NSA: Human Rights Impact Reportby Krishna Kanth Reddy

The main task of this report has been to identify the positive and negative impacts on

human rights of the ever more diverse variety of NSAs who, directly or indirectly, play

an important role in influencing the policies of states and international institutions and

shaping global governance.

Our approach to NSAs has been an inclusive one,taking into account also the influence

of actors created by states.Tried to be shown is how each of a selected vertical group-

ings of NSAs has both positive and negative impacts when measured against the the-

matic horizontal human rights selected for analysis. For example, identified are positive

human rights impacts of businesses in creating opportunities for individuals to find em-

ployment, have a stable income and counteract child poverty. Financial services compa-

nies can also have positive impacts when they help to provide resources for the estab-

lishment of small businesses in indigenous communities or fund projects which help se-

cure the right to food. However, IFIs, including the WB, IMF etc., do not necessarily re-

gard human rights as part of their core mandate. They have established complaints

mechanisms that are lacking in independence and accountability and pursued policy

agendas that may, directly or indirectly, lead to a weakening of human rights protection.

Conversely, Despite the various positive impacts,businesses are responsible for myriad

human rights violations. We have identified key sectors, such as mining, sports goods

and readymade garment production, as areas where, for example, labour rights and the

rights of children are severely violated. continuing to do business with those who have

committed violations despite their professed commitment to CSR.Through this system-

atic mapping and consideration, positive contributions of NSAs can be harnessed and

rewarded, while adverse impacts are prevented or mitigated. In those cases where

NSAs may be responsible for human rights violations, we would be motivated to identify

more effective mechanisms through which these actors can be held accountable within

a multilateral framework of human rights.

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Non -state actors in the International legal system

Definition of non-state actors

Here we seek to identify the complications of accommodating NSA’s as defined in the

international human rights system for the purposes of protecting and promoting human

rights and also trying to hold NSA’s accountable for negative human rights impacts, thus

acting as a reference point for the same.

Our current understanding about the concept of ‘non-state actor’ is derived from political

science and sociology and the notion of NSA may encompass almost every actor in the

society functioning autonomously and semi-autonomously from states. The problematic

nature of NSA has resulted in several contradictory attempts to offer a unified definition

in scholarly literature. For the purposes of this report, a wide inclusive approach to

defining NSAs is taken, to include all autonomous or semi-autonomous actors – includ-

ing organizations, civil society movements and individuals, at transnational, national

and/or sub-national levels, whose activities have, directly or indirectly, impacts on hu-

man rights. But also this wide conception of NSA activity, including, for example, the

media and the Internet,will form part of the context for our analysis.

Measuring the human rights impacts of non-state actors

Another important point to note at the outset that there are some significant obstacles to

measuring the human rights impacts of NSAs -

First, there is no universally accepted method of measuring human rights impacts, nor is

there a generally accepted framework on how human rights impact assessment should

be carried out.

Second, most of the established mechanisms for measuring both qualitative and quanti-

tative impacts on human rights assume that the reference point is the state as an actor.

Third, measuring the overall human rights impacts of selected NSAs is an even more

complex issue given the potential for short, intermediate and long-term impacts of their

activities.

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Our task in this report is to assess both positive and negative human rights impacts,

while there is no one set of human rights indicators which would be universally applica-

ble as they vary according to subjects and areas covered, nevertheless, the contextual

framework for human rights assessment relating to state activities provides a useful ref-

erence point. This framework has been developed by the UN human rights treaty bodies

and refers to the obligation of states to respect, protect and fulfill human rights.It differ-

entiates between universally relevant indicators and specific indicators in the context of

state activities.

Three types of indicators as identified by the OHCHR,

First, structural indicators to be applied both on the ratification and adoption of interna-

tional legal instruments and on the existence of basic institutional mechanisms deemed

necessary for a realization of human rights. As such, structural indicators relate to the

‘respect’ dimension of states’ obligations.

