Pitfalls in rights treaty for business

Many complexities need to be ironed out before a pact on human rights can work, writes DANNY BRADLOW

DEVISING the rules for holding businesses responsible for the effects of their operations on human rights, which are inherent to all human beings without discrimination, is an emotive and complicated subject that is best handled with caution.

The dizzying array of situations in which businesses affect human rights include the power relations between businesses, governments and those whose rights have been affected by business. How are human rights principles, primarily designed to address the relations between governments and their citizens, adapted to also cover economic activity?

In 2011 the United Nations (UN) Human Rights Council endorsed the nonbinding guiding principles on business and human rights, which stipulate that states have a duty to protect human rights. It charged all businesses — “regardless of their size, sector, location, ownership and structure” — with the responsibility to respect human rights. They also need to provide access to remedies for those harmed by corporate activities.

Last year Ecuador and SA, partly in response to concern about the nonbinding nature of the guiding principles, persuaded the UN Human Rights Council to establish an intergovernmental working group to prepare a business and human rights treaty. It recently held its first meeting.

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In these cases, there are undeniable violations, such as deaths and injuries caused by poor mine health and safety practices.

The challenge in deciding whether the company can be held responsible for them depends on issues such as identifying the appropriate forum in which to bring an action; determining how to establish jurisdiction over the corporate entity responsible for the violations; and gathering the evidence needed to prove liability.

While in practice these issues are complicated, conceptually they can comfortably be resolved under existing human rights principles.

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Consider this: a pharmaceutical company has discovered regular consumption of a cabbage leaf extract cures hypertension. The extract has no known side effects, is easy to use and is cheap. The company plans to grow the cabbage and produce the extract on a farm that employs 100 workers.

It will need 70 farm workers and 30 workers in its production facility. None of the farm workers has the skills required for the production facility. If it decides to lay off 30 workers, its human rights due diligence indicates the laid-off farm workers will also lose their housing on the farm. The company can offer the workers a voluntary buyout and if that’s not enough, offer to compensate the laid-off workers financially or in kind.

Establishing whether this project is a positive one from a human rights perspective depends on confidence in the due diligence studies. These include accepting the assumption that the company will lay off only 30 workers and that the compensation will be adequate at the time they receive it.

Human rights principles can’t help determine whether these assumptions are realistic. But they can help decide whether the responses to them are adequate, subject to two limitations. First, it is reasonable to deal with the impact on the workers in isolation from the project’s other rights impacts. Second, the rights impact will not change significantly over the project’s life.

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Assume the company decides to delay production for one year while it completes legal arrangements for exporting the product. Studies show this will substantially expand sales. It plans to use the additional time to train the 30 laid-off farm workers to work in the production facility, obviating the need to compensate them for the loss of their houses or jobs. But its studies show the delay will result in an additional 1,000 premature deaths and an extra 2,000 people disabled due to untreated hypertension.

To decide what action to take on human rights grounds, it must decide whether to give more weight to the human rights losses or benefits of the farm workers or those of an unknown, but very real, group of hypertension sufferers and their families.

In addition, it must decide whether it should give more weight to the rights to work and to housing, or to the rights of access to healthcare and to life.

Traditionally human rights are viewed as indivisible, interdependent and interrelated. The notion that a company may need to choose which human rights it will protect is antithetical. It is not clear human rights law has developed the conceptual tools to make these judgments. However, they are a necessary part of business planning. of the issues involved, the UN Human Rights Council is not the most effective forum for negotiating a treaty. It risks duplicating discussions in other settings. Examples include debates about the most appropriate environmental and social safeguard policies for the newly established development banks, such as the Brics bank, and discussions about investment issues in the Group of 20.

These discussions, in which human rights experts are not full participants, would benefit from the input of the UN Human Rights Council.

We are not ready for a business and human rights treaty, and the efforts to create one are misdirected. Those who want more human rights-compliant business practices should dedicate their efforts to developing our knowledge of how businesses actually incorporate rights considerations into their planning and operations; and how to adapt human rights principles to respond to these practices.

This knowledge can be used to strengthen the general principles and to develop procedures and practices that help reduce rights violations by businesses.

The Human Rights Council should focus its efforts in two areas where it has a comparative advantage.

First, while knowledge of human rightscompliant business practices is limited, there is a good understanding of the floor below which corporate conduct cannot fall without causing substantial rights violations. The council should develop clear rules to prohibit conduct that falls below this level.

Second, it should encourage states, businesses and international organisations to develop forums, mechanisms and procedures through which those who feel their human rights have been harmed by business can seek redress.

The notion that a company may need to choose which human rights it will protect is antithetical. It is not clear human rights law has developed the conceptual tools to make these judgments

Bradlow is SARCHI professor of international development law and African economic relations at the University of Pretoria. This article first appeared at www.theconversation.com

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