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International Human Rights and Transnational Corporation

Written by: Mehul Milind Gupta - Final Year LL.B (Hons.) Student, Amity Law School, New Delhi
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Exploitation has always been considered to be water in river for capitalism. In the light of providing gifts it has let the darkness of exploitation seep in through the doors of selfishness. But it fails to project itself as the beautiful yet deceptive sight of a butterfly sucking the nectar of a flower; which is because of the hurdles made for the protection from such exploitation. Historically, Man claimed Human rights since he first descended on Earth. Right to survive had been the basic need of human faculty. Equitable distribution of their possessions among them had been the basis of their co-existence. However, with the birth of State polity, kingship demanded its share of human possessions leading to suppression of basic rights. It ended with feudalism. However, the end of feudalism gave way to a social structure known as ‘State’ which required minimum justification for its actions affecting its subjects. Democratization of State polity gave further impetus to people’s power restraining rulers from unwanted interference with their socio-political rights.

These rights are further strengthened with the Universal Declaration of Human Rights which was devised in a very unique historical context and endeavored to find a universal standard for the above cause. After much discussion and difficulty member countries were convinced to work towards building a new field of rights called as “human rights”. This led to an international view to the subject as it allotted various obligations on the member states. Thereafter, the declaration was codified leading to the birth of International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. In all these documents, and in many other international documents and regional documents like the European Convention on Human Rights obligations are put forward to the member state with the greatest conviction possible to be asserted. It may be clarified that human rights are not the bounty or gift from the State where the State is obliged to protect them; rather, State is the creation of human beings. The State has to co-exist with the human beings and their rights; otherwise both will perish to their complete extinction.

Now the moot question is the width and scope of human rights which is definitely not limited to political rights as these would not fill starving belly or empty stomach. It demands equitable distribution of material resources to sub-serve the ‘common good’. Distributive justice had been the cardinal principle of human rights without which the whole concept of human rights would be empty shell or hollow slogans. On the other hand it is equally important to note the importance of these rights in light of globalization and liberalization.

Companies through out the world have grown their horizons. They have not only increased their operational horizons but have also stretched their thoughts to new areas of operations. Ad nauseam not every country mapped has a healthy environment for the nurture of human rights. Economic liberalization in many civilized countries such as India coupled up with globalization of the world economy has created serious doubts about the application of fundamental human rights. These doubts are based on two premises firstly, because of the increasing role of private sector in various welfare and service agencies and secondly, because of the decreasing role of the state.

The Countries with a proper political set-up have to take extra caution; they have to make sure that the companies operating within their authority do not, even remotely, indulge in any activity leading to human rights violation. The scope of this article is limited to the responsibility of states and its companies not to take any take advantage of any human right violations in any country where such violations are not of a concern.

The law relating to the above proposition has been clearly laid down in Paragraph 58 of the Tripartite Declaration Of Principles Concerning Multinational Enterprises And Social Policy the following principles are clearly states that multinational as well as national enterprises should respect the right of the workers whom they employ to have all their grievances processed in a manner consistent with the following provision: any worker who, acting individually or jointly with other workers, considers that he has grounds for a grievance should have the right to submit such grievance without suffering any prejudice whatsoever as a result, and to have such grievance examined pursuant to an appropriate procedure.[1] This is particularly important whenever the multinational enterprises operate in countries, which do not abide by the principles of ILO Conventions pertaining to freedom of association, to the right to organize and bargain collectively and to forced labour.[2]

The above declaration was an answer to the International Labour Organization’s search for international guidelines in its sphere of competence that was adopted by the esteemed specialized agency of the United Nations. The International Labour Organization, which seeks for the promotion of social justice and internationally recognized human and labour rights. The International Labour Organization, or ILO, is responsible for setting and controlling the international labour standards via conventions and recommendations, with a view to guaranteeing sound work and social security.

There are a multitude of transnational codes and principles in the area of corporations and human rights but the four major players are the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises[3], the International Labour Organization's Tripartite Declaration of Principles concerning Multinational Enterprises[4], the United Nations Global Compact[5] and the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights[6].

In a speech on Business and Human Rights : Towards legal accountability, David Petrasek[7] stated that International law can place direct legal obligations on companies, which might be enforced internationally when states are unable or unwilling to take action themselves. However, less strong than indirect obligations, there is some basis for extending direct legal obligations to companies. For example, the Preamble to the UDHR states that "every individual and every organ of society" should promote respect for human rights. [Also the ILO Tripartite Declaration (of Principles Concerning Multinational Enterprises and Social Policy), adopted in 1977, states that companies "should respect the Universal Declaration of Human Rights and the corresponding International Covenants [on civil and political rights, and on economic, social and cultural rights]" The OECD Guidelines for Multinational Enterprises, originally prepared in 1976 and revised in 2000, provide that Multinational Enterprises, hereinafter referred to as MNEs, should "respect the human rights of those affected by their activities consistent with the host government's international legal obligations and commitments."

