Oral intervention
Interactive dialogue with John Ruggie, June 2nd 2009
FIDH takes note of the interim report of the Special Representative of the Secretary General on the issue of Human Rights and Transnational Corporations and other enterprises and acknowledges the progress made towards the operationalisation of the framework "Respect, Protect, Remedy". FIDH welcomes consultations undertaken by the Special Representative, in particular the regional consultations in Asia and Latin America which included civil society participation. FIDH encourages the Special Representative to further engage with civil society and most importantly, to seek direct interactions with victims of corporate-related human rights abuses, in particular through site visits, as instructed by the Human Rights Council upon renewal of the Special Representative’s mandate.
In addition to and in relation with the 3 pillars of his framework, particular attention should be paid to the need to ensure meaningful and systematic participation of individuals and communities that are or can be affected by the activities of corporations Participation mechanisms should draw from human-rights based approaches and from the well-established notion of prior and informed consent developed in the context of indigenous peoples’ rights.
With regard to the three pillars proposed in the Special Representative’s framework:
FIDH welcomes the emphasis on the State duty to protect, and would like to insist on the need to recognize and strengthen the extraterritorial dimension of the duty to protect of States vis-à-vis activities businesses incorporated in their jurisdiction which are taking place abroad. Although poorly applied in practice, such a duty forms part of States obligations under international law, notalby their obligations to international assistance and cooperation. The "vertical incoherence" which the Special Representative refers to is more than simply incoherent domestic policies but rather reflects a blatant failure on the part of States to respect their human rights obligations, which they are bind to incorporate domestically. Related jurisprudence and the interpretation given to this obligation to international assistance and cooperation by eminent experts such as the Committee on ESCR and Special Rapporteurs could provide useful guidance, notably on the obligations of home States as members of intergovernmental institutions.
As to the question of investment agreements, the Special Representative highlights the need to raise awareness amongst developing country negotiators on the risks such agreements may generate on their ability to discharge their human rights obligations. FIDH hopes that when developing guidance on responsible contracting, the Special Representative will provide strong recommendations for legal reforms to ensure that States’ judicial systems do not allow for companies to negotiate contracts with controversial clauses. Consultation with independent experts who have worked on related issues such as members of the Committee on Economic, Social and Cultural Rights should be undertaken.
As to the corporate responsibility to respect, FIDH welcomes the acknowledgement that corporations have the responsibility to respect all human rights at all times, a legal responsibility long supported by FIDH. FIDH also welcomes efforts made to clarify the due diligence process and looks forward to further clarification of the responsibility of corporations to go beyond respect for human rights in specific situations. FIDH encourages the Special Representative to undertake case studies, in particular when business perform public functions or operate in weak-states or conflict zones.
FIDH welcomes the submission of an addendum to the interim report expressly focusing on the scope of States obligations to provide access to remedy for third-party abuses. FIDH particularly salutes attention given to the issue of reparation and its recognition as a fundamental part of the right to an effective remedy. FIDH is however concerned that the current reflection on an individual right to an effective remedy be limited to gross human rights violations. FIDH believes such right should be recognized as a fundamental principle of international law which applies upon violations of any human right, regardless of who bears the responsibility, as notably confirmed by Theo Van Boven himself.
FIDH salutes the efforts of the Special Representative to identify obstacles victims face in accessing justice, and in identifying ways of redress. Remedial mechanisms discussed should be evaluated in light of the common trends identified in the addendum, in particular the need to ensure remedial mechanisms are independent. FIDH agrees that existing bodies should be exploited as much as possible and that as a matter of priority, national remedial mechanisms need to be strengthened. However, due to realities on the ground, the governance gaps identified by the Special Representative and the weaknesses of existent mechanisms, most victims still remain without access to any effective remedial mechanism, as they are entitled to.
FIDH therefore insists on the need to consider the creation of a universal quasi-judicial body. Not precluded from acting as a mediator when appropriate, such mechanism would build on and interact with existing initiatives and provide victims a universal recourse that lives up to the basic and fundamental principles of justice. Such body would not only benefit victims whose right to an effective remedy continues to be denied, but would also benefit all stakeholders by leading to a better understanding of what respecting human rights for businesses means and therefore contribute to the concrete operationalisation of the "Protect, Respect and Remedy" framework.
Commission on Human Rights, "Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, Final Report Submitted by Mr. Theo van Boven, Special Rapporteur", UN Doc E/CN.4/Sub.2/1993/9 (2 July 1993), para.13.