Top Ten Business and Human Rights Issues in 2015

To mark International Human Rights Day, IHRB has published its annual list of the Top 10 Business & Human Rights Issues for the forthcoming year.

The year 2014 saw the thirtieth anniversary of the Bhopal disaster in India, where a poisonous gas leak from Union Carbide Corporation’s fertilizer plant killed thousands of people immediately and over time. People in Bhopal and activists around the world have campaigned long and hard for justice.

Since then there has been mounting outcry in many parts of the world against corporations over alleged human rights abuses. Human rights defenders who have spoken out against corporate involvement in rights abuses or who campaigned on behalf of communities have faced governmental surveillance and arrests. This is part of a wider global trend, which sees increasing pressure on civil society in many countries around the world. In some cases, activist groups and individuals are described as anti-development or anti-national, and in others, are accused of being terrorists.

The UN Working Group on Business and Human Rights has recently expressed concern over the detention of activists and imposition of funding and registration restrictions on human rights defenders in Azerbaijan. Michael Forst, the UN Special Rapporteur on Human Rights Defenders, joined several of his UN colleagues to ask the Tasmanian Government in Australia to withdraw legislation that targeted those who protested forestry, agriculture and mining.

Companies can no longer ignore activists. As part of their due diligence, they must conduct human rights impact assessments, and to do so, they should undertake vigorous stakeholder consultation. International standards have emerged to require companies to talk to communities, but at times governments intervene and claim to speak on their behalf. In other cases, communities are not interested in engaging with companies. Companies also find it difficult to identify who can speak legitimately for a specific community.

At times, communities lack capacity to engage with companies. They may not have the same expertise companies do and may also be in a weaker position than their government and powerless to demand accountability for provision of basic services or protection of human rights. Companies should be aware of communities’ needs for ongoing capacity building, and should facilitate their partnership with multilateral and bilateral institutions as well as civil society organisations with capacity building programmes.

In 2015, companies will increasingly be called on to make major business decisions only after undertaking rigorous due diligence, including by listening to affected communities and stakeholders and by speaking up for human rights defenders. Companies will be under increasing pressure to choose between their bottom-line imperatives and their commitment to respecting human rights for all.

Legal advocacy concerning corporate human rights abuses has focused largely on multinational companies. But in many cases, egregious violations, including the use of forced and child labour, abuses of migrant worker rights and sexual violence also occur in domestic companies, including small farms, and small and medium sized enterprises. However, these victims cannot rely on potential access to courts or other mechanisms (such as an OECD National Contact Point) overseas to address their claims.

With the scope of one of the few avenues to bring claims outside the jurisdiction where they occurred - the US Alien Tort Claims Act - now restricted considerably after the Supreme Court’s 2013 Kiobel judgment, greater efforts are necessary to strengthen access to remedy in domestic jurisdictions.

Several studies are underway to deepen understanding of barriers to access to justice for both domestic and extraterritorial claims and to identify steps states should take to meet their duty to protect victims of human rights abuses. The UN Office of High Commissioner for Human Rights has launched a process aimed at creating a fairer and more effective system of domestic law remedies in cases of serious corporate related human rights abuses.

A February 2014 study focused on identifying barriers to accessing justice at the domestic level, highlighted how differences in domestic approaches are impacting the way domestic remedial systems are used in practice.

Numerous legal and procedural barriers currently exist such as the impossibility of applying criminal law sanctions to corporate entities in some jurisdictions as well as rules that restrict the ability of individual victims, their representatives and other organisations (e.g. NGOs) to initiate and participate in legal proceedings. Practical and financial barriers such as “loser pays” rules, lack of availability of experienced legal counsel and challenges associated with collective action arrangements are also critical issues requiring action.

This initial OHCHR fact finding study is currently being followed up by a more in-depth process that will include global consultations in 2015 and comparison of 20 jurisdictions covering six issues: domestic law tests for corporate accountability; roles and responsibilities of interested states; overcoming financial obstacles to legal claims; criminal sanctions; civil law remedies and practices; and policies of prosecution bodies. The planned end-point of this effort is credible and workable guidance for states.

As momentum gathers during 2015 on a proposed legally binding instrument on business and human rights, there will be increased pressure on governments to demonstrate that they are using existing laws to provide effective remedy to victims of human rights abuses in cases involving companies – domestic or foreign – or show they are taking steps to change policies and laws to ensure such remedies can be provided domestically. Efforts to deepen understanding of key barriers in this area should provide states with valuable information they need to take action. States may soon find they are running out of excuses for inaction.

