Geneva 4th &5th: Business and Human Rights – Can These Two Partners Dance?

Penny Collenette

The tragic fire in the Bangladeshi factory recently sent shivers down the spines of those who research and work in the area of Business and Human Rights, an area that reaches far beyond the limits of CSR (corporate social responsibility).

At a two day conference beginning on December 4^th in Geneva, nearly 1000 corporate and NGO leaders, lawyers, academics and politicians, will gather to discuss ways in which the two sectors of business and human rights can partner together to avoid human rights abuses and violations.

The date will mark one year since the UN’s Guiding Principles ( GPs) on Business and Human Rights official launch, which followed a lengthy six year consultation period lead by global governance guru, Dr. John Ruggie from the Kennedy School of Government

Originally tasked by then UN Secretary General Kofi Annan in 2000 to flesh out increased global corporate citizenship by way of voluntary compliance with 10 environmental, human rights, labour and anti-corruption principles of the Global Compact ( 77 of the nearly 7,000 business partners are Canadian), Dr. Ruggie was later asked to create a framework, increasing the reach of responsible corporate behaviour by devising an active dialogue with human rights activists and NGO’s. Not an easy task but he was not alone. Others were also pondering the challenge.

In 2011, an article published for the Carnegie Council for Ethics and International Affairs entitled “Minding the Gap: Global Finance and Human Rights” by Mary Dowell Jones and David Kinley focused on the financial crisis. They suggested that human rights can be affected at the macro level by complex financial processes and activities that are not readily amenable to existing methodologies in the finance-human rights sphere. Therefore, a new way of thinking was needed to:

address this gap to include a greater focus on the real impact that international finance has on the lives of real people – and on their capacity to enjoy their human rights, which are enshrined in international law and national constitutions.

Legally, Canadians were also given a strong nudge by former Supreme Court Justice Mr Ian Binnie:

Commerce cannot truly flow freely between nations when nations censor and suppress their citizens. Corporations sometimes find themselves in situations, where they enable, exacerbate or facilitate human rights abuses by foreign nations whose law (or lack thereof) . . . create situations that often leave citizens caught in the middle. What are the legal remedies for human rights abuses by corporations?
(“Legal Redress for Corporate Participation in International Human Rights Abuses“)

The answer to remedies remains elusive. Is domestic legislation with an extra territoriality component “the magic potion” as suggested by Nadia Bernaz in a recent issue of Business Ethics? Would a reverse onus on corporations to show their lack of culpability, level the playing field? Should government funding, such as EDC subsidies, be revoked in light of damning situations? Or is mandatory conflict dispute resolution between parties the way forward? Who would enforce the process?

According to the report, the State has a duty to protect human rights, not only by its own actions, but by the actions of any 3rd Party operating within the state, which includes business.

Corporations, in turn have an obligation ( not a duty) to respect rights and as mentioned, there must be adequate remedies for victims of any violation of rights.

And that’s the hard part – finding justice for all players.

Multinationals may often find themselves in the middle of governance challenges when dealing with a corrupt regime or a failed state. How can corporations protect and mitigate themselves as a legal entity? To which standards should they be held when dealing with allegations of human rights violations? Morally and legally, what is expected of companies?

The scope of this discussion is huge. According to Ruggie’s report, there are 80,000 transnationals with 10 times as many subsidiaries. Clearly, one size will not fit all.

Challenges are often legal in nature – piercing the corporate veil, a statute of limitations, conflict of laws, finding a forum in which to be heard – but increasingly public governance issues and lack of robust regulatory oversight are also on the playing field.

The players are varied: lawyers, politicians, civil servants, police, consumers, stakeholders, shareholders and the media ( both traditional and social) are making this area too important to be ignored. And there are pressing issues. The Geneva agenda will focus on access to information, indigenous people, privatization and conflict zones.

But if the global picture is framed, Canada’s role in this discussion is not.

When, Bill C-300 was introduced two years ago by Liberal MP John McKay in the House of Commons (legislation which would have required heightened transparency for mining companies) it was met with furious opposition and was defeated by six votes. NDP MP and Natural Resources Critic Peter Julian is considering a different approach with an enhanced role for the Federal Court and one which would include a list of violations, irrespective of the sector of the business.

The government has tentatively responded to this with a small office known as the CSR counsellor for the extractive industries, whose mandate is one of voluntary conflict resolution between companies and communities. But CSR is as limited. It does not include the challenges of state sovereignty, state immunity, international law or crimes against humanity.

Just recently, Minister Julian Fantino, Minister of International Development announced that CIDA’s programs will be more aligned with the private sector. These steps are designed to improve competitiveness which is a worthy goal, but at what cost? The protection of human rights is not mentioned at all.

There appears to be only one partner on the Canadian dance card. And it’s a business arrangement.