Draft Universal Human Rights Guidelines for Companies, Introduction, U.N. Doc. E/CN.4/Sub.2/2001/WG.2/WP.1 (2001).





1.     At its first session the Working Group on the Working Methods and Activities of Transnational Corporations of the Sub-Commission in August 1999 decided to consider developing a code of conduct for companies based on human rights standards.  Such a code would attempt to involve in a constructive manner the relevant business communities, governments, and NGOs.  Mr. Weissbrodt was asked to prepare a draft of such a code of conduct in cooperation with NGOs having expertise on the subject.  The Working Group considered the first draft of the human rights guidelines for companies at its August 2000 session.  Mr. Eide (in cooperation with Mr. Van Hoof) was asked to prepare a paper on implementation of human rights guidelines with regard to companies.   Pursuant to the discussion and recommendations for changes at the August 2000 session, Mr. Weissbrodt was asked to present a new draft to the Working Group and to the Sub-Commission at their next sessions in August 2001, taking into account the comments received and incorporating procedures for implementing the guidelines.  The Working Group also encouraged further comments on the draft guidelines, for example, in the context of meetings and seminars before the next session of the Working Group.



2.     Several trends make human rights concerns an important issue for all companies.   These trends include:  the emergence of the increasingly integrated global economy; the prominence of international trade and investment; the growth of information and communications technology facilitating rapid transmission of information; increasing privatization; concerns about the impact of globalization and trade on human rights; an increase in consumer awareness about labor, environmental, and health conditions involved in the production of goods available for purchase; shareholder and other stakeholder demands for greater openness and public accountability; greater attention by more nongovernmental organizations to the conduct of transnational corporations and other companies; and increased reliance upon voluntary compliance with international standards applicable to companies.[1]


3.     Transnational corporations[2] (TNCs) are active in some of the most dynamic sectors of national economies, such as energy, telecommunications, information technology, electronic consumer goods, footwear and apparel, transport, banking and finance, insurance, securities trading, etc.[3]  They bring new jobs, capital, and technology.  Some corporations make real efforts to achieve international standards by improving working conditions and raising local standards of living conditions.  They also encourage their employees to do voluntary work for human rights and development.  They certainly have the capacity to assert a positive influence in fostering development.[4]  Some transnational corporations, however, do not respect international minimum human rights standards and can thus be implicated in abuses such as employing child labourers, discriminating against certain groups of employees, failing to provide safe and healthy working conditions as well as just and favourable conditions of work,[5] attempting to repress independent trade unions, discouraging the right to bargain collectively, limiting the broad dissemination of appropriate technology and intellectual property, dumping toxic wastes, etc.[6]  Some of these abuses disproportionately affect developing countries,[7] children, minorities, and women who work in unsafe and poorly paid production jobs as well as indigenous peoples and communities and other vulnerable groups.  Extraction industries particularly tend to be associated with serious human rights problems, mainly because they may not be able to select their locality and may feel compelled to work closely with repressive host governments.  There is also a growing body of evidence linking extraction industry activities to environmental and human health impacts.  Export processing zones are also associated with some of the worst abuses of human rights, as some workers do not enjoy healthy and safe working environments.


4.     Transnational corporations and other companies are becoming aware of the interplay between their businesses and their impact on individuals, communities, and the environment.[8]   There is reason to believe that greater respect for human rights by companies leads to better business performance. For example, company observance of human rights aids businesses by protecting and maintaining their corporate reputation, and creating a stable and peaceful society in which businesses can prosper and attract the best and brightest employees.[9]  Consumers have also demonstrated they are willing to pay attention to a company’s standards and practices regarding human rights and may even boycott products that are produced in violation of human rights standards.[10]  The World Trade Organization has recognized the right of a country to create and use protectionist trade policies when public health issues are at risk.[11]


5.     According to the United Nations High Commissioner for Human Rights, Business and Human Rights Progress Report, active business concern for human rights helps companies: (1) ensure compliance with local and international laws; (2) satisfy consumer concerns; (3) promote stable legal environments; (4) build corporate community goodwill; (5) aid in the selection of ethical, well-managed, and reliable business partners; (6) aid in producing a predictable, stable, and productive business enterprise; (7) keep markets open; and (8) increase worker productivity and retention.[12]   Further, if human rights guidelines for companies become widely accepted, companies will enjoy greater predictability and consistency with regards to their responsibilities for protecting human rights.  An authoritative set of human rights guidelines for companies would thus ensure that these responsibilities are clear, accessible, and unambiguous.  A widely accepted set of human rights guidelines articulated by the international community will help establish a level playing field for business competition.  Such predictability is a basic foundation for sustainable development and prosperity.


6.     Although it may be beneficial for transnational corporations and other companies to embrace human rights standards, it may still be questioned if it is appropriate to impose human rights obligations on these business associations.  Certainly, governments possess the principal responsibility to assure the implementation of human rights and companies should not be asked to take over the primary role of governments.   Accordingly, it would be inappropriate to distract the United Nations and human rights advocates from their efforts to persuade governments to adopt and enforce human rights law by focusing too much on the relatively new concerns of human rights abuses committed by corporations.  One cannot, however, establish a requirement that governments must fulfill all of their human rights obligations before it would be appropriate to consider the responsibilities of companies, individuals, and others.   Such a very high, if not impossible, threshold would lead to inordinate delay and misallocation of potential resources.  The human rights community should continue to press governments for improvement, but cannot meanwhile ignore abuses by companies.  While human rights are the principal obligation of governments, one cannot ignore the corresponding responsibilities of individuals, companies, and other organs of society.   The growing power and transboundary reach of many large companies have allowed at least some companies to escape national regulation and thus require international attention. 


7.     Professor Milton Friedman in 1970 raised another issue when he contended that “there is only one and only one social responsibility of business - to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition, without deception or fraud.”[13]  It is interesting to note that even Friedman’s view that corporations should not pursue socially desirable objectives excluded two social policies - fraud and competition.  These exceptions may be explained by the need to maintain the quality of the free market that he strenuously advocated.  It is doubtful, however, that even Friedman would argue that corporations could pursue profit by committing genocide or using slave labor.  Indeed, Friedman would likely have agreed that corporations can only pursue profits in ways that are consistent with legal limitations.  That position is consistent with the views of many corporations and corporate officials who wish to be informed of the law and would be willing to comply with the law.


8.     Professor Ronald Coase developed an alternative paradigm to Friedman’s understanding of how businesses should act, arguing that companies are best understood by observing carefully their actual conduct rather than creating artificial models of how they ought to act.[14]  The past ten years have demonstrated that major companies are, in fact, becoming aware of the interplay between their businesses and their impact on individuals, communities, and the environment; realizing that respect for human rights leads to better business performance for the previously stated reasons; and finding it beneficial to issue their own codes of conduct that go far beyond a narrow profit motive.  Hence, the creation of human rights standards that help attract the best and brightest employees, solicit investments from the one quarter of investors who place at least some socially responsible screen on their stock holdings, and obtain consumers who prefer to purchase goods made without child labor or unnecessarily soiling the environment are not contrary to the primary purpose of transnational corporations and other companies.  The creation of a uniform set of international human right standards would aid in this process by helping to make clear what human rights standards a company should follow and which companies are meeting these standards.


9.     All-in-all, business enterprises have increased their power in the world.[15]  With power comes responsibility.  Hence, there is a need to consider what human rights duties should be expected of companies. Companies already are responsible for following certain human rights standards, and the creation of a uniform set of human rights guidelines would help all involved by making clear which human rights standards must be followed by all companies.




10. The U.N. Commission on Transnational Corporations prepared the draft United Nations Code of Conduct for Transnational Corporations that was never fully adopted by the UN body.[16]   In 1976, the Organisation for Economic Co-operation and Development (OECD) established its first Guidelines for Multinational Enterprises to promote responsible business conduct consistent with applicable laws.[17]  In June 2000, the OECD substantially updated its first set of Guidelines and adopted a revised set of Guidelines and enhanced implementation procedures.[18]  The International Labour Organization (ILO) Tripartite Declaration of Principles concerning Multinational Enterprises was adopted in 1977.[19]  The Tripartite Declaration incorporates relevant ILO conventions and recommendations and has been amended in 1987, 1995, and 2000 to incorporate new conventions and recommendations adopted after its original passage.[20]  For example, in March 2000 the ILO Governing Body incorporated into the Tripartite Declaration the 1998 Declaration on Fundamental Principles and Rights at Work and its Follow-Up, which had been adopted to modernize, strengthen, and ensure implementation of its system of labour standards.[21]  In addition, the ILO also assists voluntary initiatives to establish and implement their own codes of conduct.[22] 


11. In January 1999, United Nations Secretary-General, Kofi Annan, proposed a Global Compact of shared values and principles at the Davos Conference.[23]   As further explained in connection with the Davos Conference in 2000, the Global Compact has nine core principles that are divided into categories dealing with general human rights obligations, standards of labour, and standards of environmental protection.[24] Businesses are asked to support and adopt those principles, the first two of which are to support and respect the protection of internationally proclaimed rights within their sphere of influence and make sure they are not complicit in human rights abuses.[25]  The Global Compact states that “although governments have primary responsibility for implementing internationally accepted values, corporations acting on their own can do a great deal to actualize these principles within their spheres of influence.”[26]  Accordingly, supporting human rights principles as stated in the Global Compact in addition to being the right thing to do, also makes good business sense.[27]  “A clear demonstration that basic and broadly popular social values, are being advanced as part and parcel of the globalization process will help ensure that markets remain open, and will truly bring the people of the world closer together.”[28]


12. On January 28, 2000, the United Nations Business and Human Rights Global Compact website was established.[29]  The objective of the website is to advance the implementation of universally agreed values that are relevant to businesses, to promote global corporate citizenship, and to stimulate best practices.  The site provides a company’s staff with management tools, such as environmental checklists and documentation tools for interaction vis-à-vis stockholders.  The website also serves as a link between companies and other organizations that work on similar issues, circulating articles and updates when appropriate, and providing opportunities for direct communication between businesses, trade unions, and others who share overlapping concerns.  It further makes the case for companies’ commitment to environmental and human rights issues, and presents documentation of the universally agreed upon principles which corporations are being asked to adopt and implement.


