3: Report of the Seminar to Discuss U.N. Human Rights Guidelines for Companies,
Draft Universal Human Rights Guidelines for Companies
Addendum 3: Report of the Seminar to Discuss U.N. Human
Rights Guidelines for Companies
(Geneva, 29 - 31 March 2001)
Seminar Chairperson: Mr. David Weissbrodt
Rapporteur: Ms. Penny L. Parker
I. ORGANIZATION OF WORK
2 – 15
II. GENERAL COMMENTS
16 – 73
III. CONSIDERATION OF THE DRAFT GUIDELINES
IV. CONCLUDING COMMENTS
Annex I: Text of the draft guidelines discussed at the Seminar
Annex II: Summary of written comments submitted by participants
Annex III: List of participants
1. A seminar was held at the Palais Wilson, Geneva, from 29 March to 31 March 2001, to discuss the draft U.N. Human Rights Guidelines for Companies. The seminar was organized by the University of Minnesota in cooperation with the Office of the High Commissioner for Human Rights, with additional financial support from the Ford Foundation and the Swiss Federal Department of Foreign Affairs as well as practical assistance from the Lutheran World Federation. Forty-six persons participated, representing a diverse cross-section of business and academic experts, non-governmental organizations, representatives of intergovernmental organizations, and members of the Sub-Commission. A detailed list of the participants can be found in Annex III.
I. ORGANIZATION OF WORK
Opening of the seminar
2. David Weissbrodt, as chair, opened the seminar by welcoming the participants. He introduced Stefanie Grant, Chief of the Research and Right to Development Branch of the Office of the High Commissioner for Human Rights. He thanked Ms. Grant for her important role in supporting and inspiring the planning for this seminar. He also thanked UN staff members Scott Jerbi and Jong Gil Woo for their invaluable assistance in preparing for the seminar.
3. The chair then asked each participant to introduce himself or herself and to offer some background on their participation in this project and this field.
4. He then remarked on the ground rules and procedure for the seminar. The seminar would use Chatham House rules, so that there would be no attribution of remarks to particular individuals and so that each person would feel free to express themselves freely. The rapporteur would be preparing a report of the seminar, to be presented to the Sub-Commission’s Working Group on Methods and Activities of Transnational Corporations in August 2001.
5. The chair stressed that this would not be a decision-making meeting. There was not a need to reach an agreement or a consensus. There are very different views represented in this room. This seminar will provide an opportunity for input to Professor Weissbrodt’s work in drafting the guidelines and later for the consideration of the Working Group in early August. Of course, if a consenus appears, it would not be ignored, but there would not be a press for agreement at the seminar.
6. Ms. Stefanie Grant, representative of the Office of the High Commissioner for Human Rights, then offered some opening remarks. She welcomed the participants to the Palais Wilson and thanked the University of Minnesota for the organization of the seminar, the Ford Foundation for its financial support; the Swiss Federal Department of Foreign Affairs for its support; and Lutheran World Federation for its practical assistance.
7. Special thanks were also given to Professor Weissbrodt for his efforts to bring such a diverse group together to discuss the Sub-Commission’s draft Human Rights Guidelines for Companies which he has played such a key leadership role in developing.
8. The seminar had been requested by the Working Group on the working methods and activities of transnational corporations, in its report of 28 August 2000. The Working Group requested its experts to discuss before its August 2001 session, through meetings and seminars, the work they had started in 1999.
9. This seminar is a welcome example of how the UN’s human rights activities are increasingly reaching out to the business community, trade unions, non-governmental organizations as well as development and environment specialists. Having such a diverse group of experts here provides an important opportunity to shape the final document which is to be presented by the working group to the Sub-Commission for its discussion in August.
10. The role of the private sector in the promotion and protection of human rights is an emerging issue - the Preamble of the Universal Declaration of Human Rights provides us with some helpful guidance through its affirmation that every individual and every organ of society, keeping the Declaration constantly in mind, shall strive to promote respect for human rights.
11. Governments are taking an increasing interest in ensuring that businesses act in ways which are good for sustainable development, for human rights, and for international cooperation. Likewise, in recent years, there has been an increasing awareness on the part of businesses that they must face up to their responsibilities in the human rights field. In this regard, the High Commissioner has stressed in her statements that even though states retain the primary responsibility for ensuring the protection of human rights under the human rights treaties, there is a new awareness that such responsibility entails ensuring that companies operating from or within their jurisdiction must not undermine existing human rights obligations or the international rule of law. It is also crucial to understand that as we move forward, it will be critical that companies continue to take the lead in developing new forms of accountability and transparency.
12. There is now a need to translate human rights principles into language that is relevant and helpful to the business community as it seeks both to do its part in promoting human rights and avoiding involvement in violations. It is our hope that the Guidelines for Companies will provide the normative human rights framework to assist companies in measuring their policies and actions against human rights principles and norms.
of the agenda
13. The following agenda was approved:
1. Self-introduction and preliminary comments on the five general questions.
2. Discussion in five subgroups (1) General obligations, (2) Security, (3) Employment, (4) Development and environment, and (5) Implementation procedures.
3. Reports of sub-groups
4. General discussion
5. Concluding remarks
14. The seminar had before it the version of the draft guidelines attached in Annex I. Several participants also submitted written responses to the Chair’s five general questions. These written responses are summarized in Annex II.
Organization of work
15. In order to review and discuss the work in an efficient manner during the seminar, the Chair suggested establishing five working groups, with a chairperson and rapporteur appointed for each group, as follows:
Group 1: General obligations (A. Definitions, B. General obligations, F. Bribery (paragraph 18 only), L. Consumer protection, and P. Concluding provisions).
Group 2: Security (C. War crimes, and H. Security).
Group 3: Employment (D. Non-discrimination, E. Slavery, G. Work environment, I. Remuneration, J. Hours of work, and K. Collective bargaining).
Group 4: Development and Environment (F. Respect for national sovereignty (except for paragraph 18 on bribery), M. Intellectual property, N. Environment, O. Other economic rights).
Group 5: Implementation procedures.
II. GENERAL COMMENTS
16. The Chair then asked participants to share their thoughts on the project as a whole, to discuss the five topics announced in advance of the meeting, and any other topics of concern to the participants.
17. The five topics announced in advance of the meeting were as follows:
1. Should the guidelines apply to transnational corporations only or to all companies?
2. Should these guidelines be identified as a “code of conduct,” “principles,” “standards,” “rules,” “guiding principles”, “best practices” or some other title?
3. Should the guidelines be legally binding or non-binding?
4. What should be the scope of the guidelines?
5. What techniques might be available for implementing the guidelines?
18. One person noted the fundamental problem was not knowing where the document would be at the end of the process. There was a need to know whether it would be a voluntary or obligatory text. On the subject of whether the text should apply to transnational corporations only, this speaker felt that all companies should be treated as equal. But the text should not be legally binding.
19. Another participant indicated that the objective should be to align company behaviour with social values. There was a need for an authoritative, comprehensive, and specific code backed by the United Nations. It should be in a mandatory legal framework. Initially, however, it should be voluntary, eventually moving toward a binding set of rules. This speaker also felt the rules should only apply to TNCs at least at first. It was also hoped that the group could reach a degree of consensus at the seminar on these issues.
20. Another person expressed confusion over the nature of the document. Were they to be guidelines or obligations? She felt the text should apply to all companies, but that we should also recognize that transnational corporations have a greater obligation than smaller companies, especially those companies outside of government regulation. There should be a preamble to lay out the relationship between states and companies. It is not always clear how the UDHR applies to companies under the current laws. She would also like to see movement toward binding guidelines.
21. Another particpant expressed the concern that there was a crowded field of codes existing presently. There were six criteria he felt were important to look for: 1. Clarity. 2. More comprehensiveness. 3. More specificity. 4. A more authoritative text. 5. A text which was more tied to existing international standards and 6. More accountability. The playing field should be leveled for responsible companies. The rules should apply to all businesses across the board, not only to transnational corporations.
22. Yet another individual agreed that the guidelines should aply to all companies. We may be confusing the size of companies with their influence. If size is used as a determining factor, size needs to be defined, but she was not advocating this. Transnational corporations have more influence but smaller companies also have influence. Also, the guidelines should be binding to be credible. There are too many guidelines out there already. Information and transparency are necessary. Without these two, it could be perceived as a public relations exercise. It would not be credible.
23. Another person also commented on the crowded field of codes but said it may be a strength. The Global Compact and Global Reporting Initiative could be used to apply more strength to this project. The guidelines should apply to all companies. We should consider how the guidelines are different in scope – for example, these guidelines include the subject of security forces; whereas the Global Compact and Global Reporting Initiative do not. Also, the involvement of different actors, such as the state and other non-state actors, should be considered in how the guidelines are developed.
24. One person indicated that he was not sure about leveling the playing field. It would be better to start with the big and powerful businesses first. We should look for those who compete for best practices. We should find ways that the work already done can be used and built upon in this project, such as the Global Compact and the other benchmarks that have already been created.
25. Another person responded to the comments on including the roles of states in the guidelines. He referred to paragraph 6 of the present draft, where it states that governments have the main role to respect and promote human rights. This paragraph answers some of the questions raised about governmental roles.
26. The guidelines need to be explained in plain ordinary business language, according to another participant. The text should be kept simple. So far the text of the guidelines are very difficult to work with. Also, the final text should apply to all companies, not just transnational corporations. It is easier for smaller companies to implement human rights measures. To draft these guidelines well, we also need to look at the end result of whether the guidelines will be binding or not. We must have some type of monitoring and enforcement if they are to be binding. There should also be mention of economic and social rights before civil and political rights are addressed.
27. Another person noted that the distinction that was being drawn between transnational corporations and national organizations was not a meaningful distinction for employees or consumers. A two-tiered system that would distinguish between the two types of organizations might establish a safe haven for national organizations, which may not have to implement human rights measures. Also, this speaker noted that the guidelines as written actually fall into two categories – mandatory requirements and aspirational. We should look at what is absolutely mandatory and what is aspirational. We should try to promote a culture of compliance around the world. The value of the code will be judged by its compliance.
28. The guidelines should apply to all companies, according to another speaker. This person said he would also like to see binding rules overseen by a UN body. It is unclear if this will ensure compliance. The guidelines should also be enforced by pursuing economic incentives.
29. Another person also rose to speak on the subject of the guidelines, arguing that they should apply to all companies. They should also be called rules, not guidelines. It will be important to have consensus over the mechanisms for the application of the standards for businesses to implement them. Also, referring to paragraph 6 of the text – what exactly does it mean for state involvement to ensure respect? Does it mean that the governments will enforce the guidelines? This speaker also argued for a preambular paragraph to the text, discussing the major issues.
