David Dean Ellis LL.M MBA BA
The history of Human Rights in national, regional and international contexts has been more of reactive measures aimed at either curtailing the spread of human rights abuses or in response to human rights infringements by hostile nations against their populations or sovereign nations for a variety of reasons. In 1948 the Universal Declaration of Human Rights adopted by the United Nations with its 30 articles affirmed the four fundamental freedoms of modern day (20th century) human rights understanding. The document articulated the concepts of freedoms of speech, religion, want and fear and has been extensively elaborated in a number of regional and international treaty documents as well as formed the basis of a number of national constitution documents. The International Bill of Human rights which incorporated the earlier Universal Declaration of Human rights set the precedent for new and more targeted rights for individuals by the incorporation of the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966).
On a regional scale the creation of covenant agreements in Africa (African Union), Europe (European Union), The Americas (Organization of American States) and Asia (Asean) saw attempts to stem the rise off human rights abuses among nations with similar ethnic, historical and cultural backgrounds. These efforts have by and large been successful to a point however in within the context of business these regional agreements have tended to be less firm especially when the economic self interests of select member states were concerned. This report will focus specifically on the effect which these various attempts at implementing human rights regimes have had on the behavior of Multi-national corporations and their activities particularly in developing nations which are vulnerable to political and economic manipulation. It will also examine possible solutions to ensuring that Human Rights enforcement against multinational corporations are effective especially in the face of a world which is becoming more globalized.
Account will also be taken of the influence which business enterprises and the role which economic factors play in the development of legal protocols in human rights law.
The status of Human Rights Regimes in present day.
The rise of the influence of Multinational Corporations in global Geo politics and in every facet of human society and interaction is undeniable. Of the top 100 largest economies in the world, 51% are corporations and 49% are countries. The growth of the Multinational corporation has had both positive and negative effects on populations worldwide. Among the positives is the creation of wealth and jobs around the world, larger economies of scale which makes for more affordable products, and more money invested in research and development thereby ensuring minimum standards for products and services. The negative effects however include a profit driven mentality which creates untold damage to communities and the environment, a stifling of smaller local businesses through economies of scale production and flagrant abuse of the human rights of workers and the communities where they operate.
In such cases the first line of defense for the injured parties has traditionally been to resort to the national courts for some form of relief, however this solution has been seen in many cases to not provide much of a remedy. The main problem here lies with countries who must necessarily decide between the economic interests of the entire country over the human rights of a few of their citizens. This ethical conundrum is usually resolved by governments especially in the developing world with flailing economies choosing to “not act” in terms of developing legislation to curb the rise of these human rights abuses by large corporations.
An example can be seen in Nigeria where energy companies such as Shell have been accused of a variety of the most heinous human rights violations. Resort to the national courts however has been less than successful for victims of abuses. In Fidelis Ayoro Oguru and others v Royal Dutch Shell PLC and Shell Petroleum Development Company of Nigeria  the court rejected all claims of Oguru et al on the basis of the Land Use Act  of Nigeria which states that individuals who are not exclusive owners of the land have no right to bring actions on the basis of loss of income as a result of pollution of that land. Additionally, the plaintiffs were required to pay the court costs incurred by Shell in defending their action. The Act effectively negated the ability of individuals affected by Shell’s action to recover damages and as such provided a legislative barrier to the enforcement of Human Rights obligations against a corporation at the national level.