13. A number of transnational corporations and other companies have already begun to consider the human rights implications of their activities, for example, by (1) carefully assessing the context in which they are investing or doing business; (2) planning and implementing internal corporate policies; and (3) establishing workplace codes of conduct as to overseas offices, subsidiaries, suppliers, and contractors.  Not only have many companies developed their own ethical codes,[30] but some associations of companies – for example, in the apparel, rug, and sports industries – have begun to develop joint standards.[31]  In addition to corporations and trade groups, many NGOs and other groups have written codes of conduct for companies.[32]




14. Any draft guidelines for companies raises difficult issues as to the human rights obligations of non-state actors – a subject that requires further study by the Sub-Commission.  While awaiting such an in-depth study, the guidelines for companies might refer to the Universal Declaration of Human Rights.  The Universal Declaration announces the fundamental rights of individuals and places responsibility on both governments and other organs of society for affording those rights.  In this regard the guidelines for companies might refer particularly to the following preambular paragraph of the Universal Declaration of Human Rights:


The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of member states themselves and among the peoples of territories under their jurisdiction.[33]


The guidelines might similarly refer to Article 18 of the Declaration on Human Rights Defenders, which states,


2.     Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.


3.     Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized. [34]


The guidelines might further refer to Article 2(d) of the International Convention on the Elimination of All Forms of Racial Discrimination (Race Convention) that requires States parties to “prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization . . ..”[35]  Similarly, the guidelines may refer to Article 2(e) of the Convention on the Elimination of All Forms of Discrimination against Women that requires States parties to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise . . ..” and Article 4(c) requiring States parties to “[e]xercise due diligence to prevent, investigate, and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons.”[36]


15. There are a number of treaties and other instruments that impose responsibility on persons for their actions, including, (1) the Supplementary Slavery Convention of 1957,[37] (2) the Genocide Convention,[38] (3) the Nuremberg Rules,[39] (4) the Rome Statute of the International Criminal Court,[40] and (5) the Convention Against Torture.[41]


16. In addition, while the Universal Declaration;[42] the International Covenant on Civil and Political Rights; and International Covenant on Economic, Social and Cultural Rights[43] focus principally on the duties of governments, they indicate that persons have both rights and responsibilities.  Legal persons, including companies, have human rights obligations insofar as non-state actors could be said to have international legal obligations.  Companies and similar entities are, from one perspective, legal constructs allowed to exist by virtue of State action.  Accordingly in this view, a State should not create, nor allow to endure, a body that violates international human rights norms.  Another view would recognize that a “firm” is a legal concept that usefully coordinates agreements among a variety of persons – some who give capital, some who manage, some who produce, etc.[44] The firm is actually a set of specialized agreements among persons in order to co-ordinate production or provide services in a more cost effective manner.  But the firm acts only by persons, whose fiduciary and other obligations constrain their acts.  Hence, to the extent that firms are comprised of individuals and those individuals are bound by human rights treaties and other instruments, companies are effectively bound by the same provisions.[45]  Furthermore, several of those treaties and instruments may be interpreted to apply to both “natural persons,” that is human beings, and “legal persons” such as corporations.


17. Some treaties, for example relating to corruption, focus particularly on the responsibilities of legal persons.[46]  Article 2 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions states that “[e]ach Party shall take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official.”[47]  Similarly, in the International Convention on Civil Liability for Oil Pollution Damage and the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment extend responsibilities to legal persons.  Both define the persons liable to the convention as “any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.”[48]  Further, the Global Convention on the Control of Transboundary Movements of Hazardous Waste, which declares criminal any illegal movement of hazardous wastes, defines “persons” who can be held responsible as any natural or legal person.[49]






18. When the Working Group met in August 2000, it discussed at some length whether the guidelines should apply only to transnational corporations or to all companies.  No consensus was achieved on this issue.  Those members and observers who wanted the guidelines to apply only to transnational corporations suggested several possible definitions of transnational corporations but did not come to a decision as to which definition the Guidelines might adopt.  Before making its decision, the Working Group requested an account of different definitions used to define “transnational corporations” and how other organizations addressed this issue in their codes of conduct and similar documents.


19. The term transnational corporation generally refers to a corporation with affiliated business operations in more than one country.[50]  A more specific definition deems an enterprise a transnational corporation if “it has a certain minimum size, if it controls production or service plants outside its home state and if it incorporates these plans into a unified corporations strategy.”[51]  Yet another definition defines a transnational corporation as “a cluster of corporations of diverse nationality joined together by a common ownership and responsive to a common management strategy.”[52]  Another common term used is “multinational enterprises,” which would also include unincorporated entities, such as partnerships and joint enterprises.[53]


20. The ILO’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy defines a multinational enterprise to include “enterprises, whether they are of public, mixed or private ownership, which own or control production, distribution, services or other facilities outside of the country in which they are based.”  The Declaration further states that  “…this Declaration does not require a precise legal definition of multinational enterprises; [but the foregoing definition] is designed to facilitate the understanding of the Declaration and not to provide such a definition.”[54]   The OECD similarly defines multinational enterprises in its Guidelines for Multinational Enterprises.  “These [multinational enterprises] usually comprise companies or other entities established in more than one country and so linked that they may co-ordinate their operations in various ways…. Ownership may be private, state or mixed.”  The U.N. Code of Conduct for Transnational Corporations defined transnational corporations as “an enterprise, whether of public, private or mixed ownership, comprising entities in two or more countries, regardless of the legal form and fields of activity of these entities, which operates under a system of decision-making, permitting coherent policies and a common strategy through one or more decision-making centers, in which the entities are so linked, by ownership or otherwise, that one or more of them may be able to exercise a significant influence over the activities of others, and, in particular, to share knowledge, resources and responsibilities with others.”[55] 


21. The Working Group, if choosing to make the Guidelines only applicable to transnational corporations, should carefully consider which definition of “transnational corporations” or “multinational enterprises” it intends to employ.   An inadequate definition may allow companies to use financial and other structures to conceal their transnational nature and appear as a domestic company, thus avoiding responsibility under the Guidelines.  The Draft Guidelines at this point do not attempt the rather difficult task of adopting a precise definition of transnational corporations.  Instead, as discussed more fully below, the Draft Guidelines use the word “companies” instead of transnational corporations or multinational enterprises and intends “companies” to refer to all business entities, regardless of the corporate form used by the entity or the international or domestic scope of its business.




22. As discussed above, a major issue to be considered by the Working Group in connection with the definition of transnational corporations is whether the draft Guidelines should apply only to transnational corporations or whether it should apply to both domestic and international business entities.  “Transnational corporations,” however defined, generally receive special attention because they tend to be large, possess considerable political influence, and have considerable autonomy to the extent that they have the capacity to move their operations from one country to another.  But there are many other companies whose activities are related to international commerce, for example, through export or import, even if they lack foreign subsidiaries.  Other companies that operate locally are linked to international commerce and to transnational corporations through supply chains.  Further, the most influential companies may be principally active in local or national markets, but may have a very significant impact on the enjoyment of human rights.


23. The UN Code of Conduct for Transnational Corporations states that the code is not intended to introduce differences between domestic and international enterprises and that “[w]herever the provisions are relevant to both, transnational corporations and domestic enterprises should be subject to the same expectations in regard to their conduct.”[56]  The ILO’s Tripartite Declaration contains a similar statement.  “The principles laid down in this Declaration do not aim at introducing or maintaining inequalities of treatment between multinational and national enterprises.  They reflect good practice for all.  Multinational and national enterprises, wherever the principles of this Declaration are relevant to both, should be subject to the same expectations in respect of their conduct in general and their social practices in particular.”[57]  The OECD Guidelines handle this issue by defining transnational corporations, but then stating that “[t]he Guidelines are not aimed at introducing differences between multinational and domestic enterprises; they reflect good practice for all.  Accordingly, multinational and domestic enterprises are subject to the same expectations in respect of their conduct wherever the Guidelines are relevant to both.”[58]  The OECD Guidelines further state that “while it is acknowledged that small- and medium-sized enterprises may not have the same capabilities as larger enterprises, governments adhering to the Guidelines nevertheless encourage them to observe the Guidelines recommendations to the fullest extent possible.”[59]  This further extends the reach of document by stating that the standards are not only meant to apply to large, transnational corporations, but also that the standards should equally apply to smaller, national companies, including suppliers and sub-contractors.[60]


24. In considering whether to develop guidelines only for transnational corporations or for all companies, the Working Group should consider whether it would be sensible or fair to propose guidelines for transnational corporations and omit other very large and influential companies.  All companies are essentially competitors in the global market; what distinctions are appropriate with regard to the human rights responsibilities of multinational and domestic firms?  If the Working Group wants transnational corporations to respect certain human rights obligations, should the competition they face from large national competitors be the subject of similar standards or would the incentives for compliance be undermined?  Shouldn’t the same standards apply to cooperation between transnational corporations and their local business partners?   Should all companies be subject to the same basic human rights expectations, while larger and more influential companies might be subject to even greater responsibilities to use their proportionately greater influence for the protection of human rights?  For the purpose of establishing human rights responsibilities, should distinctions be drawn between corporations and other business forms having diverse control structures and forms of ownership, such as non-equity contractual relations (e.g., joint ventures, buyers/suppliers), partnerships, limited liability partnerships, limited liability companies, unincorporated associations, etc.?  While the Working Group will need to consider such questions, this working paper presents Draft Universal Human Rights Guidelines for Companies that apply to all business entities regardless of their corporate form and regardless of the international or domestic nature of their business. 




