Submission to the House of Commons Foreign Affairs Select Committee Inquiry: The FCO S human rights work in 2013

Transcription

1 Submission to the House of Commons Foreign Affairs Select Committee Inquiry: The FCO S human rights work in May 2014 CORE (Corporate Responsibility Coalition) 24 Highbury Crescent London N5 1RX E. coordinator@corporate-responsibility.org 1

2 The Corporate Responsibility Coalition (CORE) is an authoritative and influential network of NGOs, academics, trade unions and legal experts which brings together the widest range of experience and expertise on UK corporate accountability in relation to international development, the environment and human rights. Our aim is to reduce business-related human rights and environmental abuses by making sure companies can be held to account for their impacts both at home and abroad, and to guarantee access to justice for people adversely affected by corporate activity. CORE welcomes this opportunity to contribute to the work of the Foreign Affairs Committee (FAC) in its assessment of the UK s human rights efforts in This submission addresses points relating to the FCO s approach to business and human rights. 1. Summary of Recommendations 1.1 On UK Action Plan on Business and Human Rights (p.23 and p.112) CORE recommends that the FAC asks the UK government: Whether there are clear goals and success criteria for each of the proposed commitments set out in the UK s Action Plan, along with a timetable for completion. Whether it monitors compliance with the Action Plan and identifies deficiencies that need to be addressed. How it responds to the lack of coherence and consistency across government departments in giving effect to the Action Plan. How it can ensure more effective accountability across Whitehall for implementation of the Action Plan. 1.2 On Human Rights in Promoting Britain s Prosperity (Section VII) CORE recommends that the FAC asks the UK government: How the promotion of business interests and respect for human rights can be reconciled in light of UK s intervention on behalf of Shell in a case before the US Supreme Court (Kiobel v Royal Dutch Petroleum) where the FCO admitted that the UK s intervention would be acting to seek a result that will close a possible remedy for victims of alleged human rights abuse. Whether the UK considers that an international treaty on business and human rights will help create a level playing field for States and companies, and whether the UK will support the initiative that is being taken within the UN Human Rights Council to set in motion an intergovernmental process that may lead to such a treaty. 2

3 2. UK Action Plan on Business and Human Rights (p.23 and p.112) 2.1 We welcome the UK government s continuing commitment to implement the UN Guiding Principles on Business and Human Rights (UNGPs) and the publication of the UK s national implementation plan on the UNGPs in September 2013 (Action Plan). 2.2 There are many positive proposals in the Action Plan that, if properly implemented, would lead to improvements in the impacts of UK-linked businesses on human rights. However, the Action Plan lacks a sense of how these proposals are to be developed across government Departments. CORE has documented a number of cases in which companies headquartered in the UK have caused or contributed to human rights abuses in other countries, and where the UK has both regulatory and administrative means to take action to prevent and sanction such abuse, but has failed to do so. 1 By failing to take effective action to prevent UK companies from causing or contributing to human rights abuses in other countries - or to sanction such abuse when it occurs - the UK government is facilitating a situation where multinational companies operate to unacceptably low standards in countries where the rule of law or national enforcement mechanisms are weak. CORE is concerned that the UK s Action Plan to implement the UN Guiding Principles on Business and Human Rights is weak on detail and insufficiently coherent and robust to bring about significant improvements in the human rights impacts of UK companies and in the ability of their victims to access remedy. 2.3 Together with civil society organisations in the North America and Europe CORE recommends that the UK government further develop and review the Action Plan. 2 Specifically, we recommend the UK prioritize the following areas that are identified in the Action Plan.: Devise clear goals and success criteria for each of the commitments/proposed actions set out in the current Action Plan to provide a means by which progress can be tracked, measured and verified. Commit to a timetable for completion of each of the action points and monitor progress. In consultation with civil society organisations, urgently review UK compliance with the UNGP provisions on access to remedy and identify actions needed to address any gaps or deficiencies. Carry out the review of state-owned controlled or supported enterprises and contractors referred to at paragraph 11(iv) of the Action Plan and publish findings. Begin a dialogue at senior level between UK Government Departments (including and beyond the FCO and the Department for Business, Innovation and Skills) relating to the content of the UNGPs and the need for policy coherence and identify priorities for each Department for inclusion in the next UK action plan. 1 See, for example, Corporate Responsibility Coalition and London School of Economics, The Reality of Rights: Barriers to accessing remedies when business operates beyond borders, See 3

