Non-state Actors (NSA) ‘Roles in the Human Rights Context’ (1)
Abstract
Non-state actors (NSA) have played several roles to promote human rights and prevent violations against human rights. Generally, NSA have interaction with state players, such as government agencies and officials either through cooperation, investigation or both. However, NSA have been facing various challenges, especially ones related to social, cultural and economic concerns. This paper provides a discussion of the definition of NSA, important roles related to human rights issues, and significant challenges and recommendations for NSA, particularly, in the case of Thailand.
Key Words: Non-State Actors; Human Rights; Social Development
Introduction:
This article aims to review the human rights obligation for non-state actors (NSA), analyze the challenges for implementing the obligations, and provide recommendations for every challenge. Before the discussion on human rights obligations, this paper provides a brief description on definition, categories, and roles related to NSA.
Definition and categories:
The term ‘non-state actors’ is defined and categorized differently. The Special Rapporteur on the situation of human rights defenders explained the term NSA as “people, organizations, groups and corporations not composed of State agents or not being State organs” (A/65/223, 2010). Similar to the definition by the Special Rapporteur, NSA is traditionally defined as a “group” or any kind of corporation that is supposed to have more than one person. By such definition, it is important to analyze whether one person can act as the same NSA under the development of communication technology today that allows individuals to establish and manage organizations without the cooperation with others.
Besides the definition, categories of NSA are generally classified into four groups. According to August Reinisch (2002) NSA include: 1) International organizations (IO), 2) Non-governmental organizations (NGO), 3) International financial institutions (IFI) -- which generally refers to the World Bank (WB) and International Monetary Fund (IMF), and 4) Transnational corporations (TNC) or multinational enterprises (MNE). The Special Rapporteur on the situation of human rights defenders (2010) categorized type of NSA based on the violations to human rights defenders, namely: 1) armed groups, 2) national and TNC, 3) other types of NSA and 4) media. Nicholas David et al (2014) mapped NSA into: 1) TNC and financial services, 2) civil society (CS) including NGO and stakeholders, such as women groups, 3) IFI and 4) human rights defenders (HRD).[1]
Except for IFI, each group of NSA seems to be not totally separate from each other; particularly the large or worldwide NSA like Amnesty International (AI) or Save the Children that are international organizations or international NGO (INGO) (Baehr, 2001). A variety of NSA categories also raises some questions as follows;
Should NSA include “illegal groups”? The Special Rapporteur on the situation of human rights defenders (2010) included armed groups as one NSA. If so, then other NSA, such as commercial sex businesses or casinos should be included as NSA and further required to abide by human rights principles.
With regard to other types of NSA[2], should individuals (e.g., landowners or ethnic minorities) be included as part of NSA? If so, what will differentiate them and NSA established as legal organizations with human rights obligations? That broadened definition would imply that everyone in society is an NSA because each person is a member of at least one group based on social, economic, political and/or cultural interest.
The scope of NSA seems to be more international or regional than national or local because TNC is considered part of NSA and is quite an important NSA for human rights academicians or activists. However, the local business sector, including small-medium scale enterprises (SME) and social enterprises (SE) are not explicitly included as NSA. On the other hand, SME and SE are part of Corporate Social Responsibility (CSR) of some TNC as recommended by Forum Asia[3]
Roles of NSA:
The roles of NSA can be explained differently based on different perceptions. In this article, the roles of NSA are described based on: 1) Relationship with States and other NSA, and 2) Purposes of establishment.
Relationship with States and other NSA:
Formerly, States, including TNC, were identified as the “antagonists” while NSA, especially, NGO, CS, IO, were considered “protagonists” (Reinisch, 2002) because NGO are supposed to investigate whether States and TNC are involved with human rights violations in any form. Therefore, the main role of NSA like NGO is to investigate States and TNC under the scope of human rights obligations.
However, the role of NSA, such as NGO and TNC has been evolving in a new direction. At present, the roles of NSA can be divided into cooperation and investigation, based on the relationship with States and among NSA:
Cooperation:
Today, a number of NGO are engaged with States in different platforms, such as being the consultants of the government on relevant social development policies and law amendments. NGO cannot be established without State recognition. It is essential for NGO to access the government because that is a powerful channel for them to raise public awareness on whatever issues they are working on (Baehr, 2001). At the same time, it is recommended that NGO working on the same issues should cooperate in order to avoid duplication of work and raise their bargaining power with the government.
However, many NGO receive financial support from the government to launch projects. By doing so, it is quite difficult for those NGO to play the role of State investigator. Some NGO even promote governmental policies as mentioned by Susan J. Pharr (2003; cited in Ogawa, 2014) in the study of the roles of NGO and CS in Japan in the article Civil society: past, present and future, which observed that “the Japanese state has successfully institutionalized specific kinds of civil society groups to promote state ideology while marginalizing those [civil society groups] that take critical and independent stands.” For this type of NGO, their role may be manipulated by the government, and that can lead them to lack concern on human rights obligation of States which is their initial purpose to be established as an NGO.
Cooperation between States and TNC and between TNC and TNC is common. The first type of cooperation is state-investor relationships (IHRB and GBI, 2012) that are usually found in mega-projects like dam or road construction, requiring large support in terms of financial and/or professional services from the private sector[4]. The cooperation between TNC and TNC or within the business sector can be divided into five types: Joint ventures, mergers, acquisitions and disposals, franchising and licensing, suppliers and service providers, and direct customers[5]. Each type of business relationship is expected to apply human rights principles from start to end of the relationship.
