G. mary rumsey, international human rights aspects of multinational enteprises as non-state actors




НазваниеG. mary rumsey, international human rights aspects of multinational enteprises as non-state actors
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The draft Norms

18. The draft “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights “(draft Norms) attempt to impose direct responsibilities on business entities as a means of achieving comprehensive protection of all human rights - civil, cultural, economic, political and social - relevant to the activities of business. The draft Norms identify specific human rights relevant to the activities of business, such as the right to equal opportunity and non-discrimination, the right to security of persons, the rights of workers, and refers to the rights of particular groups such as indigenous peoples. The draft Norms also set out responsibilities of business enterprises in relation to environmental protection and consumer protection. As an initiative of a United Nations expert body, the draft seeks wide territorial coverage. It also seeks broad company coverage as appears from the reference in its title to “transnational corporations and other business enterprises”. The draft envisages a range of implementation mechanisms of both a promotional and protective character such as self-reporting and external verification. The Commission has indicated that the draft Norms contain “useful elements and ideas for consideration by the Commission” but, as a draft proposal, it has no legal standing.

19. The draft Norms is an attempt in filling the gap in understanding the expectations on business in relation to human rights. However, the consultation process revealed a wide range of opinions amongst stakeholders on the value and content of the draft. Employer groups, many States and some businesses were critical of the draft while non-governmental organizations and some States and businesses as well as individual stakeholders such as academics, lawyers and consultants were supportive.

20. The main arguments both against and in favour of the draft Norms are summarized below. The stakeholders critical of the draft Norms argued that:

(a) The draft Norms represents a major shift away from voluntary adherence by business to international human rights standards and the need for this shift has not been demonstrated;

(b) The style of the draft Norms is unduly negative towards business. The tone of the draft is unbalanced and does not adequately take into account the significant positive contributions of business towards the enjoyment of human rights;

(c) The recognition of legal obligations on business to “promote, secure the fulfilment of, respect, ensure respect of and protect human rights” is baseless and a misstatement of international law - only States have legal obligations under international human rights law;

(d) The human rights content of the draft Norms is vague and inaccurate. For example, the reference to international treaties and other instruments in the preambular paragraphs and under the definitions includes documents that are only recommendations, have low levels of ratification, are not self-executing or are not human rights instruments. Those documents are therefore not indicative of the state of international human rights law;

(e) The legal responsibilities on business identified in the draft Norms go beyond the standards applying to States. In particular, the wording of the draft Norms imposes duties on business to meet standards under treaties that a State in which a company was operating might not have ratified;

(f) The draft Norms require business to undertake balancing decisions more appropriate to the role of Governments. Some human rights require Governments to decide on the most appropriate form of implementation, balancing often competing interests. The democratic State is in a more appropriate position to make such decisions than companies;

(g) The imposition of legal responsibilities on business could shift the obligations to protect human rights from Governments to the private sector and provide a diversion for States to avoid their own responsibilities;

(h) The implementation provisions of the draft Norms are burdensome and unworkable. The vagueness of some of the provisions in the draft Norms would make it difficult for a tribunal to adjudicate any communication that came before it and the reporting requirements in the draft Norms are burdensome. The binding approach adopted in the draft Norms could also be counter-productive, drawing away from voluntary efforts and focusing on the implementation of only bare minimum standards;

(i) The draft Norms duplicate other initiatives and standards, particularly the OECD Guidelines for Multinational Enterprises and the ILO Tripartite Declaration.

21. Those stakeholders welcoming the draft Norms argued that they:

(a) Are the most comprehensive, clear and complete initiative or standard on business and human rights that goes beyond labour standards;

(b) Add to, rather than duplicate, existing initiatives and standards by attempting to identify the responsibilities of business in relation to specific human rights;

(c) Provide a common set of standards for all business in relation to human rights and a level playing field for competing companies;

(d) Provide a tool for evaluating current and future practices. The draft Norms offer a template of relevant rights and responsibilities against which companies can review and assess their activities in relation to human rights to assist them in understanding how operations can affect individuals and communities;

(e) Establish the right balance between the obligations of States and companies with regard to human rights. The draft Norms do not challenge the role of the State as primary duty bearer for human rights, but the draft does indicate that companies have secondary responsibilities with regard to human rights within their respective spheres of activity and influence;

