Draft Commentary on the Norms of Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/XX, E/CN.4/Sub.2/2003/WG.2/WP.1 (for comments until January 15, 2003, and for discussion in July/August 2003).
DRAFT COMMENTARY 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, and 55, 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,
Recognizing that even though States have the primary responsibility to promote 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 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, 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,
Aware of the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises and its Committee on International Investment and Multinational Enterprises; 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; and the ILO Declaration on Fundamental Principles and the Rights at Work,
Conscious of the efforts of the ILO Committee on International Investment and Multinational Enterprises; the interpretation of standards by the Subcommittee on Multinational Enterprises of the Committee on Legal Issues and International Labour Standards of the ILO Governing Body, 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 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 Responsibilities,
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 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 human rights obligations and responsibilities and that these human rights responsibilities will contribute to the making and development of international law as to their responsibilities and obligations,
Solemnly proclaims these norms of Human Rights Responsibilities for Transnational Corporations and Other Business Enterprises 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 respect, ensure respect for, prevent abuses of, and promote 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 respect, ensure respect for, prevent abuses of, and promote human rights recognized in international as well as national law.
Commentary
a. This paragraph reflects the primary approach of the Human Rights Responsibilities and the remainder of the Responsibilities shall be read in light of this paragraph. The obligation of transnational corporations and other business enterprises under these Responsibilities applies equally to activities occurring in the home country of the transnational corporation or other business enterprise, and in any country in which the business is engaged in activities.
b. Transnational corporations and other business enterprises shall inform themselves of the human rights impact of their principal activities and major proposed activities so that they can avoid complicity in human rights abuses. Transnational corporations and other business enterprises shall have the responsibility to ensure that their activities do not contribute directly or indirectly to human rights abuses, and that they do not knowingly benefit from these abuses. Transnational corporations and other business enterprises shall further refrain from activities that would undermine the rule of law as well as governmental and other efforts to promote and ensure respect for human rights, and shall use their influence in order to help promote and ensure respect for human rights. The Responsibilities may not be used by States as an excuse for failing to take action to protect human rights, for example, through the enforcement of existing laws.
B. Right to Equal Opportunity and Non-Discriminatory Treatment
2. Transnational corporations and other business enterprises shall ensure equality of opportunity and treatment, for the purpose of eliminating discrimination based on race, colour, sex, religion, political opinion, nationality, 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 individual's ability to perform his/her job.
Commentary
a. Transnational corporations and other business enterprises shall treat each worker with equality, respect, and dignity. Examples of the other sorts of status as to which discrimination should be eliminated are health status, marital status, capacity to bear children, pregnancy, and sexual orientation. No worker shall be subject to direct or indirect physical, sexual, racial, psychological, verbal, or any other discriminatory form of harassment or abuse as defined above. No worker shall be subject to intimidation or degrading treatment; or be disciplined without fair procedures. Transnational corporations and other business enterprises shall establish a work environment in which it is clear that such discrimination will not be tolerated.
b. Discrimination means any distinction, exclusion, or preference made on the above stated bases, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. All policies of transnational corporations and other business enterprises, including, but not limited to those relating to recruitment, hiring, discharge, pay, promotion, and training shall be non-discriminatory. Special measures designed to meet the particular requirements of some workers, or to overcome past discrimination against certain groups, shall be allowed in this context.
c. Particular attention should be devoted to the consequences of business activities that may affect the rights of women and particularly in regard to conditions of work.
d. Transnational corporations and other business enterprises shall treat other stakeholders, such as indigenous peoples and communities, with respect and dignity, and on a basis of equality.
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, other violations of humanitarian law, and other international crimes against the human person as defined by international law.
Commentary
a. Transnational corporations and other business enterprises, which produce and/or supply military, security, or police products/services, shall take stringent steps to prevent those products and services from being used to commit human rights or humanitarian law violations and to comply with evolving best practices in this regard.
b. Transnational corporations and other business enterprises shall not produce or sell weapons that have been declared illegal under international law. Transnational corporations and other business enterprises shall not engage in trade that is known to lead to human rights or humanitarian law violations.
