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To:
Mr. Dzidek Kedzia
Chief, Research and Right to
Development Branch
Office of the High Commissioner
for Human Rights
United Nations
CH - 1211 Geneva 10
The Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights
We welcome decision 2004/16, in which at its 56th meeting on 20 April 2004, the Commission on Human Rights (CHR) requested the Office of the High Commissioner for Human Rights to compile a report setting out the scope and legal status of existing initiatives and standards relating to the responsibilities of transnational corporations and related business enterprises with regard to human rights and to identify outstanding issues. The Office has asked for submissions on the subject no later than 30 September.
It is in this context that we ask the United Nations and the Office of the High Commissioner for Human Rights for a continued and strong support for the UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms). These Norms do have an added value beyond existing instruments, which is outlined below.
Background
For the last decades, in particular since the end of the Cold War, companies have hugely expanded their operations, particularly into the developing world. A growing number of businesses operate across boundaries in ways that exceed the regulatory capacities of any one national system. Economically powerful actors may dramatically influence policy - whether for good or bad - and thereby impact on the human rights of millions of people. In certain cases companies have contributed - knowingly or unknowingly - to human rights violations, to the further disempowerment and to the marginalisation of particularly vulnerable groups (such as indigenous peoples and the poor) and to the destruction of the environment.
Whereas e.g. in trade law business accepts, or even asks for laws and regulations that demand tranparency and strict compliance with existing standards, companies in their majority so far refuse to accept similar compliance standards in regard to their social performance. Economic globalisation has led to the development of enforceable rules outlining the rights of companies, whereas duties and responsibilities of companies are not laid down yet in any equally enforceable legal framework. There is an obvious need to match the rights of companies with responsibilities.
Already the Universal Declaration of Human Rights, while primarily addressed to states, calls on "every organ of society" to respect and promote human rights - laying the foundation for obligations which apply not only to states but also to non-state actors, including private business enterprises. In the last decade, it has been recognized, including in law, that not only states have an international obligation for the protection of human rights but also other actors such as individuals, armed groups and international organisations. The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights took shape within the frame of this development. They reflect in international standard setting what under moral aspects is covered, e.g. in Christian Social Teaching, in the basic rule and truth that with power comes responsibility.
Business can no longer be wilfully ignorant of the circumstances in which they operate; they must become much more aware of and sensitive to those circumstances, and much more engaged in taking action to influence human rights positively. The UN Norms will assist companies that want to perform in a way that is socially responsible, they will provide a level playing field for competition among businesses, and they will help assess risks associated with human rights problems. The UN Norms are also a useful framework for the growing expectations of consumers, investors, employees and civil society organisations with regard to the human rights responsibilities of companies.
Scope and added value of the UN Norms
The UN Norms stress and confirm that states bear the primary responsibility to respect, protect and fulfil human rights. Governments are rightfully held accountable to meet their obligations under international human rights law. Besides this, the UN-Norms rightfully address business directly, as companies do have their own responsibilities within their respective sphere of operation and influence.
1. The UN Norms are comprehensive, transparent, focussed, universally applicable and they have the authority of the UN by having unanimously been adopted by its Sub-Commission on the Promotion and Protection of Human Rights
The UN Norms bring together all elements of different standards and codes with regard to human rights that are relevant to companies. They are a valuable and transparent tool to more clearly define where human rights responsibilities for business lie. Thus they will make it much easier for companies to adhere to human rights standards. They will be applicable to companies all over the world, wherever their headquarters are located. Thus they will level the playing field for all companies. Having great authority as a UN document they cannot easily be discarded.
The UN Norms are comprehensive and complete in so far as they cover human rights, environmental rights, consumer protection and anti-corruption issues in one document, whereas other existing instruments focus on specific issues or lack the necessary monitoring and implementation mechanisms.
For example:
The growing number of voluntary codes of conduct show a welcome awareness of business of their social responsibilities. Voluntary codes of conduct do have an important role to play. However, they vary greatly in content and scope, and even though there are hundreds of different codes there are still thousands of companies that do not have any code of conduct in place. Voluntary codes alone are insufficient to regain the needed political governance of economic globalisation. A recent OECD study showed that of 148 voluntary codes of conduct examined only 30 % explicitly covered the right to freedom of association, only 25 % explicitly mentioned human rights, only about 24 % had a monitoring mechanism, and only about 10 % explicitly asked for compliance with the ILO Core Labour Standards.
