The UN Guiding Principles on Business and Human Rights and their relevance to land acquisitions by the tourism industry

The UN Guiding Principles on Business and Human Rights (UNGP) were adopted by the UN Human Rights Council in 2011 and are arguably the most authoritative and internationally recognised framework for business and human rights, since they are backed by UN member states and are the outcome of extensive consultations with many stakeholders over a period of six years. The UNGP have also been referred to as the UN’s ‘Protect, Respect, Remedy Framework’. These three pillars cover the state’s duty to protect against human rights abuses, the corporate responsibility to respect the human rights of all peoples, and the contractual parties’ obligation to ensure access to effective remedy when protection fails (cf. Box 11.4).

While the UNGP do not create obligations under international law, they are increasingly becoming a concrete reference framework on the obligations of states and the responsibilities of businesses to respect human rights in relation to tourism. The application of the UNGP is particularly pertinent when businesses operate in countries where adherence to international human rights norms and standards in the tourism sector are weak due to lack of government will, capacity and/or resources, or because of on-going or recent violent conflict, such as in Sri Lanka, Palestine, Bangladesh and Honduras.

Box 11.4 The three pillars of the Guiding Principles on Business and Human Rights

  • 1 The state’s duty to protect against human rights abuses: States must guarantee protection against human rights violations committed by third parties, such as businesses, within their territory. This calls for appropriate measures to prevent, investigate, prosecute and compensate for human rights violations.
  • 2 The corporate responsibility to respect human rights: Businesses should respect human rights and avoid negative impacts that are caused directly or through their business relations. In order to assume responsibility, businesses should possess corresponding principles and procedures and act with due diligence.
  • 3 The contractual parties’ obligation to ensure access to effective remedy when protection fails: States must take adequate measures to provide access to an effective remedy and appropriate compensation for the affected parties. In addition to judicial mechanisms, states must also provide non-judicial grievance mechanisms. Moreover, businesses should also provide effective grievance mechanisms at an operative level, or participate in such mechanisms.

Source: OHCHR, 2011

Nevertheless, the implementation of the UNGP by nation states has proven difficult. The EU Commission has asked its member state governments to prepare action plans for the implementation of UNGP, and 15 of its 27 members have produced this as of October 2020. Internationally, only nine other countries (UK, Norway, Columbia, Switzerland, USA, Chile, Kenya, Thailand and Japan) have developed their own national action plan, while a range of other countries, including in Africa, Asia and Latin America, have committed to draft an action plan or have taken first steps in the development of such a plan. The UK’s and France’s national action plans both make specific reference to large-scale land acquisitions, but the tourism sector is not mentioned in either of them. Hence, while the UNGP are gradually being incorporated into government policies and hard law, it is obvious that tourism to date has escaped the same levels of human rights scrutiny as other sectors (IHRB and Tourism Concern, 2012). It will be important to put tourism on the agenda of the UNGP implementation process and emphasise the responsibility of tourism businesses to respect land rights of Indigenous and non-indigenous peoples as essential human rights.

A major weakness of the UNGP is that they do not develop duties for individual states to monitor and regulate the human rights impacts of their home business enterprises beyond national borders (i.e. extraterritorial obligations — ETOs). Hence, foreign tourism companies can easily a adopt less stringent social and environmental standards in host countries, without being subjected to any punitive measures from their home governments. This is unsatisfactory as ETOs are internationally recognised in other areas, such as sex tourism (Van Huijstee, Ricco and Ceresna-Chaturvedi, 2012). There are, however, a number of encouraging developments, such as a study commissioned by the European Parliament’s Sub-Committee on Human Rights which focuses on access to legal remedies for victims of corporate human rights abuses in third countries. For tourism businesses, this would mean that they must support appropriate remedial action for all social groups that have been adversely affected by their activities, e.g. through land restitution measures and adequate compensation payments as required by national or international legal frameworks and voluntary guidelines.

There are various other codes of conduct that are closely related to UNDG. More than 5,000 global corporations have joined the UN Global Compact, which calls on businesses to “support and respect the protection of internationally proclaimed human rights” (Principle 1), “make sure that they are not complicit in human rights abuses” (Principle 2) and “support a precautionary approach to environmental challenges” (Principle 7). Several multinational hotel chains, such as InterContinental Hotels, Hyatt and Shangri-La, have also started to explicitly recognise their human rights obligations and have implemented measures such as human rights policies, reporting on human rights issues, providing ethics training for their staff and signing up to the UN Global Compact (Bauer, 2015). Human rights policies and self-regulation measures developed and implemented by tourism operators and encouraged by global lobby organisations, such as the World Travel and Tourism Council (WTTC) and the World Travel Organization (UNWTO), focus predominantly on the operational side of the tourism businesses, i.e. once their construction has already been completed. Hence, they do not make explicit reference to respecting land rights prior to and during the implementation of the business. There is a need to hold hotel operators accountable for land grabs committed prior to the establishment of tourism premises and for taking advantage of an unjust legal environment.

Scholars have pointed to various other flaws in industry self-regulation, including the lack of measurable criteria (Mason and Mowforth, 1996; Scheyvens, 2002), the fragmentation of the tourism sector (Mowforth, Charlton and Munt, 2008), and the tendency of corporate actors to shift responsibility for ethical and just tourism to the tourists and/or the host governments (Scheyvens, 2002; Mowforth, Charlton and Munt, 2008). Some scholars have identified how codes of conduct act as clever marketing strategies and public relations exercises (e.g. Mason, 2016; Mowforth and Munt, 2016). Klein (2001, p. 434) asserts that the “proliferation of voluntary codes of conduct and ethical business initiatives is a haphazard and piecemeal mess of crisis management” (quoted in Mowforth and Munt, 2016, p. 212). Civil society groups, government actors and international advocacy organisations need to make clear to the industry that past and current human rights abuses (i.e. forced displacement, land dispossession, infringement on local water supplies) by tourism operators cannot be offset by corporate social responsibility practices or goodwill measures in other areas of their business operations. Tourism businesses need to be held accountable to those groups whose access to land and other natural resources and whose rights to property and housing may be directly or indirectly impacted by the instalment of their business and/or their long-term

Instruments and guidelines 211 operations. National and international tourism associations should strongly encourage their members to align their operations with the UN Guiding Principles on Business and Human Rights and should expel those members that have been found responsible for human rights abuses (e.g. land grabs, evictions).

 
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