Human rights in business practices

Dr. Ruwantissa ABEYRATNE

HUMAN RIGHTS: The private sector in any society drives the economy by bringing new opportunities for employment, technology and capital, paving the way for development and improvement of work conditions and standards of living.

At the same time, there could be companies that violate human rights by employing underage workers (and even children) and allowing for discrimination against identified groups of employees such as women and unionized workers.

There may even be instances of suppression of independent trade unions and the failure to provide acceptable safe and healthy working conditions.

Some enterprises could also be adversely affecting society at large and human rights by dumping toxic waste and generally creating unsanitary conditions in the environment surrounding them.

This article is about human rights in the conduct of the business sector, such as non-State entities, corporations and other private sector business enterprises. It, introduces five basic human rights norms involving the UN Commission on Human Rights.

Given the high visibility and daunting stature in the economic world, it is quite remarkable that neither international law in general, nor international human rights laws in particular, has given the deserved recognition to protecting humans from violations by their private sector employers.

Although international human rights law has played a signal role in addressing violations against persons by governments in such areas as war crimes, genocide and other crimes against humanity, violations of human rights by non State business entities has not received widespread world attention to the degree it deserves.

Powerful

Private companies are powerful anywhere. Gabel and Bruner, in their book Global Inc,: An Atlas of Multinational Corporations, say that the three hundred largest corporations account for more than one quarter of the worlds productive assets.

Ninety million people are employed by trans national corporations (twenty million of whom live in developing countries). These companies produce twenty five percent of the worlds gross product and the top one thousand of these companies account for eighty percent of the worlds industrial output.

The Universal Declaration of Human rights, although focussing mainly on the obligations of States, carries a provision reflecting the responsibilities of individuals as well as every organ of society, thus encapsulating the private sector within its umbrella by including the business world.

More importantly, the ultimate responsibility for the action of the business enterprises within a States territory falls on the State.

According to the International Covenant on Civil and Political Rights (ICCPR) each State undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant.

This essentially means that if a business entity violates or endangers the right of an individual, the State concerned has a duty to ensure respect of human rights by taking preventive action.

Another treaty, the International Convention on the Elimination of all Forms of Racial Discrimination, in Article 2d requires States parties to the Convention to prohibit and bring to an end, by all appropriate means, including legislation, racial discrimination by any person, group or organization.

This provision requires States to assume responsibility indirectly of preventing racial discrimination in the work force anywhere within that States territory.

There have also been other initiatives in the international community to define direct responsibilities.

At the World Economic Forum of 1999 held in Davos, UN Secretary General Kofi Annan proposed what was called a Global Compact that sought the voluntary assumption by the world business community of nine core principles addressing general human rights, standards of labour and standards of environmental protection.

Another core principle addressing corruption in the work place was added in 2004. An early initiative in this regard is seen in the 1976 guidelines for multinational enterprises to promote responsible business conduct of the Organization for Economic Cooperation and Development (OECD).

This was followed a year later by the International Labour Organization (ILO) which developed a Tripartite Declaration of Principles Concerning Multinational Enterprises, which urges business enterprises to adhere to the various labour conventions and recommendations of the ILO.

Balance

As a corollary to these international initiatives, voluntary codes of conduct have been adopted by several industry associations.

However, these codes tend to be highly conceptual and do not lend themselves to easy application. A recent study conducted in this area suggests that only eighty five corporations have even mentioned human rights in their company codes.

A good starting point for any business entity that is interested in ensuring human rights in the workplace are the Norms on the Responsibilities of Trans National Corporations and Other Business Enterprises with Regard to Human Rights approved by the UN Sub Commission on the Protection of Human Rights in August 2003.

The Norms have five significant attributes that are relevant, the first being that nothing in the Norms would diminish the primary role of the State in ensuring human rights of its citizens and the pre-eminent obligation of the government in that regard.

Perhaps the most important contribution of the Norms is to clearly establish that they apply not only to trans national corporations such as ENRON, Union Carbide and WorldCom, but also to national companies and local businesses.

By this measure, the Norms ensure that they are applied without discrimination, whilst obviating the possibility of business entities skilfully seeking exemptions brought to bear by the type of organization as defined or made open to interpretation.

Furthermore, this approach creates a harmonious balance between all businesses however large or small, while not being too onerous on small businesses.

