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Legal accountability of non-State actors for human rights violations

Legal accountability of non-State actors for human rights violations

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Legal accountability of non-State actors for human rights violations abroad: Developments in Geneva


Legal accountability of non-State actors for  human rights violations abroad: Developments during March 2014 in Geneva

‘No work, no water, no school, no temple. Just malaria’ is how one Cambodian villager described their situation after some 1,100 families were evicted from their lands to make way for a huge casino in the Botum Sakor National Park.

The Chinese developer, Union Development Group, bulldozed the lands, destroyed the rice fields and set fire to the houses of those who had refused the pitiful compensation amounts offered[1] leaving the affected villagers with nothing.  In the same month we heard of forced relocations in Sierra Leone of hundreds of families from verdant agricultural land causing loss of livelihoods and poverty, carried out by London-based African Minerals Limited and the government.[2] In the vast majority of cases of cross-border human rights abuses by non-State actors, there is no accountability and the victims receive no redress.

In the face of widespread impunity for such human rights abuses NGOs, including the GI-ESCR, victims and States, are calling for non-State actors to be bound by enforceable legal obligations to comply with human rights standards.  This is being pursued from two different angles in the human rights system and both received close attention this month in Geneva.

First, in relation to States, many are calling for recognition of the existing extra-territorial obligations of States under human rights treaties – ie. International law obligations to persons outside a States’ territory.  This is accepted by many States and confirmed by jurisprudence from a number of treaty bodies and the International Court of Justice.[3]  Regarding corporate activities abroad, the extra-territorial obligation to protect obliges States to ensure that businesses incorporated or domiciled within their jurisdiction do not violate human rights abroad.  Furthermore, States have extra-territorial obligations to respect, protect and fulfil human rights abroad including through decisions made as part of inter-governmental organisations including international financial institutions (such as the World Bank and the European Bank for Reconstruction and Development[4]).[5]

Second, there is a strong push for greater accountability of business actors for human rights abuses through a binding international legal instrument (a treaty) and increasing frustration with the slow pace of implementation and unenforceability of the UN Guiding Principles on Business and Human Rights.

At the Human Rights Council and the Human Rights Committee these issues were under discussion this month and they are likely to continue to create much interest and excitement in the months leading up to the June session of the Council when the mandate of the Working Group on business and human rights is due to be renewed and as the issue of extra-territoriality is brought before several treaty bodies.

Extra-territorial obligations

The Human Rights Committee during its review of the US this month again challenged the US to abandon its legally flawed position of denying the extra-territorial application of the ICCPR.  The US delegation maintained its position that the treaty (Article 2.1) should be interpreted to mean that States have obligations only in respect of persons within its jurisdiction AND territory and that the drafting history of the treaty supported that view.  The US is particularly sensitive because of the implications for its Guantanamo Bay prison and recent controversies over its NSA cross-border telecommunications surveillance program.  A New York Times article[6] which discussed a leaked legal memo from a former senior US State Department lawyer advising against the US position enlivened the issue giving the Committee further ammunition.

Mr Kaelin[7] challenged the US asking: whether the delegation recognised that its position on extraterritoriality allowed it to commit violations everywhere except in its own territory?; and whether it agreed that the non-applicability of the Covenant to extraterritorial activities was a dangerous position to take as it leads to impunity for rights violations? [8] The Committee’s conclusions[9] which came out today reiterated its ‘regret’ at the US’s position and called on the US to ‘interpret the Covenant in good faith’ and ‘acknowledge [its] extra-territorial application’.

The Human Rights Committee has already issued concluding observations on the issue of home State regulation of transnational corporations in the context of a German company operating a coffee plantation in Uganda which was implicated in the violent forced eviction of 2,000 villagers and the destruction of their homes and property.[10] Just recently the ICESCR Committee also affirmed extra-territorial obligations in its conclusions on Norway which urged it to ensure that investments in foreign companies operating in third countries made by the Norway Government pension fund are subject to a comprehensive human rights impact assessment and to adopt measures to prevent human rights contraventions abroad by corporations which are domiciled in Norway.  In relation to Austria the Committee called upon the State to adopt a human rights-based approach to its policies on official development assistance and on agriculture and trade, through human rights impact assessments, including ensuring that there is an accessible complaint mechanism for victims in receiving countries.[11]

Push for a treaty on transnational corporations

In the same week, Ecuador and South Africa hosted a side event at the Council to discuss the idea of a binding treaty on transnational corporations.  There was a lot of interest from both States and NGOs.  Those hoping for some detail as to the content or coverage of a treaty and its possible enforcement mechanism were disappointed as the event aimed more at scoping political support.  States’ positions generally lined up along Global South / North divisions with Ethiopia, Cuba and Bolivia voicing their support for a TNCs treaty, and Ireland and the European Union urging States to give the Guiding Principles more time to be implemented and to work to improve the functioning of the Working Group on business and human rights.  The latter States drew attention to current efforts to implement the Guiding Principles, such as National Action Plans and the EU Initiative on conflict minerals and cautioned against diverting attention and efforts towards a treaty at the expense of implementation of the GPs.  The EU representative urged States to ‘cherish what we have’ in the GPs pointing out the long and difficult history in achieving consensus on the GPs resolution.

Cautions also came from Dr Michael Addo on behalf of the Working Group and Mr John Knox, Special Rapporteur on the Environment, that a treaty might not be the silver bullet that some are suggesting A similar position was taken by Professor John Ruggie[12] is his recent Issues Brief.[13]  They point to the long negotiation period for any new treaty, a number of previous failed attempts to agree binding principles in this area[14] and the question of whether the most pertinent host States (eg: the US, Canada, the UK and European States) are likely to ratify a TNCs treaty in any event.  Mr Addo gave a strong defence of the Working Group’s work and the GPs.  Mr Knox rightly identified the key problem as enforcement and access to remedies.  He suggested, in a similar vein to Ruggie, a more focused, and therefore achievable, treaty exercise which did not attempt to be all encompassing but focused on finding solutions to a part of the problem.

