BUSINESS LAW & TAX Human rights not only the duty of states

Pooja Dela & Paula-Ann Novotny Webber Wentzel

Raised expectations that businesses will be proactive and constantly monitor their effectiveness in promoting respect for human rights have arisen in 2023

International human rights law and guiding principles recognise that governments are the primary dutybearers and trustees of the international human rights regime, meaning governments must respect, protect, promote and fulfil human rights and fundamental freedoms in the first instance

However, these frameworks also provide that the responsibility for respecting human rights is a global standard of expected conduct for all business enterprises wherever they operate, thereby imposing a responsibility on corporates/business enterprises to respect human rights

The world’ s greater focus on and understanding of environment, social and governance (ESG) benchmarks has seen business and human rights (BHR) rise up the corporate agenda, make its way into “hard law” in certain jurisdictions and raise the stakes of good corporate citizenship BHR represents the tangible relationship between conflict with the international human rights law that binds them They have to actively foster a closer alignment with the values of BHR culture and constantly revisit this as the context for their operational landscape changes commercial operations and the human rights of their stakeholders It is both inward and outward looking and requires proactive and continuous attention It is not enough for businesses to ensure that they are not in

Businesses thus have to take ownership of, and commit to, the need to respect human rights They need to act on identifying, preventing, mitigating and remediating negative human rights efects in their sectors and across the broader value chain, by putting controls and frameworks in place Controls include human rights due diligence (HRDD) and human rights impact assessments (HRIA), which are governed by the UN’ s Guiding Principles on Human Rights the internationally accepted framework for enhancing BHR standards and practice

An example of the strategic integration of BHR practice into operational business models is Volkswagen’ s recent announcement of its plans to invest directly from the mines that source the raw materials for battery cells used in electric vehicles Its motives are not only to bring down the cost of and meet increasing demand for battery cells, but also to ensure greater control over parts of the supply chain traditionally left to third parties

But where do corporates start? The UN guiding principles as the first global standard for preventing and addressing the risk of adverse impacts on human rights linked to business activity require business enterprises to (a) avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; and (b) seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed

They should do this by carrying out HRDD, encompassing four broad steps under principle 17 of the UN

Viewpoint Africa

guiding principles, with reference to the internationally recognised human rights enshrined in key frameworks such as the International Bill of Rights (comprising the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights); the African Charter on Human and Peoples’ Rights; and the International Labour Organisation’ s Declaration on Fundamental Principles and Rights at Work

Human rights due diligence is, however, a continuous risk management process, and must be tailored to each organisation within the context of country-, company- and project-specific nuances

And given the links between ESG and BHR in driving integrated operational strategies and the consideration of sustainability-related impacts, risks, and opportunities at the same level as corporate objectives it is crucial to understand that the human rights framework is not something to be considered in a business’ s operations, but rather its operations in entirety need to be located within the human rights framework

The values of human rights culture must come to permeate every facet of the business’ s identity, and this can only be achieved through robust and proactive strategic ESG and BHR plans, policies and controls Appreciating this mindset change will support the creation of a business that will be sustainable, resilient in the future and create long-term, shared value for its stakeholders

It will also meet the increasing demands and scrutiny of stakeholders particularly in investment spaces where we are experiencing that large-scale investors require HRDD from entities before forging any commercial relationship

This scrutiny is often more stringent in countries regarded as being high risk those where significant incidences of human rights violations have been reported