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.
Commentary
a. Transnational corporations and other business enterprises, their officers, workers, subcontractors, and agents shall observe international human rights standards, particularly the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Rome Statute of the International Criminal Court; the U.N. Principles on the Use of Force and Firearms; and the U.N. Code of Conduct for Law Enforcement Officers, to the extent applicable; and emerging best practices developed by the industry, civil society, and governments.
b. Business security arrangements shall be used only for preventive or defensive services and they shall not be used for activities that are exclusively the responsibility of the State military or law enforcement services. Security personnel shall only use force when strictly necessary and only to an extent proportional to the threat.
c. Security personnel shall not violate the rights of individuals while exercising the rights to freedom of association and peaceful assembly, to engage in collective bargaining, or to enjoy other related rights of workers and employers, such as recognized by the International Bill of Human Rights and the ILO Declaration on Fundamental Principles and Rights at Work.
d. Transnational corporations and other business enterprises shall establish policies against hiring individuals or working with units of State security forces or contract security firms that are known to have been responsible for human rights or humanitarian law violations. Transnational corporations and other business enterprises shall ensure that guards in their employ are adequately trained and guided by the relevant international limitations and that the guards use caution with regard, for example, to the use of force and firearms. If a transnational corporation or other business enterprise contracts with a State security force or a private security firm, the relevant provisions of these Human Rights Responsibilities (paragraphs 3 and 4 as well as the related commentary) shall be incorporated in the contract and at least those provisions should be made available upon request to stakeholders in order to assure compliance.
e. Transnational corporations and other business enterprises using public security forces shall consult regularly with host governments and, where appropriate, nongovernmental organizations and communities, concerning the impact of their security arrangements on local communities. Transnational corporations and other business enterprises shall communicate their policies regarding ethical conduct and human rights, and insist that security be provided in a manner consistent with those policies by personnel with adequate and effective training.
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 law.
Commentary
a. Transnational corporations and other business enterprises shall not use forced or compulsory labour, as forbidden in ILO Conventions 29 and 105 and other relevant international human rights instruments. Workers shall be recruited, paid, and provided with working conditions, including wages, that will allow them to avoid debt bondage and other contemporary forms of slavery.
b. Workers shall have the option to leave employment and the employer must facilitate such departure by providing all the necessary documentation and assistance.
c. Employers shall have resort to prison labour only in the conditions spelled out in ILO Convention No. 29, which allows such labour only if the prisoners concerned have been convicted in a court of law, take part voluntarily in employment for private undertakings, and under the supervision and control of a public authority.
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 law.
Commentary
a. Economic exploitation of children includes employment or work in any occupation before a child completes compulsory schooling and, in any case, before the child reaches 15 years of age. Economic exploitation also includes the employment of children in a manner that is harmful to their health or development, will prevent the children from attending school or performing school-related responsibilities, or otherwise is not consistent with human rights standards such as 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. Economic exploitation does not include work done by children in schools for general, vocational, or technical education or in other training institutions.
b. Transnational corporations and other business enterprises shall not employ any person under the age of 18 in any type of work that by its nature or circumstances is hazardous, interferes with the child's education, or is carried out in a way likely to jeopardize the health, safety, or morals of young persons.
c. Transnational corporations and other business enterprises may employ persons ages 13 to 15 years in light work if national laws or regulations permit. Light work is defined as work which is not likely to be harmful to the health or development of the child, and will not prejudice the school attendance, participation in vocational orientation, training programmes approved by competent authority, or the child's capacity to benefit from the instruction received.
d. Transnational corporations and other business enterprises using child labour must create and implement a plan to eliminate child labour. Such a plan should assess what will happen to children who are no longer employed in the business and include measures such as withdrawing children from the workplace in tandem with the provision of suitable opportunities for schooling, vocational training, and other social protection for the children and their families, for example, by employing the parents or older siblings or engaging in other measures consistent with ILO Recommendations 146 and 190.
7. Transnational corporations and other business enterprises shall provide a safe and healthy working environment as provided by the relevant international instruments and national legislation as well as international human rights law.
