The UN Committee on Economic, Social and Cultural Rights (CESCR) released on June 2017 its General Comment No. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (available in English, Spanish and Chinese).
FIDH welcomes this new General Comment as it clarifies and recalls State obligations under the Covenant. It is particularly valuable as many voluntary initiatives have risen in different forums. As Zdzislaw Kedzia, the Vice-Chair of the CESCR pointed out in the press release presenting the new guidance, there is a risk, "that States lose sight of what is obligatory, as opposed to what is simply recommended as a good practice".
The General Comment reaffirms that, under international standards, business entities are expected to respect Covenant rights regardless of whether domestic laws exist or whether they are fully enforced in practice.
The General Comment is particularly useful to guide national and international jurisdictions and includes important advances in many areas.
Protection of human rights defenders
The Committee spells out clearly that “States parties should take all necessary measure to protect human rights advocates and their work. They should refrain from resorting to criminal prosecution to hinder their work, or from otherwise obstructing their work” (para 48). These assessments are particularly welcomed in the context of increasing criminalization of Human Rights Defenders throughout the world.
States’ obligation to Protect Human Rights
The new General Comment reminds that under international law State Parties can be held directly responsible for action or inaction of business entities (para 11).
The Committee states that “the obligation to protect entails a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights” (para 16).
Extraterritorial obligations : States’ duties transcend national borders
The General Comment is particularly strong on States’ extraterritorial obligation. The Committee reiterates that “States Parties’ obligations under the Covenant do not stop at their territorial borders”. States Parties are required to “take the necessary steps to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (whether they are incorporated under their laws, or have their statutory seat, central administration or principal place of business on the national territory), without infringing the sovereignty or diminishing the obligations of the host States under the Covenant” (para 26).
The General Comment also stress that States Parties are required “to take steps to prevent and redress infringements of Covenant rights that occur outside their territories due to the activities of business entities over which they can exercise control, especially in cases where the remedies available to victims before the domestic courts of the State where the harm occurs are unavailable or ineffective.” (para 30)
A strong emphasis on remedies
The Committee points out the need for criminal and administrative sanctions and penalties where corporations failed to act with due diligence (para 15). It suggests for example the revision of public procurement contracts, export credit and other form of State support, privileges and advantages in case of human rights violations (para 31; 50). The General Comment also affirms that human rights should prevail on trade investment treaty (para 13), by stating that “investment treaties may deny protection to foreign investors of the other Party that have engaged in conduct leading to a violation of Covenant rights” (para 50).
The General Comment recognizes that victims of transnational corporate abuses face many obstacles in having access to remedy, and proposes concrete solutions to this end, recalling that States Parties have the duty to address these challenge in order to prevent a denial of justice and ensure the right to effective remedy. FIDH, which has underlined for a long time that despite the diversity of existing recourse mechanisms, the remaining gaps prevent bringing effective remedy for victims (see FIDH Guide on Recourse mechanisms), particularly welcomes these advances.
In that regard, the General Comment indicates that it requires States Parties to establish parent company or group liability regimes, provide legal aid and other funding schemes to claimants and enable human rights-related class actions and public interest litigation (para 44). It also affirms that “States Parties should facilitate access to relevant information through mandatory disclosure laws and by introducing procedural rules allowing victims to obtain the disclosure of evidence detained by the defendant. Shifting the burden of proof may be justified where the facts and events relevant for resolving a claim lie wholly or in part within the exclusive knowledge of the corporate defendant.” (para 34). Further, judicial decisions relying on forum non conveniens doctrine should take in consideration “the extent to which an effective remedy is available and realistic in the alternative jurisdiction” (para 44).
States should also improve international cooperation to “reduce the risks of positive and negative conflicts of jurisdiction, which may result in legal uncertainty and in forum-shopping by litigants, or in the inability for victims to obtain redress” (para 35).
Despite the progress made in the General Comment, FIDH regrets the Committee did not stressed more the complementarity between binding and voluntary international instruments by referring directly to the works of the ongoing Intergovernmental Working Group on transnational companies and other business enterprises and human rights in charge of elaborating an international binding instrument as a mean to reinforce the international framework on corporate accountability.
Indeed, the next session of the Working Group in October 2017 represents a crucial opportunity to build on the elements pointed out in this General Comment and to move forward in the protection of human rights from corporate abuses (see FIDH position on the Treaty).