WHAT ARE THE HUMAN RIGHTS RESPONSIBILTIES OF TRANSNATIONAL CORPORATIONS

WHAT ARE THE HUMAN RIGHTS RESPONSIBILTIES OF TRANSNATIONAL CORPORATIONS. The respect, promotion and protection of fundamental human rights have primarily been the responsibility of the state. Commission on Human rights, Sub-commission on the promotion and protection of human rights 55th session, agenda item 4,Distr.General, E/CN.4/Sub.2/2003/12/Rev.2 .26th August,2003.But as a result of globalization, non-state actors such as transnational corporations have been of tremendous impact on the human race. These impacts are either negative or positive and do require some element of control and monitoring, hence the need for a binding and enforceable international human rights regulatory frame work to enable victims of human rights violation by transnational corporations have adequate remedy rather than charity. This position Sarah Joseph Sarah Joseph, `Corporate and Transnational Human Rights Litigation’ (2005) E.H.L.J(5) 562s argues that despite the codification of traditional human rights through treaties and conventions ‘there is however no comparative body of law that seeks to provide a frame work for the governance of MNC’s or that seeks to provide sanctions for those (and there has been many) that have been accused of complicity in the human rights abuse. This topic makes one wonder the justification for extension of human rights responsibility to transnational corporations and whether such an entity has the requisite international legal personality which would give rise to such human rights obligation and amongst many complex doctrinal issues, whether such obligations can be enforced. It is worthy of note that attempts have been made by the United Nations in providing some regulatory guideline for transnational corporation with respect to their human rights duties, some include The U.N Norms on Responsibilities of Transnational Corporation and the O.E.C.D Guidelines for Multinational Corporations. Yet as the name implies these documents are merely to encourage transnational corporations take steps to respect and promote human rights. This paper further examines the definition and legal status of transnational corporations including the regulatory regime which propose adequate respect and promotion of human rights responsibilities by TNC’s as contained in the relevant international documents. Further attention and relevance is placed on the accountability of TNC’s for breach for breach of their human rights obligation, this has met some challenges under international human rights law hence the reliance on state parties and the use of other aspects of law such as criminal law, environmental law commercial and civil law. Worthy of note is the case of Kiobel v Royal Dutch Petroleum Company/Shell Kiobel v Royal Dutch pet., where the Alien Claims Tort Act (ACTA) was applied U.S for human rights violations by shell in Nigeria. This re-enforces the fact that state have the principal obligation to enforce human rights obligation and even hold transnational corporations within their jurisdiction accountable for human rights violation. With regards to this, it must b added that there remains a wide margin between developed and developing countries with respect to accountability of TNC’s for breach of human rights violations and the reason for this is that developing countries don’t want to scare away foreign investors on whom they depend on for direct and indirect foreign investment. ....This development stresses the need for an internationally binding and enforceable regulatory regime where individual and state complaint is accepted in a bid to hold transnational corporations accountable for breach of their human rights obligation. THE BACKGROUND AND EVOLUTION OF HUMAN RIGHTS RESPONSIBILITIES OF TRANSNATIONAL CORPORATION. The United Nations have been at the fore front in the promotion of human rights and its major success was on the 10th December 1948 when the Universal Declaration of Human Rights(UDHR) was adopted and proclaimed by the general assembly Denise Lima, `Business and international Human rights,(2009)Ankarbar review(1).Since then there has been various conventions and treaties aimed at strengthening the international human rights regulatory and enforcement framework International Covenants on civil and Political Rights(I.C.C.P.R) and International Covenant on economic, social and cultural rights(I.C.E.S.C.R) both adopted on the 16th December,1966.,also Covenant on the Elimination of all forms of Discrimination against women amongst others..There is no doubt that international human rights have rapidly developed and attained some level of authority Nicola M.C.P Jagers, `Corporate Human Rights Obligation;In Search of Accountability..This development of international human rights and led to the interest in human rights responsibilities of transnational corporation. In the words of Baxi(2005) on the future of human rights he said, `[there is] a contrast between the paradigm of the Universal Declaration of human right(UHDR) and the emergent-friendly paradigm of human rights by which it was confronted’ Baxi Upendra,` Market Fundamentalism; Business Ethics At The Alter Of Human Rights.