30. Human rights is central to development and prosperity, according to another participant. She said that corporations need a systems implementation guide. The text should also apply to all companies, not just TNCs. There can be influential companies in the national sphere, who need to be subject to the same rules as TNCs. The title to the document should imply more than a mere compilation of what companies are already doing. The standards should be binding.
31. Another person remarked that there should be limited exceptions to the applicability of the guidelines, for companies below a certain size. The guidelines should be binding in the long run. We need to have a clarification of individual and joint responsibilities. The current draft is good but there may be an imbalance of treatment of conditions in developed and developing countries. For example, labor hours and labour standards. Another example is intellectual property. These subjects need to be addressed to receive consensus. Implementation should be through NGO’s under the auspices of the UN. The Sub-Commission might consider seeking reports from the top 100 industries annually.
32. Another person remarked that the key would be implementation and accountability. There are many codes out there. The focus of this text should be on practical guidance to companies. This would be of more value.
33. Another speaker argued on behalf of limiting the guidelines to transnational corporations only. States can have no hold over TNCs like they can over local companies. The code should address TNCs only for this reason. Problems exist where liabilities exist. Bribery brings in lots of imbalance. There were three things this speaker would like to see. 1. Acknowledgement of the violation, for example by victim recognition. 2. Attonement. A statement of the breach. And 3. Affirmation of following human rights in the future. There are three ways that a Code could influence TNCs – in terms of responsibility and liability; in terms of social responsibility; and as human rights watchdogs. She doesn’t want corporations to be the bodies to ensure they are following human rights standards. Issues that arise from the activities of TNCs include jurisdiction problems, transfer of technology, attachment of properties, passing liabilities to local companies, damage limitation laws, and conditions which allow companies to walk away without paying damages or restoring safety.
34. Another speaker agreed that there was a big difference between TNCs and local industries. We should be clear not to confuse the two. He felt that the code should deal only with TNCs. At a later date a code could deal with national corporations. Also, companies will laugh at a code if is not binding in nature. States should adopt national legislation to implement the guidelines.
35. Of the 100 largest entities in the world, one speaker noted, 50 are companies. The code however, should address all companies. The cumulative impact of smaller companies is still enormous. Regarding the name of the document, he felt that we should experiment with different approaches. Perhaps a title could be used that suggests both economic initiatives and a binding code. Binding principles may go through intergovernmental processes which may water down the code. More inclusivity in the scope of the document may make it more difficult to get adopted in the future. Regarding implementation, this speaker felt that there was a need for more reporting and verification. The Global Reporting Initiative has a key role to play in this field. This project should look at similar issues.
36. Another speaker said that the answers to several of the questions posed depended on the issue of whether they would be legally binding. He would separate out the aspirational statements from the other provisions of the current text, if they were to eventually become binding. Right now the text has elements of both. Also, instead of a distinction between TNCs and national companies, the issue should be when should a state be jumped over to regulate a TNC.
37. While it would be nice to see this text as legally binding, it was not realistic in the short period, according to another speaker. As a consequence he felt we should start with a voluntary code, incorporating all of the best codes that were already existing. Also, the text should apply to all companies, not just TNCs. He felt a better way to delineate between companies might be by gross income. For many companies already complying with voluntary codes, the transition into a binding code would be easier.
38. Another speaker felt that the standards should be called minimal standards or basic rules. This approach would rule out the term code of conduct. This speaker prefers a more modest name. Also, he feels the text should be written as a binding set of rules because they will be binding at some point in the future. He feels it would need a sentence that says it is non-binding, if it is to be non-binding. But the document right now is not written to be a binding document. Lots of norms in the guidelines could be binding. It should be rewritten to be more clearly binding in nature.
39. Another speaker noted that the text should be applicable to all businesses. He would want them described as a minimum level of standards for all, without regard to whether they apply to developed or developing countries. He also felt that the social dialogue created by the Global Compact was important. We should not have parallel standards which would make companies have to choose between the two. We should be looking for something complementary to existing standards, to assist companies. We also need to bear in mind there will be other instruments. We need to keep in mind the outcome in the drafting of the standards. In other words, where will this draft text go within the UN organization? Which level of the UN will ultimately adopt or promote it?
40. Another person said we need to better describe how these guidelines relate to the Global Compact. She asked, will they be seen as an implementation of the Global Compact? We should examine how practical they are for companies to apply. Transparency and disclosure should be the driving factors. It is too early to make these into binding guidelines. Piloting and testing should be done during a voluntary stage. It doesn’t mean the code couldn’t have teeth. We also need to be creative in implementation mechanisms, for example, responsible investing mechanisms.
41. Another person repeated the concern that it was too early for binding principles. She said it was also unclear who would monitor and enforce the guidelines as currently written. Specificity was needed, to strengthen the code. She also noted that references to key ILO provisions needed to be added. It was important to complement the work of the Global Compact, not to compete with it.
42. Another participant noted that it was appropriate for the UN to be the institution to bring together the variety of codes that were currently occupying the field. On the subject of compliance vs. aspirational, he noted that compliance produces minimum standards. However, aspirational goals tend to get businesses on board. He suggests a compliance model which would address the core issues. The aspirational provisions in the current text should be stripped away and then linked instead to the Global Compact, which is a more aspirational document. Then we could produce parallel guidelines. Also, he noted that the subject of sustainable development should be added to the current text. The inclusion of transparency is also an important issue. On the subject of national companies vs. TNCs, big oil companies can be entirely national. Examples are the corruption of the state run oil companies in Nigeria and Sudan. On another other subject, this speaker feels that the text should refer to sources directly instead of rewriting or synthesizing existing standards. Othewise, the risk is misstatement. Also, the subjects of compliance and best practices should be separated. Regarding implementation procedures, some examples of mechanisms he would suggest include – state adoption and the appointment of rapporteurs. Also, voluntary guidelines could be enforced through state reporting.
43. Another speaker commented that the opposite of binding is non-binding, not voluntary. The OECD guidelines are voluntary and non-binding. The OECD is clear that governments consider these as minimal standards. It is clear they apply whether or not companies agree. Our guidelines should be universally applicable. He also suggested clarifying the definition of employee, and the boundaries of the enterprise. He also feels there should be a debate over the appropriate monitoring and verification procedures. We need to look for new mechanisms. The same is true for reporting. The speaker is concerned that businesses may be trying to redefine human rights, e.g., collective bargaining. The guidelines are not sufficient on these issues. Glossing over these issues might lead to a retreat from already recognized norms.
44. The complexity of the issues, remarks another speaker, make it difficult for the guidelines to be binding. We should try to reconcile the different points of view. This speaker still wants an international set of binding guidelines. But perhaps we could adopt this report as an interim step. We could create support that way for a later internationally binding code.
45. There’s no contradiction in this room, noted another speaker, on the issues of slavery and war crimes. These standards are clear. Others are not so clear. Intellectual property rights, for example, could mean different things to different countries. The speaker sees the same problem in paragrah 41 (economic, social and cultural rights). What does it mean as drafted? What must be done should be separated from what should be done?
46. At this point, the chair notes that most of provisions of the guidelines are derived from other documents. The intellectual property provisions, for example, came from WTO TRIPS Agreement. However, not all provisions have a clear source document.
47. Still another speaker noted that he had become “allergic” to new codes. The text of this code was useful. It adds to the existing OECD and ILO activities. It is a good initiative. He believes the guidelines should apply to companies generally, not just to TNCs. Also, he thinks it would be useful to distinguish the commitments which are “negative” by their nature, from those that are “positive.” The negative obligations should apply to all companies. But the positive obligations should apply to companies in varying degrees, depending on their degree of influence. The positive/negative distinction should be made clear if it is to be applied in this way. He also feels it is too early to draft a binding text. However, if it is to be made binding, the text should make clear that states have a binding obligation to ensure that, etc. The emphasis should be on states’ obligations to act. This approach still leaves open what to do about companies that are beyond state control. This speaker would support a voluntary code, in the form that the guidelines stand now. The wording will depend on the implementation mechanisms envisioned. Ideally, the UN should have a forum where complaints will be lodged and companies required to respond. States may not be eager to give companies such a forum. A binding text would be weaker. A voluntary code, on the other hand, would create momentum for a binding instrument.
48. Another speaker comments that not enough is being done yet. The field of human rights and business is very important. We need to do more. This project should be bold in its objectives. There is conflict between desire and reality. Many companies had not heard of the Universal Declaration of Human Rights until 1985. Our business is to operationalize the Universal Declaration. The guidelines could do this for companies.
49. Another speaker noted the three c’s of this project – completion, complementarity, and contradiction. He doesn’t think there is as much conflict and overlap between this project and the Global Compact as some have suggested. Both projects are valuable and should go forward. The Global compact is aspirational. This project is much more concrete. These guidelines should not be aspirational.
50. The UN can provide a mechanism, another participant noted, to scrutinize and discuss these issues. The evolving law on non-state actors is very positive in this regard and should be utilized to build support for this code. On the other hand, he believes that if this code were to end up looking like any other voluntary code, like an industry group or NGO-group effort, it won’t add anything. If it tries to generate a laundry list of issues that happen to be hot today (like conflict diamonds), but not in five years, it won’t add anything either. His preference is to develop something that is simple and that emphasizes accountability. In the end he believes the UN is the only legitimate forum out of which a statement of binding obligations can come. The Sub-Commission’s work in this field is the beginning of that work. He would emphasize simplicity at this time.
51. Another speaker noted that he wanted to second the comments made by others. Couching the project as “the business obligations under the UDHR” is a helpful framework. In looking at the aspirational vs. the practical issues, he suggests the group look at the ILO Tripartite Declaration as an example. In that document, the ILO took the existing conventions and recommendations of the ILO and looked at their application to businesses in particular – to investigate the underlying principles that apply to businesses. The logical question becomes, what is the obligation of business when the state fails its role. What duty do businesses have to help states carry out their proper role? Some states don’t seem to be able to fulfill their basic obligations to protect human rights, in the context of competition. Do businesses need to show some restraint for this reason?
52. Another speaker agrees with several of the speakers about the danger of being too aspirational in this text. But let’s not bargain it down to the bare minimum now, either. The text should include a practical element. Any company codes already existing are the bare minimum. This project should go further. It is easier to agree on child labour, etc. Questions of health and safety are more difficult to define.
53. The Chair interjects at this point to note that he appreciates the comments made. It has been a very high level discussion. He is hesitant to insert his views too soon, but wanted to offer some guidance on how to structure the discussions that follow in smaller groups. Perhaps each group should divide its focus between minimum guidelines (negative obligations, legally binding) and positive obligations (right to development, etc) which are more aspirational in nature. To the extent it can, each group should identify the difference between the two types of obligations within the scope of the working group’s mandate. Also, consider distinguishing between shall and should. The document right now primarily uses the term “shall.”
