The business world is preparing itself for the celebration of the tenth anniversary of the Guiding Principles on Business and Human Rights (“the United Nations Guiding Principles”), this june 2021.
During today’s uncertain times, when the world is struggling with a situation that could not have been predicted even with the best of planning, COVID-19, the consequences on businesses are already not only visible but are becoming more and more difficult to manage and to control.
It seems therefore important to assess where companies incorporated under Burundian Law and/or foreign companies operating on Burundian soil stand with regards to the particular context of the decade of the United Nations Guiding Principles and COVID-19. Before one can assess this, one needs necessarily to be informed.
What is the framework of reference?
The framework of reference is global.
The United Nations Guiding Principles on Business and Human Rights were adopted by the UN Human Rights Council through Resolution number 17/4 of 16 June 2011. These principles constitute a global standard of practice expected of both states and companies and are based on three pillars: “Protect, Respect and Remedy“.
The United Nations Guiding Principles are a total of thirty-one (31). These Guiding Principles do not constitute new international legally binging norms but rather concern all legally binding applicable norms enacted by different states.
What do we mean by “all applicable laws”?
In the particular context of Burundi: the Constitution; any Covenant ratified by the country; any law; any ordinance; any decree; any regulation; and so forth.
The United Nations Guiding Principles are grounded in the recognition of: (i) States’ existing obligations to respect, protect and fulfill human rights and fundamental freedoms; (ii) The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; (iii) The need for rights and obligations to be matched with appropriate and effective remedies when breached.
What are the key roles of states?
The United Nations Guiding Principles place special emphasis on the key obligation of states to protect. The main role of the state implies taking appropriate measures and orientations; a roadmap for the management of adverse human rights impact and offering business enterprises with a certain number of benchmarks to assess respect for the rule of law.
What human right(s) are we talking about? Every single right, established and recognized by any International Covenant, ratified by Burundi is a human right. The state intervenes by ensuring the definition of good policy, the promotion of the rule of law, protecting human rights, legislation conforming to international human rights treaties, oversight of the effective implementation of domestic laws and regulations, and providing adequate measures for redressing rights violations.
For instance, in Burundi, the enactment of a law on private and public companies, the establishment of Commercial Courts, as well as courts of appeal, are among measures taken by the country to ensure the protection of human rights. These different examples show how the State is not only ensuring a strong business climate, but also monitors the respect of said measures.
What about the corporate responsibility to respect human rights?
Corporate responsibility to respect human rights is a global standard of expected conduct applicable to every single right recognized on a national and international level.
The United Nations Guiding Principles take into account the commercial activities of companies, private sector actors, and their potential influence (positive or negative) on the enjoyment of basic human rights.
Actors in the private sector are likely to influence the basic human rights of a company’s clients, the employees, the workers on the supply chain management, and communities that gravitate around the company’s activities.
The corporate responsibility to respect human rights is neither optional nor is it limited to the respect of national laws only. It is a worldwide standard of conduct, expected and applicable to all business enterprises and in all circumstances, regardless of their sector, their legal form, their size, and their structure.
What is the connection between states and business enterprises?
The United Nations Guiding Principles require rigorous measures to be taken by the state for both companies incorporated under the laws of Burundi and foreign companies operating in Burundi, whether private, and/or public.
Rigorous measures may be translated as the necessity for business enterprises to carry out human rights due diligence. The due diligence is a process, in several phases, which consists of enterprises proactively managing the potential and actual adverse human rights impacts with which they are involved.
Business enterprises must in turn not only be aware of the human rights relating to their activities, but moreover put in place internal policies that apply to these rights such as including due diligence within broader enterprise risk management systems.
Enterprises may choose to make public commitments to respect basic human rights as one of the many options.
Business and human rights and Covid-19?
The global health crisis following the Covid-19 pandemic should not exempt States from their duty to protect rights to their fullest. Similarly, business enterprises are held to the same standard. Corporate responsibility remains intact in uncertain, unforeseen times, such as Covid-19. Both states and business enterprises should therefore ensure appropriate steps are taken to guarantee the effective remedy of business-related human rights abuses.
It is in this context that this series will shine the light on the following:
- In the context of the laws and regulations of Burundi, what is the binding component guaranteeing respect for human rights as understood in the United Nations Guiding Principles?
- What are the means of control exercised by states?
- What have been the consequences following the Covid-19 pandemic in regards to the United Nations Guiding Principles in a country like Burundi?