The Preamble of the Universal Declaration of Human Rights proclaims that:
[E]very individual and every organ of society [?] shall strive by teaching and education to promote respect for these [human] rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of the Member States themselves and among other peoples of territories under their jurisdiction.
Every individual and every ‘organ of society’ has an obligation to contribute to an atmosphere conducive to the enjoyment of human rights. This obligation is universal and concerns all - state and non-state - actors. The primary responsibilities and obligations in the field of human rights enjoyment remain with the state, and the state cannot relieve itself of these obligations by ‘delegating’ human rights obligations to non-state entities or, for that matter, international organisations. This does not, however, mean that non-state entities do not have responsibilities, both in a positive and in a negative sense: abstaining from violating human rights on the one hand and contributing to human rights compliance on the other.
Non-state entities take on various forms: NGOs, both national and international; indigenous and minority groups; (semi-) autonomous groups; human rights defenders; terrorists; paramilitary groups; autonomous areas; internationalised territories; multinational enterprises; and, finally, individuals. Many of these groups promote human rights while others, on the contrary, condone crimes or even commit crimes affecting the lives and human rights of individuals.
The role of non-state actors cannot be discussed without touching upon the question as to what extent human rights also apply to relations between private individuals and/or enterprises. This question is also discussed under the term ‘horizontal effects of human rights’, or identified with the German term Drittwirkung. There is no universal consensus on the phenomenon of Drittwirkung: Should individual citizens have some sort of minimum guarantee as to his or her human rights in relation to other persons? Can paramilitary groups be called upon to respect human rights? To what extent should states legally recognise and give effect to Drittwirkung. One may maintain that it is the responsibility of the state to secure that an individual human right - such as the right to freedom of expression - is not unjustifiably interfered with by others. Such a right should be protected and infringements by others should be prevented. Some experts argue that a distinction can be made between rights which largely depend on state intervention such as the right to elections or the right to a fair trial on the one hand and rights which are more free-standing, such as freedom of expression, freedom of religion and freedom of movement, on the other.
Another element in this context is the question whether an individual acts in the public sphere or only in the private sphere. In the public sphere, for example, in the case of health personnel, codes of conduct (see II§1) prescribe a certain standard of behaviour aimed at respecting the human rights of others. Behaviour affecting the human rights of others in the private sphere needs to be addressed also; experts maintain that non-state entities are obliged, as a minimum, to comply with peremptory norms of general international human rights law.
When non-state entities do not comply with international human rights law, one can of course address states and require compliance. There is now an emerging trend towards taking legal steps against the state concerned, but at the same time addressing the non-compliance of non-state entities and arbitrary use of power.
Whenever power is exercised, there is the risk that it is used in an unrestricted manner violating the human rights of individuals. In the fine-tuning of the rule of law it is of the utmost importance to ensure that all institutions and individuals who are charged with enforcement or exert power do so in accordance with human rights law. In this context it is also important to address certain phenomena in society often described as ‘traditional’ that violate human rights, such as violence against women or discrimination against persons belonging to indigenous groups or minorities. A good example is the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994), which spells out in its Preamble that ‘[v]iolence against women is an offence against human dignity and a manifestation of the historically unequal power relations between women and men’. The Convention calls on individual men and also the state concerned to prevent violations that are ‘condoned by the state or its agents’ (see II§3.B).
