WCAR Think Papers*
A joint project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
The World Conference Against Racism (WCAR)
provides a unique opportunity to advance international standards regulating
human rights violations by companies. This opportunity comes against the
background of two trends: (1) increasing efforts at the international level to
develop standards governing abuses by companies; and (2) increasing abuses by
companies owing, in significant part, to globalisation. It is, therefore,
worrisome that the Elements for a Draft Declaration and Programme of Action for
the World Conference includes barely any reference to dealing with racial
discrimination by companies.
This Think Paper briefly describes the
importance of the issue of racial discrimination by companies, identifies
relevant legal standards and suggests prospects for making progress in this
area at the WCAR.
Severe racial discrimination by companies dates
back to the creation of the corporate form itself. Colonialism gave rise to
powerful multinational trading companies. Slave trading companies and
plantation economies thrived on human bondage. During World War II,
corporations used forced labour supplied directly by Hitler. At the same time,
Japanese companies profited from the use of Chinese and other slave labour.
And, despite the efforts of the United Nations to isolate Apartheid South
Africa, corporations repeatedly broke international sanctions.
Today, companies are involved in
racial discrimination throughout the world. Arms dealers are involved in
supplying weapons that fuel ethnic conflicts. Petroleum and mining companies
conspire with governments to eliminate political opposition of indigenous
groups through extra-judicial killings. Construction companies are involved in
the forced relocation of indigenous people to clear the way for dam projects.
And, many international criminal operations use companies as false fronts to
traffic women and children across borders for forced prostitution
Racial discrimination is, of course, only one
component of human rights concerns relating to companies. But, it is a highly
significant component at that. Many of the subjects of racial discrimination to
be covered at the WCAR involve abuses by companies (e.g., migrant workers,
trafficking, indigenous peoples, the media and, arguably, Internet providers).
Nevertheless, this is perhaps one of the areas in greatest need of more
specific international standards and practical mechanisms for controlling
abuses. Hence, the subject requires special attention in the Declaration and
Programme of Action and should not simply be folded into other issues by
allusion and oblique reference -- as is the case with the present Draft (when
it refers to companies at all).
II. International precedents of control
While this Think Paper describes the
need for developing international standards relating to abuses by companies, it
should be kept in mind that a State’s obligation to prevent, punish and remedy
rights violations within the private sector is settled international law.
Companies are legal persons and abuses committed by them which infringe on
individuals’ human rights fall squarely within the domain of actions States are
under an international obligation to suppress. Nevertheless, substantial work
remains to be completed in developing standards that apply direct obligations
to companies, in specifying the types of company abuses that infringe human
rights and in devising mechanisms for effectively regulating violations.
Existing international standards for
controlling human rights violations by companies are relatively disparate.
Thanks to recent action at the Sub-Commission on the Promotion and Protection
of Human Rights, however, a synthesis of these standards is being developed.
Based on an important Working Paper by Sub-Commission Member, Mr. David
Weissbrodt, the Sub-Commission has begun preparing Draft Principles Relating
to the Human Rights Conduct of Companies (E/CN.4/Sub.2/2000/WG.2/WP.1,
Annex). The United Nations Business
and Human Rights Global Compact also represents recent progress
towards achieving uniform and universal human rights standards for controlling
abuses in business practice.
In general, human rights standards apply to
abuses by companies in a number of thematic areas including: prohibitions
against the slave trade, child labour, piracy, mercenaries, arms sales,
terrorist organizations, organized criminal syndicates and trafficking of
persons. Of course, international standards also apply directly to companies in
the areas of workers’ rights, corruption, bribery, hazardous waste and other
environmental pollution.
Foundational international texts pertaining to
activities of multinational companies recognize the direct obligation of these
entities to respect international human rights. The ILO’s Tripartite
Declaration of Principles concerning Multinational Enterprises and Social
Policy states: “All the parties concerned by this Declaration .… should
respect the Universal Declaration of Human Rights and the corresponding
International Covenants adopted by the General Assembly of the United Nations.”
Similarly, in 2000, the OECD Guidelines for Multinational Enterprises
added a provision stating that enterprises should “[r]espect the human rights
of those affected by their activities consistent with the host government’s
international obligations and commitments.”
