International Seminar The rights of the child, the business sector and the international legal framework Château de Penthes, Geneva, 14 June This one-day seminar took place in the context of the efforts by the International Commission of Jurists (ICJ) and other organizations to assist in the implementation of General Comment No 16 of the Committee on the Rights of the Child on State obligations regarding the impact of the business sector on children’s rights, which is the first document of its kind produced by a United Nations Treaty Body on the issue of business impacts on the rights of the child and corresponding State obligations. Purpose and Objectives The ICJ, in collaboration with the Committee on the Rights of the Child (Committee or CRC), hosted on 14 June 2014 an International Seminar on “The rights of the child, the business sector and the international legal framework”. The Seminar explored some key areas where the application of General Comment No 16 (GC 16), as an instrument for better application of the Convention on the Rights of the Child (Child Rights Convention) in the context of business operations, can be particularly relevant. These are the following: the reaffirmation of the States’ duty to protect human rights, in particular the rights of the child; the guarantee of the right to a remedy and justice; the question of human rights and child rights impact assessments as a tool to prevent violations and abuses; and the elaboration of national action plans for the implementation of the Child Rights Convention. It aimed at providing a forum for stakeholders to take stock of the areas and ways in which the application of the Child Rights Convention and GC 16 can make a clear contribution to international efforts to ensure protection and respect for child rights in the context of business operations. Participants The seminar was open to the participation of members of the CRC, staff of the OHCHR (Secretariat of the Committee on the Rights of the Child and Secretariat of the Working Group on the issue of human rights and transnational corporations and other business enterprises), UNICEF, ILO and NGO representatives in this domain, including BIC, CORE, IBFAN, Save the Children, CRIN, Danish Institute of Human Rights, Child Rights Connect, CIEL, FIAN International, Defence for Children International, Global Child Forum, Franciscans International and OAK Foundation. 1 Outlines of Main Interventions at the International Seminar on “The rights of the child, the business sector and the international legal framework” Introduction and welcome speech The President of the Committee, Ms. Kristen Sandberg, welcomed the participants to the seminar. Mr. Carlos Lopez, Senior Legal Advisor at the ICJ, introduced the objectives of the Seminar, stressing that the purpose of the Seminar was to understand the key contents of GC 16 and how its application could improve the protection of children’s rights. Session 1: The Child Rights Convention and General Comment 16’s contribution to the global discussion on business and human rights Moderator: Kirsten Sandberg, President of the CRC Speakers: Marta Mauras, Ambassador, Permanent Mission of Chile to the UN, and former member of the CRC Monica Lindvall, Save the Children, Sweden Marta Mauras introduced GC 16 and the key elements of the CRC’s decision to move into the area of business and human rights by adopting GC 16. In the international arena, businesses’ impact on human rights has been largely discussed. At the end of the 1990s, the then Human Rights Commission (HRC) discussed a binding instrument that was rejected. The UN Secretary General decided to appoint a special representative on this issue, namely Professor John Ruggie. In 2010, the CRC started collecting jurisprudence in the area with the help of the ICJ, who provided the CRC with cases of corporate abuses of children’s rights in a systematic way. Finally, in September 2010, the CRC approved the idea to develop a General Comment on this subject and conducted widespread consultations to this end. In adopting the General Comment, CRC discussions firstly focused on the target audience of the document. Instead of providing guidelines to businesses, as the recently approved UN Guiding Principles on Business and Human Rights (UNGPs) had done, the CRC decided to focus on State obligations and the implementation of a framework to oblige businesses to abide by and respect children’s rights. Unlike other General Comments, the CRC did not do an article-by-article analysis of the Child Rights Convention, but instead defined the four principles of the Convention as the basic pillars of GC 16. The CRC took an amplified position in terms of its interpretation of human rights law and used established language on the issue, i.e. governments have the obligation to respect, protect and fulfil human rights obligations. It also looked into the extraterritorial obligations of the States and at specific contexts in which violations occur. Finally, Ms Maurás pointed to the lack of collaboration among the Treaty Bodies and Special Procedures, concretely between the CRC and the Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group). Reference was also made to a suggestion regarding the inclusion in the HRC draft resolution on business and human rights of an express mention of the work done by the CRC and the need for the Working Group to collaborate with other Treaty Bodies. Monica Lindvall introduced the Children’s Rights and Business Principles (CRBPs) and outlined the work that Save the Children, Sweden, is doing in this regard. The issue of corporate social responsibility (CSR) has been the subject of international attention for quite some time. However, nothing had been elaborated on the issue of corporate 2 responsibility in the context of children’s rights. Kofi Annan, as UN Secretary General, saw an opportunity for businesses to be used as a force for good and appointed a Special Representative on the issue of business and human rights. Following the approach of principled pragmatism, the Special Representative’s work resulted in the formulation of a set of voluntary guidelines. After few years of collaboration with private sector actors, Save the Children was inspired by the Global Compact principles and decided to formulate stand-alone children’s rights and business principles (CRBPs). Save the Children worked and consulted with children to ensure that their views were taken into account in drafting the CRBPs. In addition, the Child Rights Convention and the ILO standards on minimum age and forced labour formed the basis of these principles. Save the Children’s presentation outlined the role of governments and the need for collaboration with the private sector. It was suggested that governments liaise with the private sector in their countries to gain momentum in the enforcement of children’s rights. On the other hand, while the importance of identifying gross violations was highlighted, it was felt that naming and shaming corporations might not be the best approach to take to ensure compliance with their obligations in this regard. Three areas were highlighted where principles can be shared: work place; market place; and community and the environment. The need for the private sector to commit to business principles on human rights and do an internal analysis to ascertain how core activities affect or impact upon child rights was also underlined. Nevertheless, in connection with GC 16, it was felt that it is imperative for governments to have national legislation in place relating to business activities and monitoring mechanisms to examine what businesses are doing in various countries. Both governments and the private sector must take children’s views into account, to understand what they can do and what can be improved. Finally, an analysis of the ten CRBPs was undertaken, highlighting the most important ideas regarding business impact on children’s rights and how to redress it. After the speakers’ presentations, the floor was opened to participants for questions and comments. It was pointed out that the two business and human rights resolutions in the Human Rights Council could be regarded as complementary because there are many regulatory gaps and because all current resources are only focused towards implementing the UNGPs. Further, the view that national action plans are insufficient to bridge the gaps in the sphere of business and human rights was expressed. Concerns were also raised regarding companies’ use of CRBP for ‘blue washing’ and the need to ensure that the said principles do not distract governments and businesses from complying with their legal obligations such as minimum ages, which are mandatory and not voluntary. In this regard, child labour has decreased between 2008 and 2012 even in the midst of the financial crisis. Furthermore, it was highlighted that social protection acts as a buffer against child labour. Parents’ access to decent jobs and working conditions also helps in tackling child labour issues. Questions were raised in relation to the fact that GC 16 refers to businesses both as profit and non-profit organizations. Moreover, GC 16 articulates home State responsibilities, which seems to be a fault line in the debate over the two resolutions currently under discussion at the HRC and which made the participants query the States’ reactions on these issues. 3 Marta Mauras referred to the fact that the Human Rights Council was in that moment discussing two parallel resolutions on the issue of business and human rights, which many saw as not complementary, and suggested that a legally binding international instrument would materialise only if building on countries’ legislation at the national level. Additionally, existing National Action Plans are not child-specific and in two to three years there may be more action plans under development that will need guidance to incorporate a children’s rights aspect.