Second, process indicators, based on national policies and strategies, refer to all such

measures that a state is willing to take in order to give effect to its commitments to attain

outcomes identified with the realisation of a given right. Process indicators, therefore,

relate to the ‘protect’ dimension of states’ obligations.

Third, outcome indicators capture attainments, individual and collective, that reflect the

status of realisation of human rights in a given context. But contrary to the structural and

process indicators, this aspect reflects also the importance of the measure of enjoyment

of human rights. Outcome indicators relate to the ‘fulfill’ obligation of states’ obligations.

We have positively identified four broad groupings of NSAs for our mapping analysis:

(1) Businesses, including TNCs and financial services actors;

(2) CSOs and NGOs;

(3)IFIs; and

(4) HRDs.

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(though only expanding further briefly on the two namely- Businesses and NGO’s )

Inevitably, these groupings do not include all NSAs but upholds a wide conception of

NSA activity in general.

(1) Business, financial services and transnational corporations

Positive Human rights impacts:

Positive human rights impacts of business, TNCs, indigenous SMEs and third-party

related business enterprises, such as suppliers, include the creation of employment

opportunities, the use of equipment and facilities, the supply, manufacture and con-

sumption of materials, the import and export of goods, the provision of services, in-

vestment and public procurement. Each of these areas of business activity impacts

differently on society dependent upon the category of rights for which protection is

sought.

a) The right to life, including security of person

Among the fundamental human rights that every state must guarantee its citizens is

the right to life, which includes the right to security of the person, both in terms of

physical and psychological integrity.TNCs, SMEs and other business enterprises

may exert a positive influence on the right to security of the person, in terms of the

physical and psychological integrity of their employees, suppliers, sub-contractors

and third parties in their business relations. As part of their corporate governance

and respect for the rule of law, they may have safeguards in place to protect per-

sons who become ‘whistle-blowers’ and who, report forms of coercion and fraud, in-

cluding bribe solicitation and extortion, to the competent public authorities.

In the extractive industries, a number of TNCs are seeking ways of implementing

their corporate responsibility to respect human rights under the Guiding Principles

which include conducting due diligence throughout their global supply chains of min-

erals and metals, promote corporate human rights risk assessments and to train se-

curity staff in the extractive sector.

When combined in a ‘smart mix’ of binding UN Security Council resolutions and/or

domestic legislation(mandatory measures), the government-backed non-binding

OECD Due Diligence Guidance, and voluntary measures such as traceability/chain-

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of-custody schemes and certification schemes, are beginning to lay the groundwork

for a normative framework to instill a culture of human rights responsibility in TNCs

and other business enterprises and hold them, albeit indirectly, accountable for hu-

man rights violations.

b) The rights of the child

Business enterprises may also have a positive influence by providing work for young

workers above the minimum age for work, provided such work opportunities respect

the rights of children above the minimum age for work.Business enterprises may

also help in counteracting youth unemployment and marginlisation by inclusive poli-

cies for age-appropriate social protection,health guidance and services. At the soci-

etal level, in general, businesses can be seen not only to create jobs and thereby

help to improve overall employment and reduce poverty, but also to support and re-

spect the rights of children in compliance with both national and international laws.

Business activity can therefore promote the rule of law and can help to build strong,

healthy and well-educated communities and durable economic structures. While

economic growth does not automatically result in increased realisation of children’s

rights, businesses can act as catalysts for societies to develop in ways that are con-

ducive to their realisation. Business can also contribute to the realisation of chil-

dren’s rights by taking a child rights friendly approach to the accessibility, affordabil-

ity and availability of products and services essential to child survival and develop-

ment, and also by seeking opportunities to support children’s rights through the re-

search and development of products and services. Company-initiated programmes

on raising child awareness and agency may also have positive effects both at the

societal level and in terms of empowering the individual child given that such pro-

cesses are inclusive, voluntary and fully respectful to children’s rights, businesses

may have a positive effect on the realisation of children’s rights through, for exam-

ple, involving them as stakeholders in assessing the effects a potential business

project may have on a community.

