CHAPTER 2 INTERNATIONAL HUMAN RIGHTS: LEGAL, POLITICAL, AND POLICY FRAMEWORKS APPLICABLE TO THE EXTRACTIVE INDUSTRIES

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 2
INTERNATIONAL HUMAN RIGHTS: LEGAL, POLITICAL, AND POLICY FRAMEWORKS APPLICABLE TO THE EXTRACTIVE INDUSTRIES
Erika George
Professor
S.J. Quinney College of Law
University of Utah
Salt Lake City, UT

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ERIKA GEORGE is Professor of Law and Co-Director Center for Global Justice at the S.J. Quinney College of Law at the University of Utah. Prior to joining the College of Law, Professor George served as a fellow and later consultant to Human Rights Watch. In connection with her work with Human Rights Watch, Professor George conducted investigations in South Africa on women's rights, children's rights, violence, the right to education, and abuses related to the HIV/AIDS epidemic. She wrote a book-length report, Scared at School: Sexual Violence Against Girls in South African Schools, which received widespread media coverage in South Africa and internationally. She currently serves as special counsel to the Women's Rights Division of Human Rights Watch. Professor George's research interests include globalization and the indivisible, interdependent, and interrelated nature of civil liberties and socioeconomic rights; cultural pluralism and rights universalism; gender violence and gender equality; justice and peace promotion in post-conflict societies; environmental justice; and the use of documentary film in human rights advocacy and education. Her current research explores the responsibility of transnational corporations to respect international human rights and various efforts to hold business enterprises accountable for alleged abuses. Professor George earned a B.A. with honors from the University of Chicago and a J.D. from Harvard Law School, where she served as Articles Editor of the Harvard Civil Rights-Civil Liberties Law Review. She also holds an M.A. in International Relations from the University of Chicago.

Abstract:

This overview of international human rights law will describe the legal foundation for the protection of human rights. The relevant documents and international organizations, including the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Labor Organization's Declaration on Fundamental Principles and Rights at Work; the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); and the UN Guiding Principles on Business and Human Rights. Their applicability to business organizations will be placed into context to provide the basis for understanding the duties of business enterprises regarding human rights. The paper also will address the considerations relative to adapting the UNGPs into a binding international treaty.

I. International Human Rights Law: Influences, Instruments and Institutions

II. The Relevance of Human Rights to Responsible Business Conduct

III. An International Accord on Corporate Accountability: Interests and Issues

Introduction

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Accusations of aiding in rights abuses, including murders, have been leveled against Newmont mining in Peru after efforts to expand mining operations were met with resistance from local residents.¹ Chevron has confronted allegations of complicity in conduct violating human rights including murder, rape, and corruption in Burma associated with efforts to protect a pipeline.² Several years after being accused of complicity in the execution of an environmental activist in Nigeria, allegations of conduct inconsistent with respect for human rights still continue to plague Shell with local residents claiming they can no longer fish or farm.³ Other corporations in the extractives industries are facing similar allegations in other countries.

It is against this background that this paper aims to provide a foundation for understanding the existing and emerging obligations of business enterprises in the extractives sector with respect to human rights. Part I presents an overview of the international human rights legal regime explaining origins of the principal instruments and institutions created to protect and promote human rights. Part II provides a review of relevant instruments and institutions placed in the context of challenges confronted by the extractive industries in particular. Finally, Part III provides a review of issues raised in debates over a new binding international treaty to regulate the human rights conduct of transnational corporations that are of particular relevance to the extractive industries.

I. International Human Rights Law: Influences, Instruments and Institutions

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The atrocities of World War II motivated the creation of our contemporary system of international human rights law.⁴ In the Post-War period the international community established institutions to prevent threats to peace and executed instruments to promote social and economic progress. The universally agreed system of collective peace and security contained a central commitment to the protection of human dignity and the promotion of freedom.⁵ The international community aimed to create conditions under which justice and respect for international law would be sustained through establishing the United Nations in 1945.⁶

The United Nations Charter called for the creation of a "commission for the promotion of human rights."⁷ The Commission on Human Rights was tasked with preparing a new "International Bill of Rights" to include: "a declaration, a convention or covenant and measures of implementation."⁸ The General Assembly of the United Nations unanimously adopted the Universal Declaration of Human Rights on December 10, 1948, a day now celebrated as International Human Rights Day and used to commemorate human rights defenders.

By endorsing the Universal Declaration of Human Rights ("UDHR"), the international community made clear that: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."⁹ The UDHR was intended to provide a "common understanding" of the rights and freedoms that member states of the United Nations pledged to protect. The Declaration is the international community's

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proclamation of "a common standard of achievement for all peoples and all nations."¹⁰ The UDHR is universal in the sense that it speaks to the entitlement and obligations of everyone, everywhere. For example, it provides that: "every individual and every organ of society" should promote respect for and effective recognition of the rights contained within it through "teaching and education" and other "progressive measures, national and international."¹¹

Human rights are essentially those freedoms and entitlements essential to enjoying a life of dignity that we are due by virtue of our humanity, without regard to our national or ethnic origin, residence, gender, color, race, religion or language. Human rights are now enumerated and guaranteed in treaties, custom, general principles, and other sources of international law.¹² Prior to being explicitly enumerated in international human rights instruments and legal principles, the concept of human rights found support in moral, ethical and religious precepts promoting concern for others.¹³ For example, the teachings of the world's major faith traditions emphasize charity and compassion.¹⁴ Moral philosophy instructs that individuals are born free in a state of equality endowed with rights that are inalienable.¹⁵

A. International Human Rights Instruments

The UDHR contains a range of civil and political rights and socioeconomic and cultural rights. Certain rights that the UDHR provides for are understood to be "positive" in that these rights may require some form of government intervention in order to be realized. For example, the right to education may require governments to provide a system of public education accessible to all without discrimination. Other rights in the UDHR are "negative" in that these rights require governments to refrain from

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interference in order to be respected. For example, freedom from torture requires that governments refrain from engaging in torture. Similarly, enjoyment of the right to freedom of expression depends on governments refraining from engaging in censorship and silencing dissent.

As most resolutions of the General Assembly, the UDHR was not understood to be legally binding and enforceable at the time it was adopted.¹⁶ Unlike many other General Assembly Resolutions, the UDHR is consistently used as a standard of conduct against which to assess commitment to human rights and compliance with obligations to protect respect and fulfill rights.¹⁷ The UDHR continues to inform decisions made by the United Nations and international agencies.¹⁸ Numerous legally binding international instruments have subsequently entered into force and have codified the substantive rights contained in the UDHR.¹⁹ The domestic law of many nations, including national constitutions, legislation, and judicial decisions reflect the influence of the UDHR.²⁰ A growing number of scholars maintain that the standards set forth in the UDHR are part of customary international law.²¹

Chief among the many legally binding international instruments that have codified the substantive rights contained in the UDHR are the International Covenant on Civil and Political Rights ("ICCPR") and the International Covenant on Economic Social and Cultural Rights ("ICESCR"). The International Bill of Human Rights consists of the

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UDHR, together with the ICCPR and the ICESCR. As a practical matter, the ICCPR has been treated as taking precedence over the ICESCR.²² Civil and political rights have been referred to as "first generation" rights while socioeconomic and cultural Rights are sometimes called "second generation" rights.²³ As a matter of...