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Fertile ground for corporate accountability advocates

Fertile ground for corporate accountability advocates

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Fertile ground for corporate accountability advocates: CRC General Comment on business and children’s rights

 

Address to UN Forum on Business and Human Rights related to recent article published by International Service for Human Rights:

http://www.ishr.ch/news/fertile-ground-corporate-accountability-advocates-crc-general-comment-business-and-childrens

By Lucy McKernan, Global Initiative on Economic, Social and Cultural Rights

In the build up to the third UN Forum on Business and Human Rights, ISHR will publish a series of articles by key human rights defenders and experts in this field, before launching a special edition of its Human Rights Monitor on 1 December, in both English and Spanish. Click here to join our Spanish language mailing list.

 
 

Lucy McKernan addressed the UN Forum on Business and Human Rights on 2 December 2014

For human rights defenders working on children’s rights or corporate accountability issues, the General Comment[1] on business and children’s rights[2] by the Committee on the Rights of the Child (CRC) has a lot to offer. It provides a detailed and progressive explanation of State obligations with respect to business impacts on children’s rights, offering fertile ground for human rights advocates to engage with the Committee and with States on rights abuses involving business.

The focus of the General Comment is on State obligations under the Convention on the Rights of the Child, with respect to impacts on human rights by business operators and activities within its territory and business activities outside its territory but undertaken by its domiciled business entities.

The Committee takes a comprehensive approach such that it covers a very wide variety of actors, situations and issues and importantly prescribes in detail what States should do to ensure direct domestic legal accountability for business human rights abuses. For instance, in recognition of the role played by international organizations (eg: World Bank, IMF, WTO) in rights abuses and impacts and the intertwining of international organizations and business in large scale development projects, the General Comment addresses international organisations. States are reminded that they must comply with their Convention obligations when acting as members of such organizations and in the field of development cooperation,[3] including ‘in their decision-making and operations, as well as when entering into agreements or establishing guidelines relevant to the business sector.’

International organizations ‘should put in place procedures and mechanisms to identify, address and remedy violations ….. including when they are committed by or result from the activities of businesses linked to or funded by them.’[4] This is significant since, despite a number of treaty bodies insisting on State obligations extending to the context of international organisations, many States and international organizations continue to deny the direct applicability of human rights obligations in this context. This was evidenced recently in the rolling back of rights protections in the World Bank’s draft social and environmental safeguards policies.[5]

The General Comment’s broad and comprehensive approach also means that the door is open for issues not solely about children to be brought before the Committee. For instance, the General Comment talks about land dispossession (impacting whole communities, including children) involving business actors,

[6]

IMF loan conditionality,

[7]

privatization of public services,

[8]

the working conditions of and job creation and skills training for parents,

[9]

taxation of corporations and anti-bribery measures to ensure that States have the maximum available resources to realize children’s rights,

[10]

and regulation of pharmaceutical industry and of intellectual property rights to ensure access to medicines.

[11]

By way of example, GIESCR and its partner NGOs recently highlighted the issue of the impact of privatization in education on children’s right to education in Morocco

[12]

and Ghana,

[13]

using General Comment 16 to support our arguments that States have an obligation to ensure that privatization in education does not lead to extreme inequalities. The Committee questioned Morocco about this during its review and followed up with strong Concluding Observations condemning the impact of privatization in education on children’s right to education.

[14]

Another important issue addressed by this General Comment which presents advocacy opportunities, is extra-territorial obligations (ETOs).[15] The extra-territorial reach of human rights treaty obligations is contested by many States, despite the growing body of treaty body jurisprudence[16] affirming such obligations. Yet for many victims of rights violations involving business, international human rights protections will remain meaningless unless they operate across borders. In recognition of the difficulties of achieving corporate accountability due to complex legal structures and cross-border nature of business, the Committee has detailed the distinct obligations of both home[17] and host[18] States with respect to children’s rights.

