Questions and Answers regarding the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights

 

1. What are the “Norms on the Responsibilities for Transnational Corporations and Other Business Enterprises with Regard to Human Rights?”

The “Norms” are a set of standards regarding the human rights conduct of business enterprises. The standards attempt to draw together international human rights laws and norms, in addition to best business practices, regarding the human rights practices of businesses and bring these standards into one document. The document has been drafted over a 4-year process by the Working Group on the Working Methods and Activities of Transnational Corporations, a subsidiary body of the UN Sub-Commission on the Promotion and Protection of Human Rights.


2. What kinds of standards are included in the Norms?

The Norms include a broad range of topics that are meant to include all the key human rights laws and standards which could reasonably apply to businesses. The Norms include standards such as: the right to equality of opportunity and treatment; the right to security of persons; the rights of workers, including a safe and healthy work environment and the right to collective bargaining; respect for international, national, and local laws and the rule of law; a balanced approach to intellectual property rights and responsibilities; transparency and avoidance of corruption; consumer protection; environmental protection; and respect for the economic, social, and cultural rights, as well as civil and political rights, indigenous rights, and the right to development.


3. What is the “Commentary” to the Norms?

The Commentary is intended to be an authoritative explanation of the standards elaborated in the Responsibilities. With its greater attention to detail, the Commentary provides more definitive statements of the conduct expected. It also contains more references to the documents used to derive the standards. Currently, the Commentary is contained in a separate document and is sponsored by three members in the five-member Working Group. It is hoped that the Commentary will be either incorporated with the Responsibilities into one document that is endorsed by the entire Working Group, or that the Responsibilities will refer to the Commentary as an authoritative explanation of the standards contained in Responsibilities.

4. Do the Responsibilities apply to all businesses or only to transnational corporations?

Currently, the Norms apply to all businesses, except those businesses which prove that (1) their actions have an entirely local impact, (2) their business has no connection with a transnational corporation (TNC), and (3) the violation complained of is not covered under the security standards in the Norms. On the one hand, many believe that the human rights norms should only apply to TNCs as TNCs may fall outside the regulation of any one State and TNCs tend to be especially large and influential. On the other hand, many others believe that any exception drafted into the Norms will be used by businesses to circumvent liability, and further that human rights principles, by their nature, should apply equally to all businesses. The current exception is the result of negotiation and compromise between the two viewpoints and is intended to make a small exception for small, local businesses, such as the local bakery or restaurant not engaged in serious human rights violations.


5. Is this a voluntary initiative?

The Norms are not a voluntary initiative, but are meant to restate and clarify the application of existing laws, norms, and best practices, as well as provide for the evolution of these and other standards. The Norms further begin to point the way toward enforcement and implementation of these standards. A voluntary initiative would mean that businesses would have the alternative to opt in or out of the exercise. The non-optional nature of this document is made apparent on the face of the document in several ways. First, throughout the eighteen norms, “shall” is used to refer to the obligations of businesses in applying these standards. Second, the document is quite unique in including several provisions for implementation at the end. The measures for implementation, although calling on businesses to implement the standards themselves, also call for independent, outside monitoring and for reparations when there has been a breach of the standards and resulting damage.


6. What is the role of States in this exercise?

The Norms do not diminish existing obligations by States or others. States remain the primary enforcers of human rights laws and standards, but the Norms envisage other implementation efforts to complement and enhance those of States. The first norm in the Norms includes a statement 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 assuring that transnational corporations and other business enterprises respect human rights.” The Commentary on this norm goes on to state that all of the norms in the Norms should be read in light of this first norm. This is intended to make clear that these standards in no way abrogate the current responsibilities of States in promoting and protecting human rights. States may, however, use these standards to enhance their own methods of holding corporations accountable. For example, States may choose to use these standards to regulate businesses through their national regulatory bodies or may use them as procurement standards. While the Norms on the Responsibilities are being drafted by the independent human rights experts on the Sub-Commission, Government representatives have provided input for the standards and the Sub-Commission’s adoption of the Norms will transmit the draft to the Commission, where it is hoped that Governments will decide to take up this matter when the Governments are ready for that approach.


