JOINT COMMITTEE ON FOREIGN AFFAIRS (Sub-Committee on Human Rights) díospóireacht -
Tuesday, 20 May 2008

International Business and Human Rights: Discussion.

Chairman

The discussion today is on the role of the private sector in the promotion and protection of human rights around the globe. Recent initiatives in this field, such as the ethical globalisation initiative developed by former President Mary Robinson and the United Nations Global Compact initiative, have resulted in major progress being made in the field of human rights vis-à-vis the international business community. I hope Deputy Michael Higgins forgives me for using one of my party’s slogans — a lot has been done but there is a lot more to do — to describe the position.

The presentations focus on two initiatives by the United Nations focusing on business and human rights and the role Ireland can play in ensuring the initiatives' success. In this regard, it is with great pleasure that I welcome Mr. Mike Davis from Global Witness and Ms Olive Moore and Mr. Mark Cumming from Trócaire. Global Witness is a non-governmental organisation that seeks to expose the corrupt exploitation of natural resources around the world and drives campaigns to end impunity, resources linked conflict and human rights and environmental abuses. It has been working closely in this area with Trócaire, focusing on extractive industries such as oil, gas, mining and logging. The sub-committee will hear evidence of the links between the exploitation of natural resources and the abuse of human rights.

Before we commence, I advise witnesses that whereas Members of the Houses enjoy absolute privilege in respect of utterances made in committee, witnesses do not enjoy absolute privilege. Accordingly, caution should be exercised, particularly with regard to references of a personal nature.

Deputy M. J. Nolan took the Chair.

Acting Chairman (Deputy M. J. Nolan)

I ask Ms Moore to commence the presentation.

Ms Olive Moore

We thank the sub-committee for the opportunity to make this presentation. The year 2008 marks the 60th anniversary of the signing of the Universal Declaration of Human Rights. The declaration asserts that human rights are the common standard for all organs of society. Trócaire believes the private sector is a significant and influential organ of society. Much attention has been paid recently to the role the private sector can play in promoting and protecting human rights. The Chairman noted former President Mary Robinson's work on the ethical globalisation initiative and referred to the UN Global Compact. Many positive developments have taken place.

Trócaire and its partners have engaged in this area for several years with a focus on extractive industries, particularly oil, gas, mining and logging. Our experience has shown that when these industries are not managed appropriately and regulatory and accountability mechanisms are absent, it may result in a perpetuation of human rights violations and poverty cycles, corruption and increased conflict.

This presentation will focus on two initiatives in the United Nations system. My colleague, Mr. Mark Cumming, will discuss the first of these, the mandate of the special representative of the UN Secretary General on business and human rights which will be discussed at the Human Rights Council in the coming weeks. My colleague, Mr. Mike Davis, from Global Witness, a partner of Trócaire, will then discuss the possibility of the United Nations producing a report on natural resources and conflict.

Mr. Mark Cumming

For some years at an international level states have been discussing the need to hold business to account to internationally agreed human rights standards and how best to achieve this objective. In 2005, the United Nations Commission on Human Rights, UNCHR, created the post of special representative of the Secretary General, SRSG, whose mandate was to assist the Human Rights Council in determining a strategic policy framework for better managing business and human rights challenges. The post holder, Mr. John Ruggie, has published his final report which he will present to the council in June.

In advance of the final report, CIDSE, the network of European Catholic development agencies, of which Trócaire is a member, prepared a submission to Mr. Ruggie. The central thrust of CIDSE's submission is that neither voluntary corporate social responsibility initiatives nor regulation of countries hosting foreign companies is sufficient to ensure business respects the human rights of local populations. There remains a lack of national and international safeguards to prevent business enterprises from becoming complicit in or tacitly benefiting from human rights violations. The CIDSE report makes a number of practical recommendations on company law reform, strengthening OECD mechanisms, establishing an international advisory centre and creating the post of international ombudsman. The Government must take a proactive role in investigating these and other initiatives.

