human rights & business (and a few other things)

General Comment of the UN Committee on the Rights of the Child on State Obligations regarding the Impact of the Business Sector on Children’s Rights

A special thank you to Dr. Olga Martin-Ortega for the info about the adoption of the General Comment.

On 15 March 2013, the UN Committee on the Rights of the Child adopted General Comment No 16 on State obligations regarding the impact of the business sector on children’s rights. The comment has emerged from the realisation that “business can be an essential driver for societies and economies to advance in ways that strengthen the realisation of children’s rights through, for example, technological advances, investment and the generation of decent work. However, the realisation of children’s rights is not an automatic consequence of economic growth and business enterprises can also negatively impact children’s rights” [para. 1].

The link between this General Comment and the adoption of the UN Guiding Principles on Business and Human Rights in 2011 is clear. Using the now famous “protect, respect, remedy” terminology, the Committee highlights that “the General Comment aims to provide States with guidance on how they should: ensure that the activities and operations of business enterprises do not adversely impact on children’s rights [protect]; create an enabling and supportive environment for business enterprises to respect children’s rights including across any business relationships linked to their operations, products or services and across their global operations [respect]; and ensure access to effective remedy for children whose rights have been infringed by a business enterprise acting as a private party or as a State agent [remedy]” [para 5].

Other relevant texts are also mentioned, such as the OECD Guidelines for Multinational Enterprises, the Global Compact and several ILO Conventions.

The General Comment is divided in 4 main parts.

I. General principles of the Convention as They Relate to Business Activities

 Taking the text of the 1989 Convention on the Rights of the Child as a starting point, the Committee focuses on four principles/rights and points to specific action States should take to ensure that businesses do not violate them. These principles/rights are: the right to non-discrimination (Article 2 CRC); the principle of the best interests of the child (Article 3(1) CRC); the right to life, survival and development (Article 6 CRC); and the right of the child to be heard (Article 12 CRC).

With regards to the right to non discrimination, the recommended State actions include, for example, the collection of “statistical data that is appropriately disaggregated and other information to identify discrimination against children in the context of business activities and operations” and the establishment of “mechanisms (…) to monitor and investigate discriminatory practices within the business sector” [para 13].

Concerning the principle of the best interests of the child, “States must ensure that the best interests of the child are central to the development of legislation and policies that shape business activities and operations such as those relating to employment, taxation, corruption, privatisation, transport and other general economic, trade or financial issues” [para. 15]. Moreover, and crucially, the Committee makes clear that “Article 3(1) is also 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.” [para. 16]

In relation to the right to life, survival and development, the Committee recommends effective regulation to address, among other things, “environmental degradation and contamination arising from business activities can compromise children’s rights to health, food security and access to safe drinking water and sanitation” [para 19].

Finally, regarding the right of the child to be heard, the Committee recommends that States ensure that children are not left out and can be heard when “business consults with communities that may be affected by a potential business project” [para 23].

II. Nature and scope of State obligations

The Committee then proceeds to spell out what the obligations of states to respect, protect, fulfil and provide remedies may be when it comes to addressing the impact of the business sector on children’s rights. Respecting such rights entails that “a State should not engage in, support or condone abuses of children’s rights when it has a business role itself or conducts business with private enterprises. For example, States must take steps to ensure that public procurement contracts are awarded to bidders that are committed to respecting children’s rights” [para. 27].

The obligation to protect “means that States must take all necessary, appropriate and reasonable measures to prevent business enterprises from causing or contributing to abuses of children’s rights. Such measures can encompass the passing of law and regulation, their monitoring and enforcement, and policy adoption that frame how business enterprises can impact on children’s rights” [para. 28].

The obligation to fulfil, “requires States to take positive action to facilitate, promote and provide for the enjoyment of children’s rights (…). To meet this obligation, States should provide stable and predictable legal and regulatory environments which enable business enterprises to respect children’s rights” [para. 29].

The obligation to provide remedies means that states have “in place child-sensitive mechanisms -criminal, civil or administrative- that are known by children and their representatives, that are prompt, genuinely available and accessible and that provide adequate reparation for harm suffered” [para. 30].

III. State obligations in specific contexts

Next, the Committee lists specific contexts in which “the impact of business enterprises can be significant and where States’ legal and institutional frameworks are often insufficient, ineffective or are under pressure”. These are: 1/ business’ provision of services for the enjoyment of children’s rights; 2/ the informal economy; 3/ the consequences of the global operations of business, with responsibilities being shared among a number of business entities (parent company, subsidiary, contractor, supplier, etc) operating in different countries which can lead to difficulties of a jurisdictional nature; 4/ the adverse impact of policies imposed by certain international organisations. 5/ Emergency and conflict situations.

The third element listed is particularly interesting to me as the Committee clearly embraces extraterritoriality as a way to enhance corporate accountability for  human rights violations, wherever they may have occurred, a point I wrote about in a previous blog post and an article in the Journal of Business Ethics. The 2011 Guiding Principles recognised that States may act extraterritorially to protect human rights, but without mentioning an obligation to do so. In this General Comment, the Committee on the Rights of the Child clearly goes one step further and talk about state “obligations to respect, protect and fulfil children’s rights in the context of businesses’ extra-territorial activities and operations provided that there is a reasonable link between the State and the conduct concerned. A reasonable link exists when a business enterprise has its centre of activity, is registered or domiciled or has its main place of business or substantial business activities in the State concerned” [Para. 43]. There, the Committee on the Rights of the Child is adopting the position other UN treaty bodies have adopted before (e.g.: Committee on Economic, Social and Cultural Rights, General Comments No. 14, No. 15 and No. 19 ; Committee on the Elimination of Racial Discrimination, Concluding observations on Canada).

IV. Framework for Implementation

The General Comment then moves on to the framework for implementation that includes legislation, regulation, and other types of measures and actions.

The General Comment is to be welcomed, if only because one more UN treaty body has now embraced the idea that states have extraterritorial obligations when it comes to regulating business to avoid human rights violations committed abroad. It also shows that mainstreaming of the UN Guiding Principles within the UN Human Rights mechanisms is under way, two positive developments.

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