1. Public Procurement Learning Lab
Pretoria, 13th November 2017
Daniel Morris

2. Scope of human rights UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966)
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966)
ILO DECLARATION OF FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (1998)
REGIONAL FRAMEWORKS, e.g., AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS
NATIONAL CONSTITUTIONAL HUMAN RIGHTS

3. Why business and human rights?
Despite 60 plus years of the Universal Declaration, human rights abuses continue to be perpetrated.

4. Implementing human rights
INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW
NATIONAL LAW
PUBLIC AUTHORITIES; NON-STATE ACTORS
Explain the basics of the implementation of international human rights law, i.e.
States sign up to international human rights conventions, this means they commit to implementing these domestically…
In national laws such as the constitution, national human rights acts, laws governing anti-discrimination, labour rights etc…
These laws are then binding on public authorities and non-State actors such as businesses…
Who are supposed to uphold them so that rights-holders can enjoy and exercise their human rights
Note that the hierarchy of international human rights law, regional human rights instruments and national law is not as clear-cut as in this slide – but this is to illustrate the basics of how it is supposed to work
RIGHTS-HOLDERS

5. Implementing human rights
INTERNATIONAL AND REGIONAL HUMAN RIGHTS LAW
NATIONAL LAW
NATIONAL LAW
PUBLIC AUTHORITIES; NON-STATE ACTORS
Ask participants where they see the gaps in terms of human rights implementation, e.g.
International human rights law not binding directly on non-State actors
Lack of implementation at the national level
Public authorities and non-State actors don’t uphold the law
Lack of awareness of human rights on part of rights-holders, and oppression
Etc.
Briefly explain access to remedy mechanisms in: international law (i.e. special procedures, UPR and treaty body reporting but not court); regional human rights systems (Americas, Europe and Africa have courts); national laws;
Note ICC in context of int. humanitarian law
RIGHTS-HOLDERS

6. RIGhts-holders and duty-bearers
Primarily the State.
But also non-State actors.
Duty-bearers in a business context may include companies, suppliers, joint venture partners and government authorities.
Rights-Holder
Individuals (and some groups).
Rights-holders whose rights can be impacted by businesses include employees, supply chain workers, local communities and customers.

7. The human rights obligations of duty-bearers
Do companies have the same human rights obligations as States?
No… different human rights duty-bearers have different obligations…

8. The human rights obligations of duty-bearers
States
RESPECT
PROTECT
FULFIL
So, if we say States are human rights duty-bearers what exactly does that mean, what are their obligations…
Explain the three State duties:
The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights – e.g. the State must not pollute the environment (underlying determinants of the right to health); the State must not employ child labour
The obligation to protect requires States to protect individuals and groups against human rights abuses – e.g. the State must enact environmental protection legislation that prohibits businesses from polluting the environment; the State needs to enact laws that set the minimum working age and put protections in place for young workers
The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights – e.g. the State needs to put in place proactive policies and measures to protect the environment e.g. progressive reduction of use of pesticides in food production; e.g. proactive programmes to eliminate child labour
OHCHR e.g.: re: right to work the State would be obliged to:
Respect the right by e.g. not using forced labour or denying political opponents work opportunities
Protect the right by e.g. ensuring that employers pay the minimum wage and provide adequate working conditions
Fulfil the right by e.g. undertaking educational and informational programmes to facilitate public awareness of the right to work

9. The human rights obligations of duty-bearers
Businesses
States
RESPECT
PROTECT
FULFIL
Explain business obligation: corporate responsibility to respect, i.e. companies are not expected to enact laws to protect human rights or to adjudicate like a court of law, nor are they expected to fulfil human rights by e.g. building schools or hospitals
However, they are expected to respect human rights, which means to act with due diligence to avoid infringing on human rights and to take action to prevent and address adverse impacts with which they are involved
… note that the corporate responsibility is a bit different to the State ‘duty’ to respect human rights, the State duty is one of non-interference, the corporate responsibility to respect also hinges on non-interference, however, businesses are expected to proactively implement human rights due diligence to avoid infringements, i.e. it is not a ‘do nothing’ activity

10. The human rights obligations of duty-bearers
States
Primary duty-bearers under international human rights law;
Must refrain from interfering with human rights enjoyment; protect individuals and groups against human rights abuses; and take positive action to facilitate the enjoyment of human rights.
Businesses
Have the responsibility to respect human rights - to act with due diligence to avoid infringing on human rights and to address adverse human rights impact with which they are involved.
Both States and businesses are obliged to ensure that victims of business-related human rights abuses have access to effective remedy.