c) Rights of persons to their culture, religious practices and language

Another aspect of Businesses human rights impact is in relation to the rights of the

people to their culture, language and religious practices. There are various guide-

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lines that innumerate the points of consideration needed to be taken by the busi-

nesses to respect minority groups, cultures and religions. Example- workers to be

allowed to speak their own language in the workplace when this does not interfere

with their ability to fulfill their job responsibilities or adversely impact workplace

health, safety or security. By accommodation and increasing awareness on diverse

cultures, languages and religious practices, businesses can contribute to maintain-

ing the collective individual identities of people belonging to minority groups.

Negative Human Right Impacts:

There maybe negative impacts from human rights arising from specific business activi-

ties involving personnel employment, equipment and facilities, consumption of materi-

als, provision of services, import and export of goods, investments and so on, also in-

cluding business ties with third parties such as sub contractors, private security, military

forces etc.While states still bear the primary obligation under international law to protect

individuals and communities from human rights abuses committed by TNCs, SMEs and

other business enterprises,the latter also have a responsibility to respect human rights.

a) The right to life, including security of person

In terms of negative impacts on the right to life and security of a person, business in-

volvement in the human right abuses is broad both directly and indirectly including third

party business ties. Many a times private security forces contracted by TNC’s or other

business enterprises especially in heavy industries like construction,mines, power

plants and oil refineries are known to use excessive force, sometimes leading to fatali-

ties on striking workers. A more direct way in which business activity can have a nega-

tive human right impact is when businesses fail to efficiently safeguard their ties with the

third party suppliers in the global value chain with effects such as human trafficking and

forced labour in areas such as agriculture, instruction, textiles, tourism and hospitality,

food processing etc.

b) the rights of the child

The most obvious impact businesses have on the realisation of children’s rights is

through the use of child work and child labour, with an estimated 168 million children

working globally, more than half of them, 85 million, in hazardous work, spread across

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the sectors such as agriculture, services and informal work in the industries. While at-

tention in terms of negative human right impact of businesses on children is often fo-

cussed on child labour, child rights may be affected in various ways including environ-

mental degradation, products and marketing harmful tot he healthy development of the

child, enforced migration and also to include are the effects of business policies that

force parents/caregivers to prevent them from taking charge of their parental responsi-

bilities. Environmental degradation can compromise on the child’s right to health, secu-

rity and acres to basic necessities for survival including water. Land for business opera-

tions may cause forced migration depriving populations access to natural resources that

are essential for their subsistence and de rooting children of their cultural heritage harm-

ing their educational opportunities. Marketing for example, can influence children’s life-

style or self image negatively including pornography,stereotypes, reinforcing violence,

discrimination etc. In this regard digital media maybe also responsible for harmful ac-

tions of businesses on children. through facilitating cyber bullying, child pornography,

exploration throughout internet.

c) rights of persons to their culture,religious practices and language

Businesses may discriminate on the basis of race, color, religion, language, national ori-

gin, sexual orientation among others and may intentionally or unintentionally sustain or

perpetuate inequality through contribution to the existing unequal structures or through

policies, also with regard to the accessibility of workplaces to the disabled for example.

Businesses can also have other negative human right impacts by tolerating, facilitating

or operating discriminatory policies or practices against persons with different cultural,

religious or linguistic backgrounds at the workplace.

2) Civil society and non-governmental organisations

Positive Human right impacts:

As seen in the last couple of decades CSO’s have exerted an unprecedented influence

on national and international arenas, also acknowledged at several international meet-

ings and summits, mainly promoting human rights education, training and raising aware-

ness and in general, serve the instrumental purpose of empowering people to claim and

realize their other human rights in a broader change agenda.