(2005)HRLR.In the light of this the United Nations have taken steps to strengthen the regulatory frame work of human right responsibility of TCN’s and these include the following amongst others Ibid.99,the Guidelines for multinational enterprises adopted in 1976 by the Organisation for Economic Corporation and Development(OECD),also the Tripartite Declaration of principles Concerning Multinationals Enterprises and Social Policy which was adopted in 1977 by the international labour organisation(ILO) Nicola (n.7) and is the Norms on Responsibility of Transnational Corporation And other business enterprises with regards to human rights UN.Doc.E/CN.4/Sub.2/2003/12/Rev.2(2003).It didn’t end there ,in 1998,the sub-commission on the promotion and protection of human rights established a session working group to examine the methods and activities of transnational corporations Nicola (n.7) .All these instruments and institutions were aimed at ensuring a compact regulatory regime to foster the respect and promotion of human rights by transnational corporation. How effective this been will b discussed in the later part of this paper. DEFINITION OF TRANSNATIONAL CORPORATION. According to the United Nations Norms on the responsibility of TNC’s and other business enterprises with regards to human rights, transnational corporation can be defined as `An economic entity operating in more than one country or a cluster of economic entity operating in two or more countries-whatever their legal form, whether in their home country or country of activity or whether taken individually or collectively’ NORMS ON THE RESPONSIBILITIES OF TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH REGARDS TO HUMAN RIGHTS. UN.Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).The Norms goes further to also define business enterprise, therefore a combination of both definitions gives it a more holistic approach so as to sort of cover the field. The United Nations chooses to use `Transnational Corporations’ but other terms like multinational corporations, transnational enterprise or multinational enterprise can equally b used. Nicola (n.7) also see Peter.T. Muchlinski, `Multinational Enterprises and The Law(2nd edition, Oxford University press 19995) A common characteristic is that they are large and operate across borders and are primarily subject to the legal regime of their host state. The international legal personality of a transnational corporation is still a debate amongst authors. Nicola (n.7) It has been argued that transnational corporations should enjoy human rights protection. Peter.T. Muchlinski, `Multinational Enterprises and The Law(2nd edition, Oxford University press 19995) Peter Muchlinski argues that although a corporation can’t enjoy right to family life but can enjoy right to protection of private corporate premises against unlawful invasion by state authorities as was recognised in the case of Colas Est. SA and Others V France Hale v Henkel 201 U.S,43(1906 U.S.SUP.Ct), it must be added that extension of human rights to legal person is still open to some doubt at a philosophical level. Muchlinski (n.16 THE SUBSTANTIVE HUMAN RIGHT’S OBLIGATION OF TRANSNATIONAL CORPORATIONS. Firstly the acceptance that transnational corporations is still an issue debated by scholars but some expansive interpretation makes this expansion worthwhile. In the Universal declaration of human rights where the instrument addresses both government and `Other organs of the society’ after which we see the same phrase in the preamble of the U.N Norms which provides that `even though states have primary responsibility to promote, respect and ensure the protection of human rights ,transnational corporations and other business organisations as `organs of the society’ are also responsible for protecting and ensuring the protection of human rights. This is a confirmation that transnational corporation have human rights obligation. ibid Furthermore Nicholas Jagers .... in her book corporate human rights obligations; in search of accountability extends the tripartite typology of negative and positive obligations of human rights which was developed by Henry Shue and re-introduced by Eide to human rights obligation of transnational obligation. She argues that corporations have an obligation to respect, protect and fulfil human rights. The implication of this is that transnational corporations should abstain from doing anything that infringes on human rights(obligation to respect)also that TNC’s should not allow third parties such as contractors and sub-contractors, joint venture partners, suppliers and other business partners infringe on human rights(obligation to protect) and finally while recognising that states are in a better position to uphold the obligation to fulfil, she argues that it can be extended to TNC’s in situations where they provide services that ordinarily should have been provided by the state. For example provision of food in prisons run by corporations as it is done in the United States. I agree with the application of the tripartite typology and its extension to TNC’s human rights obligation. THE UN NORMS ON THE RESPONSIBILTIES OF TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH REGARD TO HUMAN RIGHTS. A discussion on the human rights obligations of TNC’s will not b complete without reference to the U.N Norms, this is so because the Norms reflect the comprehensive document in international human rights law related to human rights obligations of TCN’s and other business enterprises. The Norms is made of twenty-three paragraphs set out in eight sections and they include the general obligations, right to equal opportunity and non-discriminatory treatment, also are the right to security of persons, right of workers, respect for national sovereignty and human rights, obligations with regards to environmental protection, general provisions of implementation and definition UN Norms Para B. the right of Security of persons as concerns business or benefit from.. There is no doubt that the Norms cover a wide range of specific and general obligation relating to human rights. The Norms successfully covers several types of human rights provision ranging from `traditional’ civil and political rights, economic, social and cultural rights The provision of safe and healthy working environment, UN Norms section D,para D. and even goes beyond convention based human rights agenda to include a general corporate social responsibility code. ibid With regards to the status of the Norms, the intention of the Working Group and the sub-commission was to have an elaborate document which contained all the measure and norms aimed at ensuring the activities of TNC’s are consistent with the protection and promotion