Corporate Accountability in Draft General Comment on Right to Life by African Commission on Human and Peoples’ Rights

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In June 2015 the African Commission on Human and Peoples’ Rights adopted a draft General Comment on Article 4 of the African Charter on Human and People’s Rights (Right to Life). Paragraph 10 of the document states that

Non-State entities such as private individuals and corporations, including private military and security companies, that are responsible for arbitrary deprivation of life should also be held accountable.

Treaty bodies such as the African Commission are tasked with monitoring the application of human rights instruments such as the African Charter. These instruments are theoretically applicable to states only. In their case law and when monitoring reports by states parties, treaty bodies have on many occasions mentioned the responsibility of states to prevent and redress human rights violations committed by businesses. For example, the African Commission noted in the 2001 case Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria that “contrary to its Charter obligations and despite such internationally established principles, the Nigerian Government has given the green light to private actors, and the oil companies in particular, to devastatingly affect the well-being of the Ogonis” (para. 58).

Going further, United Nations treaty bodies have in recent years started to point to the responsibility of states, not only with regard to the activities of corporations on their territories, but also with regard to the activities of their corporate nationals abroad. I wrote here, here, here and here about this relatively recent extraterritoriality trend.

In 2013 the UN Committee on the Rights of the Child, in General Comment No 16 on State obligations regarding the impact of the business sector on children’s rights, suggested that Article 3(1) of the Convention on the Rights of the Child (on the best interests of the child), was “directly applicable to business enterprises that function as private or public social welfare bodies by providing any form of direct services for children, including care, foster care, health, education and the administration of detention facilities, among others.” The Committee, however, had not mentioned the direct responsibility of businesses that do not perform these types of functions.

Therefore, if the African Commission was to include paragraph 10 of the draft General Comment in the final version, it would be the first time, as far as I am aware, that a treaty body mentions the direct responsibility of corporations operating an entirely private business without performing state-like activities. This would be an important development and would further strengthen the corporate responsibility to respect human rights, in line with the UN Guiding Principles on Business and Human Rights.

The draft document is open for public consultations (more information here) and the deadline to send contributions is 1 September 2015.

Extraterritorial Obligations of States in Business and Human Rights – A talk at the Norwegian Centre for Human Rights

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After the University of the Witwatersrand (South Africa) and Harvard University, my research leave has now brought me to the Norwegian Centre for Human Rights in Oslo, where I am spending a few days as a visiting researcher.

On Tuesday I gave a presentation on the extraterritorial obligations of states in the area of business and human rights as part of the Centre’s “Human Rights and Development” research group  lunch series. I reviewed the evolving positions of the UN treaty bodies on this question and commented on the latest developments. These are:

1. The concluding observations of the Human Rights Committee on Germany, issued in November 2012, in which the Committee, using the language of UN Guiding Principle 2, stated  that,

The State party is encouraged to set out clearly the expectation that all business enterprises domiciled in its territory and/or its jurisdiction respect human rights standards in accordance with the Covenant throughout their operations. It is also encouraged to take appropriate measures to strengthen the remedies provided to protect people who have been victims of activities of such business enterprises operating abroad. [para. 16]

2. General Comment No 16 of the Committee on the Rights of the Child on State obligations regarding the impact of the business sector on children’s rights, which I reviewed in a previous post, and were issued in March 2013.

3. The Human Rights Committee’s recently published list of issues in relation to the upcoming examination of Ireland in 2014, which contains the following paragraph:

Please provide information on how the Government addresses concerns regarding the activities of private businesses based in the State party that may lead to violations of the Covenant outside the territory of the State party.

My colleague Dr Shane Darcy from the Irish Centre for Human Rights wrote an interesting post on this on his blog on Business and Human Rights in Ireland.

This is a fast growing area within the business and human rights field and one with numerous opportunities for developments, which I will try to keep track of on this blog.