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 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. 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. 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).
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.
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 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 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?  The Committee’s conclusions 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. 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.
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 is his recent Issues Brief. They point to the long negotiation period for any new treaty, a number of previous failed attempts to agree binding principles in this area 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’ 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)’ 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....
The Report identifies extraterritoriality issues as a barrier to access to remedy 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. 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
 ‘Cambodian Villagers Land Bulldozed for UDG Casino Complex’, CorpWatch Blog, 14 March 2014, available at www.corpwatch.org/article.php?id=15936
 ‘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
 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).
 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
 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/
 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
 Committee member from Switzerland
 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
 See http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=INT%2fCCPR%2fCOC%2fUSA%2f16838&Lang=en
 See http://globalinitiative-escr.org/wp-content/uploads/2012/11/ICCPR-Con-Obs-Germany-2012.pdf
 See here http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fAUT%2fCO%2f4&Lang=en
 Former UN Special Representative on Business and Human Rights
 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
 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.
 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
 Ibid. p 114
 Ibid. p 10
 Ibid. p 68
 Ibid. p 55