UN group highlights nexus of duties

At the end of their well-received visit to Thailand, the UN Working Group (WG) on Business and Human Rights issued a useful and constructive statement. As with any visit by a human rights body, the WG’s findings indicate both a positive side and another side that needs improvement.

For instance, it commended the authorities for the enforcement of measures against human trafficking, as well as comprehensive measures to stamp out abuses in the fishing industry. The assessment in the statement was all the more important because it concentrated on state-owned enterprises (SOEs). There are nearly 60 SOEs today with a massive portfolio and with operations in Thailand that have extraterritorial reach.

The main international guidance on the subject is the UN Guiding Principles (UNGP) on Business and Human Rights, based on three pillars: the duty to protect, the duty to respect and the duty to remedy.

Firstly, it is the state’s duty to protect human rights by setting up a framework for compliance derived from international standards, such as human rights-responsive laws, policies and practices.

Secondly, it is the business sector’s duty to respect that framework, particularly with the integration of “human rights due diligence”(HRDD) into its policy and practice. HRDD requires periodic assessment of risks to human rights before activities are undertaken, in addition to mitigation measures and transparent reporting available to the general public.

Thirdly, the duty to remedy is a joint duty between both the state and the business sector to rectify any negative impact as well as enable affected parties to access remedies, whether formal (such as courts of law) or informal (such as mediation), and related compensation.

The nexus between those three duties is anchored on a key consideration behind the triangular relationship between the state, business sector and stakeholders: prevention is better than cure. Thus “do no harm”.

The WG singled out various key concerns. It called for attention to the issue of supply chains, including outsourcing and subcontracting, which might lead to negative impact on human rights. It called on SOEs to lead by example and welcomed alignment of practices on this front with the guidelines of the Organisation for Economic Cooperation and Development on corporate governance.

It suggested human rights integration into public procurement processes and into investment agreements. It raised three key challenges in regard to the environmental impact assessments (EIA) and health-related assessments in the country: The impact of pollution on health, forced evictions of communities without adequate compensation, and insufficient public participation in regard to largescale projects.

It questioned the system whereby the EIA is contracted out to a number of companies and implied the need for quality control by the state itself. Fast-track approvals for state projects by means of orders coming from the National Council for Peace and Order, such as Order no. 9/2559, might also jeopardise human rights protection.

On a related front, the emerging special economic zones involving 10 provinces need to mainstream human rights into their planning and operations based on the UNGP, and Thai investments abroad equally need to comply with the standards. Pervasive corruption needs to be addressed through transparency measures and exemplary conduct at all levels.

The WG cautioned against the cases filed against human rights defenders, internationally known as SLAPP — “Strategic Litigation against Public Participation”. Today, many of these cases emanate from the private sector.

Moreover, the WG was concerned with situations where the authorities call people in to pressure them against activities which are seen as antithetical to the authorities. This process infringes on the human right to freedom of expression and peaceful assembly. The WG also called for screening of cases, particularly in relation to criminal defamation, which might be used to harass human rights advocates.

It highlighted the risks in the agriculture and construction industries, and underscored the vulnerability of migrant workers, especially those who are undocumented. Hotlines in the language of such workers are particularly needed. Other groups requiring attention include persons with disabilities, sex workers and ethnic minorities. The gender perspective needs reinforcing, particularly to counter violence and discrimination.

It ended its initial assessment by welcoming the initiative to draft a National Action Plan on business and human rights. This would help to strengthen the official Human Rights Agenda already adopted by the Thai government as part of its “4.0” goal to advance the country’s development process. A more complete report will be discussed in the UN Human Rights Council in Geneva next year.

Of relevance is the fact that the country is now a party to seven core human rights treaties addressing civil and political rights; economic, social and cultural rights; racial discrimination; women’ rights; child rights; the rights of persons with disabilities; and action against torture. However, it has yet to become a party to two other core UN human rights treaties, on action against enforced disappearances and on the rights of migrant workers.

Meanwhile, the country is a member of nearly 20 labour treaties, including six conventions on action against forced labour; abolition of forced labour; equal remuneration at work; non-discrimination at work; minimum age for employment of children; and prohibition of the worst forms of child labour. It is now showing interest in becoming a party to the two other fundamental conventions on the right to organise and freedom of association and on collective bargaining.

Yet impediments include the fact that, in Thailand, SOE employees are not allowed to strike. Migrant workers also enjoy only limited participation in trade unions, while Thai civil servants are waiting for the possibility to set up their own trade unions.

A salient priority for the future is the need to integrate those international human rights standards more strongly into all businessrelated operations at the national and local levels. Tangibly, the country looks forward to more initiatives from industries to undertake HRRD reporting and make their reports publicly and transparently available, at the crossroads of our shared responsibility and longed-for democracy.

Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. He was formerly UN Special Rapporteur, UN Independent Expert and a member of UN Commissions of Inquiry on human rights.