For instance, contrary to current home State practice of reducing opportunities for foreign victims to bring claims in their domestic Courts, General Comment 16 says home States must enable access to effective remedy for foreign victims of human rights violations by business ‘where there is a reasonable link between the State and the conduct concerned.’[19]Another expansive interpretation of ETOs is the requirement that States ensure export credit agencies ‘take steps to identify, prevent and mitigate any adverse impacts the projects they support might have on children’s rights before offering support to businesses operating abroad.’[20]

These issues were addressed in the CRC’s review of Australia. The Committee expressed concern about:

Australian mining companies´ participation and complicity in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji, where children have been victims of evictions, land dispossession and killings.  …. about reports of child labour and conditions of work of children that are in contravention of international standards in fishing industry enterprises operated by Australian enterprises in Thailand. [21]

The Committee recommended that Australia:

Examine and adapt its legislative framework ... to ensure the legal accountability of Australian companies and their subsidiaries regarding abuses to human rights, especially child rights, committed in the territory of the State party or overseas and establish monitoring mechanisms, investigation, and redress of such abuses.;

and

establish the mechanisms for the Export Credit Agency of Australia to deal with the risk of abuses to human rights before it provides insurance or guarantees to facilitate investments broad.[22]

There are numerous other useful provisions in General Comment 16 which offer broad advocacy avenues and our experience is that the Committee is receptive to new issues and creative advocacy which highlights serious children’s rights issues involving non-State actors.

Lucy McKernan is UN Liaison with the Global Initiative on Economic, Social and Cultural Rights.  Follow her on Twitter at @LucMcK and the Global Initiative at @GIESCR

[1]

A General Comment (also called General Recommendation by some Committees) is a treaty body's interpretation of the content of Convention articles or on thematic issues or its methods of work. General Comments often seek to clarify the reporting duties of State Parties with respect to certain provisions and suggest approaches to implementing treaty provisions.

[2]

Committee on the Rights of the Child, General Comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, UN Doc CRC/C/GC/16.

[3]

Op cit.

Para 47

[4]

Op cit.

para 48

[5]

See for example:

http://www.bicusa.org/safeguards-reaction-roundup/

;

http://www.hrw.org/news/2014/10/10/world-bank-group-proposed-policy-setb...

[6]

Para 38

[7]

Para 47

[8]

Para 33, 34

[9]

Para 36

[10]

Para 55

[11]

Op cit.

CRC General Comment 16, Para 57

[12]

See 

http://globalinitiative-escr.org/advocacy/privatization-in-education-res...

[13]

See

http://globalinitiative-escr.org/the-un-asks-ghana-to-explain-itself-on-...

[14]

See

http://globalinitiative-escr.org/the-un-denounces-the-fast-paced-and-unr...

[15]

This refers to the issue of whether States’ human rights treaty obligations extend to persons or activities occurring outside its territorial boundaries.  See General Comment 16, para 39 and 42 – 46.

[16]

See for example ‘A Practitioner’s Guide to Interpreting Human Rights Obligations in a Global Economy’, ESCR-Net, available here

http://www.etoconsortium.org/nc/en/library/documents/detail/?tx_drblob_p...

[17]

The home State is the State where a corporation, or its parent company, is registered or domiciled. It is usually where the corporation is head-quartered.

[18]

The host State is the State where a corporation is undertaking activities or operations, usually through a subsidiary company that is registered in the home State.  Usually key decision-making is undertaken by the parent company in the home State and profits are remitted to the parent company in the home State.

[19]

Para 44

[20]

Para 45(c)

[21]

UN Committee on the Rights of the Child (CRC), Consideration of reports submitted by States parties under article 44 of the Convention: Concluding observations: Australia, 28 August 2012, CRC/C/AUS/CO/4, para 27.

[22]

Para 28 (a) & (c)

- See more at: http://www.ishr.ch/news/fertile-ground-corporate-accountability-advocates-crc-general-comment-business-and-childrens#sthash.FIIhG03w.dpuf

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Climate and Environmental Justice

We have advanced rights-based and gender-transformative transition frameworks through research that centres the lived experiences of women and marginalised communities on the frontlines of extractive energy policies, promoting climate and energy frameworks attentive to the social and care-related impacts of transition pathways. We have developed a clear vision for a gender-just transition, firmly rooted in gender and human rights norms, establishing both the legal basis and the direction for the transformative changes our planet and societies urgently need. In particular, the ‘Guiding Principles for Gender Equality and Human Rights in the Energy Transition’, a collective effort built through online consultations, an in-person workshop and multiple rounds of revision with activists, practitioners and experts from around the world, outline a transformative vision for reshaping global energy systems through a human rights and gender equality lens.