7. Can international legal standards apply to businesses?

The application of international law to non-state actors is a rapidly developing area of international human rights law. While this is not a settled area, there are several reasons why non-state actors do indeed have international legal obligations. For example, the Universal Declaration of Human Rights places responsibility on both governments and nonstate actors, including that of “every individual and every organ of society . . . to promote respect for these rights . . . and by progressive measures, national and international, to secure their universal and effective recognition and observance . . ..” Additionally, numerous treaties and other instruments impose responsibility on non-state actors for their actions, such as the Supplementary Slavery Convention of 1957, the Genocide Convention, the Nuremberg Rules, and the Convention Against Torture. Further, the Rome Statute of the International Criminal Court imposes international jurisdiction over non-state actors. In addition to treaties, there are a growing number of soft-law standards which impose obligations on businesses, such as the General Comments on the right to adequate food, the highest attainable standard of health, and the right to privacy; ILO’s Tripartite Declaration on the Fundamental Principles and Right at Work; and the OECD’s Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions. It is also important to note that many human rights norms are regularly applied to businesses by courts and agencies all over the world through extensive incorporation in existing provisions of civil and common law.


8. Are the Principles intended to become a binding international treaty?

Any treaty takes years of drafting and education before becoming binding international law. Therefore, if the Norms are to become a treaty it will take many more years of working through the UN system as the Norms are a relatively new initiative. It is extremely important to note, however, that the main goal of this project is to pull together international human rights standards which are applicable to activities of businesses and then begin to provide for enforcement. Enforcement can come through many mechanisms other than a treaty. For example, the Commission on Human Rights could establish a working group, group of experts, or Special Rapporteur to receive complaints of businesses which violate the Norms. The Norms could be used by the UN, its specialized agencies, and others to determine what goods and services they use and which partnerships they develop. These and many other methods of implementation should be considered, developed, and implemented in the immediate term, without waiting for the Norms to gain treaty status.


9. What is the status of the Norms right now and what is happening in the near future?

Right now, the Norms are attached to the Working Group on the Working Methods and Activities of Transnational Corporation’s 2002 Working Group Report (UN Doc. E/CN.4/Sub.2/2002/13). According to Sub-Commission resolution 2002/17, the Working Group will disseminate the Norms until the 2003 Sub-Commission meeting with the hopes of attaining greater awareness of the document. The Working Group will take comments on the substance of the document at its 2003 sessional meetings during the Sub-Commission’s meeting in August 2003, and it is expected that the Working Group will adopt a revised text to send to the Sub-Commission for consideration and adoption. At that point, the Sub-Commission may decide to request the Commission to adopt the document, or to create a group of experts, working group, or Special Rapporteur to further examine these issues. The document could then move to the Commission where it would remain until the Commission decided to address the matter.


10. Where can I get more information?

Copies of the 2002 Working Group Report, Resolution 2002/17, the commentary, and introductory document are available at the United Nations High Commissioner for Human Rights webpage (www.unhchr.ch) and at the University of Minnesota Human Rights library (see humanrts.umn.edu/links/omig.html and humanrts.umn.edu/undocs/businessresponsibilities2002.html) as well as at the business and human rights webpage (www.business-humanrights.org). Further information can be gained by contacting David Weissbrodt, member of the Working Group at weiss001@umn.edu.


11. What can I do to help further this project?

There are many things you can do! One of the biggest needs for this project right now is to build support within the UN system, NGOs, governments, businesses, and others. Thus far the document has received support from Amnesty International, Christian Aid, Federation Internationale de Droits de l’Homme, Human Rights Watch, Prince of Wales International Business Leaders Forum, Lawyers Committee for Human Rights, OXFAM, and many others. If you would like to become an advocate for this project, please contact one of those organizations or David Weissbrodt, who is one of the five members of the U.N. Working Group, at the above email address. Further, if you or your organization would like to review the standards contained in the Commentary portion of the Norms, David Weissbrodt will be receiving those comments until December 1, 2002. Finally, the Working Group and hopefully the Sub-Commission will be considering this document at their August 2003 meeting. Individuals or organizations that would like to come and show their support at the UN Sub-Commission meeting are encouraged to find ways to attend.