Finally, mention should be made of individual criminal responsibility in cases of human rights abuses. As traditionally only states can be held accountable for violations of human rights, powerful individuals, instrumental in gross human rights violations often escaped liability; political leaders such as Pol Pot and Idi Amin, complicit in atrocious human rights abuses, did not have to answer for their crimes. The Convention on the Prevention and Punishment of the Crime of Genocide of 1948 requires persons committing genocide to be punished (Article 4), but the provision has had little impact in practice. Fortunately, in recent decades, international, individual criminal responsibility for human rights violations is being increasingly accepted. A major development in this respect was the adoption of the Convention Against Torture, which establishes in Articles 5 to 8 the principle of universal jurisdiction in cases against torturers, whereby states are obliged to prosecute or extradite alleged offenders. The practical application of this Convention through the arrest, in October 1998, of Chilean dictator Augusto Pinochet proved an important stepping stone in the fight against impunity. That same year, the Rome Statute of the International Criminal Court was adopted, establishing individual criminal responsibility of persons who have committed crimes within the jurisdiction of the Court (Article 25) (see II§1B.2). Meanwhile, ad hoc tribunals have tried several individuals accused of crimes against humanity; in 2001 the former Yugoslav president Slodoban Milosevic was turned over to the International Criminal Tribunal for the Former Yugoslavia. While the effective functioning of international criminal justice for individual human rights violators is in its infancy, it is apparent that powerful individuals committing gross human rights violations can no longer be sure to remain immune from prosecution.
This part discusses NGOs, human rights defenders and multinational companies as examples of non-state entities, demonstrating the complexities and variety of ‘private’ actors involved.
A. Non-governmental human rights organisations
The proliferation of non-governmental human rights organisations has gone hand in hand with the development of international norms, institutions and procedures for the protection of human rights. NGOs have come to form an essential part of a pluralist society and a well-functioning human rights system is unthinkable without their contributions. Some NGOs have long and distinguished histories: the Anti-Slavery Society was founded in 1838, while the French Ligue des Droits de l’Homme was created in 1898 in the wake of the Dreyfus affair. Most NGOs, however, were established in the 1960s and the 1970s alongside the human rights monitoring by international organisations such as the United Nations and the Council of Europe. The role of NGOs is essential for the effective protection of human rights at both national and international levels; NGOs raise public awareness of human rights issues and bring attention to those responsible.
Before examining the work of NGOs at the international and regional level, it is important to address what a human rights NGO is. It is difficult to define NGOs because they come in very different shapes and sizes; large and small, well-off or poor, professional or less professional. There is, however, consensus on certain characteristics. What distinguishes human rights NGOs from other private associations is that NGOs are private non-profit-seeking organisations independent from governments, both financially and politically. With regard to the financial aspect, ECOSOC resolution 1996/31 concerning consultative status for NGOs explains that NGOs can accept some government funding, but it should not form the main source of income.
Article 14 stipulates:
The basic resources of the organisation shall be derived in the main part from contributions of the national affiliates or other components or from individual members. Where voluntary contributions have been received, their amounts and donors shall be faithfully revealed to the Council Committee on Non-Governmental Organizations. Where, however, the above criterion is not fulfilled and an organization is financed from other sources, it must explain to the satisfaction of the Committee its reasons for not meeting the requirements laid down in this paragraph [?].
Moreover, NGOs are distinctly different from private associations, such as political parties, because they do not seek political power. Thus, unlike political parties that mainly seek to protect the rights of their own constituents and advance their own self-interests, NGOs seek to protect the rights of all members of society and to serve the public as a whole.
During the drafting of the UN Charter, NGOs played an important role in pressing for the inclusion of human rights provisions. They also lobbied for a system that would give them official standing before UN organs. As a result, Article 71 was included in the UN Charter, which provides that the ECOSOC ‘may make suitable arrangements for consultations with nongovernmental organisations which are concerned with matters within its competence’.
In 1968, the ECOSOC adopted a resolution, revised and expanded in 1996, to establish a formal system giving qualified NGOs three types of consultative status within the organisation: a) Category I: NGOs which have, on the basis of their mandate, a special interest in all activities of the ECOSOC; b) Category II: organisations with a special mandate which are interested only in some activities of the ECOSOC and which can make essential contributions; and c) Category III: NGOs which have been placed on the roster; such organisations may be consulted on an ad hoc basis.