25. The responsibility to promote and secure human rights is capable of application in varying degrees to the private sector, for example:  principles directly affecting employees; principles involving public and private business partners and their employees; principles affecting the community and the general human rights environment of that community; and other principles which can implicate a company and public institutions, or can involve concerns for individual human rights, the environment, and the relevant community.[61]  The degrees of responsibility suggest that guidelines for companies should not just address issues in which a business assumes obvious responsibility, such as corporate labor standards, but should also include areas in which a business can assume further responsibility, through practices such as outsourcing of products or services.  It should also address situations in which at least larger companies can influence governmental actions, through, for example, encouraging the government to improve the human rights environment of a community.[62] A set of human rights guidelines for companies can be of assistance in all of these contexts.  No company, no matter how influential, however, can be asked to replace governments in their primary responsibilities for the protection of human rights.[63]  


26. The Draft Guidelines, which do not distinguish between companies on the basis of the domestic or international nature of their operations, do reflect difference between corporations with regard to their ability to assert influence on markets, governments, stakeholders, and local communities.  The current Draft Guidelines recognize that the opportunities to assert influence may be significantly greater for transnational and other companies that have larger amounts of resources and therefore greater ability to use those resources for the benefit of society by promoting and protecting human rights and by encouraging governments to recognize and comply with international human rights standards.  Smaller companies may not be capable of asserting the same amount of influence as larger corporations, but can still be accountable to similar standards for the protection of human rights, especially those directly affecting employees and local community conditions.  By including all companies regardless of size, the Draft Guidelines recognize that all business enterprises can make a positive contribution by developing, adopting, and implementing their own human rights guidelines and by choosing only to deal with other businesses that also recognize and follow similar standards.[64]   By including greater responsibilities for companies with larger resources and administrative capacities, the draft recognizes the responsibilities of more influential companies to use their larger influence, particularly to promote human rights in their respective communities.




27. The Working Group and the Sub-Commission may also need to think about what terminology to use for the attached draft.  While “code of conduct” might appear appropriate for a document that might eventually be viewed as legally binding, there are many company codes of conduct that are not legally binding and may be subject to change without notice by the company concerned.  It might be argued that the Sub-Commission should not draft or adopt yet another code of conduct for companies,[65] but should prepare a document that is interpretive of the human rights obligations of companies, such as “human rights principles for companies,” or “standards,” “rules,” “guidelines,” “guiding principles,” “best practices,” etc.  Each of these words or phrases carries its own connotations and overtones from past usage.  For example, the Sub-Commission might want to draw upon the generally positive experience with such documents as the Guiding Principles on Internal Displacement; Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights; the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights; the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights; the Paris Minimum Standards of Human Rights Norms in a State of Emergency; and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. 


28. During its review of the first draft of the Guidelines, the members of the Working Group and observers thought that the title “code of conduct” had been used too much by companies for voluntary codes and might thus be misleading.  Accordingly, the Working Group thought that the document should be known as guidelines or minimum guidelines. Participants at the March 2001 seminar on the guidelines (see paragraph 68, infra) suggested the name “Draft Universal Human Rights Guidelines for Companies” and the present document tentatively uses that name.  Other participants at the March 2001 seminar suggested “fundamental” instead of “universal.”  Hence, the Working Group should consider that alternative terminology. 




29. The Draft Guidelines for Companies attached as Addendum 1 rely upon six different types of documents:  (1) legally binding treaties and other instruments, such as the Genocide Convention and the Race Convention; (2) nonbinding guidelines adopted by international organizations, such as the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy; (3) industry or commodity group initiatives, such as the Clean Clothes Campaign; (4) framework agreements between multinationals’ and workers' organization(s) such as the agreements between Danone and the International Union of Food and Agricultural Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF); (5) self-imposed company codes of conduct which may be non-binding and quite subject to change, such as the H & M Code of Conduct or the Tata Code of Conduct; and (6) NGO or union model guidelines, such as the Amnesty International Human Rights Guidelines for Companies and the ICFTU Basic Code of Labour Practice.[66]  The Draft Guidelines reflect the binding norms, but also makes use of the best and most commonly used provisions from the less binding documents.  The Draft Guidelines does not endeavour to freeze standards to the extent that it draws upon past drafting efforts and present practices; it should be seen as an effort to reflect and encourage further evolution.


30. The Draft Guidelines address a wide variety of topics including:  The Draft Guidelines address a wide variety of topics including:  the right to equal treatment; the right to security of persons including the responsibility to create appropriate security arrangements; the rights of workers including the right to a healthy and safe work environment, fair remuneration, freedom of association, and collective bargaining; respect for national sovereignty including avoidance of corruption; respect for economic, social, and cultural rights as well as civil and political rights; and obligations regarding consumer and environmental protection.


31. The provisions dealing with child labour have been among the most difficult to draft.  The core of the provision on child labour is the new ILO Convention No. 182, Worst Forms of Child Labour.  In early drafts, because of concerns about child actors or children who work for family businesses, the provision stated, “companies shall not, in general, use child labour.”   Due to criticism, the provision has since been changed to read, “companies shall not use child labour” and a new paragraph was created to further define child labour.  This phrase, however, leaves the preparation of the Draft Guidelines with a very difficult issue -- what are (and are not) appropriate child employment opportunities.  Currently, the Draft Guidelines define inappropriate child labour as “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 is harmful to their health or development, will prevent the child from attending school or performing school-related responsibilities, or otherwise is not consistent with ILO Convention 138 and Recommendation 146 (Minimum Age), ILO Convention 182 and Recommendation 190 (Worst Forms of Child Labour), and the Convention on the Rights of the Child.”  A second issue arising in the Child Labour section is the transition period for an employer using child labour.  Experience has shown that child labourers who leave one labour industry can get pushed into ever worse work environments.[67]  The current draft of the Guidelines creates a transitional obligation in which any employer already using child labour must create and implement a plan to eliminate child labour, and such a plan would include withdrawing children from the workplace, while at the same time creating suitable alternatives for the child in educational opportunities, and protecting the child’s family, for example, by hiring older siblings or parents.  The Working Group and Sub-Commission may want to give further consideration to these issues.




32. Because the Working Group in 1999 requested that the first Draft Universal Rights Guidelines should focus on substantive provisions rather than implementation, the 2000 first Draft Universal Human Rights Guidelines for Companies did not address whether any such guidelines should be voluntary, legally binding, or how it should be enforced or implemented.  After reviewing the first draft the Working Group requested Mr. Eide (in cooperation with Mr. Van Hoof) to prepare a paper on implementation of human rights guidelines with regard to companies.   Pursuant to the discussion and recommendations for changes at the August 2000 session, Mr. Weissbrodt was also asked to present a new draft taking into account the comments received and incorporating procedures for implementing the guidelines to the Working Group at its next session in August 2001.  The present section discusses several of the alternatives in regard how the guidelines might be (A) voluntary, (B) legally binding, and (C) enforced or implemented.  In considering these issues and particularly implementation, it should be recognized that the quality and methods of implementation would vary considerably depending upon the size, resources, and capability of the company.


33. The Draft Human Rights Guidelines will be most effective if it can be internalized as a matter of company policy and practice.  In order to be successful a company must be able to innovate.  Similarly, sustainable economic development is most readily fostered by permitting innovation that is not inhibited by over-regulation.  The Draft Guidelines could be misused if it serves as the occasion for a regulatory barrier to successful entrepreneurial initiative.  Nonetheless, human rights obligations should take precedence over the pursuit of profit through trade. 




34. Following the example of the OECD and others,[68] the Draft Guidelines could be implemented by encouraging companies to implement its standards on a voluntary basis.  The Draft Guidelines would provide companies and others with a statement of international consensus on the minimal applicable human rights standards a company should include in its code of conduct. 


35. The use of a voluntary adoption system is particularly appealing because it may most effectively promote the use of the Guidelines in conjunction with company initiatives to develop and adopt their own codes of conduct.  The resulting codes developed by each individual company could therefore not only reflect the minimum standards of the Draft Guidelines, but could also reflect a particular set of company values or be used to address particular area of risk in greater depth.  The involvement of a company in the drafting and implementation of its code could lead to a greater level of internalization, and therefore also effectiveness, of a code.[69]


36. Effective implementation of a voluntary code involves the creation of systems of accountability within the company.  Implementation further involves dissemination of the code, assessment of a company’s compliance with the code, analysis of how future activities of the company will have an impact on the objectives of the code, and verification of these assessments.   These and other points on implementation at the company level are discussed below.




37. At its discussion in August 2000, the Working Group and most observers, however, apparently preferred standards that have the capacity to be legally binding as compared with entirely voluntary principles.[70] 


38. Treaties constitute the primary sources of international human rights law.  The United Nations Charter is both the most prominent treaty and contains seminal human rights provisions, such as Articles 1, 55, and 56.  The U.N. has further codified and more specifically defined international human rights law in a number of treaties. Treaties generally create legal obligations for those nations that are party to them.


