Wednesday, January 11, 2012

Modern International Human Rights Law and Multinational Corporations

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One of the most serious challenges in the debates on international human rights law for the last years is of the acknowledgment of the direct connection between human rights and business. Even before the World Trade Organization meeting in Seattle in 1999 it was already quite clear that the human rights debates have drawn business in the middle of all the disagreements. Why has that happened? Human rights have reached a higher position in the agenda of global business (and thus have drawn business on the higher position on the agenda of non-governmental organizations, such as Amnesty International) due to specific global trends:

•    development of the world economy as a central geopolitical fact of the modern world;
•    enlargement of the external market as a key driver of foreign policy in many states;
•    revolution of information technologies that link the world as they have never before. The result is the increased visibility of corporate negative actions and the rapidity with which this information can be disseminated around the world;
•    increased consumer awareness in the areas of the labor practices of companies whose products they purchase;
•    privatization, that has simultaneously raised both the influence of business, as well as the need of private companies to be more publicly accountable;
•    several high profile situations in which businesses have been found in serious human rights violations; and
•    widespread demands for companies to operate in more transparent and responsible manner (as follows from the development of concepts such as “corporate social responsibility” and the “triple bottom line”).

Many of the business leaders have tried to assert that the human rights defense is solely the responsibility of government – this is despite the almost endless list of serious human rights violations by companies, mostly in the developing states. Example can be brought from the media investigations of the labor conditions on the Nike factories in Vietnam that have revealed beatings, sexual harassment and workers being forced to kneel for extended periods with their arms held in the air. Globally, millions of child workers are in slavery through forms of debt bondage in countries like India; forced labor is wide spread in Myanmar and China; trade unionists receive death threats in Columbia and are banned for good in Myanmar and are regularly pressured into resigning in Guatemala.

In addition to all that it is common that the presence of multinational enterprises in a state is seen as proving support for government policies and actions. For example, the silence of Shell in Nigeria, when Ken Saro-Wiwa and eight other Ogonis were executed after set-up trials in 1995, wasn’t a politically neutral action. Silence of Shell was understood by the government of Nigeria as a tacit support of their actions. Similar criticisms have been mad of many of the other multinational oil and energy companies, such as Total in Myanmar and BP in Columbia.

The corporate sector also has a tremendous amount of important influence on the actions of governments.  That does not relate only to the traditional areas of business interest (for example taxation and competition policy) but also, increasingly, to broader policy areas such as unemployment, health and education. On international level bodies such as World Trade Organization, World Bank and the International Monetary Fund have started to exert a greater influence on domestic government policy in areas such as market liberalization, government expenditure and trade and industry policy.

Many countries today have changed their rules related to the external direct investments for the creation of the more appropriate environment for the multinational corporations. At the same time it is absolutely clear that states nowadays share political arena with large multinational corporations, however it is crucial that we be careful with conclusions. Arguments in favor of the corporations to play specific role in the protection and the promotion of human rights should not depend too heavily on the analogy with state-bodies. One thing is quite clear – multinational corporations are not states – and that is why the states should be the major carriers of the obligations on the protection of human rights. Moreover, the size of multinational corporation should not be the main factor – all of them have to implement human rights, despite their level of participation in the society’s public life.

In conclusion it is also important to note that there is another theory that multinational corporations can be the human rights protectors. They can be created with the already documented goal to enforce human rights or to function in the human rights’ boundaries.

All of such initiatives and development in human rights regulation area and multinational corporation activities have one common detail – all of them acknowledge that today such corporations have become general organizational template both on national and international levels.

Kamal Makili-Aliyev
Doctor of Laws (LL.D)
11.01.2012

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