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Human rights is increasingly occupying an important position with respect to a good corporate life, performance indicator and social responsibility. In the last decade, there has been an increased focus on the ramifications of the actions of business entities on individuals, communities and the environment.

However, despite the increasing discourse on the impact of business on human rights, effective attempts to check human rights violations in the supply chains and activities of corporations have remained limited. There continues to exist a gap between the policies being framed on business and human rights and its effective practical implementation. The cause for the same can be attributed to the lack of the political will, in some States, to strictly regulate human rights violations by business entities.

This lack of political backing to a binding business and human rights framework, particularly in developing countries, is largely a result of the economic considerations of the States, and their inclination to incentivise foreign investments in their territory by providing lenient investor obligations, labour markets and regulatory frameworks.

Let us analyse some recent developments on business and human rights, with particular reference to the Indian scenario.

Developments in Law

As against the traditional understanding that business and human rights are unconnected aspects of law and practice, in recent times, international community has growingly become aware of the impact of the actions of business entities on enjoyment of human rights. In 2011, the United Nations Guiding Principles of Business and Human Rights (UNGPs) acknowledged the duty and responsibility of States and corporations, to respect and protect human rights.[1] The principles articulated by the UNGPs stand as its three pillars: (i) State duty to protect; (ii) corporate responsibility to respect; and (iii) access to remedy.

The UN Working Group on Business and Human Rights had urged all States to develop a national action plan on business and human rights, such that they can effectively implement the UNGPs in their territories. For the same, the Working Group developed a “guidance note,” which stipulated four criteria for developing the national action plans: (i) the plan must based upon the UNGPs; (ii) it must reflect the State’s actual and potential business related human rights abuses; (iii) it must be inclusive and transparent; and (iv) it must be regularly reviewed and updated. Several States have already formulated their national action plans to implement the UNGPs in their respective States.

While India announced in 2018 that it will be formulating a National Action Plan on Business and Human Rights, the same is still to be finalised and released. The Ministry of Corporate Affairs, which is steering the process of formulating the National Action Plan, was undertaking consultations and accepting comments from stakeholders till March 2020, and the document must be in its final stage now.[2]

The National Action Plan will be expected to target several issues that are prevalent in India, such as dispossession and rehabilitation of communities, child labour, bonded labour, health and safety of workers, favourable working conditions, social protections, among others. Importantly, the most problematic issue with respect to regulating activities of businesses in India is that around 90 per cent of the labour works in the informal sector.[3] Employers of informal labourers are often aloof of voluntary commitments to corporate social responsibility.

Therefore, for the policies to be effectively put into practice, they must be devised in a manner to bring the informal labourers under the ambit of its protection. Unless the same is done, the policies framed by the State will effectively only be protecting 10 per cent of the workforce in India. It is also very important for the National Action Plan to emphasise on the need to ensure access to remedies to all the victims of business-related human rights violations.

Incidentally, in 2019, the Ministry of Corporate Affairs had revised the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business, 2011 (NVGs) and formulated the National Guidelines on Responsible Business Conduct (Ngrbc). The revision of the guidelines was made with the intention to urge businesses to actualise the UNGPs in letter and spirit.[4] However, all these guidelines only provide for voluntary commitments, and unless the same is replaced with mandatory compliance requirements, it will continue to serve mere lip service, without bringing about any effective change. An effective business and human rights framework will require accountability and enforceability of the principles enshrined in the UNGPs.

The United Nations Human Rights Council (Unhrc), in another move to regulate business and human rights, has also been attempting to devise a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.[5] State parties to the instrument will be required to regulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction, including those of a transnational character. This would include ensuring that business, in its territory, undertake human rights due diligence, respect all internationally recognised human rights and prevent and mitigate human rights abuses throughout their operations.

Another development is the Hague Rules on Business and Human Rights Arbitration, which was also formulated recently with the objective of imparting a set of rules for arbitration in relation to business and human rights disputes.[6] The intention of the Hague rules is to subscribe to the application of the third pillar of the UNGPs which secures the access to remedy. It will be interesting how States and corporations respond to these developments in the coming years.

