Vulnerability and Business and Human Rights
Businesses enjoy a position of power over individuals and groups that are typically considered to be vulnerable, and often operate in situations that by their very nature render portions of the population vulnerable. On 24 June 2021, the Business and Human Rights Working Group of the Netherlands Network for Human Rights Research organized a panel on Vulnerability and Business and Human Rights as part of the Network’s annual conference. The panel brought together three experts from around the world dealing with three distinct yet complementary facets of the topic: (1) children; (2) non-judicial grievance mechanisms; and (3) armed conflict. The presentations, which are summarized in this blog post, shed light on key challenges concerning the definition, position, and protection of vulnerable populations in these contexts.
First, Dr. Gamze Erdem Türkelli (University of Antwerp) addressed the theme of ‘vulnerability’ from the perspective of children’s rights. She made three important points. First of all, she noted that, although we have now had the UN Guiding Principles on Business and Human Rights for a decade, some right-holders, including children, have been sidelined in the debates on policy and research. Secondly, she underlined that ‘vulnerability’ is not an inherent trait of right-holders, but rather a condition that exists in a specific time and place, and that in the case of children is made more likely by their lack of legal autonomy and decision-making rights under the law. Thirdly, while children are also resilient, resistant, and able to advocate for their own rights – as shown, for instance, by the recent climate protests – they tend to be treated as subjects to protect, rather than as agents to empower. In the business and human rights debate, this translates to a prevalent focus on those rights that need ‘protection’ (e.g., freedom from child labour), as opposed to those rights that necessitate ‘empowerment’, such as participation and decision-making. Thus, for instance, consultations with local communities concerning big construction projects tend to exclude children and child-headed households. Resettlements may be planned during school months, without considering the disruption of the children’s access to education. Environmental and social impact assessments tend to ignore the specific impacts of pollution and displacement on children, and remedies are often not child-friendly. While businesses and public authorities need, of course, to respect the principle of due deference to parents, children should be recognized as agents with a voice, and the older and more mature they get, the more decision-making power they should be entitled to.
Second, Dr Laura Íñigo Álvarez (Nova Centre on Business, Human Rights and the Environment) discussed non-judicial remedies for business and human rights abuses concerning indigenous groups. Laura focused on specific instance procedures at national contact points (NCPs) under the OECD Guidelines for Multinational Enterprises. She first explained how NCPs typically work before providing an overview of NCP cases concerning corporate abuse of the rights of indigenous groups. Significantly, the Guidelines are the only international instrument with a complaint mechanism for corporate behavior, and since a new chapter on human rights was included in the Guidelines in 2011, 51% of cases have concerned corporate human rights abuse. A number of these cases have involved indigenous groups, but with mixed – and often disappointing – outcomes. Some cases have failed on a first initial assessment by the NCP, and in others there has been no recognition of corporate infringement of human rights, although there has been recognition of the need for free, prior and informed consent of indigenous groups regarding certain actions of businesses. Agreements have been reached between the parties to several NCP cases, but full reparation has typically not been achieved. Elaborating on this, Laura provided three examples of cases from the Swedish, Spanish and Peruvian NCPs, respectively. In particular, the Peruvian case of the Quechua indigenous group v. Marriott International, in which the group in question claimed the NCP was discriminatory against them, demonstrated certain challenges to achieving indigenous peoples’ access to effective (non-judicial) remedies. The high burden of proof is a key challenge for indigenous groups, as is the power imbalance between parties and the lack of enforcement and compulsory follow-up. These must all be reassessed in order to ensure better protection of indigenous groups.
Third, Dr Jonathan Kolieb (RMIT) started his presentation by offering two reflections on vulnerability. Firstly, as researchers we should be cognisant of talking on behalf of vulnerable populations and making assumptions on their behalf, and it’s important to question those assumptions and be self-reflective about our approaches. Secondly, vulnerability exposes us as academics to scrutiny, to criticism and attack, as well as praise and plaudits. Jonathan encouraged those listening and particularly PhD candidates to make themselves vulnerable in their research and to push the envelope. Moving on to his substantive research, Jonathan noted that armed conflict is a vulnerable context in which many members of society become vulnerable to human rights abuse. Vulnerability goes hand in hand with conflict - breakdown of law and order, social services and society.
One salient example of how business and human rights intersect with conflict areas is conflict minerals, including tin, tantalum, tungsten and gold. These are found in devices such as the iPhone and finance and exacerbate a protracted conflict in the Democratic Republic of the Congo and surrounding countries. However, despite conflict being the subject of UNGP 7, there seems to be a lack of knowledge about the relevance of business and human rights to the conflict context by some multinational companies that have supply chains going through conflict zones. Jonathan shared his experience with businesses that did not have a good understanding of the differences between international humanitarian law and human rights. In order to address this, Jonathan worked with the Australian Red Cross to develop guidance for doing responsible business in armed conflict zones.
The lively discussion following the presentations highlighted the complementarity between the approaches of the three speakers as well as the multifaceted and somewhat elusive nature of ‘vulnerability’ as a concept in business and human rights. It is clear that the specific needs of vulnerable individuals and groups, including those temporarily placed in a state of vulnerability, need to be carefully assessed and addressed in order to ensure effective human rights protection.
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Lottie Lane (@lottielane_) is an Assistant Professor of Public International Law at the University of Groningen and member of the Rethinking Public Interests in Private Relationships focus theme of the Dutch Sectorplan. She is also Post-doctoral Researcher for the EU-funded FRICoRe project and co-chair of the Business and Human Rights Working Group of the Netherlands Network for Human Rights Research. Lottie is Senior Advisor on Artificial Intelligence and Human Rights at Slimmer AI and a member of the editorial board of Springer Nature Social Sciences. Her research focuses on the human rights responsibilities of businesses developing and using artificial intelligence.
Stephanie Triefus (@stephtriefus) is a PhD Candidate at Erasmus University Rotterdam and co-chair of the Business and Human Rights Working Group of the Netherlands Network for Human Rights Research. Her PhD research is on the human right to participate in public affairs and international investment law.
Chiara Macchi (@ChiaraMacchi7) is a Marie Sklodowska-Curie Researcher at Wageningen University & Research Law Group with a research project on Business and Human Rights in the policies of the European Union. She is an associate member of the Essex Business and Human Rights Project and a member of the European Law Institutes project Business and Human Rights: Access to Justice and Effective Remedies. She is co-chair of the Business and Human Rights working group of the Netherlands Network for Human Rights Research. She is an assistant editor of Transnational Environmental Law. She conducts consultancies for governments, NGOs, companies, trade unions and lawyers on business and human rights-related issues.