Status of Business and Human Rights In Pakistan
In recent decades, ‘business and human rights’ (BHR) has surfaced as an emerging trend in global politics. This international focus on the intersection between business and human rights is relatively new as human rights have primarily been viewed as issues requiring state intervention and enforcement. The business and human rights agenda can be traced back to 16th June, 2011 when the United Nations Human Rights Council (UNHRC) unanimously endorsed the United Nations Guiding Principles (UNGPs) on Business and Human Rights to ensure that the adverse impacts of business activities on human rights could be adequately addressed. Based on the ‘protect, respect and remedy’ framework, the UNGPs are the culmination of six years of consultations amongst relevant stakeholders guided by the UN Special Representative to the UN Secretary General, John Ruggie.
The global movement towards the raising of human rights standards in the business context has led to the creation of a Working Group on Business and Human Rights by the United Nations. The responsibility of this group is to provide guidance to states on the development of national action plans (NAPs) regarding BHR and ensure the dissemination of UNGPs. A closer look at the principles developed within the UNGPs reveals that they do not establish any additional obligations on states and instead simply compile existing human rights obligations under the International Bill of Rights and other core human rights UN Conventions which must be applicable in the business context.
The Principles establish a three-pillar structure whereby states have a duty to protect human rights and businesses have the responsibility to respect human rights standards within their operations. A collective responsibility to provide access to remedies has also been imposed. To achieve the duties under Pillar I of the UNGPs, states are expected to establish and amend laws to give effect to the protection of human rights within business activities. Public participation and informed decision-making are also greatly stressed upon under this Pillar. On the other hand, under Pillar II, businesses are expected to establish express policy commitments for the protection of human rights and carry out human rights due diligence to mitigate and prevent the adverse impacts of their business activity on human rights. The third Pillar focuses on the provision of remedies to those whose human rights have been violated within the business context. This requires states to establish judicial and non-judicial mechanisms for remediation and guides businesses to provide remedies within their internal structures as well. Thus, any NAP on BHR must address the issues under all three Pillars to ensure its effectiveness for the protection of human rights in business activity.
With the global focus on human rights protection shifting to implementation of human rights within the business context as well, the question that fundamentally needs to be answered is: What is BHR and why do states need to develop nation action plans to address this issue? BHR entails the creation of human rights standards within a business and requires mitigation of the adverse impacts of business activity on the rights of those who are employed within the business or who are part of the communities in which the business operates. This not only requires the state to ensure the protection of human rights by businesses but also necessitates the role of businesses and corporate entities in the implementation of human rights.
The need for BHR in Pakistan is underscored by its burgeoning working population—60 million at last count—and the dire human rights conditions it is subjected to. Despite the plethora of laws that have been promulgated under Pakistan’s international obligations towards the International Labour Organization (ILO) and other international human rights bodies, there are many cases that highlight human rights violations in the business context.
The state of Pakistan has striven to comply with its duty to protect human rights by establishing laws and policies in a broad range of policy areas such as environment, labour, health, tax, anti-corruption, equality, etc. However, many of these laws such as the Factories Act 1934 and the Mines Act 1923 must be amended to cater to modern violations of human rights. The state also needs to focus on the implementation and enforcement of these laws and must work towards encouraging the relevant ministries and agencies of the state to enhance their capacity to mitigate the adverse impacts of human rights at federal and provincial levels. Furthermore, the state should equip relevant departments as well as agencies with necessary support by providing training to the departments on the implementation of international human rights.
Provisions within the Constitution of Pakistan also provide for the protection of fundamental rights while national laws comprehensively cover most aspects of human rights violations. However, the greatest flaw in Pakistan’s domestic framework from a BHR perspective is the lack of a legislative requirement to conduct human rights due diligence in the context of business activity. Due to gaps in legislation and the lack of enforcement of existing laws, the country lacks a regulatory environment which fails to keep businesses in check. Hence, a NAP on BHR can aid in the administration of existing laws and policies and ensure that the core elements of human rights due diligence are integrated in business operations. Furthermore, the implementation of a NAP on BHR will bring the long awaited and necessary reform in the country by reducing business-related social conflicts, enforcing a culture of respect for human rights through honouring its international commitments and strengthening the implementation of the national human rights framework.
The enforcement of human rights in a business context is not only limited to the state duty to establish and amend laws to improve human rights standards but also requires businesses to play a significant role in the implementation of these laws and standards. In Pakistan, businesses may take many varying forms; they can be established as sole traderships, partnerships and companies, and possess the capacity to adversely affect the human rights of the individuals in their supply chains or in the communities in which they operate. Studies reveal that these various businesses have shown compliance with local laws such as the Harassment of Women at the Workplace Act 2010 and have established inquiry committees to address complaints of harassment. Furthermore, the attainment of human rights standards has also been ensured through the introduction of ‘corporate social respect’ policies whereby companies aim to protect and encourage the enforcement of human rights. However, the concept of BHR increases the responsibility of companies for the protection of human rights and necessitates that businesses establish mechanisms to carry out human rights due diligence in all operations. If done effectively, human rights due diligence is beneficial for businesses in avoiding legal challenges, building competitive advantage, improving engagement with external stakeholders and strengthening their brand and business reputation.
