Published 2023
| Version v1
Journal article
Open
Human Rights Due Diligence as a Regulator to Business and Human Rights' Challenges in India
Description
Human Rights Due Diligence has become an important and necessary topic of discussion in national and international forums to ensure corporate accountability for realizing human rights. It is a process by which businesses are expected to access actual and potential human rights impact, integrate and act upon the findings, track the responses and to communicate as to how those impacts are addressed. In changing dimensions of world business, in ages of neo-liberal economy, the culture of social responsibility needs to go deeper in the governance of businesses. However, there is very limited research to understand how effective human rights due diligence is. It has now at the crossroads as it is about to become part of legislation, which will firmly test it’s potential to contribute substantially to the prevention of corporate human rights abuses. Being the largest democracy in the world, protection of human rights has been an intrinsic part of Indian tradition. India is one of the fastest growing economies of the world. Huge capital is on investment from within and outside the country. Businesses in India have traditionally been responsible socially and some of them have demonstrated their sincere efforts in a laudable manner. In the present economic and social milieu of India it is essential to have mandatory HRDD in the form of ‘hard law’. HRDD mechanism will function with specific objective of identifying actual or potential human rights impacts, taking effective measures to address these impacts and tracking or monitoring the effectiveness of these actions. This research paper has briefly captured a considerable practice of HRDD in different countries of the world and studied on how essential for India to implement it.
Files
7.pdf
Files
(8.0 MB)
| Name | Size | Download all |
|---|---|---|
|
md5:e016ed00eb9418f1f168b4ca766238f0
|
8.0 MB | Preview Download |
Additional details
Identifiers
References
- [1] See generally - Ingrid Landau, 'Human Rights Due Diligence and the Risk of Cosmetic Compliance'. 20 Melbourne Journal of Australia. (2019). Available at https://law.unimelb.edu.au/__data/assets/pdf_file/000 5/3144344/Landau.pdf.Last visited 23.05.21 at 9.15 PM. [2] Holley Cullen, 'The Irresistible Rise of Human Rights Due Diligence: Conflict Minerals and Beyond'. 48(4) George Washington International Law Review, 743 (2016). Available at https://www.researchgate.net/publication/3315 61252 last visited 11.08.21 at 11.04 AM. [3] See Generally – Surya Deva, 'Treating Human Rights Lightly: A Critique of the Consensus Rhetoric and the Language Employed by the Guiding Principles' in Surya Deva et al, 78 Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge University Press, 2013). [4] Kimberly D Krawiec, 'Cosmetic Compliance and the Failure of Negotiated Governance', 81(2) Washington University Law Quarterly, 487 (2013). Available at https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2674 &context=faculty_scholarship visited on 16.08.21. [5] S.D.Sharma, Speech by the President of India on Human Rights Education organised by the National Human Rights Commission of India, New Delhi on 16.02.1996. [6] V.S. Mani, Human Rights in India: An Overview (1997). Unpublished manuscript. [7] See generally, H.M. Seervai, Constitutional Law of India. 1086 (Universal Law Publishing Co. 1993). [8] Constitution of India Article 12 to 35 deals with Fundamental Rights and Article 36 to 51 deals Directive Principles of State Policy. [9] See generally, Manoj Kumar Sinha, 'Business and Human Rights : An Indian Perspective', Business and Human Rights, 55 (Sage Publications India Pvt. Ltd. 2013). [10] AIR 1978 SC 597 [11] Supra note 9, 57. [12] Working paper on 'Corporate Responsibility Watch, 2018'. Available at www.oxfamindia.org/sites/default/fi les/Finding_Making%20Growth%20Inclusive%202018 %20INSIDE_20%20Feb%2018_printable%20file %20_%202.pdf visited on 16.08.21 at 9.24 PM. [13] See generally, Working paper on 'Status of Corporate Responsibility in India, 2018' Available at https://ww w.traffickingmatters.com/wp-content/uploads/2019/1 0/Status_of_CR_Report_2019-2.pdf visited on 17.08.21 at 12.21 AM. [14] Reported in The Hindu on 01.11.2017. [15] Sruthi Radhakrishnan, 'The Hindu explains: Sterlite protests' published in The Hindu on 23.05.2018. [16] Romy Kraemer et al 'Conflict and Astroturfing in Niyamgiri: The importance of National Advocacy Networks in Anti-Corporate Social Movements' Available at file:///C:/Users/Indra/Downloads/Pageproofsfinal.pdf visited on 03.09.21 at 9.32. [17] Meenakshi Ganguly, 'Bangladesh coal plants threatened World's largest mangrove forest' Available on https://w ww.hrw.org/news/2020/06/18/bangladesh-coal-plants -threaten-worlds-largest-mangrove-forest.Visited 03.09.21 at 9.57 PM. [18] The Power of parity: Advancing women's equality in Asia Pacific report by McKinsey Global Institute (MGI) available at http://timesofindia.indiatimes.com/articles how/64655536.cms?utm_source=contentofinterest&ut m_medium=text&utm_campaign=cppst Visited 23.04.18. [19]https://cse.azimpremjiuniversity.edu.in/wp-content/u ploads/2018/09/State_of_Working_India_2018.pdf. Visited on 04.06.2017. [20] Ammu J. Christopher, 'Labour reforms: The cost of optimising Indian economy' Published in The Week on 06.08.2018. [21] Ibid. [22] John Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, 8th session, Agenda item 3, UN Doc A/HRC/8/5 (7 April 2008) 17–19 [56]–[64] ('Framework'). [23] John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework, 17th session, Agenda item 3, UN Doc A/HRC/17/31 (21 March 2011). [24] Human Rights Council, Mandate of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, HRC Res 8/7, 8th session, 28th mtg, UN Doc A/HRC/RES/8/7 (18 June 2008); Human Rights Council, Human Rights and Transnational Corporations and Other Business Enterprises, HRC Res 17/4, 17th session, Agenda item 3, UN Doc A/HRC/RES/17/4 (6 July 2011). [25] UN Doc A/HRC/8/5 (n 8) 4 [5]. [26] UNGPs, UN Doc A/HRC/17/31 (n 9) 13 (Guiding Principle 11-21). [27] Ibid (Guiding Principle 17 (a)) [28] John Ruggie, Just Business: Multinational Corporations and Human Rights 99–100, (WW Norton & Co. 2013). [29] Under this doctrine, a failure by the state to prevent and punish a violation of a human right by a non-state entity may trigger a state's legal responsibility. John Ruggie and John F Sherman, III, 'The Concept of "Due Diligence in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert Mc Corquodale' 28(3) European Journal of International Law 921, (2017). [30] UNGPs, UN Doc A/HRC/17/31 (n 9) 13 (Commentary on Guiding Principle 11). [31] UNGPs, UN Doc A/HRC/17/31 (n 9) 7–8 (Guiding Principles 2 and 3). [32] Mark B Taylor, 'The Ruggie Framework: Polycentric Regulation and the Implications for Corporate Social Responsibility' 5(1) Nordic Journal of Applied Ethics (2011). Available at www.researchgate.net/publication/228497 878_The_Ruggie_Framework_Polycentric_regulation_an d_the_implications_for_corporate_social_responsibility. Visited on 05.09.21 at 10.15 PM. [33] Justine Nolan, 'The Corporate Responsibility to Respect Human Rights: Soft Law or Not Law?' in Surya Deva et al, Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? 138 (Cambridge University Press, 2013). [34] https://www.unglobalcompact.org/what-is-gc/mission/principles visited on 06.09.21 at 8.18 PM. [35] Protocol adopted at the International Labour Conference, 103rd Session, 11June 2014. Available at https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXP UB:12100:0::NO::P12100_ILO_CODE:P029 visited on 06.09.21 at 8.25 PM. [36] International Labour Organisation, 5th Ed, 2017. Available at https://www.ilo.org/wcmsp5/groups/public/---edemp/---empent/--multi/documents/publication/wcm s_094386.pdf visited on 06.09.21 at 8.30 PM. [37] Organisation for Economic Co-operation and Development, Guidelines for Multinational Enterprises (OECD Publishing, 2011) 31, 34 ('OECD Guidelines'). Available at https://www.oecd.org/corporate/mne/48004323.pdf visited on 06.09.21 at 8.34 PM. [38] OECD Due Diligence Guidance for Responsible Business Conduct (OECD Publishing, 2018) Available at http://m neguidelines.oecd.org/OECD-Due-Diligence-Gui dance-for-Responsible-Business-Conduct.pdf visited on 06.09.2 1 at 8.44 PM. [39] Committee on the Rights of the Child, General Comment No 16 (2013) on State Obligations regarding the Impact of the Business Sector on Children's Rights, 62nd Session, UN Doc CRC/C/GC/16 (17.04.2013) [62]. Available at https://www2.ohchr.org/english/bodies/crc/docs/CRC. C.GC.16.pdf visited on 06.09.21 at 8.59 PM. [40] Human Rights Council, Report on the Fourth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights', 40th Session, Agenda Item 3, UN Doc A/HRC/40/48 (2 January 2019). Available at https://www.ohchr.org/EN/HRBodies/HRC /RegularSessions/Session40/Pages/ListReports.aspx vis ited on 06.09.21 at 9.46 PM. [41] Ibid. [42] Ibid Article 9(3). [43] Interview with John Ruggie (Michael Connor, Business Ethics: The Magazine of Corporate Responsibility, 30.10.2011) Available at https://business-ethics.com/20 11/10/30/8127-un-principles-on-business-and-human-rights-interview-with-john-ruggie visited on 09.09.21 at 4.16 PM. [44] Marcia Narine, 'Disclosing Disclosure's Defects: Addressing Corporate Irresponsibility for Human Rights Impacts' 47(1) Columbia Human Rights Law Review, 94. (2015). Available at https://repository.law.miami.edu/c gi/viewcontent.cgi?article=1761&context=fac_articles vi sited 09.09.21 at 5.18 PM. [45] French Devoir de Vigilance law. [46] Swiss Responsible Business Initiative. [47] Dutch Child Labour Due Diligence law. [48] https://www.mca.gov.in/Ministry/latestnews/CSR_ Voluntary_Guidelines_24dec2009.pdf visited on 11.09.21 at 4.56 PM. [49] The Human Rights Council endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011. (A/HRC/17/31). Available at https://www.ohchr.org /documents/publications/guidingprinciplesbusinesshr_ en.pdf visited on 11.09.21. [50] Available at https://www.mca.gov.in/Ministry/latestnews/National_Voluntary_Guidelines_2011_12jul2011.p df visited on 11.09.21. [51] Report of the Committee on Business Responsibility Reporting, prepared by the Ministry of Corporate Affairs, Government of India. Available at https://www.mca. gov.in/Ministry/pdf/BRR_11082020.pdf visited on 27.05.21 at 11.30 AM. [52] Ibid. P 6. [53] Peter Muchlinski, Multinational Enterprises and the Law, Oxford University Press, (2nd Edition, 2007). [54] https://www.ungpreporting.org/glossary/human-rights-due-diligence. Visited on 14.09.21 at 9.53 PM.