The International Federation for Human Rights (FIDH) was created in 1922. It now federates 141 member organisations in over 100 countries covering all the continents. The aim of the International Federation for Human Rights (FIDH) is to obtain effective improvements in the protection of victims of human rights violations, the prevention of human rights abuse and the prosecution of those responsible for these violations.
The FIDH has been the first international human rights organization with the general mandate to defend all the human rights laid down in the Universal Declaration of Human Rights of 1948, be they civil and political or economic, social and cultural. Since 1997, the FIDH has launched a programme on Globalization and Human Rights which comprises training sessions for its member organizations on issues such as the impact on human rights of trade agreements or the human rights obligations of transnational corporations, enquiry missions on the impact of the activities of transnational corporations on the enjoyment of human rights, or reports on certain thematic issues.
The FIDH welcomed the adoption by the Commission on Human Rights, at its 61st session, of resolution 2005/69 requesting the Secretary General to appoint a special representative on the issue of human rights and transnational corporations. Under the terms of the resolution, the Special Representative is asked :
(a) To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights;
(b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation;
(c) To research and clarify the implications for transnational corporations and other business enterprises of concepts such as "complicity" and "sphere of influence";
(d) To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises;
(e) To compile a compendium of best practices of States and transnational corporations and other business enterprises;
The FIDH looks forward to having further exchanges with the Special Representative on these issues. Indeed, as part of its ongoing relationship with a major French transnational corporation, the FIDH intends to host in the next few months a round table discussion with the relevant actors of the business community in France, the purpose of which would be to discuss the concepts of « complicity » and « sphere of influence » and the implementation of these concepts in the diversity of settings in which they might be invoked in the future. The FIDH is aware that these concepts - which are central in the definition of the mandate of the Special Representative which has been recalled -, because of their vagueness and still relatively ill-defined character, have created certain fears within the business community. The FIDH will seek to contribute to clarifying their meaning and potential reach, on the basis of an open dialogue with businesses and other stakeholders from all sectors.
In this preliminary consultation however, the FIDH wishes to emphasize three points. First, the FIDH would emphasize that, whatever progress is made on the question of the accountability of transnational corporations with regard to human rights, this should not restrict the scope of the obligation imposed on States under international law to protect the human rights of all persons under their jurisdiction. Indeed, this not only means that, wherever they operate, transnational corporations should be effectively controlled by the territorially competent State, on the national territory of which they pursue their activities. It also may imply that States should, insofar as legally and practically possible, control the activities abroad of the corporations which are incorporated under their jurisdiction, and on which, therefore, they may exercise control by the adoption of extra-territorial legislation, although as a matter of course this obligation should be understood without prejudice of the sovereign rights of the territorial State. Finally, this imposes an obligation on all States to facilitate the protection of human rights by the territorial State, in particular, by not concluding agreements, such as bilateral or multilateral investment treaties or free trade agreements, which, by providing extensive guarantees to the investors, may result in depriving the territorial State from its capacity to effectively protect human rights of all persons under its jurisdiction.
It is crucial that, in the course of identifying the human rights of corporations, the primary responsibility of States under the current international law of human rights be recalled and emphasized. An improved regulation of transnational corporations by initiatives adopted at a global level should not be seen as a substitute for the obligations of States towards human rights : such initiatives should be seen, rather, as complementing such obligations, and as facilitating the fulfilment by all States of their human rights obligations.
Second, the FIDH would insist on the central role in the current debate of the Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights, adopted by the Sub-Commission of Human Rights on August 13th, 2003. This set of Norms constitutes the most complete codification to date of the human rights responsibilities of companies. The Norms are the result of extensive debates with all stakeholders, including in particular the corporations themselves. Although certain provisions of the Norms may be further clarified - such as, indeed, the precise significance of the notions of "complicity" and "sphere of influence" in the diverse circumstances which companies may face in the course of their activities -, the FIDH believes it would constitute a step backward, not forward, if these Norms were to be simply set aside in the fulfilment of the mandate of the Special Representative on Human Rights and transnational corporations. The FIDH is confident that this will not be the case. Indeed, it is the considered view of the FIDH that, although Resolution 2005/69 of the Commission on Human Rights states that the Special Representative should "identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights", these standards already have been identified through the work of UN Sub-Commission for the promotion and the protection of Human Rights. The question now is how to build on this acquis and how to further implement these Norms ; it is not whether to repeat this exercise all over.
Thirdly, the FIDH wishes to share its concern that, in this field, discussions on voluntary initiatives might serve to postpone advances in the better regulation of transnational corporations, either by imposing directly obligations on transnational corporations under international law, or by further clarifying the obligations of States to better regulate the activities of corporations operating under their jurisdiction or which they may control. Voluntary initiatives such as charters or codes of conduct, international framework agreements, adherence to standards such as those proposed by the ILO or the OECD, or participation in the Global Compact, are very welcome and, indeed, essential to improving corporate responsibility. But they should not be seen as a substitute for the reaffirmation of the obligations imposed to all under the international law of human rights, and they should not be presented as such.
These are, in the view of the FIDH, the parameters under which the Special Representative on human rights and transnational corporations should make progress in the fulfilment of his mandate. The FIDH looks forward to a fruitful co-operation with the Special Representative in the next few months, and wishes to express its full confidence in the process which is now being launched.