International Human Rights Law - Research Paper Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Essay Question: Discuss whether and how international human rights law may be used to define, promote and enforce the responsibility of multinational corporations to respect the human rights of people affected by their activities. Tutor : xxxxxxxxxxx @2011 Essay Question: Discuss whether and how international human rights law may be used to define, promote and enforce the responsibility of multinational corporations to respect the human rights of people affected by their activities. Table of Contents Introduction -Introduction to MNCs -How MNCs violate Human rights -How MNC violations are stopped Legal Measures -National laws -International laws -Extra-territorial laws - Soft Laws Non-legal Measures -Corporate Culture -Corporate Internal Policy -UN Norms -UN Global Compact Remedies to Human Rights Violation -Non Legal Measures -Legal Measures Introduction -Introduction to MNCs “Multinational corporation” (MNC) was a term coined by David Lilienthal in 1960.1 They are large organizations that exist in more than one country but have a single mother country. MNCs are thought to have existed at least a few centuries back. -How MNCs violate Human rights 1990s, momentum led to the exploration of the idea that huge multi-national corporations have a vital implication on human rights and as such should be held accountable in the event that their actions should violate such rights. According to Castan Centre for Humans Right Law (2003), Multi-National Corporations (MNC) is thought to infringe on human rights of developing countries through complicity and infringement of environmental rights. They also impact developed countries through rights to privacy, freedom of association, environmental respect, consumer rights to health and information. In light of the aforementioned, there is therefore a budding acceptance of the fact by business leaders with regard to the significance of human rights. Multi-Nationals have as such resorted to respecting human rights when it comes to conducting their businesses. The movement has as such included a great number of concepts for instance ‘corporate social responsibility’, ‘corporate sustainable development’ and ‘corporate citizenship’. -How MNC violations are Stopped According to Kirk (2008) the United Nations’ Special Representative Report has come up with a tripartite framework that serves to protect human rights. The framework transcends within the following principles of respect, remedy and protection. The formula entails both corporate and state elements (a state’s requirement to protect against various human rights abuses perpetrated by private persons and that of a corporation’s responsibility that ascertains that its actions do not work against the guarantees of human rights). However, it does not suggest that the available international human rights laws are vested with the responsibility of directly addressing corporations nor try any type of ‘binding’ regulation available globally. States on the other hand have been vested with the responsibility of protecting individuals who exist in a given jurisdiction against the violations of human rights. The duty of protection against corporate abuse is greatly acknowledged in case law.2 Their protection duty lies at the heart of international human right’s rule. It is also noted that the most basic human right expectation of a company is the respect of human rights.3 The methods that are formulated for the protection of human rights are based on pragmatism (which is an unflinching commitment that supports the strengthening principle, protection and promotion of human rights which relate to business and are as such joined to a pragmatic attachment that works appropriately in the creation of change where it is mostly required)4. The methods include the formulation of legislation (legal measures) and non-legal measures. Legislation includes; national laws, international laws, extra territorial regulations, soft laws and also the formulation of non legal measures. An example of legislation is the US’s Alien Tort Claims Act. Non-legal measures include codes of conduct such as; corporate cultures, UN Norms, Corporate Internal Policy and UN Global Compact. Governments have also taken a fore front in the fostering of corporate culture that respects human rights. Legal Measures (Legislations) National laws National regulation is pegged with the mandate to play a major role when it comes to the governing of the frameworks that address human rights and business paradigms. In theory, the government should be able to come up with rules that protect its subjects from abuse by corporations and also provide a remedy to compensate victims of such abuse. A legal environment that is stable and that ensures the observance of human rights is more prone to foster corporate and investment growth.5A clear guidance outlined by the state with regard to the liability boundaries and responsibility should aid companies in the pursuance of their respective business objectives which are conducted in a way that is socially responsible. Governments can help in the encouragement of human rights. There are domestic laws which cover areas such as labor rights, environmental protection, product safety, occupational health, anti-discrimination and safety. An example of domestic law in the United States is the United States federal Alien Torts Claims Act (ATCA) 1789 that grant rights to Aliens who sought remedies in the US courts as a consequence of a breach in their human rights both outside and inside the United States.3 It therefore stops MNCs from right violations that are not controversial and such as jus cogens (a major, non-derogable norm) by which customary known international laws are pegged on. Examples of such violations are slavery and torture. There are national laws both in the United States and Australia that provide compulsory codes of conduct which are in line with international standards for human rights for any corporation to abide by before operations on their soil.6 International laws International laws have the function of providing a legal basis in the proper handling of international relations. International law’s traditional nature was keyed into past centuries actualities in which inter-state relations were deemed as international relations. International laws may aid in the abating of the violation of human rights. The utilization of stabilization clauses in the drawing up of international investment contracts serves as a way in which international laws help. A good example is in the event of the endorsement of a given Human Rights Undertaking. It will lead to the invoking of a given stabilization clause that is in relation to a given novel human rights legislation that is in line with various European Union Standards. 