International Human Rights Law - Essay Example

YM Leyson For: Unidentified International Human Rights Law 31 March 2006 Multinational or transnational corporations (TNC’s) are probably the most apparent vehicles for globalization of the economic system. They serve as functional links to the sound economics of different nations and a primary stimulus for the furtherance of transnational relations. As nations become interconnected, multinational corporations create avenues for interactions with foreign nations bringing the lure of foreign investment and capital. However, critics often associate TNC’s ventures to third world countries as agents of disaster. The process of attaching to third world repressive regimes and conflict zones often permits the most horrific human rights abuse through promulgation of unsavory business practices as pointed by GE1. Several of these multi-national firms are accused of economic imperialism and the fostering of intercountry competition as related in Blake,et al 2. Governed by the rules of supply and demand, their loyalties are solely afforded to their stockholders. Amidst accusations and public scrutiny, extra-territorial corporate regulations are implemented to address human rights concerns as provided by U.S. Dept. of Commerce3. Serious calls for legislative challenges alleged that the American Government as a whole benefited from this internationalization of production and marketing. As the parent country of TNC’s, such allegations created fear among the public officials who are likely dragged into the difficult situation. As a result of these concerns, the government has imposed stringent measures to unravel the complications of jurisdictional disputes and direct relationship of the parent state and the host country over the multinational corporations. Along with other parent countries standard policies for control were established to meet the specific demands of their parents and host. In response a number of multinational corporations countered with their own voluntary policies and/or codes developed with industry groups, intergovernmental organizations and multi-stakeholder initiatives to provide as an adjunct to the established principles provided by the state or parent countries, in Simons4. Voluntary Principles were also established by the United States and United Kingdom to offer as guidelines for human rights assessment techniques. The United Nations Human Rights Responsibilities also upheld an effective model for voluntary self-assessment and verification methods to ensure corporate accountability. Problems are often encountered though at their regulations especially in conflict zones where host countries are themselves strong advocates of inhumane conditions and abuses on their own people. Such observations are particularly noted where transnational corporations are involved in joint ventures or other business relationships with the host government in ICHR Policy Report.5 Evaluative guidelines geared towards human rights performance reporting are provided in a 2002 Sustainability Report as a means of disseminating current activities of the involved multinational corporations. Such are available for the public’s information as particularly conferred by Dr. Wiwa in Forcese, as follows: “Groups should continue to put the pressure on corporations here, on their shareholders, put the pressure on your governments, and to me, most important, on your consumers. We should let the consumers know, continue to let them know, that before some of these products come here,people are killed. Trees, populations are destroyed; their cultures are destroyed…,if the many consumers are informed…, if they get to know in detail what happens before products come here, they will force the corporations to change. Because they [the consumers] are the ultimate power.”6 Parent-countries though will encounter difficulties in the exercise of their powers for implementation due to its obligation to protect the human rights of their citizens on foreign soil. Any detrimental factors that affect the global competitiveness of such TNC’s are also covered by national laws thereby limiting the powers for its efficacy. The outcome for conflicting laws has allowed corporations operating outside their national jurisdiction to commit or aid in human rights violations. In Beanal v. Freeport-Mc-Moran7; and Bigio v. Coca-Cola;8: recent basis for dismissals included failure to plead international law violations. Both cases concerned racial discriminatory acts as Beanal and co. were tribesmen of the Amungme Tribe while in Bigio; plaintiffs against Coca-Cola in Egypt were all Jewish. Allegations of torture; arbitrary arrest and unlawful detention among others were the main complaints which were all carried out by working guards on the Freeport Mc-Moran open pit for gold, copper and silver mine. In