Non-state Actors (NSA) ‘Roles in the Human Rights Context’ (2)

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.

Purposes of NSA establishment:

IFIs and TNC have quite clear mandates to provide financial support to members (Anghie, 2004)[1] and to earn profit through business activities with decisions made on regional or global alternatives (Hadari, 1973; cited in Greer and Singh, 2000), respectively. However, their purpose of establishment can also affect working principles, missions, strategies and expected outcomes in specific issues they are working on.

NGO, different from IFIs and TNC, are established with at least two interdependent purposes: Advocacy and research. NGO focusing more on advocacy need to gain credibility from research findings to launch their projects. Reports of AI and HRW are valuable resources for other NGO, States and even courts of law for work on human rights issues. HRW’s reports are more suitable for human rights cases that need to be acted on in a short time period because it is written with the purpose of gaining maximum public attention, while AI’s reports do not have time limitations and are appropriate for longer-term action due to their comprehensive and detailed information (Neier, 2012).

Roles of NSA: Observations

Except for IFIs and TNC, the role of NSA is not certain because of flexible structures that allow staff to shift their roles to either cooperation with or investigation of other parties (e.g., States and TNC), or even change the objective of the NGO from investigation to cooperation and vice versa. Politics and economics are significant reasons for changes in the NGO. The working philosophy of NGO leaders is also important to shift the roles to strengthen or weaken human rights. For INGO, shareholders or donors are powerful players that shape the organization’s roles. Finally, NGO cannot be fully independent from States or other parties, and this affects their work on human rights promotion and protection. For example, some human rights violation cases that occur in government agencies may be ignored by NGO if they receive financial support from the government.

Regarding the purposes of establishment and periodic changes on human rights issues and concerns, NSA should be flexible to expand or amend their purposes and working principles. There is the example of the WB changing the rules for IFI on engagement in human rights and related issues, such as good governance and rule of law, as one of the indicators for assigning development status of recipient countries (Anghie, 2004). It is also found that many TNC include human rights principles as part of their management system in order to gain more credibility and increase the business profit (Forum Asia, 2013; Reinish, 2002).

Human rights obligations for NSA

The 2006 film “Blood Diamond” graphically portrayed the challenges of human rights obligations for NSA. The film focused on the business of conflict diamonds in Sierra Leone which showed the greed, poverty and abusive work atmosphere. The film depicted a condition of civil war, in which the State failed to enforce human rights obligations, and NSA, including NGO and TNC, found themselves committing human rights abuses to exploit the legal vacuum. The film also raised awareness of natural resource conflicts in Africa, not just for diamonds, but for minerals used for producing mobile phones and laptop computers. The film led to campaigns, research and discussion of human rights obligations. For example, the Chinese Chamber of Commerce issued the Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains (May 2015) to provide ‘guidance to companies undertaking outbound mining investment, cooperation and trade to identify, prevent and mitigate their risks of contributing to conflict, serious human rights abuses and risks of serious misconduct.’[2] However, the situation needs continued surveillance given the potential for exploitation.

There are different expectations of NSA for their work on human rights. NGO and similar types of actors are expected to work on human rights rather than IFIs and TNC, and such an expectation is confirmed by reports and guidelines for INGO including AI, HRW, and UN bodies, among others (Reinisch, 2002; and Buergenthal et al, 2002). TNC and others in the business sector are not always in the same situation as NGO on human rights obligations and compliance, but some corporations actually pay more attention to human rights by including human rights principles into their code of conduct (David et al, 2014).

In contrast to States, there are three important challenges for NSA related to human rights obligations: Legal framework, economic concerns and cultural barriers. Means of addressing the challenges are proposed at the end.

Legal framework:

According to the Office of the High Commissioner for Human Rights (OHCHR), States are obligated to respect, protect, and fulfil human rights of people living in their territories, and such principles are integrated into national and domestic laws in accordance with the contexts in certain countries. Indicators of human rights protections have been established to assess whether States act accordingly. There is no doubt that States are obligated to include human rights principles into the national legal framework and apply these in practice.

However, NSA are facing a different challenge because there is no legally-binding framework to engage NSA with the compliance of human rights principles. International human rights law includes similar international and regional ‘legal’ frameworks which address human rights. However, these are referred to as “soft law” that do not legally require members to comply. Therefore, unless it is a case of genocide, war crimes or crimes against humanity (Knox, 2011), NSA may ignore human rights principles if they choose to do so. In other words, NSA only have ‘indirect’ responsibility on human rights obligations (Ruggie, 2007).

Given this tenuous obligation of NSA towards human rights, there is an effort to strengthen the relationship between NGO and regional bodies to promote human rights protection among NSA through, for example, the Council of Europe, which works extensively to “strengthen NGO and civil society and to develop participatory democracy on a pan-European basis”;[3] There is the Organization of American States, with the motto of “More Rights for More People”[4]; and the ASEAN Intergovernmental Commission on Human Rights (AICHR) which “set the tone of cooperation in human rights promotion and protection in ASEAN. AICHR is the overreaching body with a cross-cutting mandate that handles matters related to human rights cooperation with other ASEAN bodies, external partners and stakeholders.”[5] The relationships can serve as mechanisms to obligate NSA to comply with human rights protection and promotion.