This impunity which many corporations enjoy has been the focus of many International efforts aimed at controlling the amount of damage caused by these companies by making States who are the host of the parent companies responsible for the actions of their resident enterprises. The International Law Commission (ILC) in article 5 of their Draft articles on Responsibility of States for Internationally Wrongful Acts, for example approaches the extraterritorial responsibilities of the state by first making reference to “persons or entities” who are not necessarily organs of the state but who are empowered by the laws of any particular state and acting in capacity. Article 8 goes on to state rather directly that,
“The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct”
This reference to “entities” as being legal agents of the states under whose laws they operate does encompass private and public companies and article 8 places the responsibility of the actions of these entities firmly at the doorstep of the States under whose laws they operate. Despite this rather explicit declaration however it has been the practice of states to ignore and on occasion subvert the implementation of International Law as exemplified in ‘The republic of Nicaragua V the United States of America.’ This case demonstrated that state actors could not only refuse to accept the ruling of the International Court of Justice but also challenge its legitimacy in presiding over matters which were within its jurisdiction. The United States completely disregarded the judgment and proceedings of the court by not appearing after preliminary arguments over the court’s ability to preside over the case was rejected and also used its influence in the United Nations Security council to block the enforcement of the courts decision against that country to prevent the Nicaraguans from being awarded the compensation which they were seeking in the case.
Such examples render the extra territorial responsibilities of states in international justice a useless concept. The result clearly shows that the ILC and the principles contained within its statutes are clearly not enforceable against certain state actors or against their agents and this is largely dependent on the influence and power of the offending state.
The effects of regional systems on human rights violations.
The concept of regional unions as a deterrent and an intermediary solution to human rights abuses was firmly based on the concept that countries within geo-political and social proximity would be better equipped to understand and arbitrate the elements concerning abuses within member states. The rationale here being that states with similar historical and cultural background could conceptually assist each other by creating solutions to problems which are of mutual concern to them.
The reality of this idea in real world politics however has been met with mixed success with regards to Corporate abuse of Human Rights.
On the one hand, there is the example of the European Union (EU) and its legislative arm the European Commission on Human Rights (ECHR) which has developed over time several strategies for combating Corporate abuses. These include the implementation of co-operative strategies with businesses through a Multi Stakeholder Forum aimed at facilitating the development of more complex and efficient strategies for addressing the impact of MNC’s and also the development of a legal regime for curbing these abuses especially in the case of businesses whose parent companies reside within the union.
In its first official meeting on 3rd February 2015, the forum discussed issues relating to the “responsibility of enterprises for their impacts on society” and among the outcomes determined that,
“For European companies doing business in states with weak governance, the EU should facilitate mechanisms and dialogue with governments and companies to limit corruption.”
This goal however, represents more of a suggestion on dialogue with governments and like many other international forums is couched with terms like “facilitate” which do not indicate concrete plans and methodologies to eradicate the spread of human rights abuses by these businesses through the implementation of punitive measures through legislative means.
Although the development of the solid array of human rights provisions appear impressive there have been criticisms by some scholars and jurists regarding the legitimacy of the European Court of Human Rights (ECrtHR) judgments particularly in the area of extraterritorial infringements.
These criticisms involve the lack of balance in the judgments handed down against states like Russia and Turkey as opposed to the core states which make up the European Union. The court on this topic seemed more eager to apply the principle of extra territoriality in the case of the Turkish invasion of Cyprus as an example as opposed to the narrowing the application in Bankovic et al v Belgium et al.
This lack of balance however indicates that there may be an inherent bias in the system with regards to core European States which has implications for the legitimacy of this regional court and its overall influence in Europe as a whole.
In contrast is the development of the African Union, a body which in 2000 replaced its predecessor the Organization for African Unity. This regional organization comprises three arms, the African Charter on Human and People’s Rights (ACHPR), the investigative arm named the African Union Commission (AUC) and its judicial body The African Court of Human and People’s rights (ACrtHPR). It is significant however that of the 26 member states who have ratified the treaty only seven of them allow for Non Governmental Organizations and Individuals to bring actions directly to the ACrtHPR. In addition, this African regional court investigates claims only after they have been brought to it’s attention by the African Union Commission. The implications here for individuals and societies affected by powerful enterprises is evident and is proven by the flagrant disregard which corporations who operate within the region have for its authority.
