Intersections of human rights and business

Text of a paper delivered by Prof A. D. Badaiki at the African Bar Association (AFBA) annual conference in Port Harcourt, Rivers State.

Business and business associations are generally associated with pursuit of the interests of investors and profitability. Business associations very often, pursue their own economic self-interest regardless of the harmful consequences they might cause to others. Such an unbridled self-interest can culminate in violation of human rights. With increased tempo of deregulation and even privatisation, the risk of human rights infractions are accentuated. The victims of human rights violations in business transactions include the investors (shareholders and creditors) themselves, directors, employees, customers and even the society itself. With globalisation of modern business and extensive developments of human rights, there has been an increased public awareness of the social and environmental costs of business especially by multinational corporations. Human rights compliance by business organisations has therefore become a critical issue. This is particularly so in view of the requirements of the 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs). Businesses are required to have human rights policies, to carry out due diligence in all their operations and supply chains, and to ensure that there is redress. Accordingly, business and regulatory world alike have adopted the UNGPs as legal rather than hitherto moral rules. This paper focuses on the intersection of business and human rights and make recommendations on how to avoid causing or contributing to adverse human rights impacts and escape liability for human rights violations.

Introduction

In many ways business associations, especially corporations, “govern our lives”[1]. They play a positive role in contributing to the economic development and general prosperity of a nation[2]. By the nature of their general pathological pursuit of profit and power and investor protection objectives, many corporations and individuals within the corporation commit and even sometimes grave human rights abuses in different business situations in which such corporations and individuals are duty-bearers. In view of the clamour, especially by developing countries, for foreign investment to stimulate meaningful economic development, it becomes imperative therefore to strike a balance between corporate business behavior and human rights. Aside from corporations’ self-regulatory internal rules that may exist, there is the more important necessity to regulate, at national and supranational levels, activities of corporations in order to prevent, protect and respect human rights as well as remedy human rights violations in the complex stream of intersection of human rights and business in a globalised eco-legal order. This paper focuses on the types of obligations that are imposed on State and such Non-State Actors as corporations and other business entities to observe human rights. It will refer to the human rights that can and are commonly violated while corporations and entities carry out business. It will also identify the instruments for formulation and enforcement of human rights norms in business, and offer a critique of the level of corporate accountability for respect for human rights.

Meaning and classification of human rights

The concept of human rights has been viewed from different perspectives – normative, legal, philosophical, political, religious and cultural. The Black’s Law Dictionary defines human rights as the freedoms, immunities, and benefits that, according to modern values (especially at an international level), all human beings should be able to claim as a matter of right in the society in which they live[3]. A number of definitions have been proffered by scholars. Louis Henkin defines human rights as: claims which every individual has, or should have, upon the society in which she or he lives. To call them human rights suggests that they are universal; they are the due of every being in every human society. They do not differ with geography or do not depend on gender or race, class or status. To call them ‘rights’ implies that they are claims ‘as of rights’ not merely appeals to grace, or charity or brotherhood or love; they need not be earned or deserved. They are more than aspirations or assertion of ‘the good’ but claims of entitlement and corresponding obligation in some political order under some applicable law if only in a moral order under a moral law… When used carefully, ‘human rights are not some abstract, inchoate ‘good’. The rights are particular, defined, and familiar, reflecting respect for individual autonomy, as well as a common sense of justice and injustice[4].

Umozurike defines human rights as: claims, which are invariably supported by ethics and which should be supported by law, made on society, especially on its official managers, by individuals or groups on the basis of humanity. They apply regardless of race, colour, sex or other distinction and may not be withdrawn or denied by governments, people or individuals. They may also be defined in terms of individual self-interest. They are those rights which every individual claims or aspires to enjoy irrespective of his colour, race, religion, status in life, etc. The most rabid or despotic violator of the human rights of others jealously guards his own rights. The problem in human rights is extending the same recognition, enjoyment and esteem for ourselves to others. The true standard of a society may be determined from the level of adherence of its members, especially the rulers, to the principles of human rights. They may lead themselves to specialties while retaining their universality[5].