Commentary
a. Transnational corporations and other business enterprises shall provide a safe and healthy working environment in accordance with the national requirements of the countries in which they are located and with international standards such as those found in the International Covenant on Economic, Social and Cultural Rights; ILO Conventions 115 (Radiation Protection Convention), 119 (Guarding of Machinery Convention), 120 (Hygiene (Commerce and Offices)), 127 (Maximum Weight Convention), 136 (Benzene Convention), 139 (Occupational Cancer), 148 (Working Environment (Air Pollution, Noise and Vibration) Convention), 155 (Occupational Safety and Health Convention), 161 (Occupational Health Services Convention), 162 (Asbestos Convention), 167 (Safety in Construction Convention), 170 (Chemicals Convention), 174 (Prevention of Major Industrial Accidents Convention), 176 (Safety and Health in Mines Convention), and other relevant recommendations; as well as ensuring their application under ILO Conventions 81 (Labour Inspection Convention), 129 (Agriculture Labour Inspection Convention), 135 (Workers' Representatives Convention), and their successor conventions. Such a safe and healthy work environment shall aid in the prevention of accidents and injuries arising out of, linked with, or occurring within the course of work. Transnational corporations and other business enterprises shall also take into account the particular needs of migrant workers as set forth in ILO Convention 143 (Treatment of Migrant Workers) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.
b. Consistent with paragraph 16(a), transnational corporations and other business enterprises shall make available information about the health and safety standards relevant to their local activities. The information shall also include arrangements for training in safe working practices and details on the effects of all substances used in manufacturing processes. In particular and additionally consistent with paragraph 15(e), transnational corporations and other business enterprises shall make known any special hazards that tasks or conditions of work involve and the related measures available to protect the workers.
c. Transnational corporations and other business enterprises shall provide, where necessary, measures to deal with emergencies and accidents, including first-aid arrangements. They also shall provide at their expense personal protective clothing and equipment when necessary. Further, they shall incur expenses for occupational health and safety measures.
d. Transnational corporations and other business enterprises shall consult and cooperate fully with health, safety, and labour authorities; workers' representatives and their organizations; and established safety and health organizations on matters of occupational health and safety. They shall examine the causes of safety and health hazards in their industry and work to implement improvements and solutions to those conditions, including the provision of safe equipment at least consistent with industry standards. Further, they shall monitor the working environment and the health of workers liable to exposure to specified hazards and risks. Transnational corporations and other business enterprises shall investigate work-related accidents, keep records of incidents stating their cause and remedial measures taken to prevent similar accidents, and otherwise act in accordance with paragraph 16(e).
e. Consistent with paragraph 16(e), transnational corporations and other business enterprises shall also respect: (1) the right of workers to remove themselves from work situations in which there is a reasonable basis to be concerned about present, imminent, and serious danger to life or health; (2) not subject them to consequences as a result; and further (3) not require them to return to work situations as long as the condition continues.
f. Transnational corporations and other business enterprises shall not require any worker to work more than 48 hours per week or more than 10 hours in one day. Voluntary overtime for workers should not exceed 12 hours per week and should not be expected on a regular basis. Compensation for such overtime should be at a rate higher than the normal rate. Each worker should be given at least one day off in every seven-day period. These protections may be adjusted to meet the different needs of management personnel and professionals who have clearly indicated their personal desire to work more hours.
8. Transnational corporations and other business enterprises shall compensate 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.
Commentary
a. Transnational corporations and other business enterprises shall compensate workers for work done or to be done with fair and reasonable remuneration, freely agreed upon or fixed by national laws or regulations, payable regularly and at short intervals in legal tender, so as to ensure an adequate standard of living for workers and their families, and in a manner consistent with international standards, such as ILO Convention 95 (Protection of Wages).
b. Transnational corporations and other business enterprises shall not deduct from a worker's wages already earned for disciplinary measures; nor shall any deduction from wages be permitted under conditions or to an extent other than prescribed by national laws or regulations, or fixed by a collective agreement or arbitration award.