of human rights Report of the first session, UN. Doc .E/CN.4/Sub.21/1999/9 para. 11. The working group highlighted the fact that the new code should b binding on TNC’s.s .In the drafting process the intentions was to make the Norms have a binding effect. Yet from the wordings of the resolution adopting it and the commentary, the status of the Norms isn’t clear. Rebbecca M.M Wallace and Martin-Ortega, `The UN Norms:A first step to Universal Regulation Of Transnational Corporations Responsibilties for Human Rights [2004] DLJ304Several issues buttress the non-abidingness of the Norms starting from the wording in the preamble which states that `every effort be made so that they become generally known and accepted’. Furthermore, although the abidingness of the Norms would serve a greater good, it is not a treaty therefore there is no clear legal authority evidenced within the development of international human rights law that makes it binding. The Norms are viewed as an extension of the same fundamental principles of human rights with a different actor in focus which in this case is the TNC. This position have met some criticisms, in Muchlinski’s view it would be a step too far to require firms to become quasi-governmental organisations Muchlinski(n.16)..In my opinion this argument would not stand based o the fact that even the Norms in its preamble recognises the fact that the state is the principal bearer of human rights obligations. The reason for this extension is simply based on the influence and effect of TNC’s and other business enterprises on humanity. The Norms go a long way to assist TNC’s in the formulation of implementation of their own voluntary codes of conduct and generally as a basis for developing international applicable standards UN Doc.E/CN.4/Sub.2/2000/WG.2/wp.1 para 22-24.the working group viewed it as a qualified effort to establish standards for business conduct which would assist TNC’s. . I would wish to agree that the norms can attain possibly attain some degree of compelling compliance if it attains the status of international customary law as Weissbrodts D. Weissbrodt and M.Kuger, `Norms on The Responsibility of Transnational Corporations and Other Business Enterprises with Rgards to Human Rights.[2003]AJIL915 suggest but until then the norm is non-binding but can provide socially responsible TNC’s with a comprehensive frame work of their human rights obligations. The most active NGO groups such as Amnesty International, Human Rights Watch and International commission of Jurist all endorsed the Norms as an appropriate basis upon which to move forward to develop corporate responsibility and accountability Nicholas Howen, `Business, Human Rights And Accountability’ In Henry J. Steiner, Philip Alston and Ryan Goodman,eds., `International Human Rights in Context: Laws, politics and Morals’.(3rd edition,0UO,2008) also Nicholas Howen, former secretary General of the International commission of Jurist describes the Norms as voluntary codes which can only be respected by those who want to respect them. Ibid. He further observes that the norms do not give rise to remedies or rights upon which a violation can give rise to compensation and restitution but merely charity or philanthropy which are voluntary in nature. This is as a result of the fact that the norms don’t have any sanction for violators ibid.. ENFORCEMENT OF HUMAN RIGHTS OBLIGATION OF TRANSNATIONAL CORPORATIONS. The purpose of any regulation is not just for orderliness but also for violators to be held accountable and there are various forms of achieving this through adequate enforcement mechanism. This section will analyse the enforcement mechanism available for the enthronement of human rights obligation of transnational corporations through self-regulation, national and international implementation mechanism. As it will b seen this area still requires development as the current position isn’t encouraging. SELF-REGULATION: This would imply having the TNC’s create their own human rights obligatory frame work to enable adhere to the Norms. This could be in form of guidance notes which reflect their corporate social responsibility; it could also be by means of periodic human rights impact assessment (HRIAs).It has been observed that few firm carry out human rights impact assessment (HRIAs) and only `a handful seem ever to have a fully fledged HRIA. Report of the special representative of The Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie,`Business and Human Rights:Mapping International Standards Of Responsibilty and Accountability for Corporate Acts. UN.Doc. A/HRC/4/35(2007)para77 Self-Regulation a voluntary enforcement mechanism is hardly ever credible and effective because TNC’s are mainly profit based and where there is a conflict between such human rights obligations and monetary gains, the later would take priority. Therefore in terms of accountability we must look at how to ensure compliance from the best as well as the worst corporations. THE NATIONAL LEVEL. It is widely recognised that the states have the primary responsibility to respect, protect and ensure the respect of human rights, this can b achieved by ensuring that national laws are enacted for such purpose. With regards to human rights obligations of TNC’s there has been little achievement in this regard. The situation is worse in developing countries and very much dependent on the form of government in place, whether military dictatorship or a democratic. A classic example is the Ogoni crisis under the Nigerian military government in 1995 which led to the death of Ken-Saro Wiwa, a human rights activist in which Shell petroleum was accused of complicity. This gave rise to the case of kiobel v Shell. Kiobel v Shell...see comments on this case at Muchlinski (n.14) Although there isn’t any particular national legislation in the U.S, U.K or even the E.U that is devoted to the accountability of TNC’s but some attempts have been made which barely materialised. Australian