Amnesty International April 2012 Comments on the Annotated Outline of General Comment by the Committee on the Rights of the Child

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1 AMNESTY INTERNATIONAL S COMMENTS ON THE ANNOTATED OUTLINE, AND RECOMMENDATIONS FOR, THE PROPOSED GENERAL COMMENT ON CHILD RIGHTS AND THE BUSINESS SECTOR OF THE UNITED NATIONS (UN) COMMITTEE ON THE RIGHTS TO THE CHILD Amnesty International welcomes the opportunity to comment on the Annotated Outline of the General Comment by the UN Committee on the Rights of the Child regarding Child Rights and the Business Sector (the Outline) and to make proposals for the future General Comment on Children s Rights and the Business Sector (the General Comment). Amnesty International has been working on issues of corporate accountability for abuses to human rights for well over a decade, and has conducted research into numerous cases of corporate abuses of human rights. One of the organization s main objectives in this area is the development of strong international standards on business and human rights which are conducive to effectively upholding human rights in the context of business activity. The drafting of this General Comment provides a key opportunity for the Committee on the Rights of the Child (the Committee) to clarify legal obligations of States Parties with regard to the realization and protection of children s rights in the context of business activity both domestically and abroad by advancing the development of standards on business and human rights globally. We support the overall approach of looking at both domestic and extraterritorial measures to clarify States obligations under the Convention to ensure that companies respect child rights wherever they operate. Executive Summary In this submission, Amnesty International identifies a number of key areas which it recommends are addressed in the General Comment. These priority areas have been identified through our research and analysis of specific cases. With regard to the State duty to respect, the organization emphasizes the duty to ensure that existing or prospective laws, policies and practices connected to the business sector do not violate child rights. The obligation to ensure that State-owned companies, and private businesses receiving public support from the State, respect human rights wherever they operate should also be emphasized. With regard to the State duty to protect, particular attention should be paid to the need for greater regulation, through legislative, administrative, judicial and other appropriate means, of corporate actors to ensure they respect child rights. In particular, States should require companies to have adequate human rights due diligence policies and processes in place to prevent abuses of child rights, they should actively monitor these processes, and they should impose sanctions if companies fail to take measures to adequately implement them. With regard to the State duty to provide remedy, there is a need for States to focus their efforts on judicial and other state-based mechanisms of redress for abuses of children s rights. Given the many barriers to justice facing children whose rights are abused by corporate actors, it is particularly important that States focus their attention on removing these barriers to ensure children can access justice effectively. The organization further emphasizes the duty of the State to enforce existing civil, criminal or administrative laws holding corporate actors to account for abuses of children s rights, and the need to create new, or to strengthen existing, regulatory agencies responsible for the oversight of standards relevant to children s rights. Finally, the organization places particular attention on States duties to adopt and implement extraterritorial measures to ensure that companies who operate across borders do not abuse child rights in their global operations. These include regulatory measures such as: mandatory human rights due diligence that

2 reflect children s rights across a company s global operations; access to courts or other remedial mechanisms for foreign children seeking redress for alleged abuses to their rights; and measures of international assistance and cooperation, such as investigations or enforcement of remedies, to ensure effective corporate accountability and remedy in cases of corporate abuse of child rights. The sections that follow expand on these key considerations. Table of Contents 1. The State Duty to Respect 2. The State Duty to Protect 2.1 The State duty to provide an effective remedy 2.2 Effective enforcement 3. The State-business nexus 4. Obligations beyond borders 4.1 Extraterritorial measures 4.2 Obligations of international assistance and cooperation 1. The State Duty to Respect Amnesty International agrees with the view expressed in the Outline that the State duty to respect child rights in the context of business activity includes ensuring that laws, policies, programs and practices with regard to businesses do not violate child rights. This assessment requires a review, and if needed an amendment of existing laws, policies and practices, including importantly in the area of corporate trade and investment law, that might be impairing the effective exercise of child rights or the ability of the State to implement its obligations under the Convention. It also requires an assessment of the potential negative impact on child rights of any prospective law, policy and program to ensure that when in operation they will not infringe