54. Another observation made by a participant, was that the distinction wasn’t as much between binding and non-binding, but to what extent do the companies have to agree. When one speaks of internationally binding standards, many international lawyers think of legally binding as something which applies to states through treaties. It is a very different approach to have a voluntary statement, or code of conduct, for companies. There are many steps in between. The concept of “soft law” or “international law in the making” is relevant. For example, the Sub-Commission might adopt these standards as a statement on what they think the law is becoming, not what is already binding as in treaties. This may affect how the document will be implemented. This may be even more important than if it is to formally have a legally binding character.
55. Another speaker notes that the question from the beginning should be, what are we here to talk about? What happens after this discussion? Does a report go to the Sub-Commission? What do they do with it? Do they accept the report? Should they adopt a statement regarding the concept of compulsory vs. voluntary? If so, what happens to the content of the guidelines? This is the problem this speaker sees with the Global Compact – it is of a voluntary nature. How are we going to go into groups later today and grapple with this, until we know whether the text will be voluntary or legally binding? It can’t be both.
56. The problem is, another person notes, if we draft the text as an international law instrument, businesses will be be very anxious and reluctant to sign up for it. They often look at such language and become very concerned. Many times once you explain it to them, they are relieved. This type of tension must have arisen in connection with the ILO Tripartite Declaration. How was it handled in the ILO?
57. Another speaker notes that, from his ILO experience – there were concerns about sovereignty and scope in the discussions of the Tripartite Declaration. He likes the idea of framing this project as the Sub-Commission studying ways to interpret the Universal Declaration of Human Rights for businesses. He doesn’t like the idea of using the Global Compact as a starting point. It is very valuable in its own right – it is meant to be a social dialogue. But it is not a code of conduct. It was never intended to be a code of conduct.
58. Another person comments that he appreciates the rich debate that has been going on in this morning’s session. Many things are on the table. There are many different ways to go. The challenge is, how can we do something this afternoon which will move this topic forward? He’s not sure. But he has a question to pose to the group. This is really the first time where the human rights part of the UN has tried to tackle the interrelationship with businesses. Are the techniques used in the past with governments, and changing government conduct, adequate in changing the conduct of corporate actors? How long does it take? How much of an investment does it take? Are there new ways of reaching the private sector directly, with a message of what we expect?
59. Summarizing the morning’s discussion, the Chair notes that there seems to be a significant amount of consensus on most of the five key questions. (1) On the subject of whether the guidelines should apply to multi-national companies only or to all companies -- While a few participants have indicated that the largest problem is the international companies, the great majority of the participants seem to agree that the guidelines should apply to all companies. (2) On the second question, what the title of the text should be, there wasn’t as much discussion on how to formulate the title. Should they be called minimum guidelines? One speaker had several other suggestions. (3) On the third issue, binding vs. non-binding, there appears to be a much greater diversity of opinion. It seems clear that we’re not yet ready to draft a treaty. Some have indicated that the document should be voluntary. But the majority of those who have spoken seem to favor some degree of obligation or binding character for these standards. We still need to determine how the instrument will be taken on a binding chacter. We should also note that different articles of the current draft approach this issue differently. Some have negative obligations, that is, things that companies should not do. Some restate previously binding obligations from other sources – such as the Genocide Convention. You’ll have to assume they are more than voluntary, but how much more is yet to be resolved. (4) On the scope of the guidelines, there were several comments. All seem to be calling for a comprehensive view of the guidelines. Topics mentioned include environmental law, transparency, bribery, etc. Humanitarian law too has been suggested – because it fits within human rights. (5) On techniques for implementation, there were many suggestions. It is difficult to do a quick summary. Some of the suggestions include: reporting mechanisms, monitoring mechanisms, complaint mechanisms, and using the UN as a forum for receiving information. Perhaps, the Sub-Commission or its working group could have a part in this task. UN procurement might also be a mechanism for implementation.
60. The chair notes that he is offering this interim summary of where the group seems to be, so that we can pull something constructive out of this rich debate. It has been a very worthwhile and substantive discussion. Even though there is ambiguity in this process, he urges the groups to look closely at the language and improve the text as much as possible. Even though we don’t know what the Sub-Commission will do with this document, we need to do the best that we can. This is often the case when drafting a document in the UN. Let’s try to get it as right as possible, even in this context.
61. A question is posed to the chair on what he has in mind as minimum guidelines. There is a difference between minimum and aspirational. Maybe aspirational is the wrong word. He’s interested in continual improvement -- striving toward something. This concept should somehow be incorporated into the text.
62. The chair responds that there wasn’t a lot of discussion on this issue of minimum guidelines. It may be that it isn’t the right term. Perhaps, we should try to make the text “user friendly” as one speaker was suggesting. In other words, we should be clarifying for companies what they must do under recognized international human rights law. The chair indicated that he was still pondering this issue. He hadn’t reached a final conclusion yet.
63. Another speaker noted that he doesn’t buy the general statement that transnational corporations are the worst violators of human rights. They are easier to put the spotlight on. They are more visible. And they are probably easier to monitor. But he doesn’t think it is fair to conclude they are the worst violators.
64. In response, another speaker says, to clarify, she doesn’t think that anyone in the room is saying that TNCs are the worst actors. But because of their transnational structure, it is very difficult to get true accountability from them. That’s the point. They overwhelm the local state government infrastructure. She also notes on the scope of the document that there are other topics that should be included: Protection and prevention of abuse, access to justice when there is abuse, and reparation. This document needs to address all of these subjects. She will be very disappointed if it doesn’t. Access to justice and reparation are the keys – they need to be in this document.
65. To respond to the challenge made by a prior speaker, one participant argues that there are no global institutions or global government structures that can deal effectively with transnational corporations. This is the issue. It is a matter of sovereignty. It is very important, however, not to hand power to multinationals, even if we feel that governments are doing what they should. An NGO recently asked him, as a business representative, to lobby the government of Sudan. He said no. His company had no business activities in Sudan. This type of action would be a dangerous phenomenon. We should not encourage it. It makes a corporation into a small form of a state. There ought to be a very clear difference between what a state is and what a corporation is.
66. Another speaker notes that there are social responsibility type audits going on in this field. We find in this area that image building is a large part of companies’ involvement. Companies are motivated to act properly because they are being held answerable for their conduct via these audits. We need to make sure we develop a product which permits this sortof scrutiny.
67. Another person notes they agree with much that has been said. Working on corporate responsibility in his job, he has seen increasing recognition by companies of the need to embrace this area, but there is a need for realistic scrutiny to keep the pressure on. As we think about this particular project, he urges the group to keep in mind that the number of companies that have expressed public support or acknowledgement of their obligations in this area, is still very small. We need to consider how to increase overall participation dramatically. The first goal should be to further the acknowledgement process. We’re not as far along in the world, as we are in this room.
68. The distinction made between treaties and other international law documents, comments another participant, is a helpful one. This group is not a group of states. We are not heading down a path of creating a treaty. So we have a legal document that is not a treaty, but it has some legal effect. He will be joining shortly a seminar on the legal effect of presidential statements in U.N. bodies. They’re not binding instruments like treaties are, but they do have some binding character. It’s the same thing here. Having said that, he thinks the title “minimum guidelines” is missing the mark. Maybe “universal” is a better way to describe it. A universal set of guidelines. He doesn’t think this project is heading toward an interstate treaty. It is going to become some other type of legal document. Let’s keep this in mind.
69. Another person notes that we should be thinking about other complementary approaches that have value. Understanding that the ultimate objective is to improve the behaviour of international actors, lets explore ways to create a culture of compliance. We should be using the moral authority of the UN in creative ways. We need to ask ourselves, what motivates companies? What positive influence can we bring to bear? What aspects of UN institutions can be used to create knowledge and to create a culture of compliance? The speaker isn’t saying that guidelines have no place. But to the extent they are viewed as a punitive step, there needs to be a lot of community education associated with them, to create a true culture of compliance.
70. Another participant notes that in the end it is states that make international law -- not this group and not companies. What we’re trying to do is develop a document that’s in a form that if the states choose to adopt it, they can. But we are not making law here. The project is in a very early stage. This can get very confusing. A simple document that could fuse or bring together these issues, would be invaluable. One that includes business, NGO, labor groups, etc. On the issue of TNCs vs all businesses, we need to go back to the basics of the purpose of human rights law. We have learned that some states in power would abuse that power, and commit horrible human rights abuses. This is why human rights law developed, after the horrors of the 2nd World War. Large companies are absorbing some of the influence and power that used to reside in the states. This is the basic motivation of human rights law – you go to where the power is. However, if we’re creating something for the next 10 to 20 years, there is no logical distinction between TNCs and other companies. It tends to be a legal fiction. TNCs can reorganize themselves into non-TNCs. Many of the oil companies have done this, for example. There is no logical distinction between the two for these reasons. So for the long term we need to be creating a document that applies to all companies, although the biggest problem at the moment is the TNCs.
70. The chair then concludes the morning session by commenting on how impressive the breadth and depth of the discussion has been. We don’t have total clarity. But it seems that most of the comments made earlier appear to have captured the consensus in the room and have been validated by the further discussion. The guidelines should emphasize TNCs, but all businesses should comply with these standards in the long term. The name of document still needs to be debated. On the issue of the binding vs. non-binding nature of the document, there seems to be consensus that these principles are not entirely voluntary, but they are not treaty-like either. The guidelines are “soft law” as one speaker has indicated. But how soft, is yet to be considered. Let’s “muddle” through with these principles in mind as we move into our working groups this afternoon.
71. One question from a participant seeks clarification as to whether the group should be looking for words easily understandable by the Sub-Commission, or by businesses. The chair responds: that most of this document is principally directed towards companies. But he also notes that we’re not engaged in an attempt to force consensus. We’re attempting to get input into the document, to identify problems in the language that need to be fixed.
72. Another question from the group poses where the group is being asked to separate core standards from aspirational issues. If so, in this speaker’s view there are 3 categories. 1. Core. 2. Aspirational. and 3. Explanatory language for both. We should keep in mind that the Universal Declaration of Human Rights was drafted in the 40’s before there were many TNCs. The speaker also asks whether a status report from the implementation working group could be made to the other groups, since implementation seems to be so important to the entire text.
73. The chair notes that the division into three categories suggested by the speaker should be considered by the discussion groups in the afternoon. There will be a specific discussion group on implementation, but each group should be focussing on implementation in its respective subject matter. For example, in the area of employment – the working group on that topic should be considering special issues that arise in regard to employment issues. Also, the rapporteurs are invited to meet early on Saturday morning to share any cross-cutting issues which may have arisen during the Friday afternoon discussions, so that all the discussion groups will be informed of relevant concerns that may have been discussed in other discussion groups.
