Overview of the Declaration
The UDHR was developed in the aftermath of the Second World War in 1948 and was the first global statement of the inherent dignity and equality of all human beings. It provides a common global standard and is effectively a contract between all governments and their peoples. Whilst not all governments have become parties to human rights treaties they have all adopted the UDHR.
It also forms the basis of human rights law and is itself based on the core values of non-discrimination, equality, fairness and universality.1
Containing thirty separate articles the UDHR supports equal rights including the right to life, liberty and the security of the individual.
It prohibits slavery and torture and calls for equal protection under the law. This includes freedom from arbitrary arrest and access to full and fair public hearings by an independent or impartial tribunal. Also outlined is the presumption of innocence, the right to defence and to only be held guilty against laws and penalties applicable at the time the offence was committed.
In addition is the freedom of movement, the right to seek asylum and to have a nationality.
The right to own property and the right of women and men of full age to enter freely into marriage with the full consent of both parties and to start a family is also included in the Declaration. Families themselves are recognised as a fundamental societal unit entitled to protection.
Furthermore is freedom of thought, conscience and religion and the right to practice as well as the right to change them and to express opinion, including through the media.
The right to freedom of peaceful assembly and the association without being compelled to join is enshrined. In addition is the right to take part in national government either directly or through elected representatives and for free and periodic elections as well as equal access to public service and social security.
Labour rights include the right to work with equal pay with just and favourable conditions and for remuneration that ensures an existence of human dignity with protection against unemployment. This also extends to the right to form trade unions and to rest and leisure time, including periodic paid leave. All of which builds to a standard of living adequate for the health and well being of the employee and their family.
There are also a number of articles specifically focused on children regardless of whether they are born in or out of wedlock and access to education including the right to free education at least in the elementary and fundamental stages. Access to higher education should be based on merit and all education should be directed to the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms.
Finally are articles focused on the cultural life of the community and the individual including the protection of moral and material interests resulting from scientific or artistic production.
All of these rights should only be subject to limitations determined by law so as to recognise and respect the rights and freedoms of others.2
The reality and a framework for improvement
When listing these rights it is quite confronting how many of them are flouted in various parts of the world, some closer to home than you might think.
Despite actions from individual organisations, examples of which can be seen in this edition’s CSR case studies, these are too often the exception. Extreme examples are the case of human rights abuses in Dafur and Zimbabwe.3
In Dafur millions of people have been displaced and hundreds of thousands killed by government-supported Janjaweed militias. Alarmingly, there have been claims that some of the latest violence has been undertaken to clear the way for Chinese oil companies undertaking surveys in the region.4
Companies operating in Zimbabwe have come under increasing criticism with Anglo-Dutch oil company Shell already announcing its withdrawal. Tesco has said it will no longer source food from Zimbabwe and the advertising agency WPP is in the process of selling its business, which is part-owned by a relative of President Mugabe.5 For further examples of the role of the communication sector see our case study on Ketchum.
The obvious question is then, what has changed since the UDHR was first written and what more can be done?
Respecting human rights, the role for business
In his third report released this year, the Special Representative of the Secretary-General on Human Rights, John Ruggie discusses the deliberate and unintended actions by business that have a detrimental impact on human rights. Ruggie proposes a framework for business and human rights comprising three core principles: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for more effective access to remedies.
The report is the result of three years work including 14 multi-stakeholder consultation sessions on five continents and more than two dozen research projects along with interim reports and submissions.6
The report ascertains that the international community is still in the early stages of adapting the human rights regime to provide more effective protection against corporate-related human rights harm. It claims that escalating charges of corporate-related human rights abuses are the canary in the coal mine and should be interpreted as a signal that all is not well.
Ruggie identified the governance gaps resulting from globalisation as a root cause of the issue.
With each legally distinct corporate entity subject to the laws of the country in which it is based and operates it can be difficult to attribute responsibility back to the parent company. Furthermore, developing nations may lack the institutional capacity to enforce national laws and regulations against transnational firms doing business in their territory or have concerns about the impacts of doing so on their ability to compete internationally for investment. This dynamic can also be true for national firms and for the countries where transnationals are based.
In his 2006 report, Ruggie found that the worst cases of corporate-related human rights harm most commonly occurred in those countries where governance challenges were greatest – in low income countries, those that had just emerged from or were still in conflict or where the role of law is weak and corruption levels high.
The framework suggests roles for governments and businesses alike to better address these issues.