39. In addition to treaties, the United Nations has promulgated dozens of declarations, codes, rules, guidelines, principles, resolutions, and other instruments that interpret the general human rights obligations of member states under Articles 55 and 56 of the U.N. Charter and may reflect customary international law.  The Universal Declaration of Human Rights is the most prominent of those human rights instruments, which not only provides an authoritative, comprehensive, and nearly contemporaneous interpretation of the human rights obligations under the U.N. Charter, but also has provisions that have been recognized as reflective of customary international law.[71]


40. Although the interplay of treaty law, non-treaty law, and customary international law is quite complex, some observers have for working purposes identified two types of international law: “hard” law, such as treaties, and “soft” law such as recommendations.  Hard law is clearly intended to create legally binding obligations from the outset, whereas soft law starts in the form of recommendations and over a period of time is viewed as creating binding obligations or may serve as the basis for later drafting of treaties.  It would be unrealistic to suggest that human rights standards with regard to companies should immediately become the subject of treaty obligations.  The development of a treaty requires a high degree of consensus among nations.  As discussed above, there have been some treaties and other international norms that apply to companies and their officers, but there does not yet appear to be an international consensus on precisely what place companies and other non-state actors have in the international legal order.  Further, if the Working Group wishes to pursue a legally binding instrument or even a treaty, it would ordinarily start with some form of “soft” law drafting exercise.  


41. In preparation for drafting almost all human rights treaties, the U.N. has begun with declarations, principles, or other soft law instruments.  Such steps are necessary to develop the consensus required for treaty drafting.  The consensus surrounding some declarations has evolved quite quickly to prompt the development of a treaty.  For example, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1975[72] was followed quite rapidly by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.[73]  Some declarations, however, have not been codified in the form of treaties because of a lack of adequate consensus, for example, the Declaration on he Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.[74]


42. Any treaty takes years of preliminary work and consensus building before it has a chance of receiving the approval necessary to be adopted and enter into force.  Even soft law instruments may take years to develop.  For example, the UN Draft Declaration on the Rights of Indigenous Peoples took twelve years of drafting in the Sub-Commission’s Working Group on Indigenous Populations and has already been the subject of deliberations in the Commission’s Open-Ended Working Group for another six years and is likely to require some additional time.


43. After drafting by lesser U.N. bodies, such as the Sub-Commission and the Commission, the General Assembly adopts and promulgates treaties.  For example, after the General Assembly in 1948 adopted the Universal Declaration of Human Rights containing several provisions on economic and economic rights, it took the Commission and the General Assembly eighteen years before the General Assembly in 1966 adopted and promulgated the International Covenant on Economic, Social and Cultural Rights[75] as a multilateral treaty.  Soft law standards, however, may be adopted at any one of the many different levels within the U.N., although they are ordinarily considered more authoritative if they are adopted by such higher organs as the General Assembly.  For example, the Draft Guidelines could be adopted and promulgated:  (1) at the Working Group level, such as the “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment” adopted by the Working Group on Arbitrary Detention, [76] (2) at the Sub-Commission level, such as the resolution on “Housing and property restitution in the context of the return of refugees and internally displaced persons”,[77] (3) by the Commission on Human Rights, such as “The protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS)”,[78] (4) by the Economic and Social Council, such as the “Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions”, [79] (5) and, of course, by the General Assembly, such as the “Declaration on the Elimination of Violence against Women”.[80] 




44. Once a human rights instrument is adopted by a U.N. body there remains the critical task of assuring that the provisions are brought into practice.  Implementation may be pursued by (1) companies, (2) groups of companies or trade associations, (3) unions, (4) NGOs, (5) intergovernmental organizations, (6) governments, and (7) the United Nations.  The first step towards implementation, however, would be broad adoption by these various categories of actors.  The categories of potential actors do not necessarily suggest implementation by a single category.  As indicated periodically in the following paragraphs, effective implementation may result from the coordinated efforts of groups in one or more of the categories.


(1) Companies


45. The Draft Guidelines could call for companies themselves to adopt the substance of the Guidelines as the minimal standards for their own company codes of conduct.  As indicated above, the Draft Universal Human Rights Guidelines will be most effective if internalized as a matter of company policy and practice.  Companies with pre-existing codes could update their codes if necessary to conform to the international standards in the Draft Guidelines.  Those companies currently without codes of conduct would have a clear model for the issues that should be addressed in their codes of conduct. 


46. Effective implementation of the Draft Guidelines at the company level asks companies to consider and adopt mechanisms for creating accountability within the company.  Depending on the resources and capabilities of the company, companies should consider creating ethics committees and/or appointing ethics officers to provide oversight, counseling, and promotion of the code.  Employee incentives can also be used to create accountability within a company.  For example, conduct consistent with the code could be used as a basis for promotion or wage increases.  Further, companies should create adequate systems for addressing violations that include guarantees of non-retaliation and allow employees to remain anonymous when reporting code violations. [81]


47. Once a company adopts the Draft Guidelines, they need to be disseminated.  Companies should make their codes available to employees and other stakeholders.  Promulgation assures that those who are most affected by the company’s actions know of the company’s responsibility to promote and protect human rights.  It also ensures the company’s guidelines will be made known to the general public -- further legitimating and institutionalizing the existence of their guidelines.


48.    Companies adopting and disseminating their codes of conduct should also work to improve their compliance with the Guidelines.  One way of improving compliance would be periodic assessment and the preparation of impact statements.  Any assessment of a company’s performance under the Guidelines should be objective.  For example, company management can conduct a self-assessment or they can retain outside consultants on a confidential basis with or without an assurance of confidentiality. Although self-assessment by a company’s own management may be simpler and less expensive, such self-assessment may not yield results acceptable by outsiders.  Confidential assessment by independent consultants may give company managers sufficient confidence to provide necessary information and would be more likely to be accepted by outsiders.  Companies with human rights concerns would be able to assess the situation and perhaps take steps to rectify any problems.  Some outsiders may not, however, have confidence in the adequacy and certainly the transparency of confidential assessments.  Both management self-assessments and assessments done by independent consultants could eventually be made public.  Such dissemination would increase the transparency and legitimacy of the evaluation process, but the expectation of publicity may discourage adequate disclosure of information.  If an evaluation is expected to be made public, it could also be undertaken by NGOs with expertise in the area, trade unions or labor associations, or governments.


49.    In addition to assessment of past actions, companies should prepare impact statements to describe and analyze any proposed actions that may have a significant impact on human rights as enumerated in the Draft Guidelines.  Impact statements can be used to examine ways to avoid or reduce adverse human rights consequences related to a proposed action.  Impact statements include a description of the action, its need, anticipated benefits, an analysis of any human rights impact related to the action, an analysis of reasonable alternatives to the action, and identification of ways to reduce any negative human rights impacts.  All impact statements should be made available to stakeholders for comment before any action is taken with regard to the proposed action.  Impact statements, similar to assessments, may be created by the company itself, through the use of independent consultants, or in cooperation with NGOs having expertise in the area, trade unions or labor associations, or governments. 


50.    The next step to effective implementation of a U.N. or similar standard would be the verification of the assessment.  Verification can be accomplished through dissemination and by other means.  A company can publish its assessment or a summary in its annual report or in a separate document.  A company can also be asked to transmit its assessment to a government agency, some nongovernmental clearinghouse, or an international institution. 


51.    Another way of disseminating such assessments and making the assessments more comparable would be to establish a standardized numerical system for evaluating company performance under the Guidelines.  One such standardized numerical system has been proposed by the Secretariat of the Caux Roundtable.[82]  


52.    Another means of verification would be through a corporate social audit similar to the current system used by public accountants for auditing company financial statements.  The results of such an independent social audit could then be separately published or attached to the company’s annual report.


(2) Groups of Companies or Trade Associations    


53.    A group of companies, for example a trade association or an industry group, might adopt the Guidelines as their own industry code of conduct for those companies which are members.  Such industry-wide acceptance will encourage compliance because competitors will be assured of equal responsibility.  The Guidelines could be used by a consortium of companies as a prerequisite of membership.[83]   The Guidelines could also support the creation of a labeling system to identify products and services created under the specific standards so as to promote ethical purchasing patterns.


(3) Unions


54.    Unions may wish to use the Draft Guidelines as a basis for negotiating agreements with companies and monitoring compliance of companies with the Draft Guidelines. 


(4) NGOs


55.    Similarly, NGOs may also adopt the guidelines as the basis for their expectations of company conduct and monitoring compliance of companies with the Draft Guidelines.  They could also be used as a standard for promoting ethical investment initiatives.


(5)  Intergovernmental Organizations Other than the United Nations


56. The Draft Guidelines can be used for the creation of codes on a region-by-region basis to address specific issues.[84]  There exist a number of intergovernmental bodies that may find the Draft Guidelines useful in developing their own standards.  For example, the ILO and OECD could take the Guidelines into account when making clarifications on their already existing standards for companies.  Similarly, the OECD could use the Draft Guidelines in the context of their National Contact Points.  The World Bank and its constituent institutions have adopted standards for loans relating to their impact on indigenous peoples, the environment, transfer of populations, sustainable development, and gender equality.  The Draft Guidelines might be helpful in amplifying and interpreting those World Bank standards as well as encouraging further World Bank standards. 


48.    The World Trade Organization Agreement, which generally prohibits states from creating trade limitations, contains several exceptions allowing states to restrict trade when certain conditions are met.[85]  For example, in its Agreement on Sanitary and Phytosanitary Measures, the WTO prefers to follow international standards in determining if certain technical regulations which create trade limitations are necessary to protect human, animal or plant life or health.[86]  Similarly, the WTO’s Agreement on Technical Barriers to Trade states that “[g]eneral terms for standardization and procedures for assessment of conformity shall normally have the meaning given to them by definitions adopted within the United Nations system and by international standardizing bodies . . ..”[87] It is conceivable that the Draft Guidelines could be considered one such international standard.  After the passage of the North American Free Trade Agreement (NAFTA), two mechanisms were created to oversee the implementation of NAFTA with regard to environmental and labor standards.  Those two mechanisms -- the North American Agreement on Environmental Cooperation[88] and the Agreement on Labor Cooperation[89] -- do not rely upon existing international standards for their decisions; however, the Draft Guidelines could be used as a basis for fact-finding or interpreting the NAFTA standards.  The European Parliament has adopted a resolution referring to basic international standards applicable to multinationals and calling upon the European Union to create a legally binding code of conduct for all multinationals headquartered in the European Union (EU).[90]  The European Parliament can hold hearings to assess compliance with its resolution and the EU might eventually be able to use the Draft Guidelines as a model for the EU’s code of conduct. 