III. CONSIDERATION OF THE DRAFT GUIDELINES
74. During the Friday afternoon session, and continuing for some groups through Saturday morning, the seminar divided into five working groups to consider the various aspects of the draft text. The seminar was then reconvened in plenary during Saturday afternoon. The Chair asked each of the rapporteurs to give a report on their working group. The five discussion group reports follow:
Group 1: General obligations
75. The rapporteur for Group 1 reported that their group considered the provisions of a general obligation in the draft document, including the definitions in paragraphs 1-5, the general obligation paragraph 6, paragraph 18 pertaining to bribery, paragraphs 34-36 on consumer protections, and the concluding provisions, paragraphs 44 to 60.
THE NEED FOR A PREAMBLE
76. The group began with a general discussion of the need for a preamble and what it should contain. Suggestions included: (1) Explaining how this text fits into the context of the existing instruments, including the Global Compact, ILO, and OECD guidelines; and (2) Whether there should be a strict linking of the text to the source documentation, so it is clear we are not recreating the wheel, we are using the verbatim language from prior instruments, merely compiling the relevant principles into one document.
OTHER OVERVIEW COMMENTS
77. The rapporteur reported that the group concluded that there needed to be a separate savings clause—in other words language that makes it clear that these guidelines are not intended to lower the existing human rights standards. Where standards exist that go further than these, those standards should apply. The savings clause needs to be removed from para 5 and made to stand alone. Also perhaps there should be a call for companies to join the Global Compact as one of the implementation steps in the document.
78. In the definitions section, the group noted the comments made in the morning session on employee and stakeholder but did not come up with alternative text that they were comfortable with. They recommended that all definitions should be parallel in structure. A few minor modifications are necessary to achieve this objective. The interchanging use of terms “activities”, “practices”, “operations” and “mission” should be harmonized. Also in paragraph 5 – the definition of internationally recognized human rights –there should be an explanation of what the Bill of Human Rights is in the commentary.
PARAGRAPH 6: GENERAL OBLIGATION
79. This paragraph is perhaps the single most important provision. This section was discussed at length. Several ideas surfaced for rewording the text, including making it more clear that companies have separate, independent obligations to ensure respect, making states and companies obligations on a parity, differences in the meaning between responsibility, duty and obligation, negative vs. positive obligations, direct vs. indirect responsibilities, whether the word “shall” is appropriate. Some members also had concern with the last phrase, “within their respetive spheres of activity and influence.” But in the end, we elected not to change the text.
80. Comments to this paragraph included: Perhaps there should be a reference to states’ obligations too in this paragraph. Companies that breach these guidelines – to be held accountable if they do? Add some implementation here and generally in the guidelines, so that states commit to take steps to ensure that these guidelines are being followed in practice. This kind of text could also be in the resolution that adopts the guidelines. A call on all states to adopt implementing legislation, etc. One suggestion in the last sentence is to limit somewhat the transparency phrase by saying “enhance the transparency of their activities in this regard”. – this way it relates to the bribery concerns and is not a general call to make all aspects of their business operations transparent – which may call into question competitive information, trade secrets, etc. Another person suggests a separate sentence – general transparency as it relates to financial payments to governments. Reference was made to the action of BP in Angola where a general call on revenue allocation to the government is being made. Nobody knows how much money authorities are funneling to education, or are skimming off.
SECTION L: CONSUMER PROTECTION
81. Comments to this section included: Is the reference to products wholly within a state’s boundaries necessary? Para 34. Someone suggests the last sentence is not necessary. “All appropriate information” referred to in the first sentence would certainly include warning of death or serious injury. Another person thinks it strengthens the text to add the 2nd sentence. Most in the group agree that the text as currently written should stay as is. And there should be perhaps added a qualification in para 36 to the “supply information” phrase – supply “appropriate” information – so that there is some reasonable limit to the type of information which must be supplied.
SECTION P: CONCLUDING PROVISIONS (paragraphs 44-46)
82. Comments to this section were the following: Substantially similar guidelines – could be a cop out. Suggestion is made to add the following “or substantially similar guidelines which meet international human rights standards.” The last sentence of 45 may be too harsh. As an interim step between doing business with a violating company and ceasing business altogether, couldn’t there be some efforts to get the supplier to reform its practices? Add something like this: Take all necessary steps to reform or decrease these violations and, in the extreme case of suppliers who will not change, then cutting them off. Perhaps refer to the “sphere of influence” type concept here – to make it clear the buying company has an affirmative obligation to try and rectify the bad practices, not just cease doing business with the offender. In 46: One person suggests striking the word “stakeholders” in the first part, to avoid the question of who a stakeholder is and how one gets adequate information to them. Another person points out this provision makes a leap between knowing where offices are located, and “reassuring” stakeholders that products are being produced under proper conditions. To truly reassure, is to require substantial, effective monitoring. Maybe something like “Companies should make every effort to be transparent about their supply chain, as far as realistically possible.” Take out the “so stakeholders can be reassured” – because that’s wishfull thinking. It doesn’t necessarily follow from the disclosure of locations. Perhaps collapse this provision instead into number 49, on monitoring. Perhaps for example, add to the first line of 49 --- “compliance with these guidelines as far down the supply chain as possible.”
83. Para 47: Is it realistic to expect a company to assume liability for all pre-existing liabilities of companies they acquire. What about violations that are 25 years old. Is the language intending to reach back that far? Does it make sense? There’s a difference with current, ongoing violations. This issue, of course, hits on the general debate which is very open and unresolved about historic reparations for gross human rights violations.
84. Another suggestion of the group: rewrite this first sentence to fix this problem, or perhaps delete it altogether, since the second sentence gets more to the heart of the matter that these guidelines should probably be addressing, not historic reparations.
85. Regarding paragraph 48: Referring to “impartial monitoring” and to workers and unions, workers and unions will not be impartial. The language usually in this type of context is “independent monitoring” and neither management nor employees are viewed as satisfying this role. But we don’t want to imply that workers and unions don’t have a role to play. It just that they can’t be viewed as impartial or independent.
Group 2: Security issues
86. The rapporteur for Group 2 then gave his group’s report.
SECTION C War crimes.
87. The group was content with the broad direction of paragraph 7 but was concerned about some of the specifics. There was prolonged discussion on the terms “benefit from” and “illegally profit from” in discussion of war crimes. There was concern that these two phrases involved repetition.
88. Overall, it was felt that the preamble to the document might describe what is meant by “benefit” and also the notion of complicity. Furthermore, it was felt that the paragraph should include mention of internal armed conflict, as well as war crimes, to ensure the provision covers all forms of armed conflict.
89. Finally, the group expressed the wish that that article clearly charged companies with the burden of risk assessment and responsibility of ensuring that they are not inadvertently benefiting from war crimes.
90. Paragraph 8 caused great consternation. The group wished the opening sentence to assert that companies not produce or sell weapons that are illegal in international law, but leaving the statement open to broaden the definition of illegality and, specifically, not limiting this definition. There was considerable talk about providing scope for embargoes, but the relative infrequency of these actions together with the political problems resulting from regional embargoes, deterred the group from recommending further action on this point.
91. The second sentence caused most concern. There was a fear that, as drafted, the clause might prohibit most forms of commerce. The group believe this clause is an attempt to prevent trade with regimes engaged in human rights abuses, requiring trade to support itself and finance these abuses, for example, through the purchase of military equipment.
92. The group felt this would be adequately addressed by a statement such as “companies shall not engage in trade which is known to lead to serious human right abuses.” Again, the group expressed the desire to see the onus placed on companies to carry out risk assessments and to know the nature of their trading partners. This onus is not sufficiently clear in the present drafting.
SECTION H (security)
93. On the security section, the group made frequent reference to the US/UK voluntary principles for security in the oil and energy industries. The group felt that the draft guidelines could benefit from explicit reference to these principles. Perhaps more diplomatically, reference could be made to emerging best practice, or such reference could be stressed more. In this regard, it was felt that para 25 should mirror the language in the US/UK principles and refer to the companies pressing for proper resolution of allegations of human rights abuses. This approach would both ensure that companies take proper steps as well as involve the proper authorities in investigating such abuses, including the UN if necessary (but without reference to the UN itself).
94. Paragraph 27 was deemed to be unnecessary in the light of para 8. Transfers of military equipment are simply a special cases of trade in goods which contribute to human rights abuses.
95. After deliberation, the group felt that the security section should cover relations with private firms only and should be titled private security only to make this clear. Consequently the reference to state security in the final sentence eof paragraph 26 should be removed.
96. A separate section on relations with state security is warranted. This step should borrow from the opening paragraph of the relevant section of the US/UK guidelines, highlighting the primary role of governments in being responsible for the behaviour of state security, but the additional role of companies in promoting their good behaviour in discussions with government.
Group 3: Employment
97. The rapporteur for Group 3 then reported on her group’s discussions. While it would be impossible to capture the rich discussions the group had in a 5-minute report, the key points will be covered here.
98. Concern was expressed about the use of the word “employees” versus the word “workers.” Employee refers to the employment relationship and is more restrictive than worker. The text needs a preamble up front, clearly identifying the obligations of states.
99. The group had a broad discussion of how to restructure this document to make it much simpler and also more comprehensive since there are several rights not addressed. Another approach would be to state sources such as ILO treaties where prior provisions covers the field. And not try to restructure ILO treaties when they represent the best applicable law.
100. There was a need throughout, to cite source and use the original source material, such as the relevant ILO conventions. If not, guidelines could do more damage than good.
101. Also, there was a felt need to translate the document into a more practical language for businesses. There is also a need for concrete indicators. In addition, there was a general discussion on using language that is familiar to business. Perhaps, the guidelines might have multiple documents where there is an overall document understandable by businesses, and a more detailed document understandable to the human rights community. A suggestion to have perhaps multiple documents – something that the UN could digest and another document that interprets carefully the intention of the document and speaks a language more understood by business. What’s useful for business is a short statement on human rights principles and a second longer comprehensive document with indicators.
102. There was also an issue of who the stakeholders are. Should it apply to all stakeholders? Who is a stakeholder? What is the degree of the stake?
103. Other comments included: That there are a number of rights that are missing from the document. For example, the right to practice one’s religion and prison labor. There was also a general discussion on the Global Compact: Whether and how it relates to this endeavour. There was general agreement that the employment section is too scattered as it is broken up by sovereignty, etc.. The sections should be together. Also, there was a discussion of national standards versus international standards, especially in regard to health, safety, and the environment. There is considerable information on these issues. We need broad principles on healthy and safe workplaces. The issue of labour inspections is also missing from this section.
