How Can Businesses Impact Human Rights?

A significant impact that a business can have on human rights is in its treatment of workers.

• This may involve poor working conditions, low wages, low levels of health and safety protections, and discrimination.
• In extreme cases, working conditions may involve forced labour or other forms of modern slavery.
• Often a mix of poor wages, dangerous working conditions and coercion co-exist.

(a) What Are Your Rights in the Workplace?

The ILO has designated four fundamental rights at work (see Article 2 of the ILO Declaration of Fundamental Principles and Rights at Work 1998):

1. Freedom of association and the effective recognition of the right to collective bargaining

Workers have the right to create and join organisations without authorisation and without interference. Trade unions promote and protect workers’ interests.

These organisations can negotiate on behalf of workers with their employer to secure better working conditions. This is called “collective bargaining”.

2. The elimination of all forms of forced or compulsory labour

Forced or compulsory labour is where a person is forced to work under threat of some form of punishment.

3. The effective abolition of child labour

Although some forms of work for children (a person under 18 years) are legal, governments should set a legal minimum working age, usually when compulsory schooling is complete.

Work that is dangerous or harmful to children (called the “worst forms of child labour”) must be prohibited and abolished.

4. The elimination of discrimination in respect of employment and occupation
Discrimination is where people are treated unfairly and differently from other persons because of their gender, race, sexual orientation, age or any other characteristic.

Discrimination can occur at any stage of a person’s employment:

• E.g. When an employer decides who to employ or how much to pay workers.

Discrimination can be direct (e.g. a policy expressly denies equal opportunities on the basis of sex, race, etc.) or indirect (e.g. where a policy appears neutral but results in a denial of equal opportunities).

These four rights are complemented by key rights outlined in Article 7 of the International Covenant on Economic, Social and Cultural Rights, which include:

1. Fair wages to live a decent living and equal remuneration for work of equal value without discrimination.
2. Safe and healthy working conditions.
3. Equal opportunity for promotion without discrimination.
4. Rest, breaks from work, holidays and reasonable limits on working hours.

These represent the basic rights that have to be respected in the workplace.

• But they do not cover all actionable workers’ rights which are included in some 155 specific ILO Conventions and various national laws.

Some rights at work are implied. For example, the right to strike is implied in the right to freedom of association because it is necessary for workers to organise and protect their interests.

(b) How Are These Rights Commonly Abused?

Low or unpaid wages

Example: Migrant Workers in Abu Dhabi
Migrant workers in Abu Dhabi successfully brought a claim against their employer in the Abu Dhabi labour court for unpaid wages.

Example: Uber Taxi Drivers
Taxi drivers in the UK, USA and Europe took the taxi app company Uber to court for not providing them with legal protection and their full range of workers’ rights, including to be paid the legal minimum wage.

Uber claimed that it was not a transportation company and had no employment relationship with drivers even though they were subject to restrictive terms of service similar to an employment contract.

Uber’s arguments were rejected and it was held to be a transportation company whose drivers performed the function of workers and were entitled to legal protection.

Unsafe working conditions

Example: Rana Plaza (Bangladesh)
The Rana Plaza disaster is a leading example of dangerous working conditions causing loss of life and injury.

In 2013, a factory in Bangladesh suffered a catastrophic collapse killing over 1100 people, including workers producing garments for many leading multinational clothing firms. The building was known to be unsafe, but the owners had neglected to maintain it properly.

Forced labour and modern slavery

Anti-Slavery International estimates that some 40.3 million workers are in modern slavery which is defined as existing where a person is:

• Forced to work – through coercion, or mental or physical threat;
• Owned or controlled by an “employer”, through mental or physical abuse or the threat of abuse;
• Dehumanised, treated as a commodity or bought and sold as “property”;
• Physically constrained or have restrictions placed on their freedom of movement.

Example: Odebrecht in Angola Bio Fuel Operations
Odebrecht Group, a Brazilian TNC, was convicted by a labour court in Brazil of human trafficking and slave labour relating to its Angola bio-fuel operations.

Brazilian workers in Angola said that they’d had their passports confiscated and were forced to work in degrading conditions.

Odebrecht argued that it had no direct control over the abuses, which it said were carried out by a third-party foreign subsidiary.

But the court ruled that Odebrecht had overall management of the project and benefited from the abuses.

Odebrecht was ordered to pay 13 million USD in compensation.