c. Transnational corporations and other business enterprises shall keep detailed written records on each worker's hours of work and wages paid. Workers shall be informed in an appropriate and easily understandable manner before they enter employment and when any changes take place as to the conditions in respect of wages, salaries, and additional emoluments under which they are employed. At the time of each payment of wages, workers shall receive a wage statement informing them of such particulars relating to the pay period concerned as to the gross amount of wages earned, any deduction which may have been made including the reasons therefore, and the net amount of wages due.
d. Transnational corporations and other business enterprises shall not limit in any manner the freedom of workers to dispose of their wages; nor shall they exert any coercion on workers to make use of company stores or services, where such stores exist. In cases in which the partial payment of wages in the form of allowances in kind is authorized by national laws or regulations, collective agreements, or arbitration awards, transnational corporations and other business enterprises shall ensure that such allowances are appropriate for the personal use and benefit of workers and their families and that the value attributed to such allowances is fair and reasonable.
e. In determining a wage policy and rates of remuneration, transnational corporations and other business enterprises shall ensure the application of the principle of equal remuneration for work of equal value and the principle of equality of opportunity and treatment in respect of employment and occupation, in accordance with international standards such as ILO Conventions 100 (Equal Remuneration) and 111 (Employment and Occupation).
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 the relevant ILO conventions.
Commentary
a. Transnational corporations and other business enterprises shall recognize workers' and employers' freedom of association consistent with ILO Convention 87 (Freedom of Association) and other international human rights law. They shall recognize the rights of workers' organizations to draw up their constitutions and rules, to elect their representatives, to organize their administration and activities, and to formulate their programmes. Further, they shall refrain from discriminating against workers by reason of trade union membership or participation in trade union activities, and shall refrain from any interference that restricts these rights or impedes their lawful exercise.
b. Transnational corporations and other business enterprises shall recognize workers' organizations for the purpose of collective bargaining consistent with ILO Convention 98 (Right to Collective Bargaining) and other international human rights law. They shall respect the right of workers to strike; submit grievances, including grievances as to compliance with these Responsibilities, to fair and impartial persons who have the authority to redress any abuses found; and to be protected from suffering prejudice for using those procedures.
c. Transnational corporations and other business enterprises shall enable representatives of their workers to conduct negotiations on their terms and conditions of employment with representatives of management who are authorized to make decisions about the issues under negotiation. They shall further give workers and their representatives access to information, facilities, and other resources, as consistent with international standards such as ILO Convention 135 (Workers' Representatives Convention) and Recommendation 129 (Communications between Management and Workers) that are relevant and necessary for their representatives to conduct negotiation effectively and without unnecessary harm to legitimate employer interests.
d. Transnational corporations and other business enterprises shall abide by provisions in collective bargaining agreements that provide for the settlement of disputes arising over their interpretation and application and also by decisions of tribunals or other mechanisms empowered to make determinations on such matters. They shall ensure that the existence of workers' representatives does not undermine the position of the union, established consistent with international standards, and that workers' representatives are entitled to bargain collectively only where there is no such union in the company.
e. Transnational corporations and other business enterprises shall take particular care to protect the rights of workers from procedures in countries that do not fully implement international standards regarding the freedom of association, the right to organize, and the right to bargain collectively.
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; development objectives; social, economic, and cultural policies including transparency, accountability, and prohibition of corruption; and authority of the countries in which the enterprises operate.
Commentary
a. Transnational corporations and other business enterprises, within the limits of their resources and capabilities, shall endeavour to encourage social progress and development by expanding economic opportunities - particularly in developing countries and most importantly in the least developed countries.
b. Transnational corporations and other business enterprises shall respect the right to development in which all peoples are entitled 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 and in which sustainable development can be achieved so as to protect the rights of future generations.