on child rights. The General Comment should also make clear that States Parties must not engage in, support or condone human rights abuses caused or contributed to by companies. This is particularly relevant with regard to State-owned and State-supported companies. The Outline rightly focuses on State duties when the State itself has ownership or control over business actions, for example, with regards to State-owned enterprises, State provision of support or services to business enterprises, or State procurement of goods or services. The involvement of State-owned enterprises or State-supported enterprises in human rights abuses may also amount to a violation of rights by the State. In this context, Amnesty International would welcome specific guidance in the General Comment on how States should ensure State-owned companies, and private businesses receiving any form of public support, respect human rights including the rights of the child wherever they operate. To this end, it should require they conduct human rights due diligence with the objective of preventing abuses, including abuses of child rights, throughout their operations. With regards to private companies receiving state support, States should make sure they do not provide, or that they withhold support, if adequate human rights due diligence policies and practices are not in place. In this context, Amnesty International welcomes the reference in the Outline to the need for Export Credit Agencies (ECAs) to take steps to prevent, mitigate and remediate any adverse impacts the projects they support might have on children s rights and make it a requirement that companies receiving support from ECAs carry out their own child rights due diligence. 1 Respect for child rights, reflected through the implementation of adequate systems and measures to ensure corporate activities do not abuse child rights, should also be required of companies procuring goods or services to the State. Amnesty International would also welcome guidance in the General Comment on the obligations of States when they contract with or legislate for business enterprises to provide public services necessary for the fulfilment of human rights. The General Comment should make clear that in these contexts States retain their duty to realize child rights. Companies performing public services may also have responsibilities that extend beyond the business responsibility to respect human rights. The State ought to clarify any responsibilities of the company in relation to the protection and/or fulfilment of 2

3 child rights, including by making these explicit in contractual arrangements or regulatory provisions. The observations of UN Special Rapporteur on the human right to safe drinking water and sanitation can be a useful source to draw from regarding the measures that States should take to ensure the fulfilment of human rights when public services are carried out by private companies The State Duty to Protect To protect children from corporate human rights abuses States must better regulate companies. Amnesty International welcomes the emphasis placed in the Outline on the need for States to adopt appropriate legislation and related regulations to protect children from business abuse of their rights. It also shares and supports the point made in the Outline that voluntary Corporate Social Responsibility (CSR) initiatives cannot be considered as a substitute for effective regulation of business as part of States due diligence obligations. Thus, it would be very important that the General Comment make legislative, administrative, judicial and other appropriate regulatory measures the central component of the State duty to protect child rights in the context of business activity. The UN Guiding Principles on Business and Human Rights emphasize the importance of human rights due diligence to discharge the corporate responsibility to respect human rights. 3 Given its role in preventing corporate-related human rights abuses and the State duty to take appropriate measures to protect child rights against abuses by corporate actors, child rights due diligence should be mandated by law. This is important not solely with regard to companies operating in conflict zones. States should furthermore clarify what is required by businesses (e.g. compliance with international human rights standards), actively monitor human rights due diligence processes, require the disclosure of corporate human rights policies and processes so as to facilitate transparency and accountability, and impose sanctions if companies fail to take adequate steps to identify, prevent, minimize and address adverse impacts on child rights. As part of their human rights due diligence process, companies must be required to assess the actual and potential negative impacts of their activities on child rights. These assessments must be rightsbased. Amnesty International would welcome guidance in the General Comment on the key principles and safeguards for a human-rights based impact assessment process as it pertains to child rights. For example, to assess potential human rights impacts accurately, companies must ensure they consult with communities likely to be affected and provide them with information on all relevant aspects of their activities in an accessible and timely manner. The actual or potential impacts on child rights must be specifically assessed as part of the larger impact assessment process. The Convention on the Rights of the Child and the principles which underpin it, including the best interests of the child, nondiscrimination and the right to be heard should form the framework for conducting such assessments. Similarly, any plan of action and measures to prevent human rights abuses must have special regard for, and be especially designed to prevent the specific and differentiated impact on children s rights. 