Our work recognises that the climate emergency is both an existential threat and an opportunity to reimagine societies built on social, gender, economic and environmental justice. We ground our advocacy in feminist and intersectional principles, prioritising the agency and perspectives of communities in the Global South who have contributed the least to the climate emergency yet face its most devastating consequences. Central to our approach is the understanding that energy is not merely a commodity but a fundamental human right; essential for dignity, health, education, work and the realisation of countless other rights. We challenge approaches to the energy transition that risk replicating the harmful patterns of fossil fuel extraction and, instead, advocate for transformative policies that ensure human rights and gender equality as central to building climate-resilient societies rooted in dignity, justice and planetary well-being.

What's next?

We will continue to challenge approaches that treat energy transition as merely a technical shift, instead positioning it as an opportunity to reimagine economies and societies rooted in dignity for all, with particular attention to communities in the Global South who have contributed least to the climate emergency yet are most exposed to its worst effects.

We will connect community-level evidence and the lived experiences of those on the frontlines of extractive policies to national reform and global norm-setting, breaking down silos between human rights, gender, and climate movements, and advancing a shared vision that recognises just transitions as not only fundamental to achieving climate-resilient and sustainable societies, but as transformative pathways that advance social and gender equality, redistribute power and resources equitably, and ensure that energy systems serve the public good rather than profit.

We will mainstream rights-based and genderjust transition priorities in key multilateral spaces (particularly, within the Just Transition Work Programme and the to-be-developed Just Transition Mechanism, within the UNFCCC) to guarantee that just transitions are advanced at all levels.

We will also translate our work, through strategic advocacy, into at least two concrete policy wins, whether promoted, adopted, implemented, or scaled, in priority countries (Argentina, Brazil, Chile, Mexico, Colombia, South Africa, or Kenya), ensuring these policies align with human rights standards, centre gender equality, and reflect the needs and views of affected communities.

We will build momentum for the progressive recognition of the right to sustainable energy to shift dominant narratives away from purely extractive solutions that sideline gendered impacts, community participation, and Global South perspectives.

Economic Justice and Climate Finance

Our work has transformed the global discussion on fiscal policy in a more just, emancipatory and sustainable direction. Our approach has combined both high-level, expert contributions within decisionmaking circles, with bold, impactful work on narrative change with the general public.

We have been instrumental in the inclusion of human rights as a guiding principle of the future United Nations Framework Convention on International Tax Cooperation, a multilateral instrument with the potential of raising approx. USD 492 billion per year in public revenues currently foregone to global tax abuse. In the process leading to the ‘Compromiso de Sevilla’ decided at FfD4, we proposed and succeeded in creating a specific human rights workstream within the Civil Society Financing for Development Mechanism, which was critical to ensure that explicit commitments on the matter were included in the negotiating outcome. In a context of cutbacks in multilateral institutions, we have amplified the capacities of technical experts, providing rigorous technical support and leveraging our influence to ensure the enactments of groundbreaking standard-setting instruments, such as the 2025 UN Committee on Economic, Social and Cultural Rights Statement on Fiscal Policy and Human Rights, and the first ex oficio hearing on the Inter-American Commission of Human Rights on Fiscal and Economic Policies to Address Poverty and Structural Inequality, leading to an upcoming thematic resolution on the matter. We have also bridged the silos between multilateral tax discussions and climate finance debates, promoting ambitious financing commitments to increase international and domestic resource mobilisation during COP 28, 29 and 30.

At the regional level, our engagement with fiscal cooperation platforms such as the Platform for Fiscal Cooperation of Latin America and the Caribbean (PTLAC), where we are member of its Civil Society Consultative Council, and the African Anti-IFFs Policy Tracker, for which we participated in the pilot mission in Ivory Coast together with Tax Justice Network Africa (TJNA), have been critical in cementing a growing engagement between tax administrations and ministries of finance with international legal experts, exploring actionable and transformative initiatives, such as the taxation of high-net-worth individuals, beneficial ownership registries and corporate countryby-country reports, to be implemented at the international level.

At the local level, our interventions in fiscal reform debates in Chile, Brazil, Colombia and Nigeria have contributed to shaping legislative outcomes in a more progressive, rights-compliant direction.