c. Transnational corporations and other business enterprises shall respect the rights of local communities affected by their activities and the rights of indigenous peoples and communities consistent with international human rights standards such as ILO Convention 169 (Indigenous and Tribal Peoples). They shall particularly respect the rights of indigenous peoples and similar communities to own, occupy, develop, control, protect, and use their lands, other natural resources, and cultural and intellectual property. Indigenous peoples and communities may not be deprived of their own means of subsistence. Further, they shall avoid endangering the health, environment, culture, and institutions of indigenous peoples and communities in the context of projects, including road building in or near indigenous peoples and communities. Transnational corporations and other business enterprises shall use particular care in situations in which indigenous lands, resources, or rights thereto have not been adequately demarcated or defined.
d. Transnational corporations and other business enterprises shall protect and enforce intellectual property rights in a manner that contributes to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge, in a manner conducive to social and economic welfare, such as the protection of public health, and to a balance of rights and obligations.
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, 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.
Commentary
a. Transnational corporations and other business enterprises shall enhance the transparency of their activities in regard to payments made to governments and public officials; openly fight against bribery, extortion, and other forms of corruption; and cooperate with State authorities responsible for combating corruption.
b. Transnational corporations and other business enterprises shall not receive payment, reimbursement, or other benefit in the form of natural resources without the approval of the recognized government of the State of origin of such resources.
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; education; freedom of thought, conscience, and religion; and freedom of opinion and expression; and refrain from actions which obstruct the realization of those rights.
Commentary
a. Transnational corporations and other business enterprises shall observe standards that promote the availability, accessibility, acceptability, and quality of the right to health, for example as identified in Article 12 of the Covenant on Economic, Social and Cultural Rights, the General Comment on the right to the highest attainable standard of health, and the relevant standards established by the WHO.
b. Transnational corporations and other business enterprises shall observe standards which promote the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, acceptable within a given culture, accessible in ways that are sustainable and do not interfere with the enjoyment of other human rights, and otherwise in accordance with international standards such as Article 11 of the Covenant on Economic, Social and Cultural Rights, and the General Comment on the right to adequate food.
c. Transnational corporations and other business enterprises shall further observe standards which protect the right to adequate housing and are otherwise in accordance with Article 11 of the Covenant on Economic, Social and Cultural Rights, and the General Comments on the right to adequate housing and forced evictions. Transnational corporations and other business enterprises shall not forcibly evict individuals, families, and/or communities against their will from their homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection pursuant to international human rights law.
d. Transnational corporations and other business enterprises shall observe standards that protect other economic, social and cultural rights and are otherwise in accordance with the Covenant on Economic, Social and Cultural Rights, and the relevant General Comments, paying particular attention to the implementation norms stated in paragraphs 16 (g) and (i).
e. Transnational corporations and other business enterprises shall observe standards that protect civil and political rights and are otherwise in accordance with the Covenant on Civil and Political Rights and the relevant General Comments.
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. Nor shall they produce, distribute, market, or advertise potentially harmful or harmful products for use by consumers.
Commentary
a. Transnational corporations and other business enterprises shall adhere to the relevant international standards of business practices regarding competition and anti-trust, such as the UNCTAD Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Business Practices. A transnational corporation or other business enterprise shall encourage the development and maintenance of fair, transparent, and open competition by not entering into arrangements with competing businesses to either directly or indirectly fix prices, divide territories, or create monopoly positions.
b. Transnational corporations and other business enterprises shall observe relevant international standards for the protection of consumers, such as the U.N. Guidelines for Consumer Protection, and relevant international standards for the promotion of specific products, such as the WHO International Code of Marketing of Breast-milk Substitutes and the WHO Ethical Criteria for Medical Drug Promotion. Transnational corporations and other business enterprises shall ensure that all marketing claims are independently verifiable, satisfy reasonable and relevant legal levels of truthfulness, and are not misleading. Further, they shall not target children when advertising potentially harmful products.
c. Transnational corporations and other business enterprises shall ensure that all goods and services they produce, distribute, or market are capable of use for the purposes claimed, safe for intended and reasonably foreseeable uses, and regularly monitored and tested to ensure compliance with these standards. They shall adhere to relevant international standards so as to avoid variations in the quality of products that would have detrimental effects on consumers, especially in States lacking specific regulations on product quality.