The cooperation between States and TNC and between States and NGO produce a different impact on the NSA and States. States that have been cooperating with TNC for years are probably manipulated by TNC through interference in policies. For example, there is the case of the Lao government and Imperial Tobacco, in which the tobacco industry proposed exploitative policy on tobacco taxation that resulted in major losses in excise tax revenue for Lao PDR. The same situation could be found in many countries worldwide, particularly in low- and middle-income countries[6]. Sometimes, with powerful interference of TNC, the government cannot respect, protect or fulfil human rights as obligated.
On the other hand, States can mobilize NGO, particularly, local and national NGO funded by States, to support and promote government policies. NGO can play an important role in accessing local communities and utilize such opportunity to improve local understanding of public policies or social welfare related to their daily life. It is not surprising that, after working in NGO for years, some senior staff become part of governmental bodies, such as elected or appointed representatives. The cooperation between States and INGO, such as UN agencies, is not so much related to politics as it is to project and policy support, information sharing and technical assistance. Some INGO identify themselves as support organizations for launching public policies; for example, UNICEF organizes consultations to support public policies on child rights protection in certain countries.
Investigation:
The NSA play a more important role in investigations of corporations, especially of TNC. To illustrate, there are guidelines issued by international organizations on examining international violation of human rights obligations. For example, the Guidelines for Multinational Enterprises issued by the Organization for Economic Cooperation and Development (OECD) presents ‘Recommendations for Responsible Business Conduct in a Global Context’ (5th edition, 2011) first adopted in 1976[7]. The Tripartite declaration of principles concerning multinational enterprises and social policy (MNE Declaration) was published by the International Labour Organization (ILO), which is a global instrument to guide enterprises on “social policy and inclusiveness, responsible and sustainable workplace practices”[8]. The UN Global Compact, a UN initiative proclaimed the 10 UN Global Compact Principles on human rights, labor, environment and anti-corruption. As for human rights, two principles are relevant: 1) Businesses should support and respect the protection of internationall- proclaimed human rights; and 2) Businesses must ensure that they are not complicit in human rights abuses.[9]
It is difficult to overlook the relationship of TNC and/or corporations and human rights violations. There are many cases of human rights violations found in TNC located in developing countries. For example, there is the case of slavery and human trafficking in Thailand’s seafood industry. While Thailand is one of the world’s largest seafood exporters, the State is facing charges of slavery, human trafficking and corruption in this industry.
There are several NSA in Thailand’s seafood industry. However these are mostly are business enterprises, and it is very challenging for the State to enforce human rights obligations through NSA. The industry involves billions of dollars of investment and complex dynamics. The pattern of human trafficking is well-known: Workers from nearby lower-income countries are lured with promises of high income, but are then trafficked to work on deep-sea fishing boats for long hours and low or deferred payment. Some victims had to pay overhead fees in order to work in this industry, but that did not prevent abuse.
After the European Union threatened a boycott of Thai seafood exports, the Thai government intensified its effort to stop human rights abuses in this sector. Nevertheless, the European Parliament still requires further monitoring on the human rights obligation of the State and NSA as follows:
“….Owing to overfishing and the consequent depletion of fish stocks in Thai territorial waters, fishing vessels are increasingly unprofitable, prompting an over-reliance on cheap, precarious labour. Human rights and labour abuses, including slavery and human trafficking, are closely linked to illegal and unregulated fishing in Thailand.
On 23 February 2016 a number of internationally prominent environmental, labour and human rights organisations sent a letter to Commissioner Karmenu Vella urging the Commission to maintain pressure on the Thai authorities until substantial reforms take place in the country’s fishing industry…”[10]
The general role of NGO, CS and INGO, especially those working on politically-relevant issues, such as Amnesty International (AI), Human Rights Watch (HRW), and Forum Asia is to investigate whether States can respect, protect and fulfil human rights obligations with the strategy called “Mobilization of Shame” (Baehr, 2001). Each NGO and INGO have different areas of focus. For example, AI initially worked for the release of prisoners of conscience, while HRW’s first focus was on abuses in the context of armed conflict. Forum Asia calls for regional human rights agreements in ASEAN (Neier, 2012). Besides investigating States, some NGO work on corporate investigations. TNC are a main target of a number of NGO working on human rights for different groups, such as laborers, women, children, and indigenous groups, and investigate any reports of human rights violations by TNC. Some TNC and States try to cooperate with NGO and work with NGO as partners in order to integrate human rights principles into their management system (Reinisch, 2002). However, some NGO are ordered to stop work when it is considered dangerous for States, e.g., when there are perceived threats to state security. For example, in 2015, the Thai government deactivated the website of HRW when HRW criticized freedom of expression and other political issues in the country.
(To be continued)
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[1] This article will mainly focus on human rights obligation of TNC and NGO categorized by Nicholas David et al. (2014) together with the State human rights obligation enforcement.
[2] See A/65/223, paras. 13-16.
[3] See Forum Asia, 2013, Corporate Accountability in ASEAN: A Human-Rights Based Approach, which stated that “The research on behalf of the OECD recommends that ASEAN companies move from “philanthropy CSR” to “strategic CSR,” engage SME, develop accountability and corporate governance policies, and engage in existing CSR initiatives such as ISO26000”
[4] See supra, Forum Asia, case studies.
[5] See Institute for Human Rights and Business (IHRB) and Global Business Initiative on Human Rights (GBI), 2012, State of Play: The Corporate Responsibility to Respect Human Rights in Business Relationships, for definition and ‘respect for human rights’ in each business relationship, including investor-state relationship.
[6] See SEATCA Tobacco Tax Index 2015 for more information on the cooperation between Imperial Tobacco and the Lao government, http://seatca.org/dmdocuments/SEATCA%20TOBACCO%20TAX(17SEPT15)WEB.pdf
[7] Organisation for Economic Co-operation and Development 2011
[8] International Labour Organization 2006
[9] UN Global Compact 2000
[10] European Parliaments 2016
