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The notion of collective human rights and corporate social responsibility: iues and trends in
international law
Jide James-EluyodeSJD(Univ.of Arizona);LLM(John Marshall Law School-Chicago);LLB(Lagos St.U.);BL(NLS);IPLP Fellow, University of Arizona Rogers College of Law.The author is grateful toMary E.Gu, Staff Attorney at the Indigenous Peoples Law & Policy Program, University ofArizona Rogers College of Law, for reviewing early drafts of this article, and to Prof.JamesHopkins for his helpful comments.This article is a revised adaptation of the author’s papertitled “Corporate Social Responsibility and the Collective Human Rights Paradigm: CurrentDevelopments in International Law and Beyond,” which was presented at the JohnMarshall Law School Center for International Law’s CLE Lunch and
Learn Conference, held inChicago-Illinois on March 7, 2012.© 2013 Sweet & Maxwell and its Contributors
Subject: Human rights.Other Related Subject: Company law.International law
Keywords: Corporate social responsibility;Human rights;Indigenous peoples;International law;Multinational companies
Legislation cited: Declaration on the Rights of Indigenous Peoples 2007(United Nations)Convention 169 on Indigenous and Tribal Peoples 1989
Cases cited:
Maya Indigenous Community of the Toledo District v Belize Unreported 2004(IACHR)Case SU-039/97 Unreported February 3, 1997(Colombia)
*209 Introduction
Certain sets of recognised collective human rightsof “peoples” have newly emerged in the international arena and have created significantcomplexities.In view of this development,corporations need to re-evaluate the question of theirconduct and the nature of the responsibility they owe with respect to the human rights of groupsor communities as collective units.This is so because traditional human rights wereindividual-based, but as that focus is shifting so must the standards for evaluating corporateconduct within host communities.This article examines some of the challenges thatthe newly evolved international normative standards regarding collective human rights of peoples,otherwise called “indigenous peoples’ rights”, present for corporations.This article reviews thechanging expectation for corporate behaviour, and the implications on corporate operations, ofsome of the relevant international instruments and guiding frameworks on indigenous rights.Theseinclude the United Nations Declaration on Rights of Indigenous Peoples;ILO Convention 169;theWorld Bank Operational Policy on Indigenous Peoples;OECD Guidelines for MultinationalEnterprises;the Akwé: Kon Guidelines;and the UN Protect, Respect and Remedy Framework forBusine and Human Rights.This article finds that it has become imperativefor corporations to be familiar with the new set of human rights of peoples and that failure tobe proactive can be very costly.The article also counsels that owing to the unique nature ofindigenous human rights, any compliance model adopted by corporate entities ought to reflect thisunique quality, because simply adopting the generic human rights compliance model may prove to beineffective.Collective human rights—how so?
The concept of human rights has generallyreferred to composition of innate privileges which a person is entitled to enjoy simply becauseof his/her humanity.These rights are based on the principle that every person, irrespective of who he or sheis and where he or she is, is the subject of rights and is entitled to all civil, political,economic, social and cultural rights.The idea of human rights has been recognised globally as the fundamental requirement forupholding human dignity, freedom, peace and justice in all societies.Although the evolution of human rights can betraced as far back as medieval times, the modern conception of internationally affirmed human rights arose in the 20thcentury.Countries
banded together in the aftermath of brutal wars and atrocities to combatincreasing infraction on liberty, freedom, dignity and worth of the human person, resulting inthe establishment of the United Nations(“UN”)in 1945 and later, the adoption of the UniversalDeclaration of Human Rights(“UDHR”)by the UN General Aembly in 1948.Historically, human rights were believed to havebeen conceived as rights enjoyed by individuals only.As Thomas Aquinas puts it, natural law(which has been aerted as a foundational basisfor the evolution of human rights), confers certain immutable rights upon individuals.Others have justified their support for the notion of human rights adhering only toindividuals by suggesting that most traditional human rights instruments only admit individualsas the principal beneficiaries of*210 rights proclaimed by such instruments.They add that the abstract concept of collective human rights too often presents greatobstruction to the enjoyment by individuals of their human rights.However, many, including the UN, have counteredthis notion by aerting that an insistence that human rights can only be held as individualrights will be, for all practical purpose, at variance with the social realities of humansituations.They argued that conjoined rights, such as the rights of peoples or the rights ofcultural minorities, are valid constituents of human rights.Moreover, claims suggesting that most primary human rights instruments admit of onlyindividual beneficiaries may be, in fact, erroneous.This is because art.1 of the UN Charter of1945, as well