Trócaire welcomes several elements of Mr. Ruggie's final report and was encouraged to note some coherence between the report and CIDSE's analysis and recommendations. These include the identification of a "governance gap" between "the scope and impact of economic forces and actors and the capacity of societies to manage their adverse consequences" and the implicit understanding that this gap will not be closed by a "business as usual" approach epitomised by voluntary CSR initiatives.

The recognition that developing country governments often lack the institutional capacity or the will to regulate multinational companies was in line with a central tenet of the CIDSE submission, although the policy consequences resulting from this were not spelled out as clearly as we would have liked. An emphasis on the damage caused by policy incoherence was helpful as well as the recommendation that: "States should strengthen judicial capacity to hear complaints and enforce remedies against all corporations operating or based in their territory [and] states should address obstacles to access to justice, including for foreign plaintiffs". We felt this was very positive.

With the exception of the chapter on access to remedies, which mentioned the need for governments to provide better access to justice and a global ombudsman, the report was rather light on recommendations, with Professor Ruggie stressing that the "discussion is not intended to insist on specific legislative or other policy actions". Although disappointing, this underscores the need for a new mandate to allow the special representative to explore potential recommendations in more detail.

This brings us to the role the Government can play in ensuring that this process continues. During its role as President of the European Union in 2004, Ireland was instrumental in initiating the process leading to the establishment of the mandate for the special representative. Ireland holds an impressive track record on human rights in the UN system and this is an opportunity to further that record. Trócaire is calling on the Government to lend its weight, both in the EU and through our bilateral relations, to ensure that members of the Human Rights Council support the renewal of the mandate of the special representative and specifically that they are mandated to consult groups in the developing world and to examine specific instances of alleged corporate abuse in order to inform their analysis.

Mr. Mike Davis

I thank the Chairman for this opportunity to make a submission to the sub-committee. I would like to build on the presentation by my Trócaire colleagues by talking about a particular aspect of the business and human rights debate, namely, the relationship between natural resource exploitation and armed conflict.

Since the Cold War we have seen a sharp increase in conflicts fuelled by the trade in natural resources. Armed groups in countries such as Angola, Cambodia, Democratic Republic of Congo, Liberia, Sierra Leone and Ivory Coast have sustained their activities through exploitation and trade of various natural resources, including diamonds, minerals, timber and cocoa. This has perpetuated wars which have cost millions of lives.

To be more specific, the outcomes of these resource-fuelled conflicts typically include exacerbation of threats to regional peace and security. That is particularly apt when one looks at what happened in west Africa where one resource-fuelled war spilled into another country and then comes back to affect a third. I am referring to the pattern of conflicts from Liberia to Sierra Leone and ultimately some of the same combatants ending up in the Ivory Coast. There were very serious human rights abuses amounting to crimes under international humanitarian law.

In addition, these types of conflict typically inflict very serious damage on the infrastructure and environments of the countries concerned, thus making the prospects for a full peaceful and sustainable recovery much more difficult. There is also a significant financial cost, which is not necessarily the most appropriate gauge of wars which have caused such high numbers of casualties. However, one basic quantitative way of looking at this is if one considers the cost in terms of peacekeeping operations which are required thereafter. In three of the countries I mentioned, Sierra Leone, Liberia and Democratic Republic of Congo, peacekeeping operations under the UN mantle have cost collectively €12 billion. In all the cases I have mentioned, the link between natural-resource exploitation on the one hand, and armed conflict and human rights abuses on the other, have been fought with the help of certain transnational companies. The contribution of these firms has been to plug what are essentially national and regional conflicts into a global marketplace.

The problematic role of certain unscrupulous private sector operators does not necessarily end when peace breaks out. In post-war Liberia for example, the Mittal steel company, now known as ArcelorMittal, obtained a concession from a corrupt unelected transitional Government which effectively allowed it to take control of all the country's valuable iron ore deposits. The contract enabled Mittal to set a price for the ore and thereby the amount of tax it would pay. It also allowed the company to take control of key infrastructure, including Liberia's only port and railway. It was only after Global Witness publicly exposed the inequitable nature of this contract that Mittal agreed to renegotiate it with a new democratically-elected government.