104. Some preferred referring only to international standards, since compliance with national standards is already implied. However, there was a recognition that national standards might be higher in some cases. Not only should companies obey national standards, but are also committed to following international standards. If the national standard is lower, companies still must follow international standards. The guidelines should clearly state as a general rule that national standards should be obeyed. The guidelines should look at the Tripartite Declaration on this point. It has good language. This Declaration has the support of worker organizations, states, and employer organizations.
105. There was extensive discussion on freedom of association and collective bargaining. The paragraph doesn’t take into account non-workers. People who are applying for a job may be discriminated against for their union activities. There is also an issue of paying dues to unions that an employee does not support. One should recognize that there may be violations of freedom of association and collective bargaining in the pre-hiring process.
106. On paragraph 11 (investigation of complaints, training against harassment) – there was a substantial discussion. As presently written, the paragraph could include bad advice as currently written. We don’t want to encourage bad practices. One should explain the relationship between government responsibility and company responsibility in this area.
107. In this document there is general phraseology at the beginning about governments and then the whole document talks about companies. This document ignores the whole interaction between actors and there’s an imbalance as to who the actors are.
108. Other comments included: There is a need to redo the paragraph based on ILO Tripartite principles which are universally applicable and legitimate. On slavery, child labour – again, the ILO conventions should be followed, although there was recognition that the Convention on the Rights of the Child contains useful principles. Child labour should also be linked with the right to education. Prison labor is an area of forced labor. Not mentioned here. There may als be a fair wage issue. One must promote the document to most of the businesses who do not yet have positive human rights practices. Promotion, education, and outreach will be more important than even the document itself. One should look at behavior of players and devise a system to reach them.
109. The issue of compensation for individuals for violations is missing in paragraph 21. Also missing are protection of workers that report violations, i.e., retaliatory dismissals. There are international health and safety standards on this subject, which should be used.
110. The notion that TNCs add value to assisting in the raising of national health and safety standards is missing. TNCs must have a leading role and be held to highest standards. Also, comparable national companies must also be held to the same standards. Check the language in the Tripartite Declaration on this point.
111. Final comments included: One must invoke the greater labor/human rights protections. The reality of workers in unions or seeking to join unions is that there is a lot of abuse. Paragraph 31 make it seem like its okay not to join trade unions. One should not import restrictions (i.e., Covenant restrictions) which are broad. Freedom of peaceful assembly is missing from this document. Although it is a bigger issue than trade unions. Paragraph 32 lacks protection of representatives. There was a question as to when you have a collective bargaining agreement that abrogates the minimum standards set in this document, then what should prevail? Could the collective bargaining agreement undercut minimum standards in these guidelines? There were also discussions on living wages and the right to paid holidays. There should be no deductions from pay for such purposes. One should check ILO standards on wages and hours of work for appropriate language. Further, there were issues such as where higher standards exist, or where another UN agency has spoken on an issue, then those words should be used. Otherwise, this document may undercut or be seen as a step back, unless we use the authority that is already recognized.
Group 4: Development and environment
112. The rapporteur for group 4 then reported on his group’s discussions. We suggested the principles be centered around the Universal Declaratiojn of Human Rights, so they are anchored to that instrument. Perhaps, the guidelines might even follow the order of the Universal Declaration.
113. Paragraph 6 – needs to be strengthened. The responsibilities of governments need to be strengthened.
114. The environmental subgroup came up with a very useful structure. An introductory statement – right to environment, the link between health and human rights, and intergenerational equity. Then operational principles – core principles of integrating environmental decisions into corporate decisions from the beginning, carry out environmental inpact statements (EIS), prevention principle (where harms are known), the precautionary principles (where harms are not clear – don’t use uncertainty to postpone corrective action), polluter pays, transparency, and stakeholder dialogue.
115. The group didn’t like the term “aspirational,” but examples include the life cycle approach.
116. Also, there needs to be a general obligation section, including overarching issues applying to all of the document. E.g., universality, indivisibility, interdependence, sustainable development, Rio Declaration, intergenerational, complicity, link to development, and paragraph 17 – delete end of 17 (actively speak out). Uneasy about using “influence” and how it might be used.
117. Near the end of document, the group would like to see a set of provisions which would spell out the steps of the core principles which need to be taken to create an enabling environment to ensure that these rights would be realized. E.g., stakeholder dialogue, train managers, and employees, general awareness, recognize importance of international standards,and need for consistency.
118. Regarding paragraph 40 – the last sentence says “companies shall not relocate from one country to another to evade more rigorous environmental standards.” We agree with the underlying principle, but it may target certain countries or regions. Better approach would be to recognize international standards and applying them consistently.
119. On development, it is more difficult issue to tackle than the environment. The right should be in the general obligation section. One should have a separate section on economic, social and cultural rights. Current text emphasizes political and civil rights. The guidelines need to be more balanced. Each right needs its own paragraph. For each one, there should be an introductory statement, the core standard, and brief explanation for how its operationalized. For example, right to self-determination, including Article 1 of the Covenants and indigenous peoples text, right to housing, right to health.
120. On the right to adequate food, the guidelines should make use of the general comments of theCommittee on Economic, Social and Cultural Rights. There are dietary needs, the right to be free from adverse substances, etc. Each subject suggests a particular industry or company relevant to each. Time did not permit drafting of an alternate text. In summary, the group felt that there needed to be a separate section, broken down by the type of right.
121. On some concluding points, the rapporteur reported the following: 1. Legal accountability and reparations somehow needs to be addressed. Perhaps, there should be more discussion with the International Council on Human Rights Policy which is working on this subject. 2. On intellectual property issues, there needs to be some discussion of technology transfers, bioethics, etc. 3. There also needs to be consultation with the Danish Center for Human Rights – which is working through each of the provisions of the Universal Declaration of Human Rights and unpacking them, showing their relevance to busineses. Also, there needs to be consultation or input from the International Chamber of Commerce, the World Business Council for Sustainable Development, WHO, trade and development economic organizations, and individual companies with considerable experience, such as Novo Nordisk. Perhaps, one should look at ethical guidelines – like the principles on trials by pharmaceutical companies.
Group 5: Implementation
122. The rapporteur for Group 5 then reported on his group’s discussions.
123. The group shifted its discussion between implementation and what the document should look like. There was general agreement on what will set this project apart from others – the stamp of UN authority that it will bear, even if it only gets considered by the Sub-Commission.
124. Ultimately there was felt to be a need for binding standards. The discussion group was undecided, however, as to how far this document will climb up the UN ladder. It should be drafted in a way so as not to preclude something more definitive being adopted in the future. It should be submitted so that the Commission on Human Rights will have an opportunity to consider the guidelines and the guidelines can be accepted by states. Although the document will be useful if adopted by the Sub-Commission, it will have stronger authority if it is adopted by higher UN bodies. Our group felt generally that it probably would not be terribly useful to push it beyond the Commission. In other words, this process should not be viewed as the beginning of a treaty process, but as the preparation of a “soft” law UN document. A treaty might, however, be envisioned in the future.
125. What should the text look like? One alternative would be a short declaration to be followed by elaborating guidelines. The Declaration would be the first step -- delineating which rights must be respected by companies. The Sub-Commission has the authority under the Universal Declaration of Human Rights. Therefore, a short declaration interpreting which rights in the Universal Declaration apply to companies would be appropriate. Such a document would give clarity. The preparation of a declaration and then elaboration would entail a relatively show process.
126. A second approach on a faster track would jump directly to a document of Elaborated Guidelines. This form of document would take the Universal Declaration forward, on the theory that the Universal Declaration is not specifically tailored for the business world. Many of the rights are not relevant. Many rights have developed since the Universal Declaration – e.g., the right to a clean environment and security issues. This approach would have the benefit of having an impact much sooner. Many in our group felt we needed to have an impact now. Therefore, we need guidelines that speak to issues that are most relevant to companies. A fast track document, though, is obviously a longer document.
127. Our group did not resolve which of these two tracks were the best approach (balancing speed and clarity), but some hints surfaced: 1. Parallel tracks might be one way to approach these objectives. Accept this document before us and not try to embody all of the Universal Declaration. Perhaps another initiative can then begin simultaneously, leading to a clear soft law declaration. 2. Combine both – reaffirm which rights in the Universal Declaration of Human Rights apply and include all of the new issues that have arisen after the Universal Declaration.
128. There were other words of warning: Don’t let governments abdicate their responsibility in this field. Must emphasize in the document both the obligations of governments to ensure that companies respect their rights and direct application.
129. Also, some provisions restate existing rights in a weaker way than the existing well-developed standards. This problem arises particularly in the area of labour rights. There is a need to avoid weakening existing rights. The text should refer more closely to existing ILO conventions and avoid weakening existing principles.
130. On particular types of implementation methods, the group discussed the following: There was a consensus that the Sub-Commission could act now to establish some type of forum, which would be public, transparent, accessible to all. Someone had an idea of an interactive website on which to monitor compliance. Other ideas included a national ombudsmen in each country, to monitor company compliance with human rights standards. National human rights institutions could also play a role in this regard. We felt that it was important to engage companies and industries now in this debate, so that there is acceptance from them and they begin to internalize the lessons.
131. NGOs should play a role too. At a minimum they should be strong advocates in this field, to stimulate accountability. There was unresolved controversy as to the extent to which NGOs can and should carry out monitoring. Accounting firms can also play a role in monitoring.
132. There were several general issues raised about monitoring, including a lot of discussion on how to monitor human rights compliance. There was general agreement that this document should identify the basic principles of monitoring – independence, transparency, and input from stakeholders. Beyond those principles, we need to build a capacity to monitor compliance -- somehow, somewhere. But the guidelines cannot get too specific yet, since this whole field seems to be evolving. It would be premature to define a tight, compact set of requirements for effective monitoring.
IV. CONCLUDING COMMENTS
133. The chair thanks each of the rapporteurs for their reports and urges them to submit their final reports to the general seminar rapporteur as soon as possible. He also asks whether there are any other comments anyone wishes to make on the five reports. None are noted. He then calls for a general discussion on this project and seminar.
134. One participant discussed how the draft guidelines compare to the work of the ILO in regard to the role of multinational enterprises (MNEs). The ILO’s document on MNEs particularly addresses the work place. It is important there there be coherence with the general international framework for dealing with companies. The draft guidelines cover topics that have not been addressed previously by international law. The draft guidelines also do not cover some areas which should be addressed, for example, they should address freedom of assembly provision. Wherever possible the guidelines should use ILO conventions that have already established a very high level of human rights protection, for example, as to non-discrimination of employment under ILO Convention 111 (Discrimination in Respect of Employment and Occupation). The guidelines should certainly not erode or undercut any existing principles. That’s the key.
