The regulation of corporate activities under the international human rights convenants (ICCPR and ICESCR).

• Author: Andreopoulos, George
• Position: Report

1. INTRODUCTION

   Traditionally, the human rights discourse (1) has been very state-centric, and as a result, not sensitive to violations committed by non-state entities. This orientation was clearly shaped by the experience of the Second World War and the concomitant need to constrain the abusive conduct of state actors. However, even the earlier human rights instruments are interspersed with references to the dual potential of non-state actors as both promoters and abusers of human rights. For example, the preamble of the Universal Declaration of Human Rights (UDHR) states that "every individual.... keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance." Likewise, the ensuing instruments which further developed the provisions of the UDHR, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) refer in their preambles to the fact that "the individual having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant." Thus, the consensual tone of the UDHR was replaced with an obligatory one associated with duties. (2)

   Since the adoption of these two covenants, the exponential growth of human rights instruments and the proliferation of monitoring bodies established to ensure state parties' adherence to human rights rules and standards have contributed to a better understanding of the scope and content of state parties' responsibilities to regulate and adjudicate the actions of both state and non-state entities. This paper will focus on state parties' responsibilities vis-a-vis the actions of business enterprises by examining the relevant provisions of the ICCPR and the ICESCR, as well as the work of their respective monitoring bodies. The sources on which this preliminary study is based are drawn from the relevant treaty provisions, the monitoring bodies' concluding observations on states parties' periodic reports, the General Comments issued by the monitoring bodies, as well as the HRC's decisions on individual communications submitted under the ICCPR's First Optional Protocol. (3) This study constitutes part of a larger research project in which we will examine all core international human rights instruments in order to analyze and assess emerging patterns and measures relevant to business enterprises.

2. THE CHALLENGE AND THE DUTY TO PROTECT

   What are the challenges that business enterprises pose to human rights? Clearly this is a complex question that cannot be adequately addressed within the confines of a short paper. A few brief remarks on transnational corporations (TRCs) can offer some indications on the range of issues and problems involved.

   The expansion of the legal rights of TRCs has unquestionably encouraged investment and trade flows. At the same time, however, it has created, as noted in a report by the Special Representative of the UN Secretary-General on the issue of human rights and business enterprises (hereinafter SR) "instances of imbalances between firms and States that may be detrimental to human rights." (4) Examples include the more than 2,500 bilateral investment treaties permitting foreign investors "to take host states to binding international arbitration, including for alleged damages resulting from implementation of legislation to improve domestic social and environmental standards," and an antiquated legal framework that permits parent companies and their subsidiaries "to be construed as distinct legal entities." (5) The latter allows parent companies to escape legal scrutiny for the acts of their subsidiaries (even when the parent company is the sole shareholder), unless the operational control exercised by the parent company is such that the subsidiary can be regarded as its mere agent. (6)

   Given some of these challenges, it is necessary to explore the ways in which the relevant international legal instruments can contribute to greater transparency and effective monitoring. There are several reasons why such a study should begin with an examination of the two international covenants. First, both covenants are part (together with the Universal Declaration of Human Rights-UDHR) of the International Bill of Rights; second, they constitute two legally binding human rights instruments that cover a wide range of rights...