Economic concerns:

This challenge focuses on TNC rather than other NSA. Some TNC and business sectors view strict compliance with human rights as a threat to their business and the larger economic development of the country. Therefore, some States seem to be willing to overlook human rights violations in order to protect business and investment.

Such concern was already confirmed by John Gerard Ruggie – Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, as stated in his report (2007) based on the results of a questionnaire survey distributed to States. The report states that “…States either do not fully understand or are not always able or willing to fulfill this duty [human rights obligation to business sectors]…few [States] report having policies, programs or tools designed specifically to deal with corporate human rights challenges…” Similar to Ruggie, John H. Knox (2011) also stated that “…domestic governments may be unwilling or unable to prevent interfering with others’ human rights…”

As a consequence, some TNC shift from countries with strict human rights compliance to countries with less enforcement. For example, the tobacco industry has located branch offices in low and middle-income countries that do not have strong domestic tobacco control policies. In the case of ASEAN those countries are Indonesia, Philippines and Vietnam.

Cultural barriers:

Some regions have cultures that may be a barrier to implementation of human right obligations, not only for NSA but also the States themselves. For example, the “ASEAN Way” and “Asian Values” embody critical ideology and principles which permeate ASEAN member countries.

The “ASEAN Way” emphasizes non-interference in the domestic affairs of other state members. (Muntarbhorn, 2013; and Forum Asia, 2010) Consequently, state members are unable or unwilling to provide any recommendations relating to human rights violations that are considered sensitive issues for certain countries, such as the issue of human rights violations against undocumented migrants from Myanmar. In the case of human rights obligations for NSA, the concept of the “ASEAN Way” creates difficulty when big NGO, INGO and TNC are complicit in human rights abuses but are too powerful for the domestic government to deal with. Corruption and political interference by NSA may occur and indirectly compel the government to stop the investigation or prosecution against the NSA.

There are two recent cases that show how the “ASEAN Way” thwarts the accessibility to and development of human rights in the region.

• Rohingya Muslim conflict in Myanmar

ASEAN members have agreed not to intervene in a member State’s internal issue, such as the Rohingya Muslim conflict in Myanmar. The related violence is rooted in religious and ethnic issues in Myanmar. While the larger international community, mainly INGO and the US, blames Myanmar for failing to protect the human rights of the Rohingya, ASEAN members did not make any comment on the human rights as part of their non-interventionist policy. Similarly, the State may ignore human rights obligations raised by NSA.

• Thailand’s deportation of Uighur’s refugee to China

In July 2015, Thailand sent 100 Uighur refugees back to China, whom China claimed had criminal records. That action created an uproar in the larger international community[6] but little protest from ASEAN member states.

The Asian Values ideology was established in Singapore as a political strategy to address social and cultural problems, such as drug addiction and crime perpetrated by youth. These values were first promoted in the 1970s by the Singapore government and were integrated into the national school curriculum (Hill, 2002). Asian Values emphasize conforming to a set of manners that individuals are expected to display when interacting with others, and discourages Western-style individualism or self-expression. Thus the Values become a barrier when they are invoked to discourage individuals from protesting labor rights violations, since that might lead to a shut-down of the business, causing hardship to other workers. The individual is expected to endure and sacrifice for harmony in the society and economy.

Recommendations:

The “UN Principles on Business and Human Rights” which introduces human rights obligations for the State and NSA should be applied as guidelines. In reality, however, not all States follow UN Principles, and States cannot thoroughly control the human rights abuses of NSA. With an expanded interpretation, NSA should include human rights obligations into their management system. For example, the WB has pressured recipient countries to integrate principles of good governance and rule-of-law into local government institutions. International organizations, including INGO, should be promoting implementation based on international human rights law and avoid any conflict of interest, such as collaboration with businesses or agencies engaging human rights violations.

For TNC, the concept of extraterritorial jurisdiction should be implemented when TNC are found to commit any human rights violations abroad, and States should develop mechanisms to prevent or mitigate human rights harm generated by TNC (A/65/223, 2010). Besides the legal framework, other mechanisms, such as boycotts and online petitions can be utilized to stop or ‘shame’ TNC engaging in human right violations. The power of the media is an important factor to amplify those mechanisms.

Other international and regional mechanisms to obligate TNC and other NSA to work more on human rights include CSR, for example ISO 26000[7], and the ASEAN CSR Network[8], although knowledge improvement and capacity building on utilization and implementation is needed. Together with boycotts and other non-legal mechanisms, ‘socially-responsible investing’ is appropriate for some businesses that may be at risk of violating human rights, such as tobacco companies and arms producers (SIRI, cited in Reinisch, 2002). It is important to apply the concept of due diligence on policies, impact assessments, and integration and tracking performance[9] to the NSA internal management system.

