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Beyond Voluntarism: Human Rights and the Developing International

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Beyond Voluntarism: Human Rights and the Developing International SPINE WIDTH? Do private companies have a legal responsibility to respect human rights? The debate on business and human rights is well underway. The “spotlight” of human Beyond Voluntarism Beyond Voluntarism rights concern, traditionally focused on governments, is now turned on the conduct of companies. Most discussion and campaigning, however, centres around voluntary initiatives, such as codes of conduct promoted by companies or NGOs. As the limitations of voluntarism have emerged, however, companies, campaigners and legal experts have started to look harder at international human rights law. The private sector increasingly accepts that it has social and moral responsibilities. Can such commitments be anchored in international law? In the last 50 years the Beyond Voluntarism world’s governments, particularly through the United Nations, have agreed dozens of standards that define and guarantee basic human rights and freedoms. To what Human rights and the extent do these standards – originally aimed at states – create binding legal human rights and the developing international legal obligations of companies obligations on companies? developing international legal obligations of “It will constitute a significant contribution to the debate and will become a standard reference source.” Peter Muchlinski, Professor of Law and International Business, University of Kent, and author Multinational Enterprises and the Law companies “This a valuable and challenging report, central to the current debate on the future role and responsibilities of companies in a more critical world. The arguments are set out with admirable clarity.” Sir Geoffrey Chandler, Founder-Chair, Amnesty International UK Business Group 1991-2001; former senior executive Royal Dutch/Shell Group. International Council on Human Rights Policy 48, chemin du Grand-Montfleury P.O. Box 147 1290 Versoix, Switzerland Tel.: (4122) 775-3300 Fax: (4122) 775-3303 Email: [email protected] Web: www.ichrp.org ISBN 2-940259-19-4 EAN 9782940259199 inside front cover inside back cover The International Council on Human Rights Policy The International Council on Human Rights Policy was established in Geneva in 1998 to conduct applied research into current human rights issues. Its research is designed to be of practical relevance to policy-makers in international and regional organisations, in governments and intergovernmental agencies, and in voluntary organisations of all kinds. The Council is independent, international in its membership, and participatory in its approach. It is registered as a non-profit foundation under Swiss law. Additional information about the Council, and other research projects it is undertaking, may be found at the end of this document. Beyond Voluntarism Human rights and the developing international legal obligations of companies The Council thanks the Federal Department of Foreign Affairs (DFAE) of Switzerland and the Department for International Development (DFID) of the United Kingdom for their financial contribution to this project, and the Ford Foundation (New York), the Swedish International Development Co-operation Agency (SIDA), the Royal Danish Ministry of Foreign Affairs and Humanitarian Department, Christian Aid (UK), and OXFAM (UK) for their financial contributions to the International Council. Beyond Voluntarism Human rights and the developing international legal obligations of companies © International Council on Human Rights Policy February 2002 Published 2002 International Council on Human Rights Policy 48, chemin du Grand-Montfleury, P.O. Box 147, 1290 Versoix, Switzerland © Copyright 2002 International Council on Human Rights Policy Beyond Voluntarism: human rights and the developing international legal obligations of companies, 2002, International Council on Human Rights Policy, Versoix, Switzerland, 165 mm x 220 mm, 174pp. ISBN 2-940259-19-4 Design & layout by Aplin Clark, London, UK. Cover illustration: © The British Museum. English Delftware dish, with a scene of a merchant ship, dated AD 1663. Made for display purposes, the dish commemorates the marriage of John Garway, ('I.GM'), freeman of the London Haberdashers' Company, and Mary Holgrove, on 21 May 1663. Gift of Sir A.W. Franks. Printed by: ATAR Roto Press SA, 1214 Vernier All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording and/or otherwise without the prior permission of the publisher. The designation of geographical entities in this report, and the presentation of the material, do not imply the expression of any opinion by the International Council on Human Rights Policy concerning the legal status