            (6) Governments


52. Governments can use the Draft Guidelines as a model for legislation or administrative provisions with regard to the activities of each company having a statutory seat in that country, under whose law it was incorporated or formed, where it has its central administration, where it has its principal place of business, or where it is doing business.  In those countries where legislation already applies to the activities of companies, courts could use the Draft Guidelines to interpret legal standards.[91] 


53. Self-assessments, assessments by consultants, independent social audits, etc. could be used by individual investors and socially responsible mutual funds in making their investment decisions.  Banks and other lending institutions may use this information in deciding whether to lend credit.  Governments could encourage or require companies to file reports about their compliance with the Draft Guidelines in a central office or could make the filing of such annual reports a requirement of business registration, licensing, securities law, tax law, consumer protection law, etc.  The Draft Guidelines should not replace, but should encourage existing governmental procedures for assuring compliance of companies with human rights standards, for example, through the use of labour inspections. Courts might refer to such reports and the Draft Guidelines in assessing whether a company has provided consumers or investors adequate information about their products and services.  In some countries compliance with the Draft Guidelines might be relevant to determining liability for injuries caused by companies and their officers.


            (7) United Nations


54. Human rights treaty bodies could further use the Guidelines in the creation of additional reporting requirements by States.  The additional reporting requirements would request States to include reports about the compliance of companies established within their respective treaties.  A further mechanism would be to allow the four treaty bodies with individual communications procedures to receive communications regarding governments that have failed to take effective action in response to companies that have violated the respective treaties as elaborated by the Draft Guidelines and General Comments and Recommendations. 


55. The Draft Guidelines could further be helpful to most of the human rights treaty bodies as the basis for their efforts to draft general comments and recommendations relevant to the activities of companies.  For example, the Committee on Economic, Social and Cultural Rights might use the Guidelines in drafting, adopting, and applying a General Comment on the obligations of companies to protect rights set forth in the International Covenant on Economic, Social and Cultural Rights.  The treaty bodies could also use such a General Comment and thus the Draft Guidelines in preparing their country comments and recommendations on States’ compliance with already existing treaty provisions.  


56. Special rapporteurs or thematic procedures of the U.N. Commission on Human Rights could use the Draft Guidelines and other relevant international standards for raising concerns about actions by companies within their respective mandates.  For example, the Commission’s Special Rapporteur on Adequate Housing might express concerns about company actions that have resulted in forced evictions.[92]  The Guidelines could also be used to create a new thematic procedure within the context of the Commission or the General Assembly.   Unfortunately, however, there are so many thematic procedures within the context of the Commission that there are insufficient resources to staff such procedures and inadequate time within the agenda of the Commission to give appropriate attention to each of the thematic procedures.  A thematic procedure on the human rights responsibilities of companies would just add to the overload on the limited resources of the Office of the High Commissioner for Human Rights and the overburdened agenda of the Commission.   


57. Companies and others may be aided in their implementation of the Draft Guidelines by the creation of a resource center.  The resource center could be used by companies, governments, NGOs, individuals, or other groups to assist with: the dissemination of a code within the company including all the places where the company does business and with affiliated entities; mechanisms for training company personnel and suppliers about the code; and gathering information about implementation of the code by other companies.


58. Another mechanism for implementation would be the establishment of an interactive website which would post international human rights standards in regard to companies, including the guidelines being prepared by the Sub-Commission, company codes of conduct, and other norm-setting documents.  The website would also receive information from individuals and organizations about the conduct of companies in compliance with the relevant standards and codes of conduct.  Companies would be given an opportunity to respond to the information received.  


48.    The Sub-Commission’s Working Group on the Working Methods and Activities of Transnational Corporations or a successor pre-sessional body could also monitor compliance with the Draft Guidelines by receiving information from NGOs or interested individuals and then by allowing companies an opportunity to respond.  The Working Group may also consider serving as the body to receive and respond to company requests for advisory opinions on proposed investments, decisions, and other company changes.  If the Working Group is able to pursue such a role, it would require that the Group become an inter-sessional group so that it would have some more time and resources to handle the additional responsibilities.   Nonetheless, there is a question about the adequacy of the resources available for such a major task, as discussed above in regard to thematic procedures.


49.    If the Draft Guidelines eventually become the basis for a treaty, the treaty will need an implementation procedure analogous to the six existing human rights treaty bodies but taking into account the particular concerns and attributes of companies.


50.    The Working Group and eventually the Sub-Commission should consider these implementation options that may be both alternatives and, at least to some extent, complementary approaches.  




67. The Draft Human Rights Guidelines for Companies attached as Addendum 1 contains only the proposed draft language for the Guidelines.  Addendum 2 contains both the proposed draft language and the principal materials that served as the basis for each provision of the Draft Guidelines.


68. At its August 2000 session the Working Group encouraged further comments on the Draft Guidelines, for example, in the context of meetings and seminars before the next session of the Working Group.  Pursuant to that recommendation of the Working Group, the University of Minnesota, in cooperation with the Office of the United Nations High Commissioner for Human Rights and with the support of the Ford Foundation and the Swiss Federal Department of Foreign Affairs together with the practical assistance of the Lutheran World Federation, held a March 2001 seminar on the Draft Human Rights Guidelines for Companies in Geneva, Switzerland.  The seminar participants included members of the Working Group; representatives from the business community; trade unions; intergovernmental and nongovernmental organizations interested in corporate responsibility, human rights, development and the environment; and knowledgeable scholars.  The seminar included participants from different parts of the world so that various regional perspectives could be considered.  The comments, findings, and conclusions of this seminar are found in addendum 3 and were influential in the preparation of the newest draft of the guidelines and this introduction.


69. Participants at the March 2001 seminar in Geneva suggested many substantive changes and recommendations for reformatting of the Draft Guidelines.  As indicated above, the name of the document was changed from “Draft Human Rights Guidelines for Companies” to the current name, “Draft Universal Human Rights Guidelines for Companies.”  The addition of a preamble attempts to define the background and sources of authority for the Guidelines.  Although the major issues underlying the Guidelines are perhaps more adequately addressed in this introduction, these same issues are now briefly stated in an entirely new preamble to the Guidelines themselves. The principal text of the guidelines was radically shortened.  Instead of presenting detailed substantive provisions, each section begins with a broad statement.  The main statement, while being broad enough to encompass the issue, may not be specific enough to meet the needs of businesses in implementing the Guidelines.  To aid in implementation and clarification, more specific commentaries follow each statement of principle.   The commentaries also make more specific references to applicable international standards.  Much of the text from the previous draft of the Guidelines was used in the commentaries, but the substance of many have been amended in light of comments made at the previous Working Group session, discussions at the March 2001 seminar, and suggestions received from many organizations and individuals during the year.  This approach is based on the structure of several other U.N. human rights instruments, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.  Further, the definitions were moved from the beginning to the end of the document.  In addition, the order of subjects in the Draft Guidelines was reformulated to follow the somewhat analogous provisions in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.


70. The author is very grateful to the participants in the March 2001 seminar as well as the International Council on Human Rights Policy that held a meeting in February 2000 at which, inter alia, an earlier draft of the Draft Human Rights Guidelines for Companies was discussed and to the participants in that meeting.   The author is further grateful to the International Council on Human Rights and Nicholas Howen for the publication of Business wrongs and rights: human rights and the developing international legal obligations of companies -- an extensive report on different implementation mechanisms available for an international human rights standard.[93]


71. The author is also very grateful for the communications received from the following intergovernmental organizations:  International Labour Organization, Office of the High Commissioner for Human Rights, United Nations Environmental Programme, World Health Organization, and World Intellectual Property Organization.  Further, the author wishes to express his gratitude for the suggestions of the following organizations:  Amnesty International, Anti-Slavery International, Calvert Group, Caux Round Table, Center for Ethical Business Cultures, Center for Human Rights and the Environment, Centre on Housing Rights and Evictions, Human Rights Advocates, Human Rights Watch, Indian Law Resource Center, Institute for Agriculture and Trade Policy, International Chamber of Commerce, International Confederation of Free Trade Unions (ICFTU), International Organization of Employers, International Women's Rights Action Watch, Lawyers Committee for Human Rights, Minnesota Advocates for Human Rights, Lutheran World Federation, National Heritage Institute, Norwegian Institute of Human Rights, Novartis Foundation for Sustainable Development, Oxfam, Pax Romana, and others.   The author is also very grateful for the extremely helpful comments he has received from a number of businesses and organizations of businesses:  BP Amoco, Business for Social Responsibility, Calvert Asset Management Company, International Chamber of Commerce, International Organization of Employers, PriceWaterhouseCoopers, Nokia, Novartis, Novo Nordisk, Prince of Wales Business Leaders Forum, Reebok International, and South African Breweries. 


