Big for Accountability. Switzerland May Change That’ (Newsweek, 27 November 2020) <https://www.newsweek.com/multinationals-often-seem-too-big-accountability-switzerland-may-change-that-opinion-1550862> accessed 2 February 2021.
[27]‘Geneva Center for Business and Human Rights’ (Université De Genève) <https://www.unige.ch/gsem/en/research/centers/gcbhr/> accessed 2 February 2021; ‘Platform for Business and Human Rights’ (University of Lausanne) <https://www.unil.ch/dip/en/home/menuguid/platform-for-business-and-human-rights.html> accessed 2 February 2021; ‘Business and Human Rights’ (Université De Fribourg) <https://www3.unifr.ch/ethique/en/formation/teaching-ethics-center/ethics-economic-politics/course/88678> accessed 2 February 2021.
[28] ‘Finnish Government Programme Includes Commitment on Mandatory Human Rights Due Diligence Law at National & EU Level’ (Business & Human Rights Resource Centre, 3 June 2019) <https://www.business-humanrights.org/en/latest-news/finnish-govt-programme-includes-commitment-on-mandatory-human-rights-due-diligence-law-at-national-eu-level/> accessed 2 February 2021; The Child Labour Due Diligence Act 2019 (Netherlands); The Modern Slavery Act 2015 (England and Wales).
[29] The Alien Tort Claims Act 1789 (United States); Chantal Carriere, ‘Mind the Gap: Domestic Liability for Corporate Human Rights Violations in the US and Abroad’ (International Bar Association, 30 August 2019) <https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=9DA3551F-D889-47CF-B645-02D1C4F72D9D> accessed 2 February 2021.
[30] Vedanta Resources Plc and Konkola Copper Mines Plc v Lungowe and Ors [2019] UKSC 20; Nevsun Resources Ltd v Araya 2020 SCC 5. As of yet there is no report on the Shell case, however, see Anjli Raval and Neil Munshi, ‘Shell Loses Dutch Case Over Nigeria Oil Spills’ (Financial Times, 29 January 2021) <https://www.ft.com/content/663c6261-338e-4f6a-8ae4-11416607db71> accessed 2 February 2021.
[31] For a useful toolbox see ‘About This Toolbox’ (Toolbox Human Rights) <https://business-humanrights.be/about> accessed 2 February 2021; ‘Human Rights and Impact Assessment’ (The Danish Institute For Human Rights) <https://www.humanrights.dk/projects/human-rights-impact-assessment> accessed 2 February 2021.
[32] Benjamin W Heineman Jr, ‘Lawyers as Professionals and Citizens: Key Roles and Responsibilities in the 21st Century’ (Harvard Law School Forum on Corporate Governance, 25 November 2014) <https://corpgov.law.harvard.edu/2014/11/25/lawyers-as-professionals-and-citizens-key-roles-and-responsibilities-in-the-21st-century/> accessed 2 February 2021.
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