Whose Business is Hurricane Irma? Human Rights Responsibilities of Companies in Times of Disaster – Part I
By Marlies Hesselman and Lottie Lane | m.m.e.hesselman@rug.nl c.l.lane@rug.nl
This series of two blog posts builds on two recent articles by the authors on the human rights responsibilities of private actors during disasters, including companies and NGOs (here and here – open access). The following post addresses whether private companies have human rights responsibilities during disasters, while the second post particularly reflects on recent corporate responses to hurricanes in the Atlantic region.
Boasting the severely destructive hurricanes Harvey, Maria and Irma, the 2017 Atlantic hurricane season revealed deep concerns about (in)adequate human rights protection in situations of natural disasters. It especially revealed the impact of natural disasters on the most vulnerable.
Premature loss of lives and limb, massive damage to homes, property and the economy, the total disruptions of lives, livelihoods, infrastructures and utilities: these matters raise important questions about the adequate protection of human rights prior, during and after disasters. Human rights at stake include the right to life, the right to food, the right to water, the right to health, the right to private and family life and protection of the home, the right to housing, the right to shelter, and the right to property. More rights may be relevant, as is detailed, for example, by the UN’s Inter-Agency Standing Committee.
International human rights law literature and practice has long recognised and explored the linkages between human rights and adequate disaster governance. In particular, it is acknowledged that human rights play a role during all stages of disaster management, meaning in pre-disaster, disaster-proper and post-disaster phases. Human rights do not just require that adequate evacuation and response are ensured as disasters make landfall, but crucially, require beforehand the identification of underlying vulnerabilities of human settlements to extreme weather hazards. A good definition of disasters is provided by the International Federation of the Red Cross.
Hence, effective disaster governance requires States to reduce known disaster risks and vulnerabilities in human settlements and increase the capacity of communities to be prepared, respond and recover. International law knows a variety of hard and soft international agreements that give shape to the protection of populations in times of disaster, including: the ILC Draft Articles on the Protection of Persons in Event of Disasters (2016), the UN Sendai Framework for Disaster Risk Reduction (2015), the New Urban Agenda of UN Habitat III (2016) and the Paris Climate Agreement (2015) - the latter in the sense of ‘climate change adaptation’.
This blog post will not repeat in depth how disaster governance obligations for States emerge from international human rights treaties – this has been discussed elsewhere, including by the present authors (e.g. here). Instead, we focus our attention on the currently still under-addressed role of business actors when it comes to disaster management and human rights protection. This post raises the general question of business responsibility for human rights. In Part 2 of this post we continue by discussing some recent corporate practices in reaction to Hurricanes Irma, Harvey and Maria – are human rights responsibilities at play here? Throughout the posts, we distinguish between responsibilities, which are not considered legally binding, and obligations/duties, which are.
Do businesses have human rights responsibilities?
It is a common understanding that business enterprises have human rights duties/responsibilities under international law, albeit mostly in a ‘soft law’ form (for now), and even if the exact content of these duties/responsibilities is still developing. Arguably, international law currently includes both direct responsibilities and indirect duties for companies.
Indirect duties come about, often in a legally binding manner, through State regulation of corporate conduct at the national level as a result of States’ obligation to ‘protect’ human rights against negative harmful (corporate) behavior by third parties. In short, States may be required under human rights treaties to place (legally binding) protective duties on businesses which will ensure that their activities do not harm human rights.
Additionally, as also explored in our recent articles, the question arises whether States are obliged under human rights law to regulate companies’ behavior to attain positive human rights results. This obligation would arguably derive from States’ obligation to ‘fulfil’ human rights, especially when individuals cannot provide for themselves for reasons beyond their control. Under the International Covenant on Economic, Social and Cultural rights – amongst other treaties – States are required to actively mobilise and allocate ‘maximum available resources’ for full human rights enjoyment. The Committee on Economic, Social and Cultural Rights has affirmed such duties in various General Comments and recently added in its new General Comment on Business and Human Rights that the obligation to fulfil could indeed ‘require the mobilisation of resources by the State, including by enforcing progressive taxation schemes’ and entails ‘seeking business cooperation and support’ or ‘directing the efforts of business entities’ towards implementation of Covenant rights.