d. Any information provided by a transnational corporation or other business enterprise with regard to the purchase, use, content, maintenance, storage, and disposal for its products and services shall be provided in a clear, comprehensible, and prominently visible manner and in the language officially recognised by the country in which such products or services are provided. Transnational corporations and other business enterprises, when appropriate, shall also provide information regarding the appropriate recycling, re-usability, and disposal of its products and services.
e. Consistent with paragraph 15(e), where a product is potentially harmful to the consumer, transnational corporations and other business enterprises shall disclose all appropriate information on the contents and possible hazardous effects of the products they produce through proper labeling, informative and accurate advertising, and other appropriate methods. In particular, they shall warn if death or serious injury is probable from a defect, use, or misuse. Transnational corporations and other business enterprises shall supply appropriate information of potentially harmful products to the relevant authorities. This information shall include the characteristics of products or services that may cause injury to the health and safety of consumers, workers, or others, and information regarding restrictions, warnings, and other regulatory measures imposed by several countries as to these products or services on the grounds of health and safety protection.
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; and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development.
Commentary
a. Transnational corporations and other business enterprises shall respect the right to a clean and healthy environment in light of the relationship between the environment and human rights; concerns for inter-generational equity; and internationally recognized environmental standards, for example, with regard to air pollution, water pollution, land use, biodiversity, and hazardous wastes.
b. Transnational corporations and other business enterprises shall be responsible for the environmental and human health impact of all of their activities, including any products or services they introduce into commerce, such as packaging, transportation, and by-products of the manufacturing process.
c. Consistent with 16(i), in decision-making processes and on a periodic basis (preferably annually or biannually), transnational corporations and other business enterprises shall assess the impact of their activities on the environment and human health including impacts from siting decisions; natural resource extraction activities; the production and sale of products or services; and the generation, storage, transport, and disposal of hazardous and toxic substances. Transnational corporations and other business enterprises shall ensure that the burden of negative environmental consequences shall not fall on vulnerable racial, ethnic, and socio-economic groups.
d. Assessments shall, inter alia, address particularly the impact of proposed activities on certain groups, such as children, older persons, indigenous peoples and communities (particularly in regard to their land and natural resources), and/or women. Transnational corporations and other business enterprises shall distribute such reports in a timely manner and in a manner that is accessible to the United Nations Environmental Programme, the International Labour Organization, other interested international bodies, the national government hosting each company, the national government where the business maintains its principal office, and other affected groups. The reports shall be accessible to the general public.
e. Transnational corporations and other business enterprises shall respect the prevention principle, for example, by preventing and/or mitigating deleterious impacts identified in any assessment. They shall respect the precautionary principle, which indicates, for example, that when preliminary risk assessments indicate unacceptable effects on health or the environment. Further, they shall not use the lack of full scientific certainty as a reason to delay the introduction of cost-effective measures intended to prevent such effects.
f. Upon the expiration of the useful life of their products or services, transnational corporations and other business enterprises shall ensure effective means for collecting or arranging for the collection of the remains of the product or services for recycling, re-use, and/or environmentally responsible disposal.
g. Transnational corporations and other business enterprises shall take appropriate measures in their activities to reduce the risk of accidents and damage to the environment by adopting best management practices and technologies. In particular, they shall use best management practices and appropriate technologies and enable their component entities to meet these environmental objectives through the sharing of technology, knowledge, and assistance, as well as through environmental management systems, sustainability reporting, and reporting of anticipated or actual releases of hazardous and toxic substances. In addition, they shall educate and train workers to ensure their compliance with these objectives.
H. General Provisions of Implementation
15. As an initial step towards implementing these Human Rights Responsibilities, each transnational corporation or other business enterprise shall adopt, disseminate, and implement internal rules of operation in compliance with these Responsibilities. Further, they shall take other measures fully to implement these Human Rights Responsibilities and to provide at least for the prompt implementation of the protections set forth in these Responsibilities. Each transnational corporation or other business enterprise shall apply and incorporate these Responsibilities in their contracts or other arrangements and dealings with contractors, sub-contractors, suppliers and licensees in order to ensure their implementation and respect.
