Ireland is one of only a handful of states that are developing national plans to promote better human rights practice by business. What should that plan contain?
A few weeks ago, the Department of Foreign Affairs and Trade asked for submissions from business, civil society and the public that would help to shape Ireland’s national plan. Having helped CIVICUS to develop their submission, I am reposting most of it now on this blog (the full submission can be accessed on the CIVICUS website here):
‘In line with our global mandate, this submission focuses on impact of the NP on Ireland’s foreign policy and the responsibilities of Irish businesses operating around the world. It addresses aspects of all three pillars of the UNGP. We make a total of 9 specific recommendations covering three areas:
- Multi stakeholder approach with clear roles for civil society
- Mandatory requirements for business
- Ireland’s extraterritorial obligations and remedies
These specific recommendations sit within our overarching proposal to the Irish Government: that Ireland should play a leading advocacy role at the international level to ensure business compliance with human rights standards in the coming years.
As part of its ongoing diplomatic engagement, Ireland should create high-level dialogues on business and human rights with key partner countries. These dialogues would aim to further the international debate on an enforceable multilateral regime for business and human rights. They would also enable the exchange of lessons learned from the implementation of Ireland’s NP and those of other countries as they come on stream in recent years. Perhaps most importantly, these forums will allow Ireland to set a high standard for the development of many national plans in future. Ireland should also use its position as a member of the UN Human Rights Council until the end of 2015 to fully support the working group on the issue of human rights and transnational corporations and other business enterprises. In particular, Ireland is encouraged to play a full role in the OHCHR programme of work to enhance accountability and access to remedy in cases of business involvement in human rights abuses. Ireland should also push for state reporting on Pillar I of the UNGP through the Universal Periodic Review (UPR) process, something noted as a possibility by the UN Secretary General in 2012.
- Adopt a multi-stakeholder approach that clearly defines a meaningful role for civil society in the implementation, monitoring and revision of the NP. As stated above, CIVICUS welcomes the inclusion of civil society during the process of creating Ireland’s NP. The Irish Government should continue this engagement to ensure that civil society organisations – both Irish and global – are included meaningfully in the implementation, monitoring and revision of the NP. Specifically:
- At its outset, the NP should establish a multi stakeholder working group including representatives from business, civil society and government on an equal footing. The terms of reference for the working group should include: the regular monitoring of compliance by business, making recommendations to the government on target and standard setting, creating an early warning mechanism and providing input to ensure that the NP is periodically reviewed and updated.
- Funding must be made available for civil society organisations to conduct independent research into the human rights impact of Irish businesses in several industries and in different parts of the world. Although the multi stakeholder working group would jointly agree the scope of the studies, the research would be conducted independently by civil society organisations, in consultation with affected communities in countries where Irish business operates. This research will help the Irish government to create an informed and regularly updated view of Irish business’ human rights footprint.
- Training for both civil society and business on the UNGP will be necessary to ensure active participation in the NP. This training should be provided regularly and accompanied by specifically developed training materials, informed by the research mentioned in Recommendation 1.2 above. Partnerships should also be developed with reputable business schools, universities and MBA programmes to ensure that students of business are made aware of the NP and new requirements for business.
- Make pillar two of the UNGP mandatory for Irish businesses. Ireland’s NP should ensure that Pillar II of the UNGP – the Corporate Responsibility to Respect Human Rights – applies without exception to all businesses domiciled in Ireland. The NP should avoid any suggestion that Pillar II is voluntary. Far from damaging the competitiveness of Irish businesses, such a move would improve the reputation of Ireland’s trade and diplomacy, particularly amongst developing countries, by increasing confidence of host country governments in the high human rights standard to which the Irish government holds its companies operating abroad. Making Pillar II mandatory can be done in two main ways:
- Ireland should conduct a thorough review of relevant domestic legislation to ensure that it enables the state to take legal recourse against companies that do not comply with the UNGP. The review could include The Prevention of Corruption Acts; the Criminal Justice (Theft and Fraud Offences) Act 2001, the European Convention on Human Rights Act 2003 and other laws deemed relevant to the business and human rights domain.
