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Davis, Rachel --- "Protect, Respect and Remedy': Working to Integrate the Rights and Concerns of Indigenous Peoples into a New UN Framework on Business and Human Rights" [2009] IndigLawB 30; (2009) 7(13) Indigenous Law Bulletin 21
‘Protect, Respect and Remedy’: Working to Integrate the Rights
and Concerns of Indigenous Peoples into a New UN Framework
on Business and Human
Rights
By Rachel Davis.
The potentially negative, as well as
positive, human rights impacts of companies on individuals and communities are
well-known by
those who have experienced them directly. The last few decades
have witnessed an increasing number of efforts aimed at ensuring that
business
and markets thrive, but in a socially sustainable way. This short article looks
at the most recent development at the international
level, the mandate of the UN
Special Representative on Business and Human Rights, which is gradually
encouraging a shared determination
among all key stakeholders – states,
companies and civil society – to move forward in addressing the challenges
inherent
in the ‘business and human rights’ sphere using a common
framework. In particular, it explores ongoing efforts to integrate
the rights
and experiences of Indigenous peoples into this framework, and the recent
interaction between the Special Representative’s
mandate and the UN
Permanent Forum on Indigenous Issues.
A UN Mandate on Business and
Human Rights
In 2005, the UN Commission on Human Rights asked
Secretary-General Kofi Annan to appoint a Special Representative on the issue of
business and human rights. Annan asked John Ruggie, a Professor at Harvard
Kennedy School and former UN Assistant Secretary-General,
to take up the post.
Professor Ruggie’s appointment has continued under the current
Secretary-General, Ban Ki-Moon.[1]
From his first report in 2006
onwards,[2] the Special Representative
has argued that the governance gaps created by globalisation – between the
scope and impact of economic
forces and actors on the one hand, and the capacity
of societies to manage their adverse consequences on the other – have led
to a permissive environment in which companies can negatively impact human
rights without adequate sanction or reparation. In his
third report in June
2008, he proposed a conceptual and policy framework to advance the business and
human rights agenda.[3] The framework
rests on three pillars:
• first, the state duty to protect
against human rights abuses by third parties, including business, through
appropriate policies, regulation, and adjudication;
• second, the
corporate responsibility to respect human rights, which means to act with
due diligence to avoid infringing on the rights of others; and
• third, greater access to effective remedy, both judicial and
non-judicial, for affected individuals and communities.
The Human Rights
Council (which succeeded the Commission on Human Rights) unanimously welcomed
the ‘protect, respect and remedy’
framework – the first time
that a UN intergovernmental body has endorsed a substantive policy position on
this issue. Leading
international human rights organisations such as Amnesty
International reacted positively to the framework, and it was welcomed by
the
major international business associations, including the International
Organisation of Employers and International Chamber of
Commerce, and by industry
groups like the International Council of Mining and
Metals.[4]
A number of states
also responded positively at the national level to the new UN framework. In
Australia, a Senate motion took note
of the ‘protect, respect and
remedy’ framework and called on the Australian Government to
‘encourage Australian
companies to respect the rights of members of the
communities in which they operate and to develop rights-compliant grievance
mechanisms,
whether acting in Australia or
overseas’.[5]
The Human
Rights Council extended the Special Representative’s mandate for another
three years until June 2011, tasking him
with ‘operationalising’ the
framework to provide ‘practical recommendations’ and ‘concrete
guidance’
to states, businesses and other social actors. I work as part of
a team of advisors supporting the Special Representative in his
ongoing efforts
to develop guiding principles in the business and human rights
realm.
The Three Pillars of the ‘Protect, Respect and
Remedy’ Framework
The first pillar of the new UN framework –
the state duty to protect – is grounded in international human rights law.
Most states have adopted core human rights standards, but there is still
considerable domestic legal and policy incoherence as governments
continue to
confine issues, including human rights, within individual departments or
bureaucratic ‘silos’, disconnected
from other relevant policy areas.
Not surprisingly, this incoherence is then replicated at the international level
at the UN, and
various international financial and trade institutions. The
Special Representative has urged governments to drive the business and
human
rights agenda into those domestic policy areas that most directly shape business
practices, including corporate law, export
credit and insurance, and investment
and trade agreements.[6]
At
the international level, he has called for enhanced cooperation between
so-called ‘home states’ (where companies are
headquartered) and
‘host states’ (where companies operate) to better protect rights,
including in challenging environments
like conflict affected areas. The Special
Representative has pointed out that governments need to reconsider the
assumption that
companies invariably prefer, or benefit from, state inaction
rather than action. Where companies are facing difficult, politically
charged
situations (not only those involving open conflict), they are even more in need
of governmental guidance to manage the risks
involved.[7]
The second pillar
of the framework, the corporate responsibility to respect rights, is based on
the near-universal social recognition
that companies should not infringe on the
rights of others. This responsibility is the baseline norm for all companies in
all situations,
and it applies to the entire spectrum of internationally
recognised rights (to the extent that they are capable of application between
private actors). The Special Representative has recommended that companies
should put in place a process of ongoing ‘human
rights due
diligence’ to become aware of, prevent, and mitigate adverse human
rights impacts.[8] This due diligence
process has four core elements:
• the company should have a
human rights policy in place;
• it should conduct
‘human rights impact assessments’ in relation to planned and
ongoing activities, which should include engagement with affected stakeholders;
• the company should integrate those values and findings into
its corporate culture and its management systems; and
• it should
track and report on performance against identified human rights
criteria.
