AUTHOR:- KHUSHI SHARMA, A STUDENT AT BHARATI VIDYAPEETH INSTITUTE OF MANAGEMENT AND RESEARCH
Abstract:-
Society expects companies to respect human rights, and companies generally believe that this is the case. However, most companies cannot substantiate this claim with certainty because they do not have systems in place to guarantee it. The purpose of the consultation was to find out what steps that companies should take in practice to satisfy themselves and their stakeholders their practices actually respect human rights:
Corporate responsibility to respect human rights essentially means “non-violation” of the exercise of rights or, more simply, “non-infringement”. Doing no harm can force companies to take positive action.
How to Recognize When Corporations May Harm Rights:-
Contextualize the debate about corporate responsibility with respect for people. Two recent studies were presented on allegations of human rights violations in companies. The first was led by the International Council on Mining and Metals (ICMM). He investigated 38 allegations against mining companies in 25 countries. The most common statements concern the negative impact of company activities on health and the environment.Indigenous populations, security and conflict. Among the “fundamental problems” that could give rise to allegations, the most common concerned the economic consequences arising either from the fact that the company’s activities had a negative impact on the economic situation of the local community, or from the absence of Benefits for the local economy. . A lack of advice was also frequently cited. In almost 70% of cases, the abuse was blamed on the company and another entity, usually the state, raising the question of corporate complicity, i.e. H. A situation in which the company is held responsible for the actions committed. Another entity. Entity with which he has relations because he took part in these activities and had some knowledge about them.
The second study is conducted by the Office of the United Nations High Commissioner for Human Rights in support of the mandate of the SRSG.It analyzes a sample of more than 300 allegations of corporate human rights abuses from all sectors, collected by the Business and Human Rights Resource Center. Initial findings indicate that companies have been accused of having negative impacts on the full range of human rights. Most of the cases allege direct violations by a company, although some claim that the company contributed to or benefited from violations by states, the supply chain, or other third parties.
How to Perform Effective Due Diligence:-
The consultation then highlighted the need for a comprehensive analytical framework that can guide policies and practices in managing companies in a way that respects human rights and ensures that their business activities “do no harm”. The concept of due diligence was proposed and proved to be a useful starting point for companies wishing to integrate respect for human rights into their practices.
One commenter described due diligence in the United States as the actions taken. In the United States, a company’s duty of care and loyalty is a duty of oversight and requires directors to take reasonable steps to identify and manage risks. Corporate fiduciary due diligence is also defined in the US Sentencing Guidelines as due diligence aimed at ensuring that companies comply with legal and ethical guidelines, which, according to the speaker, could include international human rights standards.
Another commenter noted that in Canadian employment law, due diligence means taking all reasonable steps and precautions to avoid harm. This includes written policies and procedures relating to health and safety systems, for example: instructions and training on the use of such procedures; continuous communication; Advise on issues and monitor results; and effective monitoring and enforcement.
The concept of due diligence has also been examined in the context of international investment law.One speaker pointed out that while bilateral investment treaties do not specify investors’ obligations, international investment tribunals have begun to question whether foreign investors have adequately assessed the risks, exercised due diligence and refrained from any “unfair conduct.” Investment tribunals have highlighted the importance of human rights in several water-related cases, which may indicate that companies will be required to take into account the human rights situation in the country in which they operate invests as part of due diligence.
Why Is Policy Formulation Important?:-
The next step would be for companies to adopt human rights policies or integrate human rights into existing policies. The consultation examined lessons learned and challenges in integrating human rights standards into corporate policy.
The International Bar Association is conducting a study on behalf of the SRSG to examine how the concepts of duty of care and fiduciary duties are interpreted in different jurisdictions.
Participants also expressed the need to train employees on policies to ensure implementation. Speakers mentioned two instruments that provide detailed policy guidance. The Business Leaders Initiative for Human Rights matrix takes into account the Declaration of Human Rights and identifies its relevance for companies by policy area. The Danish Institute for Human Rights Compliance Assessment Tool enables companies to assess their policies and practices in various operational areas with regard to human rights compliance.
