Is it time for change?
This page looks at the journal entries that discuss human rights as a whole. They discuss the global approach to human rights, current human rights litigation and the proposed human rights litigation that intends to solve the problem of corporate accountability.
Multinational corporations and human rights violations: Call for rebuilding the laws of twenty-first century (2013)
Multinational corporations and human rights violations: Call for rebuilding the laws of twenty-first century (2013) Journal of Financial Crime 20(4)
1st November 2013
By Barcelona Panda
I chose to analyse this article because the author addresses the issue of corporations being held responsible in a court of law for their human rights violations. Barcelona states the present legal position of India concerning human rights and how to address the issue on a global scale.
Multinational corporations (MNCs) have always argued that their only responsibility is to make profits for their shareholders and that they do not have any positive duty to observe human rights. However, increased power has passed into the hands of the MNCs, the boundary between the public and the private spheres has become blurred. MNCs can now affect the economic welfare of the communities in which they operate and due to indivisibility of human rights, they have a direct impact on the human rights enjoyed by such communities
India is special in that several provisions of the constitution are horizontally applicable against companies. They also have several other laws that deal with the criminal liability of companies, such as the Indian Companies Act 1965 and Indian Penal Code
To date, tort law has proven all over the world to be the strongest basis for suits against companies for a range of human rights violations. India is no exception, as tort principles have been employed to hold companies accountable for their wrongdoings. India also established the National Human Rights Commission (NHRC) under the Protection of Human Rights Act in 1993. Although the NHRC may not be expressly entrusted with the task of dealing with corporate human rights, in actual practice, the NHRC has intervened in some business and human rights matters.
Since early 1999 there have been numerous domestic and international accountability mechanisms, in the nature and extent to which corporations are, or ought to be, made responsible for the protection and promotion of human rights. There is no international treaty, court or ombudsman that holds corporations directly responsible for human rights violations.
The preamble of the Universal Declaration of Human Rights calls on “every individual and every organ of society” to promote and respect human rights. International standards referring explicitly to the responsibility of business to respect human rights include the OECD Guidelines for Multinational Enterprises (1976) and the ILO tripartite declaration of principles 1977. The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, adopted by the UN Sub-Commission on Human Rights in 2003, set out with some degree of specificity the human rights responsibilities of companies. Professor John Ruggie, the Special Representative of the UN Secretary-General on Business and Human Rights, has been mandated by the UN to “identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights”.
The UN Global Compact, which as of December 2005 has over 2,300 participating companies, recognises that companies should respect international human rights standards. Its first two principles are:
1) Businesses should support and respect the protection of internationally proclaimed human rights; and
2) Make sure that they are not complicit in human rights abuses
In international law, there are multiple potential avenues for enforcing duties on MNCs. An international court to address MNC abuses would be possible, where bodies like the UN could develop a practice of investigating and develop mechanisms within international bodies to enforce human rights obligations on corporations. There is clearly a need for the UN to adopt a set of international principles, based on existing internationally agreed standards, spelling out the minimum human rights floor that no company should fall below.
Since the MNCs have the potential to directly affect the social, cultural and economic rights of the people of the host country, they cannot escape from such a responsibility. There are a number of factors that impair the justice of human rights violations involving companies in India. Some of these factors are:
- Lack of laws and lax enforcement. Even if the need for a new law is recognised, the process of enacting laws may take several years.
- Absence of robust institutional mechanisms. The efficacy and independence of Indian courts is seriously undermined by two factors: corruption and huge backlogs of cases.
- Corruption implicated by economic and political power or a lack of confidence in the India legal system
- A delay in judicial process
- Ignorance of one's rights and indifference to rights of “others”.
- Litigation is expensive and there is limited legal aid
- The difficulties in criminal prosecution of companies.
Human rights violations by companies may form part of their annual reports as the ministry of corporate affairs is set to introduce norms that will require India Inc. to formally recognise and comply with such rights towards all its stakeholders. A new set of guidelines being worked by the ministry of corporate affairs will require companies to put in writing before the government their respect for human rights and also report on measures that they have taken in support of that cause. A proposal to this effect forms part of the business responsibility guidelines being prepared by the corporate affairs ministry. Companies will have to explain reasons for their non-compliance, hence creating an indirect sanction. The government has adopted the strategy of “apply or explain”, which effectively means any nonconformity with the norms will have to be reported with reasons. These details will form part of the business responsibility statement, accompanying the company's annual report.
MNCs have an increased power in today’s society that can affect the economic welfare of the communities, having a direct impact on their human rights. MNCs cannot escape their responsibilities with today’s power, so litigation must be established to allow companies to be held liable for their violations. This article shows examples of law in India addressing this issue, however the issue with most international law is that it’s soft law and is not legally binding. The article makes it clear that its possible for an international court to address MNC abuses where human rights could be enforced on corporations. This would create a worldwide ‘standard’ for the protection and promotion of human rights concerning MNCs. The Indian government’s adoption of the “apply or explain” strategy seems very effective, therefore means any nonconformity with the norms will have to be reported in the company’s annual report with reasons.