These scenarios arise because of the lack of a coherent approach from international institutions to business and human rights in general and natural resources and conflict in particular. My Trócaire colleagues have already outlined the importance of Professor John Ruggie's process in filling this gap. We heartily agree with them and one of my colleagues has been seconded to Professor Ruggie's team to help develop the thinking which is going into the paper just published.

In the remainder of the presentation, I will focus on what the UN should be doing via other channels to address the natural resource-conflict nexus. I will end with a few suggestions on how Ireland, in particular, could contribute.

The relationship between natural resources and conflict first came to public prominence in Europe and North America through the blood or conflict diamond phenomenon which came to light in the late 1990s. Work by Global Witness NGOs and other NGOs and UN investigators fed into a process that culminated in the establishment of the Kimberley process, which is a tripartite mechanism involving civil society, industry and government to prevent so-called conflict diamonds from entering the global supply chain.

Over the same period, the UN Security Council made increasing use of sanctions targeting natural resources being traded in a way which fuels conflict. These sanctions have covered some of the countries I already mentioned, including Cambodia, Angola, Sierra Leone, Liberia and Ivory Coast. The Security Council established panels of experts to monitor implementation of these sanctions. That has been quite effective in some cases. In one prominent case, work by the expert panel appointed by the Security Council and civil society documenting violations of Security Council sanctions on arms to Liberia, culminated in the prosecution in the Netherlands of Guus van Kouwenhoven, a Dutch national.

UN bodies have, in some cases, begun to factor the natural resource conflict into their post conflict work. One example is the UNMIL peacekeeping operation in Liberia, in which Irish troops have played a significant role. For the first time, a UN peacekeeping mission had a mandate that explicitly encompassed assisting the national government in restoring proper administration of natural resources. That was so important because this was a very fragile political situation, where a country coming out of a resource-fuelled conflict was aware that if the parties were not happy with the terms of the peace they could easily restart their war by seizing key natural resources, such as timber concessions, diamond deposits or rubber plantations.

UN efforts to tackle the links between natural resource exploitation and conflict are generally good as far as they go, but ultimately they are usually too little and very often much too late. These gaps in the international response are increasingly recognised by UN member states and UN agencies. Last June, during its Presidency of the UN Security Council, Belgium organised the first ever debate on the subject of natural resources and conflict. This produced a Presidential statement which recognised the links and the need for the UN to address them more effectively.

How can we build on this? Among those states most interested in pursuing this issue there is a general consensus that the most useful next step would be a report by the UN Secretary General. Such reports have a good track record of identifying and proposing solutions to institutional shortcomings in the UN system. Some of the benefits of such a report might include clarification of what constitutes a "conflict resource", a resource that is being used to exacerbate conflict. This is important because the UN needs a basis for identifying this type of phenomenon when it occurs so that it can respond quickly.

We think such a report would help identify lessons that could be learned from past or existing initiatives to combat the problem, not only in the UN but also outside, such as the Kimberley process. We also think the report would help to strengthen the mechanisms which the UN already deploys, such as targeted sanctions, and to better co-ordinate existing work by UN agencies. Clearly, a report is part of the process. It is not an end in itself. However, it would be an important step forward to get us away from the current situation which is characterised by inadequate understanding of the problem and inconsistent, ad hoc responses.

Taking this forward at the United Nations requires collective action rather than one or two countries going it alone. Nevertheless, it is our view that Ireland is one of the EU states best placed to speak to this issue with real credibility. First, Ireland is one of the few western European countries without a history of imperialism and resource theft in the developing world. Second, Ireland has a demonstrated expertise in resolving apparently intractable conflicts, which it is now using to assist conflict affected regions in other parts of the world. Third, Ireland has been recognised for its contribution to peacekeeping operations in Liberia, one of the countries most severely ravaged by a resource-fuelled war. We, therefore, believe Ireland could make an important contribution to ensuring that this natural-resource conflict nexus is effectively addressed. As a first step, we suggest that the Irish Government joins the Belgian-led coalition of countries working to advance the issue at the UN and lends its full support to calls for a report by the Secretary General.

Deputy Michael D. Higgins

I welcome the very valuable presentation and thank Trócaire and Global Witness. The presentation is useful and one to which we must return to decide on the strategies we might take.

