(Artículo en inglés y español)

A recent General Comment by the UN Committee on the Rights of the Child provides authoritative guidance and fertile ground as to the promotion of corporate accountability for human rights violations, both at home and abroad, writes Lucy McKernan.

By Lucy McKernan, Global Initiative on Economic, Social and Cultural Rights. Este artículo existe también aquí en español.

In the build up to the third UN Forum on Business and Human Rights, ISHR will publish a series of articles by key human rights defenders and experts in this field, before launching a special edition of its Human Rights Monitor on 1 December, in both English and Spanish. Click here to join our Spanish language mailing list.

For human rights defenders working on children’s rights or corporate accountability issues, the General Comment^[1] on business and children’s rights^[2] by the Committee on the Rights of the Child (CRC) has a lot to offer. It provides a detailed and progressive explanation of State obligations with respect to business impacts on children’s rights, offering fertile ground for human rights advocates to engage with the Committee and with States on rights abuses involving business.

The focus of the General Comment is on State obligations under the Convention on the Rights of the Child, with respect to impacts on human rights by business operators and activities within its territory and business activities outside its territory but undertaken by its domiciled business entities.

The Committee takes a comprehensive approach such that it covers a very wide variety of actors, situations and issues and importantly prescribes in detail what States should do to ensure direct domestic legal accountability for business human rights abuses. For instance, in recognition of the role played by international organizations (eg: World Bank, IMF, WTO) in rights abuses and impacts and the intertwining of international organizations and business in large scale development projects, the General Comment addresses international organisations. States are reminded that they must comply with their Convention obligations when acting as members of such organizations and in the field of development cooperation,^[3] including ‘in their decision-making and operations, as well as when entering into agreements or establishing guidelines relevant to the business sector.’ International organizations ‘should put in place procedures and mechanisms to identify, address and remedy violations ….. including when they are committed by or result from the activities of businesses linked to or funded by them.’^[4] This is significant since, despite a number of treaty bodies insisting on State obligations extending to the context of international organisations, many States and international organizations continue to deny the direct applicability of human rights obligations in this context. This was evidenced recently in the rolling back of rights protections in the World Bank’s draft social and environmental safeguards policies.^[5]

The General Comment’s broad and comprehensive approach also means that the door is open for issues not solely about children to be brought before the Committee. For instance, the General Comment talks about land dispossession (impacting whole communities, including children) involving business actors,^[6] IMF loan conditionality,^[7] privatization of public services,^[8] the working conditions of and job creation and skills training for parents,^[9] taxation of corporations and anti-bribery measures to ensure that States have the maximum available resources to realize children’s rights,^[10] and regulation of pharmaceutical industry and of intellectual property rights to ensure access to medicines.^[11]

By way of example, GIESCR and its partner NGOs recently highlighted the issue of the impact of privatization in education on children’s right to education in Morocco^[12] and Ghana,^[13] using General Comment 16 to support our arguments that States have an obligation to ensure that privatization in education does not lead to extreme inequalities. The Committee questioned Morocco about this during its review and followed up with strong Concluding Observations condemning the impact of privatization in education on children’s right to education.^[14]

Another important issue addressed by this General Comment which presents advocacy opportunities, is extra-territorial obligations (ETOs).^[15] The extra-territorial reach of human rights treaty obligations is contested by many States, despite the growing body of treaty body jurisprudence^[16] affirming such obligations. Yet for many victims of rights violations involving business, international human rights protections will remain meaningless unless they operate across borders. In recognition of the difficulties of achieving corporate accountability due to complex legal structures and cross-border nature of business, the Committee has detailed the distinct obligations of both home^[17] and host^[18] States with respect to children’s rights.

For instance, contrary to current home State practice of reducing opportunities for foreign victims to bring claims in their domestic Courts, General Comment 16 says home States must enable access to effective remedy for foreign victims of human rights violations by business ‘where there is a reasonable link between the State and the conduct concerned.’^[19] Another expansive interpretation of ETOs is the requirement that States ensure export credit agencies ‘take steps to identify, prevent and mitigate any adverse impacts the projects they support might have on children’s rights before offering support to businesses operating abroad.’^[20]

These issues were addressed in the CRC’s review of Australia. The Committee expressed concern about:

Australian mining companies´ participation and complicity in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji, where children have been victims of evictions, land dispossession and killings.  …. about reports of child labour and conditions of work of children that are in contravention of international standards in fishing industry enterprises operated by Australian enterprises in Thailand. ^[21]

The Committee recommended that Australia:

Examine and adapt its legislative framework ... to ensure the legal accountability of Australian companies and their subsidiaries regarding abuses to human rights, especially child rights, committed in the territory of the State party or overseas and establish monitoring mechanisms, investigation, and redress of such abuses.;

and

establish the mechanisms for the Export Credit Agency of Australia to deal with the risk of abuses to human rights before it provides insurance or guarantees to facilitate investments broad.^[22]

There are numerous other useful provisions in General Comment 16 which offer broad advocacy avenues and our experience is that the Committee is receptive to new issues and creative advocacy which highlights serious children’s rights issues involving non-State actors.

Lucy McKernan is UN Advocate with the Global Initiative on Economic, Social and Cultural Rights. Follow her on Twitter at @LucMcK