Position in Bilateral Investment Treaty Framework

The lack of political will on part of the States to regulate human rights compliances of corporations can be understood from the fact that traditionally investment treaties have failed to impose any obligation upon the investors, with respect to environment protection, labour and human rights. Moreover, while some recent treaties do have provisions relating to investor compliances/obligations, they merely call for a bona fide commitment to corporate social responsibility standards, without providing any enforceability of the compliances. The Indian Model Bilateral Investment Treaty (BIT), 2015 can be a good example for the same. Article 12 of the Model BIT reads as:

“Investors and their enterprises operating within its territory of each party shall endeavour to voluntarily incorporate internationally recognised standards of corporate social responsibility in their practices and internal policies, such as statements of principle that have been endorsed or are supported by the parties. These principles may address issues such as labour, the environment, human rights, community relations and anti-corruption.”

Therefore, as evident, the Indian Model BIT only calls for a voluntary endeavour to respect human rights, and does not stipulate a binding obligation to that regard. To put the same in context, a comparison can be drawn to the more efficient investor obligations that can be found in the Southern African Development Community (SADC) Model BIT, 2012. The SADC Model BIT stipulates, in concrete terms, that the investors and/or investments are mandatorily required to respect the international environmental, labour and human rights obligations binding on the host State.

As it is becoming increasingly evident that transnational businesses can have a major impact on environment and human rights in the host State, States should negotiate treaties that are more balanced between the States and investors, and provide for investor compliances as jurisdictional prerequisites in investment treaties.

Impact of Covid-19 Pandemic

The pandemic, as we know, has caused major economic disruptions and destabilised the global economy. At its peak, extended travel limitations and broken supply chains had led to significant drop in the prospects of several business entities and corporations. Compromised supply chains and economic losses, as a chain reaction, caused several corporations resort to harsh measures to keep themselves afloat, such as discriminate laying off of workers, altering of working cultures and cutting on due diligence cost.[7]

The UN Working Group on Business and Human Rights, in its statement on the ramifications of the pandemic, had acknowledged that the actions of corporations are, directly or indirectly, affecting the rights of their employees, contract workers and individuals involved in their supply chains.[8] The pandemic brought to light the issues pertaining to the right to health, equality, livelihood, safety and favourable conditions to work of the workers.[9] While States undertook several relief measures,[10] and urged corporations to continue to provide safety and recourses on a non-discriminatory basis, the lack of adequate protection against violations of labour and human rights was manifest.

As States embark on economic recovery, it is imperative that they strike an equilibrium between safeguarding health, reducing economic and social disruption, and respecting human rights. As a response to the pandemic, efforts must be taken to impose stricter guidelines on human rights impact assessments, grievance mechanisms, and other due diligence obligations of corporations, such that the three pillars of the UNGP can be effectively reinforced. Particularly, the temptations to resort to lenient labour regulations and investor compliances, to aid, economic recovery and incentives investments must be resisted. For instance, the ordinances passed to suspend certain labour laws for a period of next three years, in several Indian States, was heavily criticised by human rights activists as being a clear departure from India’s commitment to the UNGP.[11] Developing countries are particularly susceptible to such a trend, and if not checked, it might limit progress on business and human rights regulations.

Conclusion

It is the duty of businesses to conduct human rights due diligence within their supply chains and operations. To ensure that the business effectively perform their duties, the States must provide adequate regulations and check mechanisms. Therefore, both States and corporations must cooperate and ensure a healthy corporate environment in the country, which is respectful of the internationally accepted human rights and UNGPs. In conclusion, it can be said that the increasing discourse on business and human rights is a positive sign, only time will tell if the same is effectively put in practice.


Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. Abhishar Vidyarthi, Student Researcher and can be contacted at avividyarthi@gmail.com.

[1]United Nations Guiding Principles on Business and Human Rights, 2011, <https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf>.

[2] National Action Plan, <https://www.mca.gov.in/Ministry/pdf/NationalPlanBusinessHumanRight
_13022019.pdf
>.

[3]Employment in Informal Sector and Conditions of Informal Employment, 2013, <https:// labour.gov.in/ sites/default/files/Report%20vol%204%20final.pdf>.