Similarly, Eze’s definition refers to human rights as representing demands or claims which individuals or groups make on society, some of which are protected by law and have become part of the lex lata while others remain aspirations in the future[6]. The definition brings out the distinction between human rights protected by law and those which are acknowledged but remain aspirations to be met in the future. Erugo correctly pointed out that the definition gives a lead to understanding the varying positions and the practice of international human rights norms in different societies[7]. Like the other definitions, this definition is universalist and has positive outlook. However, Ezejiofor‘s similar universalist definition of human rights appears to be rooted in natural law thinking. He defined human rights as ‘moral rights which every human being everywhere at all times, ought to have, simply because of the fact that in contradistinction with other beings, he is rational and moral’[8].

All these definitions are an expression of the classical theory that only the rights of human beings, but not those of groups or entities, can be human rights. In view of human rights norms that have been evolved by developing countries as encompassing collective rights, a definition of human rights cannot be limited to individuals as right-bearers. Most of such collective rights as the rights to clean environment, development, self-determination, peace and freedom of groups from genocide, and humanitarian assistance are protected under some human rights instruments. Articles 19-24 of the African Charter on Human and Peoples’ Rights (ACHPR) provide for peoples’ rights such as the right to self-determination; right to development; national and international peace and security; and the right to a general satisfying environment favourable to development. Human rights can therefore safely be defined generally as inalienable claims or entitlements which a person has because he is a human being, and which a group of individuals or communities enjoy under certain circumstances.

Human rights are traditionally or commonly categorised into generations. The ‘first generation’ rights or liberty-oriented rights such as civil and political rights. The ‘second generation’ rights or security-oriented rights consisting of economic, social and cultural rights. The ‘third generation’ or group rights is also known as ‘solidarity’ human rights. Human rights are also classified into fundamental or basic rights, auxiliary or subsidiary rights. The classification of human rights should not be regarded as hierarchic in importance, or divisible, but as a construction of emergence of the different rights in different historical periods[9]. Never in a straight-jacket; human rights are interrelated and interdependent in their relevance and realisation.

Instruments for formulation and enforcement of human rights norms in business

There are several international, regional and domestic instruments for formulation and enforcement of human rights norms, many of which norms are relevant and applicable to business setting and the understanding of the nature of the intersection between human rights and business.

International Instruments

The relevant international instruments set standards of human rights for promotion and protection by the comity of nations. The Universal Declaration of Human Rights (UDHR) which is the first International Bill of Rights is borne out of the widespread conviction by nations, from the experience of the Second World War, that effective protection of human rights was one of the essential conditions of international peace and progress. The UDHR was adopted and proclaimed by the United Nations (UN) General Assembly on 10th December, 1948: as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Some of the inadequacies in the human rights provisions of the UN Charter, for example, absence of precise definition of human rights and general nature of the legal obligation necessitated supplementing the Charter by subsequent international instruments and adoption of covenants giving more specific content to rights protected and providing more sophisticated enforcement procedures.

In the preamble to the Universal Declaration of Human Rights, the essence of the Declaration is stated to be “the common standard of achievement for all peoples and all nations”. The preamble further states the fundamental principle underlying the rights listed in the Declaration to be the “inherent dignity, and the equal and inalienable rights of all members of the human family”. Similarly, Article 1 of the Declaration expresses the universality of rights in terms of the equality of human dignity.

Two broad kinds of rights are proclaimed in the Declaration. The first category refers to civil and political rights consisting of the right to life, liberty, and security of person; freedom from slavery and torture; equality before the law; protection against arbitrary arrest, detention or exile; the right to a fair trial; the right to own property; political participation; the right to marriage; fundamental freedoms of thought, conscience and religion, opinion and expression; freedom of peaceful assembly and association; the right to take part in the government of his country, directly or through freely chosen representatives[10]. The second category are economic, social and cultural rights, which include the right to work, equal pay for equal work; the right to form and join trade unions; the right to adequate standards of living; the right to education; and the right to participate freely in cultural life[11].

Although the UDHR falls into the category of “soft law”, that is, not legally binding, its standards are principles which are respected by all nations as they have universal acceptance; and many countries have incorporated the provisions of the Declaration in their constitutions[12].

