Firms operating in countries where homosexuality is a crime, or where the government demands access to user data, must retain their focus on human rights, argues Arianne Griffith of BIICL, which has just published guidance for companies

Companies operating in countries where the domestic law conflicts with international human rights standards find themselves at a fork in the road asking, "which of these should we follow?"

This situation is not uncommon. Some 72 countries retain legislation criminalizing relationships or sexual activity between same-sex partners, while others still explicitly exclude sexual orientation as a basis upon which a person is protected from discrimination in employment. This is in direct conflict with international standards on equality and the rights of LGBTI people.

National laws providing for government access to user data, or requiring companies to remove electronic protection (encryption) from private communications, have drawn criticism from the UN Human Rights Council over concerns about international standards on privacy and freedom of expression.

Central to the UN Guilding Principles is the corporate responsibility to respect human rights regardless of where the company operates

Similarly, the UN Special Rapporteur on Freedom of Expression has found that network shutdowns authorized under national laws in several states are generally disproportionate measures and ‘invariably fail to meet the standard of necessity’. The prevalence of these conflicts raises the question, what should companies be doing in these situations?

The UN Guiding Principles on Business and Human Rights (UNGPs) provide a partial answer to this question. Central to the UNGPs is the corporate responsibility to respect human rights regardless of where the company operates. Guiding Principle 23(a) states that businesses should comply with all applicable laws and respect internationally recognized human rights.

However, as seen above, there are often circumstances where the company cannot do both simultaneously.

Guiding Principle 23(b) contemplates the possibility that companies may face conflicting requirements. In such situations they should “seek ways to honour the principles of internationally recognized human rights”.

Nevertheless, situations may arise in which complying with domestic law necessarily contravenes internationally recognized human rights. For example, when a telecommunications company receives a government request that is authorized under domestic law and the company is obligated to respond. Where the request is so broad, or intrusive, that if carried out it would likely violate users’ rights to privacy or freedom of expression according to international standards, the company is placed in a difficult position: complying means that it would likely be committing or contributing to a human rights violation, whereas a failure to comply would mean breaking the law. This may be further complicated in ‘high risk’ situations such as those created by conflict or instability. In those situations, a failure to comply could create additional risks for staff on the ground or result in the revocation of the company’s license to operate or other serious consequences.

There is no ‘one size fits all’ solution, especially since these conflicts may occur in a number of ways

To this end, the Commentary to Guiding Principle 23 provides that “where the domestic context renders it impossible to meet this responsibility [to respect] fully, business enterprises are expected to respect the principles of internationally recognized human rights to the greatest extent possible in the circumstances”. This demonstrates the importance of context and highlights that there is no ‘one size fits all’ solution, especially since these conflicts may occur in a number of ways.

A recent report by the British Institute of International and Comparative Law (BIICL) considers eight ways that conflicts between national and international law and standards may manifest themselves. The report also examines a range of approaches that companies have taken and makes recommendations for how companies should address these conflicts.

In the absence of a universal solution, it becomes even more important that companies have an effective process for crafting an appropriate response. The report “When national laws conflict with international human rights standards: Recommendations for Business” proposes human rights due diligence (HRDD) as the framework for addressing conflicts.

HRDD is a concept introduced by the UNGPs as part of the corporate responsibility to respect human rights. The HRDD described by the UNGPs allows companies to respond to conflicting human rights requirements by identifying human rights impacts, taking appropriate steps to prevent or mitigate against negative impacts and monitoring and accounting for the effectiveness of the steps taken.

Drawing from, and building on, existing industry or issue-specific guidance, the report divides the wide range of approaches into four categories: internal measures, such as a decision to limit compliance and do no more than is absolutely necessary; measures within its value chain, like making use of contractual relationships and leverage; efforts at external engagement through industry organizations or sharing publicly on the challenges faced and efforts made; and some so-called ‘alternative responses’, which include taking legal action, pushing back against the measure or request and going as far as exiting the jurisdiction.

In rare cases, upholding the international standard may involve ‘break[ing] the law in the most ethical way possible'

Responses are not always straightforward and in rare cases, upholding the international standard may involve ‘break[ing] the law in the most ethical way possible’, as one company representative is quoted as saying. However, the focus must remain on ensuring respect for human rights.

The crucial underpinning for this is a process of HRDD, which allows for individualized, well-considered and creative approaches to conflicts. Treating these challenges as part of an existing HRDD process means that finding an appropriate way to respond would not be something else for companies to do, but rather something they can do better – it becomes part of their human rights journey.

After all, HRDD was never meant to be an absolute standard, instead, it is ongoing, proactive and context-specific.

Arianne Griffith is research assistant in business and human rights at the British Institute of International and Comparative Law, a world-leading independent legal research organization which has been conducting applied research on contemporary legal issues for 60 years. For information on BIICL’s business and human rights work visit: https://www.biicl.org/bandhr.
 

Human rights  international law  LGBT rights  UN Human Rights Council  UN Guiding Principles on Business and Human Rights  British Institute of International and Comparative Law