Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/1.5
1.5 Terminology, framing CSR, international norms and private actors
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS371865:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
The term ' Peace of Westphalia' denotes the two peace treaties of Osnabrück (15 May 1648) and Münster (24 October 1648) that ended the Thirty Years' War (1618-1648) in the Holy Roman Empire, and the Eighty Years' War (1568-1648) between Spain and the Republic of the Seven United Netherlands. It marks the beginning when States recognised each other's independence (in theory). It legitimised a patchwork quilt of independence in Europe. The Principle of internal sovereignty' began to take form as well as a new concept of international law and diplomacy.
UN Kyoto Protocol to the UN Framework Convention on Climate Change, 1998, at: http://unfccc.int/resource/docs/convkp/kpeng.pdf, accessed on 30 May 2010.
The OECD is an international organisation of 30 countries. It originated in 1948 as the Organisation for European Economic Co-operation (OEEC) for the reconstruction of Europe after World War II. Later, its membership was extended to non-European States. In 1961, it was reformed into the 'Organisation for Economic Co-operation and Development' by the Convention on the Organisation for Economic Co-operation and Development. Its mission is to help its member countries to achieve sustainable economic growth and employment, and to raise the standard of living in member countries while maintaining financial stability - all this in order to contribute to the development of the world economy. See: www.oecd.org/pages/0,3417,en_36734052_36761800_1_1_1_1_1,00.htm, accessed on 2 May 2009.
The Council of Europe is an international organisation, founded in 1949, that seeks to develop throughout Europe common and democratic principles based on the European Convention on Human Rights and other reference texts on the protection of individuals. See: http://www.coe.int/DefaultEN.asp, visited on 1 June 2010.
Although various authors have tried to argue that MNCs should be considered direct subjects of international law (subject to rights and subject to duties), so far, the general opinion is that - although companies are certainly expected to comply with certain international ius cogens norms because of their peremptory character - companies cannot be regarded as a subject upon which international law can be directly enforced, with due regard to a few exceptions, see e.g. N. Jägers, Corporate Human Rights Obligations: in Search of Accountability, (Intersentia: Antwerp, 2002), p. 27, who explains that MNCs can be considered subjects of procedural rights under international law, i.e. companies can bring a claim to enforce their substantive rights. She points to the Convention establishing the International Centre for the Settlement of Investment Disputes (ICSID), drawn up under auspices of the World Bank, which recognises companies as subject of international law (see article 25(1) and (2) b ICSID. See also R. Lubbers, W. van Genugten, T.E. Lambooy, Inspiration for Global Governance - The Universal Declaration of Human Rights and the Earth Charter (Kluwer: Deventer, 2008), pp. 55-56. Further, reference is made to chapter 9.3 which contains a discussion on the discourse of some of the leading authors in this field.
The ultimate objective of the UN Framework Convention on Climate Change, which was approved by the EU Council Decision 94/69/EC, is to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level which prevents dangerous anthropogenic interference with the climate system. The Kyoto Protocol was approved by EU Council ! Decision 2002/358/EC including the commitment thereunder by the EU and its Member States to jointly reducing their aggregate anthropogenic emissions ofgreenhouse gases listed in Annex A to the Protocol by 8 per cent compared to 1990 levels in the period 2008 to 2012. EU Directive 2003/78/EC on carbon emission trading aims to contribute to fulfilling this commitment more effectively, through establishing an efficient European market in greenhouse gas emission allowances. In January 2005 the EU Greenhouse Gas Emission Trading System commenced operation.
Articles 8.1 and 8.2 refer to companies.
A. Clapham, ' MNCs under International Criminal Law', in Kamminga, M.T. and Zia-Zarifi, S. (eds.) (2000), Liability of Multinational Corporations under International Law, Kluwer: The Hague, p. 241; A. Clapham, Human Rights Obligations ofNon-State Actors, Oxford University Press: Oxford, p. 241.
See e.g. EU Regulation (1907/2006) which, amongst other things, obliges companies to supply product information to consumers. See chapter 8 on this subject matter.
WHO, The Global Annual Assessment of Sanitation and Drinking-Water, 2010 (GLAAS) and WHO, Fact files on water, at http://www.who.int/features/factfiles/water/water_facts/en/index2.html, accessed on 28 April 2010.