In the meantime, Norway is busy consulting with States and NGOs to see what support it has for its June resolution and to what extent this push for a TNCs treaty might undermine its aim for a consensus resolution on the business and human rights mandate.

Hopefully the two processes are not construed as mutually exclusive and can advance side by side.  A treaty is a very important long-term goal, whereas the Guiding Principles are currently operational and amendable to further work on improving and strengthening their content. Strengthening the Guiding Principles, including having them incorporate the recognized extra-territorial obligations of States to protect rights abroad, could prove to be particularly critical if, as is plausible, an inter-governmental treaty process takes the Guiding Principles as its normative starting point or baseline.

The recently released OHCHR commissioned report on ‘Corporate liability for gross human rights abuses: Towards a fairer and more effective system of domestic law remedies’[15] also weighs into the debate.  The report pursues the Ruggie suggestion of focusing on ‘gross human rights violations’ and will be critiqued for this narrowing.  Further, whilst the report ‘does not make any case for extraterritorial solutions over local solutions (or vice versa)’[16] it is sceptical, finding:

First it is not yet clear that, in relation to business and human rights, close convergence of legal standards and procedures is a desirable, let alone feasible, project.  Second, there would be immense implementation difficulties associated with a treaty aimed at addressing the full range of gross human rights abuses, and all the contexts and circumstances in which they potentially arise.  Finally, such a solution is unlikely to overcome many of the most serious barriers to remedy....[17]

The Report identifies extraterritoriality issues as a barrier to access to remedy[18] however it points out the legally flawed suggestion in the Guiding Principles that States do not have treaty obligations to regulate the extra-territorial activities of businesses domiciled in its territory.[19]  Therefore an important part of the work to strengthen the Guiding Principles will be to update date them on developments on extra-territoriality emanating from the treaty bodies and the International Court of Justice and usefully restated in the Maastricht Principles on Extra-territorial Obligations.

Watch this space as the Committee on Economic Social and Cultural Rights considers the same questions in relation to China (and others) and expect the US to increasingly be an outlier on the issue of extra-territoriality.  Watch this space also as the question of a TNCs treaty shapes up as a South/ North tussle leading up to the June Council session.  Expect a lot more effort and focus on National Action Plans by countries of the Global North and some diplomatic manoeuvring by Norway to include language in its resolution that might satisfy some States who support moves towards a TNCs treaty.  Let’s hope that a dual track approach can be maintained, recognising the valuable work on the long-term goal of a binding international treaty on business and human rights, and on the medium-term goal of updating and strengthening the Guiding Principles and the role of the Working Group.

 

27 March 2014

Lucy McKernan UN Liaison – Geneva Global Initiative on Economic, Social and Cultural Rights

 

 

[1] ‘Cambodian Villagers Land Bulldozed for UDG Casino Complex’, CorpWatch Blog, 14 March 2014, available at www.corpwatch.org/article.php?id=15936

[2] ‘Whose Development? Human Rights Abuses in Sierra Leone’s Mining Boom’ Human Rights Watch, February 2014, available at www.hrw.org/reports/2014/02/19/whose-development-0

[3] See, e.g.,, International Court of Justice, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004) at para. 109; Maastricht Principles on Extra-Territorial Obligations of States in the area of Economic, Social and Cultural Rights (adopted 28 September 2011).

[4] See joint NGO Statement about the disappointing backwards step on human rights protections and due diligence in its Draft Environment and Social Policy, available at http://www.hrw.org/sites/default/files/related_material/140304_EBRDStatement.pdf

[5] See our work on the World Bank’s complicity in human rights abuses associated with the Chioxy Dam project by way of example: http://globalinitiative-escr.org/chixoy-dam/

[6] Savage, C. ‘US seems unlikely to accept that rights treaty applies to its actions abroad’, New York Times, 6 March 2014, see http://www.nytimes.com/2014/03/07/world/us-seems-unlikely-to-accept-that-rights-treaty-applies-to-its-actions-abroad.html?_r=0

[7] Committee member from Switzerland

[8] These are not direct quotes but from my notes when observing the dialogue with the US.  For an unofficial summary of the dialogue prepared by OHCHR see: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=14383&LangID=E

[9] See http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCCPR%2fCOC%2fUSA%2f16838&Lang=en

[10] See http://globalinitiative-escr.org/wp-content/uploads/2012/11/ICCPR-Con-Obs-Germany-2012.pdf

[11] See here http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fAUT%2fCO%2f4&Lang=en

[12] Former UN Special Representative on Business and Human Rights

[13] Ruggie, J.G., ‘A UN Business and Human Rights Treaty? An Issues Brief by John G. Ruggie’, 28 January 2014, available at http://www.hks.harvard.edu/m-rcbg/CSRI/UNBusinessandHumanRightsTreaty.pdf

[14] including the ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ considered (2004) but never approved by the UN Commission on Human Rights.

[15] Zerk, J. ‘Corporate liability for gross human rights abuses: Towards a fairer and more effective system of domestic law remedies’, report prepared for the Office of the UN High Commissioner for Human Rights, available at http://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/StudyDomesticeLawRemedies.pdf

[16] Ibid. p 114

[17] Ibid. p 10

[18] Ibid. p 68

[19] Ibid. p 55

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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.