as art.1 common to both the International Covenant on Civil and Political Rights(“ICCPR”)of 1966 and the International Covenant on Economic, Social and CulturalRights(“ICESCR”)of 1966 contain provisions which protect and respect the principle of equalrights and right to self-determination of peoples.Additionally, the Committee on the Elimination of Racial Discrimination(“CERD”), a UN treatymonitoring body, once declared that protection of the right of indigenous peoples, as acollective unit, to be free from discrimination, falls under the scope of the InternationalConvention on the Elimination of all forms of Racial Discrimination of 1965.The Committee concluded that the Convention will apply to any discriminatory actsperpetrated against peoples.In light of the above, the UN subsequentlyaffirmed that, owing to the peculiar circumstances of some demographics within society, thedisproportionate discrimination they suffered, and in line
with the fundamental human rightsprinciples of universality, equality and non-discrimination, the equal worth and dignity ofpeoples can only be best aured through the recognition and protection not only of theirindividual human rights but also of their collective rights as distinct groups.The socially responsible busine
The need for some form of socially consciousbehaviour on the part of businees is not a completely new idea;the question of what extent of social interaction and degree of social responsibilitythat private corporate entities owe their employees, customers and neighbours(the society atlarge), has been consistently debated since the early 20th century.Conceptual elements of what constitutes responsible corporate behaviour have alwaysevolved with times.Thus, over the years, corporate social responsibility(“CSR”)has mirrored different eras ofsocial awarene, progreively evolving from dealing with employment, labour, environmental,and human rights conscious concepts.There seems to be no singular and universallyapplicable definition of CSR.Neverthele, one may characterise the social responsibility of corporations as theircommitments to contribute to sustainable socio-economic development of the local community inwhich they operate, in ways that are both good for the bottom line of the busine and forsocietal development.The eence of CSR includes a corporation’s legal andsocial obligations to the societies in which it operates, coupled with how the corporationaccounts to the host community for those obligations.For instance, Archie Carroll has proposed that the key responsibility of a corporationis to generate profits for the shareholders, and to do so within the legal framework drawn bythe host government.Subsidiary to the economic and legal responsibilities is a corporation’s ethicalresponsibility to conduct its busine in accordance with acceptable standards and avoiddetriment to its stakeholders.At the*211 end is the corporation’s responsibility to adopt aphilanthropic(discretionary)strategy that can be beneficial to the busine and then tosociety.The aertion that profit is the principal basisof any busine enterprise, and that only profitable companies are capable of creatinggoods/services and ultimately adding value to the society, may still be valid.Notwithstanding, the condition of our modern society now suggests that long-termprofitability, as well as the sustainability of a corporation’s busine operations, cannotreasonably be detached from the quality of the social licence conferred by a host community atakeholder in the socio-economic structure.In other words, the pursuit of profit and respect for human rights of host communitiesor good corporate citizenship are not two mutually opposing objectives.As John Kamm stated :
“While it might not always be the case that trade and businees are good for humanrights, it most certainly is the case that a good human rights environment is always good forbusine.Businees are acting in their own self-interest when they actively promote respectfor human rights in countries where they operate.In the last decade, mechanisms of international human rights institutions havedevoted an increasing level of attention to the iue of social responsibilities of businees,especially in relation to the collective rights of inhabitants living within a host community.For instance, in 2001 the UN Commiion on Human Rights(now Human Rights Council)appointed aSpecial Rapporteur on the Situation of Human Rights and Fundamental Freedoms of IndigenousPeoples as part of its Special Procedures.The Special Rapporteur in discharging the mandate of the Human Rights Council hascommitted significant amounts of time to the iue of CSR and collective rights.In 2010, athematic report outlining the responsibility of corporations with respect to indigenous rightswas published.In 2011 a more specific report dealt with the corporate responsibility of busineesoperating in the extractive sector.Likewise, in 2005 the UN Secretary-Generalappointed a Special Representative on the Iue of Human Rights and Transnational Corporationsand other Busine Enterprises.The mandate of the Special Representative mainly concerns the identification andclarification of standards of corporate responsibility and accountability with regard to generalhuman rights standards.But owing to the currency of the iue, the Special Representativedevoted some time as well to expounding on the role of corporations in relation to the humanrights of indigenous peoples.
