THE EXTENT TO WHICH STATES PREVENT VIOLATION OF HUMAN RIGHTS BY CORPORATIONS
Table of Contents
TOC o “1-3″ h z u 1INTRODUCTION PAGEREF _Toc515877718 h 31.1HUMAN RIGHTS VIOLATIONS BY CORPORATIONS PAGEREF _Toc515877719 h 32INTERNATIONAL LAWS PAGEREF _Toc515877720 h 52.1United Nations Guiding Principles on Business & Human Rights PAGEREF _Toc515877721 h 52.2Organisation for Economic Co-operation and Development (OECD) PAGEREF _Toc515877722 h 72.3Rome Statute of the ICC PAGEREF _Toc515877723 h 83KENYA; CASE STUDY PAGEREF _Toc515877724 h 93.1The Constitution PAGEREF _Toc515877725 h 93.2Internationally PAGEREF _Toc515877726 h 93.3Kenya National Commission on Human Rights PAGEREF _Toc515877727 h 104CONCLUSION PAGEREF _Toc515877729 h 135BIBLIOGRAPHY PAGEREF _Toc515877730 h 15
INTRODUCTION”There can be no peace without development, no development without peace, and no lasting peace or sustainable development without respect for human rights and the rule of law.” – UN Deputy Secretary-General Jan Eliasso.
Since 2008, there has been an unprecedented rise in human rights violations globally. The need for corporations to make profit more than to ensure a safe environment for enjoyment of Human Rights is quite alarming. This could happen due to competition among corporations and the fear of being left behind in the fast growing world. The pressure to compete among corporations has often meant fighting against and disregarding of Human rights and so there is a downward pressure on worker’s wages and their working conditions because they are such major costs for many operations. It is for the above reasons that lately it has become an area of interest to hold corporations accountable for violation of human rights. Multi- National companies and even local companies have been seen as pertinent in maintaining of human rights due to their high economic status and international dimension. Corporations are accountable for human rights violations under the municipal law of the country in which the alleged violation has been committed.
HUMAN RIGHTS VIOLATIONS BY CORPORATIONSHuman Rights are at a high risk in business corporations and they have been accused of breaching Human Rights vis a vis Right to life; liberty and security of person; Freedom from torture or cruel, inhuman or degrading treatment; Equal recognition and protection under the law; Freedom from discrimination; Human dignity; Right to Privacy; Freedom of expression; Freedom of movement and Access to Justice et al. The following are some cases that have been reported in some parts of the world revolving on human rights abuses by corporations.
The New York Times once reported that immigrant detainees are staffing the very detention centers where they are held some run by private companies, others by the federal government for 13 cents an hour. This is contrary to Article 23, clause 1 of the Universal Declaration of Human Rights (UDHR) to the effect that Everyone has the right to work, to free choice of employment, to just and favourable conditions of work.
Human Rights Watch released a report on horrific working conditions for children at tobacco farms in North Carolina, Kentucky, Tennessee, and Virginia which is contrary to Article 23, UDHR. All countries of the world have reported large number of case of workers being underpaid which is contrary to Article 23 of UDHR. Experts have stated that human trafficking cases are on the rise and involve corporations such as by hotels, airlines which is a violation of human rights.
There is need for corporations to observe and uphold the principles of good governance which is the only way to promote protection of human rights. Accountability is one of the most important aspects that need to be upheld, and in as such, a corporation is liable for all decisions it takes and anything done by the corporation. They must have effective remedies against their violations. A corporation also ought to be responsive in the policies it lays down for protection of human rights and the policies therefore must be objective laying down procedures clearly. Further, the remedies by corporations must be effective and efficient to redress aggrieved parties justly. Transparency is also paramount and therefore a corporation is expected to make information on decisions and implementation of policies available to the public. All corporations must adhere to the rule of law and by so doing, it reduces the number of human rights violations.
The United Nations has been at the fore front to advocate for the protection of human rights. It has steered the formation of conventions, treaties and even model laws for human rights protections. The member states have adopted the various international laws and that means nations are in a better position to protect human rights and ensure abiding by those particular laws. Some of the International Laws that are pertinent to corporations are as discussed herein under.