However, presently, Pakistan’s business community appears to have limited understanding of human and labour rights, which impacts the implementation of human rights by corporate entities. The GSP Plus status which establishes a beneficial tax scheme for businesses also requires compliance with 15 human and labour rights conventions due to which businesses in Pakistan must welcome the enforcement of human rights standards within their operations. To this end, business entities must ensure compliance of their own policies with human rights obligations which have been established under domestic law and must establish human rights policy commitments, examples of which can be taken from global companies such as Coke and Telenor which have introduced comprehensive human rights policies.
The prevalent lack of enforcement of human rights has had grave consequences for businesses as well as the economy of Pakistan. In 2013, Walt Disney, a US based company, removed Pakistan from its list of ‘Permitting Sourcing Countries’ due to a lack of safety standards and violations of labour rights. This has had far reaching implications on the garment industry in Pakistan, as the company’s decision stripped Pakistan of $200 million worth of exports in textile products. In the sports manufacturing industry as well, large corporations such as Adidas, Reebok and Puma would have ceased their operations in Pakistan had it not been for the Atlanta Agreement which worked towards the elimination of child labour in the sports industry in Pakistan.
Lastly, for the attainment of Pillar III of the UNGPs, the state and business entities must work together to provide access to effective remedies in case of business-related human rights abuses. The existence of a human rights standard in business activity is only meaningful if there is access to remedy for victims of corporate abuses. States should be able to provide judicial and non-judicial grievance mechanisms with the capacity to adjudicate upon business-related human rights issues. Within Pakistan’s court structure, labour and consumer courts have been established to provide remediation for human rights abuses within the context of business activity. Punjab has 11 such courts, but the situation is more dismal in other provinces such as in Sindh, where only 8 labour courts are active. In Balochistan and Khyber Pakhtunkhwa, only 4 and 5 courts have been established respectively. Furthermore, the state has established specialized tribunals as well, but the functioning of these tribunals is limited and only 8 labour appellate tribunals are operational, which effects the efficiency of the mechanisms of remediation. Pakistan should focus on reducing both legal and procedural barriers against access to justice that prevent victims from presenting their case. This can be done by piercing the corporate veil, cutting down litigation costs and providing prosecutors and relevant agencies with sufficient resources, expertise and support. Redressal mechanisms at the operational level, national level and/or as part of international institutions should be implemented.
Furthermore, factors such as poverty, discrimination, corruption, bribery, injustice and the lack of capacity of courts must also be addressed to ensure that human rights issues within the business context are adequately and effectively addressed and remedied. A major problem with regard to accessing remedies is the abnormal delay in long trials and the general lack of importance attached to human rights principles. It must be ensured that judicial, non-judicial and internal remediation mechanisms within the business have the effect of providing effective remedies to victims of corporate abuse of human rights.
It is important to reiterate that the UNGPs are not a legally binding instrument but are simply an expression of commitment by states for the protection of human rights within the business context. The existing legislation and initiatives established by companies can be seen as the first step towards achieving full compliance with human rights in the business context. Currently, Pakistan is moving in the right direction in aiming to comply with the UNGPs, however, the issues of enforcement which impede the realization of human rights continue to exist. Businesses lack express policy commitments to protect human rights and the existing codes of conduct and CSR policies of the companies also need improvisation in order to include all areas of human rights in business context. Compliance with UNGPs requires the state and businesses domiciled within it to take positive actions for the attainment of human rights protections. The UNGPs provide an exhaustive view of all areas and avenues through which states can improve the protection of individuals against human rights-related business abuses and thus form the basis of the development of any NAP on BHR. Therefore, for Pakistan, the concept of BHR and the Guiding Principles specifically form a comprehensive resource for preventing and remedying the negative impacts that business activities can have on human rights. It presents an opportunity for Pakistan to review existing laws and address the issues of barriers to access of remedies in order to end the abuse of human rights by businesses in the most effective manner which will consequently lead to the economic development of the country.
About the writers: Zoha Shahid and Seemal Hameed are Research Associates at the Research Society of International Law and have been working on developing the first draft of a national action plan on Business and Human Rights as well as a national baseline assessment to ascertain the current standards of human rights in a business context in Pakistan.
The views expressed in this article are those of the authors and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which they might be associated.