In 2009 for example, mining accidents killed 170 people in South Africa due to deplorable conditions including lack provisions of safety equipment by the foreign companies who employ local labor. This recently formed African Court system who handed down its first judgment in 2009, has seen little to no actions brought against MNC’s since that date due mainly to the barrier placed by the prevention of individuals and NGO’s from bringing actions to its attention. The stark increase of litigation against MNC’s in national and international courts however tends to suggest that claimants are of the belief that they may receive more effective remedies in these forums in terms of the level of compensation for damages sought and also with regard to the efficiency of the legal machinery. A brief look at the International Monetary Fund Statistics over the past forty years shows that the awards for damages in the Nigerian national court systems increased exponentially from the 2000 Naira ($304. US) awarded In the Mons v Shell-Bp case of 1972 to the 22,000,000 naira ($1,005,208. US) awarded in the Shell V Isiah case of 1997. In addition, claims brought against Corporations in International courts such as the US and UK had a far greater chance of success in terms of the remedies available and the compensation awarded [Connelly v. RTZ (1994–1999), Lubbe v. Cape plc (1997–2003), Wiwa v. Royal Dutch Shell Co. (1996-2009)].
This situation makes for a court system which is functional in a technical sense but which lacks the confidence of the people who it is sworn to protect. In its first judgment in 2009 in the case Michelot Yogogombaye V the Republic of Senegal the court ruled that it lacked the jurisdiction to preside over the application brought by the plaintiff against the Republic of Senegal on the basis that the Senegalese Government had not made any declaration under Article 34 (6) of the protocol to allow for actions to be brought against the state by individuals. This preliminary judgment showed the ineffectiveness of bringing actions against member states to court who had not made the declaration under this article which rendered the court unable to deliver remedies to individuals or human rights groups.
Regional systems therefore even when developed as is the case with the European Court of Human Rights are marginally effective in curbing human rights abuses. This is largely due to the fact that States are unwilling to expose themselves to the possibility of litigation or other action in a Regional court system and as such choose the convenient parts of a charter to ratify and accept if at all.
Leyshon offers the term “regulatory arbitrage” to describe a situation where corporations seeking to avoid punitive measures for damage caused to the environment and people by their activities deliberately choose to relocate their operations to countries with low regulations who would provide them with the legal shelter through lack of enforcement measures in their own national laws. Typically, these regulation free havens are not to be found in countries which have ratified regional and international human rights treaties. An example can be seen in the relocation by Thor Chemicals of all mercury related processes from the United Kingdom to South Africa in 1988. The subsequent case against the company however which started in 1994 by ex-employees of the company in South Africa claimed that their employment with the company had exposed them to fatal levels of Mercury poisoning. It certainly did not help that three of the workers claiming compensation had already died prior to the proceedings. Thor Chemicals settled the case for 1.3 million pounds out of court.
International developments in existing Human Rights Regimes
Developments in the international arena with respect to Corporations and their commitments to human rights has been slow both in formulation and implementation. Most of the progress in this area has been in the form of authoritative “recommendations” couched in the language of co-operative and voluntary implementation and lack the substantive legal framework to enforce the tenets of respect for human rights upon businesses.
In 2003 for example the United Nations sub commission on the promotion and protection of human rights approved a document titled Norms On the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights (Norms Document). This document with its 19 regulations concerning the rights of workers and the rest of the civil society with regard to the operations of business was to have the character of “authoritative recommendations” since it was a formally commissioned attempt by the UN machinery to create a set of standards which would in time form a template for businesses to begin building their own norms and practices in conformity with a standardized set of standards supported by the UN. This deviated from earlier attempts at voluntary compliance such as the UN Global Compact in 1999 which although successful in attracting businesses to register to its forum did little to impact the overall situation of human rights abuses in real world application. This instrument gave the Corporations which signed to it the right to self-report on the implementation of the ten principles of the initiative in their regular operations. The voluntary nature of this Compact both in the registration and in the reporting eventually led to controversy and abuse even with companies signed to its register. In 2008 for example a Brazilian company named Yaguarete Porá, joined the Compact just months before deciding to bulldoze the Totobiegosode forest. The forest was home to the Totobiegosode Indians.