This status permits NGO representatives to attend and speak at meetings held by ECOSOC and its subsidiary bodies, to be heard by UN human rights committees and commissions and, in certain cases, to affect the agendas of these bodies. Under the UN Charter-based system, NGOs submit information to the Human Rights Council under, e.g., the UPR and the thematic and country-specific procedures (see II§1.C). This role is very important since the UN’s own information gathering capacity is very limited.
NGOs are also involved in the drafting of resolutions and international treaties and their initiatives in standard-setting have been very significant. Examples include Amnesty International’s role in the drafting of the Convention against Torture; the impact of NGOs working for children’s rights on the text of the Convention on the Rights of the Child, and the pressure exerted by, inter alia, the International Commission of Jurists, Amnesty International and Human Rights Watch for the treaty establishing the International Criminal Court.
NGOs have also come to play an important role under the UN treaty-based system, especially with regard to the strengthening of reporting mechanisms. As it is impossible for the Committees supervising the implementation of the UN Conventions to be experts on the human rights situation of every country, they rely on NGOs to counter-balance information provided by states. NGOs serve to provide them with dependable information on the human rights situation and main areas of concern in specific countries. Many NGOs prepare their own parallel reports to the state reports (‘shadow reports’), which they pass on to the relevant committees prior to the meetings with the representatives of the reporting states. For those treaties establishing individual complaints mechanisms, NGOs play a vital role in assisting victims to bring complaints.
The International Labour Organisation (ILO) gives membership status to representatives of workers’ and employers’ organisations under its tripartite structure (see II§1.D) and it has in recent years given observer status to NGOs allowing them to have access to ILO documentation as well as meetings. UNESCO gives NGOs consultative status and allows them to lodge complaints of alleged violations of rights that fall under the field of expertise of UNESCO without themselves having to be the victim.
NGOs also play an active role as regards the different human rights regional bodies such as the Council of Europe (COE), the African Union (AU) and the Organisation of American States (OAS). Under the auspices of the CoE, NGOs hold consultative status similar to the one at the UN. Moreover, NGOs can bring cases to the European Court, albeit only if they are themselves the victims (Article 34 ECHR). NGOs have contributed to the European case-law by assisting and advising applicants and by providing the European Court with amicus curiae briefs (e.g., Amnesty International in Soering v. The United Kingdom). The 1995 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints allows international NGOs with consultative status with the CoE to lodge complaints against states parties that have failed to apply the Charter properly in their domestic systems (Article 1). National NGOs can also lodge complaints in cases where the state party has made a declaration providing for this possibility when or after it becomes party to the Additional Protocol (Article 2). A body heavily dependent on NGO information is the European Committee for the Prevention of Torture. The Committee relies on information from NGOs about which countries and detention centres are a cause of concern, and based on that information the Committee may decide to undertake an on-site visit to the country in question.
Under the OAS, the American Convention permits ‘any non-governmental entity legally recognised in one or more member states’ of the OAS to lodge petitions about any violations of the Convention. In practice, a handful of NGOs, of which the most important one is CEJIL (Center for Justice and International Law), have become very influential as they represent most of the victims and bring the majority of cases to the Inter-American Commission and the Inter-American Court.
Under the AU, NGOs play a crucial role and have provided substantial support to the African Commission. The African Charter recognises the role of NGOs in several articles even though it does not always mention them specifically. Article 45(1) (a) requires the Commission to promote human and peoples’ rights by encouraging ‘national and local institutions concerned with human rights’ and Article 45(1)(c) states that the Commission should ‘co-operate with other African and international institutions concerned with the promotion and protection of human rights’. Moreover, Article 55 allows NGOs to submit communications to the African Commission without requiring that the organisation itself be the victim of the alleged violation. Furthermore, many NGOs have been granted observer status that allows them to participate in the sessions of the Commission, access documentation and information and propose items for the Commission’s agenda.
