The following comments on the draft Guiding Principles put forward by the UN Secretary-General’s Special Representative on Business and Human Rights (SRSG), John Ruggie, focus on a couple of areas of particular concern. MiningWatch Canada, as a member of the Canadian Network on Corporate Accountability has also endorsed the comprehensive comments entered in the Joint Civil Society Statement by Amnesty International et al.
Particular strengths of the “Protect, Respect and Remedy” framework (The Framework), which raised hopes and expectations, were its identification and naming of core problems – the “governance gaps” that “provide the permissive environment for wrongful acts by companies...without adequate sanctioning or reparation...” – and, in some cases, the identification of potential solutions. The promise held out by the Framework is not fulfilled by the draft Guiding Principles in critical areas because they shrink back from recommending the very solutions that were identified in the Framework.
An important case in point is that of home state regulation with respect to human rights of the activities of business enterprises domiciled in their territory throughout their global operations. Having identified the fact that “wrongful acts” occur as a result of weak governance in host countries, and recognizing that there currently is no international regulatory system or international court where recourse can be sought by those harmed by these wrongful acts, the Framework noted that home States are not prohibited from regulating the activities of businesses domiciled in their territories “where a recognized basis of jurisdiction exists.” While not the whole solution, or the only solution, to the problem of governance gaps identified in the Framework, it is clearly a major contribution to the solution that is arguably realizable in a shorter timeframe than the project of strengthening weak governance jurisdictions or creating international regulatory or legal regimes. Yet the Guiding Principles limit themselves to finding that States “should encourage” businesses domiciled in their territory to respect human rights in their global operations. The commentary provides disappointing indications that this retreat from an effective recommendation is based on the fact that this is a “complex and sensitive issue” and one that is “controversial.” No doubt it is, particularly for some vested interests, but the mandate of the SRSG is not to enable the status quo but to “bridge the gaps.” Where home state regulation is possible, it should be strongly and unequivocally recommended by the SRSG.
With respect to Access to Remedy, and on the issue of State-Based Judicial Mechanisms, the Guidelines are not sufficiently clear in their direction to States with regard to providing access to home state courts for individuals harmed by the activities of home state businesses overseas. The Guidelines should provide more explicit direction with regard to the types of barriers to home state courts that could and should be eliminated. In the commentary, the Guidelines recommend access to home courts in cases “where claimants face a denial of access to effective remedy in a host State.” No guidance is provided as to how this “denial of access” should be determined. As this introduces an area of wide interpretation that is likely to, again, maintain the unacceptable status quo, we recommend a strong recommendation that home states provide access to their courts for individuals who allege that their rights have been harmed by home state companies operating overseas.
Finally, with respect to Non-Judicial Grievance Mechanisms (NJGMs) (State and Non-State based), as these are afforded a lot of space in the Guidelines, and are a matter of considerable concern for us, we provide the following comments, realizing that the Guidelines may change based on outcomes of the grievance mechanisms pilot project. We have found existing non-judicial grievance mechanisms to be deficient with respect to claims by community members against mining companies for one or more of the following reasons: they do not provide sanction and/ or reparation, they are disempowering, and they undermine effective agency of community members who allege that their rights have been violated. The inherent power imbalance between the claimants and those who set up the NJGMs – typically states and/or corporations whose interests are often closely aligned – is such that the procedures drain disproportionate levels of resources and capacity from communities, serve as intelligence gathering exercises for corporations and governments, and restrict critical information (as a result of confidentiality arrangements) that communities need to be able to mobilize to effectively protect their interests. To the extent that the SRSG is aware of these concerns, they need to be very concretely addressed. The current “Effectiveness Criteria” do not address the issue of sanction and reparation.
Prepared by Catherine Coumans, MiningWatch Canada.