11. UN Guiding Principles on Business and Human Rights
State duty to protect - effective policies, legislation, regulation, and adjudication
II.
Corporate responsibility to respect – exercise human rights due diligence
III.
Access by victims to effective remedies - judicial and non-judicial
“Each pillar is an essential component in an inter-related and dynamic system”

12. Why have UN guiding Principles?
Globalisation pushes companies into new markets
Company impacts on communities
Host-States are sometimes unwilling or unable to address company human rights impacts
Frequently, home-States don’t regulate their companies abroad
No international governance framework
No clarity on the responsibility of States vs. businesses
No level playing field for businesses, ‘race to the bottom’ for States

13. UN Guiding Principles
Include all internationally recognised human rights
Apply to all States and to all business enterprises
Do not create new international law obligations
Are to be implemented “with particular attention to … individuals … at heightened risk of becoming vulnerable or marginalised, and with due regard to the different risks that may be faced by women and men”
Unanimously endorsed by the
UN Human Rights Council in 2011

14. Convergence around the UN Guiding Principles
United Nations
European Union
African Union
Organisation for Economic Cooperation and Development
International Finance Corporation
World Bank
Industry Associations
ISO Standard
Sustainable Development Goals

15. Why are the Guiding Principles useful for civil society?
Why are the Guiding Principles useful for businesses?
Concrete: Prescribe specific actions for companies to manage their human rights impacts
Define expectations: Require companies to refrain from harming human rights; development initiatives are not an offset
Facilitate dialogue: Companies can begin discussions with governments, workers and communities on the basis of shared values and expectations
Manage risks: Ignoring human rights involves costs to companies (e.g. reputational, financial, legal, operational)

16. Why are the Guiding Principles useful for civil society?
Tool for advocacy: Challenge government and company inaction on human rights
Standards for accountability: Tool for monitoring and evaluating government and company human rights efforts
Shared framework: Clarify government duties and business responsibilities – directing attention to implementation
Participatory processes: Prescribe direct and ongoing consultation with civil society
Vulnerable groups: Companies are required to identify and involve rights-holders, including vulnerable groups (who may be represented by civil society organisations)

17. Why are the Guiding Principles useful for governments?
Alignment of standards: Can be incorporated into labour inspection standards, environmental legislation, investment agreement making, etc.
Basis for legislation: Facilitate the alignment of policies, legislation and government programmes with international standards
Call to action: All government actions should align; facilitating coherence within and between government departments
International engagement: Provide a basis for dialogue between home- and host-States

18. Weaknesses
Soft law standard: Only define principles, do not provide any mechanism to monitor or enforce
Imbalance of power: Do not address power dynamics and imbalances between companies and community members or employees
Extraterritoriality: Encourage but do not require, that States regulate the actions of their companies abroad
Maintain the status quo: Do not challenge the corporate form or public trading of companies
Development: Do not define company responsibilities beyond respecting human rights
Remedy: In practice, access to remedy is becoming the ‘forgotten’ pillar

20. The member associations must also provide specific commitments and information on human rights and labour standards, including:
• an explicit public commitment to respect all internationally recognised human rights in line with the United Nations’ Guiding Principles on Business and Human Rights
• a proposal for a human rights strategy on how to identify and address the risks of adverse impacts on human rights and labour standards …
• guarantees of compliance with international human rights and labour standards from the government and host cities … as well as from the entities responsible for the construction and renovation of stadiums, training sites, hotels and airports