NGOs thus play a significant role in the human rights arena. They have made important contributions to human rights standard setting through their active involvement in the drafting of international treaties such as the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities and the Rome Statue of the International Criminal Court. They have also helped strengthen supervisory mechanisms by providing reliable information to supervisory bodies both at the international and regional level and many NGOs help advise and represent individuals who have suffered human rights violations. All of these factors have contributed to making the work of NGOs essential to the promotion and protection of human rights.
NON-GOVERNMENTAL ORGANISATIONS: A VOICE FOR THE VOICELESS
In striving to influence states and other socio-economic actors to prioritise social, humanitarian and/or human rights concerns, Non-Governmental Organisations or NGOs, as they are commonly known, collectively stand as a powerful voice for the disempowered. Employing a wide range of techniques from behind the scenes, including persuasion to ‘name and shame reports’ and civil society/media campaigns, NGOs are non-profit organisations neither created nor controlled by states, corporate or military interests. Guided by principles of ‘natural justice’ and motivated to protect and promote the inherent dignity of human kind, NGOs fulfil a broad range of social/development functions originating from the expressed needs of people.
Relating in varying degrees of opposition to or in concordance with state interests, due to their diverse constituencies, varying sizes, operational strategies, structures, ideologies, specialisations and sources of funding, it is not possible to accurately describe ‘average’ NGOs. They may specialise in a specific technical/scientific field, restrict their activities to political advocacy on the local, national, regional and/or international levels, operate for multiple purposes and/or base their operations on religious or secular values. Whatever their objectives, structure and auspices, the majority of NGOs in democratic societies devote attention to humanitarian/human rights service, advocacy, and/or social change efforts. Many target the protection and promotion of groups that are marginalised by state programmes: women; the aged; physically and mentally disabled persons; the poor; and various social groups marginalised by virtue of their race, sexual orientation, religion, ethnicity, caste and/or social class etc.
Generally speaking, NGOs may be classified as follows:
Policy Advocacy Groups - serve as voices for local, national, regional and/or international interests that tend to be politically ineffective (the environment, those affected by HIV/AIDS and/or those living in extreme poverty);
Service Providing Organisations - engage in the provision of a broad spectrum of essential services to populations that the state fails to reach; and
Community Associations - provide information, assistance and leadership to communities and bridge gaps between public institutions and local needs.
While most NGOs operate in the interests of protecting and promoting human dignity, attention should also be drawn to the following types of organisations:
Business Non-Governmental Organisations (BINGOs) have expropriated the form and structure of NGOs in the name of promoting corporate interests even when such interests clash with human rights and/or social welfare concerns; and
Government Non-Governmental Organisations (GONGOs), similar to BINGOs except they promote state interests.
As the humanitarian, social service and human rights ‘conscience of States’, NGOs have changed the terms and conditions under which local, national, regional and international public policy is formulated. Through persuasion, persistence and widespread media exposure, NGOs have ensured and continue to ensure that humanitarian and human rights concerns are a major focus before the global community. Such human rights concerns were virtually unknown as guidelines for state conduct when, in the days following World War II, NGOs fought for the inclusion of such rights as core elements of the United Nations Charter. Indeed, throughout the history of the United Nations, NGOs have played a leading role in the creation of international standards and legally binding treaties that incorporate these standards. Furthermore, NGOs have and will continue to be central in the process of developing implementing organs to these treaties and, completing the cycle, in providing the essential documentary evidence to bring these organs to life. Functioning as a distinctive force influencing local, national, regional and international state policy and as an intermediary through which principles of human rights and humanitarian values are voiced, NGOs have progressively come to occupy an essential (and necessary) stratum within the global community.
B. The role of human rights defenders
Positive developments in the field of human rights are to a substantial extent the result of the unrelenting efforts of thousands of individuals who, through their activism, through raising their voice, through their active membership of NGOs and through their personal courage, have defended human rights and brought the issue to the attention of the world.