135. This speaker also raised a question as to whether the seminar should have used Chatham House rules that do not identify the speakers. The process of making standards should be more transparent. On the subject of accountability, the ILO has systems for followup, evaluating impact of instruments. It breeds accountability in a healthy system. It ensure an enabling environment in which a process of ongoing dialogue can occur. It gives companies assistance for management systems to achive labour rights.
136. The speaker also discussed the question of whether to distinguish between MNEs and national enterprises: She stated that there is something to be said about the special contributions that MNEs can make to development and also about the negative contributions they can make because of their multinational nature. This text does not seem to capture those distinctions as compared with the ILO Tripartite Declaration which does balance these issues. The speaker referred to the ILO website containing the latest 100 country survey of the impact on MNEs on 12 areas of social policy.
138. The chair thanks the speaker for her comments and notes that the intent of the project is and continues to be to incorporate best practices. In addition, there is a savings clause in the current text that preserves better standards or practices that are already in existence. He looks forward to learning more from the ILO and cooperating with the ILO in an effort to make the final product as comprehensive and accurate as possible.
139. Another speaker noted that the ILO Tripartite Declaration appears to cover a portion of the existing text of the guidelines, but not all. The scope is different, but there is no any intention to weaken any existing institutions.
140. Another speaker notes his congratulations to the chair on this remarkable process and how far this project has come so far. While you’ve said you don’t expect consensus, the speaker thinks it has been achieved on some issues. On the primacy of the project, on the urgency of time, he would like to ask, what can we do? Can we use this text informally? Is it in the public domain? Can we test it in our discussions with companies and others? Companies are assemblages of people of the same species as ourselves. There are good companies and bad companies. We should not treat companies as adversaries. The speaker hopes the tone will be constructive. Companies have an influence that we really need on our side.
141. The chair thanks the speaker for the kind remarks. To respond to the questions posed, this is a transparent and totally accessible process. It is the chair’s intention as soon as he can after this meeting, to redraft the document, in light of all the comments received. He will disseminate the revised text to all in this room. Members of this group are welcome to take the present draft and use it informally, as long as you let the recipient know it is a draft.
142. Another speaker notes that he was not able to join the seminar until today and would like to make some general comments. He would hope that the consultations are used to improve the text, but not give things away. What is the value added of this project? He would propose its highest and best use is as a tool for a sensitized shareholder group. Perhaps consultation with shareholder groups would be a good approach too.
143. Another speaker notes that we need a paradigm shift in our thinking about law. There was an idea that law was only a decision backed by a sanction, enforced by a sovereign. That is clearly not what this exercise is about. For him the text could be viewed as a legal text. It is not a distillation of binding law. It is a compilation of standards and practices that have worked. The persuasive nature of this document will not depend on the UN letter that is in front of it. Let’s move away from this UN system with its hierarchy of layers and that type of thinking.
144. Another participant notes that the group should try to create a win-win, not a win-lose result. We need to include CEOs in the discussions and consultations. For this reason we need to keep the text simple. Otherwise, CEOs will not have time to get involved. Business people don’t have a lot of time. But they must acknowledge that social needs are important. Hence, the basic document should be kept very short. The ILO document is too extensive, makes many obscure references, and is difficult to use in practice.
145. To underscore what the prior speaker was saying, another person notes, we want to raise the practice of companies on the ground. The more concise the document, the greater clarity, the more user friendly – the better the document will be. Don’t get tied up in UN jargon too much. The comments made today and yesterday will hopefully strengthen it, but don’t change the fundamental structure or approach.
146. Another speaker notes that the present draft contains a bit of mix of provisions. Which provisions are core principles, which are more detailed explanations? This may help to reduce the length of the document. Perhaps, we should include operational aspects at a later stage, as a supporting document.
147. To respond to the earlier speaker on new types of law-making, one person notes that the force of law is in the eye of the beholder. Taken to its extreme, anyone in this room can enact a law. Most, however, recognize the power of authority. Authority still makes a difference.
148. Another speaker said that she was also intrigued by the comment made earlier about adopting the best standards and practices that currently exist. What if the highest standards of company practice still do not meet the international norm? Clearly this is still the case on collective bargaining and freedom of association. On the point made that these guidelines must be persuasive to companies – this could include the financial profit to be made, minimizing risk assessment, increasing shareholder value, etc. How would the persuasion come in and where would you balance it with legal authority?
149. Another person notes that there are 30 codes a week coming in from companies at his office. The value of this document could be immense. It could consolidate all of this information into one source. It could be recognized as universal. Also, we should mention the key “drivers” for this project in the preamble – including what’s in it for business. These drivers might include more stable markets, more consumers, etc.
150. Another speaker indicates the he would hope that we particularly look at export processing zones. This is the area where the most egregious violations reportedly occur. A report on this area in particular would be very welcome.
151. Another speaker notes that this has been a very rewarding discussion. He thinks the question of the title of the document should be delayed until the chair has an opportunity to consult with his colleagues at the Sub-Commission. Probably Section B on general obligations is going to require substantial rewriting on the basis of the discussions today and yesterday.
152. Another speaker notes that the project needs to focus on communication techniques too.
153. The Chair then asks Ms. Grant of the Office of High Commissioner to offer her concluding remarks.
154. Ms. Grant notes that the High Commissioner for Human Rights is now on her way to Nairobi. It is the speaker’s pleasure to represent the High Commissioner in her absence. It appears from the working group reports that a rich amount of detail has been discussed. The speaker was also impressed with the comment on the need for coherence with the ILO’s work in this field. There clearly is a need for coherence, especially in light of the long history the ILO has in this field. This drafting project is really very new – Professor David Weissbrodt got his mandate in the summer of 1999. It is not surprising that some have felt that this draft text needs to be improved, given this fairly recent history. Thanks to everyone for spending last two days on this project. The Office of High Commissioner welcomes the opportunity to participate in further consultations on this and other subjects.
155. The Chair thanks Ms. Stefanie Grant and the Office of the High Commissioner, including in providing the venue and the meeting arrangements for this seminar. Thanks also to Jong-Gil Woo and Scott Jerbi for their staff support. In addition, gratitude goes to those who provided funding: the Ford Foundation and the Swiss Federal Department of Federal Affairs. Thanks also to the Lutheran World Federation, Muria Kruger, and Bret Thiele for their practical assistance with the seminar. Further thanks to the chairs and rapporteurs of the discussion groups and to the Sub-Commission members who participated. The principal objective of the seminar was achieved, that is, to provide consultation about the Working Group’s project to draft human rights guidelines for companies, but there was an incredibly high level of intellectual exchange too. Thanks to all participants.
Table of Contents
A. Definitions and General Provisions 1 - 5
B. General Obligations 6
D. Non-Discrimination and Freedom from Harassment and Abuse 9 - 11
E. Slavery, Forced Labour, and Child Labour 12 - 14
F. Respect for National Sovereignty and the Right of Self-Determination 15 - 19
G. Healthy and Safe Working Environment 20 - 22
H. Security 23 - 27
I. Fair and Equal Remuneration 28 - 29
J. Hours of Work 30
K. Freedom of Association and the Right to Collective Bargaining 31 - 33
L. Consumer Protection 34 - 36
M. Intellectual Property 37
N. Environmental Protection and Human Rights 38 - 40
O. Other Economic, Social, and Cultural Rights 41 - 43
P. Concluding Provisions 44 - 50
A. Definitions and General Provisions
1. The term “company” includes any business enterprise, regardless of the international or domestic nature of its activities; the corporate, partnership, or other legal form used to establish the business entity; and the nature of the ownership of the entity, including any privately-owned or government-owned entity.
2. The term “employee” includes any person who performs services under the control or direction of the company.
3. The term “stakeholder” includes any individual or group which is affected by the operations of the company. Stakeholders include consumer groups, customers, employees and their representatives, governments, neighboring communities, NGOs, owners, public and private lending institutions, stockholders, suppliers, trade associations, and others who may be affected or influenced by its activities. The term “stakeholder” should be interpreted functionally in light of the objectives of these guidelines and includes both direct and indirect interests.
4. The terms “contractor,” “subcontractor,” “supplier,” and “licensee” signify any natural or legal person who contracts with the company to accomplish the company’s mission.
5. The phrases “internationally recognized human rights” and “international human rights” refer to civil, cultural, economic, political, and social rights as guaranteed by the International Bill of Human Rights and the other human rights treaties, as well as rights guaranteed by international humanitarian law, international refugee law, international labour law, and other relevant instruments promulgated by the United Nations. Nothing in the present Human Rights Guidelines shall affect any provisions which are more conducive to the realization of human rights and which may be contained in: international law, national or state law; or the practices of companies.
B. General Obligations
6. While governments have the principal responsibility to respect, ensure respect for, and promote internationally recognized human rights, companies shall also respect, ensure respect for, and promote international human rights within their respective spheres of activity and influence.
C. War Crimes, Crimes Against Humanity, and Other Crimes
7. Companies shall not engage in nor benefit from acts of others in war crimes, crimes against humanity, genocide, torture, forced disappearance, hostage-taking, and other international crimes against the human person; nor shall they illegally profit from these acts or any other violations of international criminal or humanitarian law.
8. Companies shall not produce or sell weapons that have been declared incompatible with international law. Companies shall not trade in products, such as diamonds, which are known to finance participants in armed conflict who are engaging in serious human rights abuses.
D. Non-Discrimination and Freedom from Harassment and Abuse
9. Companies shall treat each employee with equality, respect, and dignity. No employee shall be subject to direct or indirect physical, sexual, racial, psychological, verbal, or any other discriminatory form of harassment or abuse as defined in the next paragraph. Nor shall any employee be subject to intimidation or degrading treatment; or be disciplined without fair procedures or in the form of fines that result in debt bondage.
10. All policies of companies, including, but not limited to those relating to recruitment, hiring, discharge, pay, promotion, and training shall be non-discriminatory on the basis of race, colour, sex, religion, political opinion, nationality, social origin, social status, indigenous heritage, disability, age (over the age of majority), marital status, capacity to bear children, pregnancy, sexual orientation, or other status of the individual employee unrelated to the individual’s ability to perform the job, unless the selectivity is specifically designed to promote equality in employment or to protect health. The company shall establish a work environment in which it is clear that such discrimination will not be tolerated. In view of the prevalence of sex discrimination particular attention should be devoted to the consequences of company activities that may affect the rights of women.
11. To the extent of available resources companies shall provide training and monitoring to prevent such discrimination and appropriate remedies in cases in which discrimination has occurred. Companies shall obtain impartial investigations of discrimination or harassment claims when appropriate and ensure the development of legitimate and confidential avenues through which employees can file complaints with regard to such issues. To the extent possible the actions taken as a result of the investigation should be made available to the complainant.