2.1 The State duty to provide an effective remedy Amnesty International is pleased to see the emphasis placed in the Outline on the State obligation to take effective enforcement measures, including investigation, adjudication and redress, when abuses to child rights are caused or contributed to by business. The General Comment should frame its guidance on remedies according to international standards on the right to remedy. Under international human rights law, individuals and communities who allege that a human rights abuse has been committed against them have a right to have their complaint addressed by an independent, impartial and competent authority established by law. If human rights abuses are found, individuals or communities have a right to substantive reparation (including compensation, rehabilitation, restitution, changes in law and guarantees of non-repetition). Remedial mechanisms must have the capacity to afford and enforce remedy; they must be affordable and accessible and guarantee equality of the parties both in access and throughout procedures. 4 3

4 State-based mechanisms of redress are in principle the best suited to provide access to an effective remedy according to the principles and standards prescribed by international law. To ensure that children s right to an effective remedy is upheld in cases of corporate abuse of child rights, States Parties must focus on strengthening State-based judicial and non-judicial mechanisms of redress. These can be supplemented, but not replaced by corporate-level grievance mechanisms. It is essential that the General Comment clarify that encouraging the proliferation of non-state grievance mechanisms, especially industry - or corporate - based, is not a substitute for ensuring the availability, effectiveness and accessibility of judicial and other State-based remedial processes. In this context, Amnesty International welcomes the attention given in the Outline to State-based nonjudicial remedies and their role in establishing accountability. States should devote greater attention and resources to strengthening competent State-based administrative and other non-judicial bodies capable of providing effective remedy for abuses to children s rights. Amnesty International agrees with the view expressed in the Outline that other State supported bodies such as mediation services, National Human Rights Institutions or Ombudspersons can play an important complementary role alongside judicial processes. By acting pro-actively to monitor human rights abuses and hearing complaints in an informal manner, such bodies can enhance access to justice for children who may not otherwise have the necessary resources or information to make complaints about child rights abuses. People whose human rights are affected by corporate activities, including children, often face significant hurdles when trying to access an effective remedy. It would be important for the General Comment to consider and reflect these obstacles and provide guidance as to how the obstacles can be overcome. 5 The General Comment should clarify that the duty upon States Parties to provide remedy includes taking measures to remove or alleviate these obstacles to ensure mechanisms of redress are accessible in practice. Amnesty International welcomes the reference in the Outline to corporatespecific obstacles to justice, such as the way in which transnational corporations are structured which makes attributing legal responsibility challenging, the complexities of extraterritorial jurisdiction and the power imbalances between the respective parties. Findings from our research highlight other key barriers to justice in the context of corporate-related human rights abuses, such as the difficulties in accessing information necessary to build and defend a claim and legal procedural issues, including jurisdictional hurdles to extraterritorial human rights litigation and Forum non Conveniens. It is essential that effective State action be contemplated and undertaken to ensure these obstacles do not prevent access to effective remedies. It would be very useful if the General Comment included measures States should take individually and collectively to remove or overcome these barriers and make children s human right to remedy a reality. 2.2 Effective enforcement Amnesty International agrees with the view expressed in the Outline that it is generally the lack of or poor implementation of laws regulating business that poses the most critical problem for children. For this reason, it would be important for the General Comment to provide guidance attention on the need for States to effectively enforce existing civil, criminal or administrative laws holding corporate actors to account for illegal or criminal acts that lead to child rights abuses. The emblematic case of the 1984 toxic gas leak in Bhopal, India, offers an illustration of the grave failures in enforcement of existing laws to hold companies accountable for gross abuses of child rights. The disaster killed thousands of people, many of whom where children, and continues to severely impact children s rights to health, water, a healthy environment and an adequate standard of living. Nine corporate employees and three corporations were charged with various criminal offences under the Indian Penal Code, including culpable homicide not amounting to murder. The corporations accused were Union Carbide Corporation (UCC), its Indian-based subsidiary Union Carbide India Limited, and Union Carbide Eastern, another wholly owned subsidiary of UCC incorporated in the USA. Despite an initial swift action by the State, the prosecutions that followed dragged on for decades exposing the gross failures of the State to apply its criminal law effectively and hold corporate actors criminally accountable for the actions that lead to serious abuses to children s rights. A verdict in the case was not given until more than 25 years after the disaster, and concerned only the former 4

