DWIGHT JUSTICE

Policy Advisor, International Trade Union Confederation, Brussels, Belgium

Résumé

Le cadre de référence des Nations unies « protéger, respecter et remédier » relatifs aux entreprises et aux droits humains ainsi que ses principes directeurs sont particulièrement pertinents pour la création, part le Comité des Droits de l’enfant, d’un Commentaire général concernant les droits de l’enfant et le monde des affaires qui éviterait le mélange de concepts distincts créés par la responsabilité sociale des entreprises (RSE). La RSE réunit la croissance durable des entreprises au développement durable, la philanthropie à la responsabilité. Les programmes basés sur la notion de « responsabilité partagée » deviennent en effet peu oné- reux et se révèle une alternative plus simple à la « réhabilitation », qui inclurait dans le cas d’un enfant travailleur une compensation par des entreprises spécifiques auprès de familles spécifiques. Il est rappelé que l’officialisation des relations de travail, l’application des lois concernant le travail et l’augmentation des revenus pour les familles sont une des conséquences des interventions syndicales.

Zusammenfassung

Der Referenzrahmen der Vereinten Nationen „schützen, achten und wiedergutmachen“ für die Unternehmen und in Bezug auf die Menschenrechte sowie seine Leitlinien sind besonders nützlich für die Schaffung eines allgemeinen Kommentars über die Kinderrechte und die Ges- chäftswelt durch das Komitee für Kinderrechte. Dadurch würde die Vermischung von verschie- denen Konzepten durch die unternehmerische Gesellschaftsverantwortung (CSR) vermieden. Die SCR verbindet nachhaltiges Wachstum der Unternehmen mit nachhaltiger Entwicklung, Philanthropie mit Verantwortung. Die auf den Begriff „geteilte Verantwortung“ aufgebauten Programme sind nicht teuer und sind eine einfachere Alternative zur „Wiedergutmachung“, die bei einem arbeitenden Kind eine Kompensation durch die betroffenen Unternehmen an die betroffene Familien vorsieht. Es wird daran erinnert, dass die Bekanntmachung der Arbeitsbe- ziehungen, die Anwendung der Gesetze betreffend Arbeit und die Erhöhung der Einkommen für die Familien die Folgen von gewerkschaftlichen Verfahren sind.

Resumen

El marco de referencia de las Naciones Unidas « proteger, respetar y remediar » relativo a las empresas y a los derechos humanos, así como sus principios directivos, son particularmente pertinentes para la creación parte del Comité Sobre los Derechos del Niño, de una Observación General relativa a los derechos del niño y el mundo de los negocios que evitaría la mezcla de conceptos específicos creados para la responsabilidad social de las empresas (RSE). La RSE reúne el crecimiento duradero de las empresas al desarrollo sostenible, la filantropía a la

responsabilidad. Los programas basados sobre la noción de « responsabilidad compartida » resultan en efecto poco costosos y se revelan una alternativa más simple a la « rehabilitación », que incluiría en el caso de un niño trabajador, una compensación de parte de las empresas específicas ante las familias específicas. Se recuerda que la oficialización de las relaciones laborales, la aplicación de las leyes relativas al trabajo y el aumento de las rentas para las familias, son una de las consecuencias de las intervenciones sindicales.

Summary

The UN “Protect, Respect and Remedy” Framework for Business and Human rights and its Guiding Principles is especially relevant for the development by the Committee on the Rights of the Child of a General Comment on Child Rights and the Business Sector that would avoid conflations of distinct concepts that Corporate Social Responsibility has created. CSR conflates the sustainability of the enterprise with sustainable development, and philanthropy with responsibility. Programmes based on the notions of “shared responsibility” become, in effect, a low cost and easier alternative to remediation which would in the case of child labour involve compensation by specific enterprises to specific families. It is recalled that the formalisation of work relationships, the application of labour laws, and the greater income for families are a consequence of trade union action.

Although I fully appreciate the range of child rights that is the subject of this meeting I intend to focus my remarks on child Labour. If there were more time I would explain why I believe child labour to be the most salient child right with respect to business behaviour.

