A/HRC/42/42
with local communities, addressing some of the shortcomings in identifying and investigating
perpetrators of alleged abuses and violations, and helping to distinguish between personnel
under the direct authority and responsibility of extractive companies on the one hand, and
other actors on the other.
(f)
Subcontracting of security services (private military or security company to
another): Subcontracting should not compromise the human rights standards to which private
military and security companies must adhere, and these standards should be fully reflected in
contracts with subcontractors.
41.
In reality, the above tools do not appear to be utilized to further human rights
protection, possibly owing to pressure on host Governments not to introduce stricter rules on
extractive companies in order to keep incentives for foreign investment. Indeed, some
southern countries have been accused of violating the principles of international economic
law when they attempt to promote good governance and respect for human rights for
corporate actors.31 In addition, concession agreements, memoranda of understanding on
security arrangements, and company-level data and policies on its security setup are often
not publicly available, which prevents public scrutiny and accountability for the contents,
implementation and overall conduct of security providers in the extractive industry.
C.
Soft law and voluntary initiatives
42.
In the absence of international legally binding regulation of corporations, recent
decades have witnessed a proliferation of codes of conduct and multi-stakeholder and other
initiatives for specific business sectors. Two main initiatives have been developed for the
private military and security sector. The Montreux Document on Pertinent International
Legal Obligations and Good Practices for States Related to Operations of Private Military
and Security Companies during Armed Conflict contains a compilation of international law
obligations pertaining to private military and security activities that are addressed primarily
to States, and focus on armed conflicts. International and non-governmental organizations,
companies that contract private military and security companies, and the companies
themselves are invited to use the good practices section of the document, which should be
adopted during peacetime. The International Code of Conduct for Private Security Service
Providers sets out human rights responsibilities and good governance principles and
standards for its member companies, regardless of the identity of their clients.
43.
Several sector-specific initiatives exist for extractive companies, such as the
Extractive Industries Transparency Initiative, the Alliance for Responsible Mining and the
Kimberley Process. The Due Diligence Guidance for Meaningful Stakeholder Engagement
in the Extractives Sector, adopted by the Organization for Economic Cooperation and
Development in 2017, proposes a framework for identifying and managing risks with regard
to stakeholder engagement activities to ensure that companies play a role in avoiding and
addressing any adverse effects. It briefly refers to security issues, including recommendations
on contracting and managing private security personnel, and avoiding a violent response
when taking security precautions in situations where there is opposition to the extractive
project.
44.
Two instruments apply to both private military and security companies and extractive
companies, namely the Voluntary Principles on Security and Human Rights and the Guiding
Principles on Business and Human Rights. The Voluntary Principles were developed almost
20 years ago to guide companies operating in the extractive industry on how to assess risks
and to take public and private security measures in a manner that respects human rights. They
include a number of important principles guiding private security conduct and functions; for
example, they state that services provided by private security personnel should only be
defensive and preventative, and not include activities that are exclusively the responsibility
of the State. Private security should not employ individuals “credibly implicated in human
rights abuses”, and should use force only when strictly necessary and with proportionality,
31
12
See Chevron vs. Ecuador, International arbitration award, March 2019; see also
Moore, In the National Interest?.
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