(f) Provide a normative framework and template for action by States, assisting States in establishing national legislation by identifying specific areas where the State should regulate the activities of corporations in order to meet its obligations to protect human rights;

(g) Attempt to deal with the situation where a company is operating in a State which is unwilling or unable to protect human rights. The identification of direct international legal obligations applicable to business envisaged by the draft attempts to address a situation where the State has either failed to legislate effectively, or is unable to protect human rights in the particular situation;

(h) Address the current fatigue and mistrust amongst civil society in relation to voluntary initiatives which work for the well-intentioned and, although of significant value, do not cover all companies (many companies do not have a human rights policy). Voluntary initiatives are both inconsistent in their treatment of human rights and insufficient to mitigate comprehensively all threats to the enjoyment of human rights;

(i) Offer the possibility of a remedy to victims of human rights violations. This builds on voluntary initiatives which are not supervised by an independent body and which do not necessarily guarantee a right to a remedy in the case of clear violations.

22. While views on the document are divided, it is relevant to note that the draft Norms, having the status of a draft proposal, could be subject to review and consideration by the Commission. In this context, it is relevant to note that the Business Leaders’ Initiative on Human Rights is currently “road-testing” the draft Norms with companies from different international business sectors with the objective of demonstrating ways in which to implement human rights. Those business entities engaged in the “road-testing” are committed to understanding better the draft Norms as well as to finding methods of applying the content of the document by defining what is “essential”, “expected” and “desirable” behaviour for all companies. The process will continue until December 2006.

II. OUTSTANDING ISSUES

23. The following outline of “outstanding issues” is based on three general assumptions. The first is that business, like all actors in society, has to operate in a responsible manner, including through respecting human rights. This can be drawn from the Universal Declaration of Human Rightsv and also reflects the reality in many countries, where national legislation outlines the responsibilities of business with regard to human rights.vi Internationally, many companies participate in the United Nations Global Compact, which stipulates that those companies should support and respect internationally proclaimed human rights. Similarly, many businesses have already adopted voluntary guidelines and codes of conduct and are seeking greater clarity on how they can avoid problems and positively affect the enjoyment of human rights in their activities.

24. Second, business has an enormous potential to provide an enabling environment for the enjoyment of human rights through investment, employment creation and the stimulation of economic growth. The activities of business have also threatened human rights in some situations and individual companies have been complicit in human rights violations.vii The clarification of responsibilities of business with regard to human rights could help prevent human rights problems from arising, help States regulate business entities more effectively and at the same time assist in channelling the benefits of business towards the promotion of human rights.

25. Third, the broad review of existing initiatives and standards on business and human rights in the previous section indicates that there remains a gap in understanding the nature and scope of responsibilities of business with regard to human rights. While corporate social responsibility initiatives have grown rapidly over the last ten years, the human rights dimensions of those initiatives have not developed at an equal pace nor have they developed consistently. This, in turn, could lead to inconsistent practices between companies and across nations.

26. With this in mind, the following section identifies “outstanding issues” in order to assist the Commission in identifying “options for strengthening standards on the responsibilities of transnational corporations and related business enterprises with regard to human rights and possible means of implementation”, as stipulated by decision 2004/116.

What are the responsibilities of business with regard to human rights?

27. In considering the responsibilities of business with regard to human rights, it is important to reiterate that States are the primary duty bearers of human rights. While business can affect the enjoyment of human rights significantly, business plays a distinct role in society, holds different objectives, and influences human rights differently to States. The responsibilities of States cannot therefore simply be transferred to business; the responsibilities of the latter must be defined separately, in proportion to its nature and activities.

28. The Global Compact has identified responsibilities of business in connection with two principles:

(a) Principle One: Businesses should support and respect the protection of internationally proclaimed human rights;

(b) Principle Two: Businesses should make sure that they are not complicit in human rights abuses.

29. This provides a useful starting point for understanding the responsibilities of business with regard to human rights, suggesting three forms of responsibility. The first two responsibilities - to “respect” and to “support” human rights - relate to the acts and omissions of the business entity itself. The third responsibility on business entities - to “make sure they are not complicit” in human rights abuses - concerns the relationship between business entities and third parties.

30. A responsibility to “respect” human rights is comparatively unproblematic and requires business to refrain from acts that could interfere with the enjoyment of human rights. For example, a private detention centre institution should refrain from inflicting cruel, inhuman and degrading treatment on people detained.