United Nations Guiding Principles on Business ; Human RightsThese Guidelines were developed by the Special Representative of the Secretary-General to address human rights and transnational corporations and other business enterprises. The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011. They are based on recognition of States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms, the role of business enterprises to respect human rights and the need for rights and obligations to be matched to appropriate and effective remedies when breached. The Principles prescribe that states ought to enforce laws that obligate corporations to respect human rights , to ensure that such laws do not constrain rather enable them to respect human rights, to provide guidance on respecting rights in their organizations and to encourage them to communicate how they address human rights violations.
The guidelines also require states to ensure that business entities owned by the state protect human rights. This is because states are the primary duty bearers of human rights law and therefore we cannot have state entities violating rights. Further, states are required to promote respect for human rights by corporations with which they conduct business with and to ensure coherence in policy. As regards remedies, all States must ensure through judicial, administrative, legislative or other means that abuses of human rights are remedied.
For the corporations, it is a basic guideline that all corporations ought to respect human rights irrespective of their size, sector, operational context, ownership and structure. They should desist from infringing on the human rights of their employees and all their business stakeholders. Their responsibility is on the basic human rights engraved on International Bill of Human Rights and those in International Labour Organization Declaration on Fundamental Principles and Rights at Work.
In a nutshell, they should avoid causing adverse human rights impacts by way of their actual acts, mitigate such impacts, put in place policies and processes to address human rights violations. All corporations should express their commitment to protection of human rights through a policy statement which should be in their preferred form, carry out human rights due diligence to assess human rights impacts, have a tracking system to asses qualitative and quantitative indicators and give a feedback. Corporations should also be ready to communicate how they address human rights concerns to their stakeholders.
In terms of remedy, corporations should provide for or cooperate in their remediation through legitimate processes and to comply with all laws enacted for that purpose.
In September 2013, the United Kingdom government set out the steps it would take to implement the United Nations Guiding Principles through an action plan. It was the first to implement the Guidelines. It made an amendment to the Modern Slavery Bill requiring large UK companies to report on the steps they are taking to identify and eradicate slavery in their supply chains. Secondly, an EU regulation that will require relevant EU companies to carry out due diligence to ensure that they source minerals responsibly.
Organisation for Economic Co-operation and Development (OECD)
According to the Organisation for Economic Co-operation and Development (OECD), States have the duty to protect human rights. Enterprises should, within the framework of internationally recognised human rights, ensure that human rights are protected from violation through the following mechanisms;
“Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
Within the context of their own activities, avoid causing or contributing to adverse human rights impacts and address such impacts when they occur.
Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.
Have a policy commitment to respect human rights.
Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts.
Provide for or co-operate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts”.
These guidelines are drawn from the United Nations Framework for Business and Human Rights ‘Protect, Respect and Remedy’ and is also in accordance with the Guiding Principles for its implementation.
Organizations promoting protection of human rights by organizations have included the International Bar Association which has come up with Reference Annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers. In this Reference Guide, the IBA describes the importance of lawyers supporting the implementation of the UN Guidelines to ensure that corporations promote human rights.
The world business leaders have come up with the Business Leaders Initiative on Human Rights in collaboration with the UN Global Impact and the Office of the High Commissioner for Human Rights. It puts down the strategy to be used, the policy to be developed, the processes and procedures, trainings, measuring impact, audit and reporting. The recognised that human rights is an area which poses a big challenge on corporate responsibility and therefore resorted to give guide on how to achieve the objective.
Rome Statute of the ICCThe International Criminal Court has the power to exercise its jurisdiction over persons for the most serious crimes of International concern. One of the crimes the Statute terms most serious is crimes against humanity which include murder, extermination, enslavement, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture, Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, Enforced disappearance of persons, Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health among others. The International Criminal court has jurisdiction to charge the persons who commit the above crimes. Those persons include corporate persons and therefore corporations have a duty to protect human rights and must not commit the Rome Statute crimes.
