CHAPTER 7 INCORPORATING HUMAN RIGHTS INTO BUSINESS DECISION MAKING
| Jurisdiction | United States |
(Feb 2016)
INCORPORATING HUMAN RIGHTS INTO BUSINESS DECISION MAKING
Principal
ASD Consulting LLC
San Francisco, CA
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ADRIEN SERGE DELÉCLUSE is a consultant providing support for direct foreign investments, country risk assessments, and socio-economic studies for the extractive sector. He has been a member of the mining community since 1997 when he became advisor for the African and Asian exploration activities for BHP World Minerals. An expert in providing surface risk assessments and impact studies for the natural resources sector, Mr. Delécluse regularly provides regulatory, political, and legal analysis and strategy advice in Government affairs, Contracts support, and CSR compliance. With a competency in drafting energy and Mining legislations and regulations for Common Law or Civil Law systems, he collaborates with leading consulting firms, the World Bank, and as advisor for the Center for Risk at the University of South Australia. As a recognized comparative lawyer who works across different legal systems, Mr. Delécluse pioneered the study and application of the very first laws allowing foreign investments in Vietnam, Laos, and Myanmar, and worked extensively in Southeast Asia regarding legal and Tax matters. Particularly knowledgeable regarding mining licensing and geopolitical issues in Sub-Sahara Africa, Mr. Delécluse is qualified to address mining exploration issues in West Africa. As risk analyst for BHP Copper and BHP Minerals Cape Town Office, Mr. Delécluse covered the region regarding mining regulations, government relations, and lease ("concessions") issues, particularly in the DRC and Great Lakes region. Mr. Delécluse is a lawyer and economist of French and US background. He holds a law degree from the Université de Paris II ("JD") and graduated from the Comparative Law Institute of Paris Université II. He also completed PhD studies (DEA) in Criminal Politics and Human Rights at Université Paris-Nanterre IX, and received his Master's in US Law from Boston University (LLM). He holds a Master's degree in Economics from the Université Parts-Dauphine (DES in Business Management in Developing Countries) and a Privatization and Business Management Degree from Harvard University.
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Human rights, often considered as part of the international and diplomatic language, become enforceable as law through integration of rules in the seams of domestic jurisdictions. Corporations of any sectors of the economy have relied on national legislations of the geographic operations to map the limits of responsibility. Providing that Human Rights is formulated in multiple sources creating an apparent sense of confusion, and that judicial enforcements apply to individuals; its analysis at a business level focus on the exposure to litigation.
Extractives Industries are at the forefront of cases involving complicity claims of companies in Human rights violations.1 This is not foreign to the reputation that the industry has gained over the years as either an unreliable partner in the implementation of human rights rules, or even as an actor who will profit from abuses. Complacent or vulnerable, mining and oil companies need to approach the claims through integration of the risks involved and multiple and grave issues attached to these claims.
As the bulk of the law, domestically and globally, is evolving from either Treaties and international norms, or soft law to hard law within specific jurisdictions; corporations cannot ignore the changing landscape. Changing the approach and modifying the risk analysis, from a dispute exposure to an inclusive policy and risk management, seems in order for the natural resources extractives industry to integrate the global society, instead of creating a "bubble of immunity".2
As the extractive industry companies are liable for human rights abuses, when lack of due diligence or complicit acts are identified; the strict legal risk analysis is insufficient to absorbed the complete dimension of the issue; and corporate social responsibilities standards compliances might not provide the ideal frame to seize a policy for decision makers. In order to broaden the analysis, legal analysis should include methods and tools used by insurers and academics.
I- Mining & Oil Companies and Human Rights Responsibilities.
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Corporate responsibilities in the 21st Century are global and a global response is expected when facing any issue, should it be internal management or external to the business itself but affected by it. Beyond any trend associated with globalization and deregulation initiated in the 1990's, responsibilities have increased along with expectation from the public to provide answers to any dysfunctional event. Focus is given when enormous harm or egregious behaviors is recorded.
Since the creation of the International Criminal Court (ICC) which stands to investigate human rights abuses and war crimes, the world possesses an authoritative forum and venue. As an institution born out of the terrible acts committed in the former Yugoslavia and in Rwanda, by integrating the jurisprudences of these two former special jurisdictions, a step forward was performed with a permanent Court. However, Corporations are excluded from prosecutions as only individuals would be carrying the liability and are supposed to be at the origin of criminal intent.
However, human rights law did not raise from the ICC, but it is a combination and an accumulation of important texts and agreements. From the United Nations Declaration on Human Rights of 1948, which stipulates the founding principles from which each subsequent international texts, until regional institutions (European Human Rights Convention), the legal universe has been modified. Given that none of the main principles stipulated by the UN at its inception were respected, a profound momentum was engaged. The legal revolution provided that in some case, State can be investigated and condemned by an individual if its claim shows a violation of its human rights.3 It is evidence that companies and judicial entities are working about a globalization of Law. The landscape has changed since the European market and European human rights bodies as transnational standards and corporate liabilities have also increased.
The UN Convention of 1979 clearly left apart corporations from being liable regarding political and economic responsibilities in criminal investigations. The African conflicts of the recent decades have modified this perspective, essentially following claims and investigations regarding supply of materials for armed groups and militias by mining companies.
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The status of "Corporation" didn't allow prosecution by the ICC. The Court can prosecute and condemn a seating Head of State, but as an "individual".
From the prosecutor's view, his/her jurisdiction and his/her behavior conforms with the law. But international human rights law consists of imperative international law such as international human...
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