Commentary
a. Each transnational corporation or other business enterprise shall disseminate its internal rules of operation or similar measures, as well as implementation procedures, and make them available to all relevant stakeholders. The internal rules of operation or similar measures shall be communicated in oral and written form in the language of workers, trade unions, contractors, suppliers, customers, and other stakeholders of the transnational corporation or other business enterprise.
b. Once internal rules of operation or similar measures have been adopted and disseminated, transnational corporations and other business enterprises shall - to the extent of their resources and capabilities - provide effective training for their managers as well as workers and their representatives in practices relevant to the Responsibilities.
c. Transnational corporations and other business enterprises shall endeavour to assure that they only do business with (including purchasing from and selling to), contractors, subcontractors, suppliers, and licensees who follow these or substantially similar Responsibilities. Transnational corporations and other business enterprises using or considering entering into business relationships with distributors, agents, etc. that do not comply with the Responsibilities shall initially work with them to reform or decrease these violations, but if they will not change, the business shall cease doing business with them.
d. Transnational corporations and other business enterprises shall enhance the transparency of their activities by disclosing timely, relevant, regular, and reliable information regarding their activities, structure, financial situation, and performance. They shall also make known the location of their offices, subsidiaries, and factories, so as to facilitate measures to assure that the businesses' products and services are being produced under conditions that respect these Responsibilities.
e. Transnational corporations and other business enterprises shall inform in a timely manner everyone who may be affected by conditions caused by the enterprise that might endanger health, safety, or the environment.
f. Each transnational corporation or other business shall endeavour to improve continually its further implementation of these Responsibilities.
16. Transnational corporations and other businesses enterprises shall be subject to periodic monitoring by national, international, governmental, and/or nongovernmental mechanisms regarding their application of the Human Rights Responsibilities. This monitoring shall be transparent, independent, and take into account input from stakeholders, including complaints of violations of these Responsibilities. Further, transnational corporations and other businesses enterprises shall conduct periodic evaluations concerning the impact of their own activities on human rights under these Responsibilities.
Commentary
a. These Human Rights Responsibilities shall be monitored and implemented through amplification and interpretation of intergovernmental, regional, national, and local standards with regard to the conduct of transnational corporations and other business enterprises. Governments should implement and monitor the use of the Responsibilities by using them as a model for legislation or administrative provisions with regard to the activities of each enterprise doing business in their country, including through the use of labour inspections.
b. United Nations human rights treaty bodies should monitor implementation of these Human Rights Responsibilities through the creation of additional reporting requirements by States and general comments and recommendations to interpret treaty obligations. The U.N. and its specialized agencies should also monitor implementation by using the Responsibilities as the basis for procurement determinations as to which products and services to purchase and with which transnational corporations and other business enterprises to develop partnerships in the field. Country rapporteurs and thematic procedures of the U.N. Commission on Human Rights should monitor implementation by using the Responsibilities and other relevant international standards for raising concerns about actions by transnational corporations and other business enterprises within their respective mandates. The U.N. Commission on Human Rights should consider establishing a group of experts, Special Rapporteur, or working group of the Commission to receive information and take effective action when businesses fail to comply with the Responsibilities. The Sub-Commission on the Promotion and Protection of Human Rights and its relevant Working Group should also monitor compliance with the Responsibilities and developing best practices by receiving information from NGOs or interested individuals and then by allowing transnational corporations or other business enterprises an opportunity to respond. Further, the Sub-Commission, its Working Group, and other U.N. bodies are invited to develop additional techniques for implementing and monitoring these Responsibilities and other effective mechanisms.
c. Trade unions are encouraged to use the Human Rights Responsibilities as a basis for negotiating agreements with transnational corporations and other business enterprises and monitoring compliance of these entities. NGOs are also encouraged to use the Responsibilities as the basis for their expectations of the transnational corporation or other business enterprise's conduct and monitoring compliance. Further, monitoring could take place by using the Responsibilities as the basis for benchmarks of ethical investment initiatives and for other benchmarks of compliance. The Responsibilities shall also be monitored through industry groups.