- Ireland should take steps to change the law to ensure that companies are compelled to reveal the names of their beneficial owners and these names be placed on a register. This reform is a key recommendation in the recently released Report of the High Level Panel on Illicit Financial Flows from Africa. The panel, chaired by former South African President Thabo Mbeki, revealed that approximately $50 billion (and potentially a lot more) leaves the African continent in illicit flows each year. Forcing companies to reveal the names of individuals benefitting from international financial transactions, a step that was also endorsed recently by the G20, would be a significant development in the fight against transnational corruption and tax evasion.
- Irish companies should be required to report annually on their implementation of the UNGP. Such reporting should become part of companies’ – initially those working internationally and ultimately all companies – statutory reporting requirements. The Irish government should ensure that mechanisms are put in place that enable action to be taken against companies who do not comply with this reporting requirement. The Irish Government could consider adopting or adapting templates for business reporting on human rights already developed by Shift/Mazars and the Danish Institute for Human Rights.
- Address extraterritorial obligations and ensure remedies are available for victims of human rights abuses by Irish businesses, wherever they occur. Pillar I of the UNGP makes it very clear that states ‘should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’  Although Pillar III of the UNGP only refers to the need to safeguard remedies for human rights abuses committed with the territory of jurisdiction of the state, Ireland should go further by promoting the development of viable judicial remedies for victims of human rights abuse by Irish companies in all parts of the world. Specific actions in this area should include:
- Apply the Maastricht Principles on the Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights in the NP. The Irish Government should pay particular attention to Principle 24, which provides inter alia that states should take measures to ensure ‘transnational corporations and other business enterprises, do not nullify or impair the enjoyment of economic, social and cultural rights. These include administrative, legislative, investigative, adjudicatory and other measures.’
- DFAT and Irish Aid should work more intensively to create multi stakeholder dialogue and initiatives on business and human rights in countries where Ireland has a long history of development cooperation. In particular, the NP should provide for cooperation with judiciaries in Irish Aid’s nine key partner countries (Ethiopia, Lesotho, Malawi, Mozambique, Sierra Leone, Tanzania, Uganda, Vietnam and Zambia). The aim of this cooperation should be to strengthen access to effective judicial remedies for victims of human rights abuse by business in poor and vulnerable communities. Based on the results of the research described in Recommendation 1.2, these cooperation programmes should also include outreach aimed at educating community members in areas affected by the activities of Irish businesses.
- Implement regular symposia for Irish judges, civil society and business representatives to discuss remedies for victims of human rights abuses that take place outside the state. The aim of these symposia would be to formalise a dialogue and debate about the role of the Irish courts in upholding Ireland’s international human rights commitments and influence the evolution of jurisprudence in this area. Given the long history of exchange between Irish judges and their counterparts in developing countries, these symposia could also form part of international dialogues, potentially coordinated with the judicial strengthening initiatives described in Recommendation 3.2.
This CIVICUS submission emphasises the need for Ireland to seize a golden opportunity. Through collaborative partnerships with civil society and business, we believe that Ireland can set the stage for greater global human rights compliance by the private sector in the years to come. Supporting, training and involving civil society will be key. In order to credibly play this international role, Ireland must ensure that domestic loopholes are closed and legislation is strengthened. Finally, Ireland must demonstrate strong leadership by facilitating justice for victims of human rights abuse by Irish businesses around the world.’
 Contribution of the United Nations system as a whole to the advancement of the business and human rights agenda and the dissemination and implementation of the Guiding Principles on Business and Human Rights, Report of the Secretary General. A/HRC/21/21, at para. 37.
 Section I.A.2 of the UNGP. (CIVICUS’ emphasis).