Reference has been made to some institutional initiatives. I am at a loss to identify any great achievements of the ethical globalisation movement, to which reference has been made. It reminds me uncomfortably — perhaps I am wrong — of the World Business Council for Sustainable Development, which I encountered for the first time when it was present at the United Nations conference on environment and development in Rio de Janeiro. The council had no difficulty in signing up to the concept of sustainability. The chair was the vice president of Fiat and the vice chair was the managing director of Nescafé. They were accorded full state rights at the UN conference, even though many small atolls and others in the Pacific had no representation at the conference.

I have the World Business Council for Sustainable Development in my mind as I hear a discussion on ethical globalisation. Is this merely an appeal to guilt for the consequences of globalisation or is it a meaningful strategy that would intervene in the structure of exploitation carried out in the name of globalisation? Those involved in the initiative have not clarified that since it came into being.

I am interested in the connection between human rights and international business. I support most of what is being proposed. At one stage in the history of the United Nations institutional structure, a specific institution dealt with transnational issues. There is a reference to it somewhere about 1979, which I believe I have in my notes. It was allowed to wither away. To bring discipline into behaviour and ensure human rights is to make a connection which is not there between the general human rights, to which Ms Moore referred, and the two branches of civil and political rights and economic, social and cultural rights. One is left with the difficulty of finding the right to development in that structure. Is there a right to development and how would it come about? We are short of that in one government's White Paper after another. The Norwegian White Paper goes very far but stops short of going the full distance.

I praise and welcome the work of the organisations that have come to see us but I see a general failure in the atmosphere surrounding the vindication of human rights in the international economic sphere. In today's edition of The Irish Times there is an illustration of a fundamentally mistaken view held by Professor Paul Collier of Oxford in addressing the food crisis in Africa. The countries where agriculture increased in Africa between 2000 and 2005 are mainly in west Africa and 80% of the increase was by people who are working with a hoe on very small inhospitable pieces of land.

Following the disasters in 2007, the World Bank acknowledged that it has neglected agriculture. Professor Collier and those like him advocate a massive investment in large-scale agricultural production, which would immediately move into competition with traded agricultural products. Significantly and typically of that school of economics, Professor Collier does not refer to storage, refrigeration or market possibilities which might be grown out of micro-credit and seed programmes. This is part of a mistaken analysis. I am trying to identify the distance between that model and those who are talking about ethical globalisation.

How does what has been described to us by those who are making a contribution come into being? It was confronted, to some extent, in the atmosphere around Doha and, particularly, in the WTO talks. The European Union has circumvented this in its economic partnership agreements and, more globally, in its free trade agreements. In March 2007 the WTO had notified to it just short of 200 free trade agreements, 84 of which were concluded, 57 were under negotiation and the rest proposed. Everything that would work against the people who were on the receiving end in the south is contained in those. In other words, everything that was defeated in the WTO negotiations can be got, and much more, through free trade agreements.

The free trade agreements which are negotiated on a bilateral basis by major countries — so that I can appear to be even handed I mention China, the European Union and so forth — have a heavy component of companies referred to in the footnotes to the document, The Sinews of War. They are all in there. We may pray for their conversion or hope for an outbreak of ethics in the corporate sector. However, real vigilance which will come through institutional reform and the control of transnational corporation is the only way to go. The renewal of the mandate of the special representative of the Secretary General is valuable as a step. The witnesses are right in noting the overlap between the report of the special representative and their valuable work.

I am sorry to appear pessimistic but I must describe the situation as I see it and know it. This sub-committee has yet to deal with the debate about food security in Africa. It is not a case of an inefficient Africa being unable to feed its people, or of it being so overpopulated that it cannot handle it. There are issues in countries such as Malawi where population control is a factor, but it differs. To add to the presentation to some extent, there has been a massive increase in the production of oil in two places that is very significant. In Nigeria there has been a massive increase in total output of oil, yet it has fallen two full places in the UNDP list of countries. More oil has been produced but the people have become poorer. Equally, there has been a massive increase in production of oil from Russia, but once again the distribution effects on the Russian population is that the poverty indices have risen. We see Russian and Thai oligarchs buying soccer teams and talking about the beautiful game. I am president of a soccer club, but my point is that they have had no difficulty in getting the highest kind of social acceptability as celebrities in the western world.