[4]National Guidelines on Responsible Business Conduct, 2019, <https://www.mca.gov.in/ Ministry/pdf/NationalGuildeline_15032019.pdf>.

[5]Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, 2020, <https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf>.

[6] Hague Rules on Business and Human Rights Arbitration, 2019, <https://www.cilc.nl/project/the-hague-rules-on-business-and-human-rights-arbitration/>.

[7] Howard Levitt, Some employers may be using pandemic as excuse to fire employees protected by human rights codes, Financial Post (21-4-2020), <https://financialpost.com/executive/careers/some-employers-may-be-using-pandemic-as-excuse-to-fire-employees-protected-by-human-rights-codes>.

[8] Statement by the UN Working Group on Business and Human Rights, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25837&LangID=E>.

[9]      Respecting Human Rights in the time of the Covid-19 Pandemic, 16-4-2020, <https://www.ihrb.org/focus-areas/covid-19/report-respecting-human-rights-in-the-time-of-covid19>.

[10] Measures, such as stimulus packages, tax reliefs, wage subsidies, etc., were undertaken in order to safeguard businesses, and thereby, restrict the hardships from trickling down to the workers. One of the best examples of the same can be seen in the form of Canada Emergency Wage Subsidy, wherein, to protect the Canadian workforce, the eligible businesses were provided up to 75 per cent of employer salaries; Jamie Golombek, Wage subsidy programs for employers: Canada’s Covid-19 response plan, <https://www.cibc.com/content/dam/personal_banking/advice_centre/tax-savings/covid-wage-subsidy-en.pdf/>. Similarly, corporations were urged to continue to provide access to accurate informations, paid sick/preventive leaves, payments to hourly waged staff, emergency supplies on a non-discriminative basis, etc.

[11]Ashima Obhan and Bambi Bhalla, Suspension of Labour Laws Amidst Covid-19, <https://www.mondaq.com/india/employment-and-workforce-wellbeing/935398/suspension-of-labour-laws-amidst-covid-19>.

Hot Off The PressNews

On 2nd December, 2020, the United Nations Commission on Narcotic Drugs (CND), by a vote of 27-25 with one abstention, agreed to follow the recommendations of the WHO and delete cannabis and cannabis resin from Schedule IV of the 1961 Convention but maintain it in Schedule I of the 1961 Convention.[1]

An article on the official UN website states that, ‘the CND has opened the door to recognizing the medicinal and therapeutic potential of the commonly-used but still largely illegal recreational drug’.[2]

Schedule IV is for that category of drugs which are considered to have particularly dangerous properties and limited or no therapeutic purposes. By removing cannabis from Schedule IV, therapeutic qualities of cannabis have been acknowledged, thus strengthening the international imperative for ensuring access to cannabis-based medicines[3]. However, the drug is still classified under Schedule I therefore, it’s sale and production etc will still be under strict controls.

India was among  the majority at the United Nations which voted to remove cannabis and cannabis resin from the list of most dangerous substances. 27 out of 53 member states including US and most European states voted to remove from Schedule IV where it was listed alongside deadly, addictive opioids, including heroin. The vote was close as 25 nations including China and Pakistan voted against the move, with Ukraine abstaining.

Under India’s Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, following the 1961 Convention, the production, manufacture, possession, sale, purchase, transport, and use of ganja (flowering or fruiting tops) and charas (separated resin) is illegal but use of seeds and leaves (for making bhaang etc) is not prohibited but under Government control.

The reclassification of cannabis from Schedule IV to Schedule I by the UN agency will not immediately change its status worldwide as individual countries continue with existing regulations. As many nations follow the lead of international protocols while legislating, this may bring a change to local laws of states in the future.


Nilufer Bhateja, Associate Editor has put this story together 

[Image by David Gabrić/Unsplash]

[1] United Nations Commission on Narcotic Drugs, Press Statement – 2 December 2020 

[2] UN commission reclassifies cannabis, no longer considered risky narcotic. UN News, 2 December 2020

[3] UN green lights medicinal cannabis but fails to challenge colonial legacy of its prohibition ,TNI, 02 December 2020

Also read: Cannabis: Your guide to what’s legal and what’s not in India

Hot Off The PressNews

UN experts called on India to immediately release human rights defenders who have been arrested for protesting against changes to the nation’s citizenship laws.

