In your view, do home states have obligations under international human rights law to protect people against human rights abuses carried out by their companies in other countries?
What legal and policy justifications exist for extending human rights protection beyond borders?
How can these justifications be leveraged by civil society and progressive lawmakers?
Share your thoughts, ideas, questions and experiences below by adding a new comment or replying to existing comments!
Today, business activity is unambiguously global. Yet, the basic protections necessary to safeguard human rights and the environment are still stubbornly national in scope. This gap has opened the space for many companies to move operations to “more favorable” regulatory environments where lackluster laws and weak enforcement capacities result in lower short-term costs for business. And it’s no longer simply a North-South phenomenon, as US or European-based multinationals are not the only ones moving south of the border to seek the bottom line. Increasingly more companies from the global South—India, Malaysia and South Africa for example—are turning transnational, some even moving their factories or other operations northward. These global realignments arguably serve to widen even further the scope of human rights protection gaps.
International human rights law provides that States have a duty to protect within their jurisdiction against human rights abuses committed by third parties—be they business, banks, commodity traders, or any other non-state actors. The duty to protect implies that States must prevent abuse, provide effective remedies for those harmed, and hold those responsible to account. Protection measures can be judicial, legislative or administrative in nature, and generally include duties to investigate, monitor, and regulate business, adjudicate when necessary as well as facilitate compensation for victims.
Yet, does this government duty to protect human rights against business abuses under international law apply to actions or omissions committed by their own companies acting abroad?
To kick this thread off, I’m looking forward to your ideas on this complex question of great importance.
Although the Foreign Corrupt Practices Act does not deal with human rights per se, President Obama has indicated a shift in stance on FCPA saying that it is a tool for human rights promotion.
The FCPA prohibits U.S. companies and citizens, foreign companies listed on a U.S. stock exchange, or any person acting while in the United States, from corruptly paying or offering to pay, directly or indirectly, money or anything of value to a foreign official to obtain or retain business. The FCPA also requires any company including foreign companies with securities traded on a U.S. exchange or otherwise required to file periodic reports with the Securities and Exchange Commission to keep books and records that accurately reflect business transactions and to maintain effective internal controls.
The FCPA applies extraterritorially, and is a strong example of how a human rights focused extraterritorial law could look and function, including by requiring a level of due diligence to be engaged in by companies as a preventative measure.
What are other thoughts on this?
Hi Nico: In seminars held by John Ruggie among academic experts, legal practitioners and representatives from NGOs, there was a general agreement that, apart from the principle of non-intervention in the internal affairs of another State, there are no significant international legal impediments to States exercising extraterritorial jurisdiction. While host State legal systems should generally be respected and strengthened, it was agreed that the overarching goal must always be to provide victims with justice. Nonetheless, in spite of the broad consensus on the need for governments to clarify the areas of legal responsibility, of the state of progress of national and international law on the matter, so that jurisprudence is congruent with the current need of preventing corporations from violating HR, the greatest obstacle is the States’ governments in themselves. In my opinion, the biggest obstacle is the absolute lack of political will from States to enforce legal rights in the business sphere of influence. If States had the will, there is a very clear vehicle to accomplish this: A universally and legally-binding framework for human rights protection in the business sphere of influence. This would force corporations, subsidiaries and all business entities to ensure that all their business practices abide by the same universal standards in their home country and abroad, and would force governments to make sure that business entities actually comply with this universal framework. The problem, once again, is the lack of political will of most States in both the so-called strong-governance zones as well as in the rest of the world.
Thanks Alvaro,
I wanted to point something out for the group's consideration relating to international standards.
In his current draft Guiding Principles (which attempt to set out soft law standards for business and human rights issues), Professor John Ruggie states that "at present, States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction." ESCR-Net and many other legal experts and long-standing human rights organizations like Amnesty International disagree strongly with him here, and believe his draft Principles are backtracking on established standards and practice of the human rights treaty bodies. Prof. Ruggie seems to be conflating the obligation to protect against abusive acts abroad with the jurisdictional basis upon which it is permitted. Quoting a 2011 broadly-supported joint civil society statement:
Read the entire statement here, or check out a related Joint Civil Society statement on the draft Guiding Principles here. You can also read all the submissions to the draft Guiding Principles presented by other organizations by visiting the Business and Human Rights Resource Centre.
Look forward to your ideas and reactions!
We also need your support, so write to me if you'd like to work with us to supporting the duty to protect against abuses of their companies under int'l human rights law.
Thanks Niko,
I have a copy of the Joint Civil Society Statement on the draft Guiding Principles on Business and Human Rights of January 2011, which, as you are aware, Jus Semper endorsed and republished in our Winter 2011 newsletter http://www.jussemper.org/Newsletters/Resources/JointCSOStatement_GPs_Fin.... But I do not have a copy of this –I assume– even more recent statement, which I feel fully in agreement with its argumentation. Thank you for the link.
We have always been very critical of Ruggie's work and we have published three assessments of his past reports in which, in a nutshell, we considered him to be very supportive of non-binding laissez-faire practices regarding business and human rights. As expected, Ruggie's has succinctily dismissed our opinions, for Ruggie has consistently sided with the market's vision that business should cherry pick whatever voluntary instruments they prefer to regulate the impact of their operations on Human Rights.
In this way, in my opinion, Ruggie’s work is only a token effort to maintain the precedence of the market over the rights of people and, to be sure, over true democracy. I am sure that we all anticipate that Ruggie's final report, coming up in June, will only make token changes that will not depart from his view that the market must reign supreme over human rights. He will not depart from his attempt to set out soft law instruments and essentially continue with his customary rhetoric and posturing so that he good old formula of changing, so that everything remains the same, continues. I hope I'm wrong. Regardless, we will prepare a final assessment of his work during the second half of the year. If we can be of any specific assistance, please let me know. Thank you again for this new piece of information.
Álvaro J. de Regil – The Jus Semper Global Alliance
Hi Niko and others,
I wanted to share a list of demands that the watchdog "Publish What You Pay" calls on home governments to inact. These demands are copied from their website and pasted below.
Home governments of extractive companies
Home governments refer to the governments of those countries where companies are registered or raising capital. These governments have a responsibility both as home countries to extractive companies registered in their territory but also as donors.
Publish What You Pay calls on these governments to:
Do any of these rise to the top for you? Is there a way to prioritize these demands? Which of these actions are governments now doing? What could they use our help with?
Hello Kristin,
I think transparency regarding payments to fight corruption in a company's activities in the extractive industries is only one topic in the wide array of issues concerning business and human rights. Although I am not particularly acquainted with this area, I do not think that such demands must be prioritised. Instead, they should be integrated into a comprehensive body of legally-binding norms that should regulate the impact of business on human rights in the business sphere of influence. In this way, I think that if we want to set a priority, this should be to force governments to developed -with civil society fully involved– a Universal Business and Human Rights Regulatory Framework.
Álvaro J. De Regil – The Jus Semper Global Alliance
Hi Alvaro,
This post got me thinking about strategic ways to engage in the development of corporate accountability frameworks. I see the value of transparency initiatives in forcing disclosure around specific issues. For instance, the Conflict Minerals provision of the Dodd-Frank Act does just this, legislating due diligence to be conducted by corporations who source materials from the DRC or adjoining areas. In your opinion, should the corporate accountaiblity community be seeking specific carve outs like this or focus on a holistic "Universal Business and Human Rights Regulatory Framework"? Do you see the former undermining or promoting the success of the latter?