See: The Third Global Biodiversity Outlook (GBO-3, 2010), which warned that some ecosystems may soon reach tipping points' where they rapidly become less useful to humanity, e.g. rapid dieback of forest, algal takeover of watercourses and mass coral reef death. The GBO is a publication of the CBD. Drawing on a range of information sources, including National Reports, biodiversity indicators information, scientific literature, and a study assessing biodiversity scenarios for the future, it summarises the latest data on status and trends in biodiversity and draws conclusions for the future strategy of the Convention, available at: http://gbo3.cbd.int/, accessed on 23 May 2010.
Stand Up For Your Rights, Report - The Human Side of Climate Change, at www.sufyr.org, accessed on 30 May 2010.
R. Lubbers, W. van Genügten, T.E. Lambooy, supra note 51, pp. 25-26, 55-56.
The subject matter of CSR has to do with the governance of companies, especially MNCs, which are often claimed to be uncontrollable. Hence, a brief look at the applicability of laws to MNCs will be of use.
The international legal system consists of international law applicable to States and national law that governs the subjects and activities within those States. International legal norms can be found in case law issued by international courts of law, customary law, and treaties concluded between States. National sources of law can differ per country. The international legal system reflects the so-called Westphalian' legal system which bases legal authority on geographical territories.1 Basically, within such a territory, the State is sovereign. This implies that a State generally cannot regulate - at least cannot control - the activities of a company registered in its jurisdiction to the extent that its activities are undertaken in another jurisdiction. Exceptions can however be pinpointed in the field of criminal offences, which sometimes fall within the penalising power of a State even when the offence was committed outside of its territory ( ' extra-territoriality'). Examples are war crimes, murder, child pornography crimes and corruption.
As many of the governance subject matters are of a global nature, States can only solve these by cooperating with each other or by attributing effective legislative and enforcement powers to a supra-national organisation. For example, with the aim of reducing wars and armed conflicts, the United Nations (UN) Security Council was established. Also, the UN as well as regional international organisations adopted several human rights treaties and established supra-national human rights courts and bodies for their enforcement. For the reduction of poverty, States instituted the UN Development Programme (UNDP) and regularly make funds available to it to initiate programmes. Monitoring threats of food scarcity and managing food programmes is the task of the Food and Agricultural Organisation (FAO). Collective efforts to reduce climate change have been made through concluding the Kyoto Protocol,2 and attempts to stop the loss of biodiversity have been made through agreeing on the Convention on Biological Diversity (CBD) and the Convention on the International Trade in Endangered Species (CITES). Corruption is the subject of various treaties: the UN Convention Against Corruption (UNCAC), the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions3 (OECD Corruption Convention); and the Criminal Law Convention on Corruption and the Civil Law Convention on Corruption, both adopted by the Council of Europe.4 They all align State efforts to fight corruption.
International agreements firstly address the parties to such a treaty, i.e. States and sometimes international organisations. Subsequently, States have to comply with the standards agreed in the treaties, and where applicable, have to pass them on to their legal subjects, among which the business sector.5 An illustrative example is the Kyoto Protocol in which the States Parties, including the EU, also on behalf of its Member States, concurred to reduce carbon emissions in their territories. The EU Council's approval of the Kyoto Protocol was followed by the EU Directive on carbon emissions trading establishing a so-called cap-and-trade' plan. Since carbon emissions are partly caused by industry, national EU governments had to allocate maximum levels of carbon emissions to their industries.6
Exceptionally, international documents directly point to business actors as the actors that should comply with the norms. An example is the OECD Corruption Convention.7 The same approach can be observed in anti-terrorism agreements.8 Still, governments have to make these internationally agreed norms directly applicable to their inhabitants and companies within their jurisdiction. An exception hereto is EU Regulations such as the REACH Regulation, which regulates the use of chemicals in the EU.9 EU Regulations have direct application to EU Member States' subjects and need not be converted into national law.
One of the main challenges today is to make our society and economic model ecologically and socially sustainable in order to fulfil well defined human rights ambitions, to achieve the MDGs, to counter cultural tensions, imminent water shortages,10 loss of biodiversity and ecosystems services11 and global warming, and to avoid these threats from causing new armed conflicts and/or massive migration.12 Governments, international organisations, international law and national law have so far not succeeded in successfully addressing these fundamental issues. Without being able to legally mandate a meaningful participation of companies in order to play their part in addressing these issues, civil society, international organisations and national governments have put faith in CSR as a means to involve business.13 As the emergence of the conception of CSR developed gradually and organically, sections 1.6 and 1.7 will describe how various actors have contributed.