This article has developed my thinking because it builds upon the key points that not only should human rights be respected for the sake of the individual, but human rights and the rule of law require attention and should be embraced, not only because it is the right thing to do but because it is good for business.
“Human Rights”, Foreign Policy (Mar/Apr 2004) Issue 141
“Human Rights”, Foreign Policy Issue 141
By Richard Falk
I found this article very interesting because it’s different to everything I have looked at previously. It builds upon the toipic of promoting human rights worldwide, but it discusses the most effective ways of promotion, if human rights violations have worsened in recent years and if human rights are achievable in today’s society
“All persons and peoples aspire to the same human rights” is incorrect. Different people have different aspirations of human rights. After the terror attacks on 11/9/2001 the prominent U.S. legal scholar Alan Dershowitz argued in favour of legalized torture as a counter-terror measure.
The Universal Declaration of Human Rights (UDHR) does not adequately balance rights and responsibilities which led to the emergence of “Asian Values” or “Islamic Values”. The assertion of value-based and cultural variations also represents a regional backlash against the unwanted aspects of globalization, including the fear of U.S. dominance and the loss of tradition. The strong difference between indigenous peoples’ rights has led to the development of their own framework, known as the Declaration on the Rights of Indigenous Peoples. Even unity on human rights within the West is overrated. There has been an ongoing friction between the United States and Europe on such issues as capital punishment.
“Human rights are violated more today than ever before”. Wrong! Today there is the ability to identify human rights violations more accurately and treat them more effectively; this has created the illusion that violations are more prevalent. There is more world-wide participation within human rights, as seen in the over the past six decades the UN has created a significant human rights architecture protecting many topics. Much of the credit for this upgrading of human rights should be given to nongovernmental organisations (NGOs), which took the promise of minimum standards seriously several decades ago when governments regarded such matters as either harmless pieties or as purely voluntary directives.
The war on global terrorism has challenged the protection of human rights. The war against global terrorism is far more a political and moral conflict than it is a military one. Since 9/11 the US has been reluctant to challenge the exercise of government power that has weakened human rights without strengthening national security.
Human rights violations have worsened after the attacks of 9/11. Anti-terror laws in the US have raised concerns about restrictions on human rights, and two of the worst governments in the world from the human rights perspective were responses to terrorism (al Qaeda) that changed regimes.
Multinational corporations are essentially profit-making actors without established moral obligations beyond their duties to uphold the interests of their shareholders. There are virtually no legal obligations are effective outside the protection of property rights such as trademarks and copyrights in international business activity, almost all regulation is based on national laws and their implementation. US courts have stuck down economic sanctions in response to sever human rights abuses as an interference with the foreign affairs powers. Even though economic sanctions rarely improve human rights, the underlying motivation for economic sanctions is political: why restrict business to Cuba for ‘severe human rights violations’ and not to Saudi Arabia and Pakistan? A framework of international legal obligations would doubtless help protect human rights, especially in countries with minimal or nonexistent human rights regulation. But to ensure that multinational corporations from some countries would not benefit from a competitive advantage, such a framework would require widely endorsed regional and global treaty regimes.
Human rights abuses in once country can justify military intervention by others; a key example is the Yugoslavian civil war and the Rwandan Genocide which saw major intervention in order prevent further human rights violations. The intervention may have been illegal, but it was politically and morally legitimate. This gap is not desirable, but it is better than ignoring principles altogether or adopting a rigid posture of unconditional non-intervention.
This article is very interesting as it looks at human rights as a whole. It highlights many key points that are essential in dealing with this topic. Human rights range across a selection of people: different people have different human rights. This is a key point, however even though indigenous representatives have been used, I believe that human rights will always struggle to progress and move forward when indigenous people are so different. It will be a struggle to balance the rights and responsibilities to please the groups of people. Human rights litigation is improving with the help of NGO’s and human rights architecture constructed by the UN to bring about justice for discrimination against women, racism, children, and religious beliefs, as well as many more. The attack of 9/11 has caused a big divide, especially in the West, among people with differences. Governments such as Russia, Israel, Egypt and Pakistan have felt the opposition from the US has intensified since the attacks. The war on terrorism has become more of a priority to Western governments than human rights, and this has led to the war on terrorism weakening human rights. This article’s discussion on corporations I felt was very accurate. A corporation’s main goal is to produce as much profit as possible, casting aside moral obligations. Even when human rights violations are committed by multi-national corporations, many of the corporations get away with it for the fact that governments pick and choose who they economically sanction all based on politics.
I believe this article has been one of the most significant articles I have analysed that has developed my thinking. It has bettered my understanding of human rights as a whole, and has allowed me to look at a bigger picture, rather than just considering the relationship between human rights and multi-national corporations.