Thai ac­tion plan a step to rights pro­tec­tion by busi­ness

Bangkok Post - - OPINION - SEREE NONTHASOOT

By ini­ti­at­ing a process to draft a na­tional ac­tion plan on busi­ness and hu­man rights (NAP) to im­ple­ment the guid­ing prin­ci­ples adopted by the United Na­tions Hu­man Rights Coun­cil, Thai­land has taken a cru­cial step to en­sure its com­mer­cial en­ter­prises will ad­here to hu­man rights pro­tec­tion.

The Thai gov­ern­ment has set up a na­tional com­mit­tee un­der the Jus­tice Min­istry to draft the plan which will cover all types of busi­ness en­ti­ties — from smal­land medium-sized en­ter­prises (SMEs) to multi­na­tional cor­po­ra­tions. The first draft is ex­pected to be com­pleted by the end of this year.

The UN guid­ing prin­ci­ples, also known as the Rug­gie prin­ci­ples after John Rug­gie, their au­thor, are founded on three pil­lars: to pro­tect, re­spect and rem­edy. That is to say the states’ duty to pro­tect, the re­spon­si­bil­ity of busi­ness to re­spect and the gen­eral obli­ga­tion of states and busi­nesses to pro­vide rem­edy in the case of busi­ness-re­lated hu­man rights vi­o­la­tions.

Amal­ga­mat­ing ex­ist­ing hu­man rights pre­cepts, the guid­ing prin­ci­ples do not cre­ate any new duty. Un­der­pin­ning th­ese prin­ci­ples is the recog­ni­tion of the roles of busi­nesses in hu­man rights pro­tec­tion and vi­o­la­tions.

A na­tional ac­tion plan, like the one be­ing drafted by Thai­land, can be used as a tool for states to reaf­firm their com­mit­ment to hu­man rights pro­tec­tion and the roles to be un­der­taken by the var­i­ous agen­cies un­der their ju­ris­dic­tion vis-à-vis busi­ness en­ter­prises.

Thai­land’s ini­tia­tive on the ac­tion plan is driven by both in­ter­na­tional and na­tional fac­tors.

Through the sec­ond cy­cle of the Univer­sal Pe­ri­odic Re­view process in 2016, Thai­land adopted a rec­om­men­da­tion pro­posed by Swe­den to de­velop and en­act the NAP.

Nev­er­the­less, home grown ef­forts were al­ready present. The Na­tional Hu­man Rights Com­mis­sion (NHRC) of Thai­land sub­mit­ted to the cab­i­net a pro­posal for the gov­ern­ment to en­sure ob­ser­vance of hu­man rights by Thai cor­po­ra­tions, in­clud­ing in their over­seas in­vest­ment, through var­i­ous mea­sures that are to be in­te­grated into a na­tional plan.

This NHRC’s pro­posal stemmed from a num­ber of al­le­ga­tions of hu­man rights vi­o­la­tions in neigh­bour­ing coun­tries against Thai in­vestors and in­ves­ti­ga­tions of the is­sue con­ducted by the NHRC.

In its af­fir­ma­tive res­o­lu­tion in May last year, the cab­i­net tasked rel­e­vant agen­cies, such as the jus­tice and fi­nance min­istries, the Board of In­vest­ment and the Se­cu­ri­ties and Ex­change Com­mis­sion, to in­cor­po­rate hu­man rights in the na­tional in­vest­ment strate­gies. The pol­icy ap­proach to­ward preven­tion of ex­tra-ter­ri­to­rial hu­man rights abuses by Thai cor­po­ra­tions marks an ad­vanced de­gree of hu­man rights pro­tec­tion that sig­nif­i­cantly re­in­forces the ef­fec­tive­ness of the UN guid­ing prin­ci­ples.

A dis­tinc­tion should be made be­tween the guid­ing prin­ci­ples and the ex­pected ac­tion plan on the one hand and cor­po­rate so­cial re­spon­si­bil­i­ties (CSRs) on the other. While there are over­lap­ping ar­eas, CSRs are largely vol­un­tary mea­sures im­ple­mented by busi­nesses but the for­mer are state-driven and, es­pe­cially for the ac­tion plan, will be manda­tory for state agen­cies.

Re­me­dial ac­tions, the third pillar of the guid­ing prin­ci­ples, are also not gen­er­ally en­com­passed un­der the scope of CSRs. Un­like CSRs, which are tra­di­tion­ally adopted by large cor­po­ra­tions par­tic­u­larly those listed in the stock ex­change, the guid­ing prin­ci­ples and the ac­tion plan cover ev­ery type of busi­nesses from SMEs to state en­ter­prises and listed com­pa­nies.