As for our leadership in narrative change, we have a measurable track record in delivering tailored, innovative campaigns which have decisively expanded economic justice constituencies by appealing to a broader tent. In Latin America and the Caribbean, we created the ‘Date Cuenta’ campaign, coordinating over 40 organisations across civil society to deliver plain language, innovative messaging connecting progressive fiscal reforms to the financing of health, education and social protection. ‘Date Cuenta’ generated over 55 original campaign messages that were tailored to the realities of seven priority countries (Argentina, Chile, Colombia, Mexico, Paraguay, Peru and Honduras) and disseminated in Spanish, Portuguese and English. In doing so, we convened more than 65 online co-creation workshops with partners, coordinating a unified communications strategy which combined digital outreach, press and media coverage, and collaboration with influencers. Ultimately, ‘Date Cuenta’ resulted in more than 60,000 interactions on social media, coverage in major regional and international media outlets, including El País, Deutsche Welle, Bloomberg and France 24, and the participation of at least 63 social media influencers through 58 dedicated publications. In collaboration with Fundación Gabo and the Friedrich Ebert Stiftung, we also organised a two-day workshop in Bogota with 20 journalists from 13 countries, building a regional network trained in a human rights-based approach to fiscal policy that has since generated published media coverage on outlets such as La Diaria, Ciper, El Diario Ar and Milenio. Through ‘Date Cuenta’ and our regional advocacy, we strengthened civil society engagement in key processes, including the Financing for Development track and FfD4, co-organised highlevel dialogues with states and civil society from Latin America and Africa.

What's next?

We will shape the UN Tax Convention and its Protocols so they embed human rights principles, and we will stay engaged through follow-up processes (including the expected Conference of the Parties) to support effective implementation. We will keep linking tax and climate finance so that new resources mobilised through fiscal cooperation are channelled to adaptation, mitigation, and loss and damage, in line with UNFCCC commitments.

Public Services for Care Societies

We have translated participatory research into accountability and policy outcomes.

In Ivory Coast, our work with Mouvement Ivoirien des Droits Humains and affected communities since 2023 exposed how privatisation and lack of accountability restrict access to quality healthcare. It contributed to the closure of 1,022 illegal private health centres, an executive instrument strengthening the regulation of private hospitals across the country, and the creation of a permanent complaints management committee in healthcare through a bylaw issued by the prefect of Gagnoa. Partners engaged through this process also advanced concrete improvements at facility level: members of the Gagnoa Midwives Association who took part in the participatory action research pooled resources to renovate the neonatal unit of the Regional Hospital, and the Director of the Gagnoa General Hospital launched an action plan to expand services and improve patient reception, with the facility receiving the award for best hospital in the country in 2025.

In Kenya, our research with the Mathare Education Taskforce documented the absence of public schools and the expansion of private provision, evidencing impacts on households and caregivers and strengthening demands for free, quality public education. This work contributed to stronger community agency and collective organisation, alongside ongoing strategies ranging from communications to litigation to secure a public school in the area, some involving GI-ESCR and others led independently.

Across Africa, this work is complemented by a multi-country study examining the human rights implications of austerity in education and health, including how regressive fiscal policies, rising debt burdens and persistent underinvestment undermine the financing and delivery of public services.

In Latin America, from 29 November to 2 December 2021, over a thousand representatives from over one hundred countries, from grassroots movements, advocacy, human rights, and development organisations, feminist movements, trade unions, and other civil society organisations, met in Santiago, Chile, and virtually, to discuss the critical role of public services for our future. Following the meeting, the Santiago Declaration on Public Services was adopted to demand universal access to quality, gender-transformative and equitable public services as the foundation of a fair and just society.

We are currently advancing work on care systems, linking public services and fiscal justice through integrated research, advocacy and communications, including a regional campaign framing care as a collective responsibility requiring sustained public investment.

What's next?

In Ivory Coast, we will evaluate and strengthen the complaints management committee and position it as a replicable model for other health facilities. In Kenya, we will support the Mathare community to co-design a model public school for Mabatini and Ngei wards, grounded in human rights standards. Building on our multi-country austerity study, we will drive national advocacy on financing for education and health: advancing reforms in Ghana; launching a fiscal policy and public services financing agenda in Kenya through the CESCR process and targeted coalition work; and, in Nigeria, using the new tax acts in force since 1 January 2026 to catalyse a national accountability campaign for adequately funded, quality public services. In Latin America, we will amplify locally led care pilots across 8 countries and turn lessons into influence—advancing care policies that strengthen care organisations, protect care workers’ rights, support unpaid caregivers, include disability and family networks, and redistribute care more equitably.