In addition to the tobacco companies, there was the case of overseas NIKE garment factories. There were charges that NIKE did not follow human rights obligations, used child labor, paid sub-standard wages, and created sub-standard workplace conditions in Bangladesh, China, Indonesia and Vietnam. The publication of these findings led to a powerful boycott of the products during 1990s. NIKE admitted to using child labor and they implemented a factory code of conduct to eliminate the practice, together with hiring an auditing firm for safety inspection.[10] However, the company mostly left the responsibility to the garment factory[11] to follow the code of conduct. At present, NIKE is still using foreign labor in low-income countries whose States do not strictly enforce human rights obligations. The tragic collapse of the Rana Plaza building, which housed garment factories and led to more than a thousand deaths,[12] shows that countries where NIKE still operates have lax occupational safety regulations and enforcement. NIKE is a well-known company, but implementing strict human rights obligations may reduce TNC interest to invest in the State. Thus, the lower-income countries in Asia that do not strictly implement the human rights obligations risk losing large-scale investment.

Regarding the political and economic concerns, the global trend today has shifted to a more proactive stance on human rights defence and protection. Therefore, TNC which promote human rights by any means can increase their credibility, and that will attract investment and cooperation with other partners as well as increase loyalty among customers. However, there is a need to improve knowledge and understanding between stakeholders at all levels in order to strengthen and effectively utilize human rights impact assessments as well as other relevant mechanisms for NSA. For example, in ASEAN, CSR is one of the critical indicators to assess human rights impact by NSA; nevertheless, the understanding and information about CSR is still rare and unclear, and some TNC employ loopholes to implement ‘fake CSR’ to enhance their business image rather than assist ‘directly affected people’ (Eikenberry and Nickel, 2006).

Given this global trend with increased channels of information exchange, one recommendation is to use more public sector mechanisms to mobilize human rights obligations among NSA. Currently, online tools (e.g., petitions) show increased and effective impact in raising societal awareness on human rights obligations. The websites www.ipetitions.com and www.change.org provide access to a free online petition which anyone can post to raise awareness to the society of a problem. This impacts on implementation of human rights obligations among NSA; people who agree with the petition are aware of their rights while the State or business sector may consider ways to address the issue. There is the example of an online petition in Thailand to raise awareness of a hotel which denied service for HIV+ persons in 2014. After lodging the petition and receiving more than 15,000 supporters, the hotel manager reversed their policy.[13] This may be counted as a ‘soft’ human rights obligation mechanism apart from classic actions like boycotts and protests.

In addition, NGO can provide human rights education, training programmes and workshops to raise public awareness of human rights protections, particularly among NSA. At the international level, NGO can participate in the Universal Periodic Review as stakeholders. Some documents are filed by NGO as a shadow report to HRC for their review. Then they attend the review before making general comments before adoption of review outcomes. Moreover, NGO can provide help to advocate for individual complaints processing under human rights treaties at all levels because these kinds of cases or lawsuits take a long time to complete. The case of the Klity Mine prosecution has taken about 15 years to litigate. NGO can implement campaigns to raise public awareness to inform all stakeholders, especially policymakers, so that there is timely action on human rights issues.

This article does not suggest rejecting the ideology of the “ASEAN Way” or “Asian Values.” Instead, that ideology should be appropriately promoted to the public and be reframed to be a supportive mechanism for human rights obligations for NSA. It is recommended to encourage people to display concern for others the same as they do for their family members. In a civil society, it is social responsibility to rid the community of human rights violations by NSA by reporting cases to the legal authorities and participate in human rights impact assessments for the sake of everyone.

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Anghie, A. (2004) International Financial Institutions, in The Politics of International Law 217 (Christian Reus-Smit ed., Cambridge U. Press 2004).

ASEAN Secretariat. (2012) AICHR What You Need to Know [online] Available from http://www.aichr.org/?dl_name=web_FA_AICHR_19102012_FINAL.PDF

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[1] See Anghie, A. 2004. International Financial Institutions, in The Politics of International Law 217 (Christian Reus-Smit ed., Cambridge U. Press 2004), p 220 for more explanation on objective of WB and IMF.

[2] China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters 2015

[3] Council of Europe 2015

[4] See motto of Organization of American States http://www.oas.org/en/ser/dia/civil_society/Status.shtml

[5] ASEAN Secretariat. 2012

[6] Aljazeera America 2015

[7] The international standard developed to help organizations effectively assess and address those social responsibilities that are relevant and significant to their mission and vision; operations and processes; customers, employees, communities, and other stakeholders; and environmental impact.

[8] The ASEAN CSR Network, aims to provide opportunities for networking and exchange, to be a venue for discussing and addressing regional issues and concerns, and to be advocate and capacity builder for acceptance of international norms of CSR behavior. It also seeks to serve as a centralized repository of all the information gathered and provide easy access to participating organizations and partners in the region. More information from http://www.asean-csr-network.org/c/

[9] See A/HRC/8/5 paras. 56-64.

[10] Business Insider 2013

[11] Wall Street Journal 2014

[12] The Guardian 2015

[13] See https://www.change.org/p/town-in-town-hotel-stop-discriminating-against-people-living-with-hiv-aids

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