Promoting respect for human rights in countries where grave violations take place is often a dangerous enterprise. Human rights defenders risk their lives, sometimes disappear or are tortured; nevertheless, thousands of individuals around the world put their lives at stake every day for the protection and promotion of human rights and fundamental freedoms. These courageous individuals come from all spheres of society: lawyers who seek to ensure that human rights violations do not go unpunished; journalists who denounce crimes in which their government or military are involved; doctors who treat victims of torture and want to bring the perpetrators to justice; trade unionists, representatives of churches and religious communities, mothers, students, victims and indigenous groups. The Mothers of Argentina’s Plaza de Mayo in the 1980s and the trade unionists in Gdansk, Poland, the demonstrators in Prague in 1989, the students at the Tiananmen Square in 1989 and in the streets of Jakarta in 1998 all show that initiatives by individuals can bring about peaceful change and improvement of human rights and fundamental freedoms.
Those who defend the rights of others often become victims of human rights violations themselves. Human rights defenders and their families risk to be defamed, threatened, expelled, arbitrarily arrested, convicted of ‘subversive’ activities, mentally and physically tortured or even murdered. Some people who are considered ‘undesirable’ disappear forever.
The UNGA paid tribute to the commitment of human rights defenders in 1998, when it adopted the ‘Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms’. The work on this declaration was initiated in 1984 by the UN Commission on Human Rights. It is the first UN instrument setting out existing international standards and applying them to the work and protection of human rights defenders, as well as recognising the legitimacy of their work. To support the implementation of the Declaration, the Commission on Human Rights established in 2000 a mandate on the situation of human rights defenders. In 2008, the Human Rights Council decided to continue the mandate for a period of three years (resolution 7/8). The Special Representative of the Secretary-General on the situation of human rights defenders has a broad mandate, inter alia: to seek, receive, examine and respond to information on the situation of human rights defenders; to establish co-operation and conduct dialogue with governments and other interested actors on the promotion and effective implementation of the Declaration; and to recommend effective strategies better to protect human rights defenders and follow up on these recommendation. The mandate- holder presents annual reports to the Human Rights Council and the General Assembly on particular topics or situations of special importance regarding the promotion and protection of the rights of human rights defenders, undertakes country visits and takes up individual cases of concern with governments.
Several other international organisations also seek to protect human rights defenders. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the CoE monitors the extent to which human rights defenders in its member states are permitted to carry out their work. The Office of the OSCE Representative on Freedom of the Media also plays an important role in protecting human rights defenders.
Many states recognise the importance of the role of individuals in the promotion of human rights. Individual governments intervene regularly (through démarches and political pressure) on behalf of individuals. Well-known are, for example, the cases of Nelson Mandela (South Africa), Aung San Su Kyi (Myanmar) and Salman Rushdie (Iran/UK). International fora often intervene on behalf of individuals, particularly if the individual(s) concerned show outstanding courage and initiative, or fulfil a symbolic function. In its first twenty years, the UN Commission on Human Rights discussed only serious violations and the naming of individuals or even states was avoided; this has now changed. In 1983, the Commission adopted a resolution on an individual case for the first time, asking for the release of Malawians Mr. Orton and Mrs. Vera Chirwa. Mr Orton was abducted from Zambia in 1981 where he lived as a refugee. He was sentenced to death by a ‘traditional’ court, tortured and kept in jail until he died in prison in November 1992. On 24 January 1993 Vera Chirwa was finally released from prison after pleas from NGOs and diplomats for more than ten years. For Orton Chirwa international efforts did not have much effect, but he will be remembered as his actions were exemplary and his distressing fate prompted the Commission to include individuals in its deliberations.
Lastly, mention should be made of NGOs who work to protect human rights defenders themselves. Amnesty International and Reporters without Borders both send appeals and petitions on behalf of individual human rights defenders facing specific threats in order to protect them and to send an important signal to policy makers.