5 employees of the Indian-based company. Neither UCC nor its former US Chairman were prosecuted and they both remain to this day absconders from justice. 6 Amnesty International would welcome guidance in the General Comment reminding States Parties of their legal duty under the Convention to investigate illegal or criminal acts that result in abuses to child rights such as those in the case described above, and effectively prosecute and punish corporate perpetrators found responsible for those acts. Amnesty International also shares the view expressed in the Outline that States should resort to effective means of implementation and enforcement of legislation and regulation. It would be important for the General Comment to emphasise the need to strengthen regulatory agencies responsible for the oversight of standards relevant to children s rights, such as those mentioned in the Outline related to health and safety, environmental and non-discrimination standards, and to recommend that these agencies be furnished with the necessary powers and resources to carry out their protective roles effectively. The General Comment should furthermore provide guidance to States Parities on the establishment of new regulatory agencies with the capacity to investigate complaints and provide and enforce remedies for abuses by companies of children s rights, where none exist or where existing ones are inadequate to protect children s rights effectively. 3. The State-business nexus Foreign companies operating in developing countries are often able to exert significant influence on governments wishing to attract or retain foreign direct investment. In these contexts, the legal and regulatory environment in which they operate can be shaped so as to protect corporate interests at the expense of the rights of those who may become affected by their operations, including children. Often, governments accept to curtail their own ability to protect human rights. This happens when foreign investors seek or accept exemptions from existing standards related to the protection of the environment, labour or human rights, when they enter into agreements with governments that prohibit or restrain their ability to introduce new regulations to strengthen the protection of human rights (for example, through stabilization clauses in investment agreements), or when they oppose state legislation aimed at bringing the national law into line with relevant international human rights standards. It would be important that the General Comment reflect this reality and specify the obligation of States and companies to refrain from enacting or promoting provisions in investor-state agreements and in national laws, regulations and policies that entrench protections of corporate rights and interests at the expense of children s rights. States also often act in connivance with companies to erect barriers to justice for corporate abuses to human rights. The General Comment should make clear to States that they must not erect barriers to justice in cases of corporate abuse of children s rights, even though this might be done in the name of economic development or other public interest justifications. Amnesty International has examined cases in which the direct action of companies and the nature of their relationship with governments have resulted in changes to laws and regulations to prevent potential claims against these companies. This was the case for example in Papua New Guinea (PNG), where mining company BHP (now BHP Billiton) negotiated legislation with the PNG government to prevent civil claims for compensation against environmental degradation caused by BHP s Ok Tedi mine. The legislation called The Mining (Ok Tedi Re-stated Eighth Supplemental Agreement) Act 1995 contained a number of provisions that directly infringed on the rights of the affected Indigenous population to seek redress, including the elimination of all previously available legal grounds to seek compensation from the mining companies in the PNG courts. BHP's role in the preparation of the legislation led the lawyers of a group of affected villagers to file a contempt of court action in an on-going lawsuit in Australia. 7 The Ok Tedi case demonstrates how companies actions can have a serious and adverse impact on the right to remedy. It would be important that the General Comment reflect and address the way in which companies take full advantage of legal and institutional weaknesses within the countries in which they operate and how they often directly create obstacles to accountability and remedy. 5