31. More complex issues arise in relation to the responsibility to “support” human rights. For example, the responsibility to “support” human rights suggests that business entities carry positive responsibilities to promote human rights. On the one hand, business entities have a great and sometimes untapped potential to promote human rights through investment, and promotion of economic growth and the underlying conditions required for the enjoyment of human rights. A responsibility to “support” human rights could help channel this. On the other hand, accepting that business has positive responsibilities to use its influence to promote human rights could sit uneasily with the traditional discretion of States to make appropriate choices and exercise balance in designing policies to fulfil human rights.viii In this context, it is relevant to note that business entities already carry positive responsibilities in other areas of national law, for example in the law of negligence when discharging a duty of care to employees or local communities. This could provide guidance when clarifying the positive responsibilities on business to “support” human rights.

32. Similarly, subdividing the responsibility to “support” human rights into subcategories of responsibilities could be helpful. For example, the Committee on Economic, Social and Cultural Rights has subdivided the obligations of States parties to the International Covenant on Economic, Social and Cultural Rights into obligations to respect, protect and fulfil (promote, provide and facilitate) economic, social and cultural rights. The responsibilities to “support” human rights could therefore be clarified by considering what business could do to protect, promote, provide and facilitate human rights. These sub-responsibilities could then be classified as “essential”, “expected”, or “desirable” conduct of business entities.

33. The responsibility on business entities to “make sure they are not complicit in human rights abuses” similarly raises complex issues. Corporations often act with other partners in joint ventures or with national and local governments which could lead to allegations of complicity if the partner itself has abused human rights. One definition of “complicity” states that a company is complicit in human rights abuses if it authorizes, tolerates, or knowingly ignores human rights abuses committed by an entity associated with it, or if the company knowingly provides practical assistance or encouragement that has a substantial effect on the perpetration of human rights abuse.ix

34. Four situations illustrate where an allegation of complicity might arise against a company. First, when the company actively assists, directly or indirectly, in human rights violations committed by others; second, when the company is in a partnership with a Government and could reasonably foresee, or subsequently obtains knowledge, that the Government is likely to commit abuses in carrying out the agreement; third, when the company benefits from human rights violations even if it does not positively assist or cause them; and fourth, when the company is silent or inactive in the face of violations.x As with the responsibility to “support” human rights, the duty on business to act or not act in each of these situations might not always be clear. Questions arise as to the extent of knowledge that the business entity had or should have had in relation to the human rights abuse and the extent to which it assisted through its acts or omissions in the abuse.

35. National and international criminal law has elaborated the doctrine of complicity as a basis for criminal liability, including criminal liability for legal persons for their complicity in crimes. The doctrine of complicity under national and international criminal law could therefore provide guidance in the further elaboration of this responsibility.xi

What are the boundaries of the responsibilities of business with regard to human rights?

36. In contrast to the limits on States’ human rights obligations, the boundaries of the human rights responsibilities of business are not easily defined by reference to territorial limits. While a small business might have relatively limited influence over the enjoyment of human rights within a particular country, a large company might influence the enjoyment of human rights across boundaries. Defining the boundaries of business responsibility for human rights therefore requires the consideration of other factors such as the size of the company, the relationship with its partners, the nature of its operations, and the proximity of people to its operations.

37. A helpful means to understand the scope and boundaries of the responsibilities of business is the non-legal concept of “sphere of influence”. The concept has not been defined authoritatively; however the “sphere of influence” of a business entity tends to include the individuals to whom it has a certain political, contractual, economic or geographic proximity. Every business entity, whatever its size, will have a sphere of influence; the larger it is, the larger the sphere of influence is likely to be.xii It is relevant to note that the Global Compact asks participating business entities “to embrace, support and enact, within their sphere of influence” its ten principles.

38. The notion of “sphere of influence” could be useful in clarifying the extent to which business entities should “support” human rights and “make sure they are not complicit in human rights abuses” by setting limits on responsibilities according to a business entity’s power to act. Importantly, “sphere of influence” could help clarify the boundaries of responsibilities of business entities in relation to other entities in the supply chain such as subsidiaries, agents, suppliers and buyers by guiding an assessment of the degree of influence that one company exerts over a partner in its contractual relationship - and therefore the extent to which it is responsible for the acts or omissions or a subsidiary or a partner down the supply chain.xiii At the same time, “sphere of influence” should help draw the boundaries between the responsibilities of business and the obligations on States so that business entities do not take on the policing role of Government. Finally, the notion of “sphere of influence” could ensure that smaller business entities are not forced to undertake over-burdensome human rights responsibilities, but only responsibilities towards people within their limited sphere of influence.