Securing positive corporate human rights contributions in times of disaster is pertinent since (as argued in our articles) crucial disaster governance resources or even entire essential infrastructures – electricity, water services, health care facilities, telecom – might be mostly or exclusively in the hands of private actors. This is also recognised in the current draft General Recommendation by the CEDAW Committee on “Gender and DRR in a changing climate”, which amply affirms the need to engage in essential Public-Private Partnerships. (PPPs are also discussed in our articles.) In some cases, private actors may certainly be better placed, economically or geographically, to provide first support when a disaster strikes.
A key example of private actors’ essential contributions to disaster governance is presented by the past and present poor state of the electricity grid in Puerto Rico – part of the United States of America. As a result of Hurricane Maria, the publicly-owned grid has been totally destroyed, along with telecommunication. One month later, about 80% of the Puerto Rican population is still without electricity, resulting in absolutely devastating effects. It is beyond a doubt that private companies – such as Apple, Google, Tesla and others – will be playing a vital role in the immediate and long-term establishment of new (and more resilient) electricity and telecom systems, alongside State actors.
Such close involvement of businesses in the protection of essential interests raises the question of their direct human rights duties/responsibilities. Again, we can distinguish here between companies having ‘negative’ and ‘positive’ duties to protect human rights. Starting with the latter, the existence of direct “duties to fulfil” human rights enjoyment for businesses is a difficult position to defend legally, if not morally, at this point; even if it is effectively recognised that businesses have tremendous positive potential for improving human rights enjoyment, most international instruments on ‘business and human rights’ do not commonly recognise this duty presently. In fact, the so-called “UN Global Compact” is the only international soft law arrangement through which companies have unequivocally affirmed that they ‘should respect and support internationally proclaimed human rights’, including through positive contributions.
Instead, other important documents, such as the OECD Guidelines for Multi-National Enterprises (e.g. Guideline A2) and the seminal global instrument, the 2011 UN Guiding Principles on Business and Human Rights, have skirted the issue in favor of a more palatable and straightforward negative responsibility to do no harm to human rights enjoyment. The UNGPs’ drafter, John Ruggie, added a disclaimer that the UNGPs were restricted to lex lata (the law as it is) as opposed to lex ferenda (the law as it should be). This suggests that positive responsibilities for companies were not so clearly recognised or supported in international law, even if companies ‘may support and promote human rights’ where they can (see Principle 12, Commentary).
Thus, according to the UNGPs, the key direct business responsibility under international human rights law is to ‘respect’ human rights, meaning to ‘avoid infringing on the human rights of others’ and to ‘address adverse human rights impacts with which they are involved’. This requires, per Principle 13, preventing, mitigating and where appropriate remediating human rights harms, while it is recognised that adverse human rights impacts can come about through businesses’ own activities or be directly linked to their operations, products or services by their business relationships. The UNGPs apply to all business enterprises regardless of size, sector, operational context, ownership and structure. Finally, and importantly, Principle 29 states that grievance mechanisms should be in place so that individuals or communities can complain about negative human rights impacts that they experience at the hands of corporate actors.
The second part of this post will discuss these responsibilities in the particular context of Hurricanes Irma, Harvey and Maria.
Marlies Hesselman, LLM, is a Lecturer in International Law and finishing a PhD in international human rights law at the University of Groningen. Marlies’ research interests and publications relate to international disaster law, socio-economic human rights law, business and human rights, energy and climate and sustainable development law.
Lottie Lane, LLM, is a PhD Candidate at the Endowed Chair, Groningen Centre for Law and Governance. Her PhD research deals with the horizontal effect of international human rights from a law and governance perspective. Lottie’s wider research interests and publications include business and human rights, the human rights responsibilities of non-State armed groups and the role of human rights and non-State actors in disaster governance.
