Leveraging State largesse for human rights

40 April 2015

HERE is an important sub-plot to

Minister James Reilly’s eﬀorts to

enact legislation for the plain pack-

aging of tobacco products. It concerns

the incongruent relationship that the

Irish State has with the tobacco indus-

try, and with legal ﬁrms that advocate

on its behalf.

Recent reports have shown that the

Ireland Strategic Investment Fund has

invested over €9m in tobacco com-

panies, while Arthur Cox, the firm

representing Japan Tobacco Ireland in

its threatened plain-packaging litiga-

tion against the State, has also received

around €1m in legal fees from advising

various health-oriented State agencies

and bodies, including the Health Serv-

ice Executive.

We have heard much pontiﬁcation

about the need to ensure that the right

to a lawyer is respected, with an obscure

UN charter even being cited, but that

need not mean that State agencies that

promote one agenda should employ

lawyers or anyone else who currently

promote a contradictory agenda.

As it ﬁnalises a National Action Plan

on business and human rights, the Irish

Government has a prime opportunity to

set out an ethically coherent approach

to State investment and procurement.

As an investor and consumer of goods

and services itself, the Irish State has a

signiﬁcant capacity to promote respon-

sible behaviour by the private sector and

to insist on respect for human rights

by those companies with which it does

business.

The Minister for Foreign Aﬀairs and

Trade, Charlie Flanagan, considers that

“placing human rights ﬁrmly on the busi-

ness agenda” is necessary for enhancing

the reputation of Ireland and of Irish

companies. The National Action Plan on

business and human rights is being pre-

pared by his Department, following a

broad consultation with civil society and

business. It is aimed at implementing the

United Nations Guiding Principles on

Business and Human Rights, a frame-

work document unanimously endorsed

by the Human Rights Council in 2011.

Ireland is currently the proud holder of

a seat on the Council.

These Guiding Principles emphasise a

State’s duty to protect human rights, cor-

porate responsibility to respect human

rights, and the need to ensure access to

remedies in the event of breaches. They

expressly state that: “States should

promote respect for human rights by

business enterprises with which they

conduct commercial transactions”.

The State duty is grounded in existing

international human rights law, which

requires a State to ensure that third par-

ties, including business enterprises, do

not violate human rights.

A national business and human rights

plan is very timely for Ireland, as con-

cerns have been raised by the recent

activities of Irish-based companies, both

at home and abroad. These include the

inadequate protection of data and the

right to privacy by social media com-

panies, the supply of software used for

censorship to Syria’s repressive regime,

and the operation of construction ﬁrms

in Qatar where forced labour and irregu-

lar working conditions prevail. The State

must make clear in its national action

plan that it expects Irish companies to

respect human rights throughout their

operations.

To embed respect for human rights

from business, countries can insist on

compliance with human rights as an eli-

gibility requirement for State support

or for availing of, or providing, govern-

ment services, investment, procurement

or listing on the Stock Exchange. The

UN Guiding Principles consider that the

various commercial transactions under-

taken with companies by States provide

a unique opportunity to promote aware-

ness of and respect for human rights by

business.

In 2014 the European Union called

upon Member States to bring about the

“appropriate integration of environ-

mental, social and labour requirements

into public procurement procedures”.

The Dutch national plan on business

and human rights notes that in the

Netherlands, “companies supplying the

government with goods and services are

required to respect human rights”.

Ireland needs to move beyond merely

encouraging Irish business to be socially

responsible. The business and human

rights agenda diﬀers from corporate

social responsibility as it is based on

what is required and expected of compa-

nies, rather than on what a company may

choose to do voluntarily to ‘give some-

thing back’ to society. No amount of

charity or philanthropic work can oﬀset

a negative impact on human rights.

Legislating to reduce tobacco con-

sumption by introducing plain packaging

can be seen as a legitimate attempt to

meet the State’s human rights obligation

to fulﬁl the right of every person to the

highest attainable standard of health.

A consistent approach to human rights

here would mandate that the State does

not invest in the tobacco industry and

that it reconsiders doing business with

companies that support, represent or

promote it. •

Dr Shane Darcy is a lecturer at the Irish

Centre for Human Rights, NUI Galway.

The UN mandates that businesses that promote anti-social agendas should lose the

business of government agencies that promote the common good. By Shane Darcy

Leveraging State largesse

for human rights

UN Guiding

principles

state: ‘States

should

promote

respect for

human rights

by business

enterprises

with which

they conduct

commercial

transactions

“

POLITICS Human Rights