7.4.3 Universal human rights norms for companies?

The preceding sections have described the development of the concept of due diligence obligations for States in international human rights law. The term has also surfaced in the debate on the responsibilities of corporations for human rights. Over the last two decades, a growing concern about human rights abuses or complicity thereto by corporate actors has emerged. Without intending to discuss this subject in depth, a few examples will be given in this section.1 In 1995, people all over the world were concerned about the possible involvement of the Dutch-UK oil company Shell in the execution of Ken Saro Wiwa and other human rights abuses by the military regime in Nigeria.2 In response to a communication alleging human rights abuses by the Nigerian government, the African Human Rights Commission (AHRC) stated in 2002, amongst others, that the Nigerian government should have protected its citizens from non-state actors with regard to the right to housing. The Commission also stressed that the government "should not allow private parties to destroy or contaminate food sources". Additionally, it referred to violations by private actors in the context of its finding of a violation of the right to life and integrity of the person.3 Like other human right treaties, the regional human rights system of Africa does not provide for a mechanism where private parties can be held directly accountable for human rights violations under the ACHPR.4 Nonetheless, the decision shows that this Commission explicitly acknowledged that the fulfilment of economic, social and cultural rights can be threatened by the behaviour of multinational corporations.5

Companies' behaviour can however also be tested under national law. In 1996, Wiwa's son and others commenced civil law proceedings against Shell in the US.6 The cases were brought under the Alien Tort Claims Act (ATCA), a 1789 statute granting non-US citizens the right to file suits in US courts for international human rights violations, and the Torture Victim Protection Act (TVPA), which allows individuals to seek damages in the US for torture or homicide, regardless of where the violations take place. The original meaning and purpose of the ATCA are uncertain. However, scholars have surmised that the Act was intended to assure foreign governments that the US would act to prevent and provide remedies for breaches of customary international law, especially breaches concerning diplomats and merchants. The complainants against Shell also alleged that the company had violated the Racketeer Influenced and Corrupt Organisations Act (RICO) and New York state law.7 These cases were settled in 2009.8

Other cases, often cited in the literature regarding human rights and business, concern the role of the oil companies Unocal Corporation (California) and Total S.A. (France) in Myanmar (formerly Burma). In 1997, villagers filed suits in the US against Unocal and Total under the ATCA, domestic US law, for alleged human rights violations connected with the construction of the Yadana gas pipeline.9 In 1992, Total contracted with the Myanmar government to obtain rights to produce, transport, and sell natural gas from an offshore location in Myanmar. The project involved construction and operation of a gas pipeline running through the interior of Myanmar to Thailand. Unocal obtained a 28 per cent interest in this project from Total. According to plaintiffs, the terms of the project called for the Myanmar Military to protect the gas pipeline. Plaintiffs alleged that the Myanmar Military forced them to work on and serve as porters for the pipeline project. Plaintiffs further alleged that in connection with security for the project, the Myanmar Military subjected them to murder, rape, and torture. Plaintiffs did not allege that Unocal employees physically carried out any human rights violations. Rather, plaintiffs claimed that Unocal was aware of the Myanmar Military's abuses, and that Unocal's involvement in the project and its dealings with the Myanmar Military rendered it liable for these abuses. In 2005, a settlement was reached. The parties released the following joint statement:

In 2000, the Sub-Commission on Promotion and Protection of Human Rights (wound up in August, 2006), i.e. the main subsidiary body of the former UN Commission on Human Rights (UNCHR, which was replaced in 2006 by the UNHRC, the UN Human Rights Council11 ), had begun to analyse the possibilities for developing 'Universal Human Rights Norms for Companies'. The Sub-Commission was composed of twenty-six experts whose responsibility were to undertake studies, particularly in light of the Universal Declaration of Human Rights, and make recommendations to the UNCHR. These experts operated through seven thematic working groups. The Sub-Commission had asked the Working Group on the Working Methods and Activities of Transnational Corporations to "contribute to the drafting of relevant norms concerning human rights and transnational corporations and other economic units whose activities have an impact on human rights."12 The Working Group prepared a set of draft norms and disseminated this as widely as possible, so as to encourage governments, intergovernmental organisations, NGOs, transnational corporations, other business enterprises, unions, and other interested parties to provide any suggestions, observations, or recommendations. The comments received were evaluated and used for the final version of the norms. In 2003, the Sub-Commission unanimously adopted the 'Norms on the Responsibility of Transnational Companies and Other Business Enterprises with Regard to Human Rights' (the UN Draft Norms), and the Commentary thereto.13 The Commentary on the Norms pointed to global trends which had increased the influence of multinationals on the economies of most countries and in international economic relations. It noted that these companies "have the capacity to foster economic well-being, development, technological improvement and wealth", but can also "cause harmful impacts on the human rights and lives of individuals through their core business practices and operations, including employment practices, environmental policies, relationships with suppliers and consumers, interactions with Governments and other activities." Furthermore, the Commentary drew attention to the fact that "new international human rights issues and concerns are continually emerging and that [companies] [...] often are involved in these issues and concerns, such that further standard-setting and implementation are required at this time and in the future."14 The UN Draft Norms recognise that "States have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognised in international as well as national law, including assuring that transnational corporations [. ] respect [. ] human rights" (Norm A.1.). In addition, regarding business, the same norm requires: "Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law [...]." The Commentary explains this norms as follows (under A.1.b.):

However, when the UN Draft Norms and the Commentary were presented to the then still existing UNCHR for approval, it turned out that there was not enough support among States for their adoption. In particular, the business community had widely advocated that it found the wording on the one hand to be very broad, causing ambiguity regarding their related legal duties, and on the other hand 'coming too close'. The latter argument related to the fact that self-regulation (see chapter 6) should do.16

Two years later, there was still complete uncertainty as to whether the Norms would form the basis for a legally binding instrument, and which monitoring mechanisms would be set up in order to ensure that they will be complied with. Due to the continuing lack of certainty on the application of human rights to companies, the UNCHR decided in 2005 to request the UN Secretary-General to appoint a Special Representative on the issue of human rights and transnational corporations and other business enterprises. Later on, this mandate was confirmed by the UNHRC, In 2008, the mandate was renewed and expanded. The post has been fulfilled from the beginning by Ruggie as was indicated in section 7.1. In particular, the Special Representative was commissioned to develop a framework for providing more effective protection against corporate-related human rights abuses. This resulted in the report released in April 2008, i.e. the Ruggie Report, which attributes a prominent role to corporate due diligence, and in which Report many of the elements of the UN Draft Norms can be retraced, as will become apparent in the next section.