4 Consult with the Equalities and Human Rights Commission regarding that institution s role in the implementation of the UNGPs both within the UK and overseas. 3. Human Rights in Promoting Britain s Prosperity (Section VII) 3.1 The UK has failed to get to grips with the dilemmas and contradictions involved in pursuing the belief that the promotion of business and respect for human rights (p112) should go hand in hand. 3.2 The FCO has failed to address the sometimes conflicting interests that exist within its overseas missions that may be promoting UK business interests even when these relate to projects that have had adverse impacts on human rights or that are likely to in future The fact that UKTI are embedded in foreign embassies and that the FCO has a commercial arm - the Commercial and Economic Diplomacy Department (CEDD) - that does not have the same understanding of human rights or commitment to implementing the UN Guiding Principles as does the Human Rights and Democracy Department (HRDD) is cause for concern. The UK s intervention in the Kiobel v Royal Dutch Petroleum case (see below) is indicative of the failure to give weight to human rights considerations when commercial interests might be at stake. 3.4 Case Study: The UK s interventions in Kiobel-v-Royal Dutch Petroleum 3.4(i) In February and June 2012 the UK and The Netherlands submitted joint amicus briefs to the Supreme Court of the United States in Kiobel-v-Royal Dutch Petroleum, a case originally brought against the oil company by environmental activists from the Ogoni region of the Niger Delta in Nigeria for its role in alleged crimes against humanity. 3.4(ii) The case was brought under the Alien Tort Statute (ATS), which enabled non-us plaintiffs to bring cases against non-us defendants for activities which occurred in a third country. The UK- Netherlands briefs, which were submitted to the Court during hearings over the application of international law to companies, set out the governments opposition to the extraterritorial application of the ATS. The briefs did not deal with the substantive allegations in the case. 3.4(iii) In February 2014 eighteen FCO documents relating to this intervention were released to CORE following a Freedom of Information request originally made in July The documents show that: the briefs were submitted to the Supreme Court in an effort to secure a ruling preventing future similar actions against British companies being brought under the ATS; the government was aware that the interventions would be seen as inconsistent with its approach to business and human rights; 3 FS See Kiobel-Full-Documents-following-ICO-Decision.pdf 4

5 there was no meaningful consideration of the very serious consequences for victims of corporate abuse who would be denied the possibility to access justice through the US courts; the government s belief that it was acting to protect the interests of British business was based on conjecture rather than evidence. 3.4(iv) The documents offer an insight into the type of access that a major British multinational has to the FCO and other government departments. While it is of course desirable for the FCO to maintain a dialogue with all stakeholders on matters which are of interest to them, this must be done in a manner which is transparent. 3.4(v) We are concerned that the manner in which the decision was taken to intervene in the case did not allow for adequate scrutiny by, or consultation with other stakeholders, including civil society and parliamentarians. 3.4(vi) It is notable from the documents that the FCO appeared to have an ongoing dialogue with Shell regarding the intervention but took the decision not to make a Written Ministerial Statement to Parliament or to consult more widely about the proposed intervention. 3.4(vii) We recommend that the Committee ask the FCO to set out how it ensures that commercial interests do not outweigh the UK s international human rights commitments and what steps are taken to ensure policy coherence on business and human rights issues within the FCO and across government departments. 4. The UK s role on the UN Human Rights Council following its re- election there in November At the June 2014 session of the UN Human Rights Council (HRC), a group of States are likely to table a resolution that will seek to begin a process of developing an international treaty on business and human rights. This is a development of potential significant importance for the advancement of human rights and more than 80 States indicated their support for such a proposal last September. 4.2 The adoption of the UNGPs reflected the recognition by States and stakeholders that business has a responsibility to respect human rights. The international community nevertheless acknowledged that the UNGPs represented the beginning of a process and that they should not foreclose future enhancement of standards. The UNGPs clearly set out that business impacts require a smart mix of policy responses, going beyond voluntary standards and including regulation. An intergovernmental process at the UN level to strengthen the normative framework on business and human rights would be complementary to the implementation of the UNGPs. Such a process would go alongside continuing efforts to strengthen existing national and regional frameworks and has the potential to help address the transnational nature of business-related human rights abuse and the urgent need to ensure access to remedy for victims. 5

6 4.3 We therefore recommend that in line with the UK s commitment to implement the UNGPs, the UK supports this initiative at the HRC and avoids taking steps to block the resolution. ENDS For further information please contact coordinator@corporate-responsibility.org 6