d. Transnational corporations and other business enterprises shall endeavor to ensure the monitoring process is transparent, for example, by making available to relevant stakeholders the workplaces observed, remediation efforts undertaken, and other results of monitoring. They shall further ensure that any monitoring seeks to obtain and incorporate input from relevant stakeholders.
e. Transnational corporations and other business enterprises shall provide legitimate and confidential avenues through which workers can file complaints with regard to violations of these Responsibilities. To the extent possible, they shall make known to the complainant any actions taken as a result of the investigation. Further, they shall not discipline or take other action against workers or others who submit complaints or assert that any company has failed to comply with these Responsibilities.
f. Transnational corporations and other business enterprises receiving claims of violations of these Responsibilities shall make a record of each claim and obtain an independent investigation of the claim or call upon other proper authorities. They shall actively monitor the status of investigations, press for their full resolution, and take action to prevent recurrences.
g. Each transnational corporation or other business enterprise shall engage in an annual or other periodic assessment of its compliance with the Responsibilities taking into account comments from stakeholders and any applicable emerging standards. In particular, they shall consult with and encourage the participation of indigenous peoples and communities to determine how to best respect their rights. The results of the assessment shall be made available to stakeholders to the same extent as the annual report of the transnational corporation or other business enterprise.
h. Assessments revealing inadequate compliance with the Responsibilities shall also include plans of action or methods of reparations and redress that the transnational corporation or other business enterprise will pursue in order to fulfill the Responsibilities. See also paragraph 17.
i. Before a transnational corporation or other business enterprise pursues a major initiative or project, it shall, to the extent of its resources and capabilities, study the human rights impact of that project in light of these Responsibilities. The impact statement shall 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 consequences. A transnational corporation or other business enterprise shall make available the results of that study to relevant stakeholders, and shall consider any reactions from stakeholders.
17. Transnational corporations and other business enterprises shall provide prompt, effective, and adequate reparation to those persons, entities, and communities who have been adversely affected by failures to comply with these Responsibilities 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 Responsibilities shall be enforced by national courts.
18. Nothing in these Human Rights Responsibilities 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, or adversely affecting more protective human rights norms.
Commentary
a. This savings clause is intended to assure that transnational corporations and other business enterprises will pursue the course of conduct that is the most protective of human rights - whether found in these Human Rights Responsibilities or in other relevant sources. If more protective standards are recognized or emerge in international or State law or in industry or business practices, those more protective standards shall be pursued. This savings clause is styled after similar savings clauses found in such instruments as the Convention on the Rights of the Child, Art. 41. This provision and similar references in the Responsibilities to national and international law are also based upon the Vienna Convention on the Law of Treaties, Art. 27, in that a State may not invoke the provisions of its internal law as justification for its failure to comply with a treaty, the Responsibilities, or other international law norms.
b. Transnational corporations and other business enterprises are encouraged to express their own commitment to respecting, ensuring respect for, preventing abuses of, and promoting internationally recognized human rights by adopting their own internal human rights rules of operation which are even more conducive to the promotion and protection of human rights than those contained in these Responsibilities.
I. Definitions
19. 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.
20. 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 Responsibilities 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.
21. 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 the business. The term "stakeholder" should be interpreted functionally in light of the objectives of these Human Rights Responsibilities 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 businesses such as consumer groups, customers, governments, neighboring communities, indigenous peoples and communities, NGOs, public and private lending institutions, suppliers, trade associations, and others.
22. The terms "contractor," "subcontractor," "supplier," and "licensee" include any natural or legal person who enters into any agreement with the transnational corporation or business enterprise to accomplish the enterprise's activities.
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.
1. http://hrlibrary.law.umn.edu/links/subcomres2002-81.htm
2. http://hrlibrary.law.umn.edu/undocs/businessresponsibilities2002.html
3. http://hrlibrary.law.umn.edu/links/tncreport-2002.html
4. http://hrlibrary.law.umn.edu/PrinciplesWithCommentary5final.html
5. http://hrlibrary.law.umn.edu/links/tncreport-2002.html