CHAPTER 10 HUMAN RIGHTS AND EXTRACTIVE INDUSTRIES: APPLICABLE STANDARDS

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 10
HUMAN RIGHTS AND EXTRACTIVE INDUSTRIES: APPLICABLE STANDARDS
Siobhán McInerney-Lankford ^*
World Bank Senior Counsel
in Human Rights Issues Studies
Washington, DC

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SIOBHÁN MCINERNEY-LANKFORD is Senior Counsel at the World Bank Legal Vice Presidency and a recognized expert in international human rights law, advising the World Bank in this area since 2002. She currently serves as country lawyer for CAR, Comoros, Guinea, Mauritania, Mauritius, and Namibia. She regularly represents the World Bank in international human rights fora, including at the UN, EU, and OECD; from 2006-2008 she served as chair of the OECD DAC Human Rights Task Team. Dr. McInerney-Lankford has published widely on human rights law; she has taught at AU Washington College of Law, EPLO, the Venice Masters, and UN Summer Academy. She is co-chair of the ASIL Human Rights Interest Group, co-chair of the Human Rights and Development CoP under the GFUD, and LEG advisor to the World Bank Governance and HNP Global Practices. She holds an LL.B. from Trinity College, Dublin (First Class Honors), an LLM. from Harvard Law School, and a B.C.L. and D.Phil, in EU human rights law both from Oxford University. In 2010 and 2011, the Irish Voice newspaper named her among the Irish Legal 100. She is a member of the ABA and admitted to practice law in the state of Rhode Island.

I. Introduction

The legal and regulatory terrain governing human rights and extractive industries is a vast one with an expanding and varied set of potentially applicable standards. This article provides a review of the standards themselves rather than their specific operation or enforcement. Perhaps the most influential development in this realm has been the Human Rights Council's adoption of the 2011 Guiding Principles on Human Rights and Business (hereafter UNGP), the full ramifications of which have yet to be fully traced. This short article aims to provide a general overview of the sources of human rights standards which now include a large number of mandatory and voluntary standards whose interplay is fluid and relationship complementary but potentially overlapping. In addition to providing a review of the standards, this article puts forward two distinct, thought interrelated arguments: first that there are important distinctions to be maintained between different types of standards given the qualitative differences that pertain, and second that given the increasing regulation in the field of human rights, including that applicable to extractive industries, the imperative of international policy coherence is a crucial one, with growing relevance in this particular area.

In respect of the differences - while the term "standards" as used in this article includes both hard and soft law, a number of important qualitative distinctions and are worth recalling. The first among these is between hard and soft law, another is between obligations and responsibilities,¹ and between mandatory and voluntary standards another important distinction is between domestic and international norms, and within domestic norms, the distinction between host and home state (or state of incorporation) as well as between regulation of the public sector and the private sector. In terms of sources of standards and regulation, there are differences to be highlighted between state regulation, international treaty frameworks concluded between states, standards emanating from international organizations and those promulgated by voluntary initiatives or NGOs. A key point to address here is that different types of standards operate at different levels, in different ways often with similar or consistent objectives but fulfilling different and h hopefully complementary functions.

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The importance of recalling and retaining distinctions between binding and non-binding norms, notwithstanding the evolving and dynamic nature of their relationship is rooted not only in the need for intellectual clarity but also to the fact that a blurring of such a distinction does a disservice to human rights law and the aims of the human rights discourse. This is because the gains of binding human rights law are hard won and they bring a unique a powerful dimension of human rights law to bear. Calling something a right gives it power and makes people take it seriously. It is much easier (even if not legitimate) to discard a moral claim or a general entitlement, rather than a right underpinned by a legal obligation. Rights by definition, introduce of the concept of duty.² Rights imply correlative duties³ and legal rights rely on the correlative legal obligations. Rights give rights holders and duty-bearers agency.⁴ As jack Donnelly observed quoting Feinberg, "claiming a right" can "make things happen."⁵ Crucially, rights support accountability providing concrete baselines against which to assess processes and outcomes. To blur that distinction reduces the currency of human rights and human rights law and diminishes the latter's potential influence especially in context where it does not have traction or as much currency. Moreover, human rights obligations have not, at this stage, crystallized in all areas for all actors and acknowledging that, and it is important to acknowledge the fact that some actors may not themselves (yet) be duty bearers or directly subject to human rights obligations.

II. Justifications

There is a temptation, perhaps pronounced among lawyers, including international human rights lawyers, to go straight to a discussion of standards: to their content, their application, their limitations and the way forward in terms of their evolution and development. However, an overlooked and nevertheless important analysis is warranted with respect to the justifications underpinning these standards. By focusing on their justifications and their purpose, such an analysis can help us understand how the standards can and should operate, how effective they are and how they interact with one another. What is the rationale behind these standards? Some are instrumental, some normative, some a mix of the two. First, these standards are, in many instances, the law - whether international or domestic and as such the law should be complied with. By establishing rights and obligations, standards can help promote accountability - by this one can understand the concept of answerability. Human rights law offers the strength of international legal accountability through the obligations of States parties under human rights

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treaties.⁶ That accountability demands a number of interrelated elements: the justification of States' performance vis-à-vis others, the assessment, oversight or judgment of that performance against certain standards⁷ with the possible imposition of consequences⁸ if states fail to live up to those applicable standards through redress and remedies.⁹ Standards may be related to upholding a principle of do no harm: establishing a thresholds below which conduct and outcomes cannot drop - by this they establish an acceptable benchmark and mandate that a situation at least not be made worse by the actions or omissions of targeted actors. Standards can help manage and mitigate various types of risk - legal, financial, reputational and political. And standards may ultimately help improve investment processes and outcomes.

III. Standards

1. Hard Law

(i) Domestic norms

An obvious starting point for potentially applicable human rights norms in the area of extractive industries is domestic law. In analyzing the different types of domestic norms that potentially apply, there are two possible sources of domestic law worth mentioning: first host state law, which is the law applicable where extractive industry is operating - e.g. the country where a mine or LNG operation is located. Second, the home state of the corporation or investment entity may generate relevant applicable domestic norms for companies incorporated under its company's laws or corporate codes for incorporation. In this connection, under the heading of "Operational Principles", the UNGP state that:

"3. In meeting their duty to protect, States should: [a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps;(b) Ensure that other laws and policies governing the creation and ongoing operation of business enterprises, such as corporate law." These laws may operate to establish liability for corporations or for individuals; they may be generally applicable tort or civil law or may even arise from criminal law or codes. In terms of content, relevant domestic laws may include labor laws, social protection laws, anti-discrimination laws, environmental laws, property law, privacy laws, anti-bribery statutes, or tort laws such as the US Alien Tort Claims Act. Corporate or security laws and regulation may itself reflect human rights considerations: a 2015 French Bill is currently being debated by the French Parliament. If passed, it would require that companies

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incorporated in France with over 500 employees carry out human rights due diligence within the meaning of the Ruggie Principles. Furthermore, it would introduce sanctions and civil liability for those companies failing to take such actions. The UNGPs establish the responsibility business to undertake human rights due diligence in their entire supply chain, including subsidiaries, subcontractors and suppliers. The French law would apply to parent companies, to subsidiaries over which they hold "exclusive control", and to subcontractors and suppliers with whom they have an "established business relationship." Other relevant domestic legislation includes national reporting framework, directors' duties and potential liabilities and corporate crimes as...