General international human rights instruments
apply to companies at different levels of specification. For example, the Preamble
of the Universal Declaration of Human Rights states: “every individual and
every organ of society, keeping this Declaration constantly in mind, shall
strive . . . by progressive measures, national and international, to secure
the[] universal and effective recognition and observance [of these rights and
freedoms].” Article 2(e) of the Convention on the Elimination of All Forms
of Discrimination Against Women requires States to “take all appropriate
measures to eliminate discrimination against women by any person, organization
or enterprise.” In General Recommendation No. 19 concerning violence
against women including sexual harassment and favourable work conditions, the
Committee on the Elimination of All Forms of Discrimination Against Women
stated:
It is
emphasized, however, that discrimination under the Convention is not restricted
to action by or on behalf of Governments … Under general international law and
specific human rights covenants, States may also be responsible for private
acts if they fail to act with due diligence to prevent violations of rights or
to investigate and punish acts of violence, and for providing compensation.[1]
The International Covenant on Economic,
Social and Cultural Rights also covers abuses involving companies. In General
Comment No. 12, the Committee on Economic, Social and Cultural Rights
(CESCR) described the responsibility of companies under Article 11 of
the Covenant in protecting the right to food:
While only
States are parties to the Covenant and are thus ultimately accountable for
compliance with it, all members of society -- individuals, families, local
communities, non-governmental organizations, civil society organizations, as
well as the private business sector -- have responsibilities in the realization
of the right to adequate food…The private business sector -- national and
transnational - should pursue its activities within the framework of a code of
conduct conducive to respect of the right to adequate food, agreed upon jointly
with the Government and civil society.[2]
In General Comment No. 5, the CESCR
described the responsibility of companies under Article 2(2) of the Covenant in
protecting the right to equality of people with disabilities:
Given the
increasing commitment of Governments around the world to market-based policies,
it is appropriate in that context to emphasize certain aspects of States
parties’ obligations. One is the need
to ensure that not only the public sphere, but also the private sphere, are,
within appropriate limits, subject to regulation to ensure the equitable
treatment of persons with disabilities.... [I]t is essential that private
employers, private suppliers of goods and services, and other non-public
entities be subject to both non-discrimination and equality norms in relation
to persons with disabilities.[3]
In General Comment 14, the
CESCR described the responsibility of companies under Article 12 of the
Covenant in protecting the right to health:
While only States are parties to the
Covenant and thus ultimately accountable for compliance with it, all members of
society - individuals, including health professionals, families, local
communities, intergovernmental and non-governmental organizations, civil
society organizations, as well as the private business sector - have
responsibilities regarding the realization of the right to health. State
parties should therefore provide an environment which facilitates the discharge
of these responsibilities.[4]
International standards relating
specifically to racial discrimination by companies also exist, though at a
relatively abstract level. Of greatest importance is the settled understanding
that the International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) applies to abuses by companies. In particular, Article
2(d) of the ICERD requires States to “prohibit and bring to an end, by all
appropriate means, including legislation as required by circumstances, racial
discrimination by any persons, group or organization.” Article 5 of the
ICERD prohibits racial discrimination in a range of economic, social and
cultural fields. In General Comment No. 20, the Committee on the
Elimination of All Forms of Racial Discrimination explained that Article 5
relates to the practices of private organizations as well: “To the extent that
private institutions influence the exercise of rights or the availability of
opportunities, the State Party must ensure that the result has neither the
purpose nor the effect of creating or perpetuating racial discrimination.”[5]
Article 4(b) of the ICERD obligates States to “declare illegal and
prohibit organizations . . . which promote and incite racial discrimination.”
Finally, an important decision by the Human Rights Committee illustrates the application of the International Covenant on Civil and Political Rights (ICCPR). In Länsman et al. v. Finland, Communication No. 511/1992,[6] members of the Sami ethnic group argued that Finland’s contract with a stone quarrying company impacted their traditional herding area and therefore violated Article 27 (cultural, religious and language rights of minorities) of the ICCPR. The Committee held that the contract did not violate Article 27 because numerous safeguards were in place to protect the Samis’ rights. The Committee made the following unequivocal statement regarding State obligations under Article 27 with regard to companies:
A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27.[7]
The Committee also stated that “if mining activities in the Angeli area were to be approved on a large scale and significantly expanded by those companies to which exploitation permits have been issued, then this may constitute a violation of the authors’ rights under article 27, in particular of their right to enjoy their own culture. The State party is under a duty to bear this in mind when either extending existing contracts or granting new ones.”[8]
A number of possibilities exist for advancing
standards at the WCAR specific to human rights violations involving companies.