Corporate Code of Conduct Bill 2000,U.S Corporate Code Of Conduct Act HR,4596,106th congress(2000) ,Muchlinski(n.14)There have been some efforts to hold TNC’s accountable not directly through the use of other national laws such as environmental law, corporate criminal responsibility and civil law particularly Torts law. For example is the Alien Claims Tort Act (ACTA) which is a 200 year old act that allows aliens to seek remedy in American courts for tort violations of law of nations. Several cases have been entertained by the American courts under this act but most striking is the case of Owens Wiwa,Ken Wiwa and Blessing Kpuinen v Royal Dutch/Shell .no.96.civ.8386(SDNY,1998). In this case the plaintiffs brought an action against the defendant under the ACTA for violation of their fundamental human rights to life, dignity of human person, in-human and degrading treatment amongst others. This was because of Shell’s complicity in the hanging of Ken-Saro Wiwa and John Kpuinen, the torture and detention of Owens Wiwa and the shooting of a protestor by police officers called by Shell. These atrocities happened because of the resistance of the Ogoni people aginst the damaging activities of Shell in the region. The supreme court upheld the claim against the defendants and declared that the former head of Shell’s Nigerian subsidiary, Brian Anderson could b prosecuted the torture victim protection act. ibid Though it’s difficult to establish involvement of the TNC as was seen in the case of Doe v Unocal 963 F.Supp880,U.S Disr.Ct.CD Cal.25th March,1997.noted in (1998)92AJIL309S where it was established that a corporation can be held liable where indirect violations are established such as giving practical assistance, encouraging or benefiting from the violation. This further goes to buttress the fact that there isn’t any direct liability for TNC’s who violate human rights obligations but state parties have used other forms of law such as civil, environmental and criminal law .Nicholas (n.28) to hold TNC’s accountable. Hence Nicholas observes that `only human rights standard provide a comprehensive normative guide about how humans should be treated’. .ibidThis therefore emphasises that state parties who are dwarfed by the power of TNC’s to rise up to the occasion of their principal responsibility of safe guarding human rights by enacting national law that directly hold TNC’s accountable and would provide adequate enforcement mechanism for any breach of human rights obligation by TNC’s. INTERNATIONAL MECHANISM There is some effort at the international level to implement or enhance the human rights obligation of TNC’s and this is contained in the `general provision and implementation’ section of the Norms. The effectiveness of the norms is dependent on its proper implementation; therefore provisions are made in the Norms for adoption, dissemination and implementation of internal rules in compliance with the Norms. This could be in the form of internal codes and guidelines, also there is provision for a report system which should be sent to all stake holders .How often this is done and the effect of stakeholder contribution is indeed discouraging. ........ The above methods may seem like self-regulation but their monitoring by stake holders makes it an international mechanism .Such stakeholders like U.N working committee, Sub-commission, and IGO’s. CONCLUSION. It has been well established that Transnational Corporations have human rights obligations as contained in the Norms and other relevant instruments. This paper has made it clear that despite the documentation of these obligations the challenge lie in the enforcement mechanisms. This has proved so challenging under self-regulation, national and international levels. It must be borne in mind as Nicola emphasises the fact that the inability for a victim of human rights violation to bring legal action against a TCN for a violation of its human rights obligation should not b a test for the existence of such obligation. Nicola (n.7) Though some efforts have been made by enforcing human rights obligations on TNC’s through the back door by reliance on other areas of law but the fact still remains that only human rights law can provide a proper frame work for human rights obligation and the accountability of TNC’s for such violation. A recently conducted opinion poll provides that 8-10 people amongst 21,000 respondents in 20 industrial countries and emerging markets assign to large companies at least part of the duty to reduce the number of human rights abuses in the world. Nicholas Howen (n.28) This emphasises the effect of TNC’s on humanity and the need for international legally binding instrument which directly imposes obligation on Transnational Corporation. Even though there exist no binding instrument on the human rights obligation of TNC’s, there should still be some pressure to comply with the Norms because individual companies would b exposed to public opinion and scrutiny especially if there is active monitoring by IGO’s, NGO’s, The Sub-Commission and The Working Committee. It clear that as a result of the enormous challenges in terms of enforcement, no single mechanism provides the answer, hence there is the need for a more comprehensive approach. This would require willingness on the part of TNC’s to improve their self-regulation mechanisms through adequate and regular human rights impact assessment, while at the national and international levels there should b enactment of national and international laws for direct accountability of TCN’s for human rights violations. Furthermore, TNC’S should be required by states to submit reports on the impact of its activities on human rights and where states are not diligent in this regard, personal complaint to the commission should prove effective of a states lack of due diligence. This would further put the required pressure on TCN’s to respect, protect and fulfil their human rights obligations. Nicola (n.7)