6 4. Obligations beyond borders Amnesty International is pleased to see the recognition in the Outline of the role of home States in preventing and remedying abuses by companies domiciled in their jurisdiction of child rights abroad. This reflects the now well established recognition of the need for States to ensure that their companies are not involved in human rights abuses in other countries. The ongoing failure by States to hold corporate actors domiciled in their territory accountable for human rights abuses committed abroad represents a key gap in human rights protection which the General Comment should seek to address. The establishment of laws, regulations and policies that extend beyond a State s borders is essential to fill this protection gap and effectively prevent companies from abusing child rights in other countries. The General Comment should make clear that States must put in place legal and regulatory measures to prevent companies domiciled within their territory from abusing child rights in other countries, and that States must establish effective means of cooperating to prevent and address corporate child rights abuses. This would also build on recommendations by other UN treaty bodies. In General Comment 14 on the right to health the Committee on Economic, Social and Cultural Rights (CESCR) provided that: To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law. 8 The CESCR made similar observations on the right to water in General Comment 15 9 and the right to social security in General Comment In a statement regarding the economic sector and economic, social and cultural rights, the CESCR stated that States Parties should take steps to prevent human rights contraventions abroad by corporations which have their main seat under their jurisdiction, without infringing the sovereignty or diminishing the obligations of the host States under the Covenant. 11 Similarly, the Committee on the Elimination of Racial Discrimination has recommended that States Parties take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in their country that negatively impact on the enjoyment of rights of Indigenous peoples in territories outside the country. That Committee has called on State Parties to explore ways, including regulatory measures, to hold transnational corporations accountable. 12 The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (OPSC) already expressly imposes obligations on States to establish criminal and other laws that extend beyond their borders. This is in keeping with a variety of human rights treaties and other instruments that expressly impose obligations on States to establish criminal jurisdiction over their nationals in relation to, for instance, complicity in torture, enforced disappearance and apartheid, wherever in the world the abuse (and the act constituting complicity) is committed. 13 The Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights 14 recently adopted by a group of experts in international law and human rights, including present and former Special Procedures mandate holders, shed further light on the obligations of States to regulate business extraterritorially. The Principles clarify that when referring to the scope of a human rights treaty, the term jurisdiction refers not only to situations over which a State exercises authority or effective control but also situations over which State conduct brings about foreseeable effects on the enjoyment of human rights and situations in which the State is in a position to exercise decisive influence or to take measures to realize human rights extraterritorially, in accordance with international law. 15 The Principles also indicate that a State is required to extraterritorially protect economic, social and cultural rights not only where the corporation is domiciled in 6

7 the State, but also any of the following four other circumstances: first, where the harm or threat of harm originates in that State s territory; second, where the corporation, or its parent or controlling company, has its centre of activity, its main place of business or substantial business activities, in the State concerned; third, where there is a reasonable link between the State concerned and the conduct it seeks to regulate; and fourth, regulation is required by all States that can regulate corporate conduct that infringes a peremptory norm of international law, such as the prohibition of torture. 16 The Principles further indicate that in addition to regulation, States that are in a position to influence the conduct of non-state actors should exercise such influence, in accordance with the Charter of the United Nations and general international law, in order to protect economic, social and cultural rights. This requirement is equally relevant to the protection of child rights. Examples of such conduct can include conditions linked to their public procurement system and international diplomacy Extraterritorial measures Effective regulatory measures to ensure businesses respect child rights abroad can take a number of forms. One key measure is for States to legally require their businesses to undertake human rights due diligence throughout their global operations. Mandatory corporate reporting or due diligence limited to operations in conflict zones are necessary but not sufficient measures. It would be of vital importance that the General Comment specify that home States must make human rights due diligence (including child rights due diligence in particular) mandatory across a company s global operations. Other measures include laws that address specific foreseeable risks to human rights as a result of specific corporate activity. For example, prohibitions on the export of materials known to harm health such as hazardous waste