Opportunities to enforce corporate accountability: enforcing extra-territorial obligations
Originally published by the International Service for Human Rights
Geneva – By Bret Thiele, Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights, which undertakes advocacy in the area of extra-territorial human rights obligations.
Corporations and other business enterprises have a substantial impact on the world in which we live, including on human rights. According to the World Bank, in 2012, 63 per cent of the 175 largest global economic entities were corporations, and corporate activities have impact on human rights around the globe. Consequently, human rights defenders have increasingly focused on developing tactics, strategies and mechanisms to hold corporate actors accountable to human rights obligations.
This advocacy has resulted in the human rights framework addressing this reality, including with two key initiatives. The first is the Guiding Principles on Business and Human Rights framework. The second is the move to a legally binding human rights treaty on corporate actors, an initiative which has emerged from strong civil society engagement. Both show various degrees of promise, but both also have drawbacks. The Guiding Principles are unfortunately crafted more as a corporate social responsibility framework rather than corporate accountability framework, as they are voluntary in nature, and they don’t apply the current comprehensive body of international law to corporate activity. And, while the process towards a legally binding treaty is welcomed and much needed, it will be some time before such a treaty is adopted and enters into force.
Fortunately, there presently is another means of holding corporate actors accountable by using the existing human rights framework, namely by holding States accountable to their respective obligations to protect human rights by directly regulating corporations and providing accountability and remedial mechanisms when those corporations do violate human rights. While the obligation to protect is well entrenched in the context of corporate activities at the domestic level, increasingly the extra-territorial obligation (ETO) to protect is being used to hold transnational corporations accountable for human rights impacts abroad.
Particularly driven by human rights defenders and civil society, the United Nations treaty bodies, those Committees mandated to monitor compliance with human rights treaties, have begun to seriously apply the extra-territorial obligation to protect human rights in the context of corporations and other business entities. For instance, building on earlier pronouncements, the Committee on Economic, Social and Cultural Rights, which monitors compliance with the International Covenant on Economic, Social and Cultural Rights, adopted its clearest articulation on the ETO to protect in the context of corporate accountability, expressing its concern “about the lack of adequate and effective measures adopted by the State party to ensure that Chinese companies, both State-owned and private, respect economic, social and cultural rights, including when operating abroad” and recommending that China:
(a) Establish a clear regulatory framework for companies operating in the State party to ensure that their activities promote and do not negatively affect the enjoyment of economic, social and cultural human rights; and
(b) Adopt appropriate legislative and administrative measures to ensure legal liability of companies and their subsidiaries operating in or managed from the State party’s territory regarding violations of economic, social and cultural rights in their projects abroad.
The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has also enforced ETOs in this context. For instance it recently adopted Concluding Observations on Canada in which it expressed its concern “about allegations of human rights abuses by Canadian companies operating abroad … and about the inaccessibility to remedies by victims of such violations.” The Committee also regretted “the absence of an effective independent mechanism with powers to investigate complaints alleging abuses by such corporations that adversely affect the enjoyment of the human rights of victims, and of a legal framework that would facilitate such complaints.” The Committee went on to recommend that Canada “a) enhance the effectiveness of existing mechanisms to ensure that all Canadian corporations, in particular mining corporations, under its jurisdiction respect human rights standards when operating abroad; b) consider establishing an independent mechanism with powers to investigate human rights abuses by such corporations abroad; c) and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.”
The challenge now for human rights defenders is to keep this momentum going and to leverage these pronouncements with national level advocacy in order to achieve real positive change on the ground. Also, however, a concerted advocacy push should include the ETO to fulfill rights, by ensuring that corporate actors not only refrain from rights violations, but are required to ensure that their activities, including activities abroad, further the enjoyment of human rights around the globe.
For a comprehensive collection of UN pronouncements on extra-territorial obligations, including from treaty bodies, see the Global Initiative for Economic, Social and Cultural Rights’ Working Paper on UN Pronouncements on ETOs.
Additionally, the recent publication entitled Global Economy, Global Rights: A practitioners’ guide for interpreting human rights obligations in the global economy by ESCR-Net provides an examination of the application of ETOs by UN mechanisms.
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