Such cases like this warranted a more formal approach to the question of human rights protection against Corporations and the Norms document submitted by the UN Sub Commission was intended to fill this gap. The result however was resistance by businesses and Transnational companies to accept the possibility of any further monitoring or regulations being placed upon them which were not completely voluntary. The norms document also received scant support from many nations with only Switzerland declaring its support for the initiative at the very outset.
Like its predecessor the Guiding Principles on Business and Human Rights (Guiding Principles), was an initiative sanctioned by the UN Commission (eventually replaced by the Human Rights Council) to explore a more formal approach to the concept of incorporating human rights concerns into the normative practices of businesses. The initiative spearheaded by Professor John Ruggie in 2011 presented a framework for businesses which included at its core the three values of
- The state’s duty to protect against Human rights abuses by third parties, through regulation and appropriate national laws.
- The corporate responsibility to respect the human rights of the individuals affected by its operations
- The improvement of systems designed to give victims of abuse by third parties access to remedies.
Unlike its predecessor however the Guiding Principles document was based on research and the concepts of international legal precedent as well as the social expectation of the international public. It received a unanimous endorsement from the United Nations Human Rights Council but unfortunately like the preceding Norms document lacked the legal authority to bind corporations to its tenets as expressed by Ruggie in his presentation to the human rights council in 2011
“the Guiding Principles’ normative contribution lies not in the creation of new international law obligations but in elaborating the implications of existing standards and
practices for States and businesses,”
The result was once again a set of guidelines which many including the international NGO Human Rights Watch saw as maintaining the status quo due to the lack of any formal binding principles or punitive measures for corporations.
The document however did provide a formalized baseline for measuring the compliance of corporations in protecting human rights which the Norms document failed to do. It also provided a foundation which could be later developed into a more binding measure because it was based on the prevailing international law.
Perhaps the most promising development in International Human rights advocacy has come from a resolution drafted by Ecuador and South Africa and presented to the United Nations Human Rights Council on June 24th 2014. This proposal called for the establishment of an inter-governmental working group tasked with the creation of a legally binding instrument on transnational businesses and other business enterprises on the issue of human rights. The proposal was able to acquire 20 votes in support with 13 abstentions and 14 votes against.
It is unsurprising that the countries which voted against the concept of developing the basis of a treaty aimed at binding transnational corporations to respect human rights are themselves the host countries of these transnational corporations. The United States and the United Kingdom for example voted against this measure and also stated their intentions to boycott treaty negotiations whereas unsurprisingly developing countries such as Cuba, Bolivia and Venezuela voted in favor. This indicates a certain level of duplicity in the voting and lobbying patterns of the UN Human Rights Council.
The success of this initiative however is dependent on many factors. Ruggie describes what he sees as a dysfunctional start to the measure based on these points,
- The Initiative aims to create an overarching international legal framework with global application, a measure which may take decades to affect especially without the support of the developed countries if it is accomplished at all,
- The initiative excluded national businesses from the discussion and focused mainly on transnational companies which is in essence a double standard,
- The current trend adopted by this treaty proposal could undermine efforts already in progress aimed at producing a solution to the human rights issue through co-operative strategies with businesses who are likely to become a lot less co-operative in light of pending legal restrictions.
Regardless of these reservations the intergovernmental working group has moved forward with its inaugural session held in November of 2015. This represents a promising start to the process of finally creating a binding treaty for the resolution to the problem of Corporate respect for human rights on a global scale.
Possible solutions to Human Rights violations by MNC’s
The subject of Human rights violations by Transnational companies is undoubtedly problematic and attempting to simplify it does not in any way assist with the formulation of a solution. An unbiased breakdown of the reality of the situation however may shed some light on other measures which may be undertaken in approaching this issue.
