Friday, November 24, 2017
The Department of Foreign Affairs and Trade (“the DFAT”) has recently launched the long-awaited “National Plan on Business and Human Rights 2017-2020” (“the Plan”). The Plan seeks to give some effect to the United Nations Guiding Principles on Business and Human Rights adopted in 2011 and expresses the Government’s commitment to promoting responsible business practice at home and overseas. The UN Guiding Principles seek to enhance standards and practices among the business community in order to achieve tangible improvements in the enjoyment of human rights both for individuals and communities around the world and to contribute to socially sustainable globalisation.
The impact of poor business practices resulting in human rights abuses cannot go unnoticed with recent devastating examples such as the Rana Plaza disaster in Bangladesh where 1,135 people died in a factory producing garments for global brands.
As against such tragic realities, the Plan seeks to make the case that respecting human rights is good for business. The Plan proceeds on the basis that the protection of human rights and economic growth, trade and investment should be “complementary and mutually reinforcing” and seeks to put human rights “at the heart of all our business practices” in Ireland.
Who does the Plan apply to?
The Plan, and the UN Guiding Principles, apply to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure. However, this first National Action Plan is largely focused on high level principles and the further steps the State intends to take, in collaboration with business and civil society, to actually enumerate the specific actions businesses, big and small, are expected to take to respect, protect and remedy human rights.
What is the legal status of the Plan?
It should be noted that while this Plan is ambitious in setting out a roadmap to increasingly involve businesses in human rights protection, there are no legal obligations established under the Plan. Neither the Plan nor the UN Guiding Principles are legally binding. This is understandable as, historically, States are primarily responsible for human rights protection and there is a very well-developed framework for the enforcement and monitoring of human rights protections at national, regional and international levels. The journey to extending enforceable obligations to the private sector is in its (relative) infancy and has a long way to go before broad brush human rights obligations are directly imposed on non-State private actors at an international level. Nevertheless, it is internationally recognised that companies have a responsibility to respect human rights and the Plan is the first concrete step in Ireland to give meaning to that responsibility.
Indeed, a key means by which a State seeks to respect, protect and remedy human rights is by the adoption of legislation which expressly regulates the conduct of business in manners which, by their effect if not by name, do act to protect human rights. Such domestic law provisions are legally binding and enforceable and arise in the various areas of employment, equality, public procurement, anti-trafficking and environmental to name a few. Big and small businesses comply with such legislation every day and there is generally a remedy available to address any breach of the obligations imposed through legislation (whether by enforcement actions by regulatory State bodies, or, at an individual level by taking a claim to a tribunal or Court). However, there can of course be gaps in the law and very often where domestic laws do exist, they are subject to territorial rules which can greatly limit their benefit to persons and communities overseas. What the Plan aims to do is to encourage businesses to see the big picture of how their actions can impact and, in some cases greatly diminish, the enjoyment of human rights. The emphasis in the Plan is on responsible actions businesses should take to address and offset the risks of adverse human rights impacts.
In light of this, and the ever increasing globalisation of business in Ireland, it would be wise for all businesses to be mindful of developments in this area in the future.
What does the Plan do?
The Plan is, primarily, a roadmap of the actions the government intends to take in the coming years to give further effect to the UN Guiding Principles. It sets out motivations and high-level principles the government wish to encourage businesses to take seriously and to integrate into their business practices. It does not, yet, enumerate any specific obligations or standards which businesses in Ireland are expected to implement in order to achieve greater protection and enjoyment of human rights.
However, we can expect to see more concrete actions materialising over the next three years which will act to clarify and substantiate the expectations on Irish businesses in respect of human rights. The following actions are of particular note:
Human Rights abuse in the supply chain
One particular business function likely to come under considerable scrutiny is the supply chain. The Plan recognises the considerable impact exploitation or corruption along the supply chain can have and expresses support for the proposed EU Regulation setting up a Union system for supply chain due diligence in the extractive industries and conflict areas. One of the initial priorities for the Implementation Group is to encourage and facilitate the sharing of best practice on human rights due diligence, including effective supply chain audits.
Earlier this year France introduced a ‘Duty of Vigilance Law’ legally obliging large companies based in France, or with subsidiaries in France, to establish mechanisms to prevent human rights violations and environmental impacts throughout their chain of production, including for their subsidiaries and companies under their control. The Modern Slavery Act in the UK is another example of binding obligations imposed on companies to ensure modern slavery is not present in their supply chains. The Netherlands have taken steps to introduce a requirement to carry out due diligence in supply changes to rule out the present of child labour practices.
With such developments and strengthening of standards inevitable in this area, it would be remiss not to heed the preliminary call to action in the Plan. Binding obligations in Ireland may be years away, but it may equally take years to make any changes necessary to a production and supply chain to meet the responsibilities on businesses to ensure respect for human rights.
As expressed in the Plan’s Mission Statement, Ireland seeks to be one of the best countries in the world in which to do business and this is certainly a welcome development both in terms of this broader goal and human rights protection more generally.