and prohibitions on supplying certain goods or services that may facilitate the violations of child rights, such as provision of arms used to attack civilians. Just as with regards to domestic legislation, it would be important that the General Comment place emphasis on effective implementation and on the obligation of home States to enforce these laws adequately by means of sanctions or other measures imposed within their territory. States should also act collectively to ensure that access to public finance and other forms of official support, including support through multilateral agencies, is made explicitly conditional on companies respecting child rights. In this regard, Amnesty International welcomes the attention given in the Outline to the role of international organizations and the need for international development banks, including their specialized branches for lending to States or private companies, to incorporate the respect, protection and fulfilment of children s rights among their operational criteria. It furthermore supports the suggestion that abuses of children s rights by businesses funded by those banks should lead to appropriate investigation and action. It would also be helpful for the General Comment to urge States to remove barriers and enable access to judicial and other effective State-based mechanisms of redress in their jurisdiction to foreign children seeking reparations from companies domiciled in their territory for alleged abuses to their rights abroad. Many States already allow access to their courts by foreign claimants seeking damages or other forms of relief for cases of alleged corporate-related human rights abuses, mostly through tortbased claims. However, many obstacles to pursuing these extraterritorial claims exist in practice. In addition to the obstacles to justice faced in their own states, children wishing to bring claims against companies in the home states of those companies face additional hurdles, such as Forum non Conveniens and other jurisdictional barriers. Corporate defendants in cases of alleged human rights abuses routinely raise jurisdictional objections to have claims against them dismissed by their home state courts. They often push for cases to be sent back to the host state on the knowledge that a claim there is unlikely (or less likely) to succeed. This is what happened to the victims of the toxic spill from the Omai gold mine in Guyana in 1995 and the Bhopal gas leak disaster of 1984, who saw their claims dismissed by the Quebec 18 and New York 19 courts respectively on Forum non Conveniens grounds and who then struggled to obtain effective remedy in their own countries. The General Comment should guide States to take proactive measures to remove these and other obstacles to remedy, and ensure that access to their courts and other effective mechanisms of redress are made as easy and feasible to foreign children as possible. In cases of alleged abuses of children s rights, 7

8 decisions on jurisdiction should be informed first and foremost by human rights considerations and with the best interests of the child as the overriding concern. 4.2 Obligations of international assistance and cooperation Amnesty International welcomes the emphasis placed in the Outline on international cooperation for the effective realisation of children s rights. In the context of multinational corporate activity, international cooperation between states is vital and often decisive in ensuring effective accountability and remedy. An over-riding consideration must be that jurisdictional vacuums that can lead to corporate impunity and denial of justice are not allowed to exist, and that jurisdictional uncertainties are dealt with swiftly and with the protection of the rights of the child. It would be very useful if the General Comment provided guidance on specific measures of international cooperation that home States (and other relevant States other than the host State) should take to contribute towards effective accountability and remedy in cases of corporate abuse of child rights. These measures can include, depending on the circumstances, conducting investigations into alleged child rights abuses, supporting prosecutions or civil procedures being conducted elsewhere, helping implement penalties imposed on companies found to have abused child rights, or enforcing remedies granted to children for such abuses. Consistent with the Vienna Declaration and Programme of Action, 20 international cooperation and assistance should also involve providing technical and financial assistance to other States to ensure their institutions are equipped to provide remedy to children whose rights are abused by corporate actors. The General Comment should emphasise the need for targeted programs aimed at building and/or strengthening host state regulatory and institutional frameworks, including those concerned with the administration of justice, to enable them to regulate corporations effectively within their territory. Finally, it would also be important that the General Comment encourage States to cooperate in the development of international and regional regulatory frameworks on business and human rights to ensure that existing governance gaps are closed and to achieve policy coherence across States. 1 For further reference on Amnesty International s position and recommendations in this area see Amnesty International submission to the review of the Revised Recommendation on Common Approaches on the Environment and Officially Supported Export Credits [POL 30/002/2010, March 2010, 2 Report of the Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, 29 June 2010, A/HRC/15/31. The mandate became a Special Rapporteur in 2011: HRC res 16/2. 