Without access to effective remedy, which is the
framework’s third pillar, the rights of affected individuals and
communities
would be rendered weak or even meaningless. For states, this means
enforcing and encouraging corporate compliance with relevant laws
and standards
and ensuring that there is a robust and accessible system of state-supported
judicial and non-judicial remedies in
place for affected individuals and
communities to turn to. However, significant legal and practical barriers to
accessing effective
judicial remedies persist, especially for foreign claimants,
and the Special Representative is identifying those that are particularly
salient for victims of corporate-related human rights abuses, as well as
strategies to reduce them.
As part of their responsibility to respect,
companies need to put in place, or ensure that there is access to, effective
grievance
mechanisms at the operational level to help resolve problems before
they escalate. The Special Representative has proposed a set
of principles for
effective company grievance mechanisms, which are currently being piloted with a
number of major companies, including
two projects in the extractive sector: the
Shell Sakhalin II project in Russia, and Cerrejon Coal – a joint venture
between
AngloAmerican, BHP Billiton and Xstrata – in Colombia. There is an
ongoing need for further improvement, shared learning and
innovation in this
area. The Special Representative has launched a global ‘wiki’
– an interactive online forum
for sharing information about non-judicial
mechanisms that address disputes between companies and their external
stakeholders –
which he hopes will contribute to this
process.[9]
Integrating the
Rights and Concerns of Indigenous Peoples
In May this year, the UN
Permanent Forum on Indigenous Issues convened for two weeks at UN Headquarters
in New York for its eighth
annual session. I delivered a statement on behalf of
the Special Representative on the first day of the Forum to an audience of about
1,000 assembled representatives of Indigenous peoples, states, NGOs, UN agencies
and other interested
observers.[10]
The statement
made clear that, in operationalising the three pillars of the ‘protect,
respect and remedy’ framework, the
Special Representative considers it
important to better understand the particular position and experiences of
Indigenous peoples.
In relation to the first pillar, states have clear duties to
protect their rights under regional and international human rights treaties.
In
a series of reports to the Human Rights Council, the Special Representative
reviewed guidance provided by the relevant human rights
treaty bodies,
commissions and courts about how these state duties may operate in the context
of corporate-related human rights
abuse.[11] He has also referred to
other key international instruments that specifically address Indigenous
peoples, including the Indigenous and Tribal Peoples Convention (ILO
Convention No 169) and of course the recent UN Declaration on the Rights of
Indigenous Peoples – which many Indigenous individuals and groups
worked so hard to see come to
pass.[12]
In relation to the
corporate responsibility to respect, the Special Representative has consistently
said that in projects affecting
Indigenous peoples, companies should consider
additional standards that are specific to those communities. In 2007, he held a
consultation
in Colombia focused on how companies can maintain their social
license to operate with regard to local communities, particularly
Indigenous
peoples. He has been following the ongoing work of the Permanent Forum on these
issues,[13] as well as that of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
Indigenous peoples, Professor
James Anaya, and related UN
initiatives.[14]
In his
ongoing work on access to remedy, the Special Representative is considering how
the failure to adequately protect the rights
of Indigenous peoples in national
laws can impact upon their ability to access remedy for corporate-related abuse.
He also hopes
to explore, with expert input, successful approaches to dispute
resolution between Indigenous communities and companies, encompassing
both
judicial and non-judicial elements.
In its final report, the Permanent
Forum gave its support to the ‘protect, respect and remedy’
framework.[15] It also supported the
Special Representative’s broader efforts to urge states to integrate human
rights into those areas that
most affect business practices, and to encourage
companies to adopt meaningful human rights due diligence
processes.[16] The Permanent Forum
agreed that, in order to ensure access to remedy, states and companies need to
take the kinds of measures noted
above, and supported the Special
Representative’s work in seeking to identify, and propose ways to address,
continuing legal
and practical
barriers.[17]
Over the
course of his mandate, the Special Representative has sought to adopt an
evidence-based, consultative approach. He has welcomed
submissions on his work
from civil society, and benefited from the constructive involvement of a wide
range of participants in multi-stakeholder
consultations on five continents,
including representatives of Indigenous
communities.[18] He continues to
welcome such input, including from those most directly affected by
corporate-related harm. I invite interested ILB
readers to explore his
website[19] or to contact me
directly about these issues.
