Governments must Protect; Companies should Respect

Publicado el 14 de agosto, 2012 | 0 comentarios | Archivado en : , , , ,

When done sustainably, foreign investment and business can be a driving force for equality and prosperity. Done poorly, however, business can derail development, entrench discrimination, degrade natural resources and exploit vulnerable groups. The latter outcome is increasingly evident in Latin America, where economic development in many countries comes at a high human cost, with private sector activities negatively impacting the full spectrum of human rights, resulting in widespread protests and violence.

Increasingly, some businesses worldwide are also contributing to fatal violence, as noted by the international NGO Global Witness, which reported that 711 people have been killed in the past ten years globally while defending land and forest rights from business operations.  Furthermore, the number of killings has almost doubled over the past three years, and there is a worrying lack of information on killings in many countries, suggesting that this figure is a serious underestimation of the extent of the problem.

Three of the four countries with the highest rates of business-related violence are in Latin America: Brazil, Colombia and Peru. In 2011, the Special Rapporteur on Human Rights Defenders noted “Defenders working on land and environmental issues in connection with extractive industries and…development projects in the Americas… face the highest risk of death as result of their human rights activities.” Compounding this problem is the widespread impunity for business-related killings.

From a governance perspective, the question is: what should decision-makers in the region do about this troubling trend? Beyond addressing the issue of impunity, governments must seek to prevent abuses before they occur, including by tackling the root causes for the grievances advocated by human rights defenders across the region.

 

From Protect to Respect

In practice, international law has yet to formally address the role of the private sector vis-à-vis human rights, which has contributed to a regulatory void where especially transnational companies can operate with almost complete impunity in countries with weak institutions and legal frameworks.

In recent years, however, the international community has sought to address this problem, and, increasingly, businesses are considered responsible for their human rights impacts as well as for the impact of suppliers and partners around the world.

This development is best illustrated by the Guiding Principles on Business and Human Rights: Implementing the United Nations’ Protect, Respect and Remedy’ Framework, developed by United Nations (UN) SRSG John Ruggie and unanimously adopted by the UN Human Rights Council in 2011, making the Guiding Principles (GPs) the authoritative framework for human rights and business matters. This “do-no-harm”-framework provides the conceptual foundation for the division of roles and responsibilities of various actors in relation to private sector human rights impacts. It rests on three pillars: States’ duty to protect against human rights abuses by third parties, including companies; the corporate responsibility to respect human rights, whereby companies must act with due diligence to avoid infringing rights as well as to address the adverse impacts in which they may be involved; and victims’ access to remedy.

The GPs and their underlying Framework have had far reaching resonance. Before 2008, when the three pillar-framework was first developed, the term “human rights due diligence” was virtually unknown.  Since then, the term has been incorporated into a variety of policy spaces, including in the OECD Guidelines for Multinational Enterprises, the ISO 26000the IFC performance standards on environmental and social sustainabilitythe EU strategy on corporate social responsibility and the U.S. Dodd-Frank Act.

Furthermore, a recent study found that 65% of mining companies are actively working towards compliance with the GPs, which means the impacts should hopefully be felt within what is one of the most controversial sectors in Latin America.

 

Principles in Practice

The challenge now is to move from principles to practice; a key component of which is the state’s duty to protect. Accordingly, in November 2011, President Juan Manuel Santos of Colombia signed a joint declaration on human rights with UK Prime Minister, David Cameron. The two countries recognized the importance of working with the private sector on human rights issues and committed themselves to implementing the GPs. This commitment places Colombia at the forefront of the human rights and business discussion in Latin America.

It is unclear what practical steps the Colombian Government is taking in order to fulfill the commitment made in the joint declaration. What is even less clear is how long it will take the rest of the region to follow suit. Although Argentina was one of five core supporters of John Ruggie’s mandate, and other countries from the region supported the adoption the GPs in the Human Rights Council, no other Latin American country has formally stated its intent to translate the GPs into domestic policy and legislation.

This shouldn’t come as a surprise: the dissemination process of the GPs has only just begun and change will inevitably be slow. And there are no guarantees that the GPs are the right answer to the worsening violence stemming from corporate abuses. But the GPs do represent the international community’s best effort yet to address the human rights impacts of companies and, therefore, should be embraced as an invaluable tool by all stakeholders.

For human rights defenders, the GPs provide an advocacy tool to hold their governments accountable; for companies, the GPs specify clear due diligence measures to help ensure their operations respect human rights; and for states they provide a roadmap to governing that helps ensure that private sector operations respect human rights and contribute to sustainable development. With Latin America’s at times violent consequences of resource-based development, governments should embrace this roadmap without delay.

 

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