Principles aren’t enough when human rights meet business

In October 2018, armed gunmen opened fire on a group of sugar plantation workers while they ate their evening meal inside makeshift tents at Hacienda Nene, a 90-acre sugar plantation in Sagay City on The Philippines’ island of Negros.

They killed nine people including three women and two children.

The victims were engaged in a practice called bungkalan whereby workers occupy idle land and collectively cultivate food crops. This practice is common during the six-month ‘dead’ season between planting and harvest when there is little work available and plantation workers face hunger, malnutrition, and even death, forcing them to seek alternate livelihoods.

Two weeks after the killings, Benjamin Ramos, a lawyer representing the families of the murdered workers, was also gunned down outside a public plaza.

It is widely believed that military and police-backed private armies hired by local plantation owners were behind the killings in both cases. But, to date, no-one has been held to account for either killing.

The killings are a stark reminder of the limited power of international human rights norms related to business activity and the actors who seek to promote them.

In 2011, the United Nations Human Rights Council endorsed the Guiding Principles on Business and Human Rights (UNGPs), a set of guidelines for preventing and addressing business-related human rights abuses. The UNGPs encompass three pillars: the duty of the state to protect human rights, the corporate responsibility to respect human rights, and access to remedy for victims.

The Sagay killings show that these principles have little consequence when they threaten the material interests of those who hold real power – the dominant political elites.

This is the case even where active coalitions have formed in support of the UNGPs. For example, in both The Philippines and Malaysia coalitions led by local national human rights commissions have been able to bring attention to a range of issues related to business and human rights, but real action to enforce accountability has so far been stymied.

The Philippines Commission on Human Rights (a Constitutionally-prescribed body with the authority to investigate human rights abuses), has sought ways of incorporating the UNGPs into national laws and regulations. In 2018, for instance, it put a series of recommendations to the Philippine House of Representatives for changes to the country’s Corporations Code.

The effect of these changes would have been to ‘mainstream’ the UNGPs throughout the Code. But this effort was completely rebuffed by the government of President Rodrigo Duterte, who has made clear his disdain for human rights, mostly obviously through the atrocities that have been tolerated under his war on drugs.

In a landmark decision last year the Commission sided with a group of NGOs that had invoked the UNGP to find that fossil fuel companies ‘could be held legally and morally liable’ for the effects of climate change, ‘especially on vulnerable communities in the Philippines.’

But it remains to be seen whether this action can produce meaningful change, particularly given the dysfunctional nature of the Philippines’ judicial system.

Meanwhile, in June the UN Human Rights Commissioner released a damning report on the human rights situation in the Philippines. It noted, among other things, that serious ‘issues arise from the role of private mining and logging companies, infrastructure projects and large-scale agribusiness on ancestral lands, and in implementation of the land distribution programme for peasants’.

It called on the international community to ‘bolster implementation’ of the UNGPs and carry out enhanced due diligence in its investment and development cooperation activities in the country.

In Malaysia there are ongoing concerns over the way companies are treating migrant workers. The country’s palm oil industry – its biggest agricultural export product – is heavily reliant on foreign workers, with over 70 per cent of the sector’s workforce coming from neighbouring Southeast Asian countries like Indonesia.

But migrant workers are also prominent in the construction, electronics and manufacturing sectors, and the International Organisation for Migration (IOM) estimates there are around 2.2 million documented migrant workers in the country, and 2 million-4 million undocumented migrant workers.

There have been persistent reports that this large population of people is being exploited­ – being forced to work long hours in poor conditions with little rest or pay, and having their passports taken by employers. Female workers, often employed in domestic work, are particularly vulnerable to abuses and often become victims of sexual harassment.

A recent report by the United Nations noted that ‘oppressive quota systems in the palm oil sector drives families to bring their children to work as unpaid labourers’. Similarly the clearing of forest lands to make way for palm oil plantations has led to increased pollution and significant loss of biodiversity. Deforestation also has a significant impact on indigenous peoples’ livelihoods and culture, one example being the struggle of the Murut people in Sabah.

The challenges related to human rights and business in Malaysia aren’t exclusively an issue for Malaysian companies, but are often also connected to actors outside of the country. An investigation by the international NGO Global Witness outlined how Japanese companies purchasing timber products from Sarawak, to build venues for the 2020 Olympics in Tokyo, were linked to widespread illegal and unsustainable logging, and in turn human rights abuses.

As in the Philippines, Malaysia’s National Human Rights Commission, or Suhakam, is seeking to implement the UNGPs but while some progress has been made, an entrenched political elite is standing in the way of substantive progress.

In 2017 Suhakam signed a Memorandum of Understanding with key actors in the palm oil industry, FGV Holdings and the Federal Land Development Authority (FELDA), to provide support in developing action plans to ensure compliance with human rights principles, enhanced consultation with stakeholders (including civil society groups), and the provision of human rights training for company officials and any parties affiliated with them.

But Suhakam’s engagement with the palm oil industry hasn’t ended human rights abuses in the industry. In 2018 the Roundtable on Sustainable Palm Oil (RSPO) – which seeks to develop and implement global standards for sustainable palm oil – found that FGV Holdings was involved in exploitative labour practices, and recently civil society groups reported that palm oil giant Sime Darby, which previously has expressed support for the UNGPs, has used forced and child labour on its plantations.

A key constraint on progress in Malaysia is the absence of a broader commitment to address human rights abuses in the country. Although in 2018 the then government issued a proposed National Action Plan on Human Rights, its lack of ambition disappointed human rights advocates and most NGOs dismissed it.

The Pakatan Harapan alliance government led by former Prime Minister Mahatir Mohamad (which collapsed in March), initially announced a number of human rights reforms, including cabinet approval to develop a National Action Plan on Business and Human Rights, but the reforms faltered in the face of strong opposition from political elites, includingthe United Malays National Organisation (UMNO) and the Malaysian Islamic Party (Parti Islam Se-Malaysia, PAS).

This isn’t to say that government human rights bodies like the Philippine’s Commission on Human Rights and Malaysia’s Suhakam don’t have an important role to play in promoting and giving effect to the UNGPs. A study published earlier this year by the Danish Institute for Human Rights argues that national human rights commissions have a unique role to play in promoting the UNGPs.

This is because the mandate of such bodies allows them to conduct investigations or public inquiries, provide input to government and engages stakeholders like companies and industries. In addition, for those commissions that have the authority to hear individual complaints, they can contribute to remedies for people whose rights have been violated.

But while these bodies may make some inroads in promoting implementation of the UNGPs, they are unlikely to transform their countries unless the entrenched interests that hold real power are either brought on board (perhaps under pressure from global markets seeking compliance with voluntary standards) or are sidelined by political reforms.

Maybe then the proper protection of business-related human rights can constitute a new business-as-usual.

For further in-depth examination of these issues please see separate articles by Professor Rosser and Dr Setiawan published in Melbourne Asia Review.

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