72. The author would also like to thank the following persons for their active participation and contributions at the March 2001 seminar in Geneva and for their other comments:  Andrea Aeby, Christopher Avery, Martin Brooks, Theo Boutruche, Doug Cahn, Geoffrey Chandler, Andrew Clapham, Aron Cramer, Sumithra Dhanarajan, Janelle Diller, Asbjorn Eide, Teresa Fabian, Arvid Ganesan, Pia Rudolfson Goyer, Stephanie Grant, Frances House, Nicholas Howen, Scott Jerbi, Dwight Justice, Menno Kamminga, Vladimir Kartashkin, Alya Kayal, Muria Kruger, Klaus M. Leisinger, Peter Maurer, Thomas McCarthy, Justine Nolan, Helena Nygren-Krug, Gerald Pacoud, Soo-Gil Park, Penny Parker, Miguel Pellerano, David Petrasek, Peter Prove, Usha Ramanatham, Mabel Rantla, David Rice, Manual Rodriguez-Cuadros, Karin Schmitt, Fackson Shamenda, Sune Skadegaard Thorsen, Wilder Tayler, Bret Thiele, Brent Wilton, International Organization of Employers, Cornis Van der Lugt, and Jong-Gil Woo.


73. In addition to those persons and organizations mentioned above, the author wishes to express his gratitude for the assistance and advice he has received from the following individuals who made comments on the drafts:  Nicole Ankeny, Stephen Befort, Norman Bowie, Robert T. Coulter, Gemma Crijns, Connie de la Vega, Nikki Daruwala, Kristin Dawkins, Charles Denny, Lisa Dercks, Caroline Dommen, Marsha Freeman, Barbara Frey, Shinobu Garrigues, Mayra Gomez, Maria Green, Chris Jochnick, Sarah Joseph, Michael Kane, George Kent, Steve Kong, Sharon Ladin, Michelle Leighton, Michael Levy, Morris Levy, John Matheson, Brett McDonnell, David McGowan, Justine Nolan, Joanne O’Donnell, Joseph Oloka-Onyango, Andrew Orkin, Carolina Ortega Barrales, Joe W. (Chip) Pitts, Ravi P. Rajkumar, Steven Suppan, Deepika Udagama, Winston Wallin, John Welty, Morton Winston, Jennifer Woodward, Stephen B. Young, Saman Zia-Zarifi, and others.  Furthermore, the author is grateful for the research assistance of Muria Kruger and the secretarial assistance of Mary Thacker.


[1] See United Nations High Commissioner for Human Rights, Business and Human Rights,  <http://www.unhchr.ch/global.htm> (last visited May 14, 2001); United Nations Conference on Trade and Development, The Social Responsibility of Transnational Corporations, U.N. Doc. UNCTAD/ITE/IIT/Misc.21 at 6 (1999).


[2] For a discussion on the definition of transnational corporations, see infra, paras. 18-21.  See also Michael A. Santoro, Profits and Principles (2000).


[3] See The Realization of Economic, Social and Cultural Rights: The relationship between the enjoyment of human rights, in particular, international labour and trade union rights, and the working methods and activities of transnational corporations, U.N. Doc. E/CN.4/Sub.2/1995/11, para. 22 (1995).


[4] See Margaret Jungk, The Confederation of Danish Industries, Deciding Whether to do Business in States with Bad Governments (2001).  For a specific discussion on human rights issues in the oil industry, see Human Rights and the Oil Industry (Asjborn Eide, Helge Ole Bergesen & Pia Rudolfson Goyer, eds., 2000).


[5] See, e.g., Leslie Kochan, The Maquiladoras and Toxics (1989).  See also The Realization of Economic, Social and Cultural Rights, supra note 3, at paras. 58-67 (TNC activities in export processing zones).


[6] See David Weissbrodt & Marci Hoffman, The Global Economy and Human Rights: A Selective Bibliography, 6 Minn. J. Global Trade 189 (1997).


[7] In January 2000, a large pharmaceutical company was accused of testing a drug, not yet approved in the company’s home nation, on Nigerian children with meningitis.  See Prithi Yelaja & Joe Stephens, Little Guinea Pigs, Toronto Star, Jan. 7, 2001.


[8] Margaret Jungk, The Danish Center for Human Rights, Defining the Scope of Business Responsibility for Human Rights Abroad (2000) (recognizing four areas in which companies should have positive human rights responsibilities).  For an example of material written by a corporation addressing human rights rights issues and the policies adopted by the company to respond to these issues, see Shell International Petroleum Company, Business and Human Rights:  A Management Primer (1999).  For a survey of corporations on their views of corporate social responsibility, see PricewaterhouseCoopers, The Politics of Responsible Business, A survey of political and business opinion on corporate social responsibility (2001).


[9] See Christopher L. Avery/Amnesty International United Kingdom,  Business and Human Rights in a Time of Change, ch. 1 (2000).  See also Business and Human Rights, supra note 1.


[10] For example, consumer discontent that soccer/footballs were made by child labour led to a consumer boycott forcing the manufacturers to stop using child labour. See Robert J. Liubicic, Corporate Codes of Conduct and Product Labeling Schemes: The Limits and Possibilities of Promoting International Labor Rights Standards Through Private Initiatives, 30 Law and Pol’y Int’l Bus 111 (1998).  Another example occurred in regard to the promotion of infant formula in developing countries.  Certain companies were encouraging mothers in developing countries to use infant formula instead of breast-feeding.  The use of infant formula led to increased infant mortality because of a lack of clean water and because mothers weren’t properly instructed on how to use the formula.  Once consumers learned about the increased infant mortality, they began boycotting Nestlé products.  See Nancy E. Zelman, The Nestlé Infant Formula Controversy: Restricting the Marketing Practice of Multinational Corporations in the Third World, 3 Transnat'l L. 697 (1990).  Out of that controversy arose the World Health Assembly, International Code of Marketing of Breast-Milk Substitutes (1981).


[11] For example, France recently enacted a ban on asbestos imports to protect consumers and workers from possible asbestos-related health risks.  The World Trade Organization Dispute Settlement Panel upheld the asbestos ban because if fell within the GATT-WTO exception allowing individual countries to make policies necessary to protect public health.  See WTO Tribunal Upholds French Asbestos Ban, But Uses Damaging Reasoning, Public Citizen, Global Trade Watch Harmonization Project, Sept/Oct. 2000.


[12] Business and Human Rights, supra note 1, at 8-9.


[13] Milton Friedman, Capitalism & Freedom 133 (1962); see also Milton Friedman, The Social Responsibility of a Business is to Increase Profits, N.Y. Times, Sept. 13, 1970 (Magazine) at 32, 125.


[14] See Ronald Harry Coase, The Firm, The Market and the Law (1988).


[15] A 1996 study found that 51 of the 100 largest economies in the world are corporations, while only 49 are countries; the combined sales of the world’s top 200 corporations are greater than a quarter of the world’s economic activity; and the top 200 corporations have almost twice the clout of the poorest four-fifths of humanity.  See Sarah Anderson and John Cavanagh, The Top 200: The Rise of Global Corporate Power (1996), available at <http://www.corpwatch.org/trac/corner/glob/ips/top200.html > (last visited May 14, 2001).


[16] Development and International Economic Cooperation: Transnational Corporations, U.N. Doc. E/1990/94 (1990); see also United Nations Draft International Code of Conduct on Transnational Corporations, 23 I.L.M. 626 (1984).  In 1972 the Economic and Social Council requested the Secretary-General to appoint a group of eminent persons to study the impact of multinational corporations on the world economy.  In 1977 the United Nations Commission on Transnational Corporations began formulating a Code of Conduct for Transnational Corporations; the most recent draft was completed in 1990, but the Code of Conduct was never concluded.   See Paul Lansing & Alex Rosaria, An Analysis of the United Nations Proposed Code of Conduct for Transnational Corporations, 14 World Competition 35, 37 (1991); John Christopher Anderson, Respecting Human Rights:  Multinational Corporations Strike Out, 2  U. Pa J. Lab. & Emp. L. 463, 474-75 (2000).


[17] Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises, 15 I.L.M. 967 (1976).  The OECD has established National Contact Points for handling inquiries and contributing to the solution of problems that may arise in connection with the OECD Guidelines.  The OECD has also established the Committee on International Investment and Multinational Enterprises (CIME) that periodically or at the request of a Member country can hold an exchange of views on matters related to the Guidelines.  <http://www.oecd.org//daf/investment/guidelines/faq.htm> (last visited May 21, 2001).  Over 30 cases have been submitted to the CIME – principally involving employment and industrial relations.


[18] OECD Guidelines for Multinational Enterprises, Revision 2000, <http://www.oecd.org/daf/investment/guidelines/index.htm> (last visited May 14, 2001).


[19] International Labour Organization, Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (1977), 17 I.L.M. 422, para. 6 (1978). <http://www.ilo.org/public/english/employment/multi/tridecl/index.htm> (last visited May 14, 2001).


[20] See International Labour Organization, Updating of references annexed to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, ILO Doc. GB.277/MNE/3 (2000).


[21] ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, adopted by the International Labour Conference at its eighty-sixth session, Geneva, June 18, 1998.  The ILO Declaration is monitored through a quadrennial survey and through interpretations rendered by the Subcommittee on Multinational Enterprises.  As of November 15, 1999, the Subcommittee had received over 23 requests for interpretations with very few passing the test of receivability so that an interpretation has been issued.  Follow-up and Promotion March 2000 by Subcommittee on Multinational Enterprises, ILO Doc. GB.277/MNE/1 (2000).

< http://www.ilo.org/public/english/standards/relm/gb/docs/gb277/pdf/mne-3.pdf> (last visited May 14, 2001).  See also, International Labour Organization, Your Voice at Work, Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (2000).


[22] See International Labour Organization, The International Labour Organization and Private Voluntary Initiatives (2000).


[23] Secretary-General Kofi Annan, Address at the World Economic Forum in Davos, Switzerland (Jan. 31, 1999),  U.N. Doc SG/SM/6448 (1999).