C. The role of transnational corporations
At the dawn of the 21st century, one of the most significant changes in the human rights debate is the increased recognition of the link between business and human rights. States are to a greater extent being held responsible for breaches of obligations under international human rights law. Women’s rights activists have long fought for ‘private sphere human rights’ with regard to state obligations to prevent domestic abuse; and in an era of privatisation of public services, private entities are taking on roles previously held by the state. More than half of world’s 100 largest economies are now transnational corporations (TNCs); local and international companies can wield immense power and have a direct impact on governmental policies and the enjoyment of human rights. This has led to the recognition that business has an obligation to contribute to the promotion and protection of human rights.
The Preamble of the Universal Declaration of Human Rights sets out that ‘every individual and every organ of society’ shall strive to promote respect for human rights and fundamental freedoms. TNCs and businesses, as organs of society, have an important role to play in securing observance of human rights. Companies have, as a minimum, responsibilities towards: a) their employees: rights of employees must be ensured, for instance, freedom from discrimination, the right to life and security, freedom of association and collective bargaining, the right to join and form trade unions, freedom from slavery, fair working conditions and abolition of child labour for both companies and their business partners; and b) those who are affected by their operations: for example, many TNCs engage the services of private security companies and they have a duty to ensure that the security personnel working for them do not violate human rights. They also have a duty to address the impact of their operations on vulnerable groups such as indigenous peoples and migrant labourers. In addition, issues such as corruption and bribery serving to deprive persons of their human rights need to be addressed. Corporate responsibility is premised on a notion of responsibility towards those within a company’s ‘sphere of influence’ and in terms of complicity in the human rights violations of other actors. The OHCHR has defined a company’s sphere of influence to include those people to whom the business has certain political, contractual, economic or geographic proximity (E/CN.4/2005/91). Complicity may be direct or indirect and occurs when a company authorises, tolerates or purposely ignores human rights abuses committed by actors associated with it, or knowingly assists in or encourages human rights abuse.
While international law requires states to prohibit and punish certain actions of private actors one may argue that companies should have a wider international responsibility. The argument is made that if the state is responsible for preventing certain actions by private actors, the conduct itself is indirectly prohibited by international law. Furthermore, companies influence governments’ policies on various issues and have a moral if not legal responsibility to use this influence to further policies and actions promoting human rights; with greater power should come greater responsibility.
Efforts have been made to formulate the responsibilities of businesses in regard to their working environment and several specific international standards, declarations and codes of conduct have been adopted. General human rights standards also apply. The UN High Commissioner for Human Rights has expressed support for the development of minimum human right standards applicable to the business sector, while at the same time advocating the implementation of voluntary initiatives towards corporate social responsibility. Relevant in the context of human rights and business are, for instance:
The ILO Conventions and Recommendations on labour standards;
The ILO Declaration on Fundamental Principles and Rights at Work;
The UN Secretary-General’s Global Compact;
The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights;
The Equator Principles;
The European Parliament Code of Conduct for European enterprises operating in developing countries;
The Global Reporting Initiative: Sustainability Reporting Guidelines;
Kimberley Process Certification Scheme;
Millennium Development Goals;
OECD Guidelines for Multinational Enterprises;
UN Sub-Commission Norms on business and human rights;
Voluntary Principles on Security and Human Rights; and
The Principles for Responsible Investment.
THE GLOBAL COMPACT
The Global Compact, launched by the UN Secretary-General at the 1999 annual meeting of the World Economic Forum, challenges individual corporations and representative business associations to support the nine principles listed below which emanate from universally agreed standards found in UN documents.
A tenth principle was added in 2004.
Businesses should support and respect the protection of international human rights within their sphere of influence; and
Make sure their own corporations are not complicit in human rights abuses.
Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining;
The elimination of all forms of forced and compulsory labour;
The effective abolition of child labour; and
The elimination of discrimination in respect of employment.
Businesses should support a precautionary approach to environmental challenges;
Undertake initiatives to promote greater environmental responsibility; and
Encourage the development and diffusion of environmentally friendly technologies.