Dec.2001, a US District Court dismissed another case filed by Holocaust survivors for alleged deportation of Jews from their homes against the French National railroad company which invoked sovereign immunity under Raymonde Ambrams v. Societe Des Chemins9. In December 18, 2002, the United Nations ratified the Optional Protocol to the Convention Against Human Torture…10 The lack of practicable model that defines norms stipulates consequences for non-compliance has made it possible to crimes to continue even with its ratification as pointed out by Gagnon, et. al11. As gleaned from the report on voluntarism, “[w]hile there is no hierarchy of rights; abuses that attack the immediate physical survival of people – such as arbitrary killings, torture, enforced disappearances, forced displacement, deliberate starvation or denial of medical care –require swifter and stronger action”12. The regulation models “fail to meet human rights standards, or lack implementation measures and independent audits”13. Its voluntary provision leaves room for corporations to choose and shun their responsibilities in cases where the “principles clash with other, more powerful commercial interests”14. Despite the horrific crimes committed against mankind, it is still increasingly difficult to hold these TNC’s in account. A case under trial for Alien Tort Claims (“ATCA”) against human rights violations includes in anticipation Burmese citizens who were forced to do labor for Yadana Gas Pipeline, which has a Joint Venture Agreement with Unocal and the Burmese military in Doe v. Unocal15. The locals complained of sexual assaults by military officials hired to provide security; dislocated from their dwellings and murder. Based on technicality, Judge R. Lew granted Unocal’s motion for summary judgment despite evidence that Unocal indeed benefited from slave labor. However, Unocal has agreed to a landmark settlement to the 15 plaintiffs in this case claiming victory for the Human Rights Activists. Highly publicized cases involving African citizens of Sudan and Nigeria include Presbyterian Church v. Talisman Energy16; and Bowoto v. Chevron17. Both cases amplify systematic violations of human rights including torture, cruel and inhuman and degrading treatment and suppression of protests and in Sudan the worst case scenario of genocide against the non-Muslims. Both companies were allegedly aware of the military operations and in fact aided the crimes logistically. Motions for dismissal on the both cases were openly denied by the US courts. Similar allegation have been filed against British Petroleum, Royal Dutch/Shell Group and other TNC’s for complicity in the brutal repression by the Nigerian military that led to the trial and execution of writer/activist Ken Saro Wiwa and nine others18. There is indeed a growing demand for multinational corporations to claim responsibility and accountability for their actions. Settlement Agreements like in Bano v. Union Carbide19, can never rebuild the health of the injured and the lives of women who will have reproductive problems due to Bhopal’s leakage of poisonous gas in India. To date Coca Cola, being the widely noted corporate symbol for decades is known for its leadership status against workers’ rights, assassinations, water privatization, discrimination in their transnational bottling plants with the use of paramilitary forces in Colombia, Varanasi, Thane, and Tamil Nadu. In Mexico, the largest Coca-Cola bottler fired its senior bottling manager for being gay. As the largest employer in the African continent, medicines are only partially covered20. Popular US companies involved in food products with known activities of human rights violations include Monsanto in India21; and Nestle in Mali and the Ivory Coast22 with evidence of child labor practices. Most companies mentioned above are being sued for Alien Torts Corporate Act (ATCA), a law that allows citizens of any nationality to sue in US federal courts for the violation of human rights treaties. If the state cannot forcibly enact on its laws, then the public shall most likely do. Recent developments are stopping banks from hiding Human Rights abusers money under the ATCA. A court decision in Japan have ruled for the first time against the Japanese government and selected businesses involved for compensation payment to South Korean and Chinese workers for forced labor during the World War II as reported by Kyodo23. For enabling house demolitions and supplying equipment that killed Palestinian civilians and American Peace Activists, Caterpillar despite worldwide protest continued providing Israel with bulldozers is being lambasted with a family suit in 200524. On April 01, 2006 the ICAHD will rebuild the house of these people25. While recognizing that these multinational companies are not human rights agencies, the critical role and