Example: Canadian Mining Company in Eritrea
Three Eritrean refugees have filed a claim in Canada against a Canadian mining TNC, Nevsun Resources Ltd. Nevsun Resources Ltd is the majority shareholder in its Eritrean subsidiary, the Bisha Mine Share Company.

The claimants allege that they were forced to provide labour as “a form of slavery” at the mine and suffered other human rights abuses.

The claimants argue that Nevsun was complicit in breaches of customary international law (which prohibits torture and slavery) and torts including negligence and false imprisonment.

The Supreme Court case was heard in January 2019. The decision is pending.

Discrimination in the workplace

Example: US Border Industrialization Program in Mexico
US companies can use the Border Industrialization Program (or “maquiladora program”) to import partially-made goods into Mexico duty-free and then export the finished goods to the US without customs duty.

The majority of maquiladora workers are female with research indicating that workers routinely experience pregnancy discrimination, including employers requiring applicants to undergo a pregnancy test as a condition of employment.

If you think your rights are being abused in the workplace, read this Guide to consider different ways to use legal action to challenge labour rights abuses.

In national and international laws, there is often a right to a healthy environment, a right to health, food and water. There are also national environmental regulations that protect you from environmental damage. Where businesses damage the environment, they can abuse these rights and break national laws.

Environmental damage is common where businesses are involved in the extractive industry (e.g. mining, oil, gas and coal extraction) and in big infrastructure projects (e.g. mega dams and roads).

• For example, an oil spill can cause health problems for people who have to live with its consequences, especially where it pollutes the local water and soil, wiping out local fish supplies and/or making the fish unsafe to eat, and inhibiting the growth of crops.

The video outlines one example in Nigeria:

Environmental damage can also take the form of depletion of natural resources.

• For example, big fishing businesses may overfish in your waters, wiping out the fish stocks and negatively impacting your livelihood.
• Or a company that uses local water sources for its production may result in water shortages for local communities.

Example: Coca-Cola Water Use in India
In 2003, a Village Council in Kerala, India, cancelled a factory licence given to Hindustan Coca-Cola Beverages Ltd, a subsidiary of the US company Coca-Cola, because its activities led to drinking water scarcity and environmental damage.

The company appealed the decision to the Kerala High Court. The court held that the state’s failure to protect against excessive groundwater extraction risked infringing the right to life under the Constitution of India.

The court ordered the company to stop extracting excessive amounts of groundwater.

Business activities may also contribute to climate change through their greenhouse and carbon emissions, which negatively impacts various human rights.

Example: Peruvian Farmer Sues German Energy Company
In 2015, a Peruvian farmer filed a letter of complaint against Germany’s largest electricity company RWE alleging that the company’s greenhouse emissions have contributed to climate change causing an increased risk of flooding in Huarez (his home). He is asking RWE to help pay for flood defences.

The German courts have recognised that the case is admissible and the case has proceeded to the evidentiary phase.

If a business has caused environmental damage that has affected you and your community, this Guide can inform you of possible ways to hold these businesses accountable.

For more information on environmental issues, see “Environmental rights”.

For individuals and communities, access to land and natural resources are necessary for livelihood and survival. Your human rights to property, housing, food and water can be abused when your land is taken from you.

• These rights are protected in international human rights law and may also be protected in national land and property laws.

“Land grabbing” = Situations where land and resources used by local communities become controlled by a business or other organisation without the community’s free, prior and informed consent.

• As a result, the community may lose access to their land and natural resources, threatening their livelihoods and rights.

Land grabs are a big human rights issue that happen in many different countries:

Example: Australian Banks Financing Land Grabs in Cambodia
Cambodian NGOs filed a complaint with the Australian National Contact Point for the OECD Guidelines (AusNCP) against the Australia New Zealand Banking Group (ANZ) for its role in financing a sugar plantation project in Cambodia.

The complaint alleged that the project forcibly displaced and dispossessed families and was linked to the use of child labour and dangerous working conditions. The AusNCP doubted that ANZ’s decision to partially finance the project met the OECD Guidelines for Multinational Enterprises.

For information on the OECD Guidelines and National Contact Points, see “Making Complaints to International Non-Judicial Accountability Mechanisms”.

If your land or land in your community has been taken from you or impacted by a business, consider the ways outlined in this Guide to take legal action to hold those businesses accountable.

For information on your land rights, see “Land rights”.