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a) Contribution to accountability

CSO’s can be seen to have roles to play in the overall system of accountability at coun-

try level through the pressure derived from scrutiny exercised over public policies by or-

dinary citizens to have a conducive form of social accountability. Through monitoring of

the implementation of laws and policies, CSO’s may provide an element for a function-

ing accountability system at local and national levels. They can play a role of putting

pressure to the authorities to fully implement all the commitments as undertaken by the

state under the various international and local human rights instruments, CSO’s can

also empower individuals and local communities through campaigns and awareness, to

claim and advocate their human rights.

b) Shaping the Policy Agenda and contributing to efficiency

‘Naming and shaming’ maybe the tools used by NGO’s other civil society actors to di-

rect attention towards pressing human rights issues and keeping the human rights

agenda on priority through active lobbying , information and media campaigns. CSO’s

may also contribute to the increased coordination between different policy areas while

also confronting through campaigns large TNC’s often escaping regulation due to the

states need to attract investments, and hence may force them to alter their practices.

c) Promoting transparency, tolerance and freedom of information on and through the In-

ternet and social media

The internet and social media have become important tools for operations of CSO’s and

help advocate their cause through social networking sites and videos through the inter-

net. Example- Wikileaks, an NGO publishing classified information online, also known to

have caused the ‘Arab Spring’ in late 2010. Apart from that CSO’s may also be the

watchdogs of freedom of expression online and exposing restrictions on this freedom on

the internet. They (CSO’s) may help in counteracting hate speech and incitement to

racist and xenophobic violence through aid in policy formulation and empowerment to

individuals targeted by hate speech on the internet. Successful CSO campaigns helped

combat threats of human rights to individuals such as child pornography on the internet.

Negative Human right impacts:

The criticism of CSO legitimacy has grown in volume with direct correlation to the

steady expansion of the role of CSO’s as participants in the multi sectorial government

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processes and other human rights debates, including questioning of the sustainability

and effectiveness of the CSO operations with regard to human rights.

a) Lack of capacity

Lack of capacity coupled with limited monitoring of CSO activities maybe counterpro-

ductive to the cause of promoting human rights. Often CSO’s are in a position to merely

address effects or consequences of problems but not the causes, though alleviating to

an extent the symptoms, there is a risk of hiding underlying structural problems and

thereby contributing to the the inequalities in the society. In the sense CSO’s may advo-

cate for narrow objectives at the expense of recognizing the wider political and policy

contexts of the human rights issues trying to be promoted.

b) Lack of transparency

As CSO’s may lack democratic foundations and processes, their agendas may remain

hidden or limited to only a select group of people(funders, partners etc.)and moreover

CSO’s may not be willing to reveal sources of information being provided for their work.

Since typically CSO’s are mostly dependent on external funding, which in turn set the

agendas for the activities being funded, so there is a possibility for the CSO’s to com-

promise in a non transparent manner their agendas to tailor their priorities in a manner

that best meet the priorities of the funders, this may have a consequence of attention to

some human rights issues at the expense of marginalization of other pressing matters.

c) Accountability, sustainability and effectiveness

While governments maybe accountable for the rights holders, CSO’s NSA’a are not

bound by these human rights treaties and mostly only accountable to their funding insti-

tutions. Also since service delivery in CSO’s is not fully transparent, and adding to the

lack of monitoring and evaluation systems, there are little possibilities to hold them ac-

countable. Then are questions of sustainability within the service delivery of a certain

sector due to the acute dependence on external funding, and for the best possible out-

put, it is essential there is synergy between different operations in a CSO to avoid un-

productive use of human and material resources as well to fill the gaps required.

Conclusion

Thus, through a brief picture of the various impacts of NSA’s (Businesses, CSO’s) on

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human rights, who in turn have an influence on policies at regional and international

level, we can draw a line of thought across it, to shape governance. Understanding and

evaluating the positive and negative human rights impacts maybe vital for informing and

strengthening and delivering an effective human rights policy. Our report has briefly

touched on few positive and negative impacts of the few variables of NSA’s but the

overall picture is much more complex and nuanced than it is often portrayed. This kind

of information can be used for strengthening and engagement with NSA’s in meeting

challenges and protecting human rights in internal policies and external relations.

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