The abuses of the industrial revolution that gave rise to the trade union movement included child labour. The elimination of child labour was among the earliest objectives of trade unions and this proceeded child labour laws. Indeed, trade unions played an important role in bringing about child labour laws and the elimination of child labour continues to receive high priority by trade unions in many countries and internationally.

There are two relationships worth noting at the outset – the relationship between trade unions and child labour and the relationship between trade unions and business behaviour. For a variety of reasons, stronger trade unions mean less child labour. These reasons include the formalisation of work relationships, the application of labour laws, and the greater income for families that are a consequence of trade union action. More broadly, trade unions and collective bargaining are the most important private means to increase the positive social impact and to reduce the negative social impact of business activities. There is, then, a relationship between trade unions and responsible business behaviour. Both of these relationships involving trade unions should inform public policy with respect to business behaviour and child rights.

Before I go any further I want to respond to some things that have been said during this meeting. Trade unions are representative organisations and for this reason we can be sensi- tive to claims over representatively. Article 12 of the Convention on the Rights of the Child establishes the right of the child to express his or her views freely in all matters affecting the child. This provision is important and necessary for many reasons including the recognition that humans must be permitted to defend themselves and to assert their interests. Moreover, the views of the child are often needed to ascertain the best interests of the child for example in judicial proceedings or in situations where the family is not functioning as it should.

Unfortunately organisations or interests seeking to shape public policy use interviews with children as a means of adding authority to their own views. For instance, interests who want to justify child labour do so by claiming that this is what the children concerned want. There is no possibility of representative structures for children that would be needed to give credible authority to organisations seeking to influence public policy based on the views of children. Indeed, the use of interviews with children for this purpose is neither legitimate nor credible and is not what Article 12 is about.

What I want to discuss is the UN “Protect, Respect and Remedy” Framework for Business and Human rights and its Guiding Principles. This framework is especially relevant today as this meeting is related to the development by the Committee on the Rights of the Child of a General Comment on Child Rights and the Business Sector. The General Comment concerns the state obligations under the treaty. The UN Framework clarifies the distinction between the state duty to protect and the business responsibility to respect human rights and this should be reflected in the General Comment.

My concern is that the UN Framework and the Guiding Principles are being mischarac- terised and are being retrofitted to existing Corporate Social Responsibility (CSR) initiatives without an appreciation of how profoundly the UN Framework and Guiding Principles chal- lenge the conventional wisdom of today’s notion of CSR. Just how profound this challenge is can be evidenced by the fact that the UN Framework and its Guiding Principles contributed to the EU decision to change its definition of CSR. The new EU definition is now more in line with how the word “responsibility” is widely understood. Responsibility is being accountable for the consequences of one’s actions. Social responsibility, then, is about being accountable to society for the impacts of your activities on society.

The conventional wisdom of CSR stresses the “business case” – often with some very weak arguments – such as “employee retention”. These arguments are not appropriate for human rights where the focus must be on the rights-holder and not on the company. The business case is not harmless. Basing public policy on something that is not true is a bad idea. In certain places, and for some activities, there is a business case for child labour and other human rights abuses. Reducing everything to a “bottom line” overlooks too much. It gives business people little credit for wanting to “do the right thing” or for recognizing that they have a broader stake in society. A really big problem with stressing the “business case” is that it sends a message that there is no need to respect human rights where the business case is not strong.

The CSR focus on what is good for the company is especially inappropriate with respect to human rights. Human Rights policy must focus on the adverse impacts of the business enterprise on others and on remedy for the victims of human rights abuse. CSR conflates the sustainability of the enterprise with sustainable development. While there will be convergence of interests between a business enterprise and the interest of society in sustainable development, the respective interests will not always be the same. In some areas there may be no conver- gence. It is important, therefore, to remember that these two “sustainibilities” are not the same. CSR has promoted other conflations of distinct concepts that are better kept separate. One conflation is between philanthropy and responsibility. The UN Framework and its Guiding Principles clarify the human rights responsibilities for all businesses in all situations. Philanth- ropy and charity are not considered responsibilities in this sense and indeed are considered outside of the scope of the framework. This does not mean that philanthropy is not important however but only that it should not be equated with responsibility.

