Chris Esdaile from the International claims team discusses latest efforts to create binding international rules on companies with regard to their human rights impacts.

The latest efforts to create binding international rules on companies with regard to their human rights impacts have got off to a predictably fragile start. A good summary of the present position can be found here.

Despite the enthusiasm of NGOs and activists, the energy and excitement generated by the first faltering steps towards a binding treaty have far outweighed the prospect of any real progress towards an agreement.

This is not surprising given the difficulty in persuading many states to endorse the idea of hard law on these issues – those states hosting the headquarters of the large multinationals are particularly reluctant - still less the companies themselves.

So it is encouraging (not to say, slightly surprising) to find the main “soft” law (ie non-binding) framework on business and human rights, the UN Guiding Principles on Business and Human Rights (UNGPs), being taken seriously by a real court.

On 28.1.16 the Inter-American Court of Human Rights (IACHR) published its judgment in the Case of the Kaliña and Lokono Peoples v Suriname in November last year (full judgment here - see paragraphs 223 -226), in which it found that the state (Suriname) “failed to comply” with the Guiding Principles’ “safeguard” that “businesses must respect the human rights of members of specific groups or populations, including indigenous or tribal peoples, and pay special attention when such rights are violated.”

The case involved the alleged violations of rights of various communities of two indigenous groups living in Suriname, groups previously unrecognised by the state and who had therefore previously enjoyed no protection of collective land rights.

The communities claimed to have been adversely affected by the granting of concessions and licences to carry out mining operations, and by the presence of nature reserves in parts of their ancestral territory, neither of which had been subject to any consultation procedure aimed at obtaining the communities’ consent.

It was alleged that the activities had restricted access to land, caused damage to the environment, and impacted on the communities’ ability to hunt and fish.

The IACHR quoted the UNGPs which state: The initial step in conducting human rights due diligence is to identify and assess the nature of the actual and potential adverse human rights impacts with which a business enterprise may be involved.

The purpose is to understand the specific impacts on specific people, given a specific context of operations.

Typically this includes assessing the human rights context prior to a proposed business activity, where possible; identifying who may be affected; cataloguing the relevant human rights standards and issues; and projecting how the proposed activity and associated business relationships could have adverse human rights impacts on those identified.

In this process, business enterprises should pay special attention to any particular human rights impacts on individuals from groups or populations that may be at heightened risk of vulnerability or marginalization, and bear in mind the different risks that may be faced by women and men.

The IACHR concluded that the collective property rights of the communities had been violated by Suriname, in part because the state “did not ensure that an independent social and environmental impact assessment was made prior to the start-up of bauxite mining, and did not supervise the assessment that was made subsequently…”

Whilst the case was not brought against the company involved, and finds no violation by the company itself, it does appear to have a wider significance for the following reasons:

  1. It represents one of the few cases in which the UNGPs have been cited with judicial approval in a court of law;
  2. It provides a precedent for future cases brought before the IACHR and may provide the catalyst for other domestic courts in the region (and beyond?) to consider the normative value of the UNGPs;
  3. The IACHR’s treatment of the UNGPs’ may increase civil society pressure on states to create effective enforcement mechanisms (long seen as the weak link in the implementation of the UNGPs) for those impacted by the activities of big business.

It seems unlikely that this is the start of a process whereby the UNGPs gradually become the hard law dreamed of by those of us yearning for greater legal accountability of big business for human rights abuses (although they will continue to be used in litigation to flesh out the appropriate standard of care which the company should have shown).

But it could mark another small step towards the expansion of the legal patchwork of accountability in domestic/regional courts, which I would argue has more potential to create accountability than (the distant prospect of) a binding treaty.

Some of us have long argued that a binding treaty will be of little practical use to victims of human rights abuses unless it provides an active framework of rights at local and regional levels which are effectively enforced.

The recent IACHR decision is an encouraging sign that the UNGPs might yet become more meaningful and less voluntary, and have a life beyond the “soft law” nursery which raised them.