The Norms are far reaching and generally encompass the spectrum of human rights spread out over twenty three paragraphs.

They include the right to equality of opportunity and treatment; the right to security of persons; the rights of workers; the right to collective bargaining; respect for the rule of law and international and local laws; the right to a healthy work environment; the right to political and social and cultural rights; and other civil rights.

The Norms are by no means laws in the nature of treaties or other international legal instruments, but remain as guidelines in the nature of other UN declarations, principles and standards.

The most effective feature of the Norms is its implementation process which detail five basic implementation procedures.

Firstly, the Norms allow companies to adopt their own internal procedures as best befitting them in terms of application and implementation; secondly, the Norms require businesses to evaluate their own major activities in the light of the provisions; third, the Norms require transparency and input from the various stakeholders; fourth, the Norms call for compensation, reparation or restoration in case of violations; and finally, the Norms call on the governments to draw up a framework for the application of the Norms.

The Norms not only involve both governments and companies alike, but they also encourage legislatures to adopt them as part of domestic law.

However, they have been questioned, particularly by the International Chamber of Commerce (ICC) and the International Organization of Employers (IOE) on the basis that it is questionable as to whether companies, as non-State actors, can be brought under human rights standards.

This query goes counter to the work done by the United Nations as well as the fundamental principle the Universal Declaration of Human Rights cited at the commencement of this article of. As a compromise, the ICC and IOE have indicated that the Norms will be acceptable only as voluntary guidelines.

In essence the entire process of ensuring human rights, whatever be the environment in which they are applied lies in governance. The concept of 'governance' is as old as human civilization.

The most simplistic definition of 'governance' would be that it is the process of decision-making and the process by which decisions are implemented (or not implemented as the case may be).

Governance can be categorized into several institutional bases and used in several contexts such as corporate governance, international governance, national governance and local governance.

Equal employment

Essentially, since governance represents the process of decision-making which ineluctably involves a process by which decisions are implemented, it becomes necessary for an analysis of governance to focus on the formal and informal actors involved in decision-making and implementing the decisions taken, along with the nature of formal and informal structures that have been set in place to arrive at and implement the decision.

Most fundamental to human rights in the work place is equality. This starts with equality of the sexes where male and female workers have to be treated alike both in terms of positioning as well as in terms of wages.

This also applies to higher management where participation by both men and women is an integral element of good governance. Participation, which needs to be informed and organized, may be either direct or through legitimate intermediate institutions or representatives.

Whilst representative democracy does not necessarily mean that the concerns of the most vulnerable in society would be taken into consideration in decision making.

Nonetheless a participatory governance most often ensures a balanced existence between freedom of association and expression on the one hand and an organized civil society on the other hand.

Equal employment is a right that should be restored if a society were to have lost it through mismanagement of government over the years.

This has to do with the creation of employment opportunities through expansion of commerce and trade.

In this context, and indeed with regard to other rights mentioned above, an effective analogy is the new public management (NPM) which embraces private sector norms and values, including a focus on customers and an abiding dependence on market mechanisms, the fragmentation and decentralization of public services and the revision of working practices within such institutions which would all go towards achieving more efficient services ad facilities for the people.

A government committed to such an approach (which has enjoyed immense success in the European Community) would have to ensure a sustained commitment by the top leadership in government; acceptance of the need for change by the stakeholders; the presence of a coherent vision and opportunities for wide participation in analyzing and diagnosing problems and finding solutions.

Finally, good governance must be rewarded. Recognition should be given through satisfaction surveys where a direct causal nexus could be drawn between the manner in which the worker was enabled to reach a level of satisfaction with governance provided.

Positive changes in expectation and results obtained should be weighed against perceived adequacies of the business entity in the provision of services.

Trust in the employer, through increased levels of health and well being ( which must necessarily include a sense of security of life, habitation and movement) both from cultural and religious perspectives should be a primary indicator.

The elimination of corruption is a key to good governance, and civil society, which has been overwhelmingly proactive in building awareness on human rights issues, has succeeded in persuading the international community of the value for transparency and honesty in public transactions.

Arguably, the most important key to good governance is benevolence and understanding.

A good employer must assure its workforce that it has their well being at heart and pro actively move towards achieving that goal.

The writer is the Coordinator, Air Transport Programmes, International Civil Aviation Organization, Canada.