In this fast-growing world that is seeing development in almost area of our life, be it politics, technology or trade etc., we are giving competitions to our old self by excelling in the respective arena of today’s growing world, when we talk about development, one of the important that comes to our mind is the freedom of carrying out a certain task, without having questioned for the same. When we talk about freedom, we know that the basic of freedom and liberty lies in the basic human rights. In this article Human rights in the realm of business will be discussed by considering the guidelines specified by the United Nations.
Introduction – Human Rights In The Realm Of Business
“Freedom means supremacy of human rights everywhere”
Human rights are the basic rights that are allow people to live with dignity, it is the basic right that is given to any person for the only requirement that they are humans. Human rights are those rights that are guaranteed without distinction of any kind such as race, religion, Social origin, property, birth, or other status.
Human rights are guaranteed internationally by certain treaties and declarations that guarantee the Human rights. They are guaranteed on the basis that a person is human. Human rights fulfil the minimum requirement to live, Human rights demands for Food, shelter and clothing, education so that they can take full advantage of all the opportunities that come in their way.
These certain rights guarantee a being to live with dignity, without having to look for help or assistance from anywhere, they seek the same from the state. Human rights basically protect a being from getting abused from those who are privileged and fortunate enough.
The existence of Human rights is important in every field of our lives, so as in the realm of business, Trade and business in the 21st century is the soul of the international relations and fulfilling the need of each other, We live in a world where we tend to acquire as much as space and say in the outer countries of even within the countries to make possible for the world to exist. Businesses provide goods, services, and jobs. Without these things, nations’ economies would be much smaller and weaker than they are. Not only that, Domestic business are also important for us so that we can fulfil our daily needs.
Business not only helps in improving the economic condition of a country but there are other major factors also that make the business so essential for our well-being at large such as:
- Utilization of the natural resources
- Improvement of quality life
- Fulfilment of Human wants
- Employment generation
- Increase in government revenue
- Fostering international relations
As important as business for our society and the world at large, its also important to talk about the environment of the business and more importantly the prevalence of Human rights in the realm of business.
The question remains that do we have to address the elephant in the room, we are aware about the business ethics and how little of space we give to the Human rights. The acknowledgement of Human rights in the business space is almost negligible,
In this environment, it is increasingly important for business to maintain its commitments to respect human rights, and its important to note that state plays an extensive role in margining the Human rights in one’s country. State mark out the rules and regulation for the carrying out of business and it also plays an important role while dealing with the relations that are internationally connected to the business. State not only has the obligation to make sure that the business has been carried out in a certain way as prescribed in the rule book but also the fact that the business is run keeping in mind the basic ethics and Human rights.
There is commission that deals with the question of regulating a business in consonance to the Human rights, according to the Human rights United Nation Human rights commission, the emphasis is given on the importance of having the state fulfil the need for the requirement of Human rights.
States Duty To Protect Human Rights
The first Foundational principle states that “Business States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”.
The international Human rights law basically puts an obligation on the state that they protect, respect, and fulfil the human rights of individuals in their territory or jurisdiction. It also requires the state to protect against human rights abuse by third parties, including business enterprises. However, its important to note that the state is not per se responsible for the human rights abuse by the private actors.
The second Foundational principle states that States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations. According to this foundational principle some of the Human rights bodies require state to regulate the business under the ambit of Human rights especially those by which the state is getting benefitted from.
States have also contributed to this foundational principle by assigning requirements on “parent” companies to report on the global operations of the entire enterprise; multilateral soft-law instruments such as the Guidelines for Multinational Enterprises of the Organisation for Economic Co-operation and Development.
However, it is important to note that States are not generally required under international human rights law to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.
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, do not constrain but enable business respect for human rights.
(c) Provide effective guidance to business enterprises on how to respect human rights throughout their operations.
(d) Encourage, and where appropriate require, business enterprises to communicate how they address their human rights impacts.
The failure to enforce existing laws that directly or indirectly regulate business respect for human rights is often a significant legal gap in State practice. Such laws might range from non-discrimination and labour laws to environmental, property, privacy, and anti-bribery laws. Therefore, it is important for States to consider whether such laws are currently being enforced effectively, and if not, why this is the case and what measures may reasonably correct the situation.
It is equally important for States to review whether these laws provide the necessary coverage in light of evolving circumstances and whether, together with relevant policies, they provide an environment conducive to business respect for human rights. For example, greater clarity in some areas of law and policy, such as those governing access to land, including entitlements in relation to ownership or use of land, is often necessary to protect both rights-holders and business enterprises.
Another important aspect that deals with the Ensuring Policy coherence that deals with State ensuring the governmental departments, agencies and other State-based institutions that shape business practices are aware of and observe the State’s human rights obligations when fulfilling their respective mandates, including by providing them with relevant information, training and support.
The guidelines deal with other aspects such as Human rights with due diligence by assuring that the process should include assessing actual and potential human rights impacts, integrating, and acting upon the findings, tracking responses, and communicating how impacts are addressed.
