Protecting human rights in the state-business nexus

8 Dec 2021 08:30h - 10:00h

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The discussion focused on the United Nations Guiding Principles on Business and Human Rights (UNGPs) and, more specifically, on their application between states and private companies in cases such as public private partnerships (PPPs) or public procurement. Mr Henry Peck (Senior Coordinator, Human Rights Watch) and Ms Isabel Ebert (Research Associate, Institute for Business Ethics, University of St. Gallen and Adviser at the B-Tech project)  moderated the conversation and explained that the UNGPs consist of three pillars: the state’s duty to protect human rights, the corporate responsibility to respect human rights, and the availability of remedy mechanisms in case of human rights violations.  Ebert explained that the principles are not sector specific: the B-Tech project breaks down the specific requirements of the guiding principles in the technology sector and articulates the specific obligations of states and the responsibilities of technology companies.

Ms Lucie Audibert (Legal Officer, Privacy International (PI)) explained that a part of the work of PI focuses on investigating the relationships between states and surveillance companies around the world, in particular when states partner with companies to develop their surveillance or data processing infrastructure in order to deliver public functions. Based on their analysis of such ‘co-dependent’ partnerships, she illustrated the main issues arising and the related safeguards developed by PI. She explained these safeguards tend to be ‘jurisdiction-blind’ so that they can be applied as widely as possible.

First, transparency is often lacking.  This can stem from an overprotection of company special interests and the tendency to have governments shield the extent of their surveillance systems. Second, PI found that when technology is deployed initially for private, commercial, or personal purposes then public authorities often co-opt such applications for policing or surveillance purposes without  required public procurement processes. On the accountability side, it is not always easy to find policies that clearly define responsibilities, obligations, duties, and standards for each actor of the partnership; nor is it easy to find respective accountability mechanisms for these obligations. On legality, necessity, and proportionality, Audibert stressed that the use of technology addressing a public need or fulfilling a public function has to be authorised by an appropriate legal framework. She concluded by explaining that independent oversight bodies should be given a clear mandate to monitor partnerships and that redress mechanisms in case of human rights infringements should be put into place.

Ms Deniz Utlu (Senior Policy Adviser, German Institute for Human Rights) discussed the role of national human rights institutions (NHRIs) that can serve as intermediaries between different state agencies to establish whether the agencies follow a human rights-based approach in establishing PPPs. Utlu explained that NHRIs are neither governmental nor nongovernmental organisations. Although they are financed by governments, they remain independent of them.  NHRIs can monitor whether government agencies align with human rights obligations when using data technology interfering with technical companies. NHRIs can also undertake human rights assessments and artificial intelligence assessments. In this latter function, NHRIs could play a crucial role if they were systematically involved in public procurement procedures and in the establishment of any strategic relationship with private actors.

Mr Théo Jaekel (Legal Counsel, Business and Human Rights Expert, Ericsson) brought the private sector perspective into the discussion. Ericsson provides a telecommunication infrastructure through communication service providers or mobile operators. They rarely deal directly with government entities. Jaekel added that on the issue of transparency, it is of utmost importance to lay out clearly roles and responsibilities of the different actors of an ecosystem. Only after the specification of what is expected from governments, service providers and other actors, can we assure that responsibility is taken. On the state-business nexus, Jaekel stressed the importance of differentiating between the states’ duty to protect and the corporate responsibility to respect human rights; the corporate responsibility to respect human rights can exist regardless of a state’s ability or willingness to comply with its duty to protect human rights. Finally, on the availability of remedies and redress, many lessons can be learned from other industries.

Ms Moira Thompson Oliver (Human Rights Lead, Vodafone) agreed with Jaekel’s arguments, in particular on the importance to understand the different relationships within an ecosystem and each actor’s responsibility. She elaborated on some problematic scenarios for private companies and operators when asked to comply with regulations that may infringe upon human rights. For example, an operator may be required to comply with a local directive to either pass certain customer data to the local government or to block the network. Vodafone joined the Global Network Initiative, which includes different operators facing similar challenges.

Mr Sebastian Smart (Policy Officer, Instituto Nacional de Derechos Humanos de Chile) shared his experience on the application of the UNGPs in Chile. He stated that the UNGPs should provide the foundation to build further mechanisms protecting and promoting human rights in the digital environment. He explained that in Chile, a series of bills and regulatory frameworks of special importance to the digital environment are currently discussed in Congress. For example, the recent strategy on artificial intelligence (AI) makes only a few or almost no reference to human rights. He concluded by affirming that states sub-contract increasingly technical services that may have consequences for human rights. In these cases, governments must exercise adequate oversight.

By Marco Lotti

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