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Business and Human Rights: Access to fairplay for those affected by business-related human rights violations is possible via SA’s Constitution.

21 April 2016

By Advocate Shafie Ameermia, SAHRC Commissioner responsible for Access to Justice and Housing
As recent as September 2015, the United Nations General Assembly adopted the Sustainable Development Goals (SDGs) where the leaders linked the concept of development with the notion that effective measures which ensure access to justice to all people and at all levels should be in place.
The South African Human Rights Commission (SAHRC) on Wednesday this week hosted a roundtable discussion on business and human rights under the theme of “access to justice: creating access to effective remedies for victims of business related human rights violations”.
This roundtable discussion is rendered timeous by the fact that it coincides with the time when the whole country is celebrating the 20th anniversary of the existence of the Constitution of the Republic of South Africa. Our Constitution has been lauded the world-over for its progressiveness. An empirical study of the constitutions of the world, found that the South African Constitution is among the leading influential benchmarks for modern constitution-making. One of the leading legal scholars Cass Sunstein has expressed that our Constitution is ‘the most admirable Constitution in the history of the world. This means that the Constitution is a potent weapon to deal with the threat of poverty, unemployment and inequality, which are besetting our nation.
The question we have to ask ourselves is why is the right to access to justice important, especially to the poor? The concept of access to justice has become a fundamental human right and been recognized as an essential guarantee of the rule of law. The importance of the right of access to justice is further reinforced by the fact that this right serves as a dual role. Firstly, it is a leveraging right which unlocks all the other rights in the Constitution. Secondly,  the right of access to justice serves as a protective shield for those who have hitherto not enjoyed this right from further deprivation and also serves as an enforcement mechanism for those whose rights have been violated.
At the international level, in 2011 following the groundbreaking work undertaken by Professor John Ruggie during his tenure as the United Nations’ Secretary-General’s Representative on Business and Human Rights where he developed the UN Guiding Principles on Business and Human Right (“the Ruggie Principles”), the United Nations Human Rights Council adopted Resolution 17/4. This resolution established a Working Group on the issue of human rights and transnational corporations and other business enterprises. The working group was amongst others, tasked with promoting the effective and comprehensive dissemination and implementation of the Ruggie Principles, and assist States with developing domestic legislation and policies relating to business and human rights in their jurisdictions.
In 2014, the United Nations Human Rights Council adopted Resolution 26/9 establishing an “open ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights” with the mandate to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. Resolution 26/9 stresses that the obligation and primary responsibility to promote and protect human rights and fundamental freedoms lies with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations. While the obligation of States to regulate business activities within their territorial jurisdiction is clear, on the other hand States’ obligations regarding corporate conduct acting abroad remain unclear.
The SAHRC as a National Human Rights Institution (NHRI) adopted the programmatic theme of business and human rights as its key strategic focus area in the 2014/15 financial year. Since then, the Commission has undertaken several capacity building programmes in an attempt to ensure that adequate legal frameworks in respect of human rights in business activities exist.
In March 2015, the Commission launched a Human Rights and Business Country Guide on South Africa to sensitise business to key human rights shortcomings in South Africa. The Human Rights and Business Country Guide canvasses challenges in the security and conflict area, which impacts on, inter alia, the right to life and labour protests that, at times, turn violent. The Country Guide makes reference to, and reflects on, many cases the Commission is involved with and further makes important recommendations to government and other stakeholders on issues including business, such as setting a minimum wage in sectors such as agriculture; improving monitoring of employment contracts; enforcing environmental obligations; and providing decent housing amongst others.
The significance of the role that NHRIs can play on business and human rights was noted by Professor John Ruggie when he commented that, “The actual and potential importance of these institutions cannot be overstated. Where NHRIs are able to address grievances involving companies, they can provide a means to hold business accountable…. NHRIs are particularly well – positioned to provide processes… that are culturally appropriate, accessible, and expeditious… [and] can provide information and advice on other avenues of recourse to those seeking remedy.”
The Commission notes and appreciate the instrumental work that the government of South Africa together with its international partners has played around the process of an international binding treaty on business and human rights at the United Nations. However, the South African government is urged to complement this role by following other States which have openly expressed support of the Ruggie Principles and have begun developing National Action Plans on Business and Human Rights. After all, the Report on behalf of the Inter-Governmental Working Group by the Chair Rapportuer, María Fernanda Espinosa Garcés, Permanent Representative of Ecuador, presented at the 31st regular session of the Human Rights Council noted that all States convened at the first meeting of the Inter-Governmental Working Group from 6 – 10 July 2015 agreed that the two processes are not mutually exclusive, but rather, they complement each other and the adoption of a legally binding treaty could help to protect the most vulnerable.
The Commission also commends those companies in South Africa, which are in various sectors, such as, mining, agriculture, finance and agriculture for showing support of the Ruggie Principles and for joining together in sectorial initiatives to address human rights issues. The Commission applauds the  Non-governmental organisations, local community groups and advocates across the country for the critical work they are doing on business and human rights.
The roundtable intervention held by the SAHRC this week sought to build on the findings in the Human Rights and Business Country Guide on South Africa and on the other capacity building and community engagement exercises focusing on business and human rights which the Commission has undertaken, which reveals that an asymmetry between rights and obligations of businesses exists.
In fact, a “Shadow” National Baseline Assessment of Current Implementation of Business and Human Rights Frameworks which was recently launched by the University of Pretoria’s Centre for Human Rights in collaboration with International Corporate accountability roundtable found that victims of corporate human rights abuse in South Africa face numerous barriers to access remedies. Examples of these barriers include difficulties in piercing the corporate veil, exorbitant legal costs with relatively little financial aid, which is exacerbated by the “loser pays” principle, as well the relatively unfriendly legal environment that is not very conducive to successful class-action lawsuits. Further, there is lack of sufficient and effective remedies for victims of business related human rights violations.
The roundtable had three broad objectives which were to share with stakeholders the process taking place at an international level in adopting an international binding legal framework to protect human rights abuse by business and to provide access to remedy for victims; to solicit input from stakeholders on the limitations of the binding treaty as it is currently being conceptualized, and to hold discussions around what an effective mechanism of this kind should look like; and to explore ways in which greater access to effective remedy for victims of business related human rights abuse can be cemented. These avenues relate to both the use of judicial and non –judicial mechanisms by the State and business in improving access to remedies for victims.
The SAHRC we will continue to create these platforms to enhance awareness and capacity on business and human rights, and building better public knowledge and awareness on the Ruggie Principles. Engagements such as these roundtables will be used by the SAHRC to contribute to the discourse on business and human rights.
At the SAHRC we believe these roundtable will present multiple stakeholder platforms where stakeholders will share experiences on how effective remedies on business and human rights-related challenges can be achieved. After all, human rights are not timeworn adages or hollow shibboleths, but they are living attainments which are inherent to every human being.
Adv. Ameermia is the SAHRC Commissioner responsible for the right to Housing and Access to Justice, and this is an edited version of his speech delivered at the Business and Human Rights Roundtable in Johannesburg this week.

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