So, as discussed above there are many provisions as to how a specific business should be dealt in consonance of the Human rights, but there arises a question as to the applicability of these principles and formulation in the actual field of business. In many countries business is given importance to the extent that State puts a lot of efforts to make sure that the business is being regulated within the purview of the Human rights but there is still in consistency when we look at the country like India,
The first pillar of the Principles’ “Protect, Respect & Remedy” framework recalls states’ duty to protect against human rights abuses by third parties, including business. India must bring in effective policies, legislation, and regulations to prevent and protect the rights of communities that may be affected by development projects. In December 2018, the Indian government initiated the process of developing a Business and Human Rights National Action Plan (NAP) by releasing a zero draft – with a commitment to publish the final NAP in 2020. The Indian Ministry of Corporate Affairs led the process of drafting the NAP in consultation with other Central and State ministries. The zero draft is primarily a listing of relevant existing legislations and policies categorized under the three pillars outlined in the UN Guiding Principles for Business and Human Rights (UNGPs): protect, respect, and remedy. It does not present an analysis of the status or existing gaps in these legislations and policies. The most important part of the zero draft is its statement of commitment and an indication of the future course of action.
The NAP is a policy document by which a government articulates its action to fulfil its commitment to implementing the UNGPs. The vision of India’s NAP stems from the Gandhian principle of trusteeship that defines that the purpose of business is to serve all stakeholders.
In February 2020, the NAP process moved to phase two of ‘assessment and consultations. The Ministry of Corporate Affairs invited public comments and inputs to “inform the NAP development process”. An important part of phase two of the NAP development process is a ‘national baseline assessment’ that appears to be a glaring gap at this stage. Without an extensive baseline the NAP may fail to anticipate and address key implementation challenges.
In order to be more effective, NAP need to segregate its attention must put the rights-holder at the centre. Intersectionality has an important role in determining the effectiveness of the NAP for the most marginalised and most vulnerable groups such as Dalits (the economically and socially disadvantaged group at the bottom of India’s inequitable caste system), Adivasis (indigenous groups), women, children and informal sector workers.
A critical issue that the NAP must address is the dispossession of communities from their right to access and control over land, water, and other natural resources necessary for their lives and livelihoods. Over 6.8 million people in India are affected by over 700 land conflicts. Another critical issue for the NAP to address is the lack of decent jobs. India faces an issue of extreme informalisation, low-skilled and low paying jobs, gender wage gap, prevalence of child labour, and forced/ bonded labour. Social protection, occupational health and safety, unionisation and collective bargaining remain a challenge in general but particularly for informal workers.
Some legislations such as the Labour Codes, Child Labour law, Maternity Benefit law, Land Acquisition Act, Recognition of Forest Rights Act could pose a conflict with the implementation of the NAP. For instance, the Child Labour (Prohibition and Regulation) Amendment Act, 2016 allows children to work in family enterprises after school hours raising concerns of increasing invisible forms of child labour. Trade unions in India have opposed the recent labour law reforms claiming these to be ‘anti-worker’ as it makes it easier for businesses to ‘hire-and-fire’ workers while making collective bargaining more difficult for workers. State governments circumvent the process of acquiring land through the land acquisition laws by following a strategy of creating ‘land banks’ giving rise to land conflicts. A review of the status of existing laws, in consultation with affected communities and rights-holders, is therefore a crucial first step to identify gaps in legislations and implementation. The NAP must set clear goals and define accountability up to local levels.
The success of India’s NAP rests on the ability of the MSME sector to adopt it. The government as well as large companies have a crucial role in building the capacity of the MSME sector through training, awareness and providing incentives.
Hence the MSME needs more attention as they also comprise of a large population of the country. Its important to note that there are certain laws that govern the working sector, such as Labour Codes, Child Labour law, Maternity Benefit law, Land Acquisition Act, Recognition of Forest Rights Act could pose a conflict with the implementation of the NAP. For instance, the Child Labour (Prohibition and Regulation) Amendment Act, 2016 allows children to work in family enterprises after school hours raising concerns of increasing invisible forms of child labour. Trade unions in India have opposed the recent labour law reforms claiming these to be ‘anti-worker’ as it makes it easier for businesses to ‘hire-and-fire’ workers while making collective bargaining more difficult for workers.
Hence, review of the status of existing laws, in consultation with affected communities and rights-holders, is therefore a crucial first step to identify gaps in legislations and implementation. The NAP must set clear goals and define accountability up to local levels.
It can be thereby said that NAP can be proved as successful plan when the small industries are given more importance to micro, small, and medium (MSME) enterprises.
Human rights hold a very important space in the realm of business, Human rights are the rights of not only an individual but also any entity that consist revolves and concerns the Human activity, especially the economic sector. Hence, it should be the duty of state to make sure that the Human rights guidelines specified for the ease of doing business is being fulfilled, state should make sure that the laws are formulated in consonance to that of the Human rights postulates. Especially when it comes to the smaller sector, the already marginalised section of the society is needed to be looked through and its important to have separate and wider laws for them.
(I)Why Is It Important To Have Human Rights In The Realm Of Business?
Ans: Human rights are the basic rights that are allow people to live with dignity, Business plays an important role in the economic as well as social realm of a being, hence Human rights are essential in the realm of business.
(II)What Is The Commission Of United Nations That Guarantees The Human Rights In The Realm Of Business?
Ans: Commission that deals with the question of regulating a business in consonance to the Human rights, is the Human rights United Nation Human rights commission.
(III) What Is Human Rights Risk?
Ans: A business enterprise’s human rights risks are any risks that its operations may lead to one or more adverse human rights.
(IV) What Is The Forum On Business And Human Rights?
Ans: The Forum on Business and Human Rights was established in 2011 by Human Rights Council resolution 17/4. The Forum’s mandate includes discussing trends and challenges in the implementation of the Guiding Principles, promoting dialogue and cooperation, exploring challenges faced in particular sectors or operational environments or in relation to particular groups, and identifying good practices.
(V) What Is National Action Plan (NAP)?
Ans: The NAP is a policy document by which a government articulates its action to fulfil its commitment to implementing the UNGPs.