10. Businesses should work against all forms of corruption, including extortionand bribery.
The UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003) set out in their preamble that states have the primary responsibility to promote, secure and protect human rights, but that:
[W]ithin 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 recognised in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.
Similarly, the ‘Global Compact’, launched by UN Secretary-General Kofi Annan in 1999, calls upon business to ‘support and respect the protection of international human rights within their sphere of influence and [to] make sure their own corporations are not complicit in human rights abuses’. A tenth principle was added to the Global Compact in 2004.
Multilateral guidelines such as the OECD Guidelines for Multinational Enterprises and the ILO Tripartite Declaration of Principles on Multinational Enterprises are also important, as well as global stakeholder initiatives, for instance, Amnesty International’s Human Rights Guidelines for Companies, the Global Sullivan Principles, Social Accountability 8000 and the Ethical Trading Initiative. Furthermore, several case specific stakeholder initiatives have been established, for instance, actions recommended by Human Rights Watch regarding the oil industry in Nigeria, and Business Principles for Operations in China agreed to by a group of companies and NGOs in the United States.
The Human Rights Council has renewed the mandate of the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises. In 2005 the Special Representative presented a policy framework comprising three core principles: the state duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights; and the need for greater access by victims to effective remedies. The Special Representative is to operationalise the framework, inter alia: by providing views and recommendations on ways to strengthen the fulfilment of the duty of the state to protect all human rights from abuses by transnational corporations and other business enterprises; by elaborating further on the scope and content of the corporate responsibility to respect all human rights and by providing concrete guidance to business and other stakeholders; and, by exploring options and making recommendations, at the national, regional and international levels, for enhancing access to effective remedies available to those whose human rights are impacted by corporate activities.
In recent years, a number of companies have responded to the call for increased accountability by beginning to incorporate concern for human rights into their daily operations. This development is demonstrated through several recent trends such as: a) the proliferation of corporate codes of conduct protecting human and labour rights of workers; b) the inclusion of human rights and references to the UDHR into business principles; c) growing attention paid by human rights organisations, consumers and the media to the impact multinationals have on human rights; d) increased dialogue between companies and stakeholders groups concerned with human rights; and e) the discourse about possible imposition of trade sanctions on nations grossly disregarding international human rights standards. Several cases brought before international mechanisms supervising human rights standards indicate that state responsibility for actions of non-state actors is being established. However, the accountability of transnational corporations is a very complex issue. Most states are dwarfed by multinational companies and many are in dire need of foreign investment. Many countries do not have the means to ensure compliance by corporations; others are reluctant to restrain international companies and thereby risk that the companies move to countries where less stringent human rights regulations apply. Others argue that economic gains brought by investment by these companies contribute to the promotion of economic and social rights and that enjoyment of other rights will follow automatically. At times governments actively assist companies by deploying security forces. In extreme cases governments grant corporations de facto control over territories where the companies wield state-like power and corrupt state agents reap the benefits. Furthermore, repressive governments may need the funds and materials supplied by the transnational corporations to stay in power.
The complexity of the operations of transnational corporations is another important factor that results in it being difficult to hold them accountable. Companies are becoming ever more multifarious; headquartered in one country, with shareholders in another and operating globally. It is increasingly difficult for states to regulate their activity or to identify who is responsible for what and where. This leads to reluctance to regulate, and when the host-state does not regulate the company, others, including the state of nationality, may abstain from regulation, based on the extraterritorial nature of the acts.
While the international community has taken steps towards establishing the responsibility of companies for securing observance of human rights for persons within their sphere of influence, the operations of many international businesses still leave much to be desired. In order to generate stronger adherence to international norms for human rights protection, civil society, the private sector, national governments and international organisations have to concert their efforts towards accountability; national governments need to commit, in co-operation with the private sector, to embed norms and standards into national legislation where more possibilities for enforcement exist.