The OECD-Guidelines for Multinational Enterprises are covering labour rights, environmental and consumer rights and anti-corruption issues. In that they touch on human rights in a number of ways. However, human rights as such are mentioned only very generally and the OECD-guidelines do not outline how a company can best comply with broader human rights standards. Also, they are limited to companies from OECD-countries, and they insufficiently address problems in regard to the supply chain. The advantage is that they do address business directly, that they have state support, that non-OECD-member states can express their willingness to adhere (which some have done), and that with the establishment of National Contact Points they do offer a complaints mechanism.
The UN Global Compact covers human rights, labour rights and environmental rights, and recently added to the existing nine principles a tenth one against corruption. Although comprehensive and universal in its scope and reach, and backed by the authority of the United Nations, and the Secretary General in particular, the Global Compact is very general. The Global Compact is deliberately designed as a learning and dialogue forum. As such, it is a helpful and useful tool for the willing. However it needs to be supplemented by an equally universal and comprehensive instrument under the roof of the UN that is more specific and binding and that also addresses the unwilling.
2. The UN Norms support and strengthen the ILO Core Labour Standards.
The ILO Core Labour Standards are the strongest international instruments available to protect labour rights. Labour rights are human rights. However, not all human rights - as defined in the International Bill of Human Righs and other existing conventions and declarations - are labour rights. The UN Norms explicitly refer to ILO standards and promote their enforcement. They complement the ILO standards by also covering non-work-related human rights.
3. The UN Norms are a key instrument to achieve sustainable development
The UN Norms endorse the precautionary principle, one of the most vital principles of global environmental policy making and law since the Earth Summit of 1992. The UN Norms therefore help to make operational for the conduct of multinational enterprises a key instrument to achieve sustainable development.
4. Empowerment of (potential) victims of human rights violations
One outstanding issue identified when looking at existing instruments is the lack or insufficiency of protection and remedy offered to (potential) victims of human rights violations. The UN Norms have the potential to close this gap. Therefore the monitoring and enforcement mechanisms of the Norms need to be strengthened.
Vested with the authority of the UN and universally applicable, the Norms will make it more difficult or even impossible for companies to escape accountability by simply moving office from one country to another. The UN Norms will be applicable to the growing number of Transnational Corporations based in developing countries as well as those based in Europe or USA/Canada. They will in this respect level the playing field for companies and they will empower (potential) victims of human rights violations. They will make it easier for the (potential) victims of human rights violations to know their rights and thus strengthen their bargaining power.
5. Prevention of violent conflict
The UN Security Council recently discussed the role of private business in zones of conflict. The UN Global Compact held a dialogue forum on that issue. There is a broad consensus amongst the different stakeholders that companies do have an important role to play, not only in a post-conflict situation, but also during the conflict, and even more so in a pre-conflict situation. If a company can follow clear rules and governments are obliged to take the responsibility to ensure compliance, chances to prevent a conflict from growing into a violent one are increasing. The UN Norms explicitly acknowledge the role and responsibilities of companies in war and conflict. This also is a value added in comparison to other existing instruments.
Outlook
One aim of the study commissioned to the OHCRH by the 60th session of the CHR is to identify options for strengthening standards on the responsibilities of transnational corporations and related business enterprises with regard to human rights.
The UN Norms have the potential to contribute to achieving that goal. Some aspects of the Norms will need more clarification and precision. This certainly applies to those aspects dealing with monitoring and possible enforcement mechanisms. The complaints mechanism needs to be further developed, so that victims of human rights violations are offered an open and easy access. The complaints procedure should aim at dispute settlement.
The UN Norms certainly cannot and
will not solve all problems in one go or once and for all. However, they
are an important step into the right direction. If they are developed further
in an open and constructive debate they will become a valuable means to
empower victims of human rights violations, by holding business accountable
for human rights violations within their sphere of activity and influence
and by holding governments all over the world accountable to respect, protect
and fulfil human rights. And they will make it easier for companies to
adhere to human rights standards and contribute in a positive way to their
promotion.
Elisabeth Strohscheidt, Human
Rights Desk
Bischöfliches Hilfswerk MISEREOR
(The German Catholic Bishops' Organisation
for Development Cooperation)
Johannes Brandstäter,
Human Rights Desk
Diakonisches Werk der EKD
Dr. Beate Wagner, Secretary
General
Deutsche Gesellschaft für die
Vereinten Nationen (DGVN)
Michael Windfuhr
FIAN International
Brigitte Hamm
FIAN Germany
Cornelia Heydenreich
Germanwatch
Jens Martens
WEED
The above Statement to the OHCRH is co-sponsored by the following organisations: