POSITION PAPER, Slides of Human Rights

Download POSITION PAPER and more Slides Human Rights in PDF only on Docsity! Republic of the Philippines COMMISSION ON HUMAN RIGHTS Quezon City IN RE: Position paper on the draft General Comment on state obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities X----------------------------------------------------------------------------------X POSITION PAPER WHEREAS, the Commission on Human Rights of the Philippines submits this position paper that provides its views and inputs to the draft General Comment on state obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities. Likewise, this is being submitted as contribution to the efforts of the Global Alliance of National Human Rights Institutions (GANHRI) that is currently preparing its consolidated position on the same General Comment. WHEREAS, the draft General Comment puts emphasis on clarifying the duties of the State Party under the International Covenant on Economic, Social and Cultural Rights (ICESCR) to ensure that the activities of businesses contribute to and do not impede the realization of economic, social and cultural rights.i More so, the draft General Comment is said to assist the business sector in appreciating their human rights obligations and ensuring their compliance.ii Certainly, the draft General Comment has categorically recognized that the business sector, though may be comprised of non-state actors, have obligations under the ICESCR. However, it is evident that the General Comment still applied the respect-protect-fulfill typology of human rights obligations to the State Party only. iii The draft General Comment cites specific examples of such obligations, and corresponding violations thereof, in such a way that it appears it is still the State Party who is the primary duty-bearer that influences and regulates the business sector. WHEREAS, the draft General Comment summarized and distilled some of the literatures on the complex and evolving issue of the extraterritorial components of the obligations under ICESCR. Simply stated, the State Party's obligations under the ICESCR do not stop at their territorial borders. iv The point of view therefore is taken from the duty bearer who knows it is expected not to limit itself within its territories, but rather is obliged to look beyond and ensure that businesses overseas, if with links to it, respect human rights. The draft General Comment further provides that: “States Parties are required to take necessary steps to prevent human rights violations abroad by corporations over which they may exercise influence, without infringing the sovereignty or diminishing the obligations of the host States under the Covenant.”v (Emphasis ours) “Extraterritorial obligations arise when a State Party may exercise control, power or authority over business entities or situations located outside its territory, in a way that could have an impact on the enjoyment of human rights by people affected by such entities’ activities or by such situations.”vi (Emphasis ours) WHEREAS, the draft General Comment cites numerous references that point to the soundness and legality of the concept of extraterritorial obligations under ICESCR.vii For example, the previous General Comments of the Committee on ESCR about the Right to Water (GC 15), Right to Work (GC 18), and the Right to Social Security (GC 19) are reiterated wherein the Committee has addressed specific extraterritorial obligations of States Parties concerning business activities. However, we note that the general comment on the right to work (GC 18), in its paragraph 52, provides that: “While only States are parties to the Covenant and are thus ultimately accountable for compliance with it, all members of society - individuals, local communities, trade unions, civil society and private sector organizations - have responsibilities regarding the realization of the right to work. States parties should provide an environment facilitating the discharge of these obligations. Private enterprises - national and multinational - while not bound by the Covenant, have a particular role to play in job creation, hiring policies and non-discriminatory access to work. They should conduct their activities on the basis of legislation, administrative measures, codes of conduct and other appropriate measures promoting respect for the right to work, agreed between the government and civil society. Such measures should recognize the labour standards elaborated by the ILO and aim at increasing the awareness and responsibility of enterprises in the realization of the right to work.” (Emphasis ours) In contrast, the draft General Comment under review would assert that the business sector have human rights obligations under the Covenant as shown in the following excerpts: “This General Comment aims to provide guidance on the international law obligations under the Covenant in the context of business activities. As such, it seeks to assist States parties, including parliaments, domestic courts and national human rights institutions, in fulfilling their Covenant duties. It is also the Committee’s intention that the present General Comment will support business entities and civil society on taking into account Covenant obligations in their activities.”viii (Emphasis ours) “This General Comment is also relevant to non-State actors in the business sector. In a number of States Parties, international law provisions, including the Covenant, are incorporated into domestic law. In certain jurisdictions individuals are allowed direct recourse against business entities for violation of their economic, social and cultural rights as guaranteed under the Covenant. There are also an increasing number of jurisdictions that require business entities to report on their human rights due diligence process. The present General Comment seeks to assist the business sector in appreciating their human rights obligations and ensuring their compliance.”ix (Emphasis ours) WHEREAS, it observed that corporations in the Philippines come into being not merely by contractual relations among individuals. The theory of concessionx in corporate law, as may be adopted in other jurisdictions, provides that a corporation cannot become as such by mere consent of the parties. There must be a law granting it an existence, and once granted, forms the primary franchise of the corporation. We now refer to the two types of franchise in Philippine corporate law: the primary or corporate franchise, and the secondary or special franchise.xi Primary franchise is the right granted to individuals by the State to be and act as a corporation after its incorporation. On the other hand, secondary franchise is conferred by the State upon the corporation after its incorporation and not upon the individuals who compose it. This system of franchises shows that the State Party is ultimately responsible to ensure that corporations respect human rights, because corporations are creatures of the State. As such, the United Nations Guiding Principles (UNGP) on Business and Human Rights provide that in meeting their duty to protect, states should ensure that 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, such as economic, social and cultural rights.xii Certainly, The State Party has the obligation to define, by law, rule or regulation, the human rights obligations of the business sector under the ICESCR, taking into account the draft General Comment. WHEREAS, Article XIII, Section 18 (3)xiii of the 1987 Constitution grants the Commission on Human Rights of the Philippines extraterritorial jurisdiction to protect and promote the human rights of Filipinos residing abroad. This is an example when the State Party may have conceived a national human rights institution that monitors the human rights situation of its nationals residing outside its borders. IN VIEW OF FOREGOING PREMISES, the consideration of the following recommendations