Worried about the Business and Human Rights agenda?
You need to read this interview with the Director of the British Institute for International and Comparative Law, Professor Robert McCorquordale.
Business and Human Rights
Q. The UN’s Guiding Principles on Business and Human Rights is starting to gain traction among the business community and mostly it seems to be falling to CSR professionals to implement Human Rights into corporate policy and practice. What are your Top Tips for us?
- Learn about human rights – all of them.
Human Rights are not just a few civil and political rights found in some democracies. They include rights of access to health care and education as well as rights of association and assembly, individual rights of liberty and privacy as well as collective rights of cultural inclusion, labour rights and women and children’s rights. The Guiding Principles expressly requires business enterprises to respect all human rights and to respect them beyond what may be required within a particular country.
2. Work with your compliance and operations teams.
The responsibility to respect human rights extends beyond the CSR professionals. It is more effective if the compliance teams (e.g. legal, health and safety, reporting) and the operations teams (e.g. local heads of operations, recruitment, and purchase and sales) are included within the understanding of what are good human rights practices. Many good policies are undermined by divergent practices far from head office and operations can be held up for significant periods if, for example, the local community considers its human rights are being harmed or it is not being appropriately consulted by the business. These teams should be included and not seen as obstacles in the conduct of human rights due diligence, as such due diligence is required by the Guiding Principles.
3. Accept that CSR and Human Rights are not the same thing.
CSR is important in terms of the engagement by business with society, and its reputation and its sustainability – all of which are valuable attributes. Yet human rights are about upholding the human dignity of those affected by the business operation, especially of the vulnerable and less powerful, and are not about good works or charity by a business. For example, a CSR policy may be to reduce environmental pollution as it reduces operating costs and is seen as good for the reputation of the business in society, while a human rights policy starts with the potential harm to those affected by the business activities and responds to that, even if it is more costly. Provision of money and goods, or listening only to consumer pressure, are rarely enough to uphold human dignity in many locations. Human rights impact assessments and real consultations and are the best ways to do this.
Of course, leading CSR professionals should appreciate that minimising harm to communities is part of their approach to CSR, and so the differences might be less pronounced.
It is often more effective to use terminology other than human rights. Depending on the context, other terminology can be used, such as dignity, respect, protection, consultation, social justice, access to justice. For example, in my work in Sudan I discussed some human rights issues in health and safety terms, some in labour terms and some in community engagement terms, as well as explaining that not discriminating against people can help productivity.
It is interesting that all the current government legal regulation is not in human rights terms, e.g. anti-bribery, trafficking, gender and pay, etc.
5. Have a set of Resources available.
A very useful resource that sets out what are human rights in a business context with useful case examples is Human Rights Translated. The Business and Human Rights Resource Centre is an excellent location for materials and up-to-date information.
6. Appoint a Human Rights Champion
In addition, I suggest that each company appoints a person with specific responsibility for human rights. This does not need to be someone new, as it can be someone who is already dealing with many of these matters. It could be the CSR professional. It should be someone senior enough to ensure that the policies are crafted and there needs to be a direct responsibility with persons in operational and compliance activity. Their responsibilities must expressly include human rights. In many instances, this will not involve changing their activities, just considering them in human rights terms. It also needs some external verification, and an advisory group could be used for this purpose initially.
Q. In many ways you tread the boundary of international law and business customs and behaviour. What does thefuture of the Human Rights agenda look like?
I think that the future will see increased reporting regulatory requirements on business introduced by more and more states. These have begun with anti-corruption and will extend soon to trafficking, conflict zones, gender and pay, labour relations, etc. Few of these will be expressed in human rights terminology but they will have a strong human rights impact. Gradually these regulatory requirements will also be put in place by non-Western governments.
I also see increased trade association standard-setting in relation to human rights. Peer pressure can be very strong as an incentive.
Q. The UN General Principles aren’t backed by the force of hard international law, which is presumably a blessing and a curse. What are the chances that they will become the basis of hard law that applies to companies?