Assuming responsibility for adverse impacts of a company’s activities on human rights on one hand, and making contributions to a broader societal good, in this case the eradication of child labour, on the other hand, are different. Sometimes organisations seeking to attract financial support for child labour programmes overlook the implications of the Guiding Prin- ciples for business behaviour. The stress placed on the complex nature of the problem of child labour and the need to address the “root causes” through “multi-stakeholder approaches” can blur both the state duty and the business responsibility. Sometimes Company support for these programmes is treated as a form of remedy or worse, as recognition of a “shared responsibility”.

There are no “carbon offsets” for adverse impacts on human rights. Remedy, to be remedy, must be based on a link between the business enterprise whose activity created the adverse impact and the victim. Moreover, where compensation is due it must be commensurate with the damage done to be considered remedy Programmes based on the notions of “shared res- ponsibility” become, in effect, a low cost and easier alternative to remediation which would in the case of child labour involve compensation by specific enterprises to specific families.

The UN Framework and its Guiding Principles distinguish the state duty from the business responsibility and go on to clarify what creates the responsibility of any enterprise in any situation. Although there are “shared values” (hopefully increasing with the growing interest in human rights), it is at least a misunderstanding to promote the idea that there are “shared responsibilities”. The UN Framework is clear that the failure of governments to protect human rights does not get business enterprises off the hook. Nor does the behaviour of other business enterprises change the responsibility of a business enterprise for the adverse human rights impacts of its activities.

Due diligence does not play much of a role in these philanthropic multi-stakeholder pro- grammes. Little is said about what would constitute genuine due diligence with respect to child labour. Due diligence is more than just “doing no harm”. The concept of due diligence set forth in the Guiding Principles requires positive on-going action by the business enterprise to identify, prevent, mitigate and address adverse human rights impacts. The key word in due diligence is “due”. Due diligence with respect to child labour would have to be commensurate with the risk of the human rights abuse that is child labour.

It is regrettable that there is no time to deal with the controversial issues surrounding the auditing/ certification of labour practices. Although the current practices involving private workplace inspection are losing credibility, it is difficult to see how due diligence for abusive labour practices in the supply chain can avoid efforts to understand what is actually going on.

I have mentioned two of the three ways that business enterprises meet their human rights responsibilities set out in by Principle No. 15 of Guiding Principles – a due diligence process and through remediation of any adverse impacts they cause or to which they contribute. The first way is by making a policy commitment to meet their responsibility to respect human rights. Even here there is reason for concern with respect to child labour.

A Policy commitment should not be used to redefine responsibility, although some do. With respect to child labour there are two common ways in which public company policy commitments redefine responsibilities so that they seem less than they really are.

One way is for the policy commitment to limit responsibility to the “worst forms of child labour”. ILO Convention No. 182 on the worst forms of child labour addresses the priorities of governments and was never intended and does not alter the responsibilities for the negative impacts on human rights caused by the activities of business enterprises.

Another way that policy commitments redefine the responsibility of business enterprises with respect to such issues as child labour is through limits based on business relationships.

This usually involves defining responsibility in relation to the “first tier” of the supply chain. The idea behind this is that there must be a relationship between the leverage of a business enterprises and its responsibility. The Guiding Principles are clear that leverage is not a deter- minant of responsibility although it can be a factor in determining how responsibility could be addressed.

Business enterprises should “shed no tiers” with respect to their responsibility. A “tier” is an easily manipulated relationship. Instead enterprises should review their business relationships. If leverage is insufficient to address their adverse human rights impacts, then it may be that due diligence was inadequate. It may be that the business enterprise should shorten its supply chain – that is to reduce the number of tiers.

The abuse of child labour mainly takes place in informal economic activity. Due diligence for child labour should involve, among other things, taking measures to ensure that business activities take place within the appropriate legal framework. Not all business relationships will be conducive to the respect of human rights. That fact creates a responsibility.