3 Report of the [former] Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations Protect, Respect and Remedy Framework, 21 March 2011, A/HRC/17/31. 4 Articles 2 (3) and 14 (1) of the International Covenant on Civil and Political Rights. See further Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) and Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007). 5 A useful account of some of the most salient and recurrent obstacles to justice typically present in cases of corporate-related human rights abuse can be found in Overcoming Obstacles to Justice: Improving Access to Judicial Remedies for Business Involvement in Grave Human Rights Abuses available at: 6 Amnesty International, Bhopal: Justice Delayed, Justice Denied: Background briefing on the criminal prosecutions in India and the failure to bring the prosecutions to an end 25 years on, Amnesty International, Index Number: ASA 20/024/2009, November 2009, available at: 7 Judge Cummins J found BHP to have acted in contempt of court, stating in his judgment: I am satisfied beyond reasonable doubt, that [BHP] has sought to block the actions of these plaintiffs presently before this court. The conduct of [BHP] is to interfere with the due administration of justice by impeding the lawful right of the 8

9 plaintiffs to law. Dagi, Rex & Ors v BHP Ltd (ACN ) & Ok Tedi Mining Ltd, Judgement, Contempt of Court, 20 September Full text of the judgment at: This decision was later overturned on procedural grounds. 8 UN Committee on Economic, Social and Cultural Rights, General Comment 14:The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2000/4 11 August 2000, para UN Committee on Economic, Social and Cultural Rights, General Comment 15, The right to water (articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/2002/11, 20 February 2003, para UN Committee on Economic, Social and Cultural Rights, General Comment No. 19: The right to social security (article 9 of the International Covenant on Economic, Social and Cultural Rights), 4 February 2008, E/C.12/GC/19, para UN Committee on Economic, Social and Cultural Rights, Statement on the obligations of States Parties regarding the corporate sector and economic, social and cultural rights, 20 May 2011, UN Doc. E/C.12/2011/1, para For example, in its 2010 Concluding Observations on Australia, the Committee on the Elimination of Racial Discrimination noted with concern the absence of a legal framework regulating the obligation of Australian corporations at home and overseas whose activities, notably in the extractive sector, when carried out on the traditional territories of indigenous peoples, have had a negative impact on indigenous peoples rights to land, health, living environment and livelihoods (articles 2, 4, 5). In the light of the Committee s general recommendation 23 (1997) on the rights of indigenous peoples, the Committee encourages the State party to take appropriate legislative or administrative measures to prevent acts of Australian corporations which negatively impact on the enjoyment of rights of indigenous peoples domestically and overseas and to regulate the extraterritorial activities of Australian corporations abroad. The Committee also encourages the State party to fulfil its commitments under the different international initiatives it supports to advance responsible corporate citizenship : Concluding Observations of the Committee on Elimination of Racial Discrimination on Australia, CERD/C/AUS/CO/15-17, 13 September 2010, para 13. The Committee has made similar recommendations in Concluding Observations to Canada, USA, Norway and the UK. See CERD/C/CAN/CO/18, 25 May 2007, para 17, CERD/C/USA/CO/6, 8 May 2008, para 30, CERD/C/NOR/CO/19-20, 8 April 2011, para 17 and CERD/C/GBR/CO/18-20, para See, e.g., UN Convention against Torture, 1465 UNTS 85, articles 4(1) and 5(1)(b); International Convention for the Protection of All Persons from Enforced Disappearance, articles 6 and 9(1)(b); International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243, articles 3 and See also the Commentary to the Maastricht Principles, forthcoming in Vol. 34, No. 4 (Nov. 2012) Human Rights Quarterly. 15 See Maastricht Principles 8 and 9, and the corresponding commentary. While the Principles elaborate obligations in regard to economic, social and cultural rights, their applicability to all human rights are not excluded, see Principles 3 and 5 and their commentary. 16 Maastricht Principle 25 and its commentary, in particular paragraph Maastricht Principle 26 and its commentary. 18 Recherches Internationales Québec vs Cambior inc. and Home Insurance and Golder associés ltée, corespondents [1998] Q.J. No. 2554, No Quebec Superior Court (Class Action), District of Montreal, August 14, In Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984, 634 F Supp 842 (SNDY 1986) 20 Every State should provide an effective framework of remedies to redress human rights grievances or violations. [I]nstitutions concerned with the administration of justice should be properly funded, and an increased level of both technical and financial assistance should be provided by the international community : Vienna Declaration and Programme of Action: Report of the World Conference on Human Rights, [article 27], UN Doc No A/CONF.157/23 (1993). See also articles 1, 4, 10 and 13 referring to the need for international cooperation. 9