of any country, territory, or area, or of its authorities, or the delimitation of its frontiers or boundaries. The International Council on Human Rights Policy is a not-for-profit foundation registered in Switzerland. A summary of this report is also available, in English, French, and Spanish. CONTENTS Contents page I. INTRODUCTION – PURPOSE AND DEFINITIONS 1 II. BEYOND VOLUNTARISM – THE IMPORTANCE AND RELEVANCE OF INTERNATIONAL LAW 7 The need for legal obligations 7 The case for international rules 11 Strengths of the human rights framework 15 Legal framework brings advantages for companies 18 III. INTERNATIONAL HUMAN RIGHTS LAW – OUTLINE AND EXAMPLES 21 Outline of the international human rights system 21 Survey of specific human rights guarantees 23 Non-discrimination 23 Women’s rights 24 Life, liberty and physical integrity of the person 26 Civic freedoms 27 Employees’ rights 28 Child labour 31 Slavery, forced and bonded labour 32 Economic, social and cultural rights 34 Vulnerable groups 38 Indigenous Peoples 38 Right to information 40 Environment and human rights 41 IV. INDIRECT OBLIGATIONS – DUTIES ON STATES 45 The importance of national law 45 The duty to protect – obligations on states to regulate private actors 46 Provisions in human rights treaties 47 Interpretations by human rights courts 50 When is a state responsible for abuses by private actors? 51 Privatisation and the “private” sphere 53 Summary – indirect obligations 54 V: DIRECT OBLIGATIONS – DUTIES ON COMPANIES 55 International law is not only for states 55 Applying international standards directly to companies 58 The Universal Declaration of Human Rights 58 "Elementary considerations of humanity" and international criminal law 62 UN declarations, human rights treaties & world conferences 64 The OECD Guidelines for Multinational Enterprises 66 ILO Tripartite Declaration 69 Voluntary business codes of conduct 70 Responsibility of individuals to respect human rights 71 Conclusions on direct international legal obligations 73 Progressive development of international law 75 VI: ENFORCING OBLIGATIONS THROUGH INTERNATIONAL PROCEDURES 77 Legal obstacles at the national level 77 ENFORCING INDIRECT OBLIGATIONS 83 United Nations and regional human rights systems 83 UN treaty bodies 83 UN Commission on Human Rights 85 Regional human rights tribunals 87 European Social Charter 87 International Labour Organisation 89 The North American Free Trade Agreement (NAFTA) 91 Complaints under the environmental side accord 92 Complaints about violations of labour standards 94 ENFORCING DIRECT OBLIGATIONS 99 OECD Guidelines for Multinational Enterprises 99 Procedure for interpreting Guidelines 100 ILO Tripartite Declaration 102 Interpretation of Tripartite Declaration 102 Domestic litigation to hold corporations accountable abroad 103 US litigation against corporations for abuses abroad 103 Litigation in other jurisdictions 105 Direct enforcement through international procurement policies 106 World Bank Policy Guidelines 106 World Bank Inspection Panel 107 THE WORLD TRADE ORGANISATION (WTO) – A SPECIAL NOTE 110 WTO dispute settlement mechanism 112 Exceptions to free trade: Article XX & human rights 114 International harmonisation 115 CONCLUSIONS – INTERNATIONAL ENFORCEMENT PROCEDURES 117 VII. COMPLICITY – ASSESSING CORPORATE RESPONSIBILITY FOR VIOLATIONS COMMITTED BY POLITICAL AUTHORITIES 121 Introducing tort & criminal law principles 122 Assessing Complicity 125 Where companies assist in human rights violations committed by others 126 Joint venture 128 Where companies benefit from human rights violations 131 Where companies are silent/inactive in the face of human rights violations 133 A company’s connection with (potential) victims and (potential) perpetrators 136 Connection with victims 136 Connection with perpetrators 139 Nature and scale of abuses 141 Interplay between connections 141 VIII. MOVING TOWARDS NEW INTERNATIONAL STANDARDS 143 Standard-setting gathers momentum 143 Baby milk 144 Conflict diamonds 145 Security issues and the extractive industry 148 Illicit trade in small arms 148 European Parliament – Call for EU legislation 150 Proposed Framework Convention on Tobacco Control 152 Anti-corruption treaties 153 UN Sub-Commission Draft Principles 154 Future prospects 155 IX. CONCLUSIONS 159 ANNEXE I: LIST OF COMMENTATORS 164 ANNEXE II: USEFUL WEB SITES 166 BIBLIOGRAPHY 167 ABOUT THE INTERNATIONAL COUNCIL 173 ACKNOWLEDGEMENTS Numerous people contributed their time and expertise to preparing this report. We wish in particular to acknowledge the following: Nicholas Howen was the lead researcher on the project and wrote much of the report. The report was edited by David Petrasek. A number of researchers prepared papers on the experience of individual countries. They included Maria
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