There are no international instruments that expressly include consumer rights. However, the rights to health, food and water provide some protection (i.e. they set standards relating to the hygiene of food, water and other products which could endanger people’s health). Consumer rights are often outlined in national law.

Also, the UN Conference on Trade and Development (UNCTAD) has produced Guidelines on consumer protection that can be used alongside the above human rights to formulate a legal claim. The UN Guidelines contain provisions covering government consumer policy and good business practices.

UNCTAD Guidelines Article III (9)
“All enterprises should obey the relevant laws and regulations of the countries in which they do business. They should also conform to the appropriate provisions of international standards for consumer protection to which the competent authorities of the country in question have agreed.”

Your human rights can be impacted by major breaches of consumer rights. An example is where a business cuts production costs by saving on essential health and safety processes and this leads to physical harm.

Example: Use of Lead Paint in Children’s Toys
Leaded paint is much less expensive than non-leaded paint.

Mattel, a global toy company, recalled over 2 million toys in 2007 as they violated US federal law standards for lead in paint.

In its investigation, Mattel discovered that several contractors had purchased leaded paint from suppliers that had not been certified by Mattel.

If your health has been endangered or your consumer rights seriously violated by a business, consider the options for legal action outlined in this Guide.

The rise of the internet and the masses of personal information that websites contain has raised new human rights concerns. Data collection and processing by internet companies can threaten our privacy and our democracies.

Example: Cambridge Analytica
Abuses of personal data by Cambridge Analytica influenced recent US and UK elections.

This was challenged by a successful application to the UK Office of the Information Commissioner.

Example: Businesses and Internet Censorship
Internet censorship in certain countries which is carried out with the cooperation of digital platform TNCs such as the case of Google in China, part of China’s “Great Firewall”.

The Global Network Initiative (GNI) has developed Principles “to protect and advance freedom of expression and privacy in the Information and Communications Technology (ICT) industry globally” based on international human rights laws and standards.

• The GNI Principles establish a framework to help companies respect freedom of expression and privacy rights.

If you think a business is misusing your data and breaching your privacy, consider the options for legal action outlined in this Guide.

There are many other ways business activities can impact your human rights, including through the use of violence.

In some cases, businesses may have colluded with state forces and have hired private security firms to commit acts of violence against persons and communities who protest against their operations or obstruct their activities.

Example: Choc v Hudbay Minerals Inc (Canada)
Indigenous Mayan Q’eqchi’ Peoples from Guatemala have filed a claim in the Canadian courts against the Canadian mining TNC Hudbay Minerals Inc and two of its subsidiaries.

They allege that members of the police and military committed acts of violence, including murder, assault and rape while under the control of Hudbay. They argue that the company negligently directed, controlled, monitored and supervised the security forces deployed to secure Hudbay’s mining project in Guatemala.

In 2013, the Canadian courts accepted jurisdiction and the case will proceed to trial.

Example: Kiobel v Shell (The Netherlands)
In 2019, a Dutch court accepted jurisdiction to determine whether Royal Dutch Shell was involved in the Nigerian government’s execution of nine environmental activists and in other human right abuses dating back to 1993.

The court’s acceptance of jurisdiction means that Royal Dutch Shell must now disclose confidential internal documents relating to the case.

There is also a growing trend of big business seeking to silence criticism and restrict people’s freedom of expression through intimidating protesters and using strategic lawsuits against public participation (“SLAPP”) suits (legal actions designed to stop people legitimately expressing their views).

Example: Energy Transfer Partners v Greenpeace, BankTrack, et al (US)
Energy Transfer Partners (ETP) sued the NGOs BankTrack, Greenpeace and the EarthFirst! movement.

ETP said that their campaigns against the Dakota Access Pipeline amounted to racketeering under the Racketeer Influenced and Corruption Organizations (RICO) Act.

The claim against BankTrack was dismissed with the judge in the case terming the interpretation of RICO as “dangerously broad”.

Businesses can also become involved in corruption, which undermines the democratic process, rule of law and human rights protection. This can involve businesses bribing public officials or state agencies to avoid the regulation of their operations.

Example: Corruption and Investment Protection
Tribunals have held that where an investment is procured through corruption it may not be protected under any applicable investor protection treaty as it may not be in accordance with host country law and contrary to international public policy.

If business activities are negatively impacting your health, property, livelihood or security, you may be able to challenge their activities with legal action.

The rest of the guide will show you how you can use legal action to challenge human rights abuses committed by businesses.