Forced labour and human trafficking in global supply chains will continue to be an issue of major concern in 2015. Companies associated with these practices are exposed to significant reputational risk, and in some cases they have faced lawsuits. There is also adverse business impact, as operational efficiencies are compromised.

Chronic and dire poverty compels people seeking work to enter into agreements with unscrupulous and criminal entities that compromise and undermine their human rights. Companies cannot claim ignorance of such practices; they are expected to know and take steps to eliminate the use of forced labour and avoid actions that contribute to trafficking.

Progressive companies are increasingly seeking to form long-term relationships and work in partnership with their suppliers to improve practices. But these efforts are often hampered by complex supply chains, which distance the main business from those tiers of their operations continents away in different environments and answerable to different regulations. Companies do not always have leverage: many operate with relatively small capacity and with a diverse supplier base. Such companies have limited ability to effect change. However, addressing this issue is no longer optional.

The UN Guiding Principles on Business and Human Rights explicitly makes clear states’ duties to protect human rights from abuses involving non-state actors, including companies. In many countries, however, government ability to protect worker rights and create an environment that encourages responsible business is constrained, either through lack of resources, endemic corruption or simply unwillingness to act.

The past year saw some encouraging signs of progress. In September 2014, a coalition of companies, who are members of the Ethical Trading Initiative, explicitly stated the importance of ensuring protections for both workers and legitimate law abiding businesses. In a joint response to UK Government proposals for the UK Modern Slavery Bill the coalition noted:

“Voluntary initiatives and partnerships can achieve vital progress in improving standards and tackling modern slavery. But effective and strong regulation can ensure such change occurs across industries, not just in the supply chains of responsible businesses.”

Also in 2014, Hewlett Packard announced that it would recruit workers in future only directly, and not rely on recruitment agencies, with a view to prevent the likelihood of trafficking or forced labour contaminating its supply chain and Coca Cola issued new supplier guiding principles which amongst other commitments confirmed that any recruitment fees should be paid by the employer and not the worker.

The new Protocol to ILO Convention 29 on Forced Labour unanimously agreed in June 2014, is another important signal that governments must act. This protocol brings Convention 29 up to date and explicitly references human trafficking, migrant workers and the role of recruitment agencies. After ratification, the protocol can form the basis for improved national legislation to ensure worker protection.

Globalisation has transformed the way we work. Changes in the global economy have created many employment opportunities that did not exist earlier, but have also brought an end to jobs in many countries. Under the new business paradigm, short-term contracts and agency workers are quickly becoming the norm.

These realities leave many workers exposed to a downward spiral of low pay, poor conditions and insecurity. In some supply chains, workers are subjected to dangerous working conditions or forced or bonded labour.

Trade unions face real challenges in establishing themselves in workplaces and must overcome new barriers to recruiting, organising, and protecting workers in the same ways they did previously. Yet while union power has declined over recent decades, there are signs that unions are developing new ways to respond.

Some unions are becoming far more community based, bringing together and creating coalitions of different groups to work on shared issues of concern. Where unions are unable to organise in the workplace, they are increasingly able to find allies to advocate for their agenda.

Examples of community organising can now be seen throughout the world. One such example is a campaign in the UK around Living Wage, which brings together the union Unite and Citizens UK (Formerly London Citizens) with a wider coalition to demand better conditions and pay for London’s hotel workers. In the Global South unions are engaged within a range of small-scale projects working alongside other civil society organisations to find new ways to reach out and organise workers, in particular those working informally. Other unions such as the Self-Employed Womens' Association have been based around community organisation from their foundation.

New international bodies, which create federations of smaller unions, are also part of union responses to a rapidly changing environment. IndustriALL is one such example. Such coalitions enable unions to negotiate with large business entities on a more equal footing.

Effective, knowledge-led unions can be an important resource in ensuring protection for workers as well as bolstering operational efficiencies for business. Where companies face reputational and operational risks through their supply chains, unions are key allies in identifying and overcoming both workplace and societal challenges – not just in articulating and dealing with grievances but also improving operational practices.

One such example is the involvement of IndustriALL in the Bangladesh Accord, one of the major responses to the 2013 Rana Plaza factory tragedy where more than 1,100 people died. The Accord aims to improve health and safety management at garment exporting factories in Bangladesh. The involvement of the union has been key to the credibility and operation of the Accord process. Building on this initiative, a number of garment-buying fashion retailers have been working in partnership with the union to pay living wages in Cambodian garment factories.

