Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/12 (2003).

 

1.         In its resolution 2001/3, the Sub-Commission asked the Working Group on the Working Methods and Activities of Transnational Corporations to “contribute to the drafting of relevant norms concerning human rights and transnational corporations and other economic units whose activities have an impact on human rights.”  (U.N. Doc. E/CN.4/Sub.2/RES/2001/3)  In response to that request and a previous, similar request in resolution 1998/8, the Working Group prepared the Draft Norms of Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. (E/CN.4/Sub.2/2002/13, annex)  

 

2.         In its resolution 2002/8 of 14 August 2002 the Sub-Commission requested that the Working Group’s report (E/CN.4/Sub.2/2002/13), and the annexed Draft Norms be widely circulated in the expectation that comments will be taken into account when the draft is considered by the Working Group at its meetings during the Sub-Commission’s fifty-fifth session in July-August 2003, as well as by the Sub-Commission, and “in the further expectation that the working group will submit a draft in the light of comments already received and to be received by the Sub-Commission for plenary consideration at the fifty-fifth session.”

 

3.         In its resolution 2002/8, the Sub-Commission also requested that the Working Group, and in particular the authors of the Draft Commentary for the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights [Draft Commentary] continue working on the Draft Norms and Draft Commentary, so that the Commentary may serve as a reference for the practical interpretation and further development of the Draft Norms and may be submitted to the Working Group and to the Sub-Commission at the fifty-fifth session in July-August 2003.

 

4.         Various versions of the Draft Norms were disseminated as widely as possible, so as to encourage governments, intergovernmental organizations, nongovernmental organizations, transnational corporations, other business enterprises, unions, and other interested parties to provide any suggestions, observations, or recommendations.  The Working Group received a number of comments as a result of these requests and also received useful comments at a seminar 6-7 March 2003 at the Office of the High Commissioner for Human Rights, OHCHR - Palais Wilson, Geneva, Switzerland.  All of the comments were considered at a meeting of the Working Group on 8 March 2003.  The present version takes into account all of the comments received by the Working Group and represents a consensus of the Working Group in the expectation that the draft and other proposals will be discussed at the public meetings of the Working Group to be held in connection with the 55th session of the Sub-Commission and in the further expectation that the Working Group will submit the Norms for consideration by the Sub-Commission’s 55th session 28 July – 15 August 2003 at the Palais des Nations, Geneva, Switzerland.

 

NORMS ON THE RESPONSIBILITIES OF TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH REGARD TO HUMAN RIGHTS

 

PREAMBLE

 

Bearing in mind the principles and obligations under the United Nations Charter, in particular the preamble and Articles 1, 2, 55, and 56, inter alia, to promote universal respect for, and observance of, human rights and fundamental freedoms,

 

Recalling that the Universal Declaration of Human Rights proclaims a common standard of achievement for all peoples and all nations, to the end that Governments, other organs of society, and individuals shall strive by teaching and education to promote respect for human rights and freedoms and by progressive measures to secure their universal and effective recognition and observance, including equal rights of women and men and the promotion of social progress and better standards of life in larger freedom,

 

Recognizing that even though States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights, transnational corporations and other business enterprises, as organs of society, are also responsible for promoting and securing the human rights set forth in the Universal Declaration of Human Rights,

 

Realizing that transnational corporations and other business enterprises, their officers, and their workers are further obligated to respect generally recognized responsibilities and norms in United Nations treaties and other international instruments such as the Convention on the Prevention and Punishment of Genocide; the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment; the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the four Geneva Conventions of 12 August 1949 and two Additional Protocols for the protection of victims of war; the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms; the Rome Statute of the International Criminal Court; the United Nations Convention Against Transnational Organized Crime; the Convention on Biological Diversity; the International Convention on Civil Liability for Oil Pollution Damage; the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment; the Rio Declaration on the Environment and Development; the World Summit on Sustainable Development Plan of Development; the International Code of Marketing of Breast-milk Substitutes of the World Health Assembly (WHA); the Ethical Criteria for Medical Drug Promotion, and Health for All Policy for the twenty-first century of the World Health Organization (WHO); the United Nations Education, Scientific, and Cultural Organization Convention Against Discrimination in Education; conventions and recommendations of the International Labour Organization (ILO); the Convention and Protocol relating to the Status of Refugees; the African Charter on Human and Peoples’ Rights; the American Convention on Human Rights; the European Convention on Human Rights; the Charter on Fundamental Rights of the European Union; the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development (OECD); and other instruments,

 

Taking into account the standards set forth in the International Labour Organization Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, and the ILO Declaration on Fundamental Principles and Rights at Work,

 

Aware of the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises and its Committee on International Investment and Multinational Enterprises;

 

Further aware of the U.N. Global Compact initiative which challenges business leaders to “embrace and enact” nine basic principles with respect to human rights, including labour rights and the environment,

                                               