39. The Commission might wish to consider and develop further the concept of “sphere of influence”.

In relation to which human rights does business have responsibility?

40. There are many sources of human rights that could be relevant to defining the rights for which business has responsibilities. At the global level, international human rights law provides the primary source. Importantly, the Universal Declaration of Human Rights has become a point of reference for many initiatives and standards on business and human rights. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the other main human rights treaties provide a further source. While human rights coverage is not equal across nations due to varying levels of ratification, it is important to note that all States have ratified at least one human rights treaty. Significantly, the Convention on the Rights of the Child, which recognizes all civil, cultural, economic, political and social rights in relation to children, has achieved almost universal acceptance with 191 ratifying States. Similarly, some human rights have become norms of customary international law and can therefore be considered to have universal application.xiv


41. The international instruments give little guidance as to which human rights are relevant to the activities of business.xv In principle, the responsibility to “respect” human rights could apply to all recognized rights; business entities should therefore refrain from interfering with the enjoyment of any rights. However, to the extent that business entities have positive responsibilities to “support” human rights, the rights applicable to business are necessarily narrower than those applicable to States, given the very different nature of business and the role it plays in society. Importantly, rights that require sensitive balancing decisions in the public interest or intervention by a public authority would be outside the scope of business responsibilities. For example, some rights such as the rights relating to criminal trials, the right to asylum and political rights are wholly within the public functions of the State and therefore less directly relevant to business.

42. A non-exhaustive list of human rights more relevant to business could include: the prohibition of discrimination, the right to life, liberty and security of the person, freedom from torture, the right to privacy, freedom of opinion and expression, the right to seek, receive and impart information, freedom of association, the right to organize, the prohibition of bonded or forced labour, the prohibition of forms of child labour, the right to health, the right to an adequate standard of living and the right to education. Similarly, the rights of certain groups of people particularly affected by the activities of business are relevant - such as the rights of women, children, employees, indigenous peoples and migrant workers and their families.xvi

How can the responsibilities of business with regard to human rights be guaranteed?

43. Ensuring that business respects human rights is first a matter of State action at the domestic level. States have undertaken international obligations to respect the rights of individuals and groups of individuals and to protect those rights against the actions of third parties; those third parties include business entities. Many countries have introduced human rights implementing legislation that regulates business entities in areas such as discrimination and workers’ human rights. Courts and quasi-judicial tribunals enforce these laws.

44. Companies also have an important role to play in ensuring that they protect human rights standards in their own operations. Voluntary initiatives on business and human rights can help to promote a culture of respect for human rights from within the company and can give human rights standards practical meaning while motivating positive change in support of human rights. Companies can also promote human rights in their relationships with business partners through the inclusion of contractual terms stipulating respect for human rights as part of a business deal. Similarly, markets mechanisms have a role to play in ensuring respect for human rights through the use of environmental and social indices and public reporting on social responsibility which rates the performance of business entities, which in turn can affect market confidence and motivate better performance.

45. Nonetheless, company and market initiatives have their limits and are not necessarily comprehensive in their coverage nor a substitute for legislative action. Importantly, while voluntary business action in relation to human rights works for the well-intentioned and could effectively raise the standard of other companies, there remains scepticism amongst sectors of civil society as to their overall effectiveness.

46. There is also a question of how to ensure respect for human rights in situations where effective governance or accountability are absent because the State is unwilling or unable to protect human rights - for example due to a lack of control over its territories, weak judiciary, lack of political will or corruption. A lack of appropriate regulation and enforcement by the State could fail to check human rights abuses adequately while also encourage a climate of impunity. A particularly complex issue involves the regulation of companies headquartered in one country, operating in a second and having assets in a third. There is concern that business entities might evade the jurisdictional power of States in some situations, which could lead to negative consequences for the enjoyment of human rights.

