Effective remedy: A grand project or the grandest folly?
As the world’s biggest business and human rights jamboree concluded in Geneva on 29 November, we were reminded yet again how much needs to be done to close the gap between talk and walking that talk. The sixth United Nations Forum on Business and Human Rights provided a welcome platform for debate and exchange of ideas in this Davos-for-the-damned, but underscored the need of the central theme this year, “Realizing Access to Effective Remedy”, to be repeatedly hammered home.
That work typically happens outside this dressed up event, which is a global talkfest for bureaucrats, technocrats and businesses, with activists, lawyers and public relations executives along for icing. But before we go there, here’s a doff to the principle behind it all. It flows from the Guiding Principles on Business and Human Rights formally adopted by the UN Human Rights Council in 2011, and which has as its key pillar the UN’s Protect, Respect and Remedy framework.
These principles mention the “states’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms”; the role of business enterprises “as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights”; and the need for rights and obligations “to be matched to appropriate and effective remedies when breached”.
Simply put: there cannot be human rights in business unless businesses behave, and governments ensure they behave. Complicity of business and government to ignore or dilute the rights of project-affected communities, among other malpractices, which is a continuing scandal in India as elsewhere in Asia, Africa and the Americas—and a reality that often foments unrest and has implications for internal security—is a matter requiring the greatest attention and redress.
While the problem remains that the UN is generally toothless beyond providing a platform for discussion, it was good to see some effort to hold errant businesses accountable. Ecuador, a country at the receiving end of transnational predation especially in mining, took the lead to take ahead the discussion on what is known as the “International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights”. Several prominent business lobby groups have worked tirelessly to diminish this mouthful of an intent ever since the UN’s human rights council adopted it into its regular working session in 2014.
The process is now in a loop, in the procedural quicksand of what is called an Open-ended Intergovernmental Working Group, which has the mandate to evolve such a binding treaty. But earlier this week Ecuador, and its principal comrade South Africa led a charge in Geneva with legal remedy specialists Leigh Day, to keep the fires burning. Human rights watchdogs like Amnesty International have also for some years lent their heft to the cause by stating that transnational corporations already had rights; the need was for a global treaty on their responsibilities.
Other watchdogs, like Human Rights Watch, claim the scope is too narrow, as the UN platform only addresses transnational businesses and not national ones which also need to respect human rights. Other critics, like business-and-human-rights guru John Ruggie insist the whole process is flawed—and, in any case, who is to say what business is “transnational” or “national”, with globalizing businesses increasingly domiciling themselves in business hubs across the world.
For the record India voted yes to the working group in 2014 (but only after the words “national companies”, were removed from the text). It joined countries such as Pakistan, Indonesia, South Africa, China, the Philippines, Venezuela and Vietnam to do so; Ecuador and South Africa, among the earliest votaries of such a binding treaty, had moved the resolution. The vote was carried by 20 ‘Yes’ votes and 13 abstentions overriding the 14 ‘No’ votes from the other side of the economic fence—among others, the US, the UK, Japan, South Korea, and several European Union heavies led by Germany and France.
These “no” countries claim adequate legal safeguards of their own, and have voiced concern about an alien construct, as it were, threatening to subsume their home-grown systems. But the jury is out on that one, especially as most transnational corporations under the human rights radar are headquartered in these countries.
This is where things still stand in this grand project—some would argue the grandest folly yet—to offer remedy. Meanwhile, there are several other live, hot-button responsibility-and-remedy and corporate accountability projects that are up and running, with great implications for India. More on this shortly.
Sudeep Chakravarti’s books include Clear.Hold.Build: Hard Lessons of Business and Human Rights in India, Red Sun: Travels in Naxalite Country and Highway 39: Journeys through a Fractured Land. This column, which focuses on conflict situations and the convergence of businesses and human rights, runs on Thursdays.
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