[24] The principles are that businesses should;  (1) support and respect the protection of internationally proclaimed human rights within their sphere of influence; (2) make sure they are not complicit in human right abuses;  (3)  uphold the freedom of association and the effective recognition of the right to collective bargaining; (4) eliminate all forms of forced and compulsory labour; (5) abolish child labor; (6) eliminate discrimination in respect of employment and occupation;  (7) support a precautionary approach to environmental challenges; (8) undertake initiatives to promote greater environmental responsibility; and (9) encourage the development and diffusion of environmentally friendly technologies.  The Global Compact, available at < http://www.unhchr.ch/global.htm> (last visited on May 14, 2001).


[25] See id.


[26] Id.


[27] See id.


[28] The Global Compact, supra note 24.


[29] See The Global Compact, supra note 24.  See also, International Chamber of Commerce, The Global Compact, Business and the UN,  Int’l Herald Tribune, Jan. 25, 2001, at 11-14.


[30] Examples of corporations which have adopted voluntary codes of conduct are 3M, Body Shop, BP Amoco, British Telecom, Cargill, C&A, Carlson Companies, Gap, H & M, ING Group, Levi Strauss, Medtronic, Nokia, Novo Nordisk, Numico, PepsiCo, PetroCanada, Reebok International, RioTinto, Sara Lee Corporation, Royal Dutch/Shell Group of Companies, Starbucks, Statoil, Tata Iron and Steel Co.,Volkswagen, and Xerox. 


[31] See, e.g., Caux Round Table Principles for Business, available at <http://www.cauxroundtable.org> (last visited Mar. 14, 2001); Douglass Cassel, International Security in the Post-Cold War Era: Can International Law Truly Effect Global Political and Economic Stability?, 10 Fordham Int’l L.J. 1963 (1996); Jorge Perez-Lopez, Promoting International Respect for Worker Rights through Business Codes of Conduct, 17 Fordham Int’l L.J. 1 (1993); Thomas Donaldson, Corporations & Morality (1982); Peter A. French, Collective and Corporate Responsibility (1984); Rita Manning, Corporate Responsibility and Corporate Personhood, 3 Journal of Business Ethics 77 (1984); John Ladd, Corporate Mythology and Individual Responsibility, 2 International Journal of Applied Philosophy 1 (1984); Elizabeth Wolgast, Ethics of an Artificial Person (1992); Bennett Freeman, Remarks, Conference on Corporate Citizenship, Linking CSR Business Strategies and the Emerging International Agenda, November  8, 1999.


[32] See generally id.  Examples of codes of conduct written by governments, trade groups, NGOs, and others include: Amnesty International Human Rights Guidelines for Companies; Business Charter for Sustainable Development; Caux Principles for Business; Clean Clothes Campaign; Clinton Coalition Code of Conduct; Coalition for Environmentally Responsible Economies; Code of Labour Practice for Production of Goods Licensed by the Federation Internationale de Football Association; Confederation of Norwegian Business and Industry’s Human Rights from the Perspective of Business and Industry—a checklist; Council on Economic Priorities Accreditation Authority (CEPAA); Declaration of Principles Concerning Human Resource Management for Korean Enterprises Operating Overseas; Ethical Trading Action Group (ETAG), Canadian Base Code of Labour Practice; Ethical Trading Initiative, Code of Conduct; European Parliament, Code of Conduct for European Enterprises Operating in Developing Countries; Fair Labor Association Charter Document, Global Sullivan Principles; Interfaith Center for Corporate Responsibility, Principles for Global Corporate Responsibility: Bench Marks for Measuring Business Performance; International Chamber of Commerce, International Code of Practice in Marketing; International Chamber of Commerce, Recommendations to Combat Extortion and Bribery in Business Transactions; International Code of Ethics for Canadian Businesses; International Confederation of Free Trade Unions (ICFTU), Basic Code of Labour Practice; International Federation of Building and Wood Workers (IFBWW) Model Code of Labour Conduct for the Construction Industry (draft); ISO 14001, A Guide for Environmental Managers & Product Designers; Japan Chemical Industries Association, Responsible Care Principles; Keidanren (Japan Federation of Economic Organizations) Charter for Good Corporate Behavior; MacBride Code; Maquiladora Standards of Conduct; Miller Principles; Mikkeiren Japan Federation of Employers’ Association, Guidelines for Overseas Direct Investment;  Pacific Basin Economic Council, Charter on Standards for Transactions Between Businesses and Government; Social Accountability 8000; South Asian Coalition on Child Servitude, Rugmark; Swedish Chemical Industry Progress Report, Responsible Care; United States/United Kingdom Discussion Group’s Human Rights and Security in the Extractive Sector; and Zimbabwe Industrial Chemical Association, INCHEM Responsible Care Initiative.  See generally The Liability of Multinational Corporations under International Law (Menno T. Kamminga & Saman Zia-Zarifi, eds., 2000)  (examining the legal responsibility of multnational corporations under additional mechanisms for international and domestic accountability); Dorine Wytema, Codes of Conduct:  a Framework of Supervision, Legal Aspects on the Subject of Human Rights and Multinationals, Universiteit Utrecht (1999) (discussing and comparing different codes of conduct and also exploring issues of implementation).


[33] Universal Declaration of Human Rights, GA res. 217A (III), U.N. Doc. A/180 at 71 (1948) (emphasis added).    See generally International Council on Human Rights, Taking Duties Seriously: Individual Duties in International Human Rights Law, A Commentary (1999).


[34]  Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. res.53/144, annex, 53 U.N. GAOR Supp., U.N. Doc. U.N. A/RES/53/144 (1999).


[35] International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969,  Art. 2(1)(d).


[36] Convention on the Elimination of All Forms of Discrimination against Women, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force Sept. 3, 1981, Art. 2(e) & 4(c).


[37] “The act of enslaving another person or of inducing another person to give himself or a person dependent upon him into slavery, or of attempting these acts, or being accessory thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal offence under the laws of the States Parties to this Convention and persons convicted thereof shall be liable to punishment.”  Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 U.N.T.S. 3, entered into force April 30, 1957, Art. 6 (emphasis added).


[38]Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”  Convention on the Prevention and Punishment of the Crime of Genocide, 78 U.N.T.S. 277, entered into force Jan. 12, 1951, Art. 6 (emphasis added).


[39] “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) Crimes against Peace . . . (b) War Crimes . . .  (c)  Crimes against Humanity . . . . ..” Nuremberg Rules of the International Military Tribunal, in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 U.N.T.S. 279, entered into force Aug. 8, 1945 (emphasis added).


[40] “The Court [created by the Statute] shall have jurisdiction over natural persons pursuant to this Statute.  A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.”  Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9*,  as amended November 10, 1998 and July 12, 1999, Art. 25 (emphasis added).


[41] “Each State Party shall ensure that all acts of torture are offences under its criminal law.  The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.


[42] See quote accompanying footnote 33.  Also, Article 29(1) of the Universal Declaration states, “[e]veryone has duties to the community in which alone the free and full development of his personality is possible.  Universal Declaration of Human Rights, GA res. 217A (III), U.N. Doc. A/180 (1948) (emphasis added).


[43] Both the Covenant on Civil and Political and the Covenant on Economic, Social and Cultural Rights have introductory language stating, “The State Parties to the Present Covenant… Realising that the individual, having duties to other individuals and to the community, is under a responsibility to strive for the promotion and observance of the rights recognised in the present Covenant.” International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, preamble; International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, preamble (emphasis added).


[44] See Coase, supra note 14.


[45]  See W. Holfield, Fundamental Legal Conceptions 197 (1923).  Some business entities, such as corporations, ordinarily have a legal identity distinct from their owners.  See Alfred Conard, Corporations in Perspective 416 (1976); Robert W. Hamilton, Corporations Including Partnerships and Limited Liability Companies:  Cases and Materials 9 (1998).  Nonetheless, corporations may be held responsible in tort for their corporate policies and decisions.  They may also be held vicariously responsible in tort for the conduct of their employees within the scope of their employment.  John I. Diamond, et al., Understanding Torts 221-23 (1996).  The owners and shareholders of a corporation may be shielded from claims against their corporation, unless the owners or shareholders have committed fraud or some other act justifying the imposition of liability, that is, “piercing the corporate veil.”  John H. Matheson & Raymond B. Eby, The Doctrine of Piercing the Veil in an Era of Multiple Limited Liability Entities:  An Opportunity to Codify the Test for Waiving Owners’ Limited-Liability Protection, 75 Washington L. Rev. 147, 149, 193 (2000).  Furthermore, in at least some countries corporations may be fined or subjected to relevant forms of criminal sanctions for conduct, if the criminal activity is not a personal aberration of an employee acting on his/her own, but reflects corporate policy.  State v. Christy Pontiac-GMC, Inc., 354 N.W.2d 17 (Minn. 1984); Commonwealth v. McIlwain School Bus Lines, 423 A.2d 413 (Penn. 1980).   In addition, there may be liability for the corporation if the crime has been committed by a “directing mind” of the corporation.   It has been argued that liability should also stem from the company’s internal decision structures (its CIDs) and its ability to adjust its CIDs in the wake of harm caused.   C. Wells, Corporations and Criminal Responsibility 144 (1983).  Under U.S. law, corporations held criminally liable for the conduct of their agents can have their sentences reduced if the corporation has an “effective compliance program” in place to detect and deter employee violations of the law while working for the corporation.  U.S. Sentencing Comm'n, Guidelines Manual s 8A1.2, application note 3(k) (1995).


[46] See generally Andrew Clapham, The Question of Jurisdiction under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in The Liability of Multinational Corporations under International Law 139 (Menno T. Kamminga & Saman Zia-Zarifi, eds., 2000)  (discussing the inclusion of legal persons within the jurisdiction of the International Criminal Court). 