47. Increasing attention is being given to whether and to what extent parent companies should be subject to the law and jurisdiction of their home countries in relation to their operations abroad. The United States Alien Tort Claims Act provides one example of a home country measure which gives courts power to hear civil claims by foreign citizens for injuries caused by actions in violation of the law of nations or a treaty of the United States although other examples also exist. Subjecting parent companies to their home jurisdiction for alleged human rights abuses against claimants of the host country raises questions of respect for the national sovereignty of the host country while also highlighting several complex legal questions which require further examination.xvii Nonetheless, home country regulation could provide an effective means of protecting human rights in situations where accountability gaps exist.

48. The Commission might wish to study and analyse in greater depth the protection of human rights in situations where a host State is unwilling or unable to protect human rights, including studying the opportunities offered by home country regulation.

Is there a need for a United Nations statement of universal standards setting out the responsibilities of business entities with regard to human rights?

49. The Commission has charged itself with identifying options for the strengthening of standards on business and human rights. In this context, there appears to be a growing interest in discussing further the development of a United Nations statement of universal standards on business and human rights. Issues the Commission might wish to examine in this regard include:

(a) Whether such a statement could help to clarify the current gap in understanding of human rights responsibilities of business and could provide a means to build upon the two human rights principles contained in the United Nations Global Compact - in particular, by giving greater clarity to the positive steps business could take to “support” human rights;

(b) Whether the international nature of a United Nations statement could assist business in creating a level playing field by identifying the standards that all business should respect;

(c) Whether a United Nations statement could assist business, States and civil society to navigate the human rights dimensions of the corporate social responsibility framework;

(d) Whether a United Nations statement might also be helpful in the development of tools to assist business to promote human rights, by providing an authoritative text to explain human rights responsibilities and to develop indicators, human rights assessment methodologies and other materials;

(e) Whether a United Nations statement might assist national Governments in developing or strengthening national standards for business conduct as it affects human rights;

(f) Whether a United Nations statement could assist treaty bodies in the process of constructive dialogue with States parties to human rights treaties by identifying with clarity the requirements on States to protect human rights from the actions of third parties.

What would the legal nature of those responsibilities be?

50. International human rights law generally imposes obligations on States, although some exceptions do exist, for example, in relation to armed groups.xviii States parties to human rights treaties have the obligation to protect individuals and groups of individuals from the actions of third parties, including business entities. The process of elaborating a statement of universal standards on business and human rights would raise the question of the legal status of that text and whether it would impose direct legal obligations on business with regard to human rights. The Commission might wish to consider further the effect of imposing direct legal obligations on business entities under international human rights law and how such obligations might be monitored.

What tools are needed to promote respect for human rights within the activities of business?

51. In its decision 2004/116, the Commission also envisages further work on the question of implementation of standards. The consultation process identified a number of areas where further work was needed. These included the development of human rights impact assessment methodologies to assist businesses to assess the real and potential impact of operations on the enjoyment of human rights; the elaboration of training materials to assist business entities in supporting human rights within operations; compilations of best business and State practices in the field of business and human rights; the introduction and strengthening of technical assistance to States in the area of business and human rights, including judicial training, assistance in establishing national regulatory authorities and help in drafting legislation and other regulations.

CONCLUSIONS AND RECOMMENDATIONS

52. The consultative process undertaken in the preparation of this report has marked a further step in a continuing dialogue between States and different stakeholders on the question of business and human rights. In light of this process, the High Commissioner formulates the following conclusions and recommendations to help progress this dialogue and assist the Commission “to identify options for the strengthening of standards on the responsibilities of transnational corporations and related business enterprises with regard to human rights and possible means of implementation”. In doing so, the High Commissioner underlines not only the importance of this issue to the Commission’s agenda but also the need for the Commission to act expeditiously to build upon the significant momentum that currently exists to define and clarify the human rights responsibilities of business entities. Defining and clarifying these responsibilities will provide a significant basis to promote dialogue and to resolve the many challenges that stakeholders face in the area of business and human rights.

(a) On the basis of the review of existing initiatives and standards, there are gaps in understanding the human rights responsibilities of business with regard to human rights.

(b) There is a growing interest in discussing further the possibility of establishing a United Nations statement of universal human rights standards applicable to business.

(c) The present consultation process should be seen as a beginning and there is a need, through the Commission, for continued dialogue and consultation among all stakeholders on the question of business and human rights. In this context, there is a particular need to consider ways to include more effectively the views and opinions of States and stakeholders from developing countries.
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