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The role of the State in business and human rights through a child labour lens

When it comes to international human rights law there is no confusion: States are the primary duty-bearers. They must respect, protect, and ensure the fulfillment of the people living within their territory and jurisdiction. This also applies to children and their specific rights under the Convention on the Rights of the Child.

When it comes to child labour, States must ensure that businesses are fulfilling all their obligations to mitigate against labour abuses.

How do States ensure the enjoyment of rights? And what role do they play in terms of the potential impact of businesses on the realization of these rights?

The answer is broken down into 3 key duties by the UN Framework for Business and Human Rights: protect, respect and remedy.

The role of the State

First and foremost, States have a duty to protect against human rights abuses. This means they must take appropriate steps to prevent, investigate, punish and redress any potential abuse through effective policies, legislation, regulations and finally adjudication. This therefore means, States play a critical role in holding businesses accountable for abuses of child rights including when child labour occurs.

How can they do this? According to the UNGPs, in meeting their duty to protect, the state should consider implementing a 'smart mix' of measures - national and international, mandatory and voluntary to foster business respect for human rights within its territory and jurisdiction

What does this look like more concretely?

Driving businesses to respect

States have various mechanisms at their disposal to push businesses to respect human rights in their supply chains. To effectively ensure human rights are protected, the State should take these following steps as a minimum:

1) States must draft and enforce laws requiring business enterprises to respect human rights through labour laws (e.g minimum age of employment) reporting requirement, procurement policies, code of conduct and so on.

2) There should be a formal complaint process, otherwise known as a grievance mechanism, which can be used by workers, communities, or civil society organisations that are negatively impacted by business operation.

3) States must provide effective guidance to business enterprises on how to respect human rights throughout their operations.

4) States should encourage, and where appropriate require, business enterprises to report on the steps taken to address any potential risks of, or instances of, human rights abuses.

Providing access to remediation

As part of their duty to protect against business related human rights abuses, States must also ensure that there is access to appropriate remediation. This can include judicial, legislative and/or administrative steps in the form of apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions.

Access to remedy is one of the core components of the UN Guiding Principles on the Business and Human Rights (UNGPs). Remediation efforts must ensure that negative impacts on human rights do not continue or recur in the future. Effective remedy may include state-based judicial mechanisms, state-based non-judicial grievance mechanisms, and non-state-based grievance mechanisms.

The Working Group on Business and Human Rights investigated what constitutes effective remedies in 2017. It was revealed that the right to effective remedy, the access to effective remedy, and the access to justice and corporate accountability are all interdependent.

Effective remedies should be sought from the perspective of rights holders and proposes that remedial mechanisms should be responsive to the diverse experiences and expectations of rights holders. This also needs to take into account the specific rights that children hold.

How does this apply to child labour?

At the World Day Against Child Labour 2021, Sanda Ojiambo, CEO and Executive Director at United Nations Global Compact stated “There is a wide gap between business aspirations and business actions that must be closed". She noted that it is time to step up due diligence for the elimination of child labour across supply chains.

As the world moves to drive pressure on States and Businesses to ensure that human rights are respected through National Action Plans, international due diligence frameworks and so on, this could present a tremendous opportunity for the public and private sectors to step up efforts for the elimination of child labour.

The UN Global Compact has identified some examples of proactive and basic actions that businesses can take, these include the following:

  • Establish management procedures for introducing child labour due diligence in business operations
  • Develop guidance on due diligence, remediation and monitoring, using best practice from a multi-stakeholder approach
  • Comply with industry codes, local law or international standards — whichever provides the higher protection for children
  • Establish an apprenticeship programme to reduce the rate of hazardous child labour in the 15–17 age group by offering a decent work alternative
  • Join a multi-stakeholder initiative such as the UN Global Compact Decent Work in Global Supply Chains Action Platform and/or an “International Framework Agreement” with one of the sectoral global unions

Respecting and protecting child rights and eliminating child labour is also good business. It can strengthen sustainability initiatives, builds a good reputation and improves risk management. But this goes beyond good business. 162 million children are doing dangerous, harmful work as of 2021 and a further 9 million are at risk due to the COVID-19 pandemic. Now is the time for both States and Businesses to take concrete actions and to uphold their respective duties and responsibilities with regards to child rights and the eradication of child labour