“These defenders, many of them students, appear to have been arrested simply because they exercised their right to denounce and protest against the CAA (Citizenship Amendment Act), and their arrest seems clearly designed to send a chilling message to India’s vibrant civil society that criticism of government policies will not be tolerated,” the experts said.

One of the most alarming cases concerns pregnant Delhi student Safoora Zargar, who was detained for over two months having allegedly been kept in conditions equating to solitary confinement, denied regular contact with her family and legal representative, and having not been provided adequate medical care or diet. She was finally granted bail on 23 June 2020, in her sixth month of pregnancy, on humanitarian grounds.

The CAA provides expedited and simplified access to citizenship for people from specific religious minorities from several neighbouring countries but it excludes Muslims. Its adoption in December 2019 provoked nationwide protests by Indians from diverse faiths – including Hindus – who believe it violates the secular foundations of India’s constitution.

Many of the 11 individual cases include serious allegations of human rights violations, several relating to due process failings during arrest and detention, as well as allegations of torture and ill-treatment.

“Authorities should immediately release all human rights defenders who are currently being held in pre-trial detention without sufficient evidence, often simply on the basis of speeches they made criticising the discriminatory nature of the CAA,” they said.

The experts also highlighted their concern that the authorities’ response to the protests seemed discriminatory. It appears they have not similarly investigated allegations of incitement to hatred and violence made by CAA supporters, some of whom are reported to have chanted “shoot the traitors” at counter-rallies.

The experts further flagged their concern that authorities were invoking counter-terrorism or national security legislation, and using procedural police powers, to deny bail to protesters and issue charges carrying heavy sentences.

“Although demonstrations ended in March due to the COVID-19 pandemic, and India’s Supreme Court issued a recent order to decongest jails because of health concerns related to the pandemic, protest leaders continue to be detained. The reported spread of the virus in Indian prisons makes their immediate release all the more urgent,” the experts said.

They are in contact with the Government on this matter.

Link to the source: News


United Nations

COVID 19Hot Off The PressNews

In view of the COVID-19 pandemic, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, has adopted a series of measures to help contain the spread of the virus and to protect the health and well-being of its judges and staff members and their families, while at the same time ensuring that it can continue to fulfil its mandate. The measures are in line with the recommendations of the United Nations and the authorities of the host country, the Netherlands.

As part of these measures, there will be no hearings or meetings of the Court in March and at least until 16 April.

It has also been decided to suspend all official travel of Members of the Court and Registry staff, to cancel all visits and to implement teleworking, thus reducing to a minimum the physical presence of staff at the Peace Palace, the seat of the ICJ. Members of the Court and Registry staff have also been requested to avoid private travel out of the duty station (The Hague).

The adopted measures will be subject to review as the situation develops.


International Court of Justice

[Press Release dt. 20-03-2020]

Hot Off The PressNews

On 1 May 2019, the Security Council Committee pursuant to resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh), Al-Qaida and associated individuals, groups, undertakings and entities approved the addition of the entry specified below to its ISIL (Da’esh) and Al-Qaida Sanctions List of individuals and entities subject to the assets freeze, travel ban and arms embargo set out in paragraph 1 of Security Council resolution 2368 (2017), and adopted under Chapter VII of the Charter of the United Nations.

A. Individuals

QDi. 422 Name: 1: MOHAMMED 2: MASOOD 3: AZHAR 4: ALVI
Title: na Designation: na DOB: a) 10 Jul. 1968 b) 10 Jun. 1968 POB: Bahawalpur, Punjab Province, Pakistan Good quality a.k.a.: na Low quality a.k.a.: a) Masud Azhar b) Wali Adam Isah c) Wali Adam Esah Nationality: Pakistan Passport no: na National identification no: na Address: na Listed on: 1 May 2019 Other information: Founder of Jaish-i-Mohammed (QDe.019). Former leader of Harakat ul-Mujahidin / HUM (QDe.008). INTERPOL-UN Security Council Special Notice web link: https://www.interpol.int/en/notice/search/un/xxxx.


[Press Release dt. 01-05-2019]

United Nations