Conscious of the ILO Committee on International Investment and Multinational Enterprises; the interpretation of standards by the ILO Governing Body Sub-Committee on Multinational Enterprises of the Committee on Legal Issues and International Labour Standards, the ILO Committee of Experts, the Conference Committee on the Application of Standards, and the Declaration Expert-Advisors; as well as the ILO Committee on Freedom of Association which has named business enterprises implicated in States’ failure to comply with ILO Conventions No. 87 concerning the Freedom of Association and Protection of the Right to Organize and No. 98 concerning the Application of the Principles of the Right to Organize and Bargain Collectively, and seeking to supplement and assist their efforts to encourage transnational corporations and other business enterprises to protect human rights,

 

[Further conscious of the Commentary for the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights and finding it a useful interpretation and elaboration of the standards contained in the Norms,]

 

Taking note of global trends which have increased the influence of transnational corporations and other business enterprises – and particularly transnational corporations -- on the economies of most countries and in international economic relations; and the growing number of other business enterprises which operate across national boundaries in a variety of arrangements resulting in economic activities beyond the actual capacities of any one national system,

 

Noting that transnational corporations and other business enterprises have the capacity to foster economic well-being, development, technological improvement, and wealth as well as have the capacity to cause deleterious human rights impacts on the lives of individuals through their core business practices and operations, including employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities,

 

Noting also that new international human rights issues and concerns are continually emerging and that transnational corporations and other business enterprises often are related to these issues and concerns, such that further standard-setting and implementation are required at this time and in the future,

 

Acknowledging the universality, indivisibility, interdependence, and interrelatedness of human rights, including the right to development, that entitles every human person and all peoples to participate in; contribute to; and enjoy economic, social, cultural, and political development in which all human rights and fundamental freedoms can be fully realized,

 

Reaffirming that transnational corporations and other business enterprises, their officers, and their workers have, inter alia, human rights obligations and responsibilities and that these human rights norms will contribute to the making and development of international law as to their responsibilities and obligations,

 

Solemnly proclaims these Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights and urges that every effort be made so that they become generally known and respected:

 

A.     General Obligations

                       

1.  States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights recognised in international as well as national law, including assuring that transnational corporations and other business enterprises respect human rights.  Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of, and protect human rights recognized in international as well as national law.

 

B.        Right to Equal Opportunity and Non-Discriminatory Treatment

 

2.  Transnational corporations and other business enterprises shall ensure equality of opportunity and treatment, as provided in the relevant international instruments and national legislation as well as international human rights law, for the purpose of eliminating discrimination based on race, colour, sex, language, religion, political opinion, national or social origin, social status, indigenous status, disability, age (except for children who may be given greater protection), or other status of the individual unrelated to the inherent requirements to perform the job, or complying with special measures designed to overcome past discrimination against certain groups.

 

C.       Right to Security of Persons

 

3.  Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes; crimes against humanity; genocide; torture; forced disappearance; forced or compulsory labour; hostage-taking; extrajudicial, summary or arbitrary executions; other violations of humanitarian law; and other international crimes against the human person as defined by international law, in particular human rights and humanitarian law.

 

4.   Security arrangements for transnational corporations and other business enterprises shall observe international human rights norms as well as the laws and professional standards of the country or countries in which they operate.

 

D.       Rights of Workers

 

5.   Transnational corporations and other business enterprises shall not use forced or compulsory labour as forbidden by the relevant international instruments and national legislation as well as international human rights and humanitarian law.

 

6.   Transnational corporations and other business enterprises shall respect the rights of children to be protected from economic exploitation as forbidden by the relevant international instruments and national legislation as well as international human rights and humanitarian law.

                                  

7.  Transnational corporations and other business enterprises shall provide a safe and healthy working environment as set forth in relevant international instruments and national legislation as well as international human rights and humanitarian law.

 

8.  Transnational corporations and other business enterprises shall provide workers with remuneration that ensures an adequate standard of living for them and their families.  Such remuneration shall take due account of their needs for adequate living conditions with a view towards progressive improvement.

 

9.  Transnational corporations and other business enterprises shall ensure the freedom of association and effective recognition of the right to collective bargaining by protecting the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without distinction, previous authorization, or interference, for the protection of their employment interests and for other collective bargaining purposes as provided in national legislation and the relevant ILO conventions.

 

E.           Respect for National Sovereignty and Human Rights

10.           Transnational corporations and other business enterprises shall recognize and respect applicable norms of international law; national laws; regulations; administrative practices; the rule of law; the public interest; development objectives; social, economic, and cultural policies including transparency, accountability, and prohibition of corruption; and authority of the countries in which the enterprises operate.