I could say a great deal more but I do not want to take up too much time. I hope we will make progress. It is sometimes said that we need to combine human rights and development. I strongly subscribe to that. We had a presentation not so long ago at the general committee in which it was claimed that there were no people to take up the posts. Nothing is further from the truth. We produce hundreds of development graduates and post-graduates, and hundreds in the human rights area, and they cannot find positions. I want to report progress in that in my discussions with the new Minister for Foreign Affairs and the previous one both were amenable to doing something to try to arrive at a position where people will get experience. However, there is no evidence of the connection between development and human rights. There is not much evidence that the different international bodies and other bodies and NGOs are showing any great commitment to that connection. They are sometimes moving some of the NGOs away from each other, specialising in the symptoms of the victim rather on the nature of the hurt in the world. There is very little real economics taking place in terms of the generation of models working through the people such as Amartya Sen's model and the different microcredit models that have come from Bangladesh and elsewhere.

I am sorry for having gone on, Chairman, but I wanted to try to set a context in which one might receive these very fine reports. I want to see a way in which we can drive this discussion on to some point of achievement.

Senator Mark Daly

I will be briefer than my colleague, Deputy Higgins, although any time he speaks it is an education to listen. I do not mind how long he speaks because I always learn something.

I apologise for being unable to attend the entire meeting. I am not a fan of reports because we can have too many. However, perhaps this committee could bring to the Joint Committee on Foreign Affairs a proposal that Ireland should support the case being made by our Belgian colleagues for a UN Secretary General's report on natural resources and conflict.

Chairman

I have no problem with the Senator's suggestion. We were going to bring it to the Minister's attention anyway. It is a good proposal.

Deputy Michael D. Higgins

We should also ask that the Irish Government construct a more active policy in seeking support for the Irish candidate for the post of High Commissioner for Human Rights.

Chairman

I will leave it to the delegation, to Mr. Davis, Mr. Cumming and Ms Moore, to decide how they would like to respond to the issues raised.

Ms Olive Moore

I thank Senator Daly and Deputy Higgins. Their analyses point to some of the challenges Trócaire and its partners face and how it situates this debate within much bigger issues of trade, aid, policy coherence and so on. This understanding of the whole issue of the right to development is particularly welcome. That is fundamental to Trócaire's perspective on this. This is why we wish to pursue these issues from a human rights perspective and why it is in the human rights council and the UN General Assembly that we see this process best situated. In terms of the right to development, Trócaire is a rights based organisation. We very much welcome that the right to development has been pursued again in the UN millennium development goals and see all of our work as situate within this context. I will hand over to my colleague to address some of the issues around the particularities.

Mr. Mark Cumming

I will make two brief points. Deputy Higgins asked about the World Business Council for Sustainable Development and its true motivation. Without going into the specifics, an issue we would raise, and that we have pushed very much in our submission to Mr. Ruggie, and the committee has equivocated a bit on it, is the question of voluntary CSR initiatives. Our feeling is that if business just stays there it opens itself to accusations of being concerned only about reputational issues and seeking to mitigate or reduce any harmful publicity that comes its way. In his report the special representative refers to the myriad of initiatives but there is no sense of any cumulative impact. Unfortunately, he does not go that extra step to drive the discussion forward. Our sense is that he is being political, that he is hoping to achieve a dynamic where everybody stays at the table and that if he had gone too far forward in seeking some manner of strong international mechanisms the whole thing would have been shelved. One takes the opportunities that are there. There is an expectation that the mandate will be renewed, and there seems to be a quid pro quo that ties in with the report being somewhat light on recommendations. What we hope is that this committee will take it on board that Ireland will use whatever influence it can to ensure that his new mandate specifically includes a reference to touching base with real life stories, real life case studies of what is going on in the global south, so that what the special representative presents is not simply in regard to intellectual lives or abstractions of what might be useful.