3 However, international legislation only counts if the treaties are ratified or implemented universally. There has been the development of horizontality which is as a result of the effect of the imposition of responsibilities on given states. Whereby, a state is held accountable for the actions conducted within their respective jurisdiction. This puts the state liable for any human rights violations conducted on its soil by corporations and private entities.7 -Extra-territorial laws National governments may be involved in extra-territorial regulations. These regulations could aid in the mitigation of some of the problems that face national regulation.8 For instance the lack of willingness or the capacity to control in host state may not be difficult if subsidiaries that operate in the territory in question do not comply with home state directives for example those on human rights. The aforementioned could be executed through direct regulation (which is highly controversial) or via more indirect means. One example could be the requirement of a parent company to run policies throughout a corporate group on human rights policies. In light of public international law, the position was ascertained by the decision that transcended Barcelona Traction (Belgium v Spain) [1970] ICJ Rep 3. The mentioned controversies bring out extra-territorial regulation to be unattractive to many states9. - Soft Laws Soft Laws are also referred to as Quasi-legal regulatory regimes. The European Union Parliament has resolved on their respective codes of conduct which respect the observance of human rights in light with European MNCs that operate overseas.10 Non-legal Measures The ‘baseline’ of the role of corporations’ lies in its responsibility to ensure that human rights are respected 3. There lacks a notion with regard to companies being obliged to respect human rights (that go beyond those imposed via national regulation). Company responsibility is as such framed as to fall in a company’s ‘social responsibility’ mandate. The utilization of the term ‘responsibility’ instead of ‘duty’ or ‘obligation’ is deliberate. A great number of companies acknowledge their responsibility in the respect of human rights and as such there are a small number of companies which would suggest otherwise. The aforementioned obligation does not impose on a business’s wider responsibility than it currently appears as generally accepted.11 The responsibility is usually documented. It is noted that the human rights that corporations uphold, should be written down so as to help in the due diligence (means of recourse) that are outlined. The means of stopping the violation is further broken down into corporate policy and culture. -Corporate Culture Corporate culture is a method utilized by governments to help companies improve their respective human rights compliance of the respect of human rights.12 Corporate culture is very important in any given organization that is committed to the address of human rights issues. However, the implementation of the aforementioned form of culture entails support from organization levels that are highest in a given organization. Compliant corporate culture may be facilitated by the reporting of requirements with regard to environmental and social issues that are inclusive of human rights. The government may make it inclusive within director’s duties which relate to various social obligations by the use of sentencing guidelines that incentivize compliance and that ensure that enterprises that are state owned lead by example. The duties may also be inclusive of the fostering of a compliance and human rights culture. -Corporate Internal Policy Corporate Internal policy Companies may have laid down obligations in their individual codes of conduct that drawn to assist them to be in line with the preservation of human rights. Among some of the policies that have been put in place is the UN Global Compact. 13 According to Kinley & Joseph (2002), MNCs have come up with individual human rights policies, ethics and various codes of conduct. There has also been the adoption of a number of industry wide codes, for instance the Apparel Industry Partnership Initiative that exists in the USA and also FairWear that is in place in Australia. There are real possibilities in place that create and exploit various certification trademarks that would be able to signal consumers of goods that have been manufactured in line with the human rights obligations. Corporations may also have policies that ensure that their activities do not support corporate complicity. Corporate complicity refers to a situation in which corporations aid others who are perpetrators of abuses on human rights.14 Corporate complicity may be inclusive of events for instance the acceptance of direct benefits that are a result of human rights abuse (for example, in the use of expropriated land) without the direct involvement in the actual perpetration of the aforementioned abuse. It could also entail direct link that exists between human rights abuse and a particular company (that is usually perpetrated by a given state or by a person). It could involve the conducting of business in a given country that human rights abuses occur often and as such are economically supporting a given government that is known to violate human rights. -UN Norms In 1998, “the Sub-Commission of the United Nations Promotion and Protection of Human Rights (that was developed under the Commission on Human Rights auspice) started a functional group to assist in the investigation of the effects of transnational corporations’ activities with regard to human rights and as such also recommendations and proposals which ensure that the aforementioned activities are in line with the objectives of human rights. After considerable research, the United Nations came up with (‘UN Norms’) which transcended the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. 