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January 18, 2019

Business and Human Rights

Dr. Khine Khine Win

Businesses impact human rights whatever and however they do businesses. And it has long been recognized that business can have a profound impact on human rights. These impacts can be positive or they can be negative. Employment, economic and infrastructure development, improvement of  living standard are positive impact and child labor, pollution, discrimination and corruption are examples of negative impact. From human rights perceptive, labor rights can be affected by business such as right to equal pay for equal work, right to a safe work environment, right to rest and leisure, right to equality at work etc. And also other rights may be affected by business such as right to privacy, right to education, right to social security, right to physical and mental health ( access to medical services) etc. However, nowadays, one of the most significant challenges in the human rights debate is the increased recognition of the link between business and human rights.
It is generally recognized that human rights standards were only applicable to governments, not to the private sector.  Some companies claimed that their sole obligation was to respect national laws, even where those laws failed to meet international human rights standards. Although the primary duty to protect human rights remains with national governments, companies also have a responsibility to respect human rights in their operations.
June 16, 2011 the United Nations Human Rights Council endorsed the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy Framework” which is set of 31 principles directed to States and companies that clarify their duties and responsibilities to protect and respect human rights in the context of business activities and ensure an effective remedy. The Principles were created by the UN Special Rapporteur on Business and Human Rights, Prof.John Ruggie to implement which was agreed by the UN in 2008.
This framework consists of the state duty to protect against human rights abuses; the corporate responsibility to respect human rights; and greater access by victims to effective remedies.  And the guiding principles seek to provide authoritative global standard for preventing and addressing the risk of adverse human rights impact linked to business activity. This UN guiding principles encompass three pillars outlining how states and businesses should implement the framework. Pillar 1 is state duty to protect. Governments have to make sure that business do not violate anyone human rights. It means passing laws to prevent human rights violation but also have to make sure that those laws are implemented. The UN guiding principles said governments have to prevent against business-related abuse within their territory and/or jurisdiction even if the states itself acting like one.
Pillar 2 is to respect corporate responsibility. Businesses have to refrain from violations of human rights whenever and however they do business. It means that it is  not enough for companies to simply follow the law where they operate. Companies have to perform human rights due-diligence by talking in people who might be affected by the companies like government responsibilities. And it should be a continuous process. In this regard, companies must “know and show” respect for human rights through exercising human rights due diligence.
Pillar 3 is access to remedy. Access to remedy is itself a human right. In this regard, UDHR article 8 clearly states that everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law. What will happen to something goes wrong? If the company abuses human rights, the government have to make sure that the court system or some other legitimate process allow the victims to file complaint and that complaint is investigate in settle. Companies have obligation too, part of human rights due-diligence, its allowing people affected by the people to file grievances and participating in process to make them right.  Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation, guarantees of non-repetition Ensuring access to remedy for business related human rights abuse requires also that States facilitate public awareness understanding of these mechanisms, how they can be accessed, and any support ( financial or expert) for doing so. Bear in mind that effective judicial mechanisms are at the core of ensuring access to remedy.
With regard to National Action Plan, UN Working Group on business and human rights strongly encourages all States to develop, enact and update a national action plan on business and human rights as part of the State responsibility to disseminate and implement the Guiding Principles on Business and Human rights. Only ten countries have produced a national action plan and 19 countries including Myanmar are in the process of developing a national action plan or have committed to doing one according to OHCHR. And also 8 countries, in which either the NHRI or civil society have began steps in the development of a national action plan.
My perceptions is that if we want to implement the UN Guiding Principles on business and human rights effectively, first we need to establish capacity building as limited capacity is obstacle to rapid progress in business and human rights and it affects the ability of all stakeholders including government, business and NGOs. But capacity building is not only a resource issue and institutional reengineering should be considered too. Second, State should enforce and review laws that require businesses to respect human rights, make ensure laws and policies governing businesses enable respect for human rights, provide guidance for companies and encourage or require business to communicate how they address human rights impacts.


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