KENYA; CASE STUDYThe ConstitutionThe Bill of Rights as set out in Chapter 4 of the Constitution states that ‘the Bill of Rights applies to all and binds all State organs and persons; A ‘person’ includes ‘a company, association or other body of persons whether incorporated or unincorporated’.
Article 59 of the Constitution establishes the Kenya National Commission on Human Rights. It is an Independent National Human Rights institution (NHRI) established by Kenya National Commission on Human Rights Act, 2002. It started its work in 2003 and after the 2010 Kenyan Constitution; it became an independent constitutional body, Article 59(2) obligates the Commission to promote the protection and observance of human rights in public and private institutions. It is therefore clear that the constitution of Kenya strongly calls for businesses to promote and protect human rights in its activities.
InternationallyKenya is a member of the United Nations and has subscribed to many Conventions and Treaties which form part of Kenyan Law vide Article 2(6) of the Constitution. It states that “Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.” That means that it has an obligation to implement the treaties that it has ratified. Further, the following are the laws that encourage the protection of human rights by corporations in Kenya.
At the international level, Kenya is a party to the Guidelines in Paragraph 2.2 above which were from the initiative of the Special Representative of the Secretary General (SRSG) for Business and Human Rights appointed in 2005 and who finalized UN ‘Protect, Respect, Remedy’ Framework. The Framework describes on very clear terms the roles and responsibilities of governments and corporations in relation to human rights.
Kenya National Commission on Human Rights
The Commission has a department which deals with business activities being the Economic, Social, and Cultural Rights (ECOSOC) Department. The Commission has done various projects under this department. For instance the development of partnerships with State organs, business and civil society, participation in the National Mirror Committee which contributed to the development of the ISO SR 26000 on Social Responsibility, which was led by the Kenya Bureau of Standards and a Public Inquiry into allegations of human rights violations in Malindi, Kenya specifically on impacts of salt manufacturing to the communities and the environment.
The Commission hosts meetings and seminars where stakeholders discuss how to reduce human rights violations by corporations. It further does trainings and awareness in the country; for instance it has done training for Unilever Tea and for other companies. The Commission has laid down a strategic Plan on how it will undertake implementation of human rights at the business place vis a vis;
“Monitoring corporate conduct and providing feedback and advise to business and government.
Undertaking initiatives to help clarify and support business in taking up their human right responsibilities.
Compliance assessments in order to make relevant interventions and provide strategic advice to government and specific business sectors.
Reviewing of corporate laws, regulations and policies with a view to enhancing their human rights responsiveness.
Developing Information, Education and Communication (IEC) materials to support various issues of human rights and business.
Training on human rights and business.
Developing and sharing relevant tools and approaches to assist Government, business and CSOs to cooperatively strengthen the realization of human rights for and in Kenya.
Awarding business that employ practices and undertake activities that complement realization of human rights.
Receiving and processing petitions relating to allegations of human rights violations by corporate bodies.”
Government agencies in Kenya which are corporations have been accused of human rights violations as in the following cases.
The Kenyan Government stated its intention to close down the World’s largest refugee camp in 2016. In February 2017, the High Court of Kenya stopped the government order to shut down Daadab refugee camp, home to 240,000 mainly Somali refugees. The number of refugees in the camp had fallen by half, from about 465,000 living there in 2011, as a result of government threats of closure and significant cuts in services and food rations by the UN Refugee Agency, UNHCR. About 32,000 returned to Somalia in 2017. Kenyan authorities said in May 2016 they would close the camp and forcefully return Somali refugees, accusing Somali refugees of harboring terrorists and disbanded the department of refugee affairs, which is responsible for registration of new refugees.
During the 2018 Kenyan general elections, there were massive human rights violation by the government. At least two journalists were arrested during that period whereby the Nation Media Group alleged that it was being targeted for reporting how government officials flouted election campaign laws with impunity.
Various other States have also been active in matters concerning the violation of human rights by corporations and it is evident since there are cases which have been taken to court for determination here in Kenya and also in countries like the US.