E. Slavery, Forced Labour, and Child Labour
12. Companies shall not use slave, forced, indentured, or compulsory labour. Employees shall be recruited, paid, and subjected to other working conditions so as to avoid debt bondage or other forms of slavery. Employees shall have the option to leave employment and the employer must facilitate such departure by providing all the necessary documentation and facilitation.
13. Companies shall not allow any person under the age of 18 to work under conditions which have been identified by ILO Convention 182 as the worst forms of child labour, for example, working under conditions which are likely to harm the health and safety of children or interfere with the physical, mental, spiritual, moral, or social development of a child.
14. Companies shall not use child labour. Child labour is defined as the employment of any person in regular work duties before the completion of compulsory schooling or the employment of any child below the age of 15 years, which employment will prevent the child from attending school or performing school-related responsibilities. Companies using child labour must create and implement a plan to eliminate child labour. Such a plan should assess what will happen to the children who are no longer employed in the company and include measures such as withdrawing children from the workplace in tandem with the provision of suitable opportunities for schooling, vocational training, and other social protection for the children and their families, for example, by employing the parents or older siblings.
F. Respect for National Sovereignty and the Right of Self-Determination
15. Companies shall recognize and respect the national laws, regulations, administrative practices, and authority of the State to exercise control over its national resources in the countries in which the companies operate, as well as the cultural, religious, and other symbolic values, in so far as these laws, regulations, practices, authority, and values do not conflict with international human rights standards. Companies should endeavour to function within the development priorities; social, economic, and cultural objectives; values and way of life of the communities as well as structure of the countries in which they operate in so far as those objectives and values do not conflict with international human rights standards. Companies shall treat relevant stakeholders, such as indigenous communities, with equality, respect, and dignity. Companies shall also inform themselves about the human rights conditions in the countries in which they operate, so that they can avoid complicity in human rights abuses. Further, within the limits of their resources and capabilities and consistent with community values, as provided above, companies and their stakeholders should endeavour to encourage social progress and development by engaging in constructive business activities and expanding economic opportunities – particularly in developing countries and most importantly in the least developed countries.
16. Companies shall cooperate, insofar as relevant, with national and international monitoring of compliance with national and international laws.
17. Companies shall have the responsibility to ensure that their business operations do not contribute directly or indirectly to, or knowingly benefit from human rights abuses; to refrain from activities that would undermine governmental and other efforts to promote and ensure respect for human rights; and actively to speak out or otherwise use their influence in order to help promote and ensure respect for human rights.
18. Companies shall not offer, promise, give, accept, or demand a bribe or other improper advantage, nor shall they be solicited or expected to give a bribe or other improper advantage to any government or government official. Companies shall enhance the transparency of their activities and openly fight against bribery, extortion, and other forms of corruption.
19. Companies shall respect the rights of indigenous and similar communities to own, develop, control, protect, and use their lands, other natural resources, and cultural and intellectual property. Indigenous communities may not be deprived of their own means of subsistence. Companies shall respect indigenous control, use, and occupancy of their lands and resources, including timber, oil, gas, and minerals. Companies should avoid endangering the health, environment, culture, and institutions of indigenous communities in the context of projects, including road building in or near indigenous communities. Companies shall use particular care in situations in which indigenous lands, resources, or rights thereto have not been adequately demarcated or defined.
G. Healthy and Safe Working Environment
20. Companies shall provide a safe and healthy working environment in accordance with the national requirements of the countries in which they are located and with international standards such as those found in ILO Convention 155 (Occupational Safety and Health Convention) and other relevant general and specific ILO conventions and recommendations. Such a safe and healthy work environment should aid in the prevention of accidents and injuries arising out of, linked with, or occurring within the course of work.
21. Companies shall make information about the health and safety standards relevant to their local operations available to their workers in the local language and in both written and oral form. The information shall also include arrangements for training in safe working practices and details on the effects of all substances used in manufacturing processes. In particular, companies shall make known any special hazards which tasks or conditions of work involve and the related measures available to protect the workers. Companies shall examine the causes of safety and health hazards in their industry and work to implement improvements and solutions to those conditions, including the provision of safe equipment at least consistent with industry standards. Companies shall investigate work-related accidents and keep records of all such incidents stating their cause and remedial measures taken to prevent similar accidents.
22. Agreements with workers and their representative organizations shall reflect concerns they have about health and safety.
23. Security arrangements for companies shall observe the law and professional standards of the country in which they operate; emerging best practices developed by the industry, civil society, and governments; and international human rights standards, particularly the UN Principles on the Use of Force and Firearms and the UN Code of Conduct for Law Enforcement Officers.
24. Company security arrangements shall be used only for preventive or defensive services. They shall not be used for activities exclusively the responsibility of the state military or law enforcement services. Security personnel shall only use force when strictly necessary and to an extent proportional to the threat. Security personnel shall further not violate the rights of individuals while exercising the right to freedom of association and peaceful assembly, to engage in collective bargaining, or other related rights of company employees as recognized by the Universal Declaration of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.
25. Companies shall record and investigate all relevant allegations of human rights abuses by private security guards in which there are reasonable grounds to believe a human rights abuse occurred.
26. Companies shall establish policies against hiring individuals or working with units of state security forces or contract security firms that are known to have been responsible for human rights abuses. To the extent of their resources and capabilities, companies should ensure that guards in their employ are adequately trained and particularly trained concerning relevant international standards with regard, for example, to the use of force and firearms as well for the handling of demonstrations. If a company contracts with a state security force or a private security firm, the relevant provisions of these guidelines (23-26) shall be incorporated in the contract.
27. Companies which supply military security or police products/services shall take stringent steps to prevent those products and services from being used to commit human rights or humanitarian law violations.
I. Fair and Equal Remuneration
28. Companies shall compensate workers for the work completed with just, favourable, and periodically regular remuneration ordinarily in legal tender at a level adequate to ensure a lifestyle worthy of human existence in the context of their circumstances. In establishing rates of remuneration, companies shall not discriminate on the basis of race, colour, sex, religion, political opinion, nationality, social origin, social status, indigenous heritage, disability, age (over the age of majority), marital status, capacity to bear children, pregnancy, sexual orientation, or other status of the individual employee as set forth in paragraph 10 above.
29. Remuneration includes the ordinary, basic, or minimum wage or salary, and additional emoluments payable directly or indirectly to the employee by the employer as a result of the worker’s employment. Workers shall be informed periodically as to the wages, salaries, and additional emoluments to which they are entitled. Companies shall not deduct from a worker’s wages already earned unless authorized by law. Deductions from earned wages for disciplinary measures shall not be permitted nor shall any deduction from wages not provided in national law be permitted without the express permission of the worker concerned. Companies shall keep detailed written records on each employee’s hours of work and wages paid. At the time employees are paid for their work, they shall receive an accounting in writing of hours worked and wages paid for the pay period.
J. Hours of Work
30. Companies shall not require any employee to work more than 48 hours per week. Voluntary overtime for workers should not exceed 12 hours per week and should not be demanded on a regular basis. Compensation for such overtime should be at a rate higher than the normal rate. Each employee should be given at least one day off in every seven-day period. These protections should be adjusted to meet the different needs of management personnel, professionals, and others who have clearly indicated their personal desire to work more hours.
K. Freedom of Association and the Right to Collective Bargaining
31. All workers shall have the right to form and join organizations of their choosing, including trade unions, for the protection of their employment interests and for collective bargaining. No restrictions shall be placed on the freedom of association and the right to organize other than those restrictions that do not conflict with international human rights standards. Workers shall not be subject to discrimination for participation in these activities, nor shall individual workers be impeded from participation in these groups or required by companies to join such groups for any purpose other than defraying the costs of representation. In so far as consistent with national and international law, companies shall grant facilities to permit establishment of workers organizations.
32. Companies shall enable representatives of their employees to conduct negotiations on their terms and conditions of their employment with representatives of management who are authorized to make decisions about the issues under negotiation. Employees shall be given access to information, facilities, and other resources that are relevant and necessary for their representatives to conduct negotiation effectively without unnecessary harm to legitimate employer interests.
33. Companies shall respect the right of employees to submit grievances, including grievances as to compliance with these guidelines; to have those grievances examined by fair and impartial persons who have the authority to redress any abuses found, pursuant to the appropriate procedure; and to be protected from suffering prejudice for using those procedures. Companies shall abide by the decisions of the tribunals or other mechanisms that are empowered to make determinations on such matters, including unfair labor practices by any party. Companies shall take particular care to protect the rights of employees as to such procedures in countries that do not abide by international standards regarding the freedom of association, the right to organize, and the right to bargain collectively.
L. Consumer Protection
34. Companies shall conduct the production and marketing of their products in accordance with the national laws, regulations, and the administrative practices and policies concerning consumer protection of the countries in which they operate. Companies shall also adhere to relevant international standards so as to avoid variations in the quality of products that would have detrimental effects on consumers, especially in states lacking specific regulations on product quality, and even if the product is produced solely for consumption within the state’s boundaries.
35. Companies shall disclose to the public all appropriate information on the contents and possible hazardous effect of the products they produce through proper labeling, informative and accurate advertising, and other appropriate methods. In particular, they shall warn if death or serious injury is probable from a defect, use, or misuse.
36. Companies shall supply information to the relevant authorities regarding the characteristics of products or services that may cause injury to the health and safety of consumers, employees, or others as well as restrictions, warnings, and other regulatory measures imposed by several countries on the grounds of health and safety protection as to these products or services.
M. Intellectual Property
37. Companies shall protect and enforce intellectual property rights in a manner that contributes to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
N. Environmental Protection and Human Rights
38. In decision-making processes, companies shall assess the impact of their activities on the environment and human health including impacts from siting decisions; natural resource extraction activities; the production and sale of products or services; and the generation, storage, transport, and disposal of hazardous and toxic substances. Companies shall undertake environmental and social assessments on a periodic basis (preferably annually or bianually). Assessments shall address the impact of proposed activities on women. Companies shall distribute such reports in a timely manner and in a manner that is accessible to the United Nations Environmental Programme, the International Labour Organization, other interested international bodies, the national government hosting the company, the national government where the company maintains its principal office, and other affected groups. The reports should be accessible to the general public. Companies should develop and implement measures to prevent and/or mitigate deleterious impacts identified in any assessment, and should consider any reactions from stakeholders in endeavouring to prevent environmental and human rights consequences. Companies shall provide adequate reparation to those persons who have been adversely affected by restoring, replacing, or otherwise compensating for any damage done or property taken.
39. Companies shall be responsible for the environmental and human health impact of all of their activities, including any products or services they introduce into commerce, including packaging, transportation, and by-products of the manufacturing process. Upon the expiration of the useful life of their products or services, companies shall be responsible for collecting or arranging for the collection of the remains of the product or services for recycling, re-use, and/or environmentally acceptable disposal.