15 The aforementioned is a document that specified a collection of human rights duties deemed applicable to corporations. The Sub-Commission adopted the UN norms in 2003. The Norms consist of an authoritative guide with regard to corporate social responsibility. Corporate social responsibility is a concept by which a company manages a particular triple bottom line (environmental, economic and social) that impacts all the stakeholders. The community in turn gives the corporation a license to operate. Stakeholders include interest groups, the government, employees, the wider community, consumers, supplies and investors. UN Norms outline responsibilities of companies in line with labor and human rights. They also avail guidelines for companies that exist in conflict zones. They provide obligations and prohibit bribery in line with the environment & consumer protection. The general implementation provisions constitute the obligation for reparation in the event of compliance failure. However, they have been controversial due to their fairly extensive list and their mandatory tone of the applicable human rights obligations.16 -UN Global Compact It is a code of conduct that is championed by intergovernmental organizations between the civil society and corporations that was initiated in 2000 by United Nations. A Draft Fundamental Human Rights Principles for Business Enterprises have also been drawn up by a given working group of the UNs Sub-Commission that hinges heavily on the Protection and Promotion of Human Rights (2000-01); ILOs Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977); the OECD’s revised Guidelines for Multinational Enterprises (2000); the UNCTAD’s The Social Responsibility of Transnational Corporations17. Remedies to Human Rights Violation State regulations that stipulate certain corporate conduct have little impact with the lack of the accompanying mechanisms to punish, investigate and redress abuses. The remedies of human rights abuse may incorporate both non-legal and legal means18. The aforementioned courses of recourse satisfy the following criteria; accessible, legitimate, equitable, predictable, transparent and compatible. It is however noted that the role of the state is imperative in the event that a company seeks to impose various binding judgments on companies or in the event that they would like to compensate human rights violation victims. -Non Legal Measures In the market context, non-judicial remedies may just be as efficient as court based sanctions. Non-legal sanctions maybe inclusive of: Damage of reputation via adverse media and publicity or by NGO campaigns (reputation is considered as an intangible asset that is highly valued by various companies). Potential shareholders action, consumer boycotts, and divestment campaigns. Recourse to forums those are quasi-legal (for instance National Contact Points as laid down within OECD Guidelines). Revocation of a particular company’s social license of operation. Public criticism of the breaching of a company’s contractual obligation or the corporate19. -Legal Measures The court sanctioned remedies entail the utilization of national tort law that is inclusive of forums; that also attribute to liability of a parent company in which case there will not be any effective remedy that is available against subsidiaries and limited resources that facilitate a claim (especially when it is put against resources that are often available to defendants). It has been reported that the Alien Tort Claims Act in the U.S has as such been one of the conduits through which the alleged victims facilitated claims against various companies. Conclusion MNCs are large companies which operate in more than one country and are very influential. They usually have a major implication on human rights and as such should be held accountable in the event that they violate such rights. Human rights law may be used to define the activities of multinational corporations and as such aid in the upholding of human rights. The definition is made use of by the United Nation’s Special Representative Report which has devised a tripartite framework that serves to shield human rights. The framework incorporates the following principles; protection, respect and remedy. The principles have been used to device legal and non-legal measures to prevent human rights violations. The measures also serve as a means for human rights promotion. Legal measures include; national laws, extra-territorial laws, soft laws and international laws. On the other hand, non legal measures include; corporate internal policy, UN Norms, corporate culture, UN Global Compact. The remedies of human rights violation incorporate both non-legal and legal measures. Non-legal sanctions are inclusive of; revocation of a particular company’s social license of operation, potential shareholders action, consumer boycotts and divestment campaigns, public criticism of the breaching of a company’s contractual obligation or the corporate, revocation, of a particular company’s social license of operation recourse to forums those are quasi-legal, public criticism of the breaching of a company’s contractual obligation or the corporate. Damage of reputation via adverse media and publicity or by NGO campaigns. Legal measures include the use of national tort laws for instance the Alien Tort Claims Act in the United States. Bibliography Journals: Chirwa, ‘The Doctrine of State Responsibility as a Potential means of Holding Private Actors Accountable for Human Rights,’ (2004). 1 Melbourne Journal of International Law 11-13. Duruigbo, Emeka, ‘Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring Challenges,’ (2008). 6 Northwestern University Journal of International Human Rights. Hillemanns, C.F, ‘UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights,’ (2003). German Law Journal. Kinley, David & Joseph, Sarah, ‘Multinational Corporations & Human Rights: Questions about their Relationship,’ (2002), 27 Alternative L.J. pp.77-9 Kirk, Anna, ‘Corporations and Human Rights: Two Key Developments,’ (2008), 38 S. Afri. Y.B International Law. Scheffer, David,’The Growing Relevance and Enforceability of Corporate Human Rights Responsibility,’ (2008). 6 Northwestern University Journal of International Human Rights. Reports: Report by the United Nations Special Representative of the Secretary General on Business and Human Rights. The Publication by the International Commission of Jurists of its Report on Corporate Complicity in International Human Rights Violations. Books: Alston, P, The EU and Human Rights, (1999). Articles: Australia-Corporate Code of Conduct Bill 2000; A Private Member’s Bill sponsored by Senator Vicki Bourne (introduced in September 2000); and in the US-the Corporate Code of Conduct Bill 2000; HR 4596 IH, introduced in the House of Representatives in June 2000 by Congresswoman Cynthia McKinney. The bill before the Australian Parliament lapsed with recent generally election. Kamminga, Menno,‘Holding Multinational Corporations Accountable for Human Rights Abuses; a Challenge for the EC,’ in Philip Alston (ed), The EU and Human Rights, OUP, 2000, pp. 565-7. Joseph, Sarah, ‘An Overview of the Human Rights Accountability of Multinational Enterprises,’ pp. 77-9 Smith, H LLP,’Protect, Respect and Remedy: A Framework for Business and Human Rights,’ (2008). A/HRC/8/57 See, eg Zerk n 20 above ch 3-4 and Stephens ‘Corporate Liability,’ Enforcing Human Rights through Domestic Litigation’ in (2001) 24 Hastings International and Comparative Law Review 401, 402-403 Read More