Constantly evolving and rapidly changing forms of work will continue to be an essential feature of globalisation. In 2015, we expect to see more efforts aimed at strengthening trade unions to ensure that workers’ rights are protected and not undermined.

Concerns continued to rise during 2014 over mass surveillance practices of government intelligence agencies. The human rights community has been vocal in opposing the bulk collection of data as an unjustified infringement on the right to privacy with significant adverse impacts on other rights, including freedom of expression, assembly, information, and political participation.

A 2014 report by the UN Office of High Commissioner for Human Rights on The Right to Privacy in the Digital Age stated that mass surveillance is “emerging as a dangerous habit rather than an exceptional measure” and that practices in many States reveal “a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight.” Ben Emmerson, the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, stated in his recent report: “The adoption of mass surveillance technology undoubtedly impinges on the very essence of that right [to privacy].”

The debate is still far from being resolved, but ICT companies implicated in mass surveillance are taking steps to restore user trust. For example, Apple and Google are strengthening encryption of mobile services as a default measure, making it extremely difficult for anyone to access user data unlawfully. Corporate encryption is in response to accusations of government surveillance and has prompted criticisms from several governments that such technologies will enable terrorists to act, as we noted here. In the UK, the recent Intelligence and Security Committee (ISC) report into the murder of Fusilier Lee Rigby, criticised global tech companies for not doing more to prevent terrorists communicating online, overshadowing the fact the report also identified several failures on the part of the security and intelligence services.

Following on from a UN Resolution adopted last year on the right to privacy in the digital age, a new resolution states that the legal framework of surveillance must be clear and publicly accessible; considers the interception of metadata to be a highly intrusive act; and calls for access to remedy for individuals whose right to privacy has been violated because of surveillance. The resolution also encourages the UN Human Rights Council to consider appointing a UN Special Rapporteur on the Right to Privacy.

A global debate on the use of mass surveillance techniques is taking shape. Without this, it is impossible to assess whether such programmes are proportionate to serious terrorism threats. And in vast parts of the world, scrutiny of intelligence agencies has not even begun. In 2015, intelligence agencies will face stronger calls, including by ICT companies, to publicly argue their case for bulk collection of data. Transparent and clear rules are needed that protect public safety without unduly compromising individual liberty.

Businesses have legitimate needs to use or acquire land to carry out any number of economic activities. But too often, land acquisition and use by companies results in adverse human rights impacts for local communities and others who have prior claims to the land, as users, tillers, or owners. Severe impacts on livelihoods and living standards of small farmers and local communities can accompany large-scale land acquisition necessitated by agricultural and forestry projects, among others, particularly in land-scarce regions.

2014 saw several new developments in efforts to combat land grabs. For example, in January, India’s new Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into effect. The new Act establishes regulations for land acquisition and sets rules for granting fair compensation, rehabilitation and resettlement to affected persons. Many other countries are considering changes to their land acquisition laws. Ethiopia, Laos and Cambodia have all called temporary or permanent halts to large-scale land acquisitions.

In October 2014, the Committee on World Food Security (CFS) approved Principles for Responsible Investment in Agriculture and Food Systems. These Principles should guide investment in agriculture and food systems, so that cross-border and corporate investment flows lead to improved food security and sustainability and respect the rights of farm and food workers. They build on the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, endorsed by the CFS in May 2012.

This new multilateral commitment is undoubtedly a step in the right direction but the value of the new Principles will depend on whether they change practices on the ground in ways that improve the lives of local small scale producers. Civil society groups following the process have welcomed their references to human rights but justifiably questioned how these will be applied in the context of trade provisions.

The campaign against land-grabs started to show some traction in the business world during 2014. Several companies (PepsiCo, Coca-Cola, and Nestle) came forward and pledged zero land-grabs in their supply chains. Also of note, contracts for extractive industries and large-scale agricultural projects are increasingly being collected and analysed.

Taking a cue from the oil, gas and mining sectors, which are slowly moving toward greater transparency in revenues and contracts with governments, will 2015 see a new movement for transparency of agricultural contracts? That would be a positive move, but just one step in the longer road towards deeper understanding of how to make contracts and the accountability that should accompany them deliver positive results for the lives of millions of small holders, contact framers, migrant agricultural workers, and communities.

Year after year, developing countries lose more than $1 trillion due to crime, stolen public property, bribery, corruption and tax evasion. These illicit financial flows are compounded by illicit trade in goods and commodities such as weapons, drugs, minerals and gems, timber, and human organs, as well as trafficking of people and smuggling of migrants. Human rights violations accompany every turn of these financial flows. The ultimate destination of illicit funds, laundered as they flow, is often the safe shores of developed countries.

Today, there are multiple initiatives and approaches to combat illicit financial flows, including the ongoing efforts of the OECD, G20 and G8. In 2014, the Financial Action Task Force (FATF) issued guidance on transparency and beneficial ownership, designed to prevent the misuse of corporate vehicles, such as companies, trusts and other types of legal persons and arrangements for money laundering, terrorist financing and other illicit purposes. The OECD also sponsored an agreement for automatic exchange of tax information, meant to eliminate banking secrecy and reduce international tax fraud and evasion. The OECD BEPS Project aims to create a coherent set of international tax rules to end the erosion of national tax bases and the artificial shifting of profits to jurisdictions solely to avoid paying tax.

Human rights campaigners are teaming up with financial experts to enhance due diligence to detect signs of trafficking, as seen in a due diligence tool called Finance Against Trafficking.

The financial integrity movement is also focusing on the human rights consequences of lax financial integrity.  The New Haven Declaration on Human Rights and Financial Integrity articulates this link:  “Human rights and international financial integrity are intimately linked…Today, large outflows of illicit money – many times larger than all development assistance – greatly aggravate poverty and oppression in many developing countries . . . We. . . call for decisive steps to ensure that developing countries can retain their resources for sustainable growth and poverty alleviation, which they must achieve if the human rights of all people are to be realized.”

Human rights abuses can also arise from legal transfers of money as the financial crisis and subsequent austerity measures demonstrated. The massive risk taking leading up to the crisis resulted in widespread severe human rights impacts and subsequent austerity measures have significantly constrained government budgets in delivering services, further marginalizing vulnerable groups.

In 2014, the United Nations Environmental Programme (UNEP) began a two year Inquiry into a Sustainable Financial System. IHRB recently co-hosted a discussion with UNEP to understand the linkages between fiscal and monetary policies, financial regulations and human rights. The discussion confirmed several obvious and less obvious linkages, and the value of adding a human rights lens to monetary and fiscal policy to contribute to a sustainable financial system. Will 2015 be the year in which the human rights dimensions of financial flows – licit and illicit – are further exposed, through the efforts of the UNEP Inquiry and other initiatives?

Sexual violence is arguably the most widespread of human rights abuses and is grossly underreported. Sometimes the workplace is a sanctuary from violence and harassment in the wider society. In other cases, it is the work itself that provides the venue for such harm.

During 2014, over two thirds of UN member states signed a declaration on the elimination of sexual violence in conflict. These countries have agreed that there should be no amnesty in peace agreements for those found guilty of rape. However, there is no direct reference to the role of business in the declaration, and arguably business related sexual violence in conflict has not received the attention required.

The incidents of sexual violence by guards at the Pogera mine in Papua New Guinea and the controversy over the subsequent remedy framework put in place may be the cases that start to generate more focused attention on the potential for business related actors to engage in sexual violence in a range of conflict settings.

Outside of conflict situations, key workplace risk factors for sexual violence identified by the ILO include: sex-segregated workplaces, pay discrimination, precarious contracts and the lack of female worker representation. Key vulnerable groups include domestic workers, migrant workers, lower-status workers, service sector workers and sex workers. Men and boys, as well as women and girls, can also be vulnerable to such exploitation in specific contexts.

While women can face harassment in manufacturing jobs, these environments can be safer than sectors such as health services or agriculture. In 2012, Human Rights Watch reported that the prevalence of sexual violence in agriculture in the USA was serious. In East Africa, a culture of sexual favours persists in many parts of the agricultural supply chain including large tea plantations and some estimates indicate nearly half of all women experience some form of sexual violence. In India, the issue of sexual violence has become an issue of national shame and again it is women working in the fields that are amongst the most vulnerable to rape and murder.

Will we see greater attention to combating workplace sexual violence in 2015? There are some signs of action. For example, in the USA efforts to better protect thousands of fieldworkers are gathering momentum and in India, the new Prime Minister promised action in his first Independence Day speech. Important too is representation – Norway, Sweden and Australia have taken steps to ensure gender diversity on panels and boards. This is a small but important step and one in which men can also play a key role.

Much more is needed and companies could begin to demonstrate leadership in this area as well. One step in this direction would see food and retail companies making public commitments to ending sexual violence in their supply chains.

In 2015, the United Nations will adopt new Sustainable Development Goals (SDGs) to chart the course for the international development agenda to 2030. An initial draft set of goals and targets was proposed in August 2014, developed by an inter-governmental Open Working Group. They present 17 goals across a gambit of pressing issues, from poverty eradication (Goal 1) to employment and decent work (Goal 8) to climate change (Goal 13) to access to justice and accountable institutions (Goal 16).  The UN Secretary-General has recently released a Synthesis report as the latest contribution to the post-2015 agenda setting process.

Both the Working Group’s draft and the Secretary-General’s report seek to reflect the role of the private sector in a way that was missing from the Millennium Development Goals, acknowledging the contribution business can make to economic growth and innovations fostering sustainability.

However, it’s long been acknowledged that business activities can also adversely impact people and the environment. The Secretary-General’s report broadly references the benefits that ‘an enabled, properly regulated, responsible’ private sector can offer to sustainable development, but does not seize the opportunity to reaffirm state duties in setting frameworks for responsible business or the baseline expectation that businesses’ contribution to promoting economically, socially and environmentally sustainable development starts with respecting the rights of those affected by their activities.

The Secretary-General’s report does take a welcome step forward from the Open Working Group’s draft in terms of acknowledging some key standards. It explicitly references the UN Guiding Principles on Business and Human Rights, ILO core labour standards and UN environmental standards as those to which investment policies implementing the SDGs should align. It also seeks to raise the bar around corporate reporting, encouraging states to adopt mandatory Economic, Environmental, Social and Governance (EESG) reporting regimes which would, if implemented, create a vital new layer of transparency in these areas.

The Synthesis report also makes a brief reference to ‘principled and responsible’ public-private partnerships, which are being positioned as one of the key means of implementing the SDGs. Hundreds of such partnerships exist between governments and other actors, including companies, and take many forms in seeking to address many development challenges. But despite their numbers, there isn’t yet solid evidence or shared views on what good practice looks like. Effective tools for evaluating the governance and impacts of such partnerships must still be developed.

In advance of finalizing the SDGs in September 2015, and in an effort to contribute to understandings of what ‘principled and responsible’ partnerships look like in practice, IHRB will be reviewing the “state of play” of a selection of ongoing partnerships and how they set policy objectives, develop governance structures, adopt operating and performance standards, and incorporate accountability mechanisms. The aim is to examine the extent to which these partnerships are consistent with international human rights standards including how they prevent and remediate the unintended adverse impacts of their interventions.

Since the 2011 endorsement of the UN Guiding Principles on Business and Human Rights, much of the focus of implementation efforts has understandably been on building awareness amongst companies and encouraging positive incentives for them to act on their responsibilities. A growing number of tools for companies are now available, including sector guides and other resources. Incorporation of bespoke due diligence requirements in binding rules and regulations such as US reporting requirements for companies investing in Burma-Myanmar, Dodd-Frank conflict minerals provisions, and an EU non-financial reporting Directive, amongst others, are also notable developments.

Far less attention has been paid to the progress States have been making to implement the expectations set out in the UN Guiding Principles under the State Duty to Protect Human Rights. But this is beginning to change as can be seen in IHRB’s 2014 review of the “state of play” of how over 70 States are incorporating various rights related incentives and disincentives in wide-ranging economic policy approaches.

One major development in 2014 was the increasing prominence given to State efforts to implement the Guiding Principles through the development of National Action Plans (NAPs) on business and human rights. Following on from the European Commission 2011 Communication on CSR, which invited EU Member States to develop such plans, the UN Working Group on Business and Human Rights, National Human Rights Institutions (NHRIs), civil society groups and academics have joined the call.

As of December 2014, the governments of the United Kingdom, the Netherlands, Italy, Denmark, Spain and most recently Finland, have adopted NAPs. And uptake has begun to expand beyond Europe, with numerous plans under development globally, including recent commitments from the United States, Tanzania, and Colombia, amongst over a dozen others. At the same time, the balance has not tipped, with the vast majority of countries yet to commit to developing business and human rights NAPs.

Given the limited number of plans to date, the content and approach has varied. And while NAPs can take many forms and no one size fits all, efforts to establish a baseline approach to their development, monitoring and evaluation processes will continue in 2015. It will also be a telling year for holding states to account for implementing the commitments made and targets set. This will include reporting on challenges and lessons learned, as well as clear plans for progressive next steps in improving the effectiveness of policies, legislation, regulation and adjudication to prevent, investigate and account for adverse human rights impacts involving business.