Draft
Universal Human Rights Guidelines for Companies, Introduction,
U.N. Doc. E/CN.4/Sub.2/2001/WG.2/WP.1
(2001).
Introduction
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.
I. NEED FOR HUMAN RIGHTS GUIDELINES FOR COMPANIES
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.
II. DEVELOPMENTS IN CORPORATE CODES OF CONDUCT
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]
III. INTERNATIONAL OBLIGATIONS OF COMPANIES
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]
IV. SCOPE AND CONTENT OF THE
GUIDELINES
A.
DEFINING TRANSNATIONAL CORPORATIONS
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.
B.
DISTINGUISHING
BETWEEN DOMESTIC AND INTERNATIONAL ENTERPRISES
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.
C.
DISTINGUISHING
BETWEEN LARGER AND SMALLER CORPORATIONS
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.
D. DETERMINING
A NAME FOR THE GUIDELINES:
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.
E. SUBJECTS COVERED BY THE GUIDELINES
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.
V. IMPLEMENTING HUMAN RIGHTS GUIDELINES FOR COMPANIES
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.
A. VOLUNTARY GUIDELINES
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.
B. LEGALLY BINDING GUIDELINES
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]
C. IMPLEMENTATION
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.
VI. CONCLUDING REMARKS
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.