A Working Group of the UN Sub-Commission for the Protection and Promotion of Human Rights has prepared draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. The draft states clearly that “Transnational corporations and other business enterprises, their officers and their workers have human rights obligations and responsibilities". Further, in Article 1, the draft provides support for the notion of both indirect and direct obligations on companies and mentions that "States have the primary responsibility to respect, ensure respect for, prevent abuses of, and promote human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the to respect, ensure respect for, prevent abuses of, and promote human rights recognized in international as well as national law."

It can be assumed that Trans-National Corporations, hereinafter referred to as TNC, would be legally liable for the actions of business partners only if they are complicit in the wrongdoing. This concept, from paragraph 3 of the Norms[8], also applies with respect to TNC complicity in government or other third party human rights abuses in the host community, and makes TNCs accountable for some benefits received as a result of serious human rights abuses by third parties. Liability for complicity needs to be fleshed out further if the Norms are to become legally enforceable.

In the case of Filartiga v. Pena-Irala[9], it was held by the US Court that deliberate torture perpetrated under the color of official authority violates universally accepted norms of international human rights law, and that such a violation of international law constitutes a violation of the domestic law of the United States, giving rise to a claim under the ATCA whenever the perpetrator is properly served within the borders of the United States. Economic and Social Council, one of the specialized agencies of the United Nations in its 22nd meeting, on 13 August 2003 adopted the Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights[10]. In paragraph 1 of the General Obligations[11] it is codified that states have the primary responsibility to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including ensuring that transnational corporations and other business enterprises respect human rights. Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.

Furthermore, the above mentioned Commission[12] in its Preamble very assertively reaffirms that that transnational corporations and other business enterprises, their officers - including managers, members of corporate boards or directors and other executives - and persons working for them have, inter alia, human rights obligations and responsibilities and that these human rights norms will contribute to the making and development of international law as to those responsibilities and obligations.

Hence it is clear that with the commencement of Free International Trade and the companies getting a greater chance of governance. It is the duty of the companies to take due care in their governance. They are liable to protect human rights not only in one country, but all the other countries to. They have the duty to ensure that their governance and working is not in contradiction to any law or is violating any human right any where in the world. This is more relevant considering the political setup in many African countries. Corporate entities should not take advantage of the weak structure and exploitation. For this very reason the above stated laws and conventions have been enacted. They should not be treated like any other stone placed in a ever flowing river. On the other hand, with the signing of the WTO, India has consented to an era of Expansion and Capitalization. The liabilities that are upon the government and the problems that come in the way of such expansion and capitalism are yet to show their ugly face in India. It is the duty of the each corporate entity to give back to the society more than they endeavor to take from it.

End notes
[1] Recommendation (No. 130) concerning the Examination of Grievances within the Undertaking with a View to Their Settlement.
[2] Convention (No. 29) concerning Forced or Compulsory Labour; Convention (No. 105) concerning the Abolition of Forced Labour; Recommendation (No. 35) concerning Indirect Compulsion to Labour.
[3] The Guidelines are not legally binding and apply only to multinational enterprises from member States of the Organisation for Economic Cooperation and Development (hereafter ‘OECD’) plus a few other State parties.
[4] The Principles are internationally agreed through the International Labour Organization (hereafter ‘ILO’)’s tripartite structure (employers, trade unions and governments) but only cover labour rights rather than the whole spectrum of human rights. The process by which they are interpreted is little utilized: governments must request interpretations and only if they fail to do so will workers and employers associations having standing to fill the breach and make requests themselves.
[5] Companies commit to adhere to 10 Principles as part of their membership of the Global Compact. There is no enforcement mechanism: the GC is a forum for dialogue and exchange of experience and best practice rather than a means of holding companies to account for human rights violations.
[6] Norms document: UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003)
[7] Senior Director of Policy Amnesty International
[8] The Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.
[9] 577 F.Supp. 860 (2d Cir. 1980)
[10] Norms document: UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003)
[11] COMMISSION ON HUMAN RIGHTS - Sub-Commission on the Promotion and Protection of Human Rights Fifty-fifth session Agenda item 4
[12] COMMISSION ON HUMAN RIGHTS - Sub-Commission on the Promotion and Protection of Human Rights Fifty-fifth session Agenda item 4

The author can be reached at: mehulmgupta@legalserviceindia.com / Print This Article

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