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Biashara Na Haki Impacts of Businesses on Human Rights BIASHARA NA HAKI BIASHARA BIASHARA Part one: Knowing Your Rights NA HAKI IMPACTS OF BUSINESSES ON HUMAN RIGHTS Part one: Impacts of Businesses on Human Rights Knowing Your Rights Knowing Your BIASHARA NA HAKI © 2018 Amnesty International ISBN 978-90-6463-435-2 Cover illustration: Samuel Mwamkinga (Jo’une sammi), Tanzania Illustrations: Samuel Mwamkinga (Jo’une sammi), Tanzania This book is the first of the Handbook series Biashara na Haki, Impacts of Businesses on Human Rights and can be used in conjunction with other books in that series. Biashara na Haki is Swahili for Business and Rights. Distributed by: Amnesty International Netherlands HURICAP PO Box 1968 1000 BZ Amsterdam The Netherlands Email: [email protected] PDF file available at https://www.amnesty.nl/media/huricap/publi- cations-overview-human-rights-capacity-building-programme The publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning or teaching purposes, but not for resale. When doing so, please acknowledge Amnesty International Netherlands as your source. For copying in any other circumstances, or for re-use in other publications, or for transla- tion or adaptation, prior written permission must be obtained from the publishers. BIASHARA NA HAKI IMPACTS OF BUSINESSES ON HUMAN RIGHTS Part one: Knowing Your Rights Contents Amnesty International - 8 Acknowledgements - 9 Introduction - 11 The Ogoni Case - 12 Structure of this Book - 14 Meaning of Symbols - 16 1) BUSINESSES AND THEIR IMPACT ON HUMAN RIGHTS - 17 1.1 Why the impacts of international businesses have increased in Africa - 19 1.1.1 The need for foreign investment - 19 1.1.2 Lack of effective regulation - 20 1.1.3 Investment treaties and investment contracts - 21 1.1.4 The ability of businesses to escape the supervision of any individual State - 22 1.2 What a business is and how a business works - 24 1.2.1 What an international business is - 24 1.2.2 Common business relationships - 25 1.2.3 What pressures motivate a business to respect human rights - 29 1.3 How a business can impact human rights - 33 1.3.1 Businesses’ potentially positive contributions - 33 1.3.2 Introducing potential risks and disadvantages - 36 1.3.3 Labour rights issues - 38 1.3.4 Damage to the environment - 41 1.3.5 Displacement of communities/land rights - 42 1.3.6 Businesses and Security - 42 1.3.7 Businesses and Armed Conflict - 43 1.3.8 Corruption - 43 1.3.9 Access to Remedy - 45 1.4 Human rights impacts on specific groups of people - 47 1.4.1 Migrants - 47 1.4.2 Children - 48 1.4.3 Women - 49 1.4.4 Indigenous Peoples - 50 1.4.5 Human rights defenders - 54 4 HURICAP’S BUSINESS AND HUMAN RIGHTS HANDBOOK 2) INTERNATIONAL STANDARDS AND THE ROLE OF DIFFERENT ACTORS - 57 2.1 The Business and Human Rights Regime - 59 2.2 Host States - 62 2.3 Home States - 65 2.4 Businesses - 69 2.4.1 Rights a business must respect - 70 2.4.2 The scope of a business’s responsibility to respect - 73 2.4.3 What steps a business must take to fulfil its responsibility to respect - 77 2.5 State-Business Relationships - 82 2.5.1 State ownership/control of a business - 82 2.5.2 State support of a business - 82 2.5.3 Privatisation - 83 2.5.4 Legal Licenses - 84 2.5.5 State contracts with business - 85 2.5.6 Lobbying - 85 2.5.7 Corruption - 86 2.6 International Organisations - 87 2.7 Financial institutions - 92 2.8 International Soft Law Initiatives - 96 2.9 National Human Rights Institutions/Ombudsmen - 98 2.10 Multistakeholder and Industry initiatives - 100 2.11 Civil Society Organisations - 106 2.12 Communities - 107 5 3) SPECIFIC HUMAN RIGHTS ISSUES - 109 3.1 Labour rights issues (including supply chains) - 113 3.1.1 Host States - 113 3.1.2 Home States - 114 3.1.3 Businesses - 115 3.1.4 International Organisations - 117 3.1.5 Financial institutions - 119 3.1.6 International Soft Law Initiatives - 120 3.1.7 National Human Rights Institutions - 121 3.1.8 Multistakeholder and Industry initiatives - 121 3.2 Damage to the environment (and impact assessments) - 123 3.2.1 Impact Assessments - 124 3.2.2 Host States - 127 3.2.3 Home States - 127 3.2.4 Businesses - 128 3.2.5 International Organisations - 128 3.2.6 Financial institutions - 129 3.2.7 International Soft Law Initiatives - 130 3.2.8 National Human Rights Institutions - 130 3.2.9 Multistakeholder and Industry initiatives - 131 3.3 Displacement/Land Rights - 132 3.3.1 Host States - 133 3.3.2 Home States - 134 3.3.3 Businesses - 135 3.3.4 Financial institutions - 137 3.3.5 International Soft Law Initiatives - 138 3.3.6 National Human Rights Institutions - 139 3.3.7 Multistakeholder and Industry initiatives - 139 3.3.8 The Special Position of Indigenous Peoples - 140 6 HURICAP’S BUSINESS AND HUMAN RIGHTS HANDBOOK 3.4 Security Arrangements - 141 3.4.1 Host and Home States - 141 3.4.2 Businesses - 144 3.4.3 Multistakeholder and Industry initiatives - 147 3.4.4 Financial institutions - 148 3.4.5 National Human Rights Institutions - 148 3.5 Armed Conflict - 149 3.5.1 Host States - 149 3.5.2 Home States - 149 3.5.3 Businesses - 151 3.5.4 Financial institutions - 154 3.5.5 Multistakeholder and Industry initiatives - 155 3.5.6 International Organisations - 156 3.6 Corruption - 158 3.6.1 Host States - 158 3.6.2 Home States - 159 3.6.3 Businesses - 160 3.6.4 Financial institutions - 160 3.6.5 Multistakeholder and Industry initiatives - 161 3.7 Access to remedy - 163 3.7.1 Host States - 165 3.7.2 Home States - 169 3.7.3 Non-judicial grievance mechanisms - 170 3.7.4 Businesses - 173 3.7.5 International Organisations - 175 Biashara Mbaya: a fictional scenario - 177 ANNEXES Resource Page - 179 Relevant International Actors - 189 Answers Pages for Questions to the Biashara Mbaya Scenario - 194 Acronyms - 206 Glossary - 207 Notes - 214 7 Amnesty International Amnesty International is a global movement of more than 7 million supporters, mem- bers and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. Our vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. Amnesty International is independent of any government, political ideology, eco- nomic interest or religion – we are funded mainly by our members and public dona- tions. This handbook series has been developed and produced by the Human Rights Capacity-Building Programme (HURICAP) of Amnesty International Netherlands. HURICAP strengthens the capacity of human rights organisations and activists in Africa and the Middle East with the aim to help them be more effective in defending the rights of their communities. For more information and to download publications go to www.amnesty.nl/media/huricap. The Biashara na Haki: Impacts of Businesses on Human Rights series seeks to respond to concerns raised by HURICAP’s local partners in Africa that there are insufficient human rights education materials aimed at local non-governmental organisa- tions (NGOs) and community-based organisations (CBOs) in relation to corporate- related human rights issues. This handbook series follows an extensive consultation of various actors regarding what form such capacity-building materials should take (see acknowledgements). Part one: Knowing your rights aims to introduce its readers to international business and human rights standards and their application to specific human rights issues. It should be read in conjunction with Part two: Taking action which will provide users information on how to incorporate business and human rights into their work. The book assumes its readers will already be familiar with the concept of human rights and the main human rights standards and bodies. It can be read in conjunction with HURICAP’s handbook series on economic, social and cultural rights – Haki Zetu ESC rights in Practice – and HURICAP’s Ukweli series on monitoring and document- ing human rights violations in Africa. 8 HURICAP’S BUSINESS AND HUMAN RIGHTS HANDBOOK Acknowledgements This book was researched and written by Benjamin Thompson. He is currently pursuing a PhD in business and human rights at Tilburg University, specialising in mechanisms businesses can design to listen and respond to community grievances. Formerly, Ben has worked as a Programme Officer for Pax for Peace helping co-ordinate the work of Pax, Amnesty International Netherlands and Oxfam Novib on the Dutch Banking Sec- tor Agreement on international responsible business conduct regarding human rights, a position partly funded by Amnesty International Netherlands. He has also previously worked for Utrecht University where he taught courses in international and European law and worked as a researcher on a project on extraterritorial jurisdiction. The work on this booklet was done by Ben on a consultancy basis, and the views expressed do not necessarily reflect Amnesty International’s policy. At numerous points in the book, reference is made to Amnesty International’s positions on various issues based on his interpretation of public statements made by Amnesty Interna- tional, the original sources of which are referenced. For more information on Amnesty International’s input into the international discourse on business and human rights, please visit Amnesty International’s website: www.amnesty.org. Jolanda Groen, who is principally responsible for the Biashara na Haki: Impacts of Businesses on Human Rights series, contributed to the drafting of the hand- book throughout the writing process. Jolanda is currently responsible for monitor- ing and evaluating HURICAP’s country programmes and for setting up a capaci- ty-building programme on Business and Human Rights.
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