In this interview, UN-NGLS asks Jennifer del Rosario-Malonzo from IBON International about the UN Guiding Principles on Business and Human Rights, the recent Human Rights and Business Forum, and the role of the private sector in the post-2015 agenda.
UN-NGLS:TheUN Guiding Principles on Business and Human Rights(UNGPs) endorsed in June 2011 include 31 principles built around three pillars: 1) the State’s duty to protect against third party abuse; 2) corporate responsibility to respect human rights; and 3) access to effective remedy. What are the strengths and weaknesses across the three pillars for the broader uptake of the UNGPs in practice?
Jennifer del Rosario-Malonzo:The UNGPs’ inherent strength is that these provide a global standard, a baseline that is internationally recognized, on issues regarding human rights and business operations. Another strength is the clear articulation on the responsibility of companies to respect human rights and their responsibility to address adverse impacts on human rights as a result of their operations. The major weaknesses, on the other hand, are that no new legal obligations for companies were created, and the lack of grievance mechanisms to look into abuses and provide redress for victims of business-related human rights violations. There is also a weakness on expounding on extra-territorial obligations or the duties of States to regulate their companies’ human rights impacts beyond national borders.
To improve the uptake of the UNGPs in practice, an important step is for countries to embark on a process to legislate its implementation, or put in place an action plan for country-level application. Such process will at the very least generate greater awareness among stakeholders (government agencies, private sector, civil society organizations and communities) for the principles to gain traction in domestic business practices and the regulatory system. Translating the principles into clear enforceable rules on how the business sector shows respect to human rights is necessary, and governments must exert all the legislative, regulatory, and judicial muscle they have to ensure this.
UN-NGLS:What do you see as the complementarities between the Guiding Principles and theMaastricht Principles on Extraterritorial Obligations of States (ETOs)that clarify extra-territorial obligations of States on the basis of existing international human rights law. How does this relate to the provisions in free trade and bilateral investment agreements?
Jennifer del Rosario-Malonzo:The Maastricht Principles on Extraterritorial Obligations of States in the area of ESCR are a significant complement to the UNGPs. With globalization and the growing power of corporations in both national and global arenas, the human rights obligations of States are the people’s basic protection against abuses. Unfortunately, such obligations (as the Maastricht Principles point out) are interpreted by many States as applicable only within their territories and so transnational corporations, for instance, escape accountability for violations in their areas of operation. Human rights do not figure in trade and investment agreements, and dispute mechanisms also do not factor in human rights (investor-State dispute settlement provisions are especially disturbing), which endanger vulnerable populations such as women, peasants, indigenous communities.
UN-NGLS:During theSecond Human Rights and Business Forum(December 2013), civil society underscored the need for greater accountability both of the State and business in providing adequate redress for victims of corporate human rights violations. What policies and other measures do you deem essential to bring about tangible gains?
Jennifer del Rosario-Malonzo:Aside from the clear obligations and rules mentioned above, crucial policies and measures that need to be in place include an effective monitoring system, adjudication mechanisms, appropriate penalties and means of enforcement. One potential action is the strengthening of national human rights institutions (which must be established if there are none) and allowing them to exercise real power in handling cases of human rights abuses (business-related or otherwise) instead of just being recommendatory bodies.
Of course, a business-related human rights violation may already constitute a crime or offense punishable by law, but many standards and principles may still not be reflected in national laws and regulations and so a legal course of action is not available. Moreover, given the economic and power imbalance between corporate entities and victims of human rights abuses, even if a legal recourse is available, justice may still not be served unless duty-bearers ensure that victims are provided the appropriate redress.
UN-NGLS:In recent months, many of the reports prepared for the Secretary-General on the post-2015 development agenda have placed considerable emphasis on the role of the private sector in meeting development goals through partnerships. What is your view on this? What role would you see for the UNGPs in terms of the post-2015 development agenda?
Jennifer del Rosario-Malonzo:Partnerships for development are important, and the discussions on the post-2015 development agenda provide an opportunity to frame partnerships on the principles of inclusiveness, equity, and justice, and underscore the need for such partnerships to respect, protect, and promote human rights.
It should also be remembered that the private sector is not homogenous and that partnerships may have greater impact on development on the ground if they prioritize local private sector particularly MSMEs [micro, small and medium enterprises] instead of big corporations. In any case, for the private sector to be truly a partner in inclusive and equitable development, it must adhere to human rights standards and be accountable for its actions. The UNGPs are important as a baseline in checking private sector human rights due diligence and thus can be integral in choosing and assessing potential partnerships. Perhaps it can also serve as a starting point for introducing binding measures for corporations engaging in partnerships for development.
UN-NGLS:Corporate social responsibility (CSR) initiatives are in large part voluntary. Advocates behind the Guiding Principles argue that some CSR projects can violate labour or indigenous rights at the same time. Can you elaborate on this?
Jennifer del Rosario-Malonzo:This point is about the fact that even if a company undertakes CSR activities, its practices or operations may still be violating some rights. CSR initiatives are welcome but these should not be confused with human rights compliance. These are also often undertaken as part of managing or mitigating reputational and financial risks as well as image building (“environment/development friendly”) for companies to take advantage of growing public awareness.
Jennifer del Rosario-Malonzo is Manager of the Development Finance Program at IBON International.
IBON International engages in capacity development for human rights and democracy around the world. It strengthens links between local campaigns and advocacies to international initiatives and brings development issues from the international arena in a way that peoples’ organizations and social movements can engage with at country level.