Commentary by Miriam Saage-Maaβ Vice Legal Director & Coordinator of Business & Human Rights Program European Center for Constitutional and Human Rights July 2012
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How serious is the international community of states about human rights standards for business? commentary by Miriam Saage-Maaβ Vice Legal Director & coordinator of Business & Human Rights program European Center for Constitutional and Human Rights July 2012 Recent developments have shown one more time that the struggle for human rights is not only about the creation of international standards so that the rule of law may prevail. The struggle for human rights is also a struggle between different economic and political interests, and it is a question of power which interests prevail. 2011 was an important year for the development of standards in the field of business and human rights. In May 2011 the OECD member states approved a revised version of the OECD Guidelines for Multinational Enterprises, introducing a new human rights chapter. Only a month later the United Nations Human Rights Council (UNHRC) endorsed by consensus the UN Guiding Principles on Business and Human Rights.1 These two international documents are both designed to provide a global standard for preventing and addressing the risk of business-related human rights violations. In particular, the UN Guiding Principles focus on the “State Duty to Protect” and the “Corporate Responsibility to Respect” in addition to the “Access to Remedy” principle. This principle seeks to ensure that when people are harmed by business activity, there is both adequate accountability and effective redress, both judicial and non-judicial. The Guiding Principles clearly call on states to ensure that they provide effective judicial remedies for cases of business-related human rights violations.2 Given the fact that the UN Guiding Principles managed to receive the support of the international community, one was potentially left with the hope for a future where companies increasingly respect human rights, national governments strive to effectively protect individuals against corporate human rights abuse and victims of corporate abuse have access to effective remedies, granting them rehabilitation and compensation for the losses suffered. This optimism might also have been supported by some legal victories won at the national level. An Ecuadorian Court issued a landmark decision against Chevron in February 2011, holding the company legally accountable for the massive contamination of Ecuadorian rainforests and groundwater and the resulting health impact on the local population. Chevron was ordered to pay US$18 billion in damages. Even if one was inclined to be idealistic in 2011, the developments of 2012 clearly bring us back to reality. While in 2011 governments worldwide, and especially in Europe, positioned themselves as firm supporters of human rights standards for business activities, in 2012 some of the same governments lined up with Shell against Nigerian plaintiffs in the Kiobel case before the US Supreme Court. The plaintiffs are seeking compensation for gross 1 UNHRC, resolution 17/4 adopted on July 6, 2011, (UN Doc A/HRC/17/4). 2 See Commentary on Principle 25 “Unless States take appropriate steps ton investigate, punish and redress business-related human rights abuses when they occur, the State duty to protect can be rendered weak or even meaningless.” See also Principles 26: „Effective judicial mechanisms are at the core of ensuring access to remedy. […] States should ensure that they do not erect barriers to prevent legitimate cases from being brought before the courts […].(UN Doc A/HRC/17/31) human rights violations by the Nigerian Government in which Shell allegedly was involved. Governments such as Netherlands, UK and Germany, were willing to commit to human rights and the human rights responsibilities of business at the UN, but they obviously are not willing to follow through with these commitments. Not even a year after the endorsement of the UN Guiding Principles which emphasise the importance of effective remedies for victims of corporate abuse, these governments support the abolition of the Alien Torts Claims Act, one of the few national remedies available worldwide. It is also apparent that the corporate defendant and its allies in the lawsuit not only fight in the arena of the court of law, but are using all their lobbying capacities as well. This has become quite clear in the case of the German government3. The sudden turn of the US Government from supporting the Nigerian plaintiffs to supporting Shell also leaves hardly any interpretation other than that the voice of business managed to make itself very well heard. At the same time the Nigerian plaintiffs in the case against Shell and their supporters have managed to mobilise a great deal of international support. Dozens of international scholars have written legal briefs in support of the plaintiffs, countering the legal opinions of the corporate defendant. Members of national parliaments in the Netherlands, UK and Germany have questioned their governments’ stance in the case and some have even clearly positioned themselves in the proceeding through amicus curiae (“friend of the court”) briefs.4 The pending Kiobel court case has led to the mobilisation of many civil society and academic actors. They are supporting more than just the plaintiffs in this one case: many of those supporting the Kiobel plaintiffs support the idea of legal mechanisms on the national level which hold companies accountable for human rights violations and enforce the corporate responsibility to respect. And it is governments that they are really addressing: national governments need to step up and bring life to the UN Guiding Principles. While corporations may find ways to effectively implement human rights due diligence processes, governments need to guide and regulate for the common good. Businesses will always have a biased approach to their human rights responsibilities. Governments should not on one hand encourage and demand corporate respect for human rights but on the other support the impression that whenever human rights requirements might put some (perceived) restrictions on foreign trade and investment, economic interests prevail. It is national governments that need to take into account the interests of all – the interests of business and the interests of the individuals impacted by business activities. Governments need to acknowledge that they cannot maintain human rights discourses and policies, while paying no attention to human rights when encouraging foreign trade and investment. Governments need to take into account the growing consensus that states have not only human rights obligations towards citizens in their territory but that especially the EU and US governments need to take into account the extraterritorial human rights impacts of their trade and investment policies. 3 See Response of the Federal Government to the Minor Interpellation tabled by the Members of the Bundestag Volker Beck, Marieluise Beck, Agnes Brugger and others and the Alliance 90/The Greens parliamentary group “The Conduct of the Federal Government in the Case of Kiobel versus Shell”, Bundestag printed paper 17/9687,11 May 2012:http://www.volkerbeck.de/cms/files/response_mi_kiobel_v._shell.pdf. 4 Supplemental Brief of Volker Beck and Christoph Strässer, Members of Parliament of the Federal Republic of Germany, Amici Curiae in Support of Petitioners, June 11, 2012, http://www.earthrights.org/sites/default/files/documents/ERI-German-MPs-amicus-brief-Kiobel-v-Royal-Dutch- Petroleum.pdf. If governments are unwilling to take these steps, the UN Guiding Principles will remain a lifeless UN document and victims of corporate abuse will remain without adequate redress. .