The special representative highlights in his report the absence of complaint mechanisms within many of the CSR codes of conduct. He refers to the possibility of putting one in place, but such a proposition seems surreal when one reads the details of particular abuses that have taken place. Hopefully, it is a process and we will try to drive the discussion forward. What we need to do is to expose the UN system, up close and personal, to some of what is happening on the ground so that it is not simply hearing it through the various filters, as is happening today.

Deputy Michael D. Higgins

Mr. Davis may be able to respond on what may be only a small point. The ratification of the United Nations Convention against Corruption is in the White Paper on development. It is also in the programme for Government. I am not making a party political point because the ratification of the convention is important. Two countries in Europe have ratified it so far. At the same time, because the discussion is bogged down in terms of the corruption of significant African leaders, these reports refer to the Publish What You Pay campaign. There is not, at the political level in Europe, a commitment to ratify the UN Convention against Corruption. The weakness of the voluntary mechanisms is illustrated by the suggested alternative OECD codes of practice. I am one who does not give tuppence for this. I am being blunt. It is a very poor substitute for any kind of legal, justiciable or enforceable measure. That is why it must be a political campaign across Europe, not party political, to achieve ratification of significant UN instruments. If, for example, the role of the special representative of the Secretary General is renewed, strengthened with a better mandate, we may make our way back to having an institutional mechanism within the structure of the United Nations which would get somewhere. However, one needs an enforceable instrument to be able to impose discipline on people who have more or less said they can ride roughshod over others. We have examples in companies such as Shell and others which mock the parliamentary process and also abuse it but we had better not say much more about that.

Mr. Mike Davis

I want to make two or three brief comments. First, I thank Deputy Higgins and Senator Daly for their responses. With respect to what Deputy Higgins said, I can only echo the comments of my colleagues. Deputy Higgins highlights the wider context and the significant array of challenges to having traction on these issues. Following on from this, I note a point to which the Deputy alluded and to which I did not refer in my presentation — the frequent correlation between very high natural resource wealth, particularly oil and gas, and state failure. What the Deputy refers to is part of the same cycle I tried to sketch in my presentation. That is why one of the things we think might be valuable about the United Nations taking another look at this issue is not just how to take natural resources out of conflicts — that is key for very fundamental reasons to do with peace and security and protection of civilians — but also how to ensure, after the conflict is over, that we get those government structures in place quickly which will make those rich natural resources a peace asset rather than a source of more conflict or political instability down the line. I completely agree with the Deputy. I note his comment in regard to football teams which I also echo.

We will certainly take up the Deputy's comment in regard to the UN institution. We have been talking a lot to delegations at the United Nations. I recently had a meeting with the Irish delegation in New York, among others. We have been advised that the best way of getting one of the Secretary General's reports on this issue may be through a resolution from the General Assembly. There may be other ways of doing it, other UN bodies which may be able to make that call which could result in a report being commissioned.

My last comment which is more a response to Senator Daly is that I completely agree with him in regard to reports. Ours is a campaigning NGO. We are, by definition, extremely impatient. We are making this call — the same applies to my Trócaire colleagues — with regard to the Ruggie mandate, I guess through a pragmatic acknowledgement that in UN circles wheels turn slowly and we have to use the system a little. If we were not convinced that a report, a process vehicle, was the only way forward from here, we would definitely be coming to the committee asking for something that sounded a little more exciting. However, our view, based on a lot of advice, is that that is the next step to have traction on the issue.

Chairman

I apologise for the disruption during the meeting owing to a division in the Seanad which is outside the control of the sub-committee.

From what has transpired, I understand Ireland has a significant role to play in the protection of human rights. The sub-committee will take on board the recommendation that Ireland join in and pursue the motion that has been agreed. We also intend to pursue it with the Minister for Foreign Affairs and the Joint Committee on Foreign Affairs. I thank Ms Moore and Mr. Cumming from Trócaire and Mr. Davis from Global Witness for attending and their informative presentations. They should feel free to return to the sub-committee at any time. If they feel an update or information is relevant to the sub-committee, they may write to the clerk to the sub-committee and their communication will be circulated to members. I wish Trócaire and Global Witness continued success.