The first pillar (about state duty to protect human rights) and part of the third pillar (about state obligations about remedies) is already hard international law. The compliance is poor, even if there are supervisory bodies criticising the lack of compliance, but the law is there. It will take some time in relation to the second pillar (about a corporate responsibility to respect human rights) and part of the third pillar (corporate grievance mechanisms) but I think that it will come in time through national regulation and some international agreements (as happened with anti-bribery), as well as trade association pressures.
Q. Have you seen any good examples of application of the UNGPs in companies?
It is very early stages, so it is hard to judge yet. I am pleased that Nestlé has appointed someone with a specific human rights remit, as I think that helps. The extractives sector seems to be leading on this agenda, but I am concerned that most of the engagement on this issue has been by the large multinationals, when it is vital that the small and medium size business are also involved.
Q. How can CSR professionals sell the concept of Human Rights into business?
Many CSR professionals are very good at doing this but it will only work if they have taken the initial steps suggested earlier, and if they make clear that their human rights responsibilities are in addition to – and not just part of – their CSR responsibilities.
Q. CSR is dominated by soft law initiatives and identification of non-legal risks. What can the Human Rights community learn from CSR ?
CSR professionals have generally been very effective in ensuring that companies, at all levels, understand that business is not just about profit but also about having a social responsibility. This is a huge step towards understanding that there is a human rights responsibility by business (although it is not the same as CSR).
CSR professionals have also been very good at persuading many businesses to include policies and practices, such as on the environment, which can be costly but are good for reputation, and that there are business risks that are not solely in financial terms. In so doing, they have used peer self-regulation, best practices and similar approaches to improve the situation in many companies. They are therefore used to many of the issues that arise with human rights.
However, few CSR professionals will be used to the specific requirements – such as human rights due diligence – that is required by the UN Guiding Principles.
Q. What is the business case for Human Rights within companies?
It is still very early on that aspect, but a good starting point is to read the introduction to the UK government’s national action plan on business and human rights. Companies will need to help build more and more accurate varieties of the business case for specific businesses.
Q. What do you hope BIICL can achieve in 2015?
We have a range of activities in this area at the moment (in addition to our many other international law activities). For example, we are currently working with international law firm, Norton Rose Fulbright, to understand how human rights due diligence is operating in companies, with the aim of clarifying what is required and suggesting some good practice. It would be great if we could get input from CSR professionals who had expertise in this area. If you want to assist in this research you can register here until 30 April 2015.
We are also working with the UK government in undertaking a survey of the remedies available in the UK for victims of human rights abuses by corporations and assisting some governments with their National Action Plans on business and human rights.
Professor Robert McCorquodale is the Director of the British Institute of International and Comparative Law in London. He is also Professor of International Law and Human Rights, and former Head of the School of Law, at the University of Nottingham, and a barrister at Brick Court Chambers in London. Previously he was a Fellow and Lecturer in Law at St. John’s College, University of Cambridge and at the Australian National University in Canberra. Before embarking on an academic career, he worked as a solicitor in commercial litigation with King & Wood Mallesons in Sydney and Herbert Smith Freehills in London.
Robert’s research and teaching interests are in the areas of public international law and human rights law, including the role of non-state actors and business and human rights issues. He has published widely on these areas. He has provided advice and training to governments, corporations, international organisations, non-governmental organisations and peoples concerning international law and human rights issues.
He first became involved in business and human rights in the early 1990s when giving seminars to BP senior executives on human rights risk. Since then, he has been involved in many activities and advices for a range of bodies about business and human rights, as he is well-placed to assist because he is not an activist or seeking commercial or political gain. This has included assisting governments with National Action Plans, giving seminars and training for global companies and law firms, assisting NGOs, providing legal advice, and even working with young entrepreneurs in Sudan. He has written extensively on this area, including as a co-author of The Third Pillar: Access to Judicial Remedies for Human Rights Violations by Transnational Corporations.