Companies operating in multiple jurisdictions cannot address conflicts between international human rights standards and national law with a 'tick box' exercise, general counsel have been told.
The UN Guiding Principles on Business and Human Rights expect businesses to respect human rights wherever they operate. However, companies face eight types of conflict, research by the British Institute of International and Comparative Law (BIICL), a legal research charity, has found.
Conflicts include information about national law not being publicly available, inconsistent laws in different jurisdictions and no relevant national enforcement. However, there is no 'one size fits all' approach to addressing these conflicts, the institute says in a report, 'When national law conflicts with international human standards: recommendations for business'.
The report was discussed under the Chatham House rule at an event in London this week. GCs were told that one major company carried out a human rights assessment, which identified three key issues the company needed to grapple with: the right to privacy; the right to freedom of expression; and the right to be free from discrimination. Remote working enabled female staff to work on projects in jurisdictions where women's rights to work was an issue.
The report highlights several ways a company can adhere to domestic legal requirements while respecting international human rights standards, such as requiring suppliers to inform the company when a conflict arises and justifying higher standards with 'home' state law.
Companies are recommended to individually and collectively publicly express their views. 'For example, during the Sochi Olympics, Google displayed a rainbow-flag doodle in support of LGBTI rights, described in the press as a "not-so-subtle pre-Olympics shot at Russia's less-than-stellar record on gay rights",' the report states.
Human rights language in internal and external processes can be helpful. The report states: 'One company representative stated that although self-criticism in public reporting is "nerve-wracking" for legal counsel, stakeholders tend to accept such self-criticism as a demonstration that "trends are in the right direction". Such a transparent approach can expose a company to reputational and litigation risks. However, HRDD can mitigate these risks. For example, Nestle was successful in defending a claim under California's Transparency in Supply Chains Act, as it had been transparent in its actions and undertaken due diligence under the provisions of that law.'
Some companies interviewed for the study said they exited jurisdictions based on human rights reasons. However, the report states: 'When the company believes that it contributes to the human rights of its local market by supplying basic needs, such as telecommunication services, fortified food or low income financial services, this may influence its decision to stay and exercise leverage.'