[47] The OECD Convention makes it a crime to offer, promise, or give a bribe to a foreign public official in order to obtain or retain international business deals.  The OECD Member countries and five non-member countries have ratified the treaty.  OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 18, 1997, S. Treaty Doc. 105-43 (1998), 37 I.L.M. 1, entered into force February 15, 1999.


[48] International Convention on Civil Liability for Oil Pollution Damage, entered into force June 19, 1975, Art. 1; Convention on Civil Liability for damage resulting from activities dangerous to the environment, 32 I.L.M. 1228, Art. 2(6), adopted June 21, 1993. The Convention for Damage to Environment is a regional instrument which is open to signature by the members of the Council of Europe and to nonmember states that have participated in its elaboration and the European Economic Community.  Id. Art. 32(1),  See Romina Picolotti & Jorge Daniel Taillant, Human Rights Accountability of Private Business: A Question of Sustainable Development (2000).


[49] United Nations Environment Programme Conference of Plenipotentiaries on the Global Convention on the Control of Transboundary Movements of Hazardous Wastes: Final Act and Text of Basel Convention, at Art. 2(14),  Mar. 22, 1989, 28 I.L.M. 649 (1989).


[50] See Barbara Frey, The Legal and Ethical Responsibilities of Transnational Corporations in the Protections of International Human Rights, 6 Minn. J. Global Trade 153 (1996) (citing Jonathan Charney, Transnational Corporations and Developing Public International Law, 1983 Duke L.J. 748, 749 n. 1 (1983); Menno T. Kamminga, Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC, in Philip Alston, The EU and Human Rights 553 (1999) (“The simplest definition of multinational corporation is ‘an enterprise which owns or controls production or services facilities outside the country in which it is based’.”); Warner Feld, Nongovernmental Forces and World Politics 20-23 (1972)). 


[51] Luzius Wildhaber, Some aspects of the Transnational Corporation in International Law, 27 Neth. Int’l Rev. 79, 80 (1980).


[52] See Detlev Vagts, The Multinational Enterprise:  A New Challenge for Transnational Law, 83 Harv. L. Rev. 739, 740 (1980); Raymond Vernon, Economic Sovereignty at Bay, 47 Foreign Aff. 110, 114 (1968)


[53] See Vagts, supra note 52, at 740.  Arghyrios A. Fatouros has proposed the following definition of a transnational enterprise (TNE):  “a complex of legally discrete entities (ie., companies) established in several countries, forming a single economic unit (enterprise) which engages in operations transcending national borders under the direction of a sole decision-making center.”  Arghyrios A. Fatouros, Transnational Enterprise in the Law of State

Responsibility in International Law of State Responsibility for Injuries to Aliens 361, 362 (Richard Lillich ed., 1983); Transnational Corporations:  International Legal Framework 227 (Arghyrios A. Fatouros ed., 1987); see also David Bergman, Corporations and ESC Rights,  International Human Rights Internship Program, Circle of Rights  485, 490 (2000).


[54] ILO Tripartite Declaration, supra note 19, at para. 6.


[55] U.N. Code of Conduct for Transnational Corporations, supra note 16.


[56] U.N. Code of Conduct for Transnational Corporations, supra note 16.


[57] ILO Tripartite Declaration, supra note 19, at para. 11.


[58] OECD Guidelines, supra note 17.


[59] Id. 


[60] Section II (10) states with regard to suppliers and sub-contractors that enterprises should “encourage, where practicable, business partners, including suppliers and sub-contractors, to apply principles of corporate conduct compatible with the Guidelines.”  Id.


[61] See Business and Human Rights, supra note 1.


[62] See id.  An example of guidelines encouraging companies to use their influence to encourage governments to improve their human rights and environmental records is the United States/United Kingdom Discussion Group’s Human Rights and Security in the Extractive Sector.  These guidelines state that companies “should use their influence to promote the following principles with public security” and “in their consultations with host governments, take all appropriate measures to promote adherence to international law enforcement standards.…”   Human Rights and Security in the Extractive Sector <http://www.state.gov/www/global/human_rights/001220_fsdrl_principles.html >  (last visited, May 14, 2001).


[63] See Business and Human Rights, supra note 1.


[64] The United Nations Development Programme’s Human Development Report 2000, Human Development and Human Rights, states that “[g]lobal corporations can have enormous impact on human rights—in their employment practices, in their environmental impact, in their support for corrupt regimes or in their advocacy for policy changes.”  United Nations Development Programme’s Human Development Report 2000, Human Development and Human Rights, available at <http://www.undp.org/hdro/HDR2000.html> (last visited May 14, 2001).


[65] UNCTAD has noted “incipient signs of ‘code fatigue’.” UNCTAD, supra note 1, at 12.


[66] Cf. Overview of global developments and Office activities concerning codes of conduct, social labeling and other private sector initiatives addressing labour issues. Working Party on the Social Dimensions of the Liberalization of International Trade. International Labour Office, Geneva, November 1998, GB.273/WP/SDL/1 (breaking down the categories of standards into four categories indicated above as (3), (4), (5), and (6)).


[67]  See Nicole J. Krug, Exploiting Child Labour: Corporate Responsibility and the Role of Corporate Codes of Conduct, 14 N.Y.L. Sch. J. Hum. Rts. 651, 665-66 (describing how sudden unemployment of children in the Bangladesh garment industry actually resulted in worse living conditions for the children).


[68] See Amnesty International Human Rights Guidelines for Companies; Clinton Coalition Code of Conduct, U.S. Department of Commerce, Model Business Principles, May 27, 1995; Ethical Trading Initiative Code of Conduct.


[69] See International Chamber of Commerce, Responsible business conduct:  an ICC approach, Issues paper prepared by the Group on Business in Society (2000) (arguing that in order for a code to be effective and relevant to a company, the company should develop and implement the code themselves).


[70] The millenium forum indicated its support for a legally binding set of guidelines.  See U.N. GAOR, 54th Sess., Agenda Item 49(b), at 11, U.N. Doc. A/54/959 (2000).


[71] Among the other prominent human rights instruments are: Standard Minimum Rules for the Treatment of Prisoners; Declaration on the Rights of Disabled Persons, Code of Conduct for Law Enforcement Officials; Declaration on the Right to Development; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions; Declaration on the Protection of All Persons from Enforced Disappearances; Declaration on the Protection of All Persons Belonging to National or Ethnic, Religious or Linguistic Minorities; Declaration on the Elimination of Violence Against Women; Vienna Declaration and Platform of Action; and Beijing Declaration and Platform of Action.


[72] Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975).


[73] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.


[74] Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981).


[75] International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.


[76] U.N. Commission on Human Rights Working Group on Arbitrary Detention, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment regarding the situation of immigrants and asylum seekers, U.N. Doc. E/CN.4/2000/4/Annex 2 (1999).


[77] U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Housing and property restitution in the context of the return of refugees and internally displaced persons, U.N. Doc. E/CN.4/SUB.2/RES/1998/26 (1998).


[78] U.N. Commission on Human Rights, Protection of human rights in the context of human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS), U.N. Doc. E/CN.4/RES/1997/33 (1997).


[79] Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. res. 1989/65, annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989).


[80] Declaration on the Elimination of Violence against Women G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).


[81] Lisa H. Dercks, Twelve Steps to an Effective Ethics and Compliance Program (2000).


[82] The Caux Round Table, Caux Round Table Self-Assessment and Improvement Program.


[83] For example, Caux Round Table Principles for Business (1986); Clean Clothes Campaign, Code of Labour Practices for the Apparel Industry Including Sportswear; International Chamber of Commerce, Guidelines for International Investment and Business Charter for Sustainable Development.


[84] For example, The Sullivan Statement of Principles (4th Application, Nov. 8, 1984, 24 I.L.M. 1464 (1985), Irish National Caucus, The MacBride Principles (1984), Council of Economic Priorities Accreditation Authority, Macquiladora Standards of Conduct, Miller Principles, Partner’s Agreement to Eliminate Child Labor in the Soccer Ball Industry in Pakistan.


[85] Article XX of the 1947 General Agreement on Tariffs and Trade states ten exceptions in which a State may use trade-restrictive measures, including things such as the protection of public morals; the protection human, animal or plant life or health; and the preservation of exhaustible natural resources.   See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (April 15, 1994) reprinted in The Results of the Uruguay Round of Multilateral Trade Negotiations – The Legal Texts (1994), and in 33 ILM 1140 (1994).


[86] See id, at Agreement on Sanitary and Phytosanitary Measures, art.2.1.


[87] Id. at Agreement on Technical Barriers to Trade, art. 1.1.


[88] See North American Agerement on Environmental Cooperation, 32 I.L.M. 1480 (1993).


[89] See North American Agreement on Labor Cooperation, 32  I.L.M. 1499 (1993).


[90] See Resolution on EU standards for European Enterprises operating in developing countries:  toward a European Code of Conduct, European Parliament, Resolution A4-0508/98 of 1998.


[91] See Su-Ping Lu, Corporate Codes of Conduct and the FTC:  Advancing Human Rights Through Deceptive Advertising Law, 38 Colum. J. Transnat’l L. 603 (2000) (discussing how company human rights codes of conduct may be used by courts to hold companies liable under deceptive advertising laws).


[92] See Committee on Economic, Social and Cultural Rights, General Comment 7, The right to adequate housing (Art. 11 (1) of the Covenant): forced evictions, U.N. Doc. E/C.12/1997/4 (1997).


[93] International Council on Human Rights Policy, Business wrongs and rights: human rights and the developing international legal obligations of companies (2001).

Home / Treaties / Search / Links