The State duty to protect human rights
Ruggie argues that governments are in a unique position to foster corporate cultures where respect of rights is embedded as part of doing business. This can be achieved through supporting and strengthening market pressures including mandatory reporting, for instance, Sweden’s requirement that all state owned business report against the Global Reporting Initiative. This can also be achieved through the redefinition of fiduciary duties via the government and instruments such as the stock exchange. This has recently been highlighted by the revised United Kingdom’s Companies Act requiring directors to take into account the company’s impacts on the community and the environment.
Secondly, States are beginning to use the notion of corporate culture in deciding criminal accountability taking into account a company’s policies and systems rather than basing accountability on individual acts.
In addition, there is the need for policy alignment between human rights commitments and their implementation, and for consistent application and understanding across departments. Also important is the bind between improving domestic social standards and remaining attractive to foreign investment, often compounded by agreements entered into with companies freezing the existing regulatory regime for the life of the project, sometimes decades for heavy and resource industries.
State export credit agencies have the opportunity to play a more active role both individually and in conjunction with official development agencies. This may include greater communication with home-based countries with operations in conflict zones. Already the use of Security Council sanctions targeting certain companies considered to have contributed to conflicts in the Democratic Republic of Congo, Sierra Leone and Liberia have demonstrated a restraining effect.
Effective guidance and advice available on an international level as well as opportunities to share information can assist States in establishing regimes that protect human rights.
The corporate responsibility to respect human rights
Traditionally the main focus on the role of corporates has been on articulating a limited set of rights for which business should consider itself responsible. However, Ruggie argues that there are few rights that business cannot influence, also highlighted by the range of issues in our CSR case studies that go well beyond labour rights.
However, it is true that their responsibilities are not the same as those of government, with a role more focused on the respect rather than the protection of human rights. Failure in this role can see companies tried both in court and by public opinion.
To ensure respect of human rights, due diligence processes must be undertaken proactively. These need to take consideration of the country contexts of the business, the human rights impacts of their activities given this context and the potential that these activities could contribute to abuse through the relationships formed to undertake these activities. However, this does acknowledge that asking companies to voluntarily support human rights where they have influence is one thing but to attribute responsibility to them on this basis alone is quite another.
For further information on how such a process might be undertaken see our briefing paper and work undertaken by the Danish Human Rights Centre to develop assessment tools. Both tools use the international bill of human rights and the core conventions of the International Labour Organisation as a starting point.
In addition is ensuring that human rights are understood and embedded within the business, including key processes, which are regularly monitored.
By undertaking due diligence and integrating human rights considerations into their operating model, businesses can also avoid complicit involvement in human rights abuses.
More effective access to remedies
Effective grievance measures are an important way to identify and act on human rights abuses, via judicial or non-judicial mechanisms.
There are currently 85 recognised national human rights institutes (NHRIs) with varying capacities for managing grievances. There is scope to better promote their capacity to explore business related grievances, either on their own or in conjunction with other bodies.
Ruggie puts forward a number of principles for effective non-judicial mechanisms including that they are legitimate, accessible, predictable, equitable, rights-compatible and transparent.
This is also true for internal company grievance mechanisms including hotlines, advisory services or mediators. In addition is the potential to apply such grievance procedures to existing industry specific human rights frameworks, for instance the Equator Principles governing project finance activities within the financial services sector.
Finally, it is important that the existence of these grievance systems is promoted if governments are to be held to account on their role of protecting human rights and business on respecting them.
So, whilst there have been some fantastic examples of human rights activities by business since the introduction of the UDHR, the world has also become far more complex over the last 60 years. Globalisation has made the role of individual governments more difficult in establishing regulation for multinational companies which has intentionally and unintentionally led to human rights abuses. It remains a major area of focus for UN and whilst particular care and vigilance must be taken in areas of conflict the need for grievance mechanisms is a universal one. Business needs to become more active in its management of human rights issues in line with its overall governance programmes if this is to be achieved.7
References:
- 60th Anniversary of the Universal Declaration of Human Rights: 1948-2008
- Overview of the Universal Declaration of Human Rights
- Responsibility to Protect website
- “Darfur onslaught ‘to clear way for Chinese oil hunt’ say rebels”, Timeonline, 14 August 2008
- “West suffers historic defeat as China and Russia veto Zimbabwe sanctions”, Timesonline, 12 July 2008
- John Ruggie, UN Special Representative on business & human rights, Business and Human Rights Resource Centre website
- Business and Human Rights Resource Centre website
Further reading:
© Article 13 - October 2008
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