- Corporations are basically in existence for the purpose of making profit for their shareholders or owners. This has always been the driving force behind the creation of enterprises. To suppose that most corporations are in business for the betterment of society is optimistic to the point of being naïve.
- States are on the whole dependent on their local corporations to ensure their national wealth and productivity and as a result will seek to protect them as much as they can.
- Developing nations depend on the money provided by transnational corporations and as a result will facilitate their activities within their borders even if it means turning a blind eye to human rights infringements.
- Corporations who step outside the norms prescribed by the Guiding Principles realistically have more of an advantage of maximizing profits from the exploitation of workers than corporations who adhere strictly to the UN Guiding Principles. Adhering to regulations usually involves an investment either into safety equipment, adequate wages and environmental protection measures which can eat into the profits of companies.
- As a result of the preceding point companies who are able will try as much as possible to escape compromising their profit share and it becomes necessary to implement legally binding rules in order to force compliance.
As a result of this the following solutions to this problem should be considered:
- The imposition of sanctions against offending businesses through a national court system informed by the United Nations Guiding Principles. This measure would avoid the delay associated with the construction of an international legal framework as suggested in the Ecuadorian and South African proposal. In this instance national court systems undertake to respect and to base judgments in their jurisdiction upon these principles which would ensure a passive compliance to the international legal framework instead of waiting on reform from their own governments or international organizations.
- The imposition of a duty on Member States to International and Regional Conventions to curb the spread of Human Rights violations by businesses or risk losing their status and benefits by being part of these conventions. In this measure local governments fearing the loss of benefits such as the enhanced security provided by being part of an organization such as the UN undertake to amend their laws in conformity with International Standards to arrest the abuse by Transnational Companies within their jurisdiction.
- Holding Board Directors and CEO’s of large Multi National Corporations personally responsible through criminal convictions and litigation for human rights abuses committed by their organizations and their subsidiaries in international court. This measure would ensure the vigilance of the individuals who control these corporations in doing their due diligence with respect to making sure that all aspects of their supply chain and its constituent parts are in compliance with international guidelines with respect to respecting the environment and human rights.
- International Insurance mandates placed on businesses operating in multiple states to ensure that victims of corporate human rights violations receive compensation should companies commit infractions against the local population. In addition, the costs associated with premiums and the amount of coverage needed by these organizations to maintain operations in multiple states would prohibit the continuation of practices in contravention to international standards and expectation of human rights and would prompt companies to analyze their risk and compliance protocols based on the threat of increased costs and less profit shares.
The existence of the Transnational Corporation has presented an interesting dynamic to the already complex subject of the protection of human rights. These profit driven, multi-geographical economies constitute in some cases a double threat to populations and the environment. This occurs not only in their basic operations but also in the corrupting and enabling of nation states in the perpetration of human rights abuses against their own citizens.
Several attempts at curbing this threat through the use of co-operative strategies have fallen far from the mark due largely to the assumption that there exists a willingness on the part of most enterprises to corporate with human rights advocates in achieving their objectives. This idea however may bear no basis in reality and may not be a logically sound premise, as any corporation which exists in a competitive environment must necessarily look for measures of gaining advantage; even if it is at the expense of the rights of its workers and the environment. This need to survive in a globally competitive environment may be at the heart of many human rights and it is important for Human Rights advocates to take this into consideration.
A more realistic approach may be to level the playing field of these organizations by targeting the issues with which they are most concerned such as their profit margins and their operational costs. Further, the reduction of liability to the individual Board member or CEO would create a more personal awareness to take care when considering profit maximization at human expense.
corporation are a permanent fixture in today’s global economy however they are
themselves comprised human beings with decision making powers and choices. The
concentration on this fact should therefore be at the heart of all strategies
aimed at curbing human rights infringement by corporations if they are to be
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