Human Rights Impact and Compliance Assessments:-
There is growing awareness that preventative human rights impact assessment and compliance is a key element of due diligence to ensure respect for human rights. Participants noted that there is increasing pressure from investors on companies to use human rights impact assessments and that governments, commercial banks and multilateral lenders have the opportunity to promote their use. The consultation examined when such assessments should be carried out and what form they should take.
Participants agreed that impact assessments should be carried out as early as possible. Ideally before an investment decision, so that companies can adapt their decisions regarding location, timing, design and costs and therefore the overall return on investment based on the impact assessment. Participants indicated that this type of “pre-screening,” which typically involves checking information sources and engaging experts, should be conducted in every business sector.
These literature-based impact assessments differ from assessments that involve consultation with potentially affected individuals and communities. Some participants indicated that the need to conduct such field activities depends on the industry, type of company or size of investments. Participants disagreed on the feasibility of publishing the impact assessment results, but agreed that it was generally desirable.
Participants also disagreed about whether human rights impact assessments should be carried out exists or can be integrated into existing risk management processes. Recommended that for their integration it is necessary to maintain a human rights perspective.
How to Leverage Monitoring, Auditing, and Assurance for Maximum Efficiency:-
This session examined the role of monitoring and monitoring companies’ human rights policies and practices as a means of ensuring respect for rights.
It was agreed that controls and audits were necessary to raise awareness of human rights issues within the company and to help resolve violations. Audit results can also guide training efforts. However, some participants pointed out that there is a significant difference in audit quality depending on the auditor’s level of independence.
It was agreed that monitoring and auditing improved workplace health and safety standards but did not always effectively address issues such as freedom of association, collective bargaining and non-discrimination.One participant suggested that the latter problems could be solved if audit systems were designed to increase accountability, strengthen employee and community capacity, and introduce structural changes in the way companies operate. Participants noted that these processes can be expensive. This is particularly true for medium-sized companies, but others have highlighted that they are an essential part of business excellence and sustainability. The special role that trade unions can play on behalf of workers is highlighted.
The Impact of grievance Mechanisms and Remediation:-
When companies undermine the enjoyment of human rights by individuals and communities, mechanisms must be put in place to address grievances or grievances. However, there has been little analysis of what such mechanisms should look like, particularly at the operational level in companies. This session examined what constitutes an effective and credible grievance mechanism that helps ensure that companies respect human rights.
One commenter suggested that grievance mechanisms could be divided into three categories. The former include those created by a company at a specific location or operation, such as a mine or factory.The second includes mechanisms that operate outside companies but are not part of the formal legal system, such as the ombudsman function of the International Finance Corporation, the national contact points of the OECD or grievance mechanisms in multilateral initiatives such as the Fair Work Association. The third category includes judicial institutions at national and international levels. All three categories are necessary to take effective countermeasures.
The conversation mainly focused on the company’s complaint handling mechanisms. The point was this stated that such mechanisms can be particularly effective because they are embedded in the physical and cultural context in which the problems arose and can help find solutions,can be found more quickly.Participants agreed that grievance mechanisms should be at operational level Should resort to mediation or negotiation rather than arbitration Process.Several participants highlighted the potential of operational-level grievance mechanisms to build autonomy when they involve employees or communities significantly in the process. Provide them with information and support. Other participants expressed concerns about the fairness and independence of this process in terms of funding and access to information. Participants agreed on the need for guarantees and a solution to the financing problem so that, for example, every mediator can be considered neutral.Participants considered that a dedicated mechanism for “human rights complaints” was neither feasible nor necessary and that grievance mechanisms should therefore be able to deal with complaints related to environmental problems and other harm caused to communities or workers.
How to Unlock the Potential of the Sphere of Influence:-
This session addressed the question of when corporate responsibility to respect human rights applies and how a company determines where to act so as not to cause harm. Since the introduction of the United Nations Global Compact, the concept of “sphere of influence” has become widely accepted as an analytical tool for defining a company’s sphere of responsibility, although the practical application of this concept remains limited. Misunderstandings.
Sphere of influence is not about which rights companies must respect, but rather when and where companies must act to ensure that human rights are respected. Although the concept of a sphere of influence is compared to the jurisdiction of a state where human rights obligations apply, a company’s sphere of influence cannot be defined by geographical boundaries in the same way.
Two members of the SRSG team recently published an article in Ethical Corporation magazine in which they sought to explain the concept of a corporate sphere of influence. Article Argued that the concept, as formulated above, combined too many divergences Concepts such as control, causality, physical proximity, advantage and political influence, And was therefore unable to provide clear policy guidance to businesses and stakeholders.
Some participants suggested that just because a company has influence or power over a company that has human rights impacts, this does not necessarily mean that it is responsible for those human rights impacts. Participants generally agreed that factors such as control, causality and utility should be part of the accountability formula. However, greater uncertainty concerned the importance of geographical proximity and political influence.
Uncovering Corporate Complicity:-
Many charges against companies for violating human rights are based on companies’ complicity in the human rights violations of others. The mandate of the SRSG requires it to explain the implications of the concept of complicity in a business context. The aim of the session was to explore the legal and non-legal dimensions of this concept.
The discussion focused primarily on definitions of complicity in international criminal law. Used by international courts and national legal systems.The International Commission of Jurists (ICJ) has presented the preliminary results of an expert group founded in 2005 to clarify legal standards on companies’ complicity in human rights violations. The expert concluded that the Committee’s preliminary findings showed that three elements could or should qualify an act or omission as contributing: conduct that enables the violation if the violation could not have occurred without such contribution; this exacerbates the consequences of violating Law ; and/or facilitate counterfeiting. A silent bystander alone would almost never lead to a legal finding of complicity, although in a very limited number of situations where companies exercise significant influence over the perpetrator, such silence may be interpreted as an expression of consent and therefore constitutes assistance.
With regard to the knowledge required to establish complicity, the expert commission was of the opinion that it was not necessary for a company to have the intention to commit the crime in order to be classified as complicity. Rather, it simply needed to know that its conduct might contribute to a human rights violation – that outcome must be reasonably foreseeable, although it is unclear whether this is actual knowledge or whether the company “ought to know.”Participants expressed concerns that the demand for factual knowledge could lead to companies wanting to “know less” to avoid being perceived as complicit. The SRSG is currently examining the expert group’s draft report.
Navigating Standards Conflict:-
When attempting to fulfill their human rights responsibilities, multinational companies may find themselves in situations where international human rights standards conflict with local laws or local laws protecting human rights are not enforced. The session focused on approaches that companies should consider when dealing with such situations to ensure that they and others do not infringe rights.
Participants agreed that companies must take steps to ensure they do not violate rights. Reference was made to a recent document from the International Organization for
Employers, the International Chamber of Commerce and the OECD Trade and Industry Advisory Committee, which states that companies “have an obligation to respect the law even when it is not enforced and to comply with the relevant principles of international instruments when national laws do do.” Absent.
When a company is faced not with a lack of legal rules or their enforcement, but with a clear conflict between national and international rules, it has been suggested that the company formulate guiding principles that support human rights; Describe actions taken to address conflicting standards. Involve third parties to provide guarantees and assessments of its activities; and disseminate as much information as possible about the human rights situation.
Making Remarkable Remarks:-
The consultation focused on how companies can ensure respect for human rights. Further discussion and elaboration are required on some of the difficult conceptual and operational issues raised during the consultation. However, the core principle of the consultation that companies have a duty to respect human rights and the principle of due diligence as an overarching approach for companies to exercise their responsibilities to respect human rights were widely accepted. This is an important contribution to the work of the SRSG, which continues to develop a new framework for business and human rights discourse that follows the guidelines set out in the introduction: l The obligation of the state to guard against human rights violations by third parties, including companies; to protect ; the responsibility of companies in respecting human rights; and the need for more effective legal remedies to resolve corporate human rights disputes.