responsibility to enhance respect for the human rights of their host nation apply similarly. Accountable systems of evaluation is in dire need of the clearest lessons for due diligence. The emphasis of legal currents and liabilities towards the host nations should be foremost goal for consideration and study. Corporate players would reduced the risks of nasty criticisms should they intend to follow guidelines and work towards its implementation. These multinational corporations should thereby revisit their Business Principles to actively uphold human rights. As pointed out by Gagnon et. al26, a governance gap exists between parent nation and the multinational corporations. Patchworks of legal mechanisms are available to modify their corporate behavior when questioned severely. Currently, on the basis of pending trials on transnational corporations a Code of conduct that governs their specific actions towards countrymen of host nations should be implied. When operating in “conflict zones”, they shall be held responsible for participating in activities, directly or indirectly involving human and labor abuse practices. As a rule, agreements should require risk management standards to this specific situation which apparently are not met. These should be followed strictly rather than ignored. Monitoring bodies for the compliance of such guidelines are not properly identified or lacked the resources to properly implement which resulted in the continuous process of violations, the product of which are evidenced by the number of cases currently undiminished. Simons27 pointed out that the compliance mechanisms of voluntary policies and codes, in an analysis showed its common flaws. In the Bhopal accident28, Dow Chemicals which purchased the rights of Union Carbide sought to inherit the ravages left by the previous company. A Doe spokesman, when challenged on the Bhopal legacy shortly after their announcement of the acquisitions in 2001 said, “We have no responsibility in this matter, there is nothing more we can do”29. The justification for inaction and irresponsibility points to the lack of practicable models that define norms that stipulates consequences for non-compliance. Ultimately, this confirms that the main obstacle to the implementation of the ordained guidelines is finding the political will. Bibliography Global Exchange. “Most Wanted Corporate Violators of 2005”(2005). Blake,David H. et.al “The Politics of Global Economic Relations.” (2nd edn Prentice-Hall,New Jersey 1983) 104-107. US Dept. of Commerce[1977]“U.S. Direct Investment Abroad” 1934. Simons, Penelope, “Corporate Voluntarism and Human Rights: The Adequacy and Effectiveness of Voluntary Self-regulation Regimes” Relations Industrielles(Canada,Wintr 2004). International Council on Human Rights Policy Report, Beyond Voluntarism Human Rights and the Developing International Legal Obligations of Companies, February 2002, Versoix, Switzerland at 141 UN Amnesty Int’l.(Wiwa ) “Promoting and Protecting Human Rights and the Environment, Summary of a Roundtable Discussion”. http://www.n-h-i.org/Publications/Pubs_pdf/Hr_env.pdf (visited Mar.31,2006). Beanal et.al v. Freeport-McMoran,Inc.,et.al.[1999]197 F3.d 161 Bigio et.al.v. Coca-Cola,et.al. [2001]239 F.3d 440 Raymonde Abrams v. Societe Des Chemins De Fer Francaise,[2001] CIV.A.00-CV5326. UNHCHR[2002] http://www.ohchr.org/english/law/cat-one.htm (visited Mar.31,2006) Gagnon,G., Macklin,A. and Simons,P. “Deconstructing Engagement Corporate Self-Regulation in Conflict Zones-Implications for HR and Canadian Public Policy.(2003) http://www.law.utoronto.ca/documents/Mackin/DeconstructingEngagement.pdf (visited Mar.31,2006) United Nations Development Programme Report, Human Development Report [2000] http://hdr.undp.org/reports/global/2000/en/ (visited March 31, 2006) Doe,et.al v. Unocal Corp.[2002]00-56628. Presbyterian Church of Sudan v. Talisman Energy, Inc. [2001]01CV9882. Bowoto, et.al v. Chevron, et.al.[2000]C99-2506 Ganesan, Arvind[2005] “Business and Human Rights-The Bottom Line” http://www.hrw.org/corporations/commentary.htm (visited Mach 31,2006) Bano, et. al v Union Carbide[1999]67F.Supp.2d 424. India Resource Center [2005] “Coca-cola Challenged on Human Rights Abuses.” http://www.indiaresource.org/campaigns/coke/2005/cokechallenged.html (visited March 31,2006) Global Exchange [2006] “Most Wanted” Corporate Human Rights Violators of 2005. http://www.globalexchange.org/getInvolved/corporateHRviolators.html (viewed 31 Mar 2006) Kyodo News Agency (2005)BBC News Reports. Human Rights Watch [2006]. http://www.hrw.org/ICAHD.htm (viewed 31 Mar 2006). Origin Creative[2006] “The Changing Landscape of Liability: A Directors Guide to Trends in Corporate Environmental, Social and Economic Liability” http://www.law.utoronto.ca/documents/Mackin/DeconstructingEngagement.pdf (visited on Mar.31,2006) Read More