Apart from the UDHR, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) also recognise private obligations in their preambles, which is stated in the following terms: ‘the individual having duties to other individuals and to the community of which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognised in the present Covenant[13]. Another often cited reference to the human rights obligations of business corporations is the reaffirmation by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment No. 14, that while only States are parties to the Covenant and thus ultimately accountable for compliance with it, “all members of society – individuals…, as well as the private business sector – have responsibilities regarding the realisation of the rights to health…”.

However, there are non-binding instruments, or so called ‘soft law’, such as the UN Global Compact 2000, the ILO Tripartite[14] Declaration of principles Concerning Multinational Enterprises and Social Policy, the Declaration of Fundamental Principles and Rights at Work, the Organisation for Economic and Development (OECD) Guidelines for Multinational Enterprises 2000, the UN Guiding Principles for Business and Human Rights 2011. Notably, the earlier ‘UN Norms on the Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights 2004, were opposed and abandoned in 2005.

UN Global compact

The UN Global Compact was adopted as a UN initiative to encourage businesses worldwide to adopt sustainable and socially responsible policies, and to report on their implementation. The UN Global Compact is a principle-based framework for businesses, which stipulates ten principles in the areas of human rights, labour, the environment and anti-corruption. When, however, the Global Compact was adopted in June 1998, announced on 31st January, 1999 and officially launched on 26th July, 2000, the Compact set forth only nine principles derived from the Universal Declaration of Human Rights, the ILO Tripartite Declaration on the Environment and Development. On June 24, 2004, during the first Global Compact Summit, the then UN Secretary-General Kofi Annan announced the addition of the tenth principle against corruption in accordance with the United Nations Convention against Corruption adopted in 2003. Under the Global Compact, companies are brought together with UN agencies, labour groups and civil society. Cities can join the Global Compact through the Cities programme.

The UN Global Compact is the world’s largest corporate sustainability (a.k.a. corporate social responsibility) initiative with 13,000 corporate participants and other stakeholders over 170 countries. It has two objectives, first, to “mainstream the ten principles in business activities around the world”, and second to “catalyse actions in support of broader UN goals, such as the Millennium Development Goals (MDGs) and Sustainable Development Goals (SDGs)”.

Of the 10 principles of UN Global Compact, two (principles 1 and 2) intersect human rights with businesses. Principle 1 provides that businesses should support and respect the protection of internationally proclaimed human rights, and principle 2 states that businesses should make sure that they are not complicit in human rights abuses. Four (principles 3, 4, 5 and 6) are on labour standards that businesses should uphold. Principles 3, 4, 5 and 6 stipulate respectively that businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; the elimination of all forms of forced and compulsory labour; the effective abolition of child labour; and the elimination of discrimination in employment and occupation. Principles 7, 8 and 9 which are on environment require that businesses should support a precautionary approach to environmental challenges, undertake initiatives to promote environmental responsibility; and encourage the development and diffusion of environmentally friendly technologies. The last principle (principle 10) which deals with corruption is to the effect that businesses should work against corruption in all its forms, including extortion and bribery.

The principles in the UN Global Compact are not imperative rules. Moreover, the UN Global Compact is not a regulatory instrument, but rather a forum for discussion and a network for communication including governments, companies and labour organisations, whose actions it seeks to influence, and civil society organisations, representing its stakeholders. As mentioned by the Compact’s Executive Director, Lise Kingo in an interview in 2015, “we are the guide dogs, not the watchdogs”. By implication, the UN Global Contact is non-committed and does not enforce discipline. It lacks mechanisms for sanctioning non-compliance or lack of progress. To some extent, companies can misuse the Global Compact as a public relations instrument for “blue wash”. Blue washing refers to the alleged practice of companies claiming their membership or participation in philanthropic and charity- based activity as an excuse and perhaps as an entry door to increase corporate influence upon international organisations[15]. Its usefulness lies mainly, though not exclusively, on it providing resources and support, and serves as a channel for providing facilitation, and encourages policy dialogues, learning, local networks and projects.

•To continued next week