The es­sen­tial re­quire­ment of the prin­ci­ples is for all busi­ness en­ter­prises to re­spect hu­man rights by do­ing no harm and they can achieve this by iden­ti­fy­ing as­pects of their op­er­a­tion that pose risks of vi­o­la­tion.

In­clu­sive­ness and par­tic­i­pa­tion will be key prin­ci­ples in the work of the NAP Com­mit­tee. In the com­ing months the com­mit­tee will con­duct con­sul­ta­tion with var­i­ous sec­tors and agen­cies in ma­jor re­gions of the coun­try to raise aware­ness on the guid­ing prin­ci­ples and iden­tify na­tional pri­or­i­ties for the first plan. This will be in par­al­lel with the com­mis­sion of a na­tional base­line study of cur­rent is­sues on busi­ness and hu­man rights.

Some chal­lenges in this process have been iden­ti­fied. Ca­pac­ity of en­ter­prises to un­der­take hu­man rights risk man­age­ment and due dili­gence sig­nif­i­cantly varies from one en­ter­prise to the next. Those listed in the stock ex­change are al­ready fa­mil­iar with CSRs and var­i­ous re­port­ing re­quire­ments, while the same can­not be said about their non-listed peers, par­tic­u­larly SMEs and fam­ily-owned busi­nesses. Thus, to en­sure their com­pli­ance and co­op­er­a­tion, em­pha­sis of the first ac­tion plan should be placed on listed com­pa­nies and state en­ter­prises that are un­der di­rect purview of the gov­ern­ment.

En­gage­ment with SMEs at the ini­tial stage should be through ca­pac­ity-build­ing pro­grammes to en­hance their un­der­stand­ing and fa­mil­iari­sa­tion.

For gov­ern­ment agen­cies, apart from strength­en­ing their co­or­di­na­tion and main­stream­ing the guid­ing prin­ci­ples through state en­ter­prises, more in­tel­li­gent and in­no­va­tive use of pro­cure­ment reg­u­la­tions to ap­ply the prin­ci­ples to pri­vate sup­pli­ers and the in­sti­tu­tion­al­i­sa­tion of reme­dies and griev­ance mech­a­nisms will be a lit­mus test of the suc­cess of the ac­tion plan.

Cur­rently, no coun­try in Asean has adopted such an ac­tion plan. Some have em­barked on the draft­ing process. How­ever, the rel­e­vance of the UN guid­ing prin­ci­ples to the Asean Com­mu­nity is un­de­ni­able.

The freer flow of trade and in­trare­gional in­vest­ment, that is a prom­i­nent fea­ture of the sin­gle mar­ket ad­vanced by the Asean Eco­nomic Com­mu­nity (AEC), has in a few cases caused neg­a­tive im­pacts and hu­man rights vi­o­la­tions in des­ti­na­tion coun­tries.

En­vi­ron­men­tal degra­da­tion, forced re­lo­ca­tion of in­dige­nous peo­ples and ex­ploita­tion and dis­crim­i­na­tion of child labour and mi­grant work­ers are just a few no­table hu­man rights in­fringe­ments known to be per­pe­trated by multi­na­tional cor­po­ra­tions.

As an in­vest­ment ex­port­ing coun­try in Asean, Thai­land is show­ing a lead­ing role in re­quir­ing its com­mer­cial en­ter­prises to ad­here to hu­man rights prin­ci­ples when con­duct­ing in­vest­ment abroad.

The Asean In­ter­gov­ern­men­tal Com­mis­sion on Hu­man Rights (AICHR) has paved the way on CSRs and their link­ages with hu­man rights. This is merely the be­gin­ning since, as noted above, CSRs con­sti­tute only one com­po­nent of the guid­ing prin­ci­ples and pro­lif­er­a­tion of na­tional ac­tion plans will not be ca­pa­ble of tack­ling is­sues of in­trin­si­cally re­gional na­ture.

A com­pre­hen­sive Asean strat­egy or plan on the mit­i­ga­tion and preven­tion of busi­ness-re­lated risks on hu­man rights that have been spurred by the AEC’s eco­nomic in­te­gra­tion agenda will con­trib­ute to the global Sus­tain­able De­vel­op­ment Goals and Asean’s own vi­sion that puts peo­ple at the heart of de­vel­op­ment.

Seree Nonthasoot, PhD, is rep­re­sen­ta­tive of Thai­land to the AICHR. He also serves as the ad­viser to the NAP Com­mit­tee set up by the Min­istry of Jus­tice.

PATIPAT JANTHONG

A worker cleans a con­struc­tion site at a shop­ping cen­tre in Non­thaburi. Thai­land is draft­ing a na­tional ac­tion plan to en­sure its com­mer­cial en­ter­prises ad­here to hu­man rights prin­ci­ples and pre­vent rights in­fringe­ments.

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