Sub-Commission on the promotion and protection of Human Rights
58th session
7- 25 August 2006
Item 4 of the agenda: Economic, social and cultural rights.
ORAL STATEMENT
In the area of social and economic rights, FIDH identifies two priority issues for the time to come. First, there is a need to improve the protection of human rights in the activities of transnational corporations (TNCs). The increased ability of TNCs to shift investments from one State to another, in combination with a spectacular reinforcement of investors’ rights in both multilateral free trade agreements and bilateral investment or free trade treaties, have resulted in putting TNCs in a bargaining position vis-à-vis States which disempowers the latter, and makes it, in some instances, difficult, or even impossible, for the States receiving foreign direct investment to effectively regulate the activities of TNCs operating on their territory.
It is difficult to hold TNCs accountable for human rights violations, not because of their economic weight, but rather because of two other factors which it is our responsibility to address. First, instead of cooperating with one another, States have entered into a destructive competition against one another. Emerging victorious from this battle is not any individual State, but TNCs in general, whose leverage power benefits immensely from this inter-State competition. As host States of foreign investment, States compete against one another in order to attract investors, thus lowering their regulatory barriers to the entry and establishment of investors. Simultaneously, as they are home to certain TNCs domiciled under their jurisdiction, States seek to protect the rights of TNCs against the interests of States where their TNCs invest. This is a destructive race, the impact on human rights, especially social rights, has been widely documented. Collective action by the community of States is required in order to put an end to this situation.
Second, there remains a number of doctrinal uncertainties concerning the extension to corporations of human rights responsibilities, which have paralyzed the debate since the adoption of the Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises in Sub-Commission’s Resolution 2003/16. Three questions have been central to the debate following the adoption of this resolution. First, a controversy has arisen about when companies may be said to be complicit in human rights violations committed by others, States in which they operate or business partners. Second, the scope of the ‘sphere of influence’ of companies, to which their positive obligations to protect and promote human rights extend, has been debated. Third, most significantly, questions have been raised about the acceptability of extending to corporations human rights obligations which were explicitly addressed to States.
In its reaction to the interim report presented by Professor Ruggie, the Special Representative of the UN Secretary General appointed in accordance with Resolution 2005/69 of the United Nations Commission on Human Rights, to the 62nd session of the Commission on Human Rights, the International Federation for Human Rights (FIDH) has made its view very clear that the doctrinal arguments leveled against the Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises are misdirected, and based on an outmoded, if not simply incorrect, understanding of the potential of international human rights law. At the same time, the FIDH cannot but conclude, as has been concluded by the Special Representative of the Secretary General, that the Norms have failed to gather the necessary political support, as not only certain powerful organisations representing the interests of business, but also certain States, have made no mystery about their hostility to the approach adopted by the Norms.
What can be done? FIDH shares the view of the Special Representative that market-based solutions and voluntary initiatives, however valuable they may be, are not an adequate alternative. Such initiatives have limited applicability, as they apply to certain sectors and certain actors only, and refer to various standards. If the Norms cannot gather the political support they require to translate into legally binding commitments or operational mechanisms, other venues must be explored. In keeping with the classical understanding of the international law of human rights as primarily addressed to States, we might seek to emphasize the obligation of States not only to protect the human rights of all persons under their jurisdiction, but also to contribute to the protection of human rights outside their territory, both by controlling private actors on which they may exercise extra-territorial jurisdiction and by fully taking into account their human rights obligations in the negotiation and conclusion of international agreements, especially where such agreements liberalize trade or investment, and thus grant rights to transnational corporations.
The proposal of the Sub-Commission on human rights on the Norms has failed. The Sub-Commission might wish to explore other venues which, through different means, will ensure that the same objectives are achieved. In this regard, FIDH would welcome a restatement of the obligations of States to protect human rights they are bound to comply with, both within their national territory and extra-territorially. It is necessary today to dispel the idea that industrialized States - from which the vast majority of TNCs originate - may remain passive in the face of strategies pursued by those TNCs whose activities they may control, and of which developing States in need of foreign investment remain the main victims.
Another issue to which FIDH attaches the highest priority is the drafting of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. As a member of the NGO Coalition for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, FIDH welcomes the decision adopted on 28 June 2006 at the first session of the Human Rights Council to extend the mandate of the Open-Ended Working Group for a period of two years in order to elaborate an optional protocol to the International Covenant on Economic, Social and Cultural Rights.1 The Chairperson of the Working Group has been requested to prepare, taking into account all views expressed during the sessions of the Working Group on, inter alia, the scope and application of an optional protocol, a first draft optional protocol, to be used as a basis for the forthcoming negotiations.
In FIDH’s view, it would be a serious mistake, and a derogation from the principle of indivisibility and interdependence of all human rights of the Universal Declaration on Human Rights, to select only a limited number of the rights of the International Covenant on Economic, Social and Cultural Rights for the mechanism of individual communications. This option would have serious negative effects, both at a symbolic and at a practical level. It would create the impression that certain rights of the ICESCR are ‘second-rank’ rights, would be less binding, or of minor importance. It would also discourage national jurisdictions from finding justiciable those rights not included in the mechanism of individual communications at the international level.
In the past, the Sub-Commission on Human Rights has contributed actively to this debate, by highlighting the feasibility of the Optional Protocol to the ICESCR and by answering the arguments of the skeptics. This work should continue, now more than ever, as we enter into the concrete phase of drafting. FIDH would attach particular importance to a statement by the Sub-Commission recalling that all human rights stipulated in the UDHR, whether contained in the ICCPR or in the ICESCR, entail the obligations to respect, to protect and to fulfil, and that in all these dimensions, human rights have budgetary implications. Indeed, the concluding observations adopted by human rights treaty bodies on the basis of the States’ reports already have such implications, where they are faithfully followed upon. And it is the everyday business of courts to decide complex issues, whose financial implications may be considerable. In sum, FIDH would strongly resist any attempt to reinstall, at the centre stage of this debate, a distinction between two generations of rights which is both outmoded - as it is a remnant of the Cold War ideological debates - and intellectually fragile - as illustrated by the developments in the theory of international human rights since the mid-1980s -. It invites the Sub-Commission on Human Rights to adopt a vanguard position on this debate, where it has a crucial role to play as the main expert body counseling the Human Rights Council.