40. Companies shall take appropriate measures in their operations to reduce the risk of accidents and damage to the environment by adopting best management practices and technologies. In particular, companies shall use best management practices and appropriate technologies to meet this objective and enable their component entities to be equipped to meet this objective through the sharing of technology, knowledge, and assistance. In addition, they shall educate and train employees to ensure their compliance with this objective. Further, companies shall not relocate their operations from one country/location to another in order to evade more rigorous environmental standards at an existing place of business.
0. Other Economic, Social, and Cultural Rights
41. Companies shall, within their respective spheres of activity and influence, endeavour to assure food security, health care, primary education, and other socio-economic rights.
42. In making siting decisions – particularly as to larger tracts of land – and decisions to depart from a community, companies shall assess the foreseeable consequences of their activities as to displacing people from their habitats and shelter, upsetting food security, diminishing health care, and decreasing the availability of primary education.’
43. Companies shall not forcibly evict individuals, families, and/or communities against their will from their homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection pursuant to international human rights law.
P. Concluding Provisions
44. Each company shall adopt its own code of conduct or shall adopt other adequate measures to afford at least the protections provided in these Human Rights Guidelines for Companies. Companies may adopt a code of conduct or similar measures that offer additional protections above and beyond these guidelines, but these guidelines should be viewed as a minimum standard for human rights protection in a company’s code of conduct or similar measures.
45. Each company shall make its code of conduct or similar measures available to all stakeholders and shall publish its procedures for the implementation and monitoring of its code of conduct or similar measures. The company code of conduct or similar measures shall be communicated in oral and written form in the language of employees, contractors, suppliers, customers, and other stakeholders of the company. Once a company’s code of conduct or similar measures have been adopted, companies shall – to the extent of their resources and capabilities – provide effective training for their managers as well as employees and their representatives in company practices relevant to the international human rights standards to which these guidelines refer. Before a company pursues a major initiative or project, it should, to the extent of its resources and capabilities, study the human rights impact of that project in light of these guidelines and its company code of conduct or similar measures, should generally make available the results of that study to stakeholders, and should consider any reactions from stakeholders.
46. To the extent of its resources and capabilities, companies shall endeavour to assure that they only purchase products and services from contractors, subcontractors, suppliers, and licensees who follow this or substantially similar guidelines. Before entering into new business relationships, companies shall assess the compliance of these potential business partners with the standards set forth in this or other substantially similar guidelines. If a company is currently doing business with a contractor, subcontractor, supplier, or licensee that violates these guidelines, the company shall no longer do business with that business entity.
47. Companies should make known to stakeholders the location of their offices, subsidiaries, and factories, so that stakeholders can be reassured that the companies’ products and services are being produced under conditions that respect these guidelines.
48. Companies shall remain subject to the responsibilities and liabilities of pre-existing companies they acquire. Companies shall take the necessary steps to ensure all branches, subsidiaries, etc. of any pre-existing companies they acquire are brought into compliance with these guidelines.
49. Companies shall accept impartial monitoring of their compliance with these guidelines, for example, by encouragement of workers and unions to take the initiative to monitor compliance with the code and to suggest improvements; by maintaining records of the name, age, hours worked, and wages paid to each worker and making these available to independent monitors; and by indicating their willingness to accept unannounced inspection visits at any time by monitors and unsupervised interviews of workers, so long as these activities do not unduly interfere with work being performed.
50. Each company shall endeavour to improve continually its implementation of these guidelines. Improvements shall take into consideration the comments and concerns raised by stakeholder groups and include their participation. Companies shall establish mechanisms, including independent verification and regular reporting for stakeholders, to monitor and audit periodically their compliance with these guidelines and international human rights standards.
SUMMARY OF WRITTEN COMMENTS SUBMITTED BY PARTICIPANTS
Note: The Chair invited participants to submit written comments in advance of the seminar, responding to the five key issues posed by the Chair. The issues were: 1. Should the guidelines apply to all companies, or only to TNCs? 2. Should the guidelines be identified as a code of conduct, principles, standards, rules, guiding principles, best practices or some other title? 3. Should they be legally binding? 4. What should their scope be? 5. What implementation techniques are available?
Twelve of the seminar participants submitted written responses to these questions. This annex summarizes the responses by key issue.
1. SHOULD THE GUIDELINES APPLY TO ALL COMPANIES OR ONLY TO TRANSNATIONAL CORPORATIONS?
Four of the respondents indicated the guidelines should apply only to transnational corporations, or primarily to such corporations. The remainder, 8 persons, expressed a strong sentiment that they be applicable to all companies.
2. SHOULD THE GUIDELINES BE IDENTIFIED AS A CODE, PRINCIPLES, STANDARDS, RULES, ETC?
Several persons indicated no strong preference. Of those who felt strongly about this subject, two said the instrument should definitely not be called a “code of conduct” because of the overuse of that term. Four others felt that “code of conduct” was the proper term, but at least of of these persons felt that it should be made clear that the code was not a “voluntary” code of conduct. At least one of these felt that “principles” or “guidelines” was the wrong term, because it implied a voluntary-nature.
Other suggestions included: guidelines or guiding principles (2), principles (3), best practices (2), rules (2), and standards (2). One person suggested the title, “Business and Human Rights Declaration.”
3. SHOULD THE GUIDELINES BE BINDING OR NON-BINDING?
Most participants expressed a strong preference for binding principles, but most also advocated this as a long term objective, and that it was not practical as a short term objective. Some of the comments included: making the principles binding at this time was too ambitious, but companies need to be incentivized in some way to follow them; these guidelines should be viewed as the first step to eventual binding guidelines; we should strive for legally binding legislation; and the guidelines should be binding in the long term but we should find some creative ways to make them more than merely voluntary in the short term.
4. WHAT SHOULD BE THE SCOPE OF THE GUIDELINES?
Most participants expressed a strong preference for as comprehensive a scope as possible, including all of the subjects currently covered in the guidelines. Some had suggestions for additional subjects including – industry specific guidelines for particular industries (such as medical ethics principles for the pharmaceutical industry), antitrust principles for companies in developed countries, and humanitarian law principles.
Some preferred a limited scope in order to avoid duplicating more detailed guidelines in other fields, and/or linking to these more detailed bodies of law so as to avoid confusion. One person felt that the guidelines should be limited to the same scope as the Global Compact, and the two instruments should be more closely integrated together.
5. WHAT TECHNIQUES MIGHT BE AVAILABLE FOR IMPLEMENTATION?
Nearly every respondent had a different set of suggestions for implementation but there were many common elements, including operationalizing the guidelines into company practices, establishing verification or monitoring mechanisms, establishing a UN forum for reviewing company practices, adopting enabling national legislation, and education and training programs.
Other suggestions included adopting the guidelines at the highest UN levels and then seeking to integrate them with current ILO and Global Compact activities, creating an “enlightened self- interest” in companies; moral persuasion; public pressure; issuing an annual UN report on the top 100 companies’ practices; establishing an expert body or rapporteur of the UN to report and monitor companies’ human rights practices; offering UN assistance to states in implementing legislation; creating a culture of compliance; establishing an international control mechanism, including unannounced inspections; creating a reparations regime for victims of company practices; enforcing the guidelines in national and international courts; and creating information management systems to monitor and evaluate company reporting.
LIST OF PARTICIPANTS
Members of the Sub-Commission
Mr. Asbjorn Eide
Norwegian Institute for Human Rights
Mr. Vladimir Kartashkin
Commission on Human Rights under the President of the Russian Federation
Mr. Soo-Gil Park
Professor, Graduate Institute of Peace Studies
Kyung Hee University
Mr. Manuel Rodriguez-Cuadros
Permanent Representative of Peru to the OAS
Mr. David Weissbrodt
Frederikson & Byron Professor of Law
University of Minnesota Law School
Office of the High Commissioner for Human Rights
Ms. Stefanie Grant
Mr. Jong Gil-Woo
Mr. Scott Jerbi
Ms. Janelle Diller
International Labour Organization (ILO)
Mr. Cornelis Theunis van der Lugt
UNEP Division of Technology, Industry and Ecoomics
Non-governmental organizations, academics and others
Ms. Andrea Aeby
Political Division IV
Human Rights and Humanitarian Policy
Federal Department of Foreign Affairs
Mr. Christopher Avery
Mr. Theo Boutruche
Graduate Institute of International Studies
Mr. Martin Brookes
Researcher in Economic Relations
Mr. Doug Cahn
Vice President, Reebok Human Rights Programs
Reebok International Ltd.
Sir Geoffrey Chandler CBE
Mr. Andrew Clapham
Associate Professor of Public International Law
Graduate Institute of International Studies
Mr. Aron Cramer
Vice President, Business and Human Rights
Business for Social Responsibility
Ms. Sumithra Dhanarajan
Ms. Teresa Fabian
Reputational Assurance Consultant
Mr. Arvind Ganesan
Human Rights Watch
Ms. Pia Rudolfsson Goyer
Norwegian Institute of Human Rights
Ms. Frances House
Director, Operational Policy
The Prince of Wales Business Leaders Forum
Mr. Nicholas Howen
Surrey, United Kingdom
Mr. Dwight Justice
Prof. Menno Kamminga
Professor of Public International Law
Ms. Alya Kayal
Social Research Analyst
Calvert Asset Management Company, Inc.
Ms. Muria Kruger
St. Paul, Minnesota
Prof. Dr. Klaus M. Leisinger
Novartis Foundation for Sustainable Development
Ambassador Peter Maurer
Head of Political Affiars Division IV
Human Rights and Humanitarian Policy
Federal Department of Foreign Affairs
Mr. Thomas McCarthy
Ms. Justine Nolan
Lawyers Committee for Human Rights
Mr. Gerald Pacoud
Federal Department of Foreign Affairs
Ms. Penny Parker
Office of Legal Counsel
Mr. Miguel E. Pellarno
Center for Human Rights and the Environment
Buenos Aires, Argentina
Mr. David Petrasek
International Council on Human Rights Policy
Mr. Peter N. Prove
The Lutheran World Federation
Office for International Affairs and Human Rights
Ms. Mabel Rantla
Manager Community Development Department
South African Breweries Ltd.
Ms. Usha Ramanathan
New Delhi, India
Mr. David Rice
Policy Adviser, Political & Government Relations
Ms. Karin Schmitt
Director, Social Development
Novartis Foundation for Sustainable Development
Mr. Fackson Shamenda
Zambia Congress of Trade Unions
Mr. Wilder Tayler
Human Rights Watch
Mr. Sune Skadegaard Thorsen
Senior Advisor, Ethics & Social Affairs
Novo Nordisk A/S
Mr. Brent Wilton
International Organization of Employers