Kulubekova Galiya Aidarovna (Кулубекова Галия Айдаровна)

L. N. Gumilyov Eurasian national university, Republic of Kazakhstan (Евразийский национальный университет им. Л. Н. Гумилёва, Республика Казахстан)

Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights: United Nations' attempt to establish guidelines for transnational corporations

Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003)) were adopted in order to regulate transnational corporations [1].

The document draws the line between the responsibilities that must be assumed by transnational corporations, on the one hand, and by "other business enterprises", on the other.

The document contains detailed provisions, relating to such concepts as respect for the principle of equal opportunities and non-discrimination, personal safety, workers' rights, protection of the interests of consumers and environmental protection.

It provides an explanation for the level of corporate responsibility of transnational corporations: “Within their respective spheres of activity and influence, transnational corporations and other business enterprises have the obligation to promote, secure the fulfillment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups”.

Such actions as “to promote, to secure the fulfillment of, to respect, and to protect” shall be understood as follows: transnational corporations shall respect the human rights of all people, refrain from interfering with the enjoyment of such rights. The obligation to protect requires transnational corporations to prevent violations of such rights by third parties. The obligation to secure the fulfillment requires transnational corporations to take appropriate measures towards the full realization of such rights. The obligation to promote means that transnational corporations are to encourage the fulfillment of such rights in all spheres.

The obligation to “ensure respect” is a more difficult concept that the ones mentioned above. This obligation means in general that transnational corporations shall undertake actions that indirectly contribute to the fulfillment of human rights. For example, transnational corporations shall refrain from any activity which supports, solicits, or encourages Sates or third parties to abuse human rights. Moreover, under such obligation transnational corporations are to ensure that their goods and services will not be used for human rights abuse.

Even though the document addresses enterprises, it proclaims that the attention shall not be distracted from the international obligations of states: “States have the primary responsibility to promote, secure the fulfillment of, respect, ensure respect of and protect human rights... Nothing in these Norms shall be construed as diminishing, restricting, or adversely affecting the human rights obligations of States under national and international law”

Nevertheless, some representatives of business community expressed a negative opinion on the document. In this regard, it is worth to mention the Joint views of the International Chamber of Commerce (ICC) and International Organization of Employers (IOE) on the document. In particularly, the critics state: “As the Executive Director of Human Rights Watch, has observed, “international [human rights] standards apply formally only to governments, not to corporations themselves.” [2, 225; 235] States are the duty-bearers of obligations under the international human rights law. However, the Norms declare that private businesses have the duty to “secure the fulfillment of,” “protect,” etc. the rights that are recognized in the various United Nations human rights treaties. This might confuse the public”.

Such position seems reasonable and logic due to the fact that there is no international legal personality of transnational corporations. Therefore, this document, in fact, is not binding for transnational corporations, it is merely a recommendation while the form of presentation of text creates an impression that it is normative. This is confusing.

It is worth to say that the Norms contain arguments for relevancy of imposing obligations upon transnational corporations under international law. Thus, at the very beginning of the document it is mentioned that the Universal Declaration of Human Rights proclaims a common standard of achievement for all peoples and all nations, to the end that Governments, other organs of society and individuals shall strive. In this context, transnational corporations are regarded as “organs of society” for which the Universal Declaration of Human Rights is binding.

However, business structures could hardly be named organs of society as their primary goal is profit, and their interests are located in the sphere of economy. Therefore, it is obvious that the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights are not binding on them.

It is necessary to bear in mind that transnational corporations are not those subjects that shall promote, secure the fulfillment of, protect, and ensure respect for human rights. These obligations shall not be transferred to private business structures as enterprises are not created for social purposes, but for profit purposes. Transnational corporations shall respect human rights, if not they shall be sued in court under the relevant national law. Therefore, the modern tendency, which imposes upon them responsibilities traditionally carried by states, seems absurd.

BIBLIOGRAPHY

1. United Nations. Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003)

2. Power, Samantha, and Graham T. Allison. Realizing Human Rights: Moving from Inspiration to Impact. New York: St. Martin's, 2000. pp. 225, 235

3. Joint views of the International Chamber of Commerce (ICC) and International Organization of Employers (IOE) on the document Full text is available at http://business-humanrights.org/en/joint-views-of-the-ioe-icc-on-the-un-human-rights-norms-for-business#c48690 [accessed December 05, 2015]