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Extra-Territorial Obligations before the CESCR
Extra-Territorial Obligations before the Committee on Economic, Social and Cultural Rights
United Nations Committee on Economic, Social and Cultural Rights
57th Session (22 February – 4 March 2016): Canada
Extra-territorial obligations - Summary of Issues
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This is a summary of the key issues identified in the Parallel report submitted by the Global Initiative for Economic, Social and Cultural Rights, in relation to the extra-territorial obligations of Canada under the ICESCR in relation to:
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the regulation of corporate entities domiciled within its territory and operating overseas;
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international co-operation, including development assistance, decisions and policies on international trade and investment, State-Owned overseas investment or credit entities and Canada’s participation in international financial institutions; and
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decisions taken within inter-governmental organisations such as international financial institutions.
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The issue of extra-territorial obligations was addressed by the Committee in the List of Issues for Canada as follows:
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‘Please provide information on the measures taken, including legislative, regulatory, policies and guidance, to ensure that private companies respect economic, social and cultural rights throughout their operations, including when operating abroad. In doing so, please also inform on remedies available for victims and describe grievance mechanisms in place and elaborate on their mandates.’ (para 4)
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‘Please provide information to the Committee as to if and when the State party intends to increase the official development assistance, which underwent cuts in recent years. Please also provide information as to what extent the State party seeks to promote the realization of economic, social and cultural rights through its international development cooperation policy.’ (para 6)
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In its Reply to List of Issues[1] the Canadian government responded:
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‘In November 2014, the Government of Canada’s launched an updated Corporate Social Responsibility (CSR) Strategy,1 which encourages Canadian companies to reflect Canadian values in operations abroad, respect human rights and align with widely- recognized international CSR guidelines.’ (para 16)
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‘Voluntary remedial mechanisms that facilitate dialogue, including during the early stages of a dispute, can lead to relatively rapid, low-cost, agreed solutions. Canada maintains two voluntary, non-judicial dispute resolution mechanisms, which are benchmarked against international CSR guidelines and standards:
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Canadian National Contact Point (NCP), established pursuant to OECD Guidelines for Multinational Enterprises, available to all sectors; and
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Office of the Extractive Sector CSR Counsellor, available to the mining, oil and gas sector.’ (para 17)
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‘The updated CSR Strategy links company engagement in these dialogue facilitation processes with access to Government of Canada trade advocacy support, which are made public. These mechanisms complement remedies available to communities through local dispute processes, national human rights institutions, and formal legal processes.’ (para 18)
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‘The Official Development Assistance Accountability Act ensures that all Canadian ODA is focused on poverty reduction, takes into account the perspectives of the poor, and is consistent with international human rights standards.’ (para 20)
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‘Through its ODA on maternal, newborn and child health, Canada promotes reproductive rights and universal access to sexual and reproductive health services.’ (para 21)
Canadian business entities operating overseas
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Our report provides examples of Canadian domiciled companies that have allegedly been involved in serious violations of the ICESCR in their operations abroad. The lack of appropriate regulation or oversight of these companies by Canada, has meant that there is no accountability for these human rights abuses.
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The efforts of the Canadian government in ‘encouraging’ Canadian companies ‘to reflect Canadian values in operations abroad, respect human rights and align with widely - recognised international CSR guidelines’, have not been effective in ensuring that Canadian companies operating abroad do not impair the enjoyment of Covenant rights, nor that victims can access effective remedies in cases of abuse.
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Voluntary CSR initiatives can be useful but are not sufficient in protecting against abuses nor in realising the right of victims to an effective remedy for violations of the ICESCR.
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Canada needs to do more, particularly in relation to access to remedies for foreign victims, where the Canadian Courts have consistently applied the forum non conveniens doctrine to decline jurisdiction in cases involving foreign victims. In cases of a weak ‘host State’ which lacks the rule of law and an effective, corruption-free judicial system, Canada has an obligation under the ICESCR to ensure access to the Canadian Courts and Canadian non-judicial mechanisms, for foreign victims of human rights abuses involving Canadian corporations (not only in the extractives sector).
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Therefore we urge the Committee to affirm Canada’s extra-territorial obligations to respect and to protect Covenant rights abroad, and call upon Canada to take measures, including legislative measures, to ensure that business entities domiciled in Canada but operating abroad (including via subsidiary entities), do not impair the enjoyment of economic, social and cultural rights and to ensure that accountability mechanisms and remedies are available to victims of violations, including through Canadian judicial and non-judicial mechanisms.
International co-operation and inter-governmental organisations
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Our report also provides examples of serious ICESCR violations associated with development projects funded and/or supervised by the Canadian International Development Agency or the World Bank, at a time when Canada was a member State. There has been no accountability or effective remedies for victims, in respect of these violations.
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These violations may have been prevented had Canada had in place, as is required by the Covenant, legislation and policies that require CIDA and Canadian officials representing Canada in international organisations and development/financing entities, to respect economic, social and cultural rights abroad and requirements for human rights impact assessment processes and effective monitoring and accountability mechanisms in respect of relevant projects or funding decisions.
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Canadian international cooperation, trade and investment, including within inter-governmental organisations, should be driven by the extra-territorial obligation to fulfill Covenant rights, including by ensuring that human rights impact assessments involve assessing not only prevention of rights violations but also how best international cooperation can further the progressive realization of Covenant rights.
Conclusion
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In summary, we urge the Committee to make recommendations highlighting Canada’s extra-territorial obligations to respect, protect and fulfil ICESCR rights in relation to:
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business entities domiciled in Canada, operating outside its territory; and
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its policies on international co-operation, development assistance, international trade and investment, State-Owned overseas investment or credit entities and international financial institutions.
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In respect of each of these areas Canada should require:
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respect for ICESCR rights including in operations or projects abroad;
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systematic and independent human rights impact assessments that assess both prevention and fulfillment of Covenant rights prior to making funding decisions or commencing projects;
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effective monitoring mechanisms to assess the human rights impact of policies and projects; and
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accessible and effective accountability mechanisms and remedies for victims of violations, including through Canadian judicial and non-judicial mechanisms.
[1] Canada’s Reply to List of Issues, E/C.12/CAN/Q/6/Add.1