In Esther Kiobel et al. v. Royal Dutch Petroleum Company et al. Esther Kiobel, individually and on behalf of her late husband, Dr Barinem Kiobel and eleven other individuals filed a class action against the Royal Dutch Petroleum Company and the Shell Transport & Trading Company. The Shell Petroleum Development Company of Nigeria Limited was extracting and refining oil in a region known as Ogoni in Nigeria and concerned about the impact that it would have on the environment individuals collectively known as the Ogoni nine protested but allegedly as a result, they were detained by the Nigerian military junta on spurious charges, held without charge, tortured and hanged following a sham trial before a Special Tribunal in November 1995. At the District Court for the Southern District of Newyork, the defendants’ motion was partially granted and only the charges for crimes against humanity, torture and arbitrary arrest and detention were upheld. At the Supreme Court however it was found that the Alien Tort Statute has no extraterritorial application and thus does not apply to events that happened outside the United States.In Doe v UNOCAL, Burmese villagers filed a complaint against the oil company UNOCAL in 1979 claiming that they suffered abuses which included torture and rape during the construction of the Yadana Pipeline. It was also alleged that UNOCAL assisted in the abuses perpetrated by the military government in Rangoon. In March 1997 the US District Court for the Central District of California agreed to hear the case. The court ruled that corporations and their executives could be liable under the ATCA for violations of international law committed abroad, which the US courts had authority to hear but however concluded that UNOCAL could not be held liable for the abuses claimed in the suit. Following an appeal, the US Court of Appeals for the Ninth Circuit made its own determination. The superior court rejected the UNOCAL Defendants’ Motion for Judgment. It was held that summary judgment does not dispose of further claims of the plaintiffs and the reasoning was that a summary judgment disposes of ’causes of action’ not ‘individual issues’. The court also went ahead to hold that it cannot find that the ‘owner of a corporation can be held liable for the corporation’s debts only when the corporate veil is pierced’.
CONCLUSIONThe United Nations Guiding Principles on Business and Human Rights are the major source of all for most states of the World. They comprise of three pillars namely; the state duty to protect human rights, the corporate responsibility to respect human rights and access to effective remedy for persons whose rights have been violated by business corporations.
It can therefore be concluded that the State is the best entity to guarantee the promotion and respect for human rights by corporations in the world due to its higher obligations to do so under the International Law. In that regard then, most states of the world which have adopted the Un Guidelines and are therefore responsible to ensure that corporations have put in place the right measures to ensure protection of human rights. Further, the States through their public prosecution departments are also able to enforce any violations through judicial methods.
It can therefore be concluded that states have done quite notable work in ensuring that corporations respect human rights. It is finally recommended that States be more vigilant in monitoring how effectively corporations adhere to promotion and protection of human rights as this will achieve better results.
BIBLIOGRAPHYNew OECD guidelines to protect human rights and social development accessed on ;http://www.oecd.org/newsroom/newoecdguidelinestoprotecthumanrightsandsocialdevelopment.htm;
Reference Annex to the IBA Practical Guide on Business and Human Rights for Business Lawyers, IBA, 2016.
Marilyn Croser, ‘Human rights violations have increased 70% since 2008 globally’ The Guardian (9th September 2014) accessed on ;https://www.theguardian.com/sustainable-business/2014/sep/09/human-rights-violations-increase-corporate-responsibility ; Anup Shah, ‘Corporations and Human Rights’ (Global Issues, 19th September 2002) ;http://www.globalissues.org/article/51/corporations-and-human-rights
Companies Commit Human-Rights Abuses in America, Too, ;https://www.theatlantic.com/business/archive/2014/05/human-rights-abuses-happen-in-america-too/371702/;
12 Principles of Good Democratic Governance, EloGe, 2017 available https://www.coe.int/en/web/good-governance/12-principles-and-eloge .
United Nations Guiding Principles on Business ; Human Rights, 2011, United Nations.
Human rights violations have increased 70% since 2008 globally, ;https://www.theguardian.com/sustainable-business/2014/sep/09/human-rights-violations-increase-corporate-responsibility; OECD Guidelines For Multinational Enterprises 2011 Edition © OECD 2011 Pg 31-34, https://mneguidelines.oecd.org/2011HumanRights.pdf