Going Forwards: Practical
Recommendations and Concrete Guidance
The Special Representative recently
made a submission to the Australian National Human Rights Consultation in which
he observed that
successfully addressing business and human rights challenges
‘requires all actors to rethink long-held assumptions which are
at best
outdated and at worst plain wrong’, particularly in light of the current
financial and economic crisis. He stressed
the general need ‘for a smarter
mix of measures—national and international, mandatory and voluntary, if
all actors are
to get on with the practical problem solving
needed’[20] in this sphere.
The international community is still in the early phases of adapting the
human rights regime to provide more effective protection
to individuals and
communities against corporate-related harm. The ‘protect, respect and
remedy’ framework proposed by
the Special Representative and endorsed by
the Human Rights Council provides a common platform for advancing the business
and human
rights agenda. States, companies, and broader society –
including, of course, Indigenous peoples – all have an important
role to
play in making this happen.
Rachel Davis is a Legal Advisor to the Special Representative of the UN
Secretary-General on Business and Human Rights and a Research
Fellow at the
Corporate Social Responsibility Initiative at Harvard Kennedy School. She holds
a BA/LLB from UNSW and LLM from Harvard
Law School. She can be reached at Rachel_Davis@hks.harvard.edu
.
[1] Materials relating to the
SRSG’s mandate are available on his website,
<http://www.business-humanrights.org/Gettingstarted/UNSpecialRepresentative>
.
[2] See SRSG, Interim
Report (2006), UN Doc No E/CN.4/2006/97,
<http://www.business-humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil/2006>
.
[3] See SRSG, Protect, Respect
and Remedy: A Framework for Business and Human Rights (2008), UN Doc No
A/HRC/8/5, available at
<http://www.business-humanrights.org/Documents/RuggieHRC2008>
.
[4]
See SRSG, Business and Human Rights: Towards Operationalizing the
‘Protect, Respect and Remedy’ Framework (2009), UN Doc No
A/HRC/11/13, paras 3-5,
<http://www.business-humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil/2009>
.
[5] Commonwealth, Senate Official
Hansard (No. 6 2008) 23 June 2008, 3037-3038:
<http://www.aph.gov.au/HANSARD/senate/dailys/ds230608.pdf>
.
[6] SRSG, above n 3, paras
33-42.
[7] Ibid, paras
43-49.
[8] Ibid, paras
56-64.
[9] Business and Society
Exploring Solutions – A Dispute Resolution Community at
<www.baseswiki.org>. It is currently available
with English, French,
Spanish, Chinese, Korean, Japanese and Russian portals; Arabic is under
development.
[10] SRSG,
Statement to the United Nations Permanent Forum on Indigenous Issues
(2009), available at
<http://www.reports-and-materials.org/UN-Special-Rep-statement-indigenous-18-May-2009.doc>
.
[11] See the SRSG’s
collection of UN Treaty Body reports
at
<http://www.business-humanrights.org/SpecialRepPortal/Home/BriefingDiscussionReferencepapers/Briefingpapers/2007>
.
[12] See SRSG, State
Obligations to Provide Access to Remedy for Human Rights Abuses by Third
Parties, Including Business: An Overview of International
and Regional
Provisions, Commentary and Decisions (Addendum to 2009 Report) (2009), UN
Doc No A/HRC/11/13/Add.1, paras 60-63,
<http://www.reports-and-materials.org/Ruggie-addendum-15-May-2009.doc>
.
[13] Such as the recent
International Expert Group Meeting on Extractive Industries, Indigenous
Peoples’ Rights and Corporate Social
Responsibility in Manila,
Philippines, 27-29 March
2009.
[14] Such as the
International Workshop on Natural Resource Companies, Indigenous Peoples and
Human Rights convened by the Office of the
High Commissioner for Human Rights in
Moscow, Russia, 3-4 December
2008.
[15] Permanent Forum on
Indigenous Issues, Report on the Eighth Session (2009), UN Doc No
E/2009/43, para 12.
[16] Ibid,
paras 13-15.
[17] Ibid, para
16.
[18] Reports in English on
each of these consultations are available on the SRSG’s website: see SRSG,
above n 1.
[19]
Ibid.
[20] SRSG, Submission to
Australian National Human Rights Consultation Committee (2009),
<http://www.reports-and-materials.org/Ruggie-submission-to-Austrlaian-Natl-Human-Rts-Conusultation-Committee-9-Jun-2009.pdf>
.
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