 

11.  Transnational corporations and other business enterprises shall not offer, promise, give, accept, condone, knowingly benefit from, or demand a bribe or other improper advantage.  Nor shall they be solicited or expected to give a bribe or other improper advantage to any government, public official, candidate for elective post, any member of the armed forces or security forces, or any other individual or organization.  Transnational corporations and other business enterprises shall refrain from any activity which supports, solicits, or encourages States or any other entities to abuse human rights.  They shall further seek to ensure that the goods and services they provide will not be used to abuse human rights.

 

12.  Transnational corporations and other business enterprises shall respect civil, cultural, economic, political, and social rights, and contribute to their realization, in particular the rights to development; adequate food and drinking water; the highest attainable standard of physical and mental health; adequate housing; privacy; education; freedom of thought, conscience, and religion; and freedom of opinion and expression; and refrain from actions which obstruct or impede the realization of those rights.

 

F.           Obligations with regard to Consumer Protection

 

13.  Transnational corporations and other business enterprises shall act in accordance with fair business, marketing, and advertising practices and shall take all necessary steps to ensure the safety and quality of the goods and services they provide, including observance of the precautionary principle.  Nor shall they produce, distribute, market, or advertise potentially harmful or harmful products for use by consumers.

 

G.   Obligations with regard to Environmental Protection

 

14.  Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices, and policies relating to the preservation of the environment of the countries in which they operate as well as in accordance with relevant international agreements, principles, objectives, responsibilities, and standards with regard to the environment as well as human rights, public health and safety, bioethics, and the precautionary principle; and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development.

           

H.  General Provisions of Implementation

  

15.  As an initial step towards implementing these Norms each transnational corporation or other business enterprise shall adopt, disseminate, and implement internal rules of operation in compliance with the Norms.  Further, they shall periodically report on and take other measures fully to implement the Norms and to provide at least for the prompt implementation of the protections set forth in the Norms.  Each transnational corporation or other business enterprise shall apply and incorporate these Norms in their contracts or other arrangements and dealings with contractors, subcontractors, suppliers, licensees, distributors, or natural or other legal persons that enter into any agreement with the transnational corporation or business enterprise in order to ensure respect for and implementation of the Norms.

 

16.  Transnational corporations and other businesses enterprises shall be subject to periodic monitoring and verification by United Nations, other international, and national mechanisms, already in existence or yet to be created, regarding application of the Norms.  This monitoring shall be transparent, independent, and take into account input from stakeholders (including nongovernmental organizations) and as a result of complaints of violations of these Norms.  Further, transnational corporations and other businesses enterprises shall conduct periodic evaluations concerning the impact of their own activities on human rights under these Norms.

 

17.  States should establish and reinforce the necessary legal and administrative framework for assuring that the Norms and other relevant national and international laws are implemented by transnational corporations and other business enterprises.

 

18.  Transnational corporations and other business enterprises shall provide prompt, effective, and adequate reparation to those persons, entities, and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation, and rehabilitation for any damage done or property taken.  In connection with determining damages, and in all other respects, these Norms shall be enforced by national courts and/or international tribunals if appropriate.

 

19.  Nothing in these Norms shall be construed as diminishing, restricting, or adversely affecting the human rights obligations of States under national and international law.  Nor shall they be construed as diminishing, restricting, or adversely affecting more protective human rights norms.  Nor shall they be construed as diminishing, restricting, or adversely affecting other obligations or responsibilities of transnational corporations and other business enterprises in fields other than human rights.  

 

I.            Definitions

 

20.  The term “transnational corporation” refers to an economic entity operating in more than one country or a cluster of economic entities operating in two or more countries – whatever their legal form, whether in their home country or country of activity, and whether taken individually or collectively.

 

21.  The phrase “other business enterprise” includes any business entity, regardless of the international or domestic nature of its activities, including a transnational corporation; the corporate, partnership, or other legal form used to establish the business entity; and the nature of the ownership of the entity.  These Norms shall be presumed to apply, as a matter of practice, if the business enterprise has any relation with a transnational corporation, the impact of its activities is not entirely local, or the activities involve violations of the right to security as indicated in paragraphs three and four.

 

22.   The term “stakeholder” includes stockholders, other owners, workers, and their representatives, as well as any other individual or group that is affected by the activities of transnational corporations or other business enterprises.  The term “stakeholder” shall be interpreted functionally in light of the objectives of these Norms and include indirect stakeholders when their interests are or will be substantially affected by the activities of the transnational corporation or business enterprise.  In addition to parties directly affected by the activities of business enterprises, stakeholders can include parties which are indirectly affected by the activities of transnational corporations or other business enterprises such as consumer groups, customers, governments, neighbouring communities, indigenous peoples and communities, nongovernmental organizations, public and private lending institutions, suppliers, trade associations, and others. 

 

23. The phrases “internationally recognized human rights” and “international human rights” include civil, cultural, economic, political, and social rights, as set forth in the International Bill of Human Rights and other human rights treaties, as well as the right to development and rights recognized by international humanitarian law, international refugee law, international labour law, and other relevant instruments adopted within the United Nations system.

 

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