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EXCLUSIVE: Business and Human Rights: Walking the Tightrope


The UN Guiding Principle-I (UNGP-I) clearly states that, “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”.

By Salam Rajesh

A United Nations related publication summarizing the complex setting between businesses and human rights across continents fairly comes up with the conclusive reflection that in many countries of the Global South, ‘transnational corporations wield more economic and even political power than the governments of the respective host states’.

This hard hitting statement is part of the summarization of the report titled as “The UN Guiding Principles on Business & Human Rights and Indigenous Peoples – Progress achieved, the implementation gap and challenges for the next Decade” brought out by the International Work Group for Indigenous Affairs (IWGIA) and the Indigenous Peoples Rights International (IPRI) (June 2021).

The core argument put forward in the publication is that for decades, ‘indigenous peoples have been victimized by (big time and powerful) corporations, often exploiting natural resources within their (indigenous peoples) territories without their consent, colluding with host governments in instigating violence against indigenous communities, destroying their natural basis of life and fostering corruption and authoritarianism’.

The UN Guiding Principle-I (UNGP-I) clearly states that, “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”.

The report basically refers to a form of human rights violation other than those committed to people by security forces and other state agencies as is common in insurgency infested areas and in other conflict zones particularly. Human rights violation is also galore in cases of conflicts of interest between State and IPLCs (Indigenous peoples and local communities) in terms of extractive industries bulldozing into indigenous territories despite the objections of the local people.

The term ‘business’ as in the report refers to businesses of all types that are extractive, industrial in nature, expansionist and more in line with neo-globalization. Businesses such as hydroelectric power projects, mineral extraction, oil exploration and production, large scale commercial plantations and cattle rearing, structural expansions, and so forth are often embroiled in cases of under-reported and suppressed human rights violations committed upon indigenous peoples and other marginalized sections of people.

To quote few instances of abstract human rights violation, reference can be made on the extrajudicial killings, rape and murder of indigenous peoples in Indonesia and Malaysia resisting the expansion of oil palm plantation which is directly relevant to extensive deforestation of important tropical rainforests that support life and livelihoods of millions of the indigenous people. This is equally evident in rainforest areas of Peru, Ecuador, Brazil and Colombia where extensive human rights violation are committed upon the indigenous people by mining companies, illegal timber merchants, wildlife smugglers, and even oil palm companies.

The context and extent of the human rights violation assumes significance when such acts are perpetrated by companies that are supported by the State and backed by state-run armed forces including local police and the military, and sometimes by State sponsored militia. Other than this, human rights violation in workplaces is also another facet that is widely under-reported. Underpaid wages, sexual harassments, deprivation of basic health care and sanitary facilities in workplaces, discrimination based on caste, deprivation of hygienic working spaces, deprivation of promotion opportunities and better working conditions – all these are there in the extended list.

The United Nations Working Group on the issue of human rights and transnational corporations and other business enterprises instructed signatory states to produce National Action Plans (NAPs) on Business and Human Rights. Referring to its 2014 report to the Human Rights Council, the Working Group stated that, “…national action plans can be an important means to accelerate implementation of the Guiding Principles. The fundamental purpose of a national action plan is to prevent and strengthen protection against human rights abuses by business enterprises”.

In India, too, there has had been a long process of nationwide deliberations on the conceptualization of the country’s National Action Plan with due emphasis on the reported and the under-reported cases of human rights violation in reference to businesses. Public consultations in different parts of the country came up with the conclusion that there are numerous examples of under-reported human rights violation with reference to businesses. Underpaid wages, discrimination in workplaces and health concerns stood out glaringly in many instances faced by workers employed in factories and industrial complexes.

A particularly striking feature in the IWGIA report points out that, ‘… since the adoption of the Guiding Principles, their states had failed to enact significant new measures that would bring their legislation into line with the recommendations of the Working Group’s 2013 report, such as affording due recognition to the role of the customary laws, traditions and practices of indigenous peoples, ratifying ILO Convention 169 or enshrining the principle of Free, Prior and Informed Consent’.

The contentious issue on disregard of the principle of Free, Prior and Informed Consent (FPIC) by States and major project proponents when conceptualizing or implementing large scale developmental projects that impacts IPLCs in a big way, has been at the core of disputes between States and IPLCs at various levels.

The Environmental Investigation Agency which looks into such cases of disputes in its report of 2015 stated that most agencies had insufficient provisions to prevent conflicts of interest, weak requirements for FPIC verification, while auditors had poor knowledge and failed to identify indigenous peoples’ land claims, and there was a serious lack of transparency with regard to certification bodies.

In 2018, the Agency released new and improved Principles and Criteria which targeted in providing better protection for the rights of IPLCs with particular reference to the FPIC. The Agency did report several recent cases in which companies developed large (oil palm) plantations without submitting the required New Plantation Procedure (NPP) notices.

The assessment is that the complaints system continues to lack safeguards against conflicts of interest and is unable to detect violations before considerable harm has occurred, and takes too long to process complaints and lacks transparency. FPIC norms has been largely violated in the case of major developmental projects in North East India where IPLCs have locked in continued protests against States and implementing agencies like the National Hydroelectric Power Corporation Limited and the Oil India for example.

The proceeding of the deliberations on the National Action Plan on Business and Human Rights for India, which was held in different cities of the country during 2018, submitted its report to the National Human Rights Commission for onward submission to the Government of India and thence for expediting the implementation of the NAP. Some time have passed since the country’s NAP was submitted to the Government but nothing much has come out of it till date.

(The writer is a media professional working on environmental issues. He can be contacted at [email protected])

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