The following list provides a few of these options.
1. Developing and specifying standards: The above discussion shows that
sufficient sources of international law confirm the direct obligation of
companies not to commit human rights violations as well as the obligation of
States to prevent and prohibit such violations. The WCAR can help in the effort
to make these standards more specific. The Draft Principles Relating to the
Human Rights Conduct of Companies being discussed in the Sub-Commission
serve as an excellent reference tool for many of these issues. The Draft
Principles includes a number of standards that clearly implicate issues of
racial discrimination such as: racial harassment and abuse in the workplace
(Section D of the Draft Principles); slavery (Section E of the Draft
Principles); cultural property of indigenous peoples (Section F, para. 18 of
the Draft Principles); use of security forces against indigenous peoples
(Section G, para. 22 of the Draft Principles); fair and equal remuneration
(Section H of the Draft Principles); and environmental racism (Section L of the
Draft Principles).
Accordingly, NGOs and concerned
States can work towards two goals: (1) having the WCAR Declaration
and Programme of Action generally endorse the Draft Principles Relating to the
Human Rights Conduct of Companies; and (2) enshrining, in the
WCAR’s final text, some of the specific standards included in the Draft
Principles.
2. Multinational and national companies: In the effort to strengthen
standards in this domain, attention should be given to both multinational and
national companies. First, in terms of a principled moral voice, it makes
little sense to try to distinguish the legality of abuses with regard to
multinational versus national companies. Racial discrimination by a company
operating within a State is prohibited regardless of the international
character of the organization. Moreover, while transnational companies are, in
general, among the larger and more powerful of such entities, many national
companies have comparable strength and autonomy. Second, as the Sub-Commission
Working Paper makes clear, advancing international standards for only
multinational companies would place multinational companies at a significant
comparative disadvantage. Such organizations would, therefore, be far less
willing to endorse international codes of conduct or other international
documents reflecting human rights standards if those standards were not
uniformly applicable. There would be a special incentive for these
organizations not to comply. Notably, the Draft Principles deliberately do not
distinguish between multinational and national companies. Finally, in terms of
political strategy, it will require getting developed countries on board if
international standards are to be advanced significantly in this area. For the
same reasons of moral voice and comparative disadvantage, these governments
will be far more willing to help develop such standards and implement them if
all companies are covered.
3. Institutional mechanisms at the
international and regional level: The WCAR is supposed to be concerned with practical strategies for
combating racial discrimination.
Accordingly, two options that NGOs and concerned States might consider
in this area are: (1) creating a division within the Office of the High
Commissioner for Human Rights to monitor human rights violations by companies;
and (2) creating a Special Rapporteur on human rights violations by
companies. Both of these options could be endorsed by the world community in
Article XIX (Measures at the International Level) of the Draft Programme of
Action. Finally, NGOs and concerned States should urge the adoption of language
specifically within Article XVIII (Regional Activities) of the Draft Programme
of Action for development of regional mechanisms that monitor and
publicise racial discrimination by companies.
4. NGO statements: NGOs will use the WCAR to focus attention on
existing problems of racial discrimination. In making their statements, NGOs
should be encouraged to cite to problems involving abuses by companies as well
as governments. Such statements alone will go a long way to focusing attention
on the issue of human rights violations by companies and to deepening the trend
toward applying human rights standards directly to companies as a matter of
course.
* The Think Papers series is available at <www.hrdc.net>.
[1] CEDAW, General Recommendation No. 19 (Eleventh session, 1992), para. 9; see also CEDAW, General Recommendation No. 16 (Tenth session, 1991) (concerning “unpaid women workers in rural and urban family enterprises”).
[2] CESCR, General Comment No. 12 (Twentieth session, 1999), para. 20; see also id. at para. 27 (“States parties should take appropriate steps to ensure that activities of the private business sector and civil society are in conformity with the right to food.”); id. at para. 15 (“The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive individuals of their access to adequate food.”).
[3] CESCR, General Comment No. 5 (Eleventh session, 1994), para. 11.
[4] CESCR, General Comment No. 14 (Twenty-second session, 2000), para. 42. See also id. at para. 55 (“States parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to health in pursuing their activities.”).
[5] CERD, General Recommendation No. 20